The Appellate Practitioner

Please visit The UCL Practitioner

Over the past couple of months, I haven't had time to keep The Appellate Practitioner updated in the way I'd like to. Therefore, I am putting the blog on hiatus for the time being. Please visit my primary blog, The UCL Practitioner, which I keep very active with regular updates. I will continue to write occasional posts on issues of interest to appellate practitioners. They will be collected at my "appellate practice" category page. Those posts will, I hope, continue to be relatively frequent. They are why I spun off this appellate practice blog in the first place.

"Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel"

Greg May at the California Blog of Appeal asks the question and provides a preliminary answer.

Two tidbits for appeals in class action objector cases: Chavez v. Netflix, Inc.

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.

Procedures for electronic service of Court of Appeal briefs on Supreme Court now available

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]

Supreme Court service copies of appellate briefs may now be served by email!

Happy New Year! A few interesting amendments to the Rules of Court went into effect on January 1, 2008. For example, Rule of Court 8.212(c)(2) used to require that four paper copies of all briefs filed with the Court of Appeal be served on the Supreme Court. Effective Tuesday, Rule 8.212(c)(2) was amended to provide that the Supreme Court may now be served by email instead:

(c) Service

(1) ....

(2) One electronic copy or four paper copies of each brief must be served on the Supreme Court as provided in either (A) or (B).

(A) One copy of each brief may be served on the Supreme Court electronically by sending the copy to the Supreme Court’s electronic notification address.

(i) The copy must be a single computer file in text-searchable Portable Document Format (PDF), and it must exactly duplicate the appearance of the paper copy, including the order and pagination of all of the brief’s components. By electronically serving the copy, the filer certifies that the copy complies with these requirements and that all reasonable steps have been taken to ensure that the copy does not contain computer code, including viruses, that might be harmful to the court’s electronic filing system and to other users of that system.

(ii) ....

(B) Instead of serving an electronic copy, four paper copies of each brief filed in a civil appeal must may be served on the Supreme Court. ....

The Advisory Committee Comment says that "'Electronic notification address' is defined in rule 2.250. The Supreme Court’s electronic filing address can be found on the California Courts Web site at www.courtinfo.ca.gov/courts/supreme." I went to that site and it doesn't seem to be available yet.

The California Blog of Appeal also has a post on some of the rule changes, and last week, the Daily Journal had a Focus piece by David Ettinger of Horvitz & Levy on the subject: "New Year, New Rules" (subscription). [Cross-posted at The UCL Practitioner.]

"One doghouse"?

If you've ever seen a reference to "doghouses" in the California Supreme Court's online docket and wondered what it meant, the Recorder had a short piece last week (subscription; scroll down) explaining it:

The doghouses in question aren't the homes of some justices' adorable pets, but rather, large notebooks with cloth ties that are filed with the courts.

The reporter, Mike McKee, got this information by calling up California Supreme Court Clerk Frederick Ohlrich. Nice work, Mike! I have to admit to being curious about these "doghouses," but I just assumed they were some kind of thick Redweld file.

UPDATE: Curt Cutting of the new blog California Punitive Damages provides a link to some photos of these "doghouses" (thanks, Curt!):

Supreme Court proposal to reduce backlog of death penalty cases

As reported in the San Francisco Chronicle and the Los Angeles Times, last week the California Supreme Court issued a proposal for reducing the backlog of death penalty cases now pending on its docket. The proposal is to amend the California Constitution to allow the Supreme Court to transfer death penalty appeals to the Court of Appeal for decision. All of the cases would then be subject to Supreme Court review, but if the Court "concludes that the decision (1) contains no error affecting the judgment, (2) presents no need to secure uniformity of decision, and (3) does not require resolution of an important question of law, the Supreme Court may summarily affirm the judgment of the court of appeal in an order published in the Official Reports."

Part of the rationale for the proposal is that it would "permit the Supreme Court to devote sufficient time and resources to other important appellate litigation that deserves the court’s attention." As the proposal further explains:

[T]he ever-increasing backlog of automatic appeals, constituting approximately 20 percent of the court’s annual opinion output (up approximately 66 percent since 1985, and approximately 400 percent since 1940-1970), threatens to overwhelm the Supreme Court’s docket, impairing its ability to grant review to provide necessary guidance concerning other important issues arising in civil and criminal law. (Compare Uelmen, The Future of State Supreme Courts as Institutions in the Law, 72 Notre Dame L. Rev. (1997) 1133, 1135-1136 [reporting that capital appeal opinions by state supreme courts increased more than 30 percent from 5.5 percent of all published opinions in 1985, to 8.3 percent of all published opinions in 1995 — while overall opinion production by the same state supreme courts decreased more than 13 percent].)

The proposal would probably lengthen the Court of Appeal's average appeal processing time, but the Supreme Court's enhanced ability to decide important issues in civil cases would be worth it (so long as the death penalty litigants' due process rights are preserved). The Daily Journal's coverage of the proposal (subscription) mentioned the concerns of some death-penalty defense attorneys, who worry that the proposal would create a two-tiered system that would increase, not lessen, the delay, or allow a death sentence to be affirmed by a two-judge majority without any further meaningful appellate review. The Daily Journal also interviewed Chief Justice George, who "said some attorneys intimidated to appear before the Supreme Court might be more willing to handle capital appeals at the appellate-court level." Intimidated to appear before the Supreme Court? I don't know any lawyers who fit that description.

Welcome to The Appellate Practitioner

I am pleased to introduce The Appellate Practitioner, a companion to my primary blog, The UCL Practitioner. This new blog will cover appellate practice in California and, to a lesser degree, the Ninth Circuit. I will not post here as often as I do at The UCL Practitioner. At least for now, posts will appear once a week at the most, usually on Mondays, unless something significant occurs mid-week.

Disclaimer: The same disclaimer and comment and email policies apply to this blog as to The UCL Practitioner. Please see The UCL Practitioner's welcome page to read the disclaimer and the comment and email policies that apply to this blog.