Florida's Change of Venue Law for Jury Pool Bias

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, be supported by affidavits of at least two “reputable” citizens of the county in which the case was filed, and be filed within 10 days after the action is “at issue,” unless good cause is shown.

A case is “at issue” 20 days after service of the last pleading or once all motions directed to that last pleading are decided. See Fla. R. Civ. P. Rule 1.440. Pleading as used in this rule connotes those finite number of pleadings recognized by the Florida Rules of Civil Procedure (complaint, answer, counterclaim, etc.). See Fla. R. Civ. P. 1.100(a). Some courts have strictly construed these requirements, denying a motion outright for non-compliance.

Standards. The statute contains two bases for changing venue: (1) “Because the adverse party has an undue influence over the minds of the inhabitants of the county”; or (2) “Because movant is so odious to the inhabitants of the county that he or she could not receive a fair trial.” The Florida Supreme Court has announced a succinct test for determining whether a change of venue is proper:

Whether the general state of mind of the inhabitants of the community is so infected by knowledge of the incident and accompanying prejudice, bias, and pre-conceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom.

Rolling v. State, 695 So. 2d 278, 285 (Fla. 1997) (quoting McCaskill v. State, 344 So. 2d 1276, 1278 (Fla. 1977)).

Once a defendant raises the partiality of the venire, the trial court must look at two prongs: (1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury.

On the first prong, courts should consider 5 factors for determining the effect of pretrial publicity on the knowledge and impartiality of the prospective jurors:

(1) the length of time that has passed from the incident to the trial and when within that time the publicity occurred;
(2) whether the publicity consisted of straight, factual news stories or inflammatory stories;
(3) whether the publicity favored the non-movant’s case or version of events;
(4) the size of the community in question; and
(5) whether the defendant exhausted all of his peremptory challenges.

Florida courts have placed great emphasis on the second factor above. “Publicity, in and of itself, is not sufficient grounds for change of venue. The publicity must be hostile publicity.”

The second prong of the analysis requires the trial court to examine the extent of difficulty in actually selecting an impartial jury at voir dire. If voir dire shows that it is impossible to select jurors who will decide the case based on the evidence, rather than the jurors’ extrinsic knowledge, then a change of venue is required. The ability to seat an impartial jury in a high-profile case may be demonstrated by either a lack of extrinsic knowledge among members of the venire or, assuming such knowledge, a lack of partiality.

On this point, the supreme court has encouraged trial courts “to attempt to impanel a jury before ruling on a change of venue.” This provides trial courts an opportunity to determine through voir dire whether it is actually possible to find individuals who have not been seriously infected by the publicity. If the trial court finds such individuals, a jury is selected. Where the voir dire fails to produce these individuals, the trial court must grant the motion for change of venue.

The supreme court has, on numerous occasions, emphasized that to be qualified, jurors need not be totally ignorant of the facts of the case, nor do they need to be free from any preconceived notion. In fact, knowledge of the incidence because of its notoriety is not, in and of itself, a ground for a change of venue. Rather, the issue may turn on the nature and extent of the pretrial information the juror has acquired and an analysis as to whether a juror “can lay aside his impression or opinion” based upon any pretrial information and “render a verdict based on the evidence presented in court.”

Appellate Standard of Review. A motion for change of venue is addressed to the trial court’s discretion and will not be overturned on appeal absent a “palpable abuse of discretion” or a “grossly improvident” exercise of discretion. The determination is usually one of fact which the presiding judge, who has knowledge of all the circumstances of the case, is in a much better position to pass on that the appellate court. Because of this heightened standard of review, most of the cases in Florida have affirmed the trial court’s denial of a motion for change of venue.

Orders Compelling Compliance with a Legislative Subpoena Are Appealable in California

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 Court, S180365, the Court held that the order enforcing the legislative subpoena and compelling the production of documents was a final order for purposes of an appeal, returning the matter to the Fourth Appellate District, Division Three, of the Court of Appeal for further proceedings. In doing so, the Supreme Court specifically declined to address the ancillary issue of whether an appealing party is entitled to a stay of enforcement of the subpoena pending appeal. Having resolved a split in the Courts of Appeal, the Supreme Court disapproved Bishop v. Merging Capital, Inc.(1996) 49 Cal.App.4th 180, People ex rel. Franchise Tax Bd. v. Superior Court (1985) 164 Cal.App.3d 526, and Barnes v. Molino (1980) 103 Cal.App.3d 46, to the extent they are inconsistent with its holding. For more details regarding Dana Point Safe Harbor Collective, see the Appeals & Writs update page.

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

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 any, that the Principles have exerted on the law to this point.

Almost all citations to the Principles have been in federal court, predominantly in the First and Second Circuits. By far the most common subject for which the Principles have been cited is cy pres settlements. Some courts have approved settlements where the primary beneficiaries are not class members but third parties, such as charities. The rationale for such settlements is that they provide some punishment to the defendant (or disgorgement of ill-gotten gains) while avoiding difficult problems in identifying and compensating specific class members. The Principles of Aggregate Litigation is generally unenthusiastic about cy pres settlements and expresses a preference for distribution of settlement proceeds to class members as opposed to third parties, such as charities, unless such a distribution is not economically feasible. The Second Circuit relied upon a draft of the Principles in a leading case (see Masters v. Wilhelmina Model Agency, Inc. .pdf) and the Principles’ position on this subject seems to have real traction in the federal courts.

The courts have not widely cited the Principles of Aggregate Litigation for other issues, although the Third Circuit has referred to factors listed in the Principles for determining when a single-issue class is appropriate (see Hohider v. United Parcel Service, Inc. .pdf).

Other issues for which the Principles have been cited include the varieties of aggregate litigation, the presumption against certification when a prior court has rejected certification, and the use of lodestar factors to cross-check attorneys’ fees derived by the percentage method.

The most significant use of the Principles in state courts has been a decision by the Kansas Supreme Court adopting the definition of “aggregate settlement” found in the Principles and applying it to that state’s disciplinary rules (see Tilzer v. Davis, Bethune & Jones, L.L.C. .pdf).

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

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 Evidence Code § 703.5, which declares that a mediator is incompetent "to testify, in any subsequent civil proceeding, as to any statement, conduct, decision, or ruling, occurring at or in conjunction with the prior proceeding...." The court ruled that this extended to a statement regard the terms of any agreement reached. While the parties can waive this restriction, in Radford the dispute extended to whether the signed waiver was actually part of the agreement. With that in dispute, the mediator remained barred from testifying. Ultimately, this error was found harmless, as a declaration of counsel confirming receipt of the agreement from opposing counsel was found sufficient to identify the final agreement. Note: Radford is consistent with an earlier case, Eisendrath v. Superior Court (2003) 109 Cal.App.4th 351, which barred a party from deposing the mediator in an action to correct the written agreement signed at the mediation.

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?

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 of credit used to secure a surety bond. The Court of Appeal denied the claim, finding no statutory basis for awarding such costs. In doing so, Rossa first distinguished Cooper v. Westbrook Torrey Hills (2000) 81 Cal.App.4th 1294, which allowed the recovery of interest incurred in making a cash deposit pending appeal. However, Rossa then went on to “question its holding,” referring to the “obvious faultline” in Cooper’s analysis, arguing that Cooper is “further undermined” by a lack of statutory support and that it “stands as a conspicuous exception to the principles that costs are awarded only if statutorily authorized, and that such statutes are strictly construed.” Presumably, the Supreme Court accepted review in Rossa with the intention of resolving this conflict between the First and Fourth Districts. For more procedural details about the review in Rossa, see the Appeals & Writs update page.

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

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 legal scholarship as well, as have several other judges. An ABA study commented that practicing lawyers increasingly viewed legal scholarship as “irrelevant to their day-to-day concerns.” Even several law school professors have joined the chorus, endorsing the view that legal scholarship is increasingly removed from the work of the courts, and trying to quantify the “decline.”

But it turns out that reports of the death of the law review as a force in America’s courts may have been greatly exaggerated. According to a massive new study by Professors David Schwartz  of Chicago-Kent College of Law and Lee Petherbridge of Loyola Law School Los Angeles – “The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study" -- the courts’ use of legal scholarship is steadily increasing.

Professors Schwartz and Petherbridge studied a database of 296,098 reported decisions of the Federal Circuits spanning the years between 1950 and 2008. After screening out false positives and false negatives, the researchers plotted the positives – the opinions citing at least one law review or law journal – against the fifty-nine year study period. They concluded that citations to legal scholarship have steadily increased among the Federal appellate courts throughout the period. To determine whether the increase was a function merely of the courts’ increasing workload, the Professors plotted the citing opinions as a percentage of all opinions in a given year, and the result was still a steady upward trend.

The researchers analyzed possible explanations for the use of legal scholarship. Not surprisingly, they confirmed that the busier a particular Circuit is, and the more opinions written per appeal filed, the less likely an opinion is to cite to law reviews and journals. They suggested that the increasing use of scholarship might be explained, in part, by the fact that many areas of law arising in published cases have become increasingly complex, and there is simply far more scholarship easily available online than ever before. The professors also found a correlation between the dominant ideology of a Circuit and the court’s use of legal scholarship: more conservative courts use scholarship less, more liberal courts use it more.

Of course, the study suggests many follow-up questions, several of which the Professors discuss. The authors note that by taking a detailed look at the content of the articles and court opinions, important light might be shed on the issue of what kinds of legal scholarship judges use, and how do they use it. The researchers point out that the study concluded that over the entire period, only a little less than five percent of all opinions cited legal scholarship. Is that figure unexpectedly low? What role should the law reviews and journals be playing with respect to the bench and bar?  And why -- other than workload -- do some courts and specific judges seldom discuss legal scholarship, while others use academic work far more?

Although online databases of Federal appellate briefs are nowhere near as complete as the collection of opinions – Westlaw’s coverage begins in 1972 for the Fifth Circuit, but not until 2000 for the Tenth – it would be equally fascinating to apply the professors’ methods to practitioners’ briefs. Are practitioners providing more scholarly analysis to the courts? Is there any distinction in the use of scholarship between appellants and appellees? Are briefs in certain types of cases more likely to rely on scholarship?

Professors Schwartz and Petherbridge have provided important new evidence on a question that will interest a great many attorneys and judges. Their study is well worth a read.

Florida Adopts Mediation Rules for Appellate Courts

The Florida Supreme Court has adopted mediation rules for all appellate courts, including circuit courts acting in their appellate capacity, district courts of appeal and the Supreme Court of Florida.

Under the new rules(.pdf), the appellate court, on its own motion or that of a party, may refer a case to mediation at any time.  All cases are eligible except criminal cases, habeas corpus and extraordinary writs, contempt cases and matters specified by administrative order.  The rules provide for tolling of deadlines and for sanctions for failure to appear at a mediation conference without good cause.

Although the rules are patterned after comparable Florida rules governing trial court mediation, the Supreme Court acknowledged the difference between appellate and trial court mediation:  “Unlike in an initial proceeding . . . a controversy on appeal has been resolved in favor of one party over the other.  The viability of mediation . . . may not be apparent to the parties . . . until after the briefs have been filed, reflecting the issues upon which review is sought as well as the strengths and weaknesses of the parties’ arguments.”  To accommodate this distinction the parties may agree to postpone mediation until after the briefs are filed.

The Supreme Court also amended the rules on mediator qualifications to provide for certification of appellate mediators, who, in addition to being qualified as certified circuit, family or dependency mediators, must complete a Florida Supreme Court certified appellate mediation training program.

The rules became effective July 1, 2010.

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

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 very amicus-friendly, welcoming briefs without party or court approval.  In Georgia Courts of Appeals, “[a]micus curiae briefs may be filed without leave of Court, disclosing the identity and interest of the person or group on whose behalf the brief is filed and limited to issues properly raised by the parties.” GA App. Ct. R. 26. Similarly, the Pennsylvania Superior Court permits an amicus to file a brief “without applying for leave to do so.” PA R. App. P. 531. The Eastern District of the Missouri Court of Appeals, unlike the other Missouri districts, also accepts an amicus brief without any specific conditions. MO R. App. Ct. ED R. 375.

Get our permission

20 jurisdictions, with differing requirements and standards, accept amicus briefs only after the appellate courts permit the filing. For example, Florida’s rule states “[a]n amicus curiae may file a brief only by leave of court.” See e.g. Fla. R. App. P. R. 9.370. Also, time limitations may dictate whether a court is willing to hear from amici; the rules for the Nebraska Court of Appeals preclude granting leave to participate “within 20 days of oral argument.” NE R. App. § 2-109(4).

17 states in which the court’s sole discretion governs amicus participation are:

Arkansas (AR R. S. Ct. R. 4-6); California (CA Rules of Court, Rule 8.200); Connecticut (Ct. R. A. P. §67-7); Florida (FL R. App. P. R. 9.370); Hawaii (HI R. A. P. R. 28(g)); Indiana (IN R. App. P. R. 41); Kentucky (KY R. Civ. P. 76.12(7)); Louisiana (LA St. A. Ct. UNIF R. 2-12.11); Maryland (MD R. A. Ct. & Spec. A. R. 8-511); Michigan (MI R. A. R. 7.212); Mississippi (MS R. A. P. R. 29); Missouri Southern District (MO R. A. Ct. SD R. 15); Nebraska (NE R. App. § 2-109(4)); New Jersey (NJ R. Gen. App 1:13-9); New Mexico (NM R. A. P. R. 12-215); Oregon (OR R. A. P. R. 8.15); Wisconsin (WI St. 809.19(7)).

The other three have rules which explicitly require the amici to serve notice on the parties. (Kansas (Rule 6.06); Minnesota (MN St. Civ A. P. R. 129.01); New York (NY Ct. R. §670.11).)

Get our permission, unless we ask for your help

Nine jurisdictions require amici to seek leave of court to file a brief, but also have rules allowing the justices to request amicus assistance. (Alabama (AL R. A. P. R. 29); Colorado (CO St. A Ct. R. 29); Illinois (IL ST S. Ct. Rule 345); Massachusetts (MA St. R. A. P. R. 17); North Carolina (NC R. RAP. App. R. 28); North Dakota (ND R. A. P. R. 29); South Carolina (SC R. A. Ct. R. 213); Tennessee (TN R. A. P. R. 31); Utah (UT R. A. P. R. 50) (amended by 2009 UT Order 09-11).) Prospective amici need to review and comply with the specific requirements for participation. In North Carolina, for example, the motion for leave to file must set forth “the nature of the applicant's interest, the reasons why an amicus curiae brief is believed desirable, the questions of law to be addressed in the amicus curiae brief and the applicant's position on those questions.” (NC R. RAP. App. R. 28. North Dakota and South Carolina limit amicus briefing to the issues raised on appeal as presented by the parties. ND R. A. P. R. 29; SC R. A. Ct. R. 213.

Get someone’s permission

Five jurisdictions require amici to obtain the consent of all parties or the appellate court before filing their briefs. Again, amici may face limitations on their participation. (See Arizona (AZ St. Civ. A. P. R. 16); Oklahoma (OK St. S. Ct. R. 1.12); Washington (WA R. A. P. R. 10.6); Missouri (the Western District of the Missouri Court of Appeals) (MO R. A. Ct. WD R. 26); Virginia (VA R. S. Ct. R. 5A:23).)

If we don’t ask, get someone’s permission

Three jurisdictions have rules allowing amicus briefs when all parties consent, the court grants leave, or the court solicits amicus input. (Alaska (AK R. A. P. R. 212(c)(9)); Iowa (IA R. 6.906); Ohio (OH St. R. A. P. R. 17).) All three require the amici to identify their interest and articulate why their brief is desirable. A fourth, Idaho, explicitly requires service of a motion seeking leave to file an amicus brief. (ID R. A. R. 8.)

Finally, there’s Texas hold ‘em

We close with the Wild West and Texas, which seemingly flips the amicus rules. Rather than placing the onus on the amici to explain why their voice should be heard, Texas takes the approach that the court may, “for good cause,” refuse to consider an amicus brief and order its return. (TX R. App. R. 11.)

NOTE: The author thanks 2009 Sedgwick summer associate Michael J. Floryan for his diligent review and synopses of the rules noted above.

Why A Fresh Analysis Matters in Litigation

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 be very good at it. Titled Insightful or Wishful: Lawyers' Ability to Predict Case Outcomes, [pdf] the article appeared in the American Psychological Association's Psychology, Public Policy & Law.

Over the past few weeks, the study's been everywhere: The Chronicle of Higher EducationPoint of LawDisputing, the Volokh Conspiracy, the ABA Journal and the Wall Street Journal Blog.  [Thanks to the WSJ Blog for bringing the study to my attention.]

The professors surveyed nearly five hundred litigators from forty-four states across the country, each of whom had a case expected to go to trial during the study period. Each attorney was asked two questions: (1) what would be a win in terms of the attorney's minimal goal for the case; and (2) what is the probability that you will achieve this outcome or something better? After the cases were settled or tried, the professors conducted follow-up interviews about the case outcome and the lawyers' subjective perception of the outcome. 

Overall, only one third of all participants reported a case result which matched their original goal. Forty-four percent of the litigators -- including many who reported a high level of confidence in their expected result -- did less well than they expected. Interestingly, the researchers did not find that more years of experience resulted in more accurate predictions. Civil attorneys performed no better than criminal attorneys, nor did predictions tend to improve as trial drew closer. The only positive correlation the professors found was gender: women lawyers tended to make more accurate predictions than men did.

The researchers suggested several possible reasons for the participants' overconfidence: (1) litigators' role requires them to project maximum confidence in their position; (2) lawyers' commitment to, and emotional investment in, clients might lead to overconfidence; (3) wishful thinking; or (4) litigators' perception that they have considerable control over events, whether circumstances suggest that's true or not.

Although this isn't the place to analyze the researchers' methodology, their basic conclusion -- that objective analysis of likely trial outcomes can be challenging – seems plausible, given the demands of trial work, with the years of preparation, discovery and motion practice and the emotional investment in the case and the client that comes with it.

So would the researchers have reached the same conclusion in a study limited to experienced appellate specialists?

I'm not aware of any objective, peer-reviewed research on that question, but my anecdotal impression, after sixteen years as an appellate specialist, is that the researchers would not have found the same overconfidence error in such a study. Join me below the jump for some reasons why.

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

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 of the commercial speech exception found in C.C.P. § 425.17(c) to anti-SLAPP motions and 2) the subject advertisement by counsel regarding potential claims against specified product manufacturers was not a statement by counsel “consisting of representations of fact about that person’s [i.e., counsel's] or a business competitor’s business operations, goods, or services.” As such, the advertisement did not fall within the commercial speech exception, and the manufacturer’s action was subject to an anti-SLAPP motion to strike. For more information regarding Simpson Strong-Tie Company, Inc., see the Civil Procedure/Evidence/Discovery update.


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

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 stated in bold type: “If the plaintiff videotapes the examination, Defendant will also videotape the examination, at its expense.”  Over Plaintiff’s objection, the trial court ordered that if Plaintiff was going to videotape the examination, then the defense should also be allowed to have a videographer present.

Florida’s Fifth District Court of Appeal quashed the order, and in so doing reaffirmed Florida case law that although the defense can require a plaintiff to submit to a compulsory medical examination pursuant to Fla. R. Civ. P. 1.360, defense counsel does not have the right to be present at the examination.  The court reasoned that because a compulsory medical examination is an “adversarial” proceeding, a plaintiff must be afforded certain protections such as the right to privacy, the right to have counsel present, and the right to have the examination videotaped.  A plaintiff’s videotape of a compulsory medical examination would typically be protected from production under the work product doctrine unless the videotape was to be introduced as evidence at trial.

Defendant argued that because he could not obtain Plaintiff’s videotape of the examination through discovery due to the work product privilege, the only way to be on equal footing at the examination and to insure the accuracy of the videotape was to have his own videographer present.  The Fifth DCA, however, disagreed and held that just because a plaintiff has an examination videotaped, that does not permit defense counsel to simultaneously videotape the examination. Otherwise, defense counsel could do by proxy what they are not permitted to do in person.

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

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 civil petitions for review, down from 8% the previous year (2007) but up from the mere 3% granted in 2006

For 2008, out of a total of 5,989 civil petitions, the court
• denied just over 5,400
• outright granted 82
• granted and held 210
• granted and transferred 51 back to the intermediate court of appeal. 

These numbers may seem exceedingly low, but consider that many litigants just don’t understand the court’s limited function in reviewing decisions of the lower courts.  Review by the California Supreme Court is discretionary.  As a judicial policy maker, the court typically accepts only those issues that may affect other litigants or when necessary to resolve a conflict in the published decisions.  But many litigants do not understand this unique function, choosing to seek review even when they cannot satisfy these special requirements.  Thus, a great many petitions are denied out of hand.

Maximizing the chances for review:  read and comply with the court’s special requirements.  Follow the rules.  List the issue presented first, followed by an explanation of why this case deserves to be one of the select few that should make the cut.  The petition for review is less a legal document, explaining why the petitioner should win under the law, than it is a persuasive plea on why the court should hear the case.

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

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 a student loan debtor to discharge his obligation to pay interest on his loans once he had paid off the principal. The court had erred in approving the plan because a student loan debtor must establish "undue hardship" to obtain an interest discharge in a separate proceeding in which the debtor must serve a summons on the creditor.

Years after the plan was approved, the creditor brought an action to recover the interest and for relief from the judgment under Federal Rule 60(b)(4), arguing that the initial order approving the plan was void. 

The Supreme Court disagreed.

Such a collateral attack is available only where the trial court acted without "an arguable basis for jurisdiction" or where the other party's due process rights were violated. The bankruptcy court certainly had the authority to approve a plan. It simply committed a legal error in not requiring proof of "undue hardship." Further, the lender had actual notice of the proposed plan. The irregularity in not serving a separate summons did not amount to a due process violation.  If lender was unhappy with the order approving the plan it had to file a timely appeal.

The lesson to litigants is clear and important.  Even if you think that the trial court is acting outside its authority, do not defer an appeal on the theory that the judgment can be attacked as void later on.  So long as there is some arguable basis that the court had jurisdiction to enter the order, it must be challenged through a timely appeal.

When It Comes to an Amicus Brief, How Friendly Should You Be?

Input from an amicus curiae can be invaluable to a court struggling with a difficult issue -- as most matters pending before a High Court are -- but can be counterproductive if not done properly or in the right situation. 

Before tendering another brief to a busy court that reads an enormous amount of material contained in the parties’ briefs and appellate record, find out what a particular appellate panel may (or may not) want.

Obviously, this is more easily accomplished when the intermediate court is divided into divisions where the judges regularly sit together, but the information can be garnered even when panels are not pre-set. Some judges at the intermediate appellate level have expressed complete disinterest in amicus briefs, noting the parties can provide whatever is needed to decide the parties' dispute at hand. But at courts of last resort, that type of resistance is not uncommon, since the justices are called upon to decide significant legal issues applicable to the public, not just the parties before them.

Of course, any submission must comply with the rules governing amicus submissions in the court before which you want to file your amicus brief.  A comprehensive list* of all the state rules was collected by Sarah F. Corbally and Donald C. Bross in their: "A Practical Guide for Filing Amicus Curiae briefs in state appellate courts," (.pdf). But that was published in 2001 and, though useful as a starting point, must be updated.  For example, this table references Rule 14 for my home jurisdiction, California, but this rule has been amended and renumbered; California’s current amicus rules are Rule 8.200 [Courts of Appeal] and Rule 8.520 [Supreme Court]. 

Next, figure out a way to articulate and contribute something significant that the parties did not include in their briefs. 

Although there are occasions when a "me too" replication of a party's brief is effective, that is usually productive only in garnering the court's interest in taking the case.  Generally, after the case is accepted and being briefed on the merits, an amicus needs to bring new perspectives to the court's attention. Statistical information or data to show the potential impact of a court's decision is often helpful in summarizing a particular point and directing the court's focus. 

A good amicus brief explains how a particular resolution will impact an entire industry, or why a change in the current state of the law is necessary to accommodate changing societal interests.  

The American Bar Association's website provides guidelines (.pdf) it uses when considering whether it will endorse an amicus brief.  Although many other examples exist, the ABA's list highlights universally applicable principles, which serve as reminders to assist you in being an effective advocates speaking on behalf of a "friend of the court."


*STAY TUNED: The Corbally/Bross table is referenced in several articles over the past decade, but does not appear to have been updated since its compilation.  We will be updating the table and publishing it in this blog soon.

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


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 in question.  In Coito v. Superior Court, [pdf] California's Fifth District Court of Appeal considered and rejected Nacht, holding in a divided decision that attorney notes from witness interviews and the list of those interviewed will often be discoverable. 

These conflicting decisions leave two crucial questions unresolved. 1) Do the questions asked by counsel in an interview reveal counsel’s impressions, conclusions, opinions, or theories?  2) Does the selection of who to interview reveal the same?  Coito says not usually to both, Nacht says yes.  Given the frequency in which these issues arise, the state Supreme Court may be asked to intervene to clarify the issue and provide clear guidelines for California litigators and overworked trial courts.

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

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 courts -- and attorneys' analysis of whether removal is available in a particular case -- a unanimous Supreme Court adopted a bright-line test for determining a corporation's "principal place of business." Friend v. Hertz Corporation, [pdf] No. 08-1107.

Until today, the circuits had been badly split on the proper test under Section 1332(c)(1). The Ninth Circuit -- which decided Friend -- applied a "place of operations" test, ignoring the corporate headquarters and considering where a company's plants, employees, retail locations and assets are located. Since California is the most populous state in the nation, the Court's test has meant, in practice, that national retailers -- even corporations strongly identified with other states -- are routinely deemed California citizens, making it impossible for many corporations sued in California state courts to seek removal to Federal court.

In contrast, the Third Circuit applied the "center of corporate activities" test, looking to the place where the corporation's day-to-day activity and management is centered. The Seventh Circuit applied the "nerve center" test, asking merely where the "brain" of the corporation is located. Finally, the Fifth, Sixth, Eighth, Tenth and Eleventh Circuits applied a "totality of the circumstances" test, considering the character, business purpose, nerve center, management center and general operations of the corporation. As the Supreme Court noted, Moore's Federal Practice treatise devotes fourteen pages to describing the circuits' various tests.

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

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 resident of that state, and Oklahoma has its own substantive law - that differs from California's - governing the defendant's potential liability for its Oklahoma acts. (McCann v. Foster Wheeler LLC S162435). This decision should limit forum shopping and prevent California from becoming a litigation magnet for plaintiffs who seek to sue for injuries that might otherwise be time-barred.

Terry McCann was an Oklahoma resident in the 1950s. He claimed he was exposed to asbestos from a Foster Wheeler generator at a refinery in Tulsa in 1957. After his alleged exposure, he moved to California in 1975. He was diagnosed with mesothelioma in 2005. He filed suit against Foster Wheeler in California state court.

Oklahoma has a 10-year statute of repose applicable to McCann's claim, which would bar McCann's lawsuit had he filed it in Oklahoma. However, McCann's suit was timely if measured by California's statute of limitations.

Foster Wheeler sought summary judgment, arguing that the timeliness of the action should be governed by Oklahoma law, rather than California law, and that under Oklahoma law McCann's cause of action against Foster Wheeler was barred by Oklahoma's statue of repose. The trial court agreed, finding that Oklahoma law governed the action, and McCann's claims were barred. The Court of Appeal reversed, concluding that McCann's residence in California at the time of his diagnosis trumped Oklahoma's interest in limiting liability embodied by its statute of repose.

The California Supreme Court disagreed: California's interest in affording a remedy to a current resident was insufficient to justify the choice of forum law over the law of another much more significantly involved jurisdiction.

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

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 government. (United States ex rel. Haight v. Catholic Healthcare West, No. 07-16857 (9th Cir. Feb. 4, 2010).) Qui tam is a fancy Latin phrase for a private enforcement action alleging fraud on the government.

The United States has a statutory right to intervene in qui tam actions, but it declined to do so here. The district court entered judgment for defendants, and the plaintiffs filed a notice of appeal 51 days later. But, you say, the time to appeal in federal court is only 30 days? Ordinarily true. But when the federal government is a “party,” the appellant has 60 days – not 30 – within which to appeal. (FRAP 4(1)(1)(B).) Under then-existing Ninth Circuit precedent, the government was a “party” to a qui tam – thereby allowing appeal within 60 days - even if it had declined to intervene. (Haycock v. Hughes Aircraft Co., (9th Cir. 1996) 98 F.3d 1100.)

But the U.S. Supreme Court recently held otherwise. Resolving a circuit split, it concluded that when the government declines to intervene, the shorter, 30 day, time to appeal applies. (United States ex rel. Eisenstein v. City of New York, New York (2009) 129 S. Ct. 2230.) The high court, while sympathetic to those who had relied on jurisdictions adopting the longer limit, deemed itself compelled to decide the jurisdictional question “irrespective of the possibility of harsh consequences.” (129 S. Ct. at 2236 n.4.) The Ninth Circuit strove mightily to avoid what it called this “inequitable” result, before it finally, relucantly, bowed to the inevitable.