The California Blog of Appeal

When it comes to the anti-SLAPP statute, there’s no such thing as “just a little” criminal extortion

Greg May — Wed, 24 Apr 2013 22:09:01 +0000

The courts’ application of California’s “anti-SLAPP statute” — Code of Civil Procedure section 425.16 — has been heavily criticized as being too broad. Section 425.16 authorizes a “special motion to strike” one or more causes of action in a complaint. A defendant succeeds on such a motion if he can demonstrate that (1) the suit is a SLAPP — i.e., a Strategic Lawsuit Against Public Participation — because the causes of action are based on free speech on a public issue or on petitioning of the government and (2) that the plaintiff is not likely to prevail in the action.

Witkin describes the type of lawsuits section 425.16 was designed to thwart:

Strategic Lawsuits Against Public Participation (SLAPP suits) are brought to obtain an economic advantage, not to vindicate a legally cognizable right. They typically seek damages that would be ruinous to the defendant. They pretend to be ordinary lawsuits, but are distinguishable in that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. Because winning is not a SLAPP plaintiff’s primary motivation, the traditional safeguards against meritless actions are inadequate

(5 Witkin, Cal. Procedure (5th ed. 2008), Pleading, § 1017, pp. 426-427 [citation omitted].)

Criticism of the anti-SLAPP statute usually centers around the contention that it is much broader than needed to serve its purpose. That is, while many actions might technically fit within the statutory definition of a SLAPP, the same action might also be one genuinely brought to vindicate a legally cognizable right. To some, the statute seems almost limitless in this regard.

Consider Mendoza v. Hamzeh, case no. B239245 (2d. Dist., April 22, 2013). When Mendoza’s employer believed that Mendoza had committed fraud, conversion, and breaches of contract costing the employer in excess of $75,000, the employer’s lawyer (Hamzeh) sent a letter to Mendoza threatening to report him to multiple authorities unless Mendoza cooperated in the employer’s investigation and paid back all the damages disclosed by the investigation. Mendoza sued Hamzeh for civil extortion, intentional infliction of emotional distress and unfair business practices, and Hamzeh moved to strike under section 425.16, claiming that his threatening letter constituted a protected litigation communication under the anti-SLAPP statute.

Nice try. The Supreme Court — in Flatley v. Mauro (2006) 39 Cal.4th 299, a case Hamzeh did not even bother to cite in his motion — had already decided that criminal extortion is not covered by the anti-SLAPP statute. Confronted by Flatley, Hamzeh resorted to claiming that at least he wasn’t as bad as that no-good defendant in Flatley, who sent a whole lot of threatening communications. The gist of his argument was “Compared to that guy in Flatley, I’m a boy scout; surely, the protection of the anti-SLAPP statute should be extended to me.”

The court did not buy it. Hamzeh’s conduct constituted criminal extortion as a matter of law because it coupled a demand for payment with a threat to accuse Mendoza of a crime and report him to authorities. Once that threshold is reached, it doesn’t matter whether the extortion is mild or extreme, the anti-SLAPP statute simply does not afford any protection:

We do not read Flatley to mean the anti-SLAPP statute applies to some litigation communications which satisfy the criteria for criminal extortion if such communications are not particularly extreme or egregious. The rule must be a bright line rule. The antiSLAPP statute does not apply to litigation communications which constitute criminal extortion as a matter of law.

Extortion is extortion. The degree might make a difference in a criminal sentence or in damages in a civil suit, but when it comes to anti-SLAPP protection, degree does not matter at all.

Even disobedience of trial courts in other states can get your California appeal dismissed

Greg May — Tue, 09 Apr 2013 05:07:24 +0000

Last Thursday’s decision in Stoltenberg v. Ampton Investments Inc., case no. B235731 (2d. Dist. April 4, 2013) demonstrates the hazards of being unable to stay enforcement of a money judgment against you while your appeal is pending . . . and how much trouble you can get in for going too far in resisting those enforcement efforts. How much trouble? Well, is having your appeal dismissed enough trouble for ya?

Ampton had the misfortune of losing at trial and having a judgment of more than $8 million dollars entered against it. Ampton appealed, but did not post a bond to stay enforcement of the judgment. When the plaintiffs registered the California judgment in Ampton’s home state of New York and then subpoenaed financial records, Ampton ignored the subpoena. Plaintiffs asked the New York trial court to find Ampton in contempt. Ampton escaped contempt but was ordered to respond to the subpoena. When Ampton refused to do so, Plaintiffs again sought a contempt finding against Ampton, and that time they got it: Ampton was ordered to pay $500 in sanctions and to comply with the subpoena within 30 days or face further sanctions.

By now, you would think that Ampton might finally accept the reality that its own failure to stay enforcement of the judgment pending appeal carries consequences that it would have to live with, and comply with the contempt order. But . . . that’s not what Ampton did. When Ampton failed to comply with the New York contempt order, Plaintiffs moved to dismiss Ampton’s California appeal, arguing that Ampton’s disobedience of the New York trial court contempt order was sufficient to invoke the “disentitlement doctrine.” After much procedural wrangling (which makes for interesting reading but is unnecessary to cover here), Plaintiffs succeeded in getting Ampton’s appeal dismissed.

Let’s start with the court’s description of the disentitlement doctrine (citations omitted):

An appellate court has the inherent power, under the “disentitlement doctrine,” to dismiss an appeal by a party that refuses to comply with a lower court order. As the Supreme Court observed . . . “A party to an action cannot, with right or reason, ask the aid and assistance of a court in hearing his demands while he stands in an attitude of contempt to legal orders and processes of the courts of this state.

We recently explained the equitable rationale underlying the doctrine. “‘Dismissal is not “a penalty imposed as a punishment for criminal contempt. It is an exercise of a state court‟s inherent power to use its processes to induce compliance” with a presumptively valid order’ . . . Appellate disentitlement “is not a jurisdictional doctrine, but a discretionary tool that may be applied when thebalance of the equitable concerns make it a proper sanction . . . .‟ No formal judgment of contempt is required; an appellate court“may dismiss an appeal where there has been willful disobedience or obstructive tactics.” The doctrine “is based upon fundamental equity and is not to be frustrated by technicalities.”

The Court of Appeal has no problem finding the doctrine applicable here. After rejecting a few contentions that were squarely against precedent (why the heck were those arguments made?), the court addresses the one issue that had even a chance of succeeding: that Ampton’s appeal could not be dismissed under the disentitlement doctrine because Ampton disobeyed orders only of a court of foreign jurisdiction rather than orders from a California trial court.

It’s a valiant effort, but the Court of Appeal finds no reason to treat disobedience of foreign court orders any differently from those of California trial court for purposes of the disentitlement doctrine. The court first cites the “full faith and credit” clause of the federal constitution, but also notes a very practical reason for applying the disentitlement doctrine in these circumstances (citations and footnote omitted):

Had plaintiffs attempted to enforce the judgment in California by propounding postjudgment special interrogatories seeking defendants’ financial information, including information about assets defendants may have in New York, the disentitlement doctrine would have applied to any noncompliance with the California trial court‟s orders compelling responses to those interrogatories. For purposes of the disentitlement doctrine, there is no meaningful distinction between New York trial court orders and California trial court orders related to enforcement of a California judgment. The orders of the New York court in issue were based solely on a California money judgment and were intended to aid in the enforcement of that judgment. Thus, by violating those orders, defendants are obstructing and frustrating the enforcement of a judgment of this state, while at the same time seeking relief concerned that judgment in this court. Under the well-established

What is the appellate “doghouse,” and why should you care?

Greg May — Thu, 21 Mar 2013 18:22:09 +0000

No, I’m not talking about that imaginary place that your client puts you in if you lose the case. I’m talking about the mysterious “doghouse” references one sees when looking at the online docket of a California Supreme Court case. Take this snippet from the docket of a recently decided case, which shows that the record reached the Supreme Court on March 18, 2010:

The mysterious "doghouse"

Now, it seems rather obvious from the above image that a doghouse is some measure of the volume of the record. And, if you have petitioned the Supreme Court for review, you can guesstimate the size of a doghouse based on how many doghouses the record in your case fills. But “doghouse” is a curious enough term in a court context that at a seminar I attended yesterday on the subject of handling large record appeals, panel member Justice Dennis Perluss (presiding justice for Division Seven of the Second District Court of Appeal) thought that even a roomful of appellate practitioners would benefit from actually seeing a doghouse, so he brought one with him.

It turns out that each doghouse — a fabric-covered cardboard folder of sorts, shaped roughly like a binder but without the rings — holds a maximum of about six inches of paper.

Not thrilling information, I know, so why should you care, besides the end of the mystery?

Well, many divisions in the Court of Appeal consider a case to be “big” (sometimes referred to as “jumbo” among the court staff) if the record fills just three doghouses. That tells me that that the vast majority of appeals likely present a record smaller than that. In fact, I would bet — I don’t have statistics — that there are more one-doghouse appeals than multiple-doghouse appeals.

Think about that. Consider that the fate of your appeal can depend on one or two ”doghouses” — twelve inches or less of paper– even if you have spent years in litigation and built up a case file filling many file drawers. Now, consider the task of boiling that multiple-drawer file — or maybe even that multiple-cabinet file — to its essence. Buried somewhere in those drawers are the best issues for appeal and ideas for how to argue them. Then comes the task of winnowing those drawers full of paper down to those papers that are essential and most helpful to your client, yet still present a fair picture of the case so you cannot be accused of manipulating the record. That can be a daunting task, and one loathed by trial lawyers who live to argue to juries but hate all the paperwork.

I, on the other hand, love that challenge. It is what I and other appellate attorneys do all the time.

UPDATE (3/21/13): Ben Shatz at Southern California Appellate News has doghouse pictures.

Don’t get snide on appeal

Greg May — Tue, 12 Feb 2013 23:26:13 +0000

Snideness is never an attractive trait, but it is distressingly common in trial court. No offense to you trial lawyers out there, but I find snideness far less prevalent in appellate practice, and, on those occasions where it does raise its ugly head, the justices seem far more hostile to it than most trial judges are.

Which brings me to a 2009 case that I ran across today, Nazir v. United Airlines (2009) 178 Cal.App.4th 243, in which plaintiff’s counsel, apparently from a solo or small office, squared up against an employment law powerhouse and not only won, but got to see the powerhouse firm spanked by the Court of Appeal as it reversed the summary judgment for the defendant employer.

Here’s your hot tip of the day: Unless you want to invite the severest scrutiny of your own papers and trial counsel’s track record in the trial court, don’t start your brief like this:

Seemingly emboldened by [the trial court's description of the plaintiff's summary judgment opposition papers], defendants’ brief here begins this way:
“As in Macbeth’s soliloquy, Appellant’s Opening Brief (AOB), like his summary judgment opposition below, is full of ‘sound and fury, [but ultimately] signifying nothing.’ Despite filing an 1894 page(!) opposition separate statement, which the trial court found … in a manner deliberately calculated to obfuscate whether any ‘purportedly disputed facts were actually controverted by admissible evidence,’ the trial court properly granted summary judgment in this case. As with Nazir’s opposition statement, his AOB is ‘mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.’ ”

Uh-oh. Pot, meet kettle:

Passing over whether such disparagement is effective advocacy, the “girth” of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.

The opinion goes on to lambaste the powerhouse firm for bringing a motion outside the scope of the statute and filing papers so out of compliance with court rules that they failed to adequately inform the plaintiff of the facts supporting the motion. Indeed, the court again takes an accusation (that plaintiff’s papers were designed to obfuscate) and applies it to the defendants:

The deficiencies in the motion pale in comparison to those in the separate statement. “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 adjudication] and summary judgment to determine quickly and efficiently *252 whether material facts are undisputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335, 282 Cal.Rptr. 368.) The separate statement “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74, 50 Cal.Rptr.3d 149.) That hardly describes defendants’ separate statement here.

Plaintiff’s counsel must have really enjoyed reading that opinion.

Bad news for post-conviction indigent appellants: No right to Wende review

Greg May — Fri, 30 Nov 2012 19:48:04 +0000

A California criminal defendant entitled to appellate counsel appointed by the state has one trick up his sleeve that defendants who hire their own counsel don’t: Wende review. When an appellant’s appointed counsel provides the Court of Appeal with a brief setting forth the substantive and procedural facts and informing the court that counsel has reviewed the record and can find no basis for challenging the judgment, the Court of Appeal must independently review the record for prejudicial error warranting reversal. This process is required in order to assure that the indigent appellant is not deprived of his constitutional right to counsel.

But is an indigent appellant with appointed counsel entitled to Wende review on appeal from a post-conviction judgment? No, says the court in People v. Serrano, case no. H036373 (6th Dist., Nov. 28, 2012). In this case of first impression, the appeal was from an order denying a motion to vacate the conviction, which the appellant sought in order to avoid deportation. His counsel filed a Wende brief, asking the Court of Appeal to review the record for error. The court notified appellant of his right to file his own argument, received nothing, and commenced its Wende review. During that review, they discovered that appellant had appealed his original conviction (and later dismissed that appeal), which triggered the Court of Appeal to ask for briefing on whether appellant had a right to Wende review in this appeal from a post-conviction judgment.

The first basis for the court’s ruling was the United States Supreme Court decision in Pennsylvania v. Finley (1987) 481 U.S. 551, in which it held that similar review in Pennsylvania was not required in appeals from post-conviction proceedings because the defendant had no constitutional right to counsel in those proceedings. That the state made a decision to provide counsel, even though it was not constitutionally required to do so, did not mean that the defendant was entitled to the court’s independent review. So, there was no federal basis for invoking Wende review in this case.

How about a state basis? Not there, either, says the court. Looking to state court decisions regarding the right to Wende review in other cases of state-appointed counsel (such as juvenile dependency and conservatorship proceedings), the court concluded that the California Supreme Court had relied on Finley “to restrict the availability of [Wende] review in a multitude of contexts.” In those decisions, says the court, the Supremes “held that due process does not mandate extending these procedures beyond the first appeal of right in a criminal prosecution.”

Nonetheless, those decisions were not criminal cases. Rather than rely on those cases without further analysis, the Court of Appeal went through the same three-part test used by the Supremes in the juvenile and conservatorship cases: “ ‘(1) the private interests at stake; (2) the state’s interests involved; and (3) the risk that the absence of the procedures in question will lead to an erroneous resolution of the appeal.’ [Citations.]”

The collateral attack on the judgment in this case came several years after the conviction and after the defendant had served his sentence. Analyzing the three factors, (1) the court found that appellant’s interest in avoiding deportation was very high: (2) the state’s interest in”securing a just appellate resolution, reducing procedural costs and burdens, and concluding the proceedings both fairly and expeditiously” outweighed the appellant’s interests, especially in “these times of decreasing judicial budgets and the resulting overall reduction in public access to justice.” Turning to the third factor, the likelihood of an erroneous resolution of the appeal, the court stated:

[D]efendant‟s conviction has long been final and his sentence served. Although, he chose to dismiss his first appeal of right, he could have obtained a review of his conviction had he so chosen. In each appeal, he has been afforded the right to appointed counsel, and each of those counsel were supervised by this district‟s appellate project. [Citation.] Given the multitude of protections already afforded the defendant, the risk of erroneous appellate resolution without Wende review for a collateral attack on the judgment is minute.

The court set forth a procedure for “all future criminal appeals arising from proceedings other than the first appeal of right, where appointed counsel finds no arguable issues.” (My emphasis.) But I think its analysis leaves wiggle room for arguing that Wende review may be applicable in appeals from certain post-conviction proceedings. After all, its analysis of the 3-pronged test would have been unnecessary if the California Supreme Court cases had established a firm rule. For example, how might this balancing differ if the courts were not in dire financial straits? Or if the appellant’s first appeal had been dismissed because of his counsel’s ineffective assistance?

These considerations may lead to Supreme Court review. After all, as the Court of Appeal noted, “the California Supreme Court has not specifically considered the availability of [Wende] review in a post-conviction collateral attack on a judgment.”

Huge Error, No Prejudice

Greg May — Thu, 15 Nov 2012 01:18:53 +0000

Too many people go into an appeal so certain that the trial court erred so obviously that reversal must result. This is rarely because the attorney doesn’t know that the error must have resulted in prejudice to warrant reversal, but because the attorney gives insufficient thought to the question of whether the error was genuinely prejudicial. As a result, the question o prejudice is not presented very well in the brief.

I’m not sure exactly what was going through the mind of the attorney representing the defendant/appellant in Twenty-Nine Palms Enterprises Corporation v. Bardos, case no. E051769 (Fourth Dist., Nov. 13, 2012). He might have had some very reasonable arguments that prejudice resulted from the error, and might even have presented a thorough argument in the appellant’s brief. For many, however, the sheer magnitude of the asserted error — that the trial court abused its discretion by summarily sustaining 48 pages of objections to the appellant’s evidence submitted in opposition to a motion for summary judgment, without any reasoning in support of the ruling — might tempt some lawyers, and certainly many parties, into believing that there just had to be some resulting prejudice, without giving sufficient thought to the matter.

The Court of Appeal agrees that the trial court abused its discretion in summarily sustaining the objections, but finds there was no resulting prejudice. Even giving consideration to all of the evidence the appellant introduced below, the appellant still failed to raise a triable issue that would preclude entry of summary judgment.

Clients (and some attorneys) need to be reminded: it’s not error that will get you a reversal, it’s prejudicial error that will get you a reversal.

Fee-shifting on appeal from Berman Hearing is not applicable in dismissal for untimely appeal

Greg May — Tue, 31 Jul 2012 20:54:56 +0000

I haven’t written about procedure on appeal from a “Berman hearing” — a wage claim heard by the Labor Commissioner — in a long time. Last Friday’s case of Arias v. Kardoulias, case no. B234263 (2d. Dist. July 27, 2012), gives me the opportunity to do so again because of the procedural question it raises, and also provides an opportunity to point out that not all appeals are the same.

You’ve read time and time again on this blog that appeals are very different from trials, but an appeal from a Berman hearing is not. An appeal from a Berman hearing is a trial, heard by the superior court (trial court) do novo – as if the hearing before the labor commissioner had never taken place. Indeed, a claimant can even add claims to the appeal that were never heard by the labor commissioner. This “new trial” posture provides the background for the court’s decision in Arias.

In Arias, the employee won an award before the labor commissioner. No doubt dissatisfied with the amount, she tried to appeal, but her appeal was dismissed due to the untimeliness of her notice of appeal.

At issue in the case was whether her employer was entitled to recover attorney fees and costs in obtaining dismissal appeal, pursuant to Labor Code section 98.2, subdivision (c), which provides:

If the party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal. An employee is successful if the court awards an amount greater than zero.

The Court of Appeal finds that the employer has no right to fees under these circumstances. Although a timely appeal would have nullified the initial award in favor of the employee, here the employee still had an enforceable award of wages because the untimeliness of her appeal meant that her initial award was never nullified. Thus, even though she recovered nothing on the appeal, she still had a recovery that prevented her employer from recovering fees for the appeal.

As you might expect, the court was careful to point out that its decision applies only to jurisdictional dismissals, and leaves open the question of whether fee shifting would apply when a timely appeal is dismissed on another ground.

Attorney fee review standard isn’t always abuse of discretion

Greg May — Mon, 25 Jun 2012 22:43:10 +0000

Appealing from an attorney fee award is usually a tough slog. Unless you are arguing a pure issue of law, such as whether any attorney fee-shifting statute applies to the case at all, the Court of Appeal usually reviews only for abuse of discretion. However, an important exception is noted in the recent case of Samantha C. v. State Department of Developmental Services, case no. B232649 (2d Dist., Div. 1, June 21, 2012).

In Samantha C., attorney fees were sought under the “private attorney general statute,” Code of Civil Procedure section 1021.5, in which plaintiffs who enforce an “an important right affecting the public interest” can recover attorney fees under certain conditions, namely:

(a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.

Plaintiff had originally lost her lawsuit seeking state services, but appealed the judgment. The Court of Appeal reversed in a published decision that construed certain statutory and regulatory language governing eligibility for services. Nonetheless, on remand, the trial court declined to award private attorney general attorney fees, finding that the benefits of the lawsuit were limited to the plaintiff.

Are you wondering, How can that be, when the published decision involved the interpretation of statutory language that applies to all such cases? If so, give yourself a gold star. The Court of Appeal finds that the precedent set by the statutory and regulatory construction in its first decision necessarily extend beyond plaintiff to all applicants, and that the actual size of that class of persons need not be proven:

Although our underlying decision was phrased in terms of substantial evidence, it rested on determinations of statutory and regulatory construction that were not specific only to Samantha.

***

Although the record does not reflect the number of individuals that might be directly benefited by our decision in Samantha C., nevertheless, by defining the class of benefited persons to include those in Samantha‘s position, the Legislature has demonstrated its determination that such a need exists, in a quantity that is of sufficient size to require its legislative protection. In light of the Legislature‘s statement of purpose, we cannot justifiably conclude that such a group of potential claimants is nonexistent, or even minimal.

The point of this post, however, is not just the court’s decision, but how the Court of Appeal got there. Instead of deferring to the court’s discretion on the applicability of section 1021.5 in this case, the Court of Appeal found itself well situated to review applicability of section 1021.5 de novo, i.e., without any deference afforded to the trial court’s decision:

“A trial court‘s decision whether to award attorney fees under section 1021.5 is generally reviewed for abuse of discretion.” [Citation.] But where, as here, our published opinion provides the basis upon which attorney fees are sought, de novo or independent review is appropriate because we are in at least as good a position as the trial court to determine whether section 1021.5 fees should be awarded. [Citations.]

Not many appellants will be able to take advantage of this reasoning to obtain de novo review of their entitlement to fees.

There is one curious point to the decision. Although the Court of Appeal did not strongly emphasize it, implicit in its conclusion that the first appeal resulted in a benefit for a large class of persons is that its prior decision was a published one. Odd that its original opinion on the fee issue was not published.

By the way, if you’ve stumbled across this post looking for answers on attorney fees that are not addressed in this post, poke around at the California Attorney’s Fees blog, where they’re all attorney fees, all the time!

Just what are you appealing from, anyway?

Greg May — Thu, 21 Jun 2012 01:30:18 +0000

Over at The Ninth Circuit Blog of Appeals, I posted today about an appellant who tried to use a federal appeal from a post-judgment order as a vehicle to attack the underlying judgment, which had been entered five years earlier. On the very same day, the Sixth District published Marriage of Sameer, case no. H035957 (6th Dist., June 19, 2012), in which the appellant tried a similar tactic in California state court. You won’t be shocked to learn it doesn’t work there, either.

In February 2008, the court entered a judgment on the stipulation of the parties, in which wife would receive spousal support with scheduled steps down in amount, ending completely on June 1, 2010, unless wife, prior to that date, filed a motion and should good cause why support should continue. The clear implication of the judgment and the parties’ stipulation onthe record was that within that time frame, wife was expected to complete her masters degree requirements and become self-supporting. When she pursued a doctorate instead of seeking employment in the field of her masters degree, she moved to modify the judgment, with the requisite change in circumstances being the “unrealized expectation” in the original judgment, i.e., that she had not become self-supporting as the original judgment contemplated.

Unrealized expectations. We all have a few of those, don’t we?

Wife in this case argued first that under the terms of the judgment, she was entitled to a reevaluation of spousal support regardless of whether there were changed circumstances. Wrong. Then she argued that the unrealized expectation of self-supporting status constituted the requisite changed circumstances. Unfortunately for her, she offered no evidence of her diligence to become self-supporting. So that argument is rejected, too.

Now we get to the similarity with the federal case. Wife also argued that the original stipulation and judgment were infirm because they failed to containing an explicit warning that she was expected to become self-supporting prior to the scheduled termination of support. Wife’s procedural error here is worth more than the footnote the court gave it, where it noted that because the argument was directed to the original judgment rather than the post-judgment order, “she is collaterally attacking the judgment,” so “this claim is not cognizable.”

The judgment and any post-judgment orders are not the same thing. An appeal from a post-judgment order alone isn’t going to get you anywhere with the judgment itself if it comes after the time to appeal from the underlying judgment has lapsed.

How to get sanctioned on appeal

Greg May — Tue, 24 Apr 2012 18:36:27 +0000

The imposition of monetary sanctions on appeal is a rare occurrence . . . you almost have to work at it. If someone were actually trying to get tagged for many thousands of dollars for filing a frivolous appeal, they could learn a lot from Personal Court Reporters, Inc. v. Rand (April 20, 2012, 2nd Dist. case no. B229358). Below is your step-by-step guide to getting sanctioned on appeal.

1. Base your appeal on an argument that goes against all precedent (apparently without any argument for a change in the law). This is a good start, but alone is not likely to get you sanctioned. The court recognizes:

Ordinarily, a court will not impose sanctions because an appeal is based on a creative argument with little hope of success. “[C]ounsel must have the freedom to file appeals on their clients‟ behalf without the fear that an appellate court will second-guess their reasonable decisions.” [Citation.]

2. Make sure that the adverse precedent includes your own prior case, in which the court rejected your nearly identical argument. Now you’re getting into dangerous territory. Says the court:

However, where a party bases an appeal on an argument that has been rejected and sanctioned in another trial court and affirmed on appeal, the principle of “once burned, twice shy” applies. That is the case here.

***

Where, as here, a party appeals and merely repeats an argument that was soundly rejected by another appellate panel, we have little difficulty concluding that the party lacked good faith in pursuing the appeal.

3. For good measure, first ignore your own prior case, then cite it in your reply brief in support of your position, even though it runs against it. Why leave sanctions to chance? Virtually guaranty them with this icing on the cake!

[Appellants'] conduct is especially egregious because they failed to bring the prior case to our attention and did not address its holding after plaintiff cited it in its brief.

As the court noted in a footnote, however, appellants did not ignore their prior case completely:

Inexplicably, [appellants] cited the case in their reply brief as support for their position.

There you have it, your three-step foolproof guide to getting sanctioned on appeal. And not just against appellants’ counsel, but against the appellants’ themselves. Since the appellants themselves were attorneys, the Court of Appeal has a hard time believing they were merely relying on the advice of their counsel and did not realize the argument was frivolous.

UPDATE: Oh yeah, how’s this for irony? The lawyer representing the respondent in this collection action the trial court actually markets himself as the “evil attorney,” yet the other side is the one that gets sanctioned. (I can’t be sure this is the one, but here’s the evil attorney I found with Google.)

Submission to tentative ruling on motion does not forfeit arguments on appeal

Greg May — Fri, 02 Mar 2012 19:03:45 +0000

For the procedural argument raised by the respondent in Mundy v. Lenc., no. B227962 (2d. Dist. Feb. 29, 2012), I don’t know whether to give the respondent credit for creativity or jeers for an obviously wrong argument. Either way, she lost on the procedural point (but managed to defend on the merits partially in any event).

At issue was whether the appellant was barred from challenging the trial court’s orders on two motions, either under the doctrine of invited error or the doctrine of waiver, because the appellant had submitted to the trial court’s tentative ruling on each motion. The Court of Appeal reaches — what is to me, at least — the obvious answer: No.

Appellant Mundy appealed from rulings on two motions. The first was the trial court’s denial of Mundy’s anti-SLAPP motion (Code Civ. Proc., § 425.16) on Lenc’s cross-complaint. The second was an order awarding Lenc attorney fees on the anti-SLAPP motion.

The Court of Appeal rejected Lenc’s argument that submission to the tentative ruling amounts to invited error. Since the doctrine of invited error rests on the notion that the litigant has misled the trial court, it could not apply here because Mundy made his positions known to the trial court in his motion memoranda. Later submission on a tentative ruling is not a misleading act because it is a neutral act that “conveys neither agreement nor disagreement with the analysis [in the court's tentative ruling].”

Lenc fared no better with her argument that submission on the tentative rulings amounted to a forfeiture of Mundy’s arguments on appeal. The primary reason the Court Aappeal rejected her argument is that the doctrine of forfeiture (or waiver) only applies to preclude an appellant from making an argument in the appellate court that he never raised in the trial court, and Mundy had indeed made the arguments in his motion memoranda. The court went further, however, analyzing two exceptions to the forfeiture doctrine, presumably to address arguments made by Mundy in response to the forfeiture argument, and found that both exceptions would apply in this case anyway.

The court found that the first exception — that a litigant need not raise in the trial court the insufficiency of the evidence to support a judgment — applied here because the orders appealed from are post-judgment orders and thus analogous to judgments, so Mundy had no obligation to object that the orders were unsupported by the evidence.

The court also found applicable a second exception — that futile objections are not waived on appeal — because any objection to the tentative would have been futile: “If Mundy’s attorney had told the trial court that he objected to the tentative rulings, the trial court would still have decided in favor of Lenc.” This reasoning strikes me as odd, given that the Court of Appeal reversed the attorney fee order in its entirety and reversed the order on the anti-SLAPP motion as to all but one of Lenc’s causes of action. Given that the trial court got almost everything wrong in its tentative, who’s to say that argument at the hearing would have been futile? That is, might not the attorney have been able to convince the trial court that it’s tentative rulings were wrong? Attorneys try to do so every day, and success is hardly unheard of. I think it would have been better for the court to rest on its principal reason for finding that the argument was not waived (i.e., that the arguments were made in the motion papers).

I joked a little at the start of this post about the unreasonableness of the respondent’s argument, but I can hardly fault her for raising it. Any colorable procedural argument that has the potential of affording the appellate court an escape from having to decide the appeal on the merits is usually too hard for a respondent to resist. And the language the Court of Appeal used to address it suggests that the justices found the argument creative, not frivolous. Creative arguments are how new law gets made.

Some basics about briefing

Greg May — Thu, 15 Dec 2011 19:24:56 +0000

Yesterday’s decision in Provost v. Regents of the University of California, et al., case no. G043523, offers some reminders on briefing. For those of you completely new to this, consider the sequence of briefing before you read any further: the appealing party (“appellant”) files his opening brief, the party defending against the appeal (the “respondent”) files his respondent’s brief, and then the appellant, at his option, files a reply brief.

Let’s start with the appellant’s opening brief, which the court criticized for at least two deficiencies. The first was the appellant’s failure to present his arguments correctly:

[S]ome of plaintiff‟s arguments are not confined to the point raised in the heading, also a violation of court rules. (Cal. Rules of Court, rule 8.204(a)(1)(B).) And many of the same arguments are repeated throughout the brief under various headings. Although we address the issues raised in the headings, we do not consider all of the loose and disparate arguments that are not clearly set out in a heading and supported by reasoned legal argument.

Got that? Even if you actually make an argument, merely presenting it incorrectly can result in it being ignored by the court. I suspect this is rarely prejudicial to the appellant, however. An argument that doesn’t merit its own heading from the writer probably isn’t a good argument in any event. But if the court refuses even to consider it, you’ll never know.

Appellant’s other sin was even more basic:

Defendants argue the opening brief should be stricken, justifiably taking exception to plaintiff‟s failure to provide record references in violation of California Rules of Court, rule 8.204(a)(1)(C). . . . In addition, we will generally consider only those facts and arguments supported by adequate citations to the record.

Put yourself in the Justice’s shoes (or at least the shoes of their research attorneys) for a moment. In front of you is a brief referring to evidence and proceedings in the record without telling you where any of it actually is in that record, which may be hundreds (or conceivably thousands) of pages long. Are you going to try to hunt those pages down?

The court declined to strike the appellant’s opening brief, as respondents requested, demonstrating some of the patience the Court of Appeal is generally known for, but should not be taken advantage of: “Although we decline to strike the brief, this should not be interpreted as approval of plaintiff‟s violation of the appellate rules.”

So, let’s get to the problems with the Reply Brief.

Appellant’s first mistake was filing a reply brief in excess of the word limit, apparently without a motion for permission to do so. The court rejected the brief, and in its order directing the appellant to file a compliant reply brief, cited the second problem with it: “we reminded [appellant] he could not raise new issues or ‘rewrite his opening brief.’ ” Despite this warning, the appellant’s revised reply brief did it anyway:

In addition, we will not address arguments raised for the first time in the reply brief (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-766) or documents in [appellant's] “Reply Appendix” filed with his reply brief because defendants lacked the opportunity to respond.

Appellant also tried with his reply brief to correct his failure to cite to the record in his opening brief:

In the reply brief, plaintiff supplies some record references although they are still incomplete, but this is too little, too late because defendants did not have the opportunity to respond.

You’d think from the name that the function of a reply brief — or at least its limited scope — would be obvious. The first definition that comes up for the word reply on dictionary.com is: “to make answer in words or writing; answer; respond[.]” (My emphasis.) As the opinion in Provost demonstrates, judicial treatment of reply briefs enforces this common sense notion, and will not allow an appellant to make arguments against which the respondent has no opportunity to defend.

The appellant in Provost lost sight of the proper purpose of a reply brief. Instead of responding to the arguments raised in respondent’s brief, the appellant apparently tried to correct defects in his opening brief. I can see how that might be tempting if you’re unfamiliar with the rules (or familiar with them, but desperate), but compounding initial briefing errors with more briefing errors didn’t get this appellant very far.

Highlights from an Evening with the Division 6 Justices

Greg May — Wed, 30 Nov 2011 21:11:58 +0000

Second District, Division 6 Courthouse in Ventura

Picking up CLE credit is never as easy or fun as an evening with the justices of Division 6, which I and a few dozen other lawyers did last night at the courthouse for District 2, Division 6 in Ventura. The discussion was very informal, but there was still a lot to be learned — or in some cases, have confirmed.

Much of the evening was give-and-take. I tried to take detailed notes, but I can only write so fast. So, to avoid misquoting anyone, I’ll stick to paraphrasing and, for the most part, will not attribute comments to any particular person. My intent is not to deprive anyone of proper attribution, but to avoid mistakes. That said, here a few themes that dominated:

1. Don’t try the case in the Court of Appeal

Gee, you’ve never read that here before, have you?

Although I’ve heard justices say it before, it amazes me every time I hear it: the justices see a lawyer on virtually every calendar that treats oral argument as a second opportunity to try the case. Rather than concentrate on the applicable standard of review, the lawyer will argue the relative credibility of witnesses, try to impress with flowery language, or try to influence the justices with body language and demeanor. Such lawyers stick out like sore thumbs, and they are not doing their clients any favors. Even lawyers from big firms full of Ivy League graduates can make these mistakes. (Obviously, not every trial attorney in the court of appeal does this.)

2. The justices go out of their way to give everyone a fair shake.

The justices are very aware that each lawyer represents a real client, whether a corporation or a living, breathing person with hopes and interests that will be affected by their decision. You don’t need to bring your injured client to court for them to realize that there is a real injured person’s future at stake in a personal injury appeal.

“Pro Pers” — people representing themselves — pose a special challenge. In my experience, they usually do a very poor job and are often motivated to appeal for reasons so personal to them that it is impossible to detach themselves from the case and do a good job, even if they have a reasonable handle on the standard of review. It would be easy for the justices to lose patience with these folks, but the justices realize that everyone deserves their day in court and that the appellate process itself, no matter how it comes out, can give litigants a sense of closure and knowing they’ve done everything they can.

3. The justices love their jobs

Really, really, love their jobs. They made it sound like such a happy place to work for everyone — attorneys, clerks, you name it — that if thay had left job applications on a table for people to grab on the way out, I’m sure the supply would have been exhausted.

4. The future of electronics in the Court of Appeal

When I go to a hearing in trial court, I usually have all of the papers and the most important authorities loaded into my iPad. This not only greatly reduces the amount of stuff I’ve got to carry, it can also let me navigate from point to point far more quickly than flipping through a bunch of paper documents to double check an argument or find something in the papers that is contrary to what my opposing counsel is saying. (Normally, you don’t want to be flipping around everywhere during a hearing, whether it’s through paper pages or digital ones. With the right degree of preparedness, you shouldn’t have to. But unanticipated time arise when it is helpful to do so.)

Justice Coffee asked if we (the attorneys in the audience) felt the court was paranoid for not allowing laptops, etc. in the courtroom. While recording with such devices is a concern, and much of the judiciary at large remains strongly opposed to more use of electronics and electronic access to the courtroom, there seems to be general consensus (if I can rely on the nodding of heads last night) that more electronics in the courtroom is an inevitability, and that the bar, not the bench, will drive change in that direction.

5. Congratulations and good luck to retiring Justice Paul Coffee

Justice Coffee will be retiring soon (I believe on January 31), so some of the evening was spent reminiscing. His career took him from San Jose to some “cow counties” to Ventura. I didn’t know until last night that he lives on a boat. Made me jealous! Even though he will soon become a landlubber, I’ll still wish him the best wishes that I, as a “boat school” graduate, can offer: fair winds and following seas, Justice Coffee!

California Supremes keep Ninth Circuit Prop 8 appeal alive

Greg May — Thu, 17 Nov 2011 19:02:51 +0000

The California Supreme Court’s much-anticipated opinion in Perry v. Brown was filed this morning. The court unanimously found that the Prop 8 proponents, who have a pending Ninth Circuit appeal from the federal district court decision finding the law unconstitutional, have standing to defend the law in court when the state attorney general refuses to do so. Answering certification of that question from the Ninth Circuit, the California Supreme Court concludes its long (61-page) decision with an unequivocal “yes”:

In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

As a result of the decision, Prop 8 proponents will be able to proceed with their appeal in the Ninth Circuit, where the proponents’ appeal has been hanging by a thread since the Ninth Circuit certified its question to the California Supreme Court last January, acknowledging that the appeal would have to be dismissed if the Prop 8 proponents lacked standing to defend the law.

Related post at Ninth Circuit Blog of Appeals.

Bad reasons to appeal may be hiding the good one(s)

Greg May — Wed, 16 Nov 2011 23:12:16 +0000

I’d love to have a nickel for every prospective client who has called me about appealing his case for the wrong reason. I don’t mean that he’s misidentified the best legal issue to raise, or even that his appeal has a very low probability of success. I mean reasons wholly apart from the merits of their case.

When one of these prospects calls, he doesn’t know he wants to appeal for the wrong reason. It’s up to me to deliver the bad news, usually.

You’re probably thinking that this is the part where I tell you not to call me if you’re motivated by any of these bad reasons. But the news isn’t always bad. (More about that below.) Bad reasons don’t mean you have no case. A bad reason just is never (or almost never) enough on its own. So even if you’re motivated by a bad reason, you should get advice on whether you have a good reason to appeal or, perhaps, attack the judgment in a post-trial motion.

What are some of those bad reasons? A partial list includes:

My attorney committed malpractice! (Maybe so, but . . . )
I hate my ex! (This one comes up all the time in family law cases.)
It’s a matter of principle! (Isn’t it always?)
There was a conspiracy! (“My opponents’ attorney and the judge were always sharing knowing looks . . . “)
The judge hated me! (Judges are overworked and underpaid; don’t take it personally.)
My opponent lied! (This is where the prospective client gets a crash course from me in standards of review.)
The judge believed my ex because she wore a short skirt and low-cut top when she testified! (Really.)
The jury was a bunch of idiots! (Not helpful, even if true, unless . . . )

Notice how they all have exclamation points? The client who wants to appeal for one of these reasons is always emphatic about it, on a mission because anyone with half a brain can see that he is a victim of a gross miscarriage of justice. It’s just so obvious.

But again, just because your reason for wanting to appeal may not be good doesn’t necessarily mean that you have no valid ground to appeal. You can hate your trial attorney, hate your ex, be self-righteous, and be 100% correct that every single witness for the other side lied and all their documents were forgeries, and still have a good — or at least reasonable — case. Get advice. Once your appellate lawyer points out you’re concentrating on the wrong thing, you can start discussing the right things.

In future posts, I’ll expand on some of these bad reasons to appeal, and even talk about some rare exceptions where one or more of these reasons might actually be a good point to raise on appeal.

A different kind of “three strikes and you’re out”

Greg May — Thu, 27 May 2010 23:08:29 +0000

A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point.

[Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red herring, a straw man.

(Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210 [emphasis added].)

That’s three strikes. Or, really, all the same strike, stated three ways. This is another example of judges being able to get away with clever or sarcastic writing that most lawyers should probably avoid. Judges can get even more colorful. Yet, a lawyer takes a big chance in doing so, especially (in my view) in the court of appeal. So unfair!

Real legal research on your iPhone

Greg May — Wed, 03 Feb 2010 05:22:24 +0000

: Image via CrunchBase

If you are an iPhone-using lawyer, you really should subscribe to the iPhoneJD blog, where New Orleans attorney Jeff Richardson keeps you updated not only on specific legal uses for the iPhone, but on all things iPhone.

Yesterday, he reviewed Fastcase, an iPhone app for legal research, and the opening paragraph could hardly have been more glowing:

I will start this review with what probably belongs in my conclusion: Every single lawyer using an iPhone should download the Fastcase app. Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today. This app is that useful.

The rest of his review is very thorough.

The application itself is free, but the two subscription plans offered have an annual cost of $700 and $1000. While that’s a heck of a lot less expensive than commercial services like Westlaw and Lexis, Fastcase will hardly replace either. It will be most useful for quick lookups on the go.

A lucky few won’t have to conduct any cost-benefit analysis. Seventeen bar associations (so far) offer Fastcase to their members free. That includes several statewide bar associations. Unfortunately, California is not among them, but a couple of Ninth Circuit states are: Arizona, Nevada and Oregon.

UPDATE (2/2/10): On second thought, this application might be good for a lot more than just the occasional quick lookup. On an iPad, it will be a lot more readable. Hmmm, up until know, I was pretty sure I wasn’t going to buy an iPad.

(Cross-posted at The Ninth Circuit Blog of Appeals.)

The “underground body of law” – the influence of unpublished opinions

Greg May — Tue, 26 Jan 2010 18:58:42 +0000

There’s nothing quite so frustrating as finding the perfect case — factually and legally on “all fours” with yours, with a “slam dunk” holding — that has been depublished (or was never published). California Rules of Court, rule 8.1115(a), prohibits citation to opinions “not certified for publication or ordered published.” That “perfect” case might as well not exist if it’s not published.

Well, not quite. Such cases can be well worth finding because, in the absence of published cases, they can still be quite helpful in formulating argument and working logically through the issues. It is such influence in the absence of publication that leads presiding justice Kline, dissenting in People v. Moret, case no. A123591 (1st Dist. Dec. 28, 2009. modified on denial of rehearing Jan. 22, 2010), to cite the existence of an “underground body of law” as his principle justification for publication of Moret:

[Health and Safety Code section 11362.795] has, however, been interpreted and applied in a significant number of unpublished and therefore noncitable opinions. (Cal. Rules of Court, rule 8.1115.) Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the unpublished opinions may influence the strategy of counsel and the decisions of trial and perhaps even appellate courts. The existence for a long period of time of an underground body of law on the meaning of [Health and Safety Code] section 11362.795 (to which some members of this panel have admittedly contributed) is injudicious.

The cited code section concerns use of medical marijuana. I can’t be the only one who finds it a little ironic that the body of case law on it would be underground.

Supreme Court denies review in Burlage v. Superior Court

Greg May — Thu, 21 Jan 2010 21:52:42 +0000

: Image via Wikipedia

The Supreme Court denied review today in Burlage v. Superior Court, leaving intact the decision that, by speculation of some (including yours truly), will increase the number of legal challenges to arbitration decisions. I won’t go so far as to say that it will “open the floodgates,” but it certainly opens an avenue to judicial review that many would not have tried before the decision was published.

Expect to see many challenges that assert, though not in so many words, that the legal error that occurred in their case is grounds for vacating an award if the error led the arbitrator to exclude evidence. The challenge for these litigants will be to squeeze the history of their arbitration proceedings into the confines of Burlage, and its interpretation of Code of Civil Procedure section 1286.2, subdivision (a)(5). There will be plenty of fights over what those confines are.

The section headed “Uncertainty and a Little History” at the outset of Justice Gilbert’s opinion in Burlage certainly seemed to tee the case up for Supreme Court review:

We look to legal precedent in deciding cases. We believe the law is predictable and provides litigants and counsel a reasonable degree of certainty. True, but not always.

In 1991, we wrote what we thought was a routine arbitration opinion. (Moncharsh v. Heily & Blase (Apr. 2, 1991, B048936) [nonpub. opn.].) We relied on decades of precedent in our unpublished decision to affirm the arbitration award because no error appeared on the face of the award. In dicta, we noted that had the error appeared on the face of the award and created substantial prejudice, we would have reversed.

To our surprise, our Supreme Court granted review. Our holding was affirmed, but our dicta “reversed.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1.) Oh well, nobody’s perfect. Moncharsh held that judicial review of an arbitrator’s decision regarding questions of fact or law is extremely limited. Thus, even though an error of law appears on the face of an arbitration award and causes substantial injustice, it is not subject to judicial review in the absence of a limiting clause or as provided by statute. (Id. at p. 25.)

For the next decade, courts have wrestled with the question of when and under what circumstances judicial review of an arbitration award is proper.

Though we have no Supreme Court review this time, we’re about to witness another round of wrestling. As more and more courts consider the question, significant judicial discord may develop, and Justices Baxter and Corrigan — the two justices who were in favor of review — might sway their colleagues to grant review in a similar case.

Judicial Council meeting this week to discuss impact of court closures

Greg May — Mon, 18 Jan 2010 18:05:08 +0000

A Friday afternoon press release (PDF) from the Administrative Office of the Courts announced that this Wednesday’s meeting of the Judicial Council will include a review of the impact of the court closure policy instituted last September. From the agenda:

Based on survey responses from the Supreme Court, Courts of Appeal, 54 superior courts, and 275 justice system partners, the Administrative Office of the Courts (AOC) recommends continuing the one-day-per-month judicial branch closures through June 2010, as directed at the July 29, 2009, Judicial Council meeting. The closures provide a viable method in the short term to absorb the significant budget reductions imposed on the branch, although they are far from a perfect tool and have unquestionably affected court operations and the smooth and effective delivery of justice. The AOC further recommends that the council reaffirm its commitment to keep courts open and accessible to the public and to advocate for sufficient resources to avoid the need for court closures in fiscal year 2010–2011 and direct the Administrative Director of the Courts, in consultation with branch leaders to develop recommendations and guidelines for limited closures for 2010– 2011 should sufficient resources not be provided.

The agenda references this 28-page report (PDF) from the AOC. The meeting will be audiocast live at this link.

Citations of the future

Greg May — Fri, 15 Jan 2010 18:41:22 +0000

Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority:

No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last.

If you’re an academic writer, you should check out the article. Here’s the abstract at SSRN, where you can access the complete article after signing up for a free account:

For decades, legal footnotes have been the deserving target of both ample criticism and self-mockery. Apart from their complaints as to footnotes’ mere existence, most critics draw a bead on the ballooning of footnote content. Some journal editors, aspiring to respond to this sound theme, hopefully inform their authors of a preference for “light footnoting.” But where does an author begin to trim, and what editor has the audacity to slash what the author (or her research assistant) has so laboriously compiled below the line? Changing our footnote habits is about benefits and costs. To gain the former, we must ante up. If criticism began the round of bidding, this article modestly raises the stakes, suggesting a rule of reason that might govern the author’s, the editor’s, and the reader’s expectations for footnotes. A gamble, perhaps, but one that might be worth taking.

Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel

Greg May — Wed, 13 Jan 2010 08:37:36 +0000

When a plea agreement includes a waiver of rights to appeal, claim ineffective assistance of counsel, and to move to withdraw the plea, can it logically be enforced to preclude a claim of ineffective assistance of counsel in the advice to enter into the agreement? Last week, in People v. Orozco, case no. F056712, (5th Dist. Ja. 8, 2010), the court of appeal joins several federal courts in reaching the only sensible answer: of course not.

To hold such a waiver enforceable “would deprive a defendant of the ‘opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.’ ” [Citation.]

We agree with the federal authorities and find justice dictates that a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness.

“Octa-Mom” wins one in court

Greg May — Tue, 12 Jan 2010 23:56:37 +0000

“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v. Superior Court , case no. G042509 (4th Dist. Jan. 8, 2010).

Paul Peterson filed a petition to appoint a guardian to handle financial affairs for the octuplets. (Peterson asserted that his non-profit organization wanted to ensure that financial compensation received from photos or video of the octuplets was preserved for their majority, which explains why no guardianship was sought for the remaining children.) Suleman moved to dismiss, and petitioned for a writ of mandate after the trial court denied her motion. As unsympathetic a person as Suleman may have been in the press, Peterson looks pretty bad, too:

This is an unprecedented, meritless effort by a stranger to a family to seek appointment of a guardian of the estates of the minor children. The petition‟s allegations are insufficient to infringe on a parent‟s civil rights or to rebut the presumption under California law that a parent is competent to manage the finances of his or her children. There is nothing in the petition that shows that the best interests of the children in the management of their finances are not being served by Suleman.

I always liked the joke “It’s on the internet, so it must be true!” Peterson learns that a court petition is not the time to try to take that whimsical expression seriously:

What information do we have before us? Petersen is not a relative under section 1510, subdivision (a). Petersen has never met and never had any contact with Suleman, her children, or any member of her family. All of the information presented in the petition for appointment of a guardian has come from television or the Internet. Petersen has provided no documentary evidence (much less admissible evidence) that raises a reasonable inference of wrongdoing. The information provided can be summed up as follows: Suleman and her children have appeared on television and the Internet, presumably in exchange for money. No evidence of financial mismanagement on the part of Suleman is offered. Petersen admits he does not know whether Suleman has taken the appropriate steps to ensure that 15 percent of each child‟s portion of any earnings has been placed into a [statutorily mandated] Coogan Trust Account.

(My emphasis, footnote omitted.) Not only does Suleman get the guardianship petition dismissed, she also succeeds in stopping an investigation ordered by the trial court into her family’s finances.

The average person following this on the news probably wrote off Suleman’s chances of prevailing. Lawyers not paying close attention may also have rolled their eyes, in light of the overwhelming odds against having a writ petition heard on the merits, let alone winning. However, Suleman presented a statutory interpretation issue of first impression of great importance — who has standing as “another person on behalf of the minor” under Probate Code section 1510, subdivision (a) to bring a guardianship petition — that not only caught the court’s eye, but actually resulted in a win.

New, and hopefully improved, design

Greg May — Mon, 11 Jan 2010 19:10:40 +0000

Regular readers will note the blog’s new design, which debuts today. When I started my new blog, The Ninth Circuit Blog of Appeals, I utilized a customizable theme that emphasizes search engine optimization. I’ve switched over to the same theme here for the SEO benefits and in order to make the designs of the two blogs similar enough to suggest a relationship.

I still have lots of touch-up work to do, but I decided it was better to reopen the blog to access today as scheduled rather than spend another day or two tinkering without substantive updates. So, please bear with me as I clean up around here over the coming weeks.

Video coverage of Prop 8 trial enjoined, at least temporarily

Greg May — Mon, 11 Jan 2010 19:03:08 +0000

I have a post up at The Ninth Circuit Blog of Appeals on the latest development in the ongoing battle over video coverage of the Prop 8 trial.

Don’t jump to conclusions on the standard of review

Greg May — Thu, 07 Jan 2010 06:41:30 +0000

“This is one of those cases where some exposition on the topic of the standard of review is necessary to sort out the case.” When a court begins its analysis with that sentence, as the court in Le v. Pham, case no. G041473 (4th Dist. Jan. 6, 2010) did yesterday, you know the opinion is going to be an interesting read — if you’re an appellate attorney, anyway.

Le is a great study in why it is important to think carefully about the appropriate standard of review. Respondents, who had prevailed against a cross-complaint against them, probably thought they had this case in the bag, but because the standard of review was not what they thought it was, judgment on the cross-complaint was reversed.

The Les, a married couple, together owned 50% of the stock in a pharmacy corporation; Pham owned the other 50%. The bylaws obligated the Les to give notice of any proposed sale of their shares to a third party and gave Pham a right of first refusal, but failed to specify a time in which to exercise it. The bylaws also dictated that any sale below the price in the notice was void.

The Les sold their shares to third parties, the Hoangs. Pham, contending the sale was in violation of her right of first refusal and was void because the sale price was below that provided in the Les’ notice, refused to recognize Paul Hoang as a shareholder and would not grant him access to the corporate records or seat him as a director. Paul Hoang did not file a change of ownership form with the California Board of Pharmacy. As a result, the board closed the pharmacy for approximately three month starting in March 2007 and kept it on probation through the end of that year.

The Les and Hoangs sued Pham, contending the sale was valid and Pham’s refusal to give them access to the corporate records was wrongful, that Pham had failed to file proper forms with the state, and that she had converted corporate funds to her own use. Pham cross-claimed, alleging breach of fiduciary duty against the Les and fraud against Paul Haong (based on holding himself out as a shareholder). The complaint and cross-complaint were both alleged derivatively on behalf of the corporation as well.

The case was tried to the court, and the court of appeal summarized the result thus:

After a bench trial, Pham prevailed on the Les’ and Hoangs’ complaint, while the Les and Hoangs prevailed on Pham’s cross-complaint. That is, the court, in its statement of decision, ruled that the Les‟ attempted transfer of shares to the Hoangs was null and void because it did not comply with the corporate bylaws. It was obvious, after all, that the Les had attempted to sell the shares to the Hoangs for a better price ($24,000 as distinct from $70,000) and on better terms (installments rather than cash) than had been offered Pham in the notice of intent to sell.

As to Pham’s (and the corporation’s) cross-complaint against the Les for breach of fiduciary duty, the statement of decision concluded that they had “failed to carry their burden of proof.” The trial judge wrote: “Generally speaking, at trial, little evidence was adduced in support of the cross-complaint.” She also wrote, however, that Pham “did not have an adequate opportunity to exercise her right of first refusal” given that Dieu-Hoa Le had “unilaterally demanded that the written offer be made within 10 days.”

Read that carefully. That those facts are undisputed is important.

It’s tough to summarize the point regarding the standard of review any more concisely than the court has already done, so I’ll simply provide the following (and quite long) excerpt. As you read it, I think the lesson will become clear: don’t jump to conclusions on the standard of review.

The obvious starting point is that, since Pham and the corporation are challenging a judgment after a court trial, they initially face the formidable substantial evidence standard of review.

The substantial evidence standard has two components, and both work generally against appellants: First, all conflicts in the evidence must be resolved in favor of the prevailing party; second, all reasonable inferences from the evidence (all conflicts already having been properly resolved) must be drawn in favor of the prevailing party. (See Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group (2009) ¶¶ 8:38, 8:60, pp. 8-18, 8-8-26.)

We should note, then, that Pham and the corporation are necessarily in the position of saying that the evidence, despite all the resolution of conflicts and having all reasonable inferences drawn against them, nevertheless compels a judgment in their favor, on the two issues they have raised in this appeal: The Les’ fiduciary duty and Paul Hoang’s alleged fraud. Not surprisingly, the brief filed on behalf of the Les and Hoang lavishes attention on the substantial evidence rule. The Les and Hoang are most certainly correct that if we find any substantial evidence obviating either (a) any fraud on Hoang’s part or (b) the existence of a fiduciary duty, or the subsequent breach of a fiduciary duty if there is one, we must affirm the judgment.

However, if one digs a little deeper — for example, by continuing to read the remainder of the respondent’s brief — it turns out that the substantial evidence rule is actually irrelevant in the context of the issue of whether the Les’ owed a fiduciary duty as shareholders to Pham, and whether any such duty was breached. There is no conflict as to the facts of ownership of the corporation: 50-50. There is no conflict in the evidence regarding the sale (or, better, attempted sale) of the Les’ half of the corporation to the Hoangs. And there is no conflict in the evidence as regards the consequences of that attempted sale, namely a cease and desist order from the California State Board of Pharmacy closing the business for about three months beginning in March 2007.

Thus, the Les’ actual argument on the fiduciary duty issue presented in their brief turns out not to be a factual one at all (e.g., the Les don’t say: “there was evidence that we didn’t really own any shares at all, or that we offered our shares to Pham at the same price and terms as we offered to the Hoangs”), but a legal one: The Les assert that by virtue of the undisputed fact that they were 50-percent shareholders in the corporation — that is, were not majority stockholders — they had no fiduciary duties to the corporation or to the other 50-percent shareholder. Of course, when the facts are undisputed and the question on appeal is wholly a legal issue, the proper standard of review is independent review. (E.g., People v. Superior Court (2007) 41 Cal.4th 1, 7 (Decker) [because dismissal of attempted murder charges “was based on undisputed facts,” it constituted “a legal conclusion subject to independent review on appeal”].)The trial court‟s comments in its statement of decision, then, that (1) “at trial, little evidence was adduced in support of the cross-complaint” and (2) Pham and the corporation had “failed to carry their burden of proof,” while understandable, miss the mark in analyzing the problem of whether the Les had a fiduciary duty toward Pham as regards the bylaws‟ right-of-first-refusal provision.

The comments were quite understandable if one thinks about how the trial judge experienced the unfolding of the trial. Precisely because the relevant facts involving the attempted sale were undisputed, most of them were presented in the context of the plaintiffs’ (the Les and Hoang) case in chief seeking to validate the sale from the Les to Hoang. The trial was ninety percent over, in terms of counting pages in the reporter’s transcript, when the Les and Hoang rested their case. That case in chief included, for example, calling Pham herself as an hostile witness, and the only witness that Pham and the corporation called after the plaintiffs had rested was the state Board of Pharmacy inspector, who explained why the corporation had had to close down for about three months in 2007. So we can understand that it might not have seemed like Pham and the corporation were producing much evidence on their cross-complaint at trial. Most of the relevant (and undisputed) facts bearing on the legal question of whether the Les had a fiduciary duty and, if so, violated it, had been brought out in the plaintiffs’ case in chief. But just because the undisputed evidence favoring the cross-complaint also happened to come out on the plaintiffs’ case in chief does not mean it was not available to support the cross-complaint.

I don’t find anything surprising about the court’s analysis. But I’m not so ready to call the trial judge’s comments “understandable if one thinks about the way the trial judge experienced the unfolding of the trial.” Were there no closing arguments or briefs? What about input from the parties regarding the statement of decision? (See Code of Civil Procedure section 632.)

The uncontradicted nature of the evidence seems pretty clear to me. Then again, hindsight is 20/20, isn’t it?

Now in session: The Ninth Circuit Blog of Appeals!

Greg May — Tue, 05 Jan 2010 05:54:41 +0000

The Ninth Circuit

Just before Christmas, I announced that this blog would be spinning off a new blog, The Ninth Circuit Blog of Appeals, with the start of the new year. I’m pleased to announce that The Ninth Circuit Blog of Appeals is now in session. This is the follow-up post I promised about how I reached the decision to split this blog and my plans for managing both of them.

First, an explanation as to why I am resuming blogging on a more regular basis. As regular readers recall, my blogging frequency dropped off dramatically in 2009. I posted from time to time, but not with the regularity and enthusiasm with which

I started this blog in spring of 2007. (Then again, I’m not sure any solo blogger could have kept up that pace for long.)

A funny thing happened while I was away from this blog.

Traffic doubled. People called and hired me after finding me through the blog. And, while I was worried that the drop off in my blogging would eventually catch up to me, and that I would be passed by other California appellate bloggers, it turns out many of them — the practicing attorneys, anyway — blogged even less than I did!

Now, all of that might suggest the whimsical view that infrequent blogging is the key to success! But I don’t look at it that way. I see the past year as evidence that renewed and consistent blogging will bring even more traffic and help reestablish my blogging niche. That way, I won’t be embarrassed at the state of the blog the next time I get mentioned at Lexblog.

Why spin off The Ninth Circuit Blog of Appeals?

There was one thing that was missing, or at least very infrequent, about the traffic generated by this blog: inquiries about

Ninth Circuit appeals. Virtually all my inquiries were about California state court appeals. When I did get an out-of-state inquiry, it was often for an appeal in some state court where I am not admitted to practice, or an appeal in another federal circuit.

That made me think that federal subject matter posted on this blog is hidden from the typical internet researcher. Who is going to look for information about federal appeals on a blog called The Calfornia Blog of Appeal, even if it shows up in their search results?

The new blog is an effort to reach those readers. It seems to me that someone with a federal case in Arizona who turns up a result on The Ninth Circuit Blog of Appeals is far more likely to look at it than at the identical content on The California Blog of Appeal, especially if that someone is a lawyer familiar with the terminology. (A fair number of my inquiries come from lawyers rather than their clients.) But even a party with little knowledge of the court system is likely to have learned from his trial lawyer that his appeal is to the Ninth Circuit.

I’ve taken steps (amateur ones) to ”SEO” the new blog. That’s “search engine optimization” for you non-techies. And its designed to draw ninth circuit traffic like flies. I hope.

What should regular readers expect here?

The state-federal division between the blogs isn’t as simple as it sounds. You lawyers out there can think of it as the Erie

doctrine for blogs. The question I face is similar to that faced by the Erie court both in the nature of the split and the difficulty of answering the question: when does a post belong on the state court blog The California Blog of Appeal and when does it belong on the federal court blog The Ninth Circuit Blog of Appeals?

Well, the easy answer is that posts about federal cases go on The Ninth Circuit Blog of Appeals and those about California state court cases go on The California Blog of Appeal. The problem is, that is the easy answer, not necessarily a good one. Too many posts transcend jurisdiction.

For starters, what about cases that affect the law in both court systems? For example, a case where the Ninth Circuit certifies a question to the California Supreme Court? Or a United States Supreme Court case regarding constitutional criminal procedure that governs all criminal cases, state or federal?

In addition, I’ve blogged about many things besides developing case law. Legal humor, legal technology, legal education , and even law practice and marketing are occasional topics here. I blog about legal writing and legal research quite a bit. I even blog about blogging and note the occasional oddity.

So, I’ve been pondering for several weeks how to divide these seemingly transcendant posts between the blogs, and I’ve come up with a hard and fast rule: I’m going to wing it. But I’m going to wing it with an eye towards taking care of my regular readers. I may cross-post some posts at both blogs. I may write a summary on one blog that links to the full post on the other. I ma

y try to put a slightly different spin on the same post at the respective blogs. The lighter and more personal posts are likely to be posted here. Until I establish some kind of rhythm, my principle concern will be not to make the transition too jarring for my regular visitors. My apologies in advance for any inconvenience.

There is, however, one way to make sure you don’t miss anything. Subscribe to both RSS feeds! (State and Federal.)

So, go read my introductory post at The Ninth Circuit Blog of Appeals, poke around a bit, and feel free to offer any suggestions for improvement.

Finally, within the next week or so I will be converting The California Blog of Appeal to a new theme that complements the theme at The Ninth Circuit Blog of Appeals and will allow me to implement better search engine optimization. My target date for the new theme is Monday, January 11. You may find this blog down occasionally until you see it with the new theme

Felony-misdemeanor preemption analysis yields odd result

Greg May — Tue, 05 Jan 2010 00:40:23 +0000

Most of the time, lawyers encounter preemption issues in the context of conflicts between federal and state law or between local and state law. But horizontal preemption is also possible. Even different criminal statutes in the same state can trigger preemption issues, as in People v. Murphy, case no. E046742 ( 4th Dist. Dec. 28, 2009):

Defendant contends the Legislature enacted misdemeanor statutes, which more specifically defined the felony offense for which she was convicted in count 1, subsequent to the latter’s enactment; thus, she asserts her felony conviction is preempted and must be reversed.

Specifically, the defendant contended that her conviction for procuring or offering false information for filing in a pubic office (Pen. Code, § 115, subd. (a)), with which she was charged for submitting a false stolen vehicle report to the California Highway Patrol, was preempted by Vehicle Code section 20 (false statement or knowing concealment of any material fact in any document filed with the Department of Motor Vehicles or the Department of the California Highway Patrol) and Vehicle Code section 10501 (filing of false or fraudulent report of theft of a vehicle with any law enforcement agency with intent to deceive). At first glance, it looks like a pretty good argument, but it doesn’t withstand the preemption test.

“The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct. [Citations.] To determine the applicability of this doctrine in a particular case, the courts have developed two alternative tests. Under these tests, a prosecution under the general statute is prohibited if: (1) “each element of the general statute corresponds to an element on the face of the [specific] statute‟; or (2) “it appears from the statutory context that a violation of the [specific] statute will necessarily or commonly result in a violation of the general statute.‟ [Citations.]” (People v. Jones (2003) 108 Cal.App.4th 455, 463.)

“Consideration must be given to the entire context surrounding the “special‟ statute to determine the true overlap of the statutes and to ascertain the intent of the Legislature.” (People v. Jenkins (1980) 28 Cal.3d 494, 503.) “The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and „requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision. . . .‟ [Citation.]” (Id. at pp. 505-506.)

What’s interesting about the court’s reasoning in concluding that the Penal Code provision is not preempted is that the elements that differentiate the Vehicle Code misdemeanor provisions from the Penal Code felony provision (and thus prevent preemption) arguably make the misdemeanors harder to prove and more serious than the felony offense. Both of the Vehicle Code provisions require filing a document, whereas the Penal Code provision only requires that the defendant “procure” or “offer” it. The nature of the falsehood in the misdemeanor statutes also seems more serious and harder to prove than the falsehood in the Penal Code provision. Vehicle Code section 20 requires the false statement to be material, and Vehicle Code section 10501 requires that the false statement be made with intent to deceive; yet, neither materiality nor intent to deceive is an element of Penal Code section 115, subdivision (a).

The answer to this curious state of affairs appears to be the in the court’s exlpanation of the purpose of Penal Code section 115:

As the People note, Vehicle Code section 10501’s lack of a requirement that the false report, if genuine, could have been legally filed provides a legally decisive distinction reflecting the Legislature‟s intent, pursuant to Penal Code section 115, to protect recordation of documents in public institutions and the public’s reliance upon them, a concern not apparent in Vehicle Code section 10501. Additionally, as noted above in the discussion of Vehicle Code section 20, Penal Code section 115’s prohibition on knowingly procuring or offering false instruments to be filed is legally distinct from Vehicle Code section 10501’s prohibition on making false statements or actually filing a false report of vehicle theft. This is because an offense under Penal Code section 115 is more egregious because it inherently induces the conduct and reliance of others in its commission.

***

Similarly, a violation of Vehicle Code section 10501 will not necessarily, or even commonly, result in a violation of Penal Code section 115 because the former is concerned with the filing of the false or fraudulent report by the reporter himself or herself; thus, it lacks the more morally turpitudinous act of inducing behavior by another.

The court seems to be saying that the purpose of Penal Code section 115 — to prevent reliance by the public on falsified instruments – is served by imposing criminal liability just for getting a false document even close to filing, regardless of intent. In other words, people need to be darn careful about what they offer for filing to public agencies.

I get that, in the abstract. And, I agree that the technical test for preemption is not met in the case. It seems odd, however, that the practical result of applying the preemption test should lead to this result. The fact of the matter is that the defendant filed a false report of vehicle theft with the highway patrol, which the legislature deemed less punishable than the conduct proscribed by the more general felony statute. What purpose does Vehicle Code section 10501 serve if not to make less culpable those persons who file a particular false document that is not likely to be relied upon by the public?

When the Attorney General agrees with you

Greg May — Mon, 04 Jan 2010 22:56:33 +0000

Respondents sometimes must concede minor points along the way while arguing that such points do not require reversal. But seldom does one see the respondent agree that a judgment is even partially reversible.

One is more likely to see it in a criminal appeal than in a civil appeal, especially when the criminal appeal involves errors in sentencing, as in People v. Frausto, case no. B212054 (2d Dist. Dec. 28, 2009), where the attorney general agreed that the trial court erred in imposing three cumulative 5-year sentencing enhancements under Penal Code section 667, subdivision (a)(1) for each of three prior serious felony convictions tried in a single proceeding and that the defendant had been awarded only 464 of the 466 days of presentence custody credits to which he was entitled. (Not that it did the defendant much good. The 2 extra days of presentence custody credits — 2 days — were applied against a sentence of 214 years to life. Since the three 5-year enhancements were added consecutively to that sentence, the 10-year reduction in enhancements was likewise not much comfort to the defendant.)

The first (and, so far, only) time I got a brief from the attorney general agreeing with my position, I was stunned. I noticed it when I skimmed through the headings of the respondent’s brief, and thought to myself, “Must be a typo. They left out the word ‘not.’” Even when I read the argument under the heading, I had to read it three times just to make sure that I was reading it correctly!

Reminder: Supreme Court’s Los Angeles office closes for good today

Greg May — Thu, 31 Dec 2009 07:13:15 +0000

Today is the last day of operation for The California Supreme Court’s Los Angeles clerk’s office, which is closing for budgetary reasons. The press release announcing the closure states that the Supreme Court will continue to schedule oral arguments in Los Angeles, but litigants must now file all documents at the court’s San Francisco clerk’s office.

Unlike the Ninth Circuit, this blog is soon to be split in two

Greg May — Wed, 23 Dec 2009 06:54:04 +0000

And just how, you might be wondering, is a blog with a single blogger going to split up?

Since this blog’s inception, I have covered case law and issues in the Ninth Circuit as well as California state court. Based on responses to the blog, however, it appears few people arrive by looking for federal information. Am I missing out on readers — and maybe even business — by having coverage of federal issues buried in a blog called The California Blog of Appeal?

Well, I’m going to try to find out. Starting January 1, 2010, your humble blogger is going to be pulling double blog duty, covering case law and issues from California state court here and covering case law and federal issues in the Ninth Circuit at The Ninth Circuit Blog of Appeals. The new blog is still under construction, but if you care to bookmark it prior to the grand opening, click here.

I’ll have a lot more to say on January 1 about how I reached the decision to split the blog, how I intend to avoid duplicate posts on both blogs on subjects applicable to both (legal writing, e.g.), and how I intend to minimize inconvenience for my regular readers who wish to follow both blogs.

UPDATE (12/29/09): The split may be delayed until January 4. I’m running into technical difficulties with the design of the new blog. Nobody is going to be reading law blogs on New Year’s Day anyway . . . are they?

SCOTUS holds discovery ruling requiring disclosure of privileged information is not appealable

Greg May — Tue, 22 Dec 2009 11:20:53 +0000

Richard Westfall at Rocky Mountain Appellate Blog wrote up the first SCOTUS opinion authored by Justice Sotomayor, Mohawk Industries, Inc. v. Carpenter, in which the unanimous court (with a separate concurrence from Justice Thomas) holds that a discovery order is not immediately appealable under the “collateral order doctrine.” Westfall summarized the case:

In Mohawk, the district court ordered Mohawk to turn over documents Mohawk asserted were protected by the attorney-client privilege. The collateral-order doctrine allows for immediate appeals if: (1) the particular ruling conclusively determines the disputed question; (2) resolves an important issue separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment. Some circuits allow for immediate appeals under the collateral-order doctrine to review whether an order violates the attorney-client privilege. The Supreme Court held in Mohawk that orders requiring disclosure of arguably privileged material will have to wait for a final judgment because they are reviewable after judgment, however imperfectly. Justice Sotomayor noted that parties in such situations can defy disclosure orders and suffer sanctions, which will then be reviewable, or subject themselves to contempt of court, thereby also obtaining review.

Westfall urges the Colorado state courts not to adopt the rule, to which I say . . . be glad you don’t practice in California, Steve! In California state courts, discovery rulings are generally not appealable, even where the disclosure of privileged information would result. In such a situation, the party seeking review must do so by petitioning for a discretionary writ, and hope that the issue presented and the gravity of the disclosure are enough for the court of appeal to exercise its discretion to hear the petition on the merits.

Mohawk Industries resolves a circuit split in which the Ninth Circuit was in the minority camp that allowed appeal from such rulings. (In re Napster, Inc. Litigation (9th Cir. 2007) 479 F.3d 1978.) I’ll have more on the federal angle in an update.

Google Scholar’s legal database

Greg May — Mon, 21 Dec 2009 17:11:28 +0000

: Image via Wikipedia

I’m a little late on this . . . OK, I’m a lot late. Last month, Google announced a searchable database of case law and legal journals on Google Scholar:

Starting today, we’re enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the “Legal opinions and journals” radio button, and try the query separate but equal. Your search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity [sic] of “separate but equal” facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

I haven’t had time to test it out thoroughly, but in just a few minutes I was able to find my way around pretty well, and there appear to be quite a few search options. Looking up a case by its citation is much like the paid services: just type the citation in the search box at Google Scholar. There are options on the advanced search page to limit searches by subject matter, to search only federal cases, and to search any mix of individual states. Law journals can be searched by author, journal, date range, and any combination thereof. (Don’t worry if you don’t have the citation format for the law journal handy; identifying it by full name appears to work just fine.) Google provides a page of advanced search tips.

Cases cited in documents are linked for ready access with a click, just like the paid services. Of course, authorities not archived in Google Scholar are not linked, and the cases do not have the headnotes that appear in Westlaw or Lexis cases, and the date range of cases available so far is limited. For details, check out the “About” page for Google Scholar and follow the links in the left margin.

Unlike the free searching on Findlaw, one need not create an account to use the service. That’s nice.

Overall, this is a worthwhile resource, and perhaps especially for law bloggers who want to provide links to case law that won’t expire (like those on the California court websites do) and are is accessible to all readers. I’m going to take a serious look at using it for links on this blog.

UPDATE (12/21/09): I had time to play around with this a little more and wanted to alert readers that while the Google Scholar site does not require any form of membership, getting full access to journal articles in the results may require you to open an account at the site actually hosting the article, such as SSRN (which is free). However, I did run across an article hosted elsewhere that required payment for full access.

UPDATE (12/23/09): Legal Writing Prof Blog notes a discrepancy to watch for between Google Scholar results and the official reporters, and gives the common sense advice “If you’re going to cite to legal authorities found through Google Scholar, make sure you check your results against the official (or commercial) version, as applicable, to ensure accuracy.”

Make the record easy on the eyes, please

Greg May — Mon, 21 Dec 2009 12:00:13 +0000

I was updating my blogroll and checking up on some of those links in preparation for a re-vamp of this site and a new blog project (more about that tomorrow), and I ran across a year-old post at Criminal Appeal I couldn’t agree with more, which starts:

Dear Court Reporters,

Having finished reading another all-capitalized reporter’s transcript it’s time to again implore you to remember that the proper use of capitalization is not simply a matter of style, but it is more a convention designed to assist the reader and prevent headaches. Capitalization helps the reader find the beginning of the sentence. Lower case letters are easier to discriminate from each other.

Style and ease of reading aside, you’d think the ALL CAPS convention might have been abandoned after it was adopted in the early internet days for use in plain text emails and online bulletin boards and chat rooms as a way of SHOUTING IN WRITING ONLINE. Once people got rich text format email ability (allowing for underlined, bold, and italicized type), the ALL CAPS SHOUTING ONLINE convention may have abated somewhat, but I’m still reminded of it whenever I read an ALL CAPS trial transcript.

I say we leave the ALL CAPS convention for deposition transcripts, where most of the shouting really happens!

Lights! Camera! Call your first witness! Ninth Circuit opens up district courts to cameras.

Greg May — Fri, 18 Dec 2009 17:55:37 +0000

The Judicial Council of the Ninth Circuit issued a press release yesterday (PDF) announcing a pilot program allowing use of cameras in district court courtrooms. The release included this comment from Chief Judge Alex Kozinski:

“We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding,” Judge Kozinski said.

I’ve heard heavy criticism of the use of cameras in court. Many criticized the gavel-to-gavel coverage on the O.J. Simpson case because they believed it caused the attorneys (and even the judge) to grandstand, and some felt that it contributed to Judge Ito “losing control” of his courtroom. Assuming the validity of those criticisms, I don’t think one need worry that those problems will be replicated in the federal district courts. Federal judges are hardly known for allowing attorneys to get away with misconduct.

And the question everyone is asking in the wake of this announcement: will the Proposition 8 trial be televised? Here’s the only clue given by the press release:

Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge. The participating district courts will be asked to evaluate their experiences and report to the Council.

I wonder what “consultation” means in this instance. At one extreme the chief circuit judge would have veto power. At the other, the chief circuit judge would merely advise and leave the final decision to the chief district judge. If I can find more detail about this, I’ll post it.

Arbitration challenges get a big boost — but maybe not for long

Greg May — Wed, 02 Dec 2009 03:59:42 +0000

If you’re a litigation or appellate lawyer, you’ve probably already read about Burlage v. Superior Court, case no. B211431 (2d Dist. Oct. 20, 2009 [opinion after rehearing]), and you’re probably not surprised to learn that the petitioners filed their petition for review in the California Supreme Court yesterday. The case had petition for review written all over it: a contentious area of the law (arbitration), a split decision, amicus involvement, lots of attention in the legal community, and heavy-hitter appellate counsel (full disclosure: I know and have worked with one of the attorneys, Ventura appellate ace Wendy Lascher, who represents the Burlages).

Other bloggers have reported the case in detail (links later in this post), so before I get to the point of this post, I’ll just give a brief recap.

The Burlages prevailed in arbitration and were awarded damages. Respondent contended that her evidence regarding damages was improperly excluded, and moved to vacate the award based on Code of Civil Procedure section 1286.2, subdivision (a)(5), which requires a trial court to vacate an arbitration award if “[t]he rights of the party were substantially prejudiced by . . . the refusal of the arbitrators to hear evidence material to the controversy.” The trial court vacated the award.

Seems rather straightforward, until you consider why the arbitrator excluded the evidence: it was irrelevant to the measure of damages the arbitrator applied. Respondent contended the measure of damages was improper, and that the excluded evidence was relevant to the correct measure of damages (which would have yielded a much smaller award). In other words, respondent was essentially arguing that the arbitrator had applied the wrong law on damages.

The Burlages petitioned for a writ of mandate directing the trial court to vacate its order vacating the arbitration award, arguing that the motion to vacate actually sought vacation of the award on the basis of an error of law in violation of Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, in which the Supreme Court held that legal error on the face of an award “does not provide grounds for judicial review.” In a split decision, Division Six of the Second District Court of appeal rejects the Burlages’ argument.

Like the Burlages, some bloggers tended to view the respondents’ reliance on section 1286.2 as an end run around the rule that an arbitration award cannot be vacated because the arbitrator applies an inapplicable legal standard. (See., e.g., Forrester on Real Estate Law [arbitrations decisions may have "become more appealable"]; California Employment Law [claiming binding arbitration is "under attack"].) And dissenting justice Perren was not coy in his criticism of presiding justice Gilbert’s opinion, claiming that the majority’s decision “cuts the heart out of Moncharsh.”

What Burlage portends for appellate practice

Burlage will be a real boon to appellate attorneys if review is denied or if it is granted and the Supremes affirm. What Burlage arguably teaches is that you can get review of an otherwise unreviewable legal error by the arbitrator if you dress the legal error in an argument for the statutory ground of improperly excluded evidence. Every appellate lawyer in California, yours truly included, is now more likely to give a friendly ear to prospective clients seeking to vacate arbitration awards on the apparent ground of legal error.

The court’s faith in the arbitration process

Justice Gilbert’s majority opinion is even more entertaining than usual. But I saw some entertainment value someplace where he probably didn’t intend it. Take this (my emphasis):

We agree with the trial court’s acknowledgment that not every evidentiary ruling by an arbitrator “can or should be reviewed by a court.” We also agree with its comment, “[T]hat’s not the same as saying no evidentiary ruling can or should be reviewed by a court. . . . [I]t would have the effect of . . . deleting subsection 5 from the statute [section 1286.2, subdivision (a)(5)].” This answers the dissent’s concern that our opinion makes suspect every arbitration ruling excluding evidence. In our view, should the award be affirmed, arbitration itself would be suspect.

I think arbitration is plenty suspect already. Plenty of lawyers hate it precisely for its extremely limited judicial review. By broadening the scope of that review, Burlage is just likely to make arbitration’s fans view it with suspicion, too, as they lose confidence in whether it will be truly binding.

Business litigation attorney Bruce Nye finds Justice Gilbert downright naive. You can read why at CalBizLit.

UPDATE (1/6/10): Talk about night and day! Check out my post at The Ninth Circuit Blog of Appeals regarding a Ninth Circuit case decided earlier this week that I think demonstrates a far more conservative approach to judicial review of arbitration decisions (while not concerning quite the same point as Burlage, and in the context of a three-arbitrator panel rather than a single arbitrator.)

UPDATE (1/21/10): So much for my fortune-telling skills. The Supreme Court denied review today.

En banc ninth tries to clear up the “abuse of discretion” standard

Greg May — Fri, 06 Nov 2009 06:13:34 +0000

The “abuse of discretion” standard of review, depending on the particular court applying it and the particular case in which it is applied, can sometimes seem about as clear as mud. The en banc Ninth Circuit set out to clear up the standard in United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009):

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.

Big city justices roll into Napa

Greg May — Wed, 21 Oct 2009 21:14:48 +0000

The First District Court of Appeal convened yesterday in Napa to hear two criminal cases at a public auditorium before about 400 high school students. The justices also treated the students to a Q&A session.

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.

Well, just the impetus I needed!

Greg May — Sat, 17 Oct 2009 08:23:40 +0000

If you are a regular reader, you know I’ve been AWOL for several months. What started as a short break turned into a hiatus, without so much as an announcement from me. Work and family issues made for such a hugely busy few months.

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.

Supreme Court announces court closure schedule

Greg May — Fri, 21 Aug 2009 20:34:03 +0000

The California Supreme Court has announced the statewide court closure schedule made necessary, according to the announcement, by “California’s current fiscal crisis.” “The Supreme Court of California, the Courts of Appeal, and all superior courts will be closed on the third Wednesday of each month, starting September 16, 2009″.

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.

Review of Remand Orders: One Man’s Obsession

Greg May — Tue, 02 Jun 2009 20:52:33 +0000

And I mean obsession in a good way. I never thought I’d get out-geeked on the subject of jurisdiction, and especially not on the subject of appellate jurisdiction, but I think Jones Day partner Mark Herrmann pulled it off today at his Drug & Device Law blog. In a long joint post there regarding when an appellate court may review an order remanding a case back to the state court from which it was removed, Herrmann and his blog partner Jim Beck of Dechert LLP not only chronicle the history of Supreme Court jurisprudence in this area and propose sensible reform, they start their discussion by citing Herrmann’s 22-year-old law review article on the subject as evidence that he was “obsessessed with this question [of when review is allowed].” I’ve described myself as a jurisdictional “geek” plenty of times, but never as “obsessed”!

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.)

Can your clients help you be more persuasive?

Greg May — Thu, 14 May 2009 15:45:20 +0000

Here’s an article on my short list of must-reads: in Know Your Client: Maximizing Advocacy by Incorporating Client-Centered Principles into Legal Writing Rhetoric Practice, Rutgers-Camden law professor Jason Cohen advocates that lawyers look beyond the typical “write for your audience” mindset and incorporate the client’s values into their legal writing. From the abstract:

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.

A civil case and a criminal case look the same to a mailbox

Greg May — Fri, 24 Apr 2009 23:39:04 +0000

For an appellant whose mail slot looks like the one pictured, there was an important decision yesterday.

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.)

Service of Summons via Social Media

Greg May — Wed, 08 Apr 2009 18:28:10 +0000

Sometimes, a defendant manages to dodge service of summons quite skillfully. A colleague of mine once resorted to serving a defendant with summons at the defendant’s daughter’s wedding because the defendant had successfully dodged many prior service attempts.

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.

Judge Bea calls out his colleagues

Greg May — Tue, 31 Mar 2009 06:15:42 +0000

In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly.

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.”

Another Supreme Court Justice Meet-Up at Pepperdine

Greg May — Mon, 30 Mar 2009 20:21:47 +0000

After hosting Justice Alito and Justice Scalia, Pepperdine recently hosted an event with Justice O’Connor. Read appellate attorney Ben Shatz’s account of the Justice O’Connor event at the Los Angeles County Bar Association blog, en banc, where you can also find his previous posts on the Justice Alito and Justice Scalia events.

Manufacturing appellate jurisdiction over a discovery ruling

Greg May — Thu, 19 Mar 2009 20:07:39 +0000

When I read Brescia v. Angelin, case no. B204003 (2d Dist. Mar. 17, 2009), I was reminded about how Saturday Night Live once ran one a commercial parody for a product with the advertising slogan “It’s a dessert topping! It’s a floor wax! It’s two products in one!”

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.

Greg May — Wed, 18 Mar 2009 20:11:30 +0000

I know the title of this post implies that you’re about to read some complaint about an illogical decision. After all, I doubt there’s a litigator alive who hasn’t received an adverse ruling or verdict and thought, “What a load of B.S.!” (By the way, if you ever do feel that way, it’s time to call me.) And that’s the way I was going to write this post, until I looked at the substance of the decision and got hooked, as I usually do, by a jurisdictional question.

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.

Looks Like I was Wrong about Tweeting Jurors.

Greg May — Fri, 13 Mar 2009 19:57:57 +0000

I didn’t think we’d see them anytime soon. I was very, very wrong.

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.

Scalia and Starr at Pepperdine

Greg May — Tue, 10 Mar 2009 23:48:56 +0000

Too late, you’ve missed it. But if you want to read all about the “conversation” between Dean Kenneth Starr and Justice Antonin Scalia held at Pepperdine yesterday, check out the very detailed write-up of the event by appellate attorney Ben Shatz at En Banc. Consider Ben the Pepperdine bureau chief, as he also had a good write-up last August on Justice Samuel Alito’s appearance there.

Trial by Tweet

Greg May — Sat, 07 Mar 2009 01:41:25 +0000

More accurately, I guess, trial coverage by tweet. A reporter as been given permission by a federal judge in Kansas to pubish updates from the courtroom via Twitter. A few of his dispatches by tweet:

— “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.

Your RSS feed reader is not malfunctioning

Greg May — Wed, 04 Mar 2009 19:02:59 +0000

That’s right, this really is a new post. I didn’t plan to go for more than a month without posting — the longest time I’ve ever had between posts without first announcing a hiatus — but events got the best of me. Which is OK. Between clients and the blog, it’s not a close call.

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 “Poof” Principle

Greg May — Wed, 28 Jan 2009 20:04:30 +0000

I don’t know if they coined the phrase — kudos to whoever did — but “the ‘poof principle” is the phrase the guys at California Attorney Fees use to sum up one aspect of Sanai v. Saltz, case nos. B198217 & B202787 (2d Dist. Jan. 26, 2009). What better phrase to apply to a case where the defendants sees a million dollar attorney fee award evaporate because the underlying judgment is reversed?

A Published Supersedeas Case. Really!

Greg May — Wed, 21 Jan 2009 05:52:35 +0000

From my lips to the Court of Appeal’s ears . . . or maybe from my keyboard to the Court of Appeal’s monitors . . . barely a week after I lamented how old most of the published case law is regarding supersedeas and other stays on appeal, along comes Veyna v. Orange County Nursery, Inc., case no. G041305 (4th Dist. Jan. 15, 2009), a published decision denying a petition for writ of supersedeas. Published opinions on this topic rarely come along, so we might as well grab all the gusto we can from it. First, a synopsis of the facts, then a couple of lessons to take away from the case.

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.

Supremes Grant Cert in Teen Student Strip Search Case

Greg May — Mon, 19 Jan 2009 07:36:42 +0000

Remember all the blog coverage (and not just here) about school officials’ strip search of a 13-year-old Arizona student in a “zero-tolerance” motivated quest for that dreaded scourge, Ibuprofen? I covered the original decision upholding the search here, noted the grant of rehearing here, and the en banc reversal here. Here’s the en banc opinion: Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008).

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.)

Can Bad Legal Writing Get You in Trouble?

Greg May — Tue, 13 Jan 2009 09:16:54 +0000

You bet it can, and your boss isn’t the only one who can create trouble for you. To see what other kinds of trouble you can get into, and how to avoid it, check out this oldie but goodie (but just recently posted to SSRN), Ethical Legal Writing, from UT law professor Wayne Schiess of Legalwriting.net and its blog. The abstract: “This article describes real cases in which lawyers got into trouble for poor legal writing: court sanctions, fines, bar discipline, civil liability, and public humiliation. It offers advice for avoid [sic] those fates.”

Dominance and Submission at the Appellate Court?

Greg May — Fri, 09 Jan 2009 00:16:47 +0000

But of course! Not of the leather, whips and chains variety, though.

“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.

“There is no exception for Supreme Court cases of ancient vintage.”

Greg May — Wed, 07 Jan 2009 07:48:58 +0000

That’s from Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049 fn. 3, regarding the doctrine of stare decisis. It’s a handy quote to keep in your arsenal for those occasions when you have to cite very old cases. I can remember legal research and writing instructors pounding into our heads that we should always use newer cases, where available. Thus, while I’ve never seen anyone try to discount a case based on its age alone, there’s that uneasy feeling any time I find it necessary to cite an old case that the adverse party will try to do just that.

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.)

Who Says CRC 8.108(f)(1) is for Cross-Appeals Only?

Greg May — Tue, 06 Jan 2009 07:28:29 +0000

Certainly not Division Three of the Fourth District Court of Appeal. In The Termo Co. v. Luther, case no. G038435 (Dec. 17, 2008), the court holds that the rule of court allowing the 20-day window for “any other party to appeal from the same judgment or order,” triggered by the clerk’s mailing of the notice of the filing of an appeal, means just what it says, notwithstanding its “Cross-appeal” heading.

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!

Judge Kozinski’s “Dirty” Pictures May Not Be So Dirty

Greg May — Fri, 02 Jan 2009 22:34:39 +0000

Remember the big “to do” about Judge Kozinski having posted material from an obscenity trial on his website? My prior coverage concentrated mainly on how this could affect his qualification to preside over the trial, and noted the interesting fact that Kozinski, an appellate judge, was presiding over a trial at all.

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’m on Blogging Hiatus until the New Year

Greg May — Tue, 16 Dec 2008 05:38:10 +0000

I’ve had a hard time getting back up to speed since returning from being out sick. Fighting a lingering cold, catching up on old cases and jumping into new ones . . . being so busy and with Christmas approaching, this seems like a good time to take a blogging break. I do not plan to post again until at least January 2, 2009.

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

Holiday Closure of Supreme Court’s Los Angeles Office

Greg May — Sat, 13 Dec 2008 00:09:06 +0000

Be very, very careful with California Supreme Court filings over the holidays. The Los Angeles office of the Supreme Court be closed some of that time, requiring you to file in San Francisco. To get the closure dates, download the PDF of the announcement.

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.

A Note to my Feed Subscribers

Greg May — Mon, 01 Dec 2008 08:45:31 +0000

A glitch over the weekend resulted in a post to this blog that didn’t belong here. You’ll know it when you see it. Rather than trying to figure out what it has to do with appeals, rest assured that it doesn’t . . . it didn’t even belong on the blog! Sorry for any resulting confusion.

When a lawyer must include one or more issue statements in a brief, either for purposes of clarity or because required by court rule, and the lawyer has trouble formulating a succinct issue statement that correctly identifies the parties and the critical facts necessary to an understanding of the statement, where can the attorney find a resource to help him write a clear, succinct issue statement that is easily understood by the reader?

Greg May — Fri, 28 Nov 2008 21:24:06 +0000

No, I haven’t “lost it” during my absence. The title of this post is a parody of a bad issue statement — something we all see way too often.

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

Happy Thanksgiving, Everyone! And has anything interesting happened while I’ve been out?

Greg May — Wed, 26 Nov 2008 21:30:22 +0000

Just a short post to wish everyone a happy Thanksgiving Day.

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.

Where are all the new posts?

Greg May — Fri, 14 Nov 2008 00:43:29 +0000

Regular readers who are wondering where I’ve gone (and are, hopefully, disappointed at my lack of posting the last few weeks) should know that the blog lives! I, on the other hand, have barely felt among the living the last few weeks, dogged by some kind of head/sinus/allergy/flu/who-knows-what-it-is that has really wiped me out.

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!

The Mindset of Appellate Judges

Greg May — Mon, 03 Nov 2008 19:32:31 +0000

Here is a well-stated look into the minds of appellate judges, from a 2-year old column by Howard Bashman:

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.

Does it Matter Who’s On Your Panel?

Greg May — Fri, 31 Oct 2008 15:30:45 +0000

Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them.

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.

Ever Felt Like Using an Expletive at Oral Argument?

Greg May — Fri, 31 Oct 2008 15:29:44 +0000

I imagine swear words are material to cases quite often, especially in defamation or employment cases (the latter being the first time I had to put one in a brief). But I suspect they are rarely the focus that they will be in oral argument in this case before SCOTUS. Apparently, “Justice Roberts is undecided on whether or not he should even allow the lawyers to use the words — and if so, whether to allow the argument’s audio to be played on C-SPAN.”

Got a stay? Challenge the judge anyway!

Greg May — Thu, 30 Oct 2008 08:11:48 +0000

Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case. No dice. And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court.

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.

There’s No “E” Before “Mails” When it Comes to Triggering the Deadline to Appeal

Greg May — Tue, 28 Oct 2008 07:42:03 +0000

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.

The Judgment, the Whole Judgment, and Nothing But the Judgment

Greg May — Sat, 25 Oct 2008 08:32:46 +0000

Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer them to Satchmed at a certain price. But the judgment did not require such an offer on 12 other units, which were leased. Unsurprisingly, perhaps, the judgment stated that there was no prevailing party.

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.

New Law Blog: The California Constitution

Greg May — Wed, 22 Oct 2008 07:10:01 +0000

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.

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 4: “This Case Needs a Specialist.”

Greg May — Tue, 21 Oct 2008 17:05:05 +0000

(NOTE: This post is the fourth in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.)

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.