About David Ziff

Senior Lecturer at UW School of Law. Twitter @djsziff. Writing at ziffblog.wordpress.com.

The Washington Court of Appeals and the Case of the Missing Findings of Fact

In State v. Yallup, Division 3 of the Court of Appeals provides some advice to parties on what to do if the trial court does not timely enter findings of fact. I was not aware of this being a big problem, but apparently it is—especially when the trial judge retires to “spend much of [his] time at sea” before the findings can be entered. Here’s the Court of Appeals’ full discussion of the issue in Yallup along with recommendations to counsel faced with this problem in future cases: Continue reading

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Zombie Horizontal Stare Decisis in the Washington Court of Appeals

If you read this blog, you know that the Washington State Supreme Court recently rejected horizontal stare decisis among the Divisions of the Court of Appeals. They were pretty clear about it:

We reject any kind of “horizontal stare decisis” between or among the divisions of the Court of Appeals.

In re Arnold, 410 P.3d 1133, 1139 (Wash. 2018). Any kind! That’s pretty vehement.

When the Court issued Arnold, I was a bit confused. The Supreme Court seemed concerned that a Division should not feel “bound” by another Division. But the Court of Appeals in Arnold never said it was bound. Instead, it was just following its sister Division for prudential reasons.

Which brings us to today’s Court of Appeals decision from Division 1 in State v. Sullivan. The Sullivan court does not cite Arnold, but it does rely on precedent from another Division. Here’s the Court of Appeals rejecting one of the appellant’s arguments:

Sullivan offers no evidence that the jury failed to deliberate as a whole. Instead, Sullivan’s argument relies entirely on speculation, arguing “it is safe to assume one or more jurors left the jury room. . . , if, for no other reason than to use a bathroom” during the two hours of deliberations. “[S]peculation that a juror may have left the jury room during deliberations . . . is insufficient to warrant review under RAP 2.5(a)(3).” State v. St. Peter, 1 Wn. App. 2d 961, 963, 408 P.3d 361 (2018).[n2]

And here’s the problem. The Sullivan court relies on St. Peter and only St. Peter for this point of law. But St. Peter is not a Supreme Court case. It’s not even a case from Division 1 of the Court of Appeals. Instead, St. Peter was decided by Division 3.

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The Unanimous Washington Supreme Court to Ziff: “You Are Wrong”

Well, not quite. They didn’t call me out by name. But still… Yikes.

Last month I wrote about In re Arnold, a then-pending case in the Washington Supreme Court involving stare decisis and the state’s intermediate Court of Appeals. I argued that the Supreme Court should stay out of it. Let the Court of Appeals figure out its own rules for stare decisis. Or perhaps the Supreme Court could use the rulemaking process or recommend that the legislature clarify the Court of Appeals’ structure so that stare decisis could work more smoothly.

The Supreme Court did not take my advice. In a unanimous opinion (!) the Court dove right in, holding that a Division of the Court of Appeals should not follow the decisions of other Divisions. I can appreciate the Court’s desire to resolve this problem. But unfortunately, I think the Court’s decision raises more questions than it answers. Here are a few: Continue reading

Stare Decisis and the Consubstantiality of the Washington Court of Appeals

You know the line about a bad restaurant: “The food is terrible. And the portions are so small!” Well, this is the blog version of that restaurant. It’s not a good post. And it’s so long.

Here’s my excuse: This post is about a currently pending case in the Washington Supreme Court that seeks to set a rule of stare decisis for the state’s intermediate court of appeals. So things get abstract pretty quickly. This is a case about the law about law about law. Yup, you read that right: It’s meta-meta-law. First we’ve got the substantive law: the three-part test, the scienter requirement, the proper jury instruction, the meaning of the statutory term, &c. That’s the law. And then there’s stare decisis—i.e., the law about that law. A court might disagree with a prior decision on the substantive law. The applicable rule of stare decisis tells the court whether or when the court gets to depart from that substantive law. But who determines the relevant rule of stare decisis? And on what basis is that rule determined? That’s the law about the law about the law. And it gets a bit messy.

But first, some background…

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My Review of The Bluebook: The Reviews Are In!

Well, our long national nightmare is over. The Spring 2017 volume of the Journal of Legal Education has hit the digital newsstands; this volume includes my review essay on the latest edition of every lawyer’s favorite citation guide, The Bluebook. Early reviews of my essay have been uniformly… mediocre:

“[David Ziff] reviews the Bluebook”
Ryan Calo, UW School of Law

“Why?”
— 
Cristian Farias, Huffington Post

“Everybody knows The Bluebook sucks. What this article presupposes is—maybe it doesn’t?”
Ron FisherLatham & Watkins

“I nearly puked but I’ll still read it”
Sasha Moss, R Street Institute

“Scariest thing I’ve seen today… by far!”
Eric Segall, Georgia State University College of Law

“Anyone who wrote a 27 page book review of the Bluebook is not to be trusted.”
Jim Tyre, Electronic Frontier Foundation

Okay, so maybe those reviews are not great. But I’m pretty sure they were offered in the playful spirit shared by the essay itself. Seriously. I figured I couldn’t take myself too seriously while writing a 27-page book review of a legal citation manual. So while I certainly intended the essay to raise some important issues, I also tried to make it a fun read. I hope you enjoy it!

A Quick Post on Keyboard Shortcuts

I’ve noticed a few folks tweeting about their keyboard shortcuts for legal writing symbols, likely related to this new keyboard for lawyers. Seriously! If you’re not already using custom keyboard shortcuts in MS Word, you should be. Here’s one way to easily insert commonly used symbols into your legal writing (if you use MS Word):

1. Pull up the “Symbol” window as if you’re going to insert a symbol. Here, I’m pretending to create a shortcut for the symbol μ, because my imaginary law practice includes many briefs involving the coefficient of friction.

symbol-1

See how the “Shortcut key” is assigned as “Alt+0181”? What the heck is that? Well, we can change it by clicking on the “Shortcut Key” button. Continue reading

In Praise of Statutes (and Statues)

Today is the first day of winter quarter (or Winter Quarter, depending on how you feel about it) here at the University of Washington School of Law. For my 1L Legal Analysis, Research, and Writing class, that means we turn from common law (which we covered in the fall) to statutes. I really like this quarter, and I start the class with a general lecture on how to think about statutes. I figured some of that might be interesting to y’all out there on the interwebs, so here goes….

I think it’s easy to underestimate the difference between (1) reading and understanding case law and (2) reading and understanding statutes, especially for first-year students. During the entire fall quarter, my class discusses common law doctrines, reads cases, argues about holdings, makes predictions based on dicta, etc. When reading a case, determining the holding is partially based on what the court says, but much of it is based on the reader’s own reading between the lines. Sure, the court said any family member could recover, but that case involved a biological father-daughter relationship. Same result for a great-grandmother? What if they lived together? What about a step-father? What if they are estranged? You know the game. Testing a holding—narrowing it down to the relevant facts—is a huge part of the first quarter. And it takes a long time for many students to get into that mode of thinking.

And then—record scratch—we introduce statutes. The familiar “Okay, but what does that really mean?” method of analysis doesn’t quite work on statutes. Students comfortable divining and then applying abstract principles from a series of cases are in for a rude awakening when attempting to apply that divination skill to a statute. “Yes, the statute says ‘prevailing party,’ but what that really means is….” Nope. It means “prevailing party.” Words matter for statutes in a way they don’t for cases.

I like to illustrate the point with two different statues (yes, statues, not statutes). Here’s a familiar one:

https://commons.wikimedia.org/wiki/File:Cudrefin-justice.jpg

Fontaine de la Justice via Wikimedia Commons

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