"1st District’s new local rules: a guide"

In today's DJ's Appellate Zealots column Sarah Hofstadter of CALG helpfully presents a guide to the 1st District's new local rules that took effect August 23:

• On a global but non-substantive level, the court: (1) reordered the rules so that they roughly track the sequence of stages of an appeal; (2) revised the format and language to be more user-friendly, and to reflect the possibility that parties will be self-represented on appeal; (3) added and updated citations to relevant provisions of the California Rules of Court; (4) added URLs for the web pages where referenced court forms may be found; and (5) deleted several rules (identified below) that have become obsolete.
• Motions to Augment the Record (former rule 7, now rule 4)
•  Settlement conferences (former rule 3, now rule 9)
• Stipulated reversal (former rule 4, now rule 10)
• Electronic filing (former rule 16, now rule 12)
• Oral argument (NEW rule 13)
• Focus letters and tentative opinions (NEW rule 15)
• Division One has indeed started issuing tentatives in some cases!
• New authority prior to oral argument (NEW rule 16)
• Electronic devices in the courtroom (NEW rule 17)
• Abbreviated opinions (NEW rule 19)
• Circuit-riding sessions (former rule 14, now rule 20)

Also of interest: The Federal Circuit (and other federal circuits) often decide appeals in one-word orders (i.e., "affirmed"), which some lawyers and litigants find "frustrating." Putting the lie to "Everybody talks about the weather, but nobody does anything about it," another attack has been launched against this practice. Law360 has Justices Again Asked To Abolish Fed. Circ.'s 1-Line Orders: "The petition focuses on the issue of whether the Federal Circuit's frequent practice of issuing "cryptic" one-line affirmances under Rule 36, which SPIP said violates its due process rights and goes against the practices of nine other circuit courts."

9th Cir. nomination!

Law360 reports: New Picks for 9th, 2nd Circs., noting:

Judge Danielle J. Hunsaker, selected for the Ninth Circuit, and William J. Nardini, for the Second, are the only nominees to the federal appeals bench in Wednesday's announcement by the White House. Judge Hunsaker was recommended by Oregon's judicial selection committee to replace Senior Circuit Judge Diarmuid F. O'Scannlain, a seat President Donald Trump had unsuccessfully tried to fill with federal prosecutor Ryan Bounds. 

The lower federal court nominees include Los Angeles Superior Court Judge Fernando Aenlle-Rocha, Orange County Superior Court Judge Sandy N. Leal and Jenner & Block LLP partner Rick Richmond for the Central District of California; Associate Deputy Attorney General Adam Braverman and Jones Day partner Shireen Matthews for the Southern District of California

The Recorder has Trump Nominates Lawyers with Big Law Ties to SoCal Bench Alongside New Ninth Circuit Candidate.

8/29/19 Update: Today's DJ has Oregon State Judge Nominated for 9th Circuit Seat

• Prior to her state judicial role, Hunsaker was a partner at the Portland firm Larkins Vacura Kayser LLP focusing on civil litigation and appeals work. She also taught civil procedure as an adjunct professor at Lewis & Clark Law School from 2011 to 2016. She earned her law degree from the University of Idaho.
• If confirmed, Hunsaker would become Trump’s eighth successful appointment to the San Francisco-based appellate court long considered the most ideologically liberal of the federal circuits. The 9th Circuit is authorized 29 judgeships.

Also on the topic of fun new jobs, see New Supreme Court Fellows Begin Term

Justice Scotland to lead investigation

California Supreme Court Hires Retired Appellate Justice to Lead Bar Exam Investigation 

The Supreme Court of California has hired retired Presiding Justice Arthur G. Scotland and his law firm of Nielsen Merksamer to spearhead an independent investigation into the partial disclosure related to the July Bar exam.

The Recorder has CA Supreme Court Hires Former Appellate Justice to Review Bar Exam Blunder. The Bar will pay $60K for a report due November at the latest.

8/29/19 Update: Today's DJ has Retired Appellate Justice to Investigate Bar Exam Leak: "Scotland spent more than 21 years on the appellate bench before retiring in 2010. Two years later, he reactivated his license and joined Nielsen Merksamer, specializing in administrative law, election law and litigation."
Law360 has Calif. High Court Taps Retired Judge to Probe Bar Exam Leak

CJP hearings winding down

Today's DJ has Justice’s misconduct hearing winds down with testimony about his anger

After 16 days of testimony over the past month, the Commission on Judicial Performance hearing that could lead to Johnson’s removal from the bench adjourned until mid-September to accommodate one last witness, who is out of the country.

In the contest for best opening paragraph in an opinion, how's this one from the 11th Circuit:

You can’t make this stuff up. We have hair-pulling, wrist-scratching, face-punching, and rock-throwing—all the makings of a good old-fashioned schoolyard scrap. But alas, the combatants in the fracas underlying this Fourth Amendment case were grown-ups—sisters, in fact. Sheesh.

And how exceptional is anti-SLAPP law? Well, as this published opinion from 4/2 explains, there are exceptions to the exceptions:

An appeal from an order granting or denying an anti-SLAPP motion is an exception to the nonappealability of interlocutory orders. ...

However, in 2003 the Legislature enacted section 425.17, which “categorically exempts certain expressive actions from the scope” of anti-SLAPP protection (citation) and makes immediate appeal of an order applying the exemption unavailable.

CLA Appellate Summit in LA on Sept. 20

Registration is now open for CLA's Appellate Summit in Downtown LA on September 20!
The keynote luncheon speaker is Justice Kruger. (Earn 6.25 Hours of Appellate Specialization MCLE.) Schedule and registration available here.
The Appellate Lawyer Hall of Fame inductee will be Jon Eisenberg.

CJP: The Defense Rests

Today's DJ has Defense Rests After Justice Forcefully Defends Actions -- "Rebuttal witnesses called by the examiners are expected to testify Monday." [8/27 Update: another day, another DJ article....]

Claudia Ribet offers Appeals in Family Law Before a Final Judgment is Entered about the 
"statutory exception to the "one final judgment rule" for interim rulings in a dissolution, nullity or legal separation proceeding. When the trial court bifurcates an issue for separate trial or hearing prior to disposition of the entire case, the Court of Appeal "may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate.""

NLJ has At The Crossroads: A Look Ahead at the New U.S. Supreme Court Term

'I'm a Flawed Human Being,' Judge Says at Sexual Harassment Trial

The Recorder presents 'I'm a Flawed Human Being,' Judge Says at Sexual Harassment Trial -- Second District Court of Appeal Justice Jeffrey Johnson admitted, under cross examination on Friday, that he made an occasional “bad joke” and might have forgotten some details, but he insisted that he did nothing unethical.

Are you ready for some football?

Football already?! The Dodgers haven't even won the World Series yet! Well, Law.com says:

It’s that time of year, when the country’s biggest, brawniest athletes head out to the gridiron. Lest you think football is just for brutish lunkheads, history shows us that quite a few NFL players, including U.S. Supreme Court Justice Byron “Whizzer” White, turned to the law for post-football careers. Take a look.

See This SCOTUS Justice Wasn't the Only NFL Player Who Became a Lawyer.

New 1st DCA Local Rules Effective Today!

"The Court of Appeal, First Appellate District, is updating its local rules. The new rules will take effect on August 23, 2019. View the new local rules"
This is so very exciting for so many reasons, but especially because of Rule 15:

Rule 15. Focus Letters and Tentative Opinions
(a) [Focus Letters] Panels may issue focus orders or letters in cases scheduled for oral argument. These orders or letters are issued before argument, and they notify the parties about particular issues the panel is interested in discussing.
(b) [Tentative Opinions] Panels may, on occasion and in their sole discretion, issue tentative opinions in cases scheduled for oral argument. Any such tentative opinion will be issued before the argument, and the parties will be notified that the court is prepared to rule along the lines indicated in the tentative opinion. The oral argument will remain calendared unless all parties, within a period designated by the panel, notify the clerk that it is no longer desired. (1) If all parties notify the clerk that oral argument is no longer desired, the substance of the tentative opinion will be reflected in the court’s final opinion, provided however that if, for any reason, the panel subsequently contemplates a substantial change in the analysis or disposition, the parties will be so notified and given the opportunity to request oral argument. (2) If all parties do not notify the clerk that oral argument is no longer desired, oral argument will proceed as calendared and the views expressed in the tentative opinion will be subject to change.

CJP update: Justice Johnson Testifies

The Recorder offers: CA Judge Calls Sexual Harassment Allegations at Trial 'Insulting' and Racist

"Second District Court of Appeal Justice Jeffrey Johnson denied sexual harassment allegations on Thursday, testifying: “I’m at risk of losing my job, because someone’s saying I’m talking about the color and size of my penis. It’s insulting.”"

8/23/19: Today's DJ has Tearful Justice Testifies He Never Meant to Harass Women

Special Civility Issue

The Summer 2019 ABTL-LA Report newsletter focuses on civility with an articles by Robin Meadow, Justice Currey and Judge Brazile, PJ Edmon and Judge Jessner, Judge Kuhl, Judge Bacigalupo, Magistrate Judge Segal, etc. You get the picture. In short, we all need to read this. (Shout-out to the ABTL Report Editors Robin Meadow (GMSR) and John Querio (H&L) for such an important issue.)


Also from today's Wall Street Journal, a couple Letters to the Editor of note:

“The Flip Side of Making Partner” (Exchange, Aug. 10) describes the loss of loyalty, the globalization of many firms and the sales-oriented nature of promotions and pay. What it does not address is what enabled this change to happen. Decades ago, law firms were organized as true partnerships, with the personal assets of partners serving as collateral for the obligations of the firm. If one partner created a big liability, these personal assets were at risk. Partners valued prudence and loyalty in their colleagues.

The creation of a new legal form in the 1970s, the Limited Liability Company (LLC), enabled firms to be owned and run like a partnership, but without risk to the personal assets of the partners. It proved irresistible. Sales became more important than prudence in determining hiring, promotions and pay. As those hired under the new ethos became the majority in the partnership, the old culture vanished. Large-scale law-firm mergers became possible because there was a simple postmerger metric of success: sales. The LLC enabled firms to become global and compete for enticing global business by adding partners from faraway places one didn’t really know well enough to trust with one’s personal assets. Designing systems where there is no personal downside and lots of upside has predictable consequences, many cultural, ones not just restricted to LLCs and law firms.
Lynn Feldman

After making partner in a well-known Washington, D.C., law firm, I received a phone call from a headhunter seeking to recruit me to join another law firm. I responded to the solicitation by saying: “I guess you didn’t know that I am a partner here now and, of course, won’t be leaving.” When he finished laughing, he said he could “dine out” on that answer for months. While I considered a partnership agreement analogous to a marriage contract, the world had moved on, both for law firms and marital relationships. I had wanted to be a lawyer since I was 13 years old, during the height of the civil-rights movement. Law was a profession and I was eager to earn my J.D.
Today, when asked, I discourage young people from going to law school unless they recognize and accept one painful (for me) truth: Law is no longer a profession; it is first and foremost a business.
Lynda Zengerle

CJP hearing report

Today's DJ has Attorney says court leaders dismissed sex harassment concerns: An attorney whose 100-signature petition about sexual harassment in the 2nd District Court of Appeal spurred the investigation of Justice Jeffrey W. Johnson testified Wednesday that initially the administrative presiding justice as well as the head clerk dismissed her concerns.

Today's Recorder has two articles of appellate note:

• In Trust Litigation, It's Best to Take the 'Appeal Now' Approach -- There are some procedural issues, however, that civil litigators must approach differently in probate court. At the top of this list is the timing and availability of the “interlocutory” appeal. 
• On Appeals: Beware the Traps for the Unwary in Settlement Agreements

CJP proceedings proceeding

Today's DJ has Witness says he passed high school gossip to justice that spread around courthouse. Law360 has Calif. Judge Under Investigation Is Tough, But Fair, Panel Told.

Yesterday's DJ also has Justice Hoffstadt's The Jagged Shore: "the shore defining the boundary of indigent defendants' constitutional right to forestall or forego liability for certain assessments and fines is still forming. For now, that shore is a jagged one."

And U.S. Courts News presents:
Mary Murphy Schroeder: She Broke Barriers From the Start

In 1979, Mary Murphy Schroeder joined a historic class of women judges who transformed the federal Judiciary, but her law career nearly ended before it began. The night before her first final law exam at the University of Chicago, Schroeder collapsed and was hospitalized with a severe kidney infection. Judge Schroeder's story is the second in a multi-part series. Over coming Wednesdays, we’ll release new profiles on many of the 23 women appointed to the federal bench 40 years ago. Follow along to learn more about these trailblazers.

And The Recorder has Wilson Elser’s Robert Cooper on Winning a Rare Pro-Employer Decision From the Calif. Supreme Court.

'Justice's Daughter, Attorneys Speak On his Behalf at Discipline Hearing'

That's today's DJ story in the CJP proceedings, subtitled: Jeffrey W. Johnson was a loving father, trustworthy mentor, good friend and reliable career advocate according to his daughter and several attorneys who testified Monday at a hearing into physical and verbal sexual harassment and bullying accusations against the appellate court justice made by 17 women.

"The hearing, expected to last 19 days, entered its third week Monday. Three judicial officers designated special masters by the Commission on Judicial Performance are hearing the testimony of witnesses called by the commission’s examiners and Johnson’s attorneys. If the special masters conclude Johnson engaged in judicial misconduct, they can recommend discipline up to removal from the bench. The women who testified against him range from fellow justices on the 2nd District Court of Appeal to former court workers, attorneys and a California Highway Patrol Officer assigned as his security detail." 

Comment on FRAP changes!

Proposed Amendments Published for Public Comment - August 2019

On August 19, 2019, the Judicial Conference Advisory Committees on Appellate, Bankruptcy, and Civil Rules published proposed amendments to their respective rules and forms, and requested that the proposals be circulated to the bench, bar, and public for comment. The proposed amendments, rules committee reports explaining the proposed changes, and instructions on how to submit comments are posted on uscourts.gov. The public comment period ends February 19, 2020.

See Judicial Panel Floats Rules To Save 'Appellate Rights' -- "The amendments would affect the rules for notices of appeal, filings that formally begin the appellate process. The proposed changes are meant to prevent litigants from inadvertently limiting their appeals to only one order, when perhaps they also meant to challenge others that led to final judgment."

The DJ's Top 40 Under 40 report includes Reed Smith Appellate Lawyer Kasey Curtis, a former 9th Circuit clerk to Judge Rawlinson.
Also noted was Alyssa Bell of Cohen Williams LLP, in Los Angeles, who does federal criminal appeals.

CJP defense case begins

Today's DJ has Justice Sobs As Educator Describes How He Mentored Her, about CJP proceedings on Friday in which the defense began its case. "Several of Johnson’s witnesses gave conflicting versions or different interpretations of events that were related by judicial officers, court employees and other witnesses called by Commission on Judicial Performance examiners during the first eight days of the hearing before a special masters panel."
Law360's article is Retired Judge Defends Ex-Colleague Accused of Misconduct.

"Senators File an Enemy-of-the-Court Brief"

That's the title of a Wall St. Journal article today, which explains:

Five Democratic Senators have had it with subtle. In a remarkable and threatening amicus brief, Sheldon Whitehouse, Mazie Hirono, Richard Blumenthal, Richard Durbin and Kirsten Gillibrand all but tell the Justices that they’ll retaliate politically if the Court doesn’t do what they say in a Second Amendment case. 

See Warning or Threat? Democrats ignite controversy with Supreme Court brief in gun case.

Latest CJP hearing articles

Law360 has Atty Tolerated Judge's Sexist Remarks For Career, Panel Told and the DJ has Ex-clerk says before her testimony justice noted he was suing women who accused him.

The Mystery of the Missing Clerks

Law.com/NLJ offers A New Push to Solve the Mystery of Low Numbers of Minority Law Clerks

A new effort is underway to find the answer to a quandary that has long vexed the federal judiciary: why so few minorities serve as law clerks.
California Supreme Court Justice Goodwin Liu, a former clerk to Supreme Court Justice Ruth Bader Ginsburg, has joined former judge and Federal Judicial Center director Jeremy Fogel, and the American Bar Foundation, to delve into the question and come up with positive solutions for judges, law students, professors and other players in the law clerk hiring process.

CLA Monthly Lit Update online

Litigation Update for August 2019 The August 2019 issue of Litigation Update is now online, keeping you up to date on current case law. See the August 2019 Litigation Update!

And on and on

CJP hearings continue; today's DJ reports on "tearful" testimony in CHP Officer Says Justice Propositioned Her Repeatedly; Law360 has Calif. Appellate Judge Asked CHP Officer for Sex, Panel Told.

How about some case notes?

• Here's a published opinion ordering the appointment of appellate counsel.
• And here's a nice phrase from an unpub'd decision affirming the disqualification of counsel: "But this ethical wall had significant cracks."

And for a tale of appellate-lawyers turned plaintiffs, suing their old firm, see Couple Sues Law Firm Over Parental Leave, Wages and a Firing.

The Chief by the numbers

Today's DJ features H&L's Kirk Jenkins continuing series, this time Chief Justice Tani G. Cantil-Sakauye by the Numbers. Here are a few key tidbits:

• To date, the chief justice has voted in 270 civil cases and 431 criminal, quasi-criminal, juvenile, disciplinary and mental health cases. She has written 39 majority opinions in civil cases -- 14.44% of the cases she has participated in. ...The chief justice has written 65 majority opinions in criminal cases, or 15.08% of her total cases.
• On the civil side, the chief justice has written 11 opinions on civil procedure, 10 of them majority opinions. She has written nine opinions on constitutional law and government and administrative law; while all nine were majorities in constitutional law, only five of the nine government and administrative law opinions were majorities. The chief justice has written five tort opinions, including four majorities, and two opinions in wills, trusts and estates, both majorities. She has written two opinions each in tax and insurance law, all majority opinions. The chief justice has written two employment law opinions, one a majority and one majority opinion in election law. Finally, she has written one opinion each in domestic relations, environmental law and contract; each of these opinions was a majority.
• Chief Justice Cantil-Sakauye ranks roughly in the middle of the court in the frequency of her questioning, generally averaging slightly more questions of appellants (particularly in criminal cases) than of respondents. In 2017 civil cases, the chief justice averaged 3.63 questions in appellants' opening argument, 3.93 of respondents, and 0.71 during rebuttal. On the criminal side, she averaged 4.02 questions in appellants' opening, 2.66 of respondents and 0.29 in rebuttal. In 2018 civil cases, the chief justice averaged 4.17 questions during appellants' opening, 4.9 of respondents and 0.8 in rebuttals. On the criminal side, she averaged 2.62 in appellants' opening, 2.26 of respondents and 0.3 in rebuttals. So far in civil cases decided this year, the chief justice has averaged 3.33 questions in appellants' opening, 3.14 of respondents and 1 during rebuttal. In criminal cases, she has averaged 3.42 questions in opening, 2.27 of respondents and 0.58 in rebuttal.
• The data demonstrates the scope of Chief Justice Cantil-Sakauye's influence on the Supreme Court. She nearly always votes with the majority, both in civil and criminal cases. The agreement rate data places her squarely in the middle of the court's ideological consensus: moderate occasionally tending liberal in civil cases, somewhat more conservative in criminal cases. Notwithstanding her heavy administrative responsibilities, the chief justice writes a proportional share of the court's majority opinions, and in the very rare criminal case where the chief justice is in the minority, the court is likely to be sharply split.

Speaking of 'by the numbers,' see By the numbers: Lawyer Salary Increases in the Past Two Decades. Data compiled by the American Bar Association shows that average lawyer pay has nearly doubled since 1997. 

And in the CJP saga, today's DJ has Investigation of Justice Johnson began with a petition to the court.

Defending the Judiciary

Law360 has two interesting pieces today. First 9th Circ. Judge Warns 'Judicial Independence Is At Risk' about how, in accepting the ABA's John Marshall Award on Friday, Judge McKeown "told a room packed with judges and attorneys that recent attacks on judges pose a threat to the rule of law, and urged her colleagues to do more to defend judicial independence." (The article notes, "In March 2017, California Chief Justice Tani Cantil-Sakauye issued a similar warning to the Golden State legislature, saying that “the rule of law is being threatened” in the United States, with all three branches of government and the free press seeing their values, practices and laws called into question.") Judge McKeown "dedicated her award to all imperiled judges around the world, including a Turkish judge — whom she called only Judge Mahmet — who she says has been imprisoned since 2008 after writing about his support for judicial independence there."

Judge McKeown urged her colleagues to remember that the "rule of law is more than just a catchy feel good phrase, it is the foundation of our democracy" and that it must be defended.

Second, Judges Say 'We've Had It' With Attacks on the Judiciary: "The time has come for judges to "take more aggressive action" to fight back against attacks on the judiciary made by President Trump and other politicians, Washington Supreme Court Justice Debra Stephens said Friday, speaking on a six-judge panel on the topic." (Chief Justice Cantil-Sakauye was on the panel.)

As for the continuing CJP hearing, see Law360's Calif. Appellate Judge Demeaned Fellow Judges, Panel Hears and in today's DJ: Presiding Justice Criticizes Johnson's Work Performance.

And shocking news from the Wall Street Journal: Being a Law Firm Partner Was Once a Job for Life. That Culture Is All but Dead. At the modern law firm, not all partners are created equal, and data and billings rule