First Monday

Expert insight on the U.S. Supreme Court at the Pacific Club.  No appellate lawyer should miss this!  Sign up here.

From the OCBA website:

 

"Join the OCBA Appellate Law Section for an informative sneak peak into the upcoming U.S. Supreme Court term Monday, Oct. 3, 2011, at the Pacific Club in Newport Beach.

 

Meet the Distinguished Panel

 

Erwin Chemerinsky

• Founding Dean and Distinguished Professor of Law, UC Irvine School of Law
• Author of six books
• Regular contributor to California Lawyer, the Los Angeles Daily Journal, and Trial magazine
• Named by The National Jurist as one of its "23 Law Profs to Take Before You Die" (March 2011)

 

John C. Eastman

• Henry Salvatori Professor of Law & Community Service, former Dean, Chapman University School of Law
• Founding Director of the Center for Constitutional Jurisprudence
• Bradley Fellow, Research in Constitutional History
• Olin Fellow, Law & Economics

 

A highlight of the evening will be the presentation of the Justice David G. Sills Award for Appellate Excellence to Justice Sheila P. Sonenshine (Ret.)."

From Yoda to You

Ben Shatz counsels new lawyers, in the wise words of Yoda, to “unlearn what [they] have learned” in law school.  Appellate lawyers too may benefit from these friendly reminders:

READ ENTIRE OPINIONS.
“The habit of reading only part of an opinion can be very dangerous. To paraphrase Professor Emeritus Gideon Kanner of Loyola Law School, ‘Every opinion carries within it the seeds of its own destruction.’  If you fail to read the entire opinion, you may miss something important — something your adversary is likely to find and use against you.”

ALWAYS THINK CROSSOVER.
“Real world legal problems aren’t confined to a single subject. You must canvass the entire spectrum of conceivably relevant topic areas in every case and revisit that analysis as the case progresses.”

PROCEDURE IS CRITICAL.
“[P]rocedure permeates everything. The procedural basis for a matter supplies the critical context for all other issues. . . .  Though woefully undervalued in law school . . .  procedure and evidence are often as important as substantive law.”

THE FACTS MATTER—A LOT.
“[T]he facts drive the outcome. . . .  You may not have gone to law school to become a detective or a storyteller, but without ability in those roles, your mastery over the law may be meaningless.”

STRONG WRITING WINS CASES.
“Gauging by how law schools treat them, one would think legal research and writing are minor, pesky parts of lawyering. Believing that is a huge mistake. In fact, cases are won and client goals achieved— and that is the point, isn’t it?—by written advocacy (with oral advocacy a distant second).”

“Successful legal writing in the real world requires conciseness, directness, multiple rounds of editing, and as much engaging style as you can muster. . . .  if you want your papers to be read and understood, you must marshal facts to tell compelling tales, find just the right—and right amount of—supporting legal authority, and persuade the reader to agree with you—all using the fewest possible words.”

Pick up Los Angeles Lawyer's Survival Guide for New Lawyers or click here for more solid advice.

Sills Award Presentation & U.S. Supreme Court Preview

The OCBA Appellate Law section is hosting its "First Monday:  U.S. Supreme Court Preview" on Mon., Oct. 3, at 6 p.m. at the Pacific Club in Newport Beach. 

Dean Erwin Chemerinsky of UCI Law School and Professor John Eastman of Chapman Law School will bring us up-to-date on which major issues the U.S. Supreme Court will decide in its October 2011 Term.  Amaze your friends with the expert analysis you'll receive from both sides of the ideological spectrum.

Also, the section will bestow the second annual Presiding Justice David G. Sills Award for Appellate Excellence.  This is an especially poignant presentation, given our loss of the PJ this year.  Presenting the award to retired 4/3 Justice Sheila Prell Sonenshine will be 2/3 Presiding Justice Joan Dempsey Klein, appellate practitioner Marjorie G. Fuller, and U.S. District Court Judge Andrew Guilford.

Presiding Justice Sills loved the law and he loved this court.  Don't miss this chance to celebrate appellate excellence, both here in Orange County and at the U.S. Supreme Court.  Sign up here!

President Nominates Judge Nguyen for 9th Circuit

President Obama has nominated U.S. District Court Judge Jacqueline Nguyen to the Ninth Circuit.  From the White House press release:

"Judge Jacqueline H. Nguyen has served as a United States District Judge in the Central District of California in Los Angeles since 2009.  Judge Nguyen was born in Dalat, Vietnam, and in 1975, she fled the country as a girl along with her family as Saigon was in the process of falling during the latter stages of the Vietnam War.  Her family was placed at a refugee camp in Camp Pendleton, California, where they lived in a tent city for over one month before settling in the Los Angeles area.  She received her A.B. from Occidental College in 1987, and her J.D. from UCLA School of Law in 1991.  Judge Nguyen began her legal career at the law firm of Musick, Peeler & Garrett LLP, where she was a litigation associate from 1991 to 1994.  In 1995, she joined the United States Attorney’s Office in the Central District of California, serving as an Assistant United States Attorney in the criminal division.  There, she worked as a federal prosecutor in both the General Crimes and Public Corruption and Government Fraud sections, and was a member of the office’s Organized Crime Strike Force from 1999 to 2000.  She served as Deputy Chief of the General Crimes section from 2000 to 2002.  Judge Nguyen was appointed to the state bench as Judge of the Superior Court of the County of Los Angeles in 2002 and remained a judge on that court until she was appointed to the federal bench in 2009."

Justice Moreno Discusses Direct Democracy

Carlos Moreno, retired California Supreme Court justice and litigator at Irell & Manella, will discuss the future of direct democracy as Zocalo Public Square recognizes the 100th anniversary of California's adoption of the initiative and referendum. 

The event is Wed., Oct. 5 at 7:00 pm, at 251 So. Main St. in downtown Los Angeles.

Joining Justice Moreno will be Small Business Action Committee President Joel Fox; Center for Governmental Studies President Robert Stern; and The Sacramento Bee's former editorial page editor Peter Schrag. 

The event is cosponsored by the League of Women Voters and the California Supreme Court Historical Society.  It’s free, but reservations are required.  To reserve, go to http://zocalopublicsquare.org/ and click on “Upcoming."

Thanks to 4/3 research attorney (and Cal. Supreme Court Historical Society board member) Bob Wolfe for the tip.

9th Circuit Judge Rymer

Pamela Ann Rymer, a 9th Circuit Judge since 1989 who authored over 300 panel opinions, passed away yesterday.  The court's news release is available here.

Tonight's Event for "Master" Appellate Lawyers

Have you practiced law for 25 years or more?  Are you willing to share your experience and wisdom with others?  Then the OCBA Masters Division is for you. 

The Masters Division presents its inaugural event tonight:  a keynote address by former Los Angeles District Attorney Vincent Bugliosi and a presentation on “Historic Trials Re-Lived: The Tate-LaBianca Murder Trial.”

The event is tonight, Sept. 22, 2011, at the Turnip Rose, Grand Newport Plaza, in Costa Mesa.  More info is available here.

Below:  Masters Division chairs Tom Malcolm and the Hon. Alicemarie Stotler:

5th, 9th, 10th, 11th Circuit Judges to Speak

Pepperdine Law School officially welcomes its new dean, retired 10th Circuit Judge Deanell Reece Tacha (right), with a compelling conversation -- "Hearing Her Story: Reflections of Women Judges." 

Joining the dean will be Judges Carolyn Dineen King (5th Circuit), Dorothy W. Nelson (9th Circuit), and Rosemary Barkett (11th Circuit).  The event takes place at Pepperdine Law School tomorrow, Friday Sep. 23, at 4 p.m.  Reserve your tickets now.

(Thanks to Ben Shatz for the heads-up)

Chief Justice to present 2011 Bernard Witkin Lecture

Don’t miss the Chief’s insights on the Supreme Court and the judicial branch’s funding challenges as she presents the 2011 Bernard Witkin Lecture at the Westin Bonaventure Hotel in downtown LA on October 25.

The event is presented by the Los Angeles County Bar Association, and co-sponsored by the Witkin Foundation and the Litigation Section.

From the LACBA website:

“The Chief Justice reflects on her first nine months in office and discusses the impact of three years of cumulative budget reductions on the state judicial branch.  She details Judicial Council strategies for ameliorating the impact of the cuts on the courts, the bar, and the public and other initiatives to protect access to justice.

“Chief Justice Tani Gorre Cantil-Sakauye was appointed to the California Supreme Court by Governor Arnold Schwarzenegger.  Following her confirmation hearing and statewide election, she was sworn into office on January 3, 2011 as the first Asian-Filipina-American and the second woman to serve as Chief Justice of California.  She chairs the Judicial Council of California, the administrative policymaking body of state courts, and the Commission on Judicial Appointments.  Chief Justice Cantil-Sakauye served for more than 20 years on California appellate and trial courts before her appointment to the California Supreme Court.  She received her B.A., with honors, from the University of California at Davis, in 1980 and her J.D. from U.C. Davis, School of Law, in 1984.”

For more details or to register, click here.

Joys of Solo Appellate Practice

I couldn't take my eyes off this video confronting some common misperceptions of the solo appellate lawyer.

Appellate specialist John Derrick created it and showed it at the start of the Joys of Solo Appellate Practice presentation at the State Bar Annual Meeting.  Thanks to appellate guru Ben Shatz for passing it on.

The Style Manual Survives

As the State Bar Annual Meeting proceeded, the Conference of California Bar Associations convened at the Queen Mary.  Delgations from local bar associations across the state met to debate hot-button legal issues and vote on resolutions proposing changes to California statutes and rules.  Approved resolutions are entrusted to our lobbyist to find state senators and assembly members to sponsor enacting legislation.  The Legislature regularly passes bills proposed by our Conference.

It was an eventful conference.  Incoming State Bar president Jon Streeter, a former convention delegate, came by over the weekend to address us, as did former State Bar president and LACBA delegate John Van de Kamp.  We discussed the conference's future, as well as proposals affecting substantive changes to civil procedure, real property, family law, civil rights, and other areas.

Not all topics were equally weighty, though.

Toward the end of Saturday's meeting, we devoted a few minutes of lively, respectful debate to this issue:  should we abandon the California Style Manual and its system of citation and usage, adopting instead the Bluebook used by federal court and state court nationwide (except, I think, here and in Oklahoma)? 

This proposal has sparked some controversy among appellate lawyers, as noted in At the Lectern.

The proponent made an impassioned plea for entrusting usage decisions to each author, and challenged opponents to point out any affirmative advantage to using the Style Manual.  The opponents noted that private lawyers are not bound by the Style Manual, and that our willingness to reject conformity and follow our own path is one of the things that makes this state great. 

The proponent scored the "moral victory" of receiving commendation from the chair for a spirited presentation.

The opponents scored the "actual victory" of winning.

State Bar Meeting Updates

Thanks to the 100 or so lawyers (my rough count) who attended yesterday's research attorney panel discussion.  I was just as interested as the audience in soaking up the insights from the other panelists.  Our advice included:

• Use your table of contents as a summary of your argument
• Be scrupulous and copious with your citations to the record. The better your statement of facts, the more often a research attorney may turn to it.  Defuse bad facts by addressing them.
• Pictures are worth 1,000 words.  Consider inserting charts, diagrams, or images into the text of a brief.  Or attach up to 10 pages from the record to your brief.
• Direct your analysis to a generalist, avoiding jargon and legalese. 
• Support your writ petition with a showing of irreparable injury. "Trial" may not seem injurious to justices who were dedicated trial lawyers and trial judges.
• Ask for publication if you want it.  Your request will be given serious consideration -- especially if it describes the legal landscape and explains how your case may correct or refine it.
• Similar advice on petitions for Supreme Court review.  Explain the state of the law -- including nonpublished decisions or cases from other jurisdictions -- and why your case is the vehicle for clarifying or correcting it.

Reminders:

• 4/3 Justice Fybel speaks at lunch today.
• This morning brought us two appellate programs; there will be two more tomorrow.
• The State Bar will award 2/3 PJ Joan Dempsey Klein with the Bernard E. Witkin medal.
• The Chief will present the State Bar Office of Legal Services' awards tonight at 5:30 at the Hyatt Regency, see below:

Research Attorney Panel at the State Bar Meeting

The State Bar Annual Meeting kicks off tomorrow.  OK, technically it tees off today with a charity golf event.  But the CLE programs start tomorrow. 

The afternoon offers "Inside the Appellate Courts:  Insights from Research Attorneys." 

The panel includes:

• Supreme Court staff attorney Melissa Johnson
• 2 DCA lead attorney Pablo Drobny
• 2 DCA senior attorney Jennifer King
• 4/2 managing attorney Don Davio
• John Kennedy, appellate lawyer at Liner Grode and former 2DCA research attorney; and
• Me, 4/3 senior attorney and sporadic blogger.

In addition to sharing our tips on brief writing and oral argument, we'll discuss the role of the research attorney in the appellate court's processing of appeals.  We'll pull back the curtain and let you in on:

• At what stage we get involved in a case
• How we approach an appeal
• How we interact with the justices
• How the court uses our work
• How the Supreme Court handles petitions for review

And, of course, we'll be happy to take your questions.  Hope to see you there!

Respondent Filing Fees

A new statute (Gov’t Code s 68926, subd. (b)(1)-(3)) requires the collection of a $325 filing fee for respondents when they file their first document in the Court of Appeal.  This applies to respondents and real parties in interest for all civil appeals and civil writ petitions.  Passage of the legislation was covered by the At the Lectern blog here and here, which also has a link to the bill here.

The Fourth District, Division Three is trying to get the word out that it will start collecting the fees today from respondents who filed their first document after August 30, 2011.  But respondents who filed a document in a case prior to August 30th are exempt from the fee. 

The court has posted a public notice concerning the fee at its filing window.  It will also hand the notice to all those who come to the court, as well as send them with each new notice of appeal and writ petition in civil matters.

State Bar Appellate Programs

In addition to hearing Justice Fybel speak, be sure to check out the five appellate practice programs sponsored by the State Bar Committee on Appellate Courts:

Inside the Appellate Courts:  Insights from Research Attorneys.
Speakers:  Don Davio, Pablo Drobny, Melissa Johnson, Jennifer King, Nathan Scott & John Kennedy.
Thu. Sep. 15, 2:15-3:45.

Appellate Ethics, Sanctions, and Malpractice Traps.
Speakers:  Justice Judith L. Haller, Benjamin Shatz & Justice Laurie Zelon.
Fri, Sep. 16, 8:30-10.

Punitive Damages: What Every Litigator Should Know.
Speakers:  Raymond A. Cardozo, Justice Margaret Grignon & R. Rex Parriss
Fri, Sep.16, 10:30-12.

U.S. Supreme Court Update.
Speakers:  Vikram D. Amar, Paul Johnson & Eugene Volokh
Sat, Sep.17, 8:30-10.

The Joys of Solo Appellate Practice.
Speakers:  Sharon Arkin, Kathryn Davis & John Derrick
Sat, Sep. 17, 2:15- 3:45


Thanks to Ben Shatz, chair, Committee on Appellate Courts (2010-2011) , for the speaker info.

Justice Fybel Addresses State Bar

This week brings us the California State Bar Annual Meeting, taking place in Long Beach.

One highlight will be Friday's State Bar Luncheon.  4/3 Justice Richard Fybel will present "The Absence of Judicial Ethics and Impartiality: The German Legal System, 1933-1945."  Justice Fybel shares his study into how silence can turn a judiciary from independence to complicity. 

Don't miss this compelling, thought-provoking event.

Justice Breyer in OC!

Justice Stephen Breyer will discuss the court's role in preserving an effective democracy at the Nixon Library in Yorba Linda this Thursday, Sep. 14, at 7 p.m. 

He will also sign copies of his latest book, Making Our Democracy Work: A Judge’s View.

Appellate CLE Event!

OC lawyers can polish their appellate advocacy skills at the upcoming CLE presentation, "Civil Appeals:  Winning Strategies from Start to Finish," at the Westin South Coast Plaza, presented by Pincus Professional Education. 

Speakers will include 4/3 Justice Richard Fybel, 4/3 managing attorney Nancy Kendrick, me (!), 9th Circuit career law clerk Paula Mitchell, Snell & Wilmer's M.C. Sungaila and Todd Lundell, Akin Gump's Rachel Lerman, and former chief of the Criminal Appeals section of the US Attorney's Office for the Central District of California, Becky Walker James.

I'll get you more info as the date approaches.  For now, save the date of Nov. 18.

Introducing Guest Bloggers!

One way we'll try to offer more consistent blogging is by presenting posts from guest bloggers.  Our first is appellate lawyer M.C. Sungaila of Snell & Wilmer, who offers the following review of recent appellate practice books, including the new one from certified appellate specialist (and fellow blogger), Donna Bader:




"Ah, the lazy days of August – the last opportunity to get in some summer reading.  Sure, you could take a John Grisham novel to the beach, but why not take one of these appellate-related books along instead and improve your practice along with your tan?

Point Made: How to Write Like the Nation’s Top Advocates (Oxford University Press 2011)

Legal writing coach Ross Guberman uses excerpts from briefs written by 50 of the nation’s most well-known advocates to illustrate key concepts of strong persuasive writing. This is a compact book of writing tips – the primary book I recommend to all of my firm’s nascent appellate associates, as well as anyone who wants to improve their appellate writing. Reading a set of well-written appellate briefs can teach you a lot about good writing; having a guide like Guberman to take you through those briefs and explain why they work is even more effective. Among his tips: “Why Should I Care?: Give the court a reason to find for you” and “Wish I Were There: Start each paragraph by answering a question you expect the court to have."

Guberman highlights the work of some high-profile advocates – including Seth Waxman, Carter Phillips, Kathleen Sullivan, Ted Olson, David Boies, and other High Court luminaries. One of the standout briefs he refers to throughout the book is that of now-Chief Justice John Roberts in Alaska v. EPA, a classic federalism fight between the states and the federal government over environmental regulation.  Roberts was defending Alaska, which had approved less stringent technology for controlling air pollution near the Red Dog Mine than the EPA wanted. Roberts’ brief showed why Alaska was better-equipped to make decisions about the mine than the federal government thousands of miles away, by among other things describing the mine’s local history:

'For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creekbeds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creekbeds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits.  Although Baker died before the significance of his observations became known, his faithful traveling companion – an Irish Setter who often flew shotgun – was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” creek.'

The story of Red Dog Mine is a page turner in its own right.

Typography for Lawyers: Essential Tools for Polished and Persuasive Documents (Jones McClure 2010).

Once you have a well-written brief, you need to figure out how best to present it.  Matthew Butterick can help you with that. Butterick, a typographer turned lawyer, reminds us that as lawyers we are publishers with a specific goal: to persuade our readers. Typography, he explains, is for the benefit of the reader not the writer, and should reinforce the meaning of the text. Typography is about more than the choice of font; it is about arranging white space and text on a page in a way that holds the reader’s attention. In Typography for Lawyers, Butterick covers everything from the optimal use of hierarchical headings to how many spaces to insert at the end of a sentence (one, not two, contrary to traditional lore). This is the book you never knew you needed until it appeared. My law partner and in-house formatting guru Rick Derevan took this book home as soon as we got it and began to implement strategies to improve the look of our appellate briefs.

An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial (BenchPress Publishing 2011).

OC appellate lawyer Donna Bader, creator of the popular Appeal to Reason blog, has filled a niche in appellate law books with her take on appellate strategizing and positioning before and during trial. This book is like a mini-seminar on record preservation, presenting 204 trial court turning points that might impact a subsequent appeal. Appeal to Reason is a good resource for trial lawyers; it is also a good reminder for appellate lawyers about the areas we need to caution the trial lawyers we partner with about, as far in advance as possible. Appellate lawyers, after all, are increasingly part of the trial team. This book reflects that trend."

Getting Up to Speed

Over the last several months, several local appellate justices have received important Judicial Council appointments. 

• 2/2 Justice Judith Ashmann-Gerst was appointed to the Judicial Council
• 4/1 Justice Richard Huffman and 4/3 Justice Kathleen O'Leary were appointed chair and vice-chair of the Advisory Committee on Financial Accountability and Efficiency for the Judicial Branch
• 4/2 Justice Douglas Miller was appointed chair of the Executive and Planning Committee
• 2/1 Justice Jeffrey Johnson was appointed to the Court Facilities Working Group.

The Legislature passed a budget in June, cutting $350 from the judicial branch budget.  The Judicial Council allocated the cuts in July.

In August, the OCBA Appellate Law Section feted the 4/3 at its annual Court Appreciation Lunch.  Several justices and dozens of court staff mixed and mingled with section members over lunch on the court patio, expertly arranged by section chair Lisa McCall and program chair Todd Lundell.

Yesterday, the Commission on Judicial Appointments unanimously confirmed Goodwin Liu's appointment as Associate Justice of the California Supreme Court. 

And today, like NOW:  Appellate specialist Rick Derevan of Snell & Wilmer with speak to the OCBA Appellate Law Section about preserving and exploiting the record in business appeals.  Come join us at McCormick & Schmick's in Santa Ana at 12 today.

Where Did I Leave Off?

Sorry for the recent dearth of posts.  My go-to excuse is "press of business," followed closely by "family obligations" and "allergies are making me miserable" (this becomes "fighting off a cold" once school starts), with "solo side project" and "top-secret government mission" bringing up the rear.

(Sounds like a horse race.  "And Solosideproject is making a break on the outside.  Here comes Solosideproject.  It's Solosideproject and Press O' Biznuz running neck and neck, and at the wire, it's . . .")

I'll try to get us up-to-speed on recent developments.  And I'm exploring options for expansion.