Archive for the ‘Practice and Procedure’ Category

Motion in Limine Changes at Alameda Superior Court

1,June 30, 2014

Effective July 1, 2014 each motion in limine requires a $60 fee.  Read the full announcement on the Court’s webpage

If you’d like to read about introducing evidence and motions in limine, see Laying a foundation to introduce evidence (preparing and using evidence at trial)  by Donald F. Miles. [A CEB action guide] 2012. KFC 1030 .Z9 M55 2012 — Action Guides Area

For more guidance from CEB, consider searching “motion in limine” in the CEB OnLaw database available at both the Oakland or Hayward branches of the law library.

See also Civil Practice Guide: California Motions in Limine available in both the Oakland and Hayward branches through the library’s WestLawNext subscription.

You can help keep the valuable research tools available in the law library by making a tax-deductible gift to the Alameda County Law Library online, by calling or mailing to Alameda County Law Library, 125 12th St., Oakland, CA 94567.

 

 

 

 

 

Hidden Gems of the Library’s Collection

1,June 16, 2014

Hidden-Gems-logoWe all have a tendency to use the same materials over and over again because they are comfortable and reliable.
This is the beginning of a new series to familiarize you with some other resources available in the library which you might find helpful in doing your legal research.
For this first post, we are featuring the California Judge’s Benchbook series. The practice materials we have from Rutter, CEB , Lexis and other publishers are either written for attorneys or the general public (NOLO). The Judges Benchbooks are written as guides for judges to use in understanding cases and in making decisions relevant to them. According to the Preface they are to be “used to guide a judge through the proceedings”. Often, it also can help attorneys and participants to learn about the proceedings from a judge’s perspective and it can be useful in presenting information in court. The books often have information in them which may be not found in the attorney practice manuals.
The California Center for Judicial Education and Research (CJER) which creates the Benchbooks (published by West) also conducts continuing education programs for judges as well as training programs for new judges. The Benchbooks are updated annually.
The books on civil procedure are organized chronologically paralleling the steps and procedures in a civil case. They books are located on the open shelves and include:
California judges benchbook 2d. Civil Proceedings—before trial KFC 995 .C335
California judges benchbook. Civil Proceedings – discovery KFC 1020 .C35
California judges benchbook 2d. Civil Proceedings – trial  KFC 1025 .C335
California judges benchbook. Civil Proceedings – after trial KFC 1061 .C335
California judges Benchbook : small claims court and consumer law KFC 976 .C34 (at the Reference Desk)
Other titles in the series outside the civil procedure area are:
California judges benchbook: domestic violence KFC 1121.4 .C3
California judges benchbook: search and seizure KFC 1162 .C357
Look for more hidden gems on our blog in the near future.

New eBook on Ninth Circuit Practice!

1,November 19, 2013

The collaborative work of highly experienced appellate practitioners, The Appellate Lawyer Representatives’ Ninth Circuit Practice Guide, is a free, “practitioner-to-practitioner guide” to trying a case before the Ninth Circuit Court of Appeals.

The 112-page guide includes sections on such practical matters as motions practice, emergency proceedings, brief drafting, oral argument, the post-decisional process, habeas corpus proceedings, and checklists for drafting and filing motions and briefs.

Endorsed by the Ninth Circuit Court, this insider’s guide can help demystify the federal appellate process for attorneys and pro se litigants.

9th circuit

New in the Library

1,November 7, 2013

Social media as evidence

Social Media as Evidence: Cases, Practice Pointers, and Techniques,by Joshua Briones, Ana Tagvoryan,
Law Practice Division, ABA, March 2013
KF 8947.5 .B75 2013 New Books Cart

The ABA in its advertisement says that the “smoking gun tweet” has replaced the “smoking gun” in evidentiary matters. They further claim, mixing their metaphors, that social media sites, such as Facebook, Twitter, blogs and other social media channels, are “gold mines” of discovery for discrediting witnesses and weakening a company’s litigation position. Despite the mixed metaphors, which really only bothers a small group of us English majors, the ABA is right and this handy little
book (only 109 pages) packs a lot of valuable information. The use of the internet, and social media specifically, is exploding and with it valuable information.

The authors include specific sources for gold mining and uses of those nuggets. Linkedin with its resumes is a good place to catch a witness in a contradictory statement. Linkedin connections provide contacts who might supply you with more insight into your opponents, their witnesses and experts. Social media channels are good sources for researching potential jury members and for monitoring them during trial. The major social media sites, including Facebook and Twitter, are explored for their potential value. In the next step, you will need to assay those nuggets. You must authenticate the data you have obtained from social media and this book will explain how.

The ethical rules and procedures for use and preservation of such evidence are important. Failure to comply can result in serious sanctions. For instance, compliance with litigation holds must include social media data. As for ethics, do you know if you can “friend” a represented adverse party, a judge? These and other other ethical situations are explored.

The book is full of great practice pointers and sample forms to help you draft documents such as litigation hold memos, document preservation notices, and sample interrogatories and document requests.

This is an excellent starting point for learning about the advantages and pitfalls of using social media in litigation.

Service of Process by Facebook

1,April 8, 2013
Judge Engelmayer

Judge Engelmayer

In what may be the first service of process by Facebook approved by a judge in the United States,  U.S. District Judge Engelmayer in Federal Trade Commission v. PCCare 247 Inc. issued an order allowing the FTC to serve defendants in India using email and Facebook. The defendants in India allegedly tricked computer owners in the United States into sending money to the defendants to fix computers which were working and had no problems.Originally service of the summons and complaint were by email to defendants’ known email addresses, by Federal Express, and by personal service using a process server. FedEx had confirmed delivery to most defendants, and the process server had personally served all 5 defendants. Under Federal Rule of Civil Procedure 4 (f)(1) and The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters the summons, complaint and other documents were submitted to The Indian Central Authority which has not formally served the defendants nor replied to the FTC’s efforts to ascertain why not. Defendant Vikas was served in the United States with the summons and complaint. The defendants were represented by attorneys in the hearing on the preliminary injunction which was subsequently issued. The court had unfrozen some assets so the defendants could pay their attorneys. The attorneys were not paid so the court allowed the attorneys to withdraw.

The proposed means of service are not prohibited by international agreement and comport with due process. Evidence showed the Facebook accounts were registered with email addresses used by the defendants.

Do you think service by Facebook will increase rapidly?

On Continuances and Professionalism

1,April 21, 2011

Pro pers and young attorneys are often surprised to learn that there are no California Judicial Council forms available to request a continuance for a trial or hearing.  The reasoning behind this stems in part from a statutory admonishment to discourage continuances in the Trial Court Delay Reduction Act (Gov. Code, § 68600, et seq.).  Pursuant to Government Code section 68607, subdivision (g), judges are required to “[a]dopt and utilize a firm, consistent policy against continuances, to the maximum extent possible and reasonable, in all stages of the litigation.”  Accordingly, a party seeking a continuance will have to draft a motion on pleading paper and comply with the rules promulgated by the California Supreme Court and Judicial Council under California Rules of Court, rule 3.1332

California Rules of Court, rule 3.1332(d)(9) lists among the factors the courts consider in granting such a motion is if all parties have stipulated to the continuance.  Given the adversarial nature of judicial proceedings and acrimony that frequently arises, there might be a temptation to spite one’s opponent by refusing to consent to his or her request for a continuance.  Consider the following example from the United States District Court for the District of Kansas.  Here attorney for the defense, Bryan Erman, requested a continuance because he was expecting his first child shortly before the commencement of the trial.  Despite the plaintiff’s counsel’s “lengthy and spirited” opposition to the motion, the judge granted the continuance.   In doing so, Judge Eric Melgren congratulated the expectant father and offered this admonishment to the attorneys:

Certainly this judge is convinced of the importance of federal court, but he has always tried not to confuse what he does with who he is, nor to distort the priorities of his day job with his life’s role.  Counsel are encouraged to order their priorities similarly.

Another federal judge, William S. Duffey, Jr., suggests that being civil toward one’s opponent can be rewarding in itself: “The incivility and hostility of litigation today not only makes this work more unpleasant, less satisfying, and less fulfilling, but it also serves as a barrier to what we are charged to do—to represent clients in the resolution of disputes by seeking just results.”  (On Encouraging Civility in A Life in the Law: Advice for young Lawyers (Duffey & Schneider, edits 2009) p. 59)  So before you go to the mattresses over your opponent’s request for a continuance, you might want to consider whether it’s really worth the effort—and make sure that you or your client will not need to request any favors from the other side. 

For Alameda County Law Library patrons who are seeking continuances, the library has a number of practice guides that may be useful for pro pers and attorneys.  For example, chapter 42 of CEB’s California Civil Procedure Before Trial, 4th ed., discusses the requirements and procedures and includes a sample notice and declaration.  And for newer attorneys, the library also has a display of titles offering practical advice for those beginning their careers.

Matthew Bender California Practice Guides

1,March 4, 2011

The library has recently acquired the Matthew Bender Practice Guide series of California practice guides published by LexisNexis. Consisting of nine titles, the series incorporates helpful editorial features not found in other practice guides.

Reading like sage advice from an experienced colleague, the text is punctuated by Strategic Points, Traps, Warnings, cross-references to other Matthew Bender publications, and suggestions for locating information on the Web and through LexisNexis. With an emphasis on strategy, compliance, and best practices, the guides tell you what to do, how to do it, and what to expect from the opposition. Useful checklists and adaptable forms open and close each chapter.

Practice-oriented and integrating material in multiple formats, the Matthew Bender Practice Guides represent the next generation in practice materials.

The Matthew Bender Practice Guides are available at the Main Library for in-library use only.

Matthew Bender California Practice Guides:

  • California Civil Discovery
  • California Contract Litigation
  • California Debt Collection and Enforcement of Judgments
  • California E-Discovery and Evidence
  • California Landlord-Tenant Litigation
  • California Pretrial Civil Procedure
  • California Trial and Post-Trial Civil Procedure
  • California Unfair Competition and Business

To Be Continued

1,November 30, 2010

Many of the patrons at the Alameda County Law Library seek information about continuances.  Black’s Law Dictionary (9th ed. 2009) at page 363, column 1, defines a continuance as “The adjournment or postponement of a trial or other proceeding to a future date.”  According to California Rules of Court, rule 3.1332(c), such motions are “disfavored.”  Nonetheless, courts have the discretion to grant them.  If you are seeking a continuance in California, several secondary sources can be extremely useful for understanding the substantive and procedural law and for seeing sample language for the required filings.  Particularly useful resources include:

  • Chapter 136 of California Forms of Pleading and Practice Annotated (Matthew Bender)
  • Chapter 42 of California Civil Procedure Before Trial (CEB)
  • Chapter 21 of California law and Motion: Model Forms (Rutter)  (sample notice of motion, memorandum, declaration and proposed order only)

As with California, other jurisdictions generally frown upon continuances but will grudgingly grant them.  Occasionally the grounds for granting one are so extraordinary as to make headlines.  One recent continuance granted by a Texas court has become fairly well-known in the Bay Area.  The court granted an emergency motion for continuance to Darrell Cook, an attorney and Texas Rangers fan who wanted to attend this year’s Major League Baseball World Series in San Francisco. 

Other examples of sports-related continuances include one from December 2009, where an Alabama Court granted a continuance so that the attorneys for a defendant could watch the Alabama Crimson Tide play the Florida Gators in the SEC Championship Game.  In December of 2007, a Louisiana court granted a continuance when the Louisiana State University Tigers played the Ohio State Buckeyes at the Allstate BCS National Championship Game.  Another Louisiana court granted a continuance in January of that year when the New Orleans Saints played Chicago Bears for the NFC championship.  Also in Louisiana and also involving the New Orleans Saints was a January 2010 order granting a continuance where the court took judicial notice of “Saintsmania” and recognized that that the presence of jurors, attorneys, and court personnel at the game would “enhance[] the chances of the Who Dat [sic] Nation to acquire the long sought after Holy Grail—the Vince Lombardi Trophy.”

While the South (Louisiana in particular) has led the way with regard to sports-related continuances, courts elsewhere have also granted continuances for unusual grounds.  Just last week, U.S. Judge Kimba Wood granted a continuance to a defense attorney to attend his grandchild’s bris, its circumcision, should it be born a boy.  Had it been a granddaughter, eliminating the need for the continuance, Judge Wood’s response stated that “there will be a public celebration in Court, with readings from poetry celebrating girls and women.”

It should be noted, however, that attendance at a child’s bris soon may not be an option for some Bay Area attorneys and therefore not grounds for continuance.  A San Francisco group calling themselves intactivists are seeking to put a measure on next November’s ballot that would make it a misdemeanor to circumcise a child in that city.

California Forms of Pleading & Practice Online- Free at the Law Library!

1,June 22, 2010

The law library is pleased to announce the addition of California Forms of Pleading & Practice to its LexisNexis subscription at the Main and Branch locations. Spanning 51 volumes, California Forms of Pleading & Practice has long been the cornerstone of the library’s print collection, and we are excited to offer this resource in electronic format.  Through LexisNexis, users can search and retrieve content from California Forms of Pleading & Practice through natural language or terms and connectors searching, or “browse” individual volumes through the expandable directory format.

Divided into 579 chapters presented in alphabetical order, California Forms of Pleading & Practice offers encyclopedic coverage of civil actions from Abatement of Actions through Zoning and Planning. Each chapter consists of four parts- Legal Background (governing law), Research Guide (cross-references to primary and secondary authorities), Procedural Checklist, and Forms (form templates with explanatory text).

Content can be downloaded in Word or PDF formats and printed at a cost of .25/page, or emailed or saved to a flash drive free of charge!

Create a Compliance Checklist with SmartRules!

1,June 22, 2010

The Alameda County Law Library has purchased a subscription to SmartRules, an online tool that allows users to generate procedural guides that summarize the requirements and time limits for drafting, filing, and serving a variety of court documents, with citations to the applicable state and local court rules and statutes. In addition to the filing and service requirements, each guide provides a concise description of the mandatory elements of the pleading or motion, grounds for bringing or opposing the action, and any accompanying papers. SmartRules is updated daily to reflect the latest changes to court rules and statutes affecting filing requirements.

SmartRules guides are available for pleadings, Case Management Statements, applications, motions and oppositions, discovery requests and responses, proposed orders, and many other court documents. To generate a guide, users simply select the court in which they are appearing (ex. Alameda County Superior Court), and the type of document they must prepare (ex. Motion for a Continuance). SmartRules reports are available for California state and federal trial courts, and for select courts in the states of Connecticut  Delaware,  District of Columbia, Florida, Georgia, Illinois, Maryland, Massachusetts, Missouri, New Jersey, New York, Nevada, Ohio, Pennsylvania, Texas, and Virginia.

SmartRules can be used free of charge at the Main and Branch libraries. Reports can be printed at a cost of 20 cents/page, or saved to a flash/thumb drive free of charge.


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