California Appellate Law Blog

California Appellate Law Blog

News and Insights about Appellate Law

Legal Writing: Speak Freely (But Plainly, Please!)

Posted in Appellate Practice, Appellate Procedure, On Being a Lawyer

“This petition . . . ask[s] this Court to unmistakably clarify, to the whole patent community, that its Mayo/Biosig/Alice decisions (“3 decisions”) ended the claim construction anomaly hampering especially ET CIs – but meet, by their ‘ET proof’ refined claim construction, all ET CIs needs.”

So begins the petition for review filed by a respected law firm in Sigram Schindler Beteiligungsgesellschaft MBH v. Lee.  Where it ends is not yet clear, but in denying the petition the U.S. Supreme Court issued an order to show cause as to why the attorney drafting the petition should not be sanctioned for submitting the often incomprehensible brief.  Apparently the client drafted much of the petition, and that may well explain how it reads–or should I say, looks?

The petition includes such illuminating prose as “[p]rolongating this claim construction anomaly in the NPS – i.e. its current schisms encouraging sloppiness in SPL precedents – badly hampers the innovativity of the US economy in all areas of ET, just as it stopped the petitioner’s investments to follow-up technologies of the ‘453 technology (see Section IV).”

Is this code?  If it is, the U.S. Supreme Court justices and clerks couldn’t break it.  In reading the Schindler petition I was frequently reminded of Circuit Judge Alex Kozinski’s The Wrong Stuff, which among other things, recited this passage from an appellate brief:

“LBE’s complaint more specifically alleges that NRB failed to make an appropriate determination of RPT and TIP conformity to SIP.”  To which Kozinski commented, “Even if there was a winning argument buried in the midst of that gobbledygook, it was DOA.”

There must be a backstory explaining how such an awful petition gets filed, and it may well be the result of a client control train wreck.  But in general, why do lawyers so often come up short as wordsmiths?  Shortage of time?  (“If I had more time I would have written a shorter letter?”)  Lack of basic writing skills?  (In a profession that depends on writing and requires 7 years of college and professional education?)  Difficult clients?  (Sometimes, but who writes the briefs?)  Dreaded legalese?  (Is there a cure yet?)  Whatever the reasons, since legal writing is coin of the realm for attorneys, what is said about the clients and the cases when lawyers submit briefs that are difficult to decipher?  Judge Kozinski had this suggestion:


If we live and die by our briefs (and we do), then perhaps as lawyers, we need to find a way to do better.  And in some instances, much better.  If a court can’t quickly tell what we want, where are we?  Judge Kozinski had plenty of ideas about that too.

Changing of the Guard at State’s High Court

Posted in Appellate Practice, On Being a Lawyer

The California Supreme Court is undergoing a few changes. Justice Joyce L. Kennard has retired and has not yet been replaced. And Justice Marvin R. Baxter is leaving at the end of the year. Much has already been written about Governor Brown’s opportunity to continue remaking the Court in his (latter-day) image. Having appointed Justice Goodwin Liu, speculation is rampant about just how liberal Brown’s “new” court will become, and which demographic each new justice will represent. This post has nothing to say on that.

Instead, this post takes a moment to reflect on the loss to the public of these two devoted jurists and fine people. The necessary distance that judges must maintain from the public they serve and the lawyers appearing before them, often makes it difficult to gauge judge as person. And many advocates, driven as they must be by their client’s cause, may not care about such things. The Court will shape the law, and the individual justices will shape the Court’s decisions. Fair enough. But having been fortunate to spend a little time with Justice Kennard and Justice Baxter outside the realm of judge and lawyer, I have gained some small insights into their personalities. And so I write to say a few words about what will be lost to the legal community, rather than to speculate about what the new Court will look like.  

Justice Kennard’s fierce independence and keen interest in oral argument are well known. If one knows her only by the command presence she so easily manifests, it might be possible to conclude there is little warmth–but that conclusion would be dead wrong. I have been fortunate to spend some time with Justice Kennard outside the realm of advocate and Court. Over the last few years, Justice Kennard generously shared her time with some of my U.C. Hastings appellate clinical program students. In chambers, Justice Kennard made us all feel like long-time friends: insisting that we have cookies and refreshments; regaling us with her passion for the majesty of the law and the fidelity the law demands; reminding us–as tender aunt, not scolding justice–of the serious responsibility we have as advocates to strive for perfection in all things; and endearing us with her willingness to share thoughts about, among other things, her love for gardening. Each of our meetings ended long after the appointed time, and only out of our worry that we might wear out our welcome, not because Justice Kennard tired of our visits.

I met Justice Baxter at a reception at U.C. Hastings. Up until that moment, the prism through which I viewed Justice Baxter was that of all advocates–my reading of his decisions and occasional presence at Court arguments. But at the reception, and at a chance meeting in a nearby eatery a few years later, I was impressed by how soft-spoken and gentle Justice Baxter is. Free of (most) of the constraints that we don upon entering the Court, we shared long conversations about public school roots, public universities, pro bono programs, the Central Valley, and sports cars. And each time I walked away, I felt as if I had met with a friend I had known for many years.

Because we are always fighting a client’s battles, we see jurists as those who can make or break our case and have little reason to think of them in any other light. Because we are ethically bound to remain distant, we have little opportunity to meet with those deciding the cases. Others will write about the rich contributions Justices Kennard and Baxter have made to life and law in California. Others are already writing about the new Court that is in the making. I have written here to say farewell not just to two fine jurists, but also two nice people.


Contractual Attorney Fee Provisions: Words Matter

Posted in Appellate Practice, Civil Procedure, Recent Decisions

This blog entry provides an analytical metric for double-checking assumptions about application of Civil Code section 1717 and contractual attorney fee awards.  As the case law demonstrates, it is easy to misapprehend how and when the statute actually operates. 

Section 1717(a) states that “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the prevailing party on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney fees in addition to other costs.”  Section 1717(b)(1) states that “[T]he party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract.”  And section 1717(b)(2) states that “Where an action has been voluntarily dismissed or dismissed pursuant to a settlement of the case, there shall be no prevailing party for purposes of this section.”

It sounds straight forward and if section 1717 applied to every single suit involving a contractual attorney fee provision, it would be.  But of course, it’s not that simple.  A two-step analysis of attorney fee provisions in contracts may be helpful in determining the applicability and reach of section 1717.

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