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Tag: Unpublished Opinions

December 9, 2022
The “Published” Vs. “Unpublished” Distinction Matters Less Than You Think, Says Justice Lambden

Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases. Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning […]

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November 10, 2022
Update: Opinion Published in Doe v. Software One, Inc.

In October 2022 the Court of Appeal issued its unpublished opinion in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145, covered here. On November 8, the court ordered the opinion be published. Doe v. Software One holds that evidentiary rulings in deciding a motion for summary judgment are reviewed […]

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September 20, 2022
“They Don’t Laugh at My Jokes Anymore.” Justice Lambden’s Lessons from the Trenches to the Benches and Back

As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should […]

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September 7, 2022
Arbitration Not Waived by 13 Months of Litigation? Supreme Court to Weigh In

The California Supreme Court will review a surprising appellate court holding from earlier this year (writeup here; podcast here) that held that a defendant did not waive the right to arbitrate, even though the defendant had answered the complaint, served multiple sets of discovery, took the employee-plaintiff’s deposition, and otherwise happily litigated for 13 months […]

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July 21, 2022
Promoting Clarity by Requesting Publication of Appellate Opinions

Only a small fraction of cases and issues go up on appeal. That means trial attorneys see things that appellate judges don’t. So when high-profile family-law specialist Christopher Melcher sees an appellate court issue an unpublished opinion tackling a troublesome issue, he asks the court to publish it, for the benefit of the rest of us. You […]

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July 13, 2022
When Judges Rely on Unpublished Opinions

Lawyers in California courts may not rely on unpublished cases. But federal courts may. And California courts may rely on federal courts—even when the federal court relies on an unpublished California case. In Meza v. Pacific Bell Telephone Co. (D2d3 Jul. 12, 2022 case no. B317119) 2022 WL 2680080, that’s just what a California court […]

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May 24, 2022
Celebrity Attorney Christopher Melcher on What Gets the Courts’ Attention

High-profile and celebrity family law attorney Chris Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff and Tim about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse. Chris then talks about a way to bring […]

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March 21, 2022
Why unpublished opinions probably should remain non citable

In defense of the prohibition on citing unpublished opinions, attorney Ryan McCarl notes to Jeff Lewis and me that, so long as California appellate judges continue “nonpublishing” opinions on the assumption practitioners not understand them to be real judicial decisions, we’d have to change their assumption before we change our understanding. Watch the clip here.  This […]

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March 8, 2022
Published Opinions Are Well-Thought-Out: Shouldn't They All Be?

In their article calling for relaxation of the no-citation rule, appellate attorneys David Ettinger and Dean Bochner point to this interesting quote explaining how much effort goes into a published appellate opinion: it “is an exacting and extremely time-consuming task” and “few, if any, appellate courts have the resources to write precedential opinions in every […]

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March 3, 2022
Proper and improper ways to get around the no-citation rule

Here are two ideas for getting round the “no-citation rule” that prohibits California attorneys from citing unpublished cases. But careful! Only one of them is actually a good idea. First, I ask appellate attorneys David Ettinger and Dean Bochner if attorneys may reference an unpublished case the same way a recent published case did: by naming the appellate district […]

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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

"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

“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

"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

"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

"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

"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

"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.)

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

Leviticus

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