Headnotes: Attorney (Dershowitz!) signs off on complaint as to only certain paragraph

Tim Kowal April 2, 2025

Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention:

Can an attorney sign as to only part of a pleading? Alan Dershowitz signed a complaint. The complaint contained frivolous allegations. But wait! Dershowitz says he was only “of counsel” and was only responsible for paragraph number 8, which was not frivolous. A 9th Circuit panel reversed the sanction because it is unclear whether Rule 11 liability applies to “of counsel.” Going forward, Judge Gould for the majority says yes. Judge Bumatay says no. Lake v. Gates (9th Cir. - March 17, 2025), h/t Prof. Shaun Martin.

Are articles of impeachment "attacks" on judicial independence? Bloomberg Law has: US Judges Speak Out Against Republican Impeachment Push, and Law.com has Federal Appellate Judges Denounce Threats, Impeachment Efforts, quoting Sixth Circuit Jeffrey Sutton: "Criticism is no surprise. It's part of the job.” "But I do think when it gets to the level of a threat, it really is about attacking judicial independence, and that's just not good for the system or the country.”

Comment: True, but our system is full of both democratic and counter-democratic checks, with judicial impeachment being one of the few democratic checks against an otherwise independent judiciary. (The other: court-packing schemes! Another: jury nullification!) Also, in all U.S. history, only 15 federal judges have ever been impeached, with eight being convicted by the Senate and removed. I’d wonder who believes those numbers are too high.

SLAPP fee orders are not appealable: True, the SLAPP order itself (partial grant, partial denial) is appealable. But the subsequent fee order is not. Ali v. Dignity Health. (2D5d. Dec. 31, 2024 No. B331058). (nonpub. opn.).

(Artwork by Randall Holbrook, RNDL.DESIGN.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Headnotes: Attorney (Dershowitz!) signs off on complaint as to only certain paragraph

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Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"A judge is a law student who grades his own papers." — H.L. Mencken

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)