Why Provide Case Summaries of Unpublished Opinions?
My goal for this website is to serve as a resource guide for California attorneys with an interest in criminal law, particularly from the perspective of felony appeals. I have been summarizing Court of Appeal opinions (in criminal cases) that are NOT published but provide some level of relief to the defendant – no matter how slight. Who reads those, right? Well, I’m here to tell you, “There’s GOLD in them thar hills!” (See the Unpublished Opinions page for elaboration.) The blog is my way of panning for that proverbial gold and sharing it with you.
Search the Blog, Find the Gold
As you dig into the summaries, please keep in mind that while the case summaries are prepared carefully and in good faith, they are just that: summaries, not substitutes. Every attorney must read the original opinion in its entirety before even considering whether and how to apply it to your own case. That said, here are a few core principles that guide my summarizing choices.
Guiding Principles
1. Anonymity (It May Save a Life)
Okay, maybe “save a life” is a bit dramatic. But I intend to anonymize the cases. We cannot cite them, for one thing. For another, though, the people in these cases are real people. Regardless of why they have come into the court system, I do not want to play a part in providing fodder for shaming (or even violence) by revealing information that could lead to their identities (whether the defendants, the victims or the other witnesses, regardless of “whose side they were on”).
2. But If You Have A Need To Know…
I, of course, have the information–the actual opinion–on every case I discuss. If there’s something that piques your interest, and you are an attorney eligible to practice in California, email me privately and identify which opinion you are interested in. (I will have a protocol for identifying each case that the readers will see and can refer to.) I will then contact you with the information by sending you an email to the email address you have listed with the State Bar.
3. Let’s Focus, People
Also, my focus is going to be on the “winning” aspect of the opinion (perhaps even if technically there is no relief granted, and perhaps even if the judgment is affirmed). Being very generous with a definition of a ‘win,’ I will include cases that have simply ordered the striking of a fee or fine or granted another day of credit for time served, and even those whose only problem is the need for an abstract of judgment to be corrected where the abstract makes a defendant’s judgment or sentence appear more dire than it really is. So if you do read the opinion, be prepared to read the ugly along with that bit of good.
Sometimes, though, even the opinions that affirm have snippets of law cited that are very valuable, perhaps even critical, in laying out a proper appellate argument. Often the opinion will mention the standard of review applicable to the issue before it. I may mention that aspect merely for educational purposes. Perhaps the snippet will guide the development of arguments in a case that merits relief. If it comes up, you might remember something like, “Oh, Gary wrote about a case with an issue like mine and the standard of review was mentioned.”
4. This Blog Is Not The Place For Legal Advice
By the way, I will not give legal advice through this blog. For one of many reasons, this is available to the public for viewing, which means there would be no privilege protection. For another reason, my plan is to maintain this blog at my expense. Draw from it what you can.
A couple more disclaimers while I’m here: 1) You remain fully responsible for complete representation of your client. And 2) There are no guarantees of specific results.
However, if you (meaning, you as an attorney seeking guidance handling an appeal, not as someone looking for an attorney to represent you) have an interest in my advising you on a specific California felony appellate case, get in touch with me (email me) and we can discuss the terms if we agree that I might be of service to you. Please see the Consultation page for more details.
5. Don’t trust. Just Verify.
And I suppose I need to state a disclaimer. I’ve closed probably all of my articles I’ve written for CACJ’s Forum publication by stating words to the effect, “don’t trust what I say,” and it is equally applicable here. That is, don’t believe what I’ve written when belief is important. Don’t rely on it. I’m acting in good faith, but I am not the horse itself. Don’t go to court and cite AppellateAdvisor.com as your authority. A court has not cited me as authority for anything since the early 1980s.
Instead, you have to READ THE OPINION!
You may decide that it says something different from what I’ve said. I may have misread it. So if I’ve said something that interests you, check it out directly. I’m not artificial intelligence. I’m real intelligence. (I did NOT say “really intelligent.”) I can get things wrong. I can think of at least two instances in the past year, although one of those two was where I thought I was wrong, but I was wrong about that because I was actually right. Okay, I apologize for that joke. I can get away with it in my own blog, right?
Seriously, though, while I might express my opinion in the context of the court’s opinion, you have the actual opinion available to you. Even though you cannot cite it, that’s what you need to look at for the gold. I think I’m pretty good at what I do, but I also recognize I might be the only one who thinks so. I don’t promise that my analysis is correct. I don’t promise that I have seen every possible nuance in any opinion. I’ll do my best to do it right, but I will not guarantee I will be successful. Only that I will try.
And there is the practical reality as well. Sometimes I run across a dozen cases in a day with some form of value. I can’t spend hours on each one to make sure I have analyzed it suitably for discussion in a law school class setting or a continuing education seminar presentation. If I’m going to get the gist of the gold out there, I doubt I’ll be able to compare and contrast each case or issue with the vast reservoir of other published and unpublished cases. I hope that I can say enough to trigger in your mind that “oh, that’s an issue.” But when you run across that issue in your actual cases, you will need to take far more time to formulate your arguments than I took to present my summary.
6. Respect (Thank you, Aretha)
I treat all courts, prosecutors, deputies attorney general, law enforcement personnel, etc., with professional and civil respect. I do not see this blog as an opportunity to commiserate over the trials and tribulations of frequently being on the losing side. I’ve worked with many judges and justices and prosecutors and witnesses and law enforcement officers in my more than 53 years of criminal defense practice. I have not agreed with them all. There may even have been some prosecutors or law enforcement individuals I had a dislike for. None come to mind, though I assume I’m normal and that there are people I did not like. But I always treated them in what I believe was a professional, civil, and courteous manner, just as I expected to be treated. (At least, I hope I did.)
7. This Is A Respectful Forum
And while I probably don’t particularly want to be labeled as thin-skinned or [I don’t know really what term is best here], if I enable comments, they must be worded respectfully, without resort to what is typically viewed as swearing, cussing, demeaning, etc. I do recognize that acceptable standards of language have changed since I learned to talk, and that some words that may cause me to scrunch my face may be perfectly acceptable in the contributor’s world of peers. I reserve and plan to enforce my right to censor language that I deem not G-rated, if you will. Nor will I approve tirades against “the establishment” (as we used to call it 60 years ago, I guess) or other contributors or me. My hope is to be helpful to other attorneys in honing their appellate skills. That can be achieved in a civil manner. Even though it’s a criminal case blog. (Okay, I did say it was permissible for me to utter corny jokes and puns, you know.)
Coming Soon To A Device Near You: Let The Mining Begin
With that, I hope you enjoy my contributions and my impressions of the gold in them thar hills. If I can figure out how to facilitate communications, I welcome constructive thoughts, as well as questions.
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