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Appellate Law

The California Blog of Appeal

Substantive legal developments in the California Courts of Appeal, California Supreme Court, and the Ninth Circuit Court of Appeals; Procedural law relating to the prosecution of appeals, writ petitions, and post-trial motions in state and federal courts in California; and practical skills essential to appellate practice.
By Greg May

Post Frequency: 1.4/day

Last Entry: February 11, 2020 at 16:16:49

Judge Kozinski?s ?Dirty? Pictures May Not Be So Dirty

Posted on January 02, 2009
Remember the big “to do” about Judge Kozinski having posted material from an obscenity trial on his website? My prior coverage concentrated mainly on how this could affect his qualification to preside over the trial, and noted the interesting fact that Kozinski, an appellate judge, was presiding over a trial at all...

I?m on Blogging Hiatus until the New Year

Posted on December 16, 2008
I’ve had a hard time getting back up to speed since returning from being out sick. Fighting a lingering cold, catching up on old cases and jumping into new ones . . . being so busy and with Christmas approaching, this seems like a good time to take a blogging break...

Holiday Closure of Supreme Court?s Los Angeles Office

Posted on December 12, 2008
Be very, very careful with California Supreme Court filings over the holidays. The Los Angeles office of the Supreme Court be closed some of that time, requiring you to file in San Francisco. To get the closure dates, download the PDF of the announcement...

A Note to my Feed Subscribers

Posted on December 01, 2008
A glitch over the weekend resulted in a post to this blog that didn’t belong here. You’ll know it when you see it. Rather than trying to figure out what it has to do with appeals, rest assured that it doesn’t . . . it didn’t even belong on the blog! Sorry for any resulting [...

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We’ve Moved! Go to Deuce

Posted on November 28, 2008
We’ve Moved! Go to Deuce and McLovin’s new blog: The Skepticrats

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

Posted on November 28, 2008
No, I haven’t “lost it” during my absence. The title of this post is a parody of a bad issue statement ? something we all see way too often. As for an answer to the question itself, this looks like a pretty darn good place to start.

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

Posted on November 26, 2008
Just a short post to wish everyone a happy Thanksgiving Day. My work schedule remains light as I continue to struggle through whatever crud I have. Honestly, I thought I’d be over this by now, but the duration of this energy-sapping malady is going on four weeks! Thanksgiving Day reminds me, however, that I should grateful [...

Where are all the new posts?

Posted on November 13, 2008
Regular readers who are wondering where I’ve gone (and are, hopefully, disappointed at my lack of posting the last few weeks) should know that the blog lives! I, on the other hand, have barely felt among the living the last few weeks, dogged by some kind of head/sinus/allergy/flu/who-knows-what-it-is that has really wiped me out...

The Mindset of Appellate Judges

Posted on November 03, 2008
Here is a well-stated look into the minds of appellate judges, from a 2-year old column by Howard Bashman: One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts...

Does it Matter Who?s On Your Panel?

Posted on October 31, 2008
Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case...

Ever Felt Like Using an Expletive at Oral Argument?

Posted on October 31, 2008
I imagine swear words are material to cases quite often, especially in defamation or employment cases (the latter being the first time I had to put one in a brief). But I suspect they are rarely the focus that they will be in oral argument in this case before SCOTUS...

Got a stay? Challenge the judge anyway!

Posted on October 30, 2008
Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification...

There?s No ?E? Before ?Mails? When it Comes to Triggering the Deadline to Appeal

Posted on October 28, 2008
Modern communication and the California Rules of Court collide in Citizens for Civic Accountability v. Town of Danville, case no. A121899 (1st Dist. Oct. 27, 2008), and the winner is . . . the rules! At issue: whether the e-mailing of a notice that a judgment has been filed, with a link to access a copy [...

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

Posted on October 25, 2008
Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer [...

New Law Blog: The California Constitution

Posted on October 22, 2008
Well, a young blog, at least, if not brand spanking new. The California Constitution was launched in August by Howard Rice partner Steve Mayer. Good luck! Hat tip: California Punitive Damages.

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

Posted on October 21, 2008
(NOTE: This post is the fourth in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal...

What does ?abuse of discretion? mean in your case?

Posted on October 16, 2008
Sometimes, it seems that defining an “abuse of discretion” is like nailing jello to the wall (maybe worse, since the latter is difficult, but not impossible). There are many nuances to the standard, which can depend on the statute being applied, the basis for the abuse of discretion, and the particular procedural posture of the case...

Procedural Exits off the Appellate Freeway

Posted on October 13, 2008
A year or so ago, I heard a California appellate court justice advise that the court of appeal examines every case for issues that will allow the court to dispose of the case without reaching the merits. He explained the process with a metaphor, which I’ll try to convey in this post (paraphrasing throughout)...

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 3: ?No one knows the case better than I do.?

Posted on October 07, 2008
(NOTE: This post is the third in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal...

Judicial Opinion Shortcuts: Skipping the Substance of the Argument

Posted on October 02, 2008
Sometimes, a judicial opinion leaves you wondering what a party contended on appeal. That’s always a little frustrating. OK, not always, but when it involves a pet interest (in my case, jurisdiction), it leaves one wanting more. Such is the case with White v...

Don?t Forget, Appellants: The Record is Your Burden, Too

Posted on October 01, 2008
Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed [...

A Great Resource: Social Science Research Network

Posted on October 01, 2008
I’ve occasionally downloaded scholarly papers from the Social Science Research Network, usually after seeing them mentioned at the Legal Writing Prof Blog. But until that blog’s recent post about how to stay up-to-date with the latest articles on legal writing, which provides links for subscribing to legal writing articles, I hadn’t really poked around SSRN [...

A Double Standard . . . of Review

Posted on October 01, 2008
An appropriate follow-up to last week’s post that discussed the pitfalls of the standard of review is United States v. Vega, case no. 07-50245 (9th Cir. Sept. 24, 2008). It illustrates a double standard that one wouldn’t ordinarily expect...

A Lesson in Collateral Order Doctrine Jurisdiction

Posted on September 30, 2008
Some lawyers not well-versed in appellate jurisdiction may find themselves fighting against one of two extremes when it comes to interlocutory decisions: the impulse to appeal everything (appealable or not), or failing to evaluate interlocutory orders for possible exceptions to the “final judgment rule,” figuring “why bother” until a final judgment is entered...

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 2: ?It?s Just Litigation.?

Posted on September 23, 2008
(NOTE: This post is the second in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) In my first post in this series, I broke down lawyers’ reasons for not engaging appellate counsel into two broad categories: those related to ability and those related to economics...

Proposed Meeting of Law Bloggers at the California State Bar Convention

Posted on September 23, 2008
Victoria Pynchon of the Settle It Now Negotiation Blog asked that I pass along her suggestion for a law blogger meeting at the California State Bar Convention this week, and I do so gladly. From Victoria: Please let me know if you’re interested in a legal bloggers meeting at the state bar convention in monterey this [...

Gee, We?re Smart!

Posted on September 18, 2008
At his Legal-Writing Blog, Wayne Schiess shares some observations from one of his students, who aspires to be an appellate lawyer and worked in the appellate practice department of a law firm. See the professor’s post for all the details, but among the student’s observations: I realized why appellate lawyers at law firms are stereotypically labeled as [...

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 1: Categories

Posted on September 17, 2008
(NOTE: This post is the first in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Well, it’s been four weeks since I promised a series of posts on this topic. You were probably about to give up on me...

Peremptory Challenge to Judge After Remand Has Its Limits

Posted on September 15, 2008
Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case. Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), [...

2008 California Court Statistics Report

Posted on September 04, 2008
Now available for PDF Download: 2008 Court Statistics Report: Statewide Caseload Trends, 1997-1998 through 2006-2007. Always interesting to peruse. The first thing to jump out at me from this year’s report (in my thus far rather hasty review): the median time statewide for civil appeals (from time of filing the notice of appeal to the time [...

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