Jumping the Gun: What Happens If a Notice of Appeal Is Filed While Post-Trial Motions Are Pending?

Posted by on Sep 13, 2021 in Appellate Practice

Sometimes, due to inadvertence, eagerness to move the case along, or strategic considerations, litigants will jump the gun and file a notice of appeal while post-trial motions are pending.  What are the consequences of this strategy in California?

It depends.  For certain post-trial motions, a superior court retains jurisdiction to rule on them even though a notice of appeal is filed—but that is not true for all such motions.  And in some cases, the law is not yet settled.

Read More

What Can Oral Argument Preparation Teach Us About Effective Briefing?

Posted by on Apr 21, 2021 in Appellate Practice

While attorneys advocate, judges search for the right result.  Here are three techniques for persuading judges by aiding them in their truth-seeking mission.

First, channel your audience’s inner “scientist.”  Organizational psychologists refer to four archetypes:  The preacher invokes fundamental values.  The prosecutor tries to win an argument.  The politician seeks to gain approval.  And the skeptical scientist searches for the truth.

Read More

Federal Anti-SLAPP Law Year in Review – 2019 Roundup

Posted by on Mar 31, 2020 in 9th Circuit, Anti-SLAPP

By Josephine Petrick & Breana Burgos

2019 was another active year for federal appellate anti-SLAPP opinions. Most notably, the circuit split deepened over whether state anti-SLAPP laws even apply in federal court.

Despite an earlier trend of federal courts applying state anti-SLAPP laws under Erie, recent decisions may reflect a new trend toward limiting or even eradicating the application of state anti-SLAPP laws in federal court—even in the Ninth Circuit.  Given the current robust circuit split and many intracircuit tensions discussed below, this is an issue that the U.S. Supreme Court or en banc circuit courts may be called on to resolve in the months and years to come.  These developments are a further testament as to why Congress should consider enacting a federal anti-SLAPP law.  Here’s an overview of the current circuit split and recent developments in 2019.

Read More

Amicus Briefs: Friend of the District Court, Too?

Posted by on Sep 10, 2019 in Amicus Briefs, Good Writing

Amicus briefs are often thought of as limited to appellate courts. However, they can be useful in federal district court, too. District courts have inherent authority to allow amici curiae to participate in briefing. See, e.g., NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005).

Benefits to Amici in District Court

Potential amici are likely to be interested in the broader impact on the law, especially when the case involves novel legal questions or pertains to an issue of public interest. Paul M. Collins, Jr., Who Participates as Amici Curiae in the U.S. Courts of Appeals?, 94 Judicature 128, 134 (2010). Amici may provide new perspectives and educate the court about the broader consequences its ruling may have.

Read More

Federal Class Action Appeals – What’s the Deadline to Petition to Appeal When a Motion for Reconsideration Is Filed?

Posted by on Dec 28, 2018 in 9th Circuit

If you’re litigating a putative class action in federal court and get a class certification order that is adverse to your client (whether plaintiff or defense), you may petition to take an immediate appeal of that order.  Fed. R. Civ. P. 23(f). The petition to appeal must be filed quickly—within 14 days.  Id.  The short turnaround time “is designed to reduce the risk that attempted appeals will disrupt continuing proceedings.” Fed. R. Civ. P. 23(f), Adv. Comm. Note (1998).

Read More