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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

Law School Rankings Under Scrutiny Again

Posted on August 27, 2008
When I last wrote about law school rankings (in the summer of 2007), it was in response to a post at the Law School Innovation blog rounding up some reporting and commentary on law school rankings, including an article in National Law Journal about a potential boycott of magazine rankings surveys used by the magazines [...

An Important Discovery Ruling Overcomes a Deferential Standard of Review

Posted on August 27, 2008
For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile...

A Running Feud Between Courts?

Posted on August 22, 2008
Well, maybe “running feud” is a tad strong, but Legal Pad notes a history of bad blood between a California superior court judge and his district court of appeal. Hat tip: Cal Biz Lit.

Legal Writing Prof Blog?s Favorites

Posted on August 22, 2008
Check out Legal Writing Prof Blog’s list of favorite legal writing blogs and resources. Hat tip: the (new) legal writer.

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Help Out Law Blogger Kimberly Kralowec

Posted on August 22, 2008
Looks like this is the week for appellate bloggers to embark on projects and solicit help from their readers. Unbeknownst to me until now, the day before I announced my intent to publish a series of posts on the reluctance of lawyers and clients to engage appellate counsel, Kimberly Kralowec�(pictured left) at The [...

?A Sadistic Urge to Torment Lawyers?

Posted on August 22, 2008
Image via Wikipedia I always assume that all of the rules of procedure will be strictly construed against me, and that opposing counsel will be allowed to get away with murder. To me, it’s the smart way to practice: dot your I’s and cross your T’s...

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

Posted on August 19, 2008
UPDATE: This post is included in Blawg Review #174 at Texas Appellate Law Blog. Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? Over the years, I’ve heard various reasons advanced for this...

The Results of the Shootout at the Amicus Corral

Posted on August 18, 2008
In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ...

Don?t Give Up On Appellate Jurisdiction

Posted on August 15, 2008
The appellate courts are zealous about protecting their jurisdiction. When in doubt, it is not unusual for a court to ask for briefing on the issue even where both sides have assumed jurisdiction. And so the Supreme Court does in People v. Segura, case no...

It?s Kennedy?s Court

Posted on August 11, 2008
So says UC Irvine School of Law Dean Erwin Chemerinsky about the U. S. Supreme Court in his front-page piece in this month’s California Bar Journal. Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, [...

Pepperdine?s Justice Alito Event ? Video Available

Posted on August 08, 2008
Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event). �Here’s the description accompanying the video: The Honorable Samuel A. Alito, Jr...

A Judgment that Nobody Noticed Sinks an Appeal

Posted on August 07, 2008
How can the parties and the court all miss the fact that the court entered a judgment?� Well, when the document that operates as such isn’t labeled “judgment,” I guess one can occasionally slip by . . . to the appellant’s great misfortune in�Melbostad v...

The Value of a Good Reply Brief

Posted on August 06, 2008
As much as I keep up with appellate issues, some things catch me by surprise. According to this article: “There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them...

Flexibility on Appellate Jurisdiction

Posted on August 05, 2008
“Jurisdiction” and “flexibility” are terms that don’t really go together . . . most of the time. �But I’ve taken note before of the willingness of California appellate courts to “save” appeals through various devices, such as a generous construction of the notice of appeal, or treating an appeal from a non-appealable order as a [...

?E? is for ?Explain?

Posted on August 04, 2008
� If you’re writing according to a typical “IRAC” formulation, Professor�Mark E. Wojcik of John Marshall Law School and the Legal Writing Prof Blog�says you’re leaving an important letter out of that acronym. �Go to SSRN�to download his article from the November 2006 Student Lawyer�(yes, 2006, but he just posted the link yesterday)�on why adding an [...

Time for Another Wordpress Upgrade

Posted on August 01, 2008
I’m behind in upgrading to Wordpress version 2.6, so I’m going to try to do it this weekend. �That means a brief outage during the upgrade process. �Previous upgrades have gone smoothly, and with any luck, the blog should not be down more than about 15 minutes, probably late Friday or Saturday night.

Report from the Pepperdine Conference on Judicial Opinion Writing

Posted on August 01, 2008
Pepperdine hosted a conference Wednesday on the craft of judicial opinion writing, with a panel that included Justice Samuel Alito. LA appellate attorney Ben Shatz attended and today posts his write-up of the event at the Los Angeles County Bar Association Blog, En Banc...

My New Digs . . . and New Everything Else

Posted on August 01, 2008
Some of you may have noticed some changes in sidebar information that clued you in to my recent relocation and change of practice name. Most of you probably didn’t, so here’s everything you need to know (more than you need, actually) in one post...

Judge Bybee Pokes Fun (Update: He?s Not Alone)

Posted on August 01, 2008
When the Ninth Circuit Court of Appeals judges convened for their conference last year, they did so amid a lot of buzz about whether the circuit should be split up. If there is a similar cloud surrounding this year’s conference, I haven’t caught on to it...

Why Did the Supreme Court Punt on a Jurisdictional Issue?

Posted on August 01, 2008
Regular readers know I am a jurisdiction geek, and today I get to sink my teeth into a jurisdictional oddity. Well, not a jurisdictional oddity so much as the odd behavior of the Supreme Court with respect to a jurisdictional question. I’ll get to the Supreme Court in a minute...

Does Legal Writing Get Short Shrift at Law Schools?

Posted on July 31, 2008
Ray Ward at the (new) legal writer wonders out loud about the practice of using fellows (one-year contract instructors) to teach legal writing. �Make sure you read the comments, which come from prominent legal writing bloggers�Wayne Schiess�and Alan Childress of�The Legal Profession Blog, and perhaps more by the time you get there.

The Cover of Rolling Stone CITATIONS

Posted on July 31, 2008
You youngsters out there may not get the Rolling Stone reference (a big, big, song in the early 70s), but it is an irresistable one for me to make in announcing my newest article, because the article is featured on the cover of the August 2008 CITATIONS (along with my picture, to the great misfortune [...

How ?Intense? is Your Appellate Panel?

Posted on July 30, 2008
It might make a difference in how the members of the panel view your brief! In this highly unusual study, the authors looked for correlations between the use of “intensifiers” ? words like “clearly,” “obviously,” “blatant” and “very” ? in appellate briefs and the outcome on appeal...

Lawyers Must Eat ? Getting Your Attorney Fees on Appeal

Posted on July 29, 2008
You’d be hard pressed to find a better overview of federal appellate review of attorney fee awards than Moreno v. City of Sacramento, case no. 06-15021 (9th Cir. .July 28, 2008). Judge Kozinski’s analysis begins with the truism “lawyers must eat,” then goes on to analyze the district court’s attorney fee award under 42 [...

A Little Bit Funny, Mostly Not

Posted on July 25, 2008
When I found this Youtube video, I was hoping to send everyone off on their weekend with a good laugh. Then I watched it.� Don’t get it.� At all.� Which is why I’m not embedding it here, and you’ll have to follow the link. If you think you get it, leave [...

Appealing a Remand Order, and Intra-Circuit Stare Decisis

Posted on July 25, 2008
When I was in BigLaw, removing a case to federal court seemed a virtually automatic response to any suit that we believed implicated federal jurisdiction. If the federal district court refuses to exercise supplemental jurisdiction and remands the case back to the state court, how do you contest that ruling? That was the question facing [...

CARFAX Should Publicize This One

Posted on July 25, 2008
Image via Wikipedia CARFAX, a company that provides vehicle histories for automobiles (largely to used car buyers before the purchase) already runs some pretty clever ads on TV, so they don’t need any advice from me. But they might want to publicize this: Does the Motor Vehicle Information and Cost Savings Act (?the Odometer Act? or [...

A Supreme Editor is Needed

Posted on July 24, 2008
Mister Thorne of the Set in Style blog likes to poke gentle fun at lawyers’ writing mistakes in order to remind us that we need editors as much as anyone, even though — in fact, because — we craft words for living. In this post, he links to a legal writing website that dissects [...

What Constitutes Extrinsic Evidence that Changes the Standard of Review?

Posted on July 24, 2008
Well-established, seemingly clear principles like contract interpretation being a matter of law (absent ambiguity requiring extrinsic evidence to resolve), and de novo review of legal questions aren’t always so clear in practice. California National Bank v...

This Took Me By Surprise

Posted on July 23, 2008
When an appeal from a probate order starts by telling you that the intestate’s daughter, girlfriend of 12 years, and estranged wife all claimed portions of the estate, I’m betting most people will suspect that the opinion will be about a dispute between the girlfriend and the wife...

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