(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.

Because of this subjectivity, you might expect that an appellate court reviewing the constitutionality of an award would afford great deference to the trial court, especially after a bench trial.

But you would be wrong.

We are reminded in Rubio v. CIA Wheel Group, case no. B300021 (2d Dist. April 15, 2021) that review of these factors is de novo. In other words, the Court of Appeal makes its own determination about whether these factors justify the punitive damages award.

In this instance, as in many cases decided de novo, other standards of review can come into play regarding subsidiary questions. But the ultimate determination of constitutionality under State Farm factors, and the degree to which each of those factors supports the award, will be decided by the appellate court without any deference to the trial court’s determination of the award.

I think you’d have a hard time finding any attorney who enjoys the process of written discovery. The process is unpleasant, especially when dealing with a stubborn party or counsel. The costs can be staggering. It gets even more unpleasant when disputes arise. Depositions (as opposed to written discovery) can be fun, but the fun goes away once a dispute arises.

You may be able to ease the pain somewhat by consulting the Resolving Discovery Disputes blog run by Foster City attorney Katherine Gallo. I ran across it the other day and, after reading the post I had found in my internet search, kept reading post after post, finding them filled with practical advice. The blog covers depositions as well as written discovery and is not limited to discovery dispute resolution. I found interesting posts about all phases of the discovery process. If you are a litigator, you may want to add it to your daily reads.

A lawyer has a right to appeal a sanctions award against the lawyer even if that lawyer is not a party to the underlying lawsuit. It is equally undisputed that a timely notice of appeal is a jurisdictional requirement. So what happens when a lawyer who wishes to appeal from an order directing the lawyer to pay monetary sanctions files a notice of appeal listing only the lawyer’s client as the appellant?

In K.J. v. Los Angeles Unified School District (Jan. 30, 2020, S241057), ___ P.3d.___, the California Supreme Court holds that such a notice of appeal is adequate to confer appellate jurisdiction where the respondent is not misled regarding the nature of the appeal:

[W]hen it is clear from the record that the omitted attorney intended to participate in the appeal and the respondent was not misled or prejudiced by the omission, the rule of liberal construction compels that the notice be construed to include the omitted attorney.

To reach that conclusion, the court employs some other well-settled principles. Starting with the text of rule 8.100, California Rules of Court and cases construing that rule’s requirement that the notice of appeal be “liberally construed,” the court distinguishes between the unambiguous jurisdictional requirement for the timing of the notice of appeal from the more flexible requirements for the contents of the notice of appeal:

Once a notice of appeal is timely filed, the liberal construction requirement compels a reviewing court to evaluate whether the notice, despite any technical defect, nonetheless served its basic function — to provide notice of who is seeking review of what order or judgment — so as to properly invoke appellate jurisdiction.

The court finds that the rule of liberal construction applies as much to the identification of the appealing party as it does to the identification of the judgment or order from which the appeal is taken. Here, it employs a liberal construction to include the attorney as an appellant because the following factors indicate that the respondent was not misled or prejudiced by the notice of appeal:

(1) the notice of appeal expressly designated the sanctions order as the sole order or judgment at issue in the appeal; (2) the challenged order only imposed sanctions against the attorney and had no effect on the rights of the client; (3) during the trial court proceedings, the attorney engaged in substantial litigation regarding the sanctions motions that focused exclusively on whether the court had authority to discipline him; and (4) the adverse party, Los Angeles Unified School District, did not assert that it was misled or prejudiced from the notice’s failure to reference the attorney as an appealing party.

This falls somewhat short of an ironclad rule. Might a court find a respondent prejudiced by such a notice of appeal where the lawyer was the sole intended appellant from a sanctions order that also imposed sanctions against the client or the arguments in the trial court were made on behalf of both the lawyer and client? It seems unlikely, but the wiggle room is there.

K.J. is obviously of particular interest to lawyers, but in his post about the case, Ben Shatz at Southern California Appellate News notes another opinion from yesterday concerning appeals by someone other than the party to the lawsuit—this time from the Court of Appeal, and of particular interest to insurers whose insureds are small claims defendants.

If you have ever had the itch to write something like the title of this post into a brief, you might enjoy “What Lawyers Can Learn from Edgar Allan Poe,” one of the latest legal papers available from the Social Science Research Network. Will it really teach you how to write a brief that resembles a horror story? No. But the abstract does suggest it will teach you how to employ the elements relied on by Poe to write successfully. Here’s the abstract:

Treat yourself to a spine-tingling Edgar Allan Poe sensation by reading about the synergy between stories of horror and legal writing. Poe defined a short-story writing technique and named four qualities—brevity, unity, focus, and brilliant style—as critical. These exact same qualities are familiar to lawyers because they are just as critical for persuasive briefs. This article examines Poe’s critique of Nathaniel Hawthorne’s Twice-Told Tales, reviews some of Poe’s own work, and applies Poe’s advice about great short-story writing to legal writing.

I never liked reading nineteenth century authors, which made college prep high school English class a bit of a challenge. But I may still take a look at the paper.

If you run across any odd links anywhere on the blog, please notify me at gregATgregmaylaw.com (replace AT with @) and tell me which post they appear in. (It would be best for you to email me the URL of the post.) As examples of odd links, consider that 2008 post, which was about whether a car owner’s due process rights had been violated when her car was towed without notice. Someone inserted links to a towing company, a lender, and an insurance company. Besides the breach of security, I am also bothered because those links made my writing look ridiculous!

Your help in cleaning up the blog by notifying me of any odd links would be appreciated.

8/9/2019 UPDATE: I just discovered a post that was hacked by the inclusion of two links to law firms! I’m confident the firms themselves would not be doing anything so nefarious, but maybe some web marketer is doing it to meet a quota of links without the firms’ knowledge?

UPDATE: I’ve tried to automate the identification of hacked posts, but I’m afraid it’s not working. I am reviewing the posts one by one — more than 800 of them — and will update the warning in the sidebar when I complete that review and have removed the material added by the hackers.

My apologies to my regular readers. That means Ben and . . . anyone? Anyone?

With the upgrade come some new formatting requirements that were previously only suggestions. Electronically filed documents must now include electronic bookmarks to “to each heading, subheading and component of the document, such as the table of contents, table of authorities, petition, verification, points and authorities, declaration, certificate of word count, certificate of interested entities or persons, and proof of service.”

The full rules area available in the Electronic Formatting Requirements and Guidelines of the Second District (the “rules”). As the name suggests, some things are mandatory, others are not. The rules include a “style manual” of sorts with recommendations for fonts, margins, line spacing, and text alignment, among other things. Curiously, some of these guidelines advise noncompliance with the rules of court. For example, rule 8.204(b)(5) states that “lines of text must be unnumbered and at least one-and-a-half-spaced,” but paragraph 8 of the guidelines suggests line spacing of 1.2 lines. My guess is that 99.9% of people aren’t going to care about these differences, but they will drive the other 0.1% nuts.

Use of TrueFiling becomes mandatory in the second district on October 30, 2017.

The California Supreme Court adopted voluntary e-filing this summer, but e-filing will become mandatory on September 1, 2017. The court uses the TrueFiling system, which I have found to be rather user-friendly.

The Supreme Court’s e-filing rules are available in PDF format on the court’s website, and they are extensive. Some highlights: [Added 9/6/17: do not rely on this summary to ensure your compliance with the rules. Reference the rules on the court’s website, which may change form time to time without such changes being noted in this blog post.]

?E-filing becomes mandatory on September 1, 2017, even for cases initiated prior to that date. (Rule 3(b).)

?As in many other courts, self-represented litigants are exempted from mandatory e-filing. (Rule 4(a)(1).) But attorneys may also seek an exemption. (Rules 3(a), 6.) I am hard-pressed, though, to imagine how an attorney would meet one of the stated grounds for exemption: undue hardship, significant prejudice, or infeasibility. (Rule 6(b).) Perhaps the unavailability of a broadband internet connection would render e-filing infeasible?

?[Added 9/6/17: the rules for paper copies have already been modified. See the 9/6/17 update below.] Two bound paper copies of documents must still be provided in civil and non-death penalty cases, and quite promptly (sent by means reasonably calculated to reach the court by the close of business the second court day after the electronic filing, and only one day after filing in cases requesting an immediate stay). (Rule 5(a).) That is a disappointment, but there is still far less paper to handle than there is with paper filings. In a death penalty case, the filer only has to send in one paper copy, has more time to send it, and does not have to bind it. (Rule 5(b).)

?PDF documents must have bookmarks to separate sections, argumentative headings, etc. (Rule 10(a)(3).) Though the rules do not appear to require it, it is probably a good idea to format each heading in your table of contents with a hyperlink to the corresponding page in the document, as the Fifth District Court of Appeal requires.

I find the rules ambiguous in one respect. Rule 3(a)(1) lists one category of documents that must be filed electronically:

Documents in proceedings under rules 8.500-8.552 [of the California Rules of Court]
All documents filed before the court issues its decision to grant or deny review, including:

[enumerated documents]

(Italics in original, bold added.) Even though rules 8.500-8.552 of the California Rules of Court cover proceedings subsequent to a grant of review and all the way through issuance of the remittitur, Rule 3(a)(1) appears to require electronic filing only for the documents filed prior to the grant of review. Under this strict reading of the rules, briefs on the merits do not appear subject to mandatory e-filing, which seems like an odd omission. Why reference all of those rules if e-filing is mandatory for documents filed pursuant to only some of them? It is important to resolve the ambiguity, because a filer may electronically file only those documents specifically identified in the rules (Rule 2), unless otherwise ordered by the court (Rule 3(a)(3)). In other words, e-filing is either mandatory or prohibited for a given document. Perhaps there is a standing order that covers this under Rule 3(a)(3), but it seems odd not to make it explicit in the e-filing rules themselves. [Added 8/21/17: briefs on the merits and other post-grant filings appear to be deliberately omitted from e-filing. See the update below.]

Regular readers know I am not a fan of reading legal documents on a screen. But e-filing sure makes filing easier, and also makes it easier to keep my office organized.

Still, electronic filing could be improved by some uniformity. Some is on the way, such as the anticipation that all districts of the Court of Appeal will have e-filing through TrueFiling implemented by November of this year. It could also be improved be eliminating the need for any paper copies, including copies served on subordinate courts. E-filing in the Court of Appeal has long satisfied the requirement of service on the Supreme Court, and the uniform use of TrueFiling this November should make it possible to e-serve any Court of Appeal with documents e-filed in the Supreme Court. Electronic service on superior courts statewide would be nice. Electronic service on subordinate courts would be even nicer if it happened automatically upon e-filing in the filing court.

Update (8/21/17): The ambiguity regarding post-grant documents kept gnawing at me, so I asked a few colleagues what they thought, which led me to last June’s news release about the Supreme Court’s adoption of e-filing. It says in part:

The court will adopt detailed eFiling Rules in June and remain open to opportunities to enhance the program in the coming year. The court will employ a phased approach to the launch of its eFiling program.

That suggests this is a “grow as we go” implementation, and that my reading is correct: for now, briefs on the merits and other post-grant documents, as well as documents in writ proceedings, cannot be e-filed.  They may be submitted electronically, but the electronic submission is in addition to required paper filing copies, not a substitute for them.

Update (9/6/17): Some of the rules have already been modified. Notably, the requirements for submitting paper copies (Rule 5) have been relaxed.  Whether a death penalty case or not, only a single, unbound paper copy is required, and it need no longer reach the court within two court days; depositing the copy in the mail or with a common carrier within two court days of filing now suffices, unless the filing party is seeking a stay, in which case the paper copy must reach the court “by the close of business the next court day after the document is filed electronically.”

There may have been other changes, but I do not have the original version of the rules against which to check the current version. As always,. rely on the official rules, not the commentary in this blog post.

When I was a young lawyer, my mentor told me, “Practice law as if the rules will always be strictly enforced against you but will never be strictly enforced against the adverse party.” Wise words.

Last week I posted about a party that applied for a 15-minute extension of time to file its documents with the federal district court in Ohio because of some technical difficulties it encountered with the electronic filing. In doing so, it lived out the first half of my mentor’s adage, as it did not assume that it would get a break of even 15 minutes without explicitly requesting such relief.

In Hyperphrase Technologies, LLC, et al. v. Microsoft Corporation, a patent infringement case in a Wisconsin federal district court, Microsoft electronically filed its summary judgment motion about 4-1/2 minutes after the midnight deadline, and did not complete uploading the supporting papers until 1:11 in the morning. Microsoft did not ask for an extension, thus ignoring the rule to “practice law as if the rules will always be strictly enforced against you.”

Hyperphrase moved to strike Microsoft’s summary judgment motion as untimely. The magistrate judge had great fun in his order denying the motion to strike:

Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, [listed by name], promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

I’m hardly the first blogger to note this 14-year-old order, and many people have no doubt gotten a good laugh from it. Allow me to be a killjoy and inject some seriousness.

At first glance, it might appear that Hyperphrase ignored the rule to “practice law as if the rules . . . will never be strictly enforced against the adverse party.” But did it?  This adage does not mean that a lawyer should ignore rules infractions by the other side, only that a lawyer should weigh the seriousness of the infraction within the context of the case before committing the client’s money to an effort to make the adverse party pay a price for that infraction.

I suspect Hyperphrase’s lawyers made that analysis, and the decision to move to strike was carefully considered rather than a reflex reaction. This was a patent infringement action against Microsoft targeting two of Microsoft’s flagship products, Word and Excel. There had to be many millions, perhaps hundreds of millions of dollars, at stake. Would you not at least be tempted to move to strike the summary judgment motion as untimely? Would you let the risk of looking silly stop you from taking every conceivable step to get the case in front of a jury? And even if you were reluctant to move to strike, how do you think your client, with many millions of dollars on the line, would react to you saying you would not move to strike the motion because you did not want to look petty? Maybe the magistrate judge had a reputation for being a stickler on timeliness. Finally, maybe Hyperphrase’s attorneys believed the motion would be impossible to beat on the merits and saw the motion to strike as the only reasonable shot at derailing it. (The district judge granted the motion.)

Consider also this occurred in 2003, when electronic filing was relatively new. (I don’t believe mandatory electronic filing was in place in California until a few years later.) With little or no history to go on, who knew how strictly the midnight deadline would be enforced? If one hour and eleven minutes past midnight is OK, how about 2 a.m.? 3 a.m.? The judge is almost certainly still in bed at those times, and the courthouse is still hours from opening. At what point is tardiness inexcusable?

There are judges who take untimely filing, even by a matter of minutes, seriously. Since you never know how your judge will view it, perhaps the safe course is to ask for an extension when your filing will be even a few minutes late and to move to strike anything of significance filed late, even if it is just by a few minutes.

If you have experience with missed electronic filing deadlines (in either federal or state court) in the early morning hours, please share your story in the comments.

Consider that a successful motion to strike is likely to give the appellant a “second bite at the apple” (and sometimes a third or fourth bite, if later briefs are also stricken), allowing the appellant to improve the quality of his brief. This is so because a Court of Appeal has only three options if it agrees the brief is noncompliant:

(A) Order the brief returned for corrections and refiling within a specified time;
(B) Strike the brief with leave to file a new brief within a specified time; or
(C) Disregard the noncompliance.

(Rule 8.204(e)(2).) Instead of giving the appellant that chance to file a better brief, might it make more sense, at least in some circumstances, to forego a motion to strike, use the respondent’s brief to attack the opening brief’s deficiencies, and let those deficiencies take down the appeal?

That appears to be the approach taken by the respondent in Ewald v. Nationstar Mortgage, LLC, case no. C081760 (3d. Dist June 28, 2017, ordered published July 27, 2017), a plaintiff’s appeal from a judgment following the defendant’s successful motion for summary judgment. Respondent never moved to strike the appellant’s opening brief, but its own brief led off with the argument that the judgment should be affirmed because appellant had failed to support his arguments with authority, and the arguments should thus be deemed abandoned. In a brutal page-and-a-half opinion that summarizes the “egregious violations of basic appellate norms” contained in appellant’s opening brief, the court agrees with respondent that “the opening brief does not satisfy counsel’s duty to provide adequate legal authority to support this appeal,” and affirms the judgment “without discussing the merits.”

This tactic won’t always work. First, it might not deprive appellant of a chance to improve the opening brief, because The Court of Appeal might strike the brief on its own motion. (See Rule 8.204(e)(2).) More importantly, the tactic of foregoing a motion to strike in favor of using the respondent’s brief to raise the defects might be dangerous. This tactic should probably be invoked only when case law and the record of the division in which the appeal is pending make it nearly certain the defect will be deemed an abandonment of issues. If there is any ambiguity about whether the defects constitute an abandonment of issues, I would err on the side of caution and move to strike immediately, especially if the brief is so unclear that it is hard to address the points raised in it.

One final note about Ewald. The opinion was originally unpublished, but later certified for publication. The online record for the case shows no intervening request for publication from either party, suggesting that the Court of Appeal eventually decided on its own this case should serve as a warning to appellants to file briefs that conform to rule 8.204.

Update (8/21/17): A reader suggests that the approach in Ewald may sometimes be adopted for reasons of cost and timing rather than strategy. In other words, why go to the expense of a separate motion to strike when success means that the appeal is dragged out by the time the appellant is allowed to re-file a compliant brief? Addressing the opening brief’s noncompliance in the respondent’s brief may be the respondent’s most cost-effective option as well as the one least likely to drag out the appeal.

When I was in law school, my wife was an assistant to a department head in an environmental consulting firm. Frequently, when I asked her what kind of day she’d had at work, she would respond that the scientists had made her day nuts by working on a project proposal at the last minute, forcing  the support staff to scramble like mad to make the FedEx deadline (usually 5 p.m. for those of us on the west coast). After hearing this a lot, I asked — with great naivete — “Has anyone ever considered getting the project done before the last minute?”

Then I got to my Big Law firm, and saw that a lot of the work product going out the door faced the same last-minute rush. I remember conference calls with co-counsel and/or clients suggesting competing changes to drafts an hour before they had to be sent electronically to another office, where they would be printed for filing (this was the early 90s, long before electronic filing).

With mandatory electronic filing in federal courts (and some state courts), lawyers now have the “luxury” of midnight filing deadlines, which means, naturally, that many lawyers are now working up to a few minutes before midnight on their filings. Sometimes it’s procrastination, other times perfectionism, but I doubt it is uncommon.

Which brings me to the request for the 15-minute filing extension, filed just after midnight by attorneys suffering technical difficulties with their electronic filing. In granting the extension, the court  asks “Why are we waiting until the eleventh hour?” and describes filing practices employed “in the old days” (which, in terms of technology in law offices, really weren’t that long ago). The 1-1/2 page order is well worth a read.

Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865. In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal. Because it reached this conclusion without explanation, despite precedent to the contrary, and because the dismissal had no procedural effect (the issues raised were heard on appeal from the underlying judgment), this conclusion in Clemmer has been characterized as dictum and has generally not been followed. [Citation.]

I suggested that the then-recent decision in City of Los Angles v. Glair (2007) 153 Cal.App.4^th 813 might give the Supreme Court a good reason to revisit and clarify Clemmer, because the Glair court had bucked the trend of writing off Clemmer’s conclusion as dictum, and instead relied on Clemmer to dismiss an appeal. (I later expanded that blog post into an article, available here.)

The Supreme Court denied review in Glair, but this part of Clemmer, and confusion resulting from it, have finally met their doom in Ryan v. Rosenfeld (June 15, 2017, S232582) ___ Cal.5th ___. In Ryan, the Supreme Court unambiguously holds that an order denying a section 663 motion to vacate is appealable, even if it raises issues that could have been litigated in an appeal of the judgment.

The Supreme Court’s statement of the conflict between Clemmer and its other decisions on the issue is understated:

Our opinion follows several earlier efforts by this court to resolve questions nearly identical to the one before us today. What complicates this case somewhat is the tension between one of those past efforts — in Clemmer []— and virtually all of our other holdings on this question.

The Supreme Court takes us on a trip through history, starting with a 1911 Supreme Court decision holding that an order denying a section 663 motion to vacate [then codified elsewhere] is appealable, then tracks its subsequent consistent decisions and carefully recounts intervening amendments to the relevant statutes to demonstrate that they do not change the rule first announced in 1911.

The Supreme Court downplays the opposite conclusion reached in Clemmer by noting the appellant in that case had appealed from two post-judgment orders in addition to the order denying its section 663 motion to vacate — one granting its new trial motion only in part, and the other denying its motion for judgment notwithstanding the verdict — and that the opinion in Clemmer “said a grand total of three things” about the motion to vacate. Noting that its opinion in Clemmer offered no analysis of the issue or any authority supporting its conclusion that orders denying section 663 motions to vacate are not appealable, the Supreme Court explains that “Clemmer’s unexplained treatment of the section 663 order has — for years — puzzled observers.” Ryan solves that puzzle:

Whatever else is true of Clemmer, what we hold is that it did not overrule our long-standing precedent. When this court departs from settled law, we seek to explain the reasons for that departure. When an opinion defies our precedent with no explanation, litigants and courts have no reliable way to discern whether that departure was an oversight. This is especially true for an opinion like Clemmer, where the inconsistency with settled law was not a central issue in the case. We thus treat Clemmer’s statement with more skepticism than we treat . . . prior cases analyzing this statutory scheme in greater detail.

The issue decided in Ryan will give a second chance to some appellants. A party that failed to appeal (or untimely appealed) from the underlying judgment might can still obtain review of issues that could have been raised in an appeal from the judgment by timely appealing from the denial of a section 663 motion that raised those issues.

Justice Butz’s concurring opinion opened with this sentence: “With apologies to Dolly Parton, here I go again, concurring with myself.” I like it when judges write colloquially, but I think I would have used a different musical reference if I were in Justice Butz’s place:

What can I say? I loved the 80s!

Writing on a report to be released by the Obama administration today from the President’s Council of Advisors on Science and Technology (PCAST), Judge Kozinski calls for lifting, or at lease easing, restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on federal court review of state court criminal judgments, because the report finds that many of the scientific methods used to convict criminal defendants, including long-standing methods like fingerprint identification, are – in the judge’s words – “flawed, some irredeemably so.” This is scary stuff for everyone, not just those in the criminal justice system:

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Judge Kozinski asserts flaws in analysis of fingerprints, bitemarks, firearms, footwear, hair, and “char patterns.” The last of these is used to determine whether a fire is the result of arson, and, according to Judge Kozinski has been shown by studies to have “absolutely no scientific basis.” Judge Kozinski notes that at least one person has been executed following a conviction based on char pattern analysis.

If you initially recoil from Judge Kozinski’s call to amend the AEDPA, consider this harrowing fact cited by the judge: of more than 7,600 convictions (including dozens of capital cases) involving FBI lab examiners that were impugned by a 1997 Justice Department inspector-general report, only 17  had been reviewed by 2014, seventeen years later. Judge Kozinski concludes:

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

Judge Kozinski has a knack for challenging political ideologies of all stripes, and I think his highlight of the PCAST report (and, of course, the report itself) could prove challenging, and not just on the issue of criminal justice reform. “Law and Order” types who claim the science on climate change is unsettled may have a hard time rejecting Judge Kozinski’s call for reform, while full-throated advocates of the judge’s suggested reforms who also campaign on legislation to combat climate change may have to admit that maybe the science on climate change is not as settled as they say it is. In short, the report profiled by Judge Kozinski should get a lot of people thinking.

UPDATE: It occurred to me immediately after publishing this post that the challenge to politicians would be even greater if the AEDPA had originally passed with broad bipartisan support, so I looked up the vote and . . . yes, this is going to be a problem for a lot of politicians: the votes for the AEDPA, which was passed in identical form in both houses of Congress, was 91-8 in the Senate and 293-133 in the House of Representatives.

Technology has been displacing low-wage and less-skilled workers for a long time. Is it time for white collar professionals – including lawyers – to fear they are next?

At  The American Interest blog: “Venture capital money keeps flowing to promising new tech companies that are working to automate many of the routine tasks conducted highly-paid 20-somethings at big city corporate law firms.” After noting that professionals may soon feel the squeeze from technology that low-wage workers have long endured, the pot continues, “Big law firms are especially overdue for disruption … The next stage of the information revolution may end up looking more egalitarian than the last” (see the difference with Hoyer Law Firm).

I sense a little hostility there, but maybe I’m just being defensive.

That post links to this article at Bloomberg, about a new start-up:

Could the armies of lawyers needed to close billion-dollar deals soon be a thing of the past?
That’s what Invoke Capital, the London-based venture firm run by former Autonomy Plc Chief Executive Officer Mike Lynch, is betting with its latest project financing. Invoke said Wednesday that it’s making an investment in Luminance, a U.K. startup using artificial intelligence to process legal documents and automate due diligence in mergers and acquisitions.

Well, that’s a relief! They’re just gunning for M & A work. For now. But if you use computerized legal research services like Lexis or Westlaw, ask yourself: is it all that hard to imagine those services advancing to where, armed with facts provided by an online form,  they can take over the research completely, and maybe put the results together into a cohesive argument? Wouldn’t the ultimate end be there would be no more argument, but instead only one correct legal result arrived at by a computer? Even appellate justices would not be safe.

I think there are a few things standing in the way of that end. People would not accept it because they would not trust the programmers. But the biggest obstacle? Teaching a computer how to apply the “abuse of discretion” standard of review.

The clerk of the 2nd District Court of Appeal has asked us to inform the panel that True Filing will be available in this district beginning in November.  For two months, November and December, True Filing will coexist with the present eFiling system presently being used in the district.  The choice of which to use will be yours.  Then, in January, the present eFiling system will disappear, and everyone will be required to use True Filing.  Those of you already working in other districts with True Filing will definitely have a leg up on the rest of us.

That last sentence is certainly true. TrueFiling takes some getting used to.

The Second District’s present e-filing system has the advantage of being free, but it is also not a pure e-filing system. Hard copies of briefs still had to be submitted to the court. Also, original proceedings (writ petitions) cannot be initiated electronically under the current system, but I have initiated original proceedings via True-Filing in other districts.

You can’t stop progress. But I still hope the justices print out my briefs before reading them.

Update (09/25/2017): From the “better late than never” department. TrueFiling becomes mandatory in the Second District Court of Appeal on October 30, 2017. I shouldn’t joke. The Second District has always generously granted me extensions, it’s about time the court got one.

The 2015 edition of the California Litigation Review hit my mailbox yesterday. It is published by the Litigation Section of the California State Bar and it has some terrific coverage of appeals and writs developments last year . . . and I don’t say that just because the vast majority of the cases examined in it were covered here as they happened, including:

Jameson v. Desta (2015) 24 Cal.App.4th 491 (indigent plaintiff with fee waiver unable to afford court reporter still held limited in appellate argument by absence of transcript);

Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174 (in which the court offered some friendly advice to the legislature for modification of California’s anti-SLAPP statute);

Ellis v. Ellis (2105) 235 Cal.App.4th 837 (Court of Appeal’s summary denial of motion to dismiss does not preclude granting the motion at the merits stage);

Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259 (explaining and reaffirming the disentitlement doctrine, under which disobedience of the order appealed from can result in dismissal of the appeal);

McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695 (how a trial court’s explicit reasoning can undermine presumptions inherent in the deferential “abuse of discretion” standard of review);

Lanquist v. Ventura County Employees’ Retirement Assn. (2015) 235 Cal.App.4th 186 (exercising heightened review of an administrative agency’s construction of statute);

Bermudez v. Chiolek (2015) 237 Cal.App.4th 1311 (judicial notice of laws of physics cannot be basis for arguing new theory of accident on appeal);

In re Christopher B. (2015) 240 Cal.App.4th 809 (trial court cannot “clarify” a mistaken dismissal to reinstate some charges);

AP-Colton, LLC v. Ohaeri  (2015) 240 Cal.App.4th 500 (failure to pay fee to reclassify case from limited to unlimited did not cap damages amount to maximum awardable in an unlimited case);

Marriage of Oliverez (2015) 238 Cal.App.4th 1242 (limits on superior court judge’s power to reconsider rulings of another superior court judge);

People v. Scarbrough (2015) 240 Cal.App.4th 916 (trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal);

Martinez v. State of California Dept. of Transportation (2015) 238 Cal.App.4th 559 (trial court abused discretion in denying mistrial where counsel repeatedly violated orders on motions in limine);

Shiffer v. CBS Corporation (2015) 240 Cal.App.4th 246 (new theory developed by expert witness does not merit new trial where evidence upon which theory is based was previously in party’s possession).

Unfortunately, the Review appears to be available online only to members of the Litigation Section of the California State Bar. If you are a litigator who is not a member, find a friend with a copy of the Review and browse it. Besides articles on appellate issues, there are articles on alternative dispute resolution, class actions, employment law, etc. It is a great resource for catching up on developments you may have missed.

UPDATE: I should have given credit for the great year-end write-up on Appeals and Writs not just to the review generally, but to the two lawyers who authored it: Ben Feuer (who graciously thanked me for the post even though I had not mentioned him by name) and Anna-Rose Mathieson of Appellate Law Group LLP. Thanks, guys!

Death penalty cases can be automatically appealed to the Supreme Court, but a mere civil litigant has to ask the supreme court — convince it, really — to review its case. The odds are terrible; only about 1 in 25 petitions for review succeeds.

Those odds may be going up a little after this year. For the 2014-2015 term, death penalty cases made up nearly 18% of the court’s workload (13 death penalty decisions out of 73 majority opinions). What if all those death penalty cases went away? Would the court be able to take on more cases?

It’s quite possible, according to an article by Ben Feuer and Ann-Rose Mathieson in he 2015 edition of California Litigation Review.* The 18% statistic belies the time actually spent on death penalty cases, say the authors, “given the generally lengthy records and briefing, along with couldn’t-be-higher stakes.”

What are the chances those death penalty cases will go away? Higher than they have been in a long time, it seems. This year’s ballots may see competing death penalty initiatives, note the authors. One would streamline the appeals process in death penalty cases, while the other would eliminate the death penalty. The latter initiative seems to have a real chance. According to the authors, a recent poll found support for the death penalty in California at its lowest point in 50 years.

*Published by the Litigation Section of the State Bar of California, and the source for the case statistics cited in this post.

The Los Angeles Times has a story today on Justice Goodwin Liu, or, more particularly, on how his two recent lengthy dissents from orders denying review give some insight into what the court’s reasoning was. Usually, an order denying review is quite terse and gives no clue as to why the court reached its decision not to grant review. Justice Liu’s recent dissents, according to the article, shed some insight on the decision-making in those cases, but I’m afraid the article doesn’t do very well at explaining how. The passages it cites from the dissents demonstrate why Justice Liu was in favor of granting review by showing what he was thinking, but not why the justices who voted against review did so. The article has links to the dissents, so it is easy enough to follow up if you are curious.

The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at Northern Kentucky University – Salmon P. Chase College of Law, titled Appellate Jurisdiction in the Internet Age:

A close examination of the citation practices of the United States Supreme Court and the California Supreme Court from the twentieth and twenty-first centuries reveals that appellate jurisprudence in the Internet age closely resembles that of the pre-Internet age. These findings, coupled with the continued criticism of legal researchers in the Internet age, call for a retrenchment in training future lawyers in the essential skills of “thinking like a lawyer.” The traditional techniques that have been taught by legal research and writing professors, and their doctrinal counterparts, must remain an essential part of our legal education system. Appellate jurisprudence in the Internet age is the same as it has always been. Whether one uses the Internet or a treatise to find legal information, the analytical skills necessary to determine relevant precedent remains the most important skill for a lawyer in the Internet age.

Whiteman notes that worries about how availability to ever-larger amounts of legal information might corrupt jurisprudence are nothing new: “The truth is that commentators have been worried about the explosion of legal information and the effects this has had on legal research and jurisprudence for close to two centuries,” (emphasis added, footnote omitted), noting that in 1821, Justice Story lamented that too many young lawyers were relying on treatises instead of actual legal opinions of the courts. Making a similar argument regarding today’s technology-driven growth in the availability of legal information merely continues a “time-honored tradition”:

Several commentators have criticized electronic research and its effects on the research abilities of law students, lawyers, and judges. While there is probably some truth in these criticisms, they reflect a continuation of the time-honored tradition of criticizing the research skills of law students and newly minted attorneys. The one constant that remains is that regardless of the tools used to perform legal research, law students must gain a deep foundation of “thinking like a lawyer.” Thinking like a lawyer encompasses the analytical skills that form the basis for “good” lawyering which will allow law students (and future lawyers) to uncover and utilize the basic building blocks of each jurisdiction’s jurisprudence.

(Footnotes omitted.)

I have not read the entire paper, but the conclusions stated in the abstract and the excerpt above match my intuition. I went to talk to a personal injury lawyer to proove that right. As my prior writing on electronic briefs and laptops may indicate, I think too many people of all stripes, not just lawyers, expect technological tools to revolutionize substantive thought or to improve thinking rather than merely change the way we access, store, or review information. Technology allows us to find relevant information incredibly fast (and makes it tempting to ignore the age-old rule to always read the entire case before relying on it as authority). But once we access the information, we must still rely on our good sense and proven analytical methods.

Thanks to the Legal Writing Institute and the Social Science Research Network for making this paper available. Of course, if you’re still down on technology, you may instead regret that these organizations continue to contribute to what you see as a glut of legal writing! From me, however, they get a “thank you.”

I wrote the other day about one aspect of Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) (its illustration of the rule that a court of appeal may affirm on an alternate ground supported by the record), but there is a second lesson to glean from the case, regarding the limits of the appellate courts’ patience with counsel’s untimely submissions.

In general, deadlines for appellate briefs are easily extended. One usually sees the limits of an appellate court’s patience in an order granting an extension, with the admonition NO FURTHER EXTENSIONS. Even that may not be the end of the court’s patience. If you miss that deadline, there’s always California Rules of Court, rule 8.60(d), which provides that “For good cause, a reviewing court may relieve a party from default for any failure to comply with these rules except the failure to file a timely notice of appeal or a timely statement of reasonable grounds in support of a certificate of probable cause.” (Emphasis added.)

Younessi provides an example of what does not constitute good cause. The respondent missed the deadline for his brief, then filed for relief seven months after the blown deadline and barely two weeks before the scheduled oral argument. Though respondent had a series of at least three lawyers representing him on the appeal, neither respondent’s original attorney (Wass) nor his successors filed the brief or even moved promptly for relief from the default:

This court has the discretion to grant relief from a party?s failure to timely file a brief “[f]or good cause.” (Cal. Rules of Court, rule 8.60(d).) However that phrase may be defined (see Cal. Rules of Court, rule 8.63), plaintiffs’ request does not qualify. The motion and its supporting declarations reflect the legal representation provided by plaintiffs’ current attorneys is little better than that provided by Wass. Casey admittedly knew in August that Wass had failed to timely file the respondents’ brief, but when he substituted in as plaintiffs’ counsel a month later, he still took no action to seek relief from this default. Rather, Casey waited another month and a half for Wass to prepare the brief. Even then, nothing was done for another two weeks when plaintiffs associated in a second attorney. Once the motion for relief from default was prepared, it took another two weeks to file it with this court.

Unless multiple attorneys for a party are working together and communicating well about their respective responsibilities, and holding each other accountable, “more” does not equal “better.”

The appellants in Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) learned this the hard way.  The appellants were defendants who successfully moved for an entry of dismissal after the plaintiff failed to file an amended complaint following an order sustaining demurrers with leave to amend. The plaintiff filed a motion under Code of Civil Procedure section 473(b) to set aside the dismissal, on grounds of excusable neglect and attorney fault. In granting the set-aside motion, the trial judge stated that she relied on section 473, subdivision (b)’s “discretionary” provision.

The appellants succeeded in convincing the court of appeal that the trial judge had abused her discretion in granting discretionary relief. The plaintiff offered no explanation for not seeking relief promptly and the attorney’s affidavit offered only “cryptic explanations” for his conduct, thus failing to establish that his neglect was excusable.

Appellants still lost, however, because the court affirmed on an alternate ground, which the trial court apparently never considered: the “attorney-fault provision” of section 473, subdivision (b), mandated setting aside the dismissal. The statutory mandate in section 473, subdivision (b) to set aside a default or dismissal upon a suitable affidavit from counsel reads as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

Long-time readers may recall I have warned against some pitfalls in this type of motion, and noted a significant split of authority regarding the applicability of this provision. But in this case, the plaintiff got it right. The motion was timely, the affidavit of fault was sufficient, and the trial court disposition was “the procedural equivalent of a default judgment” (though this was not obvious).

Appeals from orders granting section 473, subdivision (b) motions, in the abstract, will frequently present an opportunity for the appellate court to affirm on alternate grounds, since the statute itself provides for alternate grounds for relief from certain defaults and judgments. Be on the lookout for this whenever you are the respondent in such an appeal.

And never go into an appeal thinking you have a “slam dunk.”

Lawyers, and especially appellate lawyers, talk about “precedent” all the time, but do we regularly consider the rationale behind the rules of precedent and stare decisis? Mary Whisner does. Whisner is a reference librarian at the University of Washington College of Law, and sets forth some of her views in a paper called Exploring Precedent, brought to us courtesy of the Legal Writing Institute and the Social Science Research Network. Here’s the abstract:

Legal researchers have many powerful tools for finding cases: Full-text searching with different interfaces from different providers, annotated statutes, digests, and a wide variety of secondary sources. But there are areas where even experienced researchers are puzzled: When will an intermediate court follow rulings of a sister court? What sources can advocates cite? (or: why can advocates cite secondary sources but not unpublished opinions?) Are fewer cases considered to be cases of first impression, since the cumulative body of precedent is so large?

This essay examines each of these questions. It is accessible to beginning students, first wrestling with the questions, but should also interest more experienced researchers.

Before you say to yourself, “Yeah, like I’ve got time to read a lengthy, impenetrable, egghead article,” take it from me, the piece is fairly short (about 13 pages, with about a third of it in the footnotes) and the abstract is correct that the article is “accessible.” For those of you curious about which of Shakespeare’s plays have been cited the most in appellate briefs (not always to good effect), Whisner has done that homework for you and put the results in a table in her article (#1 cited Shakespeare Play: Hamlet).

I especially enjoyed her discussion about prohibitions against the citation of unpublished opinions. (Long-time readers may remember that the rule against citation of unpublished opinions generated a lawsuit against the California Supreme Court a few years ago and that there is one organization very agitated about the rule.) She asks some good questions about the rule. Has technology made the rationale for the rule obsolete? Why is it alright to cite Shakespeare and Dr. Seuss, but not alright to cite unpublished decisions? The paper is well worth a read.

Prop 47, adopted by the voters in 2014, reduced certain drug and theft offenses to misdemeanors and allowed those previously sentenced for those crimes as felonies to petition for resentencing if the crime would have been a misdemeanor if Prop 47 had been in effect. In Ortiz, the statute violated by the defendant was Vehicle Code section 10851, subdivision (a), which reads in part:

Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense[.]

Prop 47 enacted Penal Code section 490.2, which reads in part at subdivision (a):

Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor[.]

The trial court denied the defendant’s resentencing petition because it held that, as a matter of law, Section 10851 did not meet Prop 47’s eligibility criteria, but in Ortiz, the appellate court reverses. It notes that Section 490.2 makes a misdemeanor the obtaining of “any property by theft.” Thus, even though Prop 47 did not list section 10851 by name or number, Section 490.2 “unambiguously includes conduct prohibited under Section 10851.”

It is worth noting that Ortiz departs from two decisions – one in the Fourth District and one in the Third District – which held that Section 490.2 did not apply because Section 10851 does not proscribe theft. But another Court of Appeal decision created a split of opinion within the Fourth District, coming out the same way as the Ortiz court. The issue may be teed up for Supreme Court review.

Perhaps you have been wondering what kind of car could have been worth less than $950 at the time the defendant stole it. Answer: a 22-year old Honda Civic. Even though its owners had paid just $1000 for it and sold it for $300 after recovering it, the evidence was insufficient to establish its value at the time of the theft. Nonetheless, this was not a hollow victory for the defendant. In reversing the trial court, the Court of Appeal ordered the resentencing petition dismissed without prejudice, which gives the defendant the opportunity to petition again if and when he can garner evidence that the value of the car was $950 or less when it was stolen.

Last week, I wrote about Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), describing how the appellant there benefited from a Supreme Court decision (Iskanian) that came out after the judgment from which the appellant appealed, and which so squarely addressed the issue on appeal that the Court of Appeal spent only a paragraph on its substantive discussion of the case.

Given that controlling authority and the rules of stare decisis, under which a California Supreme Court opinion binds all lower courts in the state, what could the respondent — or any similarly situated respondent — do?

First, a respondent can look for ways to challenge the appealability of the judgment, as the Miranda respondent did (unsuccessfully). Second, a respondent can do its best to distinguish the case from the case on appeal; perhaps it is not as controlling as it appears to be at first blush. But given how concisely the Court of Appeal dealt with the merits, distinguishing Iskanian probably was not an option for the Miranda respondent.

I can tell you one thing that will never work, at least not until the Supreme Court decision has been disapproved by a later Supreme Court decision: arguing to the Court of Appeal that the Supreme Court decision was wrongly decided. Yet, respondent argued that in Miranda, apparently relying on rationale set forth in some federal decisions:

Respondents’ sole argument is that Iskanian was wrongly decided. However, Iskanian is binding on this court, regardless of any contrary holdings by lower federal courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Montano v. The Wet Seal Retail, Inc. (2015) 232 Cal.App.4th 1214, 1224, fn. 5 [“We recognize that several federal district courts in this state have found PAGA waivers to be enforceable . . . . However, ‘ “[d]ecisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts.” ’ ”].)

It can be awfully difficult for a respondent to concede anything on the appeal. But, if the Court of Appeal is correctly characterizing the respondent’s argument, this “wrongly decided” argument never really stood a chance.

Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court reporters, requiring that parties provide their own court reporters for trial at their expense. The trial in this case went unreported, and that was enough to keep the plaintiff from prevailing on appeal. But before I get to how that came about, let me briefly describe the history of the case, for it makes the result all that much more heartbreaking for the plaintiff.

Plaintiff sued a prison doctor for malpractice. The doctor obtained a judgment on procedural grounds, plaintiff appealed, and got the judgment reversed. The doctor obtained a second judgment on procedural grounds, and again, plaintiff got the judgment reversed on appeal. The doctor then obtained judgment for the third time, this time by prevailing on a summary judgment motion, and again, plaintiff got the judgment reversed on appeal.

By now, plaintiff has been litigating for a decade, and the really amazing thing is that he has done it while incarcerated and without an attorney.* Surely, that perseverance would be rewarded by a payoff at the end of this long, winding road?

Unfortunately for the plaintiff, no. After remand from the third appeal, the case went to trial before a jury, but without any court reporter. The doctor made an oral motion for nonsuit at the end of plaintiff’s opening statement, the court granted the motion, and plaintiff appealed from the resulting judgment. The fourth appeal proves to be the charm for the doctor, because plaintiff’s challenges fall short, and the judgment for the doctor is affirmed.

Plaintiff made multiple challenges to the judgment on appeal, but two of them are directly related to the transcript. First, he contended that the trial court erred in failing to provide a court reporter, suggesting that the court gave him inadequate notice that an official court reporter would not be available and that the court should have provided a reporter because plaintiff had obtained an order waiving court fees. But he received notice about the reporter 10 days before trial, which the court found adequate. And, while Government Code section 68086, subdivision (b) indeed provides that the official court reporter fees are waived, the Court of Appeal held that section “does not mandate that a trial court provide indigent litigants with court reporter services where no official court reporter is provided by the court, as was true in this case.” Further, the trial court’s local rules specified that even parties with fee waivers are responsible for the costs of providing a reporter where no official reporter is provided.

Second, plaintiff argued that the trial court erred in granting the motion for nonsuit. Here, the absence of a court reporter’s transcript was fatal. Because the absence of a reporter’s transcript precludes an appellant from raising “evidentiary issues” on appeal, and a motion for nonsuit following the opening statement requires the trial court to “review the evidence to be presented at trial,” plaintiff could not demonstrate any error, even though the court’s minute order was fairly detailed.

The court was not unsympathetic to the difficulties faced by an incarcerated and indigent litigant, but the rules won out:

This court is fully aware that [plaintiff’s] incarceration and his financial circumstances have made it difficult for him to pursue his claims in court. This case aptly demonstrates that civil justice is not free. While this court is sympathetic to the plight of litigants like [plaintiff] whose incarceration and/or financial circumstances present such challenges, the rules of appellate procedure and substantive law mandate that we affirm the judgment in this case.

(Footnotes omitted.)

Of course, it’s possible the plaintiff would have lost his appeal even if he had a reporter’s transcript. But he’ll never know.

* Actually, it’s not clear from the opinion whether the plaintiff was incarcerated the entire time, but it appears he was incarcerated for at least part of the litigation.

UPDATE (4/13/2016): I missed this when it happened, but the Supreme Court has granted review in this case. The issue presented focuses on an issue I did not concentrate on in my post. Plaintiff had been granted a waiver of court fees, yet was eventually penalized for failing to pay to have a reporter record the proceedings. The issue presented, as stated in the Supreme Court’s website, is:

In the case of a litigant who has been granted a fee waiver (Gov. Code, § 68631), can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review?.

Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up.

For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that would have otherwise deprived Miranda of the right to arbitrate representative claims under the Private Attorneys General Act (Lab. Code, §2698 et seq.). Iskanian was so directly on point that it required only a paragraph of substantive discussion in the Court of Appeal opinion. Of course, the case might have been decided the same way without the Supreme Court’s Iskanian decision, or the Court of Appeal may have asked for supplemental briefing on the effect of Iskanian had neither party addressed it in the briefing, but the new case sure made it easier for appellant to brief the appeal.

The obvious application of the Iskanian holding probably explains why so much of the Court of Appeal opinion in Miranda was spent on the subject of appealability. Faced with a controlling Supreme Court opinion, the respondent probably thought its best hope for keeping the judgment in place would be to get the appeal dismissed for lack of appealability, and spent the bulk of its brief on that issue. However, the respondent failed to convince the Court of Appeal that the judgment was not appealable, leading to reversal based on Iskanian.

You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it holds that a trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal.

First, a brief reminder of what the California electorate voted into law last November. Prop 47 reclassifies certain crimes from felonies to misdemeanors and provides that persons convicted of felonies that are now classified as misdemeanors may “petition for a recall of sentence” to request resentencing under the new standards.

You can imagine there are quite a few defendants in line for this process. The Los Angeles Times reported just a few weeks after passage of Prop 47:

Judges expect that tens of thousands of Californians may seek to have their felony convictions reduced. Courts have had to scramble to handle the surge in workload, and some agencies are planning to ask for more public funding to cover the added duties.

Now, on to the quagmire. Defendant Scarbrough appealed her felony convictions. While her appeal was pending, she also filed a Prop 47 petition to be resentenced on the same convictions, and the trial court entered an order reducing her original sentence of 9 years, 4 months to just 6 years. Scarbrough attempted to abandon her appeal, but the Court of Appeal refused to dismiss it and asked for supplemental briefing on “an issue that is likely to recur and to otherwise evade review” — whether the trial court had jurisdiction to rule on a petition for recall and resentencing while appeal from the same convictions was pending.

Because the trial court determined that the trial court lacked such jurisdiction, its order reducing Scarbrough’s sentence is void. The obvious question then becomes: What about other defendants that have already been resentenced while their appeals were pending? Well, the court acknowledges that its ruling creates a mess, but provides no guidance as to how it will be cleaned up:

We do recognize that several people with pending appeals have been resentenced ostensibly pursuant to section 1170.18 while their appeals were pending. This does create a quagmire, especially as regards individuals who have been released as a result of  their resentencing. However, that is an insufficient reason for us to find concurrent jurisdiction where it was not statutorily afforded.

Given the news coverage about the “flood” of Prop 47 petitions — the Sacramento Bee reported last month that 4,347 prisoners had been release under prop 47 through the first week of August, with many thousands more having been resentenced without being released — I was surprised that the court said that several” people had their resentencing petitions granted while their appeals were pending. While it makes sense that the vast majority of the petitions are from prisoners whose appeals are long over, “several” still strikes me as a surprising characterization of the number that have been resentenced or released while their appeals were pending.

Perhaps that makes the term quagmire all the more significant. If “several” void resentencing orders create a quagmire, what would have been created if the number of void resentencing orders numbered in the hundreds or thousands?

Such was the case in In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a “Murphy conservatorship” proceeding. (Welf. &  Inst. Code, §§ 5000, et seq., 5008, subd. (h)(1)(B), 5361; Pen Code, § 1370.) A Murphy conservatorship is premised on the proposed conservatee’s mental unfitness to stand trial on specified crimes and the lack of prospect of restoration to competency. There must be a pending criminal proceeding in order to establish a Murphy conservatorship . . . which is where the problems started for the Public Guardian seeking to establish the conservatorship.

Christopher B. was charged by criminal complaint with the prerequisite crimes and found not competent to stand trial, and his criminal proceedings were stayed while he was committed to a state hospital. As he neared the end of his maximum legal commitment there, the hospital determined that he could not be restored to competency because he refused voluntary treatment, and recommended a Murphy conservatorship.

With Christopher B.’s release imminent and the prosecutor unable to file a criminal information because of the stay of proceedings, the prosecutor instead obtained a new grand jury indictment on the same charges in order to establish the criminal proceedings prerequisite to a Murphy conservatorship.

You might be thinking that the indictment maneuver involved some sleight-of-hand, but it was perfectly legitimate. The sleight-of-hand wasn’t attempted until later (though I am not alleging it was intentional sleight-of-hand), after the prosecutor agreed to have the court dismiss the “charges” against Christopher B. Apparently recognizing after the fact that the dismissal of the charges would eliminate the prerequisite for a Murphy conservatorship, the prosecutor asked the court to “clarify” its ruling so that it dismissed only the original complaint and not the subsequent indictment. Even though Christopher B.’s defense counsel acquiesced to this request, that wasn’t the end of the matter.

In the conservatorship proceeding, Christopher B. argued that there was insufficient evidence of the prerequisite pending criminal proceeding. But wait, you say to yourself, didn’t the criminal court clarify its order to specify that the dismissal applied only to the complaint and not the indictment? The Court of Appeal doesn’t buy that for one minute, finding that this amounted to much more than a clarification:

In the present case, the criminal court issued an order of dismissal unambiguously dismissing the entire case at the request of the prosecution. Having realized the effect on the continued viability of the conservatorship proceeding, the prosecutor then sought on the next day to convince the criminal court to “clarify” that its ruling applied only to the underlying complaint. (It is unclear why the prosecutor chose to pursue this subterfuge rather than take the straightforward route of seeking a reindictment; at oral argument the parties did not explore, beyond conclusory assertions with limited analysis, whether a second prosecution would have been time barred.)

(Emphasis added.) In other words, this was not merely a clerical correction, which a trial court can always make. This was a correction of judicial error of a final judgment, something the criminal trial court had no jurisdiction to do. Calling the criminal trial court’s conduct “transparent efforts to garb its reconsideration of its dismissal of the criminal case in the cloak of “interpreting” an otherwise unambiguous dismissal order,” the Court of Appeal finds that the trial court lacked jurisdiction to correct the judgment, the original judgment dismissing all charges (thus applicable to the complaint and the indictment) stands, and there is thus no evidence of a pending criminal proceeding, requiring that the order establishing the Murphy conservatorship be reversed.

The lesson of Christopher B. is that a trial court’s “clarification” of a ruling must be closely examined to see if it implicates jurisdictional concerns. Litigators should consider this when seeking or opposing such clarification, and Orlando crime defense lawyers on appeal should give such “clarifications” special scrutiny.

We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior?

Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink.) featured a federal district court decision adopting the recommendations of the magistrate judge to order sanctions all around in a sexual harassment lawsuit — i.e., all of the attorneys on both sides had monetary sanctions imposed against them. On the plaintiff’s side, the attorneys were sanctioned for what Lawyerist called “evidence-free sexual harassment and retaliation allegations.” On the defense side, the attorneys representing the employer objected that they were being sanctioned merely for aggressively defending their client, but the district court noted that “there is a difference between a vigorous, effective defense and the kind of gross overlitigation and unreasonable and vexatious multiplication of proceedings which occurred here.”

Aside from sanctions, the litigation tactics summarized by the district court ( and detailed in the magistrate judge’s report) posed the risk that the better points in each side’s case got lost in the noise of all the unnecessary chatter.

That risk is also quite high, and arguably higher, when similar tactics are adopted in an appeal. In trial proceedings, various “overlitigation” tactics might be employed piecemeal over time, and the occasional golden nugget has a chance to stand out because it is presented in relative isolation. In an appeal, however, the appellant’s opening brief hits the appellate court with all of his arguments at one time, which might make it harder for the decent argument to stand out from the clutter.

While I suspect that the problem of raising too many issues in an opening brief arises most often when trial attorneys continue to represent their clients on appeal and are unable to “let go” of certain pet issues that have no place in the appellate court, or when the appellant has an inexperienced lawyer or is self-represented on appeal, even veteran appellate lawyers have to struggle with issue selection. Any time I come up with more than three or four arguments to make in an appeal, I get suspicious of my own analysis, and I consider very carefully whether all of the issues should be raised.*

I think that lawyers that forego any careful consideration of how to narrow the issues, and wind up throwing in the kitchen sink, might be depending on the good graces of the appellate court to pluck the meritorious needles out of the legal haystacks presented in their briefs. Appellate judges don’t simply throw up their hands and discount every argument raised by an appellant every time an opening brief contains a lot of different arguments that seem unmeritorious at first. Aside from the matter of professional integrity, there’s also the matter of having to justify their ruling in a written opinion, so you can bet they spend time trying to decide if there is a meritorious argument in the bunch.

Perhaps you’re thinking, As long as the court is going to look for my best arguments anyway, what’s the risk? I’ll throw in everything and let the court sort it out. The risk is that you might actually conceal your best arguments. Appellate judges (and their research attorneys) are smart, but they are not infallible. Clutter your brief enough, and the one argument that actually stood a chance at winning might not be recognized. And, if none of your arguments is any good, I suspect you are better off minimizing their number. A brief containing 15 meritless arguments is probably more likely to draw monetary sanctions than a brief containing just one or two meritless arguments, as the court will consider the former a greater waste of its time and the number of meritless arguments may be seen as evidence of the frivolousness of the appeal.

UPDATE (9/29/15): At his Briefly Writing blog, Alabama appellate lawyer Michael Skotnicki shares some related thoughts. In a post called The Risks of a “Hinge Point” Appellate Argument, he comments on the ultimate narrowing of issues: asserting a single issue on appeal.

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*In some complex cases, of course, more complex briefing is required. Consider, for example, the brief proffered on appeal by the defense team for former Enron CEO Jeff Skilling: the Fifth Circuit Court of Appeals gave them permission to file a brief 58,922 words long — more than four times as long as normally permitted under the rules — which generated quite a bit of buzz on legal blogs. But Skilling was convicted of 19 counts after a three-month trial and the record on appeal approached 47,000 pages; your average appeal is not going to be that complex. (To put the length of Skilling’s brief in perspective, consider that George Orwell’s Animal Farm is less than 30,000 words long, and Lord of the Flies is less than 63,000 words long; of course, some novels are hundreds of thousands of words long.)

In his latest book, The Sense of Style — described by one columnist as “a modern version of Strunk and White’s classic The Elements of Style, but one based on linguistics and updated for the 21st century” — Harvard cognitive scientist and linguist Steven Pinker explores the most common words and phrases that people stumble over.

My favorite in the list (emphasis and brackets in original):

Irregardless is not a word but a portmanteau of regardless and irrespective. [Note: Pinker acknowledges that certain schools of thought regard “irregardless” as simply non-standard, but he insists it should not even be granted that.]

Correct: Regardless of how you feel, it’s objectively the wrong decision. / Everyone gets a vote, irrespective of their position.

This is my favorite for two reasons.

First, in a list of misconceptions about the correct use of some very common words, use of the word “portmanteau” is hilarious.  I confess I had to look it up. If someone had thrown that word at me without any context, I would have guessed it is a wine.

Second, I agree with Pinker that “irregardless” should not be “granted” the status of non-standard usage. The word drives me crazy.

But that horse has already left the barn. A few years ago, I heard on the radio that dictionaries add new words every year. In itself, that is not surprising. Often, the added words are recently coined slang terms that have gained widespread usage, such as photobomb. Such words have probably been defined in the Urban Dictionary for years before they finally make it to a mainstream dictionary. But the reason this was covered in the radio news was because the word “irregardless” was added by a mainstream dictionary that year, with a full acknowledgment that its normal usage was grammatically incorrect, and that it was nonetheless added because its misuse was so widespread. It seems that if a word is used incorrectly often enough and long enough, it earns dictionary status.

This is how language evolves, I suppose. But if English keeps evolving this way, no one is going to understand what anybody else is saying.

My second favorite on the list:

Literally means in actual fact and does not mean figuratively.

Correct: I didn’t mean for you to literally run over here. / I’d rather die than listen to another one of his lectures — figuratively speaking, of course!

Misuse of the word “literally” in place of “figuratively,” like any use of “irregardless,” drives me crazy — figuratively, of course. If it bothers you as much as it bothers me, you can express that through t-shirts. There seem to be enough t-shirts on the topic to wear a different design every day of the week. Literally.

You can see more of the list at Business Insider.

If not, then why write emails and texts the way you do?

In this article at The Federalist, staff writer Philip Wegmann takes millennials and curmudgeons alike to task for degrading the quality of written communications.

The piece starts with this:

On the floor of the Senate, surrounded by elected officials and important dignitaries, an eccentric inventor started texting.

On May 24, 1844, with an electrical wire strung from DC to Baltimore, Samuel Morse transmitted the first telegraph, forever transforming the world. Reflecting on the divine prov­idence of this tech­no­logical leap forward, Morse tapped out a message of dashes and dots that read, “What hath God wrought?”

Now Kelly texts Becky, “OMG! Look at her butt!” and businessmen email, “see attached,” squandering our great inheritance with an incessant electroshock torture of the English language. Multigenerational murder, this linguistic abuse unites and indicts the young and the old.

I’m starting to like this guy. “Multigenerational murder” and “linguistic abuse” are pretty strong terms, but Wegmann does his best to support them with examples of corporate email abuse and texting, the latter of which he describes as “the most prominent vehicle for linguistic manure.” He urges curmudgeons to clean up their own acts before complaining about millennials (of which he is one), then asks for everyone to come together to solve the “moral crisis” of the “abysmal state of language in email and texts,” before closing with this:

Looking back, will our children read through our love letters and discover our professional triumphs? Will they sift through garbled texts and impersonal emails in desperate search of some greater meaning? Or, even worse, will they shake their heads as they discover how their bickering parents and grandparents made fools of themselves one email, tweet, and text at a time?

Every time we press send, we decide what God hath wrought, we influence whether advances in communication amount to a blessing or a curse. Emails and texts can elevate our language and humanity, or they can turn us into sentient beasts beating on keyboards and talking past one another.

Millennials and curmudgeons should work to save language. The choice is ours to make together.

Jeez, now I’m thinking that I don’t just like this guy, I love this guy!

Wegmann’s article may explain what I have been feeling intuitively to this point, as well as why I engage in some very “old school” communications. I send friends and family letters handwritten with a fountain pen. Soon after I meet someone I would like to keep in touch with as part of my professional network, I send that person a note handwritten with a fountain pen on personalized embossed stationery. I don’t know if those notes have generated any business, but I’ve heard from almost all the recipients about how delighted they were, and how unusual it was, to receive a handwritten note, and that’s enough satisfaction for me. I like to think that my habits will survive even if the decline Wegmann perceives continues apace.

I’m sure there are plenty of people who could mount a credible defense against Wegmann’s charges (as some of the commenters on the article do), and even I recognize the convenience of shorthand (at least in texting), and justifications for texting in general. My feelings are not a dislike for technology generally. (You may recall that I recently disclaimed being a Luddite.) I like technology, but I find myself more resistant to using it for communications. I know that it is somewhat ironic for a blogger to lament electronic communication, but I like to think that I don’t let my blog writing descend to the level lamented by Wegmann. I admit that I tend to slack off somewhat in blogging and emails. I use more colloquialisms than I would in other professional writing, and I use contractions. I think that’s about as far as I go, but if any readers wish to contend otherwise, feel free to use the comments to point out my other flaws.

Note: Don’t refuse to click the link to the article just because The Federalist is very political and you may not agree with its politics. There is nothing political in the piece.

UPDATE: Well, that didn’t take long: another writer at The Federalist posts her response to Wegmann in an article titled Get Used To It: Emails Are Here For Good, with the subheading, “Hating on email is a misplaced frustration. Email isn’t the bad guy, we are. But curt messages or sloppy grammar aren’t a new problem.”

AP-Colton is a commercial landlord-tenant dispute, in which the landlord originally sued to evict the tenants and for damages of less than $25,000. The tenants surrendered the premises, then cross-complained for: one million dollars!

At that point, the case should have become an unlimited civil case, right? The problem is that the tenants never paid the $140 “reclassification fee” necessary to convert the case from limited to unlimited status, so the clerk never reclassified the case. (Code Civ. Proc., § 403.060, subd. (b).) When the landlord amended its complaint to seek in excess of $25,000, it presumed the case had already been reclassified.

Starting with the filing of the tenants’ cross-complaint, all the parties identified the case as “unlimited” in the captions of their pleadings, and the tenants put the same label on a case management statement. The trial court entered a judgment against the tenants for about $120,000.

On appeal, the tenants contended that the judgment had to be reversed because the case had never been reclassified, the case was thus a limited one, and the judgment therefor could not exceed $25,000. Would such a result seem equitable to you, considering that the tenants were the ones to identify the case as unlimited and maintained that fiction all the way through judgment?

The Court of Appeal doesn’t think so. It invokes the equitable doctrine of judicial estoppel to prevent the tenants from benefiting from their change of position. They had, after all, contended the case was unlimited from the moment they filed their cross-complaint, and maintained that position through the entry of judgment. In other words, so long as the tenants still had a chance of winning in excess of $25,000, they maintained the case was unclassified. Once they lost, they changed their tune and tried to limit the judgment against them to the limited case limit of $25,000. Under the doctrine of judicial estoppel, a party cannot successfully take one factual position in judicial proceedings, then take a contrary factual position in later proceedings; the party is bound to its earlier position, so long as it was not the result of ignorance, fraud or mistake. The Court of Appeal finds that the doctrine applies here to preclude the tenants from taking the position that the case was a limited case.

Where was the requisite “success” the tenants had in asserting that the case was unlimited? Well, it does not take much to meet that threshold. A party’s earlier position is a “success” if “the tribunal adopted the position or accepted it as true[.]” Most times, that means the court’s adoption of the position resulted in some victory or benefit, such as a ruling in that party’s favor. Here, however, all it took to establish success was that the trial court had tried the case as an unlimited case and awarded damages accordingly against the party asserting the position. Some success! But in the judicial estoppel sense, it was a success because the court adopted the position that the case was unlimited.

Judicial estoppel does not apply if the earlier position was taken because of fraud, ignorance, or mistake. Since the tenants represented themselves from the beginning of the case to the entry of judgment in the trial court, one would think they might plead ignorance that their failure to pay the fee kept the case a limited one. Surprisingly, however, they apparently never moved to vacate the judgment on that ground (arguably forfeiting the argument), and the Court of Appeal notes that the tenants “never claimed” the benefit of this exception, even on appeal.

Maybe so, according to Professor Cass Sunstein of Harvard Law School, if this abstract for his article summarizes it accurately:

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

Professor Sunstein’s paper is called In Praise of Law Reviews (And Jargon-Filled, Academic Writing), and is available as a free download at the Social Science Research Network.

For purposes of a new trial motion, evidence is considered “newly discovered” if the party seeking the new trial “could not, with reasonable diligence, have discovered and produced [the evidence] at trial.” (Code Civ. proc., § 657, subd. 4.) Suppose the evidence is available just a few days before trial, but expert analysis can’t be completed until afterward?

That’s easy, you day. It’s trial, for crying out loud! You get your expert on it right away!

Let’s see if your answer is the same under the facts of Shiffer v. CBS Corp., case no. A139388 (1st Dist., Sept. 8, 2015), an asbestos exposure case, in which the new trial motion was filed after the defendant prevailed on its summary judgment motion rather than after a trial. In opposition to the summary judgment motion, the plaintiff’s proffered evidence of his “bystander” exposure to asbestos during the installation of piping insulation at a power plant, but it was considered inadequate.

When plaintiff moved for a new trial, he proffered a new declaration from one of his experts, dated two weeks after the summary judgment hearing, that asserted a new theory of “re-entrainment” exposure (asbestos fibers re-entering the air upon being disturbed). The expert based his analysis on two documents plaintiff had received in discovery about a month prior to the summary judgment hearing and the deposition testimony of one of defendant’s experts, who was deposed about the documents four days before the hearing. The expert had signed his original declaration in opposition to summary judgment between the time plaintiff received the documents and the deposition of defendant’s expert, which plaintiff’s expert apparently did not attend.

That’s a tight timeline, to be sure, if the opinion could only be proffered after the deposition of the defense expert, but all of the information necessary for the revised opinion was in plaintiff’s hands prior to the hearing, and that is enough for the court to find that there is no new evidence here. The court cited a case holding that “depositions conducted on [the] eve of summary judgment do not generate new facts.”

The court states there was “no justification for the delay,” but does not detail any argument by which plaintiff tried to justify it. One presumes that plaintiff argued that the documents received a month before the hearing did not allow for the supplemental opinion without the testimony of the defense expert, given just days before the hearing. But even if the plaintiffs could establish this, it seems like the court would have found the plaintiff had enough lead time, for the court also notes that the transcript of the deposition taken just days before the hearing was only 37 pages long.

Lesson learned: Don’t put off discovery to the last minute, especially when opposing a summary judgment motion. Had these depositions been conducted just a week or two earlier, plaintiff’s expert likely would have been able to formulate his conclusions prior to the hearing. If you do get jammed on discovery, at least get the rough transcripts to your experts. And, finally, why not have your expert attend the deposition of his counterpart? Yes, it will cost a few dollars, but they would have been dollars well spent in this case.

But that’s not always the case. In a decision late last year, Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619, the Court of Appeal held that when the arbitration award that is vacated fails to dispose of all arbitrable issues, the order vacating the partial award is not appealable. The appellant had procured a “clause construction award” that construed the arbitration clause to allow arbitration of class and representative claims but left the merits of those claims to later hearings. Respondent successfully petitioned the trial court to vacate the award, and the appeal followed.

After some interesting discussion about the degree to which the Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs California arbitration procedure, the court finds that appealability of the order is governed by California state law rather then the FAA, and turns next to to the language in the California Arbitration Act. (Code Civ. Proc., § 1280 et seq.) Noting the plain language of Code of Civil Procedure section 1294, subdivision (c), that an aggrieved party may appeal from an “order vacating an award unless a rehearing in arbitration is ordered,” and further noting that no rehearing was ordered, the court notes that the issue presented  is “whether the trial court’s order in this case vacated an arbitration ‘award.’ ”

If that seems like a slam dunk, think again. The CAA provides that an “award” must “include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” Since the order in this case concerned only clause construction and left other issues for future hearings, there was no appeal from the order vacating the “award.”

This closely parallels the requirement that a superior court judgment be “final,” resolving all issues among the parties, in order to be appealable. The court notes that the same policy reasons underscoring this “one final judgment” rule also support requiring a final arbitration award as a condition of appeal from an order vacating it. Without such a limitation, the court reasons, all manner of interim arbitration awards could result in appeal from orders vacating them, defeating arbitration’s intended role as “a quick and efficient form of alternative dispute resolution.” Moreover, says the court, it would be anomalous to allow appeal from orders vacating arbitration awards when no appeal would lie from their counterparts in a civil action.

The obvious question left unanswered by Judge is whether the superior court has jurisdiction to hear a petition to confirm or vacate an interim award in the first place. The court explicitly noted the issue was left hanging, since it had no occasion to decide it, but opined that a superior court’s jurisdiction in such a case is doubtful, and implicitly encouraged the appellant to file a motion fore reconsideration in the trial court upon remand. (232 Cal.App.4th at p. 634, fn. 12.) From what I can tell from the somewhat cryptic online docket for the superior court, it looks like the appellant did just that, and the motion is still under consideration as of this writing. Another trip to the Court of Appeal in the near future seems likely.

That’s because writ review in the Court of Appeal is discretionary. Even before convincing the appellate court the trial court erred, the petitioner must convince the appellate court that its petition should be heard on the merits. One can do this by demonstrating that an appeal after final judgment would afford inadequate relief (Code Civ. Proc., § 1086), that the ruling threatens disclosure of privileged documents (or otherwise rings a bell that cannot be unrung), or that the issue presented is one of first impression on which the trial courts require guidance or which is important to a state industry.

In McMillin Albany LLC v. Superior Court, case no. F069370 (5th Dist., Aug. 27, 2015), the Court of Appeal spells out plainly two reasons it granted review in a construction defect case in which homeowners sued their contractor. The contractor sought a stay of the action until the plaintiffs complied with the prelitigation procedures of the Right to Repair Act (the “Act,” Civ. Code, §§ 895 et seq.), which requires the plaintiffs to “give notice of the claimed defects to the builder and engage in a nonadversarial prelitigation procedure, which affords the builder an opportunity to attempt to repair the defects.” Plaintiffs broke off negotiations regarding a stay, dismissed their statutory cause of action under the Act, and asserted that they were not obligated to comply with the prelitigation procedures of the Act to pursue their remaining common law causes of action. The contractor moved for a stay of proceedings pending compliance with the prelitigation procedures and, when the trial court denied it, petitioned the Court of Appeal for a writ of mandate directing the trial court to vacate its ruling and grant the motion for a stay.

Before holding that the plaintiffs were still required to comply with the Act’s prelitigation procedures despite dismissing their only cause of action asserted under the Act, the court gave a very clear statement of why it granted review on the merits. First, the contractor had “no plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086.) The court points out that if the contractor were forced to wait for a final judgment to challenge the ruling, it would lose the benefits of any stay it was entitled to pending compliance with prelitigation procedures, even if it prevailed on appeal. Second, the issue presented could escape review entirely if not heard in a writ proceeding, despite being “an issue of first impression, which is of interest to builders, home buyers, their attorneys, and others.” Though the court did not mention the fact, two building trade associations submitted Amicus briefs on behalf of the contractor, demonstrating the importance of the issue to a major industry.

Kudos to the court for being so straightforward in explaining why it reviewed the petition on the merits. Too often, writ opinions are ambiguous on the point.

If you just lost your appeal, handled by attorneys at a high-powered law firm, with fees approaching – oh, heck, who knows, but three lawyers billing at a “BigLaw” firm have to run up a pretty hefty bill on a case potentially worth billions of dollars – you might not be happy with language in the introduction of the opinion characterizing your appeal as “utterly without merit” and noting that the court declined imposing sanctions only because the court did “not wish to further delay the long-overdue trial of the merits of [the] action.”

That’s exactly how the court opened its opinion in Hewlett-Packard Co. v. Oracle Corp., case no. H039507 (6th Dist. Aug. 27, 2015). If you guessed that the case is an appeal from the denial of an anti-SLAPP motion (Code Civ. Proc., § 425.16), give yourself a gold star. (Or maybe not — I mentioned anti-SLAPP in the title of this post, after all.)

The opinion is a good read if, like many, you believe that use of the anti-SLAPP statute has gotten out of hand. Indeed, the opinion cites another case’s reference to the “explosion of anti-SLAPP motions.” There’s simply too much in the opinion to try to summarize it here, so I’ll refer you to it for the nitty-gritty, and note just a few highlights.

On what does the Court of Appeal blame this explosion? The availability of immediate appeal when the motion is denied, that’s what:

A major reason for this explosion is that the statute rewards the filer of an unsuccessful anti-SLAPP motion with what one court has called a “free time-out” from further litigation in the trial court.The statute does this by entitling the unsuccessful movant to immediately appeal the denial of such a motion—even one like Oracle’s, which wholly lacks merit, attacks only a small part of the plaintiff’s case, and is heard nearly two years into the lawsuit, and on the day before a scheduled trial. Such an appeal automatically stays all further trial proceedings on causes of action “affected by the motion.” This means that however unsound an anti-SLAPP motion may be, it will typically stop the entire lawsuit dead in its tracks until an appellate court completes its review.

(Footnotes and citations omitted.)

The court argues that the anti-SLAPP “cure” is worse than the disease it was meant to address — the filing of meritless suits designed to chill participation in the public arena. “It is as if a city had decided to cure an illness afflicting a few of its residents by lacing the water supply with a chemical that would indeed cure those sufferers, but would sicken a larger number of previously healthy citizens.”

The opinion closes with the court’s recommendation for amendment of the anti-SLAPP statute:

In this regard, we offer the suggestion that one simple fix might substantially reduce the motivation to abuse the anti-SLAPP procedure: Limit the right to  interlocutory appeal to denials, and allow them only where the motion (1) is filed within the allotted 60 days, and (2) would—if granted—dispose of the entire action. Where either of those conditions is lacking, the motion can rarely if ever achieve any real saving of time or money, and an appeal can only have the opposite effect. Such an amendment would limit invocation of the statute to cases where it may serve its stated purpose and greatly reduce its tactical utility in many if not most of the situations where it is now being most sorely abused.

As a “BigLaw” refugee, my favorite part of the opinion is the court’s lament that sanctions for frivolous appeals are not a very good deterrent against abuse of the anti-SLAPP statute:

But a prompt dismissal, even of a frivolous appeal, is not always feasible. In this case, HP’s motion to dismiss the appeal was supported by four volumes of exhibits, which Oracle answered with another five volumes, with the result that the motion essentially duplicated the appeal itself. Top-drawer legal representation, such as both parties have engaged here, can obscure the core frivolousness of an appeal beneath layers of artful obfuscation which only the most painstaking examination can peel away. And where the stakes are high enough—as they certainly are here, judging from the multi-billion-dollar figures put forward by HP’s experts on damages—the threat or even the certain prospect of sanctions may not alter the economic calculus that makes an anti-SLAPP motion, and ensuing appeal, so attractive.

(Emphasis added.) Sounds like Maybe Oracle got its money’s worth after all.

One last thing. Remember how it looked like Oracle had dodged the bullet of having to pay Hewlett-Packard’s attorney fees, since the Court of Appeal declined to impose sanctions? If I were Oracle, I wouldn’t quite count on it.

To avoid exceeding fair use, I’ve left off the punchline. Here’s a clue: there’s only one judge on the bench, so you know this cartoon depicts the trial court instead of the appellate court.

To see the punchline, click here or click the image. If you have any ideas for your own punchline, why not share them in the comments?

The guide provides the nitty-gritty detailed steps, with illustrations, for creating, editing, and formatting documents for electronic filing, including instructions for safely and securely redacting information, adding bookmarks, and making scanned documents text-searchable, among other things. Unfortunately, instructions on hyperlinking have been deferred to a future edition.

I wouldn’t quite call it Electronic Filing for Dummies, though it will be helpful even for those who don’t know a PDF from a DOC and think Adobe Acrobat is a circus performer. I consider myself pretty tech-savvy on PDF creation and manipulation, and I still learned from it.

I think the guide will be particularly helpful for solos, who don’t always have the staff to handle the tech side of things and must rely on a DYI approach. However, the use of Adobe Acrobat, the PDF application used in the guide, can be cost-prohibitive for solos on a budget (though I believe it is now available through a monthly subscription). Keep in mind that there are alternative, less expensive PDF applications that can probably do everything you need for electronic filing, including PDF Pen for the Mac and Nitro Pro for the PC. (I have used both, but I am not endorsing either of them. Both offer free trials, so you can be sure they do what you need before purchasing.) I use Acrobat now because it came free with my Fujitsu ScanSnap scanner (an awesome piece of hardware).

Don’t forget that e-filing practices are not uniform throughout the state. Always check the particular procedures for your district. But this guide should help you no matter where you practice.

If you obtained a judgment against your former client for over $7.7 million, and had the court of appeal knock it down to around $1.7 million, and the trial court entered judgment in that reduced amount 14 months after the date of the original judgment, you would want interest to run on the judgment — even from the reduced amount — from the date of the original judgment, right? Of course you would. After all, 14 months of interest at a simple 10% on the $1.7 million amount is nearly $200,000. That’s not pocket change. (Well, not for me, anyway.)

But in Chodos v. Borman, case no. B260326 (2d Dist. August 18, 2015), the trial court ordered that interest on the judgment was to run only from the date of entry of the later judgment entered after the original appeal. That’s $200,000 up in smoke. Chodos, the judgment creditor, appealed.

And wins. The Court of Appeal points out that whether interest runs from the date of the original judgment or the date of the later judgment depends on whether its disposition in the original appeal amounted to a reversal of the judgment (in which case interest would run from the later judgment only) or merely a modification of the judgment (in which case the interest would run from the date of the original judgment).

Well, that should be an easy question, right? After all, the court knows what it did in the last appeal. But let’s just say it was not obvious to everyone. The trial court got it wrong.

As in many areas of the law, one must look past the form of the Court of Appeal’s prior opinion and identify its substance. The court had phrased its disposition in the prior appeal as a reversal:

The judgment is reversed and the matter is remanded to the trial court with instructions to enter a new judgment based on that portion of the special verdict form that awarded the attorney a $1.8 million lodestar amount based on the jury’s finding of a reasonable hourly rate of $1,000 and a reasonable number of hours expended on the two divorce cases and the Marvin action of 1,800. As it did in the original judgment, the trial court shall make adjustments to the $1.8 million award by adding the amount of $24,921 and deducting the amount of $107,000.

Despite the use of the word “reversed,” however, the disposition was really a mere modification of the judgment. It directed the trial court to enter a judgment in favor of the original prevailing party in a reduced amount, rather than returning the case to theatrical court for any further hearings on the amount of the judgment.

Thus, appellant is able to “return” to the date of the original judgment via the Court of Appeal Time Machine, and watch the interest accrue from that date.

There is no question as to what standard of review applies in yesterday’s decision in Carlson v. Home Team Pest Defense, Inc., case no. A142219 (1st Dist., August 17, 2015), but the case nonetheless has a lesson in careful application of the standard of review. The appeal was from an order denying a motion to compel arbitration. The court begins its discussion of the standard of review by announcing “There is no uniform standard of review for evaluating an order denying a motion to compel arbitration.”

Well, if there is no uniform standard, how do you decide what standard applies to your case? It’s hard to answer that question any more succinctly than the court, so I’ll let the court do it:

If the court’s order is based on a decision of fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed.

In this case the trial court made factual findings based on at least some material disputed evidence. From those findings, the trial court concluded that Home’s Agreement was both procedurally and substantively unconscionable and should not be enforced. Accordingly, [t]o the extent there are material facts in dispute, we accept the trial court’s resolution of disputed facts when supported by substantial evidence; we presume the court found every fact and drew every permissible inference necessary to support its judgment.

(Citations and internal quotation marks omitted.)

Some easy examples are cited in one of the cases cited in Carlson. In Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, the order denying the motion to compel arbitration was based on the trial court’s conclusion that the arbitration agreement violated a statute. Since this presented a purely legal question of statutory interpretation, review was de novo. Robertson cited Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 as an example where review for substantial evidence was appropriate, because the order in that case was based on the trial court’s factual finding that the parties never reached agreement on arbitration.

Craig suggests that this analysis is apparently required whenever the validity of an arbitration clause is at issue on appeal, not just on appeals from orders denying a motion to compel arbitration. Craig was an appeal from a final judgment confirming an arbitration award after a motion to compel arbitration had been granted. Yet, Robertson cited to it as an example of how to apply the standard of review.

That all depends on what the defendant did with the group and what the group did. In In re Kevin F. (People v. Kevin F.), case no. A140445 (1st Dist., August 10, 2015), the court found the evidence supported a robbery conviction despite the absence of any direct evidence that the defendant himself assaulted the victim or took any of his property.

The defendant (referred to as “Minor” in the opinion) was with a group of three or four men that struck up a conversation with the victim on a commuter train and then, while walking with the victim afterwards, jumped him and stole several items after they entered a dark alley. The victim could identify which in the group had grabbed and held him while the others punched, but he could not identify who landed which punches and could not even say with certainty that all of them participated in the assault. He could say only that he believed all of them participated because he was “being punched in different directions.” The victim testified that he heard all of the men speaking but he could not tell who said what. The victim pursued the group as they ran away. When he caught up to them, the man who had held the victim took a threatening posture and told the victim, “I have  a knife,” after which all of the group ran off.  After the assault, the police drove the victim around the neighborhood to see if he recognized anyone. He identified Minor as part of the group that robbed him, but the police found no weapons or any of the victim’s property on Minor.

Now, you might be saying to yourself, how could Minor’s conviction be upheld if nobody testified that he actually took part in the assault or that he took any of the victim’s property? The answer starts with the standard of review as explained by criminal lawyer London Ontario based Phillip Michaels:

“Our review of [Minor’s] substantial evidence claim is governed by the same standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.) Before the judgment of the trial court can be set aside for insufficiency of the evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) An appellate court may not reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The “substantial evidence” threshold doesn’t seem real hard to meet, does it? As you might expect, appeals challenging the sufficiency of the evidence to support the conviction are notoriously hard to win.

Here, the court finds there is substantial evidence supporting a conviction, because there is evidence that: Minor was in the group that the victim met on the train; Minor introduced himself to the victim; Minor was still with the group when it got off the train, and waited outside a liquor store while the victim purchased cigarettes; Minor was with the group when it entered the alley with the victim; the victim was punched from several directions and thus “believed” everyone in the group punched him; no one in the group told the others to stop; Minor fled with the group after the robbery. Thus, “[The victim’s] testimony that Minor was with the group before, during and after the attack, along with [his] testimony about the attack itself (i.e., the young men punched him from different directions, and no one left or tried to stop the others), allows a reasonable inference that Minor participated in the attack.”

Alternatively, the court in Surrey, Ontario finds that the evidence is sufficient to establish that Minor aided and abetted  the robbery. Even if the finder of fact did not believe that Minor actually struck the victim or took any of his property, the court finds that it is reasonable to believe that Minor acted as a lookout to facilitate the robbery because he was with the group the entire time and did not state any objection to the assault and robbery.

Now, it might be that Minor did not assault the victim or take any of his property. He might have wanted no part of the assault and robbery, perhaps even been too scared to move or say anything during the crime, and so frightened of being associated with it (or of having to testify against his friends) that he ran off with the group rather than wait around for the police. But such alternate views do not come into play in substantial evidence review. The question is not whether a factfinder could go wither way based on the evidence. The question is whether substantial evidence supports the conviction, even if a reasonable factfinder could go either way.

In short, when any crime is committed in a group — at least, when committed in a small group of 3 to 6 people — it probably won’t matter that there is no direct evidence that a particular defendant did any specific act. So long as there is evidence that the defendant was part of the group and remained with the group before, during and after the crime, and did not object during the crime, the court is likely to find substantial evidence to support the conviction.

As a result, parties are appealing decisions without the reporter’s transcript that they would have been able to order under the old system. That can spell trouble for an appeal.

Last Friday, the LASC announced that it is hiring court reporters. Actually, I can’t tell from the announcement whether they are looking for multiple reporters or just trying to fill a single vacant position. Here’s hoping that it’s the former, and that this is a sign of things to come.

UPDATE (4/13/16): According to the 2015 edition of the California Litigation Review*, which hit my mailbox this week. published by the Litigation Section of the California State Bar, the court is “hiring court reporters again,” suggesting the court is restaffing in preparation for providing reporters again. Let’s hope.

*Published by the Litigation Section of the California State Bar.

Specifically, the bill adds the following language to the section 437c:

(q) In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

Trial judges served with dozens of pages of objections are now explicitly excused from ruling on those that they deem immaterial. I think some judges have probably been doing this already with orders such as “Plaintiff’s objections 1-10 granted; all others denied,” especially in light of the holding in Reid, but it is good to see the burden explicitly lifted. Consider this excerpt from the first report on the bill from the Senate Judiciary Committee:

The report cites published opinions that illustrate the large number of objections made in summary judgment papers and the huge volume of motion papers in overall. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [“We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objection, without focusing on those that are critical [footnote omitted].”]) The report specifically cites, as an example, the case of Nazir v. United Airlines, Inc. (2009) wherein “the moving papers in support of a summary judgment totaled 1,056 pages, plaintiff’s opposition was nearly three times as long and included 47 objections to evidence, and the defendant’s reply included 764 objections to evidence.” [Citation.]

If you are wondering about the graphic accompanying this post, here’s the explanation. It is in honor of the drafters of SB 470, for eliminating from section 437c three incorrect uses of the word “which.” Misuse of “that” and “which” (most commonly, the improper use of “which” in place of “that”) is a pet peeve of mine — not just in section 437c, but everywhere, including all other California codes, briefs, news media, correspondence and judicial decisions. Yet, I am sure I am guilty of it on occasion. Every once in a while, whether “which” or “that” is the correct word can be a close call, but SB 470 corrected some obvious mistakes. You can see the redline of the amended section 437c here.

Upgrading my WordPress installation has significant “back end” benefits for me (most notably, better backup capabilities and comment spam prevention), but also has several benefits for readers. The broken commenting function has been restored, so readers can once again comment on my posts. Take advantage of it! (Look for the “Leave a comment” link to the right of the post categories underneath the social media icons that are under each post.) The social media icons are also new, and make it very easy for readers to share posts via LinkedIn, Twitter, Facebook, etc. Printing functionality is also greatly improved. Clicking the printer icon in the icon row below a post will create a printer-friendly version of the post.

Readers who currently subscribe via RSS or email should watch for an announcement later this month about changes to the subscription service. I will try to make that as seamless as possible.

The big takeaway: the library is going to resemble a super-advanced Kindle and its patrons will look like they are parts of the Borg Collective:

It will include technologies that we know about and technologies that are beyond our imaginations. Things like retinal and holographic displays are predicted to be in use in the next 5 to 10 years. Lawyers, law professors, and other law library patrons will be browsing touchable, holographic shelves to select volumes instead of walking through the stacks of physical libraries. Intelligent,robotic, personal assistants will be providing clerical and other kinds of support to library researchers. Law library patrons won’t carry around smartphones or tablets. Instead they will work on skin-embedded screens with fingernail displays, brain mapping, brain uploading, and DNA storage.

I encourage you to click the article title above to read Professor Wheeler’s view about what this technology means for how we must adapt our teaching, practicing, and researching of the law. Some, he notes, will have to overcome their thinking that electronic resources are less “scholarly” than print resources.

I will admit to some trepidation over technology, including the use of electronic briefs in appeals and the use of laptops in classrooms, but I’m no Luddite. I have concerns about how technology, or at least the misuse of technology, might undermine legal practice and scholarship. Still, I must admit that a general resistance to change and plain old nostalgia influence my thinking. Will today’s younger generation, seemingly so eager to embrace change, have the same nostalgia for their own “good old days” technology? Even the lawyers trained on the technology Professor Wheeler describes might lament the more advanced, “newfangled” technology that displaces the technology they used at the beginnings of their careers.

By the way, I stole that Kindle joke from an exceptionally funny Portlandia skit. Since it’s Friday afternoon, and we probably all deserve a laugh, here it is:

Have a nice weekend, everyone.

Good luck with that.

It’s not that cases cannot settle on appeal. It’s that most of the time, the mere act of appealing or filing a writ petition does not generate much leverage because the odds are inherently against the success of the appeal. Consider that the reversal rate on appeals generally hovers between 20% and 25%. Would you be intimidated by those odds?

That said, cases do settle on appeal, and some factors in a given case can do a great deal to encourage both sides to settle. (I’ll cover some of those factors in a future post.) Recognizing that some parties, and especially respondents, are less likely to settle on appeal, some courts with mediation programs have required the parties to make some showing that the case has a chance of settling before the court will assign a mediator. Thus, even if the parties are willing to talk, they may not be able to take advantage of the free mediation services offered through the court, and will instead have to engage a private mediator.

For a good overview of the differences between trial-level mediation and appellate mediation, check out this older blog post from last year from mediator David Karp.  David’s blog is one of the Member Blogs of the Month at the TEN Networks Blog, and I’ve gotten to know David a little through that group. His post is spot-on, and offers some insight he’s gained from volunteering his mediation services to the Court of Appeal.

That may change. Yesterday, the Supreme Court posted for comment some proposed changes to this scheme.The upshot is that there would be a 180-degree change in the rule, so that published cases accepted for review by the Supreme Court would remain published, with a notation that the case has been accepted for review.

Where things get interesting is in the related issue of the precedential effect of such cases. If cases on review remain published, should they have the same precedential value they had prior to being accepted for review? That’s one proposal (but it also has a provision that the Supreme Court could explicitly limit the precedential value of the decision. The second proposal is that such decisions would not be binding and could be cited only for persuasive value.

The proposal generated quite a bit of buzz on the Los Angeles County Bar Association Appellate Courts Section listerv yesterday. The “if it ain’t broke, don’t fix it” caucus seemed to win the day.

Of course, not everyone agrees that the current system “ain’t broke.” There is an organization dedicated to advocacy for publication of all Court of Appeal opinions. Several years ago, a law firm even sued the Supreme Court over its publication rules.

The issue of the precedential value of cases accepted for review is of concern beyond the appellate community, of course. Published decisions of the Court of Appeal, regardless of the district in which the decision was rendered, are binding on trial courts statewide. Where there are conflicting appellate court decisions, a trial court is free to choose which it will apply.

Since conflicts among the Court of Appeal often generate review by the Supreme Court, trial courts are forced under the current rules not to rely on the more recent decision and treat the earlier one as binding. Someone on the listserv pointed out yesterday that this is unfair, and I tend to agree. After all, where review is granted because of a conflict between two cases, the Supreme Court is likely to disapprove one or the other of them rather than reconcile them. In other words, since the fate of both cases lies in the balance, why should one have greater precedential value than the other?

If you wish to offer the Supreme Court your comments on the proposal, you must do so by September 25, 2015.

Update: Horrendously embarrassing typo in headline fixed!

I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court cannot reverse the ruling of another judge on the same superior court, at least so long as the original judge is still available, i.e., still on that court. In Marriage of Oliverez, case no. H040955 (6th Dist., July 27, 2015), the court confirms that this rule applies even when the case has been transferred to a new judge for trial.

The original judge in Oliverez had denied husband’s motion pursuant to Code of Civil Procedure section 664.6 to enforce a settlement. The case was then transferred (for reasons the court was unable to discern from the record) to another judge, before whom it was tried. In his tentative ruling, the second judge stated his intent to reconsider the first judge’s ruling on the settlement enforcement motion and later gave formal notice of its intent and afforded the parties an opportunity to brief the issue. The second judge then issued a statement of decision and final judgment, in which he vacated the prior order denying the motion and entered a judgment of dissolution that incorporated the terms of the settlement. Wife appealed.

The Court of Appeal covers the “narrow” exceptions to the general rule that one trial court judge may not reconsider and overrule an interim ruling of another trial judge:

“[W]here the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion.” Another exception is when the facts have changed or when the judge has considered further evidence and law. Additionally, a second judge may reverse a prior ruling of another judge if the record shows that it was based on inadvertence, mistake, or fraud. Mere disagreement, as here, with the prior trial judge’s ruling, however, is not enough to overturn that ruling.

Since the first trial judge in Oliveras was still on the bench, and it was apparent from the second judge’s ruling that he merely disagreed with the first judge on the original evidence and law, the judgment vacating the prior ruling did not fall within the exceptions.

Perhaps the husband saw the writing on the wall. He did not file a respondent’s brief in the Court of Appeal.

So, do you want your superior court judge to reconsider an earlier ruling based on the same facts and law? Knock yourself out with the same judge, but don’t try to turn another superior court judge into a one-judge appellate court.

Not so fast, folks. My friend Claudia Ribet has a column in today’s Daily Journal (link requires subscription) discussing the subtleties in the decision and concurring opinion, concluding that it may not even reduce litigation over the “separate and apart” issue very much.

I’ll leave that debate to the family law attorneys for now. If you are looking for a family law lawyer visit ramsdenlaw.com.au/family-law/.

I, of course, am interested in what this decision teaches us about approaching appeals. The obvious lesson is this: an appellant needs to carefully consider the standard of review and, if at all possible, frame an issue on appeal subject to de novo review, in which the appellate court reviews the ruling without any deference to the trial court’s ruling or rationale, as if the case was being decided anew.

As the Supreme Court notes at the outset of its analysis, the date of separation “is normally a factual issue to be reviewed for substantial evidence.” However, the appellant raises an issue of statutory interpretation of Family Code section 771, subdivision (a), thus invoking the more favorable de novo standard of review, and prevails. Contact a divorce attorney in Scottsdale AZ  if you want to get compassionate, attentive, and personalized client service throughout each case.

In this case, it probably was not too hard for appellant to realize how to latch onto an issue subject to de novo review, since the trial court’s decision went against a court of appeal opinion establishing separate residences a “threshold requirement” of living “separate and apart” for purposes of the statute. Voilà! De novo review of statutory interpretation.

It’s not always that easy. For more difficult cases, see this post and this one.

The TEN Networks is the umbrella organization for two business networking groups: The Esquire Network, a fantastic attorney group with a unique meeting structure, of which I am an enthusiastic member; and The Executive Network, which is open to other professionals. I encourage you to check them out.

Finally, how fortuitous (divine?) that TEN’s new blog would honor this one around the time I made my shameless plea for nominations for 2015 Legal Blog of the Year!

Those words after the colon come straight from the headline at Bloomberg News, where you can treat yourself to a 40-minute interview with federal district judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, conducted at the 2015 Big Law Business Summit.

The Bloomberg headline may exaggerate Judge Sheindlin’s position somewhat. Her comments on technology are directed mostly to the technology involved in discovery of electronically stored information (“ESI”).

Given that she is referring to ESI discovery, her view on appellate judges’ knowledge is neither shocking nor insulting. As in California sate courts, most discovery rulings are not immediately appealable. They may be reviewed on appeal from a final judgment (which I suspect is a somewhat are occurrence) or by mandamus, which is discretionary. Thus, federal appellate courts are unlikely to see many discovery cases at all, let alone cases involving disputes over ESI discovery. If federal appellate judges are unfamiliar with the technology, it is probably because it rarely comes into play before them.

Expert witness service The Expert Institute is taking nominations for entries in its 2015 Best Legal Blog Contest.

Do I need to say anything more?

OK, here comes the shameless part.

Whether you are a years-long fanatical subscriber to this blog whose first action every morning upon waking is to grab your iPhone off your nightstand and check your RSS reader to see if there are any updates to this blog, or someone who just came across this blog yesterday, give some thought to nominating this blog. If you do, you should nominate it in the “niche” category. (If Best Blog By A Guy Who Does The Best He Can With The Time He Has Blogging About Things Like Appellate Procedure, Legal Research, Legal Writing, Technology in the Law, Significant Substantive Developments In The Law, And Court News Off-And-On Since 2007 is not a niche, I don’t know what is.)

To reach the contest nomination page, click the image above or the second link in this post. Or click here, here, here, or here. Or, if you like, here.

I’ll even let you click there to nominate other blogs. Just this once.

Update (8/19/15): Time is running out. I got an email this morning advising that nominations must be in no later than than the “end of the day” on Friday, August 21, 2015.

One such example is last week’s decision in McKenzie v. Ford Motor Co., case no. G049722 (4th Dist., July 10, 2015). Plaintiff rejected one settlement offer in this “lemon law” case, but settled a few months later. The settlement was entered as a judgment. It required Ford to buy back the “lemon” automobile and allowed the plaintiff the option of accepting payment of $15,000 for attorney fees or instead roll the dice with a fee motion. Plaintiff moved for nearly $48,000 in attorney fees, and appealed when the trial court awarded only $28,350.

The trial court explained its award by noting that it deemed all of the fees incurred following the plaintiff’s rejection of an initial settlement offer to be unreasonable, because the only difference in the initial offer and the settlement entered into was the provision allowing him to file an attorney fee motion. To the trial court, this indicated that the 42 hours billed to the case following the plaintiff’s rejection of the earlier settlement offer “amounted to ‘plaintiffs’ counsel exaggerating the amount of their fees to increase their prized fees.'” (Gee, attorneys concerned about getting paid. Who’d of thunk it?)

The Court of Appeal reverses, finding fault with the trial court’s reason for limiting the fee award. Its analysis is helpful to anyone facing the daunting “abuse of discretion” standard of review.

First, the Court of Appeal notes that the trial court erred as a matter of law in characterizing the differences between the initial settlement offer and the eventual settlement, because (1) the trial court was wrong about the first offer not including an option for plaintiff to accept $15,000 or make a fee motion; the settlement and prior offer were actually identical in this regard; and (2) there were many other material differences not noted by the trial court. “The trial court’s erroneous comparison of Ford’s initial compromise offer with the offer McKenzie later accepted fatally undermines its conclusion that the entire amount of hours billed by McKenzie’s counsel in the wake of that initial offer was unjustified.”

Second, the Court of Appeal demonstrates the limits of its duty to indulge all reasonable inferences in favor of the ruling:

Ford counters by first emphasizing our obligation to indulge all inferences in favor of the trial court’s ruling, and pointing out the trial court is not required to explain in detail the basis of its fee decision. Ford urges us to construe the court’s reduction of McKenzie’s fee as reflecting an assessment of the usual lodestar factors considered in determining fee amounts — e.g., the complexity of the case, the expertise of McKenzie’s counsel, and the early stage at which the case was settled — and a resulting determination that $28,350.08 was simply an overall “reasonable” fee for the work performed.
However, while we could certainly do that in the absence of any specific analysis provided by the trial court, we cannot ignore the court’s reasoning when detailed in the order. In this case, the court was quite explicit in explaining the basis for reducing McKenzie’s fees — rather than imposing a general reduction on the fees requested from the outset, on the basis the rates charged by McKenzie’s counsel were too high or the overall time claimed was unreasonable given the complexity of the case, the court characterized its reduction as “based on redaction of fees for duplicated and unnecessary services and billing performed after defendant’s service of its CCP Section 998 offer.” The court awarded McKenzie 100 percent of the fees he requested for the period before Ford’s initial offer, but found the entirety of “the subsequent billing was unreasonable” and excised that specific portion of the fees from McKenzie’s award. When the court states its reasons explicitly, we cannot infer its exercise of discretion rested on a wholly different basis.

(Italics did not appear in the trial court analysis and were added by the Court of Appeal.)

In short, what the court actually did is what matters for the abuse of discretion standard. As the court points out, it may be impossible to know what the court actually did. Had the record in McKenzie not made clear the basis of the court’s exercise of discretion, plaintiff probably would have been sunk on appeal, unless there was no rational basis for the amount of the award.

Having the trial court’s analysis in the record made all the difference in this case. Keep that in mind when your next fee motion approaches.

One recent attempt — but ultimately an unsuccessful one — was in Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, in which the appellant (Sharp) claimed that the trial court lacked jurisdiction to grant a new trial. That’s a somewhat surprising contention, seeing as how the respondent timely filed her notice of intention to move for a new trial (Code Civ. Proc., § 659, subd. (a)) and the court granted the motion within the 60-day jurisdictional deadline (Code Civ. Proc., § 660) on a ground stated in that notice.

With those two conditions satisfied, where did the appellant look for a lack of jurisdiction? At the respondent’s interim filing of her supporting memorandum and affidavits, that’s where. Unlike most motions, the initial filing in a motion for new trial is not a notice of motion and a supporting memorandum (plus affidavits, if any). Instead, all the moving party has to file is a notice of intention to move for a new trial, specifying the statutory grounds on which the motion will be made and whether the motion will be made upon affidavits, or the minutes of the court, or both. (Code Civ. Proc., § 659, subd. (a).) The supporting memorandum and affidavits are not due until later, and it was the untimeliness of that filing that the appellant attacked in Kabran.

Unfortunately, appellant Sharp came armed mostly with authorities holding that an untimely filing of the notice of intention precludes jurisdiction to grant a new trial. Sharp claimed that two of the cases supported applying the same rule to the deadline for filing the motion, memorandum, and affidavits, but the Court of Appeal rejects that characterization of the cases. It finds that the first “did not involve any issue concerning the filing of the supporting motion and affidavits.” (Emphasis added.) It concludes that the other case, Erikson v. Weiner (1996) 48 Cal.App.4th 1663, is on point but but runs counter to a long string of cases by which “[i]t has long been held that the time limits for filing affidavits and counteraffidavits for new trial motions, though ‘strict’ [citations], are not jurisdictional.” (Emphasis in original.) The court offers a more detailed criticism of Erikson, but I’ll leave that to your reading of Kabran.

Here’s how the Court of Appeal summed it up:

Generally, what happened is this: Defendant’s attorney Karen Bilotti would ask a question in clear violation of the trial court’s in limine orders [i.e., orders precluding certain evidence at trial]. The question would usually have the effect of gratuitously besmirching the character of plaintiff Donn Martinez. An objection from Martinez’s counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.

***

While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed Bilotti to emphasize irrelevant and inflammatory points concerning the plaintiff’s character so often that he effectively gave CalTrans an unfair advantage. Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal.

The court even gives a tally of the misconduct: eight improper statements during opening argument, ten references during cross reference of plaintiff to the off-limits subject of his prior termination from a school district, another 13 forbidden references to the termination — 12 of them after sustained objections! — during cross-examination of plaintiff’s wife, and five improper statements during closing arguments. Counsel also sprinkled Nazi references liberally because the plaintiff’s motorcycle bore a logo for Set Free ministries — a religious organization that ordained plaintiff after a year of bible study — that included a Nazi-style helmet.

The court also summarizes the misconduct by type and, noting that appellant claimed there was even more misconduct, writes: “But we see no reason to go further. Suffice it to say we found enough to establish attorney misconduct at least five pages ago.”

Of course, the misconduct alone is not enough for reversal. Before the court can reverse, it must find that the misconduct was prejudicial. That’s not hard for the court to do in this case. See the case for more dateline the nature of the misconduct and why it was prejudicial, and the trial court abused its discretion in denying a motion for new trial.

The court’s characterization of the trial judge as “patient” has to be the understatement of the year. The trial judge denied a mid-trial motion for mistrial, and even after the attorney continued in her misconduct after that, the trial judge refused to grant a new trial motion after the defense verdict.

The reversal on appeal is not the only adverse consequence of the misconduct. The Court of Appeal also orders the clerk to send a copy of the opinion to the State Bar, “notifying it the reversal of the judgment is based solely on attorney misconduct.”

Reference: Alex Spiro.

But a summary denial is not final in every context. This was recently pointed out in Ellis v. Ellis (2015) 235 Cal.App.4th 837, in which the respondent moved to dismiss the appeal as untimely. The court summarily denied the motion. After the appeal was fully briefed, however, the court advised the parties to be prepared to address the timeliness of the appeal at oral argument, heard argument, and ultimately granted the motion. While I am sure the respondent would have preferred such a ruling prior to briefing the appeal on the merits, I doubt he minded too much that he was put through that time and expense. A win is a win.

At the point in its opinion that it mentioned its summary denial, the court added this footnote: “Of course, a summary denial of a motion to dismiss an appeal does not ‘preclude later full consideration of the issue, accompanied by a written opinion, following review of the entire record and the opportunity for oral argument.’ [Citations.]”

Of course? Maybe people steeped in appellate procedure are familiar with this principle, but I think it would come as a surprise to most people. Now you know, and now you, too, can say of course.

A settlement reached by the parties required defendant to issue plaintiff shares in the defendant corporation, and to issue plaintiff additional shares in the event the value of the shares decreased. The court approved the stipulation and retained jurisdiction to enforce its terms. About six months later, plaintiff applied ex parte for an order compelling the defendant to transfer additional shares to plaintiff and enjoining defendant from issuing shares to anyone else until it until it did so. The court ordered defendant to issue the additional shares within 24 hours and not to issue shares to anyone else until it complied.

In the defendant’s appeal, plaintiff moved to dismiss under the disentitlement doctrine, providing SEC filings showing that defendant had transferred more than 8 million shares to third parties in violation of the injunction. Defendant filed a “paltry” 1-1/2 page opposition to the motion citing “no authority whatsoever,” contending that the order was in excess of the trial court’s authority in that (1) the trial court could not enjoin issuance of shares to third parties because there was no such prohibition in the settlement, and (2) the court could not compel the issuance of shares to plaintiff on an ex parte basis.

The Court of Appeal isn’t buying it. The court acknowledges that “[a] person may refuse to comply with a court and raise as a defense to the imposition of sanctions that the order was beyond the jurisdiction of the court and therefore invalid,” but notes also that a person “may not assert as a defense that the order merely was erroneous.” (Internal quotations and citations omitted.) It finds that the defendant’s challenge falls into the latter category.

First, the court notes that a trial court has continuing power to enforce a stipulated  judgment entered in settlement of a case (Code Civ. Proc., § 664.6) and the power to “compel obedience to its judgments, orders, and process” in proceedings before it (Code Civ. Proc. § 128, subd. (a)(4)). Combined, those powers gave the trial court “authority to fashion orders to enforce compliance with a stipulated judgment.” Though the court does not state so explicitly, its point seems to be that the prohibitory injunction against issuance of shares to third parties was was a permissible coercive measure to enforce the settlement regardless of whether the stipulated judgment addressed such transfers.

The defendant’s challenge to the ex parte nature of the order is dispatched more easily. The settlement itself authorized the court to enforce the settlement on an ex parte basis.

Here, the parties requested that the court retain jurisdiction to enforce the settlement. The stipulation also provided that it could be enforced on an ex parte basis. There is no question that the court had jurisdiction over the parties and the subject matter, and that the parties expressly authorized the court to enforce the settlement on an ex parte basis. We find no procedural irregularity or other defect that would support a credible claim that the order was either void or voidable. Defendant’s appeal merely challenges the order as erroneous.

The lesson here, of course, is that if you are unable or unwilling to comply with a trial court order that remains in force pending an appeal from it, you had better be sure that you have a serious jurisdictional challenge to make against it. Do not convince yourself that your challenge on the merits is a jurisdictional one just because you do not want to obey the order, because the Court of Appeal will look beyond the label on your argument. Absent a solid jurisdictional challenge, disobedience of the trial court order can put your entire appeal at risk.

UPDATE: For those interested in reading more about the disentitlement doctrine, see the article referenced at Southern California Appellate News.

Bermudez is an automobile accident case, in which defendant Ciolek was the driver of a car that collided with a second car driven by defendant Heacox, which in turn struck plaintiff, who was on the sidewalk. Though the jury found both drivers negligent, it found only Ciolek liable for plaintiff’s damages.

Ciolek contended on appeal that these findings were inconsistent, i.e., that Heacox’s neglignce must have been a substantial factor in causing plaintiff’s injuries because, absent such negligence, the second vehicle’s ricochet would have been different. Ciolek contended, in the words of the court, that the jury’s findings were irreconcilable “because they ignore the laws of physics by which our universe is governed.”

In support, Ciolek requested that the court take judicial notice of the law of conservation of momentum. Here is an apparent excerpt from Ciolek’s brief, which attached equations and examples:

The law of conservation of momentum provides that in a collision, momentum is conserved; the combined momentum of two colliding objects going into the collision must equal the momentum coming out of it. The momentum of an object equals its mass multiplied by its velocity; velocity is a vector, which in turn is composed of both speed and direction.

Here is a simple demonstration of the principle:

Instinctively, how this principle would have affected the collision sounds like expert witness territory to me. Sure enough, the lack of expert testimony on the issue at trial plays a part in the court’s decision not to take judicial notice, but the basis for its ruling is far more fundamental and needs to be kept in mind by every appellant . . . and you don’t need to know a lick of physics to understand it:

Ciolek’s argument is certainly interesting. Of course, it is not the argument she made at trial. At trial, she claimed Heacox was the sole cause of the collision (and therefore the harm to Bermudez). Ciolek did not ask the trial court to take judicial notice of the law of conservation of momentum and to instruct the jury on its meaning. Ciolek did not ask her accident reconstruction expert to evaluate and opine on the effect of Heacox’s speed on the ricochet. [Footnote.] Faced with a result she did not expect (though it was consistent with the result requested by Bermudez’s counsel and Heacox’s counsel in their closing arguments), Ciolek now suggests the jury reached an illogical verdict based on the supposed common sense of the law of conservation of momentum.

We reject Ciolek’s request to essentially retry the case on appeal and we deny her request for judicial notice as irrelevant to the issues before us. “It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant.” (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) It would be fundamentally unfair to both Heacox and Bermudez to grant a retrial to Ciolek because she wants the chance to try a different theory the second time around.

In short, shifting gears at the appellate level is not allowed. It’s surprising that Ciolek would make an argument like this, given that the appellate court did not even deem this a close call.

A special welcome to anyone arriving here after reading my article in the June issue of Citations, the Ventura County Bar Association’s monthly publication. Maybe “iPad Judges” are Not Such a Good Idea is my adaptation of my post last month of the same name, citing studies showing that readers tend to comprehend and retain material better when reading from paper than from a screen. (The article is also scheduled to run this month in the Appellate Law Journal from Counsel Press.)

I’ve since posted some comments on a related issue: whether laptops help or hurt students in the classroom.

It is about time I get back to blogging about the law. Don’t be a stranger!

(By the way, if you still have your paper copy of Citations, make sure you check out the back cover. [No, it’s not about me.])

The Millennial Generation is at ease with modern technology and with juggling multiple tasks. Many of them, however, come to law school less prepared in other ways for the rigor of legal education. Their learning styles, visual orientation, short attention spans, and previous learning experiences make them less suited for the focused and reflective thinking that are critical to learning legal analysis and linear reasoning. Research strongly suggests that some learning styles are more compatible than others with the discipline of analytical thinking and the demands of legal education. Students with learning styles less compatible with law school expectations face significant challenges even under the best of circumstances. This article suggests that the use of laptops in the classroom may exacerbate the challenges these students already face.

The article addresses the laptop issue in the context of learning styles and the dynamics of the learning process. It briefly discusses the history of the laptop issue, traces a significant body of research over the last several decades documenting the distracting effect of laptops even when used in connection with classroom activities, and presents the results of the author’s experimentation with a no-laptop policy in his first-year Property course. The author does not suggest removing laptops from the law school experience entirely, but recommends that professors of first-year doctrinal courses consider the adoption of a no-laptop policy for their classes.

When I saw that abstract in my Social Science Research Network email update, I was reminded of a Washington Post article I read more than five years ago: “Wide Web of diversions gets laptops evicted from lecture halls.” The article noted that some professors (including law school professors) had banned laptops from their classrooms, mostly because of the diversions that WiFi access created:

Wireless Internet connections tempt students away from note-typing to e-mail, blogs, YouTube videos, sports scores, even online gaming — all the diversions of a home computer beamed into the classroom to compete with the professor for the student’s attention (source: simplyswitch.com/broadband/).

“This is like putting on every student’s desk, when you walk into class, five different magazines, several television shows, some shopping opportunities and a phone, and saying, ‘Look, if your mind wanders, feel free to pick any of these up and go with it,’ ” [Georgetown law professor David] Cole said.

As readers of my “iPad judges” post may suspect, though, I think the problem goes far beyond the diversions presented by a WiFi-enabled laptop. As the abstract to Professor DeGroff’s article points out, the technology generation may be arriving at law school with shorter attention spans, suggesting that the technology created problems long before the students ever arrived on campus. But where I think the WaPo article really hits the nail on the head is with this observation (my emphasis):

Cole has banned laptops from his classes, compelling students to take notes the way their parents did: on paper.

***

Cole surveyed one of his Georgetown classes anonymously after six weeks of laptop-free lectures. Four-fifths said they were more engaged in class discussion. Ninety-five percent admitted that they had used their laptops for “purposes other than taking notes.”

Even when used as glorified typewriters, laptops can turn students into witless stenographers, typing a lecture verbatim without listening or understanding.

I did quite well in law school, and I remember going minutes at a time in classes without writing anything down, because I realized the value of the class was in the give-and-take of the “Socratic Method” dialog that I so relished (yet so many of my classmates loathed and feared).* After some meaningful dialog, I was able to distill key points and limit my notes accordingly.

In other words, I actually thought during class. I hope students are still doing that.

_______________________________

*Not everyone is enamored of the Socratic Method.

One-week old DigitalDemocracy.org does that:

Try it out! I searched for “vape” to find testimony and argument regarding proposed regulation of e-cigarettes, and turned up testimony from representatives of the Smoke-Free Alternative Trade Association and Mount Sinai School of Medicine . . . plus argument from a bunch of dang politicians.

Speaking of dang politicians, the project was spearhead by partners from opposite sides of the political aisle: Democrat Lieutenant Governor Gavin Newsom and Republican former state Senator Sam Blakeslee.

Don’t get too excited that this will revolutionize your research of legislative history, though. At least, not yet. As of now, the site is only a one-year beta covering only the 2015 legislative year.

Besides, the ability to search legislative history doesn’t seem to be the point. The purpose seems to be to make government more transparent and to give ordinary citizens a window into the legislative process that will allow them to act on issues currently under consideration. (Recent coverage in my local paper includes this article and this column from the paper’s Sacramento correspondent, which give one a feel for the purpose of the project.)

However, if DigitalDemocracy.org carries on past its one-year beta period and maintains its full catalog, I think it will become a valuable tool for legislative history research. It does, after all, also catalog reports, analyses, and drafts of bills (example here) that are available from official sites like Official California Legislative Information or California Legislative Information. The hearing videos and transcripts make those official sites seem awfully dry.

The issue was brought to mind today by a lively exchange on the Los Angeles County Bar Association listserv for the Appellate Courts Section. The discussion is about the technical requirements for electronic filing or submission of briefs, petitions, exhibits, etc. in the Court of Appeal. There is predictable grumbling over the inconsistency in the rules from district to another, but mostly the discussion is over the page numbering requirements, which are designed to make sure that the page number of a PDF file corresponds to the page number of the physical document. Here’s how appellate attorney Robin Meadow of Greines, Martin, Stein & Richland, LLP, helpfully and succinctly explained it (my emphasis):

To elaborate a little:  This is all about reading briefs on-screen. PDF programs, whether on computer or tablet, allow you to specify a page to go to, but as Ed notes this is always the page of the PDF.  Under the old system, page 20 of a brief is something like page 30 of the PDF, because the PDF numbering includes the cover page, certificate of interested parties, TOC and TOA.  So, you have to guess at the page number to put in, or count the initial pages and then calculate the PDF page number every time.  Under the new system, there is one and only one page 20, whether you’re looking at a paper copy or the PDF.

Aside from court-imposed rules, there have been several articles about how to best prepare documents to be read by appellate justices on an iPad or other electronic device. A few months ago, Appellate Law Journal from Counsel Press (that is just a reference, not an endorsement) led me to another article on how best to format briefs for reading on tablets: Maximizing Your Appellate Brief for the iPad. That post references the Columbia Business Law Review article that I wrote about in January of last year. I will be the first to admit there are some advantages to having a text-searchable brief, but does that come at a cost?

Consider this summary of a Norwegian study at Science Nordic:

Neo-Luddites rejoice: numerous studies show that when you read a text on paper your understanding is deeper and longer lasting than if you read that same text on a computer.

Of course, if you read the text on a screen you can probably recount what you read. But you cannot as readily make use of the content in other contexts. You haven’t comprehended it as deeply and assimilated it as substantially.

Digital information isn’t just a fleeting phenomenon on your computer screen. It disappears more quickly from your memory, too. Screens are best for superficial and speedy reading.

I have felt this intuitively for some time, so I avoid doing extended reading on screen when comprehension and retention are necessary. For perusing blogs or short letters, my iPad is fine. It also suffices for novels and other lengthy leisure reading. But if I need to read a brief or a case or something else that makes comprehension and retention important, I print it out and read it off the paper, marking it up with a pen as I go. Call me a tree-killer, but I’m not about to give up this practice. I’ve tried reading PDFs on my screen and annotating them with PDF editing software as I go along, but it’s just not the same for me. I’ll stick with reading from paper; the  electronic file is always available if I need to search for something in the original text (though it’s no help in searching my notes, or course).  I wonder how many of our appellate justices feel the same way. (I hope none of the justices ever says to me at oral argument, “So, Mr. May, I read your brief on my iPad. You got a problem with that?”)

Getting back to the study: I am curious whether the study looked only at persons old enough to have grown up reading off the printed page. Perhaps today’s youth, who may have done a majority of their reading from screens, will develop so that they actually read better from a screen than from a printed page.

In a viral YouTube video [see below] from October 2011 a one-year-old girl sweeps her fingers across an iPad’s touchscreen, shuffling groups of icons. In the following scenes she appears to pinch, swipe and prod the pages of paper magazines as though they too were screens. When nothing happens, she pushes against her leg, confirming that her finger works just fine—or so a title card would have us believe.

The girl’s father, Jean-Louis Constanza, presents “A Magazine Is an iPad That Does Not Work” as naturalistic observation—a Jane Goodall among the chimps moment—that reveals a generational transition. “Technology codes our minds,” he writes in the video’s description. “Magazines are now useless and impossible to understand, for digital natives”—that is, for people who have been interacting with digital technologies from a very early age.

That’s a cute anecdote — or a horrifying one, depending on your perspective — but despite that introduction, the subhead of that piece at Scientific American notes that “research suggests that reading on paper still boasts unique advantages” over reading on a screen, and describes them in ways that suggest the printed page is advantageous even for those raised reading from screens.

For more articles and commentary on the subject, click here.

Update: I re-drafted this post as an article.

The issue in Lanquist v. Ventura County Employees’ Retirement Association (case no. B251179, 2d. Dist., March 16, 2015) is succinctly stated in the first paragraph of the opinion:

Ventura County Employees’ Retirement Association (VCERA) permits employees to purchase retirement service credit for time spent in military service. It excludes time spent as a midshipman at the United States Naval Academy (Academy).Our interpretation of a Ventura County Board of Supervisors’ resolution, adopting the County Employees Retirement Law (CERL), leads us to the opposite conclusion.”Military service” includes s as a midshipman.

What to Look for in an Attorney

Since you know the major benefits of having an experienced VA disability lawyer, it’s time to know what to look for when hiring a lawyer for your military earplug lawsuit. There are specifications they should have, including being VA accredited and assets that you don’t have.

Never hire the first lawyer you speak to if you haven’t spoken about your claim to another lawyer. You should speak to at least three lawyers to decide who will suit you the best.

The best disability lawyers will be:

• VA Accredited: Your lawyer has to be accredited by the VA. In order to be accredited by the VA, they must fill out paperwork for the Department of Veteran Affair’s Office of General Counsel (also known as VAOGC). All the forms and documents are examined and determined if they’re fit to fight for vets. The lawyer then gets 12 months from when they’re accepted to complete a 3-hour course.
• Experienced: Experience is always good when hiring any lawyer. You want an attorney to know the entire process in and out. They have experience working for other vets, just like you. A great lawyer will let you know what needs to be done every step of the way. Not only should they have an extensive past dealing with VA regulations, but they should be currently practicing this same law. If they haven’t practiced recently or haven’t been to the VA court in years, they might be a little rusty on everything.
• Focused: Alongside experience, you want a VA disability lawyer whose focus has been primarily on cases like yours. A lawyer with too many focuses may only know the basics of the VA’s policies on disability. Your lawyers need to know the intricacies.

On the ensuing appeal, the trial court’s decision is reviewed de novo. That does not mean, of course, that the underlying administrative decision is likewise reviewed de novo. De novo review of the trial court’s decision means that the appellate court has to put itself in the shoes of the trial court and review the administrative decision under the standard of review that the trial court was required to apply. Normally, review of such a quasi-legislative administrative body’s decision is limited to whether the decision  was “arbitrary, capricious, lacking in evidentiary support, or contrary to procedures provided by law.” (Citations omitted.) But here, the plaintiffs got a break from the fact that the administrative body had construed a statute rather than exercise discretionary rule-making power. Thus, the ruling was subject to heightened review: “We tak[e] ultimate responsibility for the construction of the statute, [but] accord[] great weight and respect to the administrative construction.” (Citation and internal quotation marks omitted.) Under that level of scrutiny, the administrative body’s interpretation of the statute did not hold up, and the plaintiffs’ time as midshipmen was held to be subject to the retirement service credit purchase scheme.

That’s a welcome surprise, given that time for service at the Academy is not counted toward time in service for purposes of calculating military retirement pay for retiring officers. Presumably, the federal statutes cited by the court in its analysis apply with equal force to graduates of other service academies and thus former ZoomiesWoopsCoasties working for Ventura County are likewise eligible for this program.***

The larger lesson to be drawn is that one should not be automatically discouraged by the default standard of review. Take a careful look at the case to see if a more favorable standard of review can be invoked. And kudos to these plaintiffs, both of whom were self-represented but only one of whom is an attorney.

***Believe me, use of these nicknames is all in good fun — there is a healthy respect for each other among the academies, but the good-natured rivalries among them can make it look otherwise. Stanford-Cal, Alabama-Auburn, and other college rivalries have got nothing on Army-Navy. Go Navy! Beat Army!

Given the central role of written briefs in the process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants.

Every opening brief presents a struggle between “persuasive completeness” and a “condensed succinctness.” The ideal opening brief, of course, is complete and succinct. Sometimes, that can be accomplished, but not always (just ask Jeff Skillings’s lawyers), and maybe not even often, especially if one measures succinctness in absolute terms. But aside from rule-imposed limits, I think the the length of a brief has to be judged relative to its completeness — the number of issues raised and how complex the issues are. A brief of 7,000 words may be quite verbose if it raises only one or two simple issues, while a brief of 14,000 words may be a concise presentation of far more numerous and complex issues.

Update: the article has triggered this discussion thread at LinkedIn.

Section 166.1 provides:

Upon the written request of any party or his or her counsel, or at the judge’s discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation. Neither the denial of a request for, nor the objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or appeal.

If you think your case has been helped or hurt by a section 166.1 certification, let me know in a comment to this post.

Update: AAAArrrggghhh! I cannot get comments opened up in WordPress at the moment. No matter how many times I change the setting, comments remain closed. But I would still like to hear from you if you have experience with section 166.1 influencing your case. Email me at gregATgregmaylaw.com. I will update the post, as appropriate, to reflect your experience.

So, where should you file your motion to vacate the judgment under Code of Civil Procedure sections 663 and 663a? The answer is: with the clerk of the superior court. (As all documents should be, pursuant to Cal. Rules of Court, rule 2.400(b).)

The appellant in Gonzalez v. Aroura Loan Services, LLC, case no. B247366 (2d Dist., Nov. 17, 2014) learned that lesson the hard way, but not through having its motion to vacate denied. In fact, the judge never even ruled on the motion. But the appellant suffered another consequence from filing its motion to vacate directly with the temporary judge instead of with the clerk of the superior court. Its appeal was dismissed as untimely because the improperly filed motion to vacate did not trigger the extension of time to file the notice of appeal described in rule 8.108(c), California Rules of Court.

Rule 8.108(c) extends the time to appeal whenever a party files “a valid notice of intention to move — or a valid motion — to vacate the judgment.” (Emphasis added.) The court held that the motion to vacate filed directly with the temporary judge was not valid because section 663 directs that the moving party ” shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made[.]” (Emphasis added.) Thus, the rule 8.108(c) extension was never triggered. Without that extension, the appellant’s notice of appeal was untimely.

I cannot emphasize enough how critical it is that a party file its notice of appeal on time. Gonzalez has more to say on this broader topic, which I will save for another post.

I don’t know if I was randomly chosen for an invitation or I was invited because I am a blogger on appellate issues. It’s nice to think it is the latter, and to think that maybe if I throw a link or two to SCOCAblog from time to time, the bloggers there might return the favor.

Oddly, yesterday I wasn’t able to find any trace of news about the impending launch other than what is contained in my invitation. I found nothing about it at the website for either of the endeavor’s partners, and going to SCOCAblog.com in a web browser brought up the same generic page brought up for any other inactive URL; there was no “coming soon,” “under construction,” or other message hinting that SOCAblog was on its is way. You would have thought it was a big secret.

This morning is a different story. Though yesterday’s invitation announced a launch date of November 24, 2014, the blog appears to have launched ahead of schedule.

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

In large part, the article explains the need for adverbs in legislation and notes the significance they can have in the construction of a statute.

Bryan Garner, editor of Black’s Law Dictionary, is regarded by scholars as the dean of legal prose. He says legislators and adverbs need one another.

***

Says Mr. Garner: “No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.”

Ah, back to that age-old rule: know your audience when you are writing. (More on what the article teaches about that at the product liability blog Abnormal Use.) The article moves on to the more contentious issue of the use of adverbs in persuasive writing and the use of adverbs by judges:

“When you’re drafting an opinion, it’s just so tempting to use an adverb, so satisfying. It says exactly what you mean,” Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals, said. “I don’t think any of us can follow the rule as religiously as Hemingway did. I wish I could.”

Unlike his peers, Justice Antonin Scalia is unapologetic. One legal linguist marveled at his “caustic exploitation” of adverbs in his opinions, which crackle with phrases like “blatantly misdescribes,” “most tragically” and “judicially brainstormed.”

Unsurprisingly, the participants in a LinkedIn thread that started with a reference to the article tended to concentrate on the use of adverbs in persuasive writing, and expressed their overall disdain for adverb use. There was general agreement that adverbs like “clearly,” “obviously,” and the like signaled weak arguments. The article offers statistical support for that view, with a caveat (again, relevant to the “know your audience” maxim):

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words,” as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer’s favor if the presiding judge really likes to use those adverbs, too.

Which leads me back to Hemingway. In the LinkedIn thread, California attorney Steven Finell praises Hemingway for more than just adverb avoidance, crediting him for precise writing without adverbs and using adverbs effectively: “Lawyers can learn a lot from reading Hemingway: short sentences, powerful verbs and nouns–and descriptive adverbs and adjectives.” Finell’s post provides great examples of precise adverb-free writing.

I’ve never read Hemingway. I might give him a try.

What I found particularly persuasive was her advice that lawyers should get over their penchant for keeping the entirety of their mediation briefs confidential:

Many lawyers submit “confidential” briefs to the mediator, hoping to avoid premature disclosure of their position. But if the brief is confidential, how can the information impress the folks sitting across the table?

A productive strategy is to deliver the message ahead of time, thereby promoting a worthwhile – and mutual – premediation evaluation of the case.

This approach conveys not only your (hopefully) winning arguments, but also what it will take to persuade your client to settle. Sharing a thoughtful brief in advance also allows everyone to discover unanticipated areas of agreement. Then, the parties can drill down to the real areas of disagreement at the heart of their dispute.

An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.

(Code Civ. Proc., § 2030.010, subd. (b).) Similar information can be obtained through requests for admissions. (Code Civ. Proc.,  § 2033.010.) Unless you plan to stonewall or be cagey in discovery — or your opposing counsel is not sharp enough to utilize all the discovery tools at his disposal — you are not going to keep your strategy a complete secret anyway.
I think the advice to disclose one’s position goes double for appellate mediation, especially for the appellant. The appellant might have been on an equal footing with the respondent during the trial court proceedings, but with statewide reversal rates hovering around 20%, the appellant starts out as a huge underdog in the appeal.  The appellant’s most important task during the mediation is to convince the respondent that the appellant’s chances of succeeding are far higher than that 20% average. An appellant can’t do that without disclosing at least some of his strategy. I don’t worry about giving the respondent additional lead time to consider those arguments before my appellant’s opening brief is filed. The easy availability of extensions and the “grace period” for filing the respondent’s brief is going to give the respondent plenty of time in any event.

I was reminded of this issue by an article on pro se plaintiffs in the Daily Recorder (subscription only link) titled “Pro Se Suits No Picnic for Defense Lawyers,” which described the difficulties of litigating against pro se plaintiffs at the trial court level. I think some of those difficulties can carry on through appellate proceedings, but overall I think a defendant-respondent in the court of appeal has an easier job opposing a pro se plaintiff-appellant in the Court of Appeal than the defense lawyer has in the trial court.

First, let’s look at how the article characterized suits brought by pro se plaintiffs: “Suits filed by the unlawyered are often frivolous. Some allege outlandish conspiracy theories, while others fail to make a recognizable legal claim.” None of that is likely to get any better by the time the case reaches the Court of Appeal (except, perhaps, where the pro se plaintiff has successfully amended the complaint to state a cognizable cause of action). The appellant’s opening brief may likewise be frivolous and a conspiracy theorist’s dream, but on appeal, there is an extra tool to combat those characteristics: the standard of review, which can often render irrelevant whole swaths of argument devoted to contested versions of the facts.

The article goes on to note that suits brought by pro se plaintiffs can be lengthy and costly because such plaintiffs are usually unwilling to settle and the trial court gives the pro se plaintiff leeway in complying with the rules of court that the court would not grant to a represented litigant. I have not seen either of those factors affect an appeal much.

Settlement on appeal is not unheard of, but it is far less frequent than in trial court in any event (it is not even always discussed), so a particularly stubborn plaintiff is not likely to skew settlement statistics in appellate proceedings. In fact, a pro se plaintiff-appellant might even be more willing to settle on appeal (and for a nuisance value) than he was in the trial court if he can be made to realize that the reversal rate is less than 1-in-5.

I haven’t seen pro se appellants given extra leeway, either (though I am always sure to cite case authority stating that they should not be given any). While it is true the Court of Appeal will make sure that pro se appellants get a fair shake, that approach usually manifests itself not in granting leniency with rule compliance, but in giving the the pro se appellant a respectful hearing, even where it is obvious he is wasting the court’s time. There are usually so few procedural steps in an appeal that there are few occasions for the appellant to invoke leniency in any event. The closest I ever saw was a pro se appellant who moved for leave to file an opening brief of nearly 50,000 words — the length of a short novel, and more than three times the usual limit. She was denied relief.

I think one of the biggest challenges in opposing pro se appellants can be to decipher their arguments. Briefs I have seen from pro se appellants (not always in cases in which I represent the respondent) tend to be long-winded, repetitive, and convoluted. A respondent must spend a good deal of time untangling the opening brief to clarify the arguments being made before starting on the respondent’s brief. If a respondent forgoes that initial analysis, he risks drafting a respondent’s brief that is likewise wordy, repetitive, and convoluted — at least in its first draft.

I can’t quantify this next point or offer any specific evidence for it (other than the anecdotal evidence in the article of pro se plaintiffs’ general unwillingness to settle), but I believe that pro se appellants are far more likely than represented appellants to appeal for reasons so personal and important to them that they are blinded to the realities of an appeal. Thus, I think they are more likely to pursue frivolous appeals, make arguments that don’t take into account the standard of review (even if they are familiar with the concept of a standard of review), and even appeal in situations where success could make them worse off.

All that said, one should resist the temptation to think that all pro se appellants are doomed to failure. Sometimes, they win, even against big companies with top-notch representation.

Brooks’s opening brief on appeal includes a statement of facts without any citation to the record. In the argument portion of the brief, references to facts are occasionally, but not consistently, supported by citations to the record. ECG’s respondent’s brief, which relies extensively upon facts developed at trial, does not include a single citation to the record. The failure to include citations to the record violates rule 8.204(a)(1)(C) of the California Rules of Court: Briefs must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Although these failures subject the briefs to being stricken, we have elected to disregard the noncompliance. (Cal. Rules of Court, rule 8.204(e)(2)(C).)

(In re Marriage of Brooks and Robinson (2008) 169 Cal.App.4th 176, 180 fn. 1.) Maybe stink is a strong word. It’s possible the briefs made excellent points and were terrible only in their failure to comply with the rule requiring citations to the record. But still . . . the odds that neither side would comply with such a basic rule strike me as being quite low. Here, one of the parties (Brooks) was self-represented, but I’m betting that somewhere out there are cases with lawyers on both sides of the appeal filing non-conforming briefs.

This sounds like the beginning of a pitch urging you to employ an appellate attorney, doesn’t it?

You know what I do when I have a question about procedure? This is a really radical concept for some . . . I look up the applicable rule. You don’t have to be a rocket scientist — or even an appellate lawyer — to realize that’s a good idea.