Miffed at OSC? Don't email COA about it...

Retired Orange County Judge Chastised for Rude, Intemperate Remarks -- An appellate court justice was so convinced a snippy email she received from Judge Derek Hunt was a spoof that she contacted her court's security detail.

In one case cited by the CJP’s most recent discipline order, the presiding justice of the Fourth District Court of Appeal, Kathleen O’Leary, vacated Hunt’s decision and issued an order to show cause. The next day, Hunt sent O’Leary a one-sentence email under the subject line “confidential.”
“I may be stupid, but I know when someone is saving face,” the email stated.
O’Leary thought the email must be a spoof of the judge’s account and notified both the Orange County trial court leadership and the California Highway Patrol security detail, according to the commission’s order. Hunt “expressed remorse” for the email and apologized to O’Leary.

And witness disentitlement dodged here (and here):

We agree that the record shows a dismaying pattern of disobedience of court orders, particularly of orders to appear.  But Sweeney has at least recently complied with orders to appear, and the record provided to us does not show clearly what, if any, discovery obligations Sweeney is currently avoiding.  In the circumstances, we exercise our discretion to decline to apply the drastic remedy of dismissal at the present juncture.  

Last gathering of WEB Fete Society?

The Marble Palace Blog: Chief Justice Burger's Law Clerks Will Gather Again
Warren E. Burger's clerks—dubbed the "WEB Fete Society"—will reunite at the high court in October.

• When Warren E. Burger became the 15th chief justice in 1969, he used his initials—W.E.B.—to launch the “WEB Fete Society” as a way of amassing his forthcoming Supreme Court clerks as well as his earlier clerks at the U.S. Court of Appeals for the D.C. Circuit.
• The WEB Fete Society’s black-tie gathering continued sporadically as Burger continued as chief justice until he retired in 1986 and then after he died in 1995.
• Seventy or so clerks and their spouses may be at the gala at the high court in October, including Luttig; Carter Phillips of Sidley Austin; John Sexton, president emeritus at New York University; and Jim Duff, executive director of the Supreme Court Historical Society.

Speaking of SCOTUS clerks gathering, see this letter here, where over a hundred former Justice Thomas clerks defend his integrity.

Closer to home, see California Chief Justice Leads Constitution Month Celebrations -- For the first time, California's civic education community hosts a monthlong celebration of the U.S. Constitution.

New Redbook 5th edition

 

Garner's The Redbook: A Manual on Legal Style has just issued the 5th edition. 

New Supreme Court Fellows Begin Term -- Four new U.S. Supreme Court Fellows will begin their 2023-2024 fellowships in September -- including a former law clerk for the 9th Circuit's Sidney Thomas.

Party poopers! After considering public comment, the California Supreme Court Committee on Judicial Ethics Opinions (CJEO) has adopted a final opinion on whether a judicial officer may accept an invitation to attend a celebration for a for-profit law firm.

Interested in appealability in the probate context? This unpub may be fun reading. The discussion kicks off with: "Our analysis begins and ends with the question of appealability."

BASF program on Bonds & Stays

 

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BASF's Appellate Section presents Civil Appellate Practice Nuts & Bolts: Appeal Bonds & Stays on Sept. 26. Details here.

OC Appellate Law Program: Bumatay on Dissents

On Thursday (8/31), 12:30 to 1:30, OCBA's Appellate Law Section presents The Value of Dissent: A Conversation with Hon. Patrick Bumatay -- Judge Bumatay will discuss the history of judicial dissents, starting from its roots in the English legal tradition to the modern Supreme Court. Along the way, he will highlight some of our country’s most important dissents. He will then discuss some of the normative values for and against dissenting opinions. Judge Bumatay will conclude with comments on how dissenting opinions can be a powerful vehicle for constitutional dialogue. Register at www.ocbar.org

The 10th Justice?

 

The NLJ has Is the Solicitor General Still 'The Tenth Justice'? -- "That premise is no longer conventional wisdom," said law professor Lincoln Caplan, who has studied the office for decades.

• As the Department of Justice’s top Supreme Court lawyer, the U.S. solicitor general enjoys a degree of respect and deference from the members of the nation’s highest court that few, if any, other members of the bar hold. It is why over the last century the position has often been referred to as “The Tenth Justice.”
• Yet close observers of the office have noted a slow, yet significant shift in the role of the solicitor general since it earned its reputation as a mostly neutral advocate for the development of American law in the mid-20th century.
• Today, they say, the office is far more aggressive in advocating for the administration’s position. Far more than a steward of good jurisprudence, the solicitor general is now considered a key player in the success of a president’s agenda. Although it’s a trend experts say began decades ago, it has only sharpened in recent terms with the increased politicization of the court system, and the rise in the use of the court’s emergency docket.

Opinion formatting

The NLJ has Single or Double Spaced? Why Judicial Opinion Formatting Matters -- Law professor Joe Fore makes the aesthetic and practical case for greater uniformity in circuit court opinion formats.

University of Virginia law professor Joe Fore is in the midst of a new research project: breaking down how each federal appeals court formats judicial opinions, from text size to font.
The topic goes beyond mere aesthetics, he said. Certain formatting can help make complex rulings more accessible and easily digestible for journalists and the broader public—something Fore said is especially needed in the age of social media.

• Font: All of the circuits use Times New Roman, except the Fifth Circuit (Equity), Federal Circuit (Century Schoolbook), First Circuit (Courier New), Second and Seventh Circuits (Palatino Linotype) and Eleventh Circuit (Dante).
• Text Size: Six circuits use 12 point size text (the First, Sixth, Seventh, Ninth, D.C. and Federal), five use 13 point (Second, Third, Fourth, Fifth, and Tenth) and two use 14 point (Eighth and Eleventh).
• Line Spacing: Six circuits use less than 1.5 line spacing, four use about 1.5 spacing and three use double spacing or more than double spacing.
• Margins: Six circuits use 1 inch or less, three use 1.5 inches or 1.75 inches, and four use 2 inches or more.

Appellate consults; appellate ethics

Today's DJ has retired Judge Margaret Morrow and retired Justice Laurie Zelon, at Judicate West, in Zealous Representation is Good, But Get a Second Opinion, urging lawyers to get a "fresh and dispassionate pair of eyes to help evaluate" cases, noting that a "neutral experienced in appellate matters can provide analysis and assistance" in helping to advise clients, in evaluating "the strength and persuasiveness of potential issues" on appeal, and "can help advocates write a more effective brief" and ensure an effective oral argument.

The ABA Journal has Judges' educational trips look more like 'luxury vacations,' Fix the Court says, pointing out:

• Dozens of U.S. federal appeals court judges have attended judicial education seminars that closely resemble “luxury vacations”
• On Monday, court transparency group Fix the Court published a list of 31 appellate judges’ privately funded trips to resorts between August 2020 and August 2023.

Bloomberg Law has Emory Law School Prof. Michael Broyde's article The Supreme Court’s Ethics Problem Has a Pretty Easy Solution, asserting:

US law already has the basic outlines of an ethics code. Federal law states directly that “any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The statute, if applied uniformly and properly, solves nearly all the issues that have recently plagued the high court’s image by making the rules themselves clear.

Chief Justice Names Judicial Council Leadership -- including Justices Corrigan, Hill, and Fujisaki.

Also recently posted: Diving into Water Law: Q&A with California’s “Water Renaissance Man” Justice Ronald Robie

For your appellate-viewing pleasure, on Sept. 22 Showtime/Paramount+ will drop Deadlocked: How America Shaped the Supreme Court, a four-part series telling the story of the Supreme Court from teh 1950s to today.

LACBA appellate report

 

LACBA has issued its 2022-2023 Annual Report, which contains short blurbs on all LACBA activities. On the appellate front, the Appellate Courts Section reports having 248 members and presented 7 online and 1 in-person event. The State Appellate Judicial Evaluation Committee reports that it vetted five candidates for the Court of Appeal. Also of the 29 officers and trustees, 3 in the 2022-23 term were past chairs of the Appellate Courts Section (the SVP, the immediate past-president, and a section trustee).  

Beds says "Say thank you!"

Beds' latest column, Secretarius, reminds us of how essential it is to have good secretarial help, and how crucial and proper it is to: "walk out of your office, go to your assistant’s desk, put on a smile, and say thank you"!

ChatGPT appellate briefs?

Law.com has Appellate Lawyers Say ChatGPT Can Help in Brief Writing—to a Point -- The AI tool can help with style but is not reliable for research, attorneys add.

provided caution is exercised—some appellate specialists say there are still ways to incorporate the tool in the process of legal-brief writing.

Primer on Fed. Appellate Jurisdiction

Your end-of-Summer beach-read has arrived! 140 pages of pure appellate joy:

The Federal Judicial Center has just posted the third edition of A Primer on the Jurisdiction of the U.S. Courts of Appeals by Prof. Thomas Baker.

Law.com has Judiciary Seeks to Clarify Appellate Costs Rule After Supreme Court Ruling

An advisory committee of the Judicial Conference of the United States published the proposed changes to the Federal Rules of Appellate Procedure in a set of draft amendments last week. The committee will accept comments on the proposals until February.

Of concern to appellate lawyers, the draft amendments include tweaks to Rule 39 that seek to codify the Supreme Court’s decision in San Antonio v. Hotels.com, in which the justices unanimously held district courts cannot second-guess a court of appeals’ allocation of costs among the parties.

Frivolous appeal costs $15K

Today's decisions brings this 2/1 unpub awarding $15K in appellate sanctions against a pro per for pursuing a frivolous appeal.

"The Joy of Editing"

Today's DJ has Myron Moskovitz's The Joy of Editing, which concludes:

Careful editing might seem a mere perfectionist’s obsession. But it’s more than that. Appellate Justices spend most of their working lives reading and writing. That is their livelihood, so they take it seriously. Typos and the like stop them in their tracks – breaking their absorption of the substance of your argument. Not good.

And, when a judge sees a stupid typo, she might begin to wonder about how careful you are on the substance of the brief – your factual assertions, your discussion of cases, and your basic arguments. If the brief is sloppy in form, maybe it’s sloppy in substance too. All are in question, just because you skimmed over the last task.

Law360 has Newman, Fed. Circ. Committee Call Mediation 'Unsuccessful'; Bloomberg Law's story is 96-Year-Old Judge Deadlocks With Appeals Panel on Fitness Probe

J.Chin (ret.) interview at CLA Annual Meeting

At the CLA Annual meeting in San Diego on Sept. 21 @ 3:00-4:15: Bob Egelko, a legal affairs reporter with the San Francisco Chronicle, who spent 30 years with the Associated Press, will interview recently retired Associate Justice Ming Chin about his career, his jurisprudence, and his legacy. This program should be of interest to all attorneys and will provide insights into the workings of the California Supreme Court and the significant decisions during Justice Chin’s 24 years on the California Supreme Court. This session includes an introduction from California Supreme Court Chief Justice Patricia Guerrero.

Law360 has Prof. Moliterno's 3 Ways Justices' Disclosure Defenses Miss The Ethical Point

Today's appellate stories

The DJ has State Supreme Court frustrates long battle over looted art -- It is unusual for the state Supreme Court to reject certified questions from the 9th Circuit, which address issues of California law. This is only the second time it has happened since October 2019, according to David S. Ettinger, of counsel at Horvitz & Levy LLP.

Today's DJ also has Former deputy solicitor general returns to Munger, Tolles & Olson and The Recorder has Munger Tolles Hires Former California Deputy Solicitor General, about Aimee Feinberg. Bloomberg Law's article is Munger Tolles & Olson Recruits Feinberg as San Francisco Counsel.

Bloomberg Law also has Embattled 96-Year-Old Judge Defended as ‘Brilliant’ by Colleague -- Fifth Circuit Judge Edith H. Jones criticized a probe into the mental fitness of 96-year-old Federal Circuit Judge Pauline Newman, calling the process involved “inexplicable.”

The MetNews has Two Courts of Appeal Repudiate Their Earlier Decisions.

SCOCA announced appointments today for the State Bar Board of Trustees and the State Bar Committee of Bar Examiners. Of appellate note, Justice Mesiwala (3d DCA) was appointed to the Committee of Bar Examiners. 

CLA offers: Webinar: Preserving Issues for Appeal: Tips for Trial Counsel in State Civil Cases, October 19, 2023, 12:00 p.m. | REGISTER HERE Special low price! 1 Hour MCLE; 1 Legal Specialization in Appellate Law -- This program will address how to preserve issues for appeal in state civil cases. Two appellate attorneys will discuss how to preserve the record at various stages of litigation to protect your client’s appellate rights, and they will address common mistakes that lead to forfeiture of issues on appeal. The goal of the program is to provide a better understanding of the importance of protecting the record in the trial court and how to do so. This program is great for civil trial and appellate attorneys.

CLA Meet the New Justices webinar

CLA Litigation Section Committee on Appellate Courts presents another Meet the New Justices webinar on October 4 at noon, features Justices Baltodano (2/6), Motoike (4/3), and Weingart (2/1). 

Richard Benes: 2023 ALHOF!

CLA's Litigation Section has announced the 2023 inductee to the Appellate Lawyer Hall of Fame:

Appellate Lawyer Hall of Fame -- The Appellate Lawyer Hall of Fame Award is bestowed upon attorneys who have excelled as appellate lawyers and who careers exemplify the highest of values and professional attainment. The Litigation Section is proud to announce the recipient of the 2023 Appellate Lawyer Hall of Fame Award — Richard Benes! Click here for more information on Mr. Benes. The Awards will be presented on Friday, September 22, 2023, at the Hilton San Diego Bayfront in the Cobalt Meeting Room 501B.

Richard Benes graduated from Yale University (B.A. 1969) and the University of Southern California (J.D. 1976), where he was Executive Editor of the law review. His 47-year career practicing appellate law in San Diego was launched by service as an extern law clerk for California Supreme Court Justice Stanley Mosk and as a research and writs attorney for the Court of Appeal for the Fourth Appellate District, Division One. After becoming a partner at Procopio, Cory, Hargreaves & Savitch, Mr. Benes formed and practiced in his own small firm, Benes & Fiorello, A P.C., and then for many years as a sole practitioner. He was among the first attorneys certified as appellate specialists in 1996 and retired from practice in 2023.

And see the August 2023 issue of CLA Lit. Section's Litigation Update

1st DCA pro tem update

 

The following are currently sitting on assignment in the First District:

• Judge Christopher Bowen of the Contra Costa Superior Court will be sitting pro tempore in Division One until September 15, 2023.
• Judge Michael Markman of the Alameda Superior Court will be sitting pro tempore in Division Two until October 15, 2023.
• Judge Joni Hiramoto of the Contra Costa Superior Court will be sitting pro tempore in Division Four until October 6, 2023.

RBG's Pegasus jabot & proposed FRAP amendments

The Marble Palace Blog: How the Late RBG's Collar Tells a Powerful Message -- Justice Ruth Bader Ginsburg’s metallic Pegasus collar has become an iconic portrayal of her strength and power in her final days.

On Sept. 21, the Potomack Co. in Virginia will be auctioning two historic items: a lace that belonged to first lady Martha and President George Washington and a judicial collar worn by the late Justice Ruth Bader Ginsburg before she died in 2020.

Also: You have until February 16, 2024 to comment on proposed changes to FRAP 6 (bankruptcy appeals) and 39 (costs on appeal).