No Justification?

Welcome back to Questions and SCANswers. Today's mailbag brings this cry of outrage:

Dear SCAN, I see that the CRCs were changed to command left-alignment. But why are we no longer allowed to use full justification? I've been reading and writing fully justified text my entire life (books, newspapers, magazines) and find left-alignment difficult to read ... and also ugly. Signed, WTJ (What's The Justification?!)

SCANswer: WTJ is right that Rule 8.74(b)(4) (effective Jan. 1, 2020) provides: "Alignment: Paragraphs must be left-aligned, not justified." WTJ is also right that most of what we read--including legal reporters--is fully justified. So is WTJ justified to come out guns ablazing?

Here's what typography guru Matthew Butterick has to say in Typography for Lawyers: "If you're using justified text, you must also turn on Hyphenation to prevent gruesomely large spaces between words." He continues, "If I have to use a word processor for a project, I almost never justify text. Why not? Justification if actually a rather sophisticated mathematical process. The justification engine in a word processor is simplistic compared to that of a professional page-layout program. Word-processor justification can often look clunky and coarse. Left-aligning is more reliable." Butterick concludes: "the choice is yours." Well, not in California anymore!

Of course, if you choose to fully justify a brief, it's not likely to get bounced. But it's wiser to follow the rules. Also, some studies show that it's easier or faster to read non-fully-justified text. But there are studies concluding precisely the opposite. Finally, ugly is a matter of taste, and tastes can evolve. Over time, WTJ, you may get used to ragged left-margins and come to appreciate their wild beauty.

Also of note in the ABA Journal: Law student using American Sign Language wins 4th Circuit appeal

a University of Virginia School of Law student who is deaf, recently argued a federal excessive force appeal through the school’s appellate clinic, and three American Sign Language interpreters were also involved in the process.

Law.com has ‘Norm of Silence’ Erodes Amid Post-#MeToo Reforms for Judicial Clerks Facing Harassment, NYU Panelists Say (the panelists included 9th Cir. Judge McKeown).

Here's a great first line today from Beds (of course!):

"It is well known that in comedy and romance, timing is everything. It turns out that timing is similarly critical when it comes to a violation of the Fair Employment and Housing Act (FEHA)."

Back to court in New York?

First Dept., 27 Madison Avenue, NYC

Starting April 20, in NY's First Department (officially, the Appellate Division of the Supreme Court, First Judicial Department), the court is planning to resume in-person oral arguments on Wednesdays and remotely on other days. Attorneys and pro pers are allowed to state their preference for in-person or remote argument (no guarantees). "The return to in-person oral arguments in contingent on the continual decrease in infection rates in New York City and increase in the availability of COVID-19 vaccines."

Odds & Ends

• 
  Rutter's Employment Litigation 2021 program (March 8-12) will feature a keynote conversation between Cal Supreme Court Justice Ming Chin (ret.) and Justice Marty Jenkins. The program chair is Justice Wiseman (ret.) and other speakers will include Justices Edmon and Jackson. Oh, and
  Dean Chemersinky is also speaking. That's pretty appellatey!

• We know from Auto Equity Sales that "Decisions of every division of the District Courts of Appeal are binding upon all the ... superior courts of the state." But is a summary denial of a petition for writ of supersedeas such a "decision"? This published opinion from 2/6 tees up that question, but doesn't seem to really answer it.

• On the appellate sanctions front, see Sixth Circuit Orders Attorney Who Sued Judges to Show Cause or Face Sanctions on The Volokh Conspiracy. We often wonder, what will push an appellate court over the hurdle of imposing sanctions? In the Sixth Circuit, it appears that suing state appellate judges in federal court does the trick. Judges understandably don't like to see their robed kin being attacked.

Who cares about the Yellowbook?

Welcome to Questions & SCANswers! (As a reminder: If you have a question, please send it in; ditto if you have something to add to a SCANswer.)

Dear SCAN: What's the real deal with the Yellowbook? Most lawyers seem to use the Bluebook, so should I use that? Signed Colorblind.

SCANswer: California Rules of Court rule 1.200 (effective Jan. 1, 2008) on Format of Citations orders that all citations in court documents follow either the California Style Manual (the Yellowbook) or The Bluebook: A Uniform System of Citation. So lawyers can choose which style to use. Because law schools all teach the Bluebook, that's what every lawyer learns, and that's what's used in federal court. Thus, there's a natural inclination is to simply use that. And the Rules allow that.

But California's courts are supposed to use the Yellowbook. That's the format used by the State Reporter of Decisions, and thus that's what appears in the reporters (Cal. and Cal.App.). It's also, therefore, the style used by appellate justices (and their research attorneys) in drafting decisions. The Yellowbook was first published in 1942 by Bernie Witkin (who was the Reporter of Decisions then). The "current" edition (from 2000) is the 4th edition. (An online copy of the Yellowbook is available free here, thanks to the Sixth District Appellate Program.) In June 2017, a contract was signed with LexisNexis making that company the official publisher of California's legal reporters, and this contract included a provision for  a much needed 5th edition. (If you have news about the status of that contract or the 5th edition, please share it.)

The Bluebook and Yellowbook are obviously different. (Comparison chart here.) To answer the question, "which should you use," consider that your audience uses the Yellowbook. Using the Bluebook in California courts is like speaking with an accent: it's ok, you'll be understandable, but you won't sound fluent to your reader. Using the Yellowbook says, "I know you have to cite this way; I speak your language too!" Also consider that using the style the court must use makes it easier for the decision drafter to copy precisely what you've written--which is the goal of a winning brief.

Is the Yellowbook annoying? You bet. (But so is the Bluebook!!) Does it increase word count for no good reason? Yes, it does. As a result, many lawyers use a modified Yellowbook (dropping many of its infuriating requirements, like supra, infra, p., pp., etc.). Briefs that do not slavishly follow every detail of citation style (Blue or Yellow) are filed everyday. Choose wisely.

So who cares about the Yellowbook? Well, if you litigate in California, especially if you file appellate briefs, you should care about the Yellowbook.

Justice Breyer presiding

Oyez! Oyez! Oyez! The Supreme Court of Sicily is now in session—VIRTUALLY! Shakespeare’s The Winter’s Tale has more royal scandals than four seasons of The Crown: accusations of adultery, jealous spouses, feigned deaths, a potential war with former allies, a hungry bear, and a statue brought to life. Focusing on the royal rift between King Leontes and Queen Hermione of Sicily, this year’s Mock Trial finds the Queen’s frenemy Paulina paying out of pocket after keeping the monarchs separated for sixteen years. Adopting an appellate-court format, Paulina will appeal the decision of the court, claiming piety for Apollo caused her to imprison the Queen and offer her alternative facts about the state of the royal marriage. (SCOTUS Justice Stephen Breyer, presiding!)

More info & tickets available here (free for students).

SCOTUS cleans up!

LASC Judge Ashfaq Chowdhury has a piece in today's DJ titled So fresh, so clean: If you don't spend a lot of time on #appellatetwitter, you may have missed a recent momentous event in citation history.

The lawyers and judges who get excited about these kinds of things were all, uh, atwitter on February 25 when the U.S. Supreme Court released its opinion in Brownback v. King, 2021 DJDAR 1792 (Feb. 25, 2021). This was the portion of the opinion that caused all the fuss:

"The Court has explained that the judgment bar was drafted against the backdrop doctrine of res judicata. ... To 'trigge[r] the doctrine of res judicata or claim preclusion' a judgment must be 'on the merits.' Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 502 (2001). Under that doctrine as it existed in 1946, a judgment is 'on the merits' if the underlying decision 'actually passes directly on the substance of a particular claim before the court.' Id. at 501-502 (cleaned up)." (Citation omitted; emphasis added.)

You read that correctly. The last parenthetical in that paragraph was in fact "(cleaned up)." That was not a mistake or something left over from a clerk's draft. The (cleaned up) parenthetical is a novel citational form, used here for the first time by the U.S. Supreme Court; it's meant to signal that internal citations, ellipses, alterations and/or quotation marks have been omitted from the quoted material, but that the substance hasn't been changed by the writer. In essence, (cleaned up) means the meat of the quote has been faithfully conveyed -- and spares the reader the boring details. Think of it as a sort of Marie Kondo approach to citation: Do long, turgid citations spark joy?

The push among #appellatetwitter and elsewhere among appellate practitioners for the adoption of (cleaned up) has been gathering steam since appellate practitioner Jack Metzler first proposed the new parenthetical in 2017 on Twitter. He later published an article outlining how such a parenthetical could be used, and the potential benefits of its adoption. See Jack Metzler, "Cleaning Up Quotations, 18 J. App. Prac. & Process 143, 154-55 (2017). 

He concludes: The Bluebook has not yet adopted the new rule Metzler proposed in his 2017 article, but it does appear that a critical mass of legal writers has spoken. You, too, can now join the movement. Let's clean up these citations.

Today's Recorder On Appeals column is by Johanna Schiavoni and is titled Incivility Is Killing Your Argument. It starts off like this:

Hyperbole. Invective. Ad hominem attacks on the trial judge, opposing counsel, or opposing parties. What do each of these things have in common in legal writing? They are not persuasive. And they’re killing your argument.

DJ profiles 1/1's Justice Sanchez

Today's DJ profile is Responsive Reasoning: Justice Gabriel Sanchez adjusts his tentatives after oral argument.

• 
  Since he took the bench in Division One of the 1st District Court of Appeal in 2018, Justice Gabriel P. Sanchez said some of the most challenging cases he's heard have come in the context of juvenile dependency law. Sanchez had no prior experience in the area, having previously been Gov. Jerry Brown's deputy legal affairs secretary on criminal justice issues and, before that, a deputy attorney general and an associate at Munger, Tolles & Olson LLP. Also, he said in a recent interview over Zoom, the work is "heartbreaking."
  
• Sanchez, who ... grew up visiting his father in Mexico, attended Yale University, graduating with a double major in political science and international studies in 1998; received a Fulbright Scholarship to study in Argentina for a year; and earned a master's degree in European studies from the University of Cambridge. Then, he went to Yale Law School.
• When he graduated, Sanchez clerked for 9th U.S. Circuit Court of Appeals Justice Richard A. Paez. In 2006, he joined Munger Tolles, where he worked on complex civil litigation.
• Division 1 Presiding Justice Jim Humes, who worked with Sanchez in the governor's office for a time [said]: "The Court of Appeal should be filled with people who have trial experience and people who do not," he said. "Gabe is a great example of that. He's had a bird's eye view of how the sausage is made in Sacramento, and that can be very helpful."
• Attorneys who appear before Sanchez said the justice's opinions stand out in part because they acknowledge -- and substantively respond to -- points made during oral argument. ... Sanchez said he views oral argument as a chance "to test my own views against those of counsel and see if they can help either strengthen my opinion or other opinions or expose some weakness that we can address."

Books of SCOTUScular note

The NLJ's Supreme Court Brief has noted some interesting books recently:

Ginsburg's Final Project: 'Justice, Justice, Thou Shalt Prevail'
Three weeks before Ruth Bader Ginsburg died, the justice and her former clerk and co-author Amanda Tyler submitted the final manuscript of a book that few realized would encapsulate the justice’s final thoughts and words on her life and legacy in the law. The book, “Justice, Justice, Thou Shalt Prevail,” will be published March 16, a day after what would have been Ginsburg’s 88th birthday. Its publication actually has more to do with Ginsburg’s 50-year friendship with the late Herma Hill Kay, a former dean of the University of California Berkeley School of Law than her own desire for a book about herself, said Tyler who teaches at UC Berkeley.

BHBA is hosting a free program with Prof. Tyler on March 23 at 5 p.m. Sign up here.

A New Book on Law Clerks, With a Twist
Todd Peppers, public affairs professor at Roanoke College and visiting law professor at Washington and Lee School of Law, is the ranking scholar on Supreme Court law clerks, having written or co-edited three books on the subject, titled “Courtiers of the Marble Palace,” “Of Courtiers & Kings,” and “In Chambers.” He has branched out a bit with his latest and fourth book, “Of Courtiers and Princes,” which comprises essays by law clerks who served lower federal court judges and some state court judges as well. But law clerks at lower levels sometimes make their way up the ladder, so anecdotes in the book and how Peppers gleaned information have a Supreme Court angle.

Delay debate

Jon Eisenberg has a letter to the DJ editor today--responding to Moskovitz's article yesterday--captioned as Delays are far longer than need to 'get it right':

My complaint to the Commission on Judicial Performance, however, focuses on appeals where a few justices of the 3rd District have inarguably taken far longer than the time needed to get it right. The latest example is People v. Sanders, C083382 (Murray, J.), filed Feb. 26, 2021, which languished for three years and eight months from the date it became fully briefed until submission for decision.

Also today's Exceptionally Appealing column is The other 3R's: reversed, remanded, reassigned, about when appellate courts remand cases to be reassigned to a different judge.

 

CA Judicial Demographic Data

The 2021 JO Demographic Data is now available. See Demographic Data on Gender, Race/Ethnicity, Sexual Orientation, Gender Identity, and Veteran and Disability Status of California State Justices and Judges.

Government Code section 12011.5(n) requires the Judicial Council of California to collect and release aggregate demographic data relative to the gender, race/ethnicity, sexual orientation, gender identity, and veteran and disability status of California state court justices and judges, by specific jurisdiction each calendar year. The Governor and the Commission on Judicial Nominees Evaluations (JNE Commission) of the State Bar of California are required to collect and release similar information for judicial applicants.

In accordance with the requirements of Government Code section 12011.5(n), the Judicial Council has collected data pertaining to the demographic categories described above and prepared separate charts showing:

1. the overall gender, race/ethnicity, sexual orientation, and gender identity of responding justices and judges in the Supreme Court, Courts of Appeal, and trial courts;
2. the gender of these justices and judges by jurisdiction—for the Supreme Court, Courts of Appeal by district, and trial courts by county;
3. the race/ethnicity of responding justices and judges by jurisdiction;
4. the specific race/ethnicity reported by those justices and judges who indicated that they consider themselves to be of more than one race/ethnicity;
5. the sexual orientation and gender identity of responding justices and judges by jurisdiction;
6. the veteran and disability status of responding justices and judges by jurisdiction; and
7. comparisons of the current overall data pertaining to gender and race/ethnicity to findings from previous years, beginning in 2007.

Increasing the diversity of California's judicial officers to reflect the rich diversity of California's populace continues to be an important goal of the Judicial Council of California.

99 Court of Appeal Justices provided data: 39 female, 60 male; 5 Asian, 10 Black, 6 Hispanic, 4 "more than one race," 2 "some other race only" and 72 "white only." 2 lesbian, 1 gay, 77 heterosexual. The charts provide further breakdown by district.

See Survey Results: California Bench Growing More Diverse

[Update: 3/2 Today's DJ has State Judiciary Diversity Increased in Past 14 Years <noting that there are now 6 open Court of Appeal seats>; The Recorder has California's Judicial Diversity Numbers Stay Flat in Newsom's 2nd Year; Bloomberg Law has California Benches Increasingly Filled with Women, Judges of Color]

More on delay and remotely wrong appearances

Today's DJ has Moskovitz on Appeals in On Justice Delayed, about the recent complaint filed against certain 3d District justices. His take? He's "concerned that by focusing on delay, we might shortchange the ultimate goal of an appeal, a just decision." "Sometimes -- not often, but not rare either -- appellate courts seem to be rushing to judgment, without doing the work needed to get it right." "what we see at oral argument sometimes reveals something about their work habits. Occasionally -- and I stress this: only occasionally -- it's clear to everyone in the courtroom that one or more of the judges are unprepared." His conclusion: "I share Jon's concern about how long it takes our appellate courts to decide cases -- and I admire his courage in speaking out about this issue, all by his lonesome. But I think I speak for most attorneys when I say, "Take the time you need to get it right. Slow justice is better than quick injustice.""

Today's DJ also has PJ Gilberts Under Submission column, Expedition vs. Excellence, about opinion writing and "picayune" phrasing peeves.

If one important issue decides the case, there is no need to answer every other issue raised. This is not a rule that should apply to all cases. On occasion, judicial opinions may require a historical and statutory analysis. But in general, an extended discussion is best left to the law professors.

Court of Appeal and Supreme Court justices are by definition professional writers. They all have their individual styles, but it is helpful to examine how the opinions of the mostly undisputed outstanding jurists of the past crafted their opinions. Whether you agree with the results or not, the opinions of Holmes, Cardozo and Traynor, to name a few, are mostly short and concise. 

As for remotely inappropriate court appearances, we've seen lawyers and clients appear for court in bed, shirtless, poolside, inside cars, closets, and garages. But this takes the cake: appearing from the OR? See Court: Doctor, Please Don’t Operate on Patients During This Zoom Trial.

[3/2 update: the DJ has Doctor performing surgery in Zoom court raises questions about decorum.]

Relatedly, Law360 has Fed. Circ. Judge Tells Attys Not To Slack Off On Remote Args in which "Federal Circuit Judge Raymond Chen on Friday said he's concerned some attorneys aren't taking remote oral arguments in front of the court as seriously as in-person hearings and urged them to grant the proceedings the same degree of gravitas."

Bloomberg's article is Make It Pithy and Other Lawyer Tips From a Federal Circuit Judge

• Using an analogy for your case at oral argument can help make it memorable and might even sway the judges in your favor, Federal Circuit Judge Raymond T. Chen said at an event on Friday.
• Each judge of the U.S. Court of Appeals for the Federal Circuit has about 15 or 16 cases to prepare for before a given court week, many of them on complicated patent issues.
• “If you can, distill your case down to some pithy, catchy analogy that helps me remember your case,” Chen suggested to practitioners. “And if you frame it right, you might actually induce me to think about the case in a way that’s favorable to you.”

Judge Bea Oral History posted

The Ninth Judicial Circuit Historical Society has released the Oral History of Ninth Circuit Judge Carlos Bea, whom the Daily Journal once called “the most interesting man on the Ninth Circuit.” Historical Society Oral Histories are an official record of the lives and times of the judges who spend their careers serving the American public and ensuring the rule of law through the nation’s judicial system. The in-depth interview was conducted by California Appellate Law Group chairman Ben Feuer, who clerked for him. You can read the transcript of the entire interview by clicking here.

Also of federal note: The Sixth Circuit has "secured new dates for [its] 2021 Sixth Circuit Judicial Conference which will not take place on December 15-17, 2021, at the Hilton Downtown Cleveland Hotel in Cleveland, Ohio." Let's hope that this--and many other appellate conferences--will actually take place this year!

Citing unpubs for damages awards?

We know we're not allowed to cite to unpublished Court of Appeal decisions. But what about citing to such cases simply to show ranges of damages in other similar cases (i.e., for factual comparison, not law)? Here's an unpub'd decision that seems to show that's ok:

Defendants point to several cases where the noneconomic damages award was substantially less than the $4 million award in this case; plaintiff cites cases where the award was substantially more (e.g., Cobb v. Cty. of L.A. (2019) 2019 Cal.App.Unpub.LEXIS 3084, *3-*6 [award of $9.8 million for past and future noneconomic damages due to crushed foot and leg]). If anything, this exercise in comparison confirms that the award in this case is within—and not beyond—the pale.

 

Appealability History Lesson

 2/5's Justice Kim gives us a little history lesson in dismissing this appeal:

Plaintiff contends that we should consider the merits of her appeal notwithstanding the absence of a signed dismissal order, citing Simmons v. Superior Court (1959) 52 Cal.2d 373 (Simmons). We disagree. Simmons is distinguishable as it does not discuss Code of Civil Procedure section 581d. Moreover, at the time Simmons was decided, the applicable version of Code of Civil Procedure section 581d did not require that a dismissal order be signed by the trial court for it to be considered an appealable judgment. (Compare Stats. 1959, ch. 346, p. 2269, § 1 [“All dismissals ordered by the court shall be entered upon the minutes thereof . . . and such orders when so entered or filed shall constitute judgments and be effective for all purposes”], with Stats. 1963, ch. 875, p. 2123, § 1 [“All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action . . . and such orders when so filed shall constitute judgments and be effective for all purposes”].)

 

Yesterday's Congressional Hearing

The DJ reports on yesterday's Congressional hearing (before the House Subcommittee on Courts, Intellectual Property, and the Internet) about the federal courts in Federal judges from 2 California districts ask for more judgeships. The hearing was titled "The Need for New Lower Court Judgeships, 30 Years in the Making."

• Congress decades ago abandoned its long-standing policy of regularly expanding the federal courts to match population growth. The results have been especially noticeable in fast-growing western and southern states, from California to Georgia and North Carolina.
• Chief Judge Kimberly J. Mueller of the U.S. Eastern District of California and Senior Judge Larry A. Burns of the U.S. Southern District of California, each testified that their courts need several new judges. The Eastern District also has two vacancies, while the Southern District has five.
• “We need at least five new judges, and we have the infrastructure to house them and their staff,” Mueller said. “We urgently ask your help to meet the needs of the public we serve.”
• Mueller compared her court’s predicament to the speedy conveyor belt in the famous chocolate factory scene in “I Love Lucy.” The court has had just six judgeships since 1978, when the district’s population was half what it is today. She said partly because of the two vacancies, the district’s caseload is effectively almost three times the national average. The result is that the court ranks 93rd out of 94 federal districts in its time to close cases.
• While the hearing was mainly about the district courts, it almost inevitably turned into a debate over the 9th U.S. Circuit Court of Appeals. Republican members have long criticized what they see as the court’s liberal bent and have often proposed splitting it in two.
• Vanderbilt Law School professor Brian T. Fitzpatrick testified the Supreme Court has reversed the 9th Circuit more than other courts. He endorsed splitting the circuit, with Southern California being placed into a new circuit while other Western states and Northern California share a circuit with Oregon and Washington.
• California Rep. Ted Lieu, who clerked on the 9th Circuit for Judge Thomas Tang, said he’s open to splitting the circuit. But he also accused Fitzpatrick of cherry-picking his data.
  

  “Since 2005, the 9th Circuit has never been highest in terms of being overturned by the Supreme Court,” Lieu said. “Mr. Fitzpatrick is misleading us.”
  

Bloomberg Law's story is U.S. Courts Request More Money, New Judgeships from Congress; Law.com has 'An Erosion of Trust': Describing a Widespread Crisis, Federal Judges Push Congress to Expand Their Courts; Law360 has Reps. Want To Add Lower Court Judges, But Divided On How

Dj profiles 1/3's Justice Fujisaki

Today's DJ profile is Inside Insight: Appellate Justice Carin Fujisaki worked at the State Supreme Court for nearly 30 years.

• Fujisaki grew up in Los Angeles. Her mother worked at the RAND Corp. and her father, Hiroshi Fujisaki, was a deputy public defender and later Los Angeles County Superior Court judge best known for presiding over the wrongful death lawsuit against O.J. Simpson.
• Fujisaki's parents and grandparents had been swept up in one of the United States' most infamous and overt periods of discrimination: All were among the approximately 120,000 Japanese Americans incarcerated in concentration camps set up by the government during World War II.
• As a young attorney, Carin T. Fujisaki was drawn to the work of the judiciary. Her first job out of law school was in the civil law and motion department at the San Francisco County Superior Court. After a few years as a litigation associate at the law firm Howard Rice, she moved to the California Supreme Court and didn't leave for almost three decades.
• Fujisaki worked on the court's Civil Central Staff, in the chambers of now retired Justice Marvin R. Baxter, and as principal attorney to Chief Justice Tani Cantil-Sakauye. She always loved research and writing and said working within the court system was an "opportunity for me to fulfill my sense of public service with the strongest skills I had."
• Outside the courtroom, Fujisaki plays an active role in judicial administration, serving as an advisory member of the Judicial Council, as vice chair of a working group on how the courts can help address the COVID-19 pandemic's effect on homelessness in the state, and as a member of a group charged with addressing bias in court proceedings.

JNE evaluating Judge Wilson for 6th DCA

The State Bar of California's Commission on Judicial Nominees Evaluation (JNE) is investigating Santa Clara Superior Court Judge Charles Edward Wilson II for the Sixth District Court of Appeal.

Today's appellate articles

 Law360 has Zoom Recordings Could Change Trial Appeals, Atty Says:

A criminal defense lawyer who participated in a criminal jury Zoom trial last year said Tuesday that the videoconferencing technology could make a difference in appeals if higher courts decide to start consulting video as a record. Carl Guthrie of the Texas Poverty Law Project, who last year played a part in what is believed to be the first binding virtual criminal jury trial, delivered a talk hosted by the National Institute on Trial Advocacy on what's been learned from months of online trials during the COVID-19 pandemic. Guthrie said it's not far-fetched to predict that down the road, appeals courts may find themselves reviewing tape.

The Recorder has Hanson Bridgett's Adam Hoffmann and Josephine Petrick in Manufacturing Appellate Jurisdiction: A Dangerous Gambit -- What to do with a catastrophic trial-court ruling that materially impacts a client’s case without resulting in an appealable judgment is one of the perennially vexing problems in litigation.

Today's tidbits

The SCOTUS Historical Society has posted A Snow Story by Carter G. Phillips. The Society also has a documentary about FDR and the Courtpacking Controversy, which relates to an article in today's DJ, Academics and retired judges debate changes to the U.S. Supreme Court, about a discussion sponsored by UC Berkeley School of Law's Public Law and Policy Program:

• "The most prominent suggestion, advocated by UC Berkeley School of Law Dean Erwin Chemerinsky, is to add justices to the court, allowing President Joe Biden to reverse a 6-3 conservative majority if Democrats in Congress passed a statute and the new president signed it."
• "Orin S. Kerr, a UC Berkeley School of Law professor, said a Democratic-led court expansion would lead to endless additions to the court whenever one party controls both the presidency and the Senate. ... His solution would be to keep the court at nine members but limit justices to 18-year terms. And if a justice died or retired before their term was completed, the Senate leader of the party of the president who nominated him or her would choose someone to fill the remainder of the term."
• "Retired D.C. Circuit Court of Appeals Justice Janice Rogers Brown, known for her conservative judicial views, proposed an alternate constitutional amendment that would impose a mandatory retirement age."

Also of note, Law360 has Retiring Calif. Federal Judge To Give Biden Another Opening: "U.S. District Judge Virginia A. Phillips plans to retire next year after presiding in California's Central District for more than two decades, opening an 18th seat on the Golden State's federal bench that President Joe Biden could fill."

And The Recorder reports California Justices Predict Court Technology Changes Will Outlast Pandemic about a program where Justices Kruger and Jenkins were speaking on elimination of bias and other topics.

Jobs at the Cal Supreme Court & Courts of Appeal

FYI, If you're interested in working for a California appellate court, you need to check this careers website here: https://www.courts.ca.gov/careers.htm

With a little searching, you'll see that there are openings at the Cal Supreme Court, both for the Criminal Central Staff and Civil Central Staff. There are also openings in the Second (Divs.1, 2, 6 & 7) and Sixth Districts.