Cal Appellate courts soft-launch new websites

The Courts of Appeal has posted a Special Announcement:

We are excited to announce the launch of a new website and will be retiring the current site on May 30, 2024.  Explore the new look, functionality, and bookmark the new pages by visiting our new California Courts of Appeal Website! 

The Italian American Lawyers Association program for June 19, California For All, will feature Judicial Appointments Secretary Luis Cespedes and 2/7 PJ Gonzalo Martinez. 

Bloomberg Law has Ghostwriters Try Steering Supreme Court Justices Away from Cases

 

Speedy Justices?

Bloomberg Law has Kavanaugh Bests Two Fellow Justice Runners in Washington Race

• Brett Kavanaugh proved fastest among the three Supreme Court justices who ran the ACLI Capital Challenge, though he got beat by the solicitor general. Kavanaugh, 59, finished the three-mile race on Wednesday in 24 minutes, 20 seconds, which was slightly behind his 2023 pace.
• that wasn’t good enough to top Solicitor General Elizabeth Prelogar of team “Racing in the Morning Suits Us.” She finished in 22 minutes, 23 seconds.
• Justice Amy Coney Barrett, 52, who was part of the “Sua Sprinte” team, finished in 26 minutes, 9 seconds. She was ahead of Ketanji Brown Jackson, 53, who wore a T-shirt bearing her team name, “Junior Justice League,” and finished in 33 minutes, 24 seconds.
• A current Barrett clerk finished first among judicial branch participants. Nathaniel Sutton, son of Sixth Circuit Judge Jeffrey Sutton, finished third overall with a time of 15:44.

Bloomberg Law also has Federal Circuit Judges Detail the Fastest Ways to Lose Your Case

• Several types of blunders during oral argument can torpedo cases that are otherwise in the bag, Federal Circuit judges warned a conference room of appellate litigators.
• “I think as many cases are lost at oral argument as are won at oral argument,” said Judge Timothy B. Dyk, who was an appellate lawyer before joining the influential court with jurisdiction over patent cases in 2000.
• Taking too long during arguments, refusing to make any concessions, and displaying outward animosity to opposing counsel are fast-track ways to lose the judges you’re appearing before
• One way lawyers lose points that Dyk said “happens with some frequency” is advocates refusing to engage with the court’s hypothetical.

Law360's article is Keep It Short, And Other Advice From Fed. Circ. Judges

CLA's Litigation Section's Litigation Update: May 2024 is here.

The Recorder has The History and Continued Viability of California’s Unpublished Cases Rule -- "Surely a court would be better off with the benefit of a unique, on-point, but unpublished case than having to decide an issue in a vacuum," write Kevin Frankel and Christian Hochhausler of McGuireWoods.

CJA confirms new PJ & Justices

The CJA held hearings today confirming the appointments of Justice Gonzalo Martinez as PJ of 2/7, Judge Natalie P. Stone to 2/7, and Tara Desautels to 1/2. All three were sworn in immediately after their hearings.

With today's confirmations, the only open seat in the 2d is the PJ spot for Division 5. In the 1st, there are two open seats (in 1/4 and 1/1).

See 3 Justices Confirmed to Los Angeles, San Francisco Appellate Courts -- Following Tuesday's confirmations, the Judicial Council announced it will expand a mentorship program for aspiring appellate justices to include attorneys interested in becoming research counsel in the state's courts of appeal.

Law360 has Ex-Squire Patton Atty Among Latest Calif. Judges Sworn In

• Justice Martinez told the commission he truly loves his job, but also strives to remembers that "behind every case is a person." With his elevation to presiding justice, he has become one of the highest-ranking openly gay men in the state's judiciary. During his speech, Justice Martinez mentioned Supreme Court Justices Martin J. Jenkins and Kelli Evans, both members of LGBT community, as inspirations.
• Friends and colleagues speaking for her called Justice Stone "conscientious" and "making those around her look better" due to her dedication and commitment to the job. ... After being sworn in, Justice Stone noted the importance of remembering the laws affect the human. "I intend to keep in mind the human facet rather than just the cold facts," she said.
• Speaking on her behalf, Judge Charles Smiley of the Alameda County Superior Court called Justice Desautels an "exceptional talent" and "a big thinker" who cares about the institution of the judicial branch and the job jurists are doing. ... Supreme Court Justice Carol A. Corrigan lauded Justice Desautels, calling her an exceptional candidate and "the real deal," praising Justice Desautels' ability to explain the intricacies of the law with great clarity.
• In 2023, the associate judges of the court received a salary of $264,542, according to the National Center for State Courts.

Appellate Mentorship Program Expands

Appellate Mentorship Program Expands to Court of Appeal Attorneys -- Program aims to diversify pool of justices and attorneys working in the appellate courts.

More than 50 people have graduated from California’s judicial mentorship program for aspiring appellate justices—the program’s newest goal is to also diversify the branch’s hundreds of appellate court attorneys, who help justices research and write opinions. The job can also serve as a stepping stone to future service on the superior court or appellate bench.

The Fourth District, Division Two in Riverside is recruiting for a Central Staff Attorney. The job posting can be found on the court’s career website under Job ID 6233. The application deadline is June7, 2024.

The Recorder has Latest Budget Proposal Takes Aim at Court Reporter, Interpreter Hiring Incentives -- The governor's cutback plans must still be approved by the Legislature, which has pushed for more funding for court reporters and interpreters.

Bloomberg Law has Chief Justice Talks Prairie Dogs as Colleagues Talk Substance

US Supreme Court Justices Clarence Thomas and Brett Kavanaugh spoke about the challenges of the busy shadow docket. Sonia Sotomayor on the coming of artificial intelligence. And Samuel Alito the threats to fundamental freedoms. John Roberts talked about prairie dogs. The chief justice is one of five current and former justices who spoke publicly from May 10 to 14.

His focus on history in a speech to an influential appeals court’s conference Tuesday contrasts to comments from his colleagues on the issues surrounding the high court, which faces historically low approval ratings amid ethics scandals and an aggressive 6-3 conservative majority.

3d Dist. oral arg amendment

The 3d District has amended its oral argument procedures. The court in recent times operated under a rule that anyone wishing to appear remotely for oral argument had to apply in writing to demonstrate exceptional good cause. With recent technology upgrades, the court now has the capability to conduct oral argument in the courtroom through video-conferencing or a combination of in person and video appearance. As a result, the court has decided to eliminate the requirement that litigants must apply to appear remotely (and demonstrate good cause to appear remotely). The court has updated its oral argument waiver letter and information on the webpage. Anyone requesting oral argument will now have to let the court know whether they will appear in person or remotely on video. The updated website now reads:

Procedures and Etiquette for Remote Appearances
While the court prefers oral argument be conducted in person, with recent technology updates the court now has the capability to conduct oral argument in the courtroom through video conferencing or a combination of in person and video appearances. With limited exception, the court will no longer hold oral argument by telephone. Request for telephonic oral argument will be treated as a request for remote appearance by video conference. A remote hearing is a court proceeding, and it is the expectation that all those appearing before the court dress in professionally appropriate attire. Additionally, participants are advised to be conscious of their background and are further encouraged to have an appropriate background or to use an appropriate virtual background. Instructions for remote appearances may be viewed here

3d DCA pro tem update

 

• Associate Justice Rebecca A. Wiseman, retired, will be sitting in pro tempore beginning July 15, 2023, through September 12, 2024. 

State Bar Bd of Trustee opening

Supreme Court Appointment to the State Bar Board of Trustees

The Trustees Nominating Committee (TNC) is now accepting applications for Supreme Court consideration and appointment to the State Bar Board of Trustees. The TNC seeks attorney candidates with an active California law practice. Attorneys appointed by the Supreme Court serve for a four-year term and can be reappointed for one additional term only.

Please review the Trustees Nominating Committee Fact Sheet for application details.

To apply, please complete an online application by Mon., May 20, 5:00 p.m.

For questions about the TNC application or process, please contact TNCCAE@calbar.ca.gov.

RA job at 1st DCA

The Court of Appeal, First Appellate District in San Francisco is accepting applications for a central staff attorney vacancy. A regular full-time Appellate Court Attorney position will be staffed at Level B, Level C, Level D, or Senior. Minimum qualifications: active CA bar membership and 2 years of post-bar experience. Experience in criminal and/or civil appellate practice is desirable. Candidates should possess superior research/writing skills and the ability to present statements of fact, law, and argument clearly and logically. Please see the job announcement #6228 for specific levels and salary ranges. For information and an application call 415-865-7369 or visit: www.courts.ca.gov/careers. To ensure earliest consideration, please apply by May 24, 2024.

And speaking of dreams, the Recorder has With No Drama and a Few Jokes, Justice Goodwin Liu Tells USC Law Grads to 'Live Your Dreams' -- Liu offered a mix of lighthearted remarks, inspirational anecdotes and an analysis of how things have changed since he gave his first commencement speech at the school in 2012.

The NLJ has Sotomayor, Speaking With Civics Students, Eyes AI's Impact on Law -- “We have two wars going on,” Sotomayor said at the New York State Bar Association’s civics convocation. “We have problems with health and education. We have difficulties in our political realm. We have not created a world that I had wanted to create when I was your age.”

• Sotomayor is a board member of iCivics, a nonprofit organization that promotes civics education and was founded in 2009 by the late U.S. Supreme Court Justice Sandra Day O’Connor. Sotomayor advanced one of its priorities, urging all schools to offer social media literacy. The justice also encouraged the students to gain more of their information from firsthand sources, rather than repeat commentators or journalists.
• She said the hardest part of being a Supreme Court justice pairs with the realization that a court case isn’t an all-or-nothing proposition.

Law360 has Alito Warns Freedoms Of Speech, Religion Are In Danger -- Justice Alito told the 2024 graduating class of the Franciscan University of Steubenville in eastern Ohio that they were lucky to have attended "one of the few" universities left in the country that supports reasoned debate. Outside of the private Catholic university, that wasn't the norm, he claimed.

Bloomberg Law has Kavanaugh, Thomas Raise Concerns Over Shadow Docket Pressure; the Wall St. Journal has Justice Brett Kavanaugh Wants More Cases—but Don’t Rush -- Kavanaugh said the court’s case load is too light, about 60 arguments a year in recent years rather than the 75 he believes the justices should be handling. From the late 1950s through the early 1990s, the court often heard 150 or more cases annually, but the number has steadily declined since.

Law360 has Calif. May Allow Judges To Work Remotely In Civil Matters

• California's Judicial Council next week will consider amending court rules to allow judges to preside remotely over civil proceedings from a location other than a courtroom.
• The proposed rule, devised by the Judicial Council's Trial Court Presiding Judges Advisory Committee, would apply only to presiding over civil cases, not criminal cases or juvenile proceedings. It also would not apply to appellate courts.

The DJ has Steven Kimball's An honor to dream not of -- Being nominated to the US Supreme Court is not an honor worth pursuing, as it involves lying, politicization, and elitism.

1st DCA pro tem

 The following judge is currently sitting pro tem in the First District:

• Judge Christopher Hite of San Francisco County Superior Court will be sitting pro tempore in Division Four until May 31, 2024.

SG Panel at ABA Conference

ABA Journal has Solicitors general, past and present, reflect on ups and downs of job and arguing before SCOTUS about how at the ABA 2024 Litigation Section Annual Conference in Washington, D.C., on May 2, "Three full-fledged holders of the post and two former acting solicitors general engaged in a lively 90-minute session titled “May It Please the Court.”" The panelists were SG Elizabeth Prelogar, Neal Katyal, Ian Gershengorn, Noel Francisco, Paul Clement; the moderator was DC Circuit Judge Patrica Millett.

CJA Hearing Tuesday, May 14

The Commission on Judicial Appointments will hold public hearings on May 14 starting at 9 a.m. to consider three appellate court appointments by Gov. Gavin Newsom.

The commission will consider the following appointments during hearings held in the Supreme Court Courtroom, located on the fourth floor of 350 McAllister Street in San Francisco:

• Justice Gonzalo Martinez as presiding justice of the Second District Court of Appeal, Division Seven (Los Angeles)
• Judge Natalie P. Stone as associate justice of the Second Appellate District, Division Seven (Los Angeles)
• Judge Tara Desautels as associate justice of the First District Court of Appeal, Division Two (San Francisco)

CAAL press release re new officers & member

The California Academy of Appellate Lawyers is pleased to announce that at its May 5, 2024, meeting, it elected its officers for the 2024-2025 year and admitted as a member Deputy Solicitor General Joshua Patashnik.

The new officers are:

·         Joseph P. Mascovich of Schroeder Schaff & Low, Rocklin, President;

·         Sean M. SeLegue of Arnold & Porter, San Francisco, Vice President;

·         Benjamin G. Shatz of Manatt, Phelps & Phillips, LLP, Los Angeles, as Treasurer; and

·         Judith E. Posner of Benedon & Serlin, LLP, Woodland Hills, as Secretary.

Mr. Patashnik is a Deputy Solicitor General in the California Department of Justice. He received his JD from Stanford Law School. He clerked for Justice Anthony Kennedy at the U.S. Supreme Court and for Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals. Before joining the Department of Justice he was an associate at Munger, Tolles & Olson LLP.

Second Place Setback?

 

Bloomberg Law has US Supreme Court Argument Order Gives Unlucky Lawyers Less Time

• this term’s proceedings in the first case on a two-case day were routinely longer than those in the second.
• The format the justices adopted after the pandemic stretched arguments to new lengths, but this term’s proceedings in the first case on a two-case day were routinely longer than those in the second.
• When the first case of the day ran over the allotted time for arguments, it did so by nearly 34 minutes on average, according to a Bloomberg Law analysis. That’s compared to roughly 11 minutes, which is how much extra time the second case stretched for over the allotted time on average.

NLJ has Who Was at the Lectern This Supreme Court Term? -- If it weren’t for the four female justices, oral arguments would often have the feel of a male echo chamber, with 23 of the term’s 61 argued cases not featuring a single female attorney. That’s compared to just five cases that did not feature a male advocate.

More Arguments!

Today's DJ has State Supreme Court defies expectations with increase in oral arguments -- The court's published opinions - under Chief Justice Patricia Guerrero - may continue its slow trend upward.

With a flurry of oral arguments scheduled this month, the state Supreme Court will easily avoid what some legal observers had predicted would be a term with the lowest number of published opinions in recent memory.

Instead, the court - under Chief Justice Patricia Guerrero, an appointee of Gov. Gavin Newsom who joined the court in 2022 and was elevated to the top job the following year - may continue its slow trend upward in the number of opinions.

Legal experts have debated the significance of the decline in opinions since Chief Justice Ronald M. George led the court, as the George court issued fewer opinions than state Supreme Courts did last century. The recent decline accelerated from a decade ago, and the court released its lowest number of opinions - 49 - during the 2021-22 term.

Today's DJ also has PJ Gilbert's column, I didn't do it -- Judicial opinions should be clear, comprehensible, and authentic. Otherwise, opinions should take a TV drug commercial approach and list their own set of side effect warnings.

Appellate Lawyers On The Move:

• James Sigel, CAAL member and former clerk for Justice Sotomayor, moves from MoFo to Davis Wright Tremaine. (Recorder article here.)
• Justin Sarno, CAAL member, moves from DLA to Horvitz & Levy.

The NLJ has IM-ing the Clerk’s Office? 10th Circuit’s Online Chat Aims to Aid Access to Justice -- It’s a simple tool that can save time and energy for multitasking attorneys and help pro se litigants who might especially struggle with learning complex procedural rules, said Clerk of Court Chris Wolpert.

CLA's Committee on Appellate Courts is seeking new members! Applications are due by May 31, and can be submitted via this online portal. 

Incivility "immortalized" in Cal.App.5th

For the latest in civility, see Bed's published opinion here:

Civility is not about etiquette. This is not a matter of bad manners. Incivility slows things down, it costs people money – money they were counting on their lawyers to help them save. And it contravenes the Legislature’s directive that “all parties shall cooperate in bringing the action to trial[.]” (Code Civ. Proc., § 583.130.)

Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports.

[Law360 has Calif. Appeals Court Calls Firm's Conduct 'Woefully Uncivil']

For more civility lessons, see also this unpub from 2/2 here at fn. 8: "[Appellant] also likens the trial court to a Holocaust denier. This type of gross and baseless hyperbole is unfounded, disrespectful, offensive, and unethical." 

Also, the Wall St. Journal has How an Ordinary Guy Took a $3,000 Case to the Supreme Court

• In 1893, the court ruled that for tax purposes, tomatoes actually are vegetables. In 1924’s “U.S. vs. 95 Barrels (More or Less) of Alleged Apple Cider Vinegar,” the nine justices took up whether there was a meaningful difference between vinegars made from dried apples instead of fresh. Turns out there was.
• Despite its seemingly low stakes, Harrow’s case has real implications for ordinary people’s access to the courts, say his advocates and those filing briefs in support.

Appellate waiver case / book review

The MetNews has C.A. Permits Appeal Despite Clause in Arbitration Agreement Barring It, about this unpub'd decision here. The court finds that an agreement providing “The parties further agree that there will be no appeal from the court’s ruling under section 1285 except for any ruling vacating the arbitration award” did not waive the right to appeal. "A person’s agreement not to take an action does not support an inference that the person was aware that he had a right to take that action." 

The April 2024 issue of Los Angeles Lawyer has Marc Alexander's book review of Citizen Justice, about Justice William O. Douglas, written by Ninth Circuit Judge Margaret McKeown.

Bloomberg Law has Biden Top Supreme Court Lawyer Laments Shadow Docket Effect

SCOTUS players

Bloomberg Law has Jones Day Leads in Supreme Court Arguments With New Faces, noting:

• Five Jones Day attorneys took to the US Supreme Court lectern this term, making the DC-based giant the firm with the most arguments.
• Attorneys for Gibson Dunn, Hogan Lovells, and Williams & Connolly argued four cases for their firms.
• Gibson Dunn sent three newcomers to the lectern, including partner Theane Evangelis, associate D. Nick Harper, and Eugene Scalia, the son of the late Justice Antonin Scalia. Hogan Lovells’ Jessica Ellsworth made her first and second arguments this term, including in the challenge to the abortion drug mifepristone.
• Of the 152 total arguments, more than half were argued by attorneys making at least their fifth appearance. A quarter were first-timers.

Speaking of SCOTUS, the headliner at the Pepperdine University Caruso School of Law Dinner (Sept. 21 @ the Fairmont Century Plaza) will be Justice Amy Coney Barrett.  

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Appellate law elsewhere of note

The NLJ has NY's Top Court Says It Won't Accept Amicus Briefs That Create Conflicts

New York’s highest court is adopting a rule change that could reduce its reliance on substitute jurists. In the wake of the New York Court of Appeals using three Appellate Division judges for arguably two of its biggest appeals since December, the court will limit its acceptance of amicus briefs going forward, according to a notice to the bar on April 23.

Law360 has Court Clerk Error Is No Excuse For A Missed Deadline (discussing two cases from Virginia).

 

2d DCA pro tem update

 

The following judges are currently sitting on assignment in the 2d District:

• Judge Corey G. Lee of the San Bernardino Superior Court will be sitting Pro Tem in Division Five until June 15, 2024     
• Judge Tony Raphael of the San Bernardino County Superior Court will be sitting Pro Tem in Division Seven until June 14, 2024  

4th Dist. RA program

The Appellate Law Section of the Orange County Bar Association presents an in-person MCLE program on Thursday, May 2, 2024, 12:30 to 1:30, titled Ask Us (Almost) Anything: A Discussion with Judicial Attorneys from Southern California State Appellate Courts, featuring four research attorneys.