Doe sought to quash a subpoena directed to an internet company.  The subpoena sought information that would identify the person (Doe) who posted Fuller’s confidential company information on internet message boards.  No lawsuit was pending in California, and Doe’s identity was apparently necessary before Fuller could commence suit in its home state of Minnesota.

In a decision limited to Doe’s motion to unseal the record and briefs on appeal, the court first addressed the issue of appealability.  It found this discovery order was appealable because “the order is ancillary to litigation in another jurisdiction and operates as the last word by a California trial court on the matters at issue.”  Thus, even though the court could readily have chosen to construe the appeal as a writ petition, it found it unnecessary to do so.

This is a great case to remember.  Dire circumstances justifying writ review won’t always be present when a client gets hit with an unfavorable discovery order arising from litigation in another jurisdiction.  Being able to appeal greatly expands the cases in which review may be invoked.

We conclude Defendants have not shown the DMV information subject to the subpoena is relevant under the applicable standard for disclosure of information necessary to their investigation of their reasonable belief that underrepresentation of cognizable groups may be the result of improper jury selection practices.

Usually I am quite impressed by how a court succinctly sums up its holding.  But this seems to me like too many long, complicated words in a single sentence.  It’s grammatically and substantively correct, but I might have broken it into two or more sentences, even if it made the summary longer.

That might be worth exploring!

Columbia law professor Michael Dorf uses the Claiborne case as a starting point for a short Findlaw article on the wider subject of the role of the Supreme Court and tensions in justiciability doctrine, A Mootness Dismissal Illustrates the Supreme Court’s Split Personality: Is it a Constitutional Court or a Court of Error?  The article describes the underlying issue in Claiborne, examines whether other rules might have saved the Claiborne case, argues that the Supreme Court should not be subject to the same strict justiciability standards of lower federal courts, and compares the more liberal justiciability standards of courts of last resort in some other countries.  All this in a very readable 1900 or so words.

The California Judicial Council is seeking comments on the proposed rule change.  Go here for a link to the proposed changes, a link for the on-line submission of comments, and information for submitting comments by mail.  The deadline for submissions is July 13, 2007.

This proposal would completely revise all of the rules relating to the superior court appellate divisions to place the rules in a more logical order, reflect current practices, fill in gaps in the rules, eliminate outdated language, and update the remaining language so it is similar to the recently revised rules for the Courts of Appeal. A complete package of new forms for civil and criminal appeals and writ proceedings in the appellate divisions are also proposed to assist litigants, particularly self-represented litigants, in these proceedings.

Go here for a link to the proposal, a link for submitting comments on-line, and information for submitting comments by mail.  The deadline for submissions is July 13, 2007.

Go here for a link to the proposed changes, a link for the on-line submission of comments, and information for submitting comments by mail. The deadline for submissions is July 13, 2007.

The plaintiff in this adverse possession suit served the defendants by publication, after which default and default judgment were entered.  Four years later, one of the defendants later moved to vacate the default judgment on the ground that plaintiff committed fraud in procuring the order for service by publication and that the default judgment was obtained in violation of her right to due process.  The trial court denied the motion, and defendant appealed.

The court rejected the plaintiff’s contention that the order was not appealable.  The reason: the order gave effect to a void judgment, and any order doing so is itself void and appealable as a special order after judgment under Code of Civil Procedure section 904.1, subd. (a)(2), even if no appeal is taken from the underlying judgment.

I know Professor Martin was reacting to a rather short-term spike, but could it be that the liberalized rule for publication, which only recently went into effect, is starting to show results?

Since April 1, 2007, publication of appellate opinions has been subject to more liberal standards of publication under rule 8.1105(c).  The changes are summarized by the advisory committee at p. 57 of its report.  They:

(a) Replace the presumption against publication with a presumption in favor of publication if the opinion meets one or more of the criteria specified in the rule;

(b) Clarify and expand the criteria that the Courts of Appeal and the appellate divisions of the superior courts should consider when deciding whether to certify an opinion for publication; and

(c)  Identify factors that should not be considered in deciding whether to certify an opinion for publication.

A press release from the Supreme Court last December also summarizes the changes and provides a comparison of the old and new rule, and quotes from the report in stating that the changes should:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

Whether a recent spike in opinions reflects these changes or not, we should certainly see an increase in the percentage of published opinions over time.

AL & P’s post also referenced CAAFlog, a well-established blog by seven contibutors following developments in the United States Court of Appeals for the Armed Forces (CAAF).

I remember reading while I was a Marine Corps officer (in fact, it might have been asigned reading) about a newspaper columnist who wrote that “Military justice is to justice what military music is to music.” Call me a cynic, but I’m pretty sure he wasn’t paying a compliment.

I only served on one court martial. Other than that, I didn’t have much exposure to the military justice system. But I know there are some talented, dedicated lawyers in the military. They do tough work under difficult conditions, and my hat’s off to ‘em.

Those of you who have found the blog through a link from another site already know this. But those of you accessing the blog through the URL http://www.calblogofappeal.com may not. I have domain forwarding set up on the calblogofappeal.com domain name and, until tonight, also had domain masking enabled. That means that if you typed in the URl http://www.calblogofappeal.com, you were forwarded to the WordPress URL but it was hidden from you.

The chief drawback to this domain forwarding and masking scheme is that if you then click on a specific post title or the link to its comments, the URL in your address bar still says calblogofappeal.com, which means you can’t identify the specific URL of the post for trackbacks or linking. Tonight, I disabled the masking, so as soon as you reach the site, you’ll see the wordpress URL in the address bar.

When I move the blog to my host, the actual address of the bog will be calblogofappeal.com. If you subscreibe to the RSS feed, you will probably have to resubscribe after the move.

I’m trying to get this done while the blog is still young (it’s 32 days old today) and before it gets too many followers (being optimistic — except for the three-day weekend, I’ve enjoyed a boost in traffic most of the last week or so, creating a greater sense of urgency to get set up as a self-hosted blog). And since I’m not sure I can resume my blog stats where they leave off when I move from WordPress, I do not want to let a large number of hits build up just top start at zero again. Finally, I’ve been holding off on many of the SEO (Search Engine Optimization) and other steps for increasing theblog’s visibility until it moves to its own host.

I plan to keep the same general look on the blog (the maroon-to-black banner, fonts, etc.), though I may have to make some changes in the course of switching to the new host.

This won’t happen for a while, but I wanted to give everyone fair warning and explain what I will be doing and why I will be doing it. I also want to mininmize any loss of readership due to the transition. My target date to complete this process is June 18, but that’s likely to slip. I will post updates as the project progresses.

While on the grammar front, here’s a pet peeve. Every time I see a reference to a “sole practitioner,” I think of someone who’s the only lawyer in town. Or maybe a shoe repairman. Judging by most of the bar-related publications I read, “sole practitioner” seems to be the term of choice for identifying lawyers who practice on their own.

But shouldn’t we refer to these lawyers as SOLO practitioners — like we did when I was in law school?

Granted, “sole” may be technically correct according to these definitions of the word (my favorite: “without company or companions; lonely”), but compared to the definition of “solo” (among them: “a person who works, acts, or performs alone”), it certainly seems the less accurate. Besides, you never hear of anyone “flying sole.” Jazz musicians don’t break into “soles.” And would Harrison Ford’s Star Wars character have had the same roguish swagger if he were named “Han Sole?” I don’t think so!

If anyone cares to differ . . .well, that’s what the comments section is for. Have at it. Then again, if it turns out most of you agree with me, I think we should start a movement to banish the use of “sole practitioner” — unless, of course, one really is referring to the only lawyer in town.

Bibliography: Dictionary.com Unabridged (v 1.1). Random House, Inc. (accessed: May 31, 2007).

Thai Airways contended in its motion to dismiss for lack of subject matter jurisdiction in the district court that it was immune from suit under the Foreign Sovereign Immunities Act (the airline is 76% owned by the Thai government) .  The airline contended that an identical state court action brought by Gupta was res judicata on this issue because it was dismissed for lack of subject matter jurisdiction on FSIA immunity grounds.  It also argued the merits of FSIA immunity independently of its res judicata argument.  The district court rejected both arguments, finding that the prior ruling was not res judicata because it did not go to the merits of the dispute and that an exception to the FSIA applied.

On appeal, however, the airline did not assert the district court erred in its determination that an exception to the FSIA applied.  It relied exclusively on its res judicata argument. 

This turns out to be what splits the dissent from the majority on appeal.

The Ninth Circuit (and its sister circuits) have long recognized the appealability of an order denying a motion to dismiss based on FSIA immunity.  The majority classifies this as such an appeal, and thus asserts jurisdiction under this well-established exception to the final judgment rule.

The issue becomes thornier when you read the dissent, in which Judge Tashima argues that the court must examine “each claim or issue presented separately to determine their jurisdiction on interlocutory appeal.”  Conceding that he would find jurisdiction over the issue of whether the district court erred in finding that the FSIA exception applied, Judge Tashima contends that the res judicata issue is sufficiently distinct to take it outside the rule allowing review of orders denying FSIA immunity:

While it is true that our case law permits an immediate interlocutory appeal from an order denying a motion to dismiss based on foreign sovereign immunity, it is equally well-settled that the denial of a motion to dismiss based on res judicata grounds is not immediately appealable.

***

Although the cases discussing the collateral order doctrine sometimes loosely refer to interlocutory orders as being appealable, in fact, the cases actually analyze the specific claim or issue presented in determining the scope of their jurisdiction on an interlocutory appeal. And each claim presented must independently meet the requirements of the collateral order doctrine in order for it to be considered on interlocutory appeal. Appellate jurisdiction over one claim rejected in a district court order does not confer jurisdiction over all other claims rejected in the same order.(Citations omitted, emphasis in original.)

It seems clear that had the airline appealed on both grounds, Judge Tashima would assert jurisdiction over the merits of the FSIA immunity claim but not over the res judicata argument for the same claim of immunity. 

This is too much hair-splitting for the majority, which responds in a footnote to its statement that “It is from this order that Thai Airways is appealing.”  (Emphasis in original.) The majority contends that the dissent relies on a false premise that the FSIA immunity issue and res judicata issues are distinct.  It says that since the res judicata issue involves and is based solely on FSIA immunity, and is indeed determinative on the issue, the appeal falls within the rule of appealability under the collateral order doctrine for orders denying FSIA immunity.

Whatever the asserted ground of error, the majority has a point that in the end, the order appealed from determined that there was no FSIA immunity.  And that is all they needed to bring it within the well-established exception to the final judgment rule.

Fearing that new standards for California arbitrators imposed by the Judicial Council would make its arbitrations in California more difficult, NASD and the New York Stock Exchange sought a declaratory judgment that the California standards were preempted by federal securities laws, could not constitutionally be applied to the plaintiffs’ arbitration programs, and were not applicable to those programs as a matter of state law.  The district court dismissed the suit on the ground that the defendants were state entities with Eleventh Amendment immunity from suit in federal court.

The plaintiffs appealed. In an intervening decision in another case the Ninth Circuit held that the California standards were preempted by federal securities law, and the California Supreme Court reached a similar holding in yet another case involving different parties.  These intervening cases rendered the present appeal moot.

The issue before the court was whether, in light of the appeal’s mootness, the court should vacate the trial court’s dismissal of the case or instead let the trial court judgment stand and dismiss the appeal.  The state defendants did not want the trial court ruling disturbed, since it held that the Judicial Council and its members were immune from suit in federal court. 

The usual action in the event of a moot appeal is to vacate the decision below with a direction to dismiss, which is what the court does here.  Generally, only when mootness is the result of conduct by the party seeking appellate relief — such as by settling on appeal — should the court dismiss and leave the judgment below intact.  This sufficiently serves the public interest by protecting the district court decision against “a refined form of collateral attack” — an appellant settling on appeal so as to have the judgment below vacated.

The Judicial Council urged that equity and public policy weighed against vacatur because NASD and NYSE were unlikely to sue the Council or its members again, and the public has an interest in preserving judicial precedent.  The court spends a short time on the value of district court opinions as “precedent” and the effect of a “vacated on other grounds” history for a district court case. Since the district court decision will remain in the Federal Supplement and is useful only as persuasive authority anyway, the public interest in preservation of precedent does not require that the ruling remain intact.

This last point is especially sensible and relevant to the discussion in this earlier post regarding the utility of citing district court decisions.

The Bill of Rights was ratified in 1791. The United States produced its first automobile in 1877, and the first traffic ticket issued in 1904.

This appeal to the Ninth Circuit was over a traffic ticket. Specifically, the penalty imposed for the violations as a result of the form of ticket used. Notwithstanding the minor nature of the offenses, the case implicates a major constitutional doctrine — equal protection.

Trimble was ticketed on a military base. The officer who wrote Trimble’s ticket did so on a brand new form that imposed a $25 processing fee in addition to any fine. Because of a shortage of the new forms, other officers at the exact same time were still writing tickets on the old form of ticket, which made no mention of a processing fee. At her court appearance, the fine imposed on Trimble included the processing fee on three violations (for a total of $75). She appealed, claiming that the imposition of the processing fee based solely on the form of ticket written violated the equal protection clause. The court agrees.

The irony? The $25 processing charge was instituted, according to the court, “to offset the costs of managing petty offense cases in the federal courts.” Yet Trimble invoked the appellate jurisdiction of the Ninth Circuit, and successfully avoids the fee that was intended to offset the costs of routine federal court management.

On the equal protection issue, the court finds no rational basis for allowing different penalties despite its “excursion into imaginative recreation of possible justifications.”

Professor Shaun Martin isn’t sure the court exhausted the possibilities and is taken aback at the resources poured into an appeal over $75. His post at California Appellate Report ends (emphasis in original):

But let me add one more thing. Seventy five dollars. For that we appoint a public defender and have a U.S. attorney and the P.D. brief and argue an entire appeal? We can’t just save some money by confessing error and refunding the piddly seventy-five bucks?

Perhaps in the long run it will turn out to be money well spent. Professor Berman at Sentencing Law and Policy thinks the case may have broader implications:

Based on a quick read, I am not entirely sure whether the Trimble holding might provide a basis for questioning other sorts of criminal justice “injuries large and small.” Any readers have any suggestions or creative litigation thoughts?

Anyone who wants to respond to Professor Berman should go to his post.

Howard Bashman at How Appealing suggests that “the Administrative Office of the U.S. Courts might wish to adjust its revenue projections to reflect that it won’t be receiving a $25 processing fee” for tickets issued at the base.

Small stakes, big issue, interesting case.

UPDATE: (5/31/07): A short post on this case at the Volokh Conspracy gathers some interesting comments. Decision of the Day also wrote up this one, and follows up with a post today that suiggests the first circuit isn’t so solicitous of small cases.

Technorati Tags: Equal Protection

Carpenter brought an action for wrongful termination, defamation, and other tort and contract claims related to the termination of employment by Jack in the Box.  Jack in the Box brought an anti-SLAPP motion (special motion to strike) under Code of Civil Procedure section 425.16, claiming that plaintiff’s claims targeted Jack in the Box’s actions in the course of an investigation into allegations that plaintiff had sexually harassed another employee and that such actions were protected under the First Amendment.  The trial court denied the special motion to strike, and the Court of Appeal affirmed.

After remittitur to the trial court, plaintiff filed his application for fees and costs under section 425.16(c).  The court held that the trial court did not lose jurisidction over the aplication simply because the remittitur of the case after the denial of the anti-SLAPP motion did not include instructions to determine attorney fees and costs.  The trial court retains jurisdiction to decide a motion for fees and costs even while the appeal is pending, and a statute authorizing an award of attorney fees in the trial court includes appellate fees unless the statute explicitly states otherwise.

Finding jurisdiction, the court next turned to the issue of whether the application was timely under rules 3.1702 and 8.104 of the California Rules of Court.  After a rigorous and complicated analysis of the rules to resolve a facial ambiguity, the court concludes that an application for fees under section 425.16(c) is timely so long as it is brought any time before final judgment in the action.

Technorati Tags: California attorney fees, Anti-SLAPP

This statement to a judge was made by (a) a newly minted, naive lawyer; (b) a renegade solo criminal defense attorney; (c) a criminal defendant; (d) a partner from a prestigious, nationally recognized, Chicago-based law firm.

Answer: (d).

The remark earned him an order to show cause as to why he should not be suspended from practice before the court and have his pro hac vice admission revoked.

See Above the Law for the full story.  Some commenters there actually take the judge to task.  There are also some reasonable explanations offered for the lawyer’s statement, suggesting that the judge misunderstood the comment.  But I don’t know if any of them are right.

UPDATE (5/31/07): Is it possible I show too much deference for authority? Carolyn Elefant of the My Shingle blog really made me think with this post taking the judge to task for sandbagging the lawyer and overreacting by issuing the OSC and copying every judge on the court. Unlike most of the snarky commenters at Above the Law, she explains her position. If you’re a solo, you may also want to go to her main page and scroll through some of her posts about the special burdens of solos when it comes to sanctions and ethics charges.

Technorati Tags: legal ethics

Both bloggers recognize that anonymity was probably a condition of the defendant’s guilty plea (although the decision never says).  Decision of the Day is appalled that the circuit judges would allow this, especially in light of their reputations:

Shame on the prosecutors and the courts for allowing a criminal defendant to remain anonymous, especially in light of the fact that this was his fourth time getting caught with kiddie porn. Neither the district judge – GWB appointee Klausner – nor the three appellate panelists – Reagan appointees O’Scannlain and Hall and GWB appointee Callahan – have a reputation for being generous with criminal defendants.

“S. COTUS” at Appellate Law & Practice takes a slightly different view —

Perhaps these appointees wanted to make things easier for a prosecutor, or the so-called “victims.”  In reality, there are a lot of sealed proceedings out there, but usually both sides agree to it, and I suspect that these judges were well-aware of this, and didn’t want to rock the boat.

The so called victims?  I’ll get to that later.  Back to anonymity for now.

The court notes that allowing the use of a pseudonym is reserved for “exceptional cases where necessary to protect a person from injury or harassment.”  But the judges never tell us how that standard applies in this case.  In fact, the whole issue of anonymity rates no more than a footnote in the opinion.  The defendant made a motion for the disposition to be filed using a pseudonym, and instead of explaining why this was necessary, the court merely continues the sealed nature of the proceedings begun in the district court.  Unless they could not discuss this without imposing the harm they sought to avoid through use of the synonym, why did they avoid this discussion?  The docket shows no separate order on the motion.

The defendant’s anonymity seems especially inappropriate in light one of his assertions of error: that the victim statements in the pre-sentencing report were anonymous!  He loses on this issue, though.

While he also loses on the issue of whether he should have to pay the restitution ordered by the district court, it’s somewhat shocking to see that the restitution the court affirms amounts to $16,475 total for eight victims – about $2,060 per victim.  Amazingly, this includes two years of monthly counseling, vocational training (to make up for some of the victims having to leave school), and a management fee to the organization coordinating the services.  For traveling abroad to an unnamed “developing world” country, Doe gets bargain basement restitution costs — then complains about them.

Doe is sentenced to 204 months.  As for “S. COTUS’s” reference to “so-called ‘victims’ ” — read the excerpt from the plea agreement, then see if you agree.

UPDATE (5/30/07): “S. COTUS” at Appellate Law and Practice has updated his post to explain why he used the term “so-called ‘victims.’ ” He concedes that the children in this case were genuine victims. He makes a decent case for attributing it to carelssness, and I take him at his word.

The Ninth Circuit holds it has appellate jurisdiction notwithstanding the lack of a final judgment because the stay orders, all of which are indefinite in duration and could last for years, place the plaintiff insurers “effectively out of court.” In doing so, the Ninth joins a majority of other circuits finding appellate jurisdiction in such circumstances, and explains that the indefinite delay poses threats of “denying justice by delay,” lost evidence and faded witness recollections, and irreparable harm to the business plaintiffs, including the risk of going out of business in the interim.

A second lesson for counsel lies in the decision on the merits. The court neither affirms nor reverses, but vacates the stay orders and remands for further consideration by the district court because there is an inadequate record to review the court’s exercise of discretion.

Foote filed suit against his assigned attorney and the public defender’s office a month after his arraignment, claiming that his assigned defender’s handling of the case deprived him of his Constitutional rights. The public defender’s office moved to withdraw, claiming the lawsuit created a “clear conflict of interest.” After sentencing, the state trial court granted the request of Foote’s retained counsel to assign the public defender to represent Foote on appeal. Foote’s direct appeal to the Nevada Supreme Court was dismissed, and that court also declined his state habeas petition, characterizing the alleged conflict of interest as a potential conflict only.

Foote’s federal habeas petition alleged ineffective assistance of counsel as a result of th conflict of interest. He claimed the public defender failed to raise meritorious appellate issues and never responded to his demand to withdraw and ask for the appointment of independent counsel counsel.

The Ninth Circuit denies the petition because it is an “open question” whether the defendant’s conflict of interest with appellate counsel violates the Sixth Amendment. Under the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1), habeas relief cannot be granted unless the decision of the state court is “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Since the Supreme Court has never held that a conflict with appellate counsel violates the Sixth Amendment, habeas relief is denied.

This is an unsettling decision because the Ninth Circuit’s reasoning denies relief even assuming the alleged conflict of interest actually exists. Though it recognizes that an “irreconcilable conflict” between defendant and trial counsel may entitle the defendant to new trial counsel, the lack of a comparable Supreme Court holding with respect to appellate counsel means that habeas relief must be denied.

Is this distinction between trial counsel and appellate counsel splitting hairs?

The Ninth Circuit Blog says that “This “Foote-note” to the Sixth Amendment seems too narrow as it is not a large step from trial counsel to appellate counsel.”

Likewise, anonymouos blogger “J” at the The AEDPA Law and Policy Blog says:

I’m not an expert on this particular area of the 6th Amendment. That being said, isn’t there an argument that the 6th Amendment rights of a defendant at trial are the same as his 6th Amendment rights during his first appeal as of right vis-a-vis the right to conflict-free representation? If that is correct, then wouldn’t the failure to provide conflict-free counsel based on the difference between the trial and the first appeal implicate the “unreasonable application of” prong? (Emphasis in original.)

I tend to agree. Why should a distinction be drawn between trial counsel and appellate counsel in this situation? The Ninth Circuit doesn’t even attempt to draw one, even though it relies on the distinction to establish the lack of controlling Supreme Court precedent.

Maybe that’s why I don’t share Professor Martin’s opinion that Judge Kozinski’s dissent in today’s Ninth Circuit Exxon Valdez decision (Baker v. Exxon Mobile Corp., 04-35182 (May 23, 2007)) is an example of a clerk and/or judge “trying too hard.” Indeed, I thought there were some missed opportunities to use even more nautical turns of phrase — either Judge Kozinski missed them, or he deliberately refrained from using them so as not to go overboard (ouch). In any event, while Judge Kozinski’s opinion fires a few broadsides (ouch again) at the majority, I think the theme keeps the opinion engaging without taking anything away from the seriousness of the issues.

Robert Loblaw at the Decision of the Day can’t resist either, asking, “Has the Exxon Valdez litigation finally run aground?” But that’s just the first sentence of a more informative post that also wonders about the future of the litigation.

Generally, the residential tenant who has suffered a breach of the warranty does not lose money. He instead cannot bathe as frequently as he would like or at all if there is inadequate hot water; he must worry about rodents harassing his children or spreading disease if the premises are infested; or he must avoid certain rooms or worry about catching a cold if there is inadequate weather protection or heat. Thus discomfort and annoyance are the common injuries caused by each breach and hence the true nature of the general damages the tenant is claiming. (Quotation marks and citation omitted.)

The court notes other states had construed similar statutes to include emotional distress damages, and that other “actual damages” provisions in the California codes had been construed to include emotional distress damages. Finally, because the damages were awarded on a statutory cause of action rather than an action for breach of the lease contract, the award of emotional distress damages was not an impermissible award of tort damages in a contract action.

The same year, while the action was pending, Abercrombie started using a new “outline” moose trademark in addition to its silhouette moose mark. The parties settled the lawsuit with an agreement that allowed each of them to continue using their marks.

After the case settled, Moose Creek started using two new moose trademarks, and now it was Abercrombie’s turn to allege infringement. Now making the argument in favor of likelihood of confusion under the venerable 8-factor analysis of AMF Inc. v. Sleekcraft Boats , 599 F.2d 341 (9th Cir. 1979), several of Abercrombie’s arguments were challenged as factually inconsistent with those it made in the first lawsuit, and the district court held that Abercrombie was thus judicially estopped from making those arguments.

The Ninth Circuit finds that the district court was within its discretion to preclude arguments on two of the Sleekcraft factors but abused its discretion by precluding arguments on two others. The parties’ reversal of position — Abercrombie having the senior mark this time, and Moose Creek having the junior mark — is instrumental in the analysis, as it changes the focus of inquiry regarding the relevant field of marks and which party’s customer base is the appropriate focus for evaluating likely confusion. On the other hand, two Sleekcraft factors — marketing channels and the likelihood of expansion in the product lines — are unaffected by the parties’ flip-flop in junior and senior status, and thus inconsistent arguments from Abercrombie are precluded absent an actual change in underlying facts. The court declines to reverse the trial court’s denial of a preliminary injunction against Moose Creek’s use of the marks, instead remanding to the district court for reconsideration in light of the arguments previously precluded.

All that said, this case caught my interest because of the business decision, not the legal one. My question: What the heck was Moose Creek thinking when it came out with two new moose marks? It already had a settlement agreement in place allowing it to continue using the old marks (which presumably continued to strengthen with time), and it knew that any new marks would be junior to Abercrombie’s marks, making them a potential litigatgion target. There must have been a strong market factor at work to justify the risk of litigation. My two cents to Moose Creek: when you settle this one, make sure you can live for a long, long time with the marks the agreement lets you continue to use.

The California Supreme Court holds in People v. Superior Court (Decker), case no. S130489 (May 21, 2007), that a defendant who hired an undercover detective as a “hit man,” made a down payment, provided the hit man all of the details necessary for him to carry out the killing — including descriptions of the intended victim and her home, car, workplace, and daily routine — and then stated his unequivocal wish that the hit man follow through with the killing, can be charged with attempted murder.

The court is forced to draw the line in this case between solicitation and attempt, and it’s not an easy thing to do. Both the majority opinion and Justice Werdegar’s dissent are persuasively written.

Professor Martin has this post about the case at California Appellate Report, in which he writes:

But, according to the majority, what does it take for an “attempt”? Not much. Basically, just the tiniest thing. Just add a tiny little bit of movement (e.g., a downpayment) to a solicitation and, boom, you’ve got an attempt.

I’d say that’s a little unkind to the majority. Even though the majority does rely heavily on the “slight-acts rule,” the opinion makes clear that neither making the down payment nor any other act in addition to solicitation will necessarily suffice as an “attempt.” Key to the majority seems to be the notion that Decker had set all of the wheels in motion such that without interference, the crime would be completed with no further participation from him:

In finding the record sufficient to hold Decker to answer to the charges of attempted murder here, we do not decide whether an agreement to kill followed by a downpayment is always sufficient to support a charge of attempted murder. Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a particular case. A different situation may exist, for example, when the assassin has been hired and paid but the victims have not yet been identified. In this case, however, Decker had effectively done all that he needed to do to ensure that Donna and her friend were executed. (Emphasis added, citations omitted.)

But I agree with Professor Martin that the case is a “good review of the elements of solicitation and attempt.”

Jusice Werdegar’s dissent intrigues by raising, but not reaching a conclusion, on the issue of whether Decker actually did everything necessary for the crime to be committed in light of the fact that the undercover detective posing as the hit man had no intention of carrying out the crime.

On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained.

At the hearing on the settled statement, held more than a year after conviction, the trial judge admitted having no recollection of the trial proceedings. The proffered settled statement was prepared almost entirely by the prosecutor with only nominal participation from appellate defense counsel, who had not participated at trial. Cervantes’ trial counsel had no input at all. He was deemed unavailable when appellate counsel told the court that he had left the public defender’s office. The trial court approved the settled statement.

It turned out that Cervantes’s trial counsel remained practicing in town after leaving the public defender’s office. The Court of Appeal, noting that Cervantes will be entitled to a new trial if a settled statement cannot be approved, remanded for a determination of whether a settled statement could now be prepared with the assistance of his newly located trial counsel.

Net result: More than two years after his conviction, Cervantes still doesn’t know if he will be appealing on the basis of a settled statement or will instead be entitled to a new trial.

Lessons for trial lawyers: The Court of Appeal will not grant new trials on the basis of unavailability of transcripts until efforts at procuring a settled statement are thoroughly exhausted. Determine the availability of your trial transcript immediately and keep track of persons important to the preparation of a settled statement — just in case. It turned out in this case that although Cervantes’s trial counsel had left the public defender’s office, he was still practicing locally — a little effort could have saved a lot of time.

As a side note, the unanimous opinion from our local division of the Second District Court of Appeal contains this gem of writing in the introduction:

“The trial judge has no recollection of the trial proceedings. Yet, he approves a settled statement. This is unsettling.”

That’s the kind of writing that keeps opinions from being boring, yet maintains the seriousness of the subject (unlike, in my view, this opinion). I wish I could write similar remarks. But such writing from an appellate justice is almost universally appreciated, while an attorney submitting a brief has to worry about insulting the seriousness of the court. If I really want to scratch that itch, I should work on getting appointed to the bench.

Thanks to The Electric Lawyer.

So it’s no surprise to me that a blog to discuss judicial performance has arisen in at least one jurisdiction. Kevin O’Keefe at Lexblog links to a Florida blog to which lawyers posted their opinions regarding judicial performance. Now an ethics complaint against a lawyer who posted highly negative comments about a judge is raising issues of professional ethics and freedom of speech. See O’Keefe’s post, and the links therein (to a newspaper article and to the blog itself), for details. Not all of the judges dislike it.

Actually, it seems like a wiki might be much better suited for this purpose. But no less dangerous.

Not only do we abet the flouting of our rules, which must be discomfiting to those lawyers who abide by them, we also do a disservice to the litigants.  See Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 231 (2d ed. 2003) (“All the judges quoted in this book have one bit of advice in common: emphasize the muscle of your brief and cut out the flab.”); see also id. at 234 (“The poorest, least persuasive briefs are all too often those that the lawyer has not taken the time to reduce to its essence.” (quoting Chief Judge John M. Walker, Jr.)).  Here, tightening up petitioner’s brief to conform to our rules would not only help conserve judicial resources and promote respect for our rules, it would better serve the client.

Following up on this post.

Update (5/22/07):  Decision of the Day weighs in with this post (which I highly recommend for its witty writing), believing that Judge Kozinski’s dissent is likely to defeat its purpose, and actually encourage overly long briefs, because it brings attention to a lenient order few were otherwise likely to notice.  But I suspect that any lawyer who knows that Judge Kozinski will participate in deciding a similar motion will think twice.

Richard Quigley probably doesn’t think I was crazy.  He was cited nine times for riding his motorcycle without a helmet and contended that law enforcement officers were required to issue him “fix-it” tickets instead of regular citations because his lack of a helmet was an “infraction involving equipment” that required such treatment.  In Department of the California Highway Patrol v. Superior Court, case no. H029406 (May 17, 2007), the Sixth District Court of Appeal holds that riding without a helmet is indeed a “correctable” violation subject to a fix-it ticket, but also holds that the officers had discretion to cite Quigley in this case because of they could have reasonably concluded that Quigley’s helmetless operation of his motorcycle met the statutory exception of an “immediate safety hazard” — an immediate danger to Quigley, that is.

Which leaves open the possibility that an officer could decide to issue only a fix-it ticket if the rider agreed to leave his motorcycle parked until he could retrieve and put on a helmet.  In that case, there would be no immediate safety hazard.  The hazard passed when the rider stopped the bike.

Hypothetically, one might even run across an officer that doesn’t find helmetless riding to be such a safety hazard that more than a fix-it ticket is required.  But I suspect any officer that feels that way isn’t likely to pull over a helmetless rider in the first place. Mr. Quigley, I wish you good luck finding those officers.

I expect the legislature will move on this issue.

Internet activity, and particular [sic] blogging, is being shaped and governed by state and federal laws. For US bloggers in particular, blogging has become a veritable land mine of potential legal issues, and the situation isn’t helped by the fact that the law in this area is constantly in flux. In this article we highlight twelve of the most important US laws when it comes to blogging and provide some simple and straightforward tips for safely navigating them.

If you’re blogging, you owe it to yourself to check it out.  And it probably wouldn’t hurt to keep Tuesday’s Roommates.com decision in mind, too.

Technorati Tags: blog law, internet law, law and technology, legal ethics

The most written about aspect of the decision is the court’s finding that Google’s display of thumbnail images in its image search results constitutes a non-infringing “fair use” of the images.  Since Perfect 10 failed to show that it was likely to overcome Google’s fair use defense, the court reverses the grant of preliminary inunction.

Kevin O’Keefe of Lexblog says that the decision is “[f]urther evidence that Google is rewriting American copyright law (not saying good or bad).”  It certainly gathered some attention, with bloggers writing about the case at How Appealing, Appealing in Nevada, and Decision of the Day.

Professor Orin Kerr at The Volokh Conspiracy calls it “Another Clash Between Virtual And Physical Perspectives in Internet Law,” and I agree that is one of the more interesting aspects of the case.  I also think the decision does a very good job of distinguishing between the virtual and physical display of an image.  Professor Kerr’s post links to a law review article of his on this issue of perspective.

Technorati Tags: google, copyright law

To be fair, Judge Farmer lays out why he wrote the supplemental opinion:

In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.

I should state publicly my own resolution, made several months ago.  I had decided that the style of some opinions could — and should — be unconventionally changed for greater openness to all readers.  I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees.  Then came this case.

Nothing, judge?  Admittedly, the somewhat far-out legal theory in this case invites some mirth.  Plaintiff owners of the thoroughbred Funny Cide alleged that as a result of a statement by the Miami Herald suggesting that Funny Cide’s jockey cheated in his Kentucky Derby win, the jockey rode the horse too hard in his Preakness Stakes win, leaving the horse with no reserves and unable to win the Belmont Stakes to complete the fabled Triple Crown.  (Law.com covered the lawsuit here when it was filed.)

Judge Farmer concludes his introduction with this:

So I give this explanation for what I wrote, laying my version along side the panel’s substitute.  Readers can compare a conventional opinion with an unconventional style — the pious with the impious.

Several bloggers take the judge up on his invitation.

Professor Orin Kerr at The Volokh Conspiracy titles his post “Most Self-Indulgent Opinion?” Kerr makes clear in his conclusion that he is not against witty writing per se:

To be clear, I really enjoy clever and well-written legal opinions. Once in a while, a joke in a legal decision can be really well-done and harmless (and can even advance an argument). And yes, I’m sure a lot of people find this sort of thing entertaining. But legal decisions are government documents; they are statements from the judiciary as to the rules that govern our affairs. Maybe I’m just old-fashioned, but I would rather judges err on the side of writing clear, short, and direct opinions rather than trying to impress us with how funny they can be.

The comments are worth browsing.

Nevada appellate lawyer Tami Cowden at Appealing in Nevada is way on the other side of the spectrum in her post, “A page turner of an opinion“:

I’ve long been a proponent of using fiction writing techniques in legal writing. But even I am bowled over by the gripping opinion created by Judge Farmer of the Fourth District Court of Appeals of the State of Florida in Funny Cide Ventures, LLC v. Miami Herald Publishing Co.  Alas, the rest of the court did not appreciate Farmer’s style, and so the first opinion is same old, same old. But read on. You’ll get to the good stuff.

I agree with both, to an extent.

I read (and recommend) Cowden’s piece in Nevada Lawyer on using fiction-writing techniques in brief writing.  She doesn’t so much recommend a style as she does technique in proposing that lawyers can be more persuasive by incorporating elements of fiction — theme, characters in conflict, a point of view and “showing rather than telling.”  And I think she makes a persuasive case for it.  I just don’t think Judge Farmer does a very good job of carrying it off.

The reason I think the opinion fails, despite its good intentions and my agreement with Cowden that fiction techniques can be effective, is that Judge Farmer is also trying to be cute. That’s where I agree with Professor Kerr. Notwithstanding the justifications Judge Farmer offers, I found it hard to read the opinion without thinking that he was being too “smart-alecky” in a bid to seek attention, rather than making a good faith effort to achieve his stated goal of making the opinion more readable to non-lawyers.

Finally, note two more takes on the subject.

The Wall Street Journal’s Law Blog takes note of the opinion’s novelty without taking a stand on it except to say, “If you’re going to read one opinion today, the Law Blog beseeches you to check out Funny Cide Ventures v. Miami Herald. “

Florida appellate lawyer Matt Conigliaro of Abstract Appeal offers the briefest of comment here, but promises more later.

Update (5/24/07):  Matt Conigliaro has his promised update here, and it’s very good.  He’s the first I’ve seen raise the excellent question of whether judicial opinions can be made understandable to non-lawyers while still serving well in their function as precedent.  His argument is well worth reading.

A legal writing professor commenting on the post is reminded of how her 12-page appellate brief beat her opponent, whose brief went the maximum 35 pages:  “I knew as soon as I saw that he took an entire page just to identify the two parties that I was going to win.”

Thanks to Legal Writing Prof Blog for the link.

Technorati Tags: legal writing

In this case, two municipal fair housing councils sued Roommates.com, an online clearinghouse for those seeking to obtain roommates or move in as one.  They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws.  The district court found Roommates immune under the CDA and granted summary judgment on the FHA claim.

Judge Kozinski’s majority opinion succinctly summarized the bounds of immunity under the CDA:

In other words, if Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication.  But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity.  (Footnote omitted.)

The majority opinion then finds that Roommates lacks immunity under the CDA for publishing and e-mailing member profiles containing members’ gender, sexuality, and children information and preferences, which it collects from its members via an interactive, drop-down menu registration process.  But it finds that Roommates is immune from liability for publishing the free-form comments submitted by its members.  Concurring and dissenting, Judge Reinhart would also find immunity lacking for the latter publication.

Some bloggers suggest a possible relationship to anti-blogging sentiment recently expressed by Judge Kozinski.  Howard Bashman at How Appealing says this “decision screwing-up the protection from liability for online postings” might have been foreshadowed by “Judge Kozinski’s recent expression of anti-blogger sentiment,” to which he links. David Lat at Above the Law headlines his post about the case: “Does Judge Kozinski Hate Blogs?” University of San Diego School of Law Professor Shaun Martin, blogging at California Appellate Report, spies a “tangential slam on bloggers” in footnote 1 of the opinion, but doesn’t seriously tie the decision to anti-blogging bias.

In a subsequent post, Bashman links to an article about the case that will appear in Wednesday’s New York Times.

UCLA law professor Eugene Volokh at The Volokh Conspiracy has two posts about the case.  The first is a detailed analysis of the decision.  His second is a commentary on the (un)constitutionality of limiting free speech and free intimate association rights to advertise for and select a roommate of one’s choice.

Professor Eric Goldman of the Santa Clara University School of Law, blogging at Technology and Marketing Law Blog headlines his take “Ninth Circuit Screws Up 47 USC 230.”  He sees a “180” being pulled by the court:

Just a couple months ago, in Perfect 10 v. CCBill, the Ninth Circuit issued an incredibly expansive 230 ruling. Today, in a highly fractured opinion, they go in the completely opposite direction, creating a significant exception to 230′s coverage that’s bound to spur plenty of new unmeritorious and ill-advised lawsuits from plaintiffs. Why the 180? Such is life in the Ninth Circuit.

The Decision of the Day blog provides analysis supporting its opinion that the “decision suggests that § 230 may be a lot narrower than some websites would like.”

Bashman’s and Goldman’s posts suggest ramifications for pending suits against DontDateHimGirl.com and the insanely popular Craig’s List.

Thanks to the bloggers mentioned above for providing many of the links.

Technorati Tags: Communications Decency Act Immunity, internet law, law and technology

The Ninth Circuit affirms in Vasquez v. Los Angeles County, case no. 04-56973 (May 15, 2007). (The “before” and “after” seals are appendices to the opinion but are provided in a separate PDF file here.)  The court finds that Vasquez has standing because he is a county employee that has frequent regular contact with the offending county seal.  It also ruled that the claim was not mooted by the inclusion of the Spanish mission as a substitute for the cross, finding that the district court’s conclusion to the contrary, based on its rationale that substitution of one Christian symbol for another could not be considered hostile to Christianity, confused mootness with the merits of the case.

That’s where plaintiff’s luck runs out.  The court turned next to the oft-vilified Lemon test (Lemon v.Kurtzman, 403 U.S. 602 (1971)), under which a government action is consistent with the Establishment Clause if it: (1) has a secular purpose; (2) has a principal or primary effect
that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.  Reaching beyond the pleadings, the court concludes that the cross was removed from the seal for the secular purpose of avoiding threatened litigation over an alleged Establishment Clause violation and that the purpose of the removal was to restore neutrality.  Finally, it rejects plaintiff’s contention that the political divisiveness arising from the controversy was sufficient to plead excessive entanglement.

Perhaps I have greater interest in this case because I live in a neighboring county and closely followed the original controversy over the cross and seal as it developed, but I am surprised to find only one other blog post about it.  That post is here at the “Decision of the Day.”  (It’s also possible that bloggers will pay more attention to this case in the coming days but were too busy posting about the Fair Housing Council v. Roommates.com, LLC case, which also came out yesterday and, as I posted earlier today, took the legal blogosphere by storm.)

Technorati Tags: First Amendment, Establishment Clause

Technorati Tags: California appellate practice, California writ practice, California election law

Rules 1-86 were “restyled” — revised with the intent to make them easier to read and understand without substantively changing them.  For example, rule 59, governing new trial motions, is amended so subsection (a) is changed from a single, lengthy paragraph into paragraphs (a)(1)(A), (a)(1)(B), and (a)(2).  Not only easier on the eyes, but much easier to comprehend.

The amendments contain substantive changes as well, but none directly relating to the rules regarding entry of judgment and post-trial practice.

Helpful links to the advisory committee reports, including a side-by-side run-down of the style changes between old and proposed new rules, are provided here and here courtesy of Professors Counsellor and Ryan at Baylor Law School (blogging at Civil Procedure Prof Blog), and Professor Spencer at the University of Richmond School of Law (blogging at Federal Civil Practice Bulletin), respectively..

Citations to blogs should not be too surprising.  Most are, after all, commentary.  While not as formal or thorough as a law review article (to put it mildly), the principle behind citing a blog is not, to my mind, much different than citing a law review article, at least where the blog is well-reasoned.

Is similar treatment in store for the legal wiki?  A wiki is different from a blog because virtually anyone (though that can be restricted by registration) can edit, add, or remove content, often anonymously — as anonymously as the Internet allows, anyway.

Before we get to legal wikis, it is worth noting that the grandaddy of all wikis, Wikipedia — an online encyclopedia produced by wiki-type editing — appeared to be gaining traction in court opinions, law reviews, and legal blogs as long as a year ago, according to this paper published at the Columbia University website.  Still, the paper’s author Patrick Ferguson notes, healthy skepticism remained at the time of his writing:

Wiki skepticism is not only the product of a citation-obsessed legal culture.  Professors in all disciplines are highly critical of their student’s citations to Wiki definitions. However, this criticism is often directed at students who rely solely on Wiki for information rather than as a starting point for research. A free, widely accessible encyclopedia is a great place to start research and with 2.5 billion page views per day, a tremendously important asset to our culture. While Wiki articles may contain errors, they are often the best easily-findable source on the web for technical definitions. Interestingly, a study by Nature found that Wikipedia has only marginally-higher error rates than Encyclopedia Britannica.  (Footnotes omitted.)

Despite being a year old, the paper is a pretty good starting point for anyone interested in the future of wikis and the law.

Interested readers should turn next to this article by Massachussetts lawyer Robert Ambrogi (who also blogs about legal websites at Robert Ambrogi’s Lawsites), which provides some great examples of legal wiki successes and links to several active legal wikis.

Next, listen to this recent podcast of Lawyer 2 Lawyer hosted by Ambrogi and California attorney J. Craig Williams, who blogs at May it Please the Court.  They provide a list of their guests in this post, which should convince you it’s worth your time to listen (it’s slightly over a half hour long) if you are interested in keeping up with technology’s impact on the law.  Some teasers from the podcast . . . Asked: Is it possible that wikis could eventually put Lexis and Westlaw out of business?  Predicted: within 12 months, most “major organizations” will be using a wiki in “one form or another.”

In this post, Ambrogi notes the launch of the Seventh Circuit’s wiki, with a subscription-only link to an article in the National Law Journal.  Ambrogi notes this is a first for the federal judiciary.  (I actually learned about Ambrogi’s post from this funny post — follow the link to “The Plig” for a laugh — at the Appellate Law & Practice blog.)

The Seventh Circuit’s wiki is hosted by a federal court and allows editing only by registered users.  Will that give it a credibility edge that leads to it being cited in opinions?  It should at least be useful much as a treatise or encyclopedia is — as an initial resource to lead the reader to authoritative law.  But the Seventh Circuit wiki also includes a (currently blank) current events page.  If that page strays from straight news to opinion, it may generate leading edge commentary that could find its way into published court opinions.

Technorati Tags: law and technology, legal wikis, legal writing

Technorati Tags: Ninth Circuit, criminal law

Technorati Tags: legal writing, judges

The briefs were part of an appeal to Superior Court disputing a decision by New Castle County Board of License, Inspection & Review, in which he made several statements including that the county could appoint “monkeys” to the board and “simply allow the attorney to interpret the grunts and groans of the ape members and reach whatever conclusion the attorney wished from the documents of record.”

The Delaware Supreme Court found that submission of the brief violated their rules of ethics.  Though it is not apparent from the excerpts provided in the article, the court found that the brief suggested that the reviewing court would rule against the party due to bias rather than the merits of the case.

Judicial bias is a legitimate ground for appeal after the fact.  And you can even be proactive about it in California trial courts.  Better to follow prescribed procedure, though (see Code Civ. P. § 170 et seq.), than resort to monkeyshines.

Technorati Tags: legal writing, legal ethics

Technorati Tags: California cost awards, California post-trial procedure

Technorati Tags: California appellate practice, California appellate procedure

Technorati Tags: legal research

Does justified text have anything going for it for purposes of word-processed documents? Well, its defenders will tell you that it looks “professional.” But it’s a phony professionalism, in that it comes at the expense of readability, which should be the first priority of any kind of typesetting, including word processing.

The article is written from the perspective of contract drafting, but if true, would likewise seem to counsel against using full justification in legal briefs.  It may be a blow to the ego to think that your excellent legal writing might not get the point across just because the judge is having difficulty reading your fully justified text, but under the principle of “every little bit helps,” why not eliminate a nuisance — even if it’s a subconscious one –  for the judge reading the brief?

Technorati Tags: legal writing, appellate practice

In 1979′s The Jerk, Steve Martin’s character, Navin Johnson, sees his name in the phone book for the first time and exclaims, “This is the kind of publicity that gets people noticed!”

Well, that’s what they say today about Technorati and blogs. So here’s my post for the Technorati spiders to claim my blog and send me on the way to internet fame . . .

Technorati Profile

Here we go! Hold on!

Whether it’s from cutting and pasting or not, the continued reference to old rule numbering – more than four months after the new numbering took effect – is very revealing about the lack of cite-checking being done by lawyers and their paralegals. Alarmingly so. Or are they doing their cite-checking, but using outdated code books to do so?

Bashman appears to doubt lawyers will heed this advice:

The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited.

I think he’s right. And opposing lawyers will always feel compelled to respond on the merits rather than point out the cited case’s lack of authoritative effect.

UPDATE (5/4/07): I got to thinking about this post last night and had some thoughts for updating it today. It could wait until my thoughts formed more completely. After all, the blog was only in its fourth day and had a total of 20 or so hits. Then I woke up to see the avalanche of hits from the How Appealing blog (thanks for the traffic, Mr. Bashman) and wished I stayed up late last night to update.

There’s a good reason lawyers will always feel compelled to respond to the merits of a cited district court opinion. They should — at least if the merits were presented. The key is to stick to the merits without fighting over the significance that the point has been adopted by a district court.

Take a close look at where the Seventh Circuit drew the line. Here is what Chief Judge Easterbrook’s opinion said:

Finally, the litigants have debated at length the significance of Chicago Truck Drivers Health & Welfare Fund v. Teamsters Local 710, 2005 U.S. Dist. LEXIS 42877 (N.D. Ill. Mar. 4, 2005), which discusses the handling of stock received in demutualization. It is a pointless debate. The Teamsters’ plans have terms different from those of the Professional Benefit Trust. What’s more, decisions of district judges have no authoritative effect. [Citations.] District judges’ opinions often contain persuasive observations, but these can be incorporated into the parties’ briefs. It is never helpful to have an [sic] lengthy exchange on what a particular district court’s opinion “really means” and whether that case was correctly decided. The parties should learn what the opinion has to teach and weave its wisdom into their own presentations.

What’s the difference between arguing “whether the case was correctly decided” and “weaving its wisdom” into a brief, after which the parties will debate that wisdom? The only difference seems to be an actual citation to the opinion. Thus, the bottom line appears to be that the court wants to hear an argument about the merits of a position taken by a district court, but it doesn’t (or at least shouldn’t) care that a district court has actually adopted that position.

Fight over the merits of an idea, proposition, argument or what have you all you like. Just don’t slug it out over the significance of a district court having said it.

extrinsic sources, such as the ostensible objectives to be achieved by the statute, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction and the statutory scheme of which the statute is a part.

The end result seems consistent with the policy that “statutes regulating conditions of employment are to be liberally construed with an eye to protecting employees.”

Update (5/16/07): In a post called “Defense Firms Weigh In on Murphy,” the Wage Law blog notes that the Supremes have denied a petition to modify the opinion in a way designed to head off negative consequences to employers that “will flow from the Supreme Court’s designation of the hour of pay as a wage.” The post includes a round-up of commentary on the case by “large firm” blogs.

In Murphy v. Kenneth Cole Productions, Inc., __ Cal.4th ___, 56 Cal.Rptr.3d 880, 155 P.3d 284 (April 16, 2007), the California Supreme Court unanimously holds that in a section 98.2 de novo appeal from a Berman order, the superior court may also hear claims not raised by the employee in the Berman proceedings. Taking into consideration (1) the nature of de novo review, (2) a trial court’s inherent discretion in adjudicating claims at trial, (3) the legislative policy of encouraging employees to use the Berman process, and (4) the legislature’s intent to discourage frivolous or unmeritorious appeals from orders after a Berman hearing, the court determines that it is within the discretion of the trial court to determine the scope of claims, including new claims, to be heard in the de novo trial.

Regarding the fourth factor, the court describes the risks of any appeal, not just frivolous appeals:

A party who appeals a Labor Commissioner award does so at its own peril. If the employer appeals, and the employee obtains representation, it is likely that the employee’s attorneys will uncover additional, related facts and claims not thoroughly examined at the administrative level when the claimant was unrepresented. Just as an employer is not bound by the defenses it raised in the Berman process, but rather is entitled to abandon, change, or add defenses not brought before the Labor Commissioner, [citation] , so may an employee raise additional wage-related claims in the de novo trial.

The employee always has the option of filing a new claim with the Labor Commissioner or in a superior court action, so the threat of additional claims is always there in any event. The court’s decision, however, makes it easier for the employee to consolidate the additional claims into a single proceeding with the existing claim, and it also suggests additional claims are more likely to lapse in the absence of an appeal.

The majority concludes from U. S. Supreme Court decisions upholding injunctions against speech adjudicated to be obscene or in violation of gender discrimination laws that these decisions were consistent in holding that “an injunctive order prohibiting the repetition of expression that had been judicially determined to be unlawful did not constitute a prohibited prior restraint of speech.” Finally, noting that the Sixth Circuit Court of Appeals and the supreme courts of Ohio, Georgia and Minnesota had upheld injunctions against speech already proven to be defamatory, the majority holds that “following a trial at which it is determined that the plaintiff defamed the defendant, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory.”

The Court nonetheless upholds the Court of Appeal’s decision striking down the injunction, but only because the majority found the injunction too broad. It remanded the case to allow the injunction to be tailored more narrowly and consistent with its opinion.

Justices Kennard and Werdegar, in two solo “concur and dissent” opinions, agree that the injunction should be struck down, but would not remand to allow a more narrowly tailored injunction to replace it. Neither would allow any prior restraint in the absence of a compelling state interest or public policy in tension with free speech rights, and neither found such a competing consideration in this case.

within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.

The deadline becomes a thorny issue when multiple defendants are served at different times. Some district courts in the Ninth Circuit hold that the date of the first service is the trigger, others hold that the last date of service controls. Professor Benjamin’s post quotes extensively from Coleman v. Assurant, Inc., 463 F. Supp. 2d 1164 (D. Nev. 2006), which discusses this split.

UPDATE: Jon Sands at Ninth Circuit Blog gives his detailed take on the case here.

CORRECTION: The author at Ninth Circuit Blog is Steve Kalar, posting here.

Welcome to my blog. I suggest you start by reading this post, then reading the “about” boxes in the left column, then clicking on the “About Greg May and G. T. May Law Offices” link at the top right of this page.

The areas I intend to cover in this blog are:

1. Substantive legal developments in the California Courts of Appeal, California Supreme Court, and the Ninth Circuit Court of Appeals.

2. Procedural law relating to the prosecution of appeals, writ petitions, and post-trial motions in state and federal courts in California.

3. Practical skills essential to appellate practice.

Of course, the blog may develop as we go along. Don’t be surprised to see commentary on ethics or anything else that catches my attention, so long as it is relevant to appellate practice.

If you’d really like to stay up-to-date, use the available RSS feed near the top of the right-most column on this page.

Commenting is not currently enabled, but if there is enough demand for it, that will change.

Finally, feel free to contact me anytime at calblogofappeal@gtmaylaw.com.

Thanks for visiting. Come back soon.