SCOTUS articles

Congrats to UCLA Law Prof. Stuart Banner for a successful cert petition, as reported here: How a Case Made Its Way to SCOTUS Docket During Summer Recess.







And see Solicitor General's Office Fills Ranks With Big Law Hires about lawyers from Gibson Dunn, K&E and Hogan Lovells becoming assistants to the SG. "A several-year tour of duty as an assistant to the SG can often become a launching pad for a return to law firms as leaders of appellate practices."

And as the excitement builds for the next term (starting 10/2), check out Eight Major SCOTUS Cases to Watch and Supreme Court Preview: Blockbuster Cases Likely to Deliver a Contentious, Consequential Fall Term.

4th DCA e-filing Amendments effective tomorrow!

Effective September 1, 2017, the Fourth District has approved amendments to the 4DCA eFiling Formatting Requirements.

• All docs must be text-searchable.
• Pagination must be consecutive starting with the cover, using Arabic numerals.
• E-Bookmarks are required for all headings, subheadings, etc.
• PDF file size is limited to 25 MB.
• Docs must be redacted to comply with CRC 1.201.

Justice Werdegar Retires: What's Next for the Supreme Court?

Today, Justice Kathryn Werdegar—the current court's longest-serving justice—retires.

Werdegar's retirement, after 23 years on the California Supreme Court bench, gives Gov. Jerry Brown the opportunity to appoint a fourth justice to the seven-member court. Brown appointed Justice Goodwin Liu in 2011, and Justices Mariano-Florentino Cuéllar and Leondra Kruger in 2014.

Here's a primer on how a state Supreme Court appointment is made:

For more information about how justices are selected, go to http://www.courts.ca.gov/3162.htm.

Bedsworth: Shakespeare's Best Advice

Beds' latest column is out and available here, and it's about writing, ... sort of. He's been writing columns for over 35 years, and writing appellate opinions for two decades. Yet he reveals, "I still approach the keyboard wondering how many arteries I will have to open and whether we couldn't use a new garage" (i.e., find some other task to do rather than write).

No one really likes to write. It's too personal. It's like opening an artery and hoping people approve of the color of your blood and don't think you made too much of a mess displaying it.

But this preamble about writing is a springboard to address an important aspect of professionalism:

What I'm suggesting is that you strive to practice in such a way that after doing battle with someone for decades, you remain friends, capable of laughing at yourselves. I'm asking you to practice law as a human being rather than a bot.

"And do as adversaries do in law; strive mightily but eat and drink as friends." That's William Shakespeare. And it's a helluva lot more important than whether you can construct a model sentence.

When Appeal Bond Sureties Get Stuck in the Middle

Dan Huckabay, President of Commercial Surety Bond Agency, provides this write-up of a recent appellate bond decision:

Wertheim, LLC v. Currency Corp., Inc. is yet another example of how surety insurers providing appeal bonds can find themselves stuck in the middle of two parties that disagree over the amount of the judgment owed, and the challenges it can create for all parties.

As in many cases, the main disagreement centered around when interest should start to accrue and when it should end. In this case, the plaintiff, Wertheim, prevailed in their earlier lawsuit and obtained a judgment that was later affirmed on appeal. When Wertheim submitted a demand to the insurer on November 2013, over a year after the remittitur issued on July 25, 2012, the defendant, Currency Corp., “wrote to Insurer and protested the release of any Appeal Bond funds on the ground that plaintiff’s calculation of the amount due was “greatly exaggerated and completely incorrect.” Currency Corp. contended that the calculation of the interest should have started when the amended judgment was entered not when the original judgment was entered as Wertheim claimed.

When a dispute such as this presents itself, an insurer will generally try to see if the parties can come to an agreement. In some instances, they may be able to pay the undisputed portion to the plaintiff, but in this case, the parties could not agree, and the insurer had to retain counsel in an attempt to interplead the funds and seek a court order to determine the correct amount that should be paid. On December 17, 2013, the insurer then, “provided a check in the full amount of the Appeal Bond ($286,078) to the Clerk of the Los Angeles Superior Court for disbursement “as the Court sees fit.”, which was ultimately rejected.

The court reached two important conclusions regarding the interest owed on the judgment. The first is interest on a money judgment begins accruing on the date the judgment was first entered, and the second is interest does not cease until the judgment is satisfied either by payment to the judgment creditor or the date the insurer deposited the appeal bond funds with the court (even though in this case the court ultimately rejected the deposit).

Two other practical considerations that can be gleaned from this decision are CCP 996.440, “which permits a party to move to enforce liability on a bond in the original action only if the motion is made within one year after any appeal is finally determined.” Ultimately, the trial court denied the plaintiff’s motion to enforce liability under the bond since it was over the prescribed time limit.

That led the plaintiff to sue the insurer to collect under the appeal bond per CCP 996.430. The insurer filed a deposit and discharge motion, and after that was granted and the funds were deposited with the court, the insurer filed a motion to recover their attorney’s fees and costs from the plaintiff, which was also granted and affirmed on appeal for the amount of $73,218.21. Interestingly enough, had the insurer not recovered the attorney’s fees, they potentially could have sought reimbursement by the defendant under the indemnity agreement they signed in procuring the appeal bond.

This entire case demonstrates that both defendants and plaintiffs need to carefully consider the possible ramifications when resolving a judgment even after the appeal is over.

Lowering the bar

The Recorder reports that the California Bar Committee Endorses Lowering Exam Pass-Score:

A California State Bar committee stocked with law school deans recommended on Wednesday that the Supreme Court reduce the bar exam passing score from 144 to as low as 135. The Law School Council endorsed setting the state's passing score between 135 and 139, a lower range than the 141 to 144 that a previous bar-commissioned study had suggested.

The DJ's article is State Bar staff urges consideration of lower exam passing score, and reports: "The bar examiners’ panel will meet Thursday in San Francisco to submit a recommendation on the cut score to the board. The board will meet Sept. 6 in Los Angeles to make a recommendation to the state Supreme Court, which has the final say."

"A passing score of 139 would have resulted in a 40 percent increase in the number of African Americans passing the July 2016 exam, while 26 percent more Hispanics would have succeeded, the bar reported. Nearly 24 percent more Asians would have passed with that reduced score, compared to 17 percent more Caucasians, the bar’s data indicated."

Bear Necessities?

Here's a case from the 3d DCA about "the distinction between 'necessaries of life' and 'common necessaries of life' as those phrases are used in different parts of Family Code section 914" ... so it's time for Baloo to start singing about the Bear Necessities.

The court also explains in footnote 6 how it would like to see parties cite to unpublished federal cases:

"[Appellant] cites to Arevalo as 'U.S.A. v. Arevalo (2007) C-99-01143M-EDL.' The limitations on citing unpublished California cases (see Cal. Rules of Court, rule 8.1115) do not apply to unpublished federal cases (Farm Raised Salmon Cases (2008) 42 Cal.4th 1077, 1096, fn. 18). However, counsel should supply such obscure authorities by way of judicial notice or, at minimum, with correct citations to LEXIS or Westlaw."

Term Begins for SCOTUS....

...Fellows!
We all know that SCOTUS begins its term each year on the First Monday in October.
But Supreme Court Fellows begin their fellowships in September.
Who are the jolly good (and lucky!) fellows this year? See Term Begins For New Supreme Court Fellows

The Supreme Court Fellows Program, established by the late Chief Justice Warren E. Burger in 1973, provides individuals with the opportunity to gain a greater understanding of the federal Judiciary by working alongside top officials in the judicial branch on various projects examining the judicial process.
In the words of Chief Justice John G. Roberts, Jr., the program offers “a unique opportunity for exceptional individuals to contribute to the administration of justice at the national level.” 

On the research front, see: ABA Legal Fact Check website launched to help public sort fact from fiction and Free PACER archive adds millions of new documents:

A free archive of federal court documents just got a whole lot bigger.
The Free Law Project, a California-based non-profit, posted every free written opinion and order available on PACER, the federal courts’ document portal. In total, this new collection contains 3.4 million documents from 1.5 million federal district and bankruptcy cases dating back to 1960, the Project explained in a blog post published Tuesday on the organization’s website.

And see California Supreme Court Helps to Shed Light on Legal System
"Webcasts of court’s oral arguments accessed more than 44,000 times"
"Next Step: Expansion to the Courts of Appeal
Taking their cue from the state’s Supreme Court, the six districts that make up the Court of Appeal in California are considering how best to stream their proceedings as well."

Fed. Judicial Picks: White, Male, Practitioners

Law360 reports Trump's First Judicial Nominees Not So Diverse, Report Says:

Out of President Donald J. Trump’s first 26 federal court nominees, only one was nonwhite, and six were women, and compared to his three predecessors, he made the most nominations from private practice, according to a recent Congressional Research Service report. ...

Roughly two-thirds of Trump’s nominations have been for district court judgeships, the CRS reports, the remaining portion of which have been for circuit court judgeships. This is in direct contrast to the previous Republican president, Bush, whose circuit court nominations comprised 19 of his first 26 nominations. ...

The diversity of Trump’s nominees as detailed in the report are a sharp departure from the demographic of Obama’s judicial nominees, according to a CRS report from early August. The prior report says that during Obama’s tenure, for the first time in the judiciary's history, “nontraditional judges,” or those who are white women, nonwhite women and nonwhite men, made up more than half of active U.S. district court judges. Obama was similarly the first president whose circuit court appointees were by and large “nontraditional” — 69 percent to be exact.

On the lighter side, see Batman, Barrels, and the Beast 666: Crazy Case Names

LACBA ACS's Fall Programs

• Tuesday, September 12, 2017, 4:30-6:00 p.m.

State of the Court

At Ronald Reagan State Building, Employee Lounge.

No Registration necessary. No CLE credit.

This is our traditional state of the court meeting to kick off our 2017-2018 term.  Justice Dennis Perluss, Interim Administrative Presiding Justice, and Joseph Lane, Clerk and Executive Officer of the Court, will address our section on the state of the Second District.  We also will discuss upcoming programs. This is a great opportunity to ask questions about the workings of the Court from individuals who know most about it.

• Thursday, October 19, 2017, 5:00-6:30 p.m. Reception to follow.

Judging the Judge: A Candid Conversation Between Judge Alex Kozinski and Professors Ronald Collins and David Skover on Appellate Judging and the Politics of Law

At Ninth Circuit Court of Appeals, 125 South Grand Avenue, Pasadena

Registration not yet open. CLE credit offered.

In their latest book, The Judge: 26 Machiavellian Lessons (Oxford University Press, 2017),  Professors Collins and Skover raise a provocative question: What flows from the proposition that law is politics, or that Supreme Court decision-making in controversial cases is greatly influenced by  partisan beliefs? That is, ever more people (in and outside of the law) believe that judicial power is a form of political power. If so, what then? The answer: the maximization of judicial power, which is where Machiavelli comes in by way of the 26 power-maxims urged by the authors. And appropriately so because today both liberals and conservatives routinely criticize their ideological opponents on the bench for acting politically. Some legal experts even posit the impossibility of apolitical judges. It is against this conceptual backdrop that Judge Kozinski will engage the authors in a spirited dialogue about partisan politics and the art of appellate judging, primarily at the Supreme Court level. (Q&A afterwards)  

Panelists:

Judge Alex Kozinski, United States Court of Appeals for the Ninth Circuit.  

Professor Ronald Collins at the University of Washington Law School 

Professor David Skover at Seattle University School of Law

• Tuesday, November 14, 2017, 4:30-6:00 p.m.

Dispositions:  Getting What You Really Want

At Ronald Reagan State Building, Employee Lounge.

Registration not yet open.  CLE credit offered.

The dispositional language controls the appellate outcome and all proceedings on remand, but most appellate briefs overlook it. An appellate justice and an appellate court attorney will explain civil and criminal dispositional options and offer sample language. The presentation will equip attorneys to request precise dispositional

language that best serves their client in order to maximize wins, control

losses, and minimize time and expense in proceedings on remand. Is

an unqualified reversal (and a new trial) really best for the client? Or

would reversal with directions for limited proceedings on remand be better? Or is it possible to get a reversal directing the final disposition?

Or will the court modify and affirm the judgment with no further trial court hearing on remand? Can the disposition include restitution for losses caused by the erroneous judgment or order? This course will answer these questions and prepare practitioners to ask for what they

really want on appeal.

Panelists:

Justice Martin Tangeman, Court of Appeal, 2d Dist., Div. 6

Katy Graham, Senior Appellate Court Attorney, 2d Dist., Div. 6