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Headnotes: Attorney (Dershowitz!) signs off on complaint as to only certain paragraph

Last updated on April 2, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: Can an attorney sign as to only part of a pleading? Alan Dershowitz signed a complaint. The complaint contained frivolous allegations. But wait! Dershowitz says he was only “of counsel” and was only...Read More >>

You can appeal discovery sanctions, but not a mere cost allocation

Last updated on April 1, 2025 by Tim Kowal
If you want to challenge a sanctions award over $5,000, you have to appeal now—if you wait, you lose. So when a discovery referee in Glickman v. Krolikowski (4D3d, Mar. 7, 2025, No. G064853) 2025 WL 732088 [pub. opn.] allocated most of the discovery costs to Krolikowski, he did the smart thing and appealed. After...Read More >>

CALP-March Cases & Tidbits: Judge Van Dyke’s video dissent

Last updated on March 26, 2025 by Tim Kowal
Judge VanDyke made a YouTube video to accompany his dissent in Duncan v. Bonta, the Second Amendment case in which a Ninth Circuit en banc panel upheld California’s ban on handgun magazines over 10 bullets. Judge VanDyke’s video shows him disassembling a gun, comparing accessories, and using a portion of oral argument to claim his...Read More >>

Did Trump Violate the Deportation Order?

Last updated on March 19, 2025 by Tim Kowal
A federal judge ordered the Trump administration not to deport five plaintiffs, alleged MS-13 and Tren de Aragua Venezuelan gang members. The administration complied, but then the judge verbally ordered the administration to turn around a plane and return 261 non-party alleged gang members. The administration didn’t do so, and appealed. Meanwhile, the President tweeted...Read More >>

Audio clips at trial & oral argument tips

Last updated on March 12, 2025 by Tim Kowal
Even if you technically can’t use an electronic recording to create the appellate record, trial courts do provide them for us in your closing argument PowerPoint. Jeff shares his experience. And after spending most of a morning watching oral arguments waiting for his case, Jeff offers these tips: The goal is to reduce "friction." If...Read More >>

A stipulated dismissal is appealable, but not a voluntary dismissal?

Last updated on March 6, 2025 by Tim Kowal
On demurrer, the plaintiff saw his main claim—though not the entire case—get gutted. So the plaintiff decided to dismiss the rest of his claims and appeal. After all, you can do that in this situation. But how you do it matters. A lot. The holding of Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30,...Read More >>

Beware using the Judicial Council form dismissal

Last updated on March 5, 2025 by Tim Kowal
Here’s a trap door to avoid: if you are trying to expedite an appeal by dismissing remaining claims, do not use the Judicial Council dismissal form. Instead, you need a judge-signed dismissal. While Jeff is still in trial, Tim covers Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972....Read More >>

Are employees immune from paying discovery fees?

Last updated on March 4, 2025 by Tim Kowal
If you are forced to prove a key fact at trial after the other party refuses to to simply admit them in response to a request for admission, a California discovery statute entitles you to recover your attorneys’ fees. It doesn’t even matter if you aren’t the prevailing party: when a party should simply admit...Read More >>

Is the electronic-recording ban unconstitutional?

Last updated on February 25, 2025 by Tim Kowal
The challenge to the electronic-recording ban, in a rare original writ petition in the California Supreme Court, will progress to the merits. The Court has invited the respondent Superior Courts of Contra Costa, Los Angeles, Santa Clara, and San Diego to file a return in April 2025 showing cause why Court should not order them...Read More >>

Headnotes: one-sentence summaries of this week’s below-the-fold cases

Last updated on February 19, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: 🗯️Watch what you say in your appellate briefing extension. Attorneys commonly explain that they need an extension because the case is “very complex.” But if your appeal is arguing that the fee award...Read More >>

ChatGPT Fails, Sanctions & Disbarments, Feb. 2025

Last updated on February 18, 2025 by Tim Kowal
Please AI responsibly: Attorneys at a major law firm are making use of ChatGPT. That's not a bad thing normally, but filling in legal cites is not what it's for. The unchecked ChatGPT cases were fake at a rate of 8 out of 9 total cases in a single brief. On this recent legal news...Read More >>

Headnotes Feb. 13, 2025: Attorneys behaving badly

Last updated on February 14, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: ChatGPT Fail: Remember last year when ChatGPT “hallucinated” leading a solo attorney to cite a couple nonexistent cases? Well, a couple of Big Law attorneys from Morgan and Morgan, “America’s largest injury law...Read More >>

Is California’s 30-day pay-or-waive arbitration rule preempted by the FAA? The split widens

Last updated on February 12, 2025 by Tim Kowal
Your check for arbitration fees gets delayed in the mail. Under a particularly harsh pay-or-waive provision of the California Arbitration Act, if your fee is received on day 31, too bad—your arbitration rights go Poof! Or do they? There’s currently a big split among the appellate courts on this. Tim goes solo while Jeff is...Read More >>

Yet another arbitration preemption case, with 1st Dist. holding CAA’s 30-day deadline survives

Last updated on February 11, 2025 by Tim Kowal
Add another entry to the split in the Court of Appeal over whether the Federal Arbitration Act preempts the California Arbitration Act’s harsh 30-day pay-or-waive deadline. Following the no-preemption side in Keeton v. Tesla, Inc. (D1d1 Jun. 26, 2024 No. A166690) (mentioned here), and closely parsing the arbitration agreement’s less-than-complete invocation of the FAA, the First District...Read More >>

Another late arbitration payment case, again holding the FAA preempts the CAA

Last updated on February 6, 2025 by Tim Kowal
If you pay your arbitration fees late, there is a penalty. That penalty, under the California Arbitration Act, is that you are deemed to have waived arbitration. In a split decision last year in *Hernandez v. Sohnen Enters.* (discussed here), the Court of Appeal held that, when the parties’ agreement specifies the Federal Arbitration Act,...Read More >>

LawPracticeCLE has my presentation: Trial Mastery: Developing a winning strategy and preserving your best issues

Last updated on February 5, 2025 by Tim Kowal
My presentation Trial Mastery: Developing a Winning Strategy and Preserving Critical Issues, is now available at LawPracticeCLE available here. In the presentation I cover my Top 10 Appellate Tips for before, during, and after trial. I also offer these insights: There is a big difference between the story you tell at trial, and the record....Read More >>

The court recorded my trial, so why can’t I use it on appeal?

Last updated on February 4, 2025 by Tim Kowal
The San Bernardino Superior Court electronically records trial. Can Jeff use the recording as the appellate record? Short answer: no. But there’s an original writ pending in the Supreme Court on a similar issue, so watch this space. We also cover:   Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim...Read More >>

Attorney DQ Orders Are Appealable, But Not for Attorney Expert Witnesses

Last updated on January 30, 2025 by Tim Kowal
Motion-in-limine orders, like other evidentiary rulings, are not appealable. But there is one case, Brand v. 20th Century Insurance Company/21st Century Insurance Company (2004) 124 Cal.App.4th 594, where the excluded expert was a party’s former attorney and disqualified on that basis. And attorney-disqualification orders are appealable as collateral orders. But when the same thing happened recently...Read More >>

$340k Incivility Tax & Other Cases

Last updated on January 29, 2025 by Tim Kowal
Jeff is in trial, so take in a few quick summaries of recent cases and get back to billing:   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...Read More >>

Court cannot deny fees until a motion is made

Last updated on January 28, 2025 by Tim Kowal
At the hearing on the successful defendant’s anti-SLAPP motion—but before she moved for fees—the trial court granted the motion, but denied fees. This was surprising for two reasons. One, the prevailing anti-SLAPP defendant has a right to fees. Two, and more interesting, the defendant hadn’t even made her motion yet. Reversing, Ruano v. Goldberg (D2d4...Read More >>

Headnotes Jan. 24, 2025: one-sentence summaries of this week’s below-the-fold cases

Last updated on January 24, 2025 by Tim Kowal
998 loser still gets enforcement costs. Did you win your case but lose the CCP 998 bet? While your prejudgment costs are limited, you are still entitled to judgment enforcement costs. Elmi v. Related Management Company, L.P. (4D3d, Jan. 8, 2025, No. G062788). A judge’s participation at a legal conference about a case is not...Read More >>

Incivility Fee Reduction of $340k!

Last updated on January 22, 2025 by Tim Kowal
There is a small but growing number of cases holding that incivility can bite you in your attorneys’ fees motions. But are the courts serious about that? Mess around and find out, is the lesson from Madison v. Theodore (D2d7, Jan. 8, 2025, No. B310551) [nonpub. opn.]. During a long court trial, the proceedings "took...Read More >>

Movie-Trailer Case Reviews

Last updated on January 21, 2025 by Tim Kowal
There was a bit in an old radio show (Kevin-and-Bean KROQ old, not Little Orphan Annie old) had Ralph Garman review movies he’d never seen, based only on watching the trailers. In this episode, we review some cases we haven’t read. We discuss the cases below, which lead to some good tangents. Other items discussed...Read More >>

TikTok at the Supreme Court & Oral Argument Stories

Last updated on January 15, 2025 by Tim Kowal
This is why your teenagers are anxious: TikTok’s fate hangs in the balance at the Supreme Court. We discuss the recent oral arguments, and Donald Trump’s amicus brief asking the Court to sit tight and he’ll make a fantastic deal that will be fantastic and make the Court very happy and everyone will be very...Read More >>

Headnotes: one-sentence summaries of this week’s below-the-fold cases

Last updated on January 14, 2025 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: File for attorneys’ fees within the appeal deadline: Remember that the deadline to file a motion for fees is the same as the deadline to appeal. That means 60 days after the notice...Read More >>

Appellate court criticizes trial court practice of failing to enter final appealable orders

Last updated on January 9, 2025 by Tim Kowal
Trial courts get busy sometimes. They making a ruling, but might overlook ever to enter a formal order. Sometimes it is a statement of decision (which is not appealable). Sometimes it is in a minute order that directs a party to propose a formal order (also not appealable), like the nonsuit ruling in Blauser v....Read More >>

Roundup of 2024 and What’s Coming in 2025

Last updated on January 8, 2025 by Tim Kowal
Here is our 2024 roundup, and in exchange we have a request for suggestions for 2025 content. If you are an attorney, what content do you prefer? Check out the poll. Now here’s the roundup of updates for 2025: 📅 MSJ Deadlines Are Updated: Remember 81-20-11. With the MSJ hearing as the target, motions must...Read More >>

No reporter’s transcript of attorneys’ fees hearing doomed this appeal

Last updated on January 6, 2025 by Tim Kowal
The important appellate tip in the denial-of-coverage insurance case of Saydman v. Aegis Sec. Ins. Co. (Cal. Ct. App. Dec. 20, 2024 No. G063209) (nonpub. opn.) is: get a court reporter. Even when the hearing is on a routine motion for attorneys’ fees involving no testimony, expect the appellate court to affirm if you don’t...Read More >>

Headnotes: (12/05/24) One-sentence summaries of this week’s below-the-fold cases

Last updated on December 5, 2024 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: Do not trifle with judgment enforcement. Just because you are not a party doesn't mean you can't be in contempt. Big time sanctions awarded In Ofek Rachel, Ltd. v. Suki Ben Zion. (2D2d...Read More >>

Headnotes 11/21/24: Judge Bias Can Be Forfeited But Not Defective Service

Last updated on November 21, 2024 by Tim Kowal
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: Judicial bias is nonwaivable, but not nonforfeitable: In N. Am. Title Co. v. The Superior Court. (Cal. Oct. 28, 2024 No. S280752), the trial judge made comments suggesting that the insurance carrier was...Read More >>
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"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

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

Leviticus

"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

"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 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

"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

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

— H.L. Mencken

"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

“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

"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

"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

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