On Thursday, May 22, 2008, the Bar Association of San Francisco will present an MCLE program called "The Seven Deadly Sins in a Case Headed for Appeal." The program will take place from noon to 1:45 p.m. (registration starts at 11:30) at the BASF Conference Center, 301 Battery Street, Third Floor, San Francisco.
The ABA Litigation Section's May 2008 installment of "Tips from the Trenches" is by Seventh Circuit Judge Richard A. Posner, "Convincing a Federal Court of Appeals." A tidbit:
In a case that is not controlled by precedent, the task of the advocate is to convince the court that the position for which he or she is contending is the more reasonable one in light of all relevant circumstances, which include but are not exhausted by the case law, the statutory text, and the other conventional materials of legal decision making. I say “reasonable” rather than “correct” to give due recognition to the ineliminable element of discretion in the decision of a case that is not ruled by precedent or other conventional sources of law.
The most effective method of arguing such a case is to identify the purpose behind the relevant legal principle and then show how that purpose would be furthered by a decision in favor of the advocate’s position. ....
....
Let me close this very brief discussion with a miscellany of do’s and don’ts of oral argument:
1. Try to dress well for oral argument. Make the judges think that you are a serious person who takes the court seriously.
It's quite interesting that Judge Posner considers it necessary to offer lawyers that last bit of advice. [Via How Appealing]
The Court of Appeal's opinion in Chavez v. Netflix, Inc., ___ Cal.App.4th ___ (Apr. 21, 2008) has two tidbits for those of us whose practices intersect appellate law and class action law:
"[A] class member who timely objects to a settlement has standing to appeal regardless of whether the member formally intervened in the action. (Consumer Cause, Inc. v. Mrs. Gooch’s Natural Food Markets, Inc. (2005) 127 Cal.App.4th 387, 395.)" Slip op. at 8.
"[A] lodestar enhancement based on 'quality of representation' by definition involves considerations not captured by counsel’s hourly rates. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1139 [court can award multiplier for an exceptional quality of representation when representation “far exceeds the quality . . . that would have been provided by an attorney of comparable skill and experience billing at the hourly rate used in the lodestar calculation”].) Nothing in Ketchum v. Moses requires the trial court to recite an express finding that class counsel’s representation 'far exceed[ed]' the level of representation that comparably skilled attorneys would have provided. (See also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 ['[a] judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness'].)" Slip op. at 20.
The Court of Appeal's opinion in Woods v. Union Pacific Railroad Co., ___ Cal.App.4th ___ (Apr. 15, 2008; pub. ord. Apr. 28, 2008), begins with this paragraph:
Plaintiff Raymond A. Woods appeals from a judgment entered following the grant of a directed verdict in favor of defendant Union Pacific Railroad Company. We affirm the judgment. Plaintiff also appeals from the order awarding defendant ordinary costs and expert fees and costs. Inasmuch as plaintiff has presented no arguments with respect to this order, we deem plaintiff’s appeal from the order to have been abandoned and affirm the order. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
Slip op. at 2. In other words, make sure your brief addresses all the orders encompassed by your notice of appeal.
U.S. Supreme Court Justice Antonin Scalia and legal writing expert Bryan A. Garner have collaborated on a new book that I'm looking forward to reading: Making Your Case: The Art of Persuading Judges
Bear in mind that trial judges are fundamentally different from appellate judges. They focus on achieving the proper result in one particular case, not on crafting a rule of law that will do justice in the generality of cases. And they will pursue that objective principally through their treatment of the facts (if the case is tried to the court) and discretionary rulings. In most jurisdictions, trial judges are more disposed than appellate judges to strict observance of governing caselaw—perhaps because their work is subject to mandatory review. So at the trial-court level you are well advised to spend more time on the facts and on the discussion of precedent (from the relevant courts) and less time on policy arguments. That’s one reason why a good trial brief can rarely be used before an appellate court without major changes.
For two very different takes on the Court of Appeal's order modifying its opinion in Buell-Wilson v. Ford Motor Co., ___ Cal.App.4th ___ (Mar. 10, 2008; mod. Apr. 10, 2008), a punitive damages case, compare this post from the California Appellate Report with this post and this post from California Punitive Damages.
Within the past seven days, the Ninth Circuit has issued two orders asking the California Supreme Court to rule on controlling legal questions pursuant to California Rule of Court 8.548:
Murray v. Alaska Airlines, Inc., ___ F.3d ___ (9th Cir. Apr. 10, 2008) (asking Supreme Court to decide administrative law question)
Munson v. Del Taco, Inc., ___ F.3d ___, 2008 WL 1700525 (9th Cir. Apr. 14, 2008) (asking Supreme Court to decide question relating to interpretation of Unruh Civil Rights Act, Civ. Code § 51)
Such orders are relatively rare, so it is rather unusual to see two issued within five days of each other. There is no overlap on the panels.
In County of Santa Clara v. Superior Court (Atlantic Richfield Co.), ___ Cal.App.4th ___ (Apr. 8, 2008), the Court of Appeal (Sixth Appellate District) explained that writ review is particularly appropriate in cases implicating the right to counsel of one's choice:
In this case, the companies, for whatever reason, did not style their motion as a motion to disqualify the public entities’ private counsel. While an order disqualifying counsel is an appealable order (Chronometrics, Inc. v. Sysgen, Inc. (1980) 110 Cal.App.3d 597, 599, fn.1), the order issued by the superior court granting the companies’ motion was not appealable because it did not explicitly disqualify the public entities’ private counsel. Instead, it precluded the public entities from employing their private counsel under any contingent fee arrangements.
“It would be naive not to recognize that the motion to disqualify opposing counsel is frequently a tactical device to delay litigation.” (Comden v. Superior Court (1978) 20 Cal.3d 906, 915.) In this case, the companies’ motion threatened not only to deprive the public entities of their choice of counsel but also to preclude them from pursuing any appellate remedies. Writ review of this order is appropriate because appellate review is unavailable, and any error in the order would result in unjustifiably depriving the public entities of their right to counsel of choice.
Slip op. at 5 (emphasis in original) (footnote omitted).
On March 11, 2008, the New York Times reported on a study published in the U.C. Davis Law Review finding the California Supreme Court to be the most influential state court in the nation over the past 65 years. According to the Times story, the study found that more California Supreme Court decisions were flagged by Shepard's Citation Service as "followed" than those of any other state court.
The law review article cited in the story is Jake Dear & Edward W. Jessen, "'Followed Rates' and Leading State Cases, 1940-2005," 41 U.C. Davis L. Rev. 689 (2007). The story also points out that Mr. Dear is the California Supreme Court's Chief Supervising Attorney and Mr. Jessen is the California Reporter of Decisions.
In early January, I reported on an amendment to Rule of Court 8.212(c)(2) to permit electronic service of Court of Appeal briefs on the Supreme Court. The advisory notes to the amended rule said that instructions would appear on the Supreme Court's website, but at the time, none were available. Now, however, this new page provides instructions on how to electronically upload your service copy (in lieu of serving four paper copies). This should save quite a few trees. But be sure to read the "Terms of Use" (pdf), which warns that if the upload fails for any reason, you'd better have those paper copies ready to go. Presumably, your proof of service must indicate that the Supreme Court's service copy was electronically uploaded pursuant to Rule 8.212(c)(2).
[Hat tip: Nota Bene]
[Cross-posted at The UCL Practitioner]
