California Appellate Law Blog

California Appellate Law Blog

News and Insights about Appellate Law

Category Archives: On Being a Lawyer

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Abracadabra

Posted in Appellate Practice, On Being a Lawyer, Recent Decisions
Misdirection is a form of deception employed by magicians to focus the attention of an audience on one thing in order to distract its attention from another. For example, a magician announces that he is going to make a donkey appear behind a curtain in the middle of the stage. While his beautiful assistant distracts the audience … Continue Reading

Sign Here

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer, Recent Decisions
In 2006 the Legislature amended Code of Civil Procedure section 998 to state that "The written offer shall include . . . a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted."  In 2013, we are still seeing cases in which failure to include the acceptance provision … Continue Reading

Flag on the Play

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer
Archer Norris welcomes Tiffany J. Gates to the appellate practice team and is pleased to present her first blog entry: Flag on the Play Football coach Vince Lombardi famously opined that, “Winning isn’t everything; it’s the only thing.”  This mantra captured the public’s imagination during Lombardi’s reign as coach of the Green Bay Packers in … Continue Reading

Ninth Circuit “Veterans”

Posted in Appellate Practice, Appellate Procedure, On Being a Lawyer
As director and supervising attorney for the Hastings Appellate Project, I work with some terrific young legal talent and this year was no exception.  We invited six Hastings students to join the program this past academic year and handled three Ninth Circuit Appeals pro bono.  In one appeal, 3Ls Mara Boundy and Kelly Matayoshi represented a client facing deportation.  Despite an … Continue Reading

Goin Round in Circles

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer
A recurring theme is that collectively speaking, lawyers often make and evaluate Code of Civil Procedure section 998 offers without a complete understanding of how the statute operates.  That knowledge gap is a little scary.  But before you conclude I am talking down to trial lawyers (and many have heard me admire how trial lawyers react in … Continue Reading

Frivolity

Posted in Appellate Practice, Appellate Procedure, On Being a Lawyer
What’s that old saying that a good lawyer can argue just about anything?  While that may be true, a recent decision by the Sixth District Court of Appeal demonstrates that some arguments are better left not taken.  Sometimes it’s probably better to walk away.  But if taken, a proper record should be designated, or what follows could be quite, well, unpalatable.  For failure to properly perfect … Continue Reading

Be Brief

Posted in On Being a Lawyer
In what appears to be a trend (see prior post, In Search Of), another decision issued last week demonstrates a different kind of missing ingredient in legal briefs — the argument: "The jury awarded Quantum $1 million in damages. Subsequently, LV Associates moved for a new trial and judgment notwithstanding the verdict.  The trial court denied … Continue Reading

In Search Of

Posted in Appellate Practice, Appellate Procedure, On Being a Lawyer
Here’s a reminder about the appellate lawyer’s obligation to tie legal arguments to the record.  In addition, every now and then you run across what appears to be a little judicial jab in an appellate opinion: "Under the circumstances, [Plaintiff] has not met his burden of showing abuse of discretion.  Each appellate brief must ‘support any reference … Continue Reading

Mincing Words

Posted in On Being a Lawyer, Recent Decisions
The United States Supreme Court heard oral argument last week in a case further exploring the contours of the Miranda warning, J.D.B. v. North Carolina.  The issue is whether an interrogator should, or must, consider the suspect’s age in determining whether to give the warning.  The facts involved a 13 year old student corralled in a … Continue Reading

Houston

Posted in Appellate Practice, On Being a Lawyer
Just got back from Houston.  The University of Houston’s Blakely Law Center and the Andrews Kurth law firm host the Moot Court National Championship.  The competition, only three years old, is invitation only.  It features the top 16 moot court programs based on the prior academic year’s final intercollegiate competition rankings.  Hastings has been invited every year.  … Continue Reading

Word Wars

Posted in On Being a Lawyer, Recent Decisions
I’ve been preparing for my 12th consecutive year teaching moot court class at Hastings.  This time, I’m using United States v. Pineda-Moreno.  That’s the Ninth Circuit case holding that the Fourth Amendment is not violated when police officers sneak on to your driveway in the wee hours of the morning and attach a GPS tracking device to … Continue Reading

Stimulus Package?

Posted in Civil Procedure, On Being a Lawyer
The Great Recession has been a trying time, calling for innovative leadership and creative thinking by the California Legislature.  And the Legislature appears to have spent 2010 concerned with your spirits.  The fluid, drinkable kind, that is.  A review of the legislation enacted effective January 1, 2011 includes the following intoxicating mix of beverage measures. The new laws: … Continue Reading

New Year — Tall Orders

Posted in Appellate Practice, On Being a Lawyer
Last Monday I had the privilege of introducing Chief Justice Tani Cantil-Sakauye to the student body of the Deer Valley Law Academy and assembled guests including local dignitaries, politicians, lawyers, community activists and other community members.  For those not aware of this great program, the Academy introduces Antioch’s Deer Valley High School students to the potential of … Continue Reading

Speak Freely

Posted in Civil Procedure, On Being a Lawyer, Recent Decisions
The California Supreme Court heard oral argument today in a case that could result in a chilling effect on attorney-client communications.  The questions presented are 1) Are the private conversations of an attorney and client for the purpose of mediation entitled to confidentiality under Evidence Code sections 1115 through 1128; and, 2) Is an attorney a "participant" in … Continue Reading

Men In Black

Posted in On Being a Lawyer
If you noticed a few extra suits, shades, and ear-piece types around the Civic Center last week, you are not alone.  The federal marshals were out in number for the appearance last Thursday and Friday of not one, but two supreme court justices.  Call it the convergence of the black robes. For those lucky enough to have … Continue Reading

Windmill Tilting?

Posted in Appellate Procedure, On Being a Lawyer
To the uninitiated, oral argument is the denouement of every appeal; the moment when the great appellate orators clash and the appellate court considers how to rule.  But for those that have been around the appellate block more than once or twice, loss of innocence is discovering that the appellate court has a draft opinion already written … Continue Reading

Doing CRAC

Posted in Appellate Procedure, On Being a Lawyer
As an adjunct professor, I tend to remember that old saw about those that can, those that can’t, and which of the two are teachers.  It’s a little scary.  Between avoiding being in the wrong half of that equation, and wondering what the students might ask me next, there is plenty of incentive to try … Continue Reading

Blog Day Afternoon

Posted in On Being a Lawyer
It’s over a hundred today, way too hot, almost flammable.  Speaking of flames, my recent post about what Code of Civil Procedure section 473 subdivision (b) can and cannot do to save clients from lawyer folly, reminded me of the following gems.  These do not necessarily have to do with attorney mistakes but they might provide a little humor.  So if you can’t just drop your briefs … Continue Reading

Word Wars

Posted in On Being a Lawyer, Recent Decisions
Being an appellate lawyer is having the luxury (generally speaking) of time to delve into the slightest nuances in the case law in vigorous detail.  And one of the side benefits of reading so many cases is encounters with colorful dissents.  As lawyers know, there’s nothing like bitterness to give a fine edge to judicial opinions.  Read any of Justice Scalia’s dissents and you … Continue Reading

There’s Rules and There’s Rules

Posted in Civil Procedure, On Being a Lawyer
On August 9th, the Second District reversed a trial court’s dismissal of a personal injury/auto accident case on statute of limitations grounds.  The case has a certain Kafkaesque feel to it. Or perhaps Monopoly’s "do not pass go" is a better description. In Mito v. Temple Recycling Center Corp. 2010 Cal.App. LEXIS 1372, the plaintiffs faxed their complaint to the superior court clerk on … Continue Reading

The M Word

Posted in Civil Procedure, On Being a Lawyer
No, not that word. I am referring to "mistake" as in "mistake, inadvertence, surprise or neglect." On August 5th, the Fifth Appellate District issued an opinion in Henderson v. Pacific Gas & Electric 2010 Cal.App. LEXIS 1368. There, plaintiff’s counsel "waited until the eleventh hour to begin opposing a summary judgment motion he had known about for months . . . … Continue Reading