Appellate Tidbits: AI passed the bar exam, Cal. Supremes throwing shade, a strategy to protect arb awards, and new fed court stats

Tim Kowal April 14, 2023

Here are some recent news items of appellate interest:

It's official: AI has passed the Uniform Bar Exam. GPT-4, the upgraded AI program released earlier this week by Microsoft-backed OpenAI, scored in the 90th percentile of actual test takers. (Look for two new California Appellate Law Podcast episodes on ChatGPT and AI in the law.) (Via Appellate Advocacy Blog.)

The Cal. Supreme Court sometimes depublishes opinions it doesn’t like. It recently depublished People v. Velez (interpreting the U.S. Supreme Court’s Second Amendment decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. _ as making “clearly unconstitutional” part of California’s statutory scheme for issuing concealed-carry firearms) and People v. Calvary Chapel San Jose (an opinion reversing contempt orders imposed for a church’s noncompliance with state and county Covid regulations). David Ettinger posits the Supreme Court might be “indirectly criticizing U.S. Supreme Court decisions by throwing some shade.”

Just won an arbitration? Consider waiting a bit to file your petition to confirm the arbitration award. There might be a strategic advantage to eating up your opponent’s 100-day period to file a petition to vacate. But note that the viability of that strategy is currently on review in the state Supreme Court in Law Finance Group, LLC v. Key, reviewing this issue: Does equitable tolling apply to the 100-day deadline in Code of Civil Procedure section 1288.2 to serve and file a request to vacate an arbitration award in response to a petition to confirm the award? The court granted review in November 2021. (Via At the Lectern.)

The Federal Judiciary’s 2022 Annual Report and Statistics report that the 9th Circuit’s median time from appeal to opinion is 13.2 months. (Slowest: 1st Cir. at 14 months. Fastest: 8th Cir. at 4.6 months.) 9th Circuit civil appeal reversal rate: 15% (Via Ben Shatz’s SCAN.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"A judge is a law student who grades his own papers."

— H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

Appellate Tidbits: AI passed the bar exam, Cal. Supremes throwing shade, a strategy to protect arb awards, and new fed court stats

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"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"A judge is a law student who grades his own papers." — H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187