New CA 9th Circuit judge

The Recorder reports Jenner Partner Kenneth Lee Confirmed to Ninth Circuit Bench Over Calif. Senators' Objections

Appellate tidbits

• Supreme Court Justice Groban spoke to BASF last night in a program titled What to Expect from the Brown Court. In a panel discussion following his presentation, the consensus was that calling the Supremes "the Brown Court" is neither useful nor accurate.
• Justice Groban's keeping a busy speaking schedule.He will be keynoting the ABTL 46th Annual Seminar, The Transforming Business of Business Litigation (October 3-6) at La Quinta Resort.
• Just in time for Mothers Day: See Mother's Thoughts for the Day: Ten Character Lessons about SoCal appellate lawyer M.C. Sungaila's newly released book.
• AP has Federal judges have a way to make investigations disappear
• Yesterday's DJ had PJ's Gilbert's column, A Moral Dilemma.
• Tuesday's DJ was the first Tuesday of the month, and so featured Exceptionally Appealing. This month's installment, titled Abbreviated Justice, discussed memorandum opinions in California appellate practice. The online version of the article contains links to the following relevant rules, cases, and articles:

•  Ryers v. City of Los Angeles
•  Report of the Appellate Process Task Force
•  Proposed Local Rules
•  People v. Ciggs
•  Lerner v. 180 Properties LLC
•  In re K.C.
•  Florida 4th District Opinion
•  9th Circuit General Orders

1st Amended General Order re LASC e-filing

Be sure to review the First Amended General Order regarding e-filing in the L.A. Superior Court:
http://www.lacourt.org/division/efiling/pdf/GenOrdCivilEfiling.pdf

For a cute opening to a decision see here. (Can you guess who wrote it? Of course you can!)

CLA Appellate Summit 9/20/19

Save the Date! 2019 Litigation and Appellate Summit!

Friday, September 20, 2019, J.W. Marriott's L.A. Live

Join California Supreme Court Justice Leondra Kruger as the keynote luncheon speaker at the Litigation Section’s Third Annual Litigation and Appellate Summits. Presenters include federal and state jurists, top academics, and cutting-edge litigators and appellate specialists. Earn 7.0 CLE credits while enjoying a Friday in DTLA!

Why Are Law Clerks So White?

Today's Law360 has Why Are Law Clerks So White?, noting:

Justice Liu and researchers from the University of California at Berkeley, the American Bar Foundation and Northwestern University are setting out to conduct the first major study into judicial clerkship diversity. As the U.S. Supreme Court made history this term with a majority of female clerks, details about the gender and race of clerks in lower courts has remained unstudied, they say. Results of the new study are likely to be years away.

Formalism versus Realism

Today's DJ's Moskovitz on Appeals column is From legal formalist to legal realist, in which Myron explains his transition from a formalist into a realist. He now "looks for a theme of justice, based on the facts of the case and policy considerations." Here are some snippets from the article:

Judge Posner sums up "legal formalism" this way: "The character of legal formalism can be captured in such slogans as 'the law made me do it' or 'the law is its own thing'. The law as seen from the formalist perspective is a compendium of texts, like the Bible, and the task of the judge or other legal analyst is to discern and apply the internal logic of the compendium. He is an interpreter, indifferent or nearly so to the consequences of his interpretations in the real world. He is not responsible for those consequences; if they are untoward, the responsibility for altering them through a change in law falls to the 'political branches.'"

 "Legal realism" is "harder to describe," but he gives it a try anyway: "The realist places emphasis on the consequences of judicial rulings."

 At bottom, a judge is a judge. When a judge believes that a certain result is the fair one, he or she will often find a way to reach it. Of course, a lot goes into what is "fair." It involves more than a fair outcome for a particular party. Respect for trial judges and the Legislature come into play too. But when a balance of all those interests adds up to some particular desired result, an appellate judge might bend the words of a statute a bit or reinterpret some dicta to justify that result. As Posner might say, pragmatism usually trumps formalism.

Chief Justice Appoints New Members to Judicial Council

Chief Justice Appoints New Members to Judicial Council

The Chief Justice Tani G. Cantil-Sakauye has appointed three new advisory (nonvoting) members to the Judicial Council and reappointed four members to voting positions. Of appellate note:

• Associate Justice Marsha G. Slough, Fourth Appellate District, will be elevated to a voting position through September 14, 2022. Before her appointment to the appellate court in 2016, Justice Slough was on the bench in San Bernardino County, where she had spent time as that court’s presiding judge, assistant presiding judge, and presiding judge of its juvenile court. Justice Slough currently serves as an advisory member of the council and chairs its Technology Committee.

• Associate Justice Carin T. Fujisaki, First Appellate District, will serve in an advisory position through September 14, 2020. Before her 2018 appointment to the First Appellate District, Division Three, Justice Fujisaki spent 28 years with the California Supreme Court, including as the principal attorney to the Chief Justice. In that capacity, Justice Fujisaki provided advice and counsel to the Chief Justice in her administration of the judicial branch.

When should names not be used in opinions?

Today's MetNews Perspectives Column offers 'Secretization' Continues: Court of Appeal Extends Anonymity to Drunk Driver, which asserts:

It’s getting out of hand.

Justices of courts of appeal are becoming so obsessed with carrying out their perceived duty to safeguard the sensibilities of adult parties who litigate in the courts that, increasingly, they are according them anonymity—sometimes without any request for it—often under circumstances where it’s senseless.

...

The “secretization” of court proceedings ... is a trend—an obnoxious judicial fad. It’s in derogation, in my view, of the public’s right to know what’s going on in the public’s courts, which includes who is doing what in those forums.

Supreme Court Appoints Members to Committee on Judicial Ethics Opinions 

The California Supreme Court today announced the reappointment of two current members and the appointment of a new member to fill a vacancy on the Supreme Court Committee on Judicial Ethics Opinions (CJEO), an independent committee that helps inform the judiciary and the public on judicial ethics topics.
Judge Erica R. Yew of the Santa Clara Superior Court was appointed to fill a vacancy on the committee and will serve a four-year term starting May 1.
Justice Marla J. Miller of the First District Court of Appeal and Judge Curtis E.A. Karnow of the San Francisco Superior Court were both reappointed to serve four-year terms, which began Jan. 1. 

The Supreme Court appoints appellate justices, trial court judges, and commissioners to the 12-member committee. The currently appointed CJEO members are: Justice Ronald B. Robie of the Court of Appeal, Third Appellate District (chair); Justice Douglas P. Miller of the Court of Appeal, Fourth Appellate District, Division Two (vice-chair); Justice Judith L. Haller of the Court of Appeal, Fourth Appellate District, Division One; Justice Marla J. Miller of the Court of Appeal, First Appellate District, Division Two; Judge Kenneth K. So of the Superior Court of San Diego County; Judge Michael T. Garcia (Ret.) of the Superior Court of Sacramento County; Judge George J. Abdallah, Jr. of the Superior Court of San Joaquin County; Judge Robert J. Trentacosta of the Superior Court of San Diego County; Judge Curtis E.A. Karnow of the Superior Court of San Francisco County; Judge Samantha P. Jessnerof the Superior Court of Los Angeles County; Judge Erica R. Yew of the Superior Court of Santa Clara County; and Commissioner Belinda Handy of the Superior Court of Riverside County.

Legal Writing Pet Peeves

Happy Law Day!

Law360 offers The Legal Writing Habit Judges Say They Can't Stand.

In recent interviews with Law360, judges and justices revealed their biggest pet peeves when it comes to legal writing. One common refrain came up again and again: The writing they see is too often overly complicated, filled with jargon, and makes use of unnecessarily long or antiquated words.
Writing clearly is always the goal and that’s extremely hard. It takes a lot of work and is ultimately more art than science.

PJ Gilbert will present light-hearted remarks at the 31st annual Half-Norwegian (on the Mother's Side) American Bar Association dinner, on May 14. Details here.

Bloomberg reports Trump Likely to Hit 100th Judicial Appointment This Week -- Trump appointments so far include 37 circuit judges and two Supreme Court justices

The latest issue of Verdict magazine has Federal Court Practice Tips (at p. 32) by H&L' s Peder Batalden, which focuses on this year's new FRAP and 9th Circuit practices:
--"The hoary term 'supersedeas' has been eradicated" and that FRCP 62 has been revamped to acknowledge security other than bonds. Also, the automatic stay of enforcement on entry of judgment is now 30 days (instead of the old 14 days).
--There are two dozen new 9th Circuit forms, including a form for extensions of time.
--Under revised 9th Cir. Rule 25-5(f), filings by ECF usually no longer need a certificate of service.

And see Justice Stevens, in New Essay, Laments Washington's Partisanship

Your Bar fees are at stake!

Be sure to check out the State Auditor's review of the Bar's proposed fee increases!

Here's the cover letter:

This report concludes that State Bar should balance its need for fee increases with other actions to raise revenue and decrease costs. We evaluated State Bar’s proposed fee increases and determined that the amounts were higher than necessary for 2020. State Bar’s proposal would increase active attorneys’ mandatory fees from $383 in 2019 to $813 in 2020. However, we found costs that could be reduced or delayed and recommend total annual fees in 2020 of $525 for each active licensee instead. For example, State Bar included in its calculations a plan to hire 58 new staff members to reduce its backlog of cases involving attorney misconduct. However, certain changes State Bar implemented from 2017 through early 2019 to improve its discipline process may decrease the number of employees it needs. Thus, we recommend an initial increase of only 19 new staff members in 2020. We also recommend reductions to the fee amounts proposed by State Bar to fund specific programs and projects, such as capital improvements and information technology projects, because some projects and improvements are unnecessary at this time or too early in the planning phase to justify immediate funding.

Furthermore, to potentially offset future fee increases, we found that State Bar could increase the revenue it receives from leasing space in the building it owns in San Francisco. State Bar should also continue to implement performance measures that have the potential to increase efficiency and decrease costs. Finally, we recommend that the Legislature adopt a multiyear fee-approval cycle that will allow State Bar to better engage in its own fiscal planning and still maintain the Legislature’s necessary oversight. Specifically, we suggest a three-year fee-approval cycle that includes fee reviews and a fee cap. As part of a fee review, State Bar would need to demonstrate that it is performing its key functions effectively and justify any proposed fee increases.
Respectfully submitted,
ELAINE M. HOWLE, CPA
California State Auditor 

2d DCA pro tem update

The following are currently sitting on assignment:

·  Judge Colin P. Leis of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until May 31, 2019

·  Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until June 30, 2019

·  Judge Allan J. Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until June 30, 2019

·  Judge Serena R. Murillo of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2019

·  Judge Ann I. Jones of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until June 30, 2019

·  Judge Kim Garlin Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until June 30, 2019

·  Judge Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2019

·  Judge Rashida A. Adams of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until June 30, 2019 

Is a hot bench a bad thing?

See Law360's High Court's 'Hot Bench' Approach Comes With Risks.
Also of tangential interest, this blog post from issues facing the 3d Circuit.
And see Paul Weiss Expands New SCOTUS Practice as More Follow Shanmugam From Williams & Connolly

You are invited!

An invitation from the Chair of the LA County Bar Appellate Courts Section:

If you are reading this blog, you are clearly an appellate nerd.

If you are not a member of LACBA’s Appellate Courts Section (ACS), you are clearly missing out.

ACS is one of the largest and oldest professional associations of appellate lawyers in the country.  The most obvious benefit of membership is regular CLE programs taught by sitting justices, appellate research attorneys and top appellate attorneys in town on the most pressing and relevant topics.

Perhaps a less obvious benefit but equally important is that you are joining a community of lawyers  who at times will serve as your mentor, and at others refer cases to you or partner with you on a case. As appellate attorneys, our primary source of referrals is other lawyers.

The community you will join includes the rare breed of lawyers who seek to promote the highest standards of our profession. Our members regularly serve as pro bono counsel in cases identified by the Appellate Self-Help Clinic at the Second Appellate Court of Appeal and volunteer to teach high school students about our system of government through the ACE program. As a trusted and valued voice on appellate matters, we also regularly provide feedback on proposed revisions to legislation, court rules and practices at the state and federal level with the aim of promoting the fair and efficient working of our judicial system.

I invite you to learn more about us. Come as my guest for our final program before we start our summer break on May 28, 2019, 4:30-6 p.m. at Manatt, Phelps & Phillips, 11355 West Olymic Blvd., Los Angeles:  Justice Martin Tangeman and Appellate Attorney Katy Graham from the Second Appellate District Court of Appeal will speak about effective appellate brief writing techniques. (Send me an email if you are interested.)

Hope to see you at a future event.

Sarvenaz “Naz” Bahar

Chair, Appellate Courts Section

sb@baharlaw.com

"Justice Ming Chin by the numbers"

Cal Supreme Court StatMaster Kirk Jenkins is back with a new series of monthly columns: analytics-driven profiles of each Supreme (by seniority). Today's DJ features Justice Ming Chin by the numbers. What does an "analytics-driven profile" look like? Well, it starts out like this:

• Justice Chin has voted in 937 civil cases and 1,289 criminal, quasi-criminal, juvenile, disciplinary and mental health cases. He has written majority opinions in 129 civil cases -- 13.77 percent of the total number of cases he has participated in. His busiest year was 1997, when he wrote 10 majority opinions. His lightest year -- including his partial year in 1996 -- was 2014, when he wrote only one majority. Justice Chin has written 223 majority opinions in criminal cases, or 17.3 percent of the total. His busiest year was 2002, when he wrote 16 majority opinions in criminal cases. His lightest years -- leaving aside his partial years in 1996 and 2019 -- were 1998 and 2017, when he wrote majority opinions in five criminal cases.

And it ends like this:

• The data shows that throughout his 23-year career, Justice Chin has been one of the votes to watch on the California Supreme Court: Regardless of whether the ultimate outcome was arguably "conservative" or "liberal," Justice Chin is nearly always with the majority. Justice Chin appears, at least in civil cases, to file dissenting opinions strategically, when flipping a single vote will reverse the result of the case. Throughout his tenure, Justice Chin has voted fairly consistently with his conservative colleagues.

2d DCA pro tem update

The following are currently sitting on assignment:

• Judge Colin P. Leis of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until May 31, 2019
• Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until June 30, 2019
• Judge Allan J. Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until April 30, 2019
• Judge Serena R. Murillo of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2019
• Judge Ann I. Jones of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until June 30, 2019
• Judge Kim Garlin Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until April 30, 2019
• Judge Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2019
• Judge Rashida A. Adams of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until June 30, 2019

The Traynor lives on!

The 50th Annual Roger J. Traynor Appellate Moot Court Competition took place at John F. Kennedy University College of Law on April 6 and 7, 2019. The Traynor is a nationally recognized appellate competition for California law schools. The hallmarks of the competition are the use of an actual case from the California Court of Appeal, equal emphasis on brief writing and oral argument, and judging by appellate practitioners, trial judges, and justices of the appellate courts.

This year’s problem involved the question of whether police may obtain a warrantless blood sample from an unconscious suspect. The issue posed is currently pending before the California Supreme Court and was argued on April 23 in the United States Supreme Court. 

Ten teams from law schools throughout California submitted briefs and faced off in oral arguments on the first day of the event. The two teams with the best combined scores from briefs and oral arguments competed in the final round. This year’s final consisted of Empire College of Law against U.C. Berkeley. Justice Ignacio Ruvolo (Ret.), Justice Alison Tucher, and Judge Helen Williams presided over the final round and chose Berkeley as this year’s winner of the Roger J. Traynor Award.

Other awards included Best Brief, U.C. Berkeley (with Empire in second place), Excellence in Appellate Advocacy, U.C. Berkeley (with Empire in second place), and Best Individual Oralist Chantelle Stewart of Trinity Law School. Individual Merit Awards for oral argument also went to Emily Pincin of Loyola Law School, Samantha Williamson of San Joaquin College of Law, Bryan Delgado of McGeorge School of Law, and Eric Smith of Empire.

In 2018, it was announced that previous long-term corporate sponsorship of the Traynor was ending and it appeared that the 49th Traynor was doomed to be the last. With the help of attorney David Glassman and the hospitality and support of Dean Barbieri and the JFK College of Law, attorney Miriam Billington stepped in as administrator to ensure that “Traynor 50” would not only succeed but mark the start of a new half-century of this respected tradition.

Costs were kept low but the event cannot run on registration fees alone. This year, the entrance fee was $200, less than half of the typical registration cost for a comparable moot court competition. Several donors pledged their support and more are sought—if you, your firm, or company would like to underwrite any aspect of Traynor 2020, or have one of the awards named for you, please contact info@traynormoot.org. 

Teams are encouraged to indicate interest in competing in next year’s Traynor by July 1. Enrollment is limited so contact Miriam Billington at info@traynormoot.org as soon as possible to reserve a spot.

Pictured at the 2019 Traynor after Sunday's final argument on April 7 at JFK Law School in Pleasant Hill.

Back row: Judges for the final round were Hon. Helen E. Williams, Justice Alison M. Tucher, and Justice Igancio J. Ruvolo (Ret.) 

Front row: Empire Law School's team (Natalie Albanna, Eric Smith, and Richard Horrell), took second place in the final; 

Chantelle Stewart of Trinity Law School was named Best Oralist, 

and the team from UC Berkeley, comprised of Sebastien Wadier and Jenna Zhang, won the final argument, taking the 2019 Traynor Award.

Photo Credit: Ben Glassman

CLA seeks nominees for the ALHoF

Appellate Lawyer Hall of Fame

The Committee on Appellate Courts seeks nominations for its 2019 Appellate Lawyer Hall of Fame Award. This award is bestowed upon attorneys who have excelled as appellate lawyers and whose careers exemplify the highest of values and professional attainment. To read about the Inaugural Appellate Lawyer Hall of Fame award recipient, Ellis J. Horvitz, click here.

Deadline -- By 11 PM on Monday, May 20, 2019, please email all nomination materials with “ALHOF 2019” in the subject line to john.boxberger@calawyers.org.

Eligibility -- Any dues-paid member of the California Lawyers Association may nominate a member of the State Bar of California (either currently active or, if retired, previously active). Self-nominations are not accepted.

For information on the Appellate Lawyer Hall of Fame, click here.

Bedsworth: Evolution Is a Crock

In this month's column in The Recorder, Evolution is a Crock, Beds once again makes a devastatingly strong case that humanity is idiotic.

N.B. ax impaled on car roof.
{P.S. "N.B." does not mean "North Bound."}

Cake story here

Want more Beds (and who doesn't?)? Then enjoy this penultimate paragraph today here:

In its brief, the City has asserted that it is entitled to judgment based on design immunity. The jury did not reach the portion of the special verdict relating to design immunity. There is, therefore, nothing for us to review. Making a ruling on this subject in our court would be the equivalent of granting a motion for summary judgment or directing a verdict in the City’s favor. Neither is part of our job description.