Appellate Briefing

Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases. Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning...Read More >>

In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its...Read More >>

If an attorney files a frivolous pleading, one of the remedies that should come to mind is a motion for sanctions. But the operative statute requires giving opposing counsel a 21-day warning first, known as a safe harbor. How long is the 21-day safe harbor? There is now a published decision to tell us. The...Read More >>

If you have served a summons and complaint and the defendant has not answered, don’t get too excited. Attorneys have a duty—an ethical duty, and a statutory duty—to warn opposing counsel before requesting default. (LaSalle v. Vogel (2019) 36 Cal.App.5th 127, 137 (LaSalle).) But the plaintiff’s attorney in Shapell Socal Rental Properties, LLC v. Chico’s...Read More >>

Most findings in family court are left to the judge’s discretion. But not a custody order—at least, not once the judge has found that the parent has engaged in domestic violence. Even though the father’s only “domestic violence” was ringing up the mother’s employer, the court in Hutchins v. Hutchins (D4d1 Sept. 13, 2022 no....Read More >>

Legal writing and editing nerds, you may have opinions on this. Benjamin Shatz sounds off on whether the Blue Book or the Yellow Book is the superior form of legal citation. Ben’s answer: It’s a ridiculous question. There is no such thing as a “superior” citation format. Just an appropriate format: If you are in federal court,...Read More >>

Ever had an appeal dismissed? It hurts. But there may be a silver lining: the underlying judgment may no longer have any preclusive value. That’s what happened in the published opinion in Parkford Owners for a Better Community v. Windeshausen (D3 Jul. 14, 2022 No. C094419) 81 Cal.App.5th 216. In that case, a neighborhood group...Read More >>

I sometimes ask our podcast guests their favorite part of the appellate process…other than writing the briefs. Because we already know that every appellate attorney’s favorite thing is writing. So here I try my own explanation why writing is such a fun adventure: because it is a journey to another country. Reaching another person’s mind...Read More >>

“You have an informal writing style.” How do you take that? Compliment, or criticism? This is hard to answer, says legal writing pro Ross Guberman. There is a strong trend in favor of more direct and approachable legal writing—and in this sense, “informal” is a compliment. But there is also a trend among judges—and lawyers...Read More >>

If you write your brief in a straight line, legal writing pro Ross Guberman might give your brief high marks as being Flowing & Cohesive. But if you write like Tocqueville did—as “an act of discovery”—you may need these tips from Ross on how to make your brief more Flowing & Cohesive. Watch the clip here. This...Read More >>

If you have not seen a case citation with a parenthetical (”cleaned up”) yet, you will eventually. Writers use it when altering—ever so slightly—quotes from legal authorities. Legal writing pro Ross Guberman explains why some attorneys love it, and others hate it. Ross also addressed my view: that I trust judges to “clean up” quotations,...Read More >>

Do quips and “Twitter-ready” lines make for good legal writing? Legal writing pro Ross Guberman says the better approach is “quieter,” less conspicuous writing that “rises above the fray” by being clear, flowing, and concise. Watch the clip here. This is a clip from episode 33 of the California Appellate Law Podcast. The full episode is available...Read More >>

When a cadre of appellate nerds began the California Academy of Appellate Lawyers (and Eating and Drinking Association) 50 years ago, the state appellate system was not functioning well. Ben Shatz joins Jeff Lewis and Tim Kowal to talk about the founding of CAAL, where appellate jurists and practitioners could speak frankly about the problems...Read More >>

Drawing from his experience training federal judges and top law lawyers how to write more effectively, Ross Guberman shares some of his best writing tips with Jeff and Tim on episode 33 of the California Appellate Law Podcast at www.CALPodcast.com. Ross also gives a tour of his latest product, BriefCatch 3.0 (now available on Mac),...Read More >>

Attorney Ryan McCarl, author of Elegant Legal Writing, tells Jeff Lewis and me the top three things lawyers do wrong in their briefs: (1) Legalese (are you really still using legalese?) (2) Long sentences with no clear structure or emphasis (3) Failing to mind the “cognitive load” of your reader. Watch the clip here.  This is...Read More >>

“I’m not a prophet,” Judge Lawrence VanDyke wrote in his controversial concurring opinion in McDougall v. County of Ventura. Second Amendment attorney Sean Brady disagrees. Joining appellate attorneys Tim Kowal and Jeff Lewis, Sean says Judge VanDyke will be proven correct: the Ninth Circuit in the last several years has granted en banc review of...Read More >>

Legal academic-turned-practitioner Ryan McCarl has some writing tips for lawyers, including one you haven’t heard before: Add more white space to your briefs. And remove clutter generally. And this surprised co-hosts Jeff Lewis and Tim Kowal: those vertical lines on your pleading paper? Get rid of them. They’re unnecessary and they make the reader feel crowded. (Disclosure: I...Read More >>

Attorney and author Ryan McCarl joins Tim and Jeff to discuss his forthcoming book, Elegant Legal Writing, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page...Read More >>

Many attorneys are missing their best opportunity to persuade the appellate court. Appellant expert Myron Moskovitz talks with Tim Kowal and Jeff Lewis about the importance of the introduction in appellate briefs. The introduction should summarize your arguments and not belabor detail. And it should be a roadmap to the all-important statement of facts. Watch the clip here.  This is...Read More >>

In a terse opinion, the Court of Appeal recently rejected an appeal on the basis that, other than referencing the appealability of the judgment, “[n]o other legal citations appear in [the appellant’s] brief.” The Second District in Singman v. IMDb.com, Inc. (D2d8, Dec. 20, 2021, No. B307783) 2021 WL 5997923 (pub. opn.) The court noted...Read More >>

Appellate attorney Anne Grignon offers three brief-writing tips. First is former Justice Margaret Grignon’s advice about telling a clear story. Second, tell the court what rule it should adopt. Third, don’t be afraid to use pictures or visuals in your brief (if they are in the record). Watch the clip here.  This is a clip from...Read More >>

Judges have a lot of leeway to exclude evidence at trial. But in Brubaker v. Andy Strum (D2d7 Dec. 10, 2021) 2021 WL 5856791 (no. B307887) (nonpub. opn.), the exclusion was an abuse of discretion. The trial judge excluded the evidence supporting the appellant's motion for a renewed domestic violence restraining order because he thought...Read More >>

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a...Read More >>

Appellate attorney Anne Grignon joins Tim Kowal and Jeff Lewis to discuss her recent win in  Banc of California v. Superior Court from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorney then turn to private judging generally, discussing Justice Segal's recent caution about the industry's...Read More >>

You know about de novo review, and abuse of discretion, and substantial evidence. But have you heard of the "finding compelled as a matter of law" standard of review? Jeff Lewis and I discuss a recent case applying the standard with tenant-rights and appellate specialist Frances Campbell. Watch the clip here.  This clip is from the California...Read More >>

We discussed Marin Housing Authority v. Reilly on episode 14 of the California Appellate Law Podcast. Appellate attorney John Reeves joined us to discuss his amicus brief in the U.S. Supreme Court explaining why the California Supreme Court's 4-3 decision was incorrectly decided. The U.S. Solicitor General apparently agrees. Reilly involves the question whether a public housing authority, in calculating a...Read More >>

Frances Campbell  of Campbell & Farahani, LLP  joins Tim Kowal and Jeff Lewis for a discussion about housing law, eviction defense, appeals and practicing in limited jurisdiction courts. Fran shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite," and the font Cochin for brief writing. Appellate...Read More >>

Trial attorneys are familiar with the three common standards of appellate review: substantial evidence, abuse of discretion, and de novo. But what standard of review applies when an unsuccessful plaintiff appeals? When the plaintiff is arguing that the trial court should have found its evidence more persuasive, a fourth standard of review applies, something like...Read More >>

They can't be serious about that. That is what you probably think when you read rule 8.204(a) of the California Rules of Court. It sets forth a lot of pretty commonplace requirements for appellate briefs. It requires tables of contents and authorities, headings and subheadings, that kind of thing. It also says parties must "support...Read More >>

Appellate attorney John Reeves  joined TVA appellate attorney Tim Kowal and co-host Jeff Lewis to discuss incorporating amicus briefs into your appellate strategy. John discusses Marin Housing Authority v. Reilly, a California case pending possible review by the United States Supreme Court, and has already attracted the interest of amici. At issue is whether a...Read More >>