Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

If you've been looking for a reason to head to San Diego this fall, how about the DRI Appellate Advocacy Seminar?  It will be November 5–6, 2009 in La Jolla  at the Hilton La Jolla Torrey Pines.

The line up includes:

• How to Win More Appeals, a panel discussion featuring three state’ chief justices: Paul J. De Muniz (Oregon), Wallace B. Jefferson (Texas), and Jean Hoefer Toal (South Carolina).
• Persuasion and the Art of Storytelling, Prof. Timothy P. Terrell.
• U.S. Supreme Court Cutting-Edge Issues, Miguel A. Estrada.
• Diversity on Appeal and the Appeal of Diversity, Judge Martha Craig Daughtrey (U.S. 6th Cir.).
• Media Interaction with the Appellate Courts, Tony Mauro.
• The Judges Answer Your Questions, a panel discussion with three appellate judges: Judith L. Haller (California Court of Appeal), James B. Loken (U.S. 8th Cir.), and Kim M. Wardlaw (U.S. 9th Cir.).
• How to Build an Appellate Practice, Thomas C. Goldstein.
• Abraham Lincoln–President and Lawyer, Walter E. Dellinger.
• Moot Courts: Their Various Uses and Benefits, a panel discussion with Prof. Pamela S. Karlan (Stanford Law School) and Timothy K. Lewis.
• The Important Role of Appellate Counsel in Litigation, a panel discussion with two in-house lawyers: Lawrence E. Henke (Trane Residential Systems) and Rita M. McConnell (Medtronic, Inc.).
• Ethical Issues in Appellate Practice, Marc J. Poster.

To download the brochure, click here.

It sounds good to me.  I must go see what I do to get this approved...

(the (new) legal writer asked me to spread the word - happy to oblige!)

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In UMC Physicians v. Nev. Serv. Emp. Union,  the Nevada Supreme Court reversed and remanded a decision denying judicial review brought by a physician’s organization after the Nevada’s Local Government Employee-Management Relations dismissed the organization’s complaint on the basis that it was no the exclusive bargaining unit for the physicians. The Court held that the Board’s requirement that an organization be the exclusive bargaining unit is contrary the statues and codes governing standing before the Board. Under NRS 288.040  and Nevada’s administrative codes, the Board must hear complaints from any “employee organization of any kind having as one of its purposes improvement of the terms and conditions of employment of local government employees,” provided the organization has a legally recognizable interest in the relief sought.  On remand, the  district court must determine whether the complainant meets these criteria.

This decision was issued March 6, 2008.

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In In Defense Of The 9^th Circuit: Why The Federal Appeals Court From The Left Coast Doesn't Deserve Its Bad Rap, Slate.com gives some interesting statistics about the Ninth – including the fact that, despite is 90% reversal rating from the recent Supreme Court term, it was not the most reversed circuit.

Justice Stevens also defended the Ninth while speaking at the Ninth Circuit's judicial conference in Honolulu last week, called the reversal rate “misleading.”  Justice Stevens noted that for several of the reversed cases, other circuits had ruling similarly to the Ninth.

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A page turner of an opinion

I’ve long been a proponent of using fiction writing techniques in legal writing. But even I am bowled over by the gripping opinion created by Judge Farmer of the Fourth District Court of Appeals of the State of Florida in Funny Cide Ventures, LLC v. Miami Herald Publishing Co.   Alas, the rest of the court did not appreciate Farmer’s style, and so the first opinion is same old, same old. But read on. You’ll get to the good stuff.

Thanks to Abstract Appeal for the heads up on this opinion.

Engaging once again in shameless self-promotion, I’ll remind readers that I’ll be teaching some of those fiction writing techniques in the three part CLE for CCBA, Practical Writing for Lawyers on June 2, July 6 and August 3. Click here for more info. However, I can’t promise advice on making your legal writing sound like a Broadway musical.

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At Law.com, Howard Bashman takes issue with advice offered by the Seventh Circuit’s Judge Easterbrook in RLJCS, Inc. v. Professional Benefit Trust Multiple Employer Welfare Benefit Plan & Trust,  The judge had admonished the parties for their attention to a district court decision, noting “decisions of district courts have no authoritative effect.” 

The judge appears to urge litigants to merely incorporate any helpful observations from the district court opinion, rather than debate the merits of the opinion itself. Bashman notes the judge himself has cited several treatises, authority arguably would be even less “authoritative” than district court opinions.

My own suspicion is Bashman and Easterbrook actually agree that citation to a district court opinion, or even a treatise, is wholly appropriate when more authoritative precedent does not exist. I think we can all agree with that.

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In U.S. v. Bibler,  the Ninth Circuit held that the defendant’s waiver of appellate rights as part of her plea agreement deprived the court of jurisdiction. Even though error in the sentence seems apparent, as the district court held, contrary to U.S. v. Cardenas-Juarez, 469 F.3d 1331 (9th Cir. 2006), that the safety valve exception to statutory minimums created by of 18 U.S.C. § 3553(f) did not apply post Booker, such error did not render the sentence illegal. The Court dismissed the appeal.

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The importance of preserving error was illustrated once again today in U.S. v. Sine. The Ninth Circuit affirmed the conviction of a Utah lawyer charged with fraud arising from his participating in a pyramid investment scheme. When the scheme began to unravel, Sine had attempted to present the appearance that he was himself an unwitting victim of the chicanery by filing lawsuits in attempts to recover the funds of victims. However, that activity led to his thorough castigation by a federal district court judge in Ohio. References to that dressing down, which included the Ohio judge’s factual findings that Sine had not acted as a bona fide trustee and had failed in his fiduciary obligations, were made repeatedly during Sine’s prosecution – all without objection by the defense. The defense did successfully object to the admission of the order itself, but failed to make any objection when numerous witnesses were questioned regarding the findings and conclusions of the Ohio judge.

The Ninth Circuit acknowledged that the prosecution’s tactics in using the Ohio judge’s factual findings had the potential to unfairly prejudice Sine. The prosecution was not entitled to “shortcut” its own burden to prove Sine’s culpability through evidence that another had reached that conclusion. The Court even flatly agreed that the admission of the evidence violated FRE 403 and 802. However, because the error was not preserved, the Court employed the plain error analysis. Finding that evidence of Sine’s guilt was overwhelming, the Court affirmed.

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The Assembly Judicial Panel voted unanimously today in favor of SJR 9, which seeks a constitutional amendment to create an intermediate appellate court in Nevada.  The Nevada Appeal reports on the vote here.

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The Las Vegas Sun reports that the attorneys from the Special Public Defender's Office have filed motions on three cases decided by the Court en banc, with former Supreme Court Justice Becker a member of the panel. The motions assert that Becker should have recused herself as she was negotiating with the Clark County District Attorney’s Office for what the Sun calls “a high paying, high ranking job” at the time the opinions were issued.   

The opinions in Johnson v. State, Thomas v. State, and Summers v. State were issued on December 28, 2006, after Becker had failed to win reelection to the Supreme Court. Each of the cases raised an issue of whether the defendant’s right to confront witnesses had been violated by the use of hearsay in the sentencing phase of the trial. The  convictions were affirmed, with Justice Becker siding with the majority in each of the 4-3 decisions. However, the minority opinion in each was a concurrence in the result, with the minority justices expressing the view that in future cases, objections to the use of hearsay in the sentencing portion of a death penalty case should be permitted.

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John Fund presented an op-ed in the Wall Street Journal on Saturday, speculating that voter acceptance of increased partisan politics in judicial elections can be explained by judicial decisions that “leave the law stranded.” Fund reports that candidates for state supreme court seats spent more than $40 million in their campaigns in 2006.  In further support of his position,  Fund referenced the famed quote from Chief Justice Robert’s confirmation hearing statement, in which the then-candidate stated “Judges are like umpires. Umpires don't make the rules, they apply them."

The United States of America, as it has from its founding, employs a “common law” system. Black’s Law Dictionary defines “common law as “the body of law derived from judicial decisions, rather than from statutes or constitutions.”  Of course, we have statutory law, as well, but for those of us in civil practice, common law predominates.

Judicial history is a topic rarely, if ever, taught in our primary and secondary schools. As a result, the lack of awareness of the common law system among the general public, and, apparently, journalists,  is not surprising. The average man on the street would likely be stunned to learn that the vast body of civil law in this country comes not from statutes passed by state or federal legislatures, but from centuries of legal traditions brought to these shores from our British forebears. Those legal concepts have passed down through the generations, with each of those generations tweaking and adapting those principles, and developing new principles, as the needs of the populace evolved.

Justice Robert’s apparent unfamiliarity with the concept of common law is less easily explained, as he surely must have been introduced to it at least while he was a law student. In nearly all law schools, the required curriculum is dominated by examination of common law contract, tort, criminal, and property law principles. Any lawyer who expresses surprise at the notion of judges “making law,” rather than merely applying it, must have failed to pay attention in those early years of instruction.  However, in fairness to Justice Roberts, he did acknowledge the concept of precedent in his confirmation hearing statement, even if he apparently didn’t realize that judges have traditionally done more than simply interpret statutory law.

Nevertheless, this longstanding tradition of judge-made law belies the claim that recent sharp increases in campaign spending may be explained by reaction to judge-made law. A far more likely explanation is that well-heeled constituencies have discovered that,  just as with any other type of political candidate, campaign contributions to judicial candidates yield the desired results.

Hat-tip to How Appealing.

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A debate of sorts is brewing between  CrimLaw and HOWT on the propriety and usefulness of oral argument in appellate practice.  CrimLaw argues that oral argument has become a badge of prestige for the lawyers called to argue, but is misplaced because "an informed, intelligent, and full argument is better made on paper."  While agreeing with the latter sentiment, HOWT responds that briefs do sometimes leaved unanswered questions.  ALP plans to chime in, but wants info on the history of appellate practice.

Based on my own experience, which includes stints as law clerk and staff counsel on a state appellate court, oral argument rarely makes a difference in the ultimate outcome.   A well written brief can and does generally provide the best weapon in an appeal -- or, in fact in any proceeding where issues of law are determined.  In other words, I much prefer the typical federal court motions practice in which motions are mostly decided on the briefs, with hearings set if the judge so desires.

Of course, I say that as someone wholly confident in my ability to write that well written brief necessary to prevail in the face of any oral presentation.  No doubt, there are many appellate advocates who place similar faith in their ability to overcome the best written brief with their face-to-face presentation.    In other words, this is a debate in which few have unbiased opinions.

However, theoretical discussions aside, the more important preference to be considered is that of the judges.  HOWT guesses that oral argument makes a difference in ten percent of the cases HOWT 's decides.  My own opinion is that this percentage varies from court to court, and especially, from judge to judge.  For some judges, a writing will be most persuasive; for others, the give and take of a dialog will take the day.  If my panel includes judges who likes to have that dialog, I see no reason to disappoint.  So my answer to the question of whether oral argument is necessary, is yes - if the judges want it. 

I'll stand by that answer even if the reason the judges want the argument is to get them out of their offices for for a few hours. After all, "rarely" is not  "never."   

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I must agree with Abstract Appeal, who presents the following "insightful" quotation from De Vaux v. Westwood Baptist Church, Florida Court of Appeals, First District:  

The filing of an appeal should never be a conditioned reflex. 'About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.'" Hill v. Norfolk & Western Ry. Co., 814 F.2d 1192, 1202 (7th Cir. 1987)(quoting 1 Jessup, Elihu Root 133 (1938))

See the whole post, including the rest of the quotation.

But such thoughts do beg the question in the title.

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