August 17, 2010

Why should you check out our weekly conference reports?

Our weekly conference reports help attorneys stay right on top of the issues pending before the California Supreme Court. This isn’t a subject of interest just to folks handling Supreme Court cases. At numerous points in the life of litigation, an attorney may be interested to know what issues are in play. When drafting a complaint or answer, an attorney may want to include language that accounts for a possible claim or defense that could be recognized or refined in a future Supreme Court opinion. The same is true when working up pretrial documents—especially proposed special jury instructions. And, of course, when one is preparing briefs on appeal, it’s good to know what issues are before the high court, so one can make sure that the briefing frames the case in the best possible light for review should the decision go badly (or, conversely, helps the Court of Appeal to craft alternative bases for ruling favorably so that the chances of the other side successfully seeking review are minimized).

But our weekly conference report highlights not only cases where review was granted, but also cases where review was denied, with one or more justice(s) voting to grant review. Why are these so interesting? Because the dissenting justices’ votes signal that the case presents an area of interest to one or more justices. These signals, which some refer to as “protest votes,” may be handed down in a case that presents an issue of recurring issue of statewide importance, but for one reason or another isn’t a good vehicle for taking the case up. It may be that the factual record is not laid out usefully for resolving the issue in broadly applicable terms. It may be that the procedural posture is not favorable (as where an issue can be more fully analyzed after a trial, but the case has come up at the pleading stage, or on denial of a writ petition). Or, it may be that the parties’ briefing is of mediocre quality, and the justices are concerned they won’t get a thorough and balanced presentation of the case.

The point here is that attorneys who are advising their clients whether it’s worth seeking review would benefit from checking for earlier cases in which “protest votes” were cast in favor of reviewing a decision raising similar issues. If so, it’s often possible to obtain copies of the earlier petition(s) for review to get ideas about how (or how not) to present the issue to best effect, and to parlay the dissenting vote(s) into the four-vote ticket needed for discretionary review.

It takes a bit of legwork to pull together information from various sources to create our weekly reports. We hope our readers find this to be a useful feature of our blog, and we’d love to hear feedback from anyone who has perused these reports.

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