The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Former Solicitor General Waxman Endorses Kagan Nomination

By Kirk Jenkins on Posted in Federal, Supreme Court Vacancy

Last night, former Solicitor General Seth Waxman addressed the American Law Institute. He strongly endorsed the nomination of current Solicitor General Elena Kagan to the Supreme Court, stating that "It is and should be a foregone conclusion that she will be confirmed." Waxman told the members of having worked with Kagan in the weeks leading up to the reargument in Citizens United, the Court’s decision striking down Federal limits on certain forms of corporate-financed electioneering, and being impressed with her brilliance.

Although many observers have suggested that Kagan’s lack of judicial experience is a concern, Waxman noted that many of our greatest Supreme Court Justices came to the Court without appellate judging experience, including Robert Jackson, John Marshall Harlan and Earl Warren. Waxman argued that it was important for the Court to have members with the professional experience of learning from a broad cross-section of the country:

Elena Kagan’s experience, although not judicial, will serve the country well.

Waxman also paid tribute to John Paul Stevens, the retiring Justice Kagan may replace. Describing Justice Stevens as a "consummate common law judge," Waxman said that arguing a case before him was both "a rare pleasure and a genuine terror." During his years on the Court, Waxman said that Justice Stevens has been an advocate of "judicial modesty," both substantive — deference to the political branches, and reluctance to use the power to strike down statutes on constitutional grounds — and procedural — a cautious approach to choosing the questions the Court answers, and a strong preference for acting on the narrowest possible grounds.   According to former Solicitor General Waxman, judicial modesty "serves the structural balance that’s essential to representative democracy."

On Monday, we reported on the remarks of Justice Stephen Breyer during the opening day of the ALI’s meeting. Video of Justice Breyer’s remarks is now available on the ALI’s website, along with video from several additional speakers.

Florida Supreme Court Decides That Bad-Faith Claim Cannot Be Maintained Against Indemnity Insurer Where Bad Faith Did Not Cause Insured’s Damages

By on Posted in Florida, Insurance

The Florida Supreme Court recently decided, in a case of first impression, that a cause of action for third-party bad faith against an indemnity insurer cannot be maintained when the insurer’s actions were not a cause of the damages to the insured or when the insurer’s actions never resulted in exposure to liability in excess of the policy limits of the insured’s policies.  

In Perera v. United States Fidelity & Guaranty Co. (.pdf), the plaintiff’s husband, an employee of Estes Express Lines Corporation, was crushed to death by a piece of equipment, and his wife filed a wrongful death suit against Estes.  Estes had three insurance policies:  a $1 million commercial liability policy issued by Cigna, a $1 million excess worker’s compensation employer’s liability policy issued by USF&G, and a $25 million umbrella excess liability policy issued by Chubb.  USF&G denied coverage.  The parties entered into a settlement for $10 million, with Estes to pay $5 million, made up of $750,000 from Estes, $500,000 from Cigna, and $3.75 million from Chubb.  The remaining $5 million was to be sought by Estes or Perera in a lawsuit against USF&G. 

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

By on 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 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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Justice Stephen Breyer Addresses the American Law Institute

By Kirk Jenkins on Posted in Federal

Justice Stephen Breyer of the Supreme Court spoke this afternoon before a standing-room-only crowd at the Annual Meeting of the ALI. At Justice Breyer’s suggestion, rather than making an address, he responded to questions from several ALI members.

ALI Director Lance Liebman asked how the Court’s role as the final arbiter of so many crucial questions is compatible with democratic values. Justice Breyer responded that Alexander Hamilton’s original answer from The Federalist had never been improved upon. Unless somebody enforces the Constitution, it becomes a dead letter. The power can’t be given to the President, since that would be too much power. As a politically elected body, Congress can’t be expected to pass judgment on their own statutes. Someone has to enforce the Constitution "when it’s unpopular to do it," Justice Breyer said; anyone can do it when it’s popular.

Justice Breyer was asked whether statutory and constitutional originalism, with its emphasis on text, history and precedent, was the more democratically legitimate approach for the Court to take to its work.  Justice Breyer disagreed with the view that there are no controls inherent in looking to purpose and consequence when it’s appropriate which will prevent a judge from relying upon his or her subjective views.  In fact, if a judge is prepared to be honest, there are just as many checks and controls in an approach that incorporates purpose and consequence as in strict originalism.  The basic values and purposes stay the same, Justice Breyer said; it is the details as to how those values and purposes apply in a changing world that differ.

American Law Institute Announces New Projects on Election Law and Insurance

By Kirk Jenkins on Posted in Insurance

The 87th Annual Meeting of the American Law Institute was called to order this morning by President Roberta Cooper Ramo. After the traditional opening remarks by the President of the American Bar Association, Carolyn B. Lamm, ALI Director Lance Liebman announced two new projects on which the ALI will soon begin work, on Election Law and Insurance Law. Director Liebman also noted that even though the third wave of Restatements has not yet been completed, it won’t be long before the Institute begins work on the Restatements (Fourth).

California Supreme Court 5/12/10 Conference

By on Posted in California

In its weekly conference, see list of actions, the California Supreme Court granted review in:

  • Jankey v. Lee, in which the Court of Appeal held that the Americans with Disabilities Act does not preempt Civil Code § 55, which entitles the prevailing defendant to attorney’s fees upon defeating a claim for injunctive relief under the California Disabled Persons Act. See Attorney-Related update page.
  • Diaz v. Carcamo, in which the Court of Appeal rejected an employer’s argument that by conceding its liability under respondeat superior it was shielded from a claim that it was independently negligent in its hiring and retention of that same employee. See Torts & Products update page. In doing so, the Court of Appeal in Diaz distinguished two prior cases which held that an employer is protected from a claim of negligent entrustment upon such a concession. See Armenta v. Churchill (1954) 42 Cal.2d 448 and Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853.

 

Coming Attractions – Live-Blogging the Annual Meeting of the American Law Institute

By Kirk Jenkins on Posted in Announcements

Be sure to check back with Appellate Strategist beginning on Monday, when I’ll be live-blogging the Annual Meeting of the American Law Institute from Washington D.C. In addition to posts here, I’ll be one of a group of ALI members blogging the meeting on the ALI’s blog.

The ALI was founded in 1923. Membership is by election only, and is limited to 3,000 worldwide. Members include private practitioners, senior in-house attorneys, appellate judges, both from the U.S. and overseas, tenured law professors and senior government attorneys.

As many of our readers know, since the ALI’s founding, members of the Institute have developed and published the Restatements of the Law.  For over 50 years, the ALI has collaborated with the National Conference of Commissioners on Uniform State Laws in preparing the Uniform Commercial Code.  Other ALI projects have resulted in the development of the Model Code of Evidence, the Model Penal Code, the Model Code of Pre-Arraignment Procedure, the Model Land Development Code, and the proposed Federal Securities Code.

The ALI has a busy schedule of debates planned for the three days of the Meeting. On Monday, the members will discuss the Model Penal Code: Sentencing and amendments to Article 9 of the Uniform Commercial Code. Tuesday, three draft Restatements will be up for debate: Property (Wills and Other Donative Transfers), Employment Law and the U.S. Law of International Commercial Arbitration. Finally, on Wednesday the members will discuss the draft Restatement (Third) of Restitution and Unjust Enrichment.

The members will hear from an exciting list of speakers as well. On Monday, ABA President Carolyn B. Lamm will speak during the opening session, and in the afternoon, Justice Stephen Breyer of the Supreme Court will address the membership on “Making the Constitution Work: A Supreme Court Justice’s View.” The featured speaker for Tuesday night’s member reception is former Solicitor General Seth P. Waxman. On Wednesday, Dean Christopher F. Edley, Jr. of the University of California, Berkeley School of Law will speak.

The California Supreme Court Sets A Busy Civil Calendar

By on Posted in California, Employment, Insurance

The California Supreme Court has scheduled oral argument in seven civil cases, five at the end of May and two in Los Angeles at the beginning of June. These hearings should address a wide variety of issues, including:

  • Do employees have a private right of action against employers who take some of the tips? See the Lu case in the Employment-Compensation & Benefits update.
  • Should CA recognize the "Stray Remarks" Rule in discrimination cases? See the Reid case in the Employment – Other update.
  • Can an insured sue an insurer for fraudulently inducing settlement and seek to avoid the release without returning the money already paid? See the Village Northridge Homeowners Assn. case in the Insurance update.
  • Does an administrative proceeding constitute a “suit” to trigger insurance coverage? See the Ameron Internat. Corp. case in the Insurance update.  
  • Are non-signatory heirs bound by an arbitration agreement signed by the decedent? See the Ruiz case in the ADR update.
  • Does the damages enhancement for actions brought by elderly plaintiffs apply to §17200 actions? See Clark case in the Damages update.
  • Are evidentiary objections not expressly ruled on regarding an MSJ motion preserved for appeal? See the Reid case in the Appeals & Writs update.
  • What is the preclusive effect of the investigatory findings of a federal agency? See the Murray case in the Civil Procedure/Evidence/Discovery update.

These cases represent about 10% of the civil cases currently under review by the Court.

Update: Oral argument in Ameron has been continued to the September 2010 calendar.

 

Solicitor General Elena Kagan Nominated for Supreme Court

By Kirk Jenkins on Posted in Federal, Supreme Court Vacancy

This morning, President Obama announced that Solicitor General Elena Kagan is his nominee to succeed retiring Justice John Paul Stevens on the Supreme Court. The President had this to say about his nominee:

Elena is widely regarded as one of the nation’s foremost legal minds. She’s an acclaimed legal scholar with a rich understanding of constitutional law. She is a former White House aide with a lifelong commitment to public service and a firm grasp of the nexus and boundaries between our three branches of government.

The President praised Kagan’s “fair-mindedness and skill as a consensus-builder,” and noted that during her time as Solicitor General, “she has won accolades from observers across the ideological spectrum for her well-reasoned arguments and commanding presence.”

In her remarks, Kagan called the Supreme Court “an extraordinary institution in the work it does and in the work it can do for the American people by advancing the tenets of our Constitution, by upholding the rule of law, and by enabling all Americans, regardless of their background or their beliefs, to get a fair hearing and an equal chance at justice.”

She also spoke of her passion for the law:

Because law matters; because it keeps us safe; because it protects our most fundamental rights and freedoms; and because it is the foundation of our democracy.

The full text of President Obama’s and Solicitor General Kagan’s remarks are available at the White House website.

Reactions to the Kagan nomination are beginning to come in from the Senate, including three members of the Senate Judiciary Committee: Chairman Patrick Leahy, Senator Amy Klobuchar and Senator Orrin Hatch, as well as Senate Republican Leader Mitch McConnell.

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

By on 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 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.

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