Chat w/Carter Phllips

Law.com has A Conversation With NLJ Lifetime Achievement Award Winner Carter Phillips -- In a wide-ranging conversation with the NLJ, Sidley Austin’s veteran Supreme Court lawyer describes the lunch that birthed the modern Supreme Court bar, why he long avoided moot courts and which justice has had the biggest impact on the institution.

• After launching one of the nation’s first private Supreme Court practices at the law firm Sidley Austin in 1985, Phillips has gone on to argue 82 cases before the justices over the past four decades, making him the most prolific Supreme Court lawyer in private practice. His total tally from the last four-plus decades, including that stint in government, stands at a whopping 91 oral arguments.
• in the summer of 1985, Rex Lee, who had been the solicitor general in the Reagan administration and my boss in the office, joined Sidley and we decided to see if we couldn't create a Supreme Court practice.
• The person who actually put the idea in Rex's head was [Supreme Court Justice] Lewis Powell. Justice Powell had lunch with Rex before he left as the solicitor general, and Justice Powell told him that he thought that the business community really needed access to the kind of expertise that the United States has in the solicitor general's office and the Justice Department. He thought that if Rex could find the right law firm, he could play that role and help the business community significantly. So I suppose getting, I don't know, a pat on the back from Justice Powell helps some.
• Before Justice Scalia, you could realistically expect to get somewhere in the neighborhood of 10 to 15 questions in a 30-minute oral argument. After Justice Scalia, you would get 10 to 15 questions from him in about 5 minutes, and that had the effect of energizing everybody on the court.

DJ profiles CALG

 Today's DJ insert on Top Boutiques profiles the Complex Appellate Litigation Group, LLP -- Founded in 2012 as the first significant San Francisco-based appellate boutique, the Complex Appellate Litigation Group has experienced major successes and dramatic growth. ... The firm was called the California Appellate Law Group, or CALG, when it was first profiled as a Top Boutique in 2016.

Tung confirmed for 9th Circuit

The DJ reports: Jones Day partner Eric C. Tung wins 9th Circuit confirmation, 52-45 -- Tung, a former clerk to Justices Antonin Scalia and Neil Gorsuch, succeeds Judge Sandra S. Ikuta; his addition does not change the court's partisan makeup.

• Tung will be the 11th judge on the 9th Circuit, which has 29 active judges, chosen by President Donald Trump.
• A 2010 graduate of the University of Chicago Law School, Tung has no judicial experience. But he served as a clerk for both U.S. Supreme Court Justices Antonin Scalia and Neil M. Gorsuch, both of whom he described as role models.

Law.com has Jones Day Partner Eric Tung Confirmed to 9th Circuit

Law360's latest Wheeling & Appealing is out. The appellate trivia question this time is: "Only one U.S. president has served as a federal circuit judge — who was it? And for extra credit, on which circuit did that president serve?" (This one is a pretty easy guess, since the answer is also the only U.S. president to have served on SCOTUS too.)

Appellate MCLE programs

CLA Litigation Section Committee on Appellate Courts presents What Every Solo and Small Firm Lawyer Needs to Know About Appeals a 1-hour webinar on December 5 at noon:

Appellate specialists and appellate court staff attorneys offer essential information that solo and small firm trial attorneys should know about appeals. Topics include briefing and argument tips, record preservation, standards of review, and other crucial points that can be implemented both in the trial and appellate courts.
• Brandon Hamparzoomian, Appellate Court Attorney (5th District)
• Ariel J. Stiller-Shulman, Certified Appellate Specialist
• Allison Ehlert, Supervising Deputy City Attorney

Also, BHBA presents Before the Appeal: A California Litigator's Pre-Appeal Checklist on November 13 at 11 a.m. (1-hour webinar) by Laura Lim and Kent Toland of Greines, Martin, Stein & Richland LLP. They will discuss critical pre-appeal steps for trial lawyers and their clients in the California Court of Appeal.

6th District pro tem update

In the 6th Disrict, Judge Sunil R. Kulkarni of the Santa Clara County Superior Court will be sitting Pro Tem until December 31, 2025.

5th District pro tem update

These judges are sitting pro tem in the 5th District:

• Judge Gregory T. Fain of the Fresno County Superior Court will be sitting pro tempore until November 30, 2025. 

• Judge Amy K. Guerra of the Fresno County Superior Court will be sitting pro tempore until December 14, 2025. 

2d District pro tem update

The following are sitting by designation in the 2d District:

• Justice Peter J. Siggins (Retired) of the First District Court of Appeal will be sitting Pro Tem in Division Two until December 31, 2025 

• Judge Craig B. Van Rooyen of the San Luis Obispo County Superior Court will be sitting Pro Tem in Division Four until November 24, 2025 

• Judge Sunjay Kumar (Retired) of the Los Angeles County Superior Court will be sitting Pro Tem in Division Five until December 16, 2025 

• Judge Denise Hippach of the Santa Barbara County Superior Court will be sitting Pro Tem in Division Six until December 31, 2025 

• Judge Jessica Uzcategui of the Los Angeles County Superior Court will be sitting Pro Tem in Division Eight until November 30, 2025 

Appellate AI Guidance

The Courts of Appeal have posted this AI advice:

Using AI for Your Court Case? Read This First

If you're considering using AI tools like ChatGPT to help with your court case, please visit our "Using AI?" page to help you use these tools safely and effectively.

Generative AI is a tool that can help you write or explain things, but it can make mistakes. Use it carefully—especially for legal issues.
AI may be able to help you:

☑ Write drafts of letters, forms, or court papers;
☑ Fix grammar and improve your writing;
☑ Explain legal words in plain language;
☑ Understand steps in a court case;
☑ Find legal information from trusted websites; and
☑ Organize your thoughts before talking to a lawyer.
Follow these guidelines to use AI safely:

☑ Make sure the court allows you to use AI.
☑ Double-check anything AI gives you.
☑ Ask AI to give sources, and check them yourself.
☑ Check that websites or forms are from California and from a trusted source, like a court.
☑ You must make sure all court papers are correct, even if AI helped.
☑ Talk to a lawyer for legal help.

AI is not a lawyer.
It may give wrong answers, even if it claims to be accurate.
It may give advice that does not fit your case.
Don’t share personal or private information.

Self Help
If you need help with your court case or have questions about the law in California, go to selfhelp.courts.ca.gov or contact your court’s self-help center.

2d District closed for Dodgers Parade

Court Closure Notice - Dodgers Victory Parade
The Second District Court of Appeal, Los Angeles location, will be closed on November 3, 2025, due to the Dodgers World Series Victory parade. Downtown Los Angeles street closures will prevent safe access to the courthouse. Court hearings scheduled for this date will be conducted remotely. Critical court operations will continue remotely.

Law.com articles

Law.com has Trump Considers Unprecedented Move: Going to Supreme Court Arguments -- "Since the Supreme Court was established more than 230 years ago ... no president has taken time away from their White House duties to sit for a regular argument session of the court."

There is no precedent for a sitting president attending arguments at the U.S. Supreme Court, in his or any other case, according to the Supreme Court Historical Society. Some have criticized the plan as an affront to judicial independence.

US Senate Confirms Trump's Fourth Appellate Court Judge Pick of Second Term -- The U.S. Senate voted 52-46 along party lines to confirm Rebecca Taibleson as a judge on the US. Court of Appeals for the Seventh Circuit. Taibleson is a former Kirkland & Ellis associate and law clerk to two U.S. Supreme Court justices.
 

Developing Appellate Themes To Attain Resonance and Relief -- "While themes in art may stimulate, enlighten, and inspire us, in an appellate brief they also have a lofty and meaningful purpose—to help convince judges to grant relief and do justice."

$25K appellate sanctions awarded & more

2/1 awards appellate sanctions here for a frivolous appeal. 

Justice Ketanji Brown Jackson was in SoCal last week, speaking at Cal State Dominguez Hills; Law 360 has Highest Bench Doesn't Mean Your Kids Listen, Jackson Jokes

Law360 also has 5th Circ. Judge Oldham Repudiates 'Holy Rule' For Precedents

Under the rule of orderliness, Fifth Circuit panels don't depart from prior panel rulings unless there's a controlling change in the law, such as a statutory amendment, a Supreme Court decision or a decision by the full Fifth Circuit. But Judge Oldham on Wednesday depicted that deference as misguided, forcing judges to adopt aberrational decisions and essentially double down on mistakes.

Beds' latest is Only in Los Angeles

"A History of Vacatur"

Prof. Ben Johnson of the University of University of Florida Levin College of Law frequently write appellate-related law review articles. His newest is A History of Vacatur in the Yale Law Journal:

Vacatur, a seemingly routine appellate tool, has evolved into one of the Supreme Court's most potent instruments for declaring law. This article offers the first comprehensive historical account of vacatur, tracing its roots from English and early American practice through its twentieth-century transformations to its contemporary uses. Historically, courts used vacatur to manage dockets, correct procedural irregularities, or enforce reversals on the merits. Modern usage has departed markedly from these roots. The Court now frequently employs vacatur to declare binding legal rules without issuing judgments, effectively circumventing traditional limits on judicial power. Taking seriously the Court's own insistence on history as a guide to judicial authority, this article illuminates the growing tension between the Court's practice and its constitutional and statutory limits.

Fixing the trap?

Today's DJ has appellate specialist David J. Ozeran's article Appeal deadline rules are a trap -- it's time to fix them -- Whether it's titling a notice correctly or complying with strict timing rules, California's appeal deadlines demand precision. He concludes and proposes:

There is no justification for this complex set of rules where a much simpler rule would work. Why not simply apply the outside deadline of 180 days after entry of judgment to all appeals? That way there will be no disputes regarding whether a notice of entry of judgment was actually served, or whether it met the standards for triggering the deadline, or whether an extension based on the filing of a post-trial motion applies. There is no reason why the deadline for filing a notice of appeal should be based on, for example, how a notice of entry of judgment is titled or when a notice of order denying a new trial motion was served rather than on the actual date judgment was entered.

...

The rules regarding the appeal deadline create a trap for the unwary. Replacing the current framework with an easily understood, one-size-fits-all deadline will reduce or virtually eliminate attorney error resulting in late-filed appeals. A less complicated, easily understood and easily applied rule should be adopted requiring a notice of appeal to be filed within 180 days after entry of judgment or appealable order.

Concerns that replacing the current framework with a single 180-deadline will result in delay are unwarranted, as appellants usually want to proceed expeditiously rather than delay unnecessarily. However, if a 180-day deadline is considered to be too long, then a shorter deadline can be enacted. However, a single, easily applied deadline based on the date judgment is entered should replace the current labyrinth of rules that determines the deadline for filing a notice of appeal.

"Understanding Japanese Internment"

The California Judges Association presents Understanding the Japanese Internment, featuring 3 superior court judges and 2/3's Justice Mark Hanasono on Nov. 5 at 4:30 (1.5 hours of Elimination of Bias MCLE/JBEC credit). Register here.

Vexatious litigants on appeal

Q: Can the Court of Appeal sua sponte declare a vexatious litigant?
A: You betcha. See yesterday's Kouvabina v. Veltman:

• "Kouvabina contends appeals do not constitute “litigation” within the meaning of section 391.  California courts have consistently held to the contrary."
• "Kouvabina next argues her appeals do not constitute “litigation” within the meaning of section 391 because they “arose from [her] efforts to defend herself against Veltman’s affirmative claims.”  For various reasons, we disagree." 
• "To the extent she implies the vexatious litigant statutes do not apply — or apply differently — to dissolution matters, we disagree.  The Legislature could have exempted family law matters — as it exempted small claims actions in section 391(b)(1) — but it did not.  To the contrary, Family Code section 210 explicitly provides that the vexatious litigant statutes apply to family law proceedings."

See Prof. Martin's take here. And the MetNews article Commission on Judicial Performance Attorney Is Declared ‘Vexatious Litigant’, which includes comments from Ms. Kouvabina.

9th Cir. Operations Order

ORDER OF THE CHIEF JUDGE REGARDING THE OPERATIONS OF THE UNITED STATES COURT OF APPEALS IN THE ABSENCE OF AN APPROPRIATION OR CONTINUING RESOLUTION

Before: Chief Judge Mary Murguia

An appropriation or continuing resolution funding the operations of the United States Courts not having been enacted into law by midnight October 1, 2025, this Order shall take effect until superseded by such appropriation or continuing resolution.

The Court of Appeals has a constitutional duty to continue to hear and resolve cases, even during a lapse in government appropriations. To perform that duty, which includes the performance of functions necessary and essential to the continued resolution of cases, judges rely on their chambers staff, as well as the officers and employees of the Court.

On September 30, 2025, I issued an order, consistent with national policy, directing all staff, officers and employees of the Court of Appeals, the Office of the Circuit Executive, and the Ninth Circuit Libraries to report to work during their normally scheduled hours, if appropriations for the current fiscal year were not continued or funded prior to the expiration of any carryover funding or continuing resolution.

The Judiciary has maintained funding since then using available fees and carryforward balances. These funds are projected to be exhausted on or before midnight, October 17, 2025.  Accordingly, in keeping with the requirements of the AntiDeficiency Act, my Order of September 30, 2025, concerning the continuity of court operations during a period of lapse of appropriations, is modified for Phase 2 operations as follows:

1. In fulfillment of the Court’s constitutional duty to hear and resolve cases, I will continue to evaluate the court’s day-to-day needs and make furlough determinations as warranted.

2. Oral arguments will go on as scheduled, and the court will continue to schedule cases ready for argument. 

3. Government attorneys, while expected to appear as scheduled, may continue to request to appear by video.  Non-Government attorneys impacted by shutdown related air traffic issues may also move for video appearances.

4. Motions, Screening and COA panels will continue as scheduled, as will Mediation Conferences.

5. Absent an order in a specific case from an individual panel, all nonjurisdictional, non-argument deadlines for all federally funded attorneys continue to be stayed and will be reset upon conclusion of the shutdown.

6. No new financial obligations should be incurred without permission of the Chief Judge or delegated Unit Executives.

7. All court units should review current financial obligations to ensure that they are necessary for the continued resolution of cases and controversies and proceed to deobligate unnecessary commitments where permitted.

8. Performance under fully- funded contracts should continue and performance under incrementally funded contracts that were awarded prior to the lapse in appropriations should continue until a new obligation of funds is required.

9. No new personnel should be hired.

10. The United States Marshal Service, the Federal Protective Service and the General Services Administration are requested to maintain all functions necessary for the continued security, protection and safe use of all United States Courthouses used by the Court of Appeals, as well as in any other setting where the Court is in session.

Tension, tone, perception problems

After Justices Scold Judges, Some Worry About Public Perception of Lower Courts-- Over the past few months, there has been simmering tension and a shift in tone between the high court and lower courts sparked by the Supreme Court’s emergency-docket decisions

Shutdown update: limited operations

A government-wide shutdown began Oct. 1. The Judiciary was able to continue paid operations through Oct. 17, with limited additional work performed over the weekend of Oct. 18-19, using court fee balances and other funds not dependent on a new appropriation.

Judiciary Funding Runs Out; Only Limited Operations to Continue
Published on October 17, 2025

The judicial branch announced that beginning on Monday, Oct. 20, it will no longer have funding to sustain full, paid operations. Until the ongoing lapse in government funding is resolved, federal courts will maintain limited operations necessary to perform the Judiciary’s constitutional functions.

Federal judges will continue to serve, in accordance with the Constitution, but court staff may only perform certain excepted activities permitted under the Anti-Deficiency Act.

Examples of excepted work include activities necessary to perform constitutional functions under Article III, activities necessary for the safety of human life and protection of property, and activities otherwise authorized by federal law. Excepted work will be performed without pay during the funding lapse. Staff members not performing excepted work will be placed on furlough.

Each appellate, district, and bankruptcy court will make operational decisions regarding how its cases and probation and pretrial supervision will be conducted during the funding lapse. Each court and federal defender’s office will determine the staffing resources necessary to support such work.

Anyone with Judiciary business should direct questions to the appropriate clerk of court’s office, probation and pretrial supervision office, or federal defender organization, or consult their websites. Find contact information and websites for federal court units.

Other shutdown information: The Case Management/Electronic Case Files (CM/ECF) system will remain in operation for electronic filing of documents. Case information will be available on PACER.
Individual courts will determine which cases will continue on schedule, and which may be delayed.
The jury program is funded by money not affected by the appropriations lapse and will continue to operate. Jurors should follow instructions from courts and report to courthouses as directed.
The Administrative Office of the U.S. Courts, which maintains this website on behalf of the Judiciary, will not have staffing to answer the AO’s public telephone number. View contact information for the Administrative Office during the funding lapse.

Bloomberg Law has US Courts Face First Furloughs Under Shutdown in 30 Years -- Federal courts across the US are preparing to furlough some staffers and curb operations as the judiciary prepares to run out of funding amid an ongoing government shutdown.

The Supreme Court expects to run out of funding on Saturday and will need to “make changes in its operations” to comply with federal shutdown rules, spokesperson Patricia McCabe said in a statement. The Supreme Court building will be closed to the public, though it will remain open for official business, and the high court will continue to hear and decide cases, according to McCabe.

3d Dist. pro tem update

In the 3d District, Associate Justice Rebecca A. Wiseman, retired, will be sitting in pro tempore beginning July 15, 2023, through December 18, 2025.

CJA hearing in SF for 3 COA appointments

The Commission on Judicial Appointments will hold public in-person hearings in San Francisco on Nov. 17 starting at 9 a.m. to consider three appointments by Gov. Gavin Newsom.

The commission will consider the following appointments:

• 9 a.m.: Matthew Scherb, as associate justice of the Second Appellate District, Division Eight (Los Angeles)
• 10 a.m.: Judge Corey Lee, as associate justice of the Fourth District Court of Appeal, Division Two (Riverside)
• 11 a.m.: Judge Arlan L. Harrell, as associate justice of the Fifth Appellate District (Fresno)

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

Testimony and Comment
Requests to testify or written comments on the appointment must be received by the commission no later than 5 p.m. on Nov. 10 (five court days prior to hearing). Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based. Submissions via email to coja@jud.ca.gov are strongly encouraged. Hard copies are not required.

And now available: The CLA Litigation Section's October 2025 Litigation Update

California Supreme Court to Honor Late Justice Joseph R. Grodin -- The California Supreme Court will honor the legacy of former Justice Joseph R. Grodin at the start of its oral argument session on November 4.

For a tale about a late appeal, see this unpub D084830.PDF

On the federal side, see Ninth Circuit Rules that Decision Reimposing the Automatic Stay is Immediately Appealable -- In 2020, the Supreme Court ruled that a bankruptcy court’s decision to lift the automatic stay of pending litigation imposed by the Bankruptcy Code is a final, appealable order. But what if a bankruptcy court lifts the stay and later reimposes it? Is the latter order also immediately appealable, or is it considered interlocutory?