Legal News and Appellate Tips

Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this?

Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random violence to the rules of appellate procedure?

Jeff has a different view. Here is the Jeff Lewis hypothesis for the utility of complicated appellate rules: relaxing the machinery of arcana is how appellate judges show sympathy to deserving litigants without changing the actual outcome.

But regardless, the no-harm-no-foul excuse only applies to one of the cases. The other case we discuss ended in reversal. How did the court explain how it could possibly reverse a judgment based on an untimely appeal? Simple: It ignored the issue.

Are these cases just exceptions to the normal operation of the rule of law? Of course. But remember: because the sovereign decides the Exception and when, the sovereign is not, in the end, subject to the Rule of Law except, in the final analysis, by the sovereign’s consent. The Rule of Law, then, becomes merely a slogan.

“I know the sting of a loss as well as anyone,” says Justice Laurie Zelon, but if the course of the case is really not going to change, writ relief is highly unlikely.

If the issue is going to be dispositive of the case so that the case would have to be retried, however, that is a good candidate for a writ. “The court does understand that the last thing you want to have happen is to have a case get fully tried and then retried.”

Even judicial clerks face harassment and discrimination by their judge-employers. Aliza Shatzman knows this first hand, and it’s why she started the Legal Accountability Project. But how can we achieve accountability in such a strange place as a court?

Judicial jobs are not like normal jobs. Former Supreme Court clerks command signing bonuses in the stratosphere of $400,000 or more. Similarly, over 80 former staffers in Senate Maj. Leader Chuck Schumer’s office are now working in Big Tech. The Hill is not exactly where you go looking for top coders.

The value of working for a judge—like the value in working with Harvey Weinstein—is the value of the connections. So some people take the attitude that these jobs are a privilege, and those who get them should suck it up and not complain.

Do normal rules apply to these privileged workplaces—like Hollywood, or courts?

Watch the clip here: https://lnkd.in/gBjNjnMm

This is a clip from episode 39 of the California Appellate Law Podcast. Listen to the full episode here: https://lnkd.in/gc6_aH5w

Aliza Shatzman’s dream of a judicial clerkship turned into a nightmare. Just to get the experience, and the career credit, of a judicial clerkship, Shatzman would have put up with her judge calling her “bossy” like his wife, and telling her he preferred the company of her male co-clerk. But then her judge terminated her clerkship early—and gave her a negative reference—because, he said, she made him uncomfortable and she “lacked respect” for him.

Her HR complaint? Shatzman was reminded judges are special people and HR doesn’t have any control over them. What about the misbehaving judges’ colleagues? “Judges are notoriously unwilling to discipline their own.”

As for judicial complaints, they are routinely mishandled, and this mishandling sends the message: suffer in silence—don’t bother sending up further complaints.

In this clip from episode 39 of the California Appellate Law Podcast, Aliza Shatzman shares the origin story of the Legal Accountability Project, and why misbehaving employers need to be held accountable—even when the misbehaving employer is a judge.

After reviewing the science-based trial tips in John P. Blumberg’s Persuasion Science for Trial Lawyers, who would appellate specialist Stefan Love prefer as a trial consultant: a social scientist? Or a TV writer?

A social scientist can tell you, with citations to studies, why this or that strategy is likely to work. But gifted storytellers have captured imaginations, even if they can’t say quite how or why their stories work.

Motivated by his sister’s deafness, Justice James Lambden has long advocated for improved access to our court system. “Without access,” he says, “there is no justice.”

But by the time Arnold Schwarzenegger was governor, California still had no real funding for access. So Justice Lambden urged a budget line item for legal services.

It failed. So he tried again the next year.

It failed again.

Not one to bang his head against a wall, Justice Lambden tried political savvy. He renamed the budget item. It’s name: The Sargent Shriver Access Issue. “We always suspected Maria Shriver probably had a little influence on the governor.”

This time, it passed. “It was the first time California actually funded legal services at that level,” Justice Lambden says, “and it’s been a line item ever since,” responsible for $300 million in access funding.

Some appellate courts issue tentative opinions or focus letters, tipping off counsel to the issues of most interest to the panel. Justice James Lambden says they improve the quality of oral argument.

Think about it: three appellate judges and their research attorneys have been thinking deeply about this one question in the case, and then the panel springs it on counsel without warning.

Instead of just making sport of the outing, a focus letter would help bring counsel into the conversation where they might stand a chance at helping the discussion along—rather than just floundering out there to no one’s benefit.

Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases.

Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning from unpublished cases. Remember that, in California, there is no horizontal stare decisis—which means the reasoning of unpublished cases has exactly as much binding authority on appellate courts as the reasoning of published cases. That is to say, neither published nor unpublished cases are binding on appellate courts.

So don’t fret: Make the best arguments available. If they’re supported by published authority, cite them. If not, don’t. If the arguments are any good, the appellate court will probably adopt them, even if there are no published cases on point. And if the arguments stink, the court will probably reject them, regardless of the citations to sister appellate courts.

And in arbitrations, the arbitrator can look at anything, says Justice Lambden, pointing to the Moncharsh v. Heily Blase decision. You can always find a way to get the reasoning into the case.

“The right answer,” Justice Lambden says, “is where you find it.”

Clemency requests in California must be approved by the Supreme Court, and they are not always approved. Denials of clemency requests, says David Ettinger, are “essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.”

In one particular case back in 2019 concerning Joe Hernandez, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation.” Ettinger notes that then-Gov. Brown fumed, “Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is.”

Gov. Newsom, on the other hand, has a nearly perfect record on his clemency recommendation requests. Why the change?

Of his former colleague, Justice William Bedsworth is quoted as saying: “Justice Thompson has a rare combination of a hard-headed, straight-ahead approach to the law and a big heart that never lets him lose sight of the impact his decisions have on real people.”
“Head-headed?” What did Justice Bedsworth mean by that? Justice Thompson joins Tim Kowal and Jeff Lewis on the California Appellate Law Podcastm to explain.

If you read court cases for a living, you may have some that conclude, “while we are sympathetic to the appellant, this is a problem for the Legislature to resolve.” Which is usually sensible enough. But how does anyone know if the Legislature is reading these cases?

Justice Lambden wondered the same thing. So that’s why when he wrote one such opinion, he forwarded a copy of it to the Speaker of the Assembly. Not as advocacy, mind you, just as an FYI. After all, Justice Lambden explains, it is a function of the courts to educate.

He would even tap on the microphone as a trial court judge to punctuate the record, “hey, Court of Appeal, this is an interesting issue.” You’ll never get a holding on an important issue if no one ever brings it up on appeal!

When you have a legal emergency and you need the Court of Appeal to act right away, you need writ relief. But less than 10% of writ petitions are granted. So how do you get the court’s attention?

Justice David Thompson spent more time on his court’s writ panel over the last decade than anyone, and here is his advice:
You have to demonstrate why your case is writ-worthy in the first paragraph.

The first paragraph.

And the big thing you have to explain is: You are going to get a chance to appeal at the end of the case—why isn’t that enough? Why do you get to jump the line?

Also consider highlighting an interesting legal issue: some justices may be inclined to grant writ review to write on an issue they find interesting (though Justice Thompson does not endorse this school of thought).