Today we consider the familiar “abuse of discretion” standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court.

***

[W]e conclude that our “abuse of discretion” standard is in need of clarification. The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.” At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible.”

Because it has previously been left to us to decide, without further objective guidance, whether we have a “definite and firm conviction that mistake has been committed,” or whether a district court’s finding is “permissible,” there has been no effective limit on our power to substitute our judgment for that of the district court.

Today, after review of our cases and relevant Supreme Court precedent, we re-state the “abuse of discretion” standard of review of a trial court’s factual findings as an objective two-part test. As discussed below, our newly stated “abuse of discretion” test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court’s findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

I’ll be straight with you here: I haven’t read the combined 107 pages of opinions. You can get more details about the case from Ninth Circuit Blog.

I’ll probably have more to say about this case after I’ve read it in detail, but for now . . . well, as I’ve noted before, detailed formulations of the abuse of discretion standard tend to incorporate multiple standards of review, each of which is applied to a discrete step in a multiple-step analysis as to whether the trial court abused its discretion. The Hinkson formulation certainly seems to continue that tradition. It is a welcome development, but I’m not sure that the second step supplies the objectivity the court claims it does.

Given that most people’s exposure to the law through the entertainment media nearly always involves a trial, this session strikes me as an excellent opportunity to educate the public about appeals. After all that exposure to movie-version trials, one suspects that the typical student, unless adequately briefed on the proceedings beforehand, would walk away from an appellate hearing saying to himself, “That’s it?” I’m curious whether that sentiment came out during the Q&A or in the preparation leading up to the event.

Also anticipating that sentiment was the reporter who wrote the article run by the Napa Valley Register the day prior to the session, who apparently had brief experience covering appellate decisions, and offered this comparison of trial and appellate proceedings:

While jury trials have some drama, what with the grilling of witnesses and introduction of eye-opening evidence, trials also can be tedious.

At the court of appeals, it is literally stand and deliver.

A lawyer has 20 minutes or so to persuade the court he or she is right, with the other side firing back from steps away. Either side can be undone by the justices, who can ask whatever they want whenever they want of whomever they want, making hash of a lawyer’s best-laid plans.

This actually strikes me as a a pretty fair layman’s synopsis of the differences between trial and appellate proceedings. It’s no doubt enough to scare some people out of ever considering appellate practice (probably the same people who prayed all during law school that their professors would not call on them in class). For the well-prepared appellate advocate, it not only can be a great challenge, it can also be quite enjoyable.

By itself, however, the comparison does not answer the “that’s it?” query. There are plenty of subtleties (and a heck of a lot of preparatory work!) involved in every oral argument. I will continue to write on those topics, but you can see what I mean by some of my earlier posts on the topic of oral advocacy.

For the past few weeks, I’ve been considering how to get started blogging again. I’ve been mulling a change in focus of the blog, design changes, perhaps starting another one. Something I could do to rekindle my blogging spirit and herald my return to the keyboard.

Then, today I was thinking, “No. Forget about grand announcements. Forget about design changes. Forget about a shift in focus. Forget all that crap, and just start blogging again.”

As if on cue, I got linked today in a post at Real Lawyers Have Blogs. Some kind words, too, in an interview with Michael Reitz of The Supreme Court of Washington Blog:

Lisa Kennelly: What value do you feel a blog specifically covering a state’s Supreme Court provides? Do you think every state could stand to have a blog like yours?

Mike Reitz: Yes. Every state should have a blog that covers the state’s appellate courts. The state high courts are often the courts of last resort for noteworthy cases. Additionally, state supreme courts have led the revival of looking to state constitutions, rather than the U.S. Constitution only, for the protection of individual liberties. There are a number of quality bloggers covering their state courts—D. Todd Smith of the Texas Appellate Law Blog and Greg May of the California Blog of Appeal for example.

I was horrified. Horrified. People were clicking their way here and finding at the top of the blog . . . an 8-week old post on the riveting subject of the closure schedule for the state’s courts. If they bothered to work their way down the page, they saw three posts over the four months before that. Wow, I’ll bet they were impressed!

Well, I am gearing up to blog again. And I still plan to do some tinkering with the blog. But I’ll just experiment as I go.

Those of you who prefer not to risk miscounting your Wednesdays can find a list of closure dates through June 2010 on the Supreme Court’s home page. In case that list is no longer there when you look, Kimberly Kralowek has posted the same chart at The UCL Practitioner.

Substantively, the post is remarkably thorough and fun to read. (Herrman’s obsession isn’t the only humorous point.) It concludes with interesting detail on the most recent Supreme Court decision and a discussion of practical consequences.

(For Ninth Circuit practitioners, it may be interesting to note that the trigger for Herrmann’s and Beck’s post was last month’s Supreme Court decision in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. __ (2009). Carlsbad came from the Federal Circuit, which had split from several others, including the Ninth, to hold that 28 USC § 1447(d) precludes appellate review of a remand order based on the district court’s discretionary decision under 28 USC § 1367(c) not to assert supplemental jurisdiction over state claims. The Supreme Court’s reversal vindicates the Ninth Circuit’s wisdom (not to mention adherence to stare decisis) when it declined the invitation to reconsider its position in last year’s California Dept. of Water v. Powerex ___ F.3d ___ (9th Cir. 2008). [I'll update that cite for you later when I have access to the reporters.] By the time of the California Dept. of Water case, the rule was well-established in the Ninth Circuit that review was available by petition for writ of mandate. However, the Ninth was forced by intervening Supreme Court authority to find that review is available by appeal. My coverage of Powerex is here.)

Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The primary purpose for this application is persuasion and advocacy, not necessarily empowering the disenfranchised client.

This is a very interesting concept, and certainly one that cuts against conventional legal writing wisdom. It also requires lawyers to step back from the “I’m the lawyer, I know what I’m doing, leave it to me” approach to client relations. Think how much happier your clients will be knowing not only that their values are being incorporated into the project, but that incorporating those values actually makes for better advocacy.

The California Supreme Court reached a sensible decision in Silverbrand v. County of Los Angeles, case no. S143929 (Apr. 23, 2009), in which the court holds that a prisoner’s pro se notice of appeal in a civil case is timely filed upon deposit with prison authorities for mailing. This brings the rule for timely filing of an appeal by a pro se prisoner in a civil case in line with the rule for a pro se prisoner’s filing of an appeal in a criminal case.

Silverbrand’s medical malpractice action against the county and jail medical personnel had been decided against him by summary judgment. He filed his notice of appeal by handing a correctly addressed, postage-paid envelope to prison officials the day before his deadline to file, but it did not reach the court until 2 days after the deadline. The court of appeal dismissed the appeal.

Here’s how the court introduced its decision reversing the court of appeal:

The prison-delivery rule — as most recently articulated by this court — provides that a self-represented prisoner’s notice of appeal in a criminal case is deemed timely filed if, within the relevant period set forth in the California Rules of Court, the notice is delivered to prison authorities pursuant to the procedures established for prisoner mail.  (See In re Jordan (1992) 4 Cal.4th 116 (Jordan).) The question before us in this case is whether the prison-delivery rule properly applies to a self-represented prisoner’s filing of a notice of appeal in a civil case.

Rooted in common law and well established in California jurisprudence, the prison-delivery rule, also referred to as the prison mailbox rule, “ensures that an unrepresented defendant, confined during the period allowed for the filing of an appeal, is accorded an opportunity to comply with the filing requirements fully comparable to that provided to a defendant who is represented by counsel or who is not confined.” (Jordan, supra, 4 Cal.4th at p. 119.)  It also “furthers the efficient use of judicial resources by establishing a ‘bright-line’ test that permits courts to avoid the substantial administrative burden that would be imposed were courts required to determine, on case-by-case basis, whether a prisoner’s notice of appeal was delivered to prison authorities ‘sufficiently in advance of the filing deadline’ to permit the timely filing of the notice in the county clerk’s office.”  (Ibid.)

There appears to be no sound basis for construing the relevant case law and rules of court as maintaining one rule in this context for criminal appeals and another for civil appeals.  Self-represented prisoners — who can file a notice of appeal only by delivering it to prison authorities for mailing — should be allowed the same opportunity as nonprisoners and prisoners with counsel to pursue their appellate rights, regardless of the nature of the appeal pursued.  Broadening the prison-delivery rule to include civil notices of appeal also should result in additional administrative benefits both for trial courts and reviewing courts, thereby improving judicial efficiency.  Therefore, for the same reasons that persuaded us that the prison-delivery rule should apply to the filing of a notice of appeal in a criminal case, we are persuaded that a notice of appeal by an incarcerated self-represented litigant in a civil case should be deemed filed as of the date the prisoner properly submitted the notice to prison authorities for forwarding to the clerk of the superior court.

That all seems rather obvious, doesn’t it? But it wasn’t obvious at all from the relevant rules of court, as the rule for criminal appeals (rule 8.308) codifies (at subsection (e)) the prison-delivery rule, while the rule for civil appeals (rule 8.104) does not. That kind of distinction usually leads a court to infer that the drafter deliberately made the rules different, and that’s exactly what the court of appeal understandably concluded in dismissing Silverbrand’s appeal.

You’ve read warnings from me time and again that the notice of appeal deadline is a jurisdictional limitation. Miss it, and you’re stuck. There is no relief.

But here, the Supremes note a tension between the unforgiving jurisdiction nature of the deadline and a policy of according the right to appeal “in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ ” (Citation omitted.) This policy led to the development of the prison-delivery rule in the first place. Recapping that history and noting a national trend toward application of the prison-delivery rule in civil cases, the court reaches the conclusion summarized in the block quote above: there is no good reason to treat civil appeals different from criminal appeals.

The court overcomes the literal and harsh application of the court rule by noting that the rationale of the prison-delivery is not that it extends the deadline for filing to the date the notice of appeal is actually received by the court, but rather because the rule deems the notice of appeal constructively filed on the date of delivery to prison officials for mailing, despite the fact that it does not reach the court until later. I thought the opinion did some somersaults in its analysis of the rules, but was convinced nonetheless.

Please note, all you civil litigants, even self-represented ones, this does not mean your deposit in a mailbox on the last day for filing will suffice.  Remember, the court was deciding the effect of a prison-delivery rule.  If your mailbox doesn’t resemble the one pictured, you need to get your notice of appeal to the court — not the mailbox — on time.

It’s also worth noting that Silverbrand had the benefit of top-notch counsel in the Supreme Court at a bargain price (as in “free”). The Supremes appointed appellate powerhouse Horvitz & Levy to represent Silverbrand, and he had three amicus briefs filed on his behalf.

UPDATE: Thanks to Horvitz & Levy for linking to this post from their website “bragging page” about the case.

(Photo courtesy of Andrew Bardwell pursuant to Creative Commons Attribution-Share Alike 2.0 Generic License.)

Now, an Australian court has authorized service of summons by notifying the defendant via Facebook (sidebar note at p. 10 of this PDF).

And why not? If it hasn’t already happened here, it probably will eventually. California law (Code Civ. Proc., § 415.50) already allows for service of summons by publication in newspapers in certain cases when a plaintiff shows that “the party to be served cannot with reasonable diligence be served in another manner specified in this article.” A Facebook posting is probably far more likely to actually reach the defendant than is notice by publication in a newspaper. At least so long as the defendant’s Facebook account has not gone stale.

We now have e-filing and e-service of other papers. Summonses may be the last holdout, but they can’t hold out forever.

Conceivably, service would even be possible via Twitter with a few words and a link to an online post of the summons, though I wouldn’t advocate it. Imagine seeing this tweet on your iPhone:

You’re being sued — here’s your summons: http://tinyurl. . . .

For the lighter side of social media evolution, watch this.

Hat tip: My dad.

In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings”). The panel in Lopez-Rodriguez v. Mukasey (Rodriguez), 536 F.3d 1012 (9th Cir. 2008), held precisely the opposite. How we got there is an interesting— and perhaps cautionary—tale. We seem to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then, we have applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule—one never envisioned by either the Supreme Court majority or the plurality.

Judge Bea then provides detail of the 4-step analysis he claims the panel engaged in. That analysis is nicely summarized by attorney and blogger Gabriel Malor:

Step One is to dig through Supreme Court decisions for dicta (that is, non-binding editorializing) that is arguably on point. Step Two is to mischaracterize that dicta as binding and creating a new constitutional test. Step Three is to “rephrase” the new rule so as to reach wider conduct. Step Four is to impose the new rule, while acting as if it was obvious all along.

And if you don’t mind mild profanity (by today’s standards, anyway), and especially if you are usually in sync with Judge Bea, I think you’ll find it ’s worth clicking on the link to Malor’s post just to read the title, which is even more blunt.

Judge Bea’s dissent is joined by three others, including original panel member Judge Bybee, who warned in his separate concurrence with the panel opinion that Ninth Circuit precedent “has set us on a collision course with the Supreme Court.” 

How do I make that connection? Because when I was done reading the case, I thought, “It’s a dismissal after sustaining a demurrer! It’s a discovery ruling! It’s two rulings in one!”

And so did the court of appeal, though it didn’t say it in so many words.

Brescia cross-complained against respondents for trade secret misappropriation.  Code of Civil Procedure section 2019.210 requires a trade secret plaintiff to identify the trade secret “with particularity” before commencing discovery.  Respondents moved for protective orders against discovery served by Brescia, claiming that he had not adequately identified the trade secret.  Finding the initial identification inadequate, the court gave Brescia several opportunities to make more particular designations, while the hearing on the protective order motions (which were now greater in number) were continued.  During this time, the respondents also demurred to Brescia’s cross-complaint.

Eventually, the protective order motions and demurrer (as well as a motion to strike) were heard on the same date, and this is where it gets interesting.  The court goes into great detail about the exchange among counsel and the court, but summarizes it as follows:

[T]he parties, in an attempt to expedite any appeal, stipulated that if the court determined the trade secret designation insufficient, it could use respondents’ demurrer to the cross-complaint as a procedural device to dismiss Brescia’s trade secret misappropriation claim for failure to comply with section 2019.210

That should have set off alarms in everyone’s mind, but we’ll get to that in a minute. The court found the disclosure inadequate and sustained the demurrer without leave to amend.

Brescia appealed from the resulting judgment of dismissal and, notwithstanding his stipulation in the trial court that the inadequacy of the trade secret disclosure would dispose of the case, argued that the court could not use a ruling on the trade secret disclosure as a ground for sustaining the demurrer. After recounting all the ways in which the stipulated arrangement violated normal procedural rules and effectively converted an unappealable discovery ruling into an appealable judgment, the court reminds Brescia of the doctrine of “invited error”:

Nonetheless, despite these inherent problems, Brescia stipulated to the procedure used by the court, as did respondents.  Indeed, the trial court would not have used this procedure but for Brescia’s express consent.  Brescia is in the procedural posture he sought. To the extent he now challenges that posture as improper and awkward, he effectively misled the trial court into believing the procedure was acceptable to him as a means to secure immediate appellate review of the sufficiency of his section 2019.210 designation.  Thus, he cannot contend on appeal that the termination of his action against respondents was procedurally defective.  (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [doctrine of invited error applies where party induces error and, in doing so, misleads court].)

But Brescia actually prevails on the adequacy of his disclosure, so the court reverses, rejecting respondents’ contention that the demurrer gave an alternate ground for affirmance.

Respondents argue that the alternative grounds exist to support the court’s ruling sustaining the demurrer to the cross-complaint without leave to amend:  (1) the cross-complaint fails to state facts sufficient to plead a trade secret misappropriation claim against respondents personally, and (2) Brescia’s legal theory creates an improper prior restraint on trade.

In the unusual procedural posture of this case, we decline to address these issues.  The ruling that forms the basis for this appeal is a discovery ruling – the sufficiency of Brescia’s section 2019.210 designation.  By stipulation, the parties and the court deemed that discovery ruling to be a ground upon which the court would dispose of the cross-complaint through the procedural fiction that it formed a basis for demurrer.  We have given effect to that stipulated fiction and have addressed the merits of the section 2019.210 issue.  But we will not carry the fiction further and purport to review a ruling on a demurrer that was never truly made.  Respondents are asking us, in the first instance, to rule on their challenges to the cross-complaint and to sustain the demurrer without leave to amend.  We decline.  Respondents must first obtain a ruling on the demurrer in the trial court, which is the appropriate forum to determine in the first instance whether the demurrer states meritorious grounds, and, if so, whether leave to amend should be granted.

(Emphasis added.)

Curiously, none of the analysis talked about in this post is part of the published opinion, which is limited to the issue of the adequacy of the trade secret disclosure. The court clearly was not pleased with the stipulation, and a published decision would have announced their discouragement of such arrangements.  On the other hand, notwithstanding the court’s distaste for the arrangement, publication might have encouraged more of them.  The court did, after all, hear the appeal, and determine the merits of the underlying discovery ruling.  Other plaintiffs faced with the same unattractive alternatives to such a stipulation — waiting to appeal after final judgment or petitioning for writ relief with a greater than 90% chance of not being hard on the merits — may find the “Brescia option” attractive . . . if they learn of it.

In re B.S., case no. E045748 (4th Dist. Mar. 17, 2009) is a case of alleged jurisdictional conflict between two divisions of a superior court — the criminal court and juvenile court — both of which (and in that order) issued restraining orders against the appellant father of the infant B.S.  The criminal court order issued on Judicial Council form CR-160, and ordered that petitioner “must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of” B.S. and B.S.’s mother.  At the juvenile court hearing, appellant insisted this restraining order was enough, and that it would be improper for the juvenile court to order anything more restrictive, but that is just what the juvenile court did.  On Judicial Council form JV-250, the juvenile court entered a more restrictive restraining order that also prevented the father from contacting (with extremely limited exceptions) the mother, B.S., and the maternal grandmother and required that he keep a minimum distance between himself and any of them.

The father contended on appeal that the juvenile court lacked jurisdiction to enter the restraining order because of the pre-existing restraining order issued by the criminal court.  That was an awfully tough sell in light of the statutory scheme:

Here, the Legislature has provided that a restraining order issued by a criminal court against a defendant charged with domestic violence “has precedence in enforcement over any civil court order against the defendant . . . .”  (Pen. Code, § 136.2, subd. (e)(2).)  Thus, it evidently contemplates the issuance of a criminal restraining order, despite a preexisting civil restraining order, or vice versa. 

This precedence was not undercut by the father’s resort to the policy behind the rule of exclusive concurrent jurisdiction:

The father, invoking the policy behind the rule of exclusive concurrent jurisdiction, argues that he has been saddled with “the burden of having to deal with multiple courts and potentially conflicting orders.”  However, he has not pointed out any actual conflict between the two orders.  The criminal order does not require him to do anything that the juvenile order prohibits, or vice versa.  Admittedly, the juvenile order is more restrictive than the criminal order.  Nevertheless, it is possible for him to comply with both.  In any event, the juvenile order provided that any apparent conflict must be resolved in favor of the criminal order, thus making any actual conflict impossible. 

The father argues that the two orders are “confusing” with regard to which order takes precedence.  But not so.  The criminal order provided, “[T]his order takes precedence over any conflicting protective order . . . if the protected person is a victim of domestic violence . . . .”  The juvenile order then similarly provided, “If a criminal restraining order . . . conflicts with a juvenile restraining order . . . , a law enforcement agency must enforce the criminal order.  . . . Any nonconflicting terms of the juvenile custody or visitation order remain in full force.”  Thus, both orders consistently provided that, in the event of an actual conflict, the criminal order would take precedence.

It’s difficult to see where the father’s lawyer saw any opening here.  This rule of precedence is not merely buried in the statutes; it is part of the standard language on forms CR-160 and JV-250. Perhaps the benefit of 20/20 hindsight is to blame, but I think this had to look unpromising from the beginning.

UPDATE:  So I got to thinking . .  . I’ve got 20 or 30 years left in my legal career.  Will I see a juror’s mental telepathy about a case raised as a ground for appeal?  I don’t know, but if mental telepathy is possible, it will sure change oral argument, especially how an advocate handles questions from the court.

— “Judge Marten is talking to reluctant witness in chambers with a court reporter transcribing the conversation.”

— “The witness who was yelling in the hallway earlier has not returned to the courthouse.”

— “Defendants are chatting and laughing among themselves.”

— “Exhibits are shown electronically. Every juror has a monitor in the box. There is a monitor at each lawyer’s table and one for the gallery.”

It won’t be long before journalism schools offer a course in “journalism in 140 characters or less.”

We’ve already seen a blogging juror become a potential issue on appeal.  But it seems unlikely we’ll see tweeting jurors any time soon.  It would be awfully hard to tweet from the jury box without being noticed.

UPDATE: I was wrong.

I do plan to get a substantive post up this week and get back on a regular posting schedule soon.  Just wanted you all to know the blog has not been abandoned.

As a welcome back treat, allow me to share a couple of blawg items I found interestting.

First, I just ran across a blog called “EvilEsq,” which I discovered when its author started following me on Twitter.  Here’s an image from it, which, along with the title, is probably enough to tell you that you don’t want your name to show up there:

Second, the blog of Fresno criminal defense lawyer Rick Horowitz has one of the best subtitles ever, at least if you’re an appellate guy:  Probable Cause: The Legal Blog with the Really Low Standard of Review.

Back to work, everyone.

The underlying proceeding was filed by the minority shareholders of a corporation to force its dissolution.  The parties stipulated to follow the buy-out procedure of Corporations Code section 2000, under which the corporation would purchase the shares of the minority shareholders.  Since the parties could not agree on share value (imagine that!), the majority shareholders were required to post a bond pending a final order.

After independent appraisers submitted a unanimous valuation report to the court, the minority shareholders moved to confirm the appraisal.  The majority shareholders fought the motion, contending that the business had been overvalued.  The trial court adopted the appraisers’ valuation of the company and entered an alternative decree fixing a share price and setting a date by which the purchasing shareholders had to tender cash payment to the minority shareholders for their shares, and which provided that failure to timely tender cash payment would result in the entry of judgment of involuntary dissolution.

Ten days before payment was due (and without making any payment), the corporation filed its notice of appeal, and three days after that they filed their petition for writ of supersedeas in the court of appeal without first seeking a stay in the trial court.

The court denies the petition, with some lessons along the way, which I present in no particular order.

The issue that I think caused the court of appeal to publish the decision is the first one it tackles: whether the alternative order was automatically stayed upon the filing of the appeal from it.  The court holds that the order was not automatically stayed because the proceeding wasn’t really an “action” for purposes of the rules governing stays and undertakings on appeal in a civil “action.”  (Code Civ. Proc. secs. 22-23.)  In fact, the parties agreed that the involuntary dissolution suit was a “special proceeding” under Code of Civil Procedure section 23.  Since the stay provisions (Code of Civil Procedure sections 916 et seq.) of Part 2 of the Code apply only in civil actions, the decree was not automatically stayed.

(This is probably a good time to warn prospective appellants in civil actions against taking comfort in the “automatic stay” of Code of Civil Procedure section 916, under which “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.”  There’s a huge “but”: the automatic stay of section 916 is subject to so many exceptions that they  swallow the rule, and it is the unusual case that is actually stayed automatically.)

Special proceedings are subject to the stay provisions of Part 2 only if the statute creating the special proceeding expressly incorporates them.  The majority shareholders directed the court’s attention to Corporations Code section 2000, subdivision (d), under which, to prevent winding up and dissolution, the purchaing parties “shall pay to the moving parties the value of their shares ascertained and decreed within the time specified pursuant to this section, or, in the case of appeal, as fixed on appeal.“  (Emphasis added.)  Unfortunately, they did not make clear what they thought the significance of the provision was.

The court rejects two possible assertions based on the cited language.  First, holding firm to the rule that statutory incorporation of Part 2 must be express, it rejects the possibility that the cited language was intended to incorporate the stay provisions of Part 2.  Second, it rejects the possibility that the cited language itself imposed a stay.  Because there is a stay on appeal from special proceedings only when the implementing statute expressly incorporates Part 2, the  language cannot be read to implement a stay independent of Part 2.

I think that’s probably it for the new stuff.

One thing really jumped out at me.  Did you note my reference to “possible assertions”?  The court began its analysis: “It is unclear how subdivision (d) purports to address the narrow question of whether an automatic stay comes into effect upon the perfecting of an appeal.  If the argument is that . . . “  If the argument is?  The court was confused what the appellant’s argument was even after hearing oral argument!

Reminder of an old rule: self-executing judgments are not automatically stayed (and supersedeas is usually inappropriate, too).  Since failure to tender payment for the minority’s shares would result in a judgment of dissolution without further action by the court, it is self-executing, and thus not stayed.

Another reminder of an old rule: apply for a stay in the trial court before petitioning for supersedeas.  Moving on to its discretionary power to issue supersedeas, the court cites appellant’s failure to seek a stay from the trial court as grounds for denying the petition, which ought to serve as an important reminder to appellants that the court of appeal takes this prerequisite seriously:

An application for a stay of a judgment should, wherever possible, be made first in the superior court. [Citation.] The reason is self-evident but it bears repeating.  “A trial court’s familiarity with the evolving circumstances of a case normally constitutes it the appropriate forum to weigh the relative hardships on the parties, including the likelihood that substantial questions will be raised on appeal, and its refusal to grant or to continue an injunction during appeal is entitled to great weight.” [Citation.]

Appellant said it did not apply for a stay in the trial court because it did not believe it had any remedy available to it there (remember that Code of Civil Procedure section 918 would not apply).  However, Since the trial court’s preliminary decree had specifically allowed that the payment date could be postponed “for good cause,” the court of appeal holds that relief was at least theoretically available in the trial court.  Thus, the court denies the petition “on the narrow ground that the [petitioners] should have sought relief in the superior court first.”

Make sure you provide an adequate record when you are seeking supersedeas.  Petitions for supersedeas are often filed prior to preparation of the record on appeal, so the petitioner is responsible for submitting documents to the court of appeal sufficient to decide the petition.  (Cal. Rules of Court, rule 8.112(a)(4)(B)(iv).)  Though appellants argued that it would raise a substantial question on appeal regarding the propriety of the appraisal procedure, it did not even submit its own papers opposing the motion to confirm the valuation.  Their failure to do so could only emphasize that the superior court, because of its familiarity with the case, was better suited to first entertain a request for a stay.

By the way, the case is very interesting reading on the subject of involuntary dissolution.

SCOTUS granted cert Friday afternoon, so there is sure to be another burst of blog coverage about the case.  If you want to get up to speed while saving yourself some clicks, go straight to this synopsis by newly minted California lawyer “Gabriel Malor” (a pseudonym, for reasons he explains here).  (Don’t be misled by the “moronlogger” label in his sidebar.  He [assuming "Gabriel" is really a "he"] frequently provides very good, concise coverage of major legal developments at his blog, Gabriel Malor.)

“Dominance and submission” at appellate oral argument is one of the areas taken up by UNLV law professor Michael Higdon in his forthcoming Kansas Law Review article, available now at SSRN: Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience. From the abstract:

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person’s facial expressivity, and even such things as a person’s posture and head position. Furthermore, social science research reveals that both these and other nonverbal cues can greatly impact the perceived credibility and persuasiveness of a speaker. Not only that, but in many instances, listeners tend to place even more reliance on what a speaker is saying nonverbally than the actual substance of the speaker’s presentation. Given that attorneys should seek to maximize their persuasive potential during oral argument, knowledge of this research and these various principles is essential. Section III of my article explores this research.

Of course, what makes nonverbal persuasion somewhat different for oral advocates comes from the fact that the attorney is directing his argument not to a jury, but to a judge. As my article details, one of the ways a speaker nonverbally increases his ability to persuade is by employing nonverbal cues that enhance the speaker’s perceived dominance. When appearing before a judge, however, the attorney must keep in mind that 1) it is the judge who is most dominant and 2) the judge expects nonverbal cues from the attorney that the attorney understands this hierarchy. Again using social science research, Section IV of my article explores this balancing act between dominance and submission and offers concrete advice on how oral advocates can navigate that somewhat thorny issue.

If you ever feel like testing out this theory of dominance and submission, just interrupt one of the judges while he or she is speaking.  You’ll usually learn who’s dominant pretty damn fast.

A smart lawyer, of course, would not rely on age alone.  The lawyer would point to some changed circumstance since the time the case was decided, such as changes in statutes or case law that the older decision relied on.  Nonetheless, I feel a little better having Mehr at my disposal.

Here’s the full paragraph from the case:

Although the California Supreme Court is free to overrule its own prior decisions, the doctrine of stare decisis compels lower court tribunals to follow the Supreme Court whatever reason the intermediate tribunals might have for not wishing to do so. [Citations.]  There is no exception for Supreme Court cases of ancient vintage.

Speaking of cases of ancient vintage, they seem to crop up a lot in the area of stays and supersedeas pending appeal.  This strikes me as an odd place for old cases to dominate, in light of the intervening overhaul of the relevant statutes.

If anyone has an explanation, theory, or even a SWAG** as to why old cases dominate in this area — or who, perhaps, wishes to point out that my factual premise is wrong — please leave a comment on this post. (**SWAG = Scientific Wild-Ass Guess – a term I picked up while studying engineering.)

Termo and Angus Development Corporation were co-petitioners in the administrative writ proceedings.  The trial court denied the writ.  Termo filed its notice of appeal from the judgment on the 59th day following service of notice of entry of judgment — just one day prior to the jurisdictional deadline of 60 days following mailing of notice of entry of judgment.  (See rule 8.104(a)(2), Cal. Rules of Court)  Angus filed its notice of appeal from the same judgment two days later — 61 days following mailing of notice of entry of judgment.  Respondent Hunt Petroleum (AEC), Inc., joined by respondent Director of Conservation Bridgett Luther, moved to dismiss Angus’s appeal on the basis that it was untimely filed.

The applicable rule** states: “If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal.” (** The court decided the case on the basis of former rule 8.104(e)(1) as in effect at the time the appeals were taken, but the wording of current rule 8.108(f)(1) is identical, as is the “Cross-appeal” heading noted by the court, and thus the result should be the same under the current rule.)

Respondents contended the rule applies only to cross-appeals and to parties adverse to the first appellant, but simple statutory definitions allowed the court to make short shrift of those arguments:

Hunt contends that California Rules of Court, rule 8.108(e)(1) is inapplicable, for two reasons. First, Hunt says the rule applies only to cross-appeals and Angus did not file a cross-appeal. Second, Hunt asserts that the rule applies only when the party seeking to utilize the 20-day extension period is adverse to the first party to file an appeal. We disagree.

Although the topic heading to California Rules of Court, rule 8.108(e) reads “Cross-appeal,” as Angus points out, “[b]y definition, a cross-appeal is any appeal filed after the first appeal [citation], and [the] rule . . . does not differentiate between cross-appeals which are protective and those which are independent.” (Life v. County of Los Angeles (1990) 218 Cal.App.3d 1287, 1297- 1298, fn. omitted.) Moreover, “[t]he usual rules of statutory construction are applicable to the interpretation of the California Rules of Court. [Citation.]” (Id. at p. 1296.) “‘“When statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.” [Citation.]’ [Citation.] Under the guise of construction, the court will not rewrite a law and will not give the words an effect different from the plain and direct import of the terms used. [Citation.]” (Ibid.) Here, the text of rule 8.108(e)(1) contains no limitation of the type asserted by Hunt. It requires neither that an appeal be denominated a “cross-appeal” nor that the second party to file an appeal be adverse to the first party to do so, in order for the 20-day extension period to apply.

In this case, Termo filed a timely appeal from a judgment and an order and, two days thereafter, Angus filed an appeal from the same judgment and order. The appeal of Angus is timely filed under California Rules of Court, rule 8.108(e)(1). The motion to dismiss is denied.

Appellate practitioners already know not to turn away a client just because more than 60 days have elapsed since the notice of entry of judgment was mailed and the client has not yet appealed, because post-trial motions can extend the time to appeal.  (See rule 8.208(b)-(e).)  Make sure you don’t overlook this interpretation of rule 8.108(f)(1), either.

My thanks to Long Beach business litigator Charles Hokanson, who alerted me to this important case, knowing that I was on hiatus when it was published.  Nice to know at least one of you guys is looking out for me!

There is another aspect to the media coverage that I did not give much thought to, and that is the way that the media painted the materials as sexually graphic and/or obscene.  Considering the mischievousness that is usually attributed to Judge Kozinski, I figured that would be water off a duck’s back.  And while it might have been just that for Judge Kozinski, a long-time critic of the Los Angeles Times isn’t taking it so lightly.

Blogger Patterico blasts the Times’s coverage of the Kozinski incident in his round-up of 2008 L.A. Times reporting at Patterico’s Pontifications.  Among his findings is that the source for the article is a man with a long-running feud with Judge Kozisinski.  And to give you an idea of his post, here’s what Patterico describes as one distortion:

The paper also referred to “themes of defecation and urination” — but vastly understated the humorous context of any such themes. Rather than graphic depictions of bodily functions, material with themes of urination turned out to be stuff like this:

Patterico appears to come at the issue as much from the Right as the Times does from the Left, and I didn’t follow all of his links, so I don’t know if his own critique is fair. But anyone who wants to give Judge K a fair shake should probably look at Patterico’s post, which includes many links to prior coverage.  (That link leads to a very long post — you can find the part about Judge Kozinski by searching for his name or scrolling down until you see his picture.)

I hope you all have a wonderful Christmas, a fun New Year’s celebration, and a fantastic 2009.

By the way, the announcement also includes the news that the court’s L.A. office will also start closing for lunch between noon and 1 p.m. starting Monday, December 15, 2008.

As for an answer to the question itself, this looks like a pretty darn good place to start.

My work schedule remains light as I continue to struggle through whatever crud I have.  Honestly, I thought I’d be over this by now, but the duration of this energy-sapping malady is going on four weeks!  Thanksgiving Day reminds me, however, that I should grateful my illness amounts to nothing more than a severe inconvenience. 

I haven’t been looking at the courts’ output for the last month or so, so if there’s anything of appellate interest that you think I should write about, email me with the case information and I’ll try to get to it. I am hopeful that I will resume posting next week.

 I’ve been able to work only on those projects demanding my immediate attention.  Since my blog can’t be dismissed for failure to post, while my cases can be dismissed for failure to file, my limited hours of coherence each day have been devoted to my cases.

I finally feel like I’m on the mend, and hopefully, I’ll be back up to speed next week.

And don’t let this stop you from sending me new cases!

One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts. Appellate courts are not only responsible for trying to reach the correct result in the cases on appeal, but their rulings often create precedents that will govern other cases that don’t even exist yet. Thus, an appellate lawyer must be cognizant not only of how existing precedent will affect an appellate court’s view of a newly filed appeal, but also about how the precedent created in the course of deciding the new case will affect the future direction of the law.  

Not every appeal has such an issue.  If all appeals did, you wouldn’t see so few decisions published.  But this is a question that must be part of every case evaluation and, if such an issue is present, the question of “what if” must be anticipated and answered before it is asked.

At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought.

Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four justices in the division are on the bench, and Justice Gilbert will announce with each case called which of the four justices are on the three-justice panel for that case. One appellant’s counsel took the podium and asked if Justice Gilbert could repeat which of the three justices were on the panel. After repeating the names, Justice Gilbert asked the attorney how she was going to do anything different now that she knew. It seemed like a mischievous question.

Wanting to know who’s on your panel, though, isn’t all that bizarre a request, especially if you’ve become familiar (or at least think you have) with the idiosyncrasies of each justice. Everyone’s heard experienced (and sometimes not-so-experienced) attorneys offer such sage wisdom as “If you draw Justice Razzamatazz, remember that he’s still bitter that the Supreme Court reversed him in Folder v. Screen, so he’s susceptible to arguments that situations shouldn’t be be governed by Folder.” True or not, attorneys act on such “revelations.” (One of the other Justices even quipped in response to Justice Gilbert’s question that if swing Justice Kennedy were on the panel, he’s the only justice the lawyer would have bothered to address.)

In fact, Justice Gilbert may have inadvertently been on to something. A while back, Tom Caso highlighted a study noting that certain substantive areas of the law draw more opinions from some judges more than others. In the words of the author “opinion specialization [is an] unmistakable part of every day judicial practice.” Tom took note of the practical implications:

If true, this suggests a more focused approach for the federal appellate lawyer. One of the difficulties for the appellate practitioner is not knowing the audience for the brief. If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind. This population of potential opinion writers is still larger than the ultimate panel that will hear the case. Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.

I think a lot of lawyers put too much stock in what they think they know of a judge’s biases. Most of the time a lawyer expresses a negative opinion about the judge, I find it is due to sour grapes over a loss.

However, a judge’s legal approach to things is certainly a fair factor to take into account. For instance, it’s probably not wise to rely on the aforementioned “Justice Razzamatazz’s” purported “bitterness,” but it strikes me as practical to look at his reasoning in the Folder case to see if you can craft an argument that is more likely to persuade him.

Tri Counties asserted that the the judge should be disqualified for conducting an independent investigation into a factual issue relevant to class certification.  It learned of the investigation from the trial court’s tentative ruling in the class certification motion and, in a supplemental memorandum, urged it as a ground to deny certification.  When the trial court certified the class, Tri Counties sought appellate review of the certification order by petitioning for a writ of mandate, citing the improper investigation as a ground to grant the petition, but did not seek the trial judge’s disualification.  Only after that petition was denied did Tri Counties submit its 170.3 statement of objection, which the trial court struck as untimely.  Tri Counties then filed a writ petition challenging that order.

Tri Counties contended that the stay issued in connection with the first writ petition prevented it from filing its statement of objection until the conclusion of that proceeding.  The court notes, however, that the stay did not take effect until more than three moths after Tri Counties became aware of the improper investigation, leaving it plenty of time to challenge the judge.

The second reason the court gave was more interesting.  It holds that proceedings regarding the qualification of a judge are distinct from the ordinary proceedings, and the stay affects only the latter:

Second, although unnecessary to our conclusion that the statement of objection was untimely, it is our view that petitioner could have filed a statement of objection even while the stay was in effect.  Our general stay of proceedings was obviously directed to the underlying proceedings between the parties to the action (i.e., to the litigation itself), not to questions of the judge’s qualification to preside over those proceedings.  A judge’s qualification to preside as judge in a particular case is foundational to, and hence distinct from, the ordinary proceedings between the parties that would be tried or heard by the judge.  (See § 170.5, subd. (f).)  Because of this basic distinction between a judge’s qualification and the underlying litigation, we do not believe that our stay could reasonably be understood as barring petitioner from promptly filing a statement of objection in the trial court.  We note further that disqualification of the trial judge was not raised in the writ of mandate petition challenging the class certification order, thus the filing of a statement of objection to pursue disqualification would not have interfered with or affected our appellate review of that order.

This is an interesting and important distinction.  It’s also quite interesting that the court went out of its way to discuss it, since it was unnecessary once it found Tri Counties had delayed too long even before the stay went into effect.

Modern communication and the California Rules of Court collide in Citizens for Civic Accountability v. Town of Danville, case no. A121899 (1st Dist. Oct. 27, 2008), and the winner is . . . the rules! At issue: whether the e-mailing of a notice that a judgment has been filed, with a link to access a copy of the judgment, triggers the deadline to appeal under rule 8.104(a), California Rules of Court, which provides that a 60-day deadline to appeal is triggered when the clerk “mails” a notice of entry of judgment or a file-stamped copy of the judgment.

The trial court designated the case complex litigation and ordered compliance with the court’s Electronic Case Filing Standing Order, which provided that orders filed by the court would be served electronically only, either by e-mail or through an electronic filing service provider (in this case, LexisNexis File & Serve). The order granting in part and denying in part the petition for writ of mandate was served as follows:

On April 1, 2008, LexisNexis File & Serve sent the parties a message by electronic transmission (an e-mail) stating, “You are being served documents that have been electronically submitted in [Citizens for Public Accountability v. Town of Danville] through LexisNexis File & Serve.” The e-mail identified the document as a Judgment on Petition for Writ of Mandate, and stated that it had been authorized for filing on April 1, 2008. To view the document, the parties had to visit a LexisNexis File & Serve website, sign in, and open a document file. The document so accessed bore an “electronically filed” file stamp dated April 1, 2008.

Respondents moved to dismiss the appeal on the ground that the notice of appeal was filed more than 60 days after that electronic service. The court of appeal denies he motion, holding that “the 60-day appeal period in California Rules of Court, rule 8.104(a)(1) is triggered only by the mailing of a judgment by the United States Postal Service.” (Emphasis added.) Keys to this conclusion: resolution of ambiguities in the rules should be construed to preserve the right to appeal, statutory distinctions between mailing and other forms of service indicate that “mail” means the U.S. Postal Service.

Mixed bags create competing incentives. Here, one incentive got the best of Satchmed.

UWMC complied with the judgment by offering the 22 offices to Satchmed, which decided to purchase them. But those other 12 units. . . well, Satchmed just couldn’t let go. And those guys at Satchmed must have thought, “Hey, if you think about it, we won on 22 of 34 units, so aren’t we the prevailing party?” So Satchmed appealed, challenging those portions of the judgment regarding the 12 units and the prevailing party determination.

Under the established doctrine that a party’s voluntary acceptance of the benefits of a judgment — or even a portion of them — precludes an appeal by that party, Satchmed’s appeal is dismissed on the ground that it waived its right to appeal by purchasing the 22 units. Satchmed claimed the doctrine did not apply because of two equally established equitable exceptions. The court not only rejected the arguments, but noted that Satchmed’s conduct was manipulative.

First, Satchmed claimed that its acceptance of the benefits was compelled, rather than voluntary, because it risked losing its right to purchase the 22 units if it appealed the judgment. After noting that Satchmed could have appealed “without fear that its right to accept UWMC’s offer would evaporate by the simple act of filing” because matters relating to enforcement of the judgment would have been automatically stayed by the appeal, the court points out the lack of any real compulsion:

The judgment did not put Satchmed at risk of losing any property it already owned. Furthermore, Satchmed was not at risk of forfeiting monies to which it was entitled by statute if it chose to prosecute an appeal. Satchmed just wanted to aggrandize its award without risk. It simply had to choose whether it wanted to file an appeal in pursuit of an even greater award than the judgment provided to it, which would entail risking a reversal of the favorable portion of the judgment, or whether it wanted to simply accept the benefit of the favorable portion of the judgment, and thereby waive the right to appeal from the unfavorable portions. Having to make a choice of this nature does not make the chosen avenue involuntary.

Second, Satchmed contended the judgment was severable, but the court find that the only facts that Satchmed relied on were created by it after the judgment, and points out that a party may not make a nonseverable judgment severable by its post-judgment actions:

[T]he portions of the judgment pertaining to the 12 leased units and the prevailing party status are not severable. Satchmed attempts to use clever timing to convert a nonseverable judgment into a severable one. We look here at the judgment at the time it was entered, before any party appealed therefrom. At that point in time, it is clear that the judgment was not severable. A ruling pertaining to the 12 leased units easily could have affected the 22 owned units, and vice versa. But Satchmed seized the portion of the judgment beneficial to itself, and took title to the 22 owned units. It then said that no ruling on the 12 leased units could possibly affect the status of the 22 owned units. In other words, it had then put the 22 owned units beyond the reach of UWMC’s attack and beyond the purview of this court. Satchmed’s claim that the judgment was then severable is essentially a claim that the judgment had become severable because Satchmed had made it so. It does not work that way. Satchmed cannot have its cake and eat it too. Having accepted the benefits of the portion of the judgment making title to the 22 owned units available to it, it cannot now attack the portion of the judgment making title to the 12 leased units unavailable to it.

In short: a judgment is either severable when entered or not. One cannot convert a severable judgment into a severable one.

Are you tempted by the juicy part of a judgment, but tempted to appeal the rest? Think it over carefully before you decide what to do, and especially think twice about maneuvering to make the facts fit within an exception to the “acceptance equals waiver” rule. It won’t pay off.

Well, a young blog, at least, if not brand spanking new. The California Constitution was launched in August by Howard Rice partner Steve Mayer. Good luck!

Hat tip: California Punitive Damages.

Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal. He — and in this case, I’m referring to a trial lawyer that specializes in some substantive area of the law — thinks to himself:

“This case needs a specialist.”

The trial lawyer who says that rarely means an appellate specialist. Instead, the ace employment lawyer (to use just one example) thinks, “This employment case needs an employment lawyer like me on appeal, I can’t pass it off to an appellate lawyer.” Let’s take a look at that assumption.

Does the Case Require a Specialist?

First, let me make clear that I use the term “specialist” throughout this post in the generic sense. That is, I use it not to refer to someone who is certified as a specialist by her state bar, but to refer to someone who devotes most of their practice to a certain area of the law.*

Let’s assume you’ve got a construction case handled by a construction law litigator, and now it’s time for the appeal. The lawyer who fits the type I’m describing thinks that he’s too indispensable to the appeal to hand it off to an appellate lawyer.

He may be right. (Another thing you may not have expected me to write in this series.) He may be almost indispensable in a particular case. But does that mean he should handle the appeal himself?

Probably not. Specialized knowledge of the substantive law can certainly have its advantages on appeal. That’s why a smart appellate lawyer consults with the trial attorney in any case. But specialization can breed the same sort of tunnel vision as that bred by an intimate familiarity with the case: namely, an inability to let go of (or even recognize) weak arguments, a failure to recognize good ones, and keeping too many arguments. (See Part 3 of this series for more on those problems.)

How could a specialist confuse good arguments with bad ones? Because he fails to appreciate the differences between trial practice and appellate review. Great trial arguments based on your version of the facts won’t be worth much (if anything) if the jury didn’t ultimately agree with your version of the facts. Those arguments may have seemed awfully compelling presented to a jury, and the trouble is that the trial lawyer (and especially his client) may be so aghast at the jury’s refusal to agree with his set of facts that he refuses to let the argument go on appeal.

The Client Perspective

Clients hunger for specialists. (If you don’t believe me, believe this guy.) The sad part is, the typical client’s hunger for a specialist will usually lead the client to assume that the specialist he hired for his case in employment law, school law, personal injury law, construction law — you get the picture — is the right attorney to take that case all the way to the United States Supreme Court.

It’s also possible that the client regards a long-time attorney client relationship with his law firm as a second, and equally important, form of specialization. A client that has had all its legal work, from regulatory compliance to the occasional (or not so occasional) lawsuit, handled by the same lawyer or firm for the last decade or more may view the trial lawyer (and the trial firm) as “specialists” in the client’s needs, regardless of the substantive area of the law at issue. An individual client whose solo lawyer has likewise addressed his needs over the years — wrote his will, handled his divorce, represented him in that drunk driving case, for example — may have the same mindset.

The “Last of the Generalists”

Both lawyers and their clients who are enthralled by the idea of having a specialist handle the appeal may tend to think in terms of the wrong specialties. It is not specialization in the client or in the substantive area of the law that usually matters most. It is the knowledge of appellate practice that can make the difference on appeal.

What does the client (and his or its lawyer) really need to consider? I think the answer, or at least a good chunk of it, was well expressed several months ago by D. Todd Smith of the Texas Appellate Law Blog. Writing on the related issue of whether in-house counsel should stick with big firms for their appeals, Todd wrote:

Appellate lawyers are perhaps the last of the generalists. Although appellate practice has gained notoriety as a specialty, it focuses less on the substantive law than on the lawyer’s research and writing ability, knowledge of appellate procedure, and familiarity with the court hearing the case. Because appeals are limited to the trial record, knowledge of the client’s business and history are not as important as the ability to guide the client through the appellate process with the goal for that specific case in mind.

I love that expression: “the last of the generalists.” Though it is not, of course, true in a technical sense — especially in smaller towns — I think it captures where appellate lawyers fit into a legal world increasingly dominated by specialists in various substantive areas of the law. Whether a client’s case was handled by a specialist in dog bites, toxic torts, automobile accidents, tax, employment, malpractice, wills and estates, business litigation, or any of the myriad of other specialties, the appellate lawyer is ready to tackle it.

Try Working Together

For those lawyers and clients who just can’t bear to “hand the case off” to a new lawyer for the appeal, there is always the option of working with the appellate lawyer. Shared work arrangements can be customized to a given case. Increased expenses to the client may be surprisingly nominal, since the typical appellate lawyer usually confers to some degree with the trial lawyer in any event.

* NOTE: I provide the above definition of “specialist” because my own jurisdiction is quite picky about the term. The last I checked, a California lawyer may not refer to himself as a “specialist” unless he has been certified as a specialist by the state bar. That rule applies, at least, to areas in which the bar certifies specialists; I’m not sure whether it applies if the bar does not offer certification in one’s “specialty.” Hence, my generic use of the term in this post.

The last of these variables is what helps the appellant overcome this highly deferential standard of review and have the default judgment against it lifted in Fasuyi v. Permatetex, Inc. case no. A117760 (1st Dist. Oct. 15, 2008).  Permatex made a motion under Code of Civil Procedure section 473 to vacate the default judgment against it and appealed from the order denying relief.  The court of appeal tells us at the outset that the “abuse of discretion” standard applicable here may not be quite as deferential as you would expect (footnote omitted): 

The law favors resolution of cases on their merits, and because it does, any doubts about whether Code of Civil Procedure section 473 relief should be granted “must be resolved in favor of the party seeking relief from default [citations]. Therefore, a trial court denying relief is scrutinized more carefully than an order permitting trial on the merits. [Citations.]” (Rappleyea v. Campbell(1994) 8 Cal.4th 975, 980 (Rappleyea).) Justice Mosk began Rappleyea with a succinct statement of the question before the Supreme Court and its answer: “The question is whether a default must be set aside and a default judgment reversed on the ground of abuse of discretion. We conclude that they must be.” (8 Cal.4th at p. 978.) The question before us is the same. And so is our answer.

There are two dichotomies here, one clearly defined, one not.  Orders denying 473 relief will be “scrutinized more carefully” than orders granting relief.  That is clear-cut.  What isn’t so clear is what “scrutinized more carefully” actually means while remaining within the “abuse of discretion” standard.” 

In any event, the case is yet another reminder that “abuse of discretion” may have a particularized meaning or application in your case.  And if you happen to be requesting a default judgment any time soon, I suggest you read this case for some of the pitfalls and an exposition on the gatekeeping role of the trial court.

“Envision an appeal as the freeway between Fresno and Los Angeles, with Fresno being the filing of the notice of appeal and Los Angeles being a decision on the merits,” he said. “Now, think of each exit on that stretch of freeway as an opportunity for the court not to reach the merits. The court would prefer to take one of those exits rather than reach Los Angeles, there are an awful lot of exits, and it’s going to check each one as it goes by to see if the exit provides an opportunity to get off the freeway presents.”  Hence, his nickname for issues that can prevent a decision on the merits: “freeway issues.”

Are there freeway issues lurking in your appeal?  Be ready to address them!   Because a smart respondent’s lawyer is going to look for them.  (I will go through some of the freeway issues in a future post.)

Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal.  He thinks to himself:

“No one knows the case better than I do.”

Who could argue with that?  The trial lawyer may have spent hundreds or thousands of hours on the case over several years.  Met every witness personally and attended every deposition.  Pored through every discovery response, every document, every exhibit and every transcript.  Several times.

And yet . . . I still think it unwise, in most circumstances, for the trial lawyer to handle the appeal.  In fact, I think reliance on one’s own familiarity with the case is a particularly dangerous reason to remain counsel on appeal.  Because when the trial lawyer says, “No one knows the case better than I do,” what he’s really saying, usually without knowing it, is:

“No one knows the case from my perspective better than I do.”

A trial lawyer’s failure to include the emphasized language in his thought process indicates he’s not looking at the case objectively.  This is dangerous for at least three reasons.

First, the trial attorney (or client) may be unwilling to let go of bad arguments. Lawyers, but especially clients, can become so wrapped up in a bad argument because it has been the centerpiece of their case for years (indeed, this can often sink prospects on appeal).  Sometime, emotional attachment to the argument derives from its very nature, such as a claim of fraud or inequitable conduct against a party despised by the other.  Being out to “get” someone is a terrible reason to take your case up on appeal.  And bad arguments may even be frivolous ones, subjecting you to (admittedly rare) sanctions for a frivolous appeal.

Second, the resulting corollary: the trial lawyer misses the good arguments.  Especially easy to miss are new arguments that might be raised notwithstanding the general rule that new arguments cannot be raised on appeal.

Third, the trial lawyer keeps too many arguments.  Raising 47 points of error is not usually a successful strategy.  If the KISS principle (Keep It Simple, Stupid) didn’t already exist, it would have been coined for appeals.  Of course some cases are complicated by nature, making simplification on appeal challenging, so not every case can be reduced to “simple.” But it should be reduced to the simplest possible presentation.

A fresh, objective look at the case will allow appellate counsel to clear out the deadwood and focus the appeal on the best arguments. This is because the appellate lawyer’s perspective is — initially, at least — not much different than that of the appellate court itself.  That view of the case is uncluttered by knowledge of written discovery or deposition testimony that never made it into the record (though of course, the appellate lawyer should look at excluded evidence to see if exclusion was prejudicial), or biases for or against witnesses, parties, or the judge.

Does this fresh look at the case really have to be undertaken by an appellate lawyer?  As one reader pointed out: “I think the best argument for a specialized appellate lawyer is that he or she takes a fresh look at the case and issues, but that is hardly the exclusive domain of appellate specialists.”  The suggestion is that the trial attorney can readily handle the appeal as long as he has another attorney, appellate practitioner or not, look at the case.

I think it is important that the lawyer taking the fresh look at the case be an appellate lawyer.  First, if the analysis by the appellate lawyer convinces the trial lawyer that it is best to pass the case to an appellate lawyer for the appeal, then part of the appellate work — the initial review — is already done.  But even where the trial lawyer is virtually certain he will handle the appeal himself, review by an appellate lawyer is best because the appellate lawyer will look at the case through an appellate lens, giving the trial lawyer insights he may not have gained from another trial lawyer.

Bottom line: even where a trial attorney intends to handle the appeal himself, a case going up on appeal needs a fresh look.  That can be by the original trial attorney, a trial attorney colleague, or appellate counsel.  But the trial attorney is usually best served by having it done by appellate counsel.

Such is the case with White v. Mayflower Transit, case no. 07-55528 (9th Cir. Sept. 12, 2008), in which the court writes that the pro se appellant contended that the district court lacked removal jurisdiction over the case.  But they don’t explain the substance of the appellant’s argument.  They merely explain how the facts of the case demonstrate the applicability of a federal statute that grants exclusive jurisdiction to the federal courts.  Pretty cut-and-dried.

Why not say what the appellant’s argument was?  Given the fact he was pro se and the short, plain way in which the court establishes the existence of removal jurisdiction, I get the sense that we were robbed of a very interesting read.  Shouldn’t the court at least mention what the argument was, even if just to dismiss it as ridiculous and thereby reduce the chance that it is raised by a subsequent litigant?

I got curious enough that I looked up the case on Westlaw.  The appellant’s brief wasn’t available, but the appellee’s brief was, and according to appellee, the appellant’s arguments were “difficult to decipher.”  Thus the appellee, like the court, skipped right over the substance of appellant’s argument and presented an affirmative case for jurisdiction without trying to refute whatever it was appellant was trying to say.

In the district court, Vega challenged two conditions on the supervised release portion of his sentence.  On appeal, however, he argued that a third condition of his supervised release was also error.

You might think he’d be out of luck entirely on that third condition, the general rule being that an argument cannot be made for the first time on appeal  But he’s not.

Though Vega did not challenge the third condition in the district court, the effect of that failure is not to foreclose his argument in the court of appeals, but merely to subject his claim to a standard of review more difficult for him to overcome.  That is, for the two conditions Vega did challenge in the district court, the court of appeals evaluates the district court’s imposition of the conditions under an abuse of discretion standard, while requiring “plain error” for the condition left unchallenged in the district court.

There’s a larger lesson here.  Notwithstanding the general rule that arguments raised for the first time on appeal will not be entertained by the appellate court, I think it pays for an appellant to be aggressive about raising such arguments — good ones, at least — wherever the rules suggest a way to get them in.  Don’t dismiss arguments out of hand just because they were not raised (or perhaps raised with less specificity) in the trial court.  Carefully look at the case law, and if there’s an argument to be made that the court should consider your “new” argument, go for it.

Critical to our review of any summary judgment is the moving party’s separate statement of undisputed facts. Gunn elected to proceed by way of an appellant’s appendix (Cal. Rules of Court, rule 8.124), in which he has included Mariners Church’s points and authorities and its attorney’s declaration to which various deposition pages and other pieces of documentary evidence, but not Mariners Church’s actual separate statement of undisputed facts. Gunn’s failure to provide a complete record arguably precludes him from meeting his appellate burden. [Citations.]

Gunn has, however, included his own separate statement in the appellant’s appendix, which appears to be in the form required by the court rules juxtaposing Mariners Church’s assertions of undisputed fact with Gunn’s responses thereto. (Cal. Rules of Court, rule 3.1350(d).) And Mariners Church does not suggest Gunn’s separate statement inaccurately represents its statement of undisputed facts. Accordingly, we will proceed on the merits based on Gunn’s separate statement and the evidence Mariners Church submitted.

I wonder how much of the court’s forgiveness was due to the fact that it affirmed anyway. I suspect most panels would be quite reluctant to reverse on a similar record.

The bottom line: don’t rely on the court’s largesse. Include a thorough record.

Such were the lawyers representing the appellants in Lazy Y Ranch Ltd. v. Behrens, case no. 07-35315 (9th Cir. Sept. 26, 2008).  Lazy Y sued, alleging a violation of equal protection, after its bids for grazing on state land were rejected in favor of other bidders.  The defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, arguing that the complaint failed to allege a violation of equal protection and, alternatively, that the defendants had qualified immunity.  Their motion to dismiss relied on extrinsic documents.  Lazy Y moved successfully to strike many of those documents, and prevailed against the motion to dismiss.  Defendants appealed from both the order denying the motion to dismiss and the order striking certain exhibits.

Taking up the question of jurisdiction under the collateral order doctrine, the court reasons:

We begin by briefly addressing Lazy Y’s suggestion that we lack appellate jurisdiction over this interlocutory appeal.  Lazy Y argues that (1) Defendants’ attacks on the order denying the motion to dismiss exceed the scope of the “collateral order” doctrine upon which they allege jurisdiction, and (2) the order granting Lazy Y’s motion to strike documents is unappealable under any doctrine. We disagree.

In general, a party is entitled only to a single appeal, to be “deferred until final judgment has been entered.” [Citation.] However, under the collateral order doctrine, a litigant may appeal from a “narrow class of decisions that do not terminate the litigation, but must, in the interest of achieving a healthy legal system, nonetheless be treated as final.” [Citation.] To be appealable under the collateral order doctrine, a district court decision must (1) be “conclusive,” (2) “resolve important questions completely separate from the merits,” and (3) “render such important questions effectively unreviewable on appeal from final judgment in the underlying action.” [Citation.]

Because qualified immunity is immunity from suit itself and not merely a defense to liability, orders denying qualified immunity may be immediately appealable under the collateral order doctrine, including orders denying a motion to dismiss. [Citation.] Such an order is reviewable to the extent that it raises an issue of law. [Citations.]

Here, contrary to Lazy Y’s suggestion, we do not construe Defendants’ appeal to depend on “their version of the facts.” Rather, Defendants argue that Lazy Y’s allegations of pretext and animus are irrelevant under Equal Protection law, because they have articulated legitimate reasons for rejecting Lazy Y’s bids. In other words, Defendants argue that their articulated purposes end the inquiry and mean that Lazy Y’s claims of actual improper motives fail to establish an Equal Protection violation. They also argue that Lazy Y brings “class of one” claims that are either incognizable or not clearly established in the context of public contracting. These are contentions of law. [Citation.]

Moreover, whether Defendants’ exhibits should have been considered is essentially a legal question, and the order granting the motion to strike was simply part of the Rule 12(b)(6) analysis, as the district court resolved that motion solely to establish the record for the motion to dismiss. [Citation.]

So, appellants got their day in the court of appeals.  Turns out to be for naught, however, as the court affirms.  But at least they had their shot.

In my first post in this series, I broke down lawyers’ reasons for not engaging appellate counsel into two broad categories: those related to ability and those related to economics. Today, we will examine a reason related to ability:

“It’s just litigation”, or “Hey, I’m a litigator, and appeals are litigation, so I can do it.“

Are appeals litigation?  Well, let’s see.  Adverse parties?  Check.  Legal and/or factual disputes?  Check.  Courtroom and judges?  Check.  Judgments?  Check.  Yeah, I’d say that appeals are litigation.

That said, they are a continuation of litigation, and with crossing the boundary from trial court to court of appeal, the parties and their attorneys enter a new realm.  That realm has multiple judges hearing the same case, no juries, no discovery, few motions, and an emphasis on persuasive writing that is rivaled in the trial court only on dispositive motions.

As I  noted in my first post, many lawyers are comfortable, and  quite able, on both sides of the divide.  Neither this post nor any other in the series is meant to deride the skills of trial lawyers.

But there are pitfalls that await the lawyer who assumes appellate practice is no different than trial practice.  Perhaps the biggest is the standard of review.

Pitfalls in the Standard of Review.

The trial lawyer entering the appellate landscape for the first time may have difficulty navigating through it.  That can result in wasting time (and, for the client, hourly fees) on useless activities or argument, even a failure to even recognize the burden he or she faces on appeal.

One such useless exercise in the court of appeal that happens with shocking regularity is to argue to the court as if the three justices are a jury: this witness is believable, this one is not; that evidence should be disregarded; the other side’s story makes no sense, etc.  How do I know this happens?  I’ve talked to a couple of appellate justices — not a large enough sample to be of statistical significance, admittedly — who told me this happens regularly. Not necessarily frequently, but regularly.

This approach betrays the lawyer’s lack of familiarity with the most fundamental brick in the appellate arsenal: the standard of review.  Which is why I was so stunned by the justices’ revelations, even though I have seen appellant’s briefs that didn’t even mention the standard of review.  (Occasionally, you might even see a court neglect to state it!)

Simply put, an appeal isn’t your second chance to try the case.  It’s merely an opportunity to convince the court of appeal that the trial court erred and that the error prejudiced your client.

Of course, the evidence in the trial court can come into play in the court of appeal, just in a different way (usually).  But even in cases of substantial evidence review — in which the court of appeal will reverse if there is no substantial evidence to support a finding required by the judgment — persuasion based on credibility is generally out of place.

What’s more, unfamiliarity with the standards of review on appeal might cause a lawyer to miss good arguments entirely.  An undue concentration on the evidence produced at trial may lead the trial attorney to miss important issues preserved for appeal on a less deferential standard of review, and thus presenting a greater chance of success on appeal.  Is there a legal issue you’ve missed because you are so wound up in the presentation of evidence at trial?  If so, you’ve missed an opportunity to obtain “de novo” review, under which the court gives no deference to the trial court — your best shot at success.  In fact, that legal issue may be hidden within a more deferential standard — whether the trial court abused its discretion, or whether substantial evidence supports the judgment, may in turn rely on a question of law subject to de novo review.

Simply put, the simplicity of the standard of review structure — de novo review, abuse of discretion, and substantial evidence — masks a lot of nuance not readily discernible to someone unfamiliar with appellate practice.  It’s far more than a “smell test”.  Indeed, parties regularly argue over the applicable standard, either because the nature of the issue is misleading or because the applicable standard for a given judgment has not been established (such as here, here, or here, for example).  If it were really simple all the time, would there be a book on the subject?

I haven’t discussed some other pitfalls, mostly for the sake of brevity (if you can call this post brief).  Perhaps I will give this particular reason for not engaging appellate counsel — “it’s just litigation” — a few more posts of its own.

Preferences.

Finally, the trial lawyer may find that he or she simply does not like the appellate process.  As I noted in my first post:

Some trial lawyers just plain don’t like doing appeals.  For some, it may be because appeals lack everything they like about litigation: frequent confrontation, lots of court appearances, sleuthing through discovery, and lots of twists and turns.  Appellate practice usually isn’t a hotbed of excitement.

If your strengths lie in frequent confrontation, then maybe apeals aren’t for you, either as a matter of preference or a matter of skill set.  (This is especially true if you don’t like spending time in the law library or writing, but I’ll address that preference in a future post.)

The Client’s Perspective.

The client consideration that parallels the lawyer’s belief that “it’s just litigation” is really an absence of consideration.  That is, many clients may see no difference at all between their trial court action and the appeal.  The client is only likely to note the differences if the lawyer points them out.  And if the lawyer doesn’t see them, the lawyer cannot point them out.  Under these circumstances, the only time many clients are likely to seek an appellate attorney is if the client is genuinely displeased with the trial lawyer’s services.

However, I think this situation is changing over time.  I suspect that clients, like all consumers, are becoming more and more knowledgeable all the time about the services they receive.  The inquiries I receive from lay readers of my blog tell me that clients are learning that there is a difference between trial work and appellate work.

Clients almost always want a specialist when one is available.  An employment discrimination plaintiff doesn’t seek a personal injury lawyer when a plaintiff’s employment lawyer is available.  Over time, I expect more and more clients will seek new representation on appeal, and won’t need their trial lawyers to put them on notice of the differences between trial and appellate work.  They will challenge their trial lawyers’ unspoken assumption that the trial lawyer is always the right person to handle the appeal.

(NOTE: To access all posts in this series to date, click here.  Finally, allow me to again solicit your participation.  If you’d like to offer a topic for a post in this series, leave your comment in this post or, preferably, in the post announcing this series.  And don’t hesitate to repeat a topic someone has already left.  That will tell me there is greater interest in that topic.)

Client parallel: unawareness of appellate specialization

Please let me know if you’re interested in a legal bloggers meeting at the state bar convention in monterey this week. 

We could have drinks at the Hyatt between, say, 5 and 7 on the 27th — the annual dinner & cabaret starts at 7 p.m. that evening — Saturday — and we could just flow into that event; or we could do Thursday AT the Opening Night reception, which starts at 5:45 . . . I’ve got the Cal Women Lawyers Annual Dinner at 7 p.m. 

What would be most convenient for everyone? 

Reply to Vickie Pynchon at vpynchon@settlenow.com or leave a comment on the [LinkedIn] Group discussion thread on the meetup. Thanks.

I realized why appellate lawyers at law firms are stereotypically labeled as the smartest lawyers at the firm. The fact that they can come to work, day in and day out, and spend hours thinking and writing at such a level makes them nothing less than brilliant, if you ask me.

I can’t figure out why, but that was my favorite part.

Actually, I think it’s a case of comparing apples to oranges.  I spent more than a decade litigating in trial courts, so I have a feel for both sides of the coin, and I think that whatever you like to do tends to be less mentally taxing than other things.

For example, one of the most mentally exhausting activities, in my experience, is listening to deposition or trial testimony.  Maybe that makes me odd, but trying to listen intently to every word, for hours on end, to make sure that a potentially significant disclosure doesn’t slip by used to leave me absolutely drained at the end of the day.

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By contrast, I can spend 12 straight hours in the library and emerge fresh as a daisy.  In a networking group I’m currently checking out, I jokingly tell people that on appeal, they want an egghead like me precisely because eggheads like me like spending all our time reading and writing.  And, as I point out here, some trial attorneys find appellate work just plain boring.

To each his own.

Hat tip: Texas Appellate Law Blog.

Well, it’s been four weeks since I promised a series of posts on this topic.  You were probably about to give up on me.

I started the first post, and it kept growing, and growing, and growing . . . clearly, some better way of organizing the topics was necessary.  And I’ve devoted substantial time to it.

How did I get to this point?  I started writing about what I figure is the number one reason lawyers don’t engage appellate counsel.  The trial lawyer thinks to himself:

“I can do it myself.”

Is that the top reason trial lawyers decide not to engage appellate counsel? I don’t know, but it certainly is a major one.  I think it is quite likely the number one reason, for it arises from, and indeed encompasses, many subsidiary reasons.

Which brings me back to the categorization of reasons lawyers and clients are reluctant to engage appellate counsel.  I think lawyers’ reeasons can be broken down into two main groups:

1. Ability reasons (the “I can do it myself” mindset).
2. Economic reasons.

I may come up with other categories as I write these posts, but for now, those are the two “biggies.”  Here are the reasons I have thus far identified in each category.

Ability Reasons.

Here are some of the thoughts that go through a trial lawyer’s head when deciding not to engage appellate counsel:

1. “Hey, I’m a litigator, and appeals are litigation, so I can do it.”
2. “No one knows this case better than I do.”
3. “This case requires a specialist in the law of  [the substantive field of the case, e.g. employment, civil rights, torts, etc.].”
4. “I can research and write as well as the next guy.”

Subsequent posts will take a closer look at these subsidiary concerns leading to the “I can do it myself” mindset.   For now, let’s take a look at that statement at a macro level.

Can a trial lawyer handle the appeal of his own case, or fight the appeal by the other party? Of course. Some of them, quite ably.

Weren’t expecting that, were you? But how can anyone deny that there are lawyers who quite capably handle a case at both the trial and appellate level? I know some and have worked with some in the past. They’re not mythical creatures.  In fact, one commenter, in response to my post soliciting ideas, wrote that extensive trial court experience is an asset: “My personal belief is that appeals to the intermediate courts are best handled by lawyers well versed in both appeals and trial court proceedings. Probably not what the audience of [The California Blog of Appeal] wants to hear.”

Well, I don’t know about my audience, but I don’t mind hearing that at all.  In fact, I tend to agree, and I suspect that this describes many full-time appellate practitioners.  I can’t be the only guy who got into this gig after a dozen years of trial court litigation.

But not everyone is up to it.  Some trial lawyers just plain don’t like doing appeals.  For some, it may be because appeals lack everything they like about litigation: frequent confrontation, lots of court appearances, sleuthing through discovery, and lots of twists and turns.  Appellate practice usually isn’t a hotbed of excitement.

There are other trial lawyers who avoid appeals because they know appeals do not play to their strengths, or they don’t feel they know enough about them.

Then there are those who think, “I can do it myself,” and either shouldn’t or can’t.

Economic Reasons.

Any trial lawyer may be somewhat nervous to recommend that a client engage another lawyer for the appeal.  Some thoughts that can run through the trial lawyer’s mind:

1. “I’m handling the case for a contingency fee, and an appellate lawyer won’t do that.”
2. “I’m rather slow right now.  I could use the fee generated by the appeal.”
3. “This is a good client.  What if the appellate lawyers takes him away permanently?”
4. “I think I might have screwed this case up.  What if the appellate lawyer tells the client?”

Again, I’ll go through these individually in subsequent posts. At a macro level, though, it’s worth noting that economic concerns are legitimate.  But a lawyer has to be careful not to let his own interests trump those of the client.

Clients’ Reasons.

Sometimes, the decision not to engage an appellate attorney is no doubt driven by the client, and may even be against the advice of the trial lawyer.  Reasons include:

1. “I can’t afford an appeal.”
2. “An appellate lawyer will just try to talk me out of making the argument I want to make.”
3. “Why should I pay a second lawyer?”
4. “The case is hopeless.  Why even try?”
5. “My lawyer won at trial.  Who better to fight my opponent’s appeal?”
6. “Even if I win the right to a retrial, that trial judge will just find some other way to screw me.”

Some of these are no more than parallels to the attorney’s reasons.  I will probably discuss those in the posts about the parallel attorney reasons.

One factor, however, tends to underlay all of these: the client has no idea how different an appeal is from the trial court proceedings.  The client may think he actually gets to retry the case in the court of appeal.

Future Posts.

Keep in mind that I developed most of these reasons by asking myself why I wouldn’t engage appellate counsel if I were a trial lawyer (or a client).  And I’m not sure I’ll be able to write posts about discrete reasons without overlap with other reasons.  Some overlap is unavoidable.  But I will try to stick to a single reason as the focus of each post.

Finally, allow me to again solicit your participation.  If you’d like to offer a topic for a post in this series, leave your comment in this post or, preferably, in the post announcing this series.  And don’t hesitate to repeat a topic someone has already left.  That will tell me there is greater interest in that topic.

(NOTE: To access all posts in this series to date, click here.)

Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal.  Subdivision (a)(2) of section 170.6 provides

A motion under this paragraph may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.  Notwithstanding paragraph (3), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so.  The motion shall be made within 60 days after the party or the party’s attorney has been notified of the assignment.

Since appellants frequently feel they were treated unfairly by the trial judge in the first instance, the ability to “paper the judge” after a reversal on appeal is a critically important consideration.  It may be the one thing that convinces an aggrieved party to appeal, when that party might otherwise have been resigned to accept an adverse judgment because the prospect of having to retry the case before the same judge the party thinks is an idiot is simply too daunting.

But you’ve got to be careful about when you count on it and when you don’t, as the real parties in interest learned in C.C. v. Superior Court, case no. G040580 (4th Dist. Sept. 11, 2008), a juvenile dependency proceeding in which, after succeeding on appeal by obtaining a reversal of a reunification order, real parties “papered the judge.”  Petitioner filed a petition for writ of mandate, and the court of appeal grants the petition.

The language allowing a peremptory challenge on remand was added in 1985 to avoid perceived bias against an appellant of a trial judge whose judgment or order had been reversed on appeal.  (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-576.)  But the statute applies only where the remand requires “a ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding.”  (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 424.)  It does not apply to the performance of a ministerial act.  (Stegs Investments v. Superior Court, supra, 233 Cal.App.3d at p. 576.)

The problem for real parties, however, is that the remand order required the trial court to perform only ministerial acts.  Those were: (1) to enter a new order denying reunification services and (2) setting a permanent plan selection hearing.  The court rejected the real parties’ argument that the subsequent hearing would require a reexamination of the same issues considered in the reunification hearing.

The real parties in interest claim, “the juvenile court in the present case will undoubtedly revisit the core determinations upon which this Court based its reversal,” meaning it will have to consider the strength of the bond between the children and the mother at the permanent plan selection hearing.  This claim is true, but the consideration of the parent-child bond at the permanent plan selection hearing is not for purposes of reunification; rather, it is to determine whether to avoid the termination of parental rights and select a different permanent plan.  (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)  This consideration will take place in a different legal context from the disposition hearing and will involve facts as they then exist.  On remand, however, the juvenile court was merely directed to enter an order denying reunification services and to set a permanent plan selection hearing.  The implementation of these directions will not constitute a reexamination of an issue of fact or a retrial of the dispositional issues. 

Thus, “[b]ecause the matter was not remanded for a reexamination of an issue of fact or a retrial of the dispositional issues, we grant the petition and direct that the case be returned to [the challenged judge].”

The same considerations should not apply in the typical civil trial, where past facts are what are at issue.  But any time that future consideration of an issue will depend on facts as they then exist, “papering the judge” is apparently not an option after remand.

The first thing to jump out at me from this year’s report (in my thus far rather hasty review): the median time statewide for civil appeals (from time of filing the notice of appeal to the time of disposition) was 432 days in 2006-2007.  That’s roughly 14 months.  And 90% of all civil appeals are disposed of within 680 days, or about 22 months.  These are statewide numbers.  Some districts are better than others.

I may be wrong, but I think there is a general impression among many clients (and perhaps some trial lawyers) that appeals usually take much, much longer.  Clients dissuaded from pursuing or fighting an appeal by what they think will be “years” of more legal wrangling should think twice.

Hat tip re the report: Ben Shatz, who clues you in to some other statistical tidbits.

Their front-page article, Law School Rankings Reviewed to Deter ‘Gaming,’ discusses the practice of some schools to admit lower-qualified candidates only to their part-time programs, where the qualifications of the students do not figure into the rankings by U.S. News & World Report. The potential impact on rankings resulting from fixing the loophole might create an incentive for schools to change their practices, with negative effects for students:

Counting part-timers would roil the law-school rankings, which have a big impact on where students apply and from where law firms hire. A number of law-school administrators interviewed about the potential change contend it could have another effect: narrowing a traditional pathway to law school for minorities and working professionals. Those groups often perform worse on the important Law School Admission Test, or LSAT, and schools could feel pressure to raise their admission thresholds.

A change in criteria would “catch the outliers but punish part-time programs that have existed forever and aren’t doing it to game the system,” says Ellen Rutt, an associate law-school dean at the University of Connecticut. If U.S. News makes the move, many schools with part-time programs would have a tough choice: Leave their admission standards for part-timers unchanged, which could hurt their rank, or raise the standards, likely shrinking the programs and cutting revenue.

My own school (University of the Pacific, McGeorge School of Law) had a robust evening program. Even though I was a full-time student, I grew familiar with the quality of the part-time students because many of my elective classes were taught in the evening (in order to make them available to the part-time students). If there was a significant difference in the amount or quality of classroom participation by students, I sure don’t remember it. (Of course, I have no idea if the part-time students at McGeorge were any “less-qualified” on paper than my full-time classmates.)

While I don’t think rankings are meaningless, I hardly think they are as important as many employers and applicants seem to think they are. It is distressing to me to see so much emphasis on a school’s ranking, especially when I read in the article about measures schools take specifically to improve their ranking.

If you’d like more detail about the article before you read it, read this post at WSJ Law Blog. Some of the commenters have very strong feelings about the magazine’s ranking system.

For an alternative ranking, see Brian Leiter’s Law School Rankings.

Against this backdrop, Alch v. Superior Court, case no. B203726 (2d Dist. Aug 14, 2008) presents a very interesting discussion of the standard as it introduces its decision reversing the trial court’s refusal to allow discovery (which is not, by the way, immediately appealable, and thus is found in this writ decision).

First, the backdrop of the case:

Television writers filed class action lawsuits against studios, networks, production companies and talent agencies, asserting an industry-wide pattern and practice of age discrimination. The writers served subpoenas on third parties, including the Writers Guild of America, seeking data on Writers Guild members from which they could prepare a statistical analysis to support their claims of age discrimination. A privacy notice was sent to 47,000 Writers Guild members, advising them of their right to object to disclosure of personal information on privacy grounds. Some 7,700 individuals filed objections. The writers moved to overrule the objections. The trial court sustained the objections in their entirety. The writers sought a writ directing the trial court to vacate its order and allow access to certain of the requested information, arguing the information was critical to proving their claims and privacy concerns were minimal. We grant the writ petition.

Before even reaching its analysis, the court of appeal explains why it is able to reverse despite the formidable obstacle usually presented by the abuse of discretion standard applicable to review of orders denying discovery:

We are well aware that a reviewing court may not substitute its opinion for that of the trial court if there is a basis, supported by the evidence, for the trial court’s ruling, and that we may set aside an order denying discovery only if there was no legal justification for the order. (Tien v. Superior Court (2006) 139 Cal.App.4th 528, 535.) We also recognize that the trial court was faced, to some extent, with a moving target: the information initially subpoenaed was more comprehensive – and considerably more sensitive on the privacy scale – than the information the writers requested in their motion to overrule the objections, and the latter, too, was more inclusive than the information ultimately sought when the writers asked for reconsideration. These differences, however, highlight the error in the trial court’s analysis. It used a broad brush to deny the writers access to all data about the objectors out of hand, and wholly failed to consider whether a more nuanced approach to the different categories of data would satisfy the balance that must be struck between privacy interests and a litigant’s need for discovery. (See Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 658 (Valley Bank) [considerations which will affect the exercise of the trial court’s discretion in evaluating privacy claims include the “‘ability of the court to make an alternative order which may grant partial disclosure’”; where possible, “‘courts should impose partial limitations rather than outright denial of discovery’”].)

In short, while the trial court purported to weigh the objectors’ privacy rights against the public interest in pursuing the litigation, it failed to follow the dictates of Valley Bank in doing so. In addition to failing to analyze the different categories of data requested, the court gave short shrift to “the public interest in pursuing [the] litigation.” Indeed, it erroneously stated that the writers, in their brief, had indicated “that they may still be able to put together a meaningful statistical study based upon information from non-objectors.” On the contrary, the writers submitted evidence that no meaningful statistical study could take place if data from the objectors were omitted from it. Under these circumstances, we can reach no other conclusion than that the trial court’s orders denying access to any and all data from the objectors were without legal justification.

(Footnotes omitted.)

I suspect, however, that few litigants will be able to take advantage of Alch in the court of appeal because the only immediate route for review of discovery orders is via writ petition. The odds are greater than 9 in 10 that your writ petition will be denied summarily without reaching the merits.

The real value of Alch will be to trial attorneys trying to convince the trial court in the first instance that denial of discovery would be an abuse of discretion. Because such orders are not immediately reviewable on appeal, there has always been a dearth of appellate discovery rulings for trial lawyers to cite when arguing a motion to compel or a motion for protective order. Alch’s application of Valley Bank may lead to greater uniformity in trial court decisions, or at least greater attention being paid to the “nuance” of the scope of information sought.

Hat tip: Cal Biz Lit.

Hat tip: the (new) legal writer.

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I always assume that all of the rules of procedure will be strictly construed against me, and that opposing counsel will be allowed to get away with murder. To me, it’s the smart way to practice: dot your I’s and cross your T’s.

In Whitehead v. Habig, case no. G037991 (4th Dist. May 28, 2008, ordered published June 5, 2008), the appellants had appealed a summary adjudication and default judgment on the remaining claims. In opposing the summary adjudication motion, the appellants never filed their own separate statement of undisputed and disputed material facts (Code Civ. Proc., § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(e)); they merely filed objections to the moving parties’ separate statement of material facts.  In noting that the objections did not satisfy the requirement for a separate statement, the court had a gem of a quote:

The separate statement is not merely a technical requirement, it is an indispensible part of the summary judgment or adjudication process. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for . . . summary judgment to determine quickly and efficiently whether material facts are disputed.” [Citation.]

The appellants’ failure to comply with the separate statement requirement in opposition is reason enough for the trial court to grant the summary adjudication motion.

Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? Over the years, I’ve heard various reasons advanced for this. Among them: lawyers see no need to hire new counsel for something they can do themselves, lawyers are afraid to lose the client forever to the appellate lawyer or his firm, lawyers and their clients are afraid that the appellate lawyer won’t know enough about the specialized area of law involved in the appeal, clients are too comfortable with the trial lawyer to switch, clients are fed up with bad experiences with their trial lawyer and do not want to experience the same frustration with an appellate attorney. Some lawyers may even be second-guessing themselves about how they handled the case in the trial court and thus may be concerned that a new lawyer would counsel the client that the trial lawyer screwed up.

I’m planning a series of posts to be spread out over several weeks (maybe longer) about why clients (and, probably even more so, their lawyers) are reluctant to engage appellate counsel for their appeal. I am not exploring the issue of why clients may not bother to appeal at all. Rather, I wil explore why, once a party is involved in an appeal, that party moves forward either with his trial lawyer as counsel on appeal or in pro per.

I would love to have your input on this project. If you have any objections to appellate lawyer representation that you would like me to write about, tell me about it in a comment on this post. Feel free to “second the motion” of other readers; I am more likely to write about objections that more people feel exist.

I would especially like to hear from: (1) trial lawyers who handle their own appeals; (2) appellate lawyers that encounter objections to retention; and (3) parties or former parties to lawsuits who either did not hire appellate counsel or had to have certain doubts removed before doing so. But feel free to offer ideas in the comments regardless of whether you fall into any of these categories.

(NOTE: To access all posts in this series to date, click on the link below called “On Reluctance to Engage Appellate Counsel.”)

First, the background. The issue under review was:

whether a prescribed jail term that constitutes a material provision of a plea agreement conferring as its chief benefit, a grant of probation in lieu of a prison sentence, may be modified by the trial court in the exercise of its authority to modify or revoke probation during the probationary period.

An obscure question? Not if you’re not a citizen, your 365 day jail term makes you eligible for deportation, and Homeland Security picks you up for deportation promptly upon your release from jail. When that happens, you ask the court to amend the judgment nunc pro tunc to require a jail term of only 360 days as a condition of probation. That 5-day decrease takes you out of eligibility for deportation.

The trial court decides it lacks jurisdiction to alter the jail term, the court of appeal reverses, and the People successfully seek review.

But before they decide the question, the Supremes ask for clarification – is the trial court’s order appealable? As you’d expect, defendant says yes, the attorney general says no, but with a twist. Though the AG contends the order is not appealable, he urges that the issue is so important that the court should decide it anyway by treating the appeal as a petition for habeas corpus. And the Supremes oblige.

There’s a second obstacle, though. Segura himself had been released from jail and deported already. The point appears moot. Again, though, the court decides not to let that stop its consideration of the issue:

Nonetheless, the question raised is a matter of public interest and is likely to recur in other cases at a time prior to a defendant’s deportation when the opportunity for review may be limited. [Citation.] Moreover, the parties dispute whether the Court of Appeal’s decision is consistent with, or distinguishable from, the decision in [citation]. Accordingly, for the guidance of courts in future cases presenting similar issues, we have exercised our inherent authority to retain the case for argument and the rendering of an opinion.

Lesson: Don’t let questionable jurisdiction stop you from appealing, especially when it comes to an order after a judgment of conviction. And if you can get that far, the Supreme Court seems more likely than a court of appeal to overlook something like mootness. After all, if the issue is important enough for it to review, there’s a decent chance the court wil find it important enough that mootness shouldn’t stand in the way.

Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — vote for a more liberal result in a case defined by ideology. The bottom line is that when the Court is divided 5-4 on issues where there are clear liberal and conservative positions, Justice Kennedy is always the swing vote.

Dean Chemerinsky never defines what constitutes an issued defined by “ideology.” I’m wondering . . . are there any that aren’t?

In his wrap up of the court’s year, I found this to be Chemerinsky’s most interesting observation:

[I]n some areas of criminal procedure — especially sentencing and the Confrontation Clauses — ideology does not predict outcomes. The conservatives on the Court, such as Justice Scalia, have taken the lead in these areas in expanding the rights of criminal defendants.

Maybe “law & order conservative” means something different than the sense with which it is usually used.

The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests.

Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School of Law dean and former Solicitor General Ken Starr; and Professor Douglas W. Kmiec, former United States Assistant Attorney General (OLC).

Hat tip: Crime & Federalism.

In Melbostad, the trial court granted defendant’s special motion to strike under California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) and entered an order dismissing the complaint “with prejudice.” It subsequently granted a motion for fees brought by one of the defendants, then entered a judgment that “recapitulated” the previous orders granting the special motion to strike and granting the motion for attorney fees.

Appellant challenged the fee award by appealing from this second “judgment” rather than from the order granting the fee motion.  Which is what brought the timeliness of the notice of appeal into play.  His notice of appeal was untimely as meadured from the order granting the fee motion, but timely as measured from the final “judgment.”  Apellant conceded that his time to appeal the order granting the special motion to strike ran from the original order granting that motion (see Code Civ. Proc. sec. 904.1, subd. (a)(13)), but contended that his time to appeal the fee award ran from entry of the subsequent judgment.  Even the respondent agreed.

Not so.  The court finds that because the order dismissing the complaint disposed of all the substantive claims between the parties, it was an appealable judgment under Code of Civil Procedure section 904.1, subdivision (a)(1), and thus the fee award was a separately appealable order after judgment pursuant to section 904.1, subdivision (a)(2).  The subsequent judgment “appears to have served no purpose here, and appellant’s appeal from it does not save his otherwise untimely appeal.”

There was some clever, but unavailing argument from the appellant, and the decision goes into some depth on why the order granting the section 425.16 motion is a “judgment.”  In reading the case, you’ll also discover important differences in appealability based on whether the plaintiff or defendant prevails on the section 425.16 motion.

Really? I’ve never doubted the value of a well-written reply brief, nor have I heard others question their value. Though reply briefs are optional, I can’t imagine I’d ever decide against filing one.

If you’d like to read what some appellate justices have to say about them, check out Are Reply Briefs Really Necessary? The Recorder e-mailed all 103 appellate justices in California for their views on reply briefs and got responses from 25 of them. Reporter Mike McKee’s write-up of their responses describes some pitfalls for appellants’ counsel to avoid and how the justices approach brief reading, among other things.

Hat tip: The Appellate Practitioner.

They can also be employed where appellate jurisdiction — or lack of it— is less than clear, as in People v. Segura, case no. S148536 (Aug. 4, 2008), where the Supreme Court avoids deciding the issue by treating the appeal as a petition for writ of habeas corpus.  Relegating the appellate jurisdiction issue to a footnote, a unanimous Supreme Court set forth the parties’ competing views on appealability, then noted that the Attorney General, who contended the order was not appealable, nonetheless urged the court to review it.  The result:

Nonetheless, the Attorney General requests that we treat the purported appeal as a petition for writ of habeas corpus and, in the interest of judicial economy and because the issue is a matter of concern to many persons other than defendant, decide the case on its merits.  (See generally People v. Banks (1959) 53 Cal.2d 370, 379-381 & fn. 5.)  The Attorney General points out that a probationer in constructive custody may petition for a writ of habeas corpus (In re Stier (2007) 152 Cal.App.4th 63, 82), and in analogous circumstances appeals have been so treated.  (Gallardo, supra, 77 Cal.App.4th at p. 986).  We do so here in the interest of judicial economy and because the issue is of general concern.

Just last week, I wrote about the Supreme Court’s inexplicable avoidance of a squarely presented issue of appellate jurisdiction (albeit in a long ago case), in which they decided the case without either answering the jurisdictional question or even using some device to “save” the appeal, merely because neither party raised it. Here, while the court did not settle the appealability issue, they at least worked their way around it.

Interestingly enough, this nugget regarding appellate jurisdiction comes in a case where the question for review is whether the trial court had jurisdiction to grant a post-judgment defense motion to reduce a jail term bargained for in a plea agreement imposing probation.  The defendant had already served the sentence (released early) but needed the sentence reduced to avoid deportation.  The trial court denied the motion, saying it lacked jurisdiction to reduce the bargained-for term.  The court of appeal reversed.  The Supreme Court reverses the court of appeal:  

We granted review to determine whether a prescribed jail term that constitutes a material provision of a plea agreement conferring as its chief benefit, a grant of probation in lieu of a prison sentence, may be modified by the trial court in the exercise of its authority to modify or revoke probation during the probationary period.  As we shall explain, in this matter defendant was granted probation, for which he otherwise was ineligible in view of the prior conviction allegation, in exchange for entering into a plea agreement comprised of various terms, including confinement in the county jail for a specified number of days.  He knowingly and voluntarily accepted those terms of the agreement.  The trial court’s statutory authority to modify conditions of probation in the exercise of its jurisdiction over a probationer did not extend to modifying a material term of a plea agreement that bestowed the privilege of probation subject to defendant’s service of a specified jail term.  Accordingly, we reverse the judgment rendered by the Court of Appeal.

If you’re writing according to a typical “IRAC” formulation, Professor Mark E. Wojcik of John Marshall Law School and the Legal Writing Prof Blog says you’re leaving an important letter out of that acronym.  Go to SSRN to download his article from the November 2006 Student Lawyer (yes, 2006, but he just posted the link yesterday) on why adding an “explanation” step to your analysis is helpful.

Two things jumped out at me from Ben’s report.

First: Where were all the lawyers? Ben notes that the auditorium didn’t exactly look empty, but wasn’t close to capacity, either, and he wonders if Justice Alito is unpopular with the bar.

Second: Tenth Circuit Judge Michael McConnell gave some praise to the legal blogosphere (emphasis added):

Judge McConnell lamented that legal academics are often too political and ideological in their analysis of opinions. The first question should always be “is the opinion well grounded,” not a focus on the result. Politicians and practicing lawyers need to focus on results, but law professors shouldn’t. Blogs are beginning to provide appropriate critiques of judicial opinions, especially in certain substantive areas. Indeed, blogs are often the best (or only) feedback he gets on opinions, and thus he views them as a favorable and welcome development.

So different than what Judge Kozinski had to say about blogs, though that was some time ago.

UPDATE (8/7/08): Video of the conference here.  (Hat tip: Crime & Federalism.)

First, the new digs. I’ve moved from Ventura to Oxnard, and specifically to the Fisherman’s Wharf area of Channel Islands Harbor, where you’ll find the fine gentleman at right (the one in the yellow coat) standing post in front of the Ventura County Maritime Museum, which is in the building next to my office.

I’ve gone from a professional building in a busy part of town — with the attendant traffic — to a far more tranquil setting. Instead of having doctors and lawyers as neighbors, I share a building with Anacapa Surf Shop and The Studio Gallery, which is . . . cool. There are two other law offices in the complex. One is my old boss, the other I haven’t been able to check out yet.

The location also makes for distinctive driving directions: “After you pass the lighthouse, turn in at the second ship’s mast and park near the water taxi sign.”

Oh yeah, remember that view of the parking lot? It’s been replaced with this:

OK, I admit, that’s not quite my view. I actually have to take a few steps outside my office to see this. But my old view was of a parking lot, and when I stepped outside my office, I still saw a parking lot. This is better. My first office as a lawyer in BigLaw was on the 46th floor of the Gas Company Tower in downtown Los Angeles, from which I could see Dodger Stadium, the HOLLYWOOD sign, and Griffith Park Observatory. Again, this is better. And it’s minutes from my house, so the commute is better, too.

And perhaps one of the biggest benefits of all: windows that actually open . . . fresh air!

Luckily, the nature of appellate practice means I can work on appeals from all over the state (or from around the Ninth Circuit, for that matter) no matter where I locate my office. Most appeals require only a single court appearance and very few meetings with the client (sometimes none). Send your documents to me in Channel Islands Harbor (or deliver then yourself as an excuse for a brief getaway to this beautiful place), and let me take care of the rest!

By the way, when you send them, you’ll no longer be sending them to me at “G.T. May Law Offices.” You’ll be sending them to me at “The Law Office of Greg May.” Not exactly a radical change, but I thought the name of the practice should include the name under which I have developed an online presence. The rest of my new contact information:

But a lack of press buzz is no barrier to discussing the circuit’s checkered reputation. WSJ.com Law Blog summarizes Judge Bybee’s funny presentation about how the Ninth is viewed through the eyes of various institutions.

Update (8/1/08): Judge Bybee isn’t the only judicial joker this week.  Tenth Circuit Judge Michael McConnell earned some laughs this week by noting that the Constitution refers to his court as an “inferior” one.  his remark came during a recent panel discussion that included SCOTUS Justice Alito, which will be the subject of a separate post later today.  Thanks to Ben Shatz.

I’ll get to the Supreme Court in a minute. First, a brief rundown on the issue from the case that led me to raise the question in the title to this post.

In State of California ex rel Department of Pesticide Regulation v. Pet Food Express Limited, case no. C057156 (3d Dist. July 31, 2008), the court of appeal holds that an order enforcing an administrative subpoena is appealable. Borrowing from court of appeal precedent finding that an order enforcing a legislative subpoena is appealable, the court applied the same reasoning to the administrative subpoena in this case. Because the order is the final resolution of the rights between the parties in an original proceeding instituted specifically to enforce compliance — whether that proceeding is deemed a “special proceeding” or an “action” — it is a judgment within the meaning of Code of Civil Procedure section 577 (”A judgment is the final determination of the rights of the parties in an action or proceeding”). It is thus appealable under Code of Civil Procedure section 904.1, subdivision (a)(1).

Interesting enough, but not fascinating. What I did find fascinating was the court’s description regarding the history of the appealability issue.

The court first notes the split of authority at the court of appeal level. While several court of appeal decisions decided such appeals without any explicit consideration of the appealability issue — presumably assuming the appealability of such orders — the remaining courts were split. Some found such orders appealable, others found such orders reviewable by writ only but construed the appeal as a writ petition in the interests of justice.

The amazing thing is that in spite of this split, the Supreme Court had twice entertained such cases and neither time decided the appealability issue. Obviously, the question af appealability was not one of the issues on which the Supreme Court accepted review, but appealability is a jurisdictional requirement that cannot be waived by the parties. The first time around, in Craib v. Bulmash (1989) 49 Cal.3d 475, I can see how the Supremes might not address it if neither party did (Pet Food describes the Supreme Court decision as silent on the issue) because it, like some courts of appeal, could have presumed jurisdiction. But the second time around, in Arnett v. Dal Cielo (1996) 14 Cal4th 4, the Supremes explicitly noted the split in the courts of appeal, decided that the “better view” was that such orders are appealable, but declined to decide the issue because neither party raised it!

Come again? Declined to decide a jurisdictional issue that was squarely presented and on which there was a split of authority in the courts of appeal? And here’s a fact that makes it even stranger: the authority the Supremes relied on as the “better view” had based its decision that the order was appealable in part on the Supreme Court’s previous failure to resolve the issue, i.e., the Supreme Court’s apparent assumption of appealability. In light of all this, the Pet Food court calls the Supremes’ avoidance of the issue “perplexing.” Oh, yes, I’d say so.

Perhaps Pet Food will be the case in which the Supreme Court finally decides the issue. It sure seems to have teed up the issue.

The article is about my experience during my first year or so of blogging. I thought it was timely, given a recent California Lawyer column that advised solo and small firm lawyers against blogging except in rare circumstances. 

As the title, “The Blog and Short of It,” suggests, it hasn’t all been a bed of roses.  But the downside of blogging is not so bad, either.  Click on the magazine cover at right for a PDF download of the August 2008 CITATIONS.

Oh, and let me extend a welcome to any any CITATIONS readers who may be visiting as a result of the article.  Come back soon.