Dec. 2018 Litigation Update

Litigation Section

Litigation Update For December 2018

The December 2018 issue of Litigation Update is now online,keeping you up-to-date on current case law.

Appellate Sanctions

Today's installment of Appellate Sanctions is brought to you from Division 8 here:

Here, [Appellant's counsel, a lawyer acting in pro per] sought to prosecute an appeal on behalf of a party that clearly lacked standing, and attack a judgment that had long become final.

...

Sanctions in the amount of $65,480.64 are imposed on [Appellant's counsel], with $56,980.64 payable to respondents and $8,500 payable to the clerk of this court within 90 days of the date of remittitur.

DJ Catchup

Today's DJ profiles LASC Judge Bruce Brodie. The appellate angle? "His sister is 2nd District Court of Appeal Justice Audrey Collins."

Tuesday's DJ featured H&L's Kirk Jenkins' article The Brown Court's Impact, which compares data for the 3 years immediately before each Brown appointment, starting with Justice Liu.

"Rule 23(f) appeals! Yes!!"

Tuesday's DJ also offered Absent a Martian Invasion, are you out of luck when it comes to Rule 23? by Jeremy Smith and Christopher Chorba, about Rule 23(f) 14-day deadline to file a petition for permission to appeal an order granting or denying class certification. SCOTUS will address the issue in Nutraceutical Corp. v. Lambert.

RIP Justice Newsom

Governor Brown Issues Statement on Passing of William Alfred Newsom III

Gov. Brown issued the following statement today on the passing of retired Justice William Alfred Newsom III:

“Anne and I extend our deepest condolences to the entire Newsom family. Bill was a longtime friend, a champion of the environment and someone whom I was proud to appoint to the superior court and court of appeal.”
(Justice Newsom served on the First District Court of Appeal from 1978 to 1995.) In honor of William Alfred Newsom III, Capitol flags will be flown at half-staff.
His oral history is here.

[12/14 update: The DJ has Governor-elect's father remembered as analytical justice who was devoted to the environment.]

Reducing lag time in appeals

In many appellate courts it often takes a long time to get an argument date once briefing is complete. The Federal Circuit Court of Appeals has announced some new practices designed to reduce this time. Specifically:

1. The court will only consider scheduling conflicts by arguing counsel; non-arguing counsel and client conflicts will no longer be considered when scheduling argument.
2. Arguing counsel must provide an explanation, including a showing of good cause, for any submitted scheduling conflict.
3. Arguing counsel will be limited to submitting only ten total days of unavailability during the six consecutive court weeks identified in the Notice to Advise of Scheduling Conflicts.

Also of federal note, NLJ reports Supreme Court Rule Crimps Crowd-Funded Amicus Briefs: “The Clerk’s Office interprets this language [of Rule 37.6] to preclude an amicus from filing a brief if contributors are anonymous”

And ABA Journal has Sotomayor and Gorsuch often use these signature phrases during oral arguments

In 9th Circuit/Pregerson news, see At 91, Pierce College Professor Teachers her Final Class --After 50 years on the job: Bernadine Pregerson was reluctantly hanging it up. (Hat tip to David Glassman for this item.)

BK Stay means No Appeal

What happens if you file an notice of appeal when there's a bankruptcy stay in place? This is what happens: it's "null and void"; appeal dismissed. Oh, and then you didn't timely appeal after the stay was lifted. Ouch.

Also of possible use, see pages 9-10 in this 3d DCA pub'd opinion here, where the court makes clear that failing to cite seminal cases against one's position is a violation of counsel's ethical duty to the court, quoting as follows:

“Attorneys are officers of the court and have an ethical obligation to advise the court of legal authority that is directly contrary to a claim being pressed. [Citation.] Rule 5-200 of the Rules of Professional Conduct addresses the issue and provides that, ‘[i]n presenting a matter to a tribunal, a member: [¶] (A) Shall employ . . . such means only as are consistent with truth; [and] [¶] (B) Shall not seek to mislead the judge . . . by an artifice or false statement of fact or law . . . .’ ” (In re Reno (2012) 55 Cal.4th 428, 510.)

Appellate lawyers appointed!

Congrats to the new Superior Court judges appointed on Friday, some with appellate backgrounds:

• Audra Ibarra, with California Appellate Law Group, was appointed to the Santa Clara Superior Court.
• Wendy McGuire Coats, an appellate lawyer at Fisher & Phillips, was appointed to the Contra Costa Superior Court.
• Eumi Lee, who clerked for 9th Circuit Judge Warren Ferguson (2001-2002), was appointed to the Alameda County Superior Court.

How to Tell a Justice They're Wrong

Today's NLJ offers How to Tell a Justice They're Wrong with advice and examples from top SCOTUS advocates.

• "You know your case with absolute confidence and when a justice says something that seems incorrect, you say it," says Sidley Austin's Carter Phillips.
•  Some advocates cushion the response with the preface, “With all respect.” Others avoid “wrong” and substitute for that harsher word, “I disagree, your honor.”
• David Frederick said it’s important to correct any misapprehension a justice might have about an important issue in the case “as quickly and succinctly” as possible. “The compression of time at an oral argument and the intensity of the exchanges can sometimes cause an advocate to be more direct than one would be in a normal conversation,” Frederick said. “You’ve got to get to your point or else it just gets lost in the whole moment and momentum and the point you’re trying to make just evaporates.”

DJ profiles Justice Cuéllar

Today's DJ profiles Justice Tino Cuéllar in Pragmatism has guided Cuéllar on state high court. Some snippets:

• "trial court deference is a way of life" in his household, referring to his wife, U.S. District Judge Lucy Koh
• "I do think that the institution has benefited historically from having people who didn't all spend their careers doing one thing or another thing"
• Cuéllar said ... that he's come to appreciate the challenges in crafting majority opinions that capture the differing perspectives on the court but are also clear for the lower courts. But the justices strive to accommodate differing views and be flexible to reach consensus as much as possible, he said. "We do our best to resolve the cases as they come to us, and that may lead some people to be surprised by where we land"
• Cuéllar is particularly active in public life. He chairs the state's Language Access Plan Implementation Task Force, which works to provide Californians with limited English proficiency with interpreters and appropriate technology in the courts, and often participates in outreach events with youth and in academic settings, including Comic-Con panels discussing the legal implications of "Star Trek" and "Star Wars."

2d DCA appoints new Assistant Clerk/Executive Officer

The Second District Court of Appeal Appoints a New Assistant Clerk Executive Officer 
The California Court of Appeal, Second Appellate District is pleased to announce that Eva McClintock has been selected as assistant clerk executive officer in Los Angeles, beginning December 1, 2018. McClintock’s career began in Los Angeles with the State Bar of California where she worked for nearly eight years as an administrative supervisor. McClintock was hired by the Second District Court of Appeal in April 2000 as assistant deputy clerk and was elevated to senior deputy clerk within five years. She helped develop and implement the e-filing system for the court, and trained justices and staff in various computer based applications. McClintock has a deep knowledge of the appellate process and she has established a solid reputation statewide through presentations at the Appellate Staff Institute. Effective December 1, 2018, all correspondence to the assistant clerk executive officer should be addressed to Eva McClintock.

A Specialized Bar for the Califonia Supreme Court?

That's the title of today's Moskovitz on Appeals in today's DJ by Christoper Hu, in which he notes that "While clerking on the California Supreme Court a few years back, I was struck by how different our state high court seems to be. I saw plenty of excellent advocacy, but as far as I could tell, there were relatively few repeat players. Most of the attorneys appearing before the court were the same ones who'd handled the case below, rather than specialists brought in for their Supreme Court expertise." He concludes that he "warily support[s] greater specialization," i.e., a specialized California Supreme Court bar.

From August 2008 to August 2018, only nine private attorneys argued five or more times in the California Supreme Court, compared with 34 such attorneys in the U.S. Supreme Court over a similar time frame. Those nine California specialists accounted for well under 10 percent of all arguments by private attorneys, compared with 35 percent in the U.S. Supreme Court. None of the California specialists argued more than seven times in the decade I analyzed, whereas the Reuters report identified eight attorneys who argued more than 15 times each in the U.S. Supreme Court ....

Of the nine top advocates on my list, only five fit the standard big law mold. The other four lawyers are at smaller outfits that routinely represent workers, tort victims, public entities, and small businesses. That may be due to the composition of the state high court's docket. All of its cases are important, but the average litigant in a family law or contract case may not have the means (or the desire) to hire a Supreme Court expert from a big firm. This pattern mirrors trends in the California Court of Appeal, where many appellate specialists are solo practitioners and small firm lawyers willing to work on contingency or for a flat fee on behalf of clients of modest means.

Speaking of specialized bars:

UPDATED FEDERAL CIRCUIT RULES OF PRACTICE AND ELECTRONIC FILING PROCEDURES

The new edition of the Federal Circuit Rules of Practice is available on the court’s website.  The Electronic Filing Procedures have also been updated regarding revised procedures for briefs and appendices.  These procedures are available on the court’s website.

Finally, today's Gilbert Submits column in the DJ (titled Thanks, and I mean it), PJ Gilbert relates how he tripped Justice Lillie at a COJA hearing in the distant past, passed his drivers license test recently, and caps things off by asserting that if any of his columns this year have offended anyone, even in the slightest way, he refuses to apologize!

9th Circuit to remain open Dec. 5

Note that although the President has designated Wednesday, December 5 a national day of mourning in honor of the 41st president and that all executive departments and federal agencies are to be shuttered on December 5, The Ninth Circuit Court of Appeals will remain open for business on Wednesday December 5, and all court hearings will take place as scheduled.
However, "By executive order, the President has directed that federal agencies and departments, including the Postal Service, will be closed on December 5, 2018. Therefore, although the Court of Appeals remains open, December 5 will be treated as a legal holiday for the purposes of all filing deadlines, including jurisdictional deadlines. See Fed. R. App. P. 26(a)(6)(B)."
(CD Cal will be closed.)

In other Federal Courts news:

Judicial Integrity Officer Named for Federal Judiciary

Jill Langley, the director of workplace relations for the U.S. Court of Appeals for the Tenth Circuit and a recognized authority in employment dispute resolution (EDR), has been selected to serve as the federal Judiciary’s first judicial integrity officer, James C. Duff, director of the Administrative Office of the U.S. Courts, announced today. Read more.

New Federal Rules, Forms Effective Dec. 1

New federal rules and forms took effect on Dec. 1. They include revisions of Appellate Rule 25, Bankruptcy Rules 5005 and 8011, Civil Rule 5, and Criminal Rule 49 that are part of an effort to coordinate rules for the service and filing of documents in electronic format rather than paper. Learn more.