Tuesday, January 22, 2019

Sanctions dodged by apology

Image result for neverending story"This is the fifth appeal in this seemingly unending dispute ...." so begins the case here. in which 4/3 issued a sua sponte OSC re sanctions. The fact sections starts out: "Where to begin this never ending story?"
As for sanctions, "the record in this case, designated by [Appellant], was voluminous – over 15,000 pages of clerk’s transcript, plus another 1,400 pages of reporter’s transcript, which comprised over 60 volumes total." Much of this was "obviously unnecessary." Appellant and her counsel, however, admitted their "grievous error" and apologized to the Court of Appeal and to respondent. The court thus exercised its discretion not to impose sanctions. But Appellant and her counsel were warned that the court would not be "so benevolent" about future rules violations.

For an example of how Jameson v. Desta (2018) 5 Cal.5th 594, is playing out, see here:
"Because there is no way to now provide a reporter for a trial that has already occurred, we have no choice but to reverse and remand for a new trial at which an official court reporter will be furnished."

Speeding up appeals

Image result for faster fasterToday's Moskovitz on Appeal column is Resolving Appeals Faster:Is there anything you can do to get your case on appeal decided faster? Is there anything the appellate courts can do to improve the situation?

  • According to the most recent Judicial Council report, the statewide median time for civil appeals was 506 days -- from the filing of the notice of appeal to final disposition. Ten percent took more than 842 days -- well over two years.
  • The 9th U.S. Circuit Court of Appeals is slightly faster, but still averages more than a year between notice of appeal and disposition. The court's most recent statistics show a median appeal time of 12.2 months -- roughly four months longer than the national average among federal courts of appeal[s].
  • In the California courts, there are significant differences between districts and divisions. On average, it currently takes almost a year longer for a civil appeal to be decided in what has been the slowest court (the 6th District, which had several vacancies) than the fastest (the 2nd District, Division 5).
  • Thus, it appears that the fault rarely lies with counsel. The main causes for delay arise within the appellate courts. Why? Probably large caseloads and judicial vacancies, not lack of productivity.
  • The average appellate justice writes roughly 100 majority opinions per year, statewide. But there were more than 5,000 fully briefed appeals (of all types, civil and criminal) pending at the time of the last Judicial Council report. Part of the problem is that the Court of Appeal has been short-handed. In the first few months of 2018, there were as many as 12 appellate vacancies state-wide (out of 105 slots).

What to do? Well, "If you are entitled to an automatic preference, you should make that clear at the outset." E.g., the law accords preference to several types of appeals: "criminal appeals, probate matters, many juvenile and parental custody proceedings, proceedings to recover possession of real property, and several other specific categories."
Today's Recorder has Judiciary Leaders Mum on Latest Sexual Misconduct Claims
The United States Court of Appeals for the Ninth Circuit will hold a special sitting January 30, 2019, at the University of San Diego, in San Diego, California. Oral arguments will begin at 11 a.m. in the Kroc Institute for Peace and Justice Center Theater at 5998 Alcala Park. (Judges McKeown, Christen and Watford.)
LACBA's Senior Lawyers Section presents a dinner mcle program on Jan. 31: The History of the Zoot Suit Riots:  War, Prejudice, Criminal Prosecutions, Civil Disturbances and their Effects in the 1940s and Thereafter, featuring PJ Gilbert, Commissioner Blancarte, Evelina Fernandez (award-winning actress and writer who appears in the 1978 Zoot Suit play), and Sal Lopez (a veteran actor who also appeared in the original 1978 Zoot Suit).
The 2d DCA will be holding an ACE program this Thursday with a class of students from outside LAUSD. (Another school scheduled to attend had to cancel because of the strike.)

Thursday, January 17, 2019

Evid. Code 1129 affects appellate mediation

Image result for new lawIf you're an appellate lawyer, you probably engage in some form of appellate mediation, perhaps through one of the court of appeal programs or the 9th Circuit's mediation office. Thus, you should know that at the start of this year a new section of the California Evidence Code, section 1129, requires that you provide a written disclosure to your clients explaining mediation confidentiality restrictions and also obtain the client's written acknowledgement that the client understands the disclosure before participating in a mediation. The statute has very specific requirements for the disclosure (e.g., it must be printed the client's preferred language, be in at least 12-point font, be printed on a single page, not be attached to any other document, include the names of the attorney and client, be signed and dated by the client and attorney). The statute provides verbatim language that suffices, so take a look. And take care of this now, rather than waiting until it might become a problem!

CLA Litigation Update For January 2019

Litigation Update For January 2019

The January 2019 issue of Litigation Update is now online,
keeping you up-to-date on current case law!

Wednesday, January 16, 2019

Big brief, big record, no merit

There's little to be gained by highlighting the appellate failures of pro pers and vexatious litigants -- a sad and daily occurrence. But now and again, there's a "spectacular" failure worth a peek. This 4/3 unpub here today does a good job of pointing out the problems and nicely explaining why the pro per must lose.
Image result for spectacular fail
Spectacular fail!

  •  In an 82-page brief and a record of 2,768 pages, [Appellant], in propria persona, offers seven separate reasons why the order should be reversed, none of which have any legal merit whatsoever.
  • "II. Discussion A. Fundamentals of Appellate Procedure" [A nice heading, followed by clear explanations.]
  • It is also the appellant’s duty to comply with the California Rules of Court, a duty [Appellant] has failed in rather spectacularly. She grossly overdesignated the record, which is sanctionable conduct. [Etc., etc.]
[1/17/19 update: Along these same lines, here's a new one, using the pro per's empty TOA against her: "Here, [Appellant]’s table of authorities is blank—except for the word, “None”—as
she fails to cite to any legal authority in the appellant’s opening brief."]

1st DCA full line-up

The First District has updated its Justices page to reflect all its new justices, so here's the current line-up:

Division One

Division Two

Division Three

Peter J. Siggins, Presiding Justice
Martin J. Jenkins, Associate Justice**
Carin T. Fujisaki, Associate Justice
Ioana Petrou, Associate Justice

Division Four

Stuart A. Pollack, Presiding Justice
Jon B. Streeter, Associate Justice
Alison M. Tucher, Associate Justice
Tracie L. Brown, Associate Justice

Division Five

**Justice Jenkins will be leaving to become the Governor's Judicial Appointments Secretary.

New chambers = new job openings!

Satisfying law job now available

I need help deciding appeals and crafting appellate opinions. The goals are to achieve the ideal of equal justice under law and to inspire the public with the excellence of its state appellate justice system. The work is fulfilling, important, and fascinating: we encounter human conflicts from the mundane to the profound, in practically every legal setting. We will work together, directly, and with a small, supportive, friendly, and talented team in chambers.
There is one opening now, which I hope to fill straight away, and another in the fall of 2019. You must have excellent academic and professional credentials and must have passed the California bar exam. You have got to love writing and research and to enjoy puzzling through the law to figure it out. I am open to lawyers who would like to clerk for a set term as well as to those considering a judicial research attorney career. It is fine if you are entertaining both possibilities and have not decided. The more professional experience you have, the better.
The official application website is https://www.courts.ca.gov/careers.htm?rdeLocaleAttr=en
Please search on “wiley” and please also send a duplicate cover letter, resume, references, and writing sample to Div8.J4@gmail.com.
John Shepard Wiley Jr.
California Court of Appeal
Second District, Division Eight

Are opinions too long?

Earlier this month an attorney wrote an "open letter" to California's appellate justices charging them with writing opinions that are too long and too dull. The glove thrown, today's DJ features champion Justice Brian Hoffstadt's personal response in Judicial Opinions Must 'Show Their Math.' He agrees that appellate decisions are often too long. Further,
Image result for colonel mustardI also think published opinions, particularly on the Court of Appeal, should expressly or implicitly justify why they are being published. And they should do so by setting forth their question presented and its answer in the first paragraph, so the reader can know whether the opinion deals with the issue he or she is trying to address. Opinions aren't whodunits, and the reader should learn right up front that it was Colonel Mustard in the Library with the candlestick.
As for writing with flair, how's this:
But I am just one of the 100 or so appellate judges in this state, and we each have our own philosophies about what makes a good judicial opinion. What is more, the role of Court of Appeal decisions in filling in holes in the tapestry of the law is different than the role of Supreme Court decisions in sometimes weaving an altogether new pattern into that tapestry.
Moreover, he points out that there are "constraints that apply to all appellate courts, and those constraints seem to indicate that judicial opinions can be too short"--i.e., the California Constitution requires decisions "with reasons stated" and "it is important that judicial opinions "show their math" and justify their outcome, albeit concisely."

On the style front, he points out that the subject matter the justices have to work with can be inherently dry, and "Not all of us can be Justice Arthur Gilbert or Justice William Bedsworth, each of whom have an indelible way with words."

He concludes: "In the end, I think my open reply may have proven Mr. McBride's point. His open letter was just over 300 words, and this reply nearly 1,300. Maybe we appellate judges like our words just a little too much. Or maybe, like many issues in the law, the rejoinder is harder to state than the issue."
Also in today's DJ: Jimmy Azadian and Kathryn Han present their 9th Circuit in review: The Top civil cases of 2018.

Today's Recorder features retired Justice William Stein and Myron Moskovitz in Protecting the Record for Appeal: Part I. They point out that even the best appellate lawyers can't win "an appeal with a lousy trial court record." Hence some basic tips to remember before heading to court: Order a court reporter; Object to your opponent's evidence; Resist objections to your evidence.

CAP Captain retires after 30 years!

Jon Steiner, the Executive Director of CAP/LA was feted yesterday at the 2d District Court of Appeal to honor his retirement after 30 years of amazing service. APJ Lui, retired justice Chuck Vogel, and Managing Attorney Tom Kallay presented moving remarks and cake and cider were enjoyed by all!
If you're not familiar with CAP, here's some important information:

The Los Angeles office of the California Appellate Project (CAP/LA) is one of six appellate projects in the state. It has, for 32 years, managed, supervised, and provided constitutionally-mandated quality control oversight for the court-appointed counsel system in the Second Appellate District. The appellate court-appointed counsel system affords representation to indigent clients in criminal, child welfare (“dependency”), juvenile justice (“delinquency”), and other cases (including mental health) in which the client qualifies for a court-appointed attorney. CAP/LA is not a state agency. It is an independent non-profit 501(c)(3) public interest law firm with a board of directors. The work is specified in a contract with the Judicial Branch, which is entirely responsible for CAP/LA’s funding.

CAPLA has been an indispensable member of the 2nd District Court of Appeal family for over 32 years, partly because of the vision of Justice Arleigh Woods, and the perseverance and efforts of Tom Kallay, the creator and the original executive director of the CAPLA office. Then, 30 years ago, Jon Steiner, took the helm, and developed the office to its full potential.

With its 21 in-house staff attorneys providing peer review and quality control for about 3000 new cases every year, the office now oversees about 5000 open cases at any point in time—criminal, juvenile justice, child welfare, mental health, and any others where the client is indigent and has a right to appointed counsel.

CAPLA works with, trains, and assists about 450 private attorneys on about 90% of the cases and handles about 10% of the cases in house with its exceptionally experienced staff attorneys.  One part of CAP’s dual mission is making sure indigent clients receive competent representation.  This leads to the second part of the mission, that is, making sure the court receives useful briefing, a benefit the court has enjoyed and has appreciated for over three decades.

The court also appreciates CAPLA’s meticulous review of all claims for compensation of the private attorneys, using guidelines developed by the APJs and the Chief Justice, a time-consuming and difficult process the justices had previously had to perform themselves without the carefully crafted criteria developed by CAPLA.

Finally, CAPLA has always been available to answer questions and to jump in and help solve problems whenever the justices or clerks of the court ask. Jon’s relationships with court personnel and his exceptionally high standards have been instrumental in creating a strong professional and respectful association between CAPLA and the Court and making California’s Court Appointed Counsel system in the Second Appellate District work uniquely well.
(For more information, please contact Assistant Director Jay Kohorn at Jay@LACAP.com.)

Tuesday, January 15, 2019

What to do after the appellate bench?

The New York Law Journal reports how "Nine former New York Court of Appeals and appellate judges are offering their services as arbitrators in commercial cases as part of a joint venture that is officially being launched this week." See Retired NY Appellate, COA Judges Launch Arbitration Venture.
Image result for adam"People who send their clients to arbitration are really worried that they're going to run across arbitrators who are not enforcing the law," Saxe said. "That’s why it’s very important to have an arbitrator with a fealty to the law who hews to legal precedent."
The judges are calling their network ADAM or Appellate Division Arbitrators & Mediators.

How to pay appellate fees under LASC's new system

Image result for take my money pleaseEver since LASC went to e-filing, lawyers, secretaries, and clerks have be going crazy trying to figure out how to perfect an appeal under the new system! Appellate Specialist Mark Schaeffer shares the following:


Appellate practitioners have to pay an assortment of fees with appeal documents (e.g., notice of appeal, notice designating record on appeal) to Los Angeles Superior Court. For example, a notice of appeal must be accompanied by a $100 fee to LASC and a $775 fee to the Court of Appeal. Until mandatory electronic filing, both payments were given to LASC with the filing of the notice of appeal. LASC would then forward the $775 fee, with a copy of the notice of appeal, to the Court of Appeal. If a reporter’s transcript on appeal is designated, the designating party must deposit the estimated cost for the reporter’s transcript with the filing of the notice designating the record on appeal. 

Documents must now be electronically filed in Los Angeles Superior Court. Appellate practitioners, and LASC, are running into issues with the payment of appeal fees.

With the notice of appeal, some of LASC’s approved e-filing vendors do not have the capability to pay the appeal fees. With those vendors, the appellate fee of $100 to LASC must be brought in person to LASC’s room 111A (the LASC Appeals Unit).  For all vendors, LASC room 111A has advised that it will no longer forward the $775 fee due the Court of Appeal to the Court of Appeal.  That fee must be made directly to the Court of Appeal. But, that fee can only be made after the Court of Appeal has received the notice of appeal from LASC and docketed the appeal with a case number.

As for a party’s designation of the record on appeal, it appears that it is not possible to electronically pay the estimated amount for the reporter’s transcript on appeal through any of LASC’s vendors, according to some of the vendors contacted and LASC room 111A. That fee must be made in person to LASC room 111A.

Hopefully, the e-filing system will be reconfigured in the near future to allow for the payment of fees with the electronic filing of appeal documents.

Other notes about LASC e-filing:
Overall System Performance

  • The Court is learning to use its new case management system and making progress daily.
  • The court is working with their software vendor to isolate and repair problems.
  • Data Quality – Courts are working with “dirty data” from their old system and continue to clean it as quickly as possible.
  • Refunds – There was a bug in the court system that wasn’t handling refunds properly. This is being addressed.
  • Configuration Consistency Across Products – The old court system consisted of four separate systems that had to be integrated into their new software. Needless to say, they had a few bumps. They continue to work on streamlining any inconsistencies and have internal teams working together from all four areas.