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THE JOURNAL OF THE LITIGATION SECTION, STATE BAR OF CALIFORNIA

Volume 26 • Number 1 2013

Lisa Cappelluti

Editorial OpinionSection UpdateBy Lisa Cappelluti

This journal is presented toyou by the State Bar’s Liti-gation Section. The Section

was established in 1983 to promoteand further develop educational pro-grams for new and experienced prac-titioners across the state of Cali-fornia. Our voluntary membershipassociation is comprised of a verydiverse group of professionals with ashared interest in the betterment ofthe profession through current edu-cational programs and State Baractivities. Last year, in 2012, a total of9,200 attorneys enrolled as membersof the Litigation Section and, as yournew incoming Chair of the ExecutiveCommittee, I am hoping to reach10,000 members in 2013.

The Section is led by the Liti-gation Executive Committee com-posed of 15 experienced attorneys

and an Advisory Panel of esteemedjudges and past members. The Ex-ecutive Committee organizes andproduces continuing education pro-grams and seminars, provides recog-nition to outstanding attorneysthrough its Annual Trial Lawyer Hallof Fame Award, provides outreachand training for new lawyers, andservice to the greater community byassisting in the collection of profes-sional clothes for job-hunters inneed.

Our Section is actively involvedthroughout the year developing andproducing litigation education foractive and experienced practitioners,and assisting and mentoring newpractitioners. For the last four yearswe have presented Coaching for theNew Practitioner, a seminar de-signed to teach new attorneys all the

ins and outs of the courtroom. Wehave been honored to have severaljudges as presenters for this seminarincluding Judges James P. Kleinberg,Winifred Smith, Lawrence W. Crispo,Victoria Chaney, James L. Warren,Harold Kahn, and Elizabeth Fefferfrom Los Angeles and San Francisco.Coaching for the New Practitionerwill be held again this year in bothNorthern and Southern California.

The following programs were pre-sented by the Litigation Section atthe 2012 State Bar Annual Meeting:

• Negotiating and DraftingEffective ADR Agreements.

• ADR Update: Arbitration andMediation Legal Developments.

(Continued on Page 48)

California Litigation Vol. 26 • No 1 • 2013

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Inside Editorial Opinion:Section UpdateBy Lisa Cappelluti

2 Letters to the Editor

3 Editor’s Foreword:The Way We Litigate Now?By John Derrick

4 Warning:The Internet May Contain Traces of Nuts(Or, When and How to Cite to Internet Sources)

By Paul J. Killion

9 A Fresh Approach for a New DayBy Judge Steven Jahr, Director, Administrative Office of the Courts

15 To Cite or Not to Cite? That Is the QuestionCiting Unpublished Decisions in CaliforniaState and Federal Courts

By Benjain G. Shatz and Emil Petrossian

21 Bring Your Own Court ReporterBy Robert Cooper

25 Judicial Discretion Advised:A Critique of California’s Per Se DisqualificationRule in Concurrent Representation Cases

By Mark T. Drooks and Jessica S. Chen

30 An Unresolved Issue:Article III Standing for Statutory Damages

By Michael A. Geibelson and Joel A. Mintzer

35 Ninth Circuit Attorney Fee Awards & De Novo ReviewBy Audra Ibarra

39 New Lawyers:The New Trial Lawyer

By Neil Berman

41 ADR Update:California Arbitration in the Wake of Concepcion

By Paul J. Dubow

44 “I Learned about Litigating from That”The Corporate Crack

By William M. Shernoff

46 McDermott on Demand: Book ReviewThe Partisan: The Life of William RehnquistReviewed By Tom McDermott

THE JOURNAL OF THE L IT IGAT ION SECT ION, STATE BAR OF CAL IFORNIA

Volume 26 • Number 1 2013

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I just finished reading “Id., Ibid. And All thatStuff: What You Always Wanted to Know ButNever Dared to Ask” published in “California

Litigation, November 2012 issue. Whew! I hope I prop-erly copied and quoted this title! If not, to theCalifornia Style Manual (“CSM”) I will direct myself.

Your article is great. I plan to photocopy it and tapeit to the window near my office computer. I am a longpracticing attorney (admitted in 1978) and am caughtbetween the Blue Book and the CSM every time I file apleading or brief. Yee gads, is a pleading a brief?Please don’t judge me harshly; the holiday season cre-ates legal writing skills self-doubt.

Anyway, your article wedged beneath the other finewriters’ diatribes/reassurances about the brutality ofour court budget cuts and the breast beating of finejurists about the horrors that await for lack of enoughmoney to buy 1985 style court services in the future,was like an oasis in the desert. My immediate reactionwas: I can use this!

So, to close and not waste your, my, or theInternet’s resources, I send you a thank you which isdirect and sincere. Man the barricades of proper legalcitation. We owe it to Fitzgerald, Hemingway, andWilliam Boyd (a favorite British author). Excellencecan be delivered even by the poor, non-BMW drivingattorneys in California who recognize that doing itright matters. Proper citations read by an overbur-dened trial judge are a bit of Mozart in the samedesert from whence your citation pearls haveappeared. I plan to do better.

Very truly yours,

Laurie ButlerSanta Monica Attorney

Editor’s response: Many thanks, Laurie. Actually,you didn’t quite cite it correctly, but we’ll forgiveyou. There has even been talk of having the Liti-gation Section laminate that article and make it ahand-out at events. We shall see. William Boyd is,indeed, an excellent author. I recommend An IceCream War and A Good Man in Africa to get start-ed. By the way, we would like to publish morereaders’ letters — and they need not all be onessinging our praises. Best to email them to me at:[email protected].

Letters to the Editor

EDITORIAL BOARDJohn Derrick Santa Barbara, Editor-in-Chief

Stan Bachrack, Ph.D. Los Angeles, Managing EditorSharon J. Arkin Los Angeles

Winnie Cai GoletaPaul Chan Los Angeles

Thomas C. Corless Los AngelesKathryn M. Davis Pasadena

Paul J. Dubow San FranciscoSaji Dias Gunawardane Santa Barbara

Russell Leibson San FranciscoThomas J. McDermott, Jr. Palm DesertHon. Wm. F. Rylaarsdam Santa Ana

Jill Jackman Sadler Paralegal SupportBenjamin G. Shatz Los Angeles

Hon. Helen Williams San JoseSusan E. Anderson Wise Long Beach

Joan Wolff San Francisco

LITIGATION SECTION EXECUTIVE COMMITTEELisa M. Cappelluti San Francisco, ChairRobert M. Bodzin Oakland, Vice Chair

Carol D. Kuluva Los Angeles, TreasurerReuben A. Ginsburg Los Angeles, Secretary

Michael A. Geibelson Immediate Past ChairFarzaneh Azouri Woodland HillsKathleen Brewer Westlake Village

David P. Enzminger Los AngelesEric P. Geismar Northridge

Ruth V. Glick BurlingameJ. Thomas Greene San Francisco

Jewell J. Hargleroad HaywardRhonda T. Hjort San FranciscoMegan A. Lewis Sacramento

Karen J. Petrulakis OaklandWilliam Seligmann Santa Cruz

Michael R. Sohigian Los AngelesEdward A. Torpoco San Jose

Donald W. Barber Whittier, AdvisorCharles Berwanger San Diego, Advisor

Paul Chan Los Angeles, AdvisorJustice Victoria Chaney Los Angeles, Advisor

Hon. Lawrence W. Crispo (Ret.) Pasadena, AdvisorTanja L. Darrow Los Angeles, Advisor

Hon. J. Lynn Duryee San Rafael, AdvisorElizabeth A. England San Francisco, Advisor

Michael Fabiano San Diego, AdvisorTerry Barton Friedman Santa Monica, Advisor

Hon. J. Richard Haden (Ret.) San Diego, AdvisorKevin J. Holl San Francisco, Advisor

Jamie A. Jacobs-May San Jose, AdvisorMark A. Mellor Riverside, Advisor

Eileen C. Moore Santa Ana, AdvisorBradley A. Patterson Irvine, Advisor

Hon. Ronald S. Prager San Diego, AdvisorNorm J. Rodich Irvine, Advisor

Jerome Sapiro, Jr. San Francisco, AdvisorHon. J. Richard Haden (Ret.) San Diego, Advisor

Hon. James P. Kleinberg San Jose, AdvisorHon. Ronald S. Prager San Diego, Advisor

e. robert (bob) wallach San Francisco, AdvisorHon. James L. Warren (Ret.) San Francisco, Advisor

Joan Wolff San Francisco, AdvisorMitch Wood Section CoordinatorAna Castillo Administrative Assistant

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Copyright 2013, State Bar of California

The opinions contained in this publication are solely those of thecontributors.

California Litigation is pleased to review original articles submittedfor publication. Articles should be 1,000-2,000 words. Please submitproposed articles – and Letters to the Editor – to John Derrick, [email protected].

To subscribe:California Litigation is mailed free to all members of the Litigation

Section of the State Bar of California. To join the Litigation Section, sendyour name, address, telephone number, and State Bar membershipnumber to Litigation Section, State Bar of California, 180 HowardStreet, San Francisco, CA 94105-1639. Section dues are $75 per yearand should be enclosed with the enrollment information.

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T he front cover of this issuedraws on a few articles inthis edition, at least a cou-

ple of which reflect the way we liti-gate now. There’s a judge gazing at aWikipedia screen. Lawyers andjudges can and do cite to Wikipedia,but the trick is to know (a) when it’sa good idea to do so and when it isn’t,and (b) how to do it, if that’s whatyou want to do. Paul Killion’s articlediscusses that, and also delves intowider questions about when it is ap-propriate to cite to Internet sourcesfor authority, in general, and thelogistics of so doing.

Another detail in Peter Siu’s coverillustration is the advertisement onthe courtroom wall offering commer-

Petrossian explain.As the table of contents shows, by

no means everything in this issue inhinted at in the front cover illustra-tion. For example, following on fromsome articles in the last issue, and, inparticular, one that was very criticalof the Administrative Office of theCourts, that entity’s Director, JudgeSteven Jahr, gives his perspective onthe state of the judicial branch. Allthat plus more — including the latestin our “I Learned About LitigatingFrom That” and “New Lawyer”columns, as well as the first in a regu-lar ADR Update column.

Editor’s ForewordThe Way We Litigate Now?By John Derrick

cial court reporter services for law-yers needing to make a record. Notlong ago, that would have been utterlyfanciful. Today, that is less so — LosAngeles, the largest county in thestate, has discontinued court-provid-ed reporter services for most civil pro-ceedings, so the age of BYOR (“bringyour own reporter”) is upon us. Andmaybe, indeed, advertisements incourthouses could help bridge budgetgaps. I’d need to think about that one.Anyway, this change in the the logis-tics of the way we litigate raises abunch of issues. Robert Cooper’s arti-cle examines them.

Then, on the floor, is a wastepaperbasket for unpublished opinions. Butdon’t be in too much of a hurry toconsign those to the trash. Aside fromtheir intrinsic use as research tools,the rules about citing to them are a lit-tle more tricky than you might imag-ine, as Benjamin Shatz and Emil

John Derrick


John Derrick, the Editor-in-Chief of thisjournal, is certified by The State Bar ofCalifornia Board of Legal Speciali-zation as a Specialist in Appellate [email protected]

4

Warning:The Internet May Contain Traces of Nuts

(Or,When and How to Cite to Internet Sources)

By Paul J. Killion


The Internet is so prevalent it is easyto forget that it only became accessi-ble to the general public in 1995.

Based on a Westlaw search for “http,” thefirst citation to the Internet found in any pub-lished appellate decision in the United Statesappeared the next year, in a dissenting deci-sion by Justice Sandstrom of the NorthDakota Supreme Court. (Wishnatsky v.

Bergquist (N.D. 1996) 550 N.W.2d 394, 404[Sandstrom, J., dissenting].)

A month later, the first Internet citationused in any federal appellate case appeared ina concurring opinion by United StatesSupreme Court Justice David Souter. (Den-ver Area Educ. Telecomm. Corporation,

Paul J. Killion

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Inc. v. FCC (1996) 518 U.S. 727, 777, fn. 4[Souter, J. concurring].) The first Californiadecision to cite to the Internet was a 1998decision authored by Justice Haller of theFourth District, Division One. (In re Mar-riage of Shelstead (1998) 66 Cal.App.4th893, 905.)

Of the Internet citations in those earlydecisions, only two of the sources remainavailable. Justice Sandstrom’s citation is stillavailable, though it takes several steps in nav-igating the site to find the information (it wasa citation to the North Dakota State Uni-versity bookstore to show that its hours werepublicly available). (See Wishnatsky, supra,550 N.W.2d at p. 404.) The first of JusticeSouter’s two Internet citations is still avail-able (a USA Today article). (See DenverArea, supra, 518 U.S. at p. 777, n. 4.) ButJustice Souter’s second citation (to a technol-ogy news article) has morphed into anentirely new Web site. (Ibid.) And JusticeHaller’s citation (to a Department of Laborguideline) now results in a “page not found”message. (See In Re Marriage of Shelstead,supra, 66 Cal.App.4th at p. 905.)

These three cases illustrate both the prob-lem and the challenge in citing to theInternet — it is an impermanent source ofinformation. Web pages change frequently. Infact, Web designers stress the need for con-stant updating to attract search engines. Addto that the problems associated with commu-nity-edited sites like Wikipedia, and the relia-bility of information on the Internet can raisesignificant questions. As one comic quipped:“Information on the Internet is subject to thesame rules and regulations as conversation ata bar.”

Nonetheless, the Internet remains a pre-dominant, if not the predominant, source ofinformation for most Americans today andappellate courts do not ignore this reality. Infact, despite the imperfections, to dateInternet sources have been cited over 630

times in California appellate decisions, andover 3,600 times in federal appellate ones(based on the same “http” search). While notall these cases actually rely on the Internetsources they cite, many do.

Given this reality, when is it appropriate tocite an Internet source in an appellate brief inCalifornia? And what form should the citationtake?

When is it Appropriate— to Cite to Internet —Sources for Authority?

The answer is not “never.” UnderCalifornia Evidence Code section 452, subdi-vision (h), a court may take judicial notice of“facts and propositions that are not reason-ably subject to dispute and are capable ofimmediate and accurate determination byresort to sources of reasonably indisputableaccuracy.” Furthermore, a “reviewing courtmay take judicial notice of any matter speci-fied in Section 452” (Evid. Code, § 459, subd.(a)), although under Rule 8.809 of theCalifornia Rules of Court, a party must file aformal motion in the appellate court to obtainjudicial notice. Information from the Internetcan satisfy the judicial notice requirements,as California courts have recognized. (See,e.g., In re Crockett (2008) 159 Cal.App.4th751, 762, fn. 6.)

Under the Federal Rules of Evidence, afederal court can take judicial notice of anadjudicative fact that is “not subject to rea-sonable dispute because it: (1) is generallyknown within the trial court’s territorial juris-diction; or (2) can be accurately and readilydetermined from sources whose accuracycannot reasonably be questioned.” (Fed.Rules Evid., rule 201(b).) As the Ninth Cir-cuit bluntly stated, this rule has equal appli-cation to the Court of Appeals: “[I]t is non-sense to suppose that [the Court of Appealsis] so cabined and confined that [it] cannot

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exercise the ordinary power of any court totake notice of facts that are beyond dis-pute…An…appeals court could not functionif it had to depend on proof in the record” ofsuch facts. (Singh v. Ashcroft (9th Cir. 2004)393 F.3d 903, 905-06.)

A particular hurdle for taking judicialnotice of Internet information is the require-ment under both California and federal judi-cial notice rules that the fact or propositionbe capable of immediate and accurate deter-mination from sources of reasonably indis-putable accuracy. (See Evid. Code, § 459,subd. (a); Fed. Rules Evid., rule 201(b).) Asillustrated at the start of this article, Websites can and do change, sometimes frequent-ly, leaving the information no longer available.

Unavailability can be the result of any of anumber of causes, including: (1) the Internetcontent has evolved into something differentfrom that originally cited; (2) the content hasmigrated to a new location; (3) the contenthas vanished from the Internet; (4) the sitenow requires subscriptions or passwords foraccess; or (5) the original citation was simplyincorrect because it contained spelling, typo-graphical, transcription, or editing errors.(See Barger, On the Internet Nobody KnowsYou’re A Judge: Appellate Courts’ Use ofInternet Materials (2002) 4 J. of App. Prac.& Process 417, 439-445.)

Many of the citation problems with chang-ing Web sites can at least be contained byproviding information in the citation as to thedate the author accessed the Internet source.Both the Bluebook and California StyleManual require that citations provide thedate the material was accessed. (See Cal.Style Manual (4th ed. 2000) § 3:15, p. 109;The Bluebook; A Uniform System of Citation(19th ed. 2010), § 18.2.2(c).) Older Internetpages can sometimes be accessed at sitessuch as archive.org, which has an Internetarchive “Wayback Machine.”

In sum, those who use the Internet for

research (whether legal or nonlegal) shouldapply the same evaluation criteria to thesources they select as they would to moretraditional media, satisfying themselves that(1) the material has been written or pub-lished by an authoritative entity or person;(2) the material has been subjected to someform of peer review or editorial oversight toensure its accuracy and currency; and (3) thematerial is stable and likely to remain accessi-ble using the same citation the author used inoriginally visiting the site.

— Use of Wikipedia —Wikipedia deserves separate discussion

because it is so broadly used. Wikipedia is acommunity-written Web site and, like manyInternet resources, it contains an importantgeneral disclaimer: “Wikipedia makes noguarantee of validity.” Wikipedia further ad-vises that “[t]he content of any given articlemay recently have been changed, vandalized,or altered by someone whose opinion doesnot correspond with the state of knowledgein the relevant fields.”

Perhaps due to its questionable reliability,neither the United States Supreme Court northe California Supreme Court has ever citedto a Wikipedia article. (See Horvitz & Levy,Like SCOTUS, the California SupremeCourt eschews citations to Wikipedia, AtThe Lectern Blog, (posted June 19, 2012)[hereafter Like SCOTUS].) Nonetheless, anddespite Wikipedia’s disclaimer, as of August2012, nine published and 31 unpublishedopinions from the California Courts of Appealhad referenced Wikipedia, including manywhich cited Wikipedia as authority for aproposition. (See also Like SCOTUS, supra;Derrick, On Citation to Wikipedia (& OtherThings) (2010) California Litigation, vol. 23,No. 2, pp. 5-7.) A recent search of federalcases referencing Wikipedia and judicialnotice “reveals about five attempts by liti-gants to cite [Wikipedia] per year and about a

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50 percent success rate.” (Stephanian, Ju-dicial Notice.Net (Spring 2012) ABASection of Litigation Magazine, at p.4.)

In a 2010 article examining the use ofWikipedia in federal appellate decisions, theauthor divided cases into the following cate-gories based on how Wikipedia was used: (1)to support quips; (2) to fill non-controversialgaps in the record, such as in pro se civilrights cases, police investigation backgroundin criminal evidence suppression hearings,and examiner findings in social securitycases; and (3) to resolve disputed factualcontentions. (Gerken, How Courts UseWikipedia (2010) 11 J. of App. Prac. &Process 191, 193-201.) With regard to thelast category, the author was very critical ofcourts that relied on Wikipedia to resolve dis-positive factual disputes. (Id. at p. 201[“When Wikipedia is adduced to decide thematerial facts…, the roles of the participantsmay be seriously compromised.”)

In California, some courts have treatedWikipedia as a reliable source. (See, e.g.,DVD Copy Control Assn. v. Kaleidescape,Inc. (2009) 176 Cal.App.4th 697, 738 [citingWikipedia as authoritative for the originalmeaning of the expression “a pig in a poke”];In re Carleisha P. (2006) 144 Cal.App.4th912, 920 & fn. 5 [citing Wikipedia and therelated Wiktionary for definitions of “ammu-nition”]; see also O’Grady v. Superior Court(2006) 139 Cal.App.4th 1423, 1433 [describ-ing Wikipedia as “a well-known cooperativeencyclopedia”]; Patel v. Shah (2004) 2004WL 2930914, *5 [nonpub. opn.] [citingWikipedia for meaning of “simple majority”];but see Gerken, supra, at pp.201-02 [criti-cizing Patel decision for using Wikipedia asauthority to resolve a contested contractissue in the case].)

But other California courts have raisedserious reservations about Wikipedia’s relia-bility. (In re Marriage of Lamoure (2011)198 Cal.App.4th 807, 826 [“We do not consid-

er Wikipedia a sufficiently reliable source”];People v. Moreno (2009) 2007 WL 2998986,*2, fn. 2 [nonpub. opn.] [“Wikipedia, althoughuseful in many other contexts, is not a recog-nized source for determining legislative in-tent”].) The Third District was especially crit-ical in a 2009 unpublished case, In re S.G.:“Appellant’s only sources in support of hercontention are Wikipedia articles on federallyrecognized tribes and the Apache. We are notpersuaded. Articles in the online encyclope-dia Wikipedia can be edited by anyone at anytime. Unsurprisingly, any article at any timemay contain factual errors, and can becomevery unbalanced. We conclude Wikipedia isnot a sufficiently reliable source upon whicha court can determine whether a tribe shouldbe notified pursuant to the [Indian ChildWelfare Act].” (In re S.G. (2009) 2009 WL875510, *4 [citations omitted] [nonpub.opn.].) (See generally Badasa v. Mukasey(8th Cir. 2008) 540 F.3d 909, 910 [reversingdecision of Board of Immigration Appeals forfinding Immigration Judge’s reliance onWikipedia to be only harmless error; verycritical of Wikipedia as a reliable source].)

Given the controversy, before citing Wiki-pedia it is best to ask:

• How critical is the fact to the outcome?If the fact is critical, a simple citation toWikipedia is probably insufficient and formaljudicial notice is likely required. (See Cal.Rules of Ct., rule 8.809.)

• Is the fact disputed? If so, bear in mindthat the reliability of Wikipedia can be easilyattacked.

• How reliable is the Wikipedia article? Forexample, has it been edited frequently? Arethe edits substantial? Are the edits contro-versial? Does the article contain mainly factsor mainly opinion? Does the article cite rep-utable sources?

Like any Internet resource, Wikipediamust be cited carefully and with full under-standing that it may not be a reliable source.

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— How to Cite —to Internet Sources

The most current edition of the CaliforniaStyle Manual (now 12 years old) providesonly modest guidance regarding direct cita-tion to Internet sources. (See Cal. StyleManual (4th ed. 2000) § 3:15, pp. 108-09.)The current Bluebook (2010 edition) pro-vides substantially more guidance. (SeeBluebook, supra, Rule 18, §§ 18.1-18.5, pp.165-173.) The Bluebook explains that “[a]ninternet source may be cited directly when itdoes not exist in a traditional printed formator when a traditional printed source…existsbut cannot be found or is so obscure that it ispractically unavailable.” (Bluebook, § 18.2.2,p. 166.) It cautions: “All efforts should bemade to cite to the most stable electroniclocation available.” (Ibid.)

The California Style Manual does providethe following official directions for citation toInternet sources: “[P]rovide as much of theUniform Resource Locator (URL), in angledbrackets (< >), as is necessary to facilitatelocating the material on the Web site, and thedate the material was read or downloadedfrom the Internet site, which is signaled inparentheses (or brackets if the citation as awhole is parenthetical) by the phrase ‘as of’in conjunction with the date.” (Cal. StyleManual, § 3:15, p. 109.) The Manual alsogives a useful tip: “If necessary a URL may bedivided between lines at any ‘/’ in theaddress.” (Ibid.) This avoids strange linebreaks in the text created by lengthy URLsthat word-processing programs read as one,long word.

In sum, the official California citation formfor an Internet source requires the followingattributes:

• The URL must be provided in angledbrackets (< >).

• The date the material was read or down-loaded must be provided, signaled in paren-

theses (or brackets where appropriate) bythe phrase “as of.”

The Bluebook provides some additionaltips in presenting direct citation to Internetsources:

• Look to see if the source has a certificateor logo indicating that a governmental entityhas verified that the document is completeand unaltered (e.g., official government Websites containing regulations). (Bluebook,supra, § 18.2.1(a)(i).)

• When available, provide the author infor-mation. (Id. at § 18.2.2 (a).)

• If available, the date of the material citedshould be provided (as it appears on theInternet site), not the date the site was visit-ed. If the material is otherwise undated, thedate the Web site was last visited should beplaced in a parenthetical after the URL. (Id.at § 18.2.2 (c).)

• Blogs and other dynamic sites that areupdated frequently should include a time-stamp, in addition to the date, whenever pos-sible. (Id. at § 18.2.2 (c).)

• The URL should point the reader directlyto the source cited rather than interveningpages or links. (Id. at § 18.2.2 (d).)

• Where a document is available both inHTML format and in a widely used formatthat preserves pagination of the printed work(e.g., Adobe’s PDF format), “the latter shouldalways be cited in lieu of an HTML docu-ment.” (Id. at § 18.2.2 (e).) A pinpoint cita-tion to the location cited within the PDF ver-sion should be included. (Id. at § 18.2.2 (f).)

Finally, Internet citations in a brief shouldbe carefully reproduced and then confirmed.The easiest method is to simply cut and pastethe citation into a Web browser.

Paul J. Killion is a partner with Duane MorrisLLP in the firm’s San Francisco office. He is acertified appellate specialist with the State Barof California Board of Legal Specialization.

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Ihad been retired for three years afterserving 22 years on the bench in ShastaCounty, when I received a phone call last

summer asking about my interest in be-coming the state’s fifth director of the Ad-ministrative Office of the Courts (AOC).

During those three years, I had observedwith dismay the growing criticism of theJudicial Council of California — created 87years ago in the state’s constitution as thepolicy-making body for California’s judicialbranch — along with its staff agency, theAdministrative Office of the Courts.

Since the mid-1990’s, the Judicial Councilhas been in the forefront of reform for ourbranch, sponsoring the landmark laws whichtransferred trial court operations fundingfrom the counties to the state, and which uni-fied the superior and municipal courts withineach county to more efficiently deploy limit-ed court resources. The Judicial Council suc-ceeded in championing these reforms in theface of vigorous opposition. Had thosereforms failed, the five-year recession with

A Fresh Approachfor a New Day

By Judge Steven Jahr, Director, Administrative Office of the Courts


Hon. Steven Jahr

10

which we have been grappling would havebeen much more destructive of the courts’capacity to serve the public.

Under the council’s leadership during thatperiod, access for all Californians to theircourts was improved by the creation of self-help centers for court users who increasinglyrepresent themselves, by the development ofa family law facilitator program, by the expan-sion of access to child support services infamily courts, and by the adoption of moreuniformity in the civil rules of court, ensuringthat California attorneys who practice in mul-tiple counties did not routinely encounter in-consistent procedures from county to county.The council fostered expansion of court inter-preter programs statewide, and it placed sig-nificant emphasis on judicial and staff educa-tion and training to ensure equal access andfairness for all court users, regardless of gen-der or ethnicity. It was the council thatbrought reforms to the jury summoning pro-cess, reducing considerably the burden onour citizens.

But as I watched, those achievements wereovershadowed by criticisms that the counciland the AOC had become overly bureaucraticand non-responsive to the needs of thecourts. I heard those criticisms even from col-leagues in my former court, which had longsupported the reforms and initiatives of thecouncil.

But something else caught my attention aswell.

It was the efforts of our new Chief Justice,Tani G. Cantil-Sakauye, who had assumed of-fice at the very moment when the confluenceof criticisms inflamed public discourse aboutour courts. She took the helm firmly andwithout hesitation, calling for a period of pub-lic self-assessment, and of reform.

It was the Chief Justice who formed theStrategic Evaluation Commission (SEC) tomake a top-to-bottom assessment of theoperations of the AOC. She appointed newadvisory groups to oversee the courthouseconstruction and facilities maintenance pro-grams and the troubled case management

program. And while the SEC process wasongoing, it was the Chief Justice who autho-rized the Interim Administrative Director ofthe AOC, Jody Patel, immediately to initiatereform processes, including downsizing theAOC from 1100 staff to 800, in order to meetcrushing budget reductions.

So when I was asked to serve, I said yes,because I have a stake in all of this. Let meexplain.

Before my wife and I moved from a Wil-shire Boulevard law practice in Los Angelesto Redding in 1980, we had practiced in thecourts in many Southern California counties.Then, in Northern California, I had the samekind of exposure to court functions and prac-tices in several counties. From these experi-ences, both north and south, urban, subur-ban, and rural, I saw the sharp disparities inservice between courts and in the accessthese largely isolated, uncoordinated institu-tions afforded the public we all serve.

When I was first appointed to the bench in1986, I became involved in court administra-tion at the local and state levels, serving asour superior court’s presiding judge for fouryears and on the board and as vice-presidentof the California Judges Association. In themid-1990’s, former Chief Justices MalcolmLucas and Ronald George appointed me tochair budget committees supporting a trialcourt funding reform movement that even-tually led to state trial court funding. Later, Iserved a three-year term on the JudicialCouncil, chairing its Rules and Projects com-mittee. My term ended in 2001, at whichpoint I focused the balance of my career onassignments in my court’s felony department,our drug court, our family department, andthen concluded by a return to my civilassignment.

I have a stake in all this because I haveseen, from the perspectives of law practiceand judging, from north to south, rural tourban, how crucial to the individual effective-ness of each court the coordinated supportand uniform policy-making role of the JudicialCouncil has proven to be.

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— The Judicial Council —is a Representative Body

The Judicial Council’s constitutional com-position ensures that the broad range of view-points and experience in the branch arereflected, and its structure is designed to pro-mote equivalent consideration of the needs ofall the courts, regardless of where they are

situated, so that access to justice for all citi-zens is uniform throughout the state.

California’s Judicial Council structure canbe contrasted with the dominant modelthroughout our country, in which a state’ssupreme court makes the statewide rules andsets the statewide policies. Whereas a statesupreme court is composed of a small num-ber of justices who do not necessarily have

trial court experience, our constitutionrequires that voting members of the JudicialCouncil include not only the Chief Justice, itschair, and one other supreme court justice,but three justices from the courts of appeal,and ten superior court judges. All are select-ed by the Chief Justice following a statewideapplication and vetting process. In addition,four attorney members are appointed by theState Bar Board of Governors, and one legis-lator is selected by each house of theLegislature. Importantly, court executivesand others also sit as non-voting advisorymembers.

It is vital to understand that while themembership ensures that a breadth of experi-ence and perspectives is brought to the table,the members must bring a statewide perspec-tive. If they didn’t, the council would quicklydegenerate into a fragmented body and politi-cize the branch, disadvantaging citizens injurisdictions whose courts could not success-fully “compete” in such a forum.

Debates within the judicial branch aboutadministration, especially when it involves thenatural tension between local court autonomyand statewide uniformity in practices or poli-cies, have been ongoing for decades. Not sur-prisingly, the expression of differing view-points on this topic became more pointed asthe branch experienced disabling budget cutsover the past few years. Those differentpoints of view are on full display at JudicialCouncil meetings these days, as I haveobserved. The Chief Justice makes sure aboutthat.

— Self-Assessment: Taking —a Hard Look at Ourselves

One of the first things the Chief Justice didwhen she took office was to survey the judgesaround the state about the operations andeffectiveness of the AOC. When I had servedon the Judicial Council, it was my view — andstill is — that the AOC is the staff agency tothe Judicial Council and, as such, has theduty to provide customer service to the coun-cil, the courts, and ultimately the public.

‘While no one disputed the

need for improved case

management systems within

the trial courts, controversy

arose over the statewide

California Court Case

Management System

(CCMS) initiative.’

12

But that was not the perception communi-cated to the Chief Justice. It prompted her toform the SEC. And when that committee pro-vided its report to the Judicial Council morethan a year later, some thought that the coun-cil would sweep the report under the prover-bial rug. To the contrary, the report was pub-lished for all to see. Some predicted that thecouncil would reject the report’s 150 recom-mendations for reform. To the contrary, thecouncil adopted almost all of them. And theChief Justice promptly appointed as addition-al Judicial Council members three of themembers of the SEC, including its chair andvice-chair.

The council, in adopting the recommenda-tions, established directives to me, as directorof the AOC, and timelines for completion. Wein the AOC have developed a reportingprocess for regular updates to the councilregarding our progress, which can be trackedat the California courts Web site. As ofJanuary 2013, roughly one-third of the direc-tives have been fully implemented over whatis expected to be an 18-month process,including the implementation of a completeoverhaul of the executive management struc-ture of the agency, which I firmly supported.

In addition, the council has provided for areview process so that our restructuring workand reporting can be independently verifiedby its members.

— Fresh Leadership —on the Judicial Council

In my new position, I have already partici-pated in a handful of Judicial Council meet-ings and have witnessed the interaction andinvolvement of council members. The Chief’sinfluence is plain. There is open and free dis-cussion and debate.

And in keeping with her insistence on self-assessment and the reassertion of council re-sponsibility for the work of the AOC, themembers have established active oversight ofAOC implementation of council policies.

These days, at each council business meet-

ing, public comment is permitted andencouraged.

The number of council meetings was in-creased from six to 12 in 2012. And the mem-bers are engaged. The significant demands ontheir time of their “day jobs” have not stop-ped them from preparing carefully to fullydischarge their duties as council members.

At present, the council is in the midst of afirst ever top-to-bottom assessment of all itsadvisory committees, task forces, and work-ing groups established through the years toassist the council in its work, with a view toreorganizing and making more effective thosegroups, and placing oversight for their activi-ties directly with the council.

— California Court —Case Management System

While no one disputed the need for im-proved case management systems within thetrial courts, controversy arose over the state-wide California Court Case Management Sys-tem (CCMS) initiative.

I confess little first-hand knowledge of thedevelopment of CCMS, since it began aftermy term on the Judicial Council ended andwas terminated by the Judicial Councilmonths before I was hired as administrativedirector for the AOC.

I do know that the program was controver-sial in my former court. There was a sensethat a distant authority was dictating thedesign and implementation of an unknownproduct, which would compel replacement ofour local integrated case management systemthat had served our court and justice systemstakeholders well for years, even as it wasgetting long in the tooth.

Late in the development, of CCMS, howev-er, I attended a council-led regional demon-stration of the capabilities of the final versionof CCMS, known as V4, after my retirement.Afterwards, I learned that trial court repre-sentatives — judges and court personnel —were involved in the development of the sys-tem and that my former court’s administra-

13

tive staff had come to embrace the prospectof its future deployment there.

Shortly after the Chief Justice took office,the State Auditor issued a report stronglycriticizing CCMS and its costs. In response,the Chief Justice appointed a council commit-tee, which included representatives of our

trial courts, to oversee and bring the CCMSproject to completion, which they did. Butthe die was cast. The projected initial costs ofrolling out V4 into trial courts were much toohigh in the environment of the state’s fiscalcrisis. The council voted to terminate deploy-ment in the spring of 2012.

Fortunately, earlier versions of CCMS con-cerning the subjects of traffic (V2) and vari-ous civil case types (V3) had been deployedin trial courts, which were willing to serve aspilot program platforms. In fact, today fully25% of civil cases are processed in California

using V3. The systems for those pilot courts,essential to their operations, are being fullysupported by the AOC’s InformationTechnology Services Office. But new deploy-ments have ended and the final comprehen-sive version of CCMS is mothballed.

Now the council, through its newly createdinternal technology committee, is workingcollaboratively with the courts to create astatewide business plan for case managementtechnology to develop a process by whichadequate state funding can be restarted toenable the organized replacement of aging,unsupported individual court systems. JudgeJim Herman of Santa Barbara Superior Courtis heading up that effort.

— Courthouse Construction —In 2002, responsibility for construction,

maintenance and management of California’strial court facilities became a state responsi-bility, delegated to the Judicial Council.

Since that program was developed, ninenew court facilities have been designed andconstructed, all on budget. Many more are inthe design and land acquisition phases,although there has been a significant slow-down in progress as the Legislature andGovernor have redirected construction rev-enue streams during the last three budgetyears to instead support court operations.

As soon as she took office, the Chief Jus-tice took measures to put the council moredirectly in charge of the construction pro-gram. She appointed the Court FacilitiesWorking Group — comprised of justices,judges, attorneys, architects, and other sub-ject matter experts. Justice Brad Hill wasinstalled as chair. The working group initiatedan audit of the construction program byPegasus Global Holdings, an international ex-pert in construction programming. The auditcalled for specified improvements in the man-agement of our construction program.

The working group, through a cost-reduc-tion subcommittee, is conducting an exhaus-tive review of all planned projects. So far, theworking group and council have identified

‘The Chief Justice

has made it clear

that she believes

self-assessment is

the duty of all

public officials.’

14

construction savings of about $116 million.In the meantime, I recommended that

function and oversight would improve if theAOC’s facilities division was split into twooffices, one for construction projects, and onefor maintenance and property managementactivities. The council adopted thatrecommendation.

The nature of court facilities requires pro-vision of extensive security measures for themembers of the public, as well as secure cir-culation and holding areas for prisoners. Thismeans that the cost of constructing propercourthouses — like the cost of building hospi-tals — is considerable. With the experienceobtained from construction of an initial gen-eration of courthouses, the working groupand the AOC are now also focusing on sys-tematizing methods to compress the time andcosts involved in preconstruction processesso that we can build future courthouses at alower cost.

A separate working group, comprised ofjudges and court executives, has been estab-lished by the council to address the AOC’sprogram for maintaining all existing court-houses in the state. That oversight activityhas included an auditing process, which willsoon be concluded, in keeping with theChief’s program of vigorous self-assessmentand improvement.

— Moving the Branch Forward —The Chief Justice has made it clear that

she believes self-assessment is the duty of allpublic officials. She believes the branch isuniquely suited to exercise this duty becauseour core strength as a branch is to problem-solve, to collect the evidence, to assess theevidence with care and deliberation, and thento decide. I support her view whole-heartedly.

In addition to my responsibilities to imple-ment the council directives flowing from theSEC recommendations, my duties include ourmost important issue: the budget for the judi-cial branch.

The cost to the taxpayers of running theentire judicial branch represents just 2.1% of

the state’s budget. Increasingly, the budgetfor the courts has been supported by user fil-ing fee increases and by growing fine penaltyassessments. In fact, General Fund supportfor the courts has plummeted. Now only onepenny out of every General Fund dollar goesto the courts. This means that we are slowlymoving toward a user-funded court system —paid for by filing fees and fines. This trendhas continued with little or no public policydebate over the wisdom of such an approach.No more.

The council, the Chief, and I are vigorouslypursuing budget restoration and stability withthe Governor and the Legislature. We arefocused on coordinating with the State Barand with the organized specialty bars andother stakeholders to ensure a unified, con-sistent, and reinforced message for restora-tion of budget dollars and to avoid the incon-sistent and competing messages that were soharmful to the branch’s budget advocacy lastyear.

At the same time, the task of developing asuperior and defensible process for allocatingbudget dollars among the trial courts is beingpursued by the Trial Court Funding WorkingGroup, formed by the Governor and the ChiefJustice to assess implementation of theLockyer-Isenberg Trial Court Funding Act of1997.

Clearly, the challenges for our branch aresignificant. But the will to address themopenly and with fresh approaches is strong.As a former lawyer, a retired judge, and now ajudicial administrator, I welcome this oppor-tunity to work to enhance the administrationof justice and to protect the constitutionalright of all Californians to have their day incourt. With the organized support of the bar,and the meaningful contributions of justicesand judges, the Chief Justice and the JudicialCouncil will successfully meet the challengesahead.

Judge Steven Jahr has been the Director at theAdministrative Office of the Courts sinceOctober 2012.

15

E very day in California, lawyers en-gaging in legal research come acrossthat perfect case that makes that

key point — only to realize that the case is“unpublished.” Hence the quandary: Shouldthe case be cited? Can it be cited?

The quagmire of handling unpublishedcase law has thickened in our digital age,

where nearly all written opinions can bereadily located electronically via Westlaw,Lexis, Google Scholar, and other sources.This increased access to unpublished deci-sions has made it more tempting to citethem, while at the same time giving rise to

To Cite or Not to Cite?That Is the Question

Citing Unpublished Decisions inCalifornia State and Federal Courts

By Benjamin G. Shatz and Emil Petrossian


Benjamin G. Shatz Emil Petrossian

16

much confusion regarding the propriety ofdoing so.

To complicate matters, California has uni-que practices regarding unpublished, partiallypublished, and even depublished appellateopinions; and federal practices governing thecitation of published and unpublished author-ity have a complicated history. Given thatprecedent is the lifeblood of legal argument,understanding how to deal with unpublishedauthority is essential knowledge for any litiga-tor. To help eliminate some of the confusionsurrounding unpublished decisions, this arti-cle aims to provide a roadmap for Californiapractitioners to determine whether a particu-lar decision may be cited in state and federalcourts in California.

— Citations in —California State Courts

The rules governing the citation of unpub-lished California state-court opinions in Cali-fornia state courts are relatively straightfor-ward. All decisions of the California SupremeCourt are automatically published in Califor-nia Reports, and thus may be cited. (Cal.Rules of Court, rule 8.1105(a).)

The problem of unpublished decisions aris-es with opinions from the Court of Appeal orsuperior court appellate division. Opinions ofthese courts are not published unless specifi-cally certified for publication. (Rule 8.1105(b).) Fortunately, a simple rule of court existsto provide guidance: Any decision that is notcertified for publication (or not ordered pub-lished) “must not be cited or relied on by acourt or a party in any other action.” (Rule8.1115(a).) So far, so good.

The rule has two express exceptions: Anunpublished opinion may be cited or relied onwhen the opinion is (1) “relevant under thedoctrines of law of the case, res judicata, orcollateral estoppel”; or (2) “relevant to acriminal or disciplinary action because itstates reasons for a decision affecting thesame defendant or respondent in anothersuch action.” (Rule 8.1115(b).) These excep-tions rarely come into play.

The next question is, “when” is an appel-late opinion ripe for citation? The rule again isclear: As soon as the Court of Appeal issuesan opinion for publication, it may be cited.(Rule 8.1115(d).) This is true even though

the decision is not technically “final” foranother 30 days after it is published — e.g.,the Court of Appeal has jurisdiction to changethe opinion sua sponte or via a petition forrehearing; and the possibility of review by theSupreme Court still exists (generally foranother 100 days).

The same is true for a previously unpub-

‘Taking their cue from

the Ninth Circuit,

as they must, California’s

federal district courts

also generally apply

California’s rules

regarding the citation of

unpublished or depublished

California cases.’

17

lished decision that has been ordered pub-lished: As soon as the decision is certified forpublication, it may be cited. (Rule 8.1115(d).) Sometimes opinions are only partiallypublished, so be sure to cite only to the pub-lished portions of such decisions. (Rule8.1110.)

Understand, however, that citing recentlypublished cases within this 100-day windowcarries some risk. If the Court of Appealgrants a rehearing or if the Supreme Courtgrants review, then the opinion is immediate-ly superseded and no longer considered pub-lished, and thus is not citable. (Rule 8.1105(e)(1).) Moreover, the Supreme Court hasauthority to order that an unpublished opin-ion be published, and to decertify the publica-tion of a published opinion.(Rule 8.1105(e)(2).) Accordingly, when contemplatingfreshly hatched decisions, extra diligence isrequired.

The precise wording of Rule 8.1115’s re-strictions on the citation of unpublished opin-ions makes clear that the rule applies to opin-ions of the Court of Appeal and superiorcourt appellate division. Thus, California’sRule does not extend to unpublished deci-sions from other jurisdictions, including fed-eral courts. Precedent consistently recog-nizes this basic limitation on the rule’s scope.(See, e.g., Haligowski v. Superior Court(2011) 200 Cal.App.4th 983, 990, fn. 4[“Unpublished federal opinions are citablenotwithstanding [Rule 8.1115] which onlybars citation of unpublished California opin-ions.” (emphasis in original)]; Harris v.Investor’s Bus. Daily, Inc. (2006) 138 Cal.App.4th 28, 34 [“[E]ven unpublished federalopinions have persuasive value in this court,as they are not subject to [Rule 8.1115],which bars citation of unpublished Californiaopinions” (citation omitted)]; Bowen v.Ziasun Techs., Inc. (2004) 116 Cal.App.4th777, 787, fn. 6; City of Hawthorne ex rel.Wohlner v. H&C Disposal Co. (2003) 109Cal.App.4th 1668, 1678, fn. 5.)

Of course, unpublished decisions of federaldistrict and appellate courts — even on

issues of federal law — are not binding onCalifornia state courts and constitute onlypersuasive authority. (See Ticconi v. BlueShield of Cal. (2008) 160 Cal.App.4th 528,541, fn. 10.) Even courts viewing federal deci-sions on federal issues to be deserving of“great weight,” recognize that, in some cir-cumstances, California state courts mayignore federal precedent. (E.g., Etcheverryv. Tri-Ag Serv., Inc. (2000) 22 Cal.4th 316,320; People v. Williams (1997) 16 Cal.4th153, 190; Pac. Shore Funding v. Lozo(2006) 138 Cal.App.4th 1342, 1352 [lowerfederal court decisions on federal law are notbinding on state courts; such decisions arepersuasive and entitled to great weight; butwhere lower federal precedents are dividedor lacking, state courts must necessarilymake an independent determination of feder-al law].)

— Citations in —California Federal Courts

Turning to the federal court system, opin-ions from the Supreme Court of the UnitedStates, are, of course, all published andalways citable. Similarly, with limited excep-tions noted below, district court decisions arealso citable whether they appear in a printpublication or not. (Sorrels v. McKee (9thCir. 2002) 290 F.3d 965, 971.)

The complications arise at the intermedi-ate appellate level. Like California’s Court ofAppeal, the federal circuit courts of appealsissue both published and unpublished deci-sions. Published decisions appear in West’sFederal Reporter (starting with cases from1880), and — somewhat ironically — startingin 2001, “unpublished decisions” (from mostcircuits, including the Ninth Circuit) typicallyappear in a case law reporter titled theFederal Appendix. Thus, it is perfectly accu-rate to say that “unpublished cases are pub-lished in the Federal Appendix” — although anon-lawyer might perceive this as lawyer’sdouble-talk.

The governing citation rule in the NinthCircuit is Circuit Rule 36-3, which provides

18

that unpublished Ninth Circuit dispositionsand orders are (a) not precedent (i.e., notbinding on district courts or other NinthCircuit panels), except when relevant underthe doctrine of law of the case or rules ofclaim preclusion or issue preclusion; (b)citable to courts within the Ninth Circuit ifissued on or after January 1, 2007; and (c)not citable if issued before January 1, 2007,except under limited circumstances (e.g.,when relevant under preclusion doctrines, orfor factual purposes, or to demonstrate theexistence of a conflict). (See Sorchini v.City of Covina (9th Cir. 2001) 250 F.3d 706,708 [the “factual purposes” exception “per-mits the citation to an unpublished disposi-tion where the very existence of the priorcase is relevant as a factual matter to thecase being briefed,” which “will almost alwaysinvolve one or both of the parties to thepending case” — the exception does not per-mit citation for the purpose of providing“notice” to a court of the existence or ab-sence of legal precedent (emphasisoriginal)].)

Thus, the key date to remember is 2007:Unpublished Ninth Circuit decisions issued inor after 2007 are citable without restriction aspersuasive authority. But pre-2007 unpub-lished decisions are not citable, subject tocertain rare exceptions.

By its express terms, Rule 36-3 extendsonly to unpublished Ninth Circuit decisions,not to decisions or orders issued by othercourts, including district courts within theNinth Circuit. (See Renick v. Dun & Brad-street Receivable Mgmt. Servs. (9th Cir.2002) 290 F.3d 1055, 1058 [“Rule 36-3 quiteclearly prohibits citations only of our unpub-lished dispositions; it does not apply tounpublished dispositions issued by any othercourts within our circuit or elsewhere”].)

Thus, federal courts in California generallycan (and often do) rely on unpublishedorders and opinions from district courts andcourts of appeals from circuits other than theNinth Circuit. (E.g., Alvarenga-Villalobos v.Reno (N.D.Cal. 2000) 133 F.Supp.2d 1164,

1167–1168 [citing and relying on an unpub-lished Third Circuit case].) Even NinthCircuit decisions rely on sister-circuit unpub-lished precedent from time to time. (E.g.,EEOC v. United Parcel Serv., Inc. (9th Cir.2002) 306 F.3d 794, 803, fn. 5 [citing a 4thCircuit Federal Appendix case]; UnitedStates v. Arellano-Rivera (9th Cir. 2001)244 F.3d 1119, 1126.) Under the federal doc-trine of stare decisis, of course, these author-ities are only persuasive precedent. (Hart v.Massanari (9th Cir. 2001) 266 F.3d 1155,1169–1174.)

Likewise, Ninth Circuit Rule 36-3 does notcover unpublished state-court decisions.Nonetheless, the Ninth Circuit and federaldistrict courts in California typically applystate rules governing the citation of unpub-lished state court decisions. For example, inRennick v. O.P.T.I.O.N. Care, Inc. (9th Cir.1996) 77 F.3d 309, 317, the plaintiffs citedCiampi v. Red Carpet Corp. (1985) 167Cal. App.3d 336, rehearing granted, to sup-port their argument that the defendant vio-lated California’s Franchise Investment Law.The Ninth Circuit refused to considerCiampi, however, because the CaliforniaCourt of Appeal had granted rehearing,thereby superseding the opinion and render-ing it unpublished under California’s publica-tion rules.

Similarly, in Credit Suisse First BostonCorp. v. Grunwald (9th Cir. 2005) 400 F.3d1119, the Ninth Circuit refused to considerJevne v. Superior Court (2003) 113 Cal.App.4th 486, review granted, based on theCalifornia Supreme Court’s grant of review.The court explained: “Under California Rulesof Court, a superseded opinion is not consid-ered published, and an unpublished opinioncannot be cited to or relied on by othercourts. In short, an unpublished opiniondoes not constitute binding precedent.Accordingly, we are not bound by the Jevnecourt’s analysis of California law.” (Grun-wald, supra, 400 F.3d at p. 1126, fn. 8.)

Taking their cue from the Ninth Circuit, asthey must, California’s federal district courts

19

also generally apply California’s rules regard-ing the citation of unpublished or depub-lished California cases. (E.g., Taylor v. Quall(C.D.Cal. 2006) 458 F.Supp.2d 1065, 1068[rejecting citations to two unpublishedCalifornia Court of Appeal opinions].) How-ever, at least one federal district court inCalifornia has refused to be bound by thoserules. In Cole v. Doe 1 (N.D.Cal. 2005) 387

F.Supp.2d 1084, 1103, fn. 7, the district courtcited and relied on an unpublished Californiacase, reasoning that California’s rule was “notbinding in the federal courts,” as determinedby the Eighth Circuit, In re Temporoman-dibular Joint Implants Prods. Liability

Litig. (8th Cir. 1997) 113 F.3d 1484, 1493,fn. 11 (“Joint Implants”).

Cole’s reliance on Joint Implants seemserroneous, because the Eight Circuit’s deter-mination regarding the applicability ofCalifornia’s citation rules directly contradictsthe Ninth Circuit’s rule. Cole also suggestedthat it was permitted to rely on the unpub-lished state-court decision “not…as deci-sional law but rather for its persuasive rea-soning.” (Cole, supra, 387 F.Supp.2d at p.1103, fn. 7.) But such a rule underminesCalifornia’s prohibition of unpublished state-court decisions, because all unpublisheddecisions constitute persuasive (albeituncitable) authority. Thus, citing an unpub-lished decision for its “persuasive reasoning”is no different than citing it as “decisionallaw.” Indeed, this is precisely the type ofargument that practitioners should nevermake to support citing a noncitable unpub-lished decision.

Ultimately, the applicability of California’scitation rules in federal courts makes sense.Federal courts charged with the task ofresolving issues of state law must determinehow state courts would rule on those sameissues. (Mullaney v. Wilbur (1975) 421 U.S.684, 691 [state courts are the ultimateexpositors of state law, and federal courts“are bound by their constructions except inextreme circumstances”].) This purposewould be undermined if federal courts couldconsider unpublished cases that state courtscould not rely on. (See, e.g., Antablian v.State Bd. of Equalization (Bankr. C.D.Cal.1992) 140 B.R. 534, 536–537 [recognizingthat because its task was “to determine howa California state court would rule,” thecourt could not reasonably rely on an unpub-lished California state-court decision “as anindication of how a California appellate courtwould rule”].)

Moreover, federal courts’ ability to citeunpublished state-court decisions might leadto disuniformity in the law, which, in turn,could engender forum shopping between thestate and federal court systems. Thus, Cali-

‘A final consideration

is that federal district

courts have the power

to prohibit or restrict the

citation of unpublished

decisions by local

court rule.’

20

fornia federal courts’ application of Cali-fornia’s state rules regarding the citation ofunpublished California state-court opinionsbrings stability to both court systems.

A notable exception to the application ofCalifornia’s rules in federal courts appears inPowell v. Lambert (9th Cir. 2004) 357 F.3d871 and its progeny. In Powell, the NinthCircuit held that litigants may cite to and relyon unpublished state appellate decisionswhere the issue presented is the adequacy ofa state procedural bar — particularly whenthe bar prevents the assertion of federalrights. (Powell, supra, 357 F.3d at p. 879.)Powell reasoned that reliance on unpublisheddecisions for this limited purpose is appropri-ate because “it is the actual practice of thestate courts, not merely the precedents con-tained in their published opinions, that deter-mine the adequacy of procedural bars pre-venting the assertion of federal rights.” (Ibid.,citing Valerio v. Crawford (9th Cir. 2002 enbanc) 306 F.3d 742, 776.) Powell furtherexplained that “[u]npublished decisions arenot irrelevant to a determination of a court’sactual practice. Indeed, to the extent that de-cisions of the state courts are unpublishedbecause they involve only routine applicationof state court rules, unpublished decisions area particularly useful means of determiningactual practice.” (Powell, supra, 357 F.3d atp. 879.)

Subsequent court decisions relying onPowell seemingly have expanded its holdingto cover any state statute, the actual applica-tion of which by the state court is relevant tothe issues before the federal court. (See, e.g.,Vizcarra-Ayala v. Mukasey (9th Cir. 2008)514 F.3d 870, 876, fn. 3 [relying on unpub-lished California decisions regarding theapplication of Cal. Penal Code § 475, pro-scribing specific forms of forgery]; Castillo-Cruz v. Holder (9th Cir. 2009) 581 F.3d1154, 1161, fn. 9 [unpublished cases “are per-tinent for showing that there is a ‘realisticprobability’ that [Cal. Penal Code § 496] hasbeen and will be applied to conduct falling

outside of the generic definition of a crime ofmoral turpitude.”]; Nunez v. Holder (9thCir. 2010) 594 F.3d 1124, 1137, fn. 10[unpublished state-court decisions are “perti-nent to show how a statute has been appliedin practice”].)

A final consideration is that federal districtcourts have the power to prohibit or restrictthe citation of unpublished decisions by localcourt rule. The local civil rules presently ineffect in the Central, Eastern, and SouthernDistricts of California do not prohibit orrestrict citations to unpublished districtcourt decisions. The Northern District, how-ever, expressly prohibits citation to “[a]nyorder or opinion that is designated: ‘NOTFOR CITATION,’ pursuant to Civil L.R. 7-14or pursuant to a similar rule of any otherissuing court…either in written submis-sions or oral argument, except when relevantunder the doctrines of law of the case, resjudicata or collateral estoppel.” (N.D.Cal. Civ.L.R. 3-4(e) [emphasis added].) Accordingly,in the Northern District, unpublished deci-sions from any jurisdiction with a non-cita-tion rule or applicable procedure are notcitable.

The rules governing citation of unpub-lished opinions should be carefully followed.Mistakes can be costly. (See Alicia T. v.County of Los Angeles (1990) 222 Cal.App.3d 869, 885–886 [monetary sanctionsimposed to discourage violation of the cita-tion rules].) But depending on the venue andcircumstances, unpublished opinions may bea useful source of persuasive authority. Prac-titioners should tread carefully and double-check the rules when citing unpublisheddecisions, keeping in mind that the mere factthat a decision is unpublished does not nec-essarily mean that it cannot be cited in anyand all courts.

Benjamin G. Shatz co-chairs the AppellatePractice Group of Manatt, Phelps & Phillips,LLP. Emil Petrossian is a litigation associateat Manatt.

21

“When practicing appellate law,there are at least three im-mutable rules: first, take great

care to prepare a complete record; second, ifit is not in the record, it did not happen; andthird, when in doubt, refer back to rules oneand two.” (Protect Our Water v. County of

Merced (2003) 110 Cal.App.4th 362, 364.)The current budget cuts have forced trial

courts to take drastic measures that impacta party’s ability to comply with these funda-

Bring Your OwnCourt Reporter

By Robert Cooper

Robert Cooper


22

mental rules of practice. One such measure isthe terminating of court reporters from thecourt’s payroll. As a result of such staffing re-ductions, appellants can face potential obsta-cles in pursuing an appeal; namely, access toa court reporter’s transcript.

— Rules Governing Appellate —Review of Trial Court Decisions

Appealed judgments and orders are pre-sumed correct, and the appellant has the bur-den of overcoming this presumption by affir-matively showing error on an adequate re-cord. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140-1141 [articulating this rule];Stasz v. Eisenberg (2010) 190 Cal.App.4th1032, 1039 [“in the absence of a requiredreporter’s transcript and other [necessary]documents, we presume the judgment is cor-rect”].) This rule “is not only a general princi-ple of appellate practice but an ingredient ofthe constitutional doctrine of reversibleerror.” (Denham v. Superior Court (1970) 2Cal.3d 557, 564 [internal quotes and citationomitted].)

“A necessary corollary to this rule is that arecord is inadequate, and appellant defaults,if the appellant predicates error only on thepart of the record he provides the trial court,but ignores or does not present to the appel-late court portions of the proceedings belowwhich may provide grounds upon which thedecision of the trial court could be affirmed.”(Osgood v. Landon (2005) 127 Cal.App.4th425, 435 [internal quotes and brackets omit-ted]; accord, Buckhart v. San FranciscoResidential Rent Bd. (1988) 197 Cal.App.3d1032, 1036 [“if any matters could have beenpresented to the court below which wouldhave authorized the order complained of, itwill be presumed that such matters werepresented”].)

The Practical Implications— of the Rules —

Governing Appellate ReviewBased on these rules, an appellant’s failure

to provide the appellate “court with an ade-quate record precludes any determination in[his or her] favor.” (Martin v. Inland EmpireUtilities Agency (2011) 198 Cal.App.4th 611,633.) Without a reporter’s transcript, thecourt of appeal can summarily affirm thelower court’s ruling or, alternatively, dismissthe appeal.

For example, when the ruling is subject toan abuse-of-discretion standard of appellatereview, “[t]he absence of a record concerningwhat actually occurred at the hearing pre-cludes a determination that the court abusedits discretion.” (Wagner v. Wagner (2008)162 Cal.App.4th 249, 259 [affirming orderdenying Code Civ. Proc., § 473, subd. (b) dis-cretionary relief based on this ground].)Likewise, to the extent that a party seeks tochallenge the sufficiency of the evidence tosupport the trial court’s ruling, such a claimmay be barred based on the appellant’s failureto present the transcripts for the trial or theunderlying hearings. (See, e.g., Aguilar v.Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132; see also EnPalm, LLC v.Teitler Family Trust (2008) 162 Cal.App.4th770, 775 (maj. opn.) [attorney fee award];Foust v. San Jose Const. Co., Inc. (2011)198 Cal.App.4th 181, 189 [“Without a properrecord, there is no way for this court to findthat the trial court’s conclusions were notsupported by substantial evidence”; sanctionsimposed].)

In numerous other situations, appellatecourts have similarly refused to reach themerits of an appellant’s claims based on theappellant’s failure to provide the reporter’stranscript or a suitable substitute. (See, e.g.,Walker v. Superior Court (1991) 53 Cal.3d257, 273-274 [transfer order]; Maria P. v.Riles (1987) 43 Cal.3d 1281, 1295-1296[attorney fee motion hearing]; Ballard v.Uribe (1986) 41 Cal.3d 564, 574-575 (leadopn. of Grodin, J.) [new trial motion hearing];Jones v. Dumrichob (1998) 63 Cal.App.4th1258, 1264 [“appellants’ failure to designatethe reporter’s transcript of the trial as part ofthe record on appeal leaves this court with no

23

evidence upon which to base a finding thatthe trial court abused its discretion” in award-ing expert witness fees]; Hodges v. Mark(1996) 49 Cal.App.4th 651, 657 [nonsuitmotion where trial transcript not provided].)

— Practical Tips to —Avoid Procedural Defaults

In addition to filing a notice of appealbefore the jurisdictional deadline expires,“the court rules requiring prompt action onthe part of appellants to perfect and prose-cute their appeals with diligence should bestrictly complied with in every respect.”(McGinnis v. Monjoy (1959) 169 Cal.App.2d519, 522 [appeal dismissed where appellantfailed to pay for the reporters’ transcripts forseven months and failed to correct deficien-cies in the clerk’s transcripts; emphasisadded]; Ehman v. Moore (1963) 221 Cal.App.2d 460, 462-463 [appeal dismissed basedon appellants’ failure to secure reporter’stranscript reflecting offers of proof].)

With the courts no longer supplying courtreporters, the burden shifts to prospectiveappellants in civil cases to arrange for a courtreporter in advance to be present at hearings(or trial proceedings). This, of course, re-quires additional expenditures in terms ofappearance fees on top of the transcriptioncosts, thus further driving up the costs of liti-gation. While the costs charged by courtreporters can be exorbitant (particularly fortranscribing an entire trial), a party thatintends to appeal cannot afford to be pennywise and pound foolish.

Otherwise, if the reviewing court “cannotknowledgeably rule on the merits” of theappeal, it can “consider the claim aban-doned.” (In re Valerie A. (2007) 152 Cal.App.4th 987, 1002-1003 [appellant’s claimconsidered abandoned where appellant failedto provide reporter’s transcript of trial courtproceeding]; Interinsurance Exchange v.Collins (1994) 30 Cal.App.4th 1445, 1448[affirming sanctions order for lack of ade-quate record].)

As an alternative to a reporter’s transcript,Cal. Rule of Court 8.130(g) allows parties touse an agreed or a settled statement. Theseare rarely used. They are not efficient,because they entail substantial time in prepa-ration. While a settled statement is createdbased on a proposal and a counter-proposalprocedure between the parties (followed byjudicial settlement), an agreed statement isbased on the parties’ agreement regardingthe contents and the scope of the trial testi-mony, an inherently tricky source of disputes.

Recent Trends and— New Issues —

Regarding Reporters’ TranscriptsA major debate exists as to whether appel-

late courts may entertain an appeal without areporter’s transcript in certain situations. InChodos v. Cole (2012) 210 Cal.App.4th 692,a case involving an anti-SLAPP motion,Division Five of the Second District issued asplit decision on this issue with a vigorous dis-senting opinion.

The majority held that it does “not believeexisting Supreme Court authority requires atranscript of the hearing in connection withwhether the anti-SLAPP statute applies to aspecific pleading.” (Chodos v. Cole, supra,210 Cal.App.4th at p. 700.) The majority rea-soned that “[n]one of the parties relies uponthe oral argument before the trial court, andwe decide a pure legal issue based on the fil-ings before the trial court — as did the trialcourt.” (Id. at p. 699.) Noting that “the avail-ability of court reporters has been limited”based on a recent policy adopted by the LosAngeles Superior Court (id. at fn. 3), themajority applied a liberal view, indicating thatthe court could order the record augmentedat the appellant’s expense on its own motion.(Id. at p. 699.)

The dissenting justice, however, stronglydisagreed with the majority’s view. (Chodosv. Cole, supra, 210 Cal.App.4th. at p. 707[dis. opn. of Turner, P.J.].) Finding the majori-ty’s view to be totally inconsistent with the

24

“requirements imposed in Supreme Courtauthority” regarding the need for presenta-tion of the transcripts, the dissent held thatthe trial court’s anti-SLAPP ruling should beaffirmed based on the appellant’s failure topresent the reporter’s transcript on appeal.(Id. at pp. 707-709.)

Confirming the recurring nature of thisissue, Division Four of the Second Districtrecently issued an order in a fully briefed casethat was scheduled for oral argument strikingthe parties’ briefs “because the current stateof the record and briefing inhibit appellatereview.” (Shatz, Southern California Ap-pellate News (Jan. 10, 2013) <socal-appellate.blogspot.com> [as of February 4,2013].) Setting a new briefing schedule, thecourt gave appellant 30 days to file a newbrief and supplemental records. (Ibid.)Similarly, the Chodos court recently issued apre-briefing order in another case, directingthe parties “to brief the issue of whetherdefendant’s failure to designate a reporter’stranscript or suitable substitute of the trialwarrants affirmance based on the record’sinadequacy.” (Ibid.) In light of these develop-ments, the requirement for presenting anadequate record is a particularly hot issuegiven the elimination of court-employedreporters.

A more fundamental issue engendered bythe recent elimination of court-employedreporters is one of pricing. Under the oldregime, court reporters received a salary fromthe courts and charged litigants additionalfees for preparing transcripts. Having losttheir employment checks, court reportersand their agencies have recently adoptedmuch higher fees in order to make up for thisloss of income. Implicitly acknowledging theproblems created by excessive fees demand-ed by court reporters, the Supreme Courtpreviously referred this issue “to the JudicialCouncil for consideration of a possible changeto the California Rules of Court” in responseto a petition for review challenging the trialcourt’s failure to refund excessive fees.(Gomez v. City of San Diego (S177774, Jan.

21, 2010) [2010 Cal. LEXIS 832].) Threeyears later, the problem has become muchworse.

For example, court reporters are now rou-tinely demanding fees in excess of the statu-tory rates set in Government Code section69950 for transcribing proceedings. Seekingto shift their loss of employment checks to lit-igants, they typically claim that they are notbound by the rates set by this statute,because they are now operating as “officialcourt reporters pro tempore.” (Govt. Code, §68086, subd. (a)(5)(B).) As a result, privatecourt reporters typically demand fees that aresubstantially in excess of the rates set by Cal.Rules of Court, rule 8.130(b)(1) (B) forpreparing transcripts for appeals. Section68086, subdivision (a)(5)(C), however, pro-vides that “if the services of an official protempore reporter are utilized pursuant tosubparagraph (B), no other charge shall bemade to the parties.” This language under-mines private court reporters’ attempts tojustify their excessive fees.

A party may challenge the rates requestedby court reporters by filing a motion with thetrial court to set the proper rate. (See, e.g.,Serrano v. Stefan Merli Plastering Co., Inc.(2008) 162 Cal.App.4th 1014, 1021.) Alterna-tively, after paying the disputed fee, a partycan file a motion for refund of the fees withthe trial court and, if unsuccessful, with theCourt of Appeal (as was done in Gomez).

In conclusion, given the significance of thisissue to the bench and the bar, these prob-lems are expected to get worse as more trialcourts terminate their court reporters. Inpractice, in addition to having to bring one’sown court reporters, many litigants face thewild, wild west in dealing with such reporterson pricing issues.

Robert Cooper is an attorney in the LosAngeles office of Wilson Elser MoskowitzEdelman & Dicker and is a Certified AppellateSpecialist, handling appeals, writs and post-trial motions. He is also handling the appealin Chodos v. Cole.

25

The scenario reads like a standardMPRE question: A law firm inadver-tently takes on a new client whose

interests are adverse to an existing one, with-out obtaining written consent from either.The representation involves a clear conflict ofinterest, and in California, many courts saythat the law firm is subject to automatic, orper se, disqualification.

Much of law school is devoted to learningthat, in the law, general principles are by defi-nition false. Where the facts are supposed tobe critical to decision-making, per se rulessuch as this one often undermine analytical

rigor. While the per se disqualification ruleseems straightforward, the consequences ofimplementing such a rule can be complicat-ed, particularly in the modern legal land-scape, where lawyers within the same lawfirm have no knowledge of their colleagues’cases, and strict adherence to the duty of loy-alty may actually harm the clients to whomthe duty is owed. Indeed, other jurisdictionshave applied a more flexible standard forevaluating whether disqualification is appro-priate, and California should do the same.

Judicial Discretion Advised:A Critique of California’s Per Se Disqualification

Rule in Concurrent Representation Cases

By Mark T. Drooks and Jessica S. Chen


Mark T. Drooks Jessica S. Chen

26

— Existing California —Law on Disqualification

California courts have established two sep-arate standards to analyze whether disqualifi-cation is appropriate when there is a conflictof interest. In a successive representation sit-uation, where an attorney’s current client has

interests adverse to the attorney’s formerclient, the test is whether there is a “substan-tial relationship” between the subject matterof the current and former representations.(Flatt v. Super. Ct. (1994) 9 Cal.4th 275,

283.) In successive representation, “the chieffiduciary value jeopardized is that of clientconfidentiality.” (Ibid.)

But in a concurrent representation situa-tion, where an attorney’s representation ofone client is adverse to the interests of anoth-er current client, the duty of loyalty is impli-cated, and many courts conclude that per sedisqualification is required even if the repre-sentations are unrelated in subject matterand there is no risk concerning confidentialinformation. (State Farm Mut. Auto. Ins. Co.v. Federal Ins. Co. (1999) 72 Cal.App.4th1422, 1431.)

Moreover, in the case of concurrent repre-sentation, the so-called Hot Potato Rule pro-hibits counsel from withdrawing from repre-sentation of one client prior to disqualificationin order to convert a concurrent representa-tion into a successive representation for pur-poses of assessing the conflict of interest.(Truck Ins. Exchange v. Fireman’s FundIns. Co. (1992) 6 Cal.App.4th 1050, 1060.)Although this rule originally applied to pro-hibit dropping the preexisting client in favorof a new one, the rule has been interpretedbroadly to prohibit a firm from dropping thenew client in order to honor its obligations toits original client. (State Farm Mut. Auto.Ins. Co. v. Federal Ins. Co., supra, 72Cal.App.4th at p. 1431.)

— Why Per Se —Disqualification is Bad Policy

While the rationale behind the per se ruleis to protect the clients’ interests, absentissues of confidentiality, the harm to theclient from violation of the duty of loyaltyoften verges on the metaphysical. In certaincases, the per se rule may be used as a tacti-cal move by one client to disqualify counsel tothe detriment of the other.

Consider the following hypothetical: Law-yer A in Los Angeles has been representingClient No. 1 in a complex litigation in Cali-fornia for five years. Lawyer B, in the NewYork office of the same Law Firm as LawyerA, agreed to represent Client No. 2 in a minor

‘Moreover, the per se

rule contradicts the

general rule that

disqualification motions

are always confided

to the discretion

of the court in light of

the competing interests

specific to the case.’

27

matter in New York. Client No. 2 is adverse toClient No. 1 in the California litigation, but noconfidences relating to the two cases wereshared between Lawyer A and Lawyer B, andthe California and New York matters areunrelated. No waivers were obtained becausethe Law Firm’s conflicts check inadvertentlyfailed to disclose any conflict.

Three months into the New York matter,Client No. 2 brought the conflict to the LawFirm’s attention, and the Law Firm droppedout of the minor matter, but declined to dropout of the complex litigation due to concernfor prejudicing Client No. 1. The latter, asophisticated business with in-house counselcapable of assessing the issues, wishes toretain the Law Firm as counsel, but Client No.2 subsequently moves to disqualify the LawFirm in the California litigation.

In the above scenario, the Law Firm wouldlikely be disqualified under California’s per serule, regardless of whether Client No. 2 suf-fers actual prejudice from the conflict. Andbecause of the Hot Potato Rule, broadlydefined, the Law Firm can do nothing to curethe conflict. The tactical advantage for ClientNo. 2 to bring a disqualification motion isclear, while it is Client No. 1 that suffers andis forced to find new counsel.

The wisdom behind the per se rule is ques-tionable given the current legal landscape.There are international and national law firmswith many lawyers and offices, such thatthere is no genuine risk that a lawyer in LosAngeles would be influenced by, or even haveknowledge of, actions of a lawyer in New Yorkon an unrelated case. Moreover, given thesize of law firms and the complexity of litiga-tion, conflict checks can be a complicatedaffair; and the occasional conflict of interest islikely inadvertent and results in no actualprejudice.

Perhaps more important, lawyers oftenserve corporate clients with far-flung businessinterests and large portfolios of litigation;they do not necessarily view the duty of loyal-ty as a matter of personal fealty that preventsthem from representing a client where other

attorneys in the same firm may be adverse tothat client in some unrelated matter. Manycorporate clients routinely waive conflictsthat are brought to their attention. Indeed, ifthe conflict described above had been discov-ered in a check, it is entirely possible that theclients would have waived it.

California courts have noted the outdatedassumptions underlying conflict law in othercontexts. For example, the Court of Appeal,in ruling against automatic vicarious disquali-fication, acknowledged: “In a situation wherethe ‘everyday reality’ is no longer that allattorneys in the same law firm actually ‘worktogether,’ there would seem to be no place fora rule of law based on the premise that theydo.” (Kirk v. First Am. Title Ins. Co. (2010)183 Cal.App.4th 776, 802; see also In reCounty of Los Angeles (9th Cir. 2000) 223F.3d 990, 997 [“The changing realities of lawpractice call for a more functional approachto disqualification[.]”].) These outdatedassumptions are no less true in concurrentrepresentation cases, and the talismanic invo-cation of loyalty should not render themirrelevant.

Disqualification may result in substantialharm to the innocent client who wishes toretain conflicted counsel. As courts haveacknowledged, disqualification “can be mis-used to harass opposing counsel, or to intimi-date an adversary into accepting settlementon terms that would not otherwise be accept-able.” (Gregori v. Bank of America (1989)207 Cal.App.3d 291, 301.) Disqualificationalso causes substantial delays and increasedcosts. It is the disqualified attorney’s clientwho bears the financial and strategic cost offinding a replacement, and the prejudice isespecially pronounced if disqualified counselhas expertise in the subject area or is familiarwith the complex facts and issues in long-standing litigation.

Finally, the added deterrent value of a perse disqualification rule instead of a discre-tionary rule is questionable. Law firms makesubstantial efforts to avoid conflicts, andthere is no reason to believe that a draconian

28

remedy enhances those efforts. In reality,many concurrent conflicts arise through inad-vertence, innocent error, or some failure toconnect related corporate entities.

— Why Per Se —Disqualification is Bad Law

It is a distortion of the Hot Potato Rule toconclude that disqualification from represen-tation of Client No. 1 should be automatic onmotion by Client No. 2, when the purpose ofthe rule is to protect Client No. 1. In TruckIns. Exchange v. Fireman’s Fund Ins. Co.,supra, 6 Cal.App.4th 1050, the seminal caseon the Hot Potato Rule, counsel withdrewfrom representing Client No. 1 in two smalllawsuits to represent Client No. 2, with inter-ests adverse to Client No. 1, in another law-suit; the law firm effectively fired its existingclient after the latter client refused to consentto concurrent representation. (Id. at pp.1053-54.) The holding in Truck Ins. Ex-change is narrow: “[A] law firm that knowing-ly undertakes adverse concurrent representa-tion may not avoid disqualification by with-drawing from the representation of the lessfavored client before hearing.” (Id. at p.1057.)

Flatt v. Superior Court cited Truck Ins.Exchange for the proposition that concur-rent representation conflicts may not becured “by the expedient of severing the rela-tionship with the preexisting client.” (Flatt v.Super. Ct., supra, 9 Cal.4th at p. 288.) Therule thus exists to protect the pre-existingclient from losing its counsel. The facts in theFlatt case — rarely described by courts thatquote this language — demonstrate thispoint. In Flatt, the attorney (of that name)met with Client No. 2, a prospective client, todiscuss potential claims against Client No. 1, apreexisting one. One week after the meeting,Flatt stated she could not represent ClientNo. 2 because her firm was representingClient No. 1 in an unrelated matter. Client No.2 later sued Flatt, claiming that Flatt hadbreached a duty to advise him of the statute

of limitations. The Supreme Court rejectedthis claim, holding that Flatt had a duty ofloyalty to the existing client (whom the lawfirm had continued to represent).

Though the initial cases only concernedprotection of the preexisting client, subse-quent case law interpreted Truck Ins.Exchange and Flatt broadly to support the

proposition that under no circumstances mayan attorney in a concurrent-representationconflict drop one client and retain the other,and that even where the conflict was short-lived and inadvertent, counsel could do noth-

‘Other jurisdictions

already have adopted

a more flexible

approach toward

disqualification in

concurrent

representation cases.’

29

ing to cure it. The Hot Potato rule, originallyintended to protect the original client, thusmorphed into a “gotcha” rule that prejudicedthe original client.

Moreover, the per se rule contradicts thegeneral rule that disqualification motions arealways confided to the discretion of the courtin light of the competing interests specific tothe case. (Oaks Mgmt. Corp. v. Super. Ct.(2006) 145 Cal.App.4th 453, 462 [citing CodeCiv. Proc., § 128, subd. (a)(5)].) Indeed, evencases affirming a per se rule recognize excep-tions. (See State Farm Mut. Auto. Ins. Co. v.Federal Ins. Co., supra, 72 Cal.App.4th at p.1432 [an exception where the conflict“occurred by ‘mere happenstance’”]; Forrestv. Baeza (1997) 58 Cal.App.4th 65, 80 [rec-ognizing an exception in the shareholder deri-vative context].)

A Discretionary Approach— to Disqualification in —

Concurrent Representation CasesA less expansive interpretation of the Hot

Potato Rule would allow counsel to cure con-flicts by dropping the new client and keepingthe preexisting one, which is more accuratelyin line with the Flatt and Truck Ins. Ex-change cases. If a disqualification motion isbrought, judges should be permitted to exer-cise their discretion to consider all the rele-vant facts to reach the most equitable resultin the individual case.

Other jurisdictions already have adopted amore flexible approach toward disqualifica-tion in concurrent representation cases. Forexample, in Parkinson v. Phonex Corp. (D.Utah 1994) 857 F.Supp. 1474, 1477, the courtdenied disqualification where two attorneysin the same law firm simultaneously repre-sented the plaintiff and defendant in two sep-arate matters for a one-month period; onematter was a three-year litigation, whereasthe other was a one-month estate planningrepresentation. The court weighed “the rela-tively minor harm” alleged by the defendant

in the one-month representation versus harmto the client in the three-year litigation, andnoted that there was no evidence that confi-dential information was shared. (See alsoSWS Financial Fund A v. Salomon Bros.Inc. (N.D. Ill. 1992) 790 F.Supp. 1392, 1400[denying disqualification where plaintiffwould suffer “substantial costs” if disqualifi-cation were granted]; Research Corp.Techs., Inc. v. Hewlett-Packard Co. (D. Ariz.1996) 936 F.Supp. 697, 702-03 [denying dis-qualification where plaintiff’s counsel simul-taneously represented defendant in a minormatter, but had spent 19 months preparingplaintiff’s case].)

In evaluating whether disqualification isappropriate, California courts could considersuch relevant factors as: (i) the nature ofclients and length and significance of eachrepresentation; (ii) whether the conflict wasinadvertent; (iii) prejudice to Client No. 1,including financial burdens or burdens inparting with counsel familiar with a case; and(iv) prejudice to Client No. 2 from continuedrepresentation of Client No. 1. This is notunlike the discretionary standard alreadyemployed by courts for determining propri-ety of disqualification generally. (See OaksMgmt. Corp. v. Super. Ct., supra, 145 Cal.App.4th at pp. 464-65.)

While an attorney’s breach of ethicalduties should not be condoned, Californiacourts should adopt a discretionary approachto disqualification in concurrent representa-tion cases, where interests of both affectedclients are to be carefully weighed and con-sidered. Such an approach is consistent withexisting disqualification law and would moreeffectively protect client interests than theper se rule, which aims to protect the duty ofloyalty but may ultimately harm the interestsof innocent clients.

Mark T. Drooks and Jessica S. Chen are attor-neys at the Los Angeles law firm, Bird,Marella, Boxer, Wolpert, Nessim, Drooks &Lincenberg, P.C.

30

A rticle III of the United States Con-stitution limits federal courts’ juris-diction to specified “cases” and

“controversies.” That limitation requires aplaintiff to have standing to sue. And general-ly, for standing to exist, the plaintiff must havesuffered an “injury in fact.”

But the United States Supreme Courtrecently decided not to decide whether theavailability of a claim for statutory damages is,by itself, sufficient to create the Article III“injury in fact” required for standing to bringsuit. (First American Financial Corp. v.Edwards (June 28, 2012) No. 10-708, 132 S.Ct. 2536, 2012 U.S. LEXIS 4875.) The Court’sunsigned, one-sentence order stated only thatit had “improvidently granted” certiorari inthe case; thus, its basis for declining reviewremains unclear.

So where does that leave the viability ofclaims where standing is based solely onstatutory damages or penalties without otherinjury?

— RESPA and —First American v. Edwards

The First American case alleged a viola-tion of the Real Estate Settlement ProceduresAct (“RESPA”). RESPA prohibits the pay-ment of “any fee, kickback, or thing of value”in exchange for business referrals and alsoforbids that a “portion, split, or percentage ofany charge made or received for the render-ing of a real estate settlement service” be paidfor services that are not actually rendered tothe customer. (12 U.S.C. § 2607.)

An Unresolved Issue:Article III Standing for Statutory Damages

By Michael A. Geibelson and Joel A. Mintzer

Michael A. Geibelson


Joel A. Mintzer

31

Thus, a real estate closing agent cannotreceive payments from a property title insur-er in return for business referrals. RESPA alsoprovides for statutory damages of up to threetimes the amount the buyer was charged —regardless of whether the amount that wascharged was the same as or more than whatwould have been charged but for the improp-er relationship. (12 U.S.C. § 2607(d)(2).)

When plaintiff Denise Edwards bought ahome in Cleveland, Ohio, she relied on herclosing agent, Tower City, to arrange the pur-chase of title insurance. The agent referredthe title insurance business to FirstAmerican. In her complaint, Edwards claimedthat First American had bought a stake inTower City as consideration for Tower Cityagreeing to refer all title insurance businessexclusively to it. Edwards sought statutorydamages under RESPA, but did not claim thatshe had suffered any financial loss. Indeed,she could not claim that her charge for titleinsurance was higher than it would have beenwithout the exclusivity agreement, becauseOhio law mandates that all title insurerscharge the same price.

First American moved to dismiss Edwards’complaint on standing grounds, asserting thatshe had not pled an injury-in-fact, but ratheronly a statutory injury. But the Central Dis-trict of California held that a RESPA statutoryinjury was a sufficient injury-in-fact. (Ed-wards v. First Am. Fin. Corp. (C.D. Cal.2007) 517 F. Supp. 2d 1199.) The NinthCircuit affirmed, holding that RESPA givesrise to a statutory cause of action regardlessof whether an insurance overchargeoccurred.

The Supreme Court granted certiorarispecifically to decide “[w]hether a privatepurchaser of real estate settlement serviceshas standing to sue under Article III…whenthe violation did not affect price, quality, orother characteristics of the settlement ser-vices provided.” But after months of anticipa-tion by consumers and businesses, theSupreme Court dismissed the petition asimprovidently granted.

The importance of the issue in FirstAmerican is heightened by the SupremeCourt’s consideration of Standard Fire In-surance Co. v. Knowles, No. 11-1450 (ar-gued Jan. 7, 2013), where the court granted

certiorari to decide whether a class actionplaintiff can avoid federal jurisdiction underthe Class Action Fairness Act by stipulatingthat the aggregate amount in controversy is

‘Thus, the Third,

Sixth, and Ninth

Circuits’ decisions

contrast with

the Supreme Court’s

and other courts’

decisions holding

that Congress

cannot create standing

by creating

an injury.’

32

less than the jurisdictional minimum of $5million. (See 28 U.S.C. § 1332(d).) If thecourt decides putative class representativescan stipulate that damages are below thejurisdictional limit, then plaintiffs may be able

to avoid federal court. This is significantbecause Article III standing applies only tofederal courts, and not California state courts.

The difference between federal and statecourt standing can arise in California UCL(Unfair Competition Law) cases. As a resultof Proposition 64, a UCL plaintiff must allegean injury and the loss of money or property tohave standing to sue. (See Civ. Code, §§17203-04, 17535.) The California SupremeCourt has held that this requirement applies

to the class representative only, and that theclass representative can then seek recoveryon behalf of others who cannot demonstrate aloss of money or property. (In re Tobacco IICases (2009) 46 Cal.4th 298, 320.)

Federal courts, which have to apply ArticleIII, are split on the question. In Avritt v.Reliastar Life Ins. Co. (8th Cir. 2010) 615F.3d 1023, the Eighth Circuit considered aCalifornia UCL claim. It noted that “[a]lthoughfederal courts ‘do not require that each mem-ber of a class submit evidence of personalstanding,’ a class cannot be certified if it con-tains members who lack standing.” (Avritt,615 F.3d at p. 1034, citation omitted.) Thecourt then summarized what other courtshave said about these issues when consider-ing class certification: “A class must thereforebe defined in such a way that anyone within itwould have standing. Or, to put it anotherway, a named plaintiff cannot represent aclass of persons who lack the ability to bring asuit themselves.” (Ibid, citations and internalquotation omitted.) Other courts have alsoaddressed the matter in terms of class mem-ber standing, and have refused to certifyclasses for class members not having federalstanding. (See Oshana v. Coca-Cola Co. (7thCir. 2006) 472 F.3d 506, 514; O’Shea v.Epson Am., Inc. (C.D. Cal. Sept. 19, 2011)2011 U.S. Dist. LEXIS 105504, at *28-31, andcases cited therein.)

Avritt relied on prior decisional law andthe Rules Enabling Act, 28 U.S.C. § 2072,which prevents the use of the class actionform to “abridge, enlarge or modify any sub-stantive right.” Thus, “a class representativemust be part of the class and possess thesame interest and suffer the same injury asthe class members.” (Califano v. Yamasaki(1979) 442 U.S. 682, 700-701; see alsoAmchem Prods., Inc. v. Windsor (1997) 521U.S. 591, 624 [class treatment improperwhere some class members suffered noinjury].)

And “if none of the named plaintiffs pur-porting to represent a class establishes therequisite of a case or controversy with the

‘Yet privacy

statutes have

extended far

beyond the

common law

definition of

a privacy injury.’

33

defendants, none may seek relief on behalf ofhimself or any other member of the class.”(O’Shea v. Littleton (1974) 414 U.S. 488,494.) The Ninth Circuit has taken a differentview, holding that Article III is satisfied if “[a]tleast one named plaintiff [satisfies] the actualinjury component of standing.” (Stearns v.Ticketmaster Corp. (9th Cir. 2011) 655 F.3d1013, 1021.)

— Standing and Injury in Fact —Federal courts’ jurisdiction is constitution-

ally limited to actual “cases” and “controver-sies.” One element of this “bedrock require-ment” is that plaintiffs “must establish thatthey have standing to sue.” (Raines v. Byrd(1997) 521 U.S. 811, 818.) For standing pur-poses, “The requirement of injury in fact is ahard floor of Article III.” (Summers v. EarthIsland Inst. (2009) 555 U.S. 488, 497.)Distinct from an “injury in law,” an injury infact must be (a) concrete and particularized,and actual or imminent not conjectural orhypothetical, (b) fairly traceable to the chal-lenged action of the defendant, and (c) likelyto be redressed by a favorable decision. (SeeFriends of the Earth, Inc. v. LaidlawEnvtl. Servs. (TOC), Inc. (2000) 528 U.S.167, 180-181; Lujan v. Defenders ofWildlife (1992) 504 U.S. 555, 560-561.)

And “[a]lthough Congress may grant anexpress right of action to persons who other-wise would be barred by prudential standingrules, Art. III’s requirement remains: theplaintiff still must allege a distinct and palpa-ble injury to himself.” (Gollust v. Mendell(1991) 501 U.S. 115, 126.) “It is settled thatCongress cannot erase Article III’s standingrequirements by statutorily granting the rightto sue to a plaintiff who would not otherwisehave standing.” (Raines v. Byrd, supra, 521U.S. at pp. 818, 820 fn.3 [Congressmen with-out injury lack standing to challenge consti-tutionality, despite statutory grant].)

Relying upon these authorities, some fed-eral courts have dismissed claims for statuto-ry damages that are not accompanied byother injury in order to comply with their

constitutional mandate. (See, e.g., Alfi v.Nordstrom, Inc. (S.D. Cal. Dec. 8, 2010)2010 U.S. Dist. LEXIS 129761 [dismissing forlack of standing claim alleging violation of Civ.Code, § 1749.5, subd. (d)].) Others have heldthat so-called “injuries in law” created byCongress may be enough to establishstanding.

As noted, First American itself concernedan alleged kickback arrangement between atitle insurance company and real estate clos-ing agents that would violate the Real EstateSettlement Procedures Act (RESPA), 12U.S.C. §§ 2601 et seq. RESPA bars such kick-back schemes and allows homebuyers to re-cover statutory damages, even if the schemeitself did not cause the homebuyers any actu-al out-of-pocket loss. Joining the Third andSixth Circuits, the Ninth Circuit ultimatelydecided that the homebuyer had standing topursue RESPA’s statutory damages eventhough he suffered no financial harm fromthe kickback scheme. (Edwards v. First Am.Fin. Corp. (9th Cir. 2010) 610 F.3d 514; seealso Alston v. Countrywide Fin. Corp. (3rdCir. 2009) 585 F.3d 753, 762-763; Carter v.Welles-Bowen Realty, Inc. (6th Cir. 2009)553 F.3d 969, 988-989.) The Fifth Circuit hadpreviously reached the opposite conclusion.(See Moore v. Radian Grp. Inc., 69 Fed.Appx. 659; 2003 U.S. App. LEXIS 12159 (5thCir. 2003) [affirming Moore v. Radian Grp.(E.D. Tex. 2002) 233 F.Supp.2d 819, 824-25].)

Thus, the Third, Sixth, and Ninth Circuits’decisions contrast with the Supreme Court’sand other courts’ decisions holding thatCongress cannot create standing by creatingan injury.

— Standing Challenges Likely —to Arise in Privacy Cases

Similar to RESPA, many privacy statutesprovide for significant statutory damageswithout proof of actual injury. (See, e.g.,Video Privacy Protection Act, 18 U.S.C. §2710; Song Beverly Credit Card Act, Civ.Code, § 1747.08.) These damages multiply

quickly in the class action context. With thisexposure and the First American decisionin hand, the next wave of standing chal-lenges are likely to arise in class actionsalleging privacy violations with only a threatof future harm.

However, the Supreme Court has repeat-edly held that a “possible future injury” isnot sufficient to satisfy Article III.(Whitmore v. Arkansas (1990) 495 U.S.149, 158; Lujan v. Defenders of Wildlife,supra, 504 U.S. at p. 564, fn.2 [future harmat indefinite time cannot be an “actual orimminent injury”].) Instead, “[a] threatenedinjury must be ‘certainly impending,”(Whitmore, supra, 495 U.S. at p. 158), and“proceed with a high degree of immediacy,so as to reduce the possibility of deciding acase in which no injury would have occurredat all.” (Lujan, supra 504 U.S. at p. 564,fn.2; and Krottner v. Starbucks Corp. (9thCir. 2010) 628 F.3d 1139, 1142 [for standing,plaintiff must be “immediately in danger ofsustaining some direct injury”].) And a fail-ure to allege or prove any imminent injury isa basis for a denial of certification (and dis-missal). (See Low v. LinkedIn Corp. (N.D.Cal. Nov. 11, 2011) 2011 U.S. Dist. LEXIS130840, at *8-*9, *15 [dismissing Internetcookie and beacon case for lack of Article IIIstanding].)

Notwithstanding these authorities, thewave of litigation has already arrived undernumerous states’ consumer privacy laws.California is no exception. And privacystatutes may provide a vehicle to address thestanding issue. Privacy statutes can beanalogized to common law privacy torts,where the appropriation of personality,intrusion on seclusion, publication of privatefacts, and portrayal in a false light can causeactual injury that supports standing underArticle III.

Yet privacy statutes have extended farbeyond the common law definition of a pri-vacy injury. For example, the Fair andAccurate Credit Transactions Act (FACTA)requires retailers to redact from receipts

34

derails of credit card expiration dates andcertain credit card numbers, and provides forstatutory damages of $100 to $1,000 per vio-lation. (15 U.S.C. §§ 1681c(g), 1681n.) Aretailer processing millions of transactionsper year could be exposed to literally billionsin damages even if additional digits providedno useful information or caused no harm.(Lopez v. KB Toys Retail, Inc. (C.D. Cal.July 17, 2007) No. CV 07-144-JFW, 2007 U.S.Dist. LEXIS 82025, at *14-15.)

Because the certified question in FirstAmerican asked generally whether statutorydamages are sufficient for standing orwhether a specific injury in fact must also beidentified, the same question could arise inthe context of these privacy-related statutes:the Telephone Consumer Protection Act, theVideo Privacy Protection Act, the CableCommunications Privacy Act, the Fair CreditReporting Act, the Electronic Funds TransferAct, the Drivers Privacy Protection Act, andthe Electronic Communications Privacy Act.

Several pending cases (including thosethat were stayed pending the decision inFirst American) are likely to either deepenthe split among the circuits, or provide thevehicle for the Supreme Court to once againtake up the issue. And the many actionspending in the district courts in Californiaconcerning violations of the Song BeverlyCredit Card Act and California’s Invasion ofPrivacy Act will provide vehicles more locallyfor the Ninth Circuit to address the boundsof its First American decision in the contextof state statutes.

Thus, only time will tell whether FirstAmerican and statutory violations withoutother injury will support standing and ArticleIII jurisdiction, or whether the SupremeCourt will take another opportunity toaddress the issue that it avoided in FirstAmerican.

Michael Geibelson and Joel Mintzer are busi-ness trial lawyers and partners with Robins,Kaplan, Miller and Ciresi L.L.P. They can becontacted at [email protected] and [email protected].

35

A s attorneys, we care about thesethings. Our clients do, too. Attor-ney fees frequently exceed the

damages in a case, and ensuring recovery, orlimiting exposure, can be critical.

Most of us know the basic rules governingattorney fee awards in civil litigation. Underthe English Rule, the loser in a civil case paysfor the winner’s fees. That rule is followed inEngland and most Western countries, otherthan the United States. The philosophybehind it is that a party is entitled to legalrepresentation to prosecute or defend a claimand should not have to incur the cost if thatclaim or defense is proven valid. Proponentsof the English Rule believe that because it

encourages meritorious claims and discour-ages frivolous ones, it ultimately reduceslitigation.

By contrast, under the American Rule,each party pays for its own attorney feesregardless of the outcome, unless a specificstatute or contract provides otherwise. Thephilosophy behind the American Rule is thatparties should be free to prosecute or defendclaims they perceive to be right and shouldnot be discouraged by fear of potential liabili-ty for the opposing side’s fees. Proponents ofthe rule believe that parties to a contractshould be able to decide whether a fee-shift-ing provision would be beneficial to them andthat the Legislature can put this in placewhere public policy requires it.

When federal district courts award or denyattorney fees, the courts of appeals most of-ten apply the highly deferential abuse-of-dis-cretion standard of review, which rarelyresults in reversals. But reviewing courtsapply the more rigorous de novo standard ofreview to purely legal issues that can arise indecisions about fees.

Over the last few years, the Ninth Circuithas reversed and vacated attorney fee orderson de novo review of legal issues in five maincategories: (1) prevailing party status; (2)attorney eligibility; (3) statutory and contrac-tual authorization; (4) status or requirements;and (5) method of amount determination.

Ninth Circuit Attorney FeeAwards & De Novo Review

By Audra Ibarra

Audra Ibarra


36

— Prevailing Party Status —The Ninth Circuit has applied a de novo

standard of review and reversed attorney feeorders because it disagreed with the districtcourt’s decision on prevailing party status.Most recently, in La Asociacion de Trabaja-dores de Lake Forest v. City of Lake Forest(9th Cir. 2010) 624 F.3d 1083, a nonprofitorganization advocating on behalf of daylaborers sued a city over the enforcement ofrestrictions on soliciting work on public side-walks. (Id. at p. 1085.) After the parties set-tled, the nonprofit moved for attorney feespursuant to the Civil Rights Attorney’s FeesAwards Act, and the district court denied themotion. (Id. at p. 1087; 42 U.S.C. § 1988(b).)

The Ninth Circuit reversed in relevantpart. (La Asociacion de Trabajadores deLake Forest v. City of Lake Forest, supra,624 F.3d at pp. 1085, 1090.) The court statedthat it reviews “a district court’s determina-tion regarding ‘prevailing party’ status denovo.” (Id. at p. 1089.) It noted that prevail-ing party status usually turns on the questionof whether a judgment has materially alteredthe legal relationship of the parties. (Ibid.)And it explained that this question “is a legalone.” (Ibid.)

The court held that similar to a judgmentthat confers prevailing party status, a settle-ment agreement may confer such statuswhen, as in this case, the agreement: (1) wasjudicially enforceable; (2) materially alteredthe legal relationship between the parties;and (3) provided actual relief on the merits ofplaintiff’s claims. (La Asociacion de Traba-jadores de Lake Forest v. City of LakeForest, supra, 624 F.3d at pp. 1089-90.)

The Ninth Circuit also reversed on theissue of prevailing party status in Weissburgv. Lancaster School District (9th Cir. 2010)591 F.3d 1255 [finding status in case concern-ing Individuals with Disabilities EducationAct], Citizens for Better Forestry v. UnitedStates Department of Agriculture (9th Cir.2009) 567 F.3d 1128 [declining to find statusin case concerning Equal Access to JusticeAct], and Echostar Satellite Corporation v.

NDS Group PLC (9th Cir. Aug. 4, 2010, Nos.09-55005, 09-55633) 2010 WL 3034603 [find-ing status in case concerning RacketeerInfluenced and Corrupt Organizations Act].

— Attorney Eligibility —

Another area in which the Ninth Circuithas applied a de novo standard of review andreversed is where it disagreed with the dis-trict court’s decision on attorney eligibility forcoverage by an award. Most recently, inRickley v. County of Los Angeles (9th Cir.2011) 654 F.3d 950, a woman sued a countyfor violating her rights to freedom of speechand equal protection. (Id. at p. 951.) Afterthe parties settled, the woman moved pur-suant to the Civil Rights Attorney’s FeesAwards Act to recover fees for her spouse,who was her lead attorney, and his co-coun-sel. (Id. at p. 952; 42 U.S.C. § 1988(b).) Thedistrict court denied the fees for the spouse,but granted them for co-counsel. (Rickley v.County of Los Angeles, supra, 654 F.3d at p.952.)

The Ninth Circuit vacated and remandedthe order as to the spouse. (Rickley v.County of Los Angeles, supra, 654 F.3d at p.957.) It explained that although “[a]wards ofattorney’s fees are generally reviewed for anabuse of discretion,” the court “only arrive[s]at discretionary review if [it is] satisfied thatthe correct legal standard was applied andthat none of the district court’s findings offact were clearly erroneous.” (Ibid.) By con-trast, it reviews “questions of law de novo.”(Id. at p. 953.) The court held that the CivilRights Attorney’s Fees Awards Act does notrequire “counsel to be independent and emo-tionally detached.” (Id. at p. 955.) Thus, thecourt concluded that under the Act, “a suc-cessful civil rights plaintiff may recover a rea-sonable attorney’s fee for legal services per-formed by her attorney-spouse.” (Id. at p.951.)

The Ninth Circuit also reversed on theissue of attorney eligibility in Weissburg v.Lancaster School District, supra, 591 F.3d1255 [finding grandmother eligible] and

37

Winterrowd v. American General AnnuityInsurance Co. (9th Cir. 2009) 556 F.3d 815[finding out-of-state attorney eligible].

— Statutory and —Contractual Authorization

Review of the district court’s finding ofstatutory or contractual authorization canalso lead to de novo opinions and reversals.In Hyde v. Midland Credit Management(9th Cir. 2009) 567 F.3d 1137, a debtorbrought an action against a debt collector forviolations of the Fair Debt Collection Prac-tices Act. (Id. at p. 1139; 15 U.S.C. § 1692k(a)(3).) After a bench trial, the district courtreturned a verdict in favor of the collector.(Hyde v. Midland Credit Management, su-pra, 567 F.3d at p. 1139.) The collectormoved for attorney fees. (Ibid.) The districtcourt granted the motion and found thedebtor and his attorneys were jointly andseverally liable for the award. (Ibid.) TheNinth Circuit reversed as to the attorneys.(Id. at pp. 1139, 1142.) The court noted thatit reviews “de novo the legal question [of]whether attorney’s fees and costs may beawarded” under a statute. (Id. at p. 1139.) Itheld, on a matter of first impression, that theFair Debt Collection Practices Act does notauthorize a district court to order that anattorney (as opposed to a party) pay anattorney fee award. (Id. at pp. 1140-42; 15U.S.C. § 1692k(a)(3).)

The Ninth Circuit also reversed on theissue of statutory or contractual authoriza-tion in Oregon Natural Desert Associationv. Locke (9th Cir. 2009) 572 F.3d 610 [hold-ing no retroactive authorization underFreedom of Information Act] and SCIE LLCv. XL Reinsurance America, Inc. (9th Cir.Sept. 27, 2010, Nos. 08-56502, 08-56537)2010 WL 3825495 [finding no authorizationunder contract].

— Statutory Requirements —The Ninth Circuit has also applied a de

novo standard of review, and reversed andvacated attorney fee awards because it dis-

agreed with the district court’s interpretationof statutory requirements. Most recently, inFabbrini v. City of Dunsmuir (9th Cir.2011) 631 F.3d 1299, a city sued an individ-ual for failure to sufficiently collateralize amunicipal loan. (Id. at p. 1301.) The city vol-untarily dismissed the lawsuit, and the indi-vidual filed a defamation claim and a section1983 malicious prosecution claim against thecity. (Ibid; 42 U.S.C. § 1983.) The city movedto strike the defamation claim underCalifornia’s anti-SLAPP statute and to dis-miss the malicious prosecution claim.(Fabbrini v. City of Dunsmuir, supra, 631F.3d at p. 1301.) The district court grantedthe motion to strike, but denied the motionto dismiss. (Ibid.)

The court awarded attorney fees to thecity on the basis of the successful anti-SLAPP motion and later granted summaryjudgment in favor of the city on the maliciousprosecution claim. (Fabbrini v. City ofDunsmuir, supra, 631 F.3d at p. 1301.) Theattorney fee award included fees not only forthe successful anti-SLAPP motion, but alsothe unsuccessful motion to strike the mali-cious prosecution claim “to the extent thatany of those hours were ‘inextricably inter-twined’ with the anti-SLAPP motion.” (Id. atp. 1302.)

The Ninth Circuit vacated and remandedthe order as to the fees for the malicious pro-secution claim. (Fabbrini v. City of Duns-muir, supra, 631 F.3d at p. 1302.) It stated“any elements of legal analysis and statutoryinterpretation which figure in the districtcourt’s decision are reviewable de novo.”(Ibid.) The Ninth Circuit held that the CivilRights Attorney’s Fees Award Act requiresthat a section 1983 malicious prosecutionclaim be found “unreasonable, frivolous, mer-itless or vexatious” in order for a prevailingdefendant to recover attorney fees. (Ibid.)The court noted that the district court hadfailed to make the requisite finding. (Ibid.)

The Ninth Circuit also reversed or vacatedon the issue of statutory requirements inHarris v. Maricopa County Superior

38

Court (9th Cir. 2011) 631 F.3d 963 [findingrequirements not met under Arizonastatute], Kimbrough v. California (9th Cir.2010) 609 F.3d 1027 [finding requirementsnot met under Prison Litigation Reform Act],and 21X Capital LTD v. Werra (9th Cir.March 4 2011, No. 09-17336) 2011 WL759954 [finding requirements not met underCalifornia Civil Code section 1717, subdivi-sion (a)].

— Method of —Amount Determination

Lastly, the Ninth Circuit has applied a denovo standard of review and vacated feeawards because it disagreed with the districtcourt’s method of determining the amount ofthe award. In Harris v. Maricopa CountySuperior Court, supra, 631 F.3d 963, a for-mer Arizona court employee sued her formeremployer, the state court, for violations of,among other things, Title VII and theFourteenth Amendment. (Id. at p. 968.) Thedistrict court granted the employer’s motionsfor judgment on the pleadings and summaryjudgment, and awarded the employer attor-ney fees. (Id. at p. 969.)

The majority of the employer’s request forattorney fees was not allocated to a specificclaim in the case, but instead was designated“general fees.” (Harris v. Maricopa CountySuperior Court, supra, 631 F.3d at p. 971.)To determine the amount of the attorney feeaward, the district court divided the generalfees equally across the 10 claims in the em-ployee’s complaint; then for each claim forwhich an award was appropriate, it addedone-tenth of the general fees to the total.(Ibid.)

The Ninth Circuit vacated and remanded.(Harris v. Maricopa County SuperiorCourt, supra, 631 F.3d at pp. 969, 980.) Thecourt held that a challenge to the methodused to determine the amount of fees attrib-utable to claims for which an attorney feeaward is appropriate is “legal in nature andtherefore reviewed de novo.” (Id. at p. 970.)The court further held that in a civil rights

case, “the pro-rata allocation of general feesbetween claims for which a fee award is ap-propriate and claims for which such anaward is not appropriate, based solely on thenumber of claims, is impermissible.” (Id. at p.971.) The court explained that a party thatmoves for an award of attorney fees bearsthe burden of proving entitlement to theamount requested. (Id. at pp. 971-72.)

The Ninth Circuit also reversed and vacat-ed on the method of amount determinationin Evon v. Law Offices of Sidney Mickell(9th Cir. 2012) 688 F.3d 1015 [holding dis-trict court must consider several factorsunder Fair Debt Collection Practices Act]and Hohlbein v. Utah Land Resources LLC(9th Cir. April 22, 2011, No. 09-17598) 2011WL 15268727 [holding lack of prelitigationnotice of intention to sue does not justifyreduction].

— Why These Cases —are Significant

The Ninth Circuit is ready, willing and ableto reverse on legal issues regarding prevail-ing party status, attorney eligibility, statutoryand contractual authority, statutory require-ments, and method of amount determinationif it disagrees with a district court’s decisionon an attorney fee order. Although attorneyfee awards and denials are usually affirmedon appeal, affirmance is not guaranteed,especially on these issues.

The court reviews these and other legalissues under a de novo standard, conductinga more searching and independent review.Thus, the loser in a civil case should litigateand preserve these and other legal issues inthe district court and, if necessary, raisethem on appeal. Given the Ninth Circuit’swillingness to reverse on these issues, ifthere is doubt on the outcome of appeal,both sides may want to explore settlement.

Audra Ibarra is a civil and white-collar appel-late attorney. She has a solo practice and isalso counsel to California Appellate LawGroup. [email protected]

39

I am a trial lawyer. I have been practicingfor over six years, yet am still in singledigits with respect to taking cases to ver-

dict. When I first started as a civil litigator, Iwould go to conferences and hear from thelegends of the trial bar. These panels of mas-ters would be comprised of distinguishedattorneys who have tried many hundreds ofcases each.

My head would spin every time I wouldhear their resumes. On the left would besomeone who tried 300 cases, on the rightwould be a gentleman who tried 250 cases,and in the middle would be someone whotried a paltry 200. To a young lawyer, hearingthese figures sounded like (and still does)learning about Wyatt Earp and the Wild West.

I am no Melvin Belli, but I am a trial attor-ney. I love the theater and excitement of trial.From the moment the jury walks in for voir

dire to the time the verdict comes in, there isnothing else in our profession that matchesthe intensity. However, times have changed.Newer lawyers coming into civil litigation willnever be able to match the sheer volume oftrial work undertaken by our predecessors.The rising cost of litigation, from expert coststo lack of funding for our court system, ren-ders resolving disputes in the courtroom arare occurrence. The popularity of ADR con-tinues to blossom. It was once consideredweak to agree to mediate a heavily disputedclaim. Now it is universally considered cost-effective.

What this continuing trend means for newlawyers is that we have to find other ways tostay sharp for the big game. Our colleaguesthat came decades before us would be in trialmonthly (and some weekly). They got tomake mistakes, learn and grow. They couldexperiment. If they made a mistake and sometheme didn’t resonate with one jury, theywould be picking another the following week.The new breed of trial lawyers are not afford-ed this luxury.

Still, there are no excuses. Our clientsdeserve and demand effective trial lawyers.The challenge for the next generation of trialattorneys is how to become as comfortable inthe courtroom as those that came before usand how to keep our arrows poised whenthey are being let out of the quiver so infre-quently.

The answer is to learn the requisite skillsand keep them sharp by exercising trial skillsin our voluminous non-trial work. Here are six(of many) ways to do so:

1. Take and defend a lot of depositions:

New Lawyers:The New Trial Lawyer

By Neil Berman

Neil Berman


40

While depositions may be held in a conferenceroom and not in the majesty of the courtroom,you can still hone your preparation and cross-examination tactics. Ask your partner if youcan prepare and defend your liability and/ormedical expert for their depo. You can thenprepare that person with the same attentionto detail you would if you were getting themready for trial. The more comfortable you arein diligently preparing and conducting exami-nations in a deposition will serve you wellwhen the venue moves from the boardroomto the courtroom.

2. Arbitrate: For those in personal injury,take the appropriate UM or UIM case andarbitrate it. These are perfect mini-trials foryou to practice your craft. Except for pickinga jury, you get to do almost everything youwould at trial. Prepare and deliver an open-ing, cross-examine experts, conduct a directof your client, and make a succinct closing.

3. Expedited jury trials: This concept isgaining more popularity among both sides ofthe bar and is being welcomed by the superi-or courts. This model allows for a truncatedjury trial. Fewer jurors and time constraintsfor questioning witnesses makes this modelmore cost-effective, but still just as useful asa regular trial for practicing the skills neces-sary to litigate. Pick the right case and go forit. Taking a smaller case to expedited jurytrial will not only get your client their day incourt, but will allow you to prepare yourselfso you are better equipped for future regulartrials.

4. Administrative hearings: These hear-ings are great venues to gain experience.Whether it is a Social Security disability orunemployment hearing, you will have anopportunity to get in the courtroom, prepareyour client, cross-examine experts/witnessesand — most importantly — think on yourfeet in a pressure situation. Plus, they can bevery rewarding. A client who receives SocialSecurity disability benefits after a long ardu-ous review process and hearing is every bit asgrateful as one that receives a substantial ver-dict after a civil jury trial. You can make amajor difference in someone’s life and gain

valuable professional experience. 5. Go watch others: Even though trials

aren’t occurring as frequently as they were inthe “good old days,” they are still happeningevery day around the state. If you live near amajor metropolis, there is no shortage of vet-eran trial lawyers from whom you can learn.Take a half-day and watch one of the legendspick a jury. Observe how a crafty attorneypicks apart an opposing expert. Marvel at anemotional and succulent summation. Notonly can you learn useful tips, but just asimportantly you can also glean what doesn’tresonate with jurors.

6. Sit second chair early and often: I wasso fortunate that I had an extraordinary men-tor (Cheryl P. Weiner) to learn from. Shethrew me right in the deep end and I loved itand still thank her for it. I sat second chair ina trial within a couple months of enteringcivil litigation. She let me cross-examine adefense witness and conduct the direct of akey percipient witness. The confidence sheshowed in me has helped me become morecomfortable in all phases of my practice. Ifyou are a partner handling a file, let yourassociate do something substantive during atrial. It will not only relieve some of the bur-den for you at the time, but will make sureyou have someone who is gaining confidenceand will be ready to take on more responsi-bility the next time you enter the court-house. If you are a young associate, makeyour presence felt and do whatever you canto get to counsel’s table. The more times yousit there, the more at home you will be whenyour day as the lead dog comes around.

We practice in a new era. Gone are thedays where trial attorneys live in the court-room. Yet our clients will expect and deservethe future generation to be every bit as effec-tive as our predecessors. You owe it to yourfuture clients and to yourself to get and keepyourself ready.

Neil Berman is a partner at Rucka, O’Boyle,Lombardo & McKenna in Monterey County. Hepractices personal injury, workers’ compensa-tion and Social Security Disability law.

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L ast year, the United States SupremeCourt issued its seminal decision inAT&T Mobility LLC v. Concepcion

(2011) 131 S. Ct. 1740, 179 L. Ed. 2d 742,wherein it held that a class action waiver con-tained in the arbitration clause in AT&T’s cus-tomer agreement was not unconscionable. Indoing so, the Court held that the Federal Ar-bitration Act (FAA) preempted the ruleenunciated by the California Supreme Courtin Discover Bank v. Superior Court (2005)

36 Cal.4th 148 that a class action waiver in acontract was unconscionable and, hence,unenforceable where the effect of the waiverwas to “cheat” consumers out of small sumsof money.

The Court, recognizing that the DiscoverBank rule applied to all contracts and notjust arbitration contracts and, therefore,

ADR Update:California Arbitration in the Wake of Concepcion

By Paul J. Dubow


Paul J. Dubow

42

would not have been preempted under thethen-existing test for preemption, added anadditional preemption test, to wit, whetherthe state rule or statute disfavors arbitration.The Court held that the Discover Bank ruledisfavored arbitration, because (1) the switchfrom bilateral to class arbitration sacrificedthe principal advantage of arbitration, itsinformality; (2) class arbitration required pro-cedural formality as evidenced by the rules ofthe American Arbitration Association, whichmimicked the Federal Rules of Civil Pro-cedure; and (3) class arbitration increasedrisk to defendants.

— Unwaiveable Statutory Rights —One might think that Concepcion validat-

ed class action waivers in all California arbi-tration contracts. But California has otherrules and statutes that render unenforceableclass action waivers or arbitration clauses ingeneral and, hence, disfavor arbitration.There is a debate in the courts and elsewhereabout whether Concepcion extends to theserules and statutes.

Perhaps the most common rule that barsthe enforcement of a class action waiver in aCalifornia arbitration contract is the one thatdenies enforcement of the waiver (or the con-tractual right to arbitrate in general) wherethe plaintiff is asserting what is deemed to bean unwaiveable statutory right. These rulesare set forth in Gentry v. Superior Court(2007) 42 Cal.4th 443 [statutes protectingemployees], Broughton v. Cigna Health-plans of California (1999) 21 Cal.4th 1066[Consumer Legal Remedies Act], Cruz v.Pacific Healthcare Systems, Inc. (2003) 30Cal.4th 303 [Unfair Competition Law], andFranco v. Athens Disposal Company, Inc.(2009) 171 Cal.App. 4th 1277 [PrivateAttorney General Act].

In Plows v. Rockwell Collins, Inc. (C.D.Cal. 2011) 812 F. Supp. 2d 1063, the courtheld that while Concepcion overruledDiscover Bank, it did not overrule Gentry,because Discover Bank is a rule aboutunconscionability, while the rule set forth in

Gentry is concerned with the effect of a classaction waiver on unwaiveable statutory rightsregardless of unconscionability. But inSanders v. Swift Transportation Co. ofArizona LLC (N.D. Cal. 2012) 843 F. Supp.2d 1033, 1037, a different federal court noted

that Gentry prohibited an arbitration claimoutright and that when a state law or ruledoes so, it is preempted by the FAA, as setforth in Concepcion.

There has been a similar split in the courtswith respect to the Private Attorney GeneralAct. (Cf., Brown v. Ralph’s Grocery Co.(2011) 197 Cal.App.4th 489, 500 [statute notpreempted], Quevedo v. Macy’s Inc. (N.D.Cal. 2011) 798 F. Supp. 2d 1122 [statute pre-empted].) The desire to keep statutory claimsbased on public policy in the courts and outof the hands of arbitrators may be a laudablegoal, but as expressed by the court in Nelsenv. Legacy Partners Residential, Inc. (2012)207 Cal.App.4th 1115, 1136, while these rules

‘Code of Civil

Procedure section 1281.2,

subdivision (c), is

another statute that

may be affected

by Concepcion.’

43

may be based on the sound public policy ofthe California Legislature, courts are not freeto ignore Concepcion’s holding that statepublic policy cannot trump the FAA. Thus, itis doubtful that the rules making unwaiveablestatutory claims non-arbitrable will surviveConcepcion.

— Unconscionability —Another doctrine that some think could be

affected by Concepcion is that of uncon-scionability, most vividly expressed by theCalifornia Supreme Court in Armendariz v.Foundation Health Psychare Services(2000) 24 Cal.4th 83. Although application ofthis doctrine will abrogate or limit an arbitra-tion contract, it has been a bulwark againstattempts by drafters of adhesion contracts torestrict the ability of their customers oremployees to bring certain claims, reduce thestatute of limitations, cap damages, andimpose other limitations on disputeresolution.

But unconscionability is a contractualdefense and applies to all contracts, not justarbitration contracts. Section 2 of the FAAstates that a written provision to settle a dis-pute by arbitration is valid “save upon suchgrounds as exist in law or in equity for therevocation of any contract.” The Concepcioncourt noted that “this savings clause permitsagreements to arbitrate to be invalidated by‘generally applicable contract defenses suchas fraud, duress or unconscionability.’” (31S.Ct. at p. 1746, emphasis added.) The doc-trine of unconscionability should, therefore,survive Concepcion.

— Third-Party Cases —Code of Civil Procedure section 1281.2,

subdivision (c), is another statute that maybe affected by Concepcion. This statute per-mits a court to deny a petition to compel arbi-tration where “a party to an arbitration agree-ment is also a party to a pending court actionor special proceeding with a third party, aris-ing out of the same transaction or a series ofrelated transactions and there is a possibility

of conflicting rulings on a common issue oflaw or fact.” The statute also permits a courtto delay granting the petition where there areother issues between the parties that are sub-ject to a pending court action or special pro-ceeding and the court determines that reso-lution of these issues may make the arbitra-tion unnecessary. There is no comparableprovision in the FAA. Thus, an otherwisevalid arbitration agreement subject to theCalifornia Arbitration Act may not beenforced because of the happenstance that athird party involved in the dispute is not sub-ject to the arbitration agreement or the dis-pute includes a non-arbitrable claim as wellas an arbitrable claim.

The California Supreme Court has alreadyheld that section 1281.2, subdivision (c), isnot preempted by the FAA. Cronus Invest-ments, Inc. v. Concierge Services (2005) 35Cal.4th 376. But that decision was renderedprior to Concepcion. The statute might besaved from preemption because courts arenot obliged to deny a petition to compel arbi-tration in those situations where section1281.2, subdivision (c), applies. They havethe discretion to stay the arbitration pendingthe outcome of the judicial proceeding orstay the judicial proceeding pending the out-come of the arbitration, a result that is alsoset forth in Section 3 of the FAA.

But, given that this statute can result inthe denial of enforcement of an otherwisevalid arbitration agreement, it is conceivablethat it could be found to disfavor arbitration.Such a ruling would be unfortunate, becausethe spectre of conflicting rulings emanatingfrom an arbitration and a court proceeding iscertainly not desirable. Perhaps it is time toamend the FAA to include a provision similarto Section 1281.2(c).

Paul J. Dubow is an arbitrator and mediatorpracticing in San Francisco specializing inemployment, securities, and commercialtransactions. He has been a member of the edi-torial board of California Litigation for thepast 20 years.

44

I tried the Egan v. Mutual ofOmaha case in 1974. In 1979,the California Supreme Court

rendered its landmark decision inthat case formally establishing insur-ance bad faith as an independentcause of action. This case could haveturned out a lot differently, but for apivotal piece of evidence that wasuncovered during trial. It all hap-pened in a split second of time andby a slip of the tongue. Here’s thestory.

— A Life-and-Law —Changing Accident

Michael Egan, a muscular 55-year-old roofer, fell off a ladder. He hadbegun his day like thousands before,constructing rooftops in Pomona,California. But this morning, as hestepped down the ladder, a rungbroke. Mike plunged 12 feet to theground, injuring his back severely.

Mike had a Mutual of Omaha dis-ability insurance policy. The policy

promised to pay $200 a month for lifeif Mike became totally disabled by anaccident, but only for three months ifthe disability was a function of a sick-ness. Following his mishap, Mutual ofOmaha started paying the benefit onthe basis of Mike’s accident. Then itcut off the benefit abruptly severalmonths later contending that hisback problems were due to arthritis— a sickness.

“I Learned AboutLitigating from That”

The Corporate Crack

By William M. Shernoff


William M. Shernoff

45

Mike’s case was simple. He hurthis back falling off a roof. After aboutsix months of conservative therapy,the injury required back surgery. The

operation was unsuccessful, and thedoctors declared Mike totally dis-abled. Classification of Mike’s injuryas either a sickness or an accidentbecame the pivotal point in the case.

The trial reflected a classic con-frontation. Mike, a stout Irish immi-grant with a grade-school education,worked most of his life as a roofer. Hehad a disabled wife and a young

daughter. On the other side of thecourtroom sat attorneys for Mutualof Omaha, self-acclaimed as thelargest accident and health insur-ance company in the world.

It soon became obvious thatMike’s disability was caused by theaccidental fall and not a sickness.The defense attorneys’ only strategywas to turn against the localadjusters and throw them under thebus. Mutual of Omaha’s home officeknew nothing of this “reclassifica-tion to sickness,” argued the attor-neys. If the strategy worked, thejury might sympathize with an hon-est company that simply had tworotten eggs. The trial’s focus shifted.The question became, who wasresponsible for the dirty work — thelocal adjusters or the home office?

Mutual of Omaha called WillardGustin, a home office manager toexplain that the authority to termi-nate a claim such as Egan’s restedwith local adjusters and that theydid so without home office authori-ty. The home office file on Egan, hesaid, in fact had been misplaced fora period and had been lost some-where, “as can happen in large cor-porations.” The file, he said, musthave fallen into a “corporate crack.”

— It Pays to be —a Good Listeneer

Gustin stuck to his story that thelocal level did the dirty work and thehome office didn’t know what wasgoing on. But when Mutual of Oma-ha’s own lawyer questioned him, heinadvertently referred to a “file jack-et.” I was lucky enough to catch thisinnocent slip of the tongue. I had acopy of what was represented as theentire claim file, but had never seenor heard of a “file jacket.”

I showed the court my copy ofthe file, which was represented tome as full and complete yet did notcontain the file jacket. Finally, itcame out that the file jacket was

back in Omaha. The court orderedthe company to produce it immedi-ately, and it arrived by air courier thenext day.

When I first read the file jacket, Iknew I had hit pay dirt. During theentire trial, Mutual of Omaha hadasserted that its home office had notseen this file during the crucial peri-od when the company reclassifiedMike’s claim from accident to sick-ness. Here was a file jacket bearingapproximately 20 dated stamps fromthat crucial period. It showed thatthe home office knew of andapproved the reclassification tosickness.

After using the file jacket in fur-ther questioning of Gustin, it wasbeginning to appear that Mutual ofOmaha was sinking into its own cor-porate crack. The jury believed thatthe company hadn’t treated Mikefairly in the first place. In addition,they now witnessed Mutual ofOmaha’s deceptive attempts to shoveall the blame onto its lower-echelonadjusters. And that backfired.

— The Outcome… —And the Lesson

After hearing all the testimony,the jury was quite upset at Mutual ofOmaha and hit them with a multi-million-dollar punitive-damageaward. This verdict led to the land-mark California Supreme Court deci-sion. If I hadn’t caught that slip of thetongue about a file jacket, the casewould have turned out much differ-ently. It pays to be a good listener.

William M. Shernoff is a senior part-ner of Shernoff Bidart EcheverriaBentley LLP, in Beverly Hills andClaremont, a law firm specializingin insurance bad faith litigation. Heis a former president of CaliforniaTrial Lawyers Association (nowConsumer Attorneys of California).(Reprinted with permission ofConsumer Attorneys of California.)

‘I showed the court

my copy of the

file, which was

represented to me

as full and complete

yet did not contain

the file jacket.’

46

I n this biography of formerChief Justice William H.Rehnquist, the author, John A.

Jenkins, starts with an introductionthat includes the following:

“Rehnquist’s judicial philosophy

was nihilistic at its core, disrespectfulof precedent and dismissive of social,economic, and political institutionsthat did not comport with his black-and-white view of the world.Rehnquist instinctively knew whose

side he was on when it came to crim-inals and law abiders, minorities andthe white majority, the poor and the

McDermott On Demand:Book ReviewThe Partisan:The Life of William Rehnquist By John A. Jenkins (Public Affairs: NY)

Tom McDermott


47

rich, the powerless and the powerful.He set his plan accordingly.Infatuated with his own genius, hespoke his mind, cast his votes, anddamned his critics.”

In other words, this was a flawedman with a flawed personality who

appeared to lead a flawed court toflawed decisions.

I don’t know why authors writesuch introductions. If you have come

to the book sympathetic toRehnquist, you will either stop read-ing now, or go on — but wonder whyyou have failed so miserably in yourown judgment making the next sev-eral hundred pages a bit of a drag. Ifyou are already indisposed as toRehnquist, you will stop reading nowbecause your beliefs have beenconfirmed.

If we needed any further pushinto giving it up, a few sentenceslater, he states: “Thus, despite hisintellectual gifts, Rehnquist left nobody of law or opinions that definehis tenure as chief justice or evenseem likely to endure.”

So the cases aren’t of any valueeither. Nothing to learn here.

To pound the nail in Rehnquist’scoffin, still in the introduction, welearn that, in the Rehnquist court:“Gone are the majorities that rejuve-nated the Bill of Rights, enfranchisedblack citizens, dismantled southernsegregation, protected people frompolice abuse, removed religion frompublic schools, forced a presidentfrom office, and safeguarded awoman’s right to abortion.”

Of course, all of these might havebeen better done by a responsiblelegislature or Executive Branch.Though Jenkins wants a politicalcourt, he is dismayed that Rehnquistgave us a political court. The prob-lem is, of course, that it was a politi-cal court with the wrong politics forthe author.

It’s fair to write a political biogra-phy, especially when you make yourpoint of view known as clearly asJenkins does. But the author needsto get his motivations straight.

Jenkins quotes from a thesisRehnquist wrote for his master’s de-gree at Stanford: “When we comparethe emotional dynamism of the vastwritten literature on the subjects ofphilosophy and politics with that ofthe great tragedies, in the field ofdrama, with the master works of art

and the finest efforts of the greatmusical composers, we may wellhave misgivings as to whether thelogical treatise method which hascharacterized almost all of philoso-phy since its inception can ever suffi-ciently grasp the human reality whichis the nexus of the problems which itseeks to solve.”

Putting aside what apparentlypassed for academic excellence atStanford at the time, what thatmeans is that King Lear may be moreinstructive than Kierkegaard. It hasno relation whatsoever to Jenkins’assertion that this establishes thatRehnquist was early on a nihilist andthat the above was the first iterationof Rehnquist’s nihilistic judicial phi-losophy. The Rehnquist quote hasnothing to do with nihilism.

The book is well-written in aspritely journalistic fashion. Jenkinsis not a lawyer. This will be obvious toany trial lawyer reading the book. Forexample, Jenkins states that whenRehnquist went into practice inPhoenix, Arizona, with top-line lawfirms doing litigation as well as otherlegal activities, he fell into an “Ozzieand Harriet type of life.” No one whohas ever been with a major law firmin a major metropolitan area, doinglitigation, had an “Ozzie and Harriettype of life.” Has Jenkins never heardof clients, partners and judges? Heobviously never had to deal withthem.

If you want a diatribe that theSupreme Court roars off the track tothe right (never to the left) too often,you will find this book of interest. Ifyou are of an opposite persuasion,the book may be a blood-boiler. Forworking lawyers, I’m afraid there’snot much to learn here. Judges haveprejudices? I’m shocked – shocked!

A longtime member of the Cali-fornia Litigation Editorial Board,Mr. McDermott is a sole practition-er in Palm Desert.

‘The book is

well-written in

a spritely journalistic

fashion. Jenkins is

not a lawyer. This

will be obvious to

any trial lawyer

reading the book.’

48

• A Beginners Guide to CivilWrit Practice in the Courts ofAppeal.

• Insurance Law for Litigators.• Summary Judgment: Recent

Developments and the View fromthe Bench.

• The Cocktail Party Conun-drum: The Accidental Client.

• What Every Litigator andMediator Needs to Know AboutExpedited Jury Trials and EJTProposed Consent Orders.

Our planning for 2013 includesseveral new programs reaching outto our members in diverse areas oflitigation practice. We are planningtwo separate panel discussions to beheld in March and April on selectingoutside and in-house counsel as wellas uses of alternate dispute resolu-tion tools for in-house legal depart-ments. We are also creating new“webinars” to provide further inex-pensive educational opportunities forLitigation Section members. Thesecan be found on the State Bar Website. (To access the website go tohttp://litigation.calbar.ca.gov andclick on “education.”)

The Section also produces threepublications: California Litigationpublishes articles on current litiga-tion and legal practice; the Cali-fornia Litigation Review publishessummaries of cases and relevantlegal developments; and CaliforniaLitigation Update provides currentlegal information and is posted onthe section’s State Bar Web site eachmonth.

We have a very active subcommit-tee devoted to providing review andcomments to legislation and pro-posed jury instructions.

The Section’s Annual Trial LawyerHall of Fame Award was presentedlast year to Mary Alexander who wascelebrated with an awards receptionin San Francisco. Past inducteesinclude Mark P. Robinson in 2011and Chris Arguedas and Penny

Cooper in 2010. Nominations for the2013 Hall of Fame are already com-ing in and we look forward to thenext reception in June.

Our community outreach effortsincludes two programs: the Dress forSuccess program, which assistsunderprivileged women in acquiringemployment, and the NationalLawsuits program founded by theLitigation Section in association withthe Men’s Wearhouse, which is anational clothing drive for men’s pro-fessional attire.

We understand that networkingand meeting others who share simi-

lar professional goals are also keyaspects of professional developmentand present Litigation Sectionmixers in both Northern and Sou-thern California. We encourage allmembers and readers to visit theState Bar Web site page for theLitigation Section for a listing of allof our planned events and latestannouncements.

Lisa Cappelluti is the San Fran-cisco Managing Partner of Lorber,Greenfield & Polito, and the 2012-2013 Chair of the Litigation Sec-tion’s Executive Committee.

Editorial Opinion(Continued from Inside Front Cover)

Litigation Section Executive CommitteePast Chairs

Alvin H. Goldstein, Jr. 1983 – 1985Daniel M. Sklar 1985 – 1986Robert Aitken 1986 – 1987James C. Hagedorn 1987 – 1988Hon. Lawrence W. Crispo 1988 – 1989Mark A. Neubauer 1989 – 1990Cedric C. Chao 1990 – 1991Michael D. Whelan 1991 – 1992Mark C. Mazzarella 1992 – 1993Thomas J. McDermott, Jr. 1993 – 1994Mark W. Hansen 1994 – 1995Kimberly R. Clement 1995 – 1996Teresa Tan 1996 – 1997George L. Mallory, Jr. 1997 – 1998Dana J. Dunwoody 1998 – 1999Robert S. Gerber 1999 – 2000Jerome Sapiro, Jr. 2000 – 2001Curtis D. Parvin 2001 – 2002Laura Lee Blake 2002 – 2003Charles V. Berwanger 2003 – 2004William J. Caldarelli 2004 – 2005Richard L. Seabolt 2005 – 2006Erik J. Olson 2006 – 2007Mark A. Mellor 2007 – 2008Gregory A. Nylen 2008 – 2009Michael D. Fabiano 2009 – 2010Elizabeth England 2010 – 2011Michael A. Geibelson 2011 – 2012

Past Editors-in-ChiefMark Herrmann 1987 – 1989Mark W. Hansen 1989 – 1991Christopher Engh 1991 – 1994Robert Aitken 1994 – 1996Russell Leibson 1996 – 1999Hon. Elizabeth Humphreys 1999 – 2002Joan Wolff 2002 – 2006Sharon J. Arkin 2007 – 2011

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