The California Appellate Law Podcast

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Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:You have a right to a hearing only if you have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

A civil litigant, hit with $200,000 sanctions for plotting the kidnapping and murder of the defendant, gets the sanctions reversed.Next week the California Supreme Court will hear oral argument on whether the state can mandate long-term care facility employees to use residents' preferred pronouns. If this is consistent with the First Amendment, could conservative states mandate hospitals refer to fetuses as “unborn children”?The State Bar used AI to create bar exam questions.An attorney used a cartoon dragon watermark in his federal filing.And Jeff reports some tips from the recent San Francisco CLA/OCBA appellate conference.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal's YouTube channel.

Apple said no jab, no job. The actor sued. The Court of Appeal holds the jab policy is expressive conduct, and thus the suit was a SLAPP.Apple Studios dropped an actor from its Manhunt miniseries over a COVID vaccine mandate. The actor sued. Apple filed an anti-SLAPP motion—and won. Jeff and Tim break down Sexton v. Apple Studios and ask:Is a vaccine mandate a creative decision?Do logistical decisions become “expressive” just because they are part of making a film?The court held that following “contemporary conventional wisdom” was reasonable, but what happens when that wisdom was arrived at suddenly in a matter of a few months—and then is abandoned just as suddenly?And recall past “contemporary conventional wisdom” that is now abandoned: smoking was safe (even good for you!); thalidomide was good for pregnant women; Fen-Phen and Vioxx were promoted. Tim notes that much medical orthodoxy has a short shelf life and the law needs to allow room for individual choice. Jeff notes that in emergency situations the law needs to defer to coalescing expert opinion and best practices. We discuss, you decide.Also:A pro se litigant tricks a New York court into letting his AI avatar argue for him. (Spoiler: it did not go well.)Plus, updates on shadow docket misadventures and deportation do-overs.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Apple's mandatory vaccine is “creative” expression—employee's lawsuit held a SLAPP

Alan Dershowitz signed a complaint containing frivolous allegations in Kerri Lake v. Gates. But he's only “of counsel” who reviewed one paragraph, containing nothing frivolous. So the panel reversed the Rule 11 sanctions—but warns that, going forward, “of counsel” is not a valid defense. Judge Bumatay writes separately to say it should be. Jeff agrees with the majority, but Tim raises a possible chilling effect for trial consultants and appellate counsel—does one bad banana expose the entire trial team to sanctions?Also:Is judicial impeachment a real threat or just cable-news cosplay?Discovery fee awards aren't sanctions unless the judge calls it a sanction.A SLAPP fee order isn't separately appealable—even if it feels like it should be.Teaser for next week: Sexton v. Apple Studios—where vaccine mandates, historical drama, and anti-SLAPP collide.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:You can appeal discovery sanctions, but not a mere cost allocationCan an attorney sign as to only part of a pleading?Are articles of impeachment "attacks" on judicial independence?Appealability of SLAPP Fee Orders

Judge VanDyke made a YouTube video to accompany his dissent in Duncan v. Bonta, the Second Amendment case in which a Ninth Circuit en banc panel upheld California's ban on handgun magazines over 10 bullets. Judge VanDyke's video shows him disassembling a gun, comparing accessories, and using a portion of oral argument to claim his point wasn't being heard. The issue: If a magazine is just an accessory not entitled to Second Amendment protection, then basically the entire gun is just a bunch of unprotected accessories.Jeff and Tim react:Can a federal judge issue a TikTok-style dissent? If so, can lawyers start footnoting their briefs with YouTube links?Does a video “illustration” that relies on props cross the line into new fact-finding? Or is it just illustrative of a legal point about distinguish an “arm” from its “accessories”?Are judges likely to do more of these dissents? Maybe explainer videos would be useful in patent cases (comparing iPhone and Samsung phone designs), or product defects, or police excessive-force cases?And practical questions: Will the video—and transcript—show up in Westlaw searches? How do you cite to something side during a dissent video?We also discuss a California Supreme Court ruling clarifying that malicious prosecution claims, even against lawyers, get the full two-year statute of limitations. Not the shorter one-year.And finally, an update from the J&J v. Trump litigation saga: a judge opens with a warning about the “priceless” nature of attorney integrity. The administration then invoked state secrets. Contempt proceedings now loom. Stay tuned.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Video Dissent: https://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lkt7yftgqc2g

A federal judge ordered the Trump administration not to deport five plaintiffs, alleged MS-13 and Tren de Aragua Venezuelan gang members. The administration complied, but then the judge verbally ordered the administration to turn around a plane and return 261 non-party alleged gang members. The administration didn't do so, and appealed. Meanwhile, the President tweeted that the judge should be impeached. In response, the Chief Justice said that's not how we do things.Jeff and Tim react:Is the President's determination that the deportees are part of an “invasion or predatory incursion” affiliated with a foreign nation a political question, and thus nonjusticiable? If so, can the President just ship off Rachel Maddow without judicial review?Was it irregular for 261 non-party alleged gang members to get added to a TRO after an oral motion and no opportunity for briefing?Was it wise for the court to create a contest between the court and the presidency by verbally demanding planes turn around? Was it wise for the President to tweet in protest against the judge? (To the former: it's arguable. To the latter: certainly not.)We then discuss how you can lose your right to appellate fees for being uncivil. And if you are uncivil, does the court expect you to apologize?Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal's YouTube channel.

Even if you technically can't use an electronic recording to create the appellate record, trial courts do provide them for us in your closing argument PowerPoint. Jeff shares his experience.And after spending most of a morning watching oral arguments waiting for his case, Jeff offers these tips:It took 20 minutes of argument time just for the panel to get its head around who was who in a case full of alphabet-soup entities. If you're spending a third of oral argument time in front of a confused panel, you're doing it wrong.Try this:If your case has lots of “ABC LLCs” and “ABC Holdings LLCs,” try using functional names instead—like “the management company,” and “the holding company,” "investor", "bank", "assignee," etc.Anticipate this confusion in your briefs. Include a clear chart in the brief that helps track the parties, preferably directly in the brief or as a supplemental exhibit.The goal is to reduce "friction." If you've used up all panel's brain synapses just to understand the players, you're going to have a poor time once you get to the merits.We also get to a couple cases, including a trap on appellate briefing extensions.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Are employees immune from paying discovery fees?A stipulated dismissal is appealable, but not a voluntary dismissal?

Here's a trap door to avoid: if you are trying to expedite an appeal by dismissing remaining claims, do not use the Judicial Council dismissal form. Instead, you need a judge-signed dismissal. While Jeff is still in trial, Tim covers Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972. The plaintiff dismissed his remaining claims after his core theory was gutted on demurrer, but the Court of Appeal held that a voluntary dismissal using the Judicial Council form is not an appealable order.If you are an appellate specialist and trial counsel asks how to expedite an appeal after a devastating interlocutory ruling, you'll need to know about this trap door in Maniago, as well as the right way forward in Tos v. State (2021) 72 Cal.App.5th 184.And if you understand why a voluntary dismissal using the Judicial Council form is not appealable, but a voluntary dismissal using pleading paper is, then please volunteer to come on the podcast to explain it to the rest of us!Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972Tos v. State (2021) 72 Cal.App.5th 184Kurwa v. Kislinger (2017) 4 Cal.5th 109 (writeup here)

All eyes are on the electronic-recording original proceeding in the Supreme Court, Family Violence Appellate Panel v. Superior Court, and the Court's recent order to show cause why, when a court reporter can't be found, California's trial courts should not be ordered to hit the “record” button. This could this be the most significant advancement in electronic court recording in decades. But it raises a few questions:❔ The remedy sought is limited to low-income litigants. But if the Court buys the equal-protection arguments, won't it require a holding for all Californians?❔ Will the Superior Courts oppose the relief? LA Superior Court, after all, already issued a local rule allowing electronic recordings.❓ Will the Legislature oppose? To the contrary, Jeff makes a bold prediction that the Legislature, to avoid embarrassment, will amend or abolish Gov. Code § 69957 before the Court rules.⁉️ Will the court reporter lobby oppose? Is opposition possible without appearing villainous?Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Is the electronic-recording ban unconstitutional?Family Violence Appellate Project v. Superior Court (no. S288176)Jameson v. Desta (2018)

Please AI responsibly: Attorneys at a major law firm are making use of ChatGPT. That's not a bad thing normally, but filling in legal cites is not what it's for. The unchecked ChatGPT cases were fake at a rate of 8 out of 9 total cases in a single brief. On this recent legal news episode Jeff and Tim cover:How to AI responsibly (and not get sanctioned).How to challenge arbitration responsibly (and not get sanctioned).How to anti-SLAPP responsibly (and not get sanctioned).Recent court stats and rule updates.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:AI Hallucinations May Lead to Sanctions for Big PI Law firm**.**Changes coming to Legal Specialization Board?Plantations at Haywood 1, LLC v. Plantations at Haywood, LLC*Wash v. Banda-Wash - 40 day period to claim costs after appeal not extended by 2 days - we are sent remands, we are not served with remands*Filmore Center Associates v. Lewis; San Francisco Superior CourtDisbarred in Federal Court, But Welcome in State Court?Frivolous anti-SLAP

Your check for arbitration fees gets delayed in the mail. Under a particularly harsh pay-or-waive provision of the California Arbitration Act, if your fee is received on day 31, too bad—your arbitration rights go Poof! Or do they? There's currently a big split among the appellate courts on this.Tim goes solo while Jeff is still in trial, covering several of the recent cases on both sides of the split.Does your arb agreement incorporate the FAA? You might be well-poised to argue it preempts the FAA.Or is the arb agreement silent on FAA, or include only a qualified reference? You're on shakier ground.There's also a separation of powers concern: Can the legislature declare that late arbitration fee payments automatically equal a waiver of arbitration rights, or is that a judicial function? Waiver is a common-law doctrine, and it's discretionary. But clearly that's not how the legislature intends it. And waiver requires fact-finding of the parties' intentions in a particular case—obviously the Legislature doesn't know what some future litigant in some future scenario “intends.”Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents (May 30, 2024)Yet another arbitration preemption case, with 1st Dist. holding CAA's 30-day deadline 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)

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)

Jeff is in trial, so take in a few quick summaries of recent cases and get back to billing:Incivility cost attorney $340,000 in fee reduction. Clip-n-save the recent controlling case on this point, Karton v. Ari Design & Construction, Inc.: "Excellent lawyers deserve higher fees, and excellent lawyers are civil.”Don't let the trial court deny relief before you've asked for it.Lost the CCP 998 bet? You can still get judgment-enforcement fees.Infamous sterlization case Buck v. Bell (”three generations of imbeciles are enough”) has never been formally overruled, and the California Court of Appeal still gives the mentally disabled mere rational basis.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Court cannot deny fees until a motion is madeHeadnotes Jan. 24, 2025: one-sentence summaries of this week's below-the-fold casesIncivility Fee Reduction of $340k!The Court of Appeal says that rational basis review applies to mentally disabled.

There was a bit in an old radio show (Kevin-and-Bean KROQ old, not Little Orphan Annie old) had Ralph Garman review movies he'd never seen, based only on watching the trailers. In this episode, we review some cases we haven't read. We discuss the cases below, which lead to some good tangents.When discovery objections have been waived, does serving responses that still contain the waived objections count as “substantial compliance”? Trial court said no, but the correct answer is Yes, says Katayama v. Cont'l Inv. Grp. (D4d3 Oct. 9, 2024 No. G063872) [published].Discussing the difference between waiver and forfeiture. N. Am. Title Co. v. The Superior Court. (Cal. Oct. 28, 2024 No. S280752).Satisfying judgment renders appeal moot: In Baker Entm't, LLC v. Emmett Furla Oasis Films, LLC . (2D7d Oct. 28, 2024. No. B323388) (nonpub. opn.)Failing to respond to demand for punitive damages information, defendant forfeited its challenge to $15M punitives award. (Mosley v. Pacifica Bakersfield, L.P. (D5 Sep. 19, 2024 No. F084699) (nonpub. opn.).To Avoid Unjust Result, Unambiguous Statute Held Ambiguous.  In re Marriage of Cady and Gamick (D2d1 Sep. 25, 2024 No. B326716)Other items discussed in the episode:Headnotes 11/21/24: Judge Bias Can Be Forfeited But Not Defective ServiceLate objections to RFAs do not invalidate otherwise substantive responsesHeadnotes: one-sentence summaries of this week's below-the-fold cases

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

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

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

There is a 700-appellate case backlog in Los Angeles and only around 450 attorneys on the California Appellate Project—Los Angeles panel. CAP-LA attorneys Jennifer Hansen and Jennifer Peabody share how the rest of us can pitch in to assuage this gap in the administration of justice.Why work as a panel attorney?Get appellate experience.Work with an experienced appellate attorney.Flexible schedules, remote work, and mentorship.While rates are modest, they may be increasing. And there are no client-trust concerns, and CAP-LA covers malpractice insurance.Grow your reputation and rapport with colleagues and the bench.Make a meaningful difference in clients' lives.Tune in to hear how appellate attorneys can make a profound impact while building their careers and enhancing their reputations in the legal community.Jennifer Hansen biography, LinkedIn profile, and Twitter feed.Jennifer Peabody biography, LinkedIn profile, and Twitter feed. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Below are links to all five project websites and the application for each.  Panel Application Links:First District Appellate Project:  https://www.fdap.org/about/applying-to-the-panel/Sixth District Appellate Project:  https://sdap.org/about/panel-application/Central California Appellate Program:  https://capcentral.org/about/how-to-apply/Appellate Defenders Inc: https://www.adi-sandiego.com/panel-attorneys/how-to-become-a-panel-attorney/California Appellate Project - LA: https://cap-la.org/apply/Examples of online resources for appointed attorneys are below:Samples bank:  https://capcentral.org/resources/motion/Practice Guide:  https://www.adi-sandiego.com/wp-content/uploads/2024/08/Manual-4th-Edition-Oct-2024.pdfAppointed Appellate Attorney Community: www.cadc.net

Attorneys still wrestling with Microsoft Word to finish a brief need to be acquainted with Chris Dralla's product Typelaw, the groundbreaking tool that lets attorneys turn plain text into fully formatted, cited, hyperlinked, local rule-compliant briefs.If your practice depends on producing high-quality briefs, here is why you need Typelaw in your life:Typelaw reduces non-billable time spent on technical aspects of brief preparation, allowing lawyers to focus on legal arguments.Moving beyond Word, Typelaw lets you edit directly in the PDF to see instantly what the final, hyperlinked version will look.We also compare and contrast Typelaw with similar and complimentary offerings from Clearbrief and CounselPress.Chris Dralla's biography, LinkedIn profile, and Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal's YouTube channel.Explore Type Law: Visit Type Law's website to learn more about their services for automating appellate and trial brief preparation.

In this episode, Tim and Jeff dive into the recent heated exchange between Fifth Circuit Judge Edith Jones and Georgetown Professor Stephen Vladeck at the Federalist Society's Lawyers National Lawyers Conference. The debate centered on the tension between judicial independence and the criticism of judge shopping in high-profile cases.Tim and Jeff analyze the arguments from both sides, unpacking the implications for the legal profession and the judiciary. They explore the balance between maintaining judicial impartiality and the tactical decisions lawyers make to secure favorable venues.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal's YouTube channel.Upcoming Event:A California Appellate Lawyers Podcast (CALP) meetup on December 10 at the Grand Central Market in Los Angeles.Relevant Links:The Continued Independence of the Judiciary [2024 NLC]Elon Musk's Terms of Service Changes

Responding to a decades-long lack of court reporters, the Los Angeles Superior Court in September 2024 ordered that electronic recordings may be made. This arguably violates a statute prohibiting the use of electronic recordings. But Erin Smith, co-founder of the Family Violence Appellate Project, explains why the lack of meaningful access to an appellate record is a constitutional crisis. She explains how the General Order is carefully drawn to avoid any prejudice to the interests of the court-reporters association while providing opportunity to create the all-important appellate record.Erin Smith's biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:9/5/24 LASC General Order.Letters to the Editor: Let judges hit 'record' when no court reporters are available, Erin C. SmithTim Kowal, A Day Without a Court ReporterVideos from this episode will be posted at Tim Kowal's YouTube channel.

Erin Smith's Family Violence Appellate Project has over 50 published cases under its belt—which is even more impressive considering how difficult it is to get a good record in these cases. In this first part of our conversation, we discuss the FVAP's work, and the kind of mistakes trial judges make in domestic violence cases.Erin Smith's biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:9/5/24 LASC General Order.Letters to the Editor: Let judges hit 'record' when no court reporters are available, Erin C. SmithTim Kowal, A Day Without a Court ReporterVideos from this episode will be posted at Tim Kowal's YouTube channel.

Couldn't make this year's ClioCon? Don't know why you would if you could? Jeff is on location in Austin, Texas, and reports in on the latest legal tech trends, like:The death of the billable hour? A review of attorney tasks suggests 70% could be done with AI. This could mean more shops switch to flat fees. It could mean they increase their hourly rates. But if you're not even in the AI game, you may soon find yourself among the dinosaurs.Worried that AI will steal from your billing? Wisetime does the opposite—it tracks what you do so that you bill more time, not less. It's a chatbot on steroids.Clio Duo is another “gateway drug” to AI, giving attorneys and staff an AI assistant to fetch details from the Clio matters.We also discuss the new Doxing Victims Recourse Act, Civil Code section 1708.89, which creates a cause of action for online doxing—publishing a person's personal identifying information (including a photo) with the intent of causing harm to that person. Another dicey intersection between harassment and Free Speech.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Wisetime for Clio.Clio Duo.The Battle for Your Brain, the book by Duke Prof. Nita Farahany who spoke at Clio Con about neuro technology.Videos from this episode will be posted at Tim Kowal's YouTube channel.

In a (non)definitive survey of writing instruments, big-law attorney turned solo employer counsel Michelle Strowhiro reveals her pick for the best pen for lawyers.Then we turn to the U.S. District Court of Texas ruling in Ryan LLC v. FTC, blocking an FTC rule that would ban non-competes. This rule would eliminate trade restraints already banned in California. What comes next?Michelle Strowhiro's biography, LinkedIn profile, and Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal's YouTube channel.

The Supreme Court of California isn't always interested in money disputes, but throw attorney misconduct into the mix and you get the City of LA v. Pricewaterhousecoopers reinstating a sanction for “egregious” city attorney's office collusion totaling $2.5 million.Angling for contractual attorneys' fees in your defense? The recent Am. Bldg. Innovation v. Balfour Beatty Constr. case reminds attorneys to consider whether asserting the contract in an affirmative defense is enough, or if you need to file a cross-complaint.We also discuss:Family law contingency agreements are invalid.Was the directed verdict for the NFL appropriate in the $14 billion antitrust case? The judge ruled that the plaintiffs' expert opinion should have been excluded. But isn't the remedy pretty clearly a new trial rather than JMOL?Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:City of Los Angeles v. Pricewaterhousecoopers, LLP, Case No. S277211 (Cal. Supreme Ct. Aug. 22, 2024) (published). Previously discussed in “PMQ Declarations, Extortion & AI Judges”, and **$2.5M Discovery Sanction Reversed Because Not Authorized by a Specific Statute, But Justice Grimes Pens a Strong Dissent.****Prevailing on a Contract Affirmative Defense Gives Rise to Civ. Code § 1717 Fees** Am. Bldg. Innovation v. Balfour Beatty Constr. (D4d3 Sep. 3, 2024) No. G062471 [pub. opn.]Wright v. Wright, Case No. B330901 (2d Dist., Div. 1 Aug. 23, 2024) (unpublished) via CalAttorneysFees.comJudge Philip S. Gutierrez entered judgment as a matter of law for the NFLReductio ad arbitrium absurdum: Disney wants to kick a wrongful death lawsuit in Florida to arbitration.Videos from this episode will be posted at Tim Kowal's YouTube channel.

Los Angeles Superior Court will now offer electronic recordings where a court reporter is not available. But not all courts have the equipment. And even if they do, by statute these recordings may not be used to create an appellate record. So what does it mean?Also, the Supreme Court in Meinhardt v. City of Sunnyvale has confirmed that orders granting writs of mandamus are not appealable—you have to wait for the judgment.So how did the Court of Appeal in **Wastexperts, Inc. v. Arakelian Enters.** reverse a pre-judgment anti-SLAPP order while leaving the judgment intact?Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:the murder conviction against Adnan Syed, discussed on the podcast *Serial,* reinstating Syed's conviction for the murder of Hae Min Lee.LASC 9/5 General OrderBen Shatz's blog write up of the LASC electronic recording orderMeinhardt v. City of Sunnyvale**Are Anti-SLAPP orders “judgments”?. Wastexperts, Inc. v. Arakelian Enters.** (D2d4 Jul. 11, 2024 No. B325299) [pub. opn.]Videos from this episode will be posted at Tim Kowal's YouTube channel.

After discussing SCOTUS voting blocs and public perception, in part two of our discussion Adam Feldman rounds up the 2023-2024 term. We cover:SEC v. Jarkesy, holding that 7th Amendment procedural rights apply in agency proceedings, and whether Adam is surprised at the voting alignment (conservatives pro, liberals con).Loper Bright v. Raimondo, overruling Chevron, and what to make of the liberal bloc joining the government in both these administrative state cases.CFPB v. Comm. Fin. Svcs Assn, holding that CFPB funding fits with history and tradition, and whether Adam was surprised that Justice Thomas broke with the conservative group to join.Trump v. Anderson, holding the 14th Amendment did not disqualify Trump from the ballot, and whether Adam was surprised it was 9-0.Fischer v. U.S., holding 18 USC 1512 (prohibiting congressional obstruction) does not apply to Jan. 6, and whether Adam was surprised that Justice Jackson joined, and Justice Barrett dissented.Rahimi, holding the text, history, and tradition test supports civil restraining order disarmament, and whether Adam was surprised the court even took this case, and surprised that the court only issued GVRs on companion cases, despite there being so many Rahimi concurrences. (Akhil Amar, renowned constitutional scholar and an originalist of a liberal variety, has an interesting take on Rahimi at his podcast here.)Adam Feldman biography, LinkedIn profile, and Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Empirical SCOTUS, https://empiricalscotus.com/Videos from this episode will be posted at Tim Kowal's YouTube channel.Legal Data Analytics | Optimized Legal Solutions (feldyfied.wixsite.com)

Adam Feldman watches Supreme Court trends: voting blocs both usual and unusual, numbers of concurring and dissenting opinions, and other analytical ways of predicting outcomes. In our discussion, we cover:Recent polls disapprove of how the Supreme Court “is handling its job.” What does “handling its job” mean? Does it mean outcomes, or the decision-making process? And how does Adam rate how the Supreme Court is handling its job?Is this a 6-3 court? Or a 3-3-3 court?Is it fair to group justices along lines of “institutionalist” and “non-institutionalist,” as some experts have done?We then tee things up to do a round up of the 2023-2024 term.Adam Feldman biography, LinkedIn profile, and Twitter feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Empirical SCOTUS, https://empiricalscotus.com/Videos from this episode will be posted at Tim Kowal's YouTube channel.Legal Data Analytics | Optimized Legal Solutions (feldyfied.wixsite.com)

While the Supreme Court wrapped up its term, the Ninth Circuit had some interesting cases of its own. Carjacking is “nonviolent,” for-profit prisons are constitutional, and Covid vaccine religious exemptions are on the table. Practitioners might also look forward to focus letters and earlier panel notifications. All this and other recent cases and news.Carjacking is nonviolent? Gutierrez v. GarlandPrivate prisons are not unconstitutional: Nielsen v. ThornellReligious exemption to Covid vaccine mandate may proceed: split panel in Bacon v. WoodwardArb costs denial reversed: Sanzone v. DCH Korean Imports, LLCNo meet and confer, get sanctioned. *Gordon v. Chandler (Estate of Ambrose-Gordon)*A minute order is not a statement of decision. O'Neill v. CaraJudge VanDyke's “disgrantle”, U.S. v. Duarte aka ShortyAssembly Member Garcia has proposed a bill to allow for the disqualification of appellate justices:AB-2125 Judicial officers: disqualificationIn a recent column, Justice Bedsworth states he is Trying to Retire, AgainAppellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Read the full article here: https://bit.ly/3yCDzeA

A ransomware attack hit the Los Angeles County Superior Court in July 2024, affecting e-filing services. Did you miss a filing deadline because of this? We discuss two Rules of Court that could help.We also cover:Are anti-SLAPP orders “judgments”?Court of Appeal to litigants: Your adverbs are unwelcome here. Ok to say “The order is erroneous.” But not “The order is transparently erroneous.”Appeal might be actually late, but constructively on time.Two anti-tax initiatives struck down: one too broad, the other too narrow.On HOA Christmas party ban, a split 9th Cir. panel with three opinions.If you are “seriously annoying” you can get hit with a restraining order, but not for being regular annoying.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Lawyer Toolkit: Untimely Appeals May Be Excused If There Was a Mishap with E-Filing, discussing Garg v. Garg (2022) 82 Cal.App.5th 1036, 1041–1042Are Anti-SLAPP orders “judgments”? Wastexperts, Inc. v. Arakelian Enters. (D2d4 Jul. 11, 2024 No. B325299) [pub. opn.] (Tim's writeup)Late appeal deemed constructively filed on time, In re Santos (D5 Jun. 6, 2024 No. F087859) [nonpub. opn.] (Tim's writeup)Keeton v. Tesla, Inc.: arb-killer late-fee penalty NOT preempted by FAALegislature v. Weber: Tax initiative held invalid because too broadLoeber v. Lakeside Joint School District* Tax initiative held invalid because too narrowRead the full article at the

Previously in part one, criminal-defense attorney Don Hammond explained why, post-Bruen, states may no longer impose discretionary constraints in concealed-carry permitting regimes. But will that change after the Supreme Court's recent 8-1 decision in Rahimi, holding that a restraining order prohibiting a particularly violent actor from possessing firearms was consistent with the Second Amendment tests under Heller and Bruen? **Rahimi, when attempting to comport it with Heller and Bruen, **gets a bit confusing—so what are lower courts to do with it? But one thing Rahimi did emphasize is the actual violence Rahimi committed—so would California's authorization of disarming restraining orders merely to protect “mental calm” pass muster? Then we circle back and ask: if the Legislature amended the CCW laws to make nondisclosure a ground for denying a CCW, would that pass muster under Rahimi?The answer seemed easy a few weeks ago, but is suddenly a bit more difficult.Don Hammond's biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Don Hammond, Bad facts make bad law: Rahimi, Daily Journal, Jun. 27, 2024New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022)United States v. Rahimi, No. 22-915 (Jun. 21, 2024)E.g., Parris J. v. Christopher U., 96 Cal.App.5th 108, 116 (Cal. Ct. App. 2023)Tim's article, SCOTUS approves disarmament on restraining orders for “physical safety” but suggests limitsVideos from this episode will be posted at Tim Kowal's YouTube channel.

Justice Anita Earls of the North Carolina Supreme Court knows about some reforms that will improve our justice system. But she also knows about some that will provoke an unhappy response—including an investigation against her personally.In this second half of our interview, Justice Earls talks about how she found herself under investigation for calling for judicial reform.We previously asked Aliza Shatzman why the Legal Accountability Project is necessary: don't judges police their own, we asked? The answer is: yes, but not in the way you'd hope.Anita Earls' wiki, LinkedIn profile, and Twitter/X feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:https://www.fd.org/news/lone-black-nc-supreme-court-justice-drops-suit-over-diversity-comments-probe-droppedhttps://apnews.com/article/north-carolina-justice-ethics-drops-lawsuit-24763cfa64aca0fc58e559ca4ffe5cf9https://www.nytimes.com/2023/08/31/us/north-carolina-supreme-court-anita-earls-bias.htmlhttps://news.un.org/en/story/2024/02/1146202https://apnews.com/article/north-carolina-supreme-court-justice-ethics-panel-b9ce0a7b9e5ab2c7dcbed02d6c74faedAdditionally, an interview she conducted with State Court Report and NYU Law Review: https://statecourtreport.org/our-work/analysis-opinion/conversation-justice-anita-earls-north-carolina-supreme-courtEpisode 39 with Aliza Shatzman on the Legal Accountability Project.Videos from this episode will be posted at Tim Kowal's YouTube channel.

Just because you're law-abiding doesn't mean you won't need a criminal-defense attorney. There are more criminal laws in federal and California state law books than you could read in a decade. (I asked ChatGPT: if you printed them all out, they would be taller than the 24-story AT&T building in San Diego.)Enter Criminal Defense Hero Don Hammond. In addition to his services on behalf of good people who made mistakes or find themselves abused by the system, Don is an expert in firearms training and licensing. In this first part of our discussion, we talk with Don about the brand new—and procedurally unique—post-Bruen concealed-carry permitting regime, which replaces the near-completely discretionary system with a “shall issue” procedure. In a recent writ of mandamus, the Superior Court ruled that merely failing to disclose a long-expired restraining order is not grounds to deny a CCW permit, because that is not one of the statutorily-enumerated grounds for denying a CCW.Stay tuned for the second part where Don talks about the Supreme Court's 8-1 decision in Rahimi, holding that a restraining order prohibiting a particularly violent actor from possessing firearms was consistent with the Second Amendment tests under Heller and Bruen. Rahimi, when attempting to comport it with Heller and Bruen, **gets a bit confusing—so what are lower courts to do with it? But one thing Rahimi did emphasize is the actual violence Rahimi committed—so would California's authorization of disarming restraining orders merely to protect “mental calm” pass muster? Then we circle back and ask: if the Legislature amended the CCW laws to make nondisclosure a ground for denying a CCW, would that pass muster under Rahimi?Don Hammond's biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Don Hammond, Bad facts make bad law: Rahimi, Daily Journal, Jun. 27, 2024New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1 (2022)United States v. Rahimi, No. 22-915 (Jun. 21, 2024)E.g., Parris J. v. Christopher U., 96 Cal.App.5th 108, 116 (Cal. Ct. App. 2023)Tim's article, SCOTUS approves disarmament on restraining orders for “physical safety” but suggests limitsVideos from this episode will be posted at Tim Kowal's YouTube channel.

Justice Anita Earls of the North Carolina Supreme Court knows about some reforms that will improve our justice system. But she also knows about some that will provoke an unhappy response—including an investigation against her personally.In this first part of our interview, we discuss Justice Earls' path from a 30-year civil rights attorney to supreme court justice, and many data- and experience-driven reforms that aim to alleviate prison loads, criminal dockets, and get juveniles reformed rather than mired in the penal system. We also discuss some positive civil-rights trajectories over her career (such as increased scrutiny of abusive police practices), and not-so-positive trajectories (such as qualified immunity, as ever, a parade of absurdities).This will set us up to discuss how Justice Earls found herself under investigation for calling for judicial reform, which we'll cover in part two.Anita Earls' wiki, LinkedIn profile, and Twitter/X feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:https://www.fd.org/news/lone-black-nc-supreme-court-justice-drops-suit-over-diversity-comments-probe-droppedhttps://apnews.com/article/north-carolina-justice-ethics-drops-lawsuit-24763cfa64aca0fc58e559ca4ffe5cf9https://www.nytimes.com/2023/08/31/us/north-carolina-supreme-court-anita-earls-bias.htmlhttps://news.un.org/en/story/2024/02/1146202https://apnews.com/article/north-carolina-supreme-court-justice-ethics-panel-b9ce0a7b9e5ab2c7dcbed02d6c74faedAdditionally, an interview she conducted with State Court Report and NYU Law Review: https://statecourtreport.org/our-work/analysis-opinion/conversation-justice-anita-earls-north-carolina-supreme-courtVideos from this episode will be posted at Tim Kowal's YouTube channel.

We have a few big cases to cover:The Supreme Court, 9-0, guaranteed continued access to abortion pills.A 9th Circuit split panel, meanwhile, allows a challenge to a Covid-19 vaccine mandate to proceed, challenging Buck v. Bell forced sterilization-era public health precedent.And a get-out-of-arbitration-free card case get reversed on FAA grounds, holding the legislature may not insist that courts interpret arbitration contracts different from other kinds of contracts.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal's YouTube channel.**Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents Hernandez v. Sohnen Enters.** (D2d5 May 22, 2024 No. B323303) [cert. for pub.]**Courts cannot limit 170.6 challenges by local rule Lorch v. Superior Court** (D4d1 May 16, 2024 No. D083609) [pub. opn.]SCOTUS on Abortion Pill - Food & Drug Admin. v. All. for Hippocratic Med. (June 13, 2024, No. 23-235)

John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. In the previous episode we discussed why it was controversial. (Short version: because the Court of Appeal, sub silentio, thumbed its nose at the Supreme Court and concluded that a missing finding required by statute gives you a an automatic get-a-new-trial-free card.) In this second part of our discussion, we discuss analogous situations with the Racial Justice Act, and in the example of family law financial disclosures—where in a closely analogous situation the Court of Appeal held exactly the opposite of Abdelqader.John explains what attorneys are supposed to do with two conflicting authorities—with one of them being the Supreme Court. Hint: you have both arguments available to you, but as an attorney, unlike the Court of Appeal, when the Supreme Court has rejected your argument you have to say so.John Sylvester's biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:***Abdelqader v. Abraham***F.P. v. MonierMarriage of BurgerJeff and I recently discussed whether the Racial Justice Act is unconstitutional. (See Tim's writeup here.)Videos from this episode will be posted at Tim Kowal's YouTube channel.

John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. Why was it controversial? Because the Court of Appeal thumbed its nose at the Supreme Court, which had held in F.P. v. Monier that just because the trial judge forgets to make a required written finding you don't get an automatic get-a-new-trial-free card. Abdelqader held that, in custody matters, you do get an automatic get-a-new-trial-free card.In this first part of our discussion, John lays out the all-important statement of decision process, and the constitutional mandate that led the Supreme Court to hold that a defective statement of decision doesn't give you an automatic get-a-new-trial-free card.That sets up part two of our discussion in the next episode in which we discuss analogous situations with the Racial Justice Act, and in the example of family law financial disclosures—where in a closely analogous situation the Court of Appeal held exactly the opposite of Abdelqader. John explains what attorneys are supposed to do with two conflicting authorities—with one of them being the Supreme Court.John Sylvester's biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:***Abdelqader v. Abraham***F.P. v. MonierMarriage of BurgerJeff and I recently discussed whether the Racial Justice Act is unconstitutional. (See Tim's writeup here.)Videos from this episode will be posted at Tim Kowal's YouTube channel.

Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. In the continuation of our discussion in the last episode, Carl Mueller shares his top 10 tips to avoid them and win them. The tips include:See a “red flag”? Trust your gut, and run.Check your retainer agreements for compliance with Business and Professions Code sections 6146, 6147, and 6148. And fully describe your financial arrangement, including rate increases and trial deposits.Did you make important case disclosures to the client on a phone call? Put that in your billing statement. The client will be deemed to have acknowledged you made the disclosures.Before sending you the fee arb notice, be aware of the one-year malpractice statute of limitations!Carl I. S. Mueller's biography, LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal's YouTube channel.

Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. Carl Mueller litigates these billing disputes and explains what attorneys should know to avoid them and to win them:All the billing disputes are basically the same, so…Spot the “red flags.” (You know what they are.)If you do get into a dispute, know the 2021 Pech v. Morgan case—and get an expert. We discuss.Haven't brushed up on Business and Professions Code sections 6146, 6147, and 6148 in a while? Read them. Do them. An ounce of prevention is worth a pound of cure.In the next episode, we will cover Carl's top 10 tips for avoiding a fee dispute.Carl I. S. Mueller's biography, LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Pech v. Morgan (2021) 61 Cal.App.5th 841Videos from this episode will be posted at Tim Kowal's YouTube channel.

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

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.

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:

Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants.But don't commit a “super snap” removal. That's when you remove before the complaint is officially filed. The 9th Circuit just rejected those.We discuss Casola v. Dexcom, Inc., and how to learn about lawsuits before they are even filed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Casola v. Dexcom, Inc., No. 23-55403 (9th Cir. Apr. 10, 2024)Videos from this episode will be posted at Tim Kowal's YouTube channel.

Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if that happens, the Legislature has declared not only that this is against law, but operates as a get-a-new-trial-free card.But the California Constitution prohibits get-a-new-trial-free cards. Instead, no judgment may be reversed—even if the judgment is rife with error—unless the error results in a “miscarriage of justice.”Consider how these opinions might be reconciled:People v. Uriostegui (D2d6 Apr. 5, 2024 No. B325200) ___ Cal.App.5th ___ held violations of the Racial Justice Act are per se reversible.In People v. Simmons (2023) 96 Cal.App.5th 323, Justice Yegan argued in dissent that a attempting to bind the courts to a legislative definition of the constitutional term “miscarriage of justice” violates the doctrine of separation of powers.The Supreme Court in F.P. v. Monier (2017) 3 Cal.5th 1099 held that, although the Legislature mandates that trial courts make express findings on principal controverted issues, a court's failure to do so is not per se reversible because the Constitution first requires a finding that the failure worked a miscarriage of justice.In Abdelqader v. Abraham (Cal. Ct. App. Mar. 10, 2022 No. D078652) --- Cal.Rptr.3d ----, failure to make the statutorily-required findings under F.C. 3044 to support awarding custody to a person previously found to have committed domestic violence was per se reversible.In re Marriage of Steiner and Hosseini (2004) 117 Cal.App.4th 519 held that, although the Legislature purported to make inadequate disclosures in property-division cases per se reversible, the Legislature cannot provide “a ‘get-a-new-trial-free' card” in light of the constitutional requirement to show a miscarriage of justice.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Tim's writeup on Oriostegui, The Racial Justice Act Is Unconstitutional

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

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:

Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is very hard to do.We discuss his five observations about why a full-time appellate practice is hard:Breaking in to the practice is very hard.Don't expect to get full-time work writing appellate briefs—you're going to have to mix it up some in the trial court.Once you've done the very hard work modifying expectations and breaking into the practice, get ready: maintaining it full-time is even harder.Which is why you are going to have to make some trade-offs.The business of law was not designed with an appellate practice in mind, so doing high-end sophisticated appeals all the time is no one's idea of a sound business model.Raffi Melkonian's biography, LinkedIn profile, and Twitter/X feed.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Raffi's X thread, “5 ideas for law students and associates about appellate practice.”Videos from this episode will be posted at Tim Kowal's YouTube channel.

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration:$50k sanctions against appellant for blowing appellate procedure.Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal's hint, so writ issued. (But the trial judge was right to let the writ issue.)Anti-SLAPPs don't require a line-by-line list of allegations like regular strike motions. But there's a split on this.Do you need appellate specialization credits? Maybe not as many as you think if you use Lisa Perrochet's tip.We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Attorney who ignored appellate rules hit with $50k in sanctions in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.)Denying an untimely but meritorious motion for reconsideration was reversible error  Contreras v. Superior Court (Champion Dodge, LLC) (D2d5 Feb. 16, 2024 No. B331737) [nonpub. opn.]Splitting from SLAPP precedent, appellate court holds you don't have to do a line-by-line list of allegations challenged in an anti-SLAPP 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

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.

You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road, you have lower energy, weakened drive, and diminished alertness.If you won't do it for yourself, get healthy to crush your enemies better.Leslie Porter's biography and LinkedIn profile and email, leslie@leslieporter.com  Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Videos from this episode will be posted at Tim Kowal's YouTube channel.

Next time your opposing counsel takes issue with something you say, don't be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.”There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.) and Certified Bankruptcy Specialist Stella Havkin what they mean:If you arguably misstate fact or law, is that a reportable event? Answer: Assume it is.What will this do to collegiality in the profession? Answer: Nothing good.If a partner committed indiscretions with the trust account, does it matter that you didn't know about it? Answer: Don't count on it.Every other state already has a snitch rule. How much guidance do they provide on its application? Answer: Very little.Will the snitch rule drive in reports to prevent Girardi-type scandals? Answer: The Bar had received some 200 reports about Girardi, so it's unclear what more reports would have done.But the snitch rule is a good idea, right? Answer: Check back in after a few years.And something you probably didn't know: The reason California doesn't follow the ABA Model Rules is because they are rules of ethics, where California's Rules are rules of discipline. We discuss the difference in theory (interesting!) and the difference in application (not much, actually).Judge Meredith Jury's (Ret.) biography.Bankruptcy Specialist Stella Havkin's biography and LinkedIn profile.Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.Sign up for Not To Be Published, Tim Kowal's weekly legal update, or view his blog of recent cases.The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext's newest technology, CoCounsel, the world's first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.Other items discussed in the episode:Rules of Professional Conduct, rule 8.3, “Reporting Professional Misconduct”Ethics Spotlight: The New ‘Snitch Rules', California Lawyers Association, Nov. 2023.Videos from this episode will be posted at Tim Kowal's YouTube channel.