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.
The California Supreme Court’s long-awaited "Taking Offense" decision on gender pronouns in elder care facilities introduces a new “captive audience” exception to the First Amendment. Tim worries this new judicial carve out may creep to other forums; Jeff is unperturbed. Tim also shares insights from the Federalist Society National Conference, before examining a significant appellate-fee ruling.Taking Offense v. State (Cal., Nov. 6, 2025, No. S270535) **holds that advocacy groups lack taxpayer standing under CCP §526a to challenge state laws, but still issued 100+ pages addressing the merits through a "captive audience" framework.Captive audience concerns: Tim highlights potential "mission creep" with a “captive audience” rationale, potentially extending beyond elder care facilities to courthouses, government offices, and other venues where First Amendment protections could be weakened.“Bloodthirsty originalism”: From the Federalist Society conference, Judge Bumatay advocated less deference to stare decisis in favor of constitutional fidelity, while Justices Barrett and Kavanaugh addressed courage and civility in legal practice.Discovery fee windfall: In Baer v. Tedder, the court authorized recovery of $113,000 in appellate attorney fees for successfully defending a $10,000 discovery sanction, creating economics similar to anti-SLAPP appeals.AI arbitration arrives: The American Arbitration Association announced a pilot program offering AI resolution of construction disputes with human oversight, signaling that AI's impact on legal practice may be just "a couple of years away" rather than decades.Oral argument mastery: Federal Circuit judges advised narrowing issues to increase credibility, welcoming judicial interruptions as opportunities, and viewing argument time as the court's time for conversation rather than presentation.Tune in for practical insights on appellate strategy, the evolving legal landscape, and how to prepare for significant changes in legal practice in the coming years.
11/12/25 • 36:49
Jimmy Azadian is often in the room when federal judges get together to share their personal concerns about the job. When judges are asked to come speak to a group, Jimmy reports that top of mind are the recent threats to judges and the courts—whether from armed vigilantes, protesters, students, or senators.Jimmy, Tim, and Jeff then turn to some recent SCOTUS and 9th Circuit trends:Standing Doctrine Evolution: Courts are scrutinizing what constitutes concrete injury, particularly since Justices Gorsuch and Barrett joined the Supreme Court, with increased scrutiny of statutory damages and class action requirements.Birthright Citizenship Battle: In Washington v. Trump, the 9th Circuit held that the 2025 executive order attempting to end birthright citizenship was unconstitutional. But Judge Bumatay's partial dissent questioned states' standing, based on “fiscal” concerns, as too tenuous.Anti-SLAPP Shake-up: The en banc 9th Circuit in Gopher Media unanimously held that denials of California anti-SLAPP motions in federal court are no longer immediately appealable, reversing 22-23 years of precedent and potentially driving forum shopping.California Laws Preview: New 2026 laws include immigration enforcement limits at schools, required social media account deletion options, restrictions on facial coverings for immigration agents, direct Cal State University admission standards, and regulation of commercial audio volume.Tune in for essential perspectives on judicial independence, constitutional interpretation, and strategic considerations that could impact your federal practice in the coming year.
11/5/25 • 46:00
AI Reshapes Legal Practice: ClioCon 2025 Delivers a Wake-Up CallJeff Lewis reports from the 2025 Clio Cloud Conference in Boston. Day 1 was encouraging, but Jeff reports feeling Day 2 as a “gut punch”: within about 5-10 years, many fundamentals of legal practice will be unrecognizable.Here are a few ways legal industry leaders suggest you can skate to where the puck is going—rather than finding yourself behind by skating to where it is now.The $5 Billion Opportunity: Clio CEO Jack Newton says there are billions in untapped legal services—and AI tools can help lawyers tap it.74% of Billable Tasks Automatable: Clio's research suggests nearly three-quarters of current billable work could be automated. The game: find the redundancy, or else be the redundancy.AI Becoming Standard: 79% of legal professionals are now using AI tools (up from just 19% two years ago).Time-Tracking Revolution: Before AI replaces your billables, let it enhance them: AI-powered tools like Point One and Tempello automatically capture and enter your time—you might be surprised how much money you’re leaving on the table.Context-Aware Legal Research: Clio's new "Vincent" platform combines practice management data with comprehensive legal research to produce AI responses grounded in both case facts and applicable law, reducing hallucinations and providing verifiable citations.The Neurosurgeon Analogy: Susskind's provocative comparison suggests that just as AI might make brain surgery obsolete through prevention and precision, traditional legal services may be replaced by more efficient, AI-driven alternatives that clients prefer.True, there are shiny objects out there, and as Tim says many will get “Sherlocked”—become obsolete as the underlying AI tech improves. But getting in the game is key—the sidelines are going to be a very unhappy place very soon.
10/30/25 • 34:58
Few lawyers and LRW instructors write and think more about AI than Professor Jane Woods of Mizzou Law, who offers this most important AI advice: If you haven’t read the case, don’t cite the case.The Boies Schiller Cautionary Tale: That would have saved Boies Schiller’s bacon. We discuss the high-profile Scientology/Masterson appeal, and whether the Court of Appeal is going to strike plaintiff’s respondent’s brief because of the Boies Schiller attorneys hallucinated cases and otherwise wrong legal citations.AI's Ideal Applications: Most effective AI uses include drafting standard legal sections, style polishing, fact organization, and processing large records.How to AI in Legal Practice: Avoid garbage-in-garbage-out by feeding case opinion PDFs from authoritative legal databases directly into AI projects—don’t let AI search the internet on its own.Don’t hate the "Em Dash"! Some firms have reportedly banned em dashes in legal writing because they're seen as indicators of AI-generated text, highlighting how AI's stylistic preferences (even good ones!) may be reshaping legal writing conventions.Should lawyers disclose AI use? It depends. But if you’re thinking about charging $900/hour and to outsource to a robot, maybe don’t do that.Jeff thinks our business and even this podcast will be aped by robots by this time next year. Until then, tune in for tips on how best to resist or suck up to the robot overlords.
10/23/25 • 42:39
Just a couple years ago when we talked with Ernie Svenson, the attorney who talks tech fluently, AI was not even a thing. Now in late 2025, it’s the only thing. Ernie joins Tim and Jeff to discuss the rapidly evolving landscape of AI in legal practice, why AI gives small firms an advantage, and how attorneys can safely leverage these tools without falling victim to “hallucinations.”We discuss how to embrace AI tools without anxiety (or with the appropriate amount of anxiety), starting with inconsequential applications before moving to more consequential legal work.Pattern Recognition on Steroids: AI excels at pattern recognition and language expression, ideal for first drafts and oral argument prep.Not an AI Problem: Recent sanctions for citing hallucinated cases reflect a longstanding due diligence issue. AI just exposes attorneys who don't verify sources.Small Firm Advantage: AI works best as a force multiplier for individual cognitive ability, giving solo practitioners and small firms who master these tools an edge over larger organizations.Agentic AI on the Horizon: While fully autonomous AI agents need careful supervision, basic applications like data entry are already available, with complex applications developing rapidly for case prioritization and KPI extraction.
10/14/25 • 34:54
Teaching Judges: Appellate Expert Cherise Bacalski on Brief Writing and the Human Side of LawAppellate specialist Cherise Bacalski teaches appellate writing at NYU Law's New Appellate Judges Program, and in this interview we discuss her insights from both sides of the bench and how her background in rhetoric shapes her approach to appellate advocacy.Training new judges: At NYU, Cherise teaches newly appointed appellate judges how to make their opinions more readable through proper structure, headings, and organization—skills that help both judges and practitioners.The rule is king: What is the rule in your case? Cherise explains that, whatever it is, that rule should inform every part of your brief.Write for a “hostile reader”: Reading your brief—your trenchant, brilliant, erudite, sparkling brief—is the last thing any judge wants to do. Forget being brilliant. Just be clear, concise, skimmable, and easy to digest.Lead with old information: One of the most effective writing principles is beginning each new point with familiar information to propel readers forward at the speed of thought, reducing the need for excessive explanation.The human element: Cherise views the law as fundamentally human. Understand you are talking to humans, not picking a lock.AI is an amazing tool, but not a replacement: Use AI to test arguments and identify weaknesses in briefs. But AI sometimes misses critical "smoking gun" evidence in case analysis.Tune in for a masterclass in appellate advocacy that bridges the gap between academic rhetoric and practical legal persuasion from an attorney who's seen the system from multiple perspectives.
10/7/25 • 54:54
Appealing in the 9th Circuit? Your deadline is 30 days. Don’t let Rule 58’s “separate document” extension lead you astray. Appellate specialists Tim Kowal and Jeff Lewis also discuss ChatGPT 5 (a “market disruptor”), and sanctions strategies in federal court.Appeal Deadline Alert: The 9th Circuit in McNeil v. Guitare held that Rule 58's 150-day extension for appeal deadlines applies only to final judgments, not collateral orders like qualified immunity denials.Anti-SLAPP Motion Timing: Mora v. Menjivar confirms that filing just a notice of anti-SLAPP motion within the 60-day deadline is insufficient—supporting documents must be filed concurrently.Out: Res Judicata. In: Claim Preclusion.Sanctions Strategy: 28 U.S.C. § 1927 can be used for sanctions without Rule 11's cumbersome 21-day safe harbor.AI Ethics: California courts confirmed in Nolan v. Land of the Free that attorneys must personally read all cited authorities, regardless of whether AI tools were used in brief preparation.And more practical insights on navigating procedural pitfalls, avoiding sanctions, and ethically incorporating AI tools into your appellate practice.
9/17/25 • 31:51
Failing to cite your secondary sources in briefs is poor form. But is it plagiarism? Jeff and Tim debate. And when the Supreme Court The publishes a case, should it explain itself? PJ Gilbert and Tim say yes, Supreme Court and Jeff disagree.Also in this episode:Can copying from a CLE article really get you sanctioned? Kelly v. Tao suggests… maybe.Presiding Justice Gilbert rails (again) against the Court's silent de-publishing practices.Deny a request for admission in a one-way fee-shifting case? You might still owe fees—Gammo v. Morrell.$105k in sanctions after failing to abandon claims disproven in discovery—Atlantic v. Baroness.The perils of citing the wrong fee statute—Martin v. Hogue.Gibson Dunn bills $1.8M for May alone in public interest litigation over LA homelessness.Can ChatGPT testify against you? OpenAI’s CEO says maybe.How AI tools are reshaping billing, ethics, and expectations for appellate lawyers.Tune in for AI ethics, briefing blunders, and why even your RFA denials could cost you.
9/10/25 • 36:08
Patrick Hagen is a man of the people—he still proudly uses Times New Roman! But he also has the ear of LinkedIn’s legal-writing elite, with over 36,000 followers as of August 2025.Patrick sits down with Jeff and Tim to share the source and method behind his viral legal-writing tips, how his judicial clerkships shaped his voice, how to hone good writing even when writing “by committee” under senior associates and partners, and why good writing—even in a losing case—is always worth the effort.We discuss:Why it is axiomatic that you should pause and think before using the word “axiomatic.”How AI tools like ChatGPT, ClearBrief, and CoCounsel can be the road to sharpened prose—or the road to ruin.Can a legal writing critic still be gracious?And the lightning round: TNR, Arial, two spaces, Oxford commas, and “Comes now….”Stay for the writing tips, return for the wit, and if you don’t want Patrick’s 36,000 followers laughing at your writing foibles behind your back, follow him on LinkedIn.
8/26/25 • 47:38
Unlike any other state, California effectively deputizes employees to act as “Private Attorney Generals” to sue employers for PAGA claims—both for themselves, and for their co-workers. But since the individual claims can get compelled to arbitration, employees started to file claims only on behalf of the “body” of co-workers, asserting no claim on behalf of themselves as the “head” of the case.Employer litigator Monte Grix explains how PAGA evolved into their “headless” form. Monte, Tim, and Jeff discuss the four cases currently on review before the California Supreme Court, including Leeper v. Shipt. Monte offers an inside view from the defense side, explaining why employers see these actions as a threat to arbitration agreements and the subject of growing appellate friction.Also in this episode:How Viking River Cruises and Adolph v. Uber set the stage for today’s headless-PAGA storm.Strategic pleading: why some plaintiffs drop their individual claims to avoid arbitration.The standing trap: can a plaintiff assert representative PAGA claims without showing personal harm?The stakes in the four pending California Supreme Court cases: if a plaintiff can skip arbitration by asserting only representative claims, is PAGA immunity from arbitration complete?Turrieta v. Lyft: why copycat plaintiffs can’t intervene in pending PAGA settlements.Rodriguez v. Packer Sanitation and the Fifth District’s lesson in reading "and" as "and/or".Plus: a side quest into unconscious bias, tenure-track discrimination, and why arbitration clauses remain a sore spot for appellate lawyers.Then: the California Supreme Court's recent ruling in Hohenshelt eases the "30-day rule" for arbitration payments. Employers who pay a day late haven’t necessarily waived their rights—and Monte predicts the U.S. Supreme Court may eventually weigh in.Tune in for appellate nuance, strategic pleading, and the headless claims keeping California employers (and the courts) up at night.
8/20/25 • 42:15
Summarizing the extraordinary events surrounding the 2020 election, the California State Bar Court’s review decision issued a decision in June 2025 recommending that President Trump’s election attorney, John Eastman, be disbarred. Tim and Jeff unpack.Was Eastman merely theorizing, or actively advocating for a constitutional end-run?What is the difference, anyway, whether Eastman represented the President—an office that plays no constitutional role in the VP’s role regarding the electoral votes?Eastman’s interpretation of the 12th Amendment was not supported by scholars—but also not judicial foreclosed. Does advocating it warrant disbarment? (The equal-protection argument in Bush v. Gore was similarly off-the-wall, yet successful!)Eastman’s factual claims were not well-supported. But on the other hand, did the unique circumstances and recent election-law innovations promote a flurry of suspicion—with too little time to vet before challenges would be moot?The bar court says Eastman should have relied on "true experts"—what is that?
7/23/25 • 45:54
SCOTUSblog contributor and EmpiricalSCOTUS analyst Adam Feldman joins us for a recap of the 2024–25 Supreme Court term. We dive into the end-of-term Stat Pack, ideological surprises, dissent patterns, and whether the Court is still a 6–3 conservative lock—or something more nuanced.We discuss:Headlines make an opinion a “blockbuster,” but what really makes it significant?How Justice Kagan ended up in the majority more than some of the conservatives.Why Justice Kavanaugh writes so many concurrences.Does the emergency docket (aka “shadow docket”) confound the predictability of legal outcomes?Gorsuch’s libertarian streak, Barrett’s evolving voice, and Thomas’s prolific pen.Is the Court 3–3–3? Or just a 6-3 with what Adam calls a “soft middle”?SCOTUS opinion length, voting blocs, and coalition patterns—and why they matter to your next cert petition.Tune in to learn how to read between the majority lines—and what might be coming in the 2025–26 term.
7/16/25 • 46:09
Mere days after SCOTUS enjoins universal injunctions, judges find other way to afford “complete relief.” A big one: The Administrative Procedure Act allows courts to enjoin agency actions.Also:What if a defendant does not want a co-defendant dismissed and relieved of liability? The California Supreme Court says co-defendants can oppose each other’s MSJs in R&D Contractors v. Superior Court.The Climategate saga continues: when 12-years of anti-SLAPP litigation does not end Dr. Michael Mann’s lawsuit defending his “hockey stick” temperature graph, the D.C. court reverses on punitive damages: with a mere $1 nominal damages award, $1M in punitives is too high. Dr. Mann’s total result after a dozen years of litigation: $6,002 (and a bill for $9,000 in discovery sanctions).You snooze, you pay: Employer gets sanctioned $183k for late arbitration fee payment in Guffey v. Bokeet.Family law FC 2030 fee denial reversed for considering improper, extra-statutory equitable factors in Marriage of Sadie v. Cativar.Georgia appellate court sanctions lawyer for ChatGPT-cited fake cases, citing study showing AI makes mistakes 75% of the time.Can you hand up exhibits during appellate argument? Maybe in Texas.The Third District new program delays record deadlines pending mediation.Tune in for insights on trial prep, appeals strategy, and the increasingly blurred lines between branches of government.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Climate Change Trial Update: Jury awards $1 plus $1M punitives for hockey-stick criticismAlex Anteau 'Don't Be Dumb': Ga. Court of Appeals Sanction Gives Insight...Law360 The Funniest Moments of The Supreme Court's Term - Law360
7/8/25 • 43:05
No more nationwide injunctions, SCOTUS says Justice Barrett writing for the 6-3 majority in Trump v. CASA. District courts must limit their injunctions to the “case or controversy” before it. Justices Sotomayor and Jackson each wrote dissents urging that more judicial power was needed to check the executive. In response, Justice Barrett says that exceeding judicial power is not the right way to address excessive executive power.The Court did not reach the merits of the Natural Born Citizenship clause.Also:The 9th Circuit seems poised to hold that anti-SLAPP motions are not appealable. This week’s en banc oral argument in Gopher Media v. Malone had many judges criticizing its precedent to the contrary.A lawyer calls a justice “honey” at oral argument. The internet is not forgiving.A party improperly recorded a trial court proceeding. While noting it is against the rules, the appellate court uses it as the record.How many hours does an appeal take?Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:https://www.scotusblog.com/cases/case-files/trump-v-casa-inc/https://www.linkedin.com/posts/meganwade_i-am-very-curious-to-see-responses-here-activity-7343977603051008002-fy8B?utm_source=share&utm_medium=member_desktop&rcm=ACoAACr8Z0cBB2uXy0Jklta4ZeCWMkby7fji_XkVideos from this episode will be posted at Tim Kowal’s YouTube channel.
6/28/25 • 39:53
Governor Newsom sued to enjoin President Trump’s deployment of the National Guard to quell the ongoing LA riots without Newsom’s consent. But first, we disclose our biases—about Trump, opportunistic political labeling of “rebellions” or “insurrections,” and how easily the thin veneer of civilization is pierced by masked cowards throwing rocks.Also:Beach yoga is free speech, says the Ninth Circuit striking down San Diego’s ban.A study on televised oral arguments reveals that camera angles—and flags—can change the court’s perception with the public as “legitimate.”Lawyers must comply with the evidence code—but the court can also consider mere “information.” We discuss why appellate courts seem so cavalier about the rules of evidence.“Citation modified” enters the Bluebook—but Tim and Jeff agree: “cleaned up” still reigns.Appellate fees ≠ judgment enforcement fees.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Is “evidence” different from “information”?The “(cleaned up)” origin story, with Jack MetzlerStudy on televising oral arguments and judicial legitimacyCALP cited in a law review about (cleaned up)! Craighead, Burke, The Bluebook: An Insider's Perspective (May 12, 2025). Michigan Law Review, Volume 124 (forthcoming 2026), Available at SSRN: https://ssrn.com/abstract=5271305 or http://dx.doi.org/10.2139/ssrn.5271305.Judgment enforcement fees reminder: EDWARD H. BONIN, v. LINCOLN CHAYES et al., (D2d2, May 29, 2025, No. B340106) (non-pub. opn.)Not enough time for the CCP 128.5 21-day date harbor? Nothing prevents asking for a continuance of the underlying motion. JUNKERS2JEWELS, LLC, et al., v. LA-DORIS MCCLANEY, (Cal. Ct. App., May 28, 2025, No. B339900) (non-pub. opn.)
6/12/25 • 39:02
The Court of International Trade—whatever that is—enjoined Trump’s tariffs. But the Court of Appeal for the Federal Circuit imposed an administrative stay pending further briefing. We also cover:Defending a Zoom depo? If you refuse to go on camera and are accused of improper witness communication, you may be sanctioned. (Remote depos are a game-changer—woe betide the attorney who screws it up for the rest of us!)Case settled, but wire of settled funds intercepted by scammers. Who bears the burden depends on the circumstances—best practice is to put the wire info in the agreement itself.Fee awards, abuse of discretion, and dueling precedents: Cash v. County of LA vs. Snoeck v. Exactime.Supreme Court review granted in Maniago: Is a voluntary dismissal after a loss appealable?Appearing at sentencing, Tom Girardi’s pants fall down—but he still gets 87 months.Big Oral Argument News: Remote oral arguments are now available statewide without need to show good cause.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Beware using the Judicial Council form dismissal
6/5/25 • 30:00
The Supreme Court faulted the district judge in A.A.R.P. v. Trump for refusing to grant the Venezuelan alleged Tren de Aragua members’ injunction. But on remand, Judge Ho comes to the judge’s defense: after all, the judge only had 42 minutes’ notice. And to conclude that the judge had had some 14 hours, Judge Ho noted, the Supreme Court must have started counting at 12:30 a.m. Last time we checked, Congress has not provisioned courts a budget to operate 24 hours. “This is a district court,” Judge Ho reminds, “not a Denny’s.”The Supreme Court doesn’t have appellate jurisdiction without an actual order on the injunction motion. Tim agrees with Judge Ho that the Supreme Court played a little roughshod with the otherwise fussy jurisdictional rules.But the Court is losing patience with the Trump Administration’s legal tactics, Jeff suspects, which is why the Court is willing to stretch past the limits on its power.What do you think? Is the Court’s move defensible exercising power arguably beyond its jurisdiction? Does it hold faith with Marbury, which famously established judicial power by not exercising it?We also discuss the one-sentence letdown in the high-stakes religious charter school case, Oklahoma Charter Board v. Drummond. And we share CALP alum Chris Schandevel’s appellate lessons from a hard-fought loss: how to serve your client when the Court doesn’t serve you the decision you fought for.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
5/28/25 • 21:46
SCOTUS spent two and a half hours hearing oral argument on Friday in the birthright-citizenship cases consolidated in Trump v. CASA—not about birthright citizenship, but about whether district courts should be issuing nationwide injunctions. Many justices, and commentators on both sides, have criticized nationwide injunctions as a judicial incursion into executive policymaking in both Republican and Democratic administrations. But will the Court use this case to impose limits?We discuss:Plaintiffs in this case include 22 states. Absent a nationwide injunction, half the country would be under a different rule of birthright citizenship until the case resolves.CJ Roberts suggested that, in true emergencies, the Court can resolve a case fast, in as little as a month. Does this cut for or against nationwide injunctions?What does the Court think about using Rule 23 class actions as a substitute vehicle for nationwide relief?Are we heading toward a “guidance-free” 5–4 non-decision?Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal’s YouTube channel.
5/20/25 • 28:19
Trump’s executive order targeting Perkins Coie gets bench-slapped. Jeff recites the decision’s paean to the plight of lawyers. Tim wonders if Big Law was really hanging by such a slender thread. But on the law, neither is surprised by the result in Perkins Coie v. DOJ.Also this week:A motion to seal to protect privacy goes full Streisand Effect in Marin v. Rayant—filed, denied, appealed... and now, at the request of First Amendment scholar Eugene Volokh, a full published opinion.In Chang v. Brooks, a man loses his Wyoming guns after heatedly accusing his California neighbor of killing his cat and then getting hit with a restraining order. His SLAPP motion? Denied—without a hearing needed. Held: You’re entitled to a hearing, but it would have made no difference. Jeff & Tim ask: if Abrego-Garcia were to get a hearing, would it make a difference?A $10M harassment verdict is tossed after a trial judge goes off-script with bizarre commentary and irrelevant evidence in Odom v. LACCD.Should courts require lawyers to swear they didn’t use AI? Jeff and Tim say: bad research predates robots.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:You have a right to a hearing only if you have something worthwhile to sayhttp://socal-appellate.blogspot.com/2025/04/ai-for-appellate-motions-and-more.htmlhttps://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lmfmkodpks2zhttps://bsky.app/profile/roland.cros.by/post/3lmjyk7wejc2o
5/7/25 • 37:34
A civil litigant, hit with $200,000 sanctions for plotting the kidnapping and murder of the defendant, gets the sanctions reversed.Next week the California Supreme Court will hear oral argument on whether the state can mandate long-term care facility employees to use residents’ preferred pronouns. If this is consistent with the First Amendment, could conservative states mandate hospitals refer to fetuses as “unborn children”?The State Bar used AI to create bar exam questions.An attorney used a cartoon dragon watermark in his federal filing.And Jeff reports some tips from the recent San Francisco CLA/OCBA appellate conference.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal’s YouTube channel.
4/29/25 • 28:24
Apple said no jab, no job. The actor sued. The Court of Appeal holds the jab policy is expressive conduct, and thus the suit was a SLAPP.Apple Studios dropped an actor from its Manhunt miniseries over a COVID vaccine mandate. The actor sued. Apple filed an anti-SLAPP motion—and won. Jeff and Tim break down Sexton v. Apple Studios and ask:Is a vaccine mandate a creative decision?Do logistical decisions become “expressive” just because they are part of making a film?The court held that following “contemporary conventional wisdom” was reasonable, but what happens when that wisdom was arrived at suddenly in a matter of a few months—and then is abandoned just as suddenly?And recall past “contemporary conventional wisdom” that is now abandoned: smoking was safe (even good for you!); thalidomide was good for pregnant women; Fen-Phen and Vioxx were promoted. Tim notes that much medical orthodoxy has a short shelf life and the law needs to allow room for individual choice. Jeff notes that in emergency situations the law needs to defer to coalescing expert opinion and best practices. We discuss, you decide.Also:A pro se litigant tricks a New York court into letting his AI avatar argue for him. (Spoiler: it did not go well.)Plus, updates on shadow docket misadventures and deportation do-overs.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Apple’s mandatory vaccine is “creative” expression—employee’s lawsuit held a SLAPP
4/16/25 • 34:21
Alan Dershowitz signed a complaint containing frivolous allegations in Kerri Lake v. Gates. But he’s only “of counsel” who reviewed one paragraph, containing nothing frivolous. So the panel reversed the Rule 11 sanctions—but warns that, going forward, “of counsel” is not a valid defense. Judge Bumatay writes separately to say it should be. Jeff agrees with the majority, but Tim raises a possible chilling effect for trial consultants and appellate counsel—does one bad banana expose the entire trial team to sanctions?Also:Is judicial impeachment a real threat or just cable-news cosplay?Discovery fee awards aren’t sanctions unless the judge calls it a sanction.A SLAPP fee order isn't separately appealable—even if it feels like it should be.Teaser for next week: Sexton v. Apple Studios—where vaccine mandates, historical drama, and anti-SLAPP collide.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:You can appeal discovery sanctions, but not a mere cost allocationCan an attorney sign as to only part of a pleading?Are articles of impeachment "attacks" on judicial independence?Appealability of SLAPP Fee Orders
4/3/25 • 29:33
Judge VanDyke made a YouTube video to accompany his dissent in Duncan v. Bonta, the Second Amendment case in which a Ninth Circuit en banc panel upheld California’s ban on handgun magazines over 10 bullets. Judge VanDyke’s video shows him disassembling a gun, comparing accessories, and using a portion of oral argument to claim his point wasn’t being heard. The issue: If a magazine is just an accessory not entitled to Second Amendment protection, then basically the entire gun is just a bunch of unprotected accessories.Jeff and Tim react:Can a federal judge issue a TikTok-style dissent? If so, can lawyers start footnoting their briefs with YouTube links?Does a video “illustration” that relies on props cross the line into new fact-finding? Or is it just illustrative of a legal point about distinguish an “arm” from its “accessories”?Are judges likely to do more of these dissents? Maybe explainer videos would be useful in patent cases (comparing iPhone and Samsung phone designs), or product defects, or police excessive-force cases?And practical questions: Will the video—and transcript—show up in Westlaw searches? How do you cite to something side during a dissent video?We also discuss a California Supreme Court ruling clarifying that malicious prosecution claims, even against lawyers, get the full two-year statute of limitations. Not the shorter one-year.And finally, an update from the J&J v. Trump litigation saga: a judge opens with a warning about the “priceless” nature of attorney integrity. The administration then invoked state secrets. Contempt proceedings now loom. Stay tuned.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Video Dissent: https://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lkt7yftgqc2g
3/26/25 • 27:12
A federal judge ordered the Trump administration not to deport five plaintiffs, alleged MS-13 and Tren de Aragua Venezuelan gang members. The administration complied, but then the judge verbally ordered the administration to turn around a plane and return 261 non-party alleged gang members. The administration didn’t do so, and appealed. Meanwhile, the President tweeted that the judge should be impeached. In response, the Chief Justice said that’s not how we do things.Jeff and Tim react:Is the President’s determination that the deportees are part of an “invasion or predatory incursion” affiliated with a foreign nation a political question, and thus nonjusticiable? If so, can the President just ship off Rachel Maddow without judicial review?Was it irregular for 261 non-party alleged gang members to get added to a TRO after an oral motion and no opportunity for briefing?Was it wise for the court to create a contest between the court and the presidency by verbally demanding planes turn around? Was it wise for the President to tweet in protest against the judge? (To the former: it’s arguable. To the latter: certainly not.)We then discuss how you can lose your right to appellate fees for being uncivil. And if you are uncivil, does the court expect you to apologize?Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal’s YouTube channel.
3/19/25 • 34:55
Even if you technically can’t use an electronic recording to create the appellate record, trial courts do provide them for us in your closing argument PowerPoint. Jeff shares his experience.And after spending most of a morning watching oral arguments waiting for his case, Jeff offers these tips:It took 20 minutes of argument time just for the panel to get its head around who was who in a case full of alphabet-soup entities. If you’re spending a third of oral argument time in front of a confused panel, you’re doing it wrong.Try this:If your case has lots of “ABC LLCs” and “ABC Holdings LLCs,” try using functional names instead—like “the management company,” and “the holding company,” "investor", "bank", "assignee," etc.Anticipate this confusion in your briefs. Include a clear chart in the brief that helps track the parties, preferably directly in the brief or as a supplemental exhibit.The goal is to reduce "friction." If you’ve used up all panel’s brain synapses just to understand the players, you’re going to have a poor time once you get to the merits.We also get to a couple cases, including a trap on appellate briefing extensions.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Are employees immune from paying discovery fees?A stipulated dismissal is appealable, but not a voluntary dismissal?
3/12/25 • 19:45
Here’s a trap door to avoid: if you are trying to expedite an appeal by dismissing remaining claims, do not use the Judicial Council dismissal form. Instead, you need a judge-signed dismissal. While Jeff is still in trial, Tim covers Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972. The plaintiff dismissed his remaining claims after his core theory was gutted on demurrer, but the Court of Appeal held that a voluntary dismissal using the Judicial Council form is not an appealable order.If you are an appellate specialist and trial counsel asks how to expedite an appeal after a devastating interlocutory ruling, you’ll need to know about this trap door in Maniago, as well as the right way forward in Tos v. State (2021) 72 Cal.App.5th 184.And if you understand why a voluntary dismissal using the Judicial Council form is not appealable, but a voluntary dismissal using pleading paper is, then please volunteer to come on the podcast to explain it to the rest of us!Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972Tos v. State (2021) 72 Cal.App.5th 184Kurwa v. Kislinger (2017) 4 Cal.5th 109 (writeup here)
3/5/25 • 11:22
All eyes are on the electronic-recording original proceeding in the Supreme Court, Family Violence Appellate Panel v. Superior Court, and the Court’s recent order to show cause why, when a court reporter can’t be found, California’s trial courts should not be ordered to hit the “record” button. This could this be the most significant advancement in electronic court recording in decades. But it raises a few questions:❔ The remedy sought is limited to low-income litigants. But if the Court buys the equal-protection arguments, won’t it require a holding for all Californians?❔ Will the Superior Courts oppose the relief? LA Superior Court, after all, already issued a local rule allowing electronic recordings.❓ Will the Legislature oppose? To the contrary, Jeff makes a bold prediction that the Legislature, to avoid embarrassment, will amend or abolish Gov. Code § 69957 before the Court rules.⁉️ Will the court reporter lobby oppose? Is opposition possible without appearing villainous?Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Is the electronic-recording ban unconstitutional?Family Violence Appellate Project v. Superior Court (no. S288176)Jameson v. Desta (2018)
2/26/25 • 23:15
Please AI responsibly: Attorneys at a major law firm are making use of ChatGPT. That's not a bad thing normally, but filling in legal cites is not what it's for. The unchecked ChatGPT cases were fake at a rate of 8 out of 9 total cases in a single brief. On this recent legal news episode Jeff and Tim cover:How to AI responsibly (and not get sanctioned).How to challenge arbitration responsibly (and not get sanctioned).How to anti-SLAPP responsibly (and not get sanctioned).Recent court stats and rule updates.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:AI Hallucinations May Lead to Sanctions for Big PI Law firm**.**Changes coming to Legal Specialization Board?Plantations at Haywood 1, LLC v. Plantations at Haywood, LLC*Wash v. Banda-Wash - 40 day period to claim costs after appeal not extended by 2 days - we are sent remands, we are not served with remands*Filmore Center Associates v. Lewis; San Francisco Superior CourtDisbarred in Federal Court, But Welcome in State Court?Frivolous anti-SLAP
2/18/25 • 35:54
Your check for arbitration fees gets delayed in the mail. Under a particularly harsh pay-or-waive provision of the California Arbitration Act, if your fee is received on day 31, too bad—your arbitration rights go Poof! Or do they? There’s currently a big split among the appellate courts on this.Tim goes solo while Jeff is still in trial, covering several of the recent cases on both sides of the split.Does your arb agreement incorporate the FAA? You might be well-poised to argue it preempts the FAA.Or is the arb agreement silent on FAA, or include only a qualified reference? You’re on shakier ground.There’s also a separation of powers concern: Can the legislature declare that late arbitration fee payments automatically equal a waiver of arbitration rights, or is that a judicial function? Waiver is a common-law doctrine, and it’s discretionary. But clearly that’s not how the legislature intends it. And waiver requires fact-finding of the parties’ intentions in a particular case—obviously the Legislature doesn’t know what some future litigant in some future scenario “intends.”Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents (May 30, 2024)Yet another arbitration preemption case, with 1st Dist. holding CAA’s 30-day deadline survivesAnother late arbitration payment case, again holding the FAA preempts the CAAHernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.] (rev. granted in Hohenshelt)Keeton v. Tesla, Inc. (D1d1 Jun. 26, 2024 No. A166690) (mentioned here)
2/12/25 • 15:08
The San Bernardino Superior Court electronically records trial. Can Jeff use the recording as the appellate record? Short answer: no. But there’s an original writ pending in the Supreme Court on a similar issue, so watch this space.We also cover:Jury Fee Hike, Paid by State Fund—but for how long?Shehi v. Chicago Title Insurance Co.—attorney disqualification is appealable, but expert witness exclusion isn't, even when the expert is an attorney.Tom Girardi saga—Wife Erica Girardi held not liable for aiding and abetting her husband's client trust fund misconduct.The Fifth Amendment & Privilege Logs – A Ninth Circuit case on self-incrimination and privilege log requirements.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Attorney DQ Orders Are Appealable, But Not for Attorney Expert WitnessesAudio recording in San Bernardino and Court ReportersFinn v. Girardi (2D5d. Jan. 28, 2025, No. B324878) (nonpub. opn.).In Re Grand Jury Subpoena (9th Cir., Jan. 28, 2025, No. 24-2506)
2/4/25 • 29:54
