The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

The California Supreme Court Holds That Evidentiary Objections on Summary Judgment Aren’t Waived Just Because the Trial Court Never Rules

By on Posted in California

In Reid v. Google, the California Supreme Court addressed and resolved a well-known procedural trap for California attorneys: if you file your objections to your opponent’s evidence on a summary judgment motion, but the trial court never specifically rules on them, are the objections preserved on appeal? The Supreme Court’s answer: “yes.”

In opposing a summary judgment motion, Google made numerous written objections to its opponent’s evidence (175, in fact). The trial court failed to specifically rule on the objections, merely stating that it was “relying only on competent and admissible evidence” pursuant to Biljac. After reviewing the legislative history of C.C.P. § 437c  , the Court found that once an objection is properly made, it is not waived on appeal. If the trial court fails to rule on the objection it is considered overruled and the trial court is presumed to have considered the evidence, but the objection is preserved for appeal.

In doing so, the Supreme Court disapproved: 1) bothAnn M. and Sharon P. to the extent they each hold that the failure of the trial court to rule on objections to summary judgment evidence waives those objections on appeal; 2) Biljac to the extent it permits the trial court to avoid ruling on specific evidentiary objections; and 3) numerous court of appeal decisions which were contrary to this ruling (see footnote 7 of the opinion). For more procedural history of Reid v. Google, see the Summary Judgment update page.
 

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

By Kirk Jenkins on 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 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.

California Supreme Court Expands the Liability of Landowners to Recreational Users of the Property

By Frederick Baker on Posted in California

California, like most states, has enacted a statute (Civil Code section 846) which provides that property owners have no duty to maintain their premises in a manner that makes them “safe” for recreational users of the land.  The statute was intended to encourage landowners to make their property available for recreational use without fear of exposure to liability, and California courts have, in a number of cases, read the statute expansively to promote that goal.  One decision, by an intermediate California appellate court (Shipman v. Boething Treeland Farms, Inc., 77 Cal.App.4th 1424 (2000), held that “recreational use immunity” barred a claim by a recreational user that he was injured by the landowner’s negligent operation of a motor vehicle on the property.

In Klein v. United States of America, __Cal.4th__ (July 26, 2010), plaintiff was riding a bicycle on a paved road in a National Forest when he was struck by a vehicle driven by a Park Service employee.  Under governing law, the liability of the United States was controlled by California tort principles.  A lawsuit was brought in federal district court, where summary judgment was granted in favor of the government based upon Shipman and other California authorities applying Section 846.  On appeal, the Ninth Circuit certified to the California Supreme Court the question whether Section 846 immunizes the landowner from negligent activities on the premises, or only from claims arising out of the nature and condition of the property itself.  The Ninth Circuit questioned whether Shipman was correctly decided, suggesting that the reasoning of certain Supreme Court opinions, while not directly on point, questioned its validity.

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Florida Adopts Mediation Rules for Appellate Courts

By on Posted in Civil and Appellate Procedure, Florida

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.

Schwarzenegger Nominates Justice Tani Cantil-Sakauye For Chief Justice of the California Supreme Court

By Kirk Jenkins on Posted in California

Governor Arnold Schwarzenegger has named Associate Justice Tani Cantil-Sakauye of the California Court of Appeal as his choice to replace the retiring Hon. Ronald M. George as Chief Justice of the California Supreme Court.

Governor Schwarzenegger praised Justice Cantil-Sakauye’s record in announcing the nomination:

Justice Tani Cantil-Sakauye has a distinguished history of public service and understands that the role of a justice is not to create law, but to independently and fairly interpret and administer the law.

Justice Cantil-Sakauye has served on the Third District Court of Appeal in Sacramento since 2005. Prior to joining the Court of Appeal, she was a superior court judge and earlier a municipal court judge, serving in each position for seven years. Justice Cantil-Sakauye was a deputy district attorney for Sacramento County from 1984 to 1988, before serving for two years in Governor Deukmejian’s administration.

Justice Cantil-Sakauye is a member of the California Judicial Council, where she serves as Vice Chair of the Rules and Projects Committee, chair of the Advisory Committee on Financial Accountability and Efficiency and co-chair of the Judicial Recruitment and Retention Working Group. She has served as a Special Master since 2007, appointed by the Supreme Court to conduct disciplinary proceedings before the Commission on Judicial Performance.

"It is a privilege and a tremendous honor to have the opportunity to serve as Chief Justice of the California Supreme Court," said Justice Cantil-Sakauye. “I deeply respect the inspirational and visionary work of Chief Justice Ronald George and hope to build upon it.”

Illinois Supreme Court Holds Transit System Has No Duty to Clear or Warn of Snow and Ice

By Kirk Jenkins on Posted in Illinois

Snow and ice are a fact of life in Chicago during the winter months. So what duties of care do government agencies, individuals and businesses have in relation to dealing with winter conditions? The Illinois Supreme Court addressed this important issue late last week in Krywin v. The Chicago Transit Authority [pdf].

Illinois has long followed the "natural accumulations rule": a landowner or possessor of real property has no duty to remove natural accumulations of ice, snow or water from its property. But it’s equally true that because mass transit agencies are "common carriers" under the law, they have a duty to their passengers to exercise the highest degree of care, not only to carry them safely to their destinations, but to provide them with a reasonable opportunity to leave the conveyance safely.

So does the natural accumulations rule apply to mass transit? In Krywin, a divided Supreme Court answered "yes."

Krywin arose from a 2005 accident, when plaintiff slipped on an icy subway platform owned by the Chicago Transit Authority. Plaintiff sued the CTA in a two-count complaint, alleging negligence and willful and wanton conduct. The trial court allowed a limited version of plaintiff’s theory to go to the jury, and the jury returned a verdict for plaintiff. The Appellate Court reversed.

Before the Supreme Court, Krywin argued that the natural accumulations rule has always been based on the proposition that it is unfair and unrealistic to require municipalities and businesses to remove snow and ice on an ongoing basis while a storm continues. The Court disagreed, finding that the rule applies regardless of whether a storm is in progress, or how long a natural accumulation has existed. The Court concluded that the natural accumulation rule should apply to plaintiff’s claim:

CTA had no duty to remove the natural accumulation of ice and snow from its platform, nor any duty to warn of the existence of such natural accumulation.

Plaintiff’s fallback argument was that even if the natural accumulations rule applied to common carriers, the CTA could have met its duty to provide a safe place to alight by stopping under the canopy which covered less than half of the platform. The Court disagreed, finding that it was impractical to require the CTA to evaluate each platform each time a train pulled in to determine what portions of the platform, if any, were the most free of snow and ice.

Justice Freeman dissented, with Justice Kilbride joining. Justice Freeman argued that because the Illinois Legislature had codified the natural accumulations rule in the Local Governmental and Governmental Employees Tort Immunity Act, 745 ILCS 10/3-105, but had specifically excluded the CTA from the Act, 745 ILCS 10/2-101(b), the Legislature intended that the natural accumulations rule not apply to the CTA.

Justice Freeman also argued that the majority’s holding was contrary not only to the Court’s earlier authorities, but also to the weight of authority in foreign jurisdictions. Pointing to decisions of the Alaska and Michigan Supreme Courts, as well as Section 343 of the Restatement (Second) of Torts, Justice Freeman argued that the weight of authority around the country rejected the natural accumulations rule. "I would hold that a common carrier’s standard of care trumps the natural accumulation rule," Justice Freeman wrote, arguing that the CTA should be required to warn passengers of icy platforms, and "a jury would have to decide whether the parties acted reasonably."

Ironically, the "take-away" from Krywin comes from Justice Freeman’s dissent. "[I]n northern climates, like ours, where ice and snow are a fact of life, people are aware of the hazards posed by such conditions, and it is impractical to require property owners and carriers to remove snow and ice." The Court’s decision in Krywin provides a needed dose of common sense for defense counsel to fight suits arising from the difficult winter weather that is a "fact of life" here in Chicago.

Illinois Supreme Court Will Release One New Civil Opinion on Thursday

By Kirk Jenkins on Posted in Illinois

The Illinois Supreme Court announced yesterday afternoon that it will release two opinions [pdf] on the morning of Thursday, July 15th, including one civil case:

  • No. 108888, Krywin v. Chicago Transit Authority, which presents the issue of whether the “natural accumulations rule,” which provides that a business owner generally has no duty to take precautions against natural accumulations of snow and ice, trumps a common carrier’s duty to furnish a passenger an opportunity to safely alight and reach a place of safety?

For full details on Krywin, check our Illinois Supreme Court Update. Krywin can be found under the link for Torts.

Indiana Supreme Court Reaffirms Economic Loss Rule

By Kirk Jenkins on Posted in Commercial Law, Mass Torts, Products Liability

In late March, I blogged on an important new case from the Tenth Circuit reaffirming the economic loss rule.  Last week, the Indiana Supreme Court handed down a major decision in a construction case, reaffirming this important principle of business law.

According to the economic loss rule, where a plaintiff has suffered merely economic loss – frustrated commercial expectations – the plaintiff is limited to suing in contract. Tort suits are barred. Once a plaintiff is restricted to contract remedies, limitations on liability provided in the contract will generally be enforced, and punitive damages are unlikely to be available. The economic loss rule is an important (and controversial) tool in business litigation, particularly in the construction industry — so much so that, as I reported in May, the American Law Institute will shortly be resuming its work on the Restatement (Third) of Torts: Economic Torts and Related Wrongs, collecting the law of the economic loss rule from across the country.

Indianapolis-Marion County Public Library v. Charlier Clark & Linard, [pdf] arose from the construction of a new library and parking garage in downtown Indianapolis. The Library contracted with an architectural firm, which, in turn, subcontracted with various architectural and engineering firms.   The Library also contracted directly with the general contractor for the project. A number of construction and design defects were found in the parking garage, and the Library sued the architects, the general contractor, and the subcontractors in tort. The defendants successfully moved to dismiss, arguing that the economic loss rule barred the Library’s tort claims.

The Supreme Court affirmed. The Court noted several policy justifications for the economic loss rule. 

First, liability for purely economic loss is more appropriately determined by commercial rather than tort law.

Second, tort law should not be permitted to impose liability on commercial actors which is so uncertain in time, class or amount that the defendant has no way of allocating risk before acting.

The Library argued that a range of exceptions to the economic loss rule applied. The Library claimed that because it purchased discrete products from each defendant — blueprints, materials, inspection services, and so on — it had suffered damage to property other than the subject of its contracts, making the economic loss rule inapplicable. The Court disagreed, holding that each of the defendants’ products was integral to a whole: the "product" for purposes of applying the "damage to property other than the product" exception to the economic loss rule was a renovated and expanded library facility, not any individual defendant’s contribution to the project.

The Library also claimed that the Court should not apply the economic loss rule where the alleged flaws in the product or service created an imminent danger of physical harm to members of the public. The Court declined to carve out such an exception to the rule.

The Library next argued that the economic loss rule should not be applied to design professionals, but the Court followed a decision from the Arizona Supreme Court earlier this year, holding that the economic loss rule applied equally in construction defect cases to contractors and design professionals. The Court emphasized the importance, as a matter of policy, of applying the economic loss rule to all participants in a major construction project:

When parties are connected through a chain of contracts, as in the construction context, courts should defer to the language of the contracts governing their relationship . . . Such a rule promotes private ordering by respecting a commonly understood allocation of risk even though the relevant term may or may not be in the contract.

Finally, the Library argued that the economic loss rule should not apply where the defendants allegedly provided false information to the plaintiff, or where the defendants provided a service, rather than a product.   The Supreme Court refused to create a new exception to the economic loss rule to govern either case.

Every few years, articles appear predicting the death of the economic loss rule. But with new decisions from two state Supreme Courts in only four months, reports of its death are once again exaggerated.

How Well Are Senate Confirmation Hearings Working?

By Kirk Jenkins on Posted in Constitutional Law, Federal, Supreme Court Vacancy

Earlier this week, we discussed “advice and consent.”  Can Senators legitimately ask a Supreme Court nominee about a hot button issue and expect a direct answer? Do Senators have the right to vote up or down on a particular nominee for purely political reasons?

Now we turn from the question of what the confirmation process should be to the issue of how the process operates in practice. Is the widely held view that hearings have become a substance-free charade in the years since the Bork nomination supported by the evidence? What subjects are Senators asking about, and are white, male nominees treated differently from women and African-American nominees? Two timely studies attempt to shed some light on these questions.

Professors Dian Farganis and Justin Wedeking, of Elon University and the University of Kentucky, respectively, focus on how responsive nominees are to Senators’ questions in their study, No Hints, No Forecasts, No Previews: Analyzing Supreme Court Nominee Evasiveness, 1955-2009.  Farganis and Wedeking reviewed the transcripts of every Supreme Court confirmation hearing since 1955 (Justice John Harlan), coding the type of question asked, the responsiveness of the nominee’s answer, and the reasons given by the nominee for not answering more fully.

In general, the professors found that the popular model of nominees trying to avoid nearly all the Senators’ questions was not supported by the transcripts: they consistently ranked nominees’ answers as “very forthcoming” for between sixty and eighty percent of all questions.  They argue that the perception that hearings have become a multi-day exercise in nominees avoiding substantive responses is likely caused by two factors.

First, the professors found that the percentage of questions addressing nominees’ opinions and interpretations – especially of hot-button issues – has increased over time, and such viewpoint questions are more likely to be partially or fully evaded than factual questions.

Second, the researchers observed an increasing trend in recent years of nominees being more explicit about declining to answer a question, most often because they worry that a particular issue might come before the Court. This second trend is most famously illustrated by Justice Scalia’s reluctance to answer questions from Senators Strom Thurmond and Arlen Specter [pdf – pp. 33-34, 86]  during his 1986 confirmation hearing about whether he considered Marbury v. Madison to be settled law.

The second study, May It Please the Senate: An Empirical Analysis of the Senate Judiciary Committee Hearings of Supreme Court Nominees, 1939-2009, comes from Professors Lori Ringhand and Paul Collins, of the University of Georgia Law School and the University of North Texas, respectively. Working from a database stretching back to the 1939 hearing for Justice Felix Frankfurter, Ringhand and Collins analyzed the topics addressed in the hearings. The results suggest that over the past seventy years, the hearings have had far more to do with politics and popular perceptions of the Court than they have with the Court’s actual day-to-day workload.

The biggest single group of substantive exchanges involved civil rights issues – race, gender and sexual orientation discrimination; freedom of speech and religion, and the right to privacy. Questions about nominees’ judicial philosophy occur less than half as often, and inquiries about statutory interpretation – what the Court spends much of its time doing – account for only about one percent of all exchanges. Interestingly, the study shows that Senators’ questioning of Judge Robert Bork was no more dominated by questions about his judicial philosophy than a number of other nominees’ hearings have been.

The researchers’ analysis of the impact of nominee race and gender on Senators’ examinations has received the most attention in the days since May It Please the Senate was posted, including from the New York Times the Volokh Conspiracy and PrawfsBlawg. According to the professors, minority candidates receive more questions about civil rights, judicial philosophy and criminal justice, and fewer about issues like federalism and statutory interpretation. Female nominees, on the other hand, receive fewer questions about civil rights, but more than men regarding judicial philosophy and federalism.

Both No Hints and May It Please the Senate are interesting reads, and important contributions to the study of politics’ impact on constitutional law. Many follow-up questions – some of which are mentioned in the studies themselves – suggest themselves for further research.

  • For example, Professors Ringhand and Collins break down their subject categories in the aggregate, arguing, for example that issues like abortion and the right to bear arms have not dominated the hearings; a similar breakdown along party lines might prove interesting.
     
  • Professors Farganis and Wedeking show that nominees’ evasiveness tends to increase in response to viewpoint questions, but it might be useful to analyze that data further by specific issues and sub-issues.
     
  • Both studies could throw additional light on the problems of twentieth and twenty-first century constitutional development by further analyzing their data with respect to the makeup of Congress at the time of each hearing, the party of the President, and the nature of the relationship between the Congress and the President.
     
  • Finally, it would be interesting to tie the professors’ results with respect to specific nominees back into the nominees’ performance on the Court, and the group dynamic of the Courts on which they served.

UPDATE: Professors Farganis and Wedeking have posted an update to their paper analyzing the responses given by Solicitor General Kagan to Senators’ questions during her confirmation hearings.

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