1. No category

CalAppNews
California Appellate Defense Counsel
Vol. 27, No. 1
www.cadc.net
President's Column:
Spring 2015
Everything Changes
A Keynote Conversation with
Justice Liu
by Meredith Fahn
by Kyle Gee and Caitlin Christian
“Keep your eye
on the long view.”
This was Justice
Liu’s advice during
his visit with us as
distinguished guest
speaker at the CADC
2015 statewide
conference and
seminar. Coming
from someone else,
these words might
have fallen flat as
platitudes. But it
meant the world to
us coming from Justice Liu. He had just told us his
story of getting the call from Governor Brown’s aide
literally the day after Congress blocked President
Obama’s nomination of him for the Ninth Circuit
Court of Appeals; and of his process of applying to be
a justice of the California Supreme Court, complete
with two interviews by the Governor and his dog.
Justice Liu’s spirited storytelling amused us and
drove home the point that we never know when the
closing of one door leads to the opening of another.
And how fitting, with so many animal lovers among
us, that this apt example involves a dog.
Time has been quite the jester. What a relief it was
to laugh together on March 13, 2015, led by Justice
Liu with his story. After all, times have been dim for
the indigent and their appellate lawyers. It was a
confluence of forces marked by so many turning
points. There was the passage of AEDPA, Three
Strikes, and, less obvious but perhaps equally
profound in its impact, the Tax Reform Act of 1986.
The resulting “trickle-down” effect was not good for
the people we represent. It is no wonder that so many
of our clients feel disenfranchised and hopeless about
even trying to make it in the straight world. And it is
not easy to tell them that what we offer with our
On March 13, 2015, at the Annual Conference
and Seminar in Redondo Beach, CADC had the
distinct honor of hosting California Supreme Court
Associate Justice Goodwin Liu as our keynote
speaker. As with Chief Justice Cantil-Sakauye at the
2012 Annual Meeting, the format was relatively
informal, with questions being posed by two CADC
members. Justice Liu’s responses were gracious,
humorous, and insightful. He was generous in
sharing a range of forthright views about the Supreme
Court and how counsel might best prepare to bring
issues before the court.
continued on Page 2
continued on Page 3
CalAppNews
For those not familiar with Justice Liu's personal
history, the Internet reveals that he grew up in
Sacramento, obtained an undergraduate degree from
Stanford, obtained a post-graduate degree in
philosophy as a Rhodes Scholar at Oxford, and
attended Yale Law School. Among other positions, he
clerked for Justice Ruth Bader Ginsburg on the
United States Supreme Court, before becoming a
Professor of Law at Boalt Hall. He is married with two
children.
Justice Liu described his experience when first
contacted by the Office of the Governor regarding a
potential appointment to the Supreme Court. At his
Spring 2015
Page 1
CalAppNews * Spring 2015
California Appellate Defense Counsel
4470 West Sunset Blvd., PMB 708
Los Angeles, CA. 90027
President:
Meredith Fahn
[email protected]
Newsletter Editor:
Randi Covin
[email protected]
Newsletter Design & Production Assistant:
Sabine Jordan
[email protected]
Proofreader:
Alex Coolman
CADC is happy to print submissions from
members and others. The opinions
expressed in CalAppNews are those of the
authors and are not necessarily shared by
CADC, its Board of Directors, or its
members.
The Mission of CADC is to improve the
professional lives of appointed appellate and
post conviction counsel and to promote the
fair administration of justice.
In addition to providing direct member
benefits like our website, discussion forums,
brief bank, annual conference, local chapter
meetings, and this newsletter, CADC lobbies
for the interests of its 400-plus members in
the judicial and legislative branches of state
government. For more information about
membership, please visit www.cadc.net
IN THIS ISSUE:
President’s Column..................................... 1
Keynote Conversation with Justice Liu ..... 1
The Burbank Award .................................... 3
Conference Dependency Program.............. 4
Introducing Sabine Jordan ......................... 4
More Conference Highlights....................... 5
Compensation for Panel Attorneys ............ 6
Conference Photos .............................. 8 & 9
You Don’t Tweet Yet?............................... 14
CalAppNews
President's Column, continued from Page 1:
appeals represents a slim chance and, more broadly, might
simply be light for the cracks. As explained by Leonard
Cohen in his song Anthem:
Ring the bells that still can ring
Forget your perfect offering
There is a crack, a crack in everything
That’s how the light gets in.
Everything changes, even the horizon. For us, Justice Liu
embodies a vibrant ripple of dissent. He helps us see that the
air is ripe with potential. The CADC Appellate Justice
Committee seized that potential in filing an amicus brief in
support of the petition for a writ of certiorari in Jackson v.
California, SCOTUS no. 14-5760. In the underlying case,
People v. Jackson (2014) 58 Cal.4th 724, Justice Liu wrote a
dissent that, among other points, called attention to common
misapplication of the standard of prejudice prescribed for
federal constitutional error in Chapman v. California (1967)
386 U.S. 18. In our
amicus brief, CADC
further developed
that point.
We argued in
Jackson that there is
widespread disregard
for Chapman’s
requirement that the
State bear the burden
to show that federal
constitutional error is
harmless. Certiorari was not granted but we are not
discouraged. On the contrary, we are fortified by the
refreshment of the horizon. Our amicus brief stands waiting
in the CADC briefbank. It is a matter of public record, having
been filed September 12, 2014, in SCOTUS no. 14-5760.
Jackson v. California was the first but by no means the
last time that CADC and its members will make use of the
logic and force of this argument. We have a strong Amicus
Committee, a visionary Appellate Justice Committee, and
more than 400 lively-minded, razor-sharp members whose
participation is crucial in assisting these committees and their
individual projects. Together, we stand poised to act when
another opportunity might come our way, even — or maybe
especially — when it comes in the seemingly limited power of
a dissenting opinion.
We asked Justice Liu on March 13 what to do when oral
argument does not go so well, and what words of wisdom he
has for the fledgling attorney. Justice Liu was almost
apologetic in reminding us of “just the basics”: to anticipate
the hardest questions; be prepared to answer directly in a
relaxed tone; take care to eliminate hostility and indignation
from one’s own expression. Listening to Justice Liu’s review
of “the basics” felt inspiring and fresh for everyone that day.
Our ears, minds and hearts were open; we received the great
young jurist’s encouragement with honor and pride; and in
that hour, I think every one of us felt new.
Spring 2015
Page 2
The Burbank Award
A Keynote Conversation
continued from Page 1:
first meeting with Governor Brown — also attended
by the Governor's wife and "top aide" Ann Gust, as
well as "First Dog, Sutter" -- the Governor started
with a question regarding Justice Liu's views on "the
basis of law." This question led to a two-hour
discussion of natural law, the "social contract" theory,
and the philosophies of Locke and Rousseau.
The 2015 Burbank Award for exceptional service
to CADC goes to our recently retired Webmaster Sachi
Wilson!
Following his second meeting with Governor
Brown, which was much the same, Justice Liu went
on vacation with his family to Maine. He received the
call offering him appointment while in Maine and
recalled completing the stack of paperwork needed to
process his appointment while sitting in his car
outside the local one-room public library - the only
place in town with Internet access. From these
modest beginnings came his formal appointment and
swearing-in ceremony in Sacramento in September
2011.
Justice Liu described some of what he has
learned about the court – and about his adjustment to
it – over the past three-and-a-half years. He explained
that the California Supreme Court and other state
supreme courts are "conservative with a small c."
Justices develop, as does the law, with an eye towards
the “long horizon,” moving slowly, cautiously and
incrementally over time.
Justice Liu noted that the California Supreme
Court historically has had a high percentage of
unanimous opinions. He observed that high-profile
judicial disagreements, including those at the United
States Supreme Court, can be misleading as to their
frequency. While one of the values of unanimity might
be moderation and restraint in the opinion's
language, a counterbalancing consideration might be
that too much compromise will obscure the court's
meaning. He noted further that an opinion with a
dissent has the same precedential value as a
unanimous opinion.
continued on Page 10
Acting Past President Linda Conrad presented
the award and Treasurer Jeralyn Keller accepted it on
behalf of Sachi, who could not be there.
The Saturday lunch crowd gave Sachi a standing
ovation, roaring with appreciation for all her help to
the organization and individual members.
Sachi has made tremendous contributions to
CADC over many years of service. She was
instrumental in creating the new brief bank as well as
the new website, bringing CADC into the 21st century.
We could not have done it without her and, luckily for
us, she continues to help with ongoing technological
improvements. Thank you Sachi!
CalAppNews wants to hear from you!
We welcome submission of letters, photos, drawings,
articles, poems, opinion pieces, and interesting
transcript excerpts. We suggest you check with the
editor before writing a piece for submission in case
someone else beat you to it. Please send submissions
and proposals to [email protected].
CalAppNews
Spring 2015
Page 3
The Conference Dependency Program
by Alexis Collentine
Thanks to Region
3 CADC Director
Caitlin Christian
for putting
together a terrific
dependency
program for the
conference this
year and thanks to
all the great
speakers. Here are
some observations
from each session.
Trends in Dependency
Though the group agreed that no one had been seeing it in
appellate records yet, a new approach to risk assessment called
the Signs of Safety model is becoming more widely used. And
why is a social work assessment tool important to appellate
practitioners? As Alice Shotten said, “The more you understand
the social worker’s perspective, the better briefs you will write.”
Carolyn Levenberg presented on this model, which is meant to
reduce the authoritarian position of the worker and be as
meaningful to families as it is to social workers. Among other
things, the social worker must tease out what are risks and what
are merely complicating factors, for example, not assuming that
a lack of information is a risk. Throughout, the focus should be
as much on the family’s strengths as on the dangers or harms to
the child.
Ms. Shotten’s presentation on marijuana use and dependency
gave us an overview of this changing area of law. With a likely
move toward the legalization of marijuana, and some parents
already using prescribed marijuana, the risk assessment
becomes more complicated. Cases successfully arguing a
difference between use and abuse, such as Drake M., have
highlighted the ways in which marijuana use was similar to
prescription drug use.
ICWA Placement Preferences
The big news in the wild world of the ICWA is that there are
new BIA guidelines! In the excellent materials associated with
this presentation, Joanne Willis Newton helpfully bracketed
any information that comes from the new BIA guidelines, so
check that out. (See BIA Guidelines for State Courts (Feb. 25,
2015) 80 Fed. Reg. 10146 <http://www.gpo.gov/fdsys/pkg/FR2015-02-25/pdf/2015-03925.pdf>.)
continued on Page 11
CalAppNews
Spring 2015
Introducing Sabine Jordan!
2015 conference attendees had the pleasure
of meeting Sabine – CADC's wonderful new
Administrative Assistant.
Sabine has 30 years of experience in Office
Management & Administration. For the
last 18 years, Sabine has specialized in Law
Office Management and providing
paralegal and other services and assistance
to solo practitioners. She has worked with
many panel attorneys and was delighted to
meet many of us in person at the
conference. We are just beginning to figure
out all the ways Sabine might help CADC.
You can reach Sabine by email at
[email protected].
Please Support the
Lobbying Fund!
CADC’s lobbying activities are funded by
a combination of membership dues and
voluntary contributions from CADC
members. To make a contribution,
please go to www.cadc.net and click
the “Lobbying Fund” link on the
Members' Menu. Or write a check
payable to CADC Lobbying Fund and
mail it to CADC, 4470 West Sunset
Blvd., PMB 708, Los Angeles, CA.
90027.
CADC also gratefully accepts taxdeductible contributions to its general
fund - just click Join or Renew and
scroll down to the donation box or send
a check made out to CADC General
Fund. Thanks very much for your
Page 4
More Conference Highlights
by Randi Covin
We had a wonderful weekend at the Crowne Plaza,
Redondo Beach, from beginning to end. Of course,
the keynote conversation with Justice Liu was the
highlight for many (see page 1) but lots of other
terrific sessions contributed to a very successful
conference.
The Annual Meeting got us off to a great start under
the strong leadership of CADC's new President, my
dear friend and esteemed colleague, Meredith Fahn.
We welcomed eight new directors – five in the Bay
Area! – Nancy Brandt (Albany), Beth Campbell
(Sacramento), Alexis Collentine (San Francisco),
Lauren Johnson (San Diego), Eileen Manning-Villar
(Pacifica), Gordon "Bart" Scott (Santa Rosa), Heather
Shallenberger (Santa Cruz), and Allison Ting (Los
Angeles).
We thanked our departing board members for their
service to CADC and encouraged them all to be
"CADC Groupies," like Departing Region 1 Director
Jasmine Patel - to stay connected and participate in
CADC governance in whatever ways they can.
Thank you and so long to David Annicchiarico (San
Francisco), Stephen Greenberg (Nevada City),
Jasmine Patel (San Francisco), Jessica Ronco (San
Francisco), and Laurie Wilmore (Half Moon Bay).
We were lucky to keep Alex Coolman as a Director
when he moved from San Francisco to San Diego
recently - Alex was a Region 1 Director and is now a
Region 4 Director.
We also managed to keep Cynthia Barnes (Region 2
Director), Reen Bodo (MCLE Coordinator), Caitlin
Christian (Region 3 Director), Jeralyn Keller
(Treasurer), Jill Kent (Webmaster), Chris Nalls
(Region 2 Director), Steve Schorr (former Region 4
Director, now Secretary), Lisa Spillman (VicePresident), and Tonja Torres (former Region 2
Director, now Vice-President). We also gained (regained) another board member, Acting Past President
Linda Conrad. Welcome back, Linda!
After the Roundtable,
CADC member and
former CCAP Staff
Attorney Beth Campbell
gave a very informative
and thought-provoking
presentation on writing
an effective petition for
review. Beth
recommended keeping
your PFR very short –
10-15 pages – and
focusing on the
necessity for review
rather than the merits of
the claims. She also recommended re-writing a much
shorter, more focused statement of facts rather than
just copying and pasting from the AOB or adopting
the Court of Appeal's factual summary. An excellent
sample PFR is included in Beth's conference
materials, available on CADC's website (see 2015
plenary materials).
Of course, it is difficult to write a really good PFR in
the few hours allowed under the guidelines. And it is
difficult to write a 10 page PFR with a short statement
of facts in a big record case with multiple issues. But I
found Beth's advice on how to write a good PFR very
helpful and I intend to try to use her methods next
time I have a potentially review-worthy issue.
One of my favorite parts of the conference was
socializing with members and guests after the terrific
Friday sessions. After more than 20 years as a CADC
member, I really cherish these opportunities to see
old friends and meet new ones. I feel so fortunate to
be part of such a friendly, supportive and generous
professional community. And I really appreciate the
opportunity CADC gives us to stay connected – online
and in person.
continued on Page 12
CADC members and directors always enjoy lunch
with the project directors on Friday. It is a great
opportunity to chat in an informal setting, followed by
the Project Directors Roundtable, ably moderated by
CADC's Court and Project Liaison Marcia Levine, as
always. This year we were pleased and honored to
have with us Donna Hershkowitz, Director of Court
Operations and Special Services for the Judicial
Council of California. Discussion this year addressed
e-filing developments, compensation claim
processing, and turning down cases, among other
topics. We really appreciate the project directors and
assistant directors taking time out of their busy
schedules every year to come speak to our members.
CalAppNews
Spring 2015
Page 5
Compensation for Panel Attorneys – Moments in History
by Gordon Brownell
When CADC was
founded in 1989, all
attorneys who
accepted
appointments in
California Court of
Appeal cases were
paid a flat rate of $50
an hour, regardless of
the size and nature of
the case or the
experience of the
appointed attorney.
An increase in the
hourly rate to $65,
which had been
approved by the
judiciary just prior to founding of CADC, was
implemented later in 1989.
Gradual increases in the hourly rates have
occurred over the course of CADC's history, in part
because of CADC's active lobbying efforts, and also
because of judicial and other institutional support.
Equally importantly, there have been four
fundamental changes and improvements in the
manner and speed in which panel attorneys are paid.
The focus of this article is a review of those four
changes and how they have benefitted panel
attorneys. But first, some background. And be ready
for acronyms.
In the beginning, paper ruled. As the 1990s
began, all compensation claims submitted by
attorneys in the court appointed counsel program
(CAC) were filled-out manually by panel attorneys,
with no software programs to assist them; the claims
were then mailed to the appellate projects for review
and recommendations; following their review of the
claims, the projects then forwarded the claims to their
respective courts of appeal, including the payments
which were recommended by the projects, but which
had not yet been approved; at the courts, the
submitted claims were reviewed and then were either
approved or sometimes cut (and very rarely
increased) by either the presiding justice or a justice
assigned to review the claim, under policies and
procedures which varied from court to court. After
approval by the court, the Courts of Appeal forwarded
the claims to the Administrative Office of the Courts
(AOC), where they underwent a final administrative
review, and then were mailed to the State Controller;
about a week after receipt of the claims in
Sacramento, the State Controller would mail a paper
check (“warrant”) to the panel attorney. The entire
CalAppNews
process averaged between 6-8 weeks for each claim,
from the date a panel attorney mailed the claim to the
appellate project, until the date the attorney received
the paper check in the mail from the State Controller.
The fiscal crisis that hit California at the start of
the 1990s set change into motion. Chief Justice
Malcolm Lucas appointed a committee, known as the
Turner Committee, after its chair, Second Appellate
District (Division Five) Presiding Justice Paul Turner.
That committee conducted a statewide review of the
court-appointed appellate counsel system and made
various recommendations, leading to a number of
policy and compensation changes, which were
implemented in 1992, at the direction of Chief Justice
Lucas. Later that year, Chief Justice Lucas
established the Committee to Evaluate the Appellate
Projects, which included both project and panel
attorney representation, and which conducted a
comprehensive cost-benefit analysis of the projectpanel system, which was then less than a decade-old.
The work and recommendations of that second
committee, commonly referred to the Strankman
Committee (after its Chair, retired First Appellate
District Justice Gary Strankman), led to its
metamorphosis after a year into the Appellate
Indigent Defense Oversight Advisory Committee
(AIDOAC). Along with the creation of AIDOAC came
the first major change in the manner in which courtappointed appellate counsel were paid, which was the
the transfer of the authority to approve compensation
awards from the courts to the appellate projects.
The shift of compensation approval from the
courts to the appellate projects was accompanied by a
new institutional role for AIDOAC, which now
oversees the CAC program, including the
compensation process. This oversight role includes
the quarterly random auditing of final claims
approved by the projects and the development of
statewide consistency in the application of the
compensation guidelines, something which was
lacking in the prior system, when claims were
reviewed and approved by different appellate courts
and justices, with no statewide consistency at all.
The change in the compensation approval
process recommended by the Strankman Committee
and AIDOAC speeded up the payment of claims to
panel attorneys by several weeks. Under the
leadership of the current AIDOAC Chair, Justice
Herbert Levy from the Fifth Appellate District, and
his predecessor, retired Justice Rodney Davis from
the Third Appellate District, AIDOAC has become a
key leader in the CAC program, helping coordinate
Spring 2015
Page 6
Compensation for Panel Attorneys, continued:
the different roles which the various components of
that system -- the judiciary, administrative judicial
management, the appellate projects and the panel -all perform.
Scene change. In 1993, under President Steven
Temko, CADC hired its first lobbyist, initiating the
organization’s formal engagement in legislative
activities in Sacramento. The CADC lobbying program
was coordinated for a number of years by Wes Van
Winkle, former CADC President and past AIDOAC
member, who worked with three different lobbyists
and one paid legislative advisor, who were retained by
the organization during the 1990s.
In 1994, CADC unsuccessfully sought an increase
in hourly compensation for all court of appeal counsel
from $65 to $73 and an increase in compensation for
appointed attorneys in capital appeals from $75 to
$95. The measure failed in the state Senate. The
following year, the Legislature approved an increase
for capital counsel, but again balked at an across-theboard increase for court of appeal counsel.
After the 1995 compensation defeat, CADC
pivoted its approach and sought approval of what
would become the second significant change in the
CAC compensation process -- the adoption of a tiered
compensation system. Originally proposed by CADC
because it was cheaper (and therefore more politically
palatable) for the state to increase compensation for
part of the CAC panel instead of all of it, the two-tier
approach left compensation for some CAC attorneys
at $65 an hour, but a new “upper tier” of appointed
counsel was established, for which attorneys handling
independent cases would be paid the higher hourly
rate of $75. Despite some institutional resistence to
the concept, as well as unhappiness among members
who did not immediately benefit from the change
which CADC was advocating, the two-tier system was
adopted.
In 1996, with the support of all the institutional
players in the system -- the Chief Justice and APJs,
the AOC (under the guidance of then-Appellate
Services Manager, Mary Carlos), AIDOAC, the
appellate projects and CADC -- a three-tier
compensation system was proposed. Under this
approach, an upper tier of CAC attorneys would be
paid $85 an hour for certain complex and long-record
cases; a large mid-tier of attorneys would receive $75
an hour for independent cases, and attorneys who
were appointed on an assisted basis would continue
to receive the $65 hourly rate. CADC also sought to
achieve an increase to $125 an hour for capital
counsel that year. Though the increase in capital
compensation was passed by the Legislature, the
CalAppNews
three-tier system for attorneys in the courts of appeal
was not.
After several years of struggle, the three-tier
compensation system, with its attendant increases in
the hourly rates for most panel attorneys, was finally
approved in 1998.
Though that achievement was followed by a
hiatus in which hourly rates would not change again
for seven years, there were two more significant
changes to panel attorney compensation which took
place in the first half of the following decade
In 2002, in what presaged the move towards
electronic transmittal of court submissions and
filings, the electronic submission of compensation
claims began with the arrival of eClaims. Conceived
and created by Jay Kohorn, the Assistant Director of
CAP-LA, with the support of that project’s Executive
Director, Jonathan Steiner, eClaims represented
another sea change in CAC compensation policies and
procedures. Jay has described the development of
eClaims as a huge undertaking which took several
years to complete as his “special 12-step program.”
Jay Kohorn cooking up eClaims program!
Not many years ago, the CAC system did not
even have computer-generated forms that could be
printed-out, much less any software for panel
attorneys to use in creating a compensation claim. All
claims had to be filled out by hand or typed by panel
attorneys, who had to do all the math themselves,
manually adding up their time and costs. Because the
preparation of compensation claims was so tedious,
many attorneys put off preparing and mailing their
claims to the appellate projects. The AOC regularly
had to ask the Legislature for more money, because
the amount of funding needed to support the CAC
Spring 2015
continued on Page 13
Page 7
Hats off to CADC's 2015 Conference Committee:
Chris Nalls (Chair), Cynthia Barnes, Caitlin Christian,
Jennifer Hanson, and Tonja Torres!
Conference photos by Leslie Bohm, www.photosbybohm.com
CalAppNews
Spring 2015
Page 8
CalAppNews
Spring 2015
Page 9
A Keynote Conversation, continued from Page 3:
Justice Liu emphasized that a dissent should be
drafted respectfully and with sober expectations as to
what can be achieved. However, he also noted the
value of dissents as potentially influencing the court’s
thinking over time and legitimizing the stance of the
losing voice.
Justice Liu was asked about the Rule 8.500(b)
criteria for grants of review, in terms of whether they
are unduly restrictive. In his response, he explained
that the Supreme Court is not an "error corrections"
court – except in capital cases – and that the court's
focus is on broader legal and policy questions. He
reminded us that, given the Supreme Court's very
heavy capital caseload, the practical fact is that the
Courts of Appeal are the court of last appellate resort
for a high percentage of litigants, criminal and
otherwise.
As for what the court's position might be on
glaring, non-review-worthy errors in, or omissions
from, Court of Appeal opinions, Justice Liu did
mention a few remedies that may be used, such as
depublication orders, stressing that depublication is
used for reasons other than making law. He also
mentioned grant and remand orders, although they
are ordinarily utilized when new cases have been
decided by the United States or California Supreme
Court. He concluded that, while the Supreme Court is
not an “errors correction” court, there are potential
avenues for obtaining some relief.
In response to a question regarding when and
how the court might be convinced to overrule a prior
decision, Justice Liu responded that one might refer
the court to "subsequent developments," including
subsequent cases from the same court which suggest
erosion of the law or policy underlying the prior
decision. He also suggested examination of other state
Supreme Court cases on the same subject, to
determine if an emerging "majority view" is
inconsistent with a prior decision. And he encouraged
counsel to examine the impact of overruling a prior
decision and the potential effect on parties who have
previously and justifiably relied on the case as
precedent. However, he also explained that the court
continues its long-standing commitment to stare
decisis, and the chances are not great that the court
would overrule a prior decision.
argument less intimidating when confronted
personally. He noted that generally where oral
argument goes wrong is not a matter of substance but
of style, suggesting we listen and observe to see what
works and what doesn’t. He admonished us always to
answer a justice’s question at oral argument. He
urged us to listen to the questions from, and colloquy
among, all of the justices, with a goal of identifying
the “tipping point” of the case from the court’s
perspective, in order that our argument will have the
proper focus.
During Justice Liu’s discussion of the value of a
Reply Brief in the Supreme Court – deemed by him
the "most important brief" – he explained that the
Reply Brief provides an appellant with the
opportunity to look at the positions of both sides, with
recognition that there is rarely a clear answer to legal
questions. This enables an appellant to contrast the
respective positions and to focus on why the appellant
should prevail.
Finally, Justice Liu's advice to "fledgling"
appellate counsel would have value for us all. He
reiterated his suggestion that we take time to
"observe": attend oral argument and read the briefs of
more experienced counsel. He added a particular
exhortation that we focus carefully on the quality and
structure of our writing, with special emphasis on the
need to encase within our legal arguments and case
citations a logical core, to address not only why
precedent supports us but why the better course over
time is for the court to adopt our position.
In sum, Justice Liu's time with us was enjoyable
and invaluable, and we came away impressed and
appreciative.
As for suggestions regarding oral argument,
Justice Liu strongly endorsed attending Supreme
Court sessions to observe the procedures and
arguments. One would become more comfortable
with the court's processes and learn something of the
court's personalities, which should make oral
CalAppNews
Spring 2015
Page 10
The Conference Dependency Program, continued from Page 4:
In her presentation, Ms. Newton focused on the
ICWA’s placement preferences. Though she
underscored that violations of the ICWA’s preferred
placements do not mean the case will be invalidated,
we can argue invalidation via a violation of the active
efforts requirement to locate a preferred placement.
Within these preferred placements, extended family
includes both Indian and non-Indian family
members, and if the children are placed in a lower
preference, such as foster care, the agency must
continue the search for a higher preferred placement,
such as with extended family. When the preferences
are not followed, look for whether there was good
cause.
Each type of father has different rights and duties,
which are well-covered in the materials. A few things
I learned: there cannot be a petition against an
alleged father; an adjudicated father is not a
presumed father, but such a finding does rebut a
presumption of paternity in favor of another man;
and when a person’s own bad decisions precludes him
from carrying out his parental responsibilities, he
cannot be deemed a Kelsey S. father.
Some recent developments to be aware of: there is
now broader leeway to place a child with a relative
despite that relative having criminal history and the
“Existing Indian Family Doctrine” has, hopefully,
been put to rest by the U.S. Supreme Court’s declining
to adopt it in the recent case of Adoptive Couple v.
Baby Girl (2013) 133 S.Ct. 2552.
Dependency Briefing
Parentage
Did you know there are six types of fathers for the
purposes of dependency cases? Well, there are, and if
you have some trouble keeping them all straight,
don’t worry, the courts do too.
Fortunately, Jan Sherwood is on it and, after her
presentation, we all are too. The six types of fathers
are: alleged, presumed, biological, adjudicated,
equitable, and Kelsey S. Note that though this area of
law has historically concerned fathers only, the
Family Code has been amended to be gender-neutral.
Ms. Sherwood also recommended looking at the case
law to see whether there is one that supports the type
of parentage you’re looking to argue. Court confusion
equals fun with case law!
Thomas Kallay led an interesting presentation on
something we should all be keeping in mind as we
write our briefs: the appellate court’s perspective.
In the body of the brief, the introduction should be
more informative than argumentative, the statement
of the facts should be sub-headed, and the argument
section should contain the law that will dispose of the
appeal. Throughout all of these, one of the goals is to
keep the court attorney reading and another is to have
such clear cites to the record and the case law that
your brief is the one that the court attorney relies on.
As for the combined statement of case and facts? Mr.
Kallay thinks we should throw it out in favor of a
separate statement that highlights the differing
sources of information and thus denotes the weight
that should be given to sources that include the court,
the parents, and the attorneys.
CADC Thanks Its Sustaining Members!
Jean Ballantine
Diane Berley
Ron Boyer
Philip Brooks
Gordon Brownell
Elizabeth Comeau
Randi Covin
Suzanne Evans
Pat Ford
Mark Hart
Patricia Ihara
David Kaloyanides
CalAppNews
Jeralyn Keller
Leonard Klaif
James Koester
David Lampkin
Mark Lenenberg
Laini Millar Melnick
Jonathan Milberg
Christopher Nalls
Robert Navarro
Walter Pyle
Brent Riggs
Tracy Rogers
Spring 2015
Steven Schorr
Patricia Scott
Clayton Seaman
Alan Siraco
Lisa M.J. Spillman
David Stanley
Conness Thompson
Allison Ting
Meredith Watts
Eric Weaver
Laurie Wilmore
Harry Zimmerman
Page 11
More Conference Highlights, continued from Page 5:
The criminal program started off with a bang
Saturday morning with FDAP Staff Attorney Richard
Braucher, Christopher Hawthorne, and Maureen
Pacheco on Miller and Caballero – sentencing
juveniles as adults and the Eighth Amendment.
These knowledgeable experts summarized the
developing law on juvenile sentencing, providing
resources and information to help us ably represent
our youngest clients.
CADC members George Schraer and Laura Kelly took
us step by step through the process of investigating,
drafting, and filing a petition for writ of habeas corpus
in state court. George and Laura explained, among
many other things, when and where to file, how to
gather supporting evidence, how to work with the
different projects on habeas issues, and what federal
habeas implications must be considered. Their
outstanding program materials are available on
CADC's website along with the rest of the criminal
program materials.
Like many conference attendees, I could not decide
which late morning break-out session to attend Technology: Hell and Salvation, with CADC Brief
Bank Committee Chair Candace Hale and CADC
Webmaster Jill Kent, or I Wish I Knew Then What I
Know Now: How to Survive Your First Five Years on
the Criminal and/or Dependency Panel, with Caitlin
Christian, Jennifer Hansen, Nancy King, and Jasmine
Patel. So I caught the first half of Technology and the
second half of How to Survive. Both sessions (and
their plenary materials!) were excellent and got rave
reviews and requests for repeats next year (we'll see
what we can do!).
After lunch,
Electronic
Frontier
Foundation Staff
Attorney Hanni
Fakhoury
brought us up to
date on the role
of GPS tracking
evidence in
criminal
prosecutions.
He explained
that police and
prosecutors have
done their best to keep the source of the evidence a
secret to avoid judicial concerns about privacy and
other issues. Thanks to EFF and hardworking
defense trial lawyers, the secret use of electronic
tracking evidence is increasingly being exposed and
successfully challenged.
CalAppNews
Finally, CADC President Meredith Fahn and long
time CADC member and beloved storyteller Charlie
Khoury ended the criminal program with a lively and
informative session on federal habeas concerns in our
state court appeals. The time went by too fast and left
me wanting more. My favorite part was when they
talked about the recent videotaped oral argument in
Baca v. Adams, where the Ninth Circuit panel
questioned the Deputy Attorney General about the
prosecutor's blatant misconduct and the efforts of the
District Attorney and Attorney General to cover it up:
http://www.latimes.com/local/politics/la-me-lyingprosecutors-20150201-story.html#page=1.
To our delight, Meredith and Charlie had a surprise
guest – Patrick Hennessey, Jr. – the heroic appointed
appellate attorney who represented Baca in state and
federal court and got a stipulated reversal as the
result of the Ninth Circuit's outraged response to the
prosecutor's misconduct. We closed the conference
for the criminal side by presenting Pat with a CADC
Superheroes T-shirt and a rousing round of applause.
CADC's 2015 conference left me energized and
enthusiastic about next year's conference in the Bay
Area. Hope to see you there!
Spring 2015
POP QUIZ
GUESS WHO THIS IS????
(See Answer bottom of Page 14)
Page 12
Compensation for Panel Attorneys, continued from Page 7:
program was often under-estimated, in part because
actual claims were submitted so slowly by many panel
attorneys.
With the advent of eClaims, procrastination in
claim preparation dropped significantly. Much of the
information that previously had to be looked up and
manually entered by panel attorneys on the claim
forms was entered by the appellate projects, utilizing
information in their databases which could be
generated before attorneys were even appointed to
cases. That data, including information such as the
nature of the appeal, original record length, key dates,
counts of convictions and other items, could be
uploaded by the projects directly onto eClaims. Most
of the math was done accurately and automatically by
eClaims. Particularly for complex claims, hours of
attorney and appellate project staff time were saved.
Because claims were submitted faster, the AOC was
better able to make accurate budget projections.
Changes have recently been made to the eClaims
program and further ones are proposed. Electronic
submission has evolved from an optional panel
attorney choice to a CAC requirement. Appellate
Defenders has recently created its own case
management system and a Panel Portal for the
electronic submission of claims to ADI. The
significance of the creation of eClaims, and the
benefits realized by panel attorneys and the entire
system from the institutional move to the electronic
transmission of compensation claims, cannot be
overstated.
The fourth major improvement in the CAC
compensation procedure was implemented in 2006,
after several years of lobbying by CADC (led by
former CADC Vice President and AIDOAC member Jo
Anne Roake and David Stanley, former CADC Court
and Project Liaison and a current member of
AIDOAC). That year, the AOC implemented a
program in which panel attorneys could choose to
have the State Controller deposit their compensation
payments directly into their bank accounts by an
electronic funds transfer (EFT), rather than
continuing to receive paper warrants in the mail. For
the attorneys who chose the new payment option,
access to their funds was available to them several
days sooner than under the older mailing of paper
system.
Together, these four institutional changes -transfer of the claims approval process from the
courts to the projects and the adoption of tiered
compensation levels, eClaims and direct deposits -have resulted in major benefits to panel attorneys.
After seven years without a lobbyist, in 2005
CADC retained its current lobbyist, Ray LeBov, who
had previously represented the Judicial Council on
governmental affairs and legislative matters. Since
retaining Ray, and with support from the Chief
Justice, the APJs, AIDOAC and the appellate projects,
panel attorneys received compensation increases
which raised the three-tier compensation levels from
$65-75-85 to rates of $85-95-105 over the course of a
three-year period between 2005-2007.
Further increases in that rate have not been
possible the past several years, due to the most recent
state budget crisis and cuts to the judiciary. The
statewide fiscal picture is on an upswing again. When
the next, long overdue, increases in panel attorney
hourly rates are achieved, and they will be, it will be
another step forward in the ever-evolving CAC
compensation system. There are improvements
which still need to be made, but California has the
premiere CAC appellate program in the country.
Do you want a paper copy?
If you are a CADC member, you received
an electronic copy only of this issue of
CalAppNews. If you are not a CADC
member, you received a paper copy only.
If you want to change the way you receive
CalAppNews, please please give us the
physical or email address where you
would like to receive future issues:
[email protected]. Limiting
paper copies of CalAppNews can save
CADC 75% or more of its cost and help
save trees!
CalAppNews
Spring 2015
Page 13
You Don’t Tweet Yet? #GiveItATwy
An Attorney’s Opinion About Twitter
by Lisa M.J. Spillman
times you see tweets from advertisers. You can set up
a Twitter account easily by going to Twitter.com or
downloading the app onto your smartphone. Setting
up the account and name is easy (mine is Lisa Jerde
Spillman @LmjSpillman.) You do not have to use
your actual name, but it is my experience that most
professionals do.
What I Use Twitter For. I do not use Twitter
in the social sense I use Facebook. In my experience,
an individual uses Facebook generally to see what his
or her friends are doing, to post about what’s going on
in her or his life, or to post pictures of a child, a bruise
or Katmandu. Perhaps some use Twitter for that
purpose, but not me. If Facebook is my living room,
then Twitter is my office.
The other day, my five-year old and I were
playing a game of “If your family member were an
apple, what kind would she or he be?” I told him that
he’d be a Red Delicious because of his cute, rosy
cheeks. He told me I’d be a Granny Smith because
I’m old. (Note to self: Call my attorney to have the
chap taken out of the will.)
But his thinking me old got me thinking. I’ve
talked to a lot of lawyers lately about Twitter, and
about whether they use it and why. Attorneys have
told me: “I’m too old for social media” (which I do not
think is true and I don’t really use Twitter for social
purposes), “I don’t need more stuff to do” (I hear you,
but you might be missing out professionally), “It’s a
waste of time” (not if you use it right), “I already do
Facebook and they are all the same” (they are not the
same), “You can’t teach an old dog new tricks” (sure
you can, woof woof), and “I don’t need to post a
picture of my sandwich” (agreed, please don’t, unless
you want to have one delivered to me, then make it a
Dagwood with extra bacon).
So my point in this article is to convey that you’re
not too old or young for Twitter, and that it really can
help your law practice. I’ll tell you what Twitter is,
what I use it for, what I don’t use it for, what I use
hashtags for and why, what benefit Twitter can have
to a law practice, suggestions on whom lawyers and
law firms might want to follow, and last, Twitter’s
revolutionary capacity for sociopolitical and corporate
change.
What benefit Twitter can have to a law
practice. I follow people, blogs, or entities to quickly
bring me news relevant to my practice of law. For
example, when an opinion is published, legal bloggers
immediately tweet about the decision, which aid me
as an appellate attorney. I see tweets by Twitter users
who tweet links to articles in a variety of areas of law.
Sometimes, I find a tweet worthy of a retweet,
meaning I resubmit that user’s tweet to the
Twitterverse and to my followers. Sometimes, I will
reply to a tweet. Other times, I may tweet something
I drafted, or find something online and tweet a link
directly to another user, because I think that user
would be interested, or tweet it using hashtags.
What I Use Hashtags For and Why.
Hashtags are fun. A hashtag is a set of characters or
words strung together with a preceding ‘#’. So, for
example, I would not tweet these, but when my kids
finally fall asleep, I might feel #exhausted, or want to
#PraiseGod. When I lose a case I might feel like I
need to #ThrowInTheTowel or go to
#LadiesNightOut. Hashtags can be used to draw
attention to a user or a tweet, to raise awareness of an
issue, or to promote a product or a service. They can
be used to try to ensure your tweet is one of those that
comes up when a search is run. So, for example,
when an attorney writes a blog about criminal defense
or beating a DUI charge, he might tweet a link to the
blog with #DUI #KnowYourRights #Ventura
What Twitter Is. Twitter is a set of programs
operating on the Internet linking people, news, blogs,
companies, organizations, and causes. It is free to
join and recently had an initial public offering, so at
CalAppNews
Spring 2015
POP QUIZ
Answer:
CAP-LA Assistant Director Jay Kohorn, circa 1975
Page 14
You Don’t Tweet Yet? continued:
#Lawyer. An attorney writing wills and trusts might
tweet a link to her blog about a new law regarding
trusts and include #Willits #Attorney #Wills #Trusts.
Creating a unique hashtag can make an issue, product
or service go viral.
Whom I follow. Anyone on Twitter could see
whom I follow, but here are some of the law-related
Twitter users I follow: @VCBA1, @CalCourts,
@CalAppOpinion, @USSupremeCourt,
@SCOTUSOpinions, @SCOTUSblog,
@SCOTUSblogposts, @scotusreporter, @StateBarCA,
@Cal_Lawyer, @EsquireNation, Howard Bashman
@howappealing, Above the Law @atlblog,
@CACJNews, @KamalaHarris, @StateDept, @UN,
@justiacom, @TheJusticeDept, @SenateFloor,
@HouseFloor, @InnocenceMatter, Innocence Project
@innocence, @YaleLawSch, @Harvard_Law,
@thelegalintel, @NationalJurist, @Chapman_Law,
@ReutersLegal, @emilybazelon, @JeffreyToobin,
@ABAJournal, @WSJlawblog, and @BloombergLaw.
I also follow a number of state and U.S. Congress
people and other political figures.
I follow numerous news organizations from
around the world. To keep things fun, I also follow
comedians to get a good guffaw, like @AlbertBrooks,
@SarahKSilverman, @TheEllenShow,
@JerrySeinfeld, @jimmyfallon, @TheOnion,
@WhoopiGoldberg, @billmaher, @SteveCarell, and
Stephen Colbert @StephenAtHome.
I also get a little spiritual, and follow Pope
Francis @Pontifex, The Dalai Lama @DalaiLama, and
maybe even God @TheTweetOfGod.
One thing I truly love about Twitter is
what I see as its revolutionary capacity for
sociopolitical and corporate change. Let me
give you an example. It should come as no surprise
that I do not think partially undressing and gyrating
in front of a microphone is an appropriate way to
make a video go viral. Nor is it appropriate in my
CalAppNews
opinion to spread the message that a woman should
sex it up to make a video go viral. And apparently, I
am not alone. During the 2014 Super Bowl, a
company showed a commercial with a famous actress
doing just that, and I loved the response by women
and men across the globe, who directly sent that
company tweets denouncing the commercial, and
including the hashtag #NotBuyingIt. I love this
hashtag for its literalness – hashtaggers are giving the
potential death knell – I am not going to buy what you
are selling because you screwed up. And an easy
Twitter search of #NotBuyingIt reveals myriad other
products, services, tweets, or programming that
Twitter users are not buying, figuratively or literally.
Where social pressure won’t work, the bottom line
just might. Twitter is also being used, second by
second, to broadcast footage and reports by regular
Twitter users of what is happening on the ground in
#Ferguson #Paris #Venezuela and #Ukraine.
Revolutionary, indeed.
But if your feathers get ruffled, bear in mind that
every tweet is forever public, even if you delete it. It
won't appear on your page, but it still exists in the
Twitterverse. So thieves and spies, future would-be
employers, the Bar, your children, and the police may
be watching. And speaking of the police, don't even
think of tweeting while driving. Not only could you
hurt someone, your tweet, and its time and date
stamp, could end up being used against you in tort or
criminal actions. And keep this in mind: in 2014 the
California legislature was considering AB 1555 which
would redefine vehicular manslaughter to include a
defendant whose use of a cell phone while driving
leads to the collision.
So, all in all, I think Twitter can have wonderful
benefits for attorneys. It certainly makes following
legal news, decisions and analyses across the country
and world intriguing, timely and fun. And it’s not that
hard or intimidating, even for a "Granny" like
me. #GiveItATwy
Spring 2015
Page 15
4470 West Sunset Blvd.
PMB 708
Los Angeles, CA 90027
Not a CADC Member? Join Us!
Join or renew your membership online at www.cadc.net, or fill out and mail this form:
Name
□
□
□
□
□
State Bar No.
Address
$85
$170
$445
$35
$
Half of each dues amount goes to support
CADC’s lobbying efforts and is not taxdeductible.
Telephone
Email
Criminal _____
First-time member:
Regular member:
Sustaining member:
Retired member:
Lobbying Fund
Contribution:
Dependency ______
Make check payable to CADC.
Return form and payment to:
CADC
4470 W. Sunset Blvd., PMB 708
Los Angeles, CA 90027
CADC membership is not open to those affiliated with prosecutorial or law enforcement agencies.