9th Cir. AI Sanctions & more

Bloomberg Law has Ninth Circuit Warns of AI Hallucinated Briefs in Sanctions Order

• The country’s largest federal appeals court sanctioned and suspended two attorneys who failed to disclose inaccuracies in their legal briefs came from generative AI hallucinations.
• The order imposes sanctions of $2,500 each against attorneys Mike Sethi and William Rounds of Orange County, Calif., who submitted briefs in an immigration case containing citations to opinions that didn’t exist and fabricated quotes from existing cases.
• The attorneys are also suspended from practicing before the Ninth Circuit for six months and they must send a copy of the order to their clients, opposing counsel, and presiding judge in all of their other cases.
• In February, the Fifth and Tenth circuits imposed similar sanctions against attorneys for using AI tools to draft briefs containing inaccuracies.

See Lnu v. Blanche (9th Cir. 6/3/26) No. 24-4790, 6/3/26

Law360 has 9th Circ. Suspends 2 Attys For 6 Months Over AI Hallucinations

The MetNews has Two O.C. Attorneys Suspended Relating to AI Fabricated Cites

Here's Prof. Martin's take. 

And Bloomberg also has Texas Lawyers Miscited Cases in Hair Length Policy, Judges Say -- Indicating that the 5th Circuit may be issuing sanctions.

Bloomberg Law also has California High Court Mulls Bid For More Electronic Recordings

Law360 has Court Reporter Shortage A 'Crisis,' Calif. Supreme Court Told

And Bloomberg Law has Revised Amicus Disclosure Rule Advanced by Judicial Committee

• The existing rule requires amicus curiae to disclose whether a person—other than the amicus curiae, its members, or its counsel—contributed money to fund the brief. The amendments approved Wednesday limit the disclosure requirement to pledges over $100.
• Another new provision requires an amicus that has existed for less than 12 months to state the date of its creation. The idea there is to identify organizations formed solely for purposes of influencing the litigation.
• The amendments also require amici to say more about their history, experience, and interest in the case, and how their perspective will help the court.

tidbits / 3d DCA pro tem update

The ABA Journal has Bryan Garner's latest article: Oscar vs. Jeff: Trial lawyers and appellate counsel do different jobs, and it may show in their writing

This month's CLA Litigation Update: August 2025 is out.

On Sept. 25, Strafford presents Strategic Use of Amicus Briefs in Appellate Advocacy by M.C. Sungaila and Ben Cooper.

3d Dist. pro tem update: Associate Justice Rebecca A. Wiseman, retired, will be sitting in pro tempore beginning July 15, 2023, through October 18, 2025.

Amendment to FRAP 15 proposed to address the “Incurably Premature” doctrine:

The Advisory Committee seeks publication of a proposed amendment to remove a potential trap for the unwary in Rule 15. The “incurably premature” doctrine holds that if a motion to reconsider an agency decision makes that decision unreviewable in the court of appeals, then a petition to review that agency decision is not just held in the court of appeals awaiting the agency’s decision on the motion to reconsider. Instead, the petition for review is dismissed, and a new petition for review must be filed after the agency decides the motion to reconsider. Rule 4, dealing with appeals from district court judgments, used to work in a similar way regarding various post-judgment motions. But in 1993, Rule 4 was amended to provide that such a premature notice of appeal becomes effective when the post-judgment motion is decided. The proposal is to do for Rule 15 what was done for Rule 4.

The comment period is open to February 16, 2026.

Splits and consequences

Today's DJ has Justice Hoffstadt's Doing the splits -- How a split is created or articulated affects the likelihood of the Supreme Court reviewing the case, with explicitly created splits more likely to be reviewed.

• Intermediate appellate courts can articulate and/or create splits of authority in three different ways.
• The first and most obvious way is when an intermediate appellate court articulates and creates a split by explicitly declaring that it is "parting ways" with a sister court's interpretation of the law.
• The second way is when an intermediate appellate court articulates but does not create a split. This happens when judges on a three-judge panel of an intermediate appellate court disagree with one another, typically when the majority adopts one rule, and the dissent espouses another.
• The third way is when one court creates but does not articulate a split. This happens when a court issues an opinion that, in effect, disagrees with another opinion, but never acknowledges that effect or any disagreement.
• How a split is created and/or articulated can have significant effects. It can affect the odds that the governing Supreme Court will take up a case to resolve the split (although the quality of advocacy is no doubt also a factor). In deciding whether to exercise their discretion to accept a case to review, both the United States and California Supreme Courts look to whether there is a split of authority among the lower courts. S. Ct. Rule 10(a); Cal. Rules of Court, rule 8.500(b)(1).

NLJ has GOP Senators Urge Judiciary to Scrap Proposal for Greater Amicus Funding Disclosure -- The Supreme Court "has long protected those who associate for speech purposes from compelled disclosure of those associations, subjecting any such disclosures to 'exacting scrutiny,'" the Republican lawmakers wrote.

The Recorder has Governor OKs Test of Remote Appearances by Court Reporters in 2025 -- AB 3013 will temporarily allow court reporters to capture proceedings while working outside the courtroom—and maybe even outside the courthouse.

CA Bar dues to increase

Today's DJ has Newsom approves bar fee increase -- AB 3279 will raise the annual costs of an active bar license by more than $40 when including all fees. "AB 3279 raises the annual costs of an active bar license, including all fees, from $510 to $553."

Bloomberg Law has California Raises State Bar’s 2025 Lawyer Licensing Fee by $88 -- "The law brings the total annual active fee to $598 from the current $510." The Recorder has Governor Signs Legislation Raising Lawyers' Licensing Fees by $88 in 2025 -- State bar leaders had sought a $125 fee hike, but generally praised the legislation signed by Gavin Newsom.

The fee hike will bring active lawyers’ 2025 bills to $598, or $553 if they opt out of a voluntary $45 charge to fund legal aid programs. Next year’s bills will rise by $22.60 to $205 for inactive lawyers, or $160 without the legal aid fee.

Law360 has Judiciary Panel Dems Endorse Amicus Funding Disclosure

SCOTUS amicus invitations

The NLJ has With Amicus Appointments, Ex-Clerks Get Coveted Chance to Argue at SCOTUS -- They won’t get paid. It’s going to be extremely time-consuming. There is no prior counsel to review their work. And they’ll spend months drafting briefs and preparing for an argument where the best case scenario is achieving a victory on behalf of a client that does not exist.

Once or twice a term, a Supreme Court justice will pick up the phone and dial one of their former clerks with an unusual request: are they available to come in and argue a case that they know nothing about?

FRAP Amicus proposal ripe for comments

Federal Rules Committee Advances Amicus Disclosure Requirements | National Law Journal

• The proposed changes would require an amicus brief to be accompanied by a motion explaining why the brief is helpful.
• The proposed amendments to Rule 29 of the Federal Rules of Appellate Procedure is intended to add a layer of transparency in amicus brief filings.
• The Advisory Committee on Appellate Rules first considered greater amicus disclosure requirements in 2019.

Appellate law elsewhere of note

The NLJ has NY's Top Court Says It Won't Accept Amicus Briefs That Create Conflicts

New York’s highest court is adopting a rule change that could reduce its reliance on substitute jurists. In the wake of the New York Court of Appeals using three Appellate Division judges for arguably two of its biggest appeals since December, the court will limit its acceptance of amicus briefs going forward, according to a notice to the bar on April 23.

Law360 has Court Clerk Error Is No Excuse For A Missed Deadline (discussing two cases from Virginia).

 

AI halluciations & Amicus Briefs

Bloomberg Law has Popular AI Chatbots Found to Give Error-Ridden Legal Answers:

• Popular AI chatbots from OpenAI Inc., Google LLC, and Meta Platforms Inc. are prone to “hallucinations” when answering legal questions, posing special risks for people using the technology because they can’t afford a human lawyer, new research from Stanford University said.
• Large language models hallucinate at least 75% of the time when answering questions about a court’s core ruling, the researchers found.

David Lat on Bloomberg Law also has Big Law Skews Liberal in Amicus Briefs, New Study Finds:

• In a new paper published today in the Harvard Journal of Law and Public Policy, University of Notre Dame law professor Derek Muller takes a new and interesting approach to identifying the ideological leanings of large law firms. He analyzed all the US Supreme Court amicus briefs filed by Am Law 100 firms on behalf of what he deemed “likely pro bono” clients, over a four-year period—from the 2018-2019 term through the 2021-2022 term—to see whether the briefs took a liberal or conservative position.
• Most large law firms lean blue; some firms are more red. But at the end of the day, Big Law’s favorite color is green.

And CLA's Litigation Section's January 2024 Litigation Update is posted here.

Amicus disclosure proposal

 Law360 has 2 Dems Urge Judicial Conference To Set Amicus Disclosures

• Two Democratic lawmakers have asked the policymaking body for U.S. federal courts to consider revising and fortifying statutes that they say shield "coordinated squadrons and flotillas" of front-group amici from disclosing who funds them.
• Sen. Sheldon Whitehouse, D-R.I., and Rep. Hank Johnson, D-Ga. — both longtime advocates for federal judicial transparency — in a letter last week told the Judicial Conference of the United States' Committee on Rules of Practice and its Advisory Committee on Appellate Rules that the issue reached the U.S. Supreme Court last year in New York State Rifle & Pistol Association v. Bruen. Whitehouse chairs the Senate Judiciary Committee's courts subcommittee, and Johnson is the top Democrat on the House's courts subcommittee.
• In that dispute, the National Rifle Association helped fund not only the underlying litigation, but at least 12 amici, without disclosure, the letter states. The Supreme Court eventually ruled in the underlying litigation funded by NRA to expand the scope of the Second Amendment outside the home for the first time.

The NLJ has Appellate Lawyer Beth Brinkmann Talks Move to Leading Abortion Rights Legal Group -- "The reason was the Dobbs decision," said Brinkmann, who clerked for Justice Harry Blackmun, author of the majority opinion in Roe v. Wade.

• When Beth Brinkmann headed the Justice Department’s appellate civil division during Barack Obama’s presidency, she handled many matters related to reproductive rights, including the Affordable Care Act’s contraceptive coverage.
• Now, Brinkmann is taking on a more-direct role in the fight for abortion rights. Last month, she left a Covington & Burling partnership to join the Center for Reproductive Rights as its senior litigation director.

In the category of "maybe not the best name for your pet," see this unpub, which begins: "Plaintiff ... was bit by a dog named Munch ...."

Court reporters? Judges? Bueller?

Today's DJ has LA court reporter hiring is stagnant, incentives hiked -- Despite the first round of incentives in February, court reporter vacancies “have remained relatively unchanged, with the number of court reporters leaving court service continuing to outpace the number of new court reporters entering court service,” the court stated.

And the DJ has Judge shortages will get worse, Jessner predicts -- “There are public sector positions that pay in excess of what judges make. Some deputy DAs make more money than judges,” said Yolo County Judge David Rosenberg, president of the California Judges Association.

The NLJ has How Do You Make Amicus Briefs a True Friend of the Supreme Court? -- Lawyers whose friend-of-the-court filings wound up in majority opinions share their advice. Say something new. Provide expertise and experience.

Just say 'yes' to amicus consent

Law360 has Feds Yank Amicus Opposition After Apparent Protocol Break

• A federal prosecutor in Baltimore appears to have swerved out of his lane — and away from U.S. Department of Justice protocol — in staunchly opposing a routine motion for consent to file an amicus brief, only to be corrected a short time later by his office's appellate chief.
• Appellate Chief Brandon Moore reversed course on Wednesday, when he filed a corrected response that consented to the NACDL's motion to file an amicus brief. Notably, Moore alone signed the filing, which did not explain why the government withdrew the motion.

Ninth Circuit Judge Mary M. Schroeder Receives John Minor Wisdom Award  

Drop consent for amici?

Why jump through hoops?

Law.com has SCOTUS Nixed Consent Requirement for Amicus Briefs. Will Appeals Courts Follow? -- The idea was brought up at the Advisory Committee on Appellate Rules’ latest meeting this week, and appears to be welcomed by appellate practitioners.

• Currently, at the appellate level, amici can only submit a brief with consent from the parties or permission from the court. The nation’s highest court had a similar restriction, but scrapped it last year.
• “Our thinking is that our rules ought to be in conformity with the [Supreme Court’s] rules with respect to that,” said U.S. Court of Appeals for the Ninth Circuit Judge Jay Bybee, who is chair of the committee.

Hey, if you settle the day before oral argument, your stipulated request to dismiss may be denied and a published opinion could issue if the appeal presents important legal issues of continuing interest to the public--as here today (see fn. 2). 

Fall 2002 Appellate Issues available

 

The ABA's Council of Appellate Lawyers has released its 2022 Fall Edition of Appellate Issues. Many of the articles focus on amicus briefs: Multistate Amicus Briefs and Supreme Court Review; Meeting Their Needs: How to be the best possible friend of the Court, the party you're supporting, and the clients you represent; Changes to the Amicus Rules: Are courts becoming friendlier to friend-of-the-court briefs?

More amicus disclosures?

Law360 has Should Courts Force Amicus Filers To Disclose More?

• Friend-of-the-court briefs should disclose more about the relationships amici have with parties, members of a federal appellate rules committee said Thursday during discussion of potential changes intended to shed more light on who's behind amicus arguments.
• A working draft presented to the Advisory Committee on Appellate Rules calls for an amicus to disclose whether a party or its lawyers have contributed 25% or more of the amicus entity's gross annual revenue in the year leading up to a brief being filed. It also calls for disclosure of whether a party or its lawyers have a majority ownership in or control of the entity submitting an amicus brief and whether a party or its lawyers contributed or even pledged to contribute funding for drafting, preparing or submitting the amicus brief.
U.S. Circuit Judge Jay Bybee, who chairs the committee, said there is at least anecdotal evidence of some problems with the current rules, pointing to reports of undisclosed contributions both Google and Oracle made to some organizations that filed amicus briefs in a U.S. Supreme Court copyright case between the tech giants. That can give the perception of a "cat's paw arrangement" in which a party is pulling the strings for the purported amicus, Judge Bybee said.

And the Marble Palace Blog has New SCOTUS Books Coming In Over the Transom -- As the Supreme Court’s new term begins, some important new books about the court have arrived.

On Oct. 26 at noon, FBA-San Diego Chapter will present the State of the District Luncheon, which will include a Ninth Circuit update from Judge John Owens.

Women at SCOTUS program

Nina Totenberg

On March 31 from 11 to noon, Covington's Women's Forum presents a free webcast program Historic Transitions for Women at the U.S. Supreme Court - An Inside Perspective

In celebration of Women's History Month, please join us for a conversation focused on recent transitions at the U.S. Supreme Court, including the historic nomination of a Black woman to serve as a Supreme Court Justice, and the broader implications for the representation of women on the nation's highest Court. The program will feature Nina Totenberg, NPR's award-winning legal affairs correspondent and Covington partners Beth Brinkmann, a co-chair of Covington's Appellate & Supreme Court Practice who has argued 26 cases before the Court, and Phyllis Jones, a co-chair of Covington's Product Liability & Mass Torts Practice and member of the firm's Management Committee.

Law.com has Judiciary Urged to Tweak Conflict of Interest Rule for Rejecting Amicus Briefs

The Reporters Committee for Freedom of the Press suggested the rule be updated to mandate that when a panel strikes a brief, it cite the rule as the reason and identify which amici or amicus curiae counsel would have resulted in a judge's disqualification.

Song references in opinion?

Similar to Judge Kozinski's famous Syufy opinion (which had over 200 references to movies), Judge Lee's recent opinion regarding the Turtles (whose "iconic anthem" is Happy Together), contains references to a bunch of songs. How many can you find in the 22 pages here? (See below for some answers.)

Today's DJ profiles Fresno County Superior Court Judge Heather Jones, who was a criminal staff attorney at the Cal Supreme Court 2004-2005.

And check out the new Journal of Free Speech Law online law review (faculty-and-judge run, not by law students).

ABA Journal has When the Supreme Court cites your amicus brief

The DJ is running an ad showing that 2/8's former PJ Bigelow is now with Signature Resolution.

[Here are Turtles opinion song references that jump out on a quick read: Let It Be; Revolution; Little Help from My Friends; Great Balls of Fire; California Dreaming; Night and Day; Born in the U.S.A.; Walk the Line; Leader of the Pack; Keep me Hanging On; The Twist; Nowhere to Run; It's Now or Never; Sound of Silence; New York State of Mind; etc.] This seems like a good time to re-post this: In A Rule Against Fun, Richard Re reviews a forthcoming law review article: Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at SSRN), https://courtslaw.jotwell.com/a-rule-against-fun/.

It's raining!

Last Saturday's Wall St. Journal had AmicusBriefs Inundate Supreme Court. "[T]he volume of amicus briefs today is breaking records. The court’s last full term, 2019-20, saw 911 amicus briefs filed, for an average of 16 per case, according to a study published in the National Law Journal last November. That is up from 715, or an average of nine a case, in 2010-11. The longer-term growth is even greater: Such briefs were filed in 96% of cases argued before the Supreme Court over the past decade but in just 23% of cases in the decade ended in 1955."

There is “compelling evidence that amicus briefs matter,” said Prof. Paul Collins, a political-science professor at the University of Massachusetts Amherst who has studied the influence of amicus briefs. “The justices routinely cite amicus briefs, they incorporate the arguments from the briefs into their opinions,” he said.

The WSJ also has Sheldon Whitehouse vs. the Supreme Court: The Senator threatens the Justices on amicus-brief disclosure. And The U.S. Needs More Federal Judges: Neither side wants to give the other an appointment windfall, but there's a way to break the impasse.

Today's DJ (in Careful Researcher) profiles San Bernardino Superior Court Judge Lynn Poncin, who is the presiding judge of the court's appellate division. "[A]ppellate attorneys must do more than state that a trial attorney was ineffective. 'The appellant must show that there is a reasonable probability that, but for errors made at the trial level, the result of the proceeding would have been different,'” Poncin said.

Earlier this week the 9th Cir. published Rice v. Morehouse, addressing the validity of a notice of appeal that did not specifically indicate that the appeal was from a summary judgment order.

ABTL is presenting The Road Ahead: A Judicial Update on Current and Post-Covid Practice, March 23 at 5:30 p.m., featuring 9th Cir. Judge Kim Wardlaw and 2/7's Justice John Segal. Register here.

Appellate articles of note

This weekend the LA Times ran two pieces that quoted our current Chief Justice, her predecessor, and the former Chief of the Ninth. Check it out here.

Today's DJ runs a letter from appellate specialist Charlie Bird, titled Implicit arguments to not explain 'Justice Delayed,' which attacks Myron Moskovitz's March 1 column. Charlie writes that Myron's implicit argument--"that making appellate judges work harder will impair the qualify of their decisions," so that "long delay is the price the people of California pay for careful and accurate appellate justice"--is bogus (and defames research attorneys). In short, the column fails to prove that "reasonable speed can be acieved only by impairing the substance of justice."

The DJ also runs an excerpt from Todd Peppers' "Of Courtiers & Princes: Stories of Lower Court Clerks
and Their Judges" (UVA Press 2021), in California's Technicolor clerkship: Rose Bird and her clerks.

Bloomberg Law has U.S. Courts Considering Changes to Amicus Brief Funding Rules

The AMICUS Act would have required amicus filers submitting three or more briefs in the Supreme Court or appeals courts within a calendar year to disclose funders that backed either 3% of the group’s annual revenue or more than $100,000.

There have also been many articles about CJ Roberts' recent solo dissent, but the most interesting article on that may be here: When the Chief Stands Alone 

SCOTUS Amicus Briefs Reach New Highs

 NLJ's Supreme Court Brief has So Many Friends: Amicus Briefs Reach New Highs, which reports on Arnold & Porter's appellate practice report, which concludes:

→ “In the 2019–20 term, amici curiae filed on average 16 briefs per case at the merits stage, an all-time high. Overall participation increased as well, with friends of the court filing briefs in 97 percent of [the 57] argued cases, for a total of 911 amicus briefs.”
→ “The justices cited briefs in 65 percent of cases—another record—relying on friends of the court for perspectives on government policies, history, religion, medicine, psychology, and even the financial implications of the court’s decisions.”

→ “Last term likewise saw a return of mega-cases for amicus participation. Cases involving hot-button issues like marriage equality and health care tend to generate the most briefs, though patent cases also spur significant amicus participation. Keeping with that trend, Bostock v. Clayton County, which held that Title VII’s ban on sex discrimination protects LGBT employees, topped the list in 2019–20. Bostock and its consolidated companion cases (Harris and Altitude Express) received 94 unique amicus filings.”

Today's DJ profile of S.D.Cal. Magistrate Judge Allison Goddard (titled Credibility Builder) talks about how a "call-out" in a footnote in a published opinion from 4/3 affected her and helped her later in her career.

And of note (h/t How Appealing) Rethinking Appellate Standards of Review for Video Evidence, by Hon. Pierre Bergeron (Ohio 1st Dist. Ct. App.), 56 Court Review 140.

Gov Newsom files amicus brief

Governor Newsom Files Historic Amicus Brief in Death Penalty Case, Arguing for Greater Protections Against Racial Bias in Jury Proceedings
Builds on Governor’s actions to end the death penalty in California and address systemic racism in the criminal justice system

Governor Gavin Newsom today filed an amicus brief in People v. McDaniel, a case before the California Supreme Court that involves issues of racial bias in jury deliberation and sentencing decisions. This filing marks the first time in California history that a sitting governor has filed an amicus brief calling attention to the unfair and uneven application of the death penalty, noting the state’s bedrock responsibility to ensure equal justice under the law applies to all people no matter their race. The brief argues that capital cases should require unanimity in the jury’s penalty verdict and proof beyond a reasonable doubt of disputed aggravating evidence.

A copy of the amicus brief can be found here.

[10/27 DJ story is Newsom is 1st Governor to file amicus brief in capital appeal -- "For the first time in state history a sitting governor has argued in court filings that the death penalty is unfair and unevenly applied to people of color. ... Newsom's brief was filed by Elisabeth Semel, director of the Death Penalty Clinic at UC Berkeley, and Berkeley School of Law Dean Erwin Chemerinsky."]