This is perhaps a collection of stuff I’ve observed about things I’m doing in my posts. (How’s THAT for precise language!?!) But as I add posts, comments about my practices get pushed out of sight (nearly out of site). So I realized I may need to have a page that explains some of my choices. If you’ve read the blog, you’ll see some nearly copy-and-paste into this page. This is simply so you can easily find “what was it Gary said he was doing again?” should the notion arise several posts later.
A. 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 experiment and be inconsistent until I’ve settled on what I feel most comfortable with.
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. In slightly more than two months, the appellate courts have issued an average of five unpublished opinions per day (five days a week) that provided some form of relief to the defendant. On more than 17% of the days, the number has ranged from 10 to 20 cases. That’s a lotta cases to summarize!
B. I also see that my copying and pasting and melding bits and pieces results in missing periods or multiple adjacent semicolons, and probably other little nuisance bits of detritus I’d rather not leave in but somehow didn’t notice on my first few edits. I’m hopeful that between now and when I formally roll out the website I will have ironed out the kinks. In the meantime, I appreciate your patience. (Not that anyone has actually run across my blog except maybe family, but hey, I can pretend you are out there listening to me raptly, no?)
C. I have concluded I will not entirely comply with the citation style dictated by the California Style Manual adopted by the California Supreme Court. Specifically, I have chosen not to italicize the case names (or any other words normally italicized per the Manual). Not that anyone will, but if someone WANTS to copy portions of the summaries to paste into some other archive maintained by the person, I want it to be as painless as possible. Formatting carries the potential of not moving well from one platform to another. I know that’s true between some operating systems and some word processing applications. I do not know if that is true in copying from websites. But I do know that when I have copied information from various websites and pasted into whatever document I’m working on, sometimes it works, and sometimes there’s a lot of clean-up needed. I want to keep this as simple for you as I can. I see no need for me to format my citations in a way that makes it difficult for you to quickly copy a citation and paste it elsewhere.
And I may not use the approved style for code sections and subdivisions. As I said in A, there are several opinions to summarize every day. I go through a process of extracting passages I think are interesting, and then I put them into a template (I use a common database software application, whose name I would willingly share, but I haven’t figured out how to refer to it and comply with trademark reference expectations), where I put language together followed by case citations (some of which carry additional language used in those cases). Then I export the collection into a word processor, from which it goes into the blog posts on the website. While I have a great interest in providing this summarization service, I have little interest in it occupying my attention 24 hours a day. So–shortcuts where I think they do no real harm.
D. 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.
E. By the way, if you’ve forgotten why you’re reading cases on my blog, perhaps it’s a good time to click on the navigation button “WHAT Gold?” above. To return to the blog, click on “Gary has this to say.” And if you are an attorney and want to contact me, click on the “About me” button.
F. Here’s a host of them from my first post (which might make it the Postest with the Mostest?): The format at the moment (and this is to remind me what I’m doing when I come back for the next tweaking, so don’t worry about how I’m stating the obvious) puts the unique identifying number (which allows me to find the actual case) above the paragraph describing the issues and the authorities.
Then the introductory sentence (or two) states generally what relief the court provided.
Following that is the actual principle announced by the court (or two or three or … if more than one). Following the principle you will see the case or statutory or other legal basis supporting the appellate court’s rationale. At the moment, I’m leaving that in the same paragraph with the holding it supports. I’m trying to edit out bits and pieces that I use in my process of organizing the information, but you may see a stray semicolon. Or twelve. I’m workin’ on it. I’ll probably have to go through another dozen cans of polish before I’m even half-satisfied with my handiwork. You might want to hold off on your tomatoes till then. They’ll either be good for paste or good for ammo, depending on my success or lack of it. Also, I haven’t gussied up the formatting, particularly on the authorities, so there will be stray quotation marks, parentheses, and brackets that are either incomplete or don’t work at all. Not to worry. I’m focusing on the process at the moment. Graceful presentation will follow. At least that’s my story for now.
G. 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.
H. [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 as I’ve added more and more summaries, I have begun to eliminate quotation marks, ellipses, brackets (which are often used to turn a capital letter into a lower case, or vice versa, or insert a word that wasn’t in the cited material but provides a necessary transition in the sentence presented in the opinion citing it), and the like. (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. [“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.
J. 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.”