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The Appellate Strategist

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Category Archives: Civil and Appellate Procedure

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California Supreme Court Grants Review Over Scope of General and Specific Jurisdiction

Posted in Civil and Appellate Procedure
  Following the restriction placed on general jurisdiction by the U.S. Supreme Court in Daimler AG v. Bauman (2014) ___ U.S. ___ [134 S.Ct. 746] (Daimler), the California Supreme Court will address the scope of general and specific jurisdiction. California is a target jurisdiction, and mass product cases often include more out-of-state plaintiffs than California … Continue Reading

Florida’s Change of Venue Law for Jury Pool Bias

Posted in Civil and Appellate Procedure, Florida, Jurisdictions
The authority of changing venue based on a party’s concern about not receiving a fair trial because of a biased or prejudiced jury pool can be found in section 47.101, Florida Statutes—not  Florida Rule of Civil Procedure 1.060. Procedural Requirements. The statute requires that a motion to change venue contain a verified statement of facts, … Continue Reading

Orders Compelling Compliance with a Legislative Subpoena Are Appealable in California

Posted in California, Civil and Appellate Procedure
While avoiding the marijuana legalization debates raging in the state, the California Supreme Court confirmed that orders compelling five medical marijuana dispensaries to comply with subpoenas issued by the City of Dana Point were appealable, reversing the dismissal by the Court of Appeal in these consolidated cases. In Dana Point Safe Harbor Collective v. Superior … Continue Reading

The Use of Principles of Aggregate Litigation by Courts: The Early Returns

Posted in Civil and Appellate Procedure
The American Law Institute gave final approval to the Principles of Aggregate Litigation in May, 2009. Drafts of the Principles had been published for several years before final approval, and some courts have been aware of the substance of the ALI’s views for some time. We have searched available opinions to determine the influence, if … Continue Reading

A Mediator Cannot Confirm the Terms of the Settlement Reached Without a Waiver under California Evidence Code § 703.5

Posted in California, Civil and Appellate Procedure
In a case brought to enforce a settlement reached at mediation, a dispute arose about the final terms of the settlement reached. One of the parties offered the declaration of the mediator to confirm the accuracy of the attached agreement. In Radford v. Shehorn, the Second District Court of Appeal held this was inadmissible under … Continue Reading

The California Supreme Court Accepts Review – Can an Appellant Recover as Costs on Appeal the Interest Paid on Sums Borrowed To Secure a Letter of Credit Used to Secure a Surety Bond?

Posted in Civil and Appellate Procedure
The California Supreme Court has accepted review in Rossa v. D.L. Falk Construction, to review the issue of whether California Rules of Court, rule 8.278(d)(1)(F), which permits a successful appellant to recover "the cost to obtain a letter of credit as collateral," allows the recovery of interest paid on sums borrowed to fund a letter … Continue Reading

Does Legal Scholarship Have an Impact on the Work of the Courts?

Posted in Civil and Appellate Procedure
It’s almost become traditional wisdom over the past ten years: for the day-to-day work of the courts and the practicing bar, law reviews matter less than ever before. Chief Justice Roberts recently characterized legal scholarship as not “particularly helpful” in deciding cases. Judge Harry Edwards of the D.C. Circuit has been a critic of the state of … Continue Reading

So You Want to Be a Friend of Your Local Appellate Court . . .

Posted in Civil and Appellate Procedure
Naturally, the rules for amicus briefing vary widely from state to state – sometimes even within a single state. Today, we summarize the rules for amicus participation in states having intermediate appellate courts. Everyone is welcome Three jurisdictions – Georgia, Pennsylvania and part of Missouri (the Eastern District of the Missouri Court of Appeals) – are … Continue Reading

Why A Fresh Analysis Matters in Litigation

Posted in Civil and Appellate Procedure
Most litigators, whether trial lawyers or appellate specialists, are regularly asked to estimate the chances of a particular case result. So you can imagine the reaction in the legal blog world when four professors — Jane Goodman-Delahunty, Maria Hartwig, Par Anders Granhag and Elizabeth F. Loftus — published a study concluding that many lawyers may not … Continue Reading

The California Supreme Court Addresses the Commercial Speech Exception to the Anti-SLAPP Statute

Posted in California, Civil and Appellate Procedure
In Simpson Strong-Tie Company, Inc., a manufacturer brought suit against an attorney who ran an advertisement regarding possible claims against the manufacturer’s products and the trial court granted counsel’s anti-SLAPP motion to strike. The California Supreme Court has now affirmed the judgment, holding that: 1) the plaintiff has the burden of proof in demonstrating the application … Continue Reading

What’s Good for the Goose Is not Necessarily Good for the Gander: Florida Defendants May Not Videotape Compulsory Medical Examinations of Plaintiffs

Posted in Civil and Appellate Procedure, Florida
An appellate court in Florida granted certiorari and quashed a lower court’s order requiring the Plaintiff to submit to a compulsory medical examination in the presence of a videographer hired by the Defendant. In Prince v. Mallari (.pdf), Defendant served a notice of compulsory medical examination to be performed by a defense-retained physician.  The notice … Continue Reading

California Supreme Court: Is The Economic Crisis Having An Effect On The State’s Highest Court?

Posted in California, Civil and Appellate Procedure
Statistics show that the number of civil cases accepted for review by California’s highest court has varied dramatically in recent years, but by any count, the numbers are still small. According to a report released by the State’s Administrative Office of the Courts, for the year 2008, the California Supreme Court granted 6% of all … Continue Reading

Knowing the Difference Between Erroneous and Void Judgments May Save Your Own Appeal

Posted in Civil and Appellate Procedure
On March 23, the U.S. Supreme Court issued a unanimous opinion limiting the rights of litigants to challenge a judgment outside the ordinary appeals process by arguing the judgment is "void." In United Student Aid Funds v. Espinosa (.pdf), the Supreme Court considered an order in a chapter 13 bankruptcy case that approved a plan allowing … Continue Reading

The Coito Decision Questions Nacht and Puts the Scope of California Work Product Protection in Question

Posted in California, Civil and Appellate Procedure
  Nacht & Lewis Architects, Inc. v. Superior Court may be the most widely cited case in California.  It seems to appear in most responses to Form Interrogatory Nos. 12.2 and 12.3 to justify refusing to produce recorded interviews of witnesses, any resulting attorney notes, or a list of interviewed witnesses.  Now those numerous discovery responses may be … Continue Reading

U.S. Supreme Court Adopts Nerve Center Test for Corporate Citizenship in Diversity

Posted in Civil and Appellate Procedure, Federal
A corporation’s citizenship for purposes of Federal diversity jurisdiction is governed by 28 U.S.C. 1332(c)(1): a corporation is a citizen of the state of its incorporation, and the state where its principal place of business is found. This morning, in a decision certain to have a major impact on the day-to-day functioning of the Federal … Continue Reading

California Supreme Court Provides New Guidance to Courts Making “Choice-of-Law”

Posted in Asbestos, California, Civil and Appellate Procedure
Today, in a widely anticipated decision, the California Supreme Court held that California’s interest in protecting a current resident does not trump another state’s interest in having its laws applied. This occurred in the context of an asbestos case. The defendant’s conduct occurred in Oklahoma, at a time when plaintiff was present in and a … Continue Reading

GOTCHA! Ninth Circuit Reluctantly Dismisses Appeal That Was Timely When Notice of Appeal Was Filed

Posted in Civil and Appellate Procedure
The Ninth Circuit recently found itself in the difficult position of having to dismiss an appeal that under its own precedent, was timely when filed, but became untimely after an intervening Supreme Court decision. The plaintiffs brought a qui tam action against a researcher who allegedly made false statements to obtain funding from the federal … Continue Reading