Show cover of The California Appellate Law Podcast

The California Appellate Law Podcast

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

Tracks

Top 10 Tips from Court of Appeal Research Attorneys
Appellate justices’ research attorneys are the ones advising the justices about your arguments and writing the opinions. We discuss 10 tips offered at a recent Orange County Bar Association event. Here is a taste:😮 Biggest surprise: The Court of Appeal wants hyperlinked briefs. They want to be able to click on your record cites to confirm your fact statements. If you wondered how to get the partners at your firm to get you a Clearbrief subscription, tune in.😡 Start your brief by identifying the judgment or order you’re challenging. This is a court of review, after all—so tell them up front what you want them to review.📃 Read your Table of Contents. The justices do. So make it persuasive.🥴 We also discuss the recent Masimo v. Vanderpool Law Firm case, as the Court of Appeal continues to make examples of uncivil lawyers.The recurring theme is: build trust. Good cites, organization, and civility build trust. Bad cites, poor organization, and incivility can get you sanctioned.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal’s YouTube channel.
36:44 5/14/24
Why 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 consider their costs. Yet school district spokespersons take to the press to decry how these lawsuits are breaking the bank. So what is going on here?Tim Adams’ biography.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Irvine Unified School District v. Landers and Gagliano, No. 22-55286Why One School District Spent $1 Million Fighting a Special-Education Student - WSJEpisode 69, Special Education Law with Tim AdamsVideos from this episode will be posted at Tim Kowal’s YouTube channel.
33:44 5/7/24
Why 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 experts.”🙈 IEPs are a constitutional right, so school districts are not legally permitted to consider their costs—but obviously they do. So how does that work?⚔️ Parents wrongfully denied an adequate IEP have no recourse but to get their children the resources they need—out of pocket—and then fight for reimbursement.Tim Adams’ biography.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Irvine Unified School District v. Landers and Gagliano, No. 22-55286Why One School District Spent $1 Million Fighting a Special-Education Student - WSJEpisode 69, Special Education Law with Tim AdamsVideos from this episode will be posted at Tim Kowal’s YouTube channel.
30:29 4/30/24
What to know about “snap” and “super snap” removals
Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants.But don’t commit a “super snap” removal. That’s when you remove before the complaint is officially filed. The 9th Circuit just rejected those.We discuss Casola v. Dexcom, Inc., and how to learn about lawsuits before they are even filed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024)Videos from this episode will be posted at Tim Kowal’s YouTube channel.
13:04 4/23/24
Is the Racial Justice Act Unconstitutional?
Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if that happens, the Legislature has declared not only that this is against law, but operates as a get-a-new-trial-free card.But the California Constitution prohibits get-a-new-trial-free cards. Instead, no judgment may be reversed—even if the judgment is rife with error—unless the error results in a “miscarriage of justice.”Consider how these opinions might be reconciled:People v. Uriostegui (D2d6 Apr. 5, 2024 No. B325200) ___ Cal.App.5th ___ held violations of the Racial Justice Act are per se reversible.In People v. Simmons (2023) 96 Cal.App.5th 323, Justice Yegan argued in dissent that a attempting to bind the courts to a legislative definition of the constitutional term “miscarriage of justice” violates the doctrine of separation of powers.The Supreme Court in F.P. v. Monier (2017) 3 Cal.5th 1099 held that, although the Legislature mandates that trial courts make express findings on principal controverted issues, a court’s failure to do so is not per se reversible because the Constitution first requires a finding that the failure worked a miscarriage of justice.In Abdelqader v. Abraham (Cal. Ct. App. Mar. 10, 2022 No. D078652) --- Cal.Rptr.3d ----, failure to make the statutorily-required findings under F.C. 3044 to support awarding custody to a person previously found to have committed domestic violence was per se reversible.In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519 held that, although the Legislature purported to make inadequate disclosures in property-division cases per se reversible, the Legislature cannot provide “a ‘get-a-new-trial-free’ card” in light of the constitutional requirement to show a miscarriage of justice.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Tim’s writeup on Oriostegui, The Racial Justice Act Is Unconstitutional
23:35 4/17/24
Top 10 Tips for Family Law Appeals
Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include:👉 Know your appealable issues—appeal now, or lose it forever!👉 Request a statement of decision. Don’t need to, you say? Judge already gave a tentative opinion, you say? You really need to hear this advice.👉 Get the standard of review right, and use this tip when challenging discretionary rulings.👉 Brief like an appellate attorney: Put cites on everything. Put headers on everything.👉 Make a record!And five more!One thing we didn’t cover: Making Family Code § 2122 set-aside motions. Definitely consider that in your case.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Good example of the importance of the statement of decision: Abdelqader v. Abraham (Cal. Ct. App. Mar. 10, 2022 No. D078652) --- Cal.Rptr.3d ---- [F.C. 3044 presumption of unfitness triggered by prior DV finding may be rebutted only by written findings—lack of SOD required reversal]. Tim’s writeup on Abdelqader here. One of CALP’s top cases here.But Abdelqader was not followed in Marriage of Burger.Abdelqader was followed in Hutchins.Tim’s article on sanctions for appellate briefing defects: “Attorney who ignored appellate rules hit with $50k in sanctions”. Case is Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.).Videos from this episode will be posted at Tim Kowal’s YouTube channel.
25:52 4/9/24
Social Media and Jury Waiver High Court Cases, and Other Appellate News
The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss:📰Free Speech on Government Social Media: Lindke v. Freed (Mar. 15, 2024, No. 22-611), notable for being short and unanimous, holds that, when a public official talks about official business on a private social media page, it’s no longer a private social media page.⚖️Jury waivers: If you waive, and the trial judge declines to set aside the waiver, it’s game over: any right to appeal is symbolic only.🤷Also symbolic: the different between waiver and forfeiture. The difference, it is said, is that waiver is intentional. But the Court notes that waiver can also be unintentional. That pretty much obliterates any distinction between the terms, save for spelling.👎The facts were based solely on filed documents, not testimony. So appellate review is de novo, right? Wrong. Appellate courts don’t defer to fact-finding because the trial court is better at it. They defer because it’s not the appellate court’s job description.⛪A Church of Scientology case involving Leah Remini is poised for an anti-SLAPP appeal.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Lindke v. Freed (Mar. 15, 2024, No. 22-611)TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368)Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.].Remini v. Church of Scientology“Motion granted, Bimbo!” — the Candi Bimbo Doll case; Wood v. S.F. Cnty. Superior Court (D1d2 Mar. 14, 2024 No. A168463) [cert. for pub.]Videos from this episode will be posted at Tim Kowal’s YouTube channel.
36:22 4/2/24
Five Hard Truths About an Appellate Practice, with Raffi Melkonian
Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is very hard to do.We discuss his five observations about why a full-time appellate practice is hard:Breaking in to the practice is very hard.Don’t expect to get full-time work writing appellate briefs—you’re going to have to mix it up some in the trial court.Once you’ve done the very hard work modifying expectations and breaking into the practice, get ready: maintaining it full-time is even harder.Which is why you are going to have to make some trade-offs.The business of law was not designed with an appellate practice in mind, so doing high-end sophisticated appeals all the time is no one’s idea of a sound business model.Raffi Melkonian’s biography, LinkedIn profile, and Twitter/X feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Raffi’s X thread, “5 ideas for law students and associates about appellate practice.”Videos from this episode will be posted at Tim Kowal’s YouTube channel.
52:53 3/26/24
Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases
We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration:$50k sanctions against appellant for blowing appellate procedure.Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal’s hint, so writ issued. (But the trial judge was right to let the writ issue.)Anti-SLAPPs don’t require a line-by-line list of allegations like regular strike motions. But there’s a split on this.Do you need appellate specialization credits? Maybe not as many as you think if you use Lisa Perrochet’s tip.We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Attorney who ignored appellate rules hit with $50k in sanctions in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.)Denying an untimely but meritorious motion for reconsideration was reversible error  Contreras v. Superior Court (Champion Dodge, LLC) (D2d5 Feb. 16, 2024 No. B331737) [nonpub. opn.]Splitting from SLAPP precedent, appellate court holds you don’t have to do a line-by-line list of allegations challenged in an anti-SLAPP motion Miszkewycz v. County of Placer (D3 Jan. 25, 2024 No. C095426).Racial Justice Act motion requires case-specific facts, not mere statistical analysis Austin v. Superior Court (D2d2 Jan. 25, 2024 No. E080939)Read the full article at the KowalLawGroup.com blog here
45:21 3/5/24
Judge Nazarian to Judges: Take the Accountability Pledge
There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial clerks, but it needs judges to pledge that they will invite their clerks to fill out the surveys.Uncomfortable taking the pledge publicly? No problem: please invite your clerks to do the survey anyway.Why should you support the Legal Accountability Project? Judge Nazarian explains:The laudable work of gathering data to facilitate quality clerkships is nothing new. Law schools do it. But that means the data is fragmented and incomplete. The LAP centralizes it.The data is credible. Only confirmed clerks can submit surveys.The data is confidential. Only clerkship applicants can access it.Still, many clerks may feel insecure about submitting a survey without their judges’ endorsement.If you are a judge, please sign the pledge, and encourage your feeder law schools to support the Legal Accountability Project’s work.If you are a clerk or a former, submit a survey.If you are an attorney, tell your alma mater that, next time you sign a check, you’d like to know if they support the Legal Accountability Project.Judge Douglas R. M. Nazarian’s biography, LinkedIn profile, and Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Legal Accountability ProjectLegal Accountability Project — Post-Clerkship SurveyEp. 39 and ep. 98 w/ Aliza ShatzmanVideos from this episode will be posted at Tim Kowal’s YouTube channel.
62:59 2/27/24
Sleep Well to Crush Your Enemies, with Leslie Porter
You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road, you have lower energy, weakened drive, and diminished alertness.If you won’t do it for yourself, get healthy to crush your enemies better.Leslie Porter’s biography and LinkedIn profile and email, leslie@leslieporter.com  Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal’s YouTube channel.
52:11 2/20/24
So 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 committed indiscretions with the trust account, does it matter that you didn’t know about it? Answer: Don’t count on it.Every other state already has a snitch rule. How much guidance do they provide on its application? Answer: Very little.Will the snitch rule drive in reports to prevent Girardi-type scandals? Answer: The Bar had received some 200 reports about Girardi, so it’s unclear what more reports would have done.But the snitch rule is a good idea, right? Answer: Check back in after a few years.And something you probably didn’t know: The reason California doesn’t follow the ABA Model Rules is because they are rules of ethics, where California’s Rules are rules of discipline. We discuss the difference in theory (interesting!) and the difference in application (not much, actually).Judge Meredith Jury’s (Ret.) biography.Bankruptcy Specialist Stella Havkin’s biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Rules of Professional Conduct, rule 8.3, “Reporting Professional Misconduct”Ethics Spotlight: The New ‘Snitch Rules’, California Lawyers Association, Nov. 2023.Videos from this episode will be posted at Tim Kowal’s YouTube channel.
56:27 2/13/24
Kyle O’Malley, the Attorney Who Won the Raines’ Supreme Court Employee-Screening Case
Just a few years out of law school, Kyle O’Malley won a landmark case in the Supreme Court of California. The employer’s screening service in *Raines v. US Healthworks Medical Group*, 15 Cal.5th 268 (2023) used a generic questionnaire asking about menstrual cycles, hemorrhoids, hair loss, and all sorts of fool questions not tailored to the specific job (or to any job, for that matter). Even though the agent was not the “employer,” the Court held that business agents performing employment-related tasks for other companies can be held liable for discrimination under California’s Fair Employment and Housing Act (“FEHA”). The decision has been described as a “landmark” victory for workers, with the California Supreme Court listing it as one of four “high profile cases” decided in 2023.We also talk with appellate legend Randy Erlewine. All California litigators owe him a debt for the “get out of jail free” card case of Carter v. Superior Court (1990) 218 Cal.App.3d 994, allowing a deposition to get documents if you missed the deadline to move to compel on written requests. We discuss developing a cutting-edge practice and building a firm to a vision.Kyle O’Malley’s biography and LinkedIn profile.Randy Erlewine’s biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:CLA’s Diversity, Equity, and Inclusion CommitteeRaines v. U.S. HealthWorks Med. Grp., No. S273630 (Cal. Aug. 21, 2023)Videos from this episode will be posted at Tim Kowal’s YouTube channel.
51:00 2/6/24
No More Anti-SLAPPs in Fed Court? With Cory Webster
The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court.We also discuss that recent panel that departed from an earlier decision, ruling it was “clearly irreconcilable” with recent Supreme Court precedent, even if it arguably wasn’t.And why was that homelessness case—which ultimately came down to a procedural question of waiver—published? Did Judge Bumatay, who authored the dissent, request publication? We indulge in some rank speculation.Cory Webster’s biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Should Anti-SLAPP denials be appealable in federal court? The 9th Circuit will take another look. Panel decision in Martinez v. ZoomInfo Techs. (No. 22-35305 (9th Cir. Jan. 18, 2024)).Rep. Raskin’s anti-SLAPP billClimate Change on Trial podcastPanel rejects 9th Cir. precedent by saying it was overruled—even though it wasn’t Munoz v. Superior Court of L. A. Cnty., No. 22-55941 (9th Cir. Jan. 9, 2024)In San Fran homelessness case in 9th Cir., two stark opinions about waiver Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024)Videos from this episode will be posted at Tim Kowal’s YouTube channel.
62:25 1/30/24
Cert on Homeless Encampments and En Banc on SLAPPs
The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable.Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published opinion came down hard against the school that includes in the separate statement all narrative and background facts.Tim and Jeff discuss.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal’s YouTube channel.SB 662, to create electronic recordings of court proceedings, fails.In San Fran homelessness case in 9th Cir., two stark opinions about waiver Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024)Beltran v. Hard Rock Hotel Licensing, Inc., No. G062736 (Cal. Ct. App. Dec. 5, 2023)Justice Baker is not a big fan of Costco Gylfie v. Costco Wholesale Corp. (D2d5 Dec. 27, 2023 No. B320694 [nonpub. opn.]
38:03 1/24/24
Cal’s initial disclosures, minimum discovery sanctions, & some ¯\(ツ)/¯ cases
California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct.And some recent cases:The definitive answer whether orders on motion to enforce settlements are appealable is: Nobody has any friggin’ idea.And the answer on how to get review of orders on contempt attorneys' fees is pretty much the same.And after scouring cases for months, Tim finally found a reversal based on an evidentiary ruling…and it’s unpublished. And there’s a dissent. (And the dissent may be better reasoned than the majority.) So challenges to rulings on evidence are still losers.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Order granting motion to enforce settlement held not appealable, furthering a split of authority, House v. Skanska U.S. Civil W. Cal. Dist. (D4d2 Jan. 5, 2024 No. E079363) [nonpub. opn.]State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty, Regents of the Univ. of Cal. v. Superior Court (D3 Dec. 29, 2023 No. C099588) [nonpub. opn.]Yes, you can use a motion in limine as a motion for summary judgment, Memula v. Mojave Radiation Oncology Med. Grp. (D4d2 Dec. 14, 2023 No. D082262) [nonpub. opn.].See other Items at the KowalLawGroup.com blog here: https://bit.ly/3SjrXnIVideos from this episode will be posted at Tim Kowal’s YouTube channel.
36:40 1/16/24
How appellate attorneys beat summary judgments, with Yisrael Gelb
Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including:🔧 Look for common defects in the moving party’s separate statement🤜 Push back on the moving party’s showing. It is often not up to snuff. Drive that point home before turning to the opposing party’s burden.✒️ Elevate your writing—an MSJ is a trial on paper, but great trial skills often do not translate.We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.”Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal’s YouTube channel.
41:24 1/9/24
2023’s Best Guests, Cases & Tech
Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical maverick Jack Metzler. And then there are our legal scholars and authors Stephen Vladeck, Jeff Kosseff, and Eugene Volokh.After talking about some great guests, we talk about some bad cases. Why don’t we talk about good cases? We discuss that, too.We also talk about some of our takeaways from our interviews about other states’ appellate rules. We grumble about some of the rules in California, but we have some things to recommend to other states. But also some things we could learn.Then we turn to some of the legal tech we can’t do without. Topping the list: ClearBrief (via Jackie Schafer), followed by CoCounsel.Hope to have you along in 2024!Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:The Coming Changes to Med-Mal Caps, with Ben IkutaUsing ChatGPT responsibly, with Jayne WoodsShould AI Replace Law Clerks? Yes, says Adam UnikowskyFrom BigLaw to Solo: Carl Cecere on the freedom to take significant casesRacking Up Appellate Argument Experience with Chris SchandevelCory Webster’s 9th Circuit Dispatches See other Items at the KowalLawGroup.com blog here: https://bit.ly/3viYwJrVideos from this episode will be posted at Tim Kowal’s YouTube channel.
57:46 1/3/24
Eugene Volokh on Restraining Orders and the First Amendment
Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same goes for “bullying,” “cyberbullying,” “hate speech,” etc.—especially when no physical violence threatened or happening. The result is that many restraining orders not only prevent the subject from speaking TO the plaintiff, but from speaking ABOUT the plaintiff, and last INDEFINITELY.Here are the key issues to spot the next time a client calls you about a restraining order or injunction that affects free speech:Raise First Amendment challenges, and get familiar with the precedent by reading Prof. Volokh’s articles.Look to see if the restraining order merely prohibits speaking to the plaintiff, or goes further and prohibits speaking ABOUT the plaintiff. That’s a big difference that implicates the First Amendment.If the subject of a restraining order is facing contempt, consider raising the unconstitutionality of the order as a collateral bar. An unconstitutional order cannot be a basis for contempt, and unconstitutionality is never waived.Prof. Eugene Volokh’s biography, LinkedIn profile, and X/Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”, 107 Nw. U. L. Rev. 731 (2013)Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases), 45 Harv. J. L. & Pub. Pol. 147 (2022).Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)Chan v. Ellis, 296 Ga. 838 (Ga. 2015)"The First Amendment and Refusals to Deal” via ReasonVideos from this episode will be posted at Tim Kowal’s YouTube channel.
58:36 12/19/23
High-Profile Employment Appeals with Glenn Danas
Employment and class-action attorney Glenn Danas has argued 49 appeals in state and federal appellate courts throughout the country, including a current streak of eight consecutive reversals. Glenn talks with us about litigating the landmark Iskanian case, and how he turned the panel that initially issued a 148-page tentative against his client.Glenn also shares:Appeals on contingency? Yes, it can work, in the right case.About that ABC test: yes, some workers would prefer to be contractors, but more would rather be employees.About the judicial bias for arbitration: the original purpose was for those oddball cases—think shipwrecks—where jurisdiction and venue were uncertain, not for every garden-variety lawsuit.Glenn Danas’s biography, LinkedIn profile, and X (fka Twitter) feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Iskanian v. CLS Transp. Los Angeles, LLCFuentes v. Empire Nissan, Inc. (Dave Ettinger’s write-up)LA Times on Beachbody class-actionVideos from this episode will be posted at Tim Kowal’s YouTube channel.
65:45 12/6/23
Liar in a Crowded Theater, with Jeff Kosseff
Turns out you CAN shout “fire” in a crowded theater, and lots of other lies besides—unless the government meets a heavy burden, that is. The author of four books and more than 20 academic articles, First Amendment scholar and Naval Academy associate professor Jeff Kosseff makes the case for the freedom to speak freely, and even to tell lies, free (mostly) from threat of state sanction. Our discussion covers:The “marketplace of ideas” is better than the government at separating truth from lies.Why every other state and Congress should just copy-and-paste California’s anti-SLAPP statute into their code books.Is there a free-speech right to ChatGPT, if there’s no human speaker? Yes—there is not just a right to make statements, but also to receive them.Jeff was surprised at the critical reaction to his thesis that there may be a right to lie. But thankfully the courts have mostly stood by the First Amendment’s robust protections, receiving an B+/A- grade from Prof. Kosseff.Jeff Kosseff’s biography, LinkedIn profile, and Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Jeff Kosseff’s book is Liar in a Crowded Theater.The California statute prohibiting doctors from expressing opinions contrary to official medical policy as concerning vaccines and perhaps other topics was enjoined by the district court in early 2023: https://www.reuters.com/business/healthcare-pharmaceuticals/california-law-aiming-curb-covid-misinformation-blocked-by-judge-2023-01-26/.Videos from this episode will be posted at Tim Kowal’s YouTube channel.
50:54 11/29/23
Thankful for Unpublished Opinions
In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent.Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited as precedent.We also discuss:Have a short trial? Volunteer to be timekeeper. Otherwise, your request for a statement of decision may be deemed untimely under the strict rules for trials under 8 hours.Suing for unfair business practices? Double check standing based on “injury in fact,” and consider the conflicting arguments in the majority and dissent in Lagrisola v. North American.Opposing counsel stepping over the line of “zealous advocacy”? Court of Appeal calls out counsel in a recent case, but no sanctions—perhaps because respondent did not file a motion?A strange example of a moot appeal leading to a summary REVERSAL.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:**Can a respondent forfeit issues by failing to brief them? A bizarre opinion says yes. Baltazar v. ACE Parking Mgmt. (D4d1 Oct. 26, 2023 No. D081483) [nonpub. opn.]**Failing to log the length of trial leads to appellate loss. Lewis v. Reptile Factory, LLC (D2d3 Oct. 12, 2023 No. B324197) [nonpub. opn.]Dissent would invalidate loan where lender is unlicensed. Lagrisola v. North American (D4d1 Nov. 3, 2023 No. D080758)**“Bulldozer” advocacy moves dirt but not minds. Tedesco v. White (D4d3 Oct. 27, 2023 No. G061197) [nonpub. opn.]**Where a moot appeal means summary REVERSAL. People v. Pickens (D2d7 Nov. 9, 2023 No. B320704) [nonpub. opn.]Videos from this episode will be posted at Tim Kowal’s YouTube channel.
36:20 11/21/23
Appellate Bonds: What You Client Needs to Know, with Dan Huckabay
Trial resulted in a sizable judgment against your client. You know to stay judgment enforcement you have to post a bond, but what, exactly, does that mean? And how do you do it?Enter Dan Huckabay from Court Surety Bond Agency. We sit down with Dan and ask him how we attorneys can be a hero for our clients by knowing a few key things about appellate bonds, such as:Plan ahead: Before judgment is entered, give the client time to set aside collateral for the bond.Manage expectations: Judgment interest in California is a hefty 10%, and the bond premium ranges from a quarter percent to 4%, with most premiums being about 1%.Consider a letter of credit: If the client has a strong relationship, the bank may issue a letter of credit—which avoids the need to tie up collateral.Was the judgment amended to add fees and costs? Instead of getting a new bond, consider a rider or a separate bond.Don’t wait! There’s no deadline to post a bond, but waiting can lead to assets getting seized or liened on.Dan Huckabay’s biography, LinkedIn profile, and Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Ep. 46: Time to Collect: Joseph Chora on the Most Important but Least Understood Area of LawVideos from this episode will be posted at Tim Kowal’s YouTube channel.
47:29 11/14/23
Elegant Legal Writing, with author Ryan McCarl
Ryan McCarl, author of the latest book on legal writing, Elegant Legal Writing, sits down with us to discuss why now, more than ever, attorneys need to elevate beyond ChatGPT and distractions to rise to our role as teachers of the law. Ryan offers these actionable tips:🖋️ “Defer editing” and “second-guessing” until a later draft. Don’t be committed to your first draft. Just get into a flow state—keep the cursor moving!🧠 Your reader allots you a very limited attention span or “working memory.” Budget wisely by cutting “research dumps,” and by using direct, familiar language.📗 Don’t cite every authority. “The quality of your citations matters more than their quantity.”👨‍💻 Make tech support your writing. Use keyboard shortcuts. Use text expansion. Get efficient. What would you think of a tradesperson who doesn’t understand the tools of the trade?What is Ryan’s stance on the “cleaned up” parenthetical? You will have to listen to find out!Ryan McCarl’s bio, Elegant Legal Writing product page, Elegant Legal Writing blog, Twitter, and LinkedIn.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Purchase Elegant Legal Writing.Episode 24 with Ryan McCarl.Videos from this episode will be posted at Tim Kowal’s YouTube channel.
63:52 11/7/23
Reversals on Technicalities: 4 Recent Examples
Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples:😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible.😎 If the court refuses to provide a statement of decision on key issues, that is a good opening to get a reversal.😎 If the court judges a party’s credibility based on whether they use an interpreter, that’s reversible error.😎 If the court issues a restraining order based on a single act, that’s reversible error.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Refusing an evidentiary hearing on contested probate matter is error, and possibly structural error: Barbey v. Pnc Bank, N.A. (D2d6 Oct. 10, 2023) No. B325472 (nonpub. opn.)Lack of statement of decision leads to reversal: Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550) [nonpub. opn.]Arbitrator reversed for basing credibility on use of interpreter: FCM Invs. v. Grove Pham, LLC (D4d1 Oct. 17, 2023) No. D080801.Restraining order against an attorney must be based on multiple instances of non-litigation conduct: Hansen v. Volkov (D2d7 Sep. 18, 2023) No. B311524 (cert. for pub.)You still need a reporter's transcript even if nothing happened at the hearing: Olague v. United Care Facilities, LLC (D2d5 Sep. 29. 2023) No. B323075 (nonpub. opn.).After Adolph v. Uber, parties “accept the inevitable” and stipulate to reverse: Stiger v. Providence St. Joseph Health, No. B326999 (Cal. Ct. App. Oct. 20, 2023)Ross v. Seyfarth Shaw LLP (Sep. 29, 2023, B312337) [pp. 26-27]Landlord’s counsel sanctioned for brief with made up casesVideos from this episode will be posted at Tim Kowal’s YouTube channel.
40:13 10/31/23
How Appellate Lawyers Debate Gun Control and Abortion
Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits.We discuss:Gun Rights: The 9th Circuit used a “comeback” procedure to send a case back to the same en banc panel that heard the case before the Supreme Court’s new Bruen test. The Procedural Trick: Judge Nelson says this “disenfranchises” other circuit judges who will be cut out of any say on how the old panel approaches the new Bruen test.Abortion Rights: After a 3-judge panel granted a stay motion, thus staying a district court injunction of Idaho’s abortion ban, the 9th Circuit voted to rehear the matter en banc, and thus re-implemented the district court’s injunction (meaning abortions may go forward despite the law). The Procedural Trick: Now that the en banc has taken up the motion, it will likely hold on to the case on the merits, too. That means expedited briefing and decision, and no possibility of further en banc review.En banc review granted where the 3-judge panel vacated a sentence because a prosecutor breached a plea a greement.En banc review denied, despite 11 judges (very close to a majority) who would have granted.Cory Webster’s biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Gun Rights: Duncan v. Bonta, No. 23-55805, at *6 (9th Cir. Oct. 10, 2023)Judge Van Dyke’s cheeky “concurrence” to his own majority decision last year in McDougall v. County of Ventura. (Ep. 26.)Suspended Judge Newman Discusses Her 'Proclivity of Dissenting' at ABA EventUnited States v. Idaho, No. 23-35440 (9th Cir. Sep. 28, 2023)United States v. State, No. 23-35440 (9th Cir. Oct. 10, 2023)Videos from this episode will be posted at Tim Kowal’s YouTube channel.
57:30 10/24/23
CM/ECF Is Outdated So Get Ready for the 9th Circuit’s ACMS, with Susan Gelmis
Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why the 9th Circuit is leaving the CM/ECF system, in favor of a new, more secure, and fully web-based (not plugin-reliant) system called the Appellant Case Management System, or ACMS.The 9th Circuit is also saying goodbye to remote oral arguments. Starting January 2024, all oral arguments will be in-person, unless you make a showing of hardship.Want meaningful work and oral argument experience? Apply to the 9th Circuit Pro Bono Program.We discuss other 9th Circuit inside baseball, like hyperlinked briefs.Susan Gelmis’s LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Here is the link to the efiling in ACMS page that has information and instructions and training videos about the new system https://www.ca9.uscourts.gov/efiling/acms/Administrative Order Regarding ACMS: https://cdn.ca9.uscourts.gov/datastore/general/2023/06/16/Admin-order-final-June-2023.pdfACMS Portal: https://ca9-portal.powerappsportals.us/Oral Argument Protocols here.Here is a link to information about the pro bono program: https://www.ca9.uscourts.gov/probono/Videos from this episode will be posted at Tim Kowal’s YouTube channel.
47:24 10/18/23
The 9th Cir. “Reimagines” Diversity Jurisdiction
The one sure thing your law-school loans purchased is instant recall of the fact that “federal courts are courts of limited jurisdiction.”But not as limited today as when you signed your promissory note. We discuss Impossible Foods Inc. v. Impossible X LLC, the recent 9th Circuit decision holding that specific jurisdiction over a defendant may be based on general historical contacts, even though not connected to the claims in the case. Judge Van Dyke dissented, calling the majority’s holding “potentially the most radical reimagining and expansion of specific jurisdiction in decades.”We also discuss:Impeachment evidence improperly excluded at trial? Published authority says this is per se reversible, but a new case calls it harmless error. It’s not published, but its reasoning is sound.Seeking costs-of-proof attorney fees because your adversary denied your RFAs? Some cases grant these fee motions liberally, but two recent cases caution that more precision is needed.Appealing on a pure issue of law? You still need an oral record on appeal. Denial of petition to compel arbitration affirmed because of the lack of a reporter's transcript.Startling: Ex-husband took out a life insurance policy on wife, naming himself beneficiary. Also startling: Court ordered him to change the beneficiary to wife’s favorite charity, and keep the policy current.Uncivil attorney got a 40% fee cut. “Incivility between counsel is sand in the gears. … Excellent lawyers deserve higher fees, and excellent lawyers are civil.”Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent. Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023).Exclusion of critical impeachment evidence held harmless error because the totality of evidence supported the judgment. People v. Bingham (D1d5 Sep. 26, 2023) No. A163112 (nonpub. opn.).Uncivil attorneys get a 40% fee haircut: Snoeck v. ExakTime Innovations, Inc., (D2d3 Oct. 2, 2023) No. B321566 (nonpub. opn.), discussing Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734.Olague v. United Care Facilities, LLC, No. B323075 | CasetextParris J. v. Christopher U. (Oct. 4, 2023, B313470)Videos will be posted at Tim Kowal’s YouTube channel.
45:20 10/10/23
How to Prepare for Oral Argument
Have an appellate oral argument coming up? We discuss tips shared by top appellate attorneys how to prepare for and give oral arguments. Some tips include:🗣️ Anticipate the panel’s questions when you can, but…🗣️ …be prepared to respond when you don’t know the answer.🗣️ Be prepared to answer: “What is your rule” for answering the key statutory or legal question.🗣️ Give direct answers to the panel’s questions.🗣️ Don’t read your argument. The judges have enough of what you’ve written. Now they want to hear what you say.🗣️ Give a different spin—don’t just repeat what you said in briefing.🗣️ Concede weak arguments.🗣️ Just be a friend of the court: be polite, don’t interrupt, and try to help the court do its job solving the problems in your case.Kyla Dayton’s biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Tim’s LinkedIn post “crowd-sourcing” oral argument tips.The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion, with MC Sungaila.Concede Weak Arguments, Gain Credibility, Says Justice LambdenJustice Thompson on Effective Oral Arguments: Give a “Different Spin”—And Answer Questions.Don’t read from your notes, via Adam Unikowsky relating a story when the Supreme Court stopped an advocate by asking, “Counsel, are you reading this?”Videos from this episode will be posted at Tim Kowal’s YouTube channel.
47:03 10/4/23
The Power of Anti-SLAPP Motions: Sept. 2023 Cases
Anti-SLAPP motions are sometimes called early summary judgment motions. But the fact that they are “early” is why they are so powerful: not only do they provide defendants a quick way to defend against claims that involve speech, they force the plaintiff to prove its case without any discovery.On this episode of the California Appellate Law Podcast, we discuss a recent 9th Circuit decision holding that denials of anti-SLAPP motions are immediately appealable as collateral orders. We also discuss:Judge Bress’s criticism of the cases treating anti-SLAPP denials as collateral.Anti-SLAPP motions were designed for the powerless, but the City of Inglewood successful used it to strike an employee’s retaliation complaint.How you can lose your arbitration if you don’t pay the arbitrator fees in 30 days—and “the check is in the mail” doesn’t cut it.A judgment issued in a sum not previously noticed is void and may be set aside at any time, but a sanctions order issued without notice is merely voidable, and may be set aside only within 6 months.Filing a notice of appeal in Los Angeles County Superior Court? Now you can pay your fees online. (Finally!)Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Doe v. The Superior Court (D1d3 Sep. 8, 2023) No. A167105 (Tim’s writeup).Martinez v. ZoomInfo Tech. Inc., No. 22-35305 (9th Cir. Sep. 21, 2023) (Tim’s writeup).In re the Marriage of Jensen (D2d2 Sep. 5, 2023) No. B320565 (nonpub. opn.) (Tim’s writeup).United States v. Sapalasan, No. 21-30251, 2023 U.S. App. LEXIS 23820 (9th Cir. Sep. 7, 2023) (Tim’s writeup).New payment option for paying $775 appellate feeHow 'Purely Legal' Issues Ruling Applies To Rule 12 MotionsBrown v. City of Inglewood, No. B320658 (Cal. Ct. App. May 31, 2023)Videos from this episode will be posted at Tim Kowal’s YouTube channel.
35:16 9/27/23

Similar podcasts