Wednesday, February 8, 2017

The Nutty 9th


  • CCSD settles a lawsuit with a transgender police officer. [RJ]
  • Here's more on the proposal to split the "Nutty 9th" Circuit. [RJ]
  • A 9th Circuit panel appeared skeptical of President Trump's travel ban executive order. [NY Times]
  • Do you want Commissioner Beecroft's job? The time to apply is now. [eighthjdcourt blog]

62 comments:

  1. "For years conservatives have mocked the 9th Circuit as the 'Nutty 9th'"

    Cite?

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    1. Every goddam Rush Limbaugh broadcast where he derisively and obnoxiously called them the "9th Circus Court"

      Pay attention.

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    2. 9th Circuit is a circus run by nutty clowns. Abolish it completely and start fresh with a brand new slate of actual jurists appointed by President Trump.

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    3. Great. Let's first nominate Jarvanka. Highly qualified for sure.

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    4. This "nutty Ninth" stuff and the proposal to split the Circuit has been around off and on since at least the 1980's. It rears its head every time right-wingers get their panties in a wad about some decision they don't like. "If you don't like the decisions, then abolish the court" seems to be the approach. Straight out of the fascist playbook.

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    5. Abolish it? No one is seriously considering abolishing the court. All of the justices currently on the court would remain, either in the 9th or the new 12th. There's no doubt that its a huuuuuuuuge court.

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    6. I disagree. The fascist playbook would call for masked thugs beating people in the streets and having its agents legislate from whatever position of power available, in this case the bench. The activist court defying the constitution and the will of the people is the fascist here.

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    7. It's by far the largest circuit. It should be split on that basis alone. I don't know what the people in Idaho have in common with folks in LA, but I am betting their community standards might be different.

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  2. The panel was more prepared than the DOJ lawyer

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    1. The 9th Circuit is reversed more by the U.S. Supreme Court than any other circuit.The 9th Circuit is viewed as "out there" and unpredictable. There is serious discussion now in breaking the Circuit up and creating a new 12th Circuit. Review Journal today.

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    2. Almost got the impressions that the DoJ did not want to win the argument, just make the argument. We have all been there where the client is barking in your ear what they want you to say, even though you know it will never carry the day.

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    3. I once had a client who sent me 5 pages of questions for a deposition of the opposing party the next day. They were written like a Perry Mason script: First, ask him this question, and then when he says yes, BOOM! You hit him with this next question that he can't deny!

      Needless to say, I didn't use any of the questions because they were worthless and there was no way in hell the deponent was answering any of his questions the way he thought he would.

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    4. Only 5? I have gotten a 43 page flowchart of questions for an arbitration, during which the client got upset because when a question opened the door to followups, I obviously departed from the flowchart, at which time the client angrily pointed at where on the flowchart I should return.

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  3. My take on this is probably more boring than anything else, but from the perspective of a work flow analysis, it doesn't make sense to keep the 9th as large as it is. I support the creation of a 12th circuit, but not for any ideological reasons, it just makes no sense that the circuits are all so imbalanced based on their population and case load.

    I not only support the creation of a 12th circuit but I strongly support realigning all the circuits to create a more balanced case loads between the lot of them. Politically unlikely, but in any event the 12th should come into being.

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  4. Two moments of pride for Trump: DeVos, the owner of Amway, a pyramid scheme is head of Dept. of Education.....drum roll and Dum Dum pop....Steve "Alt A" Bannon, double kickstand!

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  5. Allright I have had it. We have 7 Nevada Supreme Court Justices. In the last 8 days, they have managed to churn out 4 Unpublished Orders, all of which were Orders Dismissing Appeal which are generated by the Clerk, and one published opinion. That is right-- 7 justice managed to deliver 1 decision on their own. I was a proponent of the Court of Appeals because it was supposed to increase productivity so much. What a crock of shit, and I fell for it. Seriously next Supreme Court Justice should be Delaney because she is the only Judge I know who moves so slowly with decisions that she could fit on the Court.

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    1. Slow your horses, pardner. Perfection takes time.

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    2. F-U Nevada Supreme Court. 7 Justices and NO FORTHCOMING OPINIONS for tomorrow?
      --Last week: 1.
      --2 Weeks Ago: 5
      --3 Weeks Ago: 0
      --4 Weeks Ago: 0
      --5 Weeks Ago: 0
      --6 Weeks Ago: 0

      6 opinions in 6 weeks. That is the equivalent of 1 opinion per Justice (to give Stiglich time to get up to speed). Think if Gonzalez or Togliatti were issuing one Order every 6 weeks.

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    3. 3:18 - They have had lots of opinions. Read the unpublished if you need to read something on the shitter. Get back to billing hours instead of worrying what others are doing.

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    4. Actually they didn't. Once you take out the Orders Dismissing Appeal by the Clerk from the Unpublished, their productivity is incredibly low. The issue is not bathroom reading material, it is the cases which sit languishing before the Court. We have one submitted in June 2016 that contained an important issue of law that just sits there.

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    5. 7:01-- So I went to take a small sample and see if 9:32 was right. He/she was right. Since February 1, here is a list of all of the unpublished decisions. All Orders Dismissing Appeal. Not a single substantive opinion this month in the Unpublisheds and 1 published opinion (with 0 coming out today).

      69324 MERBACH VS. NATIONSTAR MORTG., LLC Feb 08, 2017
      70784 DRYDEN VS. KAIKIS Feb 08, 2017
      71410 DEUTSCHE BANK NAT'L TR. CO. VS. VEGAS PROP. SERV.'S, INC. Feb 08, 2017
      71544 BARKER (HEATHER) VS. STATE Feb 08, 2017
      72084 ANDERSON VS. CHAMBERS Feb 08, 2017
      70959 VILLAGE PUB MAULE, INC. VS. LSGP HOLDINGS, LLC Feb 07, 2017
      72016 1209 VILLAGE WALK TRUST, LLC VS. U.S. BANK NAT'L ASS'N Feb 06, 2017
      71583 DANISI, II VS. STATE, DEP'T OF TRANSP. Feb 06, 2017
      71700 SAVALA, II VS. BURNS (CHILD CUSTODY) Feb 01, 2017

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  6. While the legislature is raising minimum limits for auto, they should also add a provision that mandates an injured victim does not receive less than lien holders when all the money is divided up. I've frequently waived fees on $15,000 policies so the victim actually recovers something for the injury. Some lien holders are just Trumpies and insist on big recovery even if it means the victim gets $1,000 out of the $15,000! Raising limits to $25,000 doesn't fix that problem.

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    1. What about plaintiff's attorneys buying liens from treating physicians for pennies on the dollar, then extracting the full lien amount from the client without ever disclosing to the client?

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    2. The injured victim should not receive less than the attorney, however I don't necessarily agree with them getting less than the lien holders. If you interplead, the client gets nothing while the lien holders still get a piece. We split our fee with clients in those cases. If you work with someone who won't reduce their lien, take your referrals elsewhere. There's plenty of doctors who will negotiate. In cases where someone won't negotiate, I always offer to interplead. You can bet my offer is better than what the court is going to offer them.

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    3. Abso-bleeping-lutely not. If you state that "an injured victim does not receive less than lien holders when all the money is divided up", the practical effect will be this-- nobody will treat on a lien ever. You have insurance or you have cash.

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    4. With due respect to 1:05, I don't think you understand what happens here. Hospitals and ERISA plans are the worst to deal with in that respect. ERISA is federal so not much can be done about that. The hospitals will sock you with huge ER bills that you wouldn't believe if you don't work in this area and then want to collect over and above what health insurance pays if you have health insurance. The frustration is when lienholders don't want to work with you on a tough case. Lawyers should be prohibited from buying liens, or at a minimum there needs to be a rule of full disclosure.

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    5. So if I buy medical liens, I am a Trumpie?

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    6. 1115 you are full of it. You can't buy a lien that relates to your own client. The bar has addressed this. If someone is doing that, then turn them in or better yet disclose on this dead blog.

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    7. With all due respect 1:26, I understand quite a lot of what happens here. From an economics standpoint, and attorney standpoint, I would love to be rid of the medical lien. Settle the case, take your cut, give the rest to the client because all medical bills have been paid. But we know that is not really the case because our client got treated on the come, which is the same way that we took the case. You tell medical providers that they are no longer given priority over the patient and they will never treat on lien again except for essential services.

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    8. So let me get this straight, if someone is injured in a vehicle collision that is not their fault, and the at-fault driver has minimum $15K limits, and the injured party has minimum $15K under-insured coverage and no med-pay.... the hospitals, doctors, chiropractors, pain management, pharmacies, and lab companies that provide treatment for the injured individual should voluntarily do so for free (or pennies on the dollar).

      Not. When the policy's is low and the medical bills are high, you got the $30K limits because of the value of medical bills, not pain and suffering. Work out reductions with the providers, but don't treat them like pricks when they disagree with your rant about how the client getting paid is more important then your reasonably reduced bill getting paid.

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    9. I think we can all agree that attorneys should always get paid first. Clients and providers can fight over what is left.

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    10. 3:03 has it right.

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    11. 1:26 here. We are comparing apples and oranges in terms of hospitals and insurers versus those who are willing to treat on liens. First are providers such as chiros and PTs who customarily treat on liens. It would be nice to have them paid in full on every case and still take a full fee without pocketing more than the client gets. Sometimes that happens, sometimes it doesn't or can't. In thr latter cases I expect a provider who treats on a lien to be willing to take a haircut along with everyone else so that the case can be settled. Don't want to do that? Then I'll file an interpleader, or we can take the case to trial and you can risk getting zero. You'll also go on my shit list of people who will never see another client of mine because you refused to work with me on your bill when I needed you to. The second category, and the people I hate the most are hospitals, ERISA plans, and union health and welfare funds. The hospitals will hit you with a bullshit charge of $10k or so for an ER visit, then either take the client to collections or, if paid their contract rate by the client's health insurance, turn around and try to balance bill you for the rest. They suck. Some of the union funds will demand 100% payment of their subrogation interest regardless of whether the client or attorney (who collects their money for them for free) gets anything. That's why we need the "make whole doctrine" to protect against these abuses. The insurance company is paying out on the risk that they contracted to insure; they charged premium for that, and should not be able to insist on subrogation without taking a substantial discount.

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    12. If you're treating my client on a lien and then won't work with me on your bill when I need you to because of low limits, or the case is going in the toilet, then fine; I'll take my fee and interplead the rest. Also, you will never see another client of mine in your practice.

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    13. it works both ways anonymous, if you ask for unreasonable reductions too often, there won't be any doctors in this town that will treat your clients on liens.

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    14. If your client has health insurance, the medical provider is not doing the client any favor by treating on a lien and not submitting to the health insurance coverage. Client is in most cases far better off submitting the bill for reimbursement so that they get the discounted contract price rather than the inflated lien prices. If they have med-pay, they can then use those proceeds to pay (if needed) for the deductibles and co-insurance (up to their maximum out of pocket amount).

      Med-pay is not reimbursable to the carrier and if its not an ERISA plan, it's also generally not reimbursable. Even if the carrier has a right to recovery, almost uniformly, they will reduce their recovery lien to pay their pro-rata share of the attorney fees and costs.

      [Practice tip: If the medical provider refuses to bill the insurance carrier, the client can always contact the carrier to obtain the claims forms and submit the claim themselves]

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    15. You want to interplead the money and make your client stand at the back of the line, med providers will happily fight amongst themselves but they are not going to fight with the patient. Sorry. Med providers stand behind counsel; that makes sense. The entire universe of Med Providers stands on par with the patient that they treated? Never never never. There is nothing wrong with asking for reasonable reductions from med providers. Saying that on a $15,000 policy you the attorney get $5000 off the top, client gets $5000 and all of the other med providers fight to split $5000 will kill med liens entirely. And if you want to send you clients who I am not going to get paid on to some other treater so that they don't get paid, be my guest.

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    16. I have no problem with the concept of a 3-way split provided the litigation costs are part of the attorney fees third. I do have an issue when the client/patient ends up with less than the attorney and medical providers (that made whole concept). If the client/patient isn't being made whole, than the other associated entities (attorney, medical provider, etc. should share in the shortfall on at least a pro-rata basis. The client/patient doesn't need to be made whole before the others receive dollar one, but should net out more than either of the other thirds (even by a dollar is fine)they are, after all, the one that received the injury and without whom, the other 2/3 wouldn't receive anything.

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    17. In response to 11:21 am, if a car accident victim doesn't get treatment, typically they get $500 or less from an insurance company in exchange for a release. To get anywhere near policy limits, you need medical treatment. So, in fact, while it is correct that the accident victim is the ultimate reason for everyone's making money, the accident victim gets nothing without medical providers and his/her attorney.

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    18. 11:21 has it backwards. The client would receive virtually nothing but for the medical providers treating and the attorney taking the case. Medical providers would recover nothing but for the attorney taking the case. This is the reason why attorneys' lien takes priority over medical lien which takes priority over the patient/plaintiff claim. If the Plaintiff wants to stay in there and hash it out and accept no settlement unless they get a lot of money, well they will get nothing in many cases. This is why attorneys compromise our liens and ask med providers to take a haircut to get settlements done.

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    19. 11:44, I know you can't be suggesting that the attorney and medical providers conspire to cause the accident victim to either seek unnecessary medical treatment, charge inflated amounts, or submit bills for non-existent treatment.

      In the ERA of mandatory medical insurance, expanded Medicaid, and many auto policies containing medical payment provisions, injured accident victims have the ability to obtain medical treatment without medical liens (they may have served a purpose in the past, but there are now better options, at least from the client's perspective.)

      I agree that if the accident victim isn't injured and only has $500 in meds, they will get a nuisance value settlement in exchange for a release, but are they really entitled to anything more than that? Manufacturing a claim with unnecessary medical bills for nonexistent injuries is simply wrong, and is called fraud.

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    20. 11:53: You might be correct if you are dealing with a significant policy limit but not so much for a 15/30 policy.

      For purposes of example, lets assume the following facts to demonstrate the competing outcomes.

      Property damage - $3000
      Health insurance with $1500 deductible then 80/20 with $4000 maximum out of pocket stop loss (deductible + additional $3500).

      E.R. Visit - $1500 billed (reduced to $900 by health insurance co per contract)

      Dr visits (initial + 3 interim + discharge) - $1800 billed (reduced to $700 by health insurance co per contract)

      MRI - $2600 billed (reduced to $600 by health insurance co per contract)

      Physical Therapy - $2400 billed (reduced to $1350 by health insurance co per contract)

      Total medicals (as billed) - $8300 ($6800 w/o E.R.visit)
      Total medical (as reduced by insurance co) - $3550 ($2650 w/o E.R. visit)

      Assuming worse case scenario,victim would owe $1910 of the originally billed amount of $8300 ($1730 without E.R. visit).

      With $3000 in property damage and bills similar to these, the claims representative would initially attempt to bring the settlement in at an amount slightly below the $15k policy limit, but would tender the limit fairly quickly in response to a policy limit demand by the victim (even without the utilization of an attorney). The victims deductible and co-insurance amount would be fully covered within the med-pay benefits (which is not reimbursable). Assuming that the health insurance is an ERISA plan, there is still enough remaining on the med-pay benefits to pay any reimbursement amount owed in excess of the deductible and co-insurance. With no attorney fees and no reimbursed medical expenses, 100% of the settlement becomes net proceeds to the victim

      Under the scenario proposed by 11:53 the client would have a best case gross recovery of $20k (15k + 5k medpay). From that the following deductions would occur (assuming only 33 1/3 attorney fees [on $15k portion only] and no attorney costs):

      Attorney $5,000
      Medical Providers $8,300 ($6800 if no E.R) [possible reduction to $5k]

      Client (medpay to meds) $6,700 ($8,200 no E.R) or [$10k 3-way split.

      Without having the medpay, the numbers are far worse for the client...$1700, $3200 or $5000 as best case scenario.

      The numbers make it pretty clear the respective benefit to attorney;provider;client. The attorney has a duty to place the client's financial interest at least equal to that of the attorney's interest.. if not above it.

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  7. I would not want Commissioner Beecroft's job. Commissioner Bulla's job is quite different in many respects, and might be quite rewarding in certain aspects, but I believe Beecroft(R.I.P.) was still primarily(if not solely) assigned to Family Law cases. In standard Family Law cases, one side walks out hating the judge and his/her rulings. In Family Law Discovery cases, it is even far worse. Both sides walk out hating the judge's rulings. The side that has not adequately complied with discovery will resent that they were sanctioned to any degree at all and ordered to pay attorney fees. Meanwhile, the other side, who brought the motion, will invariably believe that the sanction and/or attorney fees award was not at all sufficient, and that the orders compelling better discovery compliance are weak at best.

    Also, standard written discovery in Family Law cases is almost always utterly useless. It can be beneficial in the relatively few case where skilled, conscientious attorneys craft the discovery requests to the facts and needs of the particular case. Far too often, however, Family Law attorneys simply have their secretary or paralegal print out extensive, burdensome, and largely useless, form bank, boiler plate discovery.

    And many of these attorneys will then charge the client for extensive attorney time spent in supposedly crafting, and then re-drafting, the discovery requests, even though the attorney actually had little or nothing to do with the process. The discovery was simply printed out by the office worker, and then sent out.

    One way we know that no competent attorney played any actual role in the discovery requests preparation(or even the review or proof reading of it) is the following. When we have Family Law cases that do not involve children, but discovery requests are prepared, the overwhelming majority of the time there will be extensive discovery inquiries as to matters involving the (nonexistent) children. That is conclusive proof, in my estimation, that it was simply printed out, and sent out, with no regard or review of the content.

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    1. I once got a request for my personal tax returns as counsel. That was a fun one. Oh, family court.

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    2. Many members of the family bar couldn't litigate their way out of a paper sack, despite their protestations that they are specialists in a complex area of law. Just how tough is it to divide by two? Nevada is an equal division state (absent a compelling reason to deviate, for which the judge must make specific findings.)

      The two most difficult aspects of Family Law are client driven... managing their emotions and expectations. Far too many attorneys lose sight of the forest for the trees. Some even purposely stir the emotions pot to get the client to fight about stupid things (e.g. spending 10k in fees to fight over a 1k value item.) The only winner in those situations is the lawyer who bleeds the client until there is nothing left to fight over in terms of property/finances.

      Absent a 1 in a 1,000,000,000 case, the court is not going to give one party all of the assets and the other party all of the debts, yet there are attorneys out there that promise that outcome to their clients.. when it doesn't happen, they just blame the judge for being stupid or being wrong.. They never admit to promising things that were never going to happen simply to turn on the money faucet

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  8. Open comment to any journalists lurking on this board - when you write a story about a case or decision, please include who represented each side. Maybe its a bit of "inside baseball" but I know other lawyers like to see which attorneys are on the losing/winning sides of newsworthy decisions. And, it doesn't seem like it would take any extra work.

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    1. I second this. Nothing more frustrating than reading an article about a case and there's no mention of the attorneys anywhere.

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    2. Let's continue this thread....
      What I would like the journalists to include with every story about a case or decision is the name of the judge! In a state with an elected judiciary, let the people know which judges are involved in the wacky world of Nevada Law and corresponding decisions.

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    3. Amen - do you hear this LVRJ, LVSun and LV Indy?

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    4. I also wouldn't mind the name of the case so I can go find it for myself.

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  9. Let's just get rid of the geographic courts of appeals, which are a result and remnant of 18th Century travel technology, i.e., Supreme Court justices riding around on horses. Apart from the Federal and D.C. Circuits, which are specialty courts, there need only be a unified national Court of Appeals. And except for the Federal and D.C. Circuits, there needn't be specialized appeals court judges at all. All federal judges should do trials and appeals. You want to appeal a trial stage decision. Fine. You get a panel of two other judges from your district. Unless they both disagree with the trial level decision, affirmed. That would be way more efficient right off the bat, because there would only be two appeals judges instead of three per appeal. It would also make the judges hearing appeals more humble. If we're going to keep the geographic system (which we are, unfortunately), caseload comparisons say the 9th needs to be split into 3, not 2, and the 5th also needs to be split into 2 again. And no matter what splits happen, most circuits will need more judges based on decision wait times.

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    1. I don't think this would be workable. My biggest problem with the 9th Circuit is that, unlike other circuits that put out less law, 9th Circuit judges don't have the time to dedicate to reading every single decision that's put out. Practically speaking, that means that the judges are more prone to issue contradictory decisions on the same issue. My second biggest problem is that the case load means that 9th Circuit judges pool bench memos. So one clerk (and often the judge they clerk for) are basically advising all three judges. I think this leads to groupthink and lessens the value of an appeal. My third problem is that the 9th Circuit is so big that all judges don't sit on en banc panels--only a somewhat randomly selected portion of them do. So an en banc panel isn't the decision of the entire court. It's the decision of the chief judge and the (if I recall correctly) 10 other judges that are selected.

      Your solution would make those three problems even worse.

      The problem with splitting the 9th Circuit is that the majority of the cases come from California. So even if you just make the 9th Circuit the California Circuit, and put everyone else in the 12th, the solution isn't perfect in terms of reducing the 9th Circuit's caseload.

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  10. Great, Sessions is the new AG. Another bigot.

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  11. Case No. 72321, State, Office of Att'y Gen. v. State Bar of Nevada, an original mandamus action, was docketed in the Nevada Supreme Court today. It's marked confidential. Anyone suppose this is The Little Train Wreck That Could(n't) complaining about being deprived his staff of choice because they haven't passed the bar exam and their limited 2 years of special licensure under SCR 49.8 expired?

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    1. Why would this be confidential. Crazy.

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    2. Absolutely should not be confidential.

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    3. Our so-called "free press" here in NV challenge the "confidentiality." Wait... never mind.

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    4. Nevada does not have a press. Ridiculous.

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  12. Speaking of family court - I once had the husband of my client open my office door, throw in a dog, and say to give it to her - as if not bad enough it ran down Hall and scratched a initial consultation's child (who was waiting in the hall) - family law is crazy

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