Tuesday, August 4, 2020

Trio of DJ Appellate articles

Today's DJ is chock-full of appellate items:
  • GMSR's Bob Olson and Ted Xanders offer A 'clear and convincing' appellate standard, about Conservatorship of O.B. "The appellate court does not weigh the evidence anew to decide for itself whether the record evidence is clear and convincing. Rather, it decides whether construing the evidence and inferences in favor of the finding, a reasonable factfinder could so conclude. As the U.S. Supreme Court explained the standard: "[T]he judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986) (italics added)." ... "Conservatorship of O.B. broadly applies to any appeal in which the clear and convincing evidentiary standard governed in the trial court. The opinion specifically discusses the appellate standard of review as applied in a range of cases requiring clear and convincing evidence, including interpretations of deeds and wills, punitive damages in civil cases, harassment, dependency and parental rights, marital separate property rights, oral agreements not to revoke wills, and reformation of insurance policies. The court's analysis logically applies to any other case involving that standard." "The 3rd District Court of Appeal already has applied Conservatorship of O.B. by evaluating record evidence against the clear and convincing threshold for a finding that defendant's employee was a managing agent for punitive damages purposes. King v. U.S. Bank National Assn., 2020 DJDAR 7891 (July 28, 2020)."
  • And see OC Appellate Specialist Tapped to Lead Buchalter Practice: M.C. Sungaila spent the last five years as a partner at Haynes and Boone LLP, where she was appointed co-chair of the appellate practice earlier this year.

  • Finally, the monthly Exceptionally Appealing column presents AWOL@OralArg.gone recounting tales of lawyers missing appellate oral arguments.
  • And How Appealing notes: “All U.S. Appeals Courts Embrace Argument Streaming Due to Covid”: Madison Alder and Allie Reed [at Bloomberg Law] have an article that begins, “All 13 federal appeals courts now are livestreaming oral arguments compared to four prior to the pandemic, the latest sign of how Covid-19 has made U.S. courts more transparent.”
  • Also, last month we missed reporting the DJ ADR profile: Multipronged Approach: JAMS neutral Richard Aldrich, a retired Court of Appeal justice, wrote a book on settlements. The profile recounts how, when he first got to the Court of Appeal, he "floated the idea" of an appellate settlement program for the 2d District, which was created and "turned out to work exceptionally well." He also recounts how Division 3 was a "hot bench": "when the lawyers got up to argue their case, they didn't get very far into their prepared argument before one of us would start asking the first questions, taking their argument to an illogical conclusion to test their theories."