FRAP 36s waning in Fed. Cir.?

Bloomberg Law has Federal Circuit Writing More After Critique of One-Word Rulings

The Federal Circuit is writing more opinions — specifically more nonprecedential opinions — several years after it faced criticism from a group of patent lawyers and academics over the frequency with which it disposed of cases using single-word judgments saying just “affirmed.”

In 2025 the US Court of Appeals for the Federal Circuit issued 94 judgments under Federal Rule of Appellate Procedure 36, which allows for such decisions. According to a Bloomberg Law analysis, it was the first time that number dipped below 100 since 2007, and the court is on pace to post a modestly smaller total in 2026.

BK appellate jrdxn case

Today's DJ's Exceptionally Appealing column is Mulling Modifications -- A change from $X to zero dollars isn't a change in judgment?, about when an appellate modification changes the appellate judgment or not.

On another esoteric appellate point, those interested in bankruptcy appellate jurisdiction should review this Ninth Circuit opinion (and this blog post from Prof. Martin). The official summary explains: "The panel held that the court of appeals has jurisdiction under 28 U.S.C. § 158(d)(1) over appeals of orders that finally dispose of discrete disputes within a larger bankruptcy case."

The NYT has How the Supreme Court Locks Away Its Own History -- After Justice Scalia died, the justices held private negotiations about locking away their papers. We may not see the ultimate record of the Roberts court for decades.

Post-trial dangers

The DJ has Rex Heinke's Avoiding two common errors on post-trial motions:

• The most common error I see in federal court is a failure to comply with Federal Rule of Civil Procedure 50(a). Rule 50(a) requires a party to make a JMOL motion before a case is sent to the jury if the motion claims there is insufficient evidence to justify a verdict for the opposing party (previously known as a motion for a directed verdict). If this motion is not made, the party cannot make a JMOL motion under Rule 50(b) after there is a verdict and claim there was insufficient evidence to support the verdict. 

• The most common error I see in post-trial motions in California state court is the failure to ensure the trial court knows its power to rule on a motion for a JNOV or new trial expires 60 days after the clerk or a party mails the notice of entry of judgment. If the court does not rule within this time, the motion is automatically denied by operation of law.

AI sanctions = respondent's appellate fees

4/2 is understandably not happy with pro pers who filed an "opening brief was replete with fabricated legal authority." In this unpub the sanctions imposed are the respondents' appellate attorney fees (to be determined by the trial court).

Today's DJ has Noel Guth's No Reporter, No Record, No Longer, about the FVAP opinion.

Citing the California Access to Justice Commission's November 2024 issue paper, the court noted that for the year ending March 31, 2024, more than 1 million hearings and trials took place in unlimited civil, family and probate cases for which the superior courts provided no means of creating an official transcript. The Commission estimated that litigants in over 70% of proceedings in those three categories had no access to an official transcript. ... Los Angeles County Superior Court reported in its own general order that it held more than 332,000 hearings in 2023 with no verbatim record. ....

Government Code section 69957, subdivision (a), authorizes electronic recording only in limited civil, misdemeanor and infraction cases, and prohibits its use to make an official or unofficial record in any other case. The court did not strike the statute or declare it unconstitutional. It implied an exception.

Appellate sanctions!

See here for an unpub from 2/1 in which appellants' "arguments lack merit" and his attorney "repeatedly misrepresents the record," so ... $5K in sanctions payable in equal parts to the court and respondents.

Also of note, this unpub here from 2/6, which begins the Discussion section with a heading for "Duties of appellate counsel," noting that "The briefs of both parties fail to comply with the appellate rules and are of little help to the court in determining the operative facts."

Law.com has Getting Yelled at by Supreme Court Justice Scalia Made Me a Better Lawyer

Local rule can't bounce notice of appeal

The 5th District today, in this published opinion, makes clear that a local superior court that requires a notice of appeal to be paper filed does not allow the court to reject a timely notice of appeal submitted for efiling.

The MetNews story is Notice of Appeal Was Wrongly Bounced by Clerk's Office -- Justices say such an action may not be taken based on local rule alone

Writing advice and more

Law.com has Judge Bibas on Opinion Writing: Skip the '$5 Words,' Read More Fiction -- "A lot of [lawyers] have stopped reading enough good fiction and journalism, and need to unlearn the habits of using fancy Latinate legalisms. Why do we say ‘forthwith’ rather than ‘at once’? Why do we talk about the perpetrator exiting the vehicle and being apprehended, like we are cops trying to sound important?"

8 new justices

Today's DJ has Commission confirms 8 Court of Appeal justices in 4 districts -- The appointments address retirements, a death and one elevation.

The Commission on Judicial Appointments confirmed eight California Court of Appeal justices over two days, filling vacancies across four appellate districts and elevating Justice Rashida Adams to presiding justice of the 2nd District Court of Appeal, Division 3.

SCOTUS Bar article

The NYT (specifically The Docket, Adam Liptak's newsletter) has A Few Expert Lawyers Dominate Supreme Court Arguments, a New Study Finds -- Chief Justice Roberts, once such a lawyer, has said he has mixed feelings about the trend.

Chief Justice John Roberts has said that he sometimes misses the old days, when “the sole practitioner with the battered briefcase” would arrive in Washington from far away to argue a once-in-a-career case at the Supreme Court. These days, arguments are dominated by a small number of polished lawyers who specialize in Supreme Court advocacy. A new study prepared for The New York Times confirmed the change.

Closer to home, the DJ has issued its Top 40 Under 40 (2026) including the ACLU's Neil Sawhney, Manatt's Zach Howe, and H&L's Rebecca Powell.

4 new justices

The Recorder has Calif. Commission Confirms 4 State Appeals Court Justices -- Among those confirmed Thursday was David Sapp, Gov. Gavin Newsom's legal affairs secretary.

Sapp was one of four court of appeal selections endorsed unanimously by the commission on Wednesday. The governor has moved quickly in recent months to fill the remaining vacancies on California’s mid-level courts before he leaves office next year. Newsom publicly nominated eight candidates, including Sapp, on Aug. 7 and days later the Commission on Judicial Appointments scheduled confirmation hearings this week.

FRAP proposals

Proposed FRAP Amendments are here --  relating to service and electronic filing by self-represented litigants. Comments due Feb. 15, 2027.

CJA hearings (2d Dist.) 8/19&20

The Commission on Judicial Appointments will hold in-person hearings in San Francisco on August 19th and 20th to consider two appointments to the Second District Court of Appeal by Governor Gavin Newsom.

The commission will consider the following 2DCA appointment on Wednesday, August 19, 2026:

4:00 p.m.: Judge Denise Hippach, as associate justice of the Second Appellate District, Division Six (Ventura)

The commission will consider the following 2DCA appointment on Thursday, August 20, 2026:

9:30 a.m.: Justice Rashida Adams, as presiding justice of the Second Appellate District, Division Three (Los Angeles)

The End of 'Dismiss and Appeal'

In Law360, Josh Patashnik of Ashurst Perkins has Calif. Justices' Ruling Reshapes Midcase Appeal Strategy -- The California Supreme Court's unanimous July 16 decision in Maniago v. Desert Cardiology Consultants' Medical Group Inc. resolves a long-running split among intermediate appellate courts in the state and delivers a clear message to civil litigators: A voluntary dismissal cannot be used as a shortcut to appellate review of interlocutory orders.

In the DJ, Myron Moskovitz has Working, Part 3: Reviewing the reporter's transcripts -- Winning appellate arguments often hide in the reporter's transcripts, where a judge's revealing remark, a damaging concession or a witness's memorable testimony can become the brief's most persuasive line.

2d/3d Dist. pro tem update

The following are currently sitting on assignment in the 2d District:

• Judge Melanie P. Ochoa of the Los Angeles County Superior Court will be sitting Pro Tem in Division Three through August 31, 2026
• Judge Curtis E.A. Karnow (Retired) of the San Francisco County Superior Court will be sitting Pro Tem in Division Three through September 22,
• Judge Vicki Ashworth (Retired) of the El Dorado County Superior Court will be sitting Pro Tem in Division Three through October 14, 2026
• Judge Jessica Delgado of the Santa Clara County Superior Court will be sitting Pro Tem in Division Three through September 30, 2026
• Judge Sanjay Kumar (Retired) of the Los Angeles County Superior Court will be sitting Pro Tem in Division Five through October 18, 2026
• Judge Ronda J. McKaig of the Ventura County Superior Court will be sitting Pro Tem in Division Six through August 31, 2026

And in the 3d District Associate Justice Rebecca A. Wiseman, retired, will be sitting in pro tempore beginning July 15, 2023, through August 14, 2026, and to complete matters.

Sanctions for frivolous writ

 4/3 imposes $5K in sanctions for a frivolous writ petition here.

When attorneys make misleading statements to courts or fail to promptly update courts when new facts emerge that are relevant to a matter under consideration, courts unnecessarily expend resources assessing issues under false premises. And only when counsel’s zealous advocacy is exercised consistent with counsel’s duty of candor to the court can the judicial system achieve its goal of ascertaining the truth.

... 

The petition ... was plainly frivolous when filed in light of the undisclosed information about the San Diego action. No court would issue extraordinary writ relief to remedy a trial conflict that no longer existed. No reasonable attorney would file a writ petition on this factual record, making the arguments that were made in the petition ....

[The MetNews article is C.A. Imposes $5,000 Sanction on Lawyer for Lack of Candor -- Attorney Sought Writ, Saying Dates of Two Trials—One Set for June 29 in Orange County, the Other for May 15 in San Diego Superior Court—Conflicted; Justices Not Told Earlier of Two Proceedings Had Been Moved to October; The DJ's article is Attorney sanctioned $5,000 over frivolous writ petition --California appellate court fined attorney $5,000 after finding he failed to disclose that a trial conflict cited in his writ petition had already been resolved.]

CJA-palooza!

The Commission on Judicial Appointments will hold in-person hearings in San Francisco on Aug. 19 starting at 1 p.m. and on Aug. 20 starting at 9:30 a.m. to consider eight appointments by Gov. Gavin Newsom.

View the live webcasts for August 19 and August 20.

The commission will consider the following appointments on Aug. 19:

• 1 p.m.: David Sapp, as associate justice of the Third Appellate District (Sacramento)
• 2 p.m.: Judge Lauri Damrell, as associate justice of the Third Appellate District (Sacramento)
• 3 p.m.: Judge Frederick Chung, as associate justice of the Sixth Appellate District (San Jose)
• 4 p.m.: Judge Denise Hippach, as associate justice of the Second Appellate District, Division Six (Ventura)

The commission will consider the following appointments on Aug. 20:

•  9:30 a.m.: Justice Rashida Adams, as presiding justice of the Second Appellate District, Division Three (Los Angeles)
• 10:30 a.m.: Judge Juliet Macaulay, as associate justice of the Fourth Appellate District, Division Three (Santa Ana)
• 11:30 a.m.: Judge Lisa Rodriguez, as associate justice of the Fourth Appellate District, Division One (San Diego)
• 12:30 p.m.: Judge Marsha Amin, as associate justice of the Fourth Appellate District, Division One (San Diego)

The hearing webcasts will be streamed live on the California Courts Newsroom.

6th DCA CJA hearing set

The Commission on Judicial Appointments will hold a public hearing in San Francisco on Wednesday, August 19, 2026, beginning at 3:00 p.m. to consider Governor Gavin Newsom's appointment of Judge Frederick S. Chung as Associate Justice of the Sixth District Court of Appeal.

RIP Justice Slough (1958-2026)

 The DJ has Justice Marsha Slough, 1958 -- 2026: Retired 4th District Court of Appeal justice was "blue-collar" jurist, led court through pandemic

Retired Justice Marsha G. Slough, whose two decades on the California bench took her from working directly with troubled teenagers in San Bernardino County to helping lead the state judiciary through the COVID-19 pandemic, died Saturday following an illness. She was 68.

Slough retired from the 4th District Court of Appeal, Division 2, in Riverside in 2023 after nearly a decade on the appellate bench.

9th Cir. tech issue extends deadlines

Technical Issue -- Due to a technical issue on August 10, 2026, the Ninth Circuit's case management systems was temporarily unavailable. This affected both CM/ECF, ACMS, and the court's email inbox. The Administrative Office of the Courts has now resolved the issue.
The court will sua sponte extend all deadlines for filings due today under Fed. R. App. P. 26(a)(3).

FVAP opinion is out!

The Supreme Court's opinion in FVAP v. Superior Court has issued here, and the disposition is:

Let a writ of mandate issue directing the respondent superior courts to provide indigent litigants, upon request, with meaningful access in all cases to an official verbatim record of proceedings, including by means of electronic recording if an official reporter or official reporter pro tempore is unavailable.

"courts can and should imply an exception to section 69957 where reasonably necessary to provide indigent civil litigants with meaningful access to justice and an official verbatim record." (Opn. at 5.)

[The DJ has California Supreme Court orders electronic recording when court reporters unavailable -- Writing for a unanimous court, Chief Justice Patricia Guerrero said California's chronic shortage of court reporters cannot leave litigants who cannot afford private reporters without a meaningful record for appeal.

Bloomberg Law has California High Court Eases Courtroom Recording Restrictions, noting "Roughly 70% of family law, probate, and unlimited civil hearings were being held in California without any verbatim record as of 2025, the AG’s office said in a brief opposing the anti-recording law in a separate high court case."

The Metnews has Electronic Recording May Be Ordered in Any Civil Proceeding -- Opinion Says Courts Are to Imply Exception to Government Code Section Limiting Use of Digital Capture, When Reporter Is Unavailable, to Certain Types of Cases if Indigent Party, Broadly Defined, So Requests]

Also, today's DJ has an article about the Maniago opinion (by Reed Smith's Kasey Curtis, Charles Hyun, and Andrew Workman), using a golf theme to explain the case: Laying up or going for the green? Maniago and the risks of aggressive appellate strategy.