Shows
The California Appellate Law PodcastWhy the Lack of an Record Is a Constitutional Problem, with Erin Smith (Part 2)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 Sp...2024-11-0541 min
Kowal Investment Group - Now Creative PlanningWKLH - 10-18-24 – Jeff Kowal Interview – Retirement PlanningWKLH's Dave and Dorene share personal experiences with Jeff Kowal, discuss planning for retirement and ‘what if’ scenarios, and touch on changing your mindset in retirement.2024-11-0112 min
The California Appellate Law PodcastWhy the Lack of an Record Is a Constitutional Problem, with Erin Smith (Part 1)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 Publi...2024-10-2930 min
The California Appellate Law PodcastWhy One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 2)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 cons...2024-05-0733 min
The California Appellate Law PodcastWhy One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 1)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...2024-04-3030 min
The California Appellate Law PodcastWhat to know about “snap” and “super snap” removalsAre 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...2024-04-2313 min
The California Appellate Law PodcastTop 10 Tips for Family Law AppealsEvery 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...2024-04-0925 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 PodcastFive Hard Truths About an Appellate Practice, with Raffi MelkonianRaffi 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...2024-03-2652 min
The California Appellate Law PodcastJudge Nazarian to Judges: Take the Accountability PledgeThere 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...2024-02-271h 02
The California Appellate Law PodcastSleep Well to Crush Your Enemies, with Leslie PorterYou 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...2024-02-2052 min
The California Appellate Law PodcastSo You Think You Understand the Snitch Rule?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 committe...2024-02-1356 min
The California Appellate Law PodcastKyle O’Malley, the Attorney Who Won the Raines’ Supreme Court Employee-Screening CaseJust 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...2024-02-0651 min
The California Appellate Law PodcastNo More Anti-SLAPPs in Fed Court? With Cory WebsterThe 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 dissen...2024-01-301h 02
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 PodcastCal’s initial disclosures, minimum discovery sanctions, & some ¯\(ツ)/¯ casesCalifornia 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 b...2024-01-1636 min
The California Appellate Law PodcastHow appellate attorneys beat summary judgments, with Yisrael GelbYisrael 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...2024-01-0941 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
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 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 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 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 PodcastThinking About Judicial Pay, with Troy SheltonThe 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:2023-05-2343 min
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 PodcastShould AI Replace Law Clerks? Yes, says Adam UnikowskyAdam 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 i...2023-04-2544 min
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 PodcastWhen Texas & California Appellate Podcasts MeetA 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 Texa...2023-04-061h 01
The California Appellate Law Podcast“You have permission to use the word ‘that’”: Lindsey Lawton on legal writing & Florida procedure comparisonsAppellate 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 conti...2023-03-2144 min
The California Appellate Law PodcastLegal-Writing Mentor John Nielsen Compares CA and UT CourtsAppellate 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, procee...2023-03-1455 min
The California Appellate Law PodcastLaboratory of Judiciaries: Comparing CA and IL CourtsThis 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 lea...2023-03-0755 min
The California Appellate Law PodcastNegligent Referrals and Other Ethical Traps in Potential Client RelationshipsFor 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...2023-02-2153 min
The California Appellate Law PodcastWhat You Need to Know about Fee-and-Costs Awards on AppealThe 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...2023-02-1435 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 PodcastLatest Trends in Defending Unfair Competition Claims, with Greg NylenWith 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 “rea...2023-01-3138 min
Writing Excuses18.05: An Interview with Mary Robinette KowalYour Hosts: Mary Robinette Kowal, DongWon Song, Erin Roberts, Dan Wells, and Howard Tayler In this episode Howard Tayler conducts our interview with Mary Robinette Kowal, leading with a wide-open question: "Where did you even?" Mary Robinette talks to us about how she came to the world of writing, and some of the amazing things she picked up along the way. Credits: This episode was recorded by Marshall Carr, Jr., and mastered by Alex JacksonSupport this podcast at — https://redcircle.com/writing-excuses2130/donationsAdvertising Inquiries: https://redcircle.com/brandsPrivacy & Opt-Out: http...2023-01-3021 min
The California Appellate Law PodcastRecent Case Tips on Expert Objections, and Strategy on MSJ & SLAPP HearingsGearing 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 SLAP...2023-01-1724 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 min
The California Appellate Law PodcastThe Coming Changes to Med-Mal Caps, with Ben IkutaThe 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 plaint...2023-01-0338 min
The California Appellate Law Podcast2,000 Appeals and Beyond, with John DoddWhat 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.2022-12-2745 min
The California Appellate Law PodcastNew Cases on MSJ Evidence Rulings and Elder Abuse Attachment OrdersEvidentiary 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...2022-12-1317 min
The California Appellate Law PodcastNew Case Tips for Judgment Creditors & Litigation PrivilegeIf 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 applic...2022-12-0620 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 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 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 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
Kowal Investment Group - Now Creative PlanningJeff Kowal *Guest Appearance* Jay Weber Show WISN 6-21-22Jeff Kowal spoke with WISN radio host Jay Weber about retirement planning in the current economy and stock market. They discussed reasons to stay invested and refrain from timing the market, the timetable of a typical market recovery, whether or not to invest cash positions, rebalancing in the portfolio, and the condition of the economy.2022-06-2911 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