Shows
The California Appellate Law PodcastThe BigLaw EOs & Right to a HearingTrump’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 accusi...
2025-05-0737 min
The California Appellate Law PodcastWait, challenging a vaccine mandate is a SLAPP??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 happe...
2025-04-1634 min
The California Appellate Law PodcastAudio clips at trial & oral argument tipsEven 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:I...
2025-03-1219 min
The California Appellate Law PodcastChatGPT Fails, Sanctions & Disbarments, Feb. 2025Please 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...
2025-02-1835 min
The California Appellate Law PodcastReaction to Judge Jones and Prof. Vladeck's Exchange on Judge ShoppingIn 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 Tw...
2024-11-1916 min
The California Appellate Law PodcastThe appellate court that overruled a supreme court: Part 2 with John SylvesterJohn 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....
2024-06-1128 min
The California Appellate Law PodcastThe appellate court that overruled a supreme court: Part 1 with John SylvesterJohn 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 Co...
2024-06-0432 min
The California Appellate Law PodcastSocial Media and Jury Waiver High Court Cases, and Other Appellate NewsThe 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...
2024-04-0236 min
The California Appellate Law PodcastCert on Homeless Encampments and En Banc on SLAPPsThe 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...
2024-01-2438 min
The California Appellate Law Podcast2023’s Best Guests, Cases & TechLooking 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 ta...
2024-01-0357 min
The California Appellate Law PodcastEugene Volokh on Restraining Orders and the First AmendmentProf. 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 iss...
2023-12-1958 min
The California Appellate Law PodcastHigh-Profile Employment Appeals with Glenn DanasEmployment 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...
2023-12-061h 05
The California Appellate Law PodcastLiar in a Crowded Theater, with Jeff KosseffTurns 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.I...
2023-11-2950 min
The California Appellate Law PodcastThankful for Unpublished OpinionsIn 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 prac...
2023-11-2136 min
The California Appellate Law PodcastAppellate Bonds: What You Client Needs to Know, with Dan HuckabayTrial 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...
2023-11-1447 min
The California Appellate Law PodcastElegant Legal Writing, with author Ryan McCarlRyan 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 langu...
2023-11-071h 03
The California Appellate Law PodcastReversals on Technicalities: 4 Recent ExamplesAppellate 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, th...
2023-10-3140 min
The California Appellate Law PodcastHow Appellate Lawyers Debate Gun Control and AbortionNinth 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 judg...
2023-10-2457 min
The California Appellate Law PodcastCM/ECF Is Outdated So Get Ready for the 9th Circuit’s ACMS, with Susan GelmisHave 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. Star...
2023-10-1847 min
The California Appellate Law PodcastThe 9th Cir. “Reimagines” Diversity JurisdictionThe 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:
2023-10-1045 min
The California Appellate Law PodcastHow to Prepare for Oral ArgumentHave 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 spi...
2023-10-0447 min
The California Appellate Law PodcastThe Power of Anti-SLAPP Motions: Sept. 2023 CasesAnti-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 th...
2023-09-2735 min
The California Appellate Law PodcastJudges Use Clearbrief & So Should You, with Jackie SchaferAmong 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...
2023-09-1955 min
The California Appellate Law PodcastAppeal Your Arbitrator?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 Spec...
2023-09-1343 min
The California Appellate Law PodcastBest Practices for Expert TestimonyYour 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 ne...
2023-08-2946 min
The California Appellate Law PodcastInvestigating Judge Newman, with Aliza ShatzmanThe 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 Accounta...
2023-08-2250 min
Jeff Lewis TrumpetJLTP 050: How To Improvise On “Pink Panther”.In this episode of The Jeff Lewis Trumpet Podcast, I go over how to improvise on the Henry Mancini classic “Pink Panther”. This is the solo section only. It can be found in the second trumpet part in the Big Band composition and arrangement by Henry Mancini. Be sure to stick around to the end, grab your horn, and let’s trade 2 and 4-measure phrases.
Download the companion PDF “cheat sheet” with the color-coded scales and chords here;
“Pink Panther” color-coded PDF
YouTube play-along/backing track for “Pink Panther”
I use the Jo-Ral copper bub...
2023-08-1813 min
The California Appellate Law PodcastTim’s New Firm & Recent CasesTim 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. B321...
2023-08-0841 minJeff Lewis TrumpetJLTP 049: Jaw position and the “Whisper G”In this episode of The Jeff Lewis Trumpet Podcast, I talk about my thoughts on the jaw position when playing the trumpet and how the Cat Anderson “whisper G” may help with jaw awareness, endurance, range, and overall sound.
In this particular episode, you will learn;
The importance of jaw position when playing the trumpet and how it affects range and sound.
My take on the Cat Anderson whisper G.
An example of me playing the whisper G.
Common problems when trying to play the whisper G when first starting out.
How practicing the whisper G may i...
2023-07-2713 min
The California Appellate Law PodcastTwo-Party Consent Privacy Laws Might Be Unconstitutional, and Other Recent CasesOne 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 stat...
2023-07-2543 min
The California Appellate Law PodcastThe Shadow Docket, with Stephen VladeckMost 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...
2023-07-1853 min
The California Appellate Law PodcastThe Best Legal Movies Ranked, with Gary WaxA 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...
2023-07-1149 minThe Jeff Lewis Trumpet PodcastJLTP 048: Trumpet Embouchure Change? What to expectIn this episode of the Jeff Lewis Trumpet Podcast, I talk about my embouchure change journey, the resources I used, and a few tips on how to physically and mentally prepare yourself for what to expect.
In this episode you will learn;
The difference between an embouchure change and an embouchure adjustment
How to mentally prepare for a change
Resources to help you unlock the key to your best embouchure
Items mentioned in this podcast;
“The Art of Brass Playing” by Phillip Farkas
The Encyclopedia of the Pivot System by Dr. Donald Reinhardt
The Pivo...
2023-07-0610 minJeff Lewis TrumpetJLTP 048: Trumpet Embouchure Change? What to expectIn this episode of the Jeff Lewis Trumpet Podcast, I talk about my embouchure change journey, the resources I used, and a few tips on how to physically and mentally prepare yourself for what to expect.
In this episode you will learn;
The difference between an embouchure change and an embouchure adjustment
How to mentally prepare for a change
Resources to help you unlock the key to your best embouchure
Items mentioned in this podcast;
“The Art of Brass Playing” by Phillip Farkas
The Encyclopedia of the Pivot System by Dr. Donald Reinhardt
The Pivo...
2023-07-0610 min
The California Appellate Law PodcastCory Webster on 9th Cir updates9th 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...
2023-07-0455 min
The California Appellate Law PodcastThe “(cleaned up)” origin story, with Jack MetzlerWARNING: 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 l...
2023-06-2746 minJeff Lewis TrumpetJLTP 047: How to Improvise on “Four” by Miles DavisIn this episode of The Jeff Lewis Trumpet Podcast, I go over an easy way to improvise over the Miles Davis jazz classic “Four”.
Items mentioned in this podcast (click the descriptions for access);
“Major Scale Patterns for Jazz Improvisation” (Free version in C only)
“Major Scale Patterns for Jazz Improvisation” (In all 12 keys)
My jazz play-along/backing track for “Four” on YouTube
In this particular episode, you will learn;
The form
The key centers
An easy way to navigate the chord changes
Which 4 major scales to use for improvising...
2023-06-2116 min
The California Appellate Law PodcastJennifer Novak on Representing the Environment in CourtAs 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...
2023-06-2048 min
The California Appellate Law PodcastGot Bias? The New Bias Prevention Committee Wants Your Help, with Ben ShatzImproper conduct by a trial judge is one thing. But where do you take complaints against an appellate court? Supreme Court Associate Justice Martin Jenkins heads up a new Bias Prevention Committee, and committee member Ben Shatz joins us to talk about its mission: to promote an appellate court environment free of bias and the appearance of bias.What is the best way to do that? That’s where you come in. As attorneys, litigants, or amici curiae, your suggestions are needed on how to support the integrity and impartiality in our appellate courts. Some ideas:Th...
2023-06-1352 min
The California Appellate Law PodcastMaxine Waters’ SLAPP, 5pm Filing Deadline, “Snitch Rule” & More Recent Legal NewsOur 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...
2023-06-0640 min
The California Appellate Law PodcastRacking Up Appellate Argument Experience with Chris SchandevelADF 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...
2023-05-301h 14
The California Appellate Law PodcastFrom BigLaw to Solo: Carl Cecere on the freedom to take significant casesOpioids, 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 propertyThe Purdue opioid case, and the trend of using bankruptcy to shield liability. Reading the BK code textually may re...
2023-05-1650 min
The California Appellate Law PodcastJudge Bress slags SLAPP appeals, and other recent casesAnti-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...
2023-05-0942 min
The California Appellate Law PodcastUntimely & Defective Notices of Appeal: April 2023 Cases & TidbitsOn 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 da...
2023-05-0237 min
Tupelo Tom & Big Lew: Talkin'Too Much Monkey BusinessHow did our optimistic Oscars predictions turn out? Exactly how much ELVIS™ is in the new animated series on Netflix? What was The King up to in the month of May? Did Jeff & Tom survive the whirlwind of back-to-back Elvis festivals? Where are we headed next? FIND OUT on this episode of Talkin'.Events mentioned in this episode:Nashville Elvis™ FestivalJeff Lewis & Friends Spring Elvis™ FestivalIllinois Elvis™ FestivalTo learn more about Jeff & Tom and this podcast visit our website: www.TupeloTomandBigLewTalkin.comInstagram: @talkinelvispodcastTik...
2023-04-251h 13
The California Appellate Law PodcastUse ChatGPT to prepare for oral argument, with Prof. Jayne WoodsAI, 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...
2023-04-1839 min
The California Appellate Law PodcastUnlocking Your Case Theme at Oral Argument: Jeff Markowitz with a Minnesota Perspective on AppealsYou 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 th...
2023-04-111h 01
The California Appellate Law PodcastTop Tips for Respondents on Appeal to Get Your Judgment AffirmedAs 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. Enforc...
2023-03-2847 min
Tupelo Tom & Big Lew: Talkin'Spring FeverWe’ve got “Spring Fever” because Elvis is BACK! Who do Tom & Jeff think is the breakout star of “Agent Elvis”? What are their predictions for Austin Butler and the Elvis movie at The Oscars? What is the worst Christmas gift Elvis gave out? What events unfolded at the Myrtle Beach & Louisiana Elvis™ Festivals? All this and so much more, coming up in episode 3 of Talkin’!This episode is sponsored by ETA Festivals, the leading producer of Elvis™ Festivals in the United States.Events mentioned in this episode:Myrtle Beach Elvis™ FestivalLouisiana Elvis™...
2023-03-091h 50Jeff Lewis TrumpetJLTP 045: The “Kansas City” Blues ScaleIn this episode of the Jeff Lewis Trumpet Podcast, I go over the “Kansas City” blues scale, how to use it, and how it differs from the regular blues scale.
The Blues Shuffle in Bb Concert play-along used in this podcast is available on YouTube here.
In this particular episode, you will learn;
What a Kansas City Blues scale is
10 short phrases, or “licks”, you can play over a blues
How the Kansas City differs from the “regular” blues scale
Listen till the end, then grab your horn and play along using all of these “ri...
2023-03-0412 min
The California Appellate Law PodcastPMQ Declarations, Extortion & AI JudgesOn 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 CHR...
2023-02-0736 min
The California Appellate Law PodcastThe Best Advocacy Tips of 2022In 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 fo...
2023-01-1042 minThe Jeff Lewis Trumpet PodcastJLTP 044: How To Be Your Own Best TeacherIn this episode of The Jeff Lewis Trumpet Podcast, I go over different ways of adjusting your embouchure for maximum sound and efficiency, how to be your own best trumpet teacher and a list of suggested books for embouchure development.
In this podcast you will learn;
Different ways to adjust your embouchure for better sound and efficiency through self-analysis and micro-adjusting
List of potentially helpful books, methods, and systems for improving range, endurance, and sound.
Links and suggested books mentioned in this podcast;
“The Balanced Embouchure by Jeff Smiley” trump...
2022-12-2115 minJeff Lewis TrumpetJLTP 044: How To Be Your Own Best TeacherIn this episode of The Jeff Lewis Trumpet Podcast, I go over different ways of adjusting your embouchure for maximum sound and efficiency, how to be your own best trumpet teacher and a list of suggested books for embouchure development.
In this podcast you will learn;
Different ways to adjust your embouchure for better sound and efficiency through self-analysis and micro-adjusting
List of potentially helpful books, methods, and systems for improving range, endurance, and sound.
Links and suggested books mentioned in this podcast;
“The Balanced Embouchure by Jeff Smiley” trump...
2022-12-2115 min
The California Appellate Law Podcast“Being Inauthentic Is a Betrayal of People’s Expectations”: Kyle Schneberg on Nursing Home Injury LawAfter 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.K...
2022-11-2944 min
The California Appellate Law PodcastM.C. Sungaila Reports Back After Over 100 Interviews of Women Judges & Attorneys at the Portia ProjectM.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:Th...
2022-11-2252 min
The California Appellate Law Podcast“You Can’t Lose a Case by Making It Too Clear”: An Interview with Justice John ZebrowskiWhen 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...
2022-11-1548 min
The California Appellate Law PodcastWhere’s the Harm?! & Other October 2022 CasesEvery 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...
2022-11-0838 minJeff Lewis TrumpetJLTP 034: Major Scale Modes for Jazz ImprovisationIn this episode of The Jeff Lewis Trumpet Podcast, I talk about how using major scale modes to improvise can be an easy way to navigate through many different chord types.
In this episode you will learn;
What the seven major scale modes are
An easy way to remember all seven modes
How to apply the major scale modes to multiple types of chords
Why using modes to improvise is an easy way to start “playing the changes” like a pro
Items mentioned in this podcast;
“The Jazz Theory Book” by Mark Levine (the best...
2022-10-3015 min
The California Appellate Law PodcastZoom Trials Are Not (Yet) the New NormalJeff 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...
2022-10-1828 min
The California Appellate Law PodcastThe Cal. Supreme Court’s Outgoing and Incoming Chief Justices, with David EttingerThe 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 discusse...
2022-10-0448 min
The California Appellate Law PodcastNew Lawyer’s Toolkit Cases on Missing Findings & E-Filing MishapsWhat 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...
2022-09-2744 min
The California Appellate Law PodcastWhy Are Courts Sour on CEQA? Peter Prows Explains“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...
2022-09-1354 min
The California Appellate Law Podcast“Justice Belongs to the Community”: A Discussion with Justice Laurie ZelonJustice 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...
2022-08-3048 minJeff Lewis TrumpetJLTP 042: Chet Baker’s jazz lick on “I’ll Remember April”In this session of the Jeff Lewis Trumpet Podcast, I go over Chet Baker’s jazz lick on his rendition of “I’ll Remember April”.
Download the free PDF of Chet Baker’s jazz lick in all 12 keys here
In this particular episode, you will learn;
How to swing like Chet Baker
How to analyze this solo
How to approach practicing jazz licks in all 12 keys
Why this solo sounds so great
I use software called “Transcribe” (not free) on my laptop and “Anytune” (free version) on my iPhone to transcribe solos and tunes.
...
2022-08-2808 min
The California Appellate Law PodcastCarrot & Stick: Treble Damages in Business Tort Cases, and Appellate SanctionsBusiness 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.).
2022-08-0938 min
The California Appellate Law PodcastThe Eviction Problem, with Tenant’s Rights Attorney Eric Post“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 un...
2022-08-0245 min
The California Appellate Law PodcastLessons on Persuasion, From Science & Beyond, with Stefan LoveReviewing 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 ot...
2022-07-2649 min
The California Appellate Law PodcastLitigating the “Fun Cases”: Civil Rights Appeals with Matthew StrugarMatthew 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 Tw...
2022-07-1252 min
The California Appellate Law PodcastAn Advanced Class in Making the Record, with Jimmy AzadianMerely 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...
2022-07-0543 min
The California Appellate Law PodcastHow Legal Tech is Leveling the Legal Playing Field, with Casetext Co-Founder Pablo ArredondoThe Co-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: y...
2022-06-1548 min
The California Appellate Law PodcastBen Shatz on the California Academy of Appellate Lawyers 50 Years OnWhen 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....
2022-06-0753 min
The California Appellate Law PodcastStrange Appellate Things: Untimely Appeals OK’d, No Right to Settled Statement, and… “SMACC” Suits?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 Twit...
2022-05-3127 min
The California Appellate Law PodcastCelebrity Attorney Christopher Melcher on What Gets the Courts’ AttentionHigh-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...
2022-05-2450 min
The California Appellate Law PodcastRoss Guberman on Conversational—Rather Than Tweet-Worthy—Legal WritingDrawing 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.
2022-05-1747 min
The California Appellate Law PodcastHow to Mediate and Settle Your Appeal, with John DerrickCertified 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...
2022-05-1057 minThe California Appellate Law Podcast“Stump Tim,” Do Sympathetic Parties Get Better Results? And Other Recent CasesAfter 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.A...
2022-05-0331 minThe California Appellate Law PodcastJeff Lewis Interviews Tim KowalIn 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...
2022-04-2635 minThe California Appellate Law PodcastDavid Greco on the Unique Challenges in Probate AppealsDavid 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 Cod...
2022-04-1948 minThe California Appellate Law PodcastVictoria Fuller on Family Law AppealsWhen 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; andDespite these remedies, why d...
2022-03-2247 minThe California Appellate Law Podcast“Prophet Without Honor”: Sean Brady on Judge VanDyke’s Controversial 2nd Amendment Prediction“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 ra...
2022-03-151h 01The California Appellate Law PodcastThe “Speedy” in Speedy Trial Becomes Relative, and the Limits of Scientology Arbitration: A Review of Jan. 2022 CasesReviewing 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...
2022-03-0130 minThe California Appellate Law PodcastElegant Legal Writing, with Ryan McCarlAttorney 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.App...
2022-02-1547 minThe California Appellate Law PodcastRejected Arguments for Lack of Citation, and Other Recent CasesJeff 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...
2022-02-0122 minThe California Appellate Law PodcastA Proposal to Amend the No-Citation Rule, with David Ettinger and Dean BochnerAttorneys 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,
2022-01-1847 minThe California Appellate Law PodcastExplaining the Vaccine Mandate Lawsuits, with Medical Rights Attorney Rick JaffeIn 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 e...
2022-01-041h 14The California Appellate Law PodcastWinning an Appeal: Our Interview with Author and Attorney Myron MoskovitzAppellate 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...
2021-12-1449 min
The California Appellate Law PodcastShould You Take a Writ? Anne Grignon on Arbitration Writs & 3 Tips for Your Next AppealAppellate 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, inc...
2021-12-0746 min
The California Appellate Law PodcastHow Does a Client Measure Success? Our Conversation with Outside General Counsel Lee GoldbergLee 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, li...
2021-10-1439 minThe California Appellate Law PodcastWhat Difference Does an Appellate Judge Make: Ideology, Orientation and Temperament in the Intermediate Appellate Courts of California: An Interview with Research Attorney Jeff CalkinsJeff 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...
2021-08-271h 01The California Appellate Law PodcastCircuit Splits, Amicus Briefs and Interview with John ReevesMissouri 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...
2021-07-3040 min