Thursday, May 13, 2021

DJ profiles Justice Richman

"I'm like the heavy.
I've gone out pretty heavy
against lawyers for
doing the wrong thing."
 In The Heavy, today's DJ reports 1st District Court of Appeal Justice James Richman doesn't hold back when he feels litigants or their attorneys have crossed a line. [The DJ's last profile of 1/2's Richman was in October 2007, titled From Pen-and-Paper Man to Internet Guru.]

"Richman is especially known for opinions criticizing what he views as excessive use of the automatic stay triggered by appeals of anti-SLAPP motion denials .... [He] views the automatic stay as a mechanism for delay and has -- unsuccessfully -- called on the Legislature to address the issue."
'I use my opinions to teach people how to do it and how not to do it,'
The justice will turn 80 this summer, but he has no plans to leave the court. "I still enjoy it," "It's important and intellectually stimulating and fun."

Also in today's DJ, Jessica DiPalma of Nemecek & Cole has California Supreme Court clarifies citation of opinions rule, noting last month's Admin Order 2021-04-21, which amends the comment to Rule 8.1115, explaining that pending review, a court of appeal opinion may be cited not only for its persuasive value, but also for the limited purpose of establishing the existence of a conflict in authority to allow trial courts exercise discretion to choose which side of a precedential conflict to follow.

On the ad front, ADR Services, Inc. is publicizing its Appellate Consultations services for case evals, consults, moot courts, and appellate mediations, listing retired justices Cottle, Kitching, Lambden, Mihara, Parrilli, Rivera, Stein, and Zebrowski, as well as retired judges with significant appellate/pro tem experience, like retired LASC Judge Allan Goodman.

Wednesday, May 12, 2021

9th News & Fonts

Law360 has Judge Paez Gives Biden 3rd Opening on 9th Circuit, which notes that his going senior "gives Biden a third opening on the sprawling appeals court and a 14th appellate vacancy overall." (There are three vacancies in the 9th and 2d Circuits; two in the 10th and D.C. Circuits, and one in the 1st, 4th, 7th, and Fed. Circuits.)

  • Appellate experts previously told Law360 that likely contenders for a California seat on the Ninth Circuit include U.S. District Judges Lucy H. Koh and Yvonne Gonzalez Rogers of the Northern District of California, state Judge Holly A. Thomas and California Supreme Court Justices Mariano-Florentino CuĂ©llar, Leondra R. Kruger and Goodwin H. Liu.
  • Non-judges suggested as possible candidates included Davina T. Chen, a sentencing resource counsel for federal public defenders nationwide, and Brian E. Nelson, a former general counsel to Vice President Kamala Harris when she was California's attorney general, who is now chief legal officer for LA 2028, the organizing committee for the upcoming Olympic games.

Law360 also has Font Considerations To Give Your Legal Briefs An Edge, in which Jason Steed writes:
  • Good examples of legible serif fonts that come preinstalled in Microsoft Word — or that are otherwise generally available for free — include Century, Century Schoolbook, Bell, Book Antiqua, Bookman, Caslon, Georgia, Miller, Palatino and Sabon.
  • Equity is also a nice, newer font that has become somewhat popular here in Texas, but you'll have to pay a licensing fee if you want to use it. And yes, Times New Roman is also legible and works just fine, but it has been the default font in legal writing for a long time, so it carries the risk of appearing accidental, as though you didn't give any thought to the font you were using.
  • five fonts — Century, Book Antiqua, Bookman, Equity and Palatino — are all safe bets in most of the federal appellate courts.
  • Note that the U.S. Court of Appeals for the First Circuit notoriously still uses Courier in its opinions — but do not take this as a model of good practice. Studies show that monospaced fonts like Courier are significantly harder to read. And you don't want to do anything that makes your brief harder to read.
  • you really can't go wrong using Century Schoolbook in all your briefing — unless a local rule disallows it.
The article's conclusion accords with CRC 8.74(b)(1)--which the article does not cite--that expressly states that "Century Schoolbook is preferred" for all California appellate courts.

Tuesday, May 11, 2021

9th Cir. Survey for you!

"As you know, the Ninth Circuit has conducted all of its hearings remotely since the beginning of the pandemic. As the Court looks towards the post-pandemic reopening of its courtrooms, and considers the timing and logistics for the transition to that reopening, the Court is seeking input from the bar about the best way to move forward. The Ninth Circuit Appellate Lawyer Representatives and the Clerk’s Office have drafted a survey designed to assist the Court in addressing these questions with the concerns and perspectives of the bar in mind. Please complete the survey at the link below no later than May 21, 2021.  There are only 12 questions and it should take no longer than 5 minutes to complete."

9th Cir. Judge keynote

Pepperdine School of Law has announced that 9th Circuit Judge Consuelo Callahan will speak at its commencement ceremony on May 21 (for the class of 2021) and May 22 (for the class of 2020). Livestream will appear here.

Speaking of law students, The Recorder has California February Bar Exam Pass Rate Climbs to 37%

Monday, May 10, 2021

Judge Paez to go Senior

The Record reports With Paez Going Senior, 9th Circuit Faces Third Judicial Vacancy - Judge Richard Paez is taking senior status after more than two decades on the bench.

Judge Richard Paez of the U.S. Court of Appeals for the Ninth Circuit is taking senior status after 21 years on the bench.

Paez is the third Ninth Circuit judge to announce plans to go senior, a form of semi-retirement, this year. Judges Marsha Berzon in San Francisco and Susan Graber in Portland, Oregon, are both slated to pull back from full, active service when their successors are confirmed.

[5/13 update: the DJ has Richard A. Paez is 2nd California-based 9th Circuit judge to go into semi-retirement. The article lists other California-based 9th Circuit judges eligible for senior status: Fletcher, McKeown, Wardlaw, Smith, Callahan, and Ikuta.] 

Gender gap in SCOTUS advocates

Bloomberg Law has Men Repeat at Lectern—Firms, U.S. Drive Supreme Court Gender Gap noting: Women argued 18% of cases this term (since 2011 that figure has fluctuated between 12% and 22%); five individual men argued 13% of cases' men outnumbered women advocates 125 to 28; for first-time advocates, 11 were women and 37 were men. "The Supreme Court bar is overwhelmingly white and male."

RIP Justice Reynoso (1931-2021)

Cal. Supreme Court 1982-1987

 The Recorder has Cruz Reynoso, First Latino Supreme Court Justice in California, Dies at 90
"His 'justice bone' led him to a life dedicated to pursuit of social justice; from elementary school until well into his eighties he fought for those who needed help," Reynoso's son Rondall Reynoso wrote in an obituary.

Now 9...

Today's DJ has Justice Richard Aronson will retire from 4th District, which notes:

Aronson’s departure will leave the state appellate courts with nine vacancies, according to the Judicial Council’s monthly Judicial Vacancy reports, the highest number in three years.


“After over 30 years on the bench and well over 20 years in the court of appeals as both a research attorney and justice, I thought it was time,” Aronson said Friday. “I was ambivalent. I really enjoy myself, it’s a privilege to work here. But I’m 71 and that’s a big number.” .... He said his primary goal is to spend more time with his wife and his son. Aronson said he may consider private judging or sitting on assignment. He added that he hopes Gov. Gavin Newsom appoints someone to his seat soon.

And Friday's DJ had H&L's David Axelrad in The Importance of Judicial Economy, exploring certain doctrines to keep in mind when formulating litigation in both trial courts and on appeal: Joinder of claims, claim preclusion, summary judgment/summary adjudication, coordination of actions, denial of interlocutory review, and the one final judgment rule. Learn 'em, live 'em, love 'em.

The big appellate obit news this weekend was reporting on the death of Justice Reynoso. See At the Lectern's coverage here.

Friday, May 7, 2021

Fixing Appellate Delay

Fixing Appellate Delay
is the title of today's DJ column by ... Jon Eisenberg, of course. Three months ago he "filed a complaint with the Commission on Judicial Performance about egregious decisional delay by three justices of the 3rd District Court of Appeal in Sacramento, listing 150 appeals adjudicated in 2018-2020 which had languished for at least two years and as much as seven years from the completion of briefing to submission for decision." He then "asked the California Supreme Court to transfer an additional 57 still-unadjudicated, long-delayed appeals out of the 3rd District for speedy decision elsewhere -- which the Supreme Court denied." Since then he has found 94 more such 3rd District appeals, "for a total of 151 as of Feb. 16, 2021, on top of the previous 150 listed in [his] CJP complaint."

Has this done any good? Well, for one, "[o]pinions have now been filed in about half of those additional 151 moldering appeals -- a long-overdue outpouring." But what about addressing the root problem? He has several suggetions:

  • "The Supreme Court should promptly transfer a substantial number of pending appeals from the 3rd District to other districts to help ease the 3rd District's backlog."
  • "The chief justice should assign the 3rd District a retired appellate justice or a sitting appellate justice from another district to serve the 3rd District temporarily until its pending appeals are brought reasonably current, and/or a local superior court judge to serve pro tempore in the 3rd District's current vacancy until the governor fills it."
  • "The Judicial Council should commence steps to amend the California Rules of Court as the Strankman Commission recommended in 2000 to require the administrative presiding justices of the six district Courts of Appeal to (1) advise the chief justice and the Supreme Court regarding periodic equalization of the workloads of justices, districts, and divisions within districts, and (2) submit annual reports to the chief justice and the Supreme Court regarding any need to equalize appellate workloads to account for regional population disparities."
  • the Judicial Council should "promulgate a Rule of Court providing for expedited processing of criminal appeals that involve relatively short prison sentences -- say, fewer than four years -- which, with good conduct credits, are frequently completed in as little as half the time imposed."
  • "The Judicial Council should also consider adopting standards for expeditious adjudication of pending appeals -- for example, the Model Time Standards for State Appellate Courts (2014), which call for 95% of civil appeals to be adjudicated within 450 days and 95% of criminal appeals to be adjudicated within 600 days."
  • "The governor should promptly fill the current vacancy at the 3rd District -- as well as two other vacancies at the 6th District in San Jose. In the future, the governor should move expeditiously to fill all such vacancies."
  • the Legislature should "adjust the allocation of appellate justices statewide in accordance with shifting demographics. At a minimum, the Legislature should add one justice to the 3rd District and one justice to Division 2 of the 4th District."
  • And a final "bold proposal: Decisional delays like those in the 3rd District could be discouraged by putting the justices' salaries in play -- much like the 90-day rule makes payment of judicial salaries contingent on opinions being filed within 90 days of a case's submission for decision. Perhaps it's time to amend the California Constitution to set a deadline -- say, a year -- for the submission of appeals after they have become fully briefed, so that each case must be calendered for oral argument within that time or judicial salaries will be withheld."

Thursday, May 6, 2021

4/3's Justice Aronson to retire


Associate Justice Richard M. Aronson of the California Court of Appeal, Fourth Appellate District, Division Three will retire on June 15, 2021 after a distinguished 46-year legal career, including 32 as a member of the California judiciary.

Justice Aronson received his bachelor’s degree and juris doctorate from the University of San Diego and holds a master of laws degree from the University of Virginia.  He began his legal career as a deputy district attorney for San Bernardino County and subsequently was a deputy public defender for Orange County.  He was a senior staff attorney for the Court of Appeal until he was appointed by the judges of the Orange County Superior Court as a superior court commissioner in 1989.  Justice Aronson was appointed to the Orange County Superior Court in March 1996 by Governor Pete Wilson and sat in criminal, family, and civil departments, gaining the breadth of experience that made him an ideal candidate when appointed in 2001 by Governor Gray Davis as an Associate Justice.

Wednesday, May 5, 2021

You snooze, ...

Did you ever want a citation for this proposition?

Absent the legal jargon, the term “forfeiture” essentially means: “You snooze, you lose.” 

Now you've got one (here)!

And today's DJ has Justice Hoffstand's eggstremely appealing article The chicken or the egg: temporal primacy and California law.

Tuesday, May 4, 2021

Analysis of 9th Cir. being reversed

The Juris Lab continues to crunch numbers with the latest installment being One Court on High with Twelve Circuits Below

  • More panel decisions were reviewed and either affirmed or reversed from the Ninth Circuit than from any other circuit. That is not entirely surprising given the size of the Circuit. These decisions were overwhelmingly reversed or vacated with an 84% overturn rate. The Second and Fifth Circuits also had high overturn rates, each at 78%.
  • Since decisions from the Ninth Circuit dominated the Court’s review it should come as no surprise that Ninth Circuit judges are positioned atop the figure for overall review of panel votes. ... Judges Nguyen and Graber were each on five panels whose opinions were reviewed by the Supreme Court. Judges who had four panel votes include Judge Fuentes from the Third Circuit, Judges Higginbotham and Elrod from the Fifth Circuit, Judge Moore from the Sixth Circuit, Judges Wallace, Paez, Berzon, McKeown, and Bea from the Ninth Circuit, Judge Briscoe from the Tenth Circuit, and Judges William Pryor, Wilson, and Carnes from the Eleventh Circuit.
  • the Ninth Circuit has the most judges with at least three votes in opposition to the Supreme Court’s position on review.
  • The only judge with five votes overturned by the Supreme Court was Judge Nguyen from the Ninth Circuit. Four judges had four votes overturned including three from the Ninth Circuit — Judges Paez, McKeown, and Berzon
  • The data from the post confirms the common assumption that the Ninth Circuit is still the most heavily overturned judicial circuit in the nation.

Appellate tidbits

Bloomberg Law has two items of note today. First in The Supreme Court Needs 15 Justices two law professors explain why the Supreme should have 15 justices:

  • The Supreme Court does far too Little: Last year, the Supreme Court decided 73 cases. In the 1980s, the court heard more than twice that,160 cases per term on average. The U.S. is renowned for its litigious culture, surely there cannot be less than 100 cases worthy of review each term by the apex court of the judiciary.
  • The Court avoids tough controversies
  • 15 Justices could take more, important cases
Also, following up on the 'best (i.e., worst)' oral argument of 2019, see Second Circuit Reprimands Lawyer for ‘Insulting’ Judge
A New York lawyer who responded sarcastically to a Second Circuit judge during an oral argument in 2019 and was then removed from the courtroom by security officers was publicly reprimanded by the court’s grievance committee.

Monday, May 3, 2021

Bee v. The 3d

The Sacramento Bee Editorial Board writes: Sacramento’s appeals court must be reformed. Some cases go undecided for as long as 7 years
  • The 3rd District Court of Appeal in Sacramento is one of the busiest courthouses in California. Yet even with a track record for filing a high volume of decisions, some of the court’s justices allow cases to languish for as long as seven years — an extraordinary failure that causes untold harm to the people trapped in the backlog.
  • Under national standards created by judges, court administrators, clerks and attorneys, 95% of appellate cases should be resolved within one year. In California, the average appellate decision can take as long as 18 months.
  • it’s clear that Sacramento’s appellate court is overburdened. It covers 23 Northern California county courts, which account for over 39% of the state’s trial court system. Each of its 11 authorized justices have 36% more cases than the statewide average.
  • over the last decade, productivity has sharply declined. According to Judicial Council of California data, the average number of Sacramento’s majority opinions per justice dropped by more than 35% since 2009-10 — compared to 19% statewide.
  • The 3rd District court is in desperate need of reform. Gov. Gavin Newsom could start by tending to one of his core duties as California’s chief executive and fill the long-vacant 11th seat on the bench.
  • It’s also been 21 years since the Legislature expanded the bench to 11 justices. Given Sacramento’s massive workload, California’s lawmakers should consider adding a 12th.

PJ Gilbert on the Appellate Process

Today's DJ has much of appellate note:

First, in the Gilbert Submits column, titled Revelations II, PJ Gilbert outlines the appellate "process":

  • opinions are "worked up" by the justices and dedicated research attorneys. Do we answer every argument advanced by a party? Shouldn't the argument be "heard"? Of course not. I mean, not always.
  • The authoring justice then circulates a "calendar draft" to the other two justices on the panel.
  • The day before oral argument the justices in my division sit around a conference table adjacent to my chambers and talk, and occasionally yell, about the cases. It's a stimulating and gratifying experience... most of the time.
  • The next day at oral argument we think we have a firm grasp of the issues. We are an active court and usually ask questions. Is this annoying to counsel? It shouldn't be.
  • We may file the opinion as originally written. But often we may make changes that require analysis of new cases that have been filed after briefing
  • Oral argument may prompt us to change our characterization and emphasis. Question asked ad nauseam, but none the less reasonable: How often does oral argument change the result of the original draft opinion? Not often. Not specific enough? The honest answer? How about, almost never. Petitions for rehearing? Pretty much the same answer, only slightly better odds.
Second, the Exceptionally Appealing column shares The Glorious History of the Committee on Appellate Courts, and urges interested applicants to apply by emailing Committee Secretary Bryce Young at by May 31.

Third, Moskovitz on Appeal is up to Appellate Adventures, Chapter 21: "I Won My Appeal! Now What?"
The piece discusses post-opinion matters, such as petitions for rehearing and review:
  • What is the chance a rehearing petition will win relief: "Not much. The judges put a lot of thought and time into writing their opinion, and they're not likely to undo it at this late stage."
  • And why not file rehearing petitions? "If counsel files a petition for rehearing in the court of appeal, sometimes the court improve the opinion by modifying it. Counsel had a weak opinion that might catch the Supreme Court's eye, but now it's not so weak anymore."
  • As for petitions for review, odds of a grant are 3% and it matters "a lot" if the Court of Appeal opinion is published or not. Amicus letters showing how the case is "important to society --or at least a large chunk of it" are helpful in getting review.
U.S. Supreme Court Justices Neil Gorsuch and Brett Kavanaugh may both identify as textualists, but that doesn't mean they always agree on how to interpret a statute's text. In an immigration ruling Thursday, the two Donald Trump appointees spilled 40 pages of ink arguing over the meaning of the word "a."

Friday, April 30, 2021

2d DCA pro tem update

The following are currently sitting on assignment:

·  Judge Rita Coyne Federman of the San Luis Obispo Superior Court, will be sitting Pro Tem in Division One until June 30, 2021

·  Judge Upinder S. Kalra of the Los Angeles Superior Court, will be sitting Pro Tem in Division Three until June 30, 2021

·  Judge Holly A. Thomas of the Los Angeles Superior Court, will be sitting Pro Tem in Division Three from May 10, 2021 until July 31, 2021

·  Judge Melissa R. McCormick of the Orange County Superior Court, will be sitting Pro-Tem in Division Seven until June 30, 2021

·  Judge Sam Ohta of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until June 30, 2021

Or else...

Here's a nice start to a published opinion here involving the meaning of the word 'or':

In law, semantics matter. Courts must frequently ascertain the meaning of words and phrases in writings. The use of the word “or” often presents an especially treacherous lexical conundrum due to its high risk of ambiguity.

50 years of Circuit XOs

The Ninth Circuit's Public Info Office has posted Circuit Executives Celebrate 50th Anniversary of Office
In 1971, urged by Chief Justice Warren Burger, Congress authorized each circuit judicial council to appoint a circuit executive to carry out the council’s directives in administering to the courts. This year, we celebrate 50 years of the Office of the Circuit Executive, the bedrock foundation that allows the courts to administer the law with a minimum of distractions. The 1971 legislation addressed, among other concerns, a caseload crisis in the federal courts and noted that the judicial councils “shall take into account experience in administrative and executive positions, familiarity with court procedures, and special training,” when selecting court executive candidates.

4/2's settlement program

Today's DJ has 4/2's PJ Ramirez in Law Day 2021: A Celebration of the Law and Lawyers, which discusses the court's settlement program and thanks (by name) the many volunteers who have made it a success:

  • For the past 30 years, 1991 to the present, our volunteer attorney mediators have served as "peacemakers" on behalf of the Court of Appeal and the citizens of this state. For that, I am sincerely grateful, and I applaud them for their efforts, participation and dedication.
  • Since its beginning, our all-volunteer attorney mediation program has grown considerably. Through the years, 155 attorneys have served our court, along with a number of retired superior court judges and appellate court justices. Between 1991 and 2020, the court has resolved and settled in excess of 1,400 cases by way of volunteer attorney mediation, resulting in an astonishing settlement rate of close to 45%. When added to the hard work of the opinion writing justices and court attorneys, we join our state-wide colleagues as a most productive and efficient Court of Appeal in California.
[See here too.]

Thursday, April 29, 2021

JNE considering for the 6th DCA

The JNE Committee is investigating more candidates for the 6th District:

  • Daniel H. Bromberg, currently Deputy Legal Affairs Secretary in the Gov's Officeformerly with the Appellate Group at Quinn; and
  • Superior Court Judge Audra Ibarra, formerly with the California Appellate Group.