Fed Judicial Workplace Report

Judiciary Releases First Annual Report on the Workplace -- All federal courts have put in place an effective dispute resolution plan giving employees multiple pathways to report and address workplace concerns, and an increasing number of them are opting to use the new processes, according to the first Annual Report on the Judiciary Workplace released today.

• The report details the extensive steps taken since 2018 to ensure Judiciary employees are protected from conduct that is discriminatory, harassing, retaliatory, or abusive and that they have access to effective measures to seek redress for their concerns when issues arise.There are now trained professionals at the national, circuit, and local court levels who can provide confidential advice to employees about their options when they have workplace concerns. In addition to the national Office of Judicial Integrity, each circuit now has a Director of Workplace Relations. DWRs are experienced working in the federal or state courts and a number of them have backgrounds in employment law.
• The annual report is the first of its kind published by the AO’s Office of Judicial Integrity. It was done in response to a recommendation from the Judiciary Workplace Conduct Working Group, an internal group made up of judges and Judiciary executives created at the direction of Chief Justice John G. Roberts, Jr., in 2018.

In more local Bar news, see here about a 17-year-old who passed the California Bar Exam and see also California Bar aims to expunge attorney discipline records after 8 years

Judge Koh 9th Cir. Program

The FBA N.D.Cal Chapter presents (on Dec. 16, 3-4 p.m. at the 9th Circuit James Browning Courthouse in SF): Insights Into Practice In District Court And The Ninth Circuit: A Conversation with Judge Lucy Koh

Appellate tidbits

Bloomberg Law has this article about a new 11th Circuit Judge: Embry Kidd to Join Thin Ranks of Black Male Circuit Judges

The US Senate confirmed only the second Black man to a federal appeals court in the past decade, despite President Joe Biden’s emphasis on expanding the diversity of the federal judiciary. The Democratic-led chamber voted 49-45 to send Embry Kidd to the US Court of Appeals for the Eleventh Circuit. ...

Biden has now appointed 45 appellate judges, including 13 Black women, Kidd becomes only the second Black man confirmed for such a role under the president, according to Federal Judicial Center data. The other was Andre Mathis, who was confirmed to the Sixth Circuit in 2022. ... Prior to Mathis’ appointment, the last Black male appellate appointee was DC Circuit Judge Robert Wilkins. He’s an Obama nominee who was confirmed in 2014.

Here in California, see Ethics Committee Advises Judges on Responding to Public Criticism -- Committee issues formal opinion discussing ethical guidelines for judges who want to make a public comment on a pending proceeding during a judicial election or recall campaign.

And here's an upub from 2/8 that addresses the party presentation doctrine. But see this unpub from the 6th District, at footnote 6... And here's a published opinion on appealability--or, really, the non-appealability of an order granting nonsuit and dismissing a cross-complaint without prejudice. 

There's a short video here: 2024 Distinguished Service Award Honoree -- Justice William Bedsworth -- During his career on the bench, Justice Bedsworth’s legal opinions have spanned many topics, but he is recognized by lawyers for his writings on civility within the profession. Justice Bedsworth served on California's Civility Task Force, and was an outspoken voice committed to improving civility between opposing counsel and between lawyers and the bench. Equally acclaimed for his writings off the bench, through his syndicated monthly column—A Criminal Waste of Space—Justice Bedsworth has educated and entertained lawyers and non-lawyers alike.

1st DCA pro tem update

This current judicial officer is assigned to the First District:

• Judge Elizabeth M. Hill of San Mateo County Superior Court will be sitting pro tempore in Division One until December 31, 2024.

The Recorder has Santa Clara County Superior Court Authorizes Electronic Recording of Proceedings -- Officials with the state's sixth-largest trial court say they don't have enough certified shorthand reporters to staff courtrooms.

On this topic, listen to Why the Lack of an Record Is a Constitutional Problem, with Erin Smith (Part 2)

LASC AD goes to e-filing

MANDATORY ELECTRONIC FILING FOR REPRESENTED PARTIES IN LASC APPELLATE DIVISION CASES EFFECTIVE DEC. 16   Virtual Information Session for Attorneys, Legal Professionals and the Public to be Held Nov. 20    Effective Monday, Dec. 16, 2024, the Appellate Division of the Los Angeles Superior Court will implement mandatory electronic filing (efiling) in Appellate Division cases. Pursuant to General Order 2024 GEN-014-00, efiling of Appellate Division documents will be mandatory for all attorneys in Appellate Division cases, including criminal misdemeanor appeals, limited civil appeals and infraction appeals. Self-represented litigants will also have the option to efile in these areas but will not be mandated to do so.   Efiling provides efficiency and enhances the Court’s ability to maintain complete and easily accessible electronic records. Additional information about the Court’s Electronic Filing Service Providers (EFSP) may be found here.   Webinar Details: Informational Session on Nov. 20   The Court will offer a virtual informational session on Wednesday, Nov. 20 for attorneys, legal professionals and the public. Detailed information and an opportunity to submit questions during the webinar will be available.   WHAT: Webinar to Provide Attorneys, Legal Professionals and the Public Information on Efiling for Appellate Division cases.   HOSTED BY: Anaruth Gonzalez, Director of Courtroom Support, Superior Court of Los Angeles County.   WHEN: 2:30 p.m. to 3:30 p.m. on Wednesday, Nov. 20.   HOW TO JOIN: Click here to join via Microsoft Teams.   A recording of the information session and a Frequently Asked Questions document will be posted on the Court’s website after the meeting. General information about registering with an EFSP, exempt documents, common rejection reasons and more will be provided.

9th Cir. conference recap

Did you miss the 2024 9th Circuit Judicial Conference in Sacramento last summer? The court has now posted a recap here: Ninth Circuit Judicial Conference Brings Legal Luminaries and Topical, Robust Discussions to Sacramento

Binding Dicta Rule

 

The Recorder has Judges Question 9th Circuit’s Unique Binding Dicta Rule. The Criticism Isn't New. -- The rule allows panels to treat “well-reasoned” dicta as precedential.

• Charles Tyler, a George Washington University law professor and former Ninth Circuit clerk, delved into the history of the rule in a University of Chicago Law Review article from 2020. You can find the paper here.

Bloomberg Law has US Supreme Court Bucks Recent Trend, Announces Opinion Release -- The US Supreme Court will issue its first opinion of the term in an argued case on Nov. 22, earlier than in recent terms when the first opinion days were in December and even January.

Law.com has 5th Circuit Judge Jones Slams Proposal for Greater Amicus Brief Funding Disclosure

Federal appeals court Judge Edith Jones on Thursday slammed a proposed rule for greater amicus brief funding disclosure. The rule would require amicus filers to more broadly disclose financial ties to parties and non-parties. Its goal is to address concerns that parties or non-parties can secretly fund multiple amicus filings to manufacture the appearance of wide support for a certain position. But Jones, of the U.S. Court of Appeals for the Fifth Circuit, said the proposal threatens the First Amendment rights of friend-of-the-court filers and is an example of the judiciary “compromis[ing] and conced[ing]” to arguments that the Third Branch is illegitimate.

Supreme Anecdotes

Last month another new SCOTUS-related book was released: Supreme Anecdotes: Tales from the Supreme Court

Discover the hidden personalities behind the Supreme Court's most pivotal decisions in this captivating new book. ... Venture into the lives of justices who, despite their influential roles, faced personal battles and societal challenges. Learn about the financial woes of Justice James Wilson, the haunting ailment of John Blair, and the dependence on painkillers that nearly tarnished William Rehnquist's legacy. Discover the humorous yet humble encounters of justices mistaken for tourists or elevator operators, underscoring their relative anonymity despite their significant impact.

Legal Writing for Digital Readers

SCRIBES presents a free Zoom MCLE webinar titled Legal Writing for the Digital Reader about "strategies for creating clear and compelling content tailored for digital readers" (Dec. 13 at 9-10 a.m.). Register here.

RIP Ted Olson

Ted Olson, Former Solicitor General Who Argued Bush v. Gore, Dies -- Despite being known as a conservative lawyer, Olson notably teamed up with his opposing counsel in the Bush case, David Boies, to challenge a California amendment against same-sex marriage.

Theodore "Ted" Olson, who served as U.S. solicitor general under President George W. Bush, died on Wednesday, according to his longtime firm, Gibson Dunn & Crutcher. He was 84.

Law360 has BREAKING: Gibson Dunn 'Titan,' Ex-Solicitor General Theodore Olson Dies

Olson was solicitor general from 2001 to 2004. From 1981 to 1984, he was assistant attorney general in charge of the Office of Legal Counsel in the U.S. Department of Justice. Other than those two time periods, he was a lawyer with Gibson Dunn in Los Angeles and Washington, D.C., since 1965 ....
He argued 65 cases in the Supreme Court, including the winning sides in the two Bush v. Gore cases arising out of the 2000 presidential election and the landmark campaign finance case Citizens United v. Federal Election Commission. He also successfully argued Hollingsworth v. Perry, the case upholding the overturning of California's Proposition 8 banning same-sex marriages, and U.S. Department of Homeland Security v. Regents of the University of California, which successfully challenged the Trump administration's rescission of the Deferred Action for Childhood Arrivals program, the firm said.

The Recorder has Will the 9th Circuit Still be Center Stage in Trump Policy Challenges? -- Lawyers challenging Trump’s second-term policies might eye the First Circuit, in addition to the Ninth

3d DCA pro tem update

The 3d District has updated its pro tem assignments:

• Associate Justice Rebecca A. Wiseman, retired, will be sitting in pro tempore beginning July 15, 2023, through January 9, 2025.

Happy Veterans Day

Happy Veterans Day! The DJ has a special insert well worth reading. And here's a photo circulated by ADR Services of retired Justice Ming Chin (U.S. Army Captain, 1967-1969):

In other news, Pass Rate on California's July 2024 Bar Exam Ticks Up to 53.8% -- The July 2024 test was the last to use the Multistate Bar Exam multiple choice section as California's bar transitions to a new exam next year that will include questions provided by Kaplan.

The Recorder also has Chief Justice Patricia Guerrero Says Recent Drop in Straight Grants Isn't Permanent -- Guerrero, approaching her second year as chief justice, also told conference attendees in San Francisco that she's continuing to push for electronic recording in courtrooms.

"Best" 2025 rankings

"Best Law Firms ranked by Best Lawyers" has released its 2025 rankings, including Best Law Firms in California for Appellate Practice

Federal court vacancy articles

The NLJ has Where May Vacancies for Trump Arise? These GOP-Appointed Circuit Judges Qualify for Senior Status -- Recent research supports the idea that ideology plays a role in judges' "strategically retiring," meaning leaving the bench when the party of the president who appointed them controls the White House.

• Federal judges qualify for senior status "if they are at least 65 years old and have served at least 15 years on the bench, or any combination of age and years of service thereafter that equals 80"
• "Regardless of age, judges must serve at least 10 years to qualify for senior status," a form of semiretirement that creates a vacancy on the court
• There are 25 active Republican-appointed [appellate] judges and 13 active Democratic-appointed judges eligible to take senior status based on their age and years of service who have not done so
• Trump could significantly shift the makeup of the liberal Ninth Circuit if he gets an opportunity to replace just one Democratic-appointed judge on the court.
• There are three [Democrat-appointed] Ninth Circuit judges who currently meet the requirements to take senior status: Ronald Gould, Johnnie Rawlinson and Kim Wardlaw.
• And three 9th Cir. GOP-appointed judges eligible to take senior status now are: Judge Consuelo Callahan, appointed by George W. Bush, eligible since 2017; Judge Sandra Ikuta, appointed by George W. Bush, eligible since May 2020; Judge Milan Smith, appointed by George W. Bush, eligible since 2016.

Law360 has GOP Will Get A Crack At The Judiciary, But First, Lame Duck

• There are currently 28 nominees pending, including 17 picked to fill 47 vacant judicial seats and 11 others selected to replace judges who've given their notice that they're taking partial or full retirement.
• Biden has secured confirmation of 44 circuit court nominees, 166 district court picks and one U.S. Supreme Court justice. Trump during his first term managed to win confirmation for 54 circuit and 174 district judges and three Supreme Court justices.

Bloomberg Law has New Fifth Circuit Judges Possible for Trump, Big Cases to Shift

• The US Court of Appeals for the Fifth Circuit may be cemented as an ultra-conservative powerhouse during President-elect Donald Trump’s second term, even as it’s unlikely to hear the kinds of high-profile policy challenges that it did during the Biden administration. Six of the court’s 17 active judges are eligible to step back from the bench, and four of them were nominated by Republican presidents.

The NLJ has 'Rapidly Closing Window': Progressive Groups Urge Senate Votes on Biden's Judicial Nominees

9th Cir. CLE programs

Ninth Circuit to present two free CLE programs this month, each co-sponsored by the local Federal Bar Association. The first will take place at the James R. Browning Courthouse in San Francisco on November 14, 2024 at 3:00 PM, and the second will be held at the William K. Nakamura Courthouse in Seattle on November 21, 2024 at 2:30 PM. Both programs will be followed by a reception. Click here for more information about the San Francisco program and the Seattle program.

Judges speaking at the SF program are Sanchez, S. Thomas, Fletcher, and Miller. Reception with the Judges 4 to 5:30.

AAAL Fall 2024 meeting

The Fall Meeting of the American Academy of Appellate Lawyers was in Boston last month (Oct. 24-26).

Retired SCOTUS Justice Breyer was presented with the Kathleen McCree Lewis Award for his contributions to and impact on the delivery of appellate justice.

Programming included many panel discussions featuring appellate judges from around the country.

First Circuit Judge William Kayatta discussed his approach to working on appeals, which mirrors the process of many appellate judges countrywide: First, he reads the judgment/order being appealed; second, he reads the table of contents for the opening brief--less than half of which are any good or useful; next, he reads the summary of argument/intro; only after that will he dig in to the briefs and record. So the take-away tip (which is well known to most) is that the table of contents really matters and needs to be used well as an advocacy tool. 

Trump's SCOTUS Shortlist & more

Law360 has An Early Look At Trump's Supreme Court Shortlist

• The first three candidates all sit on the Fifth Circuit: U.S. Circuit Judges Stuart Kyle Duncan, Andrew S. Oldham and James C. Ho.
• Next on the list is Sixth Circuit Judge Amul Thapar, who was appointed to the court by Trump in 2017 and has quickly become one of the leading so-called feeder judges whose clerks appear more likely to later clerk at the Supreme Court.
• Another top feeder judge, D.C. Circuit Judge Gregory G. Katsas was appointed to the appellate court by Trump in 2017.
• Ninth Circuit Judge Lawrence VanDyke, who was appointed to the court by Trump in 2020, could also be on the president's shortlist if a Supreme Court vacancy arises. He is the former solicitor general for Nevada and Montana and has practiced law privately at Gibson Dunn. He also clerked for D.C. Circuit Judge Janice Rogers Brown, and earned his law degree from Harvard Law School.

Bloomberg Law has Liberals Face More Conservative Courts to Fight Trump Policies -- Circuit courts have become more conservative since 2017

• Half of the 12 geographic circuit courts have a majority of judges appointed by Republican presidents, up from a third eight years ago. And some of the most historically liberal benches, including the San Francisco-based US Court of Appeals for the Ninth Circuit, are trending rightward with only a narrow liberal majority.
• Before Trump took office, there were 81 appellate judges appointed by Democratic presidents and 68 by Republicans, plus some vacancies. There now are 86 active circuit judges appointed by Republicans compared to 79 by Democrats
• Trump tipped the ideological balance of the Philadelphia-based Third Circuit, the Atlanta-based Eleventh Circuit, and the New York-based Second Circuit. Biden managed to flip the majority back at the Second, but didn’t flip ideological control of any other circuits.
• Trump also left his mark on traditionally liberal circuits. He secured 10 nominees on the Ninth Circuit and five on the New York-based Second Circuit. ... Thirteen of the Ninth Circuit’s 29 judges and six of the Second Circuit’s 13 members were appointed by Republicans.
• Trump flipped 17 circuit seats, including three on the Ninth. ... Biden flipped nine seats, and none were on the Ninth Circuit.

Bloomberg Law also has Second Trump Term Opens Door to Even More Conservative Judges

• The incoming president will rely less heavily on establishment Federalist Society conservatives as he seeks judges who will rule in his favor. He appointed 234 judges in his first term [including 3 SCOTUS justices]
The Democratic-led Senate has confirmed 213 of Joe Biden’s appointees.
• There are 25 circuit judges eligible for retirement next year.

Law360 has GOP's Senate Win Hands Future Of The Judiciary To Trump

• As of Tuesday, 47 federal judicial seats are vacant, and 20 more are occupied by judges who have announced plans to assume senior status.

Phishing Warning!

This morning, many district courts, including the Southern District of California, are receiving reports of spoofed, phishing CM/ECF notices appearing to be system generated and asking the recipient to respond. If you receive a questionable CM/ECF notice, please do not click on links or open attachments. Instead, check the notice against the docket in PACER.

There has been nationwide reporting of fake Notices of Electronic Filing (NEFs) being sent to attorneys and law firms across the country. These fake NEFs are phishing attempts to convince recipients to respond back to the emails. Once a recipient replies to the email they are sent a follow-on email containing a link to access a document that leads the user to a malicious website. Please be sure to always validate cases and case documentation through CM/ECF only, and to never download any attachments or click any links from unofficial or questionable sources.

U.S. Courts News has Electronic Filing Scam Targets Attorneys -- Attorneys across the country are being targeted with fake electronic filing notifications, in which emails purporting to come from the federal Judiciary’s Case Management/Electronic Case Files (CM/ECF) system lead recipients to a malicious website with computer viruses.

[The Recorder has Scammers Target Lawyers Across Country With Fake Court Notices]

In similar news, Law360 has Wash. Courts' Website Goes Dark After 'Unauthorized Activity'

• The Washington state courts' website was down for a second day Tuesday following an outage officials attributed to "unauthorized activity," though few details were available.
• The Washington State Bar Association published a statement on its website saying the state Court of Appeals' e-filing portal "is currently experiencing system unavailability, and unfortunately, we do not have an estimated time for restoration."

Appellate articles of note

Law360 has its latest installment of Wheeling & Appealing: The Latest Must-Know Appellate Action

Today's DJ has the monthly column Exceptionally Appealing, titled More, More, More (Appellate Reading Material). That column notes Justice Gorsuch's latest work, which is also the topic of this recent National Review article: The Campaign against Justice Gorsuch’s New Book Is an Embarrassment.

Expand Your Appellate Practice webinar

Expand Your Practice to Include Paid Appointed Appeals!

On November 13 at noon, 2d District APJ Lui and 3d District Justice Mesiwala and experienced appellate practitioners will present a Zoom webinar (sponsored by CAP-LA and CCAP) discussing the need for paid appointed counsel. Register here.

Recent DJ articles on this topic are here:

• Appointed-counsel are critical to access justice in the Courts of Appeal
• https://www.dailyjournal.com/articles/379007-crisis-looms-as-california-appellate-defense-counsel-faces-shortage-of-attorneys