Tuesday, November 24, 2020

Justice Brown to Keynote ADC Conference

 The Association of Defense Counsel of NoCal and Nevada presents a virtual conference for its 61st Annual Meeting (register here), and ....

Keynote Address
Friday, December 11 | 12:00pm - 12:30pm

Hon. Janice Rogers Brown (Ret.)
United States Circuit Judge of the United States Court of Appeals for the District of Columbia (2005-2017)
Associate Justice of the California Supreme Court (1996-2005)

Judge Janice Rogers Brown, former United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit (ret. 2017), former Associate Justice of the Third District Court of Appeal, and former Associate Justice on the California Supreme Court.  Judge Brown, who grew up in rural Alabama and attended college in California during the turbulent 1960’s, is known as an expert on constitutional law and judicial restraint. During her 23 years as a judge, her rulings were not easily pigeonholed, and her passionately written dissents are well-known.

She will share her inspiring views on “Making a Living or Making a Life"

A little appellate news

Bloomberg Law has Feinstein Won’t Lead Senate Judiciary Democrats in New Congress
Bloomberg Law also has Skadden Launches SCOTUS Practice with Dvoretzky from Jones Day
And on this topic Law.com has Skadden Snags Shay Dvoretzky From Jones Day to Lead New SCOTUS Practice -- Dvoretzky clerked for the late Justice Antonin Scalia, has argued a dozen SCOTUS cases, and had been at Jones Day for 18 years.

And don't miss Judge Karnow's latest masterpiece in the DJ, this one titled Officer of the Court:

The lawyer’s job description is this: officer of the court. This is true without regard to whether the lawyer ever steps foot in the courthouse.

Everything collapses when judges can't trust counsel. 

Monday, November 23, 2020

Remote Argument Survey Highlights

The 9th Circuit presents: Remote Argument Survey Highlights Positives and Negatives of Streaming During Pandemic

  • The United States Court of Appeals for the Ninth Circuit has been posting videos of appellate courtroom proceedings for 10 years and streaming video of oral arguments held in court for much of that time. Now, due to COVID-19 restrictions, each oral argument stream is a convergence of videos from a variety of locations: lawyers’ offices or homes and judges’ chambers or homes. En banc proceedings, requiring over a dozen feeds to make up the hearing, are even being held.
  • According to a survey sent out in late August by Molly Dwyer, clerk of court for the Ninth Circuit, the video process is well-established and is getting an important job done, but all parties look forward to meeting in person, again. The survey was sent to about 300 lawyers who have participated in the video arguments; 219 responded.
  • The first COVID-driven remote hearings were held the week of March 23. Between then and the end of April, 64 arguments were heard over 51 days. May, June and July saw another 371 arguments over 119 days. Eighty-five percent of participants did so via video connections, the rest via audio (phone) connections.
  • lawyers reported reasonable satisfaction with the remote hearings, with 47 percent stating the experience was similar to in-person proceedings, while 15 percent said remote hearings were better. A sizable number, 29 percent, said remote hearings were worse than in-person, while 9 percent said the remote hearings were much worse.
  • the survey revealed that a large proportion of participants thought the level of engagement was similar or better than in-person arguments. While only 14 percent said the level of engagement was lower, 78 percent said it was similar to in-person proceedings and 8 percent said they thought engagement was higher than in-person hearings.
  • When lawyers were asked if they would appear remotely again, the splits were greater, with 13 percent saying they would appear anytime remote hearings are offered, 32 percent said they would only participate due to the current or another pandemic, 37 percent said they would appear if the opposing counsel was doing so, while 18 percent said perhaps they would appear remotely.
  • A clear bright spot in the survey shows 74 percent of lawyers surveyed rating the technical assistance offered by the court as excellent, with 21 percent calling it very good, and only 5 percent said the technical assistance needs improvement.

9th Cir. Reminder re new rules taking effect next week!

On December 1, 2020, some important new and revised Ninth Circuit Rules will be going into effect, including a completely rewritten Circuit Rule 30-1 and significantly revised related rules governing the excerpts of record. The new and revised excerpts rules, along with two unrelated rule changes, are available now on our website at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000682. Please review these rules carefully before submitting any briefs or excerpts of record on or after December 1. 

Major Changes:
* Separate Index (Table of Contents) Volume required for multi volume excerpts, no index or TOC to be included in numbered volumes
* Single Volume excerpts of no more than 300 pages can include Index/TOC
* Excerpts must be consecutively paginated through all volumes in a set other than separate index volume, including caption pages, blank pages, certificates, etc.
* Social Security cases- complete CAR as filed in district court must be submitted with original pagination in new separate docket event called Social Security Certified Administrative Record at the time the initial excerpts are submitted (or with supplemental excerpts if pro se appellant)
* Establishes new standard citation format for citing in the briefs to the excerpts and social security record

Additional Changes and Important Clarifications:
* Purpose of the rule is highlighted and clarified, rule itself is streamlined with specific examples moved to committee notes
* Citations directly to the record in counseled briefs are prohibited except for undisputed background facts
* Clarification of contents of Volume 1 in multi volume set - ALL orders and rulings challenged on appeal, and nothing else
* Requirements of appellees excerpts in pro se cases are clarified must include everything that would have been required for opening brief plus what appellee is required to include
* Clarification of when complete trial transcripts must be included, and option to submit those in separate volumes at the end (before any sealed volumes)
* Clarification that cited or relevant documentary trial exhibits must be included in the excerpts, suggestions given as to where

New resources will be available, including a revised sample shell brief and new sample excerpts of record, on our website, along with an updated appellate practice guide and a new technical guide for working with PDFs, at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000858. New and revised FAQs regarding excerpts of record will also be available on our website at https://www.ca9.uscourts.gov/content/faq.php

RIP Justice Paul Coffee (1932-2020)

Today's DJ has an obit for 2/6's Justice Paul H. Coffee, 1932-2020: 2nd District Court of Appeal Justice loved the sea and hated typos.

  • Paul H. Coffee, who served on the 2nd District Court of Appeal for 15 years, was known for living his non-courtroom life at sea, as well as for his hatred of typos, subtle sense of humor and integrity, colleagues said Friday. Coffee died Thursday at 88.
  • Coffee was born on July 10, 1932. He grew up in Madera County, where his father, Everett L. Coffee, was a district attorney and a superior court judge. ... Coffee studied business at UC Berkeley and joined the Navy. He flew fighter planes in the 1950s, but never saw combat.
  • In lieu of flowers, donations may be made to Our Lady of the Assumption Catholic Church, 3175 Telegraph Rd., Ventura, CA, 93003 or City of Hope Cancer Research Hospital, 1500, Duarte Rd., Duarte, CA, 91010
The MetNews has Retired Court of Appeal Justice Paul H. Coffee Dies and, from PJ Gilbert, A Colleague's Reflections on Justice Paul Coffee. Ventura County Star obit here.
Justice Coffee's oral history legacy project interview is here.

Sunday, November 22, 2020

Appellate angle for The Liberator

On Veteran's Day, Netflix released a four-part WWII series called The Liberator. The protagonist is Felix Sparks, famous not only for a remarkable war record but also--for appellate purposes--his legal career, including as a Justice on the Colorado Supreme Court. This calls to mind California's own "Buck" Compton, from HBO's Band of Brothers and the 2d District Court of Appeal.

Body camera photo in opinion

Police officers wearing body cameras has been more and more common. This published opinion from 4/1 here on page 11 makes clear that a there was a detention. Perhaps body cam shots will become more and more common in decisions. And nice color photos could be useful in many opinions.

Other points to like about this opinion include: (1) oversized footnote numbers, and (2)Justice Dato "takes the somewhat unusual step" of penning a concurrence to his own majority opinion "to add a few personal observations." 

Saturday, November 21, 2020

Justice Kagan: 9th Cir. Justice

The latest list of Circuit Justice assignments is here and provides: "For the Ninth Circuit, Elena Kagan, Associate Justice"

SCOTUSBlog says this:
A circuit justice is primarily responsible for emergency requests (for example, an application to block an execution or to allow it to go forward) from the geographic area covered by his or her circuit, as well as more mundane matters, such as requests to extend filing deadlines. However, justices can and often do refer significant emergency requests to the full court – a role that has taken on increased importance in recent years with the sharp uptick in activity on the court’s “shadow docket.”

Friday, November 20, 2020

"Appeal or writ?" article

Appellate specialists Judy Posner and Gerry Serlin (of Benedon & Serlin) had an article the December 2019 issue of Advocate Magazine that CEB recently republished here: Pitfalls and Hazards WhenPerfecting a Civil Appeal


Harvey Saferstein RIP

SCAN is sad to report that Harvey Saferstein has died. Harvey was a bar-junkie extraordinaire, including serving as president of the State Bar and Chair of the Ninth Circuit Judicial Conference.

The MetNews has Former State Bar President Saferstein Dies -- Remembered as Outstanding Attorney Who Served Legal Community, Courts

Wednesday, November 18, 2020

Some case notes & a musical number!

Here's a nonpub that references the appellant's "poorly drafted" and "problematic" notice of appeal. Turns out the appeal from the judgment was a day late, and so gets dismissed. And the appeal from the order denying a new trial was dismissed because such orders aren't appealable. But the order denying JNOV is appealable and timely, so that gets through. But then the order is affirmed.

File under "that's helpful": And here's a nonpub decision that basically says, "no judgment means no appeal; but even if you fixed that problem and came back later on appeal from a judgment, you'd lose. So don't bother!" Will the pro per appellant get it or will he return?

See also an interesting 9th Cir. dubitante opinion noted here, which asserts "Our circuit’s immigration jurisprudence is a hot mess." (And it also references Meatloaf! See, appellate judges can be musical. Want more proof? See immediately below).

Too boring? Don't miss some federal judges from Texas singing a Covid-19-related Hamilton number here! (The Hon. Charles "Tres" Eskridge III is a Hamilton musical expert, and has SoCal connections having attended Pepperdine School of Law.) [h/t Gary Ostrick]

In other news, the California Academy of Appellate Lawyers admitted two new members last month, Brian Sutherland of Reed Smith in SF and Greg Ellis of Pasadena. Congrats!

Lifetime Achievement Award for the Chief

IALA's 2020 Supreme Court Night will be the presentation (via Zoom) of a Lifetime Achievement Award to Chief Justice Canti-Sakauye on Dec. 1 (6 to 7:30), co-presented with a bunch of other bar groups. (This program is free, but space is limited!) Details here.

9th Circuit 2019 Annual Report

The 9th Circuit's Annual Report is now available here!

Chief Judge Thomas's foreword asserts, "with our inventive case management techniques, we still made significant progress in reducing our pending caseload and case processing time. Indeed, over the past four years, we have reduced our median appellate case processing time by 28 percent."
  • Unless otherwise noted, statistics in this report cover fiscal year 2019 ending September 30.
  • The Ninth Circuit continued to be the nation’s busiest federal appellate court, accounting for 21 percent of all new appeals nationally.
  • Of the new filings, about 28.4 percent of all new appeals in the Ninth Circuit involved immigration and other agency matters, while 44.4 percent of new filings were pro se cases (those involving at least one self represented litigant).
  •  The court’s overall reversal rate was 9.3 percent, compared to a national average of 8.2 percent. The reversal rate was 11.3 percent for criminal cases; 18.4 percent for civil cases involving the federal government and 16.3 for non-government civil cases; and 5.3 percent for administrative 
  • agency cases.
  • In FY 2019, judicial panels produced 464 published opinions and 6,910 unpublished opinions. 
  • in FY 2019, the median time interval from filing of a notice of appeal to final disposition was 10.8 months, down from 11.7 months in FY 2018 and 13 months in FY 2017. The time interval from the filing of a case in a lower court to a final disposition was 33.2 months
  • Once an appeal was fully briefed, Ninth Circuit judges decide all types of cases fairly quickly. In FY 2019, just as in 2018, the median time interval for panel decisions was 1.2 months for a case in which oral argument was held and about six days for cases submitted on briefs.
  • Of the 6,604 written opinions, excluding consolidations, issued by the court in FY 2019, 54.4 percent were authored by active circuit judges, 38.4 percent by senior judges, and 7.2 percent by visiting judges sitting by designation.
Notable SoCal-related obits include Judge Real (pg. 19) and Judge George Schiavelli (pg. 20).

SCOTUS Amicus Briefs Reach New Highs

 NLJ's Supreme Court Brief has So Many Friends: Amicus Briefs Reach New Highs, which reports on Arnold & Porter's appellate practice report, which concludes:

“In the 2019–20 term, amici curiae filed on average 16 briefs per case at the merits stage, an all-time high. Overall participation increased as well, with friends of the court filing briefs in 97 percent of [the 57] argued cases, for a total of 911 amicus briefs.”
“The justices cited briefs in 65 percent of cases—another record—relying on friends of the court for perspectives on government policies, history, religion, medicine, psychology, and even the financial implications of the court’s decisions.”

“Last term likewise saw a return of mega-cases for amicus participation. Cases involving hot-button issues like marriage equality and health care tend to generate the most briefs, though patent cases also spur significant amicus participation. Keeping with that trend, Bostock v. Clayton County, which held that Title VII’s ban on sex discrimination protects LGBT employees, topped the list in 2019–20. Bostock and its consolidated companion cases (Harris and Altitude Express) received 94 unique amicus filings.”
Today's DJ profile of S.D.Cal. Magistrate Judge Allison Goddard (titled Credibility Builder) talks about how a "call-out" in a footnote in a published opinion from 4/3 affected her and helped her later in her career.

And of note (h/t How Appealing) Rethinking Appellate Standards of Review for Video Evidence, by Hon. Pierre Bergeron (Ohio 1st Dist. Ct. App.), 56 Court Review 140.

Tuesday, November 17, 2020

The Chief on Complex Courts

At LACBA's Litigation Section's 2020 Complex Court Virtual Symposium (on Dec. 7, 3 p.m. to 7 p.m. via Zoom), Chief Justice Canitl-Sakauye will be presenting "reflections on the history of the complex courts and how we are dealing with today's challenges." Sign up here.

Yesterday's DJ had Justice Hoffstadt's piece titled WWLHD? (What would the Legislature have done?

Of late, the California Supreme Court has devoted a fair bit of its time to resolving ambiguities in several of the recently amended statutes aimed at criminal justice reform.

And yesterday's DJ also had a Moskovitz on Appeals column on The Respondent's Brief, which makes has the following suggestions:

  • Focus on the standard of review 
  • Include a statement of facts, but explain why you're not relying on the appellant's story, and keep it short and focused on the key points.
  • Get a head start by drafting before the AOB arrives.

Monday, November 16, 2020

RIP Drew Days (1941-2020)

 The 40th Solicitor General of the United States has died: Drew Saunders Days III was SG from 1993-1996. Obit here.

Law360 has Courageous Civil Rights Atty, Ex-Solicitor General Dies

"Drew Days was an inspiration and mentor to my generation," Eric Holder, who served as attorney general under President Barack Obama, said in a statement shared on social media. "He was an incredibly talented lawyer, a gifted teacher and an unfailingly kind man. He made America better and more just."

Friday, November 13, 2020

Some federal appellate stuff

The 7th Circuit has announced it will stay remote through April: 

The United States Court of Appeals for the Seventh Circuit will continue to operate under the Continuity of Operations Plan activated on March 18, 2020. See order for further details. (http://www.ca7.uscourts.gov/news/COVID-19_order_through2021_April30.pdf) Pursuant to this order, all cases scheduled for oral argument through April 30, 2021, will be argued by counsel either telephonically or by video communications. The clerk's office will contact counsel with remote argument instructions for their specific case. The courtroom will remain closed to the public. Arguments will be livestreamed to YouTube (https://www.youtube.com/channel/UCWvXsHlWdsIJHy3R_znCUsA) and recordings will be posted on the court's web page.

Bloomberg Law has Biden’s Top SCOTUS Lawyer Should Be Woman, Court Watchers Say, about a possible female SG appointment. Justice Kruger's name is on the long list of possible candidates.

The ABA Journal has Biden has pledged to nominate a black female SCOTUS justice—who are the possibilities? Yes, Justice Kruger's name is on the list, of course!

The National Judicial College released the informal poll of its alumni on Wednesday, finding that 60% of the roughly 700 judges surveyed are against lifetime appointments, while just 40% support them.

Thursday, November 12, 2020

Appellate articles of note

Jake Dear, the Cal Supreme Court's Chief Supervising Attorney, has an article in today's DJ about An Extraordinary and Influential California Supreme Court Staff Attorney, which traces the storied career of Harold "Hal" Cohen, who "had no inkling that his one-year Tobriner clerkship would turn into a lifetime career with the court in San Francisco," working for Justices Tobriner, Kaus, Grodin, Arguelles, Kennard, Broussard, CJ George, and CJ Cantil-Sakauye. Hal announced he would retire this past July. "what he's given to the institution and to the law will live on -- not only in the 127 volumes of California Reports published while he worked for eight justices (and with 28 other justices of the Supreme Court during that same period) -- but also in the example he has set for all of us, and the standards to which those of us who remain, and those who will join the court staff in the future, aspire." A "full version of this article to be published in December in the California Supreme Court Historical Society's Review."

Tuesday's DJ had GMSR's Jeffrey Raskin's article 'Healthy lawyerly paranoia': Federal Appeal Deadlines, about the 9th Cir.'s opinion in Nutrition Distribution LLC v. IronMag Labs, LLC (9th Cir. Oct. 29, 2020), which addresses federal tolling motions.

Also noteworthy: Law Clerk Hiring Plan Extended -- The Judiciary’s Federal Law Clerk Hiring Pilot Plan, which makes the judicial clerkship hiring process more transparent and uniform, has been extended for two years after getting good reviews from both law school deans and judges. Law.com's story is here.

And CLA Litigation Section's November 2020 Litigation Update is available here.

Wednesday, November 11, 2020

Justice Jenkins articles

Today's DJ has Martin Jenkins confirmed to state Supreme Court

Jenkins, who is turning 67 on Thursday, will be the first openly gay justice on the court when he is sworn in sometime next month. ... A swearing-in date has not been set for Jenkins in December, but pro tem justices will serve during oral arguments that month

The Recorder has Martin Jenkins Confirmed to California Supreme Court

In a hearing frequently filled with applause, laughter and the occasional tear, the Commission on Judicial Appointments on Tuesday unanimously confirmed Martin “Marty” Jenkins to the California Supreme Court.

The L.A. Times has First openly gay justice confirmed to serve on the California Supreme Court

Jenkins, considered a moderate, will become the fifth Democratic appointee on the seven-member court. He has extensive judicial experience. Republican governors appointed him to state court positions, from the Alameda County Municipal Court to the 1st District San Francisco-based state Court of Appeal.

Law360's article is here.


Tuesday, November 10, 2020

Link to Jenkins CJA hearing

The hearing for Justice Jenkins should begin around 1p.m. today and you can watch it live here: https://jcc.granicus.com/player/event/1078

Witnesses in Support:

  • Ms. Adrionne Beasley, Reverend & Attorney at Law (Ret.)
  • Hon. William R. McGuiness, Administrative Presiding Justice (Ret.), Court of Appeal, First Appellate District, Division Three
  • Hon. Thelton E. Henderson, Chief Judge Emeritus (Ret.), U.S.D.C., Northern District of California
  • State Bar Commission on Judicial Nominees Evaluation: Mr. Aminder Singh, Commission Chair

Slideshow here.