Cautionary note re advocacy

This unpub from 4/3 today denies a motion for appellate sanctions, but contains a cautionary note:

we caution appellate counsel not to overstate or misrepresent the record under the cloak of effective advocacy because it, at the very least, violates court rules. (See Cal. Rules of Court, rule 8.204(a)(1)(C).)

Appellate sanctions were denied by 2/2 in an unpub today here. Do there seem to be more sanctions motions these days?

U.S. Courts has issued a press release discussing the plan to replace the aging CM/ECF system in district, appellate, and bankruptcy courts: Judges Outline Accelerated Modernization of Case Management System:

The new system will replace the Case Management/Electronic Case Files system (CM/ECF) that the courts have relied on for nearly three decades to manage heavy caseloads and carry out court operations. It is used by litigants to file cases and related documents, and it provides the public with access to over 1 billion court records.

It is anticipated that the district courts will be the first to start implementing aspects of the new case management system within the next year, followed by appellate and bankruptcy courts. The timeline for completion is two to three years sooner than originally expected.

Tone check!

In this unpub from 1/5 (on page 8, footnote 5), appellant's counsel is chastised for bad tone:

In its reply brief, FanX accuses the trial judge of being “completely uninformed,” “disregard[ing] . . . California law,” and “abdicat[ing] . . . her duties as a judge” in denying the motion to vacate. It is a long-standing rule that an appellate brief “containing matter manifestly disrespectful toward the trial judge is to be deemed contempt of the appellate court.” (First Nat. Bank v. Superior Court (1909) 12 Cal.App. 335, 348.) We advise counsel for FanX to consider his language more carefully in the future when challenging a ruling of the trial court.

Brief with AI errors pending in COA

The Recorder has AI-Generated Citation Errors Prompt Investigation in Boies Schiller Case Against Church of Scientology

In a July response brief in the California Court of Appeal, Second Appellate District, Los Angeles-based partner John Kucera used case citations that appear to have been AI-generated, opposing counsel from Horvitz & Levy and Winston & Strawn called out in a reply brief earlier this month.

Law360 has Boies Schiller Partner Admits AI Errors In Scientology Case

See also here and here and here. ABAJ has Citation errors and hallucinated case turn up in Boies Schiller brief in 'artificial-intelligence debacle'

Follow the docket here.

And if fake citations are bad, what about fake evidence? See in the Recorder: Alameda County Judge Says Plaintiff Used AI-Generated Fake Evidence, Tosses Case -- The sanction "serves the appropriate deterrent effect of showing the public that the Court has zero tolerance with attempting to pass deepfakes as evidence," Superior Court Judge Victoria Kolakowski wrote.

A Judicial Council of California task force is looking at the issue of AI-generated evidence. Additionally, lawmakers sent a bill to Gov. Gavin Newsom this month that would require the Judicial Council by 2027 to develop any "necessary" rules to help judges assess whether evidence has been generated or manipulated by AI and whether it should be admissible.

Law360 has Hagens Berman Not Very Contrite About AI Errors, Judge Says

Caught copying!

Here's an unpub from 4/3 that address plagiarism in fn.4:

To say the least, the unattributed use of another attorney’s material is of concern to this court. It is a serious breach of ethics and a violation of rule 8.4 of the Rules of Professional Conduct, which provides it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation.” (Rules Prof. Conduct, rule 8.4(c), asterisk omitted; see also Lohan v. Perez (E.D.N.Y. 2013) 924 F.Supp.2d 447, 460 [“With respect to defendant’s allegations that the majority of the Opposition was plagiarized, plaintiff and her counsel do not deny these assertions. Indeed, defendant’s submissions to the Court evidence that almost the entire text of the Opposition is taken from unidentified, unattributed sources. [Citation.] Obviously, this type of conduct is unacceptable and, in the Court’s view, is sanctionable pursuant to its inherent powers”].) Because counsel readily took responsibility for the unattributed use of Ms. Gusdorff’s language and apologized for what he described as an inadvertent error, we elect not to impose sanctions. We strongly caution counsel, however, to ensure no further acts of plagiarism infect his briefing in this or any other court.

Inns of Court ethics?

Question: "What are a judicial officer's ethical obligations as they pertain to participation in American Inns of Court?" If you have an answer, CJEO wants to hear it: The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) invites public comment on a draft formal opinion about judges participating in Inns of Court here.

And here's an interesting footnote 1 in an unpub from 2/8:

It appears [Appellant] recorded the hearing on the motion for reconsideration without the permission of the trial court, in violation of California Rules of Court, rule 1.150(d). We have augmented the record on appeal to include this recording. We do not sanction recording of trial court proceedings without advance approval by the court. However, under the extremely specific circumstances presented here, in which (1) the absence of a reporter’s transcript is due to judicial error and not attributable to the appellant, and (2) on appeal both parties rely on appellant’s record of the hearing, we consider the recording of the hearing on equitable grounds and only for the limited purpose of reviewing [Appellant's] claim she was denied a fair hearing on the motion for reconsideration.

Both sides chided

In this unpub from 2/1 today, both sides are called out for incivility: 

In the trial court, as on appeal, both counsel have spent more time attacking one another than setting forth legal argument.  For example, LMF’s appellate brief accuses Guzman and her counsel of “inan[ity]” (italics omitted) and telling “blatant[] untru[ths].”  Guzman’s counsel responded by accusing LMF and its counsel of “outright lying” and “criminality . . . best described as pathological.”  “[C]ounsel would be well advised to refrain from [such] incivility in the future.”  (WasteXperts, Inc. v. Arakelian Enterprises, Inc. (2024) 103 Cal.App.5th 652, 667.)  “Ad hominem attacks and other invective detract from counsel’s legal arguments, signal inappropriate personal embroilment in the dispute, and indicate an inability to engage in the reasoned analysis the courts need and counsel’s clients deserve.”  (Ibid.) 

J.Ikuta to go senior

Bloomberg Law reports Ninth Circuit's Ikuta to Step Back, Give Trump Vacancy

• Ikuta plans to take senior status, a form of semi-retirement afforded to judges that allows for a lighter workload, upon the appointment of her successor, a court representative confirmed.
• The court is now closely divided between 16 Democratic-appointed judges and 13 Republican-appointed judges.
• The new vacancy puts Trump at five US circuit court seats to fill in the judiciary. He made 54 lifetime appointments to the US appeals courts in his first term.

The Recorder has Ninth Circuit Judge Sandra Ikuta to Take Senior Status

Ikuta is the first appellate judge to announce senior status since Trump started his second term on Jan. 20. There are also vacancies on the First, Fourth and Third circuits for Trump to fill, with the White House yet to name any nominees.

Law360 has Judge Ikuta's Sr. Status Plans Give Trump 9th Circ. Opening

The DJ has 9th Circuit's Sandra Ikuta to take senior status, pending Trump's replacement -- Judge Sandra S. Ikuta has been a prominent conservative voice on the appellate court. She has written major rulings later upheld by the U.S. Supreme Court and played a key role in dissenting opinions that led to reversals of the court's liberal-leaning decisions.

On the appellate civility front, see this unpub from 2/4, discussed in the MetNews at Westwood Lawyers Slammed in C.A.Opinion for Second Time for Incivility in Briefing [3/20 update: The DJ has Panel rebukes firm for incivility but says it's right on the merits]

Judge chastised for "racist and sexist tropes"

In this unpub'd decision from 2/8, the trial judge is affirmed, but a concurring opinion lets the judge have it: 

• although the trial judge’s decision does not appear to have been based on or influenced by the attitudes he expressed, his comments cannot pass without censure.  In her brief, appellant characterizes these comments as a “withering diminishment of [her] dignity as a person.”  She could not be more correct. 
• Demeaning any litigant, as the court did here, is categorically unacceptable. 
• The trial judge’s patronizing description of [Appellant] violated both of these canons.  He was neither dignified nor respectful of this litigant, and his comment degraded the integrity of the judicial branch and diminished confidence in the court.
• But beyond being generally demeaning, the trial judge’s fatuous comment traded on racist and sexist tropes. Nothing about [Appellant's] gender or race was remotely relevant to the matters before the court, but the trial court inexplicably interjected them into the hearing.

Show some respect!

4/3 publishes this opinion today that takes a detour from the merits to discuss appellate brief-writing ethics:

But before we more fully discuss the search and seizure issues, there is another issue we need to address in this opinion: the respect attorneys owe to trial court judges when challenging their rulings on appeal.

It is also a long-standing rule that an appellate brief “containing matter manifestly disrespectful toward the trial judge is to be deemed contempt of the appellate court.”

At oral argument, the district attorney’s deputy (not the author of the briefs) was challenged about the propriety of using the word “fabricated” when referring to the trial court’s ruling. The deputy theorized that the “purport” of his colleague’s written argument was that the trial court’s ruling “was inconsistent with or contrary to established precedent.” When pressed further, the deputy went on to say, “I’m certain that we didn’t intend to suggest that the court had bad faith in making its ruling.”

We accept the representation of the district attorney (through his deputy) that he did not intend to suggest that the trial court had acted in bad faith when making its ruling. Indeed, the prosecutor who appeared at the hearing on the motion (and authored the appellate briefs) was gracious and respectful to the trial court judge. However, the written assertions in the district attorney’s briefs that the trial court “fabricated” a legal theory are nonetheless subject to misinterpretation and are unacceptable.

We advise the district attorney in the future to be more cautious and consider his language more carefully when challenging a ruling of a trial court in an appellate brief, or he may be subject to sanctions. Words are to lawyers, as scalpels are to surgeons. They are tools to be used with precision.

Along these same lines, see footnote 22 of this 9th Circuit opinion published last week:

Counsel for [Appellant] is advised to review Federal Rule of Appellate Procedure 28 and our corresponding Circuit Rules, which require parties to present accurate and reliable support for their claims on appeal. Grant v. City of Long Beach, 96 F.4th 1255, 1256 (9th Cir. 2024).

Ransomware shuts down LASC

LASC is shut down today because of a Ransomware attack. News Release here. Today, July 22, 2024, is considered a court holiday for purposes of computing time.

See:

Ransomware Hits Los Angeles Courts Amid Microsoft IT Outage (bloomberglaw.com);

Ransomware Attack Closes All 36 Los Angeles Courthouses | National Law Journal;

L.A. Court Closure Extends Past Weekend, Post-Ransomware Hit (bloomberglaw.com)

Also of note: 9th Circuit’s Unusually Low Reversal Rate This Supreme Court Term Doesn’t Tell Full Story | National Law Journal

The U.S. Court of Appeals for the Ninth Circuit—with its liberal reputation—was reversed in six of 12 cases that the U.S. Supreme Court reviewed this term, or just 50% of the time. For the Ninth Circuit, it’s an unusually low percentage. In recent past years, the largest federal appeals court’s reversal rate has typically fluctuated between 70% and 90%.

Now More Than Ever, Lawyers Must Exhibit Professionalism - Law360

Bloomberg Law has Biden to Propose Supreme Court Reforms, Including Term Limits -- President Joe Biden is planning to unveil proposals that could dramatically reshape the Supreme Court, including term limits on justices who now sit on the court for life

Latest Term Reveals Justice Barrett's 'Meticulous' Approach to Judging | National Law Journal

Kavanaugh Murder-Attempt Suspect Set To Face Trial - Law360

A man charged with attempting to kill U.S. Supreme Court Justice Brett Kavanaugh has failed to reach a plea deal after nearly two years of negotiations, setting his case up for trial in Maryland federal court, federal prosecutors said Friday. According to a status report prosecutors filed Friday, counsel for Nicholas John Roske of Simi Valley, California, had since late 2022 been regularly reporting to the court the status of their investigation into allegations against their client, as well as on the possibility of resolving his case through a plea agreement.

"a note on civility"

 2/4 publishes an opinion here to draw attention to a "note on civility and persuasive briefing writing":

Having resolved the merits of the appeal, we cannot allow the tone of the briefing to pass without comment. Appellant’s briefs use inappropriately harsh terms to launch needless and unsubstantiated attacks on the decisions made by the trial judge, as well as against the opposing party and its lawyers. ... Appellant can certainly challenge the outcome without such unfounded insinuations that the trial judge had become an advocate for the other side.

Appellant targets both respondent and its counsel in the same freewheeling, unprofessional manner. None of these statements were necessary. None of the vitriol advanced the legal arguments in this case. To the contrary, this incivility created an unnecessary distraction to both opposing counsel and this court.

Emotional diatribes do nothing to support the arguments made by counsel. In fact, this verbiage serves the opposite purpose. It requires the court to spend additional resources filtering out the hyperbole, and requires opposing counsel to bill their client for additional time to compose a response.

Ad hominem attacks and other invective detract from counsel’s legal arguments, signal inappropriate personal embroilment in the dispute, and indicate an inability to engage in the reasoned analysis the courts need and counsel’s clients deserve. When counsel resort to name-calling and to unsupported claims of misconduct, they risk obscuring any meritorious arguments they may have. Appellant’s counsel would be well advised to refrain from incivility in the future.

SCOTUS disclosures

Justices Report Old Trips, Beyoncé Tickets And Royalties - Law360

• On Thursday, Supreme Court watchdog Fix the Court released a report detailing nearly 600 gifts valued at more than $4.7 million current and former justices have received. Justice Thomas tops the list by receiving at least 193 gifts worth a total of $4 million, and up to 319 gifts totaling $5.8 million. Justice Thomas has allegedly disclosed only 8% of those gifts, according to the watchdog.
• Justice Sonia Sotomayor has received the second-highest number of gifts out of all sitting justices at 47 items with a total value of $15,863. Justice Brett Kavanaugh is tied with retired Justice David Souter for the least number of gifts with only one. Justice Kavanaugh's gift was valued at $100, according to the watchdog.

Bali, Books, Beyonce: Supreme Court Justices Report Finances (1) (bloomberglaw.com)

Tickets From Beyoncé and Sweet Book Deals: Justices Divulge Income, Gifts | National Law Journal -- In financial disclosures released Friday, members of the U.S. Supreme Court revealed how they supplemented their $285,400 salaries ($298,500 for the chief justice) in 2023.

Free tickets to see Beyoncé in concert? Luxury trips to Bali? A book advance worth triple your salary? Sometimes the life of a U.S. Supreme Court justice doesn’t sound so bad.

Supreme Court’s Strains Intensify as Term’s End Approaches - WSJ

CJ declines ethics meeting

Law.com has Roberts Declines Ethics Meeting With Senate Democrats, Citing Separation of Powers, Proposed Format -- “Separation of powers concerns and the importance of preserving judicial independence counsel against such appearances,” Chief Justice John Roberts Jr. stated in a letter made available by the court Thursday afternoon.

• For the second year in a row, Roberts cited “separation of powers concerns” in refusing a meeting with members of the U.S. Senate Judiciary Committee about the court’s ethics standards.

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

Fed justices/judges must list value of travel-related gifts

Bloomberg Law has Judiciary Adopts New Financial Disclosure Rules for Free Trips

• Justices and judges must now disclose the value of free trips like those taken by Justice Clarence Thomas at the expense of a billionaire benefactor.
• The federal judiciary updated its financial disclosure rules to “require filers to disclose travel-related gifts and their values—rather than reporting such gifts as reimbursements—consistent with the Act’s requirements,” the Administrative Offices of the US Court said in an email March 15.

Law360 has RBG Award Gala Axed After Objections To Musk, Murdoch Nods

Following objections by family members of the late U.S. Supreme Court Justice Ruth Bader Ginsburg, the foundation presenting her namesake leadership award has canceled the ceremony, saying it meant no offense in naming Elon Musk, Rupert Murdoch, Sylvester Stallone, Martha Stewart and Michael Milken as the 2024 honorees.

Yesterday's DJ had Myron Moskovitz's Forfeitures’ on appeal: Part 2 – ensuring fairness to the parties -- The appellate court’s job is to apply the correct law and provide justice for the parties, regardless of the lawyers’ mistakes or arguments. Trial attorneys should consult with appellate counsel to avoid making mistakes or missing important arguments.

• Following Ward v. Taggert, several opinions hold that where the new argument on appeal involves solely a legal issue (such as interpretation of a statute or contract), a new argument is not forfeited by failure to raise it in the trial court.
• case law makes it quite clear that there is no bar to mentioning new authority on appeal. Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1505, fn. 11; Giraldo v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 251.

Dissent from abeyance order

In this published order here, the 9th Circuit grants a joint motion to place an appeal in abeyance pending settlement discussions. No big deal, right? Why publish this? Well, there's a dissent by Judge Vandyke, who points out that "We heard oral argument and are now poised to render our decision." So he doesn't like the timing of the request. Many appellate courts understandably don't like the parties to try to stop the appeal once it's gone so far that the court's got a decision ready. And he doesn't like other things about this too... He writes "the government’s sudden and severe change in position looks a lot like a purely politically motivated attempt to throw the game at the last minute." And "This court is a legal institution, not a political one.  Thus it must insist that parties provide adequate legal justifications for the relief they seek, whatever their underlying political motivations may be."

See Law360's 9th Circ. Judge Slams DOJ 'About-Face' In Asylum Rule Case; Law.com has 9th Circuit Judge Chastises DOJ for ‘Abrupt About-Face’ in Case Challenging Asylum Policy

Also of note: Ethics Committee Advises on Judicial Response to Attorney Misconduct -- Committee issues formal opinion discussing judges’ ethical and statutory obligations when responding to attorney misconduct.

And on the sanctions front, don't miss this pub'd 9th Cir. opinion -- The panel held that this appeal is frivolous.  In view of its frivolous nature, and the multiple misstatements made by counsel at oral argument, by separate order the panel ordered defendants and their counsel to show cause why sanctions should not be imposed under 28 U.S.C. § 1912, 28 U.S.C. § 1927, Fed. R. App. P. 38, and/or the inherent authority of this court. 

On March 11, BHBA presents a webinar titled Oral Advocacy Is Your Last Chance To Win: Learn How To Make the Most of It From People Who Know, with speakers LASC Judges Riff and Kim and retired Justice Dhanidina.

4/1 calls out briefing problems

In this 74-page unpub here today, about over $20M in civil penalties, 4/1 begins the discussion with a section discussing "Defendants' Briefing Violations," and subsections titled "Defendants' Factual Recital Is Slanted and Unduly Argumentative" (meaning that any sufficiency of the evidence challenge is forfeited) and "Factual Assertions Based on Matters Outside Scope of Appellate Review" (meaning that all unsourced factual assertions are disregarded). Appellate practitioners will want to read pages 15 to 21 for more tidbits. And see fn. 4 where the court reiterates that statement of decisions and orders denying new trial are not appealable. Appeal the judgment! Fn.14 also discusses an appellate forfeiture issue.

3d DCA Conflict of Interest Code amendments

The Court of Appeal, Third Appellate District, is considering amendments to its Conflict of Interest Code. Anyone wishing to comment on the proposed amendments may do so in writing no later than February 2, 2024. Comments may be submitted in writing to Colette M. Bruggman, Clerk/Executive Officer, 914 Capitol Mall, Sacramento, CA 95814, or by e-mail to 3dc-comments@jud.ca.gov. See proposed amendments to the Conflict of Interest Code.

Proposed SCOC employee conflict of interest code

The Supreme Court of California invites public comment on a proposed amended Conflict of Interest Code for Designated Employees of the Supreme Court of California for the eventual consideration and approval by the Chief Justice. Comments may be submitted via email to coi.feedback@jud.ca.gov. The deadline to submit comments is January 11, 2024.

SCOTUS ethics program already!

Less than 24 hours after SCOTUS issued its ethic canons, BHBA has a program teed up for November 28 at 12:30 titled SCOTUS Ethics and Code of Conduct: An Examination. Speakers are Caroline Frederickson (Georgetown Law & member of the President's Commission on SCOTUS), Virginia Canter (former Associate Counsel to the President), and Ilya Somin (Scalia Law School).