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News from the Director

July 30, 2016

Please review the following important news items regarding:
  1. an increase in the hourly rate for panel cases
  2. rule change: Court of Appeal opinions are no longer automatically depublished when review is granted
  3. additional eservice addresses available for institutional service recipients (e.g. public defender offices, county counsel, etc.)
  4. a clarification regarding the bookmarking requirement for documents 40 pages and longer
  5. our 2017 training will be held on Feb. 10, 2017 - save the date
1. Panel Hourly Rate Increase - Effective for Cases Appointed July 1, 2016 and Later

The new panel rates went into effect on July 1. The new rates, for cases appointed July 1 and later are: 
  • $95 for assisted cases
  • $105 for standard independent cases
  • $115 for upper tier independent cases 

The operative date is the date the Court filed the order, approving the appointment. If the appointment order was filed by the Court on June 30 or earlier, the old rates apply. If the appointment order was filed by the Court on July 1 or later, the new rates apply, even if the attorney accepted the case earlier and even if FDAP transmitted the order to the court earlier. The date the order is filed, as stamped by the Court on the appointment order and as the docket shows, controls. 


2. Published Court of Appeal Opinions No Longer Automatically Depublished When Supreme Court Grants Review

The California Supreme Court recently announced that, effective July 1, 2016, published state Court of Appeal opinions will no longer be automatically depublished when the state Supreme Court grants review.  Amended California Rules of Court, rules 8.1105 and 8.1115 will permit citation to published Court of Appeal decisions while review is pending before the Supreme Court as well as citation to published Court of Appeal decisions even after the Supreme Court has subsequently issued opinions of its own in those cases.

We recommend that you familiarize yourselves with the amended rule, including the comments that follow it.  Here are some of the key provisions of the amended rule 8.1115 and its comments:

  • While review is still pending, the Court of Appeal opinion will remain published but “has no binding or precedential effect, and may be cited for potentially persuasive value only.”  

  • In light of the above limitation, the comments following amended rule 8.1115 specify that if there is a split of authority between a non-review-granted published opinion and a review-granted published opinion, lower courts must follow the non-review-granted published decision, as it is the only case of “binding or precedential effect.”
  • When citing to a published decision after review has been granted, amended rule 8.1115 requires that “[a]ny citation to the Court of Appeal opinion must also note the grant of review and any subsequent action by the Supreme Court.”

  • Whereas a published Court of Appeal opinion has no binding or precedential effect while review is still pending, once the Supreme Court has decided the case the Court of Appeal opinion “is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”

  • The Supreme Court will retain the authority to order a published Court of Appeal opinion not to be cited in whole or in part, both while the case remains under review and after the case has been decided by the Supreme Court.

  • According to the Supreme Court’s announcement, the amended rules “will apply to any published Court of Appeal decision as to which review is granted on or after July 1, 2016.”  The clear implication of this statement is that, even after the rules' effective date, practitioners will not be able to cite to review-granted opinions issued prior to July 1, 2016.  In other words, the Supreme Court’s announcement contemplates that the amended rules will only apply prospectively.  Amended rule 8.1115 itself does not include this clarification, other than to point out generally in a footnote that the citation rule change “will . . .  take effect July 1, 2016.”   

The full text of the Supreme Court’s announcement can be found here: http://newsroom.courts.ca.gov/news/supreme-court-eliminates-automatic-depublication

The full text of the amended rule can be found here: http://cms.ipressroom.com.s3.amazonaws.com/262/files/20164/California_Rules_of_Court-Amended_Automatic_Depublishing_CoA-Decisions_Rule.pdf

3. More eservice email addresses:

We have obtained a few more email eservice addresses for various institutional offices in the First District. As we obtain more, we will let you know. 

Here is the complete list of eservice addresses that we have so far: 

4. Bookmarking Clarification

Last year, the Court added a requirement that “electronic bookmarks” be included in all electronically filed briefs exceeding 40 pages and in all motions and writs, irrespective of page length. (Read our original announcement here.) When determining whether a brief exceeds 40 pages, please include the cover, tables, proof of service, and any additional material. The Court has rejected some un-bookmarked briefs where the body of the brief was under 40 pages but the cover, tables, etc., put it over 40 pages. 

5. Date Set for FDAP's 2017 Annual Training

Please save the date for FDAP's 2017 Annual Training. It will be a little later than usual to avoid some scheduling conflicts. Our 2017 training will be held on Friday, February 10, 2017. Please save the date. Registration will open in the fall. 



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