Category: Law Blog

Citing to Unpublished Opinions

Thanks to Westlaw and Lexis, attorneys practicing in federal courts have access unpublished district court opinions.  Because they are so numerous, you will often find that an unpublished case addresses a relevant factual or legal issue, but not a published decision.  Sometimes, it seems, you can find an unpublished district court opinion that says just about anything.  This entry discusses how the opinions should be cited; and because the official citation format has some drawback, I offer some common sense observations about when you may want to use use a shortened form.

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The Official Citation.

Generally, the legal citation authorities recommend that citations to unpublished legal opinions include case name, case number(a.k.a. docket number), online citation (i.e., the database ID), pin cite, court and full date.  (Link, Link.)

For example:

Long v. DHS, No. 14-807, 2015 WL 3961312, *3 (D.D.C. June 29, 2015)

A few points:

  • Case name is underlined or italicized.
  • Use a * (star) before the page number because the reference is not to a consecutively bound book, but to a document that begins on page *1.  The star tells us that the cited information is on *x of the original slip opinion, not the page of the onscreen or printed database entry.
  • The case number is often called the docket number, meaning the unique identifying number assigned to the proceeding in the particular court, usually a combination of year the action was filed, judges initials, type of matter and how many cases were filed before it that year.  (I dislike the term “docket number” confusing, because I use “docket number” to refer to a number assigned to a specific document filed with the court appearing on the “register of action”.  (Link.))
  • The use of the case number and full date would help someone find the slip opinion if they did not have online access, and instead wanted to head to the court and look up the document manually or go to the Court’s website to find the opinion, if it is available there.

Using Full Citations to Unpublished Opinions on Westlaw and Lexis US District Court Decisions in Federal Court Papers Is a Waste of Time.

Often, the full citation is not helpful, has drawbacks and may undermine the credibility of your authority.  Instead, I suggest that attorneys omit the case number entirely and use only the year.  Don’t follow my advice, however, if your audience (i.e. the Judge) insists on strict blue book citations or doesn’t have access to the databases.

Generally, and especially in USDCs, judges and their clerks pull the decision from Westlaw or Lexis by typing the ID number.  The case number and the full date are not going to help and only get in the way.  The problems are many:  the extra information adds length to the citation, taking up more room in your brief and breaking the train of thought of the reader; draws attention to minutia, which is mentally wearing on your audience; cite checking takes longer; using them will cost your client money and slow down the drafting process; and there’s more opportunity for errors.  The full citation draws additional attention to the fact that you are relying on an unpublished opinion:  the court will think obscure, foreign and different, weak authority – compared to safe and authoritative opinions the court is comfortable to rely on.  The judge is probably going to think this anyway, but why highlight the fact?

You need the year, so that the court can quickly determine if the case is recent.  The Westlaw/Lexis citation is enough to let the judge know that the case is not in an official reporter.  If the case was decided last month, you might want to give the full date, just to let the judge know this is really the latest in jurisprudence (although I doubt it is going to make a difference and if it did, you’d be better off discussing the fact in text).

Unless you are still writing for your 1L legal writing instructor, save your time, reduce errors, shorten your brief, and avoid undermining your persuasiveness by providing citations with the relevant information.

Notice of Joinder and Joinder: Cost Effective for the Client, But Do It Right

A joinder is an alternative to filing a motion seeking relief on the same grounds as a motion filed by another party.  It is efficient for the client and less work for the Court.  The joinder asks the Court for the same relief already requested in another motion, but in the name of the joining party. A party can join the entirety of another party’s motion, join in certain arguments, or move on new relief while joining in part of another motion.

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Joinders are usually short and simple.  The point is to save everyone work when the arguments are already made and need no further argument.   It is usually enough to state how the grounds for relief apply to the joining party.

Your papers.  You will want to give notice of your joinder as you would for a motion, indicating that your client will seek the same relief based on the same grounds in the pending motion.  Include a memorandum of points and authorities that explains why the Court knows the issues are the same.

Timing.  Joinders have to be filed with the same notice as regular motions.  See Barak v. Quisenberry Law Firm, 135 Cal. App. 4th 654, 660-662 (2006) (joinder allowed when timely filed).

Basis for Relief.  Unless it is plainly obvious, the papers should include an explanation and/or evidence establishing that the joining party is entitled to relief.  In particular, motions for summary judgement are typically not suitable for joinder, as the moving party bears the burden of showing that there are no disputed issues.  However, even if the issues are identical, the party must file its own separate statement.  See Village Nurseries, L.P. v. Greenbaum, 101 Cal. App. 4th 26, 46-47 (2002); Frazee v. Seely, 95 Cal. App. 4th 627, 636-37 (2002).

The amount of detail will vary with the circumstances.  In a recent First Circuit case, the Court explained this:

While Federal Rule of Appellate Procedure 28(i) permits co-appellants to “adopt by reference a part of another’s brief,” as we have reminded litigants in the past, “[a]doption by reference cannot occur in a vacuum and the arguments must actually be transferable from the proponent’s to the adopter’s case.” United States v. Brown, 669 F.3d 10, 16 n. 5 (1st Cir. 2012). Therefore, where, as here, an appellant “offer[s] no explanation as to why [his co-appellant’s] arguments pertained to him,” such “textbook perfunctory” treatment waives the appellant’s attempts to adopt-by-reference his co-appellant’s arguments. Id. (emphasis omitted); see also United States v. Espinal–Almeida, 699 F.3d 588, 599 n. 9 (1st Cir. 2012) (a criminal defendant’s mere statement that he “joins in any and all other arguments raised by the other criminal co-defendants that are applicable to his case” is not sufficient (alterations omitted)).

U.S. v. Ramirez-Rivera, 800 F.2d 1, 12 n.1 (1st Cir. 2015).

 

What Clients Should Look for in Their Retainer Agreements

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Summary: The attorney is free to negotiate terms in the retainer agreement that are most beneficial to the attorney, subject to the California Rules of Responsibility and the laws applicable to retainer agreements.  These rules and laws recognize that it is the public policy of California to protect clients as consumers of legal services and to promote integrity in the legal profession.  Clients and potential clients should know about them, even if the agreement has already been signed.

One of the benefits of retaining an attorney is the fiduciary duties that attorneys generally owe the client.  These duties require the attorney to look out for the best interests of the client and to even put the client’s interests ahead of his own.  However, many people do not consider that  before the attorney is hired, the attorney  can act in his own self-interest.

Before hiring an attorney, every client should know what to expect from the attorney-client relationship, and one area that is especially important is the retainer agreement.  This is the document that defines the duties and obligations between the client and the attorney, and when fairly drafted, can be the client’s most important evidence if the relationship for some reason breaks down.

The retainer agreement must be in writing to be enforceable.  There are a few exceptions, such as (i) when the reasonably foreseeable total expense is less than $1000; (ii) the services are rendered during an emergency when it is impractical to enter into a written agreement; (iii) if the services are generally the same as those previously rendered to the client; (iv) the client waives his or her right to a written agreement;  or (v) the client is a corporation.  Cal. Bus. & Prof. C. § 6148(d).

At minimum, the written contract must contain the basis of compensation (usually the hourly rate or flat fee), the general nature of the legal services to be rendered, and the respective responsibilities of the attorney and the client.  Cal. Bus. & Prof. C. § 6148(a).

There are additional requirements in contingency cases.  When an attorney agrees to represent a client on a contingency basis, it means that some portion of the attorney’s compensation depends on the outcome of the case.  A typical example is an attorney who agrees to sue a negligent driver on behalf of an accident victim for 30% of any money recovered, but agrees that if the attorney is not successful, the client does not have to pay for the services.  A contingency representation also occurs if only a portion of the compensation is contingent on the outcome.

The contingency fee agreement must state what the contingency fee is (usually the attorney’s percentage of the recovery); how costs will affect the contingency fee and the client’s recovery (in other words, whether the costs will be deducted before or after the attorney takes his or her fee); and whether the client could be required to pay the attorney for related matters not covered by the contingency fee contract.  The contract must also state that the fee is not set by law but is negotiable.  Cal. Bus. & Prof. C. § 6147(a).

Contingency fee rates in medical malpractice cases are further subject to the limits specified by law, which currently are 40% of the first $50,000; 33.3% of the next $50,000; 25% of the next $500,000; and 15% of the amount over $600,000.  Cal. Bus. & Prof. C. § 6146.

The attorney is obligated to know these rules, and to apply them, even if the client is unaware.  However, often the attorneys do not comply with these statutes.  If the attorney does not provide a written retainer agreement, or omits any of the required terms, then the agreement is voidable by the client.  This means that the attorney is not entitled to the fee as stated in the contract, but instead is entitled only to a “reasonable fee” based on the work performed.  The contract is voidable at any time the services are performed, or in some cases, even after the legal services are performed.  However, the statute of limitations may limit the ability of the client to recover any fees paid in violation of these consumer protection statutes.  Cal. Bus. & Prof. C. § 6148(b).

Retainer agreements are written by attorneys and are difficult for the layperson to understand.  Sometimes, it is a good idea just to have a second set of eyes take a look.  If you think that your retainer agreement does not comply with the law, or you have concerns about how your attorney has been responding to your queries, managing your case, or paying out your settlement, do not wait.  Contact us for a free consultation.