Wednesday, February 5, 2025

Preemption of CCP 1294(a)?


Today's DJ has a special supplement: Leading Commercial Litigators 2025. Among the listed honorees are some appellate lawyers, including Ted Boutrous, Ray Cardozo, and Theane Evangelis. There is also an article of appellate note by Barry Landsberg and Joanna McCallum: California's new arbitration amendment is a legal tangle waiting to be unwound argues that:

The Legislature's 2024 amendment to Code of Civil Procedure section 1294(a)--which singles out appeals from orders denying or dismissing petitions to compel arbitration and deprives them of the automatic stay of trial court proceedings that applies to nearly every other pending appeal--is yet another "new way[] to disfavor arbitration" that might produce another [] Supreme Court rebuke.


BHBA presents Protecting Your Verdict, to be held 2/26/2025 10:00 AM - 11:00 AM: Travis Davis will discuss the necessary steps to turn your successful verdict into a valuable judgment. Travis has considerable experience in the post-trial realm, protecting multiple seven, eight, and even a nine-figure verdict. In this webinar, he will discuss drafting the proposed judgment, calendaring important deadlines, bringing post-trial motions to increase the value of your judgment, and protecting your verdict against post-trial attacks.

Tuesday, February 4, 2025

SCOTUS pro v. tyro

Law.com has ‘Diminishing Returns’: Is the Superstar Supreme Court Lawyer Overvalued? -- From "rookies" to "superstars," a new draft study looking at the win rates of Supreme Court advocates based on their experience uncovers some surprising results.
At the U.S. Supreme Court, like anywhere else, experience matters. But only up to a point. A new draft study into more than 50 years of Supreme Court advocacy—the most comprehensive research on the subject to date—has largely confirmed the advantage that repeat high court players have over their less experienced peers. At the same time, the study also establishes a point of “diminishing returns” of Supreme Court experience.

Law360's Wheeling & Appealing for this month discusses anticipated debate about amending FRAP 29 and has interesting tidbits about 9th Cir. Judge Wallace.

The MetNews has Defendant Who Inquired About Appeal Did Not ‘Instruct’ Lawyer -- Decision, Affirming Denial of Habeas Relief, Draws Dissent

Milestone timeline

See Milestones for African Americans in the California Judicial Branch -- Learn more about historical milestones including landmark court cases and legislation, prominent African American citizens, and African American jurists who have impacted California history in our interactive timeline.

Of appellate note, the timeline features Justices Vaino Spencer, Wiley Manuel, Arleigh Woods, Janice Rogers Brown, Leondra Kruger, Martin Jenkins, and Kelli Evans.

CAAL Fellowship applications due 3/17/25


The California Academy of Appellate Lawyers is proud to announce the opening of the application period for the 2025-2026 Fellowship Program. 

The Fellowship Program has two main goals:

(1) To increase the diversity of participants in the Academy’s educational and social programs, and

(2) To introduce the Academy to appellate lawyers for future candidacy.

The following qualifications will be considered in selecting participants in the Fellowship Program:

(1) Good character and professional reputation,

(2) Outstanding appellate skills and ability, and

(3) A continuing commitment to high quality appellate practice.

To qualify for candidacy, a Fellow must have been a member of the bar for at least 3 years, and must certify that he or she has a predominantly appellate practice, meaning more than 50% of the applicant’s practice is appellate work.

Additionally, the Academy will consider an applicant’s contribution to the diversity of participants in the Academy’s programs, which includes (but is not limited to) geographic location, area of practice, race, ethnicity, gender, and sexual orientation. The application period will be open from February 3 through March 17, 2025. To apply, please visit https://calappellate.org/fellowship-program/fellowship-application

Monday, February 3, 2025

LASC expands e-service to appeals docs

 

SUPERIOR COURT OF LOS ANGELES COUNTY TO EXPAND ELECTRONIC SERVICE TO APPEALS DOCUMENTS IN LIMITED AND UNLIMITED CIVIL CASES BEGINNING FEB. 10, 2025

 

On Feb. 10, 2025, the Superior Court of Los Angeles County will expand its phased implementation of electronic service (eService) to include appeals documents in Limited and Unlimited Civil cases. The Court will use eService to transmit, deliver, or serve required appeals documents from the Court in these litigation types.

This expansion builds on the Court’s phased implementation of eService, which began in December 2024 with Juvenile Dependency appeals and later included Family Law, Probate, and Mental Health appeals. Represented parties will be required to accept eService, while self-represented parties will have the option to receive electronic notices.

eService enables attorneys and self-represented litigants to receive case documents electronically from the Court, streamlining case progression and offering the following benefits:

·    Efficiency and Timeliness: Attorneys will be automatically enrolled in eService, which will provide faster notification and document delivery. Self-represented litigants who opt  for eService will also experience quicker service than traditional  mailing methods.

·    Convenience and Flexibility: Case documents can be securely accessed electronically from any location, provided users maintain an up-to-date email address for eService.

·    Enhanced Security: Secure links with multi-factor authentication ensure document integrity.

·    Automatic Proof of Service: eService provides automatic proof of service for recipients.

Information About the Phased Implementation of eService

As part of the next phase of eService implementation, the Superior Court of Los Angeles County will begin sending electronic notices for appeals documents in Limited and Unlimited Civil cases starting Feb. 10, 2025. In the coming months, full implementation of eService for all Family Law, Probate, Mental Health, and Civil documents is expected to roll out and be completed by July 1, 2025.

What to Know About eService

Under California Rule of Court 2.251, electronic service is equivalent to service by mail, express mail, overnight delivery or fax transmission. Attorneys are required to accept eService, while self-represented litigants may opt-in by filing a consent form. eService from the Court will have the same legal effect as service by mail.

A party who is served a document by the Court via eService will be provided an additional two court days under Code of Civil Procedure (CCP) 101.6(a)(3) to respond.

Express consent is required for self-represented litigants who choose eService. Consent may be provided by filing a Consent to Electronic Service and Notice of Electronic Service Address form. Please see below for more details on eService: 

  1. Opting In: Self-represented litigants may opt-in for eService by filing a Consent to Electronic Service and Notice of Electronic Service Address (EFS-005-CV) form.
  1. eService Lists: The Court will maintain an eService list for each case type, including the email addresses of litigants who consent to eService. 
  1. Maintaining eService Addresses: Any changes to an eService address must be promptly updated by the litigant or attorney to ensure seamless communication. Parties may submit a completed MC-040 form to update their email address of record at any time.  
  1. Service Completion: Rule 2.251 outlines that service by electronic notification is deemed complete per Code of Civil Procedure section 1010.6 when the electronic notification of service of the document is sent. 
  1. Secure Access: All eService notices from the Court will be sent from CourtNotify@lacourt.org and include a secure link to access served documents, with a time-sensitive code to ensure security. Access will require multi-factor authentication to ensure security and integrity.  

Additional Resources:

The following resources are available to assist court users with the phased rollout of eService:

·    Video tutorial on eService.

For questions or technical assistance with eService, court users are encouraged to call 213-830-0400.

 

Remittiturs are "sent" not "served"

Get your appellate costs bills filed timely! Attempts to squeeze out extra time beyond the usual 40 days don't work well, as seen in this published opinion today here:

Maria’s motion for attorney fees on appeal and her memorandum of costs on appeal were filed 42 days after the remittitur was issued—that is, after it was entered in the record.  California Rules of Court, rule 8.278(c)(1) provides that such requests must be filed “[w]ithin 40 days after issuance of the remittitur.”  Maria contends her requests were timely because the remittitur was sent to her attorney by email and the two-day extension for documents served electronically applies to the remittitur.  (See § 1010.6, subd. (a)(3)(B).)  The parties have cited, and we have located, no published decision resolving whether the statutory extensions for service apply to a remittitur.  Accordingly, we publish our conclusion that the extension of filing periods that begin to run “after service of the document” by electronic means (§ 1010.6, subd. (a)(3)(B)) does not apply to a remittitur.  A remittitur is merely sent to the parties, it is not served on them.

The MetNews's article is Clock Starts at Issuance of Remittitur for Request for Fees as Costs on Appeal -- Opinion Says Date of Entry on Record Starts 40-Day Time Limit for Motion; Requestor Not Entitled to Statutory Two-Day Extension for Documents Served Electronically

PJ Gilbert on loss and resilience

We lost things. But we do not define ourselves by our things. We did not lose ourselves. We have resilience and the support of family and so many friends. And we have deep sympathy for my colleagues and the thousands of people who have suffered the same loss.
Today's DJ has PJ Gilbert's column titled It could never... -- After losing their home of 40 years in a devastating fire, Arthur Gilbert reflects on the irreplaceable memories and items they lost, yet finds solace in resilience, the support of loved ones, and the enduring value of experiences.
During the decade I was practicing law, I attended a party where as part of the entertainment there was a palm reader. The exotic lady carefully surveyed the lines in my right hand. She looked directly in my eyes and said, "You will be a published author of many works." She didn't tell me they would be in Cal.App.3d, 4th and 5th.


Friday, January 31, 2025

ABA webinar (Feb. 5)

On February 5 (@ 2 PM EST), the ABA presents an appellate webinar (featuring MC Sungaila and other appellate experts): Making the Most of Appellate Counsel at Trial: Tips for Appellate and Trial Practitioners -- How can trial and appellate counsel work together to get the best results at trial? Join experienced practitioners for expert insights and tips. Many litigators--both trial and appellate lawyers--think the role of appellate counsel begins after trial. But appellate counsel can be of immense help during (and even before) trial. Join experienced practitioners for a discussion of how appellate counsel can add value at the trial level.

Thursday, January 30, 2025

9th Cir. offline 2/15

CM/ECF and ACMS in the 9th Circuit Court of Appeals will be unavailable from Saturday February 15, 2025 at 6:00 AM Pacific Time until Sunday February 16, 2025 at 12:00 PM Pacific Time for system maintenance. You will not be able to file any documents electronically or view or access the Ninth Circuit’s dockets during this time. If you have an after-hours emergency during this time, call the after-hours emergency line at (415) 355-8020 or send an email to emergency@ca9.uscourts.gov and the duty attorney will assist you.

E-filing program

CLA's Litigation Section offers 

Webinar: Navigating Appellate E-Filing: From Errors to Excellence

February 27 @ 12:00 PM | REGISTER HERE

Special low price! 1.5 Hours MCLE; 1.5 Legal Specialization in Appellate Law

Join us for the MCLE program, Navigating Appellate E-Filing: From Errors to Excellence, where we tackle the most common e-filing errors that can derail your case. Our panelists Eva McClintock, Clerk/Executive Officer, Second District Court of Appeal; Beth Robbins Assistant Clerk/Executive Officer, First District Court of Appeal; and Julia C. Shear Kushner, Law Office of Leslie Ellen Shear, will provide practical tips and solutions to streamline your appellate e-filing process, ensuring compliance and efficiency.

New CAAL members!

California Academy of Appellate Lawyers Announces Two New Members

The California Academy of Appellate Lawyers is pleased to announce that it admitted two new members at its January 25, 2025 meeting: Kelly Woodruff and Kendra Hall.

  • Ms. Woodruff is counsel at Complex Appellate Litigation Group and a Certified Appellate Law Specialist by the State Bar of California. She received her B.A. from the University of Colorado, Boulder, and her J.D., magna cum laude, from UC Law San Francisco (formerly UC Hastings College of the Law). After law school, she clerked for James R. Browning of the U.S. Court of Appeals for the Ninth Circuit and David A. Ezra of the U.S. District Court for the District of Hawaii.
  • Ms. Hall is a partner at Procopio, Team Leader of Procopio’s Appellate Law Services Group, and a Certified Appellate Law Specialist by the State Bar of California. She received her B.A., cum laude, from Loyola Marymount University and her J.D., cum laude, from University of San Diego School of Law.

Founded in 1972, the Academy is the nation’s oldest lawyers’ organization dedicated to appellate practice. Our members are California lawyers with substantial appellate experience, who are elected to membership after rigorous scrutiny of their reputation, character, and appellate advocacy skills. Academy members are very frequently counsel of record in the most complex and highest-impact cases before the California Supreme Court, California Courts of Appeal, and federal appellate courts.

More information about the Academy appears on its website at www.CalAppellate.org.

Friday, January 24, 2025

Just a necklace or not?

ABA Journal has Justice Jackson wore cowrie shell collar to inauguration; was it 'a sartorial expression of her dissent'?

Survey says!


The Fourth District, Court of Appeal, Division One Launches New Customer Survey to Enhance Services

The Fourth District, Court of Appeal, Division One in San Diego is pleased to announce the launch of a new customer survey aimed at gathering valuable feedback from court users. This initiative marks the first time the Court has implemented a formal survey for public input regarding the services provided by the Clerk’s Office and other court functions. “We are committed to continually improving our services and ensuring that court users have a positive experience,” said Brandon Henson, Clerk/Executive Officer. “This survey provides an opportunity for the public to share their insights, helping us identify areas for enhancement and better serve our community.”

The survey is easily accessible through QR codes posted in the Clerk’s Office Lobby and at the entrance to the courtroom. Additionally, a direct link to the survey can be found on the Court’s website under Division One’s ‘Contact Us’ page. The Court encourages all visitors, attorneys, and litigants to participate and provide their honest feedback. Responses will help guide improvements in court operations, accessibility, and overall customer service.

2025 CA Court Stats Report

 2025 COURT STATISTICS REPORT Statewide Caseload Trends 2014–15 Through 2023–24

Supreme Court
• The Supreme Court issued 52 written opinions during the year.
• Filings totaled 4,944, and dispositions totaled 4,825.
• Automatic appeals arising out of judgments of death totaled 4 cases, and the court disposed of 2 such appeals by written opinion.
• The Supreme Court ordered 11 Court of Appeal opinions depublished in this fiscal year.

PFR Outcomes. For FY24, of 795 petitions for review from civil appeals, 21 were granted (32 G&H, 2 G&T) equaling a "7% grant rate." For civil writs, 243 PFRs filed, 8 granted, 8 G&H, 7 G&T, equaling a 9% "grant rate." (Table 1, pg. 17.)

For FY24, 1 of 3 requests to decide questions of state law were granted. Zero rehearing petitions were granted (which has been true every year going back to 2016). (pg. 25) In FY 24, 11 opinions were depublished, and 1 ordered published. (pg. 26) 

Courts of Appeal
• Total contested matters for the Courts of Appeal totaled 19,309, made up of 14,071 records of appeal and 5,238 original proceedings.
• Dispositions in the Courts of Appeal totaled 21,652. Of these dispositions, 16,366 were appeals and 5,286 were original proceedings.
• Dispositions of appeals by written opinion totaled 8,254; appeals disposed of without written opinion totaled 5,434, and appeals disposed of without a record filed totaled 2,678. Dispositions of original proceedings by written opinion totaled 276, and original proceedings disposed of without written opinion totaled 5,010.
• Statewide, 8 percent of Court of Appeal majority opinions were published.

Outcomes. For FY24 civil appeals, 80% affirmed; 16% reversed; 5% dismissed. (pg. 38) Publication rates for civil appeals overall was 14% (the rate for the 2d and 5th), with the 1st and 3d at 19% and the Fourth and Sixth at 11%.

Timing (from notice of appeal to opinion): The statewide median for civil appeals is 515 days. Fastest is 2/6 (437 days), slowest is 2/8 (645 days). (Fig. 33, pg. 40)



AI teaches legal writing

The Recorder has Davis Wright Tremaine Turns to Gen AI to Teach Its Associates Legal Writing -- The firm’s proprietary software DWT Prose gives writing recommendations based on the work product of the firm’s experienced attorneys.

Thursday, January 23, 2025

J.Zukin receives Lam Award

LACBA Announces Recipients of Prestigious 2025 Annual Awards

Wednesday, January 22, 2025

WLALA program on Access to Appellate Justice

On Feb. 11 at noon to 1:15, WLALA presents a Zoom webinar title Access to Appellate Justice featuring Justice Meeiwala (3d Dist.) and Jennifer Hansen and Ellen Wiley (Cal. Appellate Project criminal/dependency) and Arati Vasan (Family Violence Appellate Project). (1 hour of MCLE for elimination of bias.)

Splitting the Ninth?

Law.com has Senator Plans to Reintroduce Bill to Split 9th Circuit -- Proponents have long argued that the circuit covers too much territory and too many people and its docket is unmanageable; critics say the current system isn’t broken and motivations for the split are merely political.

  • Sen. Mike Crapo plans to reintroduce legislation to split up the country’s largest—and long considered most liberal—federal appeals court, the Idaho Republican's office said this month.
  • For decades, Republicans have endorsed various proposals to split up the U.S. Court of Appeals for the Ninth Circuit
  • Crapo's bill, last introduced in 2021, would create a new Twelfth Circuit consisting of Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington.... The Ninth Circuit would be composed of California, Hawaii, Guam and the Northern Mariana Islands.

Tuesday, January 21, 2025

Motion in limine appeal?

 Today's appealability opinion from 4/3:

This case presents us with an unusual situation: an appellant appealing directly from an order on a motion in limine, and with published authority supporting the proposition that such an appeal is possible. We dismiss the appeal and publish this opinion to express our disagreement with that authority and our view that this type of order is properly reviewed only by writ petition or by appeal from the final judgment.
The MetNews' article is: Order on Admissibility of Expert Testimony by Attorney Is Nonappealable, C.A. Declares -- Fourth District’s Div. Three Rejects Reasoning in Contrary Decision Handed Down in 2004

Friday, January 17, 2025

Do-over motions

The latest issue of Verdict (the ASCDC magazine, 2024 vol. 2) has an article by H&L's Rebecca Powell titled Trying to Get it Right: Motions for Reconsideration, New Trial, and Other Do-Overs. In addition to motions for reconsideration and new trial, the article discusses appellate petitions for rehearing 

The mechanisms and strategy points in all do-overs vary depending on the context, but there are common threads: • Be clear that a mistake was made, but be aware of your tone; no one likes hearing that they made an error. • Highlight why the mistake you are challenging matters, rather than harping on immaterial errors. • Don’t just repeat what you have already argued; reframe the issues to explain why the court should want to fix its mistake. • If you are giving the court information it has never heard before, be prepared to justify why it was not raised earlier. • Show through tone and attitude that you are not being casual about the court’s limited time and resources, but that your position deserves a second look.

Law360 has Biden's Imprint On The Judiciary In 6 Charts