Appellate Briefing

Appellate Briefing

Remember: Briefs Are Not Evidence

Last updated on September 18, 2024 by Tim Kowal

In motions for summary judgment, the separate statement is a very important document because the trial judge uses it as a roadmap to the evidence. But on appeal, the court uses a different roadmap to the evidence: your brief. And if your brief just cites to the separate statement—or worse, merely to the trial court...Read More >>

Top 10 Tips from Court of Appeal Research Attorneys

Last updated on May 14, 2024 by Tim Kowal

Appellate justices’ research attorneys are the ones advising the justices about your arguments and writing the opinions. We discuss 10 tips offered at a recent Orange County Bar Association event. Here is a taste: 😮 Biggest surprise: The Court of Appeal wants hyperlinked briefs. They want to be able to click on your record cites...Read More >>

CEB has my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals”

Last updated on April 10, 2024 by Tim Kowal

CEB DailyNews has published my article, “Defective Appellate Briefing in Two Cases Results in Dismissed Appeals.” The briefing faux pas in two recent cases garnered a lot of attention, especially Grant v. City of Long Beach (9th Cir. Mar. 22, 2024, no. 22-56121), where counsel should have known better—leading to a published decision. Appellant’s counsel...Read More >>

Defective appellate briefing in two cases results in dismissed appeals

Last updated on March 28, 2024 by Tim Kowal

Things are not going great when this is the first line of the court’s opinion in your appeal: “We have the inherent power to dismiss an appeal where it is "based upon wholly sham or frivolous grounds.”” The Second District in Schwartz v. Noya (D2d6 Mar. 20, 2024 No. B329331) [nonpub. opn.] was not happy...Read More >>

Found liable for deceiving students in 1.2 million(!) misstatements, university could not use appeal to call itself a “place of opportunity” for students

Last updated on March 18, 2024 by Tim Kowal

Ashford University, an admissions mill, was found to have made a pattern of misstatements in the admissions process—1.2 million of them—ranging from misstating that a degree would qualify graduates for teaching and helping careers, and downplaying financial aid and debt obligations. The university appealed the amount of the award, clocking in at over $22 million....Read More >>

Even when fact-finding is purely document-based, appellate court still defers to the trial judge

Last updated on March 14, 2024 by Tim Kowal

A summary judgment is reviewed de novo, so why not other purely law-and-motion dispositive rulings, like rulings on attorneys’ fees, or whether to compel arbitration? Well, the court explains in Jones v. Solgen Construction, LLC (D5 Feb. 26, 2024, No. F085918) [cert. for pub.]. The case involves a solar company’s attempt to compel an octogenarian...Read More >>

So You Think You Understand the Snitch Rule?

Last updated on February 13, 2024 by Tim Kowal

Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.” There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.)...Read More >>

CEB has my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct”

Last updated on January 26, 2024 by Tim Kowal

CEB DailyNews has published my article, “Restraining Order Against an Attorney Must Be Based on Multiple Instances of Non-Litigation Conduct.” This is about Hansen v. Volkov (D2d7 Sep. 18, 2023) No. B311524 (cert. for pub.), where an attorney got a restraining order against her opposing counsel in a family law case. But the Court of...Read More >>

Defense verdict reversed because admitting complaints against employee were prejudicial

Last updated on November 28, 2023 by Tim Kowal

One thing that someone complains about after every trial is that the other side offered prejudicial evidence that the judge should have excluded. It’s almost always a loser argument. But it carried the day in Argueta v. Worldwide Flight Servs. (D2d8 Nov. 8, 2023 No. B306910) [nonpub. opn.]. Dissenting, Justice Grimes still thought it was...Read More >>

Elegant Legal Writing, with author Ryan McCarl

Last updated on November 7, 2023 by Tim Kowal

Ryan McCarl, author of the latest book on legal writing, Elegant Legal Writing, sits down with us to discuss why now, more than ever, attorneys need to elevate beyond ChatGPT and distractions to rise to our role as teachers of the law. Ryan offers these actionable tips: 🖋️ “Defer editing” and “second-guessing” until a later...Read More >>

“Bulldozer” advocacy moves dirt but not minds

Last updated on November 6, 2023 by Tim Kowal

“A bulldozer can move piles of dirt from one place to another,” begins the opinion in Tedesco v. White (D4d3 Oct. 27, 2023 No. G061197) [nonpub. opn.]. “But when the goal is to move minds rather than dirt, employing a bulldozer may be counterproductive. The bulldozer in this case is [appellant’s] counsel.” The aggressive tactics...Read More >>

Can a respondent forfeit issues by failing to brief them? A bizarre opinion says yes

Last updated on November 1, 2023 by Tim Kowal

A bedrock rule of appellate practice is that an appellant who fails to brief an issue forfeits that issue. That rule applies to appellants. You know, the person challenging the judgment. It does not apply to the respondent—the person defending the judgment. Why? Because a bedrock principle of appellate review is that all intendments and...Read More >>

Restraining order against an attorney must be based on multiple instances of non-litigation conduct

Last updated on October 12, 2023 by Tim Kowal

A restraining order is available under Code of Civil Procedure section 527.6 if you have suffered harassment through a “knowing and willful course of conduct” resulting in harassment. And what type of people are more likely to cause a feeling of harassment more than lawyers? So attorney Jacquelynn Hansen got a restraining order against her...Read More >>

Exclusion of critical impeachment evidence held harmless error because the totality of evidence supported the judgment

Last updated on October 3, 2023 by Tim Kowal

At trial, you have a right to impeach an adverse witness’s testimony. The court denied that right in People v. Bingham (D1d5 Sep. 26, 2023) No. A163112 (nonpub. opn.). The court admitted the 911 call of Bingham’s girlfriend reporting that Bingham had beat her up with a lock, but excluded her subsequent statements recanting. That...Read More >>

Best Briefing Tips of 2022

Last updated on June 8, 2023 by Tim Kowal

After interviewing dozens of guests on the California Appellate Law Podcast, Jeff Lewis and I recapped some of the best briefing tips from 2022. In this clip we cover: Judges’ three key fears when deciding cases (via Ross Guberman) ️Kill your darlings—find the cleverest line in your brief, and delete it (via Ross Guberman) ️Litigation...Read More >>

Despite a lack of witnesses, letter held to be a will as a matter of law

Last updated on May 31, 2023 by Tim Kowal

A will must be signed by two witnesses. The decedent didn’t do that in Coronado v. Berger (D2d2 May 25, 2023 No. B321347) --- Cal.Rptr. 3d --- (2023 WL 3675787). But there is an exception if the petitioner proves, by clear and convincing evidence, that the decedent intended the document as a will. And here,...Read More >>

Defense not asserted in a pretrial order deemed forfeited in split 9th Cir. decision

Last updated on May 24, 2023 by Tim Kowal

In two surprise post-trial moves—likely driven by embedded appellate counsel—a plaintiff first lost her case, then won it back. The employee won her whistleblower claim after a jury trial in I vie v. Astrazenica Pharmaceuticals LP . No. 21-35978, 2023 WL 3563007 (9th Cir. May 19, 2023). But then Astrazenica moved for judgment as a matter...Read More >>

Telling judges what they “must” do only dares them to do the opposite

Last updated on May 4, 2023 by Tim Kowal

Consider these two alternatives for ending a brief: “This Court MUST reverse.” “This Court SHOULD reverse.” Stefan Love, who reviewed John Blumberg’s book Persuasion Tips for Trial Lawyers, explains why you should consider the latter choice. No one—judges included—like being told what they “must” do. But what if the authorities are clear that the result...Read More >>

Should AI Replace Law Clerks? Yes, says Adam Unikowsky

Last updated on April 25, 2023 by Tim Kowal

Adam Unikowsky, an appellate litigator with nine appearance in the U.S. Supreme Court, argues that judicial law clerks could be replaced by AI. We discuss: “AI will make judges release more accurate decisions more quickly. This is good.” Judges already rely on clerk summaries, so if AI produces better summaries faster, that is good. AI...Read More >>

When a case turns on credibility, and there is not an oral record, do not even think about appealing

Last updated on April 20, 2023 by Tim Kowal

After dissolving her marriage and entering a marital settlement agreement, Darya Khankin went through some old boxes and found over a million dollars in undisclosed funds she claimed were taken by her ex, Anatoly Dumov. So she moved to set aside the dissolution judgment, noting that under Family Code section 2103, failure to comply with...Read More >>

Top Tips for Respondents on Appeal to Get Your Judgment Affirmed

Last updated on March 28, 2023 by Tim Kowal

As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette. So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of...Read More >>

“You have permission to use the word ‘that’”: Lindsey Lawton on legal writing & Florida procedure comparisons

Last updated on March 21, 2023 by Tim Kowal

Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language...Read More >>

A mere procedural error is not a miscarriage of justice,

Last updated on March 17, 2023 by Tim Kowal

Sometimes even appellate justices are annoyed by the rules of appellate procedure. Apparently the entire panel would like to affirm this denial of a resentencing petition filed by Arreguin, convicted in 1993 for his part in the murder of Richard Schell. Arreguin served as the getaway driver and urged the gunman to “shoot ‘im, shoot...Read More >>

Legal-Writing Mentor John Nielsen Compares CA and UT Courts

Last updated on March 14, 2023 by Tim Kowal

Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing. Then we turn...Read More >>

There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness

Last updated on January 25, 2023 by Tim Kowal

A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no....Read More >>

The Best Advocacy Tips of 2022

Last updated on January 10, 2023 by Tim Kowal

In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022. Some of the tips and trends we cover: There is a trend toward informality in legal writing—but do pop-culture references go...Read More >>

Counsel Admonished for Uncivil Accusations in Appellate Briefs

Last updated on December 30, 2022 by Tim Kowal

Judges just don’t get your arguments sometimes, it seems, and that can be really frustrating. But don’t lose your cool. The Court of Appeal in Shah v. Fidelity Nat’l Title Ins. Co. (D1d1 Dec. 27, 2022) 2022 WL 17959563 (nonpub. opn.) admonished counsel for impugning the trial court and opposing counsel in the appellate briefs....Read More >>

SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed

Last updated on December 22, 2022 by Tim Kowal

CEB has published my article, “SLAPP Fee Award Held Not Appealable If SLAPP Order Itself Is Not Appealed.” The article is about a recent appellate opinion, Ibbetson v. Grant (D4d3 Nov. 30, 2022) No. G060473 (nonpub. opn.), that holds that an order on an anti-SLAPP fee motion is not appealable. But there are conflicting cases...Read More >>

How Can There Be “Yeoman’s Work” Without Any Yeomen?

Last updated on December 16, 2022 by Tim Kowal

Many years ago, I kept a blog that ran a short series called “A Plague on Words,” in which I criticized certain expressions I thought confusing or unhelpful. My entry on the expression “yeoman’s work” became a top Google search result, and earned me a lot of hate mail. But 12 years later, I pretty...Read More >>

Stipulated Briefing Extension Requests MUST Be Granted, Supreme Court Says

Last updated on December 14, 2022 by Tim Kowal

Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension. In Aaronoff v. Olson,...Read More >>

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

— Leviticus

"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 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

"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

"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

"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

"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

"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

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

— H.L. Mencken

"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.)

"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

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

"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

"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

"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

"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

"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

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

"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.)