Incivility "immortalized" in Cal.App.5th

For the latest in civility, see Bed's published opinion here:

Civility is not about etiquette. This is not a matter of bad manners. Incivility slows things down, it costs people money – money they were counting on their lawyers to help them save. And it contravenes the Legislature’s directive that “all parties shall cooperate in bringing the action to trial[.]” (Code Civ. Proc., § 583.130.)

Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports.

For more civility lessons, see also this unpub from 2/2 here at fn. 8: "[Appellant] also likens the trial court to a Holocaust denier. This type of gross and baseless hyperbole is unfounded, disrespectful, offensive, and unethical." 

Also, the Wall St. Journal has How an Ordinary Guy Took a $3,000 Case to the Supreme Court

• In 1893, the court ruled that for tax purposes, tomatoes actually are vegetables. In 1924’s “U.S. vs. 95 Barrels (More or Less) of Alleged Apple Cider Vinegar,” the nine justices took up whether there was a meaningful difference between vinegars made from dried apples instead of fresh. Turns out there was.
• Despite its seemingly low stakes, Harrow’s case has real implications for ordinary people’s access to the courts, say his advocates and those filing briefs in support.

Appellate waiver case / book review

The MetNews has C.A. Permits Appeal Despite Clause in Arbitration Agreement Barring It, about this unpub'd decision here. The court finds that an agreement providing “The parties further agree that there will be no appeal from the court’s ruling under section 1285 except for any ruling vacating the arbitration award” did not waive the right to appeal. "A person’s agreement not to take an action does not support an inference that the person was aware that he had a right to take that action." 

The April 2024 issue of Los Angeles Lawyer has Marc Alexander's book review of Citizen Justice, about Justice William O. Douglas, written by Ninth Circuit Judge Margaret McKeown.

Bloomberg Law has Biden Top Supreme Court Lawyer Laments Shadow Docket Effect

SCOTUS players

Bloomberg Law has Jones Day Leads in Supreme Court Arguments With New Faces, noting:

• Five Jones Day attorneys took to the US Supreme Court lectern this term, making the DC-based giant the firm with the most arguments.
• Attorneys for Gibson Dunn, Hogan Lovells, and Williams & Connolly argued four cases for their firms.
• Gibson Dunn sent three newcomers to the lectern, including partner Theane Evangelis, associate D. Nick Harper, and Eugene Scalia, the son of the late Justice Antonin Scalia. Hogan Lovells’ Jessica Ellsworth made her first and second arguments this term, including in the challenge to the abortion drug mifepristone.
• Of the 152 total arguments, more than half were argued by attorneys making at least their fifth appearance. A quarter were first-timers.

Speaking of SCOTUS, the headliner at the Pepperdine University Caruso School of Law Dinner (Sept. 21 @ the Fairmont Century Plaza) will be Justice Amy Coney Barrett.  

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Appellate law elsewhere of note

The NLJ has NY's Top Court Says It Won't Accept Amicus Briefs That Create Conflicts

New York’s highest court is adopting a rule change that could reduce its reliance on substitute jurists. In the wake of the New York Court of Appeals using three Appellate Division judges for arguably two of its biggest appeals since December, the court will limit its acceptance of amicus briefs going forward, according to a notice to the bar on April 23.

Law360 has Court Clerk Error Is No Excuse For A Missed Deadline (discussing two cases from Virginia).

 

2d DCA pro tem update

 

The following judges are currently sitting on assignment in the 2d District:

• Judge Corey G. Lee of the San Bernardino Superior Court will be sitting Pro Tem in Division Five until June 15, 2024     
• Judge Tony Raphael of the San Bernardino County Superior Court will be sitting Pro Tem in Division Seven until June 14, 2024  

4th Dist. RA program

The Appellate Law Section of the Orange County Bar Association presents an in-person MCLE program on Thursday, May 2, 2024, 12:30 to 1:30, titled Ask Us (Almost) Anything: A Discussion with Judicial Attorneys from Southern California State Appellate Courts, featuring four research attorneys.

SCOTUS Oral Argument milestone

Law360 has Lisa Blatt Becomes 1st Woman To Argue 50 High Court Cases -- "Williams & Connolly LLP partner Lisa Blatt began her historic 50th oral argument in front of the U.S. Supreme Court with a chuckle Tuesday. ... Blatt, who first argued in front of the Supreme Court in 1996 while an assistant at the U.S. Solicitor General's Office, boasts a 41-5 win-loss record at the high court, including a 13-5 record since entering private practice in 2009, making her not only the Supreme Court bar's most prolific female advocate, but also one of its most successful attorneys in general."

Called out for incivility

2/4 publishes this opinion here today (in an anti-SLAPP appeal) that calls out incivility (on page 85): 

we note that Norman’s opening brief in this appeal was correctly characterized by defendants as “bombastic,” and filled with “ad homimem [sic] attacks.” .... These quotes constitute a mere sampling; there are many more instances of similar derogatory phrasing scattered throughout Norman’s 60-page opening brief. We find the unnecessary commentary in Norman’s brief lacking in professionalism.  We expect civility and decorum from counsel who appear in this court, and this brief falls short of that expectation.  We trust counsel will meet these standards in the future.

On the federal side, Law360 has Using Rule 23(f) To Review Class Certification Orders

IG for SCOTUS?

 

Law360 has Dems Propose Inspector General For High Court, Judiciary

Democratic lawmakers introduced a bill Thursday that would create an inspector general's office for the judicial branch to investigate and report on allegations of misconduct lodged against U.S. Supreme Court justices, as well as judges throughout the federal judiciary.

Law.com has Justices Agree the 'Shadow Docket' Needs Fixing—But Not How

 

LA City Atty Office opening

The Office of the Los Angeles City Attorney has a Deputy City Attorney opening in the Civil Liability Appeals Division. The primary qualifications for this position are excellent legal research and writing skills and a serious interest in full-time appellate work. Attorneys interested in applying should submit their cover letter, resume, and writing samples in ONE (1) MERGED PDF FILE specifying #3396 – DCA – CIVIL LIABILITY APPEALS, via email to atty.recruit@lacity.org. Questions? Please email atty.recruit@lacity.org.

J. Newman v. Fed Circuit

Law360 has three articles today about Judge Newman's fight with the Federal Circuit:

Fed. Circ.'s Fight With Newman: A Year In Review

Fed. Circ.'s Competency Feud With Newman Turned Personal

A year after the Federal Circuit publicly acknowledged its investigation into U.S. Circuit Judge Pauline Newman's mental and physical competency, the nonagenarian still refuses to follow the court's medical testing orders and remains determined to reclaim her seat on the bench.

Judge Pauline Newman's Year In Her Own Words

April 14 marks the one-year anniversary of when the Federal Circuit confirmed an unprecedented investigation into whether U.S. Circuit Judge Pauline Newman was mentally and physically competent to remain on its bench, and the judge has not been allowed to hear cases during that time.

The 96-year-old told Law360 on Wednesday that she had considered giving up her seat as an active judge on the Federal Circuit before the investigation began, but that the way her colleagues have tried to force her out is making her take a stand on principle.

"No transcript, no appeal"

Today's LA Times has No transcript, no appeal: California courts face ‘crisis’ over lack of records

• California’s highest-ranking court officials are warning of a growing “constitutional crisis” playing out across the state’s judicial system, as hundreds of thousands of hearings are held without a precise record of what occurred.
• The problem is a shortage of public court reporters, the stenographers who transcribe proceedings, and state law that bars electronic recording devices from being used in certain types of hearings — even when a reporter isn’t available.
• Last year, 332,000 hearings occurred without a court reporter or an electronic recording device in Los Angeles County Superior Court alone. California Chief Justice Patricia Guerrero warned in a speech last month that, statewide, about 133,000 such hearings occurred in a single three-month period.

"Briefing Deficiencies"

More and more often decisions are including sections titled something like "Appellants' Briefing Deficiencies," as the 5th does in this unpub today. What upset the court?

An opening brief on appeal must provide “a summary of the significant facts limited to matters in the record.”  (Cal. Rules of Court, rule 8.204(a)(2)(C).)  The summary in appellants’ opening brief is mostly cut and pasted from their posttrial brief to the trial judge, which was filed long before the record on appeal was prepared.  Appellants neglected to update the record citations from their earlier brief, which were based on the court reporter’s daily transcripts.  Consequently, none of the “RT” citations in appellants’ opening brief correspond to the reporter’s transcript in the record on appeal.  To put it bluntly, the “RT” citations are useless.  Many of appellants’ substantive arguments are also cut and pasted from their posttrial brief, so the indecipherable “RT” citations appear throughout the opening brief. 

Appellants’ opening brief is also replete with record citations using the unexplained abbreviation “TE.”  We can deduce that “TE” stands for Trial Exhibit, but the citations merely reference the exhibit number, e.g., “TE 184.”  Appellants do not indicate where within the 1,832-page clerk’s transcript any of the exhibits are located.  The exhibits are not presented in numerical order within the clerk’s transcript, nor are they listed in numerical order in the index.  Many of the exhibits are lengthy, but appellants never explain what portions of the cited exhibits are germane to their assertions.  Appellants even cite to trial exhibits that were not included in the record on appeal.

Furthermore, appellants present as facts certain positions rejected by the trial court and thus inconsistent with the trial court’s ultimate findings.  This is another consequence of the cut-and-paste approach to appellate briefing.   

Appellate DQ law / Uniform admission stories

On the AB2125 front, The Recorder has Lawmakers Advance Bill to Allow Disqualification of Appellate Justices

And the NLJ has Uniform Bar Admissions Rule for US Trial Courts Draws Opposition from Circuit, District Judges

Appellate courts already operate under a uniform admissions rule.

Under the federal procedure rules, the only requirement for those seeking to argue in federal appeals courts is that they be admitted to the highest court of any state.

But [Third Circuit Judge Kent] Jordan said the admissions process for appellate and trial courts are not comparable because the courts function differently.

“I can tell you there is a gigantic difference between having people… parachute in and do an appellate argument, and [having] somebody say, ‘I want to appear in federal court all the time. I’m going to establish an employment law practice in the federal courts and I’m not going to take your state bar,’” he said. “I just think you’re getting a push back for a reason.”

'Meet' Justice Wilson tomorrow at noon (virtually)

BASF's Appellate Law Sections presents a (virtual) Roundtable Discussion with Justice Monique Langhorne Wilson on April 10 at noon.

Law360 has Attys Have Duty To Defend Judges, ABA President Says

The American Bar Association's president on Monday warned that attacks on judges and the U.S. court system have skyrocketed in recent years and urged lawyers to stand up for the judicial process by defending judges who are unjustly criticized.

Ronald Davis, the director of the U.S. Marshals Service, in February told the House Judiciary Committee's Crime and Federal Government Surveillance Subcommittee that over the last three years the number of threats against federal judges has more than doubled, in addition to threats against prosecutors and other officials in the courts.

Circuit split quantification

Law.com has Has a Law Professor Found a Better Way to Quantify Circuit Splits for the Justices? -- Stanford's Joseph A. Grundfest says his percentages-rich method involves more than simple "nose counting."

U.S. Supreme Court lawyers for decades have known of the importance of highlighting “circuit splits” when seeking the justices’ review in a case, but a Stanford Law School professor says there’s a better way to highlight disagreement among lower courts than simple “nose counting.”

In a new paper, Joseph A. Grundfest has debuted a more sophisticated methodology for quantifying the scale of disagreement among lower courts that he says could prove useful for lawyers petitioning for Supreme Court review—and could even come in handy for those opposing such review.

The premise of Grundfest’s new methodology is simple. Rather than just tallying the number of lower federal appeals courts on each side of a legal question, lawyers applying the method would take account of the “market share” of the circuits implicated in the split to more accurately measure the significance of the conflict.

According to one study, around 400 circuit splits arise per year.

Law.com also has 6th Circuit Judge Worries Court AI Disclosure Rules Could Deter Use of the Tech -- "[S]houldn’t the output stand on its own—whether it was drafted by a robot, a first year associate, or an experienced partner?” said Judge John Nalbandian.

Breyer to 1st Cir.

 

Bloomberg Law has Retired Justice Stephen Breyer Plans Return to First Circuit

• Retired US Supreme Court Justice Stephen Breyer plans to return to the US Court of Appeals for the First Circuit in the fall to hear cases while on senior status.
• Breyer served on the First Circuit from 1980 to 1994, before he spent more than 27 years sitting on the US Supreme Court. Since his 2022 retirement, he has taught at Harvard Law School and written a book on the US Constitution, and has made several public appearances at First Circuit events.
• The late Justice Sandra Day O’Connor and Justice David Souter also heard cases following their retirements.

CLA's CAC wants you!

CLA's Committee on Appellate Courts is seeking new members! Applications are due by May 31, and can be submitted via the online portal. To learn more information about the CAC, please see below and visit the CAC webpage.

Established by the State Bar in 1970 and made a State Bar standing committee in 1973, the Committee on Appellate Courts is now a standing committee of CLA’s Litigation Section. Its members are drawn from diverse sources including law firms, solo practitioners, defense, and prosecution offices handling criminal appeals, appellate court research staff, and law school faculty. In furtherance of the administration of justice, the charge of the committee is as follows:

• provide members of the State Bar of California with quality continuing education on appellate practice, including programs that meet the standards for the State Bar’s appellate specialization requirements;
• comment on proposed changes to court rules in state and federal courts that affect appellate practice in California; and
• when possible, initiate or support programs for providing pro bono appellate assistance, mentoring inexperienced appellate attorneys, helping pro se litigants on appeal, and making legal education programming affordable for all attorneys, and other special projects.

CAC is committed to including attorneys from a broad range of subject areas and practice types, including civil and criminal appellate practitioners, large firm attorneys and solo practitioners, government, court, and non-profit attorneys, and academics. In selecting new members, the Committee also seeks diversity in terms of practice area, geographic location, ethnicity, and gender/gender identity.

CLA Appellate Summit only a few weeks away!

The 2024 Litigation and Appellate Summit is just around the corner!

APRIL 25-26, 2024 | LONG BEACH, CA | FULL DETAILS | REGISTER HERE

Don’t delay!  The Litigation Section's Eighth Annual Litigation and Appellate Summit is in less than two weeks!  Come hear from our keynote speaker, Martin Estrada, the United States Attorney for the Central District of California. The program will also include Chief Justice Patricia Guerrero as a featured speaker.

The Summit will have programs on effective and ethical use of artificial intelligence in litigation, legal developments in 2024, a #MeToo litigation lookback, a live broadcast of the Portia Project podcast and much more!

There will also be a networking reception with hosted drinks and hors d’oeuvres immediately following the last program on Thursday.  As part of this reception, the Committee on Appellate Courts will present its 2024 Appellate Lawyer Hall of Fame award to Margaret Grignon in a ceremony beginning at 5:30 p.m. 

Earn up to 13 hours of MCLE credit, including credits for elimination of bias, legal ethics, and the new technology in the practice of law requirement, 8 hours of which qualify for legal specialization in Appellate Law.

New judges, new views?

Law.com has Biden's Judges Have Made the Judiciary More Diverse. How Are They Shaping the Law?\

While it’s likely too early to see Biden’s judges creating major shifts in the law, as his first term comes to an end, court watchers say they see signs his appellate picks may be using their personal experiences in analyzing cases. Unlike previous administrations that have mainly put prosecutors and Big Law attorneys on the bench, Biden has nominated individuals with civil rights advocacy and public defense backgrounds. ...

Biden broke President Barack Obama’s record for appointing the highest number of circuit judges with public defense backgrounds to the bench. And breaking from past administrations, Biden has tapped numerous appellate judges who worked at civil rights organizations such as the American Civil Liberties Union and reproductive rights groups such as Planned Parenthood.

On Law360, Larry Ebner has Requiring Leave to File Amicus Briefs is a Bad Idea

• the U.S. Judicial Conference's Advisory Committee on Appellate Rules will be considering a recommendation to require leave of court for the filing of merits-stage amicus curiae briefs in federal courts of appeals.
• This proposal, offered by the Advisory Committee's Amicus Subcommittee, would amend Federal Rule of Appellate Procedure 29(a) by eliminating the current, widely used practice of filing an amicus brief "if all parties have consented to its filing."

The amicus subcommittee's proposal is exactly the opposite of the U.S. Supreme Court's decision to amend its own rules, which as of Jan.1, 2023, allow the filing of petition-stage and merits-stage amicus briefs without either the parties' consent or the court's permission.




Read more at: https://www.law360.com/energy/articles/1820732?nl_pk=301b3dbb-22fd-4238-a126-3cd81f593d7a&utm_source=newsletter&utm_medium=email&utm_campaign=energy&utm_content=2024-04-05&read_main=1&nlsidx=0&nlaidx=10?copied=1

Read more at: https://www.law360.com/energy/articles/1820732?nl_pk=301b3dbb-22fd-4238-a126-3cd81f593d7a&utm_source=newsletter&utm_medium=email&utm_campaign=energy&utm_content=2024-04-05&read_main=1&nlsidx=0&nlaidx=10?copied=1