Tuesday, August 18, 2015

First Intercontinental Bank v. Ahn (9th Cir. - Aug. 18, 2015)

It's tough to be a judge on the Ninth Circuit.

Don't get me wrong.  It's a great job.  One for which many people might give their eye teeth.

But it's a lot of work.  You've got tons of cases to decide.  In many (if not most) of which reasonable minds might reasonably disagree.  You've got petitions for rehearing and rehearing en banc to review and adjudicate.  You've got oral arguments to prepare for and attend.  You've got plenty of opinions to write, both published and unpublished.

Mind you, you've got a lot of help.  You've got at least one administrative assistant.  You've got three or four incredibly motivated and bright law clerks.  You've often got a nontrivial number of externs helping as well.  All of which somewhat lessens your burden.

But ultimately, the opinions that are produced have your name on them.  So you're responsible for them.  No small task.  Including but not limited to making sure that the opinions sound like you, even when they're written in (large or small) part by one of the other people in your chambers.  This ain't easy either.  More work.  More effort.

So when I read this opinion by Judge Milan Smith, I was somewhat sympathetic.  It's a conflict of laws opinion:  Do California's choice of law rules require application of California law or Georgia law to a dispute over attorney's fees for the prevailing party on a contract?  Not a totally easy dispute.  But one that Judge Smith's opinion seems to resolve reasonably and, I think, correctly.

So it's not the merits of the opinion that struck me as unusual.  Rather, it was its style.

Having read plenty of opinions by Judge Smith over nearly a decade, as well as plenty of opinions by other judges on the Ninth Circuit, I was struck as I read the opinion by how much this one didn't read like most of the others.  Sure, it had an introduction, and statement of facts, and legal argument; none of that was off.

But there's a style of legal writing that you see much more in law schools than you do in Ninth Circuit opinions.  And that's the style that was evident here.

You'll have to read the opinion yourself to see if you get the same sense that I do.  And it's also hard to describe exactly just what seems a bit "off" about the opinion.  The best I can do is to say that the thing is overly staccado.  Every little factor in the conflict of law test gets its own heading.  Every tiny point gets addressed seriatim and in relative isolation.  It just looks -- for lack of a better word -- weird.

I'll give an example to try to demonstrate what I mean.  Here's what the ninth page of the opinion looks like:

Is there anything substantively wrong with that?  No.  Everything in there is right.  If one of my first-year law students wrote this on a paper or in an exam, I wouldn't be surprised.

But it's not what you generally see -- or expect -- in a published Ninth Circuit opinion.  Paragraphs that are a single sentence, and that have their own heading to boot?  Headings that are nearly as long as the underlying section?  Really?

We're used to seeing things more, well, integrated.  It's not that the style of legal writing evident here is demonstrably "wrong".  But it's more of what you'd expect to see on a bar exam answer than in an erudite Ninth Circuit opinion.  Particularly one by Judge Smith.

So I was going to say something about the style of this opinion anyway.  Again:  Not to blame Judge Smith, who's got plenty to do.  But to nonetheless mention that, for whatever reason, this is a pretty good example of an opinion that doesn't read much like the product of the person whose name is on it, which happens from time to time but is still somewhat distracting.

But then read on, and felt like definitely commenting on the thing.  If only because subsequent pages of the opinion repeatedly refer to decisions of "the California District Court of Appeals".  (E.g,, The California District Court of Appeals confronted a situation similar to the one we consider here. . . . and "The California District Court of Appeals ultimately decided . . . .")

It's not that other judges haven't used a similar appellation in the past.  Even the United States Supreme Court, I've discovered, has called it the "California District Court of Appeals," and has done so a half-dozen times.  Albeit not in the past fifty years.

Ditto for the Ninth Circuit.  There appear to be nine opinions where it's previously referred to such a tribunal.  The last of which transpired in 1978, in a per curiam opinion.  You've got to back 45 years to find a signed opinion in the Ninth Circuit that uses that term.

There's a reason for that, of course.  It's not the "District".  And it's not the Court of Appeals.  It's the California Court of Appeal.  Pure and simple.  That's what the Ninth Circuit has called the thing roughly 1400 times in the past decade.  And it's what the California Constitution describes as well.

Admittedly, the Court of Appeal has districts.  So you'd be just fine in calling it, say, the Third District of the California Court of Appeal.  But it's not the "California District Court of Appeals."

As Judge Smith knows full well.

Look, this stuff's confusing.  I still mess up, on rare occasion, between the federal Court of Appeals and the state Court of Appeal.  Google "California District Court of Appeals" and you'll see lots of people who make the same mistake that's repeatedly made in Judge Smith's published opinion.

But it nonetheless still detracts from the quality of the opinion.  Particularly when combined with the stylistic point identified above.

This just seems like one of those published opinions that fell through the cracks.

Which is itself surprising.  Judge Smith, Judge Smith's law clerks, the other judges on the panel, the law clerks for the other judges on the panel, and even the publication staff in the Clerk's office:  all of 'em presumably read this thing, and none of them caught (or at least mentioned) what seems to me an obvious, repeated error.  Putting even wholly aside the style of the opinion, which is admittedly the sole province of Judge Smith and his chambers.

Anyway, an unusual opinion.  Hence worthy of comment.

Even if -- and this definitely bears repeating -- the substance of the opinion seems spot on.