Articles

10.03.18

Slumming It With Facts on Appeal, Part 2—Going to the 909

"As we have seen, sometimes appellate courts do get their hands dirty with facts and will entertain a new fact for the first time on appeal. Judicial notice on appeal is one prosaic example. A more intriguing example is the use of Code of Civil Procedure Section 909."Read the ...


09.04.18

Did You Notice That This Fact Was Not in the Record on Appeal?

"Did you notice that this fact was not in the record on appeal? Lawyering requires two key ingredients, facts and law. And the world of litigation starkly delineates the realms where each predominates. The shorthand phrasing of this general rule is that trials focus on the facts whereas ...


08.07.18

Poco Loco Rules

"In last year's hit movie 'Coco,' a young guitar-hero journeys to the land of the dead where he finds things (and performs a ditty titled) un poco loco (a little crazy). While not quite a trip to Hades, litigators sometimes find themselves handling appeals in unfamiliar courts, and ...


05.01.18

Mooting Mootness

"With over 2,000 judges, California probably has the largest court system in the world. Such a massive system—directly employing about 19,000 people in over 500 buildings—is an expensive operation. To ensure the efficient use of over $4 billion in public funds, it is essential that ...


04.03.18

A Class-ic Exception

"Trial court proceedings are like a black box into which each side throws facts, evidence and law, and what pops out is a judgment—a formal, enforceable decree declaring a winner. Human nature being what it is, the loser probably wants a second chance to fight again. And that loser, no ...


03.06.18

If You’re a Loser, Act Like It

"Last month’s column explored appellate standing with a focus on how appeals are limited to aggrieved parties. Appropriately enough, it was titled “Appeals Are for Losers.” But you know who the real losers are? Parties who attempt to appeal but muck it up somehow and have ...


02.06.18

Exceptionally Appealing: Appeals Are for Losers

"Appeals are for losers. This should sound obvious. After all, what would a winning party be unhappy about? But litigation is complicated, and a win rarely emerges after a completely one-sided process where the winner prevails on every single point along the way and walks off with a judgment ...


01.02.18

When 60 Days Is Too Late

"Most lawyers know that filing a timely notice of appeal is crucial because an untimely appeal is a dead appeal. And most lawyers have the notion in the back of their mind that they have 60 days to appeal from a California superior court judgment. The good lawyer knows that ...


05.15.17

The California Circuit?

Like a bad penny, the idea of splitting the 9th Circuit keeps turning up. Ideas for splitting the circuit first arose in the 1960s, and the issue has waxed and waned with political interest over the past half century. One of the most vexing puzzles is precisely how to split the existing 9th ...


05.10.17

Fortunately, There Were Witnesses

Something bad happened. Fortunately, there were witnesses. Unfortunately, the witness testimony is not just inconsistent, but irreconcilably contradictory. Sounds like every case that makes it to trial, right? But readers of this column will also recognize this as the situation explored by Akira ...