9th Circuit Article

Appellate lawyer (and frequent SCAN tipster) Ben Shatz (right), along with his fellow Manatt partner Mark Lee, have this article in today's DJ. 

They analyze a recent 9th Circuit opinion on copyright law, in which the court joined the 5th and 7th Circuits in holding a copyright is "registered" -- in the sense needed to permit an infringment action -- upon submission of all requisite registration materials.

Motion Pictures and Posttrial Motions

Professor Shaun Martin has an interesting post on his California Appellate Report blog.

In Ladd v. Warner Bros., the 2/3 affirmed a jury verdict for producer Alan Ladd Jr. on his claim Warner Bros. breached its good faith covenant by packaging Ladd’s popular movies with its own, lesser-known films; selling the packages to cable outlet; and using the “straight-line” method to allocate royalties equally among the packaged films – even though Ladd’s titles were the real draw.

Or, as my colleague Jake puts it, the judiciary has finally recognized the true value of the Police Academy franchise.

More helpfully, Professor Martin postmortems the posttrial motion strategy:

“After Warner Brothers loses, its lawyers file a motion for new trial and a JNOV. But then they deliberately ‘go for broke’ by withdrawing the new trial motion. Leaving the trial judge with an option only of entering a judgment in its favor or upholding the verdict. No new trial.

“Gutsy. But wrong. At the hearing, the trial judge recognizes that Warner Brothers makes some good arguments about the jury's verdict and the evidence at trial. But states that while these deficiencies might well justify a new trial, Warner Brothers withdrew that motion, and there's technically enough evidence to support the verdict, so denies the JNOV motion and upholds the verdict.

“And the Court of Appeal affirms.

"Oops.”

Prior (And Subsequent) Judicial Experience

No experience?  No problem.

Retired Justice O'Connor told Good Morning America that Elena Kagan's lack of judicial experience is "fine. Just fine," and that the Solicitor General seems "very well qualified academically."

Justice Scalia agrees.  He told a group at Catholic University, "I am happy to see that this latest nominee is not a federal judge -- and not a judge at all."

On the other hand, it's okay to continue your judicial experience after retiring from the Supreme Court.  Justice O'Connor frequently hears appeals on the 9th Circuit.  And this article describes retired Justice Souter's service on the 1st Circuit.

(h/t How Appealing)

What Makes for a "Successful" Supreme Court Justice?

What background experience indicates a promising US Supreme Court nominee?  For that matter, can we agree on what shows a successful justice?  Brandon Bartles explores these questions at Concurring Opinions. 

He concludes "we should look for . . . someone who is sufficiently prepared to decide the numerous array of legal questions that will face him or her over the years on the Supreme Court."

New US Supreme Books

Justices Scalia and Stevens are the subjects of new books recently reviewed by Anthony Lewis in the New York Review of Books: 

"American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia" by Joan Biskupic, and "John Paul Stevens: An Independent Life" by Bill Barnhart and Gene Schlickman."  (h/t How Appealing)

Tribal Court/State Court Coalition

4/1 Justice Richard Huffman (left) and Judge Richard C. Blake, Chief Judge of the Hoopa Tribal Court and Presiding Judge of the Smith River Rancheria Tribal Court (right), will cochair a TribalCourt/State Court coalition, announced the Chief Justice.

The Coalition will "develop measures to improve the working relationship between California’s tribal and state courts and to focus on areas of mutual concern," such as jurisdictional issues, enforcement of judgments, and "access to justice in Indian country."

Why Petition? Just ASK For Review!

Eagle-eyed appellate guru Ben Shatz points out the following anomoly.

Let's say you miss your deadline to file a petition for review with the California Supreme Court.  Would it occur to you to write a letter and just ASK the court to grant review on its own motion?  And if it did, and you did, would you expect the court to do do so?  Over objection?

It happens.  See S182581. 

I don't know if I would recommend this as a standard appellate practice.  I certainly wouldn't predict frequent success.

But I guess your odds are increased if you represent a notable client.  And if your issue is something topical -- like, maybe, "Does the Governor have the authority to furlough the state employees at issue in this case by executive order?"

[No, I am NOT one of the state employees in question.  I haven't been furloughed by the Governor.  Still, I'm staying far away from commenting on the merits of this case.]

Happy Furlough Day

The California Supreme Court, the Courts of Appeal, and the Superior Courts are closed today.

But the Chief says furlough fun time may end in June, according to Bob Egelko at the SF Chronicle.

Top Women (Appellate) Lawyers

Congratulations to the appellate superstars in today's Daily Journal's "Top Women Litigators" list, including Laura Brill of Kendall Brill & Klieger, Margaret Grignon of Reed Smith, and Lisa Perrochet and M.C. Sungaila of Horvitz & Levy.

Laura Brill

Margaret Grignon

Lisa Perrochet

M.C. Sungaila

Appealing Attorney Fee Awards

4/3 Justice Richard Fybel (left), 2/1 Presiding Justice Robert Mallano (right), and Adorno Yoss appellate lawyers Marc Alexander and Mike Hensley will speak at today's meeting of the LA County Bar Ass'n Appellate Courts Committee.

The topic?  "Which Matters Most:  The Dog or the Litigation Fee Tail?  Appellate Practice on Review of Attorney's Fees Awards."

Learn more about the committee at its homepage.  (h/t to ACC chair Ben Shatz).

Photos from Justice Bedsworth's Presentation

OCBA Appellate Law Section program chair Lisa Wiley -- who has recruited a series of Hall of Fame caliber speakers, including next month's speaker, 4/2 Justice Ramirez -- was kind enough to share photos of Justice Bedsworth's presentation.

Above:  Justice Bedsworth

Above: Justii Ikola, Rylaarsdam, and Bedsworth

  











Above:  Some of the crowd at McCormicks, including (front table, left to right) my right shoulder, Marjorie Fuller, and the 4/3's Kelly McCourt.

Also pictured (in whole or part, left to right) are Justice Eileen Moore, Everett Skillman, Justice Rylaarsdam, Justice Raymond Ikola, Bill Kopeny, Justice Richard Fybel, Justice Richard Aronson, Jeff Doeringer, and Jim Mahacek.

Kagan It Is!

You heard it first right here, on Friday.

In about 5 minutes, President Obama is expected to nominate Solicitor General Elena Kagan to the United States Supreme Court.  She would be the first justice with no judicial experience since Lewis Powell and William Rehnquist joined the court in 1972. 

She would bring to court experience gained as a clerk for Thurgood Marshall, Senate Judiciary Committee special counsel, Clinton administration official, law professor at the University of Chicago and Harvard Law School, and Harvard Law School dean.

Politico: It's Kagan

Come Monday, "[t]op White House aides will be shocked" if President Obama nominates anyone but Solicitor General Elena Kagan, reports Mike Allen at Politico.

Justice Bedsworth Captivates Capacity Crowd

The OCBA Appellate Law Section has never sold out a regular monthly meeting . . . until now.  4/3 Justice Bedsworth packed the private meeting room at McCormick & Schmicks, a record crowd that included 4/3 Justices Richard Aronson, Richard Fybel, Raymond Ikola, Eileen Moore, and William Rylaarsdam, as well as US District Judge Andrew Guilford.

Justice Bedsworth related his career arc from appellate lawyer to appellate justice, including his near-brush with being held in contempt by the court upon which he would later serve.  He also shared his personal reflections on the political implications which led to, and surrounded, the creation of the 4/3.

He referred us to Bob Wolfe's excellent articles, available here and here, and to the intriguing opinion in Brown v. Superior Court (1982) 33 Cal.3d. 242, available by searching here.

Capacity Crowd for the OCBA Appellate Law Section Meeting

The good news:  4/3 Justice William Bedsworth will present "A Criminal Waste of Time:  The Unique History of Our Court" at noon at the Santa Ana McCormick & Schmick's.

More good news:  Today's section meeting promises to be our most popular in years, maybe ever.

The bad news:  The event is sold out.  We've exceeded McCormick's capacity.

(See how I avoided the temptation to title this post "Beds Sells Out!"  That's what you call discretion . . . .)

2/6 to SLO

The 2/6 is taking a road trip to San Luis Obispo.

The San Luis Obispo Bar Association will host a reception for the justices today, Wed. May 5. 

Tomorrow, May 6, the 2/6 will hear morning oral argument at the SLO County Board of Supervisors Hearing Room, 1055 Monterey Street.  At 2:30, there will be a presentation at Cal Poly SLO:  "The Judge’s Role—An Umpire Who Calls Balls and Strikes? The Interpreter of the Rules of the Game? An Open Discussion Concerning Judicial Restraints and Judicial Activism."  Speakers will include Justices Arthur Gilbert, Kenneth Yegan, Paul Coffee, and Steven Perren.

(Pictured:  2/6 Justices and proud Bruins Arthur Gilbert (top left) and Steven Perren (right)

5 Beats 4, Everytime

President Obama is looking for a progressive U.S. Supreme Court candidate to work with conservative justices to craft majorities -- not to vent in dissent.

He wants "'a consensus builder'" who "wins over conservative colleagues" or "crosses the partisan divide," someone "a lot like Obama himself."

So report Christi Parsons and David G. Savage of the LA Times (h/t How Appealing).

Appendix Alienates Appellate Court

I may never start my book, "How to Alienate Courts and Imperil Appeals," but if I do, I will devote a chapter to misguided record preparation. 

Not to improper record preparation, which violates court rules.  Not to inadequate record preparation, which omits items needed for a favorable decision.  These topics are already well-covered.

I'm going to focus on misguided record preparation, which is proper and complete in a technical sense but undermines persuasiveness. 

Presiding Justice Rushing of the Sixth DCA has given me a head start with footnote 2 of the opinion he authored in Silvaco Data Systems (Apr. 29, 2010, H032895) (thanks to Ben Shatz for pointing this out):

"Although this case was decided largely on the pleadings, it has somehow generated an appendix over 8000 pages in length. Seldom have so many trees died for so little."  He surmises "three causes for this wretched excess."  The culprits are:

• Multiple copies of trial court documents.  We only need one copy of the demurrer, for example, even if copies are filed below repeatedly for trial court convenience.
• Needless copies of legal authorites.  We can find these on-line, even though non-California authorities must be lodged with the trial court.
• A 103-page index of the entire record.  An index is valuable normally, but not when it is included in each of the 27 volumes (the 27 indices make up one-third of the record).

PJ Rushing concludes, "The present case appears to be one of those rare instances when, contrary to the maxim, superfluity does vitiate."

Appellate courts want to decide cases correctly and as quickly as justice permits.  The record is our raw material.  It helps us help you when the record is proper, complete, AND accessible.