My Posting Process

I’ve noticed that the system I’ve adopted for recording from the opinions the information I want to include in my posts results in several inconsistencies. As I have said before, I’m anonymizing all identities, and I think I’ve done that. But I see that sometimes I switch between a third party viewpoint (“The court stated xyz”) and the first person perspective the author of the appellate opinion (“We have determined that abc”). It’s a little easier for me to leave it in the opinion author’s first person than to go in and monkey around with the agreement of subject-verb in order to get “We …” to “The court ….” So I may be inconsistent, driven mostly by convenience and time constraints.

I may also continue to be inconsistent within a blurb because sometimes I will paraphrase and sometimes I will copy from the opinion and paste into the blurb as is. From data I have collected, I can see that the appellate courts issue an average of between five and six unpublished opinions per day (five days a week) that provide some form of relief to a defendant (in the sense that they qualify for inclusion on my site). That’s a lotta cases to summarize!

Because I’m combining some direct copy and paste with paraphrasing and moving pieces from different parts closer to other parts for more condensed reading, I occasionally have punctuation that appears to have gone astray.  I try to delete what is redundant or superfluous, but sometimes I miss something or even make it worse than had I left it alone.  This is not acceptable in writing briefs, but I ask for your patience under the circumstances.  I’m not writing a brief, I’m trying to get out valuable snippets that you can use as springboards to usable and useful authority.  Noting that an average of five to six opinions a day suggests that some days there may be only a couple and other days there might be a dozen or more, I simply have to do the best I can in somewhat of a hurry.

Because of the time constraints, I am not going to worry about compliance with the citation style dictated by the California Style Manual, adopted by the California Supreme Court.  When you write your brief, you really should adhere to that manual, which is preferred in all of California’s state courts.  Rule 1.200 of the Rules of Court does state that an attorney may follow the style of either the California Style Manual or The Bluebook: A Uniform System of Citation.  But per the Chief Justice’s order in 1999, the California Style Manual is “adopted as the official organ for the styles to be used in the publication of the Official Reports.” Why not write your briefs in the style the courts themselves have to follow?

The term “First Holding” etc. is not necessarily the first holding in the case. It’s the first holding I have listed, but I’m sort of arbitrary at times. So you might see a case citation that says something like “See [case name but no citation], supra,” and yet the cited case has not yet appeared. For some, I’ve corrected it by inserting the full citation. For others, I’ve left them as is, because in a subsequent “holding” in the same post the full citation appears.

By the way, if you’ve forgotten why you’re reading all about my new-blog posting proclivities, perhaps it’s a good time to return to the Why Unpublished Opinions page, or go directly to the summaries to find the golden nuggets of citable (published) opinions buried within the cases. And if you are an attorney and want to know more about my consultation services, feel free to contact me.

I realized in my blurb for Case 000024 that the holdings did not all pertain to the issue on which relief was given. The win was on the attempted murder count. But he was also convicted of murder, and there were several points of interest I felt were important even though the court affirmed.

For example, the court discussed harmless error. California’s constitution says convictions must be affirmed unless there has been a miscarriage of justice. Time after time—including in death penalty cases—judgments are affirmed despite a finding by the appellate court (including our Supreme Court) that there was, indeed, error. There may have been error, but if the court concludes that the error was harmless, the conviction will be affirmed despite the presence of error.

Defense attorneys cannot treat the question of prejudice lightly. If you do not convince the court adequately that the error was not harmless, you will likely lose. While there may be a disagreement over whether the court correctly concluded that the error was harmless, such a finding is deadly, because the California constitution requires the court to affirm under those circumstances.

By the way, federal constitutional error is examined under Chapman v. California (1967) 386 U.S. 18, assuming the error is not one of the extremely rare structural errors that are per se reversible, such as a complete denial of the constitutional right to counsel or the constitutional right to a trial by jury. The Chapman standard requires reversal unless the error was harmless beyond a reasonable doubt.

If the error pertains to a state issue (I.e., not of federal constitutional magnitude), then harmless error is examined under the Watson test. (People v Watson (1956) 46 Cal.2d 818, 836.) [A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” There are many descriptions of what the language means. For example, that it doesn’t require that a defendant prove by a preponderance of the evidence that the outcome would have been different. But whatever it means, it is far easier for a court to conclude the error was harmless under Watson than under Chapman.

I think stuff like that is critically important to know, and I will include it even if not important to the relief granted. So in my blurbs, I may include information that has little to do with the actual point on which relief was granted, but does cover some very important basic recurring concepts.

In some of the summaries, not all of the holdings I set forth pertain to the issue on which relief was given. I chose the case to be summarized because there was some sort of relief given. If I were more people, I could summarize not only the wins, but ALL of the unpublished criminal case. I’m not, so I have to be more selective. But there are lessons to be taught even on those issues a defendant loses. So when I run across snippets I think are worthy of inclusion in any appellate lawyer’s arsenal (because it is important to know what the other side plans to rely on), I will include them. Even if not particularly relevant to the successful issue.

For example, the question of whether error was harmless is critical. Many non-winning issues lost because the appellate court believed that, even though there WAS error, it was harmless. California’s constitution says convictions must be affirmed unless there has been a miscarriage of justice. Time after time—including in death penalty cases—judgments are affirmed despite a finding by the appellate court (including our Supreme Court) that there was, indeed, error. There may have been error, but if the court concludes that the error was harmless, the conviction will be affirmed despite the presence of error.

Defense attorneys cannot treat the question of prejudice lightly. If you do not convince the court adequately that the error was not harmless, you will likely lose. While there may be a disagreement over whether the court correctly concluded that the error was harmless, such a finding is deadly, because the California constitution requires the court to affirm under those circumstances.

By the way, federal constitutional error is examined under Chapman v. California (1967) 386 U.S. 18, assuming the error is not one of the extremely rare structural errors that are per se reversible, such as a complete denial of the constitutional right to counsel or the constitutional right to a trial by jury. The Chapman standard requires reversal unless the error was harmless beyond a reasonable doubt.

If the error pertains to a state issue (I.e., not of federal constitutional magnitude), then harmless error is examined under the Watson test. (People v Watson (1956) 46 Cal.2d 818, 836.) [A] “miscarriage of justice” should be declared only when the court, “after an examination of the entire cause, including the evidence,” is of the “opinion” that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” There are many descriptions of what the language means. For example, that it doesn’t require that a defendant prove by a preponderance of the evidence that the outcome would have been different. But whatever it means, it is far easier for a court to conclude the error was harmless under Watson than under Chapman.

I think stuff like that is critically important to know, and I will include it even if not important to the relief granted. So in my blurbs, I may include information that has little to do with the actual point on which relief was granted, but does cover some very important basic recurring concepts.

In short, the next several paragraphs tell you that what you read in my blog may not be identical to what you read in the opinions themselves. And now for the In long.

Also, it may appear that some of the passages are direct quotations from the opinions. Don’t make that assumption. It is true in many instances, where it made sense to do so, even though I don’t provide attribution or quotation marks. (I don’t see that form of plagiarism as objectionable–I’m not citing it in any context to persuade someone to take action. I’m simply laying out the rule, and the opinion seemed to say it well enough for my purposes. In fact, I’m not passing these off as my own, so it’s possibly not even plagiarism.)

But many of the passages are actually paraphrases of the opinion’s language. I disguise people’s names (“defendant,” “witness”, “victim,” etc., in places where the opinion uses the actual names). I insert actual full citations, perhaps, where the opinion merely gave a case name followed by “ibid.” And sometimes I have collected sentences from different parts of one or two paragraphs addressing the issue and chunk them together. They appear adjacent, but in the opinion, they may well have been paragraphs apart. And I may have inserted the full case citation in place of a partial citation appearing in the actual opinion. “Estrada, supra,” is less helpful than the full citation if I haven’t already set out the full citation in one of the holdings for that case. And “ibid.”? Talk about res ipsa loquitur! (Weren’t we?)

In recognition that appellate courts draw their authority from other opinions, statutes, and other sources, rather than (for the most part) simply making statements ex nihilo, typical opinions will have lots of quotation marks, often inside multiple pairs of quotations marks (when citing a case that cited another case that was quoting from a third case that …) and ellipses and brackets. Their effort is to provide the reader with (a) the provenance of the declaration, and (b) a relatively easy-to-read but meaningful abstract or digest of the holding as relevant to their opinion. No one is going to cite appellateadvisor.com, so I have tried to remember to eliminate quotation marks, ellipses, brackets, and the like for easier reading. (I can’t think of an example of a “the like,” but in case I missed something, I said that.)

With all that said, however, I do copy and paste freely when it makes sense to do so. I think my point in this H. is that you should not assume anything is replicated. Some is, and some is not, no matter how it reads. Grasp the essence of the holdings and track down what you need from the authorities cited.

[“I” stands for “I stress this over and over and over and over.”] As I’ve emphasized elsewhere, if you actually need the opinion or the principle or authorities, you need to get the original (which I can provide to attorneys who ask) and you need to read the cases and statutes you see in my case summaries. Do NOT rely on me to have stated it properly. I hope I did, but I don’t represent your client. We’ve all probably heard about hallucinations experienced by artificial intelligence in the course of legal research. It doesn’t take a computer to make a mistake. You do not need to harbor malice toward your opponent, but you should never ever ever trust his or her assertions of what a case or statute says. Your opponent may be correct, but you have a duty to make sure that the claims are accurate. I think the same can be said of any blog or article you read, including mine. For general knowledge, sure, it’s okay to trust me. But if you have a client who needs proper representation, it is not. You must do the work yourself or assign it to someone you actually know will get it exactly right on your very issue with all of the facts necessary for a winning argument.

Also, each case has a number I have assigned it, but I have examined some of the cases and decided that they really added nothing of value after all. You may therefore see something like “Case 000057” followed by “Case 000059,” and there appears to be no “Case 000058.” On account of I did not post “Case 000058.”