CJ Cantil-Sakauye talks with Tim Kowal and Jeff Lewis about what actually gets petitions for review granted. If the Supreme Court’s job is not to correct errors, then what is it?

• The justices look for issues that surface conflict, systemic mischief, or other need to weigh in to avoid broader problems.
• So how do you find those issues? Each justice has a mental list—sometimes those are visible in their concurrences and dissents.
• Other places to look: amicus briefs from government entities.

CJ Cantil-Sakauye also addresses why her Court viewed depublication as heavy-handed and preferred granting review to provide legal explanation

And why grant-and-transfer requires diplomatic restraint to avoid appearing to rebuke Court of Appeal colleagues.

We also discuss:

• Why rescue missions almost always fail
• Why Chief Justice Cantil-Sakauye's court limited depublication to the rarest circumstances and changed the rules to keep granted cases citable
• The mediation stumbling blocks she encounters when trial counsel defends the trial record instead of negotiating settlement
• How COVID permanently transformed access to justice through electronic filing and remote appearances
• The structural tension created by California's legislative control over civil procedure, unlike most states where supreme courts govern procedural rules

What’s the biggest factor you think makes the California Supreme Court take a case?

• How does Horvitz & Levy sustain a practice that produces hundreds of high-quality appellate briefs annually while maintaining a clear institutional philosophy on drafting, editing, and oral advocacy?
• Part of the answer: Jeremy explains the firm's two-person brief model: one lead lawyer reads the full record and does the primary drafting, while a supervising lawyer provides strategy and heavy editing.
• Another part of the answer: Avoid committee-style drafting, common at large firms. This often produces briefs that lack a coherent voice.
• Who argues the case? Jeremy shares the firm's strong preference that the lawyer who drafted the brief should argue the case—not a senior partner brought in for name recognition.
• How to prepare for oral argument? Jeremy shares how he prepares “modules” for each topic so he is ready for wherever the panel wants to go.
• Oral argument strategy: If the bench is cold and asks no questions, speak for two or three minutes and sit down.
• Jeremy also discusses the responsible use of AI in appellate practice, noting that he now uses it to generate oral argument questions and sharpen briefs, but warns that he has already handled two appeals involving AI-generated false citations filed by opposing counsel.
• How to prepare for an oral argument when you inherit someone else's brief.
• The responsible use of AI in editing briefs and the dangers of relying on it without verification.
• Why a federal anti-SLAPP statute has stalled despite bipartisan support.

How do you collaborate on appellate briefs and oral argument prep in your shop?

Justice Ming’s biggest pet peeve as a mediator: attorneys who won’t share their briefs.

Justice Ming also shares:

• What makes a good petition for review? Hint: think about Justice Broussard saying "if I get one more piece of paper, I'm going to scream."
• Why robust internal debate produces better opinions than rubber-stamping.
• How his experience trying construction arbitrations with expert panels—not lawyers—informs his view that California Supreme Court justices sometimes get arbitration law wrong.

Other highlights:

• The petition reality check—your first paragraph is your only shot: Kitchen-sink petitions go nowhere.
• Why your petition for review was denied: Lacking in merit? Maybe. But sometimes the Court wants the conflict to "percolate." Or it needs a better vehicle.
• And don’t overlook that a low-quality petition foreshadows the quality of your merits brief—which could depress chances of review.
• Federal certification beats petition denial odds: While the Court denies hundreds of petitions for review weekly, Justice Chin "cannot think of any" certified questions from federal courts that were denied during his tenure—making certification an underused path to California Supreme Court review that practitioners should consider more often.
• Justice Chin's senior partner returned his first brief "with blood all over it" and taught him to "take out all the excess words"—a lesson he carried through 450+ Supreme Court opinions.
• Unlike other branches of government, appellate courts must explain their reasoning in detail, but that doesn't mean 150-page opinions.

Listen to the episode to learn what former Supreme Court justices see that no one else can, why depublication tapered down as a lawmaking tool during his tenure, and how Sargon's expert gatekeeping role—authored by Justice Chin—threaded the needle between passive acceptance and becoming "a thirteenth juror."

What question would you ask Justice Chin or one of his colleagues?

Who else is using RealityCheck? Courts. So let RealityCheck find hallucinations for you before it does for the court.

Ross also talks about the exciting and perilous AI age. Will AI make lawyering less human? Only if, says Ross, you equate “human” with rescheduling meetings over email.

To the contrary, AI used right makes lawyering more human. Not less.

Key points:

• RealityCheck goes beyond hallucinations by catching misquoted language, misstated holdings, and subtle mischaracterizations of case law, as shown by testing on 1990s-era briefs.
• Courts are already using AI-powered tools for records, dockets, and analytics and are likely to adopt RealityCheck more openly within months, with many courts having contacted BriefCatch after Above The Law’s coverage.
• RealityCheck uses deterministic checks against court databases plus AI analysis of quotes and propositions, avoiding reliance on LLM-ingested content and consumer sources like Westlaw, Lexis, or FindLaw.
• BriefChat, trained only on Guberman’s curated materials and the WordRake acquisition (with 12 editing patents), powers BriefChat’s writing guidance and automated editing, with new context-aware tools in development to adapt to jurisdiction, style, judge, and court rules.
• Changing judicial reading habits (screens, short attention spans, footnote issues) and concerns over AI bias in binding adjudication mean specialized tools should aim to make lawyers more like themselves, not “Sherlocked,” while supporting uses like mediation and pre-filing verification.

Seen AI hallucinations or bad cites in your cases? Tell us what happened, or how you’re guarding against it.

Key points:

• Miranda warnings aren't in the Constitution—but they're constitutionally required anyway: The specific warnings don't appear in constitutional text; they're a prophylactic rule. Yet they're binding—even Congress can’t touch them.
• Dual citizenship was never authorized—it emerged by accident: No Congress ever passed a statute permitting dual citizenship. Great Britain and German have asserted jurisdiction via conscription of the children of their subjects—even though born in the U.S. This is context directly relevant to Trump v. Barbara arguments this week.
• "One phone call" is Hollywood fiction: California Penal Code § 851.5 grants at least three completed calls within three hours of booking, plus additional calls for custodial parents.
• Circumstantial evidence carries the same weight as direct evidence: DNA and fingerprints are circumstantial; CALCRIM 223 instructs juries to treat both types equally.
• The Scopes Trial was staged, and the textbook taught eugenics: Think this was religious fundamentalism vs. science? Think again. The evolution text in question, George William Hunter's Civic Biology, ranked races hierarchically and endorsed selective breeding. William Jennings Bryan is regarded a buffoon, but his actual argument was more about local curriculum control than creationism.
• Buck v. Bell has never been overruled: Remember the monstrous 1927 opinion upholding compulsory sterilization? Still good law. Technically.

What legal tropes get irk you?

Paul Clement delivered what SCOTUSblog called "a master class in oral argument" in Trump v. Cook. Lat dissects what made it a master class—by listening for the bench's emotional temperature, pivoting through backup arguments without undercutting his primary position, and admitting to Justice Alito that his framing was "heads I win, tails you lose."

Key points:

• VanDyke's dissental as a direct call to the public? Lat describes the theory that VanDyke is practicing "postmodern jurisprudence," calling out what he views as liberal colleagues imposing policy preferences while cloaking them in legal doctrine.
• For California practitioners, ask yourself: are you appearing before a lightning-rod judge on your panel? Your case might become less about the merits and more about signaling beyond your case.
• The BigLaw executive orders worked—not through litigation, but through capitulation: Four firms fought Trump's security clearance revocations in court and won. But nine firms settled, committing to political non-discrimination and nearly $1 billion in administration-favored pro bono work.
• A Washington Post study confirms the chilling effect: large firms have dramatically curtailed challenges to Trump policies compared to the first administration. Smaller boutiques are picking up the slack, but they lack BigLaw's resources. Lat predicts the government will lose in the D.C. Circuit and SCOTUS won't take the case—but the damage is already done.
• Jack Smith's boutique launched with a Costco run for paper towels—and it's part of a broader trend: AI and co-counseling arrangements now enable small firms to handle discovery-heavy work previously requiring armies of associates. But success still depends on established reputations; fresh graduates need BigLaw's name recognition.
• Clement's oral argument techniques translate to any appellate court: Listen not just for questions but for the bench's emotional temperature—”the vibes.” Stay nimble with backup arguments framed as "We stand by X, but if you're not persuaded..." Keep it conversational and candid—breaking the fourth wall builds credibility.

In B.B. v. Capistrano Unified, the court held that elementary students have enforceable free speech rights under Tinker, vacating summary judgment after a first grader was disciplined for giving a classmate a pro-BLM drawing. 

Meanwhile, in Olympus Spa v. Armstrong, a divided panel upheld Washington's requirement that a women-only Korean spa admit pre-operative transgender women, prompting Judge VanDyke to open his dissent with "This is a case about swinging dicks," drawing a rebuke from 28 judges and igniting a firestorm over judicial rhetoric, religious liberty, and whether civility in opinions masks ideological outcomes.

Key points:

• Olympus Spa + judicial rhetoric: VanDyke’s vulgar disentail drew a “barroom talk” rebuke; defenders say it was an alarm about what “civil” language hides. • Rule-of-law theme: Majority applied rational basis; dissents argued Tandon strict scrutiny and denominational discrimination under Catholic Charities.
• B.B. v. Capistrano: Ninth Circuit confirms elementary students have Tinker rights, with age as a factor, not a cutoff.
• Why it goes back: Disputed facts over intent, impact, and discipline (including recess) made summary judgment improper.
• AI hallucination fallout: Campos/Munoz sanctions an attorney for fake citations; Westlaw’s blue-link formatting can still mislead.

Tune in to hear why these cases expose judicial composition, not doctrine, as the real variable, and why the fight over whether a judge can write "swinging dicks" may matter more than the legal tests themselves.

And on the fee award front, big firms don’t automatically get a lodestar boost.

Plus, a debrief from oral argument in the Scientology AI sanctions case—where the court said nothing about the sanctions at all.

• The shadow docket is now a routine appellate strategy: Mirabelli v. Bonta saw the U.S. Supreme Court reverse a Ninth Circuit stay on an emergency application, reinstating an injunction protecting parental notification rights on substantive due process grounds—despite the majority's stated skepticism of such claims post-Dobbs. Justice Kagan's dissent warned that the Court is bypassing the normal appellate process and deciding cases before en banc review, signaling a procedural shift practitioners are already exploiting.
• AI cover-ups carry career-ending stakes: In Kjoller v. Superior Court, the California Supreme Court ordered a referee investigation after a prosecutor fabricated eight case citations, then called it "scrivener's error." The lesson is blunt—own the mistake immediately, or face bar referrals and public sanctions modeled on U.S. v. Hayes, where notice went to every judge in the district and every state bar where the attorney held a license.
• Firm size doesn't cap your fees: In LA International Corp. v. Prestige Brands, the Ninth Circuit vacated a fee award that discounted rates for a four-lawyer firm, holding that "brilliance at the bar is not measured by the number of associates a lawyer commands." Skill, experience, and reputation control the lodestar—not letterhead.
• Oral argument silence in the Scientology AI case: Despite an Order to Show Cause for sanctions over AI-generated citations, the Second District panel never raised the issue during argument, focusing only on anti-SLAPP merits while the sanctioned attorney sat in the gallery with separate counsel at the podium.
• Legislative response is coming: A California Senate bill imposing heightened duties of care for AI use by attorneys is advancing with no opposition, suggesting statutory guardrails are imminent.

Paradox 1: You must disclose a bankruptcy stay to the Court of Appeal. What about a bankruptcy that does not create a stay?

Answer: Yes, the disclose-bk-stay rule also means disclose a bk non-stay.

Paradox 2: Deadbeat dad owes $500k. He settles and agrees to pay $250k. How much does he owe?

Answer: Still $500k.

Paradox 3: District court 1 rules AI work product is protected because, among other things, no court has ruled otherwise.

District court 2 then rules otherwise.

Key points:

• Local rules mean what they say: The First District's Local Rule 21 requires "prompt" notice of any bankruptcy that could cause a stay—not just bankruptcies you've confirmed do trigger one. Counsel must explain whether the stay applies, not decide unilaterally that it doesn't and stay silent.
• No stay for debtor-initiated lawsuits: The automatic bankruptcy stay under 11 U.S.C. § 362(a)(1) does not apply to actions brought by the debtor itself. Debtors need to marshal assets through litigation; they don't need protection from their own lawsuits.
• Counsel pled ignorance of Local Rule 21 and reliance on "faulty advice" from bankruptcy counsel—neither excuse worked.
• Courts view violations of notice requirements as a waste of limited judicial time, particularly when discovery occurs days before oral argument.
• Even without sanctions, the published admonishment serves as a lasting professional rebuke.
• The broader ethical duty: appellate lawyers must notify courts of any occurrence that could cause the court to lose or question its jurisdiction.

Shipley walks Tim and Jeff through his proposed "mini-en banc" transfer mechanism — a way for the California Supreme Court to empower a designated Court of Appeal panel to issue statewide-binding precedent on conflicting issues without consuming the Supreme Court's own docket. No constitutional amendment required. The fix is already structurally available. The question is whether anyone has the will to use it.

Key points:

• The "lonesome judge" problem is worse than it sounds: Under Auto Equity, trial judges caught between conflicting Court of Appeal decisions must predict which rule the California Supreme Court would adopt—effectively playing temporary Supreme Court justice on procedural disputes that may never get high court attention. The result: uncertainty, inconsistent rulings, and frustrated trial judges who just want clear precedent to follow.
• The anti-SLAPP mixed-cause-of-action split took over a decade to resolve: Before Baral, California Courts of Appeal were hopelessly divided on whether a defendant could bring an anti-SLAPP motion targeting individual claims within a mixed cause of action. The split persisted for years.
• Forum shopping is a risk—but more at the trial court level: There is a theoretical opportunity to forum-shop between appellate districts, but if shopping actually happens, it’s probably more at the “lonesome trial judge” level.
• Shipley's fix: a "mini-en banc" transfer procedure: The California Supreme Court would transfer cases back to a designated Court of Appeal panel with authority to disapprove prior conflicting decisions and issue a statewide-binding opinion. The decision would remain subject to Supreme Court review, but would resolve persistent splits on procedural issues without consuming Supreme Court resources.
• Constitutional constraints make true en banc review impossible: California's Constitution requires three-justice panels—no more, no less.
• Implementation doesn't require constitutional amendment: The Supreme Court could adopt this procedure unilaterally as a matter of prudence, though a Judicial Council rule would provide helpful procedural uniformity.

Listen now to understand a concrete reform proposal that could bring much-needed certainty to California's appellate system—and learn how you can support it.

Key points:

• The Witkin origin story: No California Supreme Court decision actually establishes the no-horizontal-stare-decisis rule. It developed through dicta, then appeared in Witkin's first edition—which courts then cited as authority.
• The federal contrast matters for forum strategy: In the Ninth Circuit, Miller v. Gammy binds all panels within the circuit to follow the first published decision on an issue. California trial courts, by contrast, face conflicting appellate authority and must guess which rule the Supreme Court would adopt under Auto Equity—a burden one trial judge called being "appointed to the Supreme Court for temporary purposes."
• Stare decisis isn't jurisdictional (probably).
• Unpublished opinions create tension.
• The pros: California's rule allows multiple perspectives on emerging issues and prevents the first Court of Appeal decision from locking in statewide law before the Supreme Court weighs in.
• The cons: The rule creates uncertainty, burdens trial courts, and leads to inadvertent inconsistencies on procedural issues too minor for Supreme Court attention—splits that can persist for years or even decades. (In anti-SLAPP law, it took 13 years before Baral v. Schnitt decided how to handle mixed causes of action.)
• Publication practices hide the problem: Many conflicts never surface because courts strategically leave decisions unpublished, masking the frequency of divergent reasoning and making the appellate landscape harder to navigate.

Listen to Part 1 now for the full discussion on how California got here and what it costs practitioners—then tune in to Part 2, where Shipley covers forum shopping, the anti-SLAPP mixed-causes-of-action case study, and his proposed reform: precedential transfer.

James draws on his role on the judicial branch AI Task Force and his monthly Daily Journal AI column to provide a practical roadmap for responsible AI use—from crafting effective prompts to avoiding the automation bias that has led to attorney sanctions across the country.

Key points:

• Treat AI as an on-demand legal treatise, not a research tool: Mixon explains how AI excels at providing background information and organizing legal concepts into digestible narratives—making it ideal for learning complex areas quickly—but should never replace verified legal research or case citation.
• The "Daedalus Doctrine" framework offers a middle path: Drawing from Greek mythology, Mixon warns against flying too high (reckless AI adoption) or too low (ignoring AI entirely), urging lawyers to use AI thoughtfully while maintaining personal judgment and verification responsibilities.
• Effective prompting is critical: Never use open-ended commands like "enhance this brief"—instead, tell AI exactly what you want and ask it to flag changes in italics or bold so you can review selectively.
• Hallucinations remain the biggest risk: Recent sanctions cases show attorneys asking ChatGPT to verify its own fabricated cases—a fatal error that demonstrates why every citation must be independently confirmed.
• Courts aren't using AI for decision-making: Current California court policy prohibits AI use "in any way that would touch a decision" to preserve public confidence over efficiency gains.
• AI works best for background learning: Mixon describes using AI to create narratives and explanations that make legal concepts stick—transforming dry doctrine into memorable stories, like having a personalized treatise writer available on demand.

Tune in to learn how to harness AI's power for legal background and organization without falling into the traps that have cost other attorneys their credibility—and thousands in sanctions.

James Mixon, Managing Attorney at California's Second District Court of Appeal, covers troubling topics on how lawyers should, and should not, use AI. In this second part of Tim and Jeff’s conversation, James discusses how we can detect and counteract bias baked into training data. And what happens when trial judges unknowingly sign orders containing fabricated cases?

Key points:

• Legal reasoning isn't “creative” work—it's problem-solving: When we use words to solve problems, it should not be considered “plagiarism.”
• Bias detection requires active testing: AI models trained on historical data replicate past discrimination, particularly in employment, housing, and finance cases. James suggests an interesting experiment to try in your next research prompt.
• Alternative dispute resolution raises new questions: California bill Umberg 643 bars using AI for arbitration decision-making, reflecting concern that people signing arbitration agreements assume human decision-makers. If contracts explicitly state "AI dispute resolution," that might be acceptable—but not if buried in fine print.
• When should you disclose your AI use? Depends on where the use falls on a spectrum of “organization” and “discretion/judgment.”
• Trial court orders present a growing risk: Judges should strip proposed orders down to essentials: parties, motion, ruling, hearing date.
• AI lacks "ethos"—for now: AI currently can't replicate the credibility and reputation that make people trust human experts. This may change as AI systems develop track records, but for now, judicial decision-making requires the human judgment that builds public confidence in courts.
• Looking backward creates civil rights risks: AI trained on historical data is inherently conservative. Some models predicted Brown v. Board of Education would be affirmed based on precedent—a stark reminder that purely probabilistic decision-making can't account for moral progress.

What AI uses do you find most attractive—and the most troubling?

Michelle also shares how she pivoted from in-person networking to social media marketing during the pandemic, built a practice around one-way fee-shifting statutes, and navigates the asymmetric litigation battlefield against billion-dollar manufacturers.

Highlights:

• Rodriguez v. FCA's impact on used-car protections: The Court limited manufacturer liability to certified pre-owned vehicles, leaving used-car buyers without recourse even when cars remain under manufacturer warranty.
• Why lemon law filings quintupled: Despite expectations that Rodriguez would reduce litigation, filings increased fivefold (2015-2023) due to declining vehicle quality, PI firm diversification, and political headwinds.
• New procedural requirements under AB 1755 and SB 26: Effective 2025, consumers must send pre-suit demand letters, wait 30 days, retain the vehicle, meet hard deadlines (one year after warranty expiration or six years from delivery), and navigate an "opt-in" system.
• One-way fee-shifting as equalizer: Song-Beverly allows consumers to bring claims without paying fees—manufacturers pay all costs if consumers prevail.
• Social media as practice-builder: Michelle built her practice through bilingual video content on Instagram, TikTok, and YouTube, generating clients and referrals without traditional marketing.
• Documentation mistakes: The biggest error is failing to keep itemized repair orders and contemporaneous complaints—gaps that become fatal under new requirements.

Tune in for insights on asymmetric consumer litigation, the intersection of statutory interpretation and real-world consequences, and how procedural reforms quietly reshape substantive rights.

Meanwhile, a CEQA plaintiff that won at the Court of Appeal—only to be reversed by emergency legislation and the Supreme Court—learned the hard way that "prevailing" on the law as written means nothing if the Legislature rewrites the rules mid-case.

Key points:

• Contempt requires literal violation in California, not just bad faith. But in federal court, violating the “spirit” of an order is contempt.
• Legislative abrogation torpedoed $1.2M in CEQA fees: Plaintiffs in Make UC a Good Neighbor v. Regents won significant CEQA victories establishing that crowd noise and alternative locations must be analyzed—then watched the Legislature pass emergency legislation abrogating both holdings. After the Supreme Court reversed, the Court of Appeal denied nearly $1.2 million in private attorney general fees, calling the prior opinion "smoldering ruins, not citable precedent." The court held plaintiffs weren't "successful parties" because they failed to halt the project, even though they vindicated principles under the law as it existed when filed.
• Ninth Circuit discovery ruling survives en banc review: The court declined to rehear the Trump administration's challenge to a discovery order requiring production of federal reorganization and layoff plans, rejecting executive privilege claims without requiring plaintiffs to show bad faith. Judge Bumatay's dissent warned of a "binding dicta trap" where the panel's comments on what qualifies as deliberative could become binding precedent.
• California Supreme Court limits Public Records Act obligations: Superior Courts can issue declaratory relief even after documents are produced if the dispute is likely to recur, but the Public Records Act does not impose a statutory duty to preserve documents a public agency identifies as exempt.

New statutes and court rules taking effect in 2026 and 2027 will change how California lawyers serve papers, preserve appellate issues, and disclose their use of artificial intelligence. Appellate attorneys Tim Kowal and Jeff Lewis focus on what actually matters in practice—what to fix now, and where the new traps are likely to appear.

The big changes:

• AI in the Courts: Rule of Court 10.430 requires courts to either ban AI use by judicial officers and research attorneys or adopt a formal AI policy with verification and disclosure requirements. Expect cautious policies, broad disclosures, and little tolerance for “the AI did it” excuses.
• One Deadline for Statements of Decision: AB 515 eliminates the short-trial/long-trial distinction. If you want a statement of decision, you must request it before submitting…and you should do it in writing.

Other changes worth noting:

• Photo Proof of Service: Starting January 2027, AB 747 requires process servers to document service attempts with photographs showing GPS coordinates and timestamps.
• Court Reporter Disclosure: AB 711 requires meet-and-confer declarations to disclose whether court reporter attendance was discussed and the outcome.
• Electronic Service Authorized: SB 85 allows courts to approve service by email or electronic means when traditional service fails.
• Expanded Mediation Authority: Courts may order mediation in cases up to $75,000 if at least one party requests it and no discovery disputes are pending.
• AI Disclosure in Bankruptcy Court: The Southern District of California Bankruptcy Court now requires disclosure of AI tools used and certification of independent accuracy review.

Listen now to understand what to change in your templates and where the next procedural missteps are waiting.

• $25K for using Anti-SLAPP as a litigation weapon. A bare-bones anti-SLAPP was amplified by record emails suggesting the strategy was to inflict cost and pain rather than win on the merits.
• $13K for relitigating the merits through a fee appeal. The appeal purported to challenge fees, but largely recycled arguments already rejected in the prior appeal. The court finds the effort both objectively meritless and subjectively aimed at rehashing settled ground.
• <$2K for fabricated authority & thin explanations. Schlichter v. Kennedy results in $1,750 against an attorney who relied on nonexistent or inapposite citations and offered credibility-challenged explanations about verification methods. After the court’s exhaustive point-by-point teardown, the monetary sanction seems merciful.
• Pro per’s sanction is dismissal of appeal. In Arno Kuglua v. Young Park, the Court of Appeal dismisses an appeal for failure to support arguments with proper authority.

Also: AI guidance from the courts**:** The California Courts of Appeal publish user-facing AI guidance emphasizing verification, independent source-checking, and personal accountability for filings—even if AI assists with drafting.

• Anti-SLAPP meets documentary defamation: OneTaste Inc. v. Netflix illustrates how courts evaluate actual malice when the plaintiff is treated as at least quasi-public, and how journalistic discretion can sink a claim even where the plaintiff says it provided contrary evidence before publication. Tim flags the built-in squeeze: if public-figure status and the controversy are intertwined, the plaintiff may need discovery to prove merit, but cannot get discovery without first showing merit.
• Standing without injury, by design, not accident: Kashanian v. National Enterprise Systems tees up a standing fight over technical FDCPA disclosure issues, think small-font compliance, with no alleged real-world harm. The takeaway is not subtle: in California, legislative authorization can do a lot of work, and no harm does not necessarily mean no case.
• When the statute creates the bounty, sanctions become the guardrail: The hosts debate whether CCP 128.5 and CCP 128.7 actually deter nuisance filings when the underlying enforcement scheme invites penalty-driven litigation. Is it appropriate—or wise—to use our courts as civil bounty enforcement, devoid of any harm requirement?
• Juror privacy is real, ask the team that wrote the $10,000 check: Don’t research prospective jurors on social media.
• Minute entry, real consequences: A timing skirmish over whether a minute entry can function as an appeal-triggering order ends, for now, with the U.S. Supreme Court declining review. Be conservative in calculating the time to appeal

• Blame game backfires: In Shayan v. Shakib, appellant’s counsel blamed non-attorney staff for adding the bad AI cites to the brief. The mistakes didn’t really change the arguments, and the court ordered counsel to file a corrected version. But the outcome is going to be the same, plus $7500 sanctions and a State Bar referral.
• Gatekeeping function: Courts emphasize that even when fabricated citations don't advance a party's position, they still threaten "the integrity of courts and the legal profession" by risking that fake law becomes cited as real precedent.
• We discuss updates in the Boies Schiller/Scientology case, and whether these recent cases predict the result.
• Voluntary dismissal dilemma: Tim’s firm filed an amicus brief in the Maniago case, arguing that voluntary dismissals with prejudice should be treated as appealable final judgments, challenging the rule that clerk-entered dismissals are merely "ministerial acts."
• Heated bench: A Texas redistricting case features an unusually scathing dissent beginning with "The main winners from Judge Brown's opinion are George Soros and Gavin Newsom," raising questions about appropriate judicial temperament.

• 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.

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.

Jeff 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.

• 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.

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.

Appellate 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.

• 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.

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.

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.

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.

• 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?

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.

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 criticism
• Alex Anteau 'Don't Be Dumb': Ga. Court of Appeals Sanction Gives Insight...
• Law360 The Funniest Moments of The Supreme Court's Term - Law360

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_Xk

• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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 Metzler
• Study on televising oral arguments and judicial legitimacy
• CALP 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.)

• 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

• 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.

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.

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 say
• http://socal-appellate.blogspot.com/2025/04/ai-for-appellate-motions-and-more.html
• https://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lmfmkodpks2z
• https://bsky.app/profile/roland.cros.by/post/3lmjyk7wejc2o

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 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

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 allocation
• Can an attorney sign as to only part of a pleading?
• Are articles of impeachment "attacks" on judicial independence?
• Appealability of SLAPP Fee Orders

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

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.

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?

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 617972
• Tos v. State (2021) 72 Cal.App.5th 184
• Kurwa v. Kislinger (2017) 4 Cal.5th 109 (writeup here)

❔ 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)

• 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 Court
• Disbarred in Federal Court, But Welcome in State Court?
• Frivolous anti-SLAP

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 survives
• Another late arbitration payment case, again holding the FAA preempts the CAA
• Hernandez 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)

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 Witnesses
• Audio recording in San Bernardino and Court Reporters
• Finn v. Girardi (2D5d. Jan. 28, 2025, No. B324878) (nonpub. opn.).
• In Re Grand Jury Subpoena (9th Cir., Jan. 28, 2025, No. 24-2506)

• 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 made
• Headnotes Jan. 24, 2025: one-sentence summaries of this week’s below-the-fold cases
• Incivility Fee Reduction of $340k!
• The Court of Appeal says that rational basis review applies to mentally disabled.

• 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 Service
• Late objections to RFAs do not invalidate otherwise substantive responses
• Headnotes: one-sentence summaries of this week’s below-the-fold cases

And what does it mean when the Court of Appeal decided an appeal based on what one attorney does—and the other attorney doesn’t do—at oral argument? We discuss *Pollock v. Kelso* where the court decides that the plaintiff is the previaling party according to a settlement….a settlement the court has never seen.

We also cover Blauser v. Dubin discussing what to do when the trial court does not issue a final appealable order.

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.youtube.com/watch?v=ynzTXuORJwM
• **Appellate court criticizes trial court practice of failing to enter final appealable orders Blauser v. Dubin** (4D3d Nov. 19, 2024 No. G063715).
• **No reporter’s transcript of attorneys’ fees hearing doomed this appeal Saydman v. Aegis Sec. Ins. Co.** (Cal. Ct. App. Dec. 20, 2024 No. G063209) (nonpub. opn.)

Now here’s the roundup of updates for 2025:

📅 MSJ Deadlines Are Updated: Remember 81-20-11. With the MSJ hearing as the target, motions must be filed beforehand 81 days, oppositions 20 days, and replies 11 days.

🥈 Making a 2nd attempt at an MSJ? You’ll need leave of court.

⌨️ The court reporter shortage is before the Supreme Court. Stay tuned.

Here’s the roundup of notable cases from 2024:

• Biden admin takes aim at judges issuing sweeping nationwide injunctions. (But Tim asks: then who will take aim at federal authorities exercising sweeping nationwide powers?)
• Will anti-SLAPPs still be a thing in the Ninth Circuit by the end of 2025? Stay tuned for updates from the en banc panel in Martinez v. ZoomInfo Techs.
• The appellate courts continued to crack down on attorney incivility, with the court vowing that offending attorneys “will be called out and immortalized in the California Appellate Reports.”

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.

1. Amendments to California's Motion for Summary Judgment Statute: 
   • Assembly Bill 2049 Text: Official legislative text detailing the changes effective January 1, 2025.
   • Client Alert: New Summary Judgment Law in California Effective January 1, 2025: An overview of the new law and its implications.
   • New Changes to California's Summary Judgment Process: What You Need to Know: Insights into how the amendments will affect litigation strategies.
2. Court Reporter Shortage and Audio Recording in Courtrooms: 
   • California Courts - Newsroom: Updates and news releases from the California judicial branch.

• Supreme Court Arguments on TikTok's Foreign Ownership and Nationwide Injunctions: 
  • SCOTUSblog: Comprehensive coverage of upcoming Supreme Court cases and arguments.
• Civility in Legal Practice: 
  • Masimo Corporation v. The Vanderpool Law Firm Case Summary: Details of the case addressing issues of civility and discovery sanctions.
  • The Uncivil War Raging Before the Cali

• 💯 Yes, the passing score was dropped—but don’t worry, the old one was picked out of a hat (basically).
• 🗯️“End the bar exam?! But that’s how it’s always been done!” Nope. Before that there were was the “diploma privilege” model, and before that the apprenticeship model.
• 🔍 What are other states doing? The mentorship model is in use in Oregon, Washington, and Nevada, and the diploma privilege model in Wisconsin.

Jackie Gardina 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:

• NCBE Study Aids Store: Offers various resources, including practice questions and study packs for the Multistate Bar Exam (MBE), Multistate Essay Exam (MEE), and Multistate Performance Test (MPT). Visit their store here: NCBE Study Aids Store
• NextGen Bar Exam Information: Provides details on the upcoming changes to the bar exam format, including sample questions and a timeline for implementation. Explore more here: NextGen Bar Exam
• You can find more information about the commission, its objectives, and updates on its activities on the State Bar of California’s website The State Bar of California

“To learn more about The Colleges of Law and the work being done visit collegesoflaw.edu/”

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.pdf
• Appointed Appellate Attorney Community: www.cadc.net

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.

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:
  1. The Continued Independence of the Judiciary [2024 NLC]
  2. Elon Musk's Terms of Service Changes

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. Smith
• Tim Kowal, A Day Without a Court Reporter
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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. Smith
• Tim Kowal, A Day Without a Court Reporter
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

• 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.

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.

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.com
• Judge Philip S. Gutierrez entered judgment as a matter of law for the NFL
• Reductio 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.

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 Order
• Ben Shatz’s blog write up of the LASC electronic recording order
• Meinhardt 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.

• 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)

• 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)

• Carjacking is nonviolent? Gutierrez v. Garland
• Private prisons are not unconstitutional: Nielsen v. Thornell
• Religious exemption to Covid vaccine mandate may proceed: split panel in Bacon v. Woodward
• Arb costs denial reversed: Sanzone v. DCH Korean Imports, LLC
• No meet and confer, get sanctioned. *Gordon v. Chandler (Estate of Ambrose-Gordon)*
• A minute order is not a statement of decision. O'Neill v. Cara
• Judge VanDyke’s “disgrantle”, U.S. v. Duarte aka Shorty
• Assembly Member Garcia has proposed a bill to allow for the disqualification of appellate justices:AB-2125 Judicial officers: disqualification
• In a recent column, Justice Bedsworth states he is Trying to Retire, Again

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:

• Read the full article here: https://bit.ly/3yCDzeA

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, 1041–1042
• Are 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 FAA
• Legislature v. Weber: Tax initiative held invalid because too broad
• Loeber v. Lakeside Joint School District* Tax initiative held invalid because too narrow

Read the full article here: https://bit.ly/4dsSvL4 

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, 2024
• New 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 limits
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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-dropped
• https://apnews.com/article/north-carolina-justice-ethics-drops-lawsuit-24763cfa64aca0fc58e559ca4ffe5cf9
• https://www.nytimes.com/2023/08/31/us/north-carolina-supreme-court-anita-earls-bias.html
• https://news.un.org/en/story/2024/02/1146202
• https://apnews.com/article/north-carolina-supreme-court-justice-ethics-panel-b9ce0a7b9e5ab2c7dcbed02d6c74faed
• Additionally, 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-court
• Episode 39 with Aliza Shatzman on the Legal Accountability Project.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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, 2024
• New 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 limits
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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-dropped
• https://apnews.com/article/north-carolina-justice-ethics-drops-lawsuit-24763cfa64aca0fc58e559ca4ffe5cf9
• https://www.nytimes.com/2023/08/31/us/north-carolina-supreme-court-anita-earls-bias.html
• https://news.un.org/en/story/2024/02/1146202
• https://apnews.com/article/north-carolina-supreme-court-justice-ethics-panel-b9ce0a7b9e5ab2c7dcbed02d6c74faed
• Additionally, 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-court
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

• 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 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. Monier
• Marriage of Burger
• Jeff 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.

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. Monier
• Marriage of Burger
• Jeff 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.

• 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.

• 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 841
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

😮 Biggest surprise: The Court of Appeal wants hyperlinked briefs. They want to be able to click on your record cites to confirm your fact statements. If you wondered how to get the partners at your firm to get you a Clearbrief subscription, tune in.

😡 Start your brief by identifying the judgment or order you’re challenging. This is a court of review, after all—so tell them up front what you want them to review.

📃 Read your Table of Contents. The justices do. So make it persuasive.

🥴 We also discuss the recent Masimo v. Vanderpool Law Firm case, as the Court of Appeal continues to make examples of uncivil lawyers.

The recurring theme is: build trust. Good cites, organization, and civility build trust. Bad cites, poor organization, and incivility can get you sanctioned.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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. 22-55286
• Why One School District Spent $1 Million Fighting a Special-Education Student - WSJ
• Episode 69, Special Education Law with Tim Adams
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

In the first of this two-part discussion, we set the table to discuss Irvine Unified School District v. Landers and Gagliano. For example, to understand why parents trying to help their dyslexic daughter needed to make a federal case out of it, you should know:

💵 The school district spent over $1.13 million on its attorneys (at hourly rates up to $1300!).

🥼 The hearings in these cases are often a “trial by experts.”

🙈 IEPs are a constitutional right, so school districts are not legally permitted to consider their costs—but obviously they do. So how does that work?

⚔️ Parents wrongfully denied an adequate IEP have no recourse but to get their children the resources they need—out of pocket—and then fight for reimbursement.

Tim Adams’ biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Irvine Unified School District v. Landers and Gagliano, No. 22-55286
• Why One School District Spent $1 Million Fighting a Special-Education Student - WSJ
• Episode 69, Special Education Law with Tim Adams
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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.

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

👉 Know your appealable issues—appeal now, or lose it forever!

👉 Request a statement of decision. Don’t need to, you say? Judge already gave a tentative opinion, you say? You really need to hear this advice.

👉 Get the standard of review right, and use this tip when challenging discretionary rulings.

👉 Brief like an appellate attorney: Put cites on everything. Put headers on everything.

👉 Make a record!

And five more!

One thing we didn’t cover: Making Family Code § 2122 set-aside motions. Definitely consider that in your case.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• Good example of the importance of the statement of decision: Abdelqader v. Abraham (Cal. Ct. App. Mar. 10, 2022 No. D078652) --- Cal.Rptr.3d ---- [F.C. 3044 presumption of unfitness triggered by prior DV finding may be rebutted only by written findings—lack of SOD required reversal]. 
  • Tim’s writeup on Abdelqader here. One of CALP’s top cases here.
  • But Abdelqader was not followed in Marriage of Burger.
  • Abdelqader was followed in Hutchins.
• Tim’s article on sanctions for appellate briefing defects: “Attorney who ignored appellate rules hit with $50k in sanctions”. Case is Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.).
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

• 📰Free Speech on Government Social Media: Lindke v. Freed (Mar. 15, 2024, No. 22-611), notable for being short and unanimous, holds that, when a public official talks about official business on a private social media page, it’s no longer a private social media page.
• ⚖️Jury waivers: If you waive, and the trial judge declines to set aside the waiver, it’s game over: any right to appeal is symbolic only.
• 🤷Also symbolic: the different between waiver and forfeiture. The difference, it is said, is that waiver is intentional. But the Court notes that waiver can also be unintentional. That pretty much obliterates any distinction between the terms, save for spelling.
• 👎The facts were based solely on filed documents, not testimony. So appellate review is de novo, right? Wrong. Appellate courts don’t defer to fact-finding because the trial court is better at it. They defer because it’s not the appellate court’s job description.
• ⛪A Church of Scientology case involving Leah Remini is poised for an anti-SLAPP appeal.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Lindke v. Freed (Mar. 15, 2024, No. 22-611)
• TriCoast Builders v. Fonnegra (Feb. 26, 2024 No. S273368)
• Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.].
• Remini v. Church of Scientology
• “Motion granted, Bimbo!” — the Candi Bimbo Doll case; Wood v. S.F. Cnty. Superior Court (D1d2 Mar. 14, 2024 No. A168463) [cert. for pub.]
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

We discuss his five observations about why a full-time appellate practice is hard:

1. Breaking in to the practice is very hard.
2. 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.
3. Once you’ve done the very hard work modifying expectations and breaking into the practice, get ready: maintaining it full-time is even harder.
4. Which is why you are going to have to make some trade-offs.
5. 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.

• $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

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 Project
• Legal Accountability Project — Post-Clerkship Survey
• Ep. 39 and ep. 98 w/ Aliza Shatzman
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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.

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.

We also talk with appellate legend Randy Erlewine. All California litigators owe him a debt for the “get out of jail free” card case of Carter v. Superior Court (1990) 218 Cal.App.3d 994, allowing a deposition to get documents if you missed the deadline to move to compel on written requests. We discuss developing a cutting-edge practice and building a firm to a vision.

Kyle O’Malley’s biography and LinkedIn profile.

Randy Erlewine’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• CLA’s Diversity, Equity, and Inclusion Committee
• Raines v. U.S. HealthWorks Med. Grp., No. S273630 (Cal. Aug. 21, 2023)
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

We also discuss that recent panel that departed from an earlier decision, ruling it was “clearly irreconcilable” with recent Supreme Court precedent, even if it arguably wasn’t.

And why was that homelessness case—which ultimately came down to a procedural question of waiver—published? Did Judge Bumatay, who authored the dissent, request publication? We indulge in some rank speculation.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Should Anti-SLAPP denials be appealable in federal court? The 9th Circuit will take another look. Panel decision in Martinez v. ZoomInfo Techs. (No. 22-35305 (9th Cir. Jan. 18, 2024)).
• Rep. Raskin’s anti-SLAPP bill
• Climate Change on Trial podcast
• Panel rejects 9th Cir. precedent by saying it was overruled—even though it wasn’t Munoz v. Superior Court of L. A. Cnty., No. 22-55941 (9th Cir. Jan. 9, 2024)
• In San Fran homelessness case in 9th Cir., two stark opinions about waiver Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024)
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published opinion came down hard against the school that includes in the separate statement all narrative and background facts.

Tim and Jeff discuss.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Videos from this episode will be posted at Tim Kowal’s YouTube channel.
• SB 662, to create electronic recordings of court proceedings, fails.
• In San Fran homelessness case in 9th Cir., two stark opinions about waiver Coal. On Homelessness v. City of San Francisco, No. 23-15087 (9th Cir. 2024)
• Beltran v. Hard Rock Hotel Licensing, Inc., No. G062736 (Cal. Ct. App. Dec. 5, 2023)
• Justice Baker is not a big fan of Costco Gylfie v. Costco Wholesale Corp. (D2d5 Dec. 27, 2023 No. B320694 [nonpub. opn.]

And some recent cases:

• The definitive answer whether orders on motion to enforce settlements are appealable is: Nobody has any friggin’ idea.
• And the answer on how to get review of orders on contempt attorneys' fees is pretty much the same.
• And after scouring cases for months, Tim finally found a reversal based on an evidentiary ruling…and it’s unpublished. And there’s a dissent. (And the dissent may be better reasoned than the majority.) So challenges to rulings on evidence are still losers.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Order granting motion to enforce settlement held not appealable, furthering a split of authority, House v. Skanska U.S. Civil W. Cal. Dist. (D4d2 Jan. 5, 2024 No. E079363) [nonpub. opn.]
• State wins a writ excusing it from disclosing whether its private research firm engaged in animal cruelty, Regents of the Univ. of Cal. v. Superior Court (D3 Dec. 29, 2023 No. C099588) [nonpub. opn.]
• Yes, you can use a motion in limine as a motion for summary judgment, Memula v. Mojave Radiation Oncology Med. Grp. (D4d2 Dec. 14, 2023 No. D082262) [nonpub. opn.].
• See other Items at the KowalLawGroup.com blog here: https://bit.ly/3SjrXnI
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

• 🔧 Look for common defects in the moving party’s separate statement
• 🤜 Push back on the moving party’s showing. It is often not up to snuff. Drive that point home before turning to the opposing party’s burden.
• ✒️ Elevate your writing—an MSJ is a trial on paper, but great trial skills often do not translate.

We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.”

Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

After talking about some great guests, we talk about some bad cases. Why don’t we talk about good cases? We discuss that, too.

We also talk about some of our takeaways from our interviews about other states’ appellate rules. We grumble about some of the rules in California, but we have some things to recommend to other states. But also some things we could learn.

Then we turn to some of the legal tech we can’t do without. Topping the list: ClearBrief (via Jackie Schafer), followed by CoCounsel.

Hope to have you along in 2024!

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• The Coming Changes to Med-Mal Caps, with Ben Ikuta
• Using ChatGPT responsibly, with Jayne Woods
• Should AI Replace Law Clerks? Yes, says Adam Unikowsky
• From BigLaw to Solo: Carl Cecere on the freedom to take significant cases
• Racking Up Appellate Argument Experience with Chris Schandevel
• Cory Webster’s 9th Circuit Dispatches 
• See other Items at the KowalLawGroup.com blog here: https://bit.ly/3viYwJr
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Here are the key issues to spot the next time a client calls you about a restraining order or injunction that affects free speech:

• Raise First Amendment challenges, and get familiar with the precedent by reading Prof. Volokh’s articles.
• Look to see if the restraining order merely prohibits speaking to the plaintiff, or goes further and prohibits speaking ABOUT the plaintiff. That’s a big difference that implicates the First Amendment.
• If the subject of a restraining order is facing contempt, consider raising the unconstitutionality of the order as a collateral bar. An unconstitutional order cannot be a basis for contempt, and unconstitutionality is never waived.

Prof. Eugene Volokh’s biography, LinkedIn profile, and X/Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• One-to-One Speech vs. One-to-Many Speech, Criminal Harassment Laws, and “Cyberstalking”, 107 Nw. U. L. Rev. 731 (2013)
• Overbroad Injunctions Against Speech (Especially in Libel and Harassment Cases), 45 Harv. J. L. & Pub. Pol. 147 (2022).
• Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)
• Chan v. Ellis, 296 Ga. 838 (Ga. 2015)
• "The First Amendment and Refusals to Deal” via Reason
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Glenn also shares:

• Appeals on contingency? Yes, it can work, in the right case.
• About that ABC test: yes, some workers would prefer to be contractors, but more would rather be employees.
• About the judicial bias for arbitration: the original purpose was for those oddball cases—think shipwrecks—where jurisdiction and venue were uncertain, not for every garden-variety lawsuit.

Glenn Danas’s biography, LinkedIn profile, and X (fka Twitter) feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Iskanian v. CLS Transp. Los Angeles, LLC
• Fuentes v. Empire Nissan, Inc. (Dave Ettinger’s write-up)
• LA Times on Beachbody class-action
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

• The “marketplace of ideas” is better than the government at separating truth from lies.
• Why every other state and Congress should just copy-and-paste California’s anti-SLAPP statute into their code books.
• Is there a free-speech right to ChatGPT, if there’s no human speaker? Yes—there is not just a right to make statements, but also to receive them.
• Jeff was surprised at the critical reaction to his thesis that there may be a right to lie. But thankfully the courts have mostly stood by the First Amendment’s robust protections, receiving an B+/A- grade from Prof. Kosseff.

Jeff Kosseff’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Jeff Kosseff’s book is Liar in a Crowded Theater.
• The California statute prohibiting doctors from expressing opinions contrary to official medical policy as concerning vaccines and perhaps other topics was enjoined by the district court in early 2023: https://www.reuters.com/business/healthcare-pharmaceuticals/california-law-aiming-curb-covid-misinformation-blocked-by-judge-2023-01-26/.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited as precedent.

We also discuss:

• Have a short trial? Volunteer to be timekeeper. Otherwise, your request for a statement of decision may be deemed untimely under the strict rules for trials under 8 hours.
• Suing for unfair business practices? Double check standing based on “injury in fact,” and consider the conflicting arguments in the majority and dissent in Lagrisola v. North American.
• Opposing counsel stepping over the line of “zealous advocacy”? Court of Appeal calls out counsel in a recent case, but no sanctions—perhaps because respondent did not file a motion?
• A strange example of a moot appeal leading to a summary REVERSAL.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• **Can a respondent forfeit issues by failing to brief them? A bizarre opinion says yes. Baltazar v. ACE Parking Mgmt. (D4d1 Oct. 26, 2023 No. D081483) [nonpub. opn.]
• **Failing to log the length of trial leads to appellate loss. Lewis v. Reptile Factory, LLC (D2d3 Oct. 12, 2023 No. B324197) [nonpub. opn.]
• Dissent would invalidate loan where lender is unlicensed. Lagrisola v. North American (D4d1 Nov. 3, 2023 No. D080758)
• **“Bulldozer” advocacy moves dirt but not minds. Tedesco v. White (D4d3 Oct. 27, 2023 No. G061197) [nonpub. opn.]
• **Where a moot appeal means summary REVERSAL. People v. Pickens (D2d7 Nov. 9, 2023 No. B320704) [nonpub. opn.]
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Enter Dan Huckabay from Court Surety Bond Agency. We sit down with Dan and ask him how we attorneys can be a hero for our clients by knowing a few key things about appellate bonds, such as:

• Plan ahead: Before judgment is entered, give the client time to set aside collateral for the bond.
• Manage expectations: Judgment interest in California is a hefty 10%, and the bond premium ranges from a quarter percent to 4%, with most premiums being about 1%.
• Consider a letter of credit: If the client has a strong relationship, the bank may issue a letter of credit—which avoids the need to tie up collateral.
• Was the judgment amended to add fees and costs? Instead of getting a new bond, consider a rider or a separate bond.
• Don’t wait! There’s no deadline to post a bond, but waiting can lead to assets getting seized or liened on.

Dan Huckabay’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Ep. 46: Time to Collect: Joseph Chora on the Most Important but Least Understood Area of Law
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

🖋️ “Defer editing” and “second-guessing” until a later draft. Don’t be committed to your first draft. Just get into a flow state—keep the cursor moving!

🧠 Your reader allots you a very limited attention span or “working memory.” Budget wisely by cutting “research dumps,” and by using direct, familiar language.

📗 Don’t cite every authority. “The quality of your citations matters more than their quantity.”

👨‍💻 Make tech support your writing. Use keyboard shortcuts. Use text expansion. Get efficient. What would you think of a tradesperson who doesn’t understand the tools of the trade?

What is Ryan’s stance on the “cleaned up” parenthetical? You will have to listen to find out!

Ryan McCarl’s bio, Elegant Legal Writing product page, Elegant Legal Writing blog, Twitter, and LinkedIn.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Purchase Elegant Legal Writing.
• Episode 24 with Ryan McCarl.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible.