The California Appellate Law Podcast: Recent Episodes

Tim Kowal & Jeff Lewis

An appellate law podcast for trial lawyers. Appellate specialists Jeff Lewis and Tim Kowal discuss timely trial tips and the latest cases and news coming from the California Court of Appeal and California Supreme Court.

John Mitch Mitchell joins Tim Kowal to unpack Maniago v. Desert Cardiology Consultants’ Medical Group, a July 2026 California Supreme Court decision that shuts down a procedural shortcut California litigators have been relying on for years. Mitchell, who represented the plaintiffs on appeal, offers a candid, behind-the-scenes look at how a carefully planned litigation strategy turned into a cautionary tale.

The story starts with a surgical technologist who was exposed to HIV during a cardiac procedure and sued on several different theories. After the trial court sustained a demurrer on most of the claims, Mitchell dismissed the remaining claims with prejudice and filed a declaration explaining that he was doing so only to fast‑track an appeal. Even though this followed what had been the majority approach in the case law, both the Court of Appeal and the Supreme Court threw out the appeal for lack of jurisdiction, unanimously holding that a voluntary dismissal waives the right to appeal when the trial court has not yet finally resolved any claim.

In doing so, the Supreme Court disapproved Stewart v. Colonial Western Agency and other decisions that had blessed this workaround, leaving practitioners with a tough choice. They can either follow the Court’s new three-step procedure and permanently give up any remaining viable claims, or litigate straight through to final judgment before they can challenge a damaging interlocutory ruling on appeal.

In this episode, we discuss:

Why voluntary dismissal no longer creates an appealable order after an adverse demurrer ruling
The three-step procedure the Supreme Court says litigants must follow instead
The practical and economic consequences for plaintiffs facing case-altering interlocutory orders
The line of authority the court disapproved and what still survives

Have you tried the voluntary‑dismissal workaround in your own cases? Maniago may hit close to home.

Why do tenants' rights cases end up on appeal—and what happens when the Ellis Act gets weaponized? Tenants' rights appellate attorney Fran Campbell joins Jeff Lewis as a guest host while Tim Kowal is on vacation, sharing hard-won insight from landlord-tenant litigation, mobile home park law, and the appellate front lines of California's housing crisis.

Key points:

The Ellis Act and Barrington Plaza: Campbell's firm challenged Douglas Emmett's attempt to invoke the Ellis Act to remove roughly 750 tenants, raising a statutory interpretation question under Gov. Code § 7060.7.
Supersedeas strategy: Collecting rent from remaining tenants while an appeal is pending may inadvertently create new periodic tenancies — a risk Campbell says practitioners often overlook.
Berk v. Choy: The U.S. Supreme Court's unanimous ruling could further erode California's anti-SLAPP protections in federal court, with significant implications for practitioners.
Social media as abuse: A June 2026 Second District opinion holds that social media conduct can qualify as cognizable abuse under the Domestic Violence Prevention Act.
Conflict waivers and fee agreements: Failing to obtain a conflict waiver can void not just a fee agreement but its arbitration clause too — per Jane Doe v. McGrath.

Tenants' rights practitioners: Have you faced an Ellis Act claim where the landlord's intent was the deciding issue? Share your experience in the comments.

One California city has been quietly collecting $5,000-per-incident fines from short-term vacation rental owners. And if the regime is struck down, the city may owe half a million dollars back.

Former constitutional law attorney David Koslow joins Tim Kowal and Jeff Lewis to break down two Appellate Division challenges that expose a structural flaw in how cities administer and collect STVR fines, and why SEC v. Jarkesy may be the tool that finally pries these cases open.

Key points:

The $1,000 cap hiding in plain sight: Government Code §36901 sets a default $1,000 ceiling on city fines—but Cathedral City and several other Coachella Valley municipalities have been imposing $5,000 first-offense STVR penalties for years.
Forfeiture swallowed the first case whole: In Montanaro v. City of Cathedral City, the pro per defendant said the fine was "draconian"—but never said "excessive fines clause." The Court of Appeal dismissed on forfeiture. “Draconian,” says the court, is not the same as “excessive.” 🧐
Jarkesy goes local—maybe: SEC v. Jarkesy (2024) held that the Seventh Amendment requires a jury-trial forum when the government chooses between administrative and court proceedings for civil penalties. Cathedral City can prosecute STVR violations as misdemeanors in court or through an administrative citation—which, says Koslow, is exactly the kind of forum election Jarkesy targets.
The vendor-as-judge problem: Data Ticket, Inc.—a private company that collects the city's fines—also supplies the hearing officers who adjudicate them. The structural conflict is not subtle, and it has already spawned its own litigation.
Pro per litigants are walking into a trap: STVR fines are deliberately calibrated below the cost of hiring an attorney, yet high enough to hurt. The result is a steady stream of self-represented defendants making fatal procedural errors that appellate counsel cannot fix.
The Coastal Commission wrinkle: Coastal cities face a distinct constraint—the Commission treats STVR bans as restrictions on public coastal access, effectively foreclosing outright prohibitions in the coastal zone.

If you advise cities on enforcement program design, represent property owners facing administrative fines, or litigate issues of constitutional preservation and forfeiture, this episode is required listening before your next city council meeting or appellate brief.

Why do writ petitions so often fail? Judge Tom Fay covers the technical writ rules that attorneys often overlook. In part 2 of our conversation with former lead writs attorney at the Santa Ana Court of Appeal, Judge Fay covers the CRC 8.486 and local rule requirements for your writ petition, the available remedies for a writ petition—Palma notice, alternative writ, or OSC—and the underappreciated complexity of supersedeas.

Key points:

STAY REQUESTED must be on the cover—in bold, all caps: This single line triggers immediate routing to writ staff.
Palma, alternative writ, OSC each signal something different: A suggestive Palma notice generally means the panel agrees with the petitioner; an OSC may mean the panel wants to write a published opinion and could lean toward the trial court.
Alternative writs are not law of the case: Roullier v. Cannondale, 101 Cal.App.4th 1180—a trial court that complies with an alternative writ can still be reversed on appeal.
Supersedeas is a motion for stay, not a true original proceeding: Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146.

Appellate lawyers: what else is on your emergency writ checklist?

Tom Fay spent years as the lead civil writs attorney for California's 4th District, Division 3, processing every emergency petition that crossed the court's threshold. Effective June 29, 2026, he's now Judge Tom Fay of the Orange County Superior Court. We caught Judge Fay between appointments for an inside look at what actually happens when your writ petition hits the clerk's desk—and what separates the petitions that get a panel's attention from those that don't.

Key points:

Help the court triage: The first question isn't the merits—it's “when is the next hearing and what happens if we don't act today?” Every writ petition is sorted the moment it arrives: same-day, next writ conference, or back of the queue. Make sure your cover page and first page of the petition allow the court to triage.
Call the clerk before you file: For same-day stays, call the court first. The panel needs three justices, a writ attorney, and clerk staff simultaneously available. A 4:30 p.m. filing without advance notice is nearly impossible to act on.
59 days is not an emergency: Waiting until day 59 of a 60-day window sends a signal. Judge Fay calls it "revealed preferences"—if you treated it like a crisis, you would have filed sooner.
Summary denials are inscrutable by design: A one-liner means the petition is denied and nothing else—not that your arguments were wrong (but that’s a possibility, too).
“Speaking denials” are intentional: If the court adds a sentence beyond the boilerplate denial, assume it’s deliberate.

We also cover choosing the right tone, and how to frame your harm as irreparable.

Bookmark this one for next time you draft a writ petition.

What about a writ petition is most mystifying? What is your guiding light for a successful petition?

One of just 12 California lawyers dual-certified in both family and appellate law, Lisa McCall has an unusually clear view of how family trial work plays out on appeal. Lisa shares the record‑killing mistakes family lawyers often make.

And with 14 published opinions, Lisa shares about publish-worthy issues and her work on the amicus committee at the Association of Certified Family Law Specialists to clarify the law.

We also discuss recent changes to domestic violence laws, and to the statement of decision procedures.

Key points:

Statements of decision: Request early. Starting January 2027, you must request a statement of decision before submission—make it the last line of closing—or you lose it. Objections drop to a 10‑day window, and judgments must be prepared within 30 days. (CCP §§ 632, 634).
3044 findings: miss them, you lose. Missing written findings on the Family Code section 3044 domestic‑violence custody presumption is treated as a structural error—one of the rare spots where a procedural miss virtually guarantees reversal.
Offers of proof: get them on paper. When a judge excludes evidence and won’t hear oral offers of proof, preserve the issue with written offers explaining what the evidence would have shown, like in Marriage of Burmeister.
Smart motions in limine in family court. Broad “exclude everything” motions go nowhere; targeted motions to enforce prior orders or strip out legally improper recommendations are where motions in limine earn their keep.

If your family law case has even a shot at the Court of Appeal, don’t walk into your next hearing blind—listen to this episode first.

John Snow, Director of Legal and Trial Training at the Los Angeles City Attorney's Office and author of Rules to Speak By (Carolina Academic Press, 2026), joins Tim Kowal and Jeff Lewis to discuss what it actually takes to be an effective oral advocate. Snow has tried more than 30 cases to completion in state and federal court and spent years designing trial training programs for lawyers at the LA City Attorney's Office, experience that grounds every practical lesson in the book.

Snow argues that oral advocacy is a rule-governed discipline, not a natural talent, and that the lawyers who appear effortless have simply practiced more than anyone realizes. Drawing on cognitive psychology research alongside transcripts from high-profile trials, he explains how audiences absorb spoken argument and how advocates routinely lose their audience without knowing it. He walks through specific techniques, including the one-fact-per-question rule on cross-examination, slide design that functions like a billboard rather than a script, and how to respond to hostile bench questions without hedging or losing credibility. He also addresses how trial conduct shapes the appellate record, making clear that a single, well-placed sentence at trial can preserve an issue for review.

Drawing on cognitive psychology research and transcripts from high-profile trials, he explains how audiences absorb spoken argument—and how advocates routinely lose their audience without knowing it.

We discuss:

The one-fact-per-question rule on cross-examination—otherwise you’ll lose the witness, and the jury.
Designing PowerPoint slides? Think billboards, not scripts
How to respond to hostile bench questions without hedging or losing credibility.
The cognitive psychology principles behind Snow's ten rules for oral advocacy
Cross-examination technique and how precise phrasing controls witness responses
Handling hostile questions from an appellate panel without losing confidence

What is the single oral advocacy habit you have found hardest to break, even after years in the courtroom?

Drawing on 20 years observing attorney behavior, Hon. Stuart M. Rice (ret.) now at JAMS, speaks freely. This episode is a rare candid debrief from the other side of the bench.

Key topics:

What incivility actually costs you in court: Judge Rice served on the statewide civility task force and watched uncivil conduct for two decades. His diagnosis: it's not the screamer at deposition—it's the subtler patterns that quietly erode a lawyer's credibility with the bench.
The task force secured a new oath provision requiring lawyers admitted since 2014 to attest to treating others with "dignity, respect, and courtesy"—but how much does an oath really change behavior?
Show up in person—especially when you can lose: Remote appearances transformed California courtrooms post-COVID, and not for the better. Judge Rice's rule from the bench: if you can win or lose at a hearing, you will do better work in the room.
And that's true in mediation, too.
Complex mediation is a strategy problem, not just a settlement problem: As the judge who presided over all of the 2025 Palisades Fire consolidated cases and California's Johnson & Johnson ovarian cancer litigation, Judge Rice brings a systems view to large multi-plaintiff matters. He recently wrote in the Daily Journal on what it takes to succeed in complex mediations—and his JAMS practice is built around exactly these cases.
Pupillage groups and the civility dividend: As president of the Benjamin Aranda III Inn of Court, Judge Rice restructured pupillage groups to require two new members per group who were law students or lawyers within five years of practice—successfully shifting the Inn's demographics and, he argues, its culture.
The Adam Z. Rice Memorial Scholarship: Judge Rice is in his fourth consecutive year as president of the California Judges Foundation, which funds needs-based scholarships for law students from disadvantaged backgrounds. The scholarship is named for his late son. This year's award included an offer of free mentoring until the recipient's first legal job. Find it by searching "Adam Rice Memorial Scholarship" or visiting caljudges.org.

Your next status conference is closer than you think. Hit play before it gets here—this episode will change how you read the room.

Does your office have a blank 170.6 form ready to go for a certain judge? Stop doing that. A 170.6 peremptory challenge is no longer automatic: the California Supreme Court now authorizes courts to look behind your 170.6. The touchstone is whether your 170.6 is based on a genuine belief of prejudice—or mere grievance.

But first, a $3 million sanctions order against Quinn Emanuel in a big‑pharma advertising case, where an expert obtained key clinical data before it was disclosed and the firm failed to correct the record. The Northern District of California called out firm culture, and ordering the attorneys to prepare and lead an eight‑hour ethics MCLE.

How a three‑million‑dollar sanctions order against Quinn Emanuel grew out of failures to correct prior statements about expert discovery.
The court’s criticism of a “culture of bad ethics decisions” and the requirement for a bespoke eight‑hour ethics course.
The facts in J.O. v. Superior Court, including 325 peremptory challenges aimed at removing a single judge from conservatorship matters.
The new three‑step framework for challenging bad‑faith, blanket 170.6 practices and what counts as a prima facie showing.
Strategic implications for lawyers who rely on peremptory challenges in small counties and specialized calendars.

What is your firm’s 170.6 practice like? Expect any changes after J.O.?

The fall of copyright troll Prenda Law is, according to the ABA Journal, "part of legal folklore." We talk with the attorney who kicked over the first domino, Morgan Pietz.

Prenda Law was the copyright trolling operation that filed approximately 20,000 abusive BitTorrent lawsuits targeting anonymous defendants for alleged pornography downloads. Morgan's work on that case resulted in criminal prosecutions and a now-famous sanctions order by Judge Otis Wright, called the Star Trek order (e.g., though the plaintiffs "boldly probe the outskirts of law, the only enterprise they resemble is RICO").

Morgan discusses how the Prenda Law scheme worked, what made it cross the line from aggressive litigation into fraud, and how he uncovered the deception through creative investigation and a willingness to question claims that didn't sound right.

The conversation also covers Morgan's work on anonymous speech litigation.

Everyone is watching Family Violence Appellate Project v. Superior Court (S288176) to see if the California Supreme Court is going to strike down the ban on electronic recording of court proceedings. There is a steady drumbeat in favor, including the Los Angeles County Superior Court and other courts.

But are we missing a perspective?

Stephanie Leslie is the immediate past president of the California Deposition Reporters Association and co-founder of Regal Court Reporting. She explains why certified shorthand reporters remain the gold standard for the verbatim record—and why replacing them with electronic recording could be a mistake.

Yes, we all want to solve the court-reporter shortage.
But the short-term gain of using electronic recordings could reverse a recent uptick of new CSR entrants.

The way forward, Stephanie argues, is continuing to invest in recruitment and training.

And recent AI pressures are sparking new interest in court-reporting.

Also, AI and electronic recording still struggle with minority accents, overlapping speakers, and courtroom noise. Even federal courts with state-of-the-art equipment produce transcripts filled with "inaudibles" and misattributed speakers because no human was present to stop the proceeding and clarify the record.

In this episode, we discuss:

Why the court reporter shortage was caused by budget cuts, not by the profession
How voice writers are replenishing the pipeline faster than traditional stenographers
Why AI transcription still fails in real courtrooms with accents, noise, and overlapping speakers
Resource misallocation: multiple reporters sitting idle in the same courtroom
Best practices for attorneys to secure reporters and get clean transcripts

What experiences can you share about using an electronic recording to create a transcript?

The Honorable Tani Cantil-Sakauye led the state judiciary through the Great Recession's budget crisis, bail reform advocacy, and the COVID-19 pandemic. Now she has three new roles: President and CEO of the Public Policy Institute of California, a neutral at ADR Services, and a founding voice of the Alliance of Former Chief Justices.

CJ Cantil-Sakauye talks with Tim Kowal and Jeff Lewis about what actually gets petitions for review granted. If the Supreme Court’s job is not to correct errors, then what is it?

The justices look for issues that surface conflict, systemic mischief, or other need to weigh in to avoid broader problems.
So how do you find those issues? Each justice has a mental list—sometimes those are visible in their concurrences and dissents.
Other places to look: amicus briefs from government entities.

CJ Cantil-Sakauye also addresses why her Court viewed depublication as heavy-handed and preferred granting review to provide legal explanation

And why grant-and-transfer requires diplomatic restraint to avoid appearing to rebuke Court of Appeal colleagues.

We also discuss:

Why rescue missions almost always fail
Why Chief Justice Cantil-Sakauye's court limited depublication to the rarest circumstances and changed the rules to keep granted cases citable
The mediation stumbling blocks she encounters when trial counsel defends the trial record instead of negotiating settlement
How COVID permanently transformed access to justice through electronic filing and remote appearances
The structural tension created by California's legislative control over civil procedure, unlike most states where supreme courts govern procedural rules

What’s the biggest factor you think makes the California Supreme Court take a case?

In addition to having more than 100 published opinions and close to 100 oral arguments to his name, Jeremy B. Rosen is the managing partner of the Horvitz & Levy LLP San Francisco office. Jeremy is also nationally recognized for his First Amendment and anti-SLAPP work. Jeremy joins Jeff and Tim on the California Appellate Law Podcast to discuss:

How does Horvitz & Levy sustain a practice that produces hundreds of high-quality appellate briefs annually while maintaining a clear institutional philosophy on drafting, editing, and oral advocacy?
Part of the answer: Jeremy explains the firm's two-person brief model: one lead lawyer reads the full record and does the primary drafting, while a supervising lawyer provides strategy and heavy editing.
Another part of the answer: Avoid committee-style drafting, common at large firms. This often produces briefs that lack a coherent voice.
Who argues the case? Jeremy shares the firm's strong preference that the lawyer who drafted the brief should argue the case—not a senior partner brought in for name recognition.
How to prepare for oral argument? Jeremy shares how he prepares “modules” for each topic so he is ready for wherever the panel wants to go.
Oral argument strategy: If the bench is cold and asks no questions, speak for two or three minutes and sit down.
Jeremy also discusses the responsible use of AI in appellate practice, noting that he now uses it to generate oral argument questions and sharpen briefs, but warns that he has already handled two appeals involving AI-generated false citations filed by opposing counsel.
How to prepare for an oral argument when you inherit someone else's brief.
The responsible use of AI in editing briefs and the dangers of relying on it without verification.
Why a federal anti-SLAPP statute has stalled despite bipartisan support.

How do you collaborate on appellate briefs and oral argument prep in your shop?

Justice Ming Chin wrote more majority opinions in his first decade on the California Supreme Court than any colleague—then retired to discover that mediation feels a lot like his first judicial assignment in family law, where the goal was bringing people together rather than telling them what to do.

Justice Ming’s biggest pet peeve as a mediator: attorneys who won’t share their briefs.

Justice Ming also shares:

What makes a good petition for review? Hint: think about Justice Broussard saying "if I get one more piece of paper, I'm going to scream."
Why robust internal debate produces better opinions than rubber-stamping.
How his experience trying construction arbitrations with expert panels—not lawyers—informs his view that California Supreme Court justices sometimes get arbitration law wrong.

Other highlights:

The petition reality check—your first paragraph is your only shot: Kitchen-sink petitions go nowhere.
Why your petition for review was denied: Lacking in merit? Maybe. But sometimes the Court wants the conflict to "percolate." Or it needs a better vehicle.
And don’t overlook that a low-quality petition foreshadows the quality of your merits brief—which could depress chances of review.
Federal certification beats petition denial odds: While the Court denies hundreds of petitions for review weekly, Justice Chin "cannot think of any" certified questions from federal courts that were denied during his tenure—making certification an underused path to California Supreme Court review that practitioners should consider more often.
Justice Chin's senior partner returned his first brief "with blood all over it" and taught him to "take out all the excess words"—a lesson he carried through 450+ Supreme Court opinions.
Unlike other branches of government, appellate courts must explain their reasoning in detail, but that doesn't mean 150-page opinions.

Listen to the episode to learn what former Supreme Court justices see that no one else can, why depublication tapered down as a lawmaking tool during his tenure, and how Sargon's expert gatekeeping role—authored by Justice Chin—threaded the needle between passive acceptance and becoming "a thirteenth juror."

What question would you ask Justice Chin or one of his colleagues?

Legal writing authority Ross Guberman has been busy absorbing AI tools into his popular BriefCatch and now-related suite of writing tools. Ross returns to discuss how BriefCatch cousin app RealityCheck uses a traditional authority base plus AI power to ruthlessly search and destroy hallucinations in your briefs.

Who else is using RealityCheck? Courts. So let RealityCheck find hallucinations for you before it does for the court.

Ross also talks about the exciting and perilous AI age. Will AI make lawyering less human? Only if, says Ross, you equate “human” with rescheduling meetings over email.

To the contrary, AI used right makes lawyering more human. Not less.

Key points:

RealityCheck goes beyond hallucinations by catching misquoted language, misstated holdings, and subtle mischaracterizations of case law, as shown by testing on 1990s-era briefs.
Courts are already using AI-powered tools for records, dockets, and analytics and are likely to adopt RealityCheck more openly within months, with many courts having contacted BriefCatch after Above The Law’s coverage.
RealityCheck uses deterministic checks against court databases plus AI analysis of quotes and propositions, avoiding reliance on LLM-ingested content and consumer sources like Westlaw, Lexis, or FindLaw.
BriefChat, trained only on Guberman’s curated materials and the WordRake acquisition (with 12 editing patents), powers BriefChat’s writing guidance and automated editing, with new context-aware tools in development to adapt to jurisdiction, style, judge, and court rules.
Changing judicial reading habits (screens, short attention spans, footnote issues) and concerns over AI bias in binding adjudication mean specialized tools should aim to make lawyers more like themselves, not “Sherlocked,” while supporting uses like mediation and pre-filing verification.

Seen AI hallucinations or bad cites in your cases? Tell us what happened, or how you’re guarding against it.

The law is riddled with things "everybody knows" that aren't actually true. In this April Fool's-themed episode, Tim Kowal and Jeff Lewis discuss several legal myths, half-truths, and courtroom fictions—from rules of evidence to constitutional assumptions to a Scopes Monkey Trial mythology that is more Hollywood script than record.

Key points:

Miranda warnings aren't in the Constitution—but they're constitutionally required anyway: The specific warnings don't appear in constitutional text; they're a prophylactic rule. Yet they're binding—even Congress can’t touch them.
Dual citizenship was never authorized—it emerged by accident: No Congress ever passed a statute permitting dual citizenship. Great Britain and German have asserted jurisdiction via conscription of the children of their subjects—even though born in the U.S. This is context directly relevant to Trump v. Barbara arguments this week.
"One phone call" is Hollywood fiction: California Penal Code § 851.5 grants at least three completed calls within three hours of booking, plus additional calls for custodial parents.
Circumstantial evidence carries the same weight as direct evidence: DNA and fingerprints are circumstantial; CALCRIM 223 instructs juries to treat both types equally.
The Scopes Trial was staged, and the textbook taught eugenics: Think this was religious fundamentalism vs. science? Think again. The evolution text in question, George William Hunter's Civic Biology, ranked races hierarchically and endorsed selective breeding. William Jennings Bryan is regarded a buffoon, but his actual argument was more about local curriculum control than creationism.
Buck v. Bell has never been overruled: Remember the monstrous 1927 opinion upholding compulsory sterilization? Still good law. Technically.

What legal tropes get irk you?

David Lat—founder of Above the Law and author and host of Original Jurisdiction blog and podcast—explains what these stories reveal about a legal profession navigating ideological warfare, economic disruption, and the enduring craft of persuasion.

Paul Clement delivered what SCOTUSblog called "a master class in oral argument" in Trump v. Cook. Lat dissects what made it a master class—by listening for the bench's emotional temperature, pivoting through backup arguments without undercutting his primary position, and admitting to Justice Alito that his framing was "heads I win, tails you lose."

Key points:

VanDyke's dissental as a direct call to the public? Lat describes the theory that VanDyke is practicing "postmodern jurisprudence," calling out what he views as liberal colleagues imposing policy preferences while cloaking them in legal doctrine.
For California practitioners, ask yourself: are you appearing before a lightning-rod judge on your panel? Your case might become less about the merits and more about signaling beyond your case.
The BigLaw executive orders worked—not through litigation, but through capitulation: Four firms fought Trump's security clearance revocations in court and won. But nine firms settled, committing to political non-discrimination and nearly $1 billion in administration-favored pro bono work.
A Washington Post study confirms the chilling effect: large firms have dramatically curtailed challenges to Trump policies compared to the first administration. Smaller boutiques are picking up the slack, but they lack BigLaw's resources. Lat predicts the government will lose in the D.C. Circuit and SCOTUS won't take the case—but the damage is already done.
Jack Smith's boutique launched with a Costco run for paper towels—and it's part of a broader trend: AI and co-counseling arrangements now enable small firms to handle discovery-heavy work previously requiring armies of associates. But success still depends on established reputations; fresh graduates need BigLaw's name recognition.
Clement's oral argument techniques translate to any appellate court: Listen not just for questions but for the bench's emotional temperature—”the vibes.” Stay nimble with backup arguments framed as "We stand by X, but if you're not persuaded..." Keep it conversational and candid—breaking the fourth wall builds credibility.

Two explosive First Amendment cases from the Ninth Circuit show how culture-war flashpoints are reshaping speech doctrine and judicial decorum.

In B.B. v. Capistrano Unified, the court held that elementary students have enforceable free speech rights under Tinker, vacating summary judgment after a first grader was disciplined for giving a classmate a pro-BLM drawing.

Meanwhile, in Olympus Spa v. Armstrong, a divided panel upheld Washington's requirement that a women-only Korean spa admit pre-operative transgender women, prompting Judge VanDyke to open his dissent with "This is a case about swinging dicks," drawing a rebuke from 28 judges and igniting a firestorm over judicial rhetoric, religious liberty, and whether civility in opinions masks ideological outcomes.

Key points:

Olympus Spa + judicial rhetoric: VanDyke’s vulgar disentail drew a “barroom talk” rebuke; defenders say it was an alarm about what “civil” language hides. • Rule-of-law theme: Majority applied rational basis; dissents argued Tandon strict scrutiny and denominational discrimination under Catholic Charities.
B.B. v. Capistrano: Ninth Circuit confirms elementary students have Tinker rights, with age as a factor, not a cutoff.
Why it goes back: Disputed facts over intent, impact, and discipline (including recess) made summary judgment improper.
AI hallucination fallout: Campos/Munoz sanctions an attorney for fake citations; Westlaw’s blue-link formatting can still mislead.

Tune in to hear why these cases expose judicial composition, not doctrine, as the real variable, and why the fight over whether a judge can write "swinging dicks" may matter more than the legal tests themselves.

Justice Kagan has more words about the emergency docket, aka shadow docket. This one is about the 9th Circuit panel injunction of California’s law requiring school officials not to share with parents when their children present as trans. The Supreme Court keeps the injunction in effect.

And on the fee award front, big firms don’t automatically get a lodestar boost.

Plus, a debrief from oral argument in the Scientology AI sanctions case—where the court said nothing about the sanctions at all.

The shadow docket is now a routine appellate strategy: Mirabelli v. Bonta saw the U.S. Supreme Court reverse a Ninth Circuit stay on an emergency application, reinstating an injunction protecting parental notification rights on substantive due process grounds—despite the majority's stated skepticism of such claims post-Dobbs. Justice Kagan's dissent warned that the Court is bypassing the normal appellate process and deciding cases before en banc review, signaling a procedural shift practitioners are already exploiting.
AI cover-ups carry career-ending stakes: In Kjoller v. Superior Court, the California Supreme Court ordered a referee investigation after a prosecutor fabricated eight case citations, then called it "scrivener's error." The lesson is blunt—own the mistake immediately, or face bar referrals and public sanctions modeled on U.S. v. Hayes, where notice went to every judge in the district and every state bar where the attorney held a license.
Firm size doesn't cap your fees: In LA International Corp. v. Prestige Brands, the Ninth Circuit vacated a fee award that discounted rates for a four-lawyer firm, holding that "brilliance at the bar is not measured by the number of associates a lawyer commands." Skill, experience, and reputation control the lodestar—not letterhead.
Oral argument silence in the Scientology AI case: Despite an Order to Show Cause for sanctions over AI-generated citations, the Second District panel never raised the issue during argument, focusing only on anti-SLAPP merits while the sanctioned attorney sat in the gallery with separate counsel at the podium.
Legislative response is coming: A California Senate bill imposing heightened duties of care for AI use by attorneys is advancing with no opposition, suggesting statutory guardrails are imminent.

Three paradoxes feature in this episode:

Paradox 1: You must disclose a bankruptcy stay to the Court of Appeal. What about a bankruptcy that does not create a stay?

Answer: Yes, the disclose-bk-stay rule also means disclose a bk non-stay.

Paradox 2: Deadbeat dad owes $500k. He settles and agrees to pay $250k. How much does he owe?

Answer: Still $500k.

Paradox 3: District court 1 rules AI work product is protected because, among other things, no court has ruled otherwise.

District court 2 then rules otherwise.

Key points:

Local rules mean what they say: The First District's Local Rule 21 requires "prompt" notice of any bankruptcy that could cause a stay—not just bankruptcies you've confirmed do trigger one. Counsel must explain whether the stay applies, not decide unilaterally that it doesn't and stay silent.
No stay for debtor-initiated lawsuits: The automatic bankruptcy stay under 11 U.S.C. § 362(a)(1) does not apply to actions brought by the debtor itself. Debtors need to marshal assets through litigation; they don't need protection from their own lawsuits.
Counsel pled ignorance of Local Rule 21 and reliance on "faulty advice" from bankruptcy counsel—neither excuse worked.
Courts view violations of notice requirements as a waste of limited judicial time, particularly when discovery occurs days before oral argument.
Even without sanctions, the published admonishment serves as a lasting professional rebuke.
The broader ethical duty: appellate lawyers must notify courts of any occurrence that could cause the court to lose or question its jurisdiction.

In Part 2 of our conversation with Michael Shipley, Tim and Jeff dig into the real-world fallout of California's no-horizontal-stare-decisis rule — and the structural fix Shipley has been developing to address it.

Shipley walks Tim and Jeff through his proposed "mini-en banc" transfer mechanism — a way for the California Supreme Court to empower a designated Court of Appeal panel to issue statewide-binding precedent on conflicting issues without consuming the Supreme Court's own docket. No constitutional amendment required. The fix is already structurally available. The question is whether anyone has the will to use it.

Key points:

The "lonesome judge" problem is worse than it sounds: Under Auto Equity, trial judges caught between conflicting Court of Appeal decisions must predict which rule the California Supreme Court would adopt—effectively playing temporary Supreme Court justice on procedural disputes that may never get high court attention. The result: uncertainty, inconsistent rulings, and frustrated trial judges who just want clear precedent to follow.
The anti-SLAPP mixed-cause-of-action split took over a decade to resolve: Before Baral, California Courts of Appeal were hopelessly divided on whether a defendant could bring an anti-SLAPP motion targeting individual claims within a mixed cause of action. The split persisted for years.
Forum shopping is a risk—but more at the trial court level: There is a theoretical opportunity to forum-shop between appellate districts, but if shopping actually happens, it’s probably more at the “lonesome trial judge” level.
Shipley's fix: a "mini-en banc" transfer procedure: The California Supreme Court would transfer cases back to a designated Court of Appeal panel with authority to disapprove prior conflicting decisions and issue a statewide-binding opinion. The decision would remain subject to Supreme Court review, but would resolve persistent splits on procedural issues without consuming Supreme Court resources.
Constitutional constraints make true en banc review impossible: California's Constitution requires three-justice panels—no more, no less.
Implementation doesn't require constitutional amendment: The Supreme Court could adopt this procedure unilaterally as a matter of prudence, though a Judicial Council rule would provide helpful procedural uniformity.

Listen now to understand a concrete reform proposal that could bring much-needed certainty to California's appellate system—and learn how you can support it.

California is the largest common-law jurisdiction where appellate courts don't follow each other—and it happened by accident. In Part 1 of this two-part episode, Michael Shipley explains how Bernard Witkin’s treatise reflections on case dicta became binding law, why the federal circuit model works differently, and what the rule costs practitioners and trial judges every day.

Key points:

The Witkin origin story: No California Supreme Court decision actually establishes the no-horizontal-stare-decisis rule. It developed through dicta, then appeared in Witkin's first edition—which courts then cited as authority.
The federal contrast matters for forum strategy: In the Ninth Circuit, Miller v. Gammy binds all panels within the circuit to follow the first published decision on an issue. California trial courts, by contrast, face conflicting appellate authority and must guess which rule the Supreme Court would adopt under Auto Equity—a burden one trial judge called being "appointed to the Supreme Court for temporary purposes."
Stare decisis isn't jurisdictional (probably).
Unpublished opinions create tension.
The pros: California's rule allows multiple perspectives on emerging issues and prevents the first Court of Appeal decision from locking in statewide law before the Supreme Court weighs in.
The cons: The rule creates uncertainty, burdens trial courts, and leads to inadvertent inconsistencies on procedural issues too minor for Supreme Court attention—splits that can persist for years or even decades. (In anti-SLAPP law, it took 13 years before Baral v. Schnitt decided how to handle mixed causes of action.)
Publication practices hide the problem: Many conflicts never surface because courts strategically leave decisions unpublished, masking the frequency of divergent reasoning and making the appellate landscape harder to navigate.

Listen to Part 1 now for the full discussion on how California got here and what it costs practitioners—then tune in to Part 2, where Shipley covers forum shopping, the anti-SLAPP mixed-causes-of-action case study, and his proposed reform: precedential transfer.

In the first half of their conversation with James Mixon, Managing Attorney at California's Second District Court of Appeal, Tim Kowal and Jeff Lewis ask what is healthy AI use, and unhealthy use? To help organize—yes! To replace judgment—no! Tip: When an attorney does not read AI output before filing a brief, expect sanctions.

James draws on his role on the judicial branch AI Task Force and his monthly Daily Journal AI column to provide a practical roadmap for responsible AI use—from crafting effective prompts to avoiding the automation bias that has led to attorney sanctions across the country.

Key points:

Treat AI as an on-demand legal treatise, not a research tool: Mixon explains how AI excels at providing background information and organizing legal concepts into digestible narratives—making it ideal for learning complex areas quickly—but should never replace verified legal research or case citation.
The "Daedalus Doctrine" framework offers a middle path: Drawing from Greek mythology, Mixon warns against flying too high (reckless AI adoption) or too low (ignoring AI entirely), urging lawyers to use AI thoughtfully while maintaining personal judgment and verification responsibilities.
Effective prompting is critical: Never use open-ended commands like "enhance this brief"—instead, tell AI exactly what you want and ask it to flag changes in italics or bold so you can review selectively.
Hallucinations remain the biggest risk: Recent sanctions cases show attorneys asking ChatGPT to verify its own fabricated cases—a fatal error that demonstrates why every citation must be independently confirmed.
Courts aren't using AI for decision-making: Current California court policy prohibits AI use "in any way that would touch a decision" to preserve public confidence over efficiency gains.
AI works best for background learning: Mixon describes using AI to create narratives and explanations that make legal concepts stick—transforming dry doctrine into memorable stories, like having a personalized treatise writer available on demand.

Tune in to learn how to harness AI's power for legal background and organization without falling into the traps that have cost other attorneys their credibility—and thousands in sanctions.

Is your AI training data biased? And is using AI-generated reasoning plagiarism?

James Mixon, Managing Attorney at California's Second District Court of Appeal, covers troubling topics on how lawyers should, and should not, use AI. In this second part of Tim and Jeff’s conversation, James discusses how we can detect and counteract bias baked into training data. And what happens when trial judges unknowingly sign orders containing fabricated cases?

Key points:

Legal reasoning isn't “creative” work—it's problem-solving: When we use words to solve problems, it should not be considered “plagiarism.”
Bias detection requires active testing: AI models trained on historical data replicate past discrimination, particularly in employment, housing, and finance cases. James suggests an interesting experiment to try in your next research prompt.
Alternative dispute resolution raises new questions: California bill Umberg 643 bars using AI for arbitration decision-making, reflecting concern that people signing arbitration agreements assume human decision-makers. If contracts explicitly state "AI dispute resolution," that might be acceptable—but not if buried in fine print.
When should you disclose your AI use? Depends on where the use falls on a spectrum of “organization” and “discretion/judgment.”
Trial court orders present a growing risk: Judges should strip proposed orders down to essentials: parties, motion, ruling, hearing date.
AI lacks "ethos"—for now: AI currently can't replicate the credibility and reputation that make people trust human experts. This may change as AI systems develop track records, but for now, judicial decision-making requires the human judgment that builds public confidence in courts.
Looking backward creates civil rights risks: AI trained on historical data is inherently conservative. Some models predicted Brown v. Board of Education would be affirmed based on precedent—a stark reminder that purely probabilistic decision-making can't account for moral progress.

What AI uses do you find most attractive—and the most troubling?

Lemon Law lawyer Michelle Fonseca-Kamana discusses the seismic shifts in California lemon law—from the Supreme Court's decision in Rodriguez v. FCA US LLC (October 31, 2024) 17 Cal.5th 189 that effectively eliminated most used car claims, to the explosion in case filings (from 4,500 in 2015 to over 22,000 in 2023), to new legislative reforms under AB 1755 and SB 26 that impose strict timelines and mandatory pre-suit notice requirements.

Michelle also shares how she pivoted from in-person networking to social media marketing during the pandemic, built a practice around one-way fee-shifting statutes, and navigates the asymmetric litigation battlefield against billion-dollar manufacturers.

Highlights:

Rodriguez v. FCA's impact on used-car protections: The Court limited manufacturer liability to certified pre-owned vehicles, leaving used-car buyers without recourse even when cars remain under manufacturer warranty.
Why lemon law filings quintupled: Despite expectations that Rodriguez would reduce litigation, filings increased fivefold (2015-2023) due to declining vehicle quality, PI firm diversification, and political headwinds.
New procedural requirements under AB 1755 and SB 26: Effective 2025, consumers must send pre-suit demand letters, wait 30 days, retain the vehicle, meet hard deadlines (one year after warranty expiration or six years from delivery), and navigate an "opt-in" system.
One-way fee-shifting as equalizer: Song-Beverly allows consumers to bring claims without paying fees—manufacturers pay all costs if consumers prevail.
Social media as practice-builder: Michelle built her practice through bilingual video content on Instagram, TikTok, and YouTube, generating clients and referrals without traditional marketing.
Documentation mistakes: The biggest error is failing to keep itemized repair orders and contemporaneous complaints—gaps that become fatal under new requirements.

Tune in for insights on asymmetric consumer litigation, the intersection of statutory interpretation and real-world consequences, and how procedural reforms quietly reshape substantive rights.

You have to literally disobey an order in California to be held in contempt. But federal courts are a little more touchy-feely: they will find a contempt for violating the “spirit” of their orders. Tim and Jeff compare the Ninth Circuit's contempt finding against Apple in the Epic Games dispute, and a state litigant who got around a visitation-time order but without violating the letter of the order, so no contempt.

Meanwhile, a CEQA plaintiff that won at the Court of Appeal—only to be reversed by emergency legislation and the Supreme Court—learned the hard way that "prevailing" on the law as written means nothing if the Legislature rewrites the rules mid-case.

Key points:

Contempt requires literal violation in California, not just bad faith. But in federal court, violating the “spirit” of an order is contempt.
Legislative abrogation torpedoed $1.2M in CEQA fees: Plaintiffs in Make UC a Good Neighbor v. Regents won significant CEQA victories establishing that crowd noise and alternative locations must be analyzed—then watched the Legislature pass emergency legislation abrogating both holdings. After the Supreme Court reversed, the Court of Appeal denied nearly $1.2 million in private attorney general fees, calling the prior opinion "smoldering ruins, not citable precedent." The court held plaintiffs weren't "successful parties" because they failed to halt the project, even though they vindicated principles under the law as it existed when filed.
Ninth Circuit discovery ruling survives en banc review: The court declined to rehear the Trump administration's challenge to a discovery order requiring production of federal reorganization and layoff plans, rejecting executive privilege claims without requiring plaintiffs to show bad faith. Judge Bumatay's dissent warned of a "binding dicta trap" where the panel's comments on what qualifies as deliberative could become binding precedent.
California Supreme Court limits Public Records Act obligations: Superior Courts can issue declaratory relief even after documents are produced if the dispute is likely to recur, but the Public Records Act does not impose a statutory duty to preserve documents a public agency identifies as exempt.

California’s New Legal Rules for 2026: AI, Photo Proof of Service, and Simpler Statements of Decision

New statutes and court rules taking effect in 2026 and 2027 will change how California lawyers serve papers, preserve appellate issues, and disclose their use of artificial intelligence. Appellate attorneys Tim Kowal and Jeff Lewis focus on what actually matters in practice—what to fix now, and where the new traps are likely to appear.

The big changes:

AI in the Courts: Rule of Court 10.430 requires courts to either ban AI use by judicial officers and research attorneys or adopt a formal AI policy with verification and disclosure requirements. Expect cautious policies, broad disclosures, and little tolerance for “the AI did it” excuses.
One Deadline for Statements of Decision: AB 515 eliminates the short-trial/long-trial distinction. If you want a statement of decision, you must request it before submitting…and you should do it in writing.

Other changes worth noting:

Photo Proof of Service: Starting January 2027, AB 747 requires process servers to document service attempts with photographs showing GPS coordinates and timestamps.
Court Reporter Disclosure: AB 711 requires meet-and-confer declarations to disclose whether court reporter attendance was discussed and the outcome.
Electronic Service Authorized: SB 85 allows courts to approve service by email or electronic means when traditional service fails.
Expanded Mediation Authority: Courts may order mediation in cases up to $75,000 if at least one party requests it and no discovery disputes are pending.
AI Disclosure in Bankruptcy Court: The Southern District of California Bankruptcy Court now requires disclosure of AI tools used and certification of independent accuracy review.

Listen now to understand what to change in your templates and where the next procedural missteps are waiting.

AI-sanctions might get eyeballs, but the bigger sanctions are still for plain old bad lawyering. Jeff also raises this ethical and pragmatic question: who defends the lawyer when sanctions threaten the client? Should counsel facing an OSC retain separate counsel for the sanctions component to avoid divided attention and better protect client interests? What if the costs of independent counsel are likely to exceed the sanction?

$25K for using Anti-SLAPP as a litigation weapon. A bare-bones anti-SLAPP was amplified by record emails suggesting the strategy was to inflict cost and pain rather than win on the merits.
$13K for relitigating the merits through a fee appeal. The appeal purported to challenge fees, but largely recycled arguments already rejected in the prior appeal. The court finds the effort both objectively meritless and subjectively aimed at rehashing settled ground.
<$2K for fabricated authority & thin explanations. Schlichter v. Kennedy results in $1,750 against an attorney who relied on nonexistent or inapposite citations and offered credibility-challenged explanations about verification methods. After the court’s exhaustive point-by-point teardown, the monetary sanction seems merciful.
Pro per’s sanction is dismissal of appeal. In Arno Kuglua v. Young Park, the Court of Appeal dismisses an appeal for failure to support arguments with proper authority.

Also: AI guidance from the courts: The California Courts of Appeal publish user-facing AI guidance emphasizing verification, independent source-checking, and personal accountability for filings—even if AI assists with drafting.

A scandalous Netflix documentary called an unconventional sex-based therapy business an “orgasm cult,” all based on a sole source whose account has several flaws. But the Court of Appeal dismissed the defamation case on anti-SLAPP grounds. Tim and Jeff discuss whether any California defamation case against a media company could survive the one-two punch of anti-SLAPP and NY Times v. Sullivan. They also discuss California’s unique approach to standing—it’s not jurisdictional, it’s purely pragmatic.

Anti-SLAPP meets documentary defamation: OneTaste Inc. v. Netflix illustrates how courts evaluate actual malice when the plaintiff is treated as at least quasi-public, and how journalistic discretion can sink a claim even where the plaintiff says it provided contrary evidence before publication. Tim flags the built-in squeeze: if public-figure status and the controversy are intertwined, the plaintiff may need discovery to prove merit, but cannot get discovery without first showing merit.
Standing without injury, by design, not accident: Kashanian v. National Enterprise Systems tees up a standing fight over technical FDCPA disclosure issues, think small-font compliance, with no alleged real-world harm. The takeaway is not subtle: in California, legislative authorization can do a lot of work, and no harm does not necessarily mean no case.
When the statute creates the bounty, sanctions become the guardrail: The hosts debate whether CCP 128.5 and CCP 128.7 actually deter nuisance filings when the underlying enforcement scheme invites penalty-driven litigation. Is it appropriate—or wise—to use our courts as civil bounty enforcement, devoid of any harm requirement?
Juror privacy is real, ask the team that wrote the $10,000 check: Don’t research prospective jurors on social media.
Minute entry, real consequences: A timing skirmish over whether a minute entry can function as an appeal-triggering order ends, for now, with the U.S. Supreme Court declining review. Be conservative in calculating the time to appeal

Want to know why bad AI cites really bother the courts? Jeff and Tim discuss two recent fake-AI-cites cases imposing sanctions and State Bar referrals, and draw this conclusion: It’s not that AI is bad at law—in one of these cases, the court noted that none of the AI mistakes even went in the direction of helping the offending party. Rather, the problem is that AI is just bad at citing and quoting the law. And the courts are super-protective against our legal canon becoming polluted with hallucinations.

Blame game backfires: In Shayan v. Shakib, appellant’s counsel blamed non-attorney staff for adding the bad AI cites to the brief. The mistakes didn’t really change the arguments, and the court ordered counsel to file a corrected version. But the outcome is going to be the same, plus $7500 sanctions and a State Bar referral.
Gatekeeping function: Courts emphasize that even when fabricated citations don't advance a party's position, they still threaten "the integrity of courts and the legal profession" by risking that fake law becomes cited as real precedent.
We discuss updates in the Boies Schiller/Scientology case, and whether these recent cases predict the result.
Voluntary dismissal dilemma: Tim’s firm filed an amicus brief in the Maniago case, arguing that voluntary dismissals with prejudice should be treated as appealable final judgments, challenging the rule that clerk-entered dismissals are merely "ministerial acts."
Heated bench: A Texas redistricting case features an unusually scathing dissent beginning with "The main winners from Judge Brown's opinion are George Soros and Gavin Newsom," raising questions about appropriate judicial temperament.

The California Supreme Court’s long-awaited "Taking Offense" decision on gender pronouns in elder care facilities introduces a new “captive audience” exception to the First Amendment. Tim worries this new judicial carve out may creep to other forums; Jeff is unperturbed. Tim also shares insights from the Federalist Society National Conference, before examining a significant appellate-fee ruling.

Taking Offense v. State (Cal., Nov. 6, 2025, No. S270535) **holds that advocacy groups lack taxpayer standing under CCP §526a to challenge state laws, but still issued 100+ pages addressing the merits through a "captive audience" framework.
Captive audience concerns: Tim highlights potential "mission creep" with a “captive audience” rationale, potentially extending beyond elder care facilities to courthouses, government offices, and other venues where First Amendment protections could be weakened.
“Bloodthirsty originalism”: From the Federalist Society conference, Judge Bumatay advocated less deference to stare decisis in favor of constitutional fidelity, while Justices Barrett and Kavanaugh addressed courage and civility in legal practice.
Discovery fee windfall: In Baer v. Tedder, the court authorized recovery of $113,000 in appellate attorney fees for successfully defending a $10,000 discovery sanction, creating economics similar to anti-SLAPP appeals.
AI arbitration arrives: The American Arbitration Association announced a pilot program offering AI resolution of construction disputes with human oversight, signaling that AI's impact on legal practice may be just "a couple of years away" rather than decades.
Oral argument mastery: Federal Circuit judges advised narrowing issues to increase credibility, welcoming judicial interruptions as opportunities, and viewing argument time as the court's time for conversation rather than presentation.

Tune in for practical insights on appellate strategy, the evolving legal landscape, and how to prepare for significant changes in legal practice in the coming years.

Jimmy Azadian is often in the room when federal judges get together to share their personal concerns about the job. When judges are asked to come speak to a group, Jimmy reports that top of mind are the recent threats to judges and the courts—whether from armed vigilantes, protesters, students, or senators.

Jimmy, Tim, and Jeff then turn to some recent SCOTUS and 9th Circuit trends:

Standing Doctrine Evolution: Courts are scrutinizing what constitutes concrete injury, particularly since Justices Gorsuch and Barrett joined the Supreme Court, with increased scrutiny of statutory damages and class action requirements.
Birthright Citizenship Battle: In Washington v. Trump, the 9th Circuit held that the 2025 executive order attempting to end birthright citizenship was unconstitutional. But Judge Bumatay's partial dissent questioned states' standing, based on “fiscal” concerns, as too tenuous.
Anti-SLAPP Shake-up: The en banc 9th Circuit in Gopher Media unanimously held that denials of California anti-SLAPP motions in federal court are no longer immediately appealable, reversing 22-23 years of precedent and potentially driving forum shopping.
California Laws Preview: New 2026 laws include immigration enforcement limits at schools, required social media account deletion options, restrictions on facial coverings for immigration agents, direct Cal State University admission standards, and regulation of commercial audio volume.

Tune in for essential perspectives on judicial independence, constitutional interpretation, and strategic considerations that could impact your federal practice in the coming year.

AI Reshapes Legal Practice: ClioCon 2025 Delivers a Wake-Up Call

Jeff Lewis reports from the 2025 Clio Cloud Conference in Boston. Day 1 was encouraging, but Jeff reports feeling Day 2 as a “gut punch”: within about 5-10 years, many fundamentals of legal practice will be unrecognizable.

Here are a few ways legal industry leaders suggest you can skate to where the puck is going—rather than finding yourself behind by skating to where it is now.

The $5 Billion Opportunity: Clio CEO Jack Newton says there are billions in untapped legal services—and AI tools can help lawyers tap it.
74% of Billable Tasks Automatable: Clio's research suggests nearly three-quarters of current billable work could be automated. The game: find the redundancy, or else be the redundancy.
AI Becoming Standard: 79% of legal professionals are now using AI tools (up from just 19% two years ago).
Time-Tracking Revolution: Before AI replaces your billables, let it enhance them: AI-powered tools like Point One and Tempello automatically capture and enter your time—you might be surprised how much money you’re leaving on the table.
Context-Aware Legal Research: Clio's new "Vincent" platform combines practice management data with comprehensive legal research to produce AI responses grounded in both case facts and applicable law, reducing hallucinations and providing verifiable citations.
The Neurosurgeon Analogy: Susskind's provocative comparison suggests that just as AI might make brain surgery obsolete through prevention and precision, traditional legal services may be replaced by more efficient, AI-driven alternatives that clients prefer.

True, there are shiny objects out there, and as Tim says many will get “Sherlocked”—become obsolete as the underlying AI tech improves. But getting in the game is key—the sidelines are going to be a very unhappy place very soon.

Few lawyers and LRW instructors write and think more about AI than Professor Jane Woods of Mizzou Law, who offers this most important AI advice: If you haven’t read the case, don’t cite the case.

The Boies Schiller Cautionary Tale: That would have saved Boies Schiller’s bacon. We discuss the high-profile Scientology/Masterson appeal, and whether the Court of Appeal is going to strike plaintiff’s respondent’s brief because of the Boies Schiller attorneys hallucinated cases and otherwise wrong legal citations.
AI's Ideal Applications: Most effective AI uses include drafting standard legal sections, style polishing, fact organization, and processing large records.
How to AI in Legal Practice: Avoid garbage-in-garbage-out by feeding case opinion PDFs from authoritative legal databases directly into AI projects—don’t let AI search the internet on its own.
Don’t hate the "Em Dash"! Some firms have reportedly banned em dashes in legal writing because they're seen as indicators of AI-generated text, highlighting how AI's stylistic preferences (even good ones!) may be reshaping legal writing conventions.
Should lawyers disclose AI use? It depends. But if you’re thinking about charging $900/hour and to outsource to a robot, maybe don’t do that.

Jeff thinks our business and even this podcast will be aped by robots by this time next year. Until then, tune in for tips on how best to resist or suck up to the robot overlords.

Just a couple years ago when we talked with Ernie Svenson, the attorney who talks tech fluently, AI was not even a thing. Now in late 2025, it’s the only thing. Ernie joins Tim and Jeff to discuss the rapidly evolving landscape of AI in legal practice, why AI gives small firms an advantage, and how attorneys can safely leverage these tools without falling victim to “hallucinations.”

We discuss how to embrace AI tools without anxiety (or with the appropriate amount of anxiety), starting with inconsequential applications before moving to more consequential legal work.

Pattern Recognition on Steroids: AI excels at pattern recognition and language expression, ideal for first drafts and oral argument prep.
Not an AI Problem: Recent sanctions for citing hallucinated cases reflect a longstanding due diligence issue. AI just exposes attorneys who don't verify sources.
Small Firm Advantage: AI works best as a force multiplier for individual cognitive ability, giving solo practitioners and small firms who master these tools an edge over larger organizations.
Agentic AI on the Horizon: While fully autonomous AI agents need careful supervision, basic applications like data entry are already available, with complex applications developing rapidly for case prioritization and KPI extraction.

Teaching Judges: Appellate Expert Cherise Bacalski on Brief Writing and the Human Side of Law

Appellate specialist Cherise Bacalski teaches appellate writing at NYU Law's New Appellate Judges Program, and in this interview we discuss her insights from both sides of the bench and how her background in rhetoric shapes her approach to appellate advocacy.

Training new judges: At NYU, Cherise teaches newly appointed appellate judges how to make their opinions more readable through proper structure, headings, and organization—skills that help both judges and practitioners.
The rule is king: What is the rule in your case? Cherise explains that, whatever it is, that rule should inform every part of your brief.
Write for a “hostile reader”: Reading your brief—your trenchant, brilliant, erudite, sparkling brief—is the last thing any judge wants to do. Forget being brilliant. Just be clear, concise, skimmable, and easy to digest.
Lead with old information: One of the most effective writing principles is beginning each new point with familiar information to propel readers forward at the speed of thought, reducing the need for excessive explanation.
The human element: Cherise views the law as fundamentally human. Understand you are talking to humans, not picking a lock.
AI is an amazing tool, but not a replacement: Use AI to test arguments and identify weaknesses in briefs. But AI sometimes misses critical "smoking gun" evidence in case analysis.

Tune in for a masterclass in appellate advocacy that bridges the gap between academic rhetoric and practical legal persuasion from an attorney who's seen the system from multiple perspectives.

Appealing in the 9th Circuit? Your deadline is 30 days. Don’t let Rule 58’s “separate document” extension lead you astray. Appellate specialists Tim Kowal and Jeff Lewis also discuss ChatGPT 5 (a “market disruptor”), and sanctions strategies in federal court.

Appeal Deadline Alert: The 9th Circuit in McNeil v. Guitare held that Rule 58's 150-day extension for appeal deadlines applies only to final judgments, not collateral orders like qualified immunity denials.
Anti-SLAPP Motion Timing: Mora v. Menjivar confirms that filing just a notice of anti-SLAPP motion within the 60-day deadline is insufficient—supporting documents must be filed concurrently.
Out: Res Judicata. In: Claim Preclusion.
Sanctions Strategy: 28 U.S.C. § 1927 can be used for sanctions without Rule 11's cumbersome 21-day safe harbor.
AI Ethics: California courts confirmed in Nolan v. Land of the Free that attorneys must personally read all cited authorities, regardless of whether AI tools were used in brief preparation.

And more practical insights on navigating procedural pitfalls, avoiding sanctions, and ethically incorporating AI tools into your appellate practice.

Failing to cite your secondary sources in briefs is poor form. But is it plagiarism? Jeff and Tim debate. And when the Supreme Court The publishes a case, should it explain itself? PJ Gilbert and Tim say yes, Supreme Court and Jeff disagree.

Also in this episode:

Can copying from a CLE article really get you sanctioned? Kelly v. Tao suggests… maybe.
Presiding Justice Gilbert rails (again) against the Court's silent de-publishing practices.
Deny a request for admission in a one-way fee-shifting case? You might still owe fees—Gammo v. Morrell.
$105k in sanctions after failing to abandon claims disproven in discovery—Atlantic v. Baroness.
The perils of citing the wrong fee statute—Martin v. Hogue.
Gibson Dunn bills $1.8M for May alone in public interest litigation over LA homelessness.
Can ChatGPT testify against you? OpenAI’s CEO says maybe.
How AI tools are reshaping billing, ethics, and expectations for appellate lawyers.

Tune in for AI ethics, briefing blunders, and why even your RFA denials could cost you.

Patrick Hagen is a man of the people—he still proudly uses Times New Roman! But he also has the ear of LinkedIn’s legal-writing elite, with over 36,000 followers as of August 2025.

Patrick sits down with Jeff and Tim to share the source and method behind his viral legal-writing tips, how his judicial clerkships shaped his voice, how to hone good writing even when writing “by committee” under senior associates and partners, and why good writing—even in a losing case—is always worth the effort.

We discuss:

Why it is axiomatic that you should pause and think before using the word “axiomatic.”
How AI tools like ChatGPT, ClearBrief, and CoCounsel can be the road to sharpened prose—or the road to ruin.
Can a legal writing critic still be gracious?
And the lightning round: TNR, Arial, two spaces, Oxford commas, and “Comes now….”

Stay for the writing tips, return for the wit, and if you don’t want Patrick’s 36,000 followers laughing at your writing foibles behind your back, follow him on LinkedIn.

Unlike any other state, California effectively deputizes employees to act as “Private Attorney Generals” to sue employers for PAGA claims—both for themselves, and for their co-workers. But since the individual claims can get compelled to arbitration, employees started to file claims only on behalf of the “body” of co-workers, asserting no claim on behalf of themselves as the “head” of the case.

Employer litigator Monte Grix explains how PAGA evolved into their “headless” form. Monte, Tim, and Jeff discuss the four cases currently on review before the California Supreme Court, including Leeper v. Shipt. Monte offers an inside view from the defense side, explaining why employers see these actions as a threat to arbitration agreements and the subject of growing appellate friction.

Also in this episode:

How Viking River Cruises and Adolph v. Uber set the stage for today’s headless-PAGA storm.
Strategic pleading: why some plaintiffs drop their individual claims to avoid arbitration.
The standing trap: can a plaintiff assert representative PAGA claims without showing personal harm?
The stakes in the four pending California Supreme Court cases: if a plaintiff can skip arbitration by asserting only representative claims, is PAGA immunity from arbitration complete?
Turrieta v. Lyft: why copycat plaintiffs can’t intervene in pending PAGA settlements.
Rodriguez v. Packer Sanitation and the Fifth District’s lesson in reading "and" as "and/or".

Plus: a side quest into unconscious bias, tenure-track discrimination, and why arbitration clauses remain a sore spot for appellate lawyers.

Then: the California Supreme Court's recent ruling in Hohenshelt eases the "30-day rule" for arbitration payments. Employers who pay a day late haven’t necessarily waived their rights—and Monte predicts the U.S. Supreme Court may eventually weigh in.

Tune in for appellate nuance, strategic pleading, and the headless claims keeping California employers (and the courts) up at night.

Summarizing the extraordinary events surrounding the 2020 election, the California State Bar Court’s review decision issued a decision in June 2025 recommending that President Trump’s election attorney, John Eastman, be disbarred. Tim and Jeff unpack.

Was Eastman merely theorizing, or actively advocating for a constitutional end-run?
What is the difference, anyway, whether Eastman represented the President—an office that plays no constitutional role in the VP’s role regarding the electoral votes?
Eastman’s interpretation of the 12th Amendment was not supported by scholars—but also not judicial foreclosed. Does advocating it warrant disbarment? (The equal-protection argument in Bush v. Gore was similarly off-the-wall, yet successful!)
Eastman’s factual claims were not well-supported. But on the other hand, did the unique circumstances and recent election-law innovations promote a flurry of suspicion—with too little time to vet before challenges would be moot?
The bar court says Eastman should have relied on "true experts"—what is that?

SCOTUSblog contributor and EmpiricalSCOTUS analyst Adam Feldman joins us for a recap of the 2024–25 Supreme Court term. We dive into the end-of-term Stat Pack, ideological surprises, dissent patterns, and whether the Court is still a 6–3 conservative lock—or something more nuanced.

We discuss:

Headlines make an opinion a “blockbuster,” but what really makes it significant?
How Justice Kagan ended up in the majority more than some of the conservatives.
Why Justice Kavanaugh writes so many concurrences.
Does the emergency docket (aka “shadow docket”) confound the predictability of legal outcomes?
Gorsuch’s libertarian streak, Barrett’s evolving voice, and Thomas’s prolific pen.
Is the Court 3–3–3? Or just a 6-3 with what Adam calls a “soft middle”?
SCOTUS opinion length, voting blocs, and coalition patterns—and why they matter to your next cert petition.

Tune in to learn how to read between the majority lines—and what might be coming in the 2025–26 term.

Mere days after SCOTUS enjoins universal injunctions, judges find other way to afford “complete relief.” A big one: The Administrative Procedure Act allows courts to enjoin agency actions.

Also:

What if a defendant does not want a co-defendant dismissed and relieved of liability? The California Supreme Court says co-defendants can oppose each other’s MSJs in R&D Contractors v. Superior Court.
The Climategate saga continues: when 12-years of anti-SLAPP litigation does not end Dr. Michael Mann’s lawsuit defending his “hockey stick” temperature graph, the D.C. court reverses on punitive damages: with a mere $1 nominal damages award, $1M in punitives is too high. Dr. Mann’s total result after a dozen years of litigation: $6,002 (and a bill for $9,000 in discovery sanctions).
You snooze, you pay: Employer gets sanctioned $183k for late arbitration fee payment in Guffey v. Bokeet.
Family law FC 2030 fee denial reversed for considering improper, extra-statutory equitable factors in Marriage of Sadie v. Cativar.
Georgia appellate court sanctions lawyer for ChatGPT-cited fake cases, citing study showing AI makes mistakes 75% of the time.
Can you hand up exhibits during appellate argument? Maybe in Texas.
The Third District new program delays record deadlines pending mediation.

Tune in for insights on trial prep, appeals strategy, and the increasingly blurred lines between branches of government.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Climate Change Trial Update: Jury awards $1 plus $1M punitives for hockey-stick criticism
Alex Anteau 'Don't Be Dumb': Ga. Court of Appeals Sanction Gives Insight...
Law360 The Funniest Moments of The Supreme Court's Term - Law360

No more nationwide injunctions, SCOTUS says Justice Barrett writing for the 6-3 majority in Trump v. CASA. District courts must limit their injunctions to the “case or controversy” before it. Justices Sotomayor and Jackson each wrote dissents urging that more judicial power was needed to check the executive. In response, Justice Barrett says that exceeding judicial power is not the right way to address excessive executive power.

The Court did not reach the merits of the Natural Born Citizenship clause.

Also:

The 9th Circuit seems poised to hold that anti-SLAPP motions are not appealable. This week’s en banc oral argument in Gopher Media v. Malone had many judges criticizing its precedent to the contrary.
A lawyer calls a justice “honey” at oral argument. The internet is not forgiving.
A party improperly recorded a trial court proceeding. While noting it is against the rules, the appellate court uses it as the record.
How many hours does an appeal take?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

https://www.scotusblog.com/cases/case-files/trump-v-casa-inc/

https://www.linkedin.com/posts/meganwade_i-am-very-curious-to-see-responses-here-activity-7343977603051008002-fy8B?utm_source=share&utm_medium=member_desktop&rcm=ACoAACr8Z0cBB2uXy0Jklta4ZeCWMkby7fji_Xk

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Governor Newsom sued to enjoin President Trump’s deployment of the National Guard to quell the ongoing LA riots without Newsom’s consent. But first, we disclose our biases—about Trump, opportunistic political labeling of “rebellions” or “insurrections,” and how easily the thin veneer of civilization is pierced by masked cowards throwing rocks.

Also:

Beach yoga is free speech, says the Ninth Circuit striking down San Diego’s ban.
A study on televised oral arguments reveals that camera angles—and flags—can change the court’s perception with the public as “legitimate.”
Lawyers must comply with the evidence code—but the court can also consider mere “information.” We discuss why appellate courts seem so cavalier about the rules of evidence.
“Citation modified” enters the Bluebook—but Tim and Jeff agree: “cleaned up” still reigns.
Appellate fees ≠ judgment enforcement fees.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Is “evidence” different from “information”?
The “(cleaned up)” origin story, with Jack Metzler
Study on televising oral arguments and judicial legitimacy
CALP cited in a law review about (cleaned up)! Craighead, Burke, The Bluebook: An Insider's Perspective (May 12, 2025). Michigan Law Review, Volume 124 (forthcoming 2026), Available at SSRN: https://ssrn.com/abstract=5271305 or http://dx.doi.org/10.2139/ssrn.5271305.
Judgment enforcement fees reminder: EDWARD H. BONIN, v. LINCOLN CHAYES et al., (D2d2, May 29, 2025, No. B340106) (non-pub. opn.)
Not enough time for the CCP 128.5 21-day date harbor? Nothing prevents asking for a continuance of the underlying motion. JUNKERS2JEWELS, LLC, et al., v. LA-DORIS MCCLANEY, (Cal. Ct. App., May 28, 2025, No. B339900) (non-pub. opn.)

The Court of International Trade—whatever that is—enjoined Trump’s tariffs. But the Court of Appeal for the Federal Circuit imposed an administrative stay pending further briefing. We also cover:

Defending a Zoom depo? If you refuse to go on camera and are accused of improper witness communication, you may be sanctioned. (Remote depos are a game-changer—woe betide the attorney who screws it up for the rest of us!)
Case settled, but wire of settled funds intercepted by scammers. Who bears the burden depends on the circumstances—best practice is to put the wire info in the agreement itself.
Fee awards, abuse of discretion, and dueling precedents: Cash v. County of LA vs. Snoeck v. Exactime.
Supreme Court review granted in Maniago: Is a voluntary dismissal after a loss appealable?
Appearing at sentencing, Tom Girardi’s pants fall down—but he still gets 87 months.
Big Oral Argument News: Remote oral arguments are now available statewide without need to show good cause.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Beware using the Judicial Council form dismissal

The Supreme Court faulted the district judge in A.A.R.P. v. Trump for refusing to grant the Venezuelan alleged Tren de Aragua members’ injunction. But on remand, Judge Ho comes to the judge’s defense: after all, the judge only had 42 minutes’ notice. And to conclude that the judge had had some 14 hours, Judge Ho noted, the Supreme Court must have started counting at 12:30 a.m. Last time we checked, Congress has not provisioned courts a budget to operate 24 hours. “This is a district court,” Judge Ho reminds, “not a Denny’s.”

The Supreme Court doesn’t have appellate jurisdiction without an actual order on the injunction motion. Tim agrees with Judge Ho that the Supreme Court played a little roughshod with the otherwise fussy jurisdictional rules.
But the Court is losing patience with the Trump Administration’s legal tactics, Jeff suspects, which is why the Court is willing to stretch past the limits on its power.

What do you think? Is the Court’s move defensible exercising power arguably beyond its jurisdiction? Does it hold faith with Marbury, which famously established judicial power by not exercising it?

We also discuss the one-sentence letdown in the high-stakes religious charter school case, Oklahoma Charter Board v. Drummond. And we share CALP alum Chris Schandevel’s appellate lessons from a hard-fought loss: how to serve your client when the Court doesn’t serve you the decision you fought for.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

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SCOTUS spent two and a half hours hearing oral argument on Friday in the birthright-citizenship cases consolidated in Trump v. CASA—not about birthright citizenship, but about whether district courts should be issuing nationwide injunctions. Many justices, and commentators on both sides, have criticized nationwide injunctions as a judicial incursion into executive policymaking in both Republican and Democratic administrations. But will the Court use this case to impose limits?

We discuss:

Plaintiffs in this case include 22 states. Absent a nationwide injunction, half the country would be under a different rule of birthright citizenship until the case resolves.
CJ Roberts suggested that, in true emergencies, the Court can resolve a case fast, in as little as a month. Does this cut for or against nationwide injunctions?
What does the Court think about using Rule 23 class actions as a substitute vehicle for nationwide relief?
Are we heading toward a “guidance-free” 5–4 non-decision?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Trump’s executive order targeting Perkins Coie gets bench-slapped. Jeff recites the decision’s paean to the plight of lawyers. Tim wonders if Big Law was really hanging by such a slender thread. But on the law, neither is surprised by the result in Perkins Coie v. DOJ.

Also this week:

A motion to seal to protect privacy goes full Streisand Effect in Marin v. Rayant—filed, denied, appealed... and now, at the request of First Amendment scholar Eugene Volokh, a full published opinion.
In Chang v. Brooks, a man loses his Wyoming guns after heatedly accusing his California neighbor of killing his cat and then getting hit with a restraining order. His SLAPP motion? Denied—without a hearing needed. Held: You’re entitled to a hearing, but it would have made no difference. Jeff & Tim ask: if Abrego-Garcia were to get a hearing, would it make a difference?
A $10M harassment verdict is tossed after a trial judge goes off-script with bizarre commentary and irrelevant evidence in Odom v. LACCD.
Should courts require lawyers to swear they didn’t use AI? Jeff and Tim say: bad research predates robots.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

You have a right to a hearing only if you have something worthwhile to say
http://socal-appellate.blogspot.com/2025/04/ai-for-appellate-motions-and-more.html
https://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lmfmkodpks2z
https://bsky.app/profile/roland.cros.by/post/3lmjyk7wejc2o

A civil litigant, hit with $200,000 sanctions for plotting the kidnapping and murder of the defendant, gets the sanctions reversed.

Next week the California Supreme Court will hear oral argument on whether the state can mandate long-term care facility employees to use residents’ preferred pronouns. If this is consistent with the First Amendment, could conservative states mandate hospitals refer to fetuses as “unborn children”?

The State Bar used AI to create bar exam questions.

An attorney used a cartoon dragon watermark in his federal filing.

And Jeff reports some tips from the recent San Francisco CLA/OCBA appellate conference.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Apple said no jab, no job. The actor sued. The Court of Appeal holds the jab policy is expressive conduct, and thus the suit was a SLAPP.

Apple Studios dropped an actor from its Manhunt miniseries over a COVID vaccine mandate. The actor sued. Apple filed an anti-SLAPP motion—and won. Jeff and Tim break down Sexton v. Apple Studios and ask:

Is a vaccine mandate a creative decision?
Do logistical decisions become “expressive” just because they are part of making a film?
The court held that following “contemporary conventional wisdom” was reasonable, but what happens when that wisdom was arrived at suddenly in a matter of a few months—and then is abandoned just as suddenly?
And recall past “contemporary conventional wisdom” that is now abandoned: smoking was safe (even good for you!); thalidomide was good for pregnant women; Fen-Phen and Vioxx were promoted. Tim notes that much medical orthodoxy has a short shelf life and the law needs to allow room for individual choice. Jeff notes that in emergency situations the law needs to defer to coalescing expert opinion and best practices. We discuss, you decide.

Also:

A pro se litigant tricks a New York court into letting his AI avatar argue for him. (Spoiler: it did not go well.)
Plus, updates on shadow docket misadventures and deportation do-overs.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Apple’s mandatory vaccine is “creative” expression—employee’s lawsuit held a SLAPP

Alan Dershowitz signed a complaint containing frivolous allegations in Kerri Lake v. Gates. But he’s only “of counsel” who reviewed one paragraph, containing nothing frivolous. So the panel reversed the Rule 11 sanctions—but warns that, going forward, “of counsel” is not a valid defense. Judge Bumatay writes separately to say it should be. Jeff agrees with the majority, but Tim raises a possible chilling effect for trial consultants and appellate counsel—does one bad banana expose the entire trial team to sanctions?

Also:

Is judicial impeachment a real threat or just cable-news cosplay?
Discovery fee awards aren’t sanctions unless the judge calls it a sanction.
A SLAPP fee order isn't separately appealable—even if it feels like it should be.
Teaser for next week: Sexton v. Apple Studios—where vaccine mandates, historical drama, and anti-SLAPP collide.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

You can appeal discovery sanctions, but not a mere cost allocation
Can an attorney sign as to only part of a pleading?
Are articles of impeachment "attacks" on judicial independence?
Appealability of SLAPP Fee Orders

Judge VanDyke made a YouTube video to accompany his dissent in Duncan v. Bonta, the Second Amendment case in which a Ninth Circuit en banc panel upheld California’s ban on handgun magazines over 10 bullets. Judge VanDyke’s video shows him disassembling a gun, comparing accessories, and using a portion of oral argument to claim his point wasn’t being heard. The issue: If a magazine is just an accessory not entitled to Second Amendment protection, then basically the entire gun is just a bunch of unprotected accessories.

Jeff and Tim react:

Can a federal judge issue a TikTok-style dissent? If so, can lawyers start footnoting their briefs with YouTube links?
Does a video “illustration” that relies on props cross the line into new fact-finding? Or is it just illustrative of a legal point about distinguish an “arm” from its “accessories”?
Are judges likely to do more of these dissents? Maybe explainer videos would be useful in patent cases (comparing iPhone and Samsung phone designs), or product defects, or police excessive-force cases?
And practical questions: Will the video—and transcript—show up in Westlaw searches? How do you cite to something side during a dissent video?

We also discuss a California Supreme Court ruling clarifying that malicious prosecution claims, even against lawyers, get the full two-year statute of limitations. Not the shorter one-year.

And finally, an update from the J&J v. Trump litigation saga: a judge opens with a warning about the “priceless” nature of attorney integrity. The administration then invoked state secrets. Contempt proceedings now loom. Stay tuned.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Video Dissent: https://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lkt7yftgqc2g

A federal judge ordered the Trump administration not to deport five plaintiffs, alleged MS-13 and Tren de Aragua Venezuelan gang members. The administration complied, but then the judge verbally ordered the administration to turn around a plane and return 261 non-party alleged gang members. The administration didn’t do so, and appealed. Meanwhile, the President tweeted that the judge should be impeached. In response, the Chief Justice said that’s not how we do things.

Jeff and Tim react:

Is the President’s determination that the deportees are part of an “invasion or predatory incursion” affiliated with a foreign nation a political question, and thus nonjusticiable? If so, can the President just ship off Rachel Maddow without judicial review?
Was it irregular for 261 non-party alleged gang members to get added to a TRO after an oral motion and no opportunity for briefing?
Was it wise for the court to create a contest between the court and the presidency by verbally demanding planes turn around? Was it wise for the President to tweet in protest against the judge? (To the former: it’s arguable. To the latter: certainly not.)

We then discuss how you can lose your right to appellate fees for being uncivil. And if you are uncivil, does the court expect you to apologize?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Even if you technically can’t use an electronic recording to create the appellate record, trial courts do provide them for us in your closing argument PowerPoint. Jeff shares his experience.

And after spending most of a morning watching oral arguments waiting for his case, Jeff offers these tips:

It took 20 minutes of argument time just for the panel to get its head around who was who in a case full of alphabet-soup entities. If you’re spending a third of oral argument time in front of a confused panel, you’re doing it wrong.
Try this:
If your case has lots of “ABC LLCs” and “ABC Holdings LLCs,” try using functional names instead—like “the management company,” and “the holding company,” "investor", "bank", "assignee," etc.
Anticipate this confusion in your briefs. Include a clear chart in the brief that helps track the parties, preferably directly in the brief or as a supplemental exhibit.

The goal is to reduce "friction." If you’ve used up all panel’s brain synapses just to understand the players, you’re going to have a poor time once you get to the merits.

We also get to a couple cases, including a trap on appellate briefing extensions.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Are employees immune from paying discovery fees?

A stipulated dismissal is appealable, but not a voluntary dismissal?

Here’s a trap door to avoid: if you are trying to expedite an appeal by dismissing remaining claims, do not use the Judicial Council dismissal form. Instead, you need a judge-signed dismissal. While Jeff is still in trial, Tim covers Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972. The plaintiff dismissed his remaining claims after his core theory was gutted on demurrer, but the Court of Appeal held that a voluntary dismissal using the Judicial Council form is not an appealable order.

If you are an appellate specialist and trial counsel asks how to expedite an appeal after a devastating interlocutory ruling, you’ll need to know about this trap door in Maniago, as well as the right way forward in Tos v. State (2021) 72 Cal.App.5th 184.

And if you understand why a voluntary dismissal using the Judicial Council form is not appealable, but a voluntary dismissal using pleading paper is, then please volunteer to come on the podcast to explain it to the rest of us!

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972
Tos v. State (2021) 72 Cal.App.5th 184
Kurwa v. Kislinger (2017) 4 Cal.5th 109 (writeup here)

All eyes are on the electronic-recording original proceeding in the Supreme Court, Family Violence Appellate Panel v. Superior Court, and the Court’s recent order to show cause why, when a court reporter can’t be found, California’s trial courts should not be ordered to hit the “record” button. This could this be the most significant advancement in electronic court recording in decades. But it raises a few questions:

❔ The remedy sought is limited to low-income litigants. But if the Court buys the equal-protection arguments, won’t it require a holding for all Californians?

❔ Will the Superior Courts oppose the relief? LA Superior Court, after all, already issued a local rule allowing electronic recordings.

❓ Will the Legislature oppose? To the contrary, Jeff makes a bold prediction that the Legislature, to avoid embarrassment, will amend or abolish Gov. Code § 69957 before the Court rules.

⁉️ Will the court reporter lobby oppose? Is opposition possible without appearing villainous?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Is the electronic-recording ban unconstitutional?
Family Violence Appellate Project v. Superior Court (no. S288176)
Jameson v. Desta (2018)

Please AI responsibly: Attorneys at a major law firm are making use of ChatGPT. That's not a bad thing normally, but filling in legal cites is not what it's for. The unchecked ChatGPT cases were fake at a rate of 8 out of 9 total cases in a single brief. On this recent legal news episode Jeff and Tim cover:

How to AI responsibly (and not get sanctioned).
How to challenge arbitration responsibly (and not get sanctioned).
How to anti-SLAPP responsibly (and not get sanctioned).
Recent court stats and rule updates.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

AI Hallucinations May Lead to Sanctions for Big PI Law firm.
Changes coming to Legal Specialization Board?
Plantations at Haywood 1, LLC v. Plantations at Haywood, LLC
Wash v. Banda-Wash - 40 day period to claim costs after appeal not extended by 2 days - we are sent remands, we are not served with remands
Filmore Center Associates v. Lewis; San Francisco Superior Court
Disbarred in Federal Court, But Welcome in State Court?
Frivolous anti-SLAP

Your check for arbitration fees gets delayed in the mail. Under a particularly harsh pay-or-waive provision of the California Arbitration Act, if your fee is received on day 31, too bad—your arbitration rights go Poof! Or do they? There’s currently a big split among the appellate courts on this.

Tim goes solo while Jeff is still in trial, covering several of the recent cases on both sides of the split.

Does your arb agreement incorporate the FAA? You might be well-poised to argue it preempts the FAA.
Or is the arb agreement silent on FAA, or include only a qualified reference? You’re on shakier ground.

There’s also a separation of powers concern: Can the legislature declare that late arbitration fee payments automatically equal a waiver of arbitration rights, or is that a judicial function? Waiver is a common-law doctrine, and it’s discretionary. But clearly that’s not how the legislature intends it. And waiver requires fact-finding of the parties’ intentions in a particular case—obviously the Legislature doesn’t know what some future litigant in some future scenario “intends.”

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents (May 30, 2024)
Yet another arbitration preemption case, with 1st Dist. holding CAA’s 30-day deadline survives
Another late arbitration payment case, again holding the FAA preempts the CAA
Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.] (rev. granted in Hohenshelt)
Keeton v. Tesla, Inc. (D1d1 Jun. 26, 2024 No. A166690) (mentioned here)

The San Bernardino Superior Court electronically records trial. Can Jeff use the recording as the appellate record? Short answer: no. But there’s an original writ pending in the Supreme Court on a similar issue, so watch this space.

We also cover:

Jury Fee Hike, Paid by State Fund—but for how long?
Shehi v. Chicago Title Insurance Co.—attorney disqualification is appealable, but expert witness exclusion isn't, even when the expert is an attorney.
Tom Girardi saga—Wife Erica Girardi held not liable for aiding and abetting her husband's client trust fund misconduct.
The Fifth Amendment & Privilege Logs – A Ninth Circuit case on self-incrimination and privilege log requirements.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Attorney DQ Orders Are Appealable, But Not for Attorney Expert Witnesses
Audio recording in San Bernardino and Court Reporters
Finn v. Girardi (2D5d. Jan. 28, 2025, No. B324878) (nonpub. opn.).
In Re Grand Jury Subpoena (9th Cir., Jan. 28, 2025, No. 24-2506)

Jeff is in trial, so take in a few quick summaries of recent cases and get back to billing:

Incivility cost attorney $340,000 in fee reduction. Clip-n-save the recent controlling case on this point, Karton v. Ari Design & Construction, Inc.: "Excellent lawyers deserve higher fees, and excellent lawyers are civil.”
Don’t let the trial court deny relief before you’ve asked for it.
Lost the CCP 998 bet? You can still get judgment-enforcement fees.
Infamous sterlization case Buck v. Bell (”three generations of imbeciles are enough”) has never been formally overruled, and the California Court of Appeal still gives the mentally disabled mere rational basis.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Court cannot deny fees until a motion is made
Headnotes Jan. 24, 2025: one-sentence summaries of this week’s below-the-fold cases
Incivility Fee Reduction of $340k!
The Court of Appeal says that rational basis review applies to mentally disabled.

There was a bit in an old radio show (Kevin-and-Bean KROQ old, not Little Orphan Annie old) had Ralph Garman review movies he’d never seen, based only on watching the trailers. In this episode, we review some cases we haven’t read. We discuss the cases below, which lead to some good tangents.

When discovery objections have been waived, does serving responses that still contain the waived objections count as “substantial compliance”? Trial court said no, but the correct answer is Yes, says Katayama v. Cont'l Inv. Grp. (D4d3 Oct. 9, 2024 No. G063872) [published].
Discussing the difference between waiver and forfeiture. N. Am. Title Co. v. The Superior Court. (Cal. Oct. 28, 2024 No. S280752).
Satisfying judgment renders appeal moot: In Baker Entm't, LLC v. Emmett Furla Oasis Films, LLC . (2D7d Oct. 28, 2024. No. B323388) (nonpub. opn.)
Failing to respond to demand for punitive damages information, defendant forfeited its challenge to $15M punitives award. (Mosley v. Pacifica Bakersfield, L.P. (D5 Sep. 19, 2024 No. F084699) (nonpub. opn.).
To Avoid Unjust Result, Unambiguous Statute Held Ambiguous. In re Marriage of Cady and Gamick (D2d1 Sep. 25, 2024 No. B326716)

Other items discussed in the episode:

Headnotes 11/21/24: Judge Bias Can Be Forfeited But Not Defective Service
Late objections to RFAs do not invalidate otherwise substantive responses
Headnotes: one-sentence summaries of this week’s below-the-fold cases

This is why your teenagers are anxious: TikTok’s fate hangs in the balance at the Supreme Court. We discuss the recent oral arguments, and Donald Trump’s amicus brief asking the Court to sit tight and he’ll make a fantastic deal that will be fantastic and make the Court very happy and everyone will be very happy. (That is the best Trump impression I can do in written form 🤷).

And what does it mean when the Court of Appeal decided an appeal based on what one attorney does—and the other attorney doesn’t do—at oral argument? We discuss Pollock v. Kelso where the court decides that the plaintiff is the previaling party according to a settlement….a settlement the court has never seen.

We also cover Blauser v. Dubin discussing what to do when the trial court does not issue a final appealable order.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

https://www.youtube.com/watch?v=ynzTXuORJwM
Appellate court criticizes trial court practice of failing to enter final appealable orders Blauser v. Dubin (4D3d Nov. 19, 2024 No. G063715).
No reporter’s transcript of attorneys’ fees hearing doomed this appeal Saydman v. Aegis Sec. Ins. Co. (Cal. Ct. App. Dec. 20, 2024 No. G063209) (nonpub. opn.)

Here is our 2024 roundup, and in exchange we have a request for suggestions for 2025 content. If you are an attorney, what content do you prefer? Check out the poll.

Now here’s the roundup of updates for 2025:

📅 MSJ Deadlines Are Updated: Remember 81-20-11. With the MSJ hearing as the target, motions must be filed beforehand 81 days, oppositions 20 days, and replies 11 days.

🥈 Making a 2nd attempt at an MSJ? You’ll need leave of court.

⌨️ The court reporter shortage is before the Supreme Court. Stay tuned.

Here’s the roundup of notable cases from 2024:

Biden admin takes aim at judges issuing sweeping nationwide injunctions. (But Tim asks: then who will take aim at federal authorities exercising sweeping nationwide powers?)
Will anti-SLAPPs still be a thing in the Ninth Circuit by the end of 2025? Stay tuned for updates from the en banc panel in Martinez v. ZoomInfo Techs.
The appellate courts continued to crack down on attorney incivility, with the court vowing that offending attorneys “will be called out and immortalized in the California Appellate Reports.”

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.
Amendments to California's Motion for Summary Judgment Statute:
- Assembly Bill 2049 Text: Official legislative text detailing the changes effective January 1, 2025.
- Client Alert: New Summary Judgment Law in California Effective January 1, 2025: An overview of the new law and its implications.
- New Changes to California's Summary Judgment Process: What You Need to Know: Insights into how the amendments will affect litigation strategies.
Court Reporter Shortage and Audio Recording in Courtrooms:
- California Courts - Newsroom: Updates and news releases from the California judicial branch.
Supreme Court Arguments on TikTok's Foreign Ownership and Nationwide Injunctions:
- SCOTUSblog: Comprehensive coverage of upcoming Supreme Court cases and arguments.
Civility in Legal Practice:
- Masimo Corporation v. The Vanderpool Law Firm Case Summary: Details of the case addressing issues of civility and discovery sanctions.
- The Uncivil War Raging Before the Cali

Jackie Gardina shares dispatches from the Blue Ribbon Commission on reforming the Bar Exam, covering recent reforms, the ongoing debate about the exam’s effectiveness, and the rise of alternative pathways to legal licensure. Some takeaways:

💯 Yes, the passing score was dropped—but don’t worry, the old one was picked out of a hat (basically).
🗯️“End the bar exam?! But that’s how it’s always been done!” Nope. Before that there were was the “diploma privilege” model, and before that the apprenticeship model.
🔍 What are other states doing? The mentorship model is in use in Oregon, Washington, and Nevada, and the diploma privilege model in Wisconsin.

Jackie Gardina biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

NCBE Study Aids Store: Offers various resources, including practice questions and study packs for the Multistate Bar Exam (MBE), Multistate Essay Exam (MEE), and Multistate Performance Test (MPT). Visit their store here: NCBE Study Aids Store
NextGen Bar Exam Information: Provides details on the upcoming changes to the bar exam format, including sample questions and a timeline for implementation. Explore more here: NextGen Bar Exam
You can find more information about the commission, its objectives, and updates on its activities on the State Bar of California’s website The State Bar of California

“To learn more about The Colleges of Law and the work being done visit collegesoflaw.edu/”

There is a 700-appellate case backlog in Los Angeles and only around 450 attorneys on the California Appellate Project—Los Angeles panel. CAP-LA attorneys Jennifer Hansen and Jennifer Peabody share how the rest of us can pitch in to assuage this gap in the administration of justice.

Why work as a panel attorney?

Get appellate experience.
Work with an experienced appellate attorney.
Flexible schedules, remote work, and mentorship.
While rates are modest, they may be increasing. And there are no client-trust concerns, and CAP-LA covers malpractice insurance.
Grow your reputation and rapport with colleagues and the bench.
Make a meaningful difference in clients' lives.

Tune in to hear how appellate attorneys can make a profound impact while building their careers and enhancing their reputations in the legal community.

Jennifer Hansen biography, LinkedIn profile, and Twitter feed.

Jennifer Peabody biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Below are links to all five project websites and the application for each. Panel Application Links:

First District Appellate Project: https://www.fdap.org/about/applying-to-the-panel/
Sixth District Appellate Project: https://sdap.org/about/panel-application/
Central California Appellate Program: https://capcentral.org/about/how-to-apply/
Appellate Defenders Inc: https://www.adi-sandiego.com/panel-attorneys/how-to-become-a-panel-attorney/
California Appellate Project - LA: https://cap-la.org/apply/

Examples of online resources for appointed attorneys are below:

Samples bank: https://capcentral.org/resources/motion/
Practice Guide: https://www.adi-sandiego.com/wp-content/uploads/2024/08/Manual-4th-Edition-Oct-2024.pdf
Appointed Appellate Attorney Community: www.cadc.net

Attorneys still wrestling with Microsoft Word to finish a brief need to be acquainted with Chris Dralla’s product Typelaw, the groundbreaking tool that lets attorneys turn plain text into fully formatted, cited, hyperlinked, local rule-compliant briefs.

If your practice depends on producing high-quality briefs, here is why you need Typelaw in your life:

Typelaw reduces non-billable time spent on technical aspects of brief preparation, allowing lawyers to focus on legal arguments.
Moving beyond Word, Typelaw lets you edit directly in the PDF to see instantly what the final, hyperlinked version will look.
We also compare and contrast Typelaw with similar and complimentary offerings from Clearbrief and CounselPress.

Chris Dralla’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.
Explore Type Law: Visit Type Law's website to learn more about their services for automating appellate and trial brief preparation.

In this episode, Tim and Jeff dive into the recent heated exchange between Fifth Circuit Judge Edith Jones and Georgetown Professor Stephen Vladeck at the Federalist Society’s Lawyers National Lawyers Conference. The debate centered on the tension between judicial independence and the criticism of judge shopping in high-profile cases.

Tim and Jeff analyze the arguments from both sides, unpacking the implications for the legal profession and the judiciary. They explore the balance between maintaining judicial impartiality and the tactical decisions lawyers make to secure favorable venues.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.
Upcoming Event:
A California Appellate Lawyers Podcast (CALP) meetup on December 10 at the Grand Central Market in Los Angeles.
Relevant Links:
1. The Continued Independence of the Judiciary [2024 NLC]
2. Elon Musk's Terms of Service Changes

Responding to a decades-long lack of court reporters, the Los Angeles Superior Court in September 2024 ordered that electronic recordings may be made. This arguably violates a statute prohibiting the use of electronic recordings. But Erin Smith, co-founder of the Family Violence Appellate Project, explains why the lack of meaningful access to an appellate record is a constitutional crisis. She explains how the General Order is carefully drawn to avoid any prejudice to the interests of the court-reporters association while providing opportunity to create the all-important appellate record.

Erin Smith’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

9/5/24 LASC General Order.
Letters to the Editor: Let judges hit 'record' when no court reporters are available, Erin C. Smith
Tim Kowal, A Day Without a Court Reporter
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Erin Smith’s Family Violence Appellate Project has over 50 published cases under its belt—which is even more impressive considering how difficult it is to get a good record in these cases. In this first part of our conversation, we discuss the FVAP’s work, and the kind of mistakes trial judges make in domestic violence cases.

Erin Smith’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

9/5/24 LASC General Order.
Letters to the Editor: Let judges hit 'record' when no court reporters are available, Erin C. Smith
Tim Kowal, A Day Without a Court Reporter
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Couldn’t make this year’s ClioCon? Don’t know why you would if you could? Jeff is on location in Austin, Texas, and reports in on the latest legal tech trends, like:

The death of the billable hour? A review of attorney tasks suggests 70% could be done with AI. This could mean more shops switch to flat fees. It could mean they increase their hourly rates. But if you’re not even in the AI game, you may soon find yourself among the dinosaurs.
Worried that AI will steal from your billing? Wisetime does the opposite—it tracks what you do so that you bill more time, not less. It’s a chatbot on steroids.
Clio Duo is another “gateway drug” to AI, giving attorneys and staff an AI assistant to fetch details from the Clio matters.

We also discuss the new Doxing Victims Recourse Act, Civil Code section 1708.89, which creates a cause of action for online doxing—publishing a person’s personal identifying information (including a photo) with the intent of causing harm to that person. Another dicey intersection between harassment and Free Speech.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Wisetime for Clio.
Clio Duo.
The Battle for Your Brain, the book by Duke Prof. Nita Farahany who spoke at Clio Con about neuro technology.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

None

In a (non)definitive survey of writing instruments, big-law attorney turned solo employer counsel Michelle Strowhiro reveals her pick for the best pen for lawyers.

Then we turn to the U.S. District Court of Texas ruling in Ryan LLC v. FTC, blocking an FTC rule that would ban non-competes. This rule would eliminate trade restraints already banned in California. What comes next?

Michelle Strowhiro’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The Supreme Court of California isn’t always interested in money disputes, but throw attorney misconduct into the mix and you get the City of LA v. Pricewaterhousecoopers reinstating a sanction for “egregious” city attorney’s office collusion totaling $2.5 million.

Angling for contractual attorneys’ fees in your defense? The recent Am. Bldg. Innovation v. Balfour Beatty Constr. case reminds attorneys to consider whether asserting the contract in an affirmative defense is enough, or if you need to file a cross-complaint.

We also discuss:

Family law contingency agreements are invalid.
Was the directed verdict for the NFL appropriate in the $14 billion antitrust case? The judge ruled that the plaintiffs’ expert opinion should have been excluded. But isn’t the remedy pretty clearly a new trial rather than JMOL?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

City of Los Angeles v. Pricewaterhousecoopers, LLP, Case No. S277211 (Cal. Supreme Ct. Aug. 22, 2024) (published). Previously discussed in “PMQ Declarations, Extortion & AI Judges”, and $2.5M Discovery Sanction Reversed Because Not Authorized by a Specific Statute, But Justice Grimes Pens a Strong Dissent.
Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees Am. Bldg. Innovation v. Balfour Beatty Constr. (D4d3 Sep. 3, 2024) No. G062471 [pub. opn.]
Wright v. Wright, Case No. B330901 (2d Dist., Div. 1 Aug. 23, 2024) (unpublished) via CalAttorneysFees.com
Judge Philip S. Gutierrez entered judgment as a matter of law for the NFL
Reductio ad arbitrium absurdum: Disney wants to kick a wrongful death lawsuit in Florida to arbitration.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Los Angeles Superior Court will now offer electronic recordings where a court reporter is not available. But not all courts have the equipment. And even if they do, by statute these recordings may not be used to create an appellate record. So what does it mean?

Also, the Supreme Court in Meinhardt v. City of Sunnyvale has confirmed that orders granting writs of mandamus are not appealable—you have to wait for the judgment.

So how did the Court of Appeal in Wastexperts, Inc. v. Arakelian Enters. reverse a pre-judgment anti-SLAPP order while leaving the judgment intact?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

the murder conviction against Adnan Syed, discussed on the podcast Serial, reinstating Syed’s conviction for the murder of Hae Min Lee.
LASC 9/5 General Order
Ben Shatz’s blog write up of the LASC electronic recording order
Meinhardt v. City of Sunnyvale
Are Anti-SLAPP orders “judgments”?. Wastexperts, Inc. v. Arakelian Enters. (D2d4 Jul. 11, 2024 No. B325299) [pub. opn.]
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

After discussing SCOTUS voting blocs and public perception, in part two of our discussion Adam Feldman rounds up the 2023-2024 term. We cover:

SEC v. Jarkesy, holding that 7th Amendment procedural rights apply in agency proceedings, and whether Adam is surprised at the voting alignment (conservatives pro, liberals con).
Loper Bright v. Raimondo, overruling Chevron, and what to make of the liberal bloc joining the government in both these administrative state cases.
CFPB v. Comm. Fin. Svcs Assn, holding that CFPB funding fits with history and tradition, and whether Adam was surprised that Justice Thomas broke with the conservative group to join.
Trump v. Anderson, holding the 14th Amendment did not disqualify Trump from the ballot, and whether Adam was surprised it was 9-0.
Fischer v. U.S., holding 18 USC 1512 (prohibiting congressional obstruction) does not apply to Jan. 6, and whether Adam was surprised that Justice Jackson joined, and Justice Barrett dissented.
Rahimi, holding the text, history, and tradition test supports civil restraining order disarmament, and whether Adam was surprised the court even took this case, and surprised that the court only issued GVRs on companion cases, despite there being so many Rahimi concurrences. (Akhil Amar, renowned constitutional scholar and an originalist of a liberal variety, has an interesting take on Rahimi at his podcast here.)

Adam Feldman biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Empirical SCOTUS, https://empiricalscotus.com/
Videos from this episode will be posted at Tim Kowal’s YouTube channel.
Legal Data Analytics | Optimized Legal Solutions (feldyfied.wixsite.com)

Adam Feldman watches Supreme Court trends: voting blocs both usual and unusual, numbers of concurring and dissenting opinions, and other analytical ways of predicting outcomes. In our discussion, we cover:

Recent polls disapprove of how the Supreme Court “is handling its job.” What does “handling its job” mean? Does it mean outcomes, or the decision-making process? And how does Adam rate how the Supreme Court is handling its job?
Is this a 6-3 court? Or a 3-3-3 court?
Is it fair to group justices along lines of “institutionalist” and “non-institutionalist,” as some experts have done?

We then tee things up to do a round up of the 2023-2024 term.

Adam Feldman biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Empirical SCOTUS, https://empiricalscotus.com/
Videos from this episode will be posted at Tim Kowal’s YouTube channel.
Legal Data Analytics | Optimized Legal Solutions (feldyfied.wixsite.com)

While the Supreme Court wrapped up its term, the Ninth Circuit had some interesting cases of its own. Carjacking is “nonviolent,” for-profit prisons are constitutional, and Covid vaccine religious exemptions are on the table. Practitioners might also look forward to focus letters and earlier panel notifications. All this and other recent cases and news.

Carjacking is nonviolent? Gutierrez v. Garland
Private prisons are not unconstitutional: Nielsen v. Thornell
Religious exemption to Covid vaccine mandate may proceed: split panel in Bacon v. Woodward
Arb costs denial reversed: Sanzone v. DCH Korean Imports, LLC
No meet and confer, get sanctioned. Gordon v. Chandler (Estate of Ambrose-Gordon)
A minute order is not a statement of decision. O'Neill v. Cara
Judge VanDyke’s “disgrantle”, U.S. v. Duarte aka Shorty
Assembly Member Garcia has proposed a bill to allow for the disqualification of appellate justices:AB-2125 Judicial officers: disqualification
In a recent column, Justice Bedsworth states he is Trying to Retire, Again

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Read the full article here: https://bit.ly/3yCDzeA

A ransomware attack hit the Los Angeles County Superior Court in July 2024, affecting e-filing services. Did you miss a filing deadline because of this? We discuss two Rules of Court that could help.

We also cover:

Are anti-SLAPP orders “judgments”?
Court of Appeal to litigants: Your adverbs are unwelcome here. Ok to say “The order is erroneous.” But not “The order is transparently erroneous.”
Appeal might be actually late, but constructively on time.
Two anti-tax initiatives struck down: one too broad, the other too narrow.
On HOA Christmas party ban, a split 9th Cir. panel with three opinions.
If you are “seriously annoying” you can get hit with a restraining order, but not for being regular annoying.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Lawyer Toolkit: Untimely Appeals May Be Excused If There Was a Mishap with E-Filing, discussing Garg v. Garg (2022) 82 Cal.App.5th 1036, 1041–1042
Are Anti-SLAPP orders “judgments”? Wastexperts, Inc. v. Arakelian Enters. (D2d4 Jul. 11, 2024 No. B325299) [pub. opn.] (Tim’s writeup)
Late appeal deemed constructively filed on time, In re Santos (D5 Jun. 6, 2024 No. F087859) [nonpub. opn.] (Tim’s writeup)
Keeton v. Tesla, Inc.: arb-killer late-fee penalty NOT preempted by FAA
Legislature v. Weber: Tax initiative held invalid because too broad
Loeber v. Lakeside Joint School District* Tax initiative held invalid because too narrow

Previously in part one, criminal-defense attorney Don Hammond explained why, post-Bruen, states may no longer impose discretionary constraints in concealed-carry permitting regimes. But will that change after the Supreme Court’s recent 8-1 decision in Rahimi, holding that a restraining order prohibiting a particularly violent actor from possessing firearms was consistent with the Second Amendment tests under Heller and Bruen? **

Rahimi, when attempting to comport it with Heller and Bruen, gets a bit confusing—so what are lower courts to do with it? But one thing Rahimi did emphasize is the actual violence Rahimi committed—so would California’s authorization of disarming restraining orders merely to protect “mental calm” pass muster? Then we circle back and ask: if the Legislature amended the CCW laws to make nondisclosure a ground for denying a CCW, would that pass muster under Rahimi?

The answer seemed easy a few weeks ago, but is suddenly a bit more difficult.

Don Hammond’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Don Hammond, Bad facts make bad law: Rahimi, Daily Journal, Jun. 27, 2024
New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022)
United States v. Rahimi, No. 22-915 (Jun. 21, 2024)
E.g., Parris J. v. Christopher U., 96 Cal.App.5th 108, 116 (Cal. Ct. App. 2023)
Tim’s article, SCOTUS approves disarmament on restraining orders for “physical safety” but suggests limits
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Justice Anita Earls of the North Carolina Supreme Court knows about some reforms that will improve our justice system. But she also knows about some that will provoke an unhappy response—including an investigation against her personally.

In this second half of our interview, Justice Earls talks about how she found herself under investigation for calling for judicial reform.

We previously asked Aliza Shatzman why the Legal Accountability Project is necessary: don’t judges police their own, we asked? The answer is: yes, but not in the way you’d hope.

Anita Earls’ wiki, LinkedIn profile, and Twitter/X feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

https://www.fd.org/news/lone-black-nc-supreme-court-justice-drops-suit-over-diversity-comments-probe-dropped
https://apnews.com/article/north-carolina-justice-ethics-drops-lawsuit-24763cfa64aca0fc58e559ca4ffe5cf9
https://www.nytimes.com/2023/08/31/us/north-carolina-supreme-court-anita-earls-bias.html
https://news.un.org/en/story/2024/02/1146202
https://apnews.com/article/north-carolina-supreme-court-justice-ethics-panel-b9ce0a7b9e5ab2c7dcbed02d6c74faed
Additionally, an interview she conducted with State Court Report and NYU Law Review: https://statecourtreport.org/our-work/analysis-opinion/conversation-justice-anita-earls-north-carolina-supreme-court
Episode 39 with Aliza Shatzman on the Legal Accountability Project.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Just because you’re law-abiding doesn’t mean you won’t need a criminal-defense attorney. There are more criminal laws in federal and California state law books than you could read in a decade. (I asked ChatGPT: if you printed them all out, they would be taller than the 24-story AT&T building in San Diego.)

Enter Criminal Defense Hero Don Hammond. In addition to his services on behalf of good people who made mistakes or find themselves abused by the system, Don is an expert in firearms training and licensing. In this first part of our discussion, we talk with Don about the brand new—and procedurally unique—post-Bruen concealed-carry permitting regime, which replaces the near-completely discretionary system with a “shall issue” procedure. In a recent writ of mandamus, the Superior Court ruled that merely failing to disclose a long-expired restraining order is not grounds to deny a CCW permit, because that is not one of the statutorily-enumerated grounds for denying a CCW.

Stay tuned for the second part where Don talks about the Supreme Court’s 8-1 decision in Rahimi, holding that a restraining order prohibiting a particularly violent actor from possessing firearms was consistent with the Second Amendment tests under Heller and Bruen. Rahimi, when attempting to comport it with Heller and Bruen, gets a bit confusing—so what are lower courts to do with it? But one thing Rahimi did emphasize is the actual violence Rahimi committed—so would California’s authorization of disarming restraining orders merely to protect “mental calm” pass muster? Then we circle back and ask: if the Legislature amended the CCW laws to make nondisclosure a ground for denying a CCW, would that pass muster under Rahimi?

Don Hammond’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Don Hammond, Bad facts make bad law: Rahimi, Daily Journal, Jun. 27, 2024
New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022)
United States v. Rahimi, No. 22-915 (Jun. 21, 2024)
E.g., Parris J. v. Christopher U., 96 Cal.App.5th 108, 116 (Cal. Ct. App. 2023)
Tim’s article, SCOTUS approves disarmament on restraining orders for “physical safety” but suggests limits
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Justice Anita Earls of the North Carolina Supreme Court knows about some reforms that will improve our justice system. But she also knows about some that will provoke an unhappy response—including an investigation against her personally.

In this first part of our interview, we discuss Justice Earls’ path from a 30-year civil rights attorney to supreme court justice, and many data- and experience-driven reforms that aim to alleviate prison loads, criminal dockets, and get juveniles reformed rather than mired in the penal system. We also discuss some positive civil-rights trajectories over her career (such as increased scrutiny of abusive police practices), and not-so-positive trajectories (such as qualified immunity, as ever, a parade of absurdities).

This will set us up to discuss how Justice Earls found herself under investigation for calling for judicial reform, which we’ll cover in part two.

Anita Earls’ wiki, LinkedIn profile, and Twitter/X feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

https://www.fd.org/news/lone-black-nc-supreme-court-justice-drops-suit-over-diversity-comments-probe-dropped
https://apnews.com/article/north-carolina-justice-ethics-drops-lawsuit-24763cfa64aca0fc58e559ca4ffe5cf9
https://www.nytimes.com/2023/08/31/us/north-carolina-supreme-court-anita-earls-bias.html
https://news.un.org/en/story/2024/02/1146202
https://apnews.com/article/north-carolina-supreme-court-justice-ethics-panel-b9ce0a7b9e5ab2c7dcbed02d6c74faed
Additionally, an interview she conducted with State Court Report and NYU Law Review: https://statecourtreport.org/our-work/analysis-opinion/conversation-justice-anita-earls-north-carolina-supreme-court
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

We have a few big cases to cover:

The Supreme Court, 9-0, guaranteed continued access to abortion pills.
A 9th Circuit split panel, meanwhile, allows a challenge to a Covid-19 vaccine mandate to proceed, challenging Buck v. Bell forced sterilization-era public health precedent.
And a get-out-of-arbitration-free card case get reversed on FAA grounds, holding the legislature may not insist that courts interpret arbitration contracts different from other kinds of contracts.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.
Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.]
Courts cannot limit 170.6 challenges by local rule Lorch v. Superior Court (D4d1 May 16, 2024 No. D083609) [pub. opn.]
SCOTUS on Abortion Pill - Food & Drug Admin. v. All. for Hippocratic Med. (June 13, 2024, No. 23-235)

John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. In the previous episode we discussed why it was controversial. (Short version: because the Court of Appeal, sub silentio, thumbed its nose at the Supreme Court and concluded that a missing finding required by statute gives you a an automatic get-a-new-trial-free card.) In this second part of our discussion, we discuss analogous situations with the Racial Justice Act, and in the example of family law financial disclosures—where in a closely analogous situation the Court of Appeal held exactly the opposite of Abdelqader.

John explains what attorneys are supposed to do with two conflicting authorities—with one of them being the Supreme Court. Hint: you have both arguments available to you, but as an attorney, unlike the Court of Appeal, when the Supreme Court has rejected your argument you have to say so.

John Sylvester’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Abdelqader v. Abraham
F.P. v. Monier
Marriage of Burger
Jeff and I recently discussed whether the Racial Justice Act is unconstitutional. (See Tim’s writeup here.)
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. Why was it controversial? Because the Court of Appeal thumbed its nose at the Supreme Court, which had held in F.P. v. Monier that just because the trial judge forgets to make a required written finding you don’t get an automatic get-a-new-trial-free card. Abdelqader held that, in custody matters, you do get an automatic get-a-new-trial-free card.

In this first part of our discussion, John lays out the all-important statement of decision process, and the constitutional mandate that led the Supreme Court to hold that a defective statement of decision doesn’t give you an automatic get-a-new-trial-free card.

That sets up part two of our discussion in the next episode in which we discuss analogous situations with the Racial Justice Act, and in the example of family law financial disclosures—where in a closely analogous situation the Court of Appeal held exactly the opposite of Abdelqader. John explains what attorneys are supposed to do with two conflicting authorities—with one of them being the Supreme Court.

John Sylvester’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Abdelqader v. Abraham
F.P. v. Monier
Marriage of Burger
Jeff and I recently discussed whether the Racial Justice Act is unconstitutional. (See Tim’s writeup here.)
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. In the continuation of our discussion in the last episode, Carl Mueller shares his top 10 tips to avoid them and win them. The tips include:

See a “red flag”? Trust your gut, and run.
Check your retainer agreements for compliance with Business and Professions Code sections 6146, 6147, and 6148. And fully describe your financial arrangement, including rate increases and trial deposits.
Did you make important case disclosures to the client on a phone call? Put that in your billing statement. The client will be deemed to have acknowledged you made the disclosures.
Before sending you the fee arb notice, be aware of the one-year malpractice statute of limitations!

Carl I. S. Mueller’s biography, LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. Carl Mueller litigates these billing disputes and explains what attorneys should know to avoid them and to win them:

All the billing disputes are basically the same, so…
Spot the “red flags.” (You know what they are.)
If you do get into a dispute, know the 2021 Pech v. Morgan case—and get an expert. We discuss.
Haven’t brushed up on Business and Professions Code sections 6146, 6147, and 6148 in a while? Read them. Do them. An ounce of prevention is worth a pound of cure.

In the next episode, we will cover Carl’s top 10 tips for avoiding a fee dispute.

Carl I. S. Mueller’s biography, LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Pech v. Morgan (2021) 61 Cal.App.5th 841
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Appellate justices’ research attorneys are the ones advising the justices about your arguments and writing the opinions. We discuss 10 tips offered at a recent Orange County Bar Association event. Here is a taste:

😮 Biggest surprise: The Court of Appeal wants hyperlinked briefs. They want to be able to click on your record cites to confirm your fact statements. If you wondered how to get the partners at your firm to get you a Clearbrief subscription, tune in.

😡 Start your brief by identifying the judgment or order you’re challenging. This is a court of review, after all—so tell them up front what you want them to review.

📃 Read your Table of Contents. The justices do. So make it persuasive.

🥴 We also discuss the recent Masimo v. Vanderpool Law Firm case, as the Court of Appeal continues to make examples of uncivil lawyers.

The recurring theme is: build trust. Good cites, organization, and civility build trust. Bad cites, poor organization, and incivility can get you sanctioned.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Last time, we set the table with special-education attorney Tim Adams to discuss the big 9th Circuit win for parents of kids with IEPs (individualized education protocols). Now we dig in to Irvine Unified School District v. Landers and Gagliano.

After covering the fact that the school district, to get out of helping a dyslexic student get the help she needed, spent over $1.13 million on its attorneys in over five-years of litigation involving a “trial by experts.” In this discussion, Tim Adams explains that IEPs are a constitutional right, so school districts are not legally permitted to consider their costs. Yet school district spokespersons take to the press to decry how these lawsuits are breaking the bank. So what is going on here?

Tim Adams’ biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Irvine Unified School District v. Landers and Gagliano, No. 22-55286
Why One School District Spent $1 Million Fighting a Special-Education Student - WSJ
Episode 69, Special Education Law with Tim Adams
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

A big 9th Circuit win for parents of kids with IEPs (individualized education protocols) came down recently, and the prevailing attorney is podcast alum Tim Adams.

In the first of this two-part discussion, we set the table to discuss Irvine Unified School District v. Landers and Gagliano. For example, to understand why parents trying to help their dyslexic daughter needed to make a federal case out of it, you should know:

💵 The school district spent over $1.13 million on its attorneys (at hourly rates up to $1300!).

🥼 The hearings in these cases are often a “trial by experts.”

🙈 IEPs are a constitutional right, so school districts are not legally permitted to consider their costs—but obviously they do. So how does that work?

⚔️ Parents wrongfully denied an adequate IEP have no recourse but to get their children the resources they need—out of pocket—and then fight for reimbursement.

Tim Adams’ biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Irvine Unified School District v. Landers and Gagliano, No. 22-55286
Why One School District Spent $1 Million Fighting a Special-Education Student - WSJ
Episode 69, Special Education Law with Tim Adams
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants.

But don’t commit a “super snap” removal. That’s when you remove before the complaint is officially filed. The 9th Circuit just rejected those.

We discuss Casola v. Dexcom, Inc., and how to learn about lawsuits before they are even filed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024)
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if that happens, the Legislature has declared not only that this is against law, but operates as a get-a-new-trial-free card.

But the California Constitution prohibits get-a-new-trial-free cards. Instead, no judgment may be reversed—even if the judgment is rife with error—unless the error results in a “miscarriage of justice.”

Consider how these opinions might be reconciled:

People v. Uriostegui (D2d6 Apr. 5, 2024 No. B325200) ___ Cal.App.5th ___ held violations of the Racial Justice Act are per se reversible.
In People v. Simmons (2023) 96 Cal.App.5th 323, Justice Yegan argued in dissent that a attempting to bind the courts to a legislative definition of the constitutional term “miscarriage of justice” violates the doctrine of separation of powers.
The Supreme Court in F.P. v. Monier (2017) 3 Cal.5th 1099 held that, although the Legislature mandates that trial courts make express findings on principal controverted issues, a court’s failure to do so is not per se reversible because the Constitution first requires a finding that the failure worked a miscarriage of justice.
In Abdelqader v. Abraham (Cal. Ct. App. Mar. 10, 2022 No. D078652) --- Cal.Rptr.3d ----, failure to make the statutorily-required findings under F.C. 3044 to support awarding custody to a person previously found to have committed domestic violence was per se reversible.
In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519 held that, although the Legislature purported to make inadequate disclosures in property-division cases per se reversible, the Legislature cannot provide “a ‘get-a-new-trial-free’ card” in light of the constitutional requirement to show a miscarriage of justice.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Tim’s writeup on Oriostegui, The Racial Justice Act Is Unconstitutional

Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include:

👉 Know your appealable issues—appeal now, or lose it forever!

👉 Request a statement of decision. Don’t need to, you say? Judge already gave a tentative opinion, you say? You really need to hear this advice.

👉 Get the standard of review right, and use this tip when challenging discretionary rulings.

👉 Brief like an appellate attorney: Put cites on everything. Put headers on everything.

👉 Make a record!

And five more!

One thing we didn’t cover: Making Family Code § 2122 set-aside motions. Definitely consider that in your case.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

Good example of the importance of the statement of decision: Abdelqader v. Abraham (Cal. Ct. App. Mar. 10, 2022 No. D078652) --- Cal.Rptr.3d ---- [F.C. 3044 presumption of unfitness triggered by prior DV finding may be rebutted only by written findings—lack of SOD required reversal].
- Tim’s writeup on Abdelqader here. One of CALP’s top cases here.
- But Abdelqader was not followed in Marriage of Burger.
- Abdelqader was followed in Hutchins.
Tim’s article on sanctions for appellate briefing defects: “Attorney who ignored appellate rules hit with $50k in sanctions”. Case is Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.).
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss:

📰Free Speech on Government Social Media: Lindke v. Freed (Mar. 15, 2024, No. 22-611), notable for being short and unanimous, holds that, when a public official talks about official business on a private social media page, it’s no longer a private social media page.
⚖️Jury waivers: If you waive, and the trial judge declines to set aside the waiver, it’s game over: any right to appeal is symbolic only.
🤷Also symbolic: the different between waiver and forfeiture. The difference, it is said, is that waiver is intentional. But the Court notes that waiver can also be unintentional. That pretty much obliterates any distinction between the terms, save for spelling.
👎The facts were based solely on filed documents, not testimony. So appellate review is de novo, right? Wrong. Appellate courts don’t defer to fact-finding because the trial court is better at it. They defer because it’s not the appellate court’s job description.
⛪A Church of Scientology case involving Leah Remini is poised for an anti-SLAPP appeal.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Lindke v. Freed (Mar. 15, 2024, No. 22-611)
TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368)
Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.].
Remini v. Church of Scientology
“Motion granted, Bimbo!” — the Candi Bimbo Doll case; Wood v. S.F. Cnty. Superior Court (D1d2 Mar. 14, 2024 No. A168463) [cert. for pub.]
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is very hard to do.

We discuss his five observations about why a full-time appellate practice is hard:

Breaking in to the practice is very hard.
Don’t expect to get full-time work writing appellate briefs—you’re going to have to mix it up some in the trial court.
Once you’ve done the very hard work modifying expectations and breaking into the practice, get ready: maintaining it full-time is even harder.
Which is why you are going to have to make some trade-offs.
The business of law was not designed with an appellate practice in mind, so doing high-end sophisticated appeals all the time is no one’s idea of a sound business model.

Raffi Melkonian’s biography, LinkedIn profile, and Twitter/X feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Raffi’s X thread, “5 ideas for law students and associates about appellate practice.”
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration:

$50k sanctions against appellant for blowing appellate procedure.
Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal’s hint, so writ issued. (But the trial judge was right to let the writ issue.)
Anti-SLAPPs don’t require a line-by-line list of allegations like regular strike motions. But there’s a split on this.
Do you need appellate specialization credits? Maybe not as many as you think if you use Lisa Perrochet’s tip.

We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Attorney who ignored appellate rules hit with $50k in sanctions in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.)
Denying an untimely but meritorious motion for reconsideration was reversible error Contreras v. Superior Court (Champion Dodge, LLC) (D2d5 Feb. 16, 2024 No. B331737) [nonpub. opn.]
Splitting from SLAPP precedent, appellate court holds you don’t have to do a line-by-line list of allegations challenged in an anti-SLAPP motionMiszkewycz v. County of Placer (D3 Jan. 25, 2024 No. C095426).
Racial Justice Act motion requires case-specific facts, not mere statistical analysis Austin v. Superior Court (D2d2 Jan. 25, 2024 No. E080939)
Read the full article at the KowalLawGroup.com blog here

There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial clerks, but it needs judges to pledge that they will invite their clerks to fill out the surveys.

Uncomfortable taking the pledge publicly? No problem: please invite your clerks to do the survey anyway.

Why should you support the Legal Accountability Project? Judge Nazarian explains:

The laudable work of gathering data to facilitate quality clerkships is nothing new. Law schools do it. But that means the data is fragmented and incomplete. The LAP centralizes it.
The data is credible. Only confirmed clerks can submit surveys.
The data is confidential. Only clerkship applicants can access it.
Still, many clerks may feel insecure about submitting a survey without their judges’ endorsement.

If you are a judge, please sign the pledge, and encourage your feeder law schools to support the Legal Accountability Project’s work.

If you are a clerk or a former, submit a survey.

If you are an attorney, tell your alma mater that, next time you sign a check, you’d like to know if they support the Legal Accountability Project.

Judge Douglas R. M. Nazarian’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Legal Accountability Project
Legal Accountability Project — Post-Clerkship Survey
Ep. 39 and ep. 98 w/ Aliza Shatzman
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road, you have lower energy, weakened drive, and diminished alertness.

If you won’t do it for yourself, get healthy to crush your enemies better.

Leslie Porter’s biography and LinkedIn profile and email, leslie@leslieporter.com

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.”

There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.) and Certified Bankruptcy Specialist Stella Havkin what they mean:

If you arguably misstate fact or law, is that a reportable event? Answer: Assume it is.
What will this do to collegiality in the profession? Answer: Nothing good.
If a partner committed indiscretions with the trust account, does it matter that you didn’t know about it? Answer: Don’t count on it.
Every other state already has a snitch rule. How much guidance do they provide on its application? Answer: Very little.
Will the snitch rule drive in reports to prevent Girardi-type scandals? Answer: The Bar had received some 200 reports about Girardi, so it’s unclear what more reports would have done.
But the snitch rule is a good idea, right? Answer: Check back in after a few years.

And something you probably didn’t know: The reason California doesn’t follow the ABA Model Rules is because they are rules of ethics, where California’s Rules are rules of discipline. We discuss the difference in theory (interesting!) and the difference in application (not much, actually).

Judge Meredith Jury’s (Ret.) biography.

Bankruptcy Specialist Stella Havkin’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Rules of Professional Conduct, rule 8.3, “Reporting Professional Misconduct”
Ethics Spotlight: The New ‘Snitch Rules’, California Lawyers Association, Nov. 2023.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Just a few years out of law school, Kyle O’Malley won a landmark case in the Supreme Court of California. The employer’s screening service in Raines v. US Healthworks Medical Group, 15 Cal.5th 268 (2023) used a generic questionnaire asking about menstrual cycles, hemorrhoids, hair loss, and all sorts of fool questions not tailored to the specific job (or to any job, for that matter). Even though the agent was not the “employer,” the Court held that business agents performing employment-related tasks for other companies can be held liable for discrimination under California’s Fair Employment and Housing Act (“FEHA”). The decision has been described as a “landmark” victory for workers, with the California Supreme Court listing it as one of four “high profile cases” decided in 2023.

We also talk with appellate legend Randy Erlewine. All California litigators owe him a debt for the “get out of jail free” card case of Carter v. Superior Court (1990) 218 Cal.App.3d 994, allowing a deposition to get documents if you missed the deadline to move to compel on written requests. We discuss developing a cutting-edge practice and building a firm to a vision.

Kyle O’Malley’s biography and LinkedIn profile.

Randy Erlewine’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

CLA’s Diversity, Equity, and Inclusion Committee
Raines v. U.S. HealthWorks Med. Grp., No. S273630 (Cal. Aug. 21, 2023)
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court.

We also discuss that recent panel that departed from an earlier decision, ruling it was “clearly irreconcilable” with recent Supreme Court precedent, even if it arguably wasn’t.

And why was that homelessness case—which ultimately came down to a procedural question of waiver—published? Did Judge Bumatay, who authored the dissent, request publication? We indulge in some rank speculation.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Should Anti-SLAPP denials be appealable in federal court? The 9th Circuit will take another look. Panel decision in Martinez v. ZoomInfo Techs. (No. 22-35305 (9th Cir. Jan. 18, 2024)).
Rep. Raskin’s anti-SLAPP bill
Climate Change on Trial podcast
Panel rejects 9th Cir. precedent by saying it was overruled—even though it wasn’t Munoz v. Superior Court of L. A. Cnty., No. 22-55941 (9th Cir. Jan. 9, 2024)
In San Fran homelessness case in 9th Cir., two stark opinions about waiver Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024)
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable.

Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published opinion came down hard against the school that includes in the separate statement all narrative and background facts.

Tim and Jeff discuss.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.
SB 662, to create electronic recordings of court proceedings, fails.
In San Fran homelessness case in 9th Cir., two stark opinions about waiverCoal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024)
Beltran v. Hard Rock Hotel Licensing, Inc., No. G062736 (Cal. Ct. App. Dec. 5, 2023)
Justice Baker is not a big fan of Costco Gylfie v. Costco Wholesale Corp. (D2d5 Dec. 27, 2023 No. B320694 [nonpub. opn.]

California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct.

And some recent cases:

The definitive answer whether orders on motion to enforce settlements are appealable is: Nobody has any friggin’ idea.
And the answer on how to get review of orders on contempt attorneys' fees is pretty much the same.
And after scouring cases for months, Tim finally found a reversal based on an evidentiary ruling…and it’s unpublished. And there’s a dissent. (And the dissent may be better reasoned than the majority.) So challenges to rulings on evidence are still losers.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Order granting motion to enforce settlement held not appealable, furthering a split of authority, House v. Skanska U.S. Civil W. Cal. Dist. (D4d2 Jan. 5, 2024 No. E079363) [nonpub. opn.]
State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty, Regents of the Univ. of Cal. v. Superior Court (D3 Dec. 29, 2023 No. C099588) [nonpub. opn.]
Yes, you can use a motion in limine as a motion for summary judgment, Memula v. Mojave Radiation Oncology Med. Grp. (D4d2 Dec. 14, 2023 No. D082262) [nonpub. opn.].
See other Items at the KowalLawGroup.com blog here: https://bit.ly/3SjrXnI
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including:

🔧 Look for common defects in the moving party’s separate statement
🤜 Push back on the moving party’s showing. It is often not up to snuff. Drive that point home before turning to the opposing party’s burden.
✒️ Elevate your writing—an MSJ is a trial on paper, but great trial skills often do not translate.

We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.”

Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical maverick Jack Metzler. And then there are our legal scholars and authors Stephen Vladeck, Jeff Kosseff, and Eugene Volokh.

After talking about some great guests, we talk about some bad cases. Why don’t we talk about good cases? We discuss that, too.

We also talk about some of our takeaways from our interviews about other states’ appellate rules. We grumble about some of the rules in California, but we have some things to recommend to other states. But also some things we could learn.

Then we turn to some of the legal tech we can’t do without. Topping the list: ClearBrief (via Jackie Schafer), followed by CoCounsel.

Hope to have you along in 2024!

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

The Coming Changes to Med-Mal Caps, with Ben Ikuta
Using ChatGPT responsibly, with Jayne Woods
Should AI Replace Law Clerks? Yes, says Adam Unikowsky
From BigLaw to Solo: Carl Cecere on the freedom to take significant cases
Racking Up Appellate Argument Experience with Chris Schandevel
Cory Webster’s 9th Circuit Dispatches
See other Items at the KowalLawGroup.com blog here: https://bit.ly/3viYwJr
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same goes for “bullying,” “cyberbullying,” “hate speech,” etc.—especially when no physical violence threatened or happening. The result is that many restraining orders not only prevent the subject from speaking TO the plaintiff, but from speaking ABOUT the plaintiff, and last INDEFINITELY.

Here are the key issues to spot the next time a client calls you about a restraining order or injunction that affects free speech:

Raise First Amendment challenges, and get familiar with the precedent by reading Prof. Volokh’s articles.
Look to see if the restraining order merely prohibits speaking to the plaintiff, or goes further and prohibits speaking ABOUT the plaintiff. That’s a big difference that implicates the First Amendment.
If the subject of a restraining order is facing contempt, consider raising the unconstitutionality of the order as a collateral bar. An unconstitutional order cannot be a basis for contempt, and unconstitutionality is never waived.

Prof. Eugene Volokh’s biography, LinkedIn profile, and X/Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”, 107 Nw. U. L. Rev. 731 (2013)
Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases), 45 Harv. J. L. & Pub. Pol. 147 (2022).
Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)
Chan v. Ellis, 296 Ga. 838 (Ga. 2015)
"The First Amendment and Refusals to Deal” via Reason
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Employment and class-action attorney Glenn Danas has argued 49 appeals in state and federal appellate courts throughout the country, including a current streak of eight consecutive reversals. Glenn talks with us about litigating the landmark Iskanian case, and how he turned the panel that initially issued a 148-page tentative against his client.

Glenn also shares:

Appeals on contingency? Yes, it can work, in the right case.
About that ABC test: yes, some workers would prefer to be contractors, but more would rather be employees.
About the judicial bias for arbitration: the original purpose was for those oddball cases—think shipwrecks—where jurisdiction and venue were uncertain, not for every garden-variety lawsuit.

Glenn Danas’s biography, LinkedIn profile, and X (fka Twitter) feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Iskanian v. CLS Transp. Los Angeles, LLC
Fuentes v. Empire Nissan, Inc. (Dave Ettinger’s write-up)
LA Times on Beachbody class-action
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Turns out you CAN shout “fire” in a crowded theater, and lots of other lies besides—unless the government meets a heavy burden, that is. The author of four books and more than 20 academic articles, First Amendment scholar and Naval Academy associate professor Jeff Kosseff makes the case for the freedom to speak freely, and even to tell lies, free (mostly) from threat of state sanction. Our discussion covers:

The “marketplace of ideas” is better than the government at separating truth from lies.
Why every other state and Congress should just copy-and-paste California’s anti-SLAPP statute into their code books.
Is there a free-speech right to ChatGPT, if there’s no human speaker? Yes—there is not just a right to make statements, but also to receive them.
Jeff was surprised at the critical reaction to his thesis that there may be a right to lie. But thankfully the courts have mostly stood by the First Amendment’s robust protections, receiving an B+/A- grade from Prof. Kosseff.

Jeff Kosseff’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Jeff Kosseff’s book is Liar in a Crowded Theater.
The California statute prohibiting doctors from expressing opinions contrary to official medical policy as concerning vaccines and perhaps other topics was enjoined by the district court in early 2023: https://www.reuters.com/business/healthcare-pharmaceuticals/california-law-aiming-curb-covid-misinformation-blocked-by-judge-2023-01-26/.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent.

Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited as precedent.

We also discuss:

Have a short trial? Volunteer to be timekeeper. Otherwise, your request for a statement of decision may be deemed untimely under the strict rules for trials under 8 hours.
Suing for unfair business practices? Double check standing based on “injury in fact,” and consider the conflicting arguments in the majority and dissent in Lagrisola v. North American.
Opposing counsel stepping over the line of “zealous advocacy”? Court of Appeal calls out counsel in a recent case, but no sanctions—perhaps because respondent did not file a motion?
A strange example of a moot appeal leading to a summary REVERSAL.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

*Can a respondent forfeit issues by failing to brief them? A bizarre opinion says yes.* Baltazar v. ACE Parking Mgmt.** (D4d1 Oct. 26, 2023 No. D081483) [nonpub. opn.]
*Failing to log the length of trial leads to appellate loss.* Lewis v. Reptile Factory, LLC** (D2d3 Oct. 12, 2023 No. B324197) [nonpub. opn.]
Dissent would invalidate loan where lender is unlicensed. Lagrisola v. North American (D4d1 Nov. 3, 2023 No. D080758)
*“Bulldozer” advocacy moves dirt but not minds.* Tedesco v. White** (D4d3 Oct. 27, 2023 No. G061197) [nonpub. opn.]
*Where a moot appeal means summary REVERSAL.* People v. Pickens** (D2d7 Nov. 9, 2023 No. B320704) [nonpub. opn.]
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Trial resulted in a sizable judgment against your client. You know to stay judgment enforcement you have to post a bond, but what, exactly, does that mean? And how do you do it?

Enter Dan Huckabay from Court Surety Bond Agency. We sit down with Dan and ask him how we attorneys can be a hero for our clients by knowing a few key things about appellate bonds, such as:

Plan ahead: Before judgment is entered, give the client time to set aside collateral for the bond.
Manage expectations: Judgment interest in California is a hefty 10%, and the bond premium ranges from a quarter percent to 4%, with most premiums being about 1%.
Consider a letter of credit: If the client has a strong relationship, the bank may issue a letter of credit—which avoids the need to tie up collateral.
Was the judgment amended to add fees and costs? Instead of getting a new bond, consider a rider or a separate bond.
Don’t wait! There’s no deadline to post a bond, but waiting can lead to assets getting seized or liened on.

Dan Huckabay’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Ep. 46: Time to Collect: Joseph Chora on the Most Important but Least Understood Area of Law
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Ryan McCarl, author of the latest book on legal writing, Elegant Legal Writing, sits down with us to discuss why now, more than ever, attorneys need to elevate beyond ChatGPT and distractions to rise to our role as teachers of the law. Ryan offers these actionable tips:

🖋️ “Defer editing” and “second-guessing” until a later draft. Don’t be committed to your first draft. Just get into a flow state—keep the cursor moving!

🧠 Your reader allots you a very limited attention span or “working memory.” Budget wisely by cutting “research dumps,” and by using direct, familiar language.

📗 Don’t cite every authority. “The quality of your citations matters more than their quantity.”

👨‍💻 Make tech support your writing. Use keyboard shortcuts. Use text expansion. Get efficient. What would you think of a tradesperson who doesn’t understand the tools of the trade?

What is Ryan’s stance on the “cleaned up” parenthetical? You will have to listen to find out!

Ryan McCarl’s bio, Elegant Legal Writing product page, Elegant Legal Writing blog, Twitter, and LinkedIn.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Purchase Elegant Legal Writing.
Episode 24 with Ryan McCarl.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples:

😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible.

😎 If the court refuses to provide a statement of decision on key issues, that is a good opening to get a reversal.

😎 If the court judges a party’s credibility based on whether they use an interpreter, that’s reversible error.

😎 If the court issues a restraining order based on a single act, that’s reversible error.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Refusing an evidentiary hearing on contested probate matter is error, and possibly structural error: Barbey v. Pnc Bank, N.A. (D2d6 Oct. 10, 2023) No. B325472 (nonpub. opn.)
Lack of statement of decision leads to reversal: Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550) [nonpub. opn.]
Arbitrator reversed for basing credibility on use of interpreter: FCM Invs. v. Grove Pham, LLC (D4d1 Oct. 17, 2023) No. D080801.
Restraining order against an attorney must be based on multiple instances of non-litigation conduct: Hansen v. Volkov (D2d7 Sep. 18, 2023) No. B311524 (cert. for pub.)
You still need a reporter's transcript even if nothing happened at the hearing: Olague v. United Care Facilities, LLC (D2d5 Sep. 29. 2023) No. B323075 (nonpub. opn.).
After Adolph v. Uber, parties “accept the inevitable” and stipulate to reverse: Stiger v. Providence St. Joseph Health, No. B326999 (Cal. Ct. App. Oct. 20, 2023)
Ross v. Seyfarth Shaw LLP (Sep. 29, 2023, B312337) [pp. 26-27]
Landlord’s counsel sanctioned for brief with made up cases
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits.

We discuss:

Gun Rights: The 9th Circuit used a “comeback” procedure to send a case back to the same en banc panel that heard the case before the Supreme Court’s new Bruen test. The Procedural Trick: Judge Nelson says this “disenfranchises” other circuit judges who will be cut out of any say on how the old panel approaches the new Bruen test.
Abortion Rights: After a 3-judge panel granted a stay motion, thus staying a district court injunction of Idaho’s abortion ban, the 9th Circuit voted to rehear the matter en banc, and thus re-implemented the district court’s injunction (meaning abortions may go forward despite the law). The Procedural Trick: Now that the en banc has taken up the motion, it will likely hold on to the case on the merits, too. That means expedited briefing and decision, and no possibility of further en banc review.
En banc review granted where the 3-judge panel vacated a sentence because a prosecutor breached a plea a greement.
En banc review denied, despite 11 judges (very close to a majority) who would have granted.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Gun Rights: Duncan v. Bonta, No. 23-55805, at *6 (9th Cir. Oct. 10, 2023)
Judge Van Dyke’s cheeky “concurrence” to his own majority decision last year in McDougall v. County of Ventura. (Ep. 26.)
Suspended Judge Newman Discusses Her 'Proclivity of Dissenting' at ABA Event
United States v. Idaho, No. 23-35440 (9th Cir. Sep. 28, 2023)
United States v. State, No. 23-35440 (9th Cir. Oct. 10, 2023)
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why the 9th Circuit is leaving the CM/ECF system, in favor of a new, more secure, and fully web-based (not plugin-reliant) system called the Appellant Case Management System, or ACMS.

The 9th Circuit is also saying goodbye to remote oral arguments. Starting January 2024, all oral arguments will be in-person, unless you make a showing of hardship.

Want meaningful work and oral argument experience? Apply to the 9th Circuit Pro Bono Program.

We discuss other 9th Circuit inside baseball, like hyperlinked briefs.

Susan Gelmis’s LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Here is the link to the efiling in ACMS page that has information and instructions and training videos about the new system https://www.ca9.uscourts.gov/efiling/acms/
Administrative Order Regarding ACMS: https://cdn.ca9.uscourts.gov/datastore/general/2023/06/16/Admin-order-final-June-2023.pdf
ACMS Portal: https://ca9-portal.powerappsportals.us/
Oral Argument Protocols here.
Here is a link to information about the pro bono program: https://www.ca9.uscourts.gov/probono/
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The one sure thing your law-school loans purchased is instant recall of the fact that “federal courts are courts of limited jurisdiction.”

But not as limited today as when you signed your promissory note. We discuss Impossible Foods Inc. v. Impossible X LLC, the recent 9th Circuit decision holding that specific jurisdiction over a defendant may be based on general historical contacts, even though not connected to the claims in the case. Judge Van Dyke dissented, calling the majority’s holding “potentially the most radical reimagining and expansion of specific jurisdiction in decades.”

We also discuss:

Impeachment evidence improperly excluded at trial? Published authority says this is per se reversible, but a new case calls it harmless error. It’s not published, but its reasoning is sound.
Seeking costs-of-proof attorney fees because your adversary denied your RFAs? Some cases grant these fee motions liberally, but two recent cases caution that more precision is needed.
Appealing on a pure issue of law? You still need an oral record on appeal. Denial of petition to compel arbitration affirmed because of the lack of a reporter's transcript.
Startling: Ex-husband took out a life insurance policy on wife, naming himself beneficiary. Also startling: Court ordered him to change the beneficiary to wife’s favorite charity, and keep the policy current.
Uncivil attorney got a 40% fee cut. “Incivility between counsel is sand in the gears. … Excellent lawyers deserve higher fees, and excellent lawyers are civil.”

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent. Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023).
Exclusion of critical impeachment evidence held harmless error because the totality of evidence supported the judgment. People v. Bingham (D1d5 Sep. 26, 2023) No. A163112 (nonpub. opn.).
Uncivil attorneys get a 40% fee haircut: Snoeck v. ExakTime Innovations, Inc., (D2d3 Oct. 2, 2023) No. B321566 (nonpub. opn.), discussing Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734.
Olague v. United Care Facilities, LLC, No. B323075 | Casetext
Parris J. v. Christopher U. (Oct. 4, 2023, B313470)
Videos will be posted at Tim Kowal’s YouTube channel.

Have an appellate oral argument coming up? We discuss tips shared by top appellate attorneys how to prepare for and give oral arguments. Some tips include:

🗣️ Anticipate the panel’s questions when you can, but…

🗣️ …be prepared to respond when you don’t know the answer.

🗣️ Be prepared to answer: “What is your rule” for answering the key statutory or legal question.

🗣️ Give direct answers to the panel’s questions.

🗣️ Don’t read your argument. The judges have enough of what you’ve written. Now they want to hear what you say.

🗣️ Give a different spin—don’t just repeat what you said in briefing.

🗣️ Concede weak arguments.

🗣️ Just be a friend of the court: be polite, don’t interrupt, and try to help the court do its job solving the problems in your case.

Kyla Dayton’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Tim’s LinkedIn post “crowd-sourcing” oral argument tips.
The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion, with MC Sungaila.
Concede Weak Arguments, Gain Credibility, Says Justice Lambden
Justice Thompson on Effective Oral Arguments: Give a “Different Spin”—And Answer Questions.
Don’t read from your notes, via Adam Unikowsky relating a story when the Supreme Court stopped an advocate by asking, “Counsel, are you reading this?”
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Anti-SLAPP motions are sometimes called early summary judgment motions. But the fact that they are “early” is why they are so powerful: not only do they provide defendants a quick way to defend against claims that involve speech, they force the plaintiff to prove its case without any discovery.

On this episode of the California Appellate Law Podcast, we discuss a recent 9th Circuit decision holding that denials of anti-SLAPP motions are immediately appealable as collateral orders. We also discuss:

Judge Bress’s criticism of the cases treating anti-SLAPP denials as collateral.
Anti-SLAPP motions were designed for the powerless, but the City of Inglewood successful used it to strike an employee’s retaliation complaint.
How you can lose your arbitration if you don’t pay the arbitrator fees in 30 days—and “the check is in the mail” doesn’t cut it.
A judgment issued in a sum not previously noticed is void and may be set aside at any time, but a sanctions order issued without notice is merely voidable, and may be set aside only within 6 months.
Filing a notice of appeal in Los Angeles County Superior Court? Now you can pay your fees online. (Finally!)

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Doe v. The Superior Court (D1d3 Sep. 8, 2023) No. A167105 (Tim’s writeup).
Martinez v. ZoomInfo Tech. Inc., No. 22-35305 (9th Cir. Sep. 21, 2023) (Tim’s writeup).
In re the Marriage of Jensen (D2d2 Sep. 5, 2023) No. B320565 (nonpub. opn.) (Tim’s writeup).
United States v. Sapalasan, No. 21-30251, 2023 U.S. App. LEXIS 23820 (9th Cir. Sep. 7, 2023) (Tim’s writeup).
New payment option for paying $775 appellate fee
How 'Purely Legal' Issues Ruling Applies To Rule 12 Motions
Brown v. City of Inglewood, No. B320658 (Cal. Ct. App. May 31, 2023)
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Among the hundreds of great new legal tech available in recent years, Clearbrief stands near the top. Jackie Schafer, a former big-law and state attorney general who had a vision of attorneys and their staff working more effectively and efficiently, designed an app that lives right in your Microsoft Word. Clearbrief lets you upload your case file to it so you can ask it questions: “When did the defendant first get notice of plaintiff’s claim?” “Where is the evidence of defendant’s bad faith?” “What are the plaintiff’s expert’s opinions?” Clearbrief will take you directly to the page and line of the document that supports your facts.

And its new timeline feature is a game-changer: feed Clearbrief a pile of documents with unorganized facts, and it will give you a chart showing the timeline of relevant events, complete with hyperlinks showing the page and line for each.

Judges are now using Clearbrief to write their opinions.

And did you know? Legal-writing guru Bryan Garner was Clearbrief’s first angel investor.

Jackie Schafer’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Clearbrief.com
Bob Ambrogi: New AI Features In Clearbrief Create Hyperlinked Timelines And Allow Users To Query Their Documents
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

We discuss some interesting recent cases out of the California Court of Appeal:

Arbitration clauses may include an agreement to make the award reviewable on appeal. We discuss a recent case that shows how.
Can a judge just stay a money judgment?
What to do if the appellate court issues a tentative opinion.
When an amended order suspends the right to appeal from the original order.

Then we discuss the “Eisenberg rule,” and a survey that explains why lawyers still use legalese.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Tim’s writeup on Hous. Auth. of City of Calexico v. Multi-Housing Tax Credit Partners XXIX, L.P. (D4d1 Aug. 28, 2023) No. D079967. And Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334.
Tim’s writeup on Marriage of Bush (D4d3 Jun. 15, 2023 No. G061202) 2023 WL 4013349 (nonpub. opn.).
Tim’s writeup on Navellier v. Putnam (D1d5 Aug. 17, 2023) No. A166476.
Tim’s writeup on Sweeney v. Reg'l Water Quality Control Bd. (D1d3 Aug. 31, 2023) No. A166629 (nonpub. opn.).
New rule 10.1014 of the California Rules of Court allows anyone to submit a contention that an administrative presiding justice or a presiding justice has not properly addressed or managed an important matter related to the administration of a Court of Appeal or a division of a Court of Appeal. A person submitting such a contention should use the following addresses: By email: AppellateRule10.1014@jud.ca.gov By mail: Judicial Council of California Attn: Rule 10.1014 Program 2860 Gateway Oaks Drive, #400 Sacramento
Off Topics: Do Lawyers Like Legalese And Why Does It Persist?
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Your next trial could succeed or fail based on whether the expert’s opinion gets admitted or excluded. Based on their recent presentation to financial experts, we cover three key cases—Kelly, Sargon, and Sanchez—that govern expert opinions. We also cover some fundamentals and tips to protect expert work product.

Some things experts should remind their attorneys:

“Don’t email me. Pick up the phone instead.”
“My opinion is only as good as the facts you’ve told me to base them on.”
“Kelly and Sargon are different objections!”
“I am a CPA, not Warren Buffet.”
Regarding the new amendments to FRE 702: “Expect a tougher fight on admissibility, especially on methodology and reliability of application.”

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Schreiber v. Estate of Kiser (1999) 22 Cal.4th 31.
Du-All Safety, LLC v. The Superior Court of Alameda County (2019) 34 Cal.App.5th 485.)
Townsend v. Olivo (D4d2 Jun. 15, 2021) no. E073183 (non-pub.) (Tim’s writeup).
People v. Kelly (1976) 17 Cal.3d 24 (Tim’s writeup)
Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769 (Tim’s writeup).
People v. Sanchez (2016) 63 Cal.4th 665
Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510
People v. Wakefield (N.Y. 2022) 38 N.Y.3d 367, 371[authorizing use of TrueAllele Casework System - probabilistic genotyping as generally accepted in the scienti fic community]
Siemon v. Regents of the University of California (D1d1 Oct. 19, 2022 no. A160654) 2022 WL 12083207 (nonpub. opn.) (Tim’s writeup).
Kline v. Zimmer, Inc. (D2d8 May 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 (review pending as of 8/23/23) (Tim’s writeup).
Strobel v. Johnson & Johnson (D1d4 Sept. 21, 2021) 2021 WL 4272711 no. A159609 (Tim’s writeup).
Zuniga v. Alexandria Care Center, LLC (D2d7 Aug. 13, 2021) 2021 WL 3579021 no. B297023 (Tim’s writeup).
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The Judge Pauline Newman saga reached a tentative end—or a respite—when the Federal Circuit imposed a year-long probation on the 96-year-old federal appellate judge. Aliza Shatzman of the Legal Accountability Project discusses the allegations of cognitive decline and workplace misconduct against her, and how the investigation and report may be a model for more transparency into judicial officers.

Aliza notes:

There is a kind of “omerta” code among clerks against sharing negative experiences.
But Aliza is seeing the beginning of a cultural change in the legal community toward more transparency.
Coming Spring 2024, the Legal Accountability Project will offer a database to aspiring clerks with at least 1,000 entries about former judicial clerk experiences.
To the calls for more transparency, Aliza is not seeing any opposition from judges.
…but there is some resistance from some law schools.
Judge Newman has a storied career: pilot, racecar driver, bartender on the Seine River, inventor, maverick IP attorney, and finally, brilliant—and often contrarian—federal appellate judge. How does one assess a complaint that Judge Newman, an extraordinary individual, is acting out of the ordinary? Ultimately, the court based its sanctions ruling not on Judge Newman’s cognition but on her refusal to comply with the investigation.
This investigation vindicates the rule of transparency in the Judicial Conduct & Disability Act and may serve as a model for future investigations.
Why the Judge Newman saga does not portend an opening of a “floodgates” of complaints against judges.

Aliza Shatzman’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Our June 2022 interview with Aliza.
The Legal Accountability Project's website.
Aliza Shatzman’s published articles on the subject of Judge Newman in Slate and Above the Law.
Aliza Shatman’s article with the UCLA Journal of Gender & Law, entitled "Untouchable Judges? What I've learned about harassment in the judiciary, and what we can do to stop it."
Our episode 90 on the California Bias Prevention Committee.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Tim announces his new firm, Kowal Law Group, APC, and discusses some legal tech with Jeff before moving on to recent cases, including:

Collateral orders: Longobardo v. AVCO Corp. confirms that California’s collateral order doctrine is narrower than in other jurisdictions.
Anti-SLAPP: Park v. Nazari advises outlining the specific allegations you want to strike in the notice of your SLAPP motion.
Is opposing counsel requiring you to identify Bates numbers in your RFP responses? You don’t have to include them in your verified responses, just a chart along with your production. Pollock v. Superior Court, No. B321229 (D2d1 Jul. 31, 2023)
Remote trials are now authorized through 2025.
More tentative opinions? San Diego Bar Assoc. has proposed amending rule 8.256 to expressly allow focus letters and tentative opinions.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Longobardo v. AVCO Corp., No. G062374 (Cal. Ct. App. July 11, 2023)
Doe v. Superior Court (Cal. Supreme Ct. - July 27, 2023)
Park v. Nazari, No. B320483 (D2d5 Jul. 25, 2023) Via Michael Shipley
HNHPC, Inc. v. Dep't of Cannabis Control (Aug. 2, 2023, G061298)
Braugh v. Dow, No. B311859 (D2d8 Jul. 3, 2023).
People v. Tapa (Cal. Ct. App. - July 11, 2023) Via Ben Shatz
Proposed rule to encourage tentatives Via Ben Shatz
Even the Court of Appeal hates the rule that requires RFP responses to identify Bates numbers. Via Michael Shipley
9th Cir.: “don’t conflate an order with a document” Via Ben Shatz
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

One of the most biggest recent case is the split decision out of the 9th Circuit holding that a prohibition on secretly recording communications between two people violates the First Amendment. Project Veritas v. Schmidt, No. 22-35271 (9th Cir. July 3, 2023). The statute at issue here was an Oregon statute. But it suggests that two-party consent statutes, such as California’s likewise may be unconstitutional.

We also cover:

Does "sexually derogatory" or "misogynistic" music in the workplace create employer liability? Possibly, says the 9th Circuit. Sharp v. S&S Activewear (9th Cir. - June 7, 2023).
Justice Gorsuch’s statement that COVID emergency orders are among `greatest intrusions on civil liberties.' (Statement here.)
“Diversity” in the judiciary.
Briefing extensions tighten up in the 9th Circuit.
PJ Rubin on oral argument: "It's a very important thing to have lawyers feeling comfortable -- but not too comfortable -- in the courtroom. (Via Ben Shatz.)
The citation signal “semble” that ignited #appellatetwitter.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Lowery v. Rhapsody Int'l, No. 22-15162, at *1 (9th Cir. June 7, 2023)
Birke v. Lowe’s Home Centers, No. S279470 (Cal. May 31, 2023).
Supreme Court scores high in diversity study (via David Ettinger); Camper on Admission (via David Ettinger); Daily Journal’s Malcolm Maclachlan’s account of the story.
Of president Biden’s 30 nominees to the 9th Circuit and California district courts, 25 have attended one of six elite law schools. (Via

Most cases that reach the Supreme Court live and die on the “shadow docket.” That is the name given to the docket where everything other than full merits decisions happens. Most prominently, that is where the Supreme Court decides whether to grant stays of orders pending appeal, such as abortion-rights cases, voter redistricting cases, immigration orders, and nationwide injunctions that affect and set national policy.

Steve Vladeck’s New York Times bestselling new book is The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic. Steve has spent 10 years studying the shadow docket and reports that its use has increased markedly, and that we should be concerned.

The big concern: These rulings are made without full briefing, argument, or reasoned opinions. That undermines confidence in these rulings.

We discuss:

Appellate courts do need a way to handle these emergency requests.
Historically, the Supreme Court justice on Circuit Assignment handled them, through a recognized procedure.
Since the 1980s, however, the full Court usually handles them, but in a more abbreviated or summary procedure.
The first use of the shadow docket: in 1973 by Justice William O. Douglas, from the Post Office in Yakima Washinton, enjoining President Nixon’s bombing of Cambodia
But Justice Douglas also said rocks and trees should have standing—and liberal standing doctrines do tend to put more pressure on the shadow docket.
6th Circuit Chief Judge Sutton’s criticism of nationwide injunctions, and how they put pressure on shadow dockets
But, Steve says, the Court’s docket load over the years has not increased markedly, so that does not explain the shadow docket mischief.
The Chief Justice in recent years in his annual State of the Court has stopped asking Congress for things, suggesting the Court’s increased sense of autonomy from the other branches
What are the solutions? Congress should exercise its checks on the Court, such as by imposing mandatory automatic appeals in certain cases such as methods in capital punishment cases. This would ensure ordinary procedure in more cases and remove the temptation to use the shadow docket.

Stephen Vladeck’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

The Shadow Docket, on Amazon.
Nationwide injunctions, discussed in episode 31. Chief Judge Sutton’s remarks here.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

A good trial involves heroes and villains, themes of good and evil, tense conflicts, and, at the end, a difficult moral choice. All stuff that could make a few good movies.

Gary Wax is a filmmaker-turned-appellate lawyer, and he brings his insider’s eye and his top-500 list to help us analyze some of the best law movies of all time.

We discuss:

Why 12 Angry Men is such a great legal film—it reminds us attorneys where the process of persuasion really happens.
How a single famous line made A Few Good Men unforgettable.
Why My Cousin Vinny is unique among law films—a comedy that actually works as a legal movie.
In the jury’s eyes, you, the attorney, are one of the characters in the story. Act your part.
But oral argument is not a time for theatrics.
Film references in legal briefs?

Gary Wax’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Gary’s top 5 legal movies: 12 Angry Men, A Few Good Men, The Verdict, True Believer, Primal Fear.
IMDB top 10 legal movies list.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

9th Circuit expert Cory Webster joins us to discuss several recent decisions out of the 9th Circuit. On this episode, we discuss:

The Jack Daniels case: when binding precedent barred relief, Jack Daniels (and its savvy appellate team) moved for summary affirmance (you read that right) to get to the Supreme Court, which reversed in a unanimous decision.
The dormant-commerce-clause case in which the 9th Circuit—with unlikely help from Justice Thomas—upheld a California statute that could affect pork production nationally.
The Gap case, which demonstrates how the makeup of the 11-judge en banc pool drawn from the 29-judge circuit make a big difference.
the Slack Tech. v. Pirani case, where a visiting district judge cast the deciding vote that created a circuit split—and precipitated a Supreme Court reversal setting binding precedent.
When Judge Watford retired following a split decision, a petition for panel review is probably going to require filling the open slot on the panel—which could change the outcome.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Perry v. Kia Motors
Jack Daniel’s and what to do when binding precedent squarely forecloses your position. Cory’s LinkedIn post. Jack Daniels Properties, Inc. v. VIP Products, LLC.
Ninth Circuit en banc—29 votes vs. 11 judges on the en banc panel. Cory’s LinkedIn post. Lee (The Gap) v. Fisher et al. (9th tCir. Jun. 1, 2023) No. 21-15923.
Visiting judge’s dissent vindicated by SCOTUS: Slack Techs. v. Pirani (Jun. 1, 2023). One trial court judge sitting by designation can be the deciding vote setting binding circuit precedent (and the reason a case goes to the Supreme Court). Cory’s LinkedIn post.
What happens when a member of your panel leaves the court after a decision but before finality. Cory’s LinkedIn post. Kelsey v. Garrett (9th Cir. May 24, 2023) No. 22-15557.
The case that saved the McRib: National Pork Producers Council v. Ross (May 11, 2023) National Pork Producers—Ninth Circuit angle. Cory’s LinkedIn post.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

WARNING: This episode contains opinions of a law-nerd nature. Discretion is advised.

Have you ever encountered the parenthetical “(cleaned up)” at the end of a case citation? By now over 5,000 judicial opinions in nearly ever jurisdiction have used it, including the U.S. Supreme Court. So it’s time you got acquainted with it.

The credit (or blame) for introducing this new device goes to Jack Metzler. Jack shares how he came up with the innovation over several long moments of deliberation on Twitter (specifically: about 90 seconds). But unlike most tweets, Jack’s idea flourished into a law review article that now stands as the 2nd most-often cited article in judicial opinions of all time (and only 40 citations behind Justice Louis Brandeis’s 1st place paper).

Jack subjects himself to the following questioning:

❔What does (cleaned up) even mean? Answer: It means you can start a quote with a capital letter without using those stupid ugly square brackets, without having to explain it. And other stuff like that.

❔Ok, so judges are using it. But will judges trust lawyers to use it faithfully? Answer: Judges already don’t trust lawyers, so I don’t even understand your question.

❔I think the judges want to see the quote exactly as it appeared. Answer: That’s not even a question. And no one is forcing you to use (cleaned up).

Jack Metzler’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Metzler published an essay in The Journal of Appellate Practice and Process on (cleaned up) citations a few years ago
Apparently, Bryan Garner has endorsed the practice too
The most prominent (cleaned up) user is Justice Thomas, who included it in a February 25 opinion. According to information that Metzler gave the ABA Journal in March 2021, (cleaned up) has appeared in 5000 judicial opinions.
Read the full article at the tvalaw.com blog here.

As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey complicated issues as a subject-matter specialist to generalists on the bench.

Then we discuss the March 2023 SCOTUS opinion Sackett v. EPA, which sided with a landowner against the EPA. The EPA’s jurisdiction in keeping our waters clean extends to the “waters of the United States,” or WOTUS. Can wetlands and unconnected waters be WOTUS? Under the EPA’s “significant nexus test,” the answer was yes. But the Court reversed and replaced the test with a “continuous surface connection” test.

Jennifer explains how the new test may still open the floodgates to more water litigation.

(Neither Jennifer nor Jeff laughed at that pun.)

Jennifer Novak’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Sackett v. Envtl. Prot. Agency (May 25, 2023, No. 21-454)
Big picture effect of Sackett, outside of the environmental world: https://www.brownulr.org/blogposts/the-quiet-death-of-chevron-deference
About Sackett in terms of federal protection over waterbodies: https://www.hklaw.com/en/insights/publications/2023/05/sackett-decision-provides-clarity-substantially
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Our regular roundup of noteworthy appellate decisions and legal news includes these stories:

⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited.

⚠Did the failure to raise an affirmative defense in a joint pretrial order forfeit that defense? The 9th Circuit held it did, but Judge Bumatay thought it was raised indirectly and the lack of a more explicit assertion did not prejudice the plaintiff.

🤚Suit against Maxine Waters for falsely saying her opponent was “dishonorably discharged” may go forward: evidence that Waters was shown a military document refuting her charge, and Waters’ failure to conduct any other investigation, supported plaintiff’s showing of actual malice for purposes of defeating the anti-SLAPP motion.

📃Record defect resulted in California Court of Appeal resulted in affirmative via a rare “memorandum decision.”

✉60-day deadline to appeal is not triggered by file-stamped order unless it attaches a proof of service.

🗣New snitch rule would impose a mandatory duty to report violations of other lawyers.

👩‍⚖️Oral arguments at U.S. Supreme Court run long by average of 30 minutes.

💼Supreme Court makes it easier to preserve issues raised in summary judgment motions in Dupree v. Younger.

🛑Federal courts to wind down remote access as US COVID emergency ends.

🕔3d. Circuit to impose 5:00 p.m. filing deadline.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Perry v. Kia Motors
Defense not asserted in a pretrial order deemed forfeited in split 9th Cir. decision ( Ivie v. Astrazenica Pharmaceuticals LP)
What is actual malice? Maxine Waters SLAPP case
Lack of record leads affirmance by memorandum decision
Order was file-stamped, but did not attach the POS, so it did not trigger the 60-day deadline to appeal
New snitch rule proposal as the state bar. Cal Bar<

ADF attorney Chris Schandevel explains how he got the opportunity to orally argue dozens of cases in multiple appellate courts including state supreme courts in just a decade of practice. We also discuss:

👩‍⚖️Does oral argument make a different? Can amicus briefs make a difference? Yes, and one case proves it: Chris talk about Kligler v. Attorney General in the Massachusetts Supreme Judicial Court, where Chris’s amicus brief and oral argument made the difference.

📃Even a failed petition for certiorari makes a difference: ADF’s petition in Hoggard v. Rhodes asked SCOTUS to review the extension of qualified-immunity even to campus police officers’ non-urgent action restricting free speech. SCOTUS declined, but Justice Thomas wrote a statement agreeing with ADF’s argument, and that statement has been cited in nearly 100 decisions since then.

🕔Will the 3rd Circuit’s new 5:00 p.m. filing deadline help or hurt work/life balance? A perspective from a public-interest firm where most attorneys leave early to put kids to bed… but then log back in for some night filings.

✍Top 10 Briefing Myths! Get ready to be offended if you still use Times New Roman and two spaces after a period! Please send complaints (in Century Schoolbook font) to Chris Schandevel.

Chris Schandevel’s biography, and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Turner v. Commonwealth
Hoggard v. Rhodes, statement of Thomas, J., respecting denial of certiorari.
Chris Schandevel’s portion of the oral argument in Kligler v. Attorney General in the Massachusetts Supreme Judicial Court: https://www.screencast.com/t/M4Si2IMybun
Link to the full argument: https://boston.suffolk.edu/sjc/pop.php?csnum=SJC_13194
Link to the SJC’s opinion: https://casetext.com/case/kligler-v-healy
One space after punctuation is the accepted rule for professional typographers and the consensus of typography authorities.
Never use ALL CAPS or

The National Center of State Courts recently published its 2023 rankings of judicial salaries, with California and DC trading #1 and #2 spots. At a mean national judicial salary of around $174,000, by starting out in a modest condo and scrimping and saving, a judge in California might achieve the dream of homeownership just before retiring into private ADR.

But Troy Shelton notes that his home state of North Carolina ranks 45th with the mean judicial salary around $152,000. Meanwhile, North Carolina is flanked by states each averaging greater salaries by $40-50k.

Some interesting facts about judicial salaries:

💲 Very few Big Law attorneys, where pay greatly exceeds judicial pay, become judges.

💲 Cost of living is tricky to account for—should metro-area judges be paid more then rural-area judges just because of where they live?

💲 In 2021 the national median 1st-year associate salary was $165,000, rivaling judicial salaries—something seems wrong here.

And some interesting differences between CA and NC procedure:

⚖ NC courts can overrule past precedent using an en banc procedure—but they’ve never used it.

⚖ NC has no anti-SLAPP law—but there doesn’t seem to be much of a SLAPP problem.

Troy Shelton’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

NCSC Survey of Judicial Salaries
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Opioids, takings, terrorism—these are at the core of a few of the cases that appellate attorney Carl Cecere is handling. After deciding to leave BigLaw, Carl found that a combination of Twitter and lots of travel with the purpose of meeting interesting colleagues has fueled a pipeline of provocative cases into his solo practice.

We discuss:

Clerking for Mary Lou Robinson, who started her judicial career when women still were not allowed to vote or own property
The Purdue opioid case, and the trend of using bankruptcy to shield liability. Reading the BK code textually may reign this in—one good thing about the judicial approach of the current SCOTUS composition.
The Sokalow case in which Congress extended the courts’ jurisdiction over terrorism cases by creating a presumption of consent to jurisdiction—a presumption now being taken up by the 2nd Circuit.

Carl Cecere’s LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic Hardcover – May 16, 2023
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

None

Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms:

Judges should issue more sanctions against frivolous SLAPP motions.
The Legislature should amend the statute so that SLAPP denials are reviewable only by way of writs.

Jeff tries to stump Tim on a SLAPP appeal quandary—if the defendant won on prong one but lost on prong two, what happens if the defendant fails to re-argue prong one on appeal? (Answer: forfeiture.)

Next, we wonder why appellate courts insist on an oral record even for hearings where there is no testimony and nothing remotely interesting going on.

Discovery sanctions awards may be appealable, but for other discovery awards—even those made on the same basis as the sanctions award on appeal—don’t count on it. Courts hate them.

A litigant failed to timely request a statement of decision before the end of a short trial.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Anti-SLAPP denials are appealable in the 9th Cir., but they shouldn’t be, says Judge Bress Salveson v. Kessler (9th Cir. Mar. 29, 2023) 22-55472 (nonpub. opn.).
Oral record on appeal was required to review the validity of a trustee notice to beneficiaries Kendrick v. Wyckoff (D1d3 Mar. 21, 2023 No. A165494) 2023 WL 2592029 (nonpub. opn.).
Use a settled statement to fill gaps in your record (but don’t try to rewrite the record) Rok Mobile, Inc. v. Brannon (D2d2 Mar. 24, 2023 No. B308642) 2023 WL 2621771
Jury released from duty could not be reconvened to make a remaining finding People v. Jones (D1d5 Apr. 4, 2023) No. A163558
$37k in discovery sanctions appealable, but not the related issue sanctions Deck v. Developers Investment Co., Inc. (D4d3 Mar. 24, 2023 No. G061287) ___ Cal.Rptr.3d ___
When do you have to request a statement of decision? Atlantic Richfield Co. v. California Regional Water Quality Control Board (D3 Dec. 5

On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine:

📬 Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing. (It is possible you will never receive it—but that doesn’t affect the deadline to appeal!)

⌚ An appeal can be filed up to midnight on the 60th day. But not a second after! Appeal filed at exactly 12:00 a.m. is the 60th day. One minute late might as well be a year late.

📝 A file-stamped order is a “triggering document” that starts the 60-day clock. But what if only the certificate of mailing is stamped? No good—the 60-day clock isn’t triggered.

📝 What if the order is stamped, but the stamp isn’t signed? There’s no such requirement—your 60 days still runs.

Also: Justice Yegan will follow precedent on resentencing “lemming-like,” but is going to “kick and scream on my way down to the rocks below”; CA Ct. App. overrules SCOTUS, arb denials might no longer be stayed pending appeal.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

The 60-day appellate deadline runs from mailing—receipt is irrelevant Dannelley v. Wu (D4d3 Mar. 16, 2023 No. G062072) (nonpub. opn.).
Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.)
A piecemeal notice of judgment is not sufficient to trigger the 60-day deadline to appeal Castillo v. McCreary (D2d3 Feb. 21, 2023 No. B317493) 2023 WL 2131341 (nonpub. opn.).
File-stamped signed order triggers the 60-day deadline to appeal, even if the file-stamp itself isn’t signed McKenzie v. Alta Resources Corp. (Apr. 25, 2023 No. G061292) 2023 WL 3067690 (nonpub. opn.),
A mere procedural error is not a miscarriage of justice, People v. Strong (2022) 13 Cal.5th 698

Adam Unikowsky, an appellate litigator with nine appearance in the U.S. Supreme Court, argues that judicial law clerks could be replaced by AI. We discuss:

💻 “AI will make judges release more accurate decisions more quickly. This is good.”

💻 Judges already rely on clerk summaries, so if AI produces better summaries faster, that is good.

💻 AI is a mysterious black box, you say? Well, law clerks are already invisible to the public yet influence judicial decisions without any input from the litigants.

💻 True, law clerks are human—but they are still often wrong. “Is it really preferable that judges receive recommendations and draft opinions from ideological 26-year-olds?”

✍ A writing tip: “Unclear writing usually implies unclear thinking. If something is unclear, it’s probably because I haven’t really figured it out.”

👩‍⚖️ An an oral argument tip: Don’t read from your notes. Adam relates a story when the Supreme Court stopped an advocate by asking, “Counsel, are you reading this?”

Adam Unikowsky’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Adam Unikowsky, “Should AI replace law clerks?” Adam’s Legal Newsletter (Jan. 20, 2023), available at https://adamunikowsky.substack.com/p/should-ai-replace-law-clerks.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

AI, they say, will revolutionize the practice of law. But can it do anything for my actual practice, as in, the case I am working on right now? Prof. Jayne Woods joins us to explain how she used ChatGPT—the question-and-answer AI interface—to draft a very passable first draft of an oral argument outline. Even better, ChatGPT could event engage (with a little coaxing) in a moot court dialogue, asking questions and follow-ups about legal issues.

Some of Prof. Woods’ takeaways:

Producing legal outlines are right in ChatGPT’s wheelhouse.
ChatGPT can be valuable in building confidence answering questions about your case.
There is a learning curve to ChatGPT, but anyone can begin without training. The sooner you start, the sooner you will find uses for your practice.

Jayne Woods’ biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Jayne Woods, “Guest Post: Can ChatGPT Prepare Me for Oral Argument?” Appellate Advocacy Blog (Mar. 13, 2023) available at https://lawprofessors.typepad.com/appellate_advocacy/2023/03/guest-post-can-chatgpt-prepare-me-for-oral-argument.html.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

You have just about 15-30 seconds at oral argument before the panel is likely to interrupt you. How will you use that time? Minnesota appellate attorney Jeff Markowitz says you should be unlocking that key point that allows the rest of your case to unfold. If you haven’t discovered that point by the time of oral argument and distilled it to an elevator pitch, you’re likely squandering your opportunity.

Jeff also explains why you’re likely squandering prime real estate in your brief by roadmapping your arguments. Your headings should be doing that already. Instead, use the introduction to develop your case theme.

Then we compare Minnesota and California appellate procedure:

👉 Unlike in CA, in MN the Supreme Court sets the rules of civil procedure.

👉 Unlike in CA, MN courts always have a court reporter available.

👉 Unlike in CA, MN doesn’t have a “we don’t talk about Bruno” approach to unpublished opinions. They’re not binding, but you can cite them.

👉 Unlike in CA, MN gives a 30-day initial stay of judgment enforcement.

Jeff Markowitz’s biography, and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

‘Published’ and ‘Unpublished’ Revisited, by Jeff Markowitz and Stephen Warner, available at https://www.arthurchapman.com/files/original/Published and Unpublished Revisited Article_JMM_SMW1.pdf.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

A few days ago we mentioned Tim is opening a satellite office in Texas, which means expanding the podcast’s jurisdiction. So in this episode we take care of some business with the proprietors of the Texas Appellate Law Podcast, Todd Smith and Jody Sanders.

Todd and Jody had the same idea during the pandemic to start an appellate law podcast. We talk about legal podcasting, finding good content to provide trial attorneys, and our state courts’ responses to the pandemic.

Then we turn to our continuing state appellate procedure comparison. Some interesting facts about Texas appellate law:

The Supreme Court sets most of the rules of civil procedure.
Court reporters are still found in most courts—the court reporter shortage seems to be found mostly in California.
Stare decisis works like federal courts: the district appellate courts need to heed each other’s holdings, unless reviewed en banc. Unlike in California, where each panel starts from a blank slate, free to ignore every Cal.App. decision ever written.
Unpublished opinions are still citable for precedential value. You can’t be sanctioned for citing theme like here in CA.
Judgments are not enforceable for 30 days, giving debtors a bit of time before enforcement.

Finally, Todd and Jody turn the tables and subject us to a Lightning Round.

D. Todd Smith’s biography, LinkedIn profile, and Twitter feed.

Jody Sanders’ biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Texas Appellate Law Podcast
Episode 25 of the California Appellate Law Podcast discussing US v. Olsen.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

To preview our special announcement to be discussed on the next episode, Tim is opening a satellite office in Texas—and the California Appellate Law Podcast will be expanding to Texas! Jeff Lewis will give me horseback riding lessons and remind me to say “y’all” a lot.

Our very special episode, featuring a turf war with some Texas law podcasters, will drop on a special day next week, Thursday (rather than the usual Tuesday). Tune in!

As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette.

So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of your superior position on appeal. The tips include:

👉 Appellants often appeal from non-appealable orders. Or they file their notice of appeal untimely. Check for these grounds for a motion to dismiss.

👉 Enforce the judgment, unless it is clearly stayed. Enforcement can put a lot of pressure on an appellant.

👉 Are there record defects? Jeff and I debate the different approaches. You can either counter-designate to add missing items, or you can argue that the appellant failed its burden to furnish a complete record.

👉 Help out the trial court’s reasoning. A judgment is appealed for its result, not its reasoning. If there are reasons the trial court didn’t think of, raise them in your respondent's brief.

👉 Did the appellant fail to cite authority? Was the opening brief scattershot without clear organization or well-developed arguments? You might argue that these poorly identified issues and arguments are forfeited.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Swain v. California Cas. Ins. Co. (2002) 99 Cal.App.4th 1 [pendency of cross-complaint may render judgment non-final and non-appealable]
Garg v. Garg (2022) 82 Cal.App.5th 1036, 1044–1045
Sprague v. Equifax, Inc. (D2d4 1985) 166 Cal.App.3d 1012, 1050 [If [no legal argument] is furnished on a particular point, the court may treat it as waived, and pass it without consideration.’]
Doe v. Roman Catholic Archbishop of Cashel & Emly (2009) 177 Cal.App.4th 209, 218 ["A party who challenges the sufficiency of the evidence to support a finding must set forth, discuss, and analyze all the evidence on that point, both favorable and unfavorable." ]
In re Marriage of Fink (1979) 25 Cal.3d 877, 887 [An appellant cannot simply provide a selective statement of facts in its opening brief. "Such briefing is manifestly deficient."]
If fees were recoverable at trial, fees may be sought for work performed on appeal. (Serrano v. Unruh (1982) 32 Cal.3d 621, 637.)
A judgment consisting solely of costs and attorney’s fees is normally

Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language ultimately is about being a communicator, not a technician.

(Example: I asked Lindsey if the example “the reasons are as follows” is technically incorrect as containing a subject-verb disagreement. Yes, says Lindsey, but “as follow” just sounds too weird.)

Then we continue our experiment in comparing and contrasting state procedural rules. Here is what we gleaned about the differences between California and Florida:

👉 In FL, the Supreme Court makes the rules of civil procedure, unlike CA where that is the province of the legislature.

👉 Unlike CA, in FL the rules allow parties to create an electronic recording of proceedings for purposes of an appellate record.

👉 Both CA and FL have no horizontal stare decisis: district appellate courts may freely disagree with one another.

👉 But unlike CA, a FL District Court of Appeal cannot ignore its own past decisions: to do that, it has to take the matter up en banc (like in the federal system).

👉 Unlike CA, in FL all the appellate opinions are published.

👉 But unlike CA, in FL there is no right to a reasoned opinion, meaning most affirmance are summary affirmances (how frustrating!!).

👉 Unlike CA, in FL there is no right to oral argument on appeal.

👉 Like CA, FL is beginning to experiment with “focus orders,” identifying issues counsel should be prepared to discuss at oral argument.

👉 Like CA, FL follows the doctrine on appeal that a judgment will be affirmed if valid for any reason, even if the trial court’s stated reasons were deficient or wrong.

👉 But FL has a much more colorful name for this: the Tipsy Coachman doctrine!

Lindsey Lawton’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Ep. 75: Comparing CA and IL Courts
Ep. 76: John Nielsen Compares CA and UT Courts
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing.

Then we turn to how Utah differs from California in civil and appellate procedure, including:

👉 Unlike CA, the UT Supreme Court promulgates its own rules that govern the courts.

👉 Perhaps as a result, in UT there is no court-reporter crisis. Instead, proceedings are electronically recorded. If you need a transcript, a court reporter will transcribe the recording. (This is an important #AccessToJustice issue.)

👉 Unlike CA, UT appellate decisions are binding on the appellate court. The court can overrule its past decisions, but it cannot just ignore them, as often happens in CA.

👉 Unlike CA, all UT appellate opinions are published.

👉 Unlike CA, UT appellants are not entitled to a reasoned opinion on affirmance—which is why many appeals are disposed of by order.

And in true appellate-nerd fashion, during the Lightning Round John and Tim briefly debate the exceptions to using ‘s to make possessives of certain words ending in s.

John J. Nielsen’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Appellate Advocacy Blog
John Nielsen’s blog about learning to write by imitation.
John Nielsen’s post about breaking into appellate work.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

This podcast is often a soapbox for complaining about oddities in the California court system. But then we wondered: are the courts in other states better? Maybe they’re the same—or worse. So we thought we should start a conversation with a couple of attorneys on their own soap box in Chicago, Dan Cotter and Pat Eckler, the proprietors of the Podium and Panel Podcast, and compare notes about civil and appellate practice in our respective jurisdictions.

Says Pat: “I can’t imagine Illinois does anything that anyone else should adopt.”

Here is what you’ll learn in this episode:

👉 Jury trials: You can only get a general verdict in IL—no special verdicts!

👉 Unlike CA, the IL Supreme Court promulgates its own rules that govern the courts.

👉 But also unlike CA, IL court rules often conflict with the Code of Civil Procedure—and the conflicts are tricky to resolve.

👉 Like CA, in IL you have to have a court reporter to make an appellate record.

👉 Like CA, IL also has no horizontal stare decisis (appellate court decisions are not binding on other districts).

👉 Like CA, IL issues a large body of uncitable unpublished opinions.

Dan Cotter’s biography and LinkedIn profile.

Pat Eckler’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

When Courts Give the Silent Treatment
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case.

And, you had better make a record on it.

On this episode of the California Appellate Law Podcast, reprising Tim’s recent CLE presentation, we cover 10 tips that appellate attorneys want every trial attorney to know:

The rule that contains all appellate rules: Make the Record.

1 Make sure your theories of the case are captured in your pleadings

2 Was key evidence excluded? Preserve the issue by making a proffer.

3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

4 Object to Jury Instructions

5 Review the Verdict for Inconsistences

6 Request and Object to the Statement of Decision

7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

8 Calculate Appellate Deadlines Correctly

9 Avoid Common Appellate Briefing Mistakes

10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

Evergreen Tip: Get a Court Reporter!

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

On sidebars, wee ep. 40 w/ Jimmy Azadian.
Austin B. v. Escondido Union School District (2007) 149 Cal.App.4th 860, 886
People v. Partida (2005) 37 Cal.4th 428, 434
On motions in limine, see ep. 13.
Shaw v. Hughes Aircraft Co. (2000) 83 Cal.App.4th 1336, 1345.
Calculating the deadline to file a notice of appeal: Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894.
On attorney fees and costs: See ep. 28 and ep. 72.
On bonds and stays: See

For attorneys, the best referral is a referral from another attorney. But before you refer to another attorney, beware of the ethical traps. Kristi Thomas, a labor and employment attorney who also focuses on ethical issue, warns in a recent article that incautious referrals can lead to a conflict of interest, or an improper referral fee, or even liability for making a negligent referral.

Kristi discusses these traps, and offers some tips how to avoid them:

👉 Given multiple names when making a referral, not just one. (Especially if you have a referral-fee arrangement with one of them.)

👉 Don’t vouch for your colleagues. That doesn’t mean you can’t say anything about them, but instruct potential clients to do their own research.

👉 Control the conversation with the potential client to avoid eliciting confidential information and creating conflicts—don’t let them “vent.”

👉 Send non-engagement letters, confirming no attorney-client relationship has been formed.

👉 Check your malpractice policy to see if it covers negligent referrals—not all of them do.

Kristi Thomas’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

August 2022 Ethically Speaking - Avoiding Pitfalls When Making a Referral to Another Lawyer, by Kristi L. Thomas and Michael D. Stewart.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs?

Do you have to separately appeal from the fees and costs award? (Yes…usually.)
How can you stay enforcement of the fees and costs award? (Fee & cost awards are stayed automatically…sometimes.)
If you win the underlying appeal, what happens to the fees and costs award? (It goes away automatically…in theory.)

We discuss these questions and more in this nuts-and-bolts episode of the California Appellate Law Podcast.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

No, Minute Orders Do Not Have to Be Signed to Be Appealable
Amendments to Judgment During Appeal Reversed for Violating Appellate Stay
SLAPP Fee Awards Are Automatically Stayed on Appeal: My Article in Cal. Litigation
Striking Back Against Anti-SLAPPs: Three Tips for Opposing Anti-SLAPPs
What happens to a fee award after the judgment is reversed? Try a stipulated reversal.
Conservatorship of McQueen (2014) 59 Cal.4th 602
Travis v. Brand (Jan. 30, 2023, S268480)
LA Superior Court offers incentives for court reporters
Second District to close courtroom for upgrades
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

On this cases-and-tidbits episode, Jeff Lewis and I discuss:

Ramirez v. Avon Products: There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed.
Flickinger v. Finwall: Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows the letter has to be really bad, but some judges find extortion where there isn’t any. That can be chilling. Which may be why the Court of Appeal published this recent opinion finding no extortion, thus reversing the trial court.
Are DVRO or CHROs prior restraints on speech? Czodor v. Luo (Jan. 10, 2023, G060756) suggests narrowly tailoring the restrained speech to statutory abuse.
Could AI tell the difference between extortion and a permissible demand letter? We discuss one attorney’s proposal that judges replace their law clerks with AI.
Mitchell v. Mitchell (Jan. 27, 2023, A164780) reminds us that attacking trial court or opponent is not a viable strategy.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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Other items discussed in the episode:

Summary Judgment Not Appealed, But Reversed Anyway in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353) 2023 WL 355173 (nonpub. opn.)
Nice language from a published opinion here about writ relief, via Ben Shatz’s SoCal App. News blog.
SCOCA grants review in 2 civil cases, including the reversal of the $2.5M sanctions award in Los Angeles v. PricewaterhouseCoopers, via David Ettinger’s At the Lectern blog.
$69k appellate sanctions imposed, via Ben Shatz’s SoCal App. News blog.
Debate in the 3d Circuit about whether the filing deadline should be midnight or 5 p.m., via Ben Shatz’s SoCal App. News blog.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

With his background as a brewery owner, business litigator Greg Nylen defends attorneys from “the triumvirate” of unfair-competition claims: the Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Greg shares some trends, tips, and traps emerging in this space, including:

💡 Courts are getting a bit more stringent on the “reasonable consumer test”—the determination whether a large portion of the target market is likely to be misled. Does “krab meat” come from crab? Are rumors that outlet stores carry nowhere-to-be-found merchandise actionable? Increasingly, the courts’ answer to these questions is: Come on.

💡 But the “reasonable consumer” depends on what the product is. King’s Hawaiian bread is actually made in Torrance, CA. Does that matter? Probably not, because bread is bread. But what if the product was beer—where consumers may have more discriminating tastes, and the quality of the water matters to the product? The answer might change.

💡 The “reasonable consumer” is often determined as a matter of law. So plaintiffs’ strategy is to rely on consumer surveys, to make the determination factual in nature. Does it work? As Greg explains, you may be able to attack the survey as a matter of law.

💡 Litigation consumer claims in federal court? Beware of Article III standing. And bookmark the Sonner v. Premier Nutrition case—plaintiffs might not be able to get both legal and equitable relief in federal court.

Greg Nylen’s biography, and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Gregory A. Nylen, "Recent Developments in California Unfair Competition Law," Orange County Lawyer magazine (Aug. 2022).
Kang v. P.F. Chang's China Bistro, Inc., No. 20-55138, at *1 (9th Cir. Feb. 9, 2021).
Deisha Hodges, et al. v. King’s Hawaiian Bakery West, Inc., No. 21-cv-04541-PJH, 2021 WL 5178826 (N.D. Cal. Nov. 8, 2021).
Sonner v. Premier Nutrition Corp., 971 F.3d 834, 837 (9th Cir. 2020).
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The autism pandemic now affects between 1-in-44 and 1-in-35 children by the age of 8, according to a December 2021 Rutgers report—a rate that has climbed some 241% since 2000.

And one of the big ways this affects the millions of families raising children with autism is obtaining and fulfilling IEPs—Individualized Education Programs.

Special-education law attorney Tim Adams represents families to get their children the educational support they need. And because districts often have more legal support than financial support, these issues often wind up in court.

And while petitioners may be entitled to recover their attorney fees, surprisingly they are not entitled to their expert costs. This rule (an oversight?) tips the scales sharply against families, and could be easily fixed by Congress.

Tim Adams’ biography, and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.

Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)

And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.

Also:

Is allowing a juror to view the trial remotely a “structural error” reversible per se?
Are vexatious-litigation determinations appealable as injunctions?
Are city council appointees entitled to more First Amendment protections if appointed by a majority of the council rather than a single councilmember?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Plan to Exclude an Expert Under Sargon? Don’t Forget Kelly, discussing Bader v. Johnson & Johnson, No. A158868 (D1d4 Dec. 23. 2022).
A Timely MSJ Is Entitled to a Timely Hearing, Appellate Court Holds, discussing Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022), and Luckett.
Vexatious Litigant Determination Is Appealable, discussing Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802.
Episode 42 discussing Luckett, and Tim’s post on Luckett.
White v. Davis, No. E077320, at *1 (Cal. Ct. App. Jan. 5, 2023)
Lathus v. City of Huntington Beach, No. 21-56197, at *1 (9th Cir. Jan. 5, 2023)
United States v. Knight, No. 21-10197, at *1 (9th Cir. Jan. 4, 2023)
Videos from this episode will be posted at Tim Kowal’

In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022.

Some of the tips and trends we cover:

There is a trend toward informality in legal writing—but do pop-culture references go too far?
Everyone knows oral argument usually doesn’t change the outcome, unless you have a whiz-bang answer to that all-important question from the panel. Which is why the drumbeat for “focus letters”—where the panel reveals the all-important question in time to formulate an answer to it—is getting louder.
Stop bombarding courts with evidence and arguments. Not only does it overtax juries and judges, it betrays weakness: If you’re right, why do you keep repeating yourself?

And from one of our favorite conversations, Justice James Lambden offered this metaphor for the practice of law and the importance of civility:

“Litigation is not like preparing for a battle, it’s more like going on an expedition … like taking a trip across the mountains and encountering different places where you have to do different things.”

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone?

Ben shares some of his secrets and insights:

🗝 Winning a medical-malpractice trial requires flawless planning and execution, so hyper-preparedness is essential, including hiring experts even before filing a case.

🗝 The right expert is important. Jargon and confusion work to the defendants’ benefit. So the plaintiff’s experts need to be able to thread the needle between showing expertise while also being intelligible and relatable.

🗝 The MICRA caps limit general damages to $250,000, upending the economics of litigating even the most heart-breakingly devastating injuries caused by egregious negligence. So the only way to bring justice to the bad actors in the healthcare field is to find high-earning victims—the MICRA caps don’t apply to economic damages.

🗝 In 2023, the $250,000 MICRA caps will be relaxed slightly to $350,000, and the amount may be recovered against the provider defendant, the institutional defendant, and unaffiliated defendants, for a total possible non-economic damages recovery of $1,050,000.

🗝 Firm culture matters: Ikuta Hemesath is fully virtual, which keeps costs low and gives staff flexibility. What about firm culture and relationships? Ben shares that the firm takes off one day a month for a group outing.

Ben Ikuta’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

What does an appeal look like after having done 2,000 of them? John Dodd is one of the few people with that vantage. A former staff attorney at the Court of Appeal who has volunteered on the juvenile-dependency panel along with his civil appeals practice, John explains how “an appeal is an appeal.” Once you have spotted some of the key differences among the various disciplines, it all comes down to the rudiments of appellate procedure and advocacy.

We also discuss:

🏠 Juvenile dependency appeals, and when “the overweening hand of the government” unnecessarily disrupts families.

🏛 How he won the Sanchez case (barring the expert-witness end-run around the hearsay rule for case-specific hearsay) and became one of the leading experts on Indian Child Welfare Act, now a hot issue among constitutional scholars.

🤵 Should you waive oral argument? It probably won’t make a difference but—what if it does?

John Dodd’s biography, and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Need to catch up on important cases you missed in 2022? This end-of-year episode has you covered. Here’s the list:

Most Important Case for Money Litigators: Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081), holding treble damages and attorney fees under section 496 may be supported in your next fraud, conversion, breach of fiduciary duty, or even breach of contract case. (Ep. 45.)
Briefing Tip: Singman v. IMDB.com. (From ep. 23.)
Dismissal of Appeals: Alexi & Ani LLC v. Warren, (From ep. 23.) Tim’s write-up of the recent Cal. Supreme Court and Court of Appeal cases forgiving untimely appeals (In re. A.R. (2021) 11 Cal.5th 234, and In re B.P. (D5 Jan. 26, 2022 no. F082863) 2022 WL 224811 (nonpub. opn.).) (Ep. 25.) In re A.R. (2021) 11 Cal.5th 234, discussed in Tim Kowal, “Untimely Appeal May Be Excused in Dependency Proceedings, Cal. Supreme Court Holds,” Apr. 6, 2021.). When Appellate Rules Lie: Order Granting Summary Judgment, Which Is Not Appealable, Held Appealable Anyway. Reed v. Aviva USA Corp. (D1d1 Jun. 16, 2022 no. A158535) 2022 WL 2165479 (nonpub. opn.). (Ep. 42.) Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500) --- Cal.Rptr.3d ---- 2022 WL 4092828 (see summary and commentary here).)
Court Reporters: Weischadle v. Vo;R.M. v. J.J. (D3 Apr. 29, 2022 no. C090018) 2022 WL 1301801 (nonpub. opn.).
Criminal: Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in United States v. Olsen.) (Ep. 25.)
Right to Jury Trial: (

Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new recent published case.

We also discuss a recent case involving attachment orders in elder abuse suits. Namely, can you get an attachment in an elder abuse case? Maybe, but not based on statutory penalties, so the attachment order had to be reversed.

Cases discussed:

Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145. See Tim’s post, MSJ Evidence Rulings Are Discretionary, Court Holds in Split of Authority.
Royals v. Lu (D1d4 Jul. 18, 2022) 81 Cal.App.5th 328. See Tim’s post, Attachment Not Available for Punitive Damages in Elder Abuse Claims.
Let Them Choose v. San Diego Unified Sch. Dist. (Nov. 22, 2022, D079906).

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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Other items discussed in the episode:

San Diego DA’s office DQd in BLM prosecution for public remarks suggesting bias. People v. Lastra (Cal. Ct. App. - Sept. 28, 2022). (Via Ben Shatz, SoCal Appellate News.)
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising.

On the perennial topic of deadlines for posttrial motions and appeals, we found yet another exception — if you file a DQ motion, that tolls the posttrial deadlines. Jurisdictional my left foot.

And finally, a new anti-SLAPP case with an expansive application of the litigation privilege.

Cases discussed:

WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046. See Tim’s post, Personal Jurisdiction Unnecessary to Issue Judgment on an Out-of-State Judgment, New Published Case Holds.
Gearing v. Garfield Beach CVS, LLC (D4d3 Nov. 8, 2022 no. G060807) 2022 WL 16827538 (nonpub. opn.). See Tim’s post, Disqualification motion tolls posttrial and appellate deadlines.
Timothy W. v. Julie W. (Oct. 26, 2022, G059429).

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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Other items discussed in the episode:

Judge Evans gets less than top rating (via David Ettinger, At the Lectern).
Judge Rawlinson Says Law Schools Should Reassess Their Admissions Process.
UCLA Law withdraws from US News & World Report rankings.
Myron Moskowitz calls for more dissents (via Ben Shatz, SoCal Appellate News).
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss:

The different approaches taken by personal injury attorneys, from “billboard attorneys” to settlement mills to big-dollar jury trials, and in between.
How has California’s MICRA cap on medical-injury cases affected victims’ ability to get justice?
What is the Gerry Spence College like?
Nursing-home injuries and the changing needs in that space.

Kyle Schneberg’s biography, LinkedIn profile, and Instagram feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Tim’s summary of Trujillo v. City of Los Angeles. And Kubiak v. COUNTY OF RAVALLI, No. 21-35542 (9th Cir. May 3, 2022), coming to the opposition conclusion from Trujillo.
Babylon Bee’s Amicus brief here.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation.

M.C. sits down with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast to discuss some of the insights and recurring themes and advice she’s gleaned from having interviewed now over 100 of the most successful women in the legal profession today:

The “watershed moment” in the 1980s when Sandra Day O’Connor became the first woman on the Supreme Court, opening the floodgates for women in law.
The varied paths to the bench, taken by lawyers who never thought it possible.
A law degree doesn’t just mean one thing, and success sometimes mean failing at your first try, second try, etc., until you find the right fit.
The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion.
Appellate judges look at oral argument as another part of their process in preparing to make their decision. Don’t look at oral argument as just an isolated 30-60 minutes—that’s not how the panel sees it.

Then we turn the tables on M.C. and ask her the “lightning round” questions she asks of her Portia Project guests.

M.C. Sungaila’s biography and LinkedIn profile.

Listed to M.C.’s podcast, The Portia Project.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

When the Supreme Court applied lis pendens law inconsistent with the lis pendens statute, Justice Zebrowski wrote a letter that got the attention of the State Bar. That got him on a lis pendens “task force,” which in turn was responsible for convincing the Legislature to amend the lis pendens statutes.

This is but one example how Justice John Zebrowski, though retired from the California Court of Appeal since 1999, has served in a number of important roles affecting law and legal practice. On this episode of the California Appellate Law Podcast, Justice Zebrowski tells co-hosts Jeff and Tim about his work on the Law Revision Commission, and the BAJI Committee writing and amending civil jury instructions. But given the low-absorbency rate with jurors, is the practice of jury instructions at trial merely ceremonial? Justice Zebrowski weighs in on that. And what is the difference between BAJI and CACI?

Mediating or arbitrating a case? Justice Zebrowski offers some advice from 23 years as a neutral:

You can never can lose a case by making it too clear.
Initial “group meetings” at mediations are not helpful: they turn into finger-pointing and posturing.
Don’t expect a case to settle in one session. Most cases will settle, usually it is just a question of when—which, in turn, usually is a question of when the litigants are ready to lay down their egos.

Justice John Zebrowski’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Every attorney knows that to reverse an order, it’s not enough to prove error. You also have to prove the error harmed your client. But when the Court of Appeal in Transcon Financial, Inc. v. Reid & Hellyer reversed a sanctions order for the reason that the offending party was not given the full 21-day safe-harbor period (motion was filed a day early), the court did not explain why the one extra day would have mattered.

What’s going on here?

Jeff and Tim also discuss some other nuts-and-bolts cases that attorneys should bookmark:

All defamation lawsuits involving the management of publicly-traded companies are not necessarily SLAPP-able as arising from a public issue. (Heffernan v. Bilzerian.)
The 21-Day Safe Harbor Means 21 Days: Motion Filed Day 21 Is Too Early.
Don’t Seek Default Without Notifying Opposing Counsel.
Oral MSJ ruling cuts off ability to accept 998 offer. (Trujillo v. City of Los Angeles.)
Forwarding email to hotel clerk to print destroys the privilege.
Good recap on recent church-and-state showdowns: Covid-restrictions on churches are likely unconstitutional where secular establishments are exempted.

Other items discussed in the episode:

Justice Jackson’s voluble oral argument style, via Adam Feldman.
Memes in judicial writing, via Eric Goldman.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Sign up for “Not To Be Published,” Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

If you were a lawyer drawing breath in summer 2022, you heard about the “victory bell” case. A prominent defense attorney, returning to base camp with a stunning victory after defensing a medical malpractice case, rang his firm’s victory bell and announced, the victim “was probably negligently killed, but we kind of made it look like other people did it.” The comment was captured on video, and the internet did its thing.

A common hot-take was that the video would undo the verdict. But many appellate attorneys scoffed: an attorney’s puff talk after trial, the cooler heads responded, is not a trial irregularity.

Enter Brooke Bove, who wrote the successful new-trial motion in Garcia v. Quraishi that got the judgment vacated. Brooke gives an insider look at trial, and why the defense attorneys reference to an empty chair particularly galled the trial judge.

Bove, an Army communications specialist before becoming an appellate attorney, shares her insights into the case and what is coming next, as well as top legal tips and strategies.

Brooke Bove’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Episode 42 discussing the “victory bell” case, Garcia v. Quraishi.
The LA Times article on the “victory bell “case.
The Lawterature Podcast
Peace Like a River by Leif Enger.

Peace Like a River

We attorneys are trained to spot patterns, but many of us are poor at spotting patterns of inefficiency in the way we practice. Ernie “The Attorney” Svenson joins this episode of the California Appellate Law Podcast to explain how lawyers can adopt “systems thinking” to make their practice more effective, efficient, and even more fun.

Ernie shares how he learned about efficiency from his judge during his clerkship who, to shave time off the “Oyez, Oyez, Oyez” ceremony, cut the last “Oyez.” And how his judge delegated the task of explaining to new clerks about the edited “Oyez.” Now THAT is systems thinking!

Too abstract? How about a taste? Here are Ernie’s “gateway drugs” to get you hooked on legal tech:

SaneBox — Most lawyers use some filtering to reduce email load, but SaneBox has really advanced filters that will find you spending less time in your inbox.
TextExpander — Everyone sends out routine emails (think: retainer agreements). TextExpander populates an complete email with a macro. (And it will getting your gears turning about other ways to automate your day-to-day.)
Automated Calendaring (e.g., Acuity, Calendly) — No attorney should be booking their own appointments.

Ernie Svenson’s biography, website, and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

ErnieTheAttorney.net
Law Firm Autopilot podcast
SaneBox
TextExpander
Acuity
Calendly

Jeff and Tim discuss some recent cases to add to your attorney toolkit:

For personal injury attorneys, a recent civil-criminal crossover case dealing with victims’ right to restitution warns: the right to restitution is not waived unless the criminal case is over or the DA signs off. (People v. Nonaka, (Sep. 30, 2022, 2d Crim. B313848).)
Quashing a subpoena based on free speech gives a right to attorney fees. But caution: the court regarded the fees as purely mercenary in this case, and denied them. (Doe v. McLaughlin (Sep. 21, 2022, A161534).)
No, Zoom trials are not a substitute for real trials — not unless the Legislature says so before July 1, 2023. (Tim’s post on Rycz v. Sup. Ct. is here.)
Beware dismissing appeals, because they’re almost always “with prejudice.” (Tim’s post on Bush v. Cardinale is here.)
How to lose your appeal by flubbing the Rule 8.108 appeal extensions. (Tim’s post on Sharma v. Toyota Motor Sales USA, Inc. is here.)

We also discuss the Onion’s amicus brief in the US Supreme Court, and the California Supreme Court’s order declining to review whether bees are fish (but which the media interpreted as affirming that bees are, indeed, fish).

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

People v. Nonaka, (Sep. 30, 2022, 2d Crim. B313848).
Doe v. McLaughlin (Sep. 21, 2022, A161534).
Tim’s post on Rycz v. Sup. Ct. is here.
Tim’s post on Bush v. Cardinale is here.
Tim’s post on Sharma v. Toyota Motor Sales USA, Inc. is here.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Before Justice David Thompson left the bench in 2021 to become a private neutral, his colleague Justice Bedsworth called him “hard-headed.” And compassionate. But hard-headed? Justice Thompsons explains what Justice Bedsworth probably meant by that: “I say what I mean,” and tends to be direct—particularly at oral argument.

Justice Thompson discusses his more stringent judicial philosophy when it comes to publishing opinions, and granting writ relief. But he does favor tentative opinions and the use of focus letters to make for more effective oral argument.

Justice Thompson also provides some hard-nosed advice to lawyers:

On writ petitions: If you don’t convince the panel in the first paragraph, you’ve lost. (But some justices might be more lenient.)
On briefing: Get the basics right. Follow the Rules of Court. Explain how the trial court’s error resulted in prejudice. Acknowledge the flaws in your argument. And above all, be true to the record.
On using “signposts” in briefing: Transitions between sentences, paragraphs, and thoughts are the way good writers hold their reader’s hand through your brief. And “moreover” is a substandard signpost.
On doomed appellate strategies: Rearguing the same theory that lost at trial.
On settling on appeal: If the case hinges on a key legal issue, a neutral with experience on the appellate bench may soften a hard position and help bridge a previously insurmountable gap.
On oral argument: Never waive. At least show up and offer to answer questions.

Justice David A. Thompson (Ret.)’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Court of Appeal press release on Justice Thompson’s retirement.
Huerta v. Santa Ana, in which Justice Thompson dissented from an opinion affirming a summary judgment that no reasonable juror could find a dangerous condition that resulted in the tragic deaths of three girls on Halloween night.

The California Supreme Court is getting a new chief justice. What does it mean? The author of prominent legal blog At the Lectern, David Ettinger, joins co-hosts Tim Kowal and Jeff Lewis to look back on Chief Justice Tani Cantil-Sakauye’s 11-year tenure, her legacy, her replacement, Justice Patricia Guerrero—and why is the governor “appointing” a new Supreme Court justice when the state constitution says he needs to “nominate”?

David’s critical coverage of Gov. Newsom’s decision to “appoint” rather than “nominate” drew a phone call from the governor’s office, which he discusses.

Other topics discussed include:

“Taking one for the team”: how the CJ described her decision to write some of the Court’s more controversial opinions.
“We don’t need to speak so broadly”: how the CJ described her approach to writing judicial opinions.
The Court’s very long “pandemic docket” might have played a role in CJ Cantil-Sakauye’s retirement.
When the Supreme Court granted review of the case involving Los Angeles DA Gascon’s challenge to Three Strikes, David suggests the Court might be more interested in the scope and exercise of prosecutorial discretion, rather than taking a blow at Three Strikes directly.
When Gov. Jerry Brown got frustrated with the Supreme Court. Today, the Court grants all of Gov. Newsom’s clemency requests, but it denied many of Gov. Brown’s. Why? Turns out, governors get just as frustrated at summary denials as the rest of us do: “Read the ones who were approved and read the ones who were disapproved,” Gov. Brown challenged, “and you tell me what the rule is.”

David Ettinger’s biography, LinkedIn profile, and At The Lectern blog.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

David Ettinger on the Court’s pandemic docket: https://www.atthelectern.com/pandemic-docket-update/.
David Ettinger on the Court’s decline in productivity: https://www.atthelectern.com/whats-ailing-the-california-supreme-court-its-productivity-has-plummeted/.
David Ettinger on the Court’s clemency grants and denials: https://www.atthelectern.com/second-times-the-charm-for-lwop-clemency-request/ [”essentially court determinations that the clemency grants would have been abuses of gubernatorial powers”]; https://www.atthelectern.com/it-was-like-a-ton-of-bricks-crushed-me-california-grapples-with-historic-clemency-rejections/ [Gov. Brown: “you tell me what the rule is”];

What happens when the court fails to make required findings? Probably not, because the California Supreme Court says you still have to demonstrate prejudice. But in this episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal talk about how, in certain kinds of cases, the prejudice analysis may give a very light touch, and so your chances of reversal are much higher.

Some recent cases suggest the courts may be pointing in different directions in appeals involving missing findings.

Jeff and Tim also cover some other recent cases that you may want to have in your toolkit:

Failing to request a statement of decision changed the outcome of the appeal in Marriage of Burger.
Missing findings in a domestic-violence custody case led to reversal in Hutchins v. Hutchins, even though the omission really was not prejudicial.
Untimely Appeals May Be Excused If There Was a Mishap with E-Filing, held Garg v. Garg.
A Dismissed Appeal Is Not “On the Merits” If the Dismissal Was for Mootness, held Parkford Owners for a Better Community v. Windeshausen.
Does the Memo of Costs form have a fatal error by omitting the “penalty of perjury” language? Yes, says a dissenting justice in Srabian v. Triangle Truck Center.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Failure to Request a Statement of Decision Changed the Outcome of This Appeal
Courts Really Mean It That Written Findings Are Required to Rebut the Fam. Code § 3044 Domestic-Violence Presumption
Lawyer Toolkit: Untimely Appeals May Be Excused If There Was a Mishap with E-Filing
A Dismissed Appeal Is Not “On the Merits” If the Dismissal Was for Mootness
Arbitration Not Waived by 13 Months of Litigation? Supreme Court to Weigh In
Fatal Error in Judicial Council Cost Memorandum Form, Says Dissenting Justice
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should direct their briefs to the justice “in the catbird seat,” and what it was like sitting in the catbird seat.

Justice Lambden also talks about his single unpublished dissent.

Justice Lambden also talks about his time as a judge on the Alameda County Superior Court, the great outdoors, finding and wearing a good hat, and what it’s like for judges to transition to private judging: “Going back out among the bar without wearing the robe is kind of intimidating. Like they say, they don’t laugh at my jokes anymore.”

Justice Lambden serves up a lot of sage advice:

“Litigation is not like preparing for a battle, it’s more like going on an expedition … like taking a trip across the mountains and encountering different places where you have to do different things.”
Hire your appellate attorney before the verdict!
Have an elevator-pitch for your case. If you only have arguments but no theme, you’re not ready.
On unpublished opinions: Who cares? The California Court of Appeal is not bound even by published decisions, as there is no horizontal stare decisis in our system. If you find good reasoning, use it: if the good argument comes from a published case, make the argument, and cite it. If the good argument comes from an unpublished case, make the argument, but don’t cite it. In either event, it’s not the best citation but the best argument that wins. (This reminds me of Johannes Scotus: “Authority sometimes proceeds from reason, but reason never from authority….We should not allege the opinions of the holy Fathers ... unless it be necessary thereby to strengthen arguments in the eyes of men who, unskillful in reasoning, yield rather to authority than to reason.”)
On the importance of focus letters and oral argument.
On access to justice, quoting Chief Justice Ronald George: “Without access, there is no justice.”

Justice James Lambden’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

“Something is very wrong with this picture.” This is how the Court of Appeal recently concluded a CEQA case—with finger pointed in CEQA’s direction. Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA. Peter talks with co-hosts Tim Kowal and Jeff Lewis about Tiburon Open Space Comm. v. Cnty. of Marin (May 12, 2022, A159860), which rejected a neighborhood group’s efforts to stymie a development project.

Only law nerds are interested in CEQA? Think again: Former Rolling Stone writer Matt Taibbi recently penned an article about how CEQA is thwarting California’s ability to provide housing. We discuss that, too.

Peter also supplies Tim’s personal favorite new quote, via Justice Brennan: “See how easy it is to be a City Attorney?… If all else fails, merely amend the regulation and start over again.” (San Diego Gas & Elec. Co. v. City of San Diego (1981) 450 U.S. 621, 655 n.22 (Brennan, J., dissenting).)

Also: The government gets anti-SLAPP protection for free speech? (See Vargas v. City of Salinas (2009) 46 Cal.4th 1.) Come on, SCOCA.

Finally, on the Lightning Round: A persuasive case for two spaces after a period?

Peter Prows’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Banks v. Mastorakos, Case No. B309937 (2d Dist., Div. 2 Aug. 16, 2022) (unpublished) [$960 in sanctions against plaintiff for bringing a frivolous motion for reconsideration; affirmed]. But see Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 1249 [“it should not matter whether the “judge has an unprovoked flash of understanding in the middle of the night” [citation] or acts in response to a party's suggestion.”]
Where have all the reporters gone?
SLAPP motions still available in 9th circuit:

What does the U.S. Supreme Court’s holding in Viking River Cruises, Inc. v. Moriana mean for PAGA claims against employers in California? Employment attorney Eric Kingsley explains how, under Viking River, employees now may be forced to waive their PAGA claims on a representative basis and arbitrate them individually instead. The holding disapproves the California Supreme Court decision in Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348 as running afoul of the Federal Arbitration Act.

Eric explains that the effect of Viking River may be short-lived. The California Supreme Court has already granted review in another case involving whether arbitration may be compelled in a PAGA representative action in Adolph v. Uber Technologies, Inc. Eric explains how the Court may follow the lead offered in Justice Sotomayor’s Viking River concurrence.

Eric also shares his experiences litigating in the California Supreme Court, some other interesting employment cases, and the Dr. Sally Ride Memorial Highway.

Eric Kingsley’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Viking River Cruises, Inc. v. Moriana
Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal.4th 348.
Adolph v. Uber Technologies, Inc.
Kim v. Reins
Dr. Sally Ride Memorial Highway

Justice Laurie Zelon spent 19 years on the Court of Appeal for the Second District before retiring in 2020 to work on cases as a mediator, arbitrator, and private judge. Justice Zelon talks with Tim Kowal and Jeff Lewis about:

her commitment to serving the community, and why we can’t throw up our hands because our problems are hard;
the difference between “litigation attorneys” and “trial attorneys”;
the difference between trial-court judging and appellate-court judging (you get time to “put your feet on your desk” and think about the case);
the decline of civility (not good for the system, the attorneys, or the clients);
using a neutral to evaluate your appeal or writ petition;
the secret to a successful writ petition (show why it matters, and why it can’t wait);
why remote oral arguments are not as good as in-person.

Justice Zelon’s biography at Judicate West and the Court of Appeal.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Three recent cases remind litigants of some important tips when opposing anti-SLAPP motions:

Spending money on litigation is not protected activity if the case is really about the misappropriation of the money. That’s Manlin v. Milner (D2d1 Aug. 10, 2022 Nos. B313253, B315077) 2022 WL 3223817 (nonpub. opn.) (Tim’s writeup is here).
Appealing an anti-SLAPP dismissal and attorney-fees award against your client? Cite Quiles v. Parent for its holding that SLAPP fee awards are automatically stayed on appeal (Tim’s writeup is here). Is the trial court refusing to honor the stay? You can seek a writ of supersedeas in the Court of Appeal, but if you want a reasoned opinion, you need direct review. For that, you’ll need to label your motion to enforce the stay as one for injunctive relief.
Opposing an anti-SLAPP motion filed outside the 60-day window? Reyes v. Escobar (D2d7 Aug. 12, 2022 No. B313575) 2022 WL 3334384 held that extending the time to file without considering the length of the delay, the reasons offered for the delay, and potential prejudice to the plaintiff, is an abuse of discretion.

Also: What questions do you want to hear appellate justices answer? The podcast will be hosting some retired appellate justices in future episodes, and we want to put to them the questions you’ve been itching to have answered. Email Tim at tkowal@tvalaw.com.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Manlin v. Milner (D2d1 Aug. 10, 2022 Nos. B313253, B315077) 2022 WL 3223817 (nonpub. opn.) (Tim’s writeup is here).
CALP episode 46 on judgment enforcement with Joseph Chora.
Quiles v. Parent for its holding that SLAPP fee awards are automatically stayed on appeal (Tim’s writeup is here).
Merritt v. Specialized Loan Servicing, LLC (D6 Aug. 11, 2022 No. H048463) 2022 WL 3274131 (Tim’s writeup here).
Reyes v. Escobar (D2d7 Aug. 12, 2022 No. B313575) 2022 WL 3334384.
First Amendment Case Pertaining to Public Employees: Guffey v. Mauskopf issued Aug 16.

So you won a huge court case? Big deal — can you collect? Judgment enforcement, and defense against judgment enforcement, are critically important to litigants. But enforcement sits in that twilight region in between the trial and the appeal, so most trial and appellate attorneys do not know a lot about it. But Joseph Chora does. Judgment enforcement is all he does.

We ask Joseph to share some of his best enforcement tips (a teaser: don’t file fraudulent-transfer actions; file a lien instead—it’s faster, cheaper, and it flips the burden of proof). And some of the biggest pitfalls (e.g., failing to make an enforcement plan early).

We also discuss:

How to cut off the plaintiff’s right to judgment-enforcement fees — and if you’re the plaintiff, how to avoid this
Increasing an appellate bond
Enforce judgments against a trustee
Pursuing alter egos
Using evasions of judgment enforcement to get an appeal dismissed under the disentitlement doctrine
How plaintiffs should safeguard against restitution awards if a satisfied judgment is reversed on appeal

Joseph Chora’s website and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Conservatorship of McQueen (2014) 59 Cal.4th 602
Gray1 CPB, LLC v. SCC Acquisitions, Inc. (2015) 233 Cal.App.4th 882
Wertheim, LLC v. Currency Corp. (D2d1 Oct. 14, 2021) 2021 WL 4785575 (nos. B304655, B310650) [Tim’s post here]
Recent case in which plaintiff and defendant agreed to use a general verdict form in exchange for a stipulation to limit judgment enforcement to insurance and indemnity
SLAPP Fee Awards Are Automatically Stayed on Appeal: Tim’s Article in Cal. Litigation
Dr. Leevil, LLC v. Westlake Health Care Ctr. (D2d6 Mar. 17, 2021) no. B304339 (non-pub.) (writeup here)

Business litigators need to know about the civil-theft remedies under Penal Code section 496. In your next fraud, conversion, breach of fiduciary duty, or even breach of contract case, consider whether your facts fit Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081). If so, treble damages and attorney fees under section 496 may be supported.

Jeff and Tim also discuss what to do when after a judgment is reversed but an appeal of a post-judgment fee award is still pending. Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC (D4d3 Juul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.).

Finally, two appellate courts suggest different attitudes toward appellate sanctions: Shiheiber v. JPMorgan Chase Bank (D1d2 Jul. 26, 2022) No. A160188, urging attorney to think twice about “clogging the docket”; and Pop Top Corp. v. Rakuten Kobo Inc. (Fed. Cir. July 14, 2022) No. 2021-2174, in which the dissent suggested the majority had imposed $107,000 in sanctions merely for filing a “weak case.” As the dissent warned, the right of appellate review applies even to weak cases.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Links & other items discussed in the episode:

Supreme Court Affirms the Use of Powerful Civil-Theft Remedies Under Penal Code 496 in Business-Tort Cases
What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal
Should Bad Arguments Be Sanctionable? Some Recent Takes
California Enacts Gun Control Law Modeled on Texas' SB 8 Anti-Abortion Law
CA and TX’s new statutes allowing private rights of action (on guns & abortion, respectively);
School officials cannot block constituents from social media
Can footnotes get you sanctione

“The incentives are out of whack,” says Eric Post, a tenant’s rights attorney with BASTA, Inc. The past two years have seen a dramatic increase in evictions, he says. Why? Because that is the simplest way to raise the rent.

Eric talks with Jeff Lewis and Tim Kowal about the flaws in California’s landlord-tenant legal system, the near-impossibility of staying eviction judgments pending appeal, and the important differences between appeals in the appellate division and the Court of Appeal.

Eric also explains why it can be fairly easy to forum shop a case up to unlimited civil.

Finally, the discussion turns to Judge Carter’s bold effort to solve a piece of the Los Angeles homeless problem via injunction, though ultimately reversed by the 9th Circuit last year.

Eric Post’s LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Receive a 25% lifetime discount on Casetext at CaseText.com/CALP.

Other items discussed in the episode:

BASTA, Inc.
Episode 18 with tenant’s rights attorney Fran Campbell.
Tim’s post on Judge David Carter’s homelessness injunction overturned by the 9th Circuit: $1 Billion LA Homelessness Injunction Reversed by 9th Circuit: Judge's Independent Factual Investigation Was Improper

Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a jury to remember a few things, but one too many and they forget it all. But does this mean you should ditch a particular piece of secondary evidence at trial? That, as ever, still comes down to discretion and common sense.

Stefan talks with Jeff Lewis and Tim Kowal about some of the other helpful trial advice in John Blumberg’s Persuasion Science for Trial Lawyers, and whether it is scientific, or just common sense. Advice like:

Excessive information can lead to worse, not better, decisions.
Juries learn better with pictures. But avoid competition for resources: do not use written word, spoken word, and images all at the same time. It creates overload.
You should not present all your evidence at trial, because it overloads the jury’s cognitive capacity.
Judges who strive to run ruthlessly efficient trials should reconsider: eliminating downtime actually undermines jurors’ ability to process the information.
For the same reason, trial lawyers should slow down, use repetition, and even stop talking every now and then.

Stefan Love’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Arkansas Times LP v. Mark Waldrip, U.S. Court of Appeals Case No: 19-1378 [upholding AK law requiring public contracts to include a certification that the contractor will not “boycott” Israel].
Gascón asks Supreme Court to decide constitutionality of three strikes law.
Judge admonished over bias and bad temperament.

When you look up an answer whether an order is appealable, the cases are supposed to give you straight answers. But here are three cases that give surprising answers. (Ok, really just two — if you are surprised by the second one, you were mistaken.)

Reed v. Aviva USA Corp. (See Tim’s writeup on Reed here.)
Liang v. Shi (See Tim’s writeup on Liang here.)
Marriage of Deal (See Tim’s write up on Deal here.)

Also: Counsel horse-traded verdict forms in a recent med-mal case in Silvester v. Niparko for limitations on judgment-enforcement. (See Tim’s write up on Silvester here.)

Other items discussed in the episode:

Brach v. Newsom (9th Cir., June 15, 2022, No. 20-56291), denying the challenge to a Covid-19 school closures as moot. But not all judges agree on this point of mootness, as a LASC judge recently struck down a LAUSD vaccine mandate.
Field v. U.S. Bank (June 9, 2022, B309111): Evasive discovery responses used against the responding party on MSJ.
The “victory bell” case in which successful counsel bragged about their defense in a medical-malpractice case, describing the case as involving “a guy that was probably negligently killed, but we kind of made it look like other people did it.”
Appellate Practice Network launches! Members have access to the statewide network of appellate attorneys through a free listserve. Click HERE to join the Appellate Practice Network.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Sign up to Casetext and receive a 25% lifetime discount at CaseText.com/CALP.

Matthew Strugar knows something about defending protesters threatened with legal action, even jail — because he used to be one of them. Drawing from his activist background, including defending animal rights, Matt talks about how civil-harassment restraining orders are abused to squash speech rights, though the anti-SLAPP law can still come to the rescue. Matt also talks about why protests outside private homes are still protected, even though judges don’t like it.

Matt then mediates a fight between Jeff and Tim about whether anti-SLAPP fee awards are automatically stayed on appeal.

Matt Strugar’s biography and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Geiser v. Kuhns (Feb. 28, 2020, B279738) ___ Cal.App.2d ___.
FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133.
White Coat Waste Project v. Greater Richmond Transit Co. (4th Cir., May 20, 2022, No. 20-1710)
Tim Kowal, “Are Anti-SLAPP Fee Awards Stayed on Appeal?” Cal. Litig. Spring 2022 https://calawyers.org/section/litigation/publications/. Write-up here.
Chad Loder and Adam Kiefer (background here).
Brach v. Newsom (9th Cir., June 15, 2022, No. 20-56291)
Field v. U.S. Bank (June 9, 2022, B309111). - Evasive discovery responses case. Also referencing D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1.
Law firm social media cautionary tale: https://www.latimes.com/california/story/2022-06-06/an-o-c-lawyer-won-a-personal-injury-case-then-came-the-embarrassing-celebration-video.
Appellate Practice Network launches! Click HERE to join the Appellate Practice Network.

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and Tim Kowal about how he has addressed these kinds of problems while serving as embedded appellate counsel.

What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.

Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.

Jimmy Azadian’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Sign up to Casetext and receive a 25% lifetime discount at CaseText.com/CALP.

Other items discussed in the episode:

Cal. Code Civ. Proc. § 269 governing what proceedings must be transcribed by a court reporter.
People v. Pinholster (1992) 1 Cal.4th 865
R.M. v. J.J. (D3 Apr. 29, 2022 no. C090018) 2022 WL 1301801 (nonpub. opn.) counsels why you might not bother even trying a settled statement: trial court has wide latitude what not to include, and I’ve yet to see any limits to this latitude. Tim’s article on R.M. v. J.J. is here.
Cal. Court Reporters Assn. v. Judicial Council (1995) 39 Cal.App.4th 15.

Being a victim of discrimination and harassment at the hands of an employer is hard enough, but what happens when your employer is a judge? On episode 39 of the California Appellate Law Podcast, Aliza Shatzman discusses her personal experience and why it was not only personally horrifying, but damaging to her career.

Aliza also shares how the experience motivated her to create the first-of-its-kind Legal Accountability Project, a resource for aspiring law clerks and other judicial employees.

We also cover with Aliza:

Why the Judicial Conduct & Disability Act (28 USC § 358) is not working;
Why judges tend to be unwilling to police the misconduct of their colleagues;
Courts seem different from normal workplaces, and clerkships seem different from normal jobs. Should they be treated differently?
In the U.S. Supreme Court’s investigation of a recent draft opinion leak, clerks are being asked to turn over the cell phones and call data. Is this over the line?

Aliza Shatzman’s biography, LinkedIn profile, and Twitter feed @AlizaShatzman.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Aliza Shatzman’s Statement for the Record.
The Legal Accountability Project's website.
Aliza Shatman’s article with the UCLA Journal of Gender & Law, entitled "Untouchable Judges? What I've learned about harassment in the judiciary, and what we can do to stop it."
Former SCOTUS clerks command signing bonuses in the stratosphere of $400,000 or more.
Over 80 former staffers in Senate maj. leader Chuck Schumer’s office are now working in Big Tech.
Neal Katyal’s $2,465 an hour billable rate.

H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is favorable to criminal defendants.

Enforcing the tough-on-crime Three Strikes law, the Los Angeles appellate court handed DA George Gascon a loss on his assertion of prosecutorial discretion to refuse to enforce Three Strikes.
But the court also enforced the softer-edged Prop 57, the law that requires all criminal charges against minors be tried in juvenile courts. The Supreme Court held Prop 57 was retroactive, with the rather unsettling result that a now-40-year-old who murdered his mother at 16 (he stabbed her 45 times) may soon be released.

Then we turn to some anti-SLAPP news: Another dissent in the 9th circuit arguing that Anti-SLAPP denials should not be immediately appealable.

Then on the expert witness front: A state appellate court holds exclusion of expert opinion is structural error on appeal requiring automatic reversal.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

CaseText.com/CALP
1999 Judgment Not “Final,” 40-Year-Old Murder Convict Must Receive Juvenile Hearing Under Proper 57
The Ass'n of Deputy Dist. Attorneys for L. A. Cnty. v. Gascon
Anti-SLAPP Denials May Not Be Appealable Much Longer in the 9th Circuit
Exclusion of Expert Opinion Held Structural Error on Appeal Requiring Automatic Reversal
Focus letters coming to First District. Via Ben Shatz’s SCAN blog.
Delays in the 3rd District: https://www.sacbee.com/news/local/article262077357.html. Disciplinary Statement by Commission of Judicial Performance: https://cjp.ca.gov/wp-content/uploads/sites/40/2022/06/Raye_DO_Pub_Admon_6-1-22.pdf
Is a bumble bee a fish? Almond Alliance of CA v. Fish and Game Comm’n

The founder of Casetext, Pablo Arredondo, explains how legal technology that is available today will allow solos and small firms to compete against Big Law. Tim and Jeff talk with Pablo about:

Why Artificial Intelligence—which didn’t work well for a long time—now makes it much, much easier to find the legal authority you’re looking for.
The searches you are used to making is just “casual Friday in the keyword prison.” But now, you can put real English sentences into Casetext’s Parallel Search and it works.
Casetext’s A.I. isn’t limited to legal authority: you’ll be able to put your entire case file into a database and search for the evidence that supports the key facts in your case.
This gives small firms an alternative to deploying armies of staff to find evidence in a voluminous file.
Using Casetext’s Compose to create a first draft of a brief in a few minutes.
A.I. might be able to replicate “murder boards” in the future for attorneys preparing for oral argument.
In fact, the way “neural net” A.I. works is so impressive, Pablo describes it as a “black box,” and sometimes it is hard to describe what it does without using words like “thinking.”

Pablo Arredondo’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Casetext
Parallel Search
Compose
Genius Makers, by Cade Metz
LexisNexis’s LexMachina analytics platform

Genius Makers: The Mavericks Who Brought AI to Google, Facebook, and the World

When a cadre of appellate nerds began the California Academy of Appellate Lawyers (and Eating and Drinking Association) 50 years ago, the state appellate system was not functioning well.

Ben Shatz joins Jeff Lewis and Tim Kowal to talk about the founding of CAAL, where appellate jurists and practitioners could speak frankly about the problems in the courts, and how to solve them.

And following CAAL’s founding, says Ben, the related flourishing of state and local bar sections and publications devoted to appellate practice ushered in a golden age of appellate practice in California.

Ben also shares his brief-writing process, and whether you should use the blue book or the yellow book.

Appellate Specialist Ben Shatz’s biography, LinkedIn profile, and blog, SoCal Appellate News.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Ben Shatz’s Daily Journal article, “Happy 50th Anniversary, CAAL.”
The California Academy of Appellate Lawyers
The Appellate Court Experience
The history of SoCal Appellate News

The podcast is sponsored by CaseText. Podcast listeners receive a 25 percent lifetime discount if they sign up for CaseText at https://casetext.com/calp/. Casetext has search tools built on innovative AI to help you perform faster, smarter legal research and writing.

Jeff and Tim discuss some surprising recent cases, including two cases where the courts allowed untimely appeals, and a case where the right to an appellate record via a settled statement — although guaranteed in the Rules of Court and duly requested by the appellant — was rejected without appellate recourse.

And Jeff previews an anti-SLAPP motion brought by Sony Music that might be characterized as a SMACC: a strategic motion against credible claims. Did the Legislature, when enacting the SLAPP statute, have corporate giants like Sony in mind?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Cases discussed in the episode:

Tim’s post on recent strange outcomes involving untimely appeals.
Pelter v. 1-800-Get-Thin, Inc. (D2d1 May 11, 2022 no. B307771) 2022 WL 1485533 (nonpub. opn.).
Hurd v. Hurd (D2d2 Feb. 24, 2022 no. B309280) (nonpub. opn.).
Cast v. Kelly (2/3 B299797).
Quest Internat., Inc. v. Icode Corp, 122 Cal.App.4th 745 | Casetext.
Tim’s post on R.M. v. J.J. on settled statements.
Serova v. Sony Music Entm't (2020) 44 Cal.App.5th 103. Serova’s PFR is here. Sony’s Answer to PFR is here. FAC’s Amicus Brief is here.
United States v. Allen (9th Cir., May 16, 2022, No. 21-10060) “The public trial guaranteed by the Sixth Amendment is impaired by a rule that precludes the public from observing a trial in person, regardless whether the public has access to a transcript or audio stream.”
Potter Handy update from a newspaper in San Mateo California.

High-profile and celebrity family law attorney Chris Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff and Tim about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse.

Chris then talks about a way to bring more attention to non-celebrity cases through requests for publication of nonpublished opinions that raise important issues. And what kinds of cases pique the Supreme Court’s interest? It is often not what you think, says Chris, which is where bar networks come in handy in keeping up on legal trends.

Christopher Melcher’s biography, LinkedIn profile, Twitter feed, and YouTube page.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Requesting publication: California Rules of Court rule 8.1120.
Requesting de-publication: California Rules of Court rule 8.1125.
Frankie Valli’s life insurance was community property, California Supreme Court held.
No Right to In-Person Appearances: People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm.
Jury trial may not be waived merely for failure to comply with local rules. Amato v. Downs (May 6, 2022, E075421) [no binder, no jury trial: reversed.].
Myron Moskovitz on the futility of oral arguments. Via Ben Shatz’s SoCal Appellate News blog.
Quach v. Calif. Comm. Club, right to arbitrate is not waived, even after 13-months of litigation, if the only prejudice shown is litigation costs. Rehearing granted and opinion partially published.

Drawing from his experience training federal judges and top law lawyers how to write more effectively, Ross Guberman shares some of his best writing tips with Jeff and Tim on episode 33 of the California Appellate Law Podcast at www.CALPodcast.com.

Ross also gives a tour of his latest product, BriefCatch 3.0 (now available on Mac), a tool that scores legal briefs for engagement, readability, flow, punchiness, and clarity. Not sure how to take your writing from merely proper English to Elena Kagan? BriefCatch provides in-app examples of some of the best passages of Supreme Court justices.

Here are some of the tips Ross covers:

✍️ Why more judges are using pithy, attention-grabbing language—and why you shouldn’t imitate it in your briefs.

✍️ Rising above the fray without resorting to quips.

✍️ Getting the judge’s attention by tapping into three universal fears all judges have.

✍️ Discussing “bad facts” confidently, not defensively.

✍️ Using BriefCatch to improve your briefs.

✍️ Remember the purpose of legal writing is to help judges organize their thoughts—briefs are a tool, but aspire to make them tools that are a pleasure to use.

Ross Guberman’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

BriefCatch

Ross Guberman’s Point Made: How to Write Like the Nation’s Top Advocates

News of Brandon Sanderson’s four books published over the Covid shutdown.

Point Made: How to Write Like the Nation's Top Advocates

Certified appellate specialist and mediator John Derrick talks to Jeff and Tim about mediating cases on appeal. John explains that some appellate courts have mediation programs because of a mission to promote settlement. But the courts’ job is to decide cases. John discusses the conflict between these two roles, including a story about an appellate justice who regretted volunteering he wished the case would settle, but then unsubmitting the case for a post-oral-argument mediation. (This case still didn’t settle.)

Some other items discussed:

There are no mandatory settlement conferences on appeal: should there be? (No.)
Why parties don’t want to settle on appeal, and what counsel can do about it.
The importance of stays and posttrial motions.
Should judges be in the business of mediating?
When to notify the court about a possible settlement.
The pros and cons of Zoom mediations.
As a former publisher, John urges attorneys to use decimal-outline format for headings, i.e., 1., 1.1., 1.2., 2., etc.

John Derrick’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Dan Lawton, “A Lion in Winter: Senior Circuit Judge J. Clifford Wallace at 92” (Cal. Litig. 2021, Volume 34, Number 3).

After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases involving:

Defective notices of appeal.
Can an action be dismissed pending appeal? A surprising recent case answered “No.”
Related: Another case that was not stayed mooted the appeal.
Nationwide injunctions.
DA sues attorneys for alleged Unruh Act abuse.
You’ve heard of SLAPP suits, but what about a SMACC suit?

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

California Rules of Court 8.220 — default notices of failure to file a brief.
On defective notices of appeal: Ramirez v. Oxford Properties, Inc. (D4d2 Apr. 12. 2022 no. E076022) 2022 WL 1090899 (nonpub. opn.) and Beckering v. Shell Oil Co. (D2d3 2014) no. B256407 (nonpub. opn.), covered in Tim’s post here.
Can you dismiss your lawsuit while it’s on appeal? No, says Curtin Maritime Corp. v. Pacific Dredge & Const. (D4d1 Mar. 22, 2022) no. -- Cal.Rptr.3d ---- 2022 WL 841760, covered in Tim’s post here.
When this lawsuit was not stayed, it mooted the appeal in Art Works Studio & Classroom, LLC v. Leonian (D2d7 Apr. 12, 2022 no. B304461) 2022 WL 1090984 (nonpub. opn.), covered in Tim’s post here.
US District Court in Florida strikes down CDC’s mask mandate.
Sixth Circuit Chief Judge Jeffrey Sutton sounds off against nationwide injunctions.
San Fran and LA DAs sue attorneys for alleged abuse of Unruh Act actions in People v. Potter Handy, LLP

In this special episode, Jeff interviews Tim about the best and worst things about appellate law. Tim shares his favorite war stories, shares his approach to legal writing, and talks about his favorite comedian.

Then to business, Jeff and Tim discuss some recent cases.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other links:

Conservatorship of Estate of McQueen (2014) 59 Cal.4th 602 [paying judgment in full—in cash—cuts off right to enforcement fees].
McQueen v. Huang (D2d8 Mar. 4, 2022 no. B304645) 2022 WL 630606, and Tim’s write-up: Beware Challenging Arbitration Award: $38K Frivolous Appeal Sanctions Because Mere Arbitrator Error Is Not Reversible.
Kirk v. Ratner (D2d7 Feb. 10, 2022) --- Cal.Rptr.3d --- (2022 WL 405422), and Tim’s write-up: Preliminary Injunction Is Not Appealable If Issued by an Arbitrator.
Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.), and Tim’s write-up: Order Granting Withdrawal of Attorney Is Not Appealable.
San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925 in episode 27 with Victoria Fuller, and Tim’s write-up: Family Law Judgment Reversed for Failure to Provide a Statement of Decision.

David Greco heads up the appellate practice at the probate litigation firm RMO, LLP. David shares with co-hosts Jeff Lewis and Tim Kowal some of the unique features and challenges in probate appeals:

👉 Fact challenges in probate appeals are uniquely difficult to win. Probate trials are typically bench trials, and appellate courts very rarely overturn a judge’s factual findings.

👉 The “stay killer” in Probate Code § 1310(b) can render many probate appeals moot. David explains why section 1310(b) is his “favorite provision of the Probate Code.” And should there be a similar “stay killer” in the CCP or Family Code?

👉 Fraught family relationships and charged emotions can make representation in probate appeals difficult.

👉 The large role played by professional fiduciaries—trustees, conservators, and guardians—raises unique ethical and due-process considerations. David explains how abuse of these institutional relationships can and does sometimes happen.

David Greco’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

I Care a Lot. 2020.
Conservatorship of O.B., previously discussed on episode 6, and covered here and here.
Conservatorship of Bower (D4d3 Feb. 25, 2022 no. G059112) 2022 WL 571011 (nonpub. opn.).
Should witnesses be permitted to wear transparent masks rather than opaque masks, to better comply with the Confrontation Clause? Prof. Shaun Martin’s post on People v. Edwards (Cal. Ct. App. - March 18, 2022).
SCOTUS doesn’t want briefs to use passim anymore. (Via Ben Shatz.)
Howard Bashman’s list of appellate podcasts (mentioning the California Appellate Law Podcast).

The authors of the famous CalAttorneysFees.com blog, Marc Alexander and Michael Hensley, join us to discuss tips, traps, and best practices on attorney fee motions. Some key takeaways:

💡 Give the judge a roadmap. Explain: (1) Why you get fees; (2) Why your motion is timely; (3) What is the appropriate lodestar rate; (4) Why is the amount reasonable?

💡 Don’t be greedy! Inflated fee requests can ruin your credibility with the judge, and are likely to be severely chopped, or even denied entirely!

💡 Support your fee request with a detailed declaration from a lead attorney.

💡 Establish the necessity of litigation by discussing efforts to settle, and incivility by the other side.

💡 Consider retaining an expert if the fee request is large.

💡 Make your objections as specific as possible.

💡 Object to block-billing.

Marc Alexander’s biography and LinkedIn profile.

Michael Hensley’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other links:

Key cases holding that a severe reduction in fees may be warranted when excessive fees are sought: Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320; Donahue v. Donahue (2010) 182 Cal.App.4th 259, 271; Guillory v. Hill (2019) 36 Cal.App.5th 802, 807-816.
For more potential fraudulent/padded billing factors, see Cal. State Bar Comm. on Mandatory Fee Arbitration, Arbitration Advisory 2016-02, “Analysis of Potential Bill Padding and Other Billing Issues”.
Serrano v. Priest (1977) 20 Cal.3d 25 [positive enhancement factors for lodestar are case complexity, skill displayed, preclusion of other employment, and contingent nature of the fee].

When we covered some of the tips and pitfalls of family-law appeals on episode 6 of the California Appellate Law Podcast, it became one of our most popular episodes. So we invited Victoria Fuller, a certified appellate specialist focusing on family law, to join us for another installment.

Walking practitioners through various procedural issues in family-law cases, Victoria discusses with co-hosts Tim Kowal and Jeff Lewis:

The unique post-judgment relief available under Fam. Code, § 2122 for fraud, duress, mistake, and financial-disclosure violations;
Expanded relief on motions for reconsideration;
The critical statement of decision process; and
Despite these remedies, why do family-law appeals feel like such an uphill climb? (Answer: because family-court judges have so much discretion even they don’t realize the full extent of it.)

Victoria Fuller’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other links:

Victoria Fuller, “Understanding the difference between family law and civil appeals,” Daily Journal (Dec. 13, 2021), available at https://www.dailyjournal.com/mcle/1094.
Cases discussing motions for reconsideration available here, compared with In re Marriage of Horowitz, 159 Cal. App. 3d 377, 379, 381-85 (1984).
San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925 [ https://tvalaw.com/publication/family-law-judgment-reversed-for-failure-to-provide-a-statement-of-decision], reversing because the family judge refused to provide a SOD on request. (Subsequently ordered published.)
Judge VanDyke, discussed in episode 26, correctly predicted en banc review of McDougall: http://www.metnews.com/articles/2022/VanDykesPrediction_03092022.htm.
After more than 20 years on the appellate bench, Justice Richard D. Fybel of the 4th District Court of Appeal will retire March 31, 2022.

“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining appellate attorneys Tim Kowal and Jeff Lewis, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of every panel decision favorable to the Second Amendment, and has denied review to every unfavorable decision.

(And a few days after taping, On March 8, 2022 the Ninth Circuit granted en banc review of McDougall.)

McDougall involved Covid-19 orders shutting down gun ranges. The McDougall decision found Governor Newsom’s executive orders violated the Second Amendment.

Sean explains how the Ninth Circuit, and other circuits, have adopted a line of Second Amendment analysis that follows more closely Justice Breyer’s dissent in D.C. v. Heller than the Supreme Court’s majority. That is why, after writing the opinion for the panel, Judge VanDyke also wrote a concurrence, reaching the same conclusion but using this alternative line of analysis.

But wasn’t Judge VanDyke’s concurrence jarring and off-putting? Perhaps. And it is an unusual style for a judge to resort to. But the three attorneys agreed that Judge VanDyke meant it, quite deliberately, to be at least slightly offensive: an affront to the modern taste for cool and logically seamless forms of persuasion. Judge VanDyke genuinely believes that, however it happened, the train has gone off the tracks, and it will take some shoving and heavy breathing to put it back again.

Sean Brady’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

McDougall v. Cnty. of Ventura, 23 F.4th 1095 (9th Cir. Jan. 20, 2022).
Louis Menand, American Studies.
DC v. Heller, 552 US 1035 (2007).
McDonald v. City of Chicago, 561 U.S. 742 (2010).
Duncan v. Becerra, 742 F. App’x 218 (9th Cir. 2018).
Peruta v. California, 137 S. Ct. 1995, 1997 (2017).
Young v. Hawaii, 992 F.3d 765 (9th Cir. 2021).
Tim Kowal, “The Doomsday Provision,” the term coined by Judge Kozinski.
NPR, “

Reviewing some 9th Circuit and California appellate cases of note from early 2022, appellate specialists Jeff Lewis and Tim Kowal discuss these juicy issues:

💡 Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in United States v. Olsen.)

💡 Can the statutory right to a timely conservatorship jury trial be waived? (Yes, even if the judge kind of pushes you around, so stiffen up that spine!)

💡 Can the Church of Scientology compel arbitration of a dispute arising after members leave the church and allege Scientologist actor Danny Masterson rapes them? (No, but the Supreme Court had to step in and tell the Court of Appeal to take a little more time with the writ petition.)

💡 Can a pre-litigation demand cross the line into extortion, and thus fail to qualify for protection under Civil Code section 47’s litigation privilege? (Yes, if the attorney threatens to disclose the allegations to blow up the defendant’s potential merger.)

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other links:

United States v. Olsen, and Tim’s write-up on Olsen.
Tim’s write-up on Conservatorship of Joanne R. affirming the waiver of the right to a speedy jury trial challenging a 12-month conservatorship even though the trial court would not provide a jury until month nine.
The Scientology arbitration case of Bixler v. Superior Court (Jan. 19, 2022, B310559).
The just-barely-extortion case of Falcon Brands Inc. v. Mousavi & Lee, LLP (Jan. 27, 2022, G059477).
Tim’s write-up of the recent Cal. Supreme Court and Court of Appeal cases forgiving untimely appeals (In re. A.R. (2021) 11 Cal.5th 234, and In re B.P. (D5 Jan. 26, 2022 no. F082863) 2022 WL 224811 (nonpub. opn.).)

Attorney and author Ryan McCarl joins Tim and Jeff to discuss his forthcoming book, Elegant Legal Writing, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page — white space bucks up your reader to plod on.

Ryan also offers a thoughtful caveat to Tim’s proposal to abolish Rule of Court 8.1115, the “no citation” rule concerning unpublished opinions.

Ryan McCarl’s bio, Elegant Legal Writing blog, Twitter, and LinkedIn.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Discussed in the episode:

Episode 12 with Judge Bacharach on legal writing.
A proposal to modify the No-Citation Rule, Episode 22 with David Ettinger and Dean Bochner.

Jeff and Tim round up some recent California appellate cases of note:

Singman v. IMDB.com, bookmark this published opinion holding that legal propositions in a brief without a citation will be ignored.
Center Street v. Superior Court involving a rare summary affirmance.
Alexi & Ani LLC v. Warren, allowing an attorney sanctions appeal to proceed though the attorney was not listed on the notice of appeal.
Weischadle v. Vo, involving a dissent over whether a court reporter is really needed at oral argument.
In re Purdue Pharma, an OxyContin case in which a bankruptcy settlement was overturned on appeal.
State of California v. So. Cal. Edison, taking the majority view in the split over what kind of collateral orders are appealable.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review.

David also discusses the California Supreme Court’s “shadow docket” — precedential opinions that are issued without full merits briefing or oral argument.

Read David and Dean’s article, Revisiting California’s No-Citation Rule.

David Ettinger’s biography and blog, At the Lectern.

Dean Bochner’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

In this timely episode, health care litigator Rick Jaffe joins appellate attorneys Tim Kowal and Jeff Lewis to discuss the maelstrom of lawsuits challenging vaccine mandates in state and federal trial courts and appellate courts throughout the nation.

Rick’s practice focuses on cutting-edge medical and legal issues across the country, and he is the author of Galileo’s Lawyer, a book telling the stories of medical mavericks and giving an insider’s view on high-profile and controversial medical cases.

The three attorneys discuss why medical-rights litigation is different from other types of litigation. Rick then explains the three basic types of vaccine lawsuits that the courts are facing in late 2021 and early 2022: (1) challenges to the federal agency and police power; (2) religious conscience challenges; and (3) challenges to the state police power.

Attorney Rick Jaffe’s biography and blog, and Twitter feed.

(Get Rick’s book, Galileo’s Lawyer.)

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Resources mentioned in this episode:

Destiny of the Republic, by Candice Millard (2012).
Jacobson v. Massachusetts, 197 U.S. 11 (1905)
Let Them Choose v. San Diego Unified School District. https://www.icandecide.org/ican_press/more-details-about-the-san-diego-strike-down.

Galileo's Lawyer: Courtroom Battles in Alternative Health, Complementary Medicine and Experimental Treatments

Appellate attorney and Author Myron Moskovitz joins Tim Kowal and Jeff Lewis to discuss appellate writing tips, the importance of the Appellant's Reply Brief and Moot Arguments and his books teaching appellate tips.

Appellate Specialist Myron Moskovitz's biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Resources mentioned in this episode:

Myron's books, Winning an Appeal and Strategies on Appeal

Appellate attorney Anne Grignon joins Tim Kowal and Jeff Lewis to discuss her recent win in Banc of California v. Superior Court, a writ petition from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorneys then turn to private judging generally, discussing Justice Segal's recent caution about the industry's potential overuse of that privately compensated judges, and Presiding Justice Kline's similar sentiment that "private judging is an oxymoron" and is "undermining public justice.” Anne also shares three tips for your next appellate brief, before the three discuss some recent cases, including strategies to consider in approaching statements of decision.

Appellate Specialist Anne Grignon's biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Cases and other resources mentioned in this episode:

Banc of California v. Superior Court (D2 Sep. 27, 2021) no. B310190
Jolie v. Superior Court of Los Angeles (D2d7 Jul. 23, 2021) no. B308958
Presiding Justice Anthony Kline's comments on private judging courtesy SCAN
Brown v. TGS Mgm't Co 57 Cal.App.5th 303 (Cal. Ct. App. 2020).
Pettie v. Amazon.com, Inc. (D4d2 Sep. 21, 2021) 2021 WL 4270631 (no. E074241) (nonpub. opn.)
Hakenjos Hall Prof. Svcs, Inc. v. Korte/Schwartz, Inc. (D4d1 Jun. 17, 2021) 2021 WL 2461132 (nonpub. opn.).
Legendary Builders Corp. v. Grovewood Properties, LLC (D2d4 Oct. 5,
2021) 2021 WL 4550995 (nos. B297299, B301777) (nonpub. opn.).

Frances Campbell of Campbell & Farahani, LLP joins us for a discussion about her practice involving housing law, eviction defense, appeals and practicing in limited jurisdiction courts. She shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term HateWrite and the font Cochin for brief writing.

Appellate Specialist Frances Cambpell's firm website and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Cases and other resources mentioned in this episode:Amjadi v. Brown, No. G059069 (Aug. 30, 2021)

King v. May-Wesely (Oct. 22, 2021) 2021 WL 4929912 (no. F080224) (nonpub. opn.).

Legendary Builders Corp. v. Grovewood Properties, LLC (D2d4 Oct. 5, 2021) 2021 WL 4550995 (nos. B297299, B301777) (nonpub. opn.)

State Farm Mut. Auto. Ins. Co. v. Penske Truck Leasing Co. (9th Cir., Oct. 15, 2021, 20-55893).

Ninth Circuit to resume in person oral argument.

California Academy of Appellate Attorney's Recommendations to improve appellate court efficiency.

Lee Goldberg joins us for a discussion about his perspective as outside general counsel. Lee shares decades of experience using litigators to solve business problems and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn and his website CalLawyers.com, and what a general counsel looks for when hiring trial and appellate counsel. Some of Lee's lessons:

On litigation objectives: " My client is never principle over business. Ever."

On the most common mistake litigators make: " [When] they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see."

On hiring the right litigation team: "White shoe firms have their place. ... [But] all of it has to do with my relationship with the litigators and the litigation firm. Because I will tell you this if I have a good relationship with them, then we coordinate and work together, they understand where I'm coming from, I understand where they're coming from, and that best serves the client in the long run. So no, it's not always the Gibson Dunn's, okay. It's not always the Reed Smith's that I bring into these deals. All right? Local, smaller, dedicated, smart counsel is what I look for."

On trial counsel handling appeals: "I will never have my trial lawyers handle my appeals. Ever, ever."

On success: " The thing that people keep coming back to is success. Understand something, success is perception. Success is not a piece of paper. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had."

Tim, Jeff, and Lee also cover recent cases discussing how to properly ask for discovery in response to a summary judgment, and applying the disentitlement doctrine to dismiss an appeal, including why it may be important to bring appellate counsel in to an appeal.

Lee Goldberg's website, LinkedIn profile, and YouTube channel.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube channel.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Cases and other resources mentioned in this episode:Begley v. Delta Dental of Cal. (D1d3 Aug. 31, 2021) 2021 WL 3878844 no. A159983 (nonpub. opn.).

Findleton v. Coyote Valley Band of Pomo Indians, (Sep. 29, 2021, A158172) and Tim's write up of Findleton.

Press release for LA Superior Court re Dress Code

Kelly Ernby of the Orange County District Attorney's office joins us for a discussion about the first remote argument in the California Supreme Court during covid and her appellate experience on behalf of the District Attorney's office. We discuss Abbott Laboratories v. Superior Court and the ability of a District Attorney to initiate litigation beyond the geographic boundaries of each county.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Cases and other resources mentioned in this episode:Abbott Laboratories v. Superior Court (2020) 9 Cal.5th 642

Nede Mgmt. v. Aspen Am. Ins. Co. (Sep. 20, 2021, B307470)

Woodhill Ventures, LLC v. Ben Yang (Sep. 3, 2021, B305797)

LASC Press Release on Dress Code

Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and Tim Kowal about what it is like working at an appellate court ("like a monastery," in a good way), about how the writ panel works, cultural differences in the different district Courts of Appeal, and why the California appellate courts may tend to go easier on trial courts than federal appellate courts. Jeff also shares his theory on why California appeals are not as much "fun" as federal appeals (hint: it has to do more with the legislatures than the judges), and disagrees with Tim's proposal that Rule of Court 8.1115 be amended to allow parties to cite unpublished opinions.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Cases and other resources mentioned in this episode:

John Hasnas, The Myth of the Rule of Law: http://faculty.msb.edu/hasnasj/GTWebSite/MythWeb.htm.
Tim's blog post discussing Howard J. Bashman, The Recurring Problem of Unpublished Opinions and What to Do About It?, ABA Council of Appellate Lawyers, Appellate Issues, Fall 2017, at 23: https://tvalaw.com/publication/still-more-ways-to-mention-unpublished-appellate-opinions.
The Syufy Rosetta Stone: http://alex.kozinski.com/articles/The_syufy_rosetta_stone.pdf.

Missouri appellate attorney John Reeves joins Tim and Jeff to discuss Marin Housing authority v. Reilly, a case pending possible review by the United States Supreme Court. At issue there: whether a public housing authority, in calculating a family’s annual income, is required to exclude Medicaid-funded payments made to a family by a State agency to allow the Section 8 tenant to provide personal caregiving services in order to keep a developmentally disabled family member at home. John, Tim and Jeff also discussed amicus briefs and other aspects about practicing appellate law.

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography and Twitter Account
Sign up for Tim Kowal’s Weekly Legal Update
John Reeves' bio.

Cases and other resources mentioned in this episode

SCOTUS Blog's coverage of the Marin Housing case.
Statistics regarding California amicus briefs.
Michaels v. Greenberg Traurig, LLP (Mar. 26, 2021, B300093) ___ Cal.App.2d ___
Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747
Nicholson v. Southern California Edison Co. (D2d7 Jun. 22, 2021) no. B302287 (nonpub. opn.)
California statistics of disposition of appeals and other legal proceedings.

Georgia appellate attorney Frank Lowrey joins Tim and Jeff to discuss Williams v. Harvey, a recent decision by the Georgia Supreme Court concerning preservation of error and motions in limine. Frank, Tim and Jeff also discussed civility and other aspects about practicing appellate law.

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography and Twitter Account
Sign up for Tim Kowal’s Weekly Legal Update
Frank Lowrey's bio

Cases mentioned in this episodeWilliams v. Harvey (Ga., May 17, 2021, S20G1121)Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285
Salsbury Eng'g, Inc. v. Consol. Contracting Servs. (In re Mahoney) (June 10, 2021, G057832) ___ Cal.App.4th ___

Hosts Tim Kowal and Jeff Lewis discuss legal writing with Judge Robert Bacharach of the Tenth Circuit Court of Appeals. Judge Bacharach has written a new book on legal writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word. We discussed his perspective from the bench on legal writing and appellate practice.

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography and Twitter Account
Sign up for Tim Kowal’s Weekly Legal Update

Briseño v. Henderson (9th Cir., June 1, 2021, No. 19-56297) [The recent 9th Circuit case referring to new Star Wars movies as mediocre]

ABA Press is offering a 20% discount through 12/31/2021 on Judge Bacharach's book: Legal Writing: A Judge’s Perspective on the Science and Rhetoric of the Written Word. You can purchase the book by using the code LGLFBRA when using the ABA website here or by calling 1-800-285-2211.

Hosts Tim Kowal and Jeff Lewis discuss recent appellate decisions and share tips for trial lawyers to maximize their chances of prevailing on appeal.

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography and Twitter Account
Sign up for Tim Kowal’s Weekly Legal Update

Wells Fargo Bank, N.A. v. Agak (Apr. 12, 2021) no. B300635 (unpublished).

Satanic Temple, Inc. v. City of Scottsdale, No. 20-15338 (9th Cir. May 19, 2021).

Brown v. County of San Bernardino, 2021 WL 1054561 (9th Cir. Mar. 19, 2021).

Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.)

Yuzon v. Contra Costa County Comm. Coll. Dist. (D1d2 Mar. 29, 2021) no. A161834 (unpublished)

Brownstone Lofts, LLC v. Otto Miller (D1d1 May 11, 2021) no. A160616 (non-pub.)

Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 1049

People v. Morales (2001) 25 Cal.4th 34, 48 fn.7

Alan Yockelson joins Tim and Jeff to discuss Alan's cases involving genetic testing of the remains of Charles Manson and the right to a jury trial in statutory unfair competition cases. Alan shares his decades of experience on the value of tentative opinions, does oral argument matter and other appellate tips.

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography and Twitter Account
Sign up for Tim Kowal’s Weekly Legal Update

Cases mentioned in this episodeFreeman v. Channels (In re Estate of Manson) (Apr. 13, 2021, B303594) ___ Cal.App.2d ___
Estate of Stoddart (2004) 115 Cal.App.4th 1118
Nationwide Biweekly Admin., Inc. v. Superior Court (2020) 9 Cal.5th 279

Episode 9: Cory Webster joins Tim and Jeff to discuss the differences in state and federal appellate procedure. The three appellate attorneys discuss postjudgment motion tips, oral argument, and the growing influence of appellate decisions.

Jeff and Tim then discuss recent appellate news, including a recent decision that suggests civility may be a grounds for increasing a lodestar fee award.

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography
Sign up for Tim Kowal’s Weekly Legal Update
Cory Webster’s biography.

Cases and Laws mentioned in this episode

Karton v. Ari Design & Construction (March 9, 2021 B298003)

Estate of Foster through Foster v. American Marine SVS Group Benefit Plan (9th Cir., Mar. 11, 2021, No. 20-35023) 2021 WL 930257

Lubke v. Automobile Club of S. Cal. (Jan 6, 2021 B302782)

Ventura Cnty. Deputy Sheriffs' Ass'n v. Cnty. of Ventura (Mar. 3, 2021 B300006)

Langere v. Verizon Wireless Services, No. 19-55747 (9th Cir. Dec. 29, 2020)

Episode 8 – This episode includes an interview with appellate attorney MC Sungaila

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography
MC Sungaila's biography
Sign up for Tim Kowal’s Weekly Legal Update

Cases and Laws mentioned in this episode

Apex LLC v. Korusfood.com (2013) 222 Cal.App.4th 1010

Barmapov v. Amuial (11th Cir., Feb. 3, 2021, No. 19-12256)

Brownback v. King (Feb. 25, 2021, No. 19-546)

Doe v. Westmont Coll. (Jan. 25, 2021, 2d Civ. B303208)

People v. Gentile (Cal. Dec. 17, 2020) S256698

Robinson v. SSW(2012) 209 Cal.App.4th 588

Letter Requesting that California Supreme Court Transfer Cases from the Third District

SCAN Blog Article re Oral Argument

Tim’s Article discussing Apex and Westmont

Tim’s Article discussing citation of unpublished decisions

Episode 7 – This episode discusses stays and bonds in California appeals

Appellate Specialist Jeff Lewis' biography
Appellate Specialist Tim Kowal's biography
Sign up for Tim Kowal’s Weekly Legal Update

Cases and Laws mentioned in this episode

Buechler v. Butker

Buzgheia v. Leasco Sierra Grove

Chamberlinv. Dale’s R. Rentals, Inc.

Changsha Metro Group Co., Ltd. v. XufengDowling v. Zimmerman

East Bay Regional Park Dist. v. Griffin

Estate of Dabney

Foggy v. Ralph F. Clark & Associates, Inc.,

Gold v. Superior Court

Grant v. Superior Court

Lang v. Petaluma Hills Farm, LLC

Morales v. Harris

Provost v. Yourmechanic, Inc.

Quiles v. Parent

Renfro v. Kai-Lieh Chen

Varian Med. Systems, Inc. v. Delfino

Weisenburg v. Molina

Young v. Tri-City Healthcare Dist.

This episode discusses appeals and writs in family law cases.

Appellate Specialist Jeff Lewis' biography
Appellate Specialist Tim Kowal's biography
Sign up for Tim Kowal’s Weekly Legal Update

Cases and Laws mentioned in this episode

California Rules of Court, Appendix I re Covid

California Rules of Court, Rule 8.104

Code of Civil Procedure, section 170.6

Code of Civil Procedure, section 904.1

Code of Civil Procedure, section 916

Family Law Code, section 2025

Senate Bill 1146

Conservatorship of O.B., (2020) 9 Cal.4th 989

In re Marriage of DeSouza (2020) 54 Cal.App.5th 25

In re Marriage of Hein (2020) 52 Cal.App.5th 519

Olson v. Cory (1983) 35 Cal.3d 390

Segal v. ASICS America Corp.(Review Granted Sept. 30, 2020 Case No. S263569).

Court statistics for 2019

This episode discusses California cases and procedures in impacting making and challenging peremptory challenges to jurors and motions for reconsideration.

Appellate Specialist Jeff Lewis' biography
Appellate Specialist Tim Kowal's biography
Sign up for Tim Kowal’s Weekly Legal Update

Cases and Laws mentioned in this episode

AB 3070 – New law governing Peremptory Challenges

Rule 8.108 – Appellate Extensions for Motions for Reconsideration

Branner v. Regents of Univ. of Cal. (2009) 175 Cal.App.4th 1043

Marshall v. Webster (Aug. 27, 2020, No. C088240) 2020 WL 5051525

Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894

Rowan v. Kirkpatrick(Sept. 4, 2020, No. A160568).

King v. U.S. Bank National Association (2020) 52 Cal.App.5th 728

Pankey v. Petco Animal Supplies, Inc. (2020) 51 Cal.App.5th 61 [depublished]

Bolger v. Amazon.com, LLC (2020) 53 Cal.App.5th 431

Conservatorship of O.B. (2020) 9 Cal.5th 989

Thurston v. Fairfield Collectibles of Georgia, LLC (2020) 53 Cal.App.5th 1231

Margeson v. Ford Motor Co. (Sept. 22, 2020 Case No. B287445)

Martinez v. O'Hara (2019) 32 Cal.App.5th 853

Pavone v. State Bar of California (2:20-cv-07193)

Bus. & Prof. Code, § 6068

This episode discusses cases and procedures in appealing preliminary injunctions.

Appellate Specialist Jeff Lewis' biography.
Appellate Specialist Tim Kowal's biography .

Cases mentioned in this episode

ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1

Abbott Laboratories v. The Superior Court (2018) 24 Cal.App.5th 1 (2018)

Amgen v. Health Care Services (2020) 47 Cal.App.5th 716

Ashburn v. AIG Fin'l Advisors, Inc. (2015) 234 Cal.App.4th 79

Bearden v. Ballad Health (2020)

DOE v. Regents of the University of California (2020) 51 Cal.App.5th 531

Fletcher v. Superior Court(2002) 100 Cal.App.4th 386

Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352

Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723

Ligon v. New York (2013) 925 F.Supp.2d 478

Luckett v. Panos (2008) 161 Cal.App.4th 77

Newsom v. Superior Court of Sutter County (July 10, 2020, No. C092070)

People v. HomeAdvisor (May 14, 2020 No. A154960)

People v. Tyson Theodore Mayfield (2020) 50 Cal.App.5th 1096

PV Little Italy v. MetroWork Condo Association (2012) 210 Cal.App.4th 132 (2012)

Welsch v. Goswick (1982) 130 Cal.App.3d 398

Yost v. Forestiere(Jun. 29, 2020 No. F078582)

Other Resources Mentioned in the Episode

This episode of California Appellate Law Podcast discusses cases, procedure and common pitfalls in appeals involving summary judgments.

Appellate Specialist Jeff Lewis' biography and background.
Appellate Specialist Tim Kowal's biography and background.

Cases mentioned in this episode

Ung v. Koehler (2015) 135 Cal.App.4th 186
Mosley v. Pacific Specialty Ins. Co. (2020) 49 Cal.App.5th 417
Sosa v. CashCall, Inc. (2020) 49 Cal.App.5th 42
Union Bank v. Superior Court (1995) 31 Cal.App.4th 573
Bayramoglu v. Nationstar Mortgage LLC (July 1, 2020, No. C084299)
Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487
D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1
McAlpine v. Norman (June 22, 2020, No. C088327)
Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119
Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395
Levin v. Ligon (2006) 140 Cal.App.4th 1456
Rush v. White Corp. (2017) 13 Cal.App.5th 1086
Lourick v. Hunt & Henriques, (June 26, 2020 No. C086203 [unpublished]
Pacifica First National, Inc. v. Abekasis (June 15, 2020, No. B298292)

Other Resources Mentioned in the Episode111 N. Hill Street Blog of Civil Procedure
Latest LA Superior Court press release about COVID-19 and trials
California State Bar announcement regarding Fall 2020 Bar Exam

This episode of California Appellate Law Podcast discusses cases finding that orders generally considered not appealable to be appealable, such as demurrer orders, summary judgment orders, and statements of decision.

Appellate Specialist Jeff Lewis' biography and background.

Appellate Specialist Tim Kowal's biography and background.

Cases mentioned in this episode

Brown v. Butler (Cal. Ct. App., May 19, 2020 No. D075348) [unpublished]

Fidelity National Home Warranty Co. Cases (2020) 46 Cal.App.5th 812

Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894

Valero Refining Company - California v. Bay Area Air Quality Management District Hearing Board (2020) 49 Cal.App.5th 618

Lowery v. Kindred Healthcare Operating, Inc. (Cal. Ct. App., Mar. 20, 2020, No. A153421) [unpublished]

Nguyen v. Ford (2020) 49 Cal.App.5th 1

Weimer v. Nationstar Mortgage, LLC (2020) 47 Cal.App.5th 341

Coleman v. Arnswald (Cal. Ct. App., Apr. 15, 2020, No. C082882) [unpublished]

Marriage of Wilcox (2004) 124 CA4th 492

Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal.App.5th 348

Renfro v. Chen (Cal. Ct. App., Apr. 6, 2020, No. F076083)[unpublished]

Blumenthal v. Jones (Cal. Ct. App., May 27, 2020, No. G057864) [unpublished]

Galen v. Redfin Corporation (Cal. Supr. Ct. No. S220936)

Insalaco v. Hope Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506

Other Resources Mentioned

Assembly Bill 3366

SCAN Blog Post with Links to Video Argument in Second District

Please send feedback and suggestions for future episodes to CALPodcast@gmail.com

The inaugural episode of California Appellate Law Podcast discusses California's anti-SLAPP law, Code of Civil Procedure section 425.16 and several key decisions by the California Court of Appeal and the California Supreme Court. In 1992, California enacted Code of Civil Procedure section 425.16 which provides a mechanism for quickly dismissing frivolous lawsuits and awarding attorney’s fees to the defendant. The law applies to lawsuits that arise from free speech or petitioning activity, such as filing a lawsuit.

Appellate Specialist Jeff Lewis' biography and background.

Appellate Specialist Tim Kowal's biography and background.

California Supreme Court Cases on “Prong One” of the Anti-SLAPP Analysis:

City of Cotati v. Cashman (2002) 29 Cal.4th 69.

Park v. Board of Trustees (2017) 2 Cal.5th 1057.

Wilson v. CNN (2019) 7 Cal.5th 871.

Recent Cases on “Prong Two” of the Anti-SLAPP Analysis:

Gruber v. Gruber (2020) 48 Cal.App.5th 529.

Standard General v. Charney (Cal. Ct. App., May 4, 2020, No. B294313) [unpublished].

Recent Cases on “Prong One” of the Anti-SLAPP Analysis:

South Coast Property Services, Inc. v. Caelus (Cal. Ct. App., May 6, 2020, No. G057785) [unpublished].

Gotterba v. Travolta (2014) 228 Cal.App.4th 35

Recent Case on Anti-SLAPP Applied to a Federal Claim:

Patel v. Chavez (2020) 48 Cal.App.5th 484.

Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010).

Other Cases Mentioned:

Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180.

Dowling v. Zimmerman 85 Cal.App.4th 1400.

Westreich v. Higa (Cal. Ct. App., May 5, 200, No. B293726) [unpublished].

Third Laguna Hills Mutual v. Joslin (Cal. Ct. App., May 5, 2020, No. G057230) [unpublished].

Please send feedback and suggestions for future episodes to CALPodcast@gmail.com.