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An attorney’s duty to say “no”

Last updated on January 22, 2026 by Tim Kowal
Even if the client “earnestly believes” something to be true—and even if you, the attorney, “earnestly believe” it—without evidence, you can’t say it in court. Publishing its opinion in N.D. v. E.F. (D4d3 Jan. 20, 2026) case no. G066061 (nonpub. opn.) as a “cautionary tale,” attorney T. Matthew Phillips gets sanctioned $25,000 for violating this...Read More >>

Payment Under Protest Preserves Your Right to Appeal

Last updated on January 21, 2026 by Tim Kowal
Prevail at arbitration? Make sure your arbitrator rules on your fees and costs, or they may be waived. And no, voluntarily paying a judgment does not automatically forfeit your appeal. Usually. Those two potential pitfalls arose in Garrett & Tully, P.C., v. Aliso Properties, LLC, et al., (D2d3, Dec. 9, 2025, No. B332463) (non-pub. opn.)....Read More >>

Federal contempt is broader than Cal. contempt, & PAGA victory becomes a “smoldering ruin”

Last updated on January 20, 2026 by Tim Kowal
You have to literally disobey an order in California to be held in contempt. But federal courts are a little more touchy-feely: they will find a contempt for violating the “spirit” of their orders. Tim and Jeff compare the Ninth Circuit's contempt finding against Apple in the *Epic Games* dispute, and a state litigant who...Read More >>

New Civ Pro Rules for 2026

Last updated on January 7, 2026 by Tim Kowal
California’s New Legal Rules for 2026: AI, Photo Proof of Service, and Simpler Statements of Decision 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...Read More >>

$25K for a Malicious Anti-SLAPP & Other Bad-Lawyering Sanctions

Last updated on December 30, 2025 by Tim Kowal
AI-sanctions might get eyeballs, but the bigger sanctions are still for plain old bad lawyering. Jeff also raises this ethical and pragmatic question: who defends the lawyer when sanctions threaten the client? Should counsel facing an OSC retain separate counsel for the sanctions component to avoid divided attention and better protect client interests? What if...Read More >>

Media immunity and civil bounty hunters

Last updated on December 19, 2025 by Tim Kowal
A scandalous Netflix documentary called an unconventional sex-based therapy business an “orgasm cult,” all based on a sole source whose account has several flaws. But the Court of Appeal dismissed the defamation case on anti-SLAPP grounds. Tim and Jeff discuss whether any California defamation case against a media company could survive the one-two punch of...Read More >>

Why AI Cites Really Bother the Courts

Last updated on December 4, 2025 by Tim Kowal
Want to know why bad AI cites really bother the courts? Jeff and Tim discuss two recent fake-AI-cites cases imposing sanctions and State Bar referrals, and draw this conclusion: It’s not that AI is bad at law—in one of these cases, the court noted that none of the AI mistakes even went in the direction...Read More >>

Pronouns at the Supreme Court & AI Arbitrators

Last updated on November 12, 2025 by Tim Kowal
The California Supreme Court’s long-awaited "Taking Offense" decision on gender pronouns in elder care facilities introduces a new “captive audience” exception to the First Amendment. Tim worries this new judicial carve out may creep to other forums; Jeff is unperturbed. Tim also shares insights from the Federalist Society National Conference, before examining a significant appellate-fee...Read More >>

What’s on Judges’ Minds, with Jimmy Azadian: From Threats to Judges to the ‘Turn It Down’ Law

Last updated on November 5, 2025 by Tim Kowal
Jimmy Azadian is often in the room when federal judges get together to share their personal concerns about the job. When judges are asked to come speak to a group, Jimmy reports that top of mind are the recent threats to judges and the courts—whether from armed vigilantes, protesters, students, or senators. Jimmy, Tim, and...Read More >>

Skating to Where the AI Puck is Going: ClioCon 2025 Insights

Last updated on October 30, 2025 by Tim Kowal
AI Reshapes Legal Practice: ClioCon 2025 Delivers a Wake-Up Call 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...Read More >>

Don’t Boies Schiller your brief—”Read all your cases!” says AI Legal Writing Prof. Jayne Woods

Last updated on October 23, 2025 by Tim Kowal
Few lawyers and LRW instructors write and think more about AI than Professor Jane Woods of Mizzou Law, who offers this most important AI advice: If you haven’t read the case, don’t cite the case. Jeff thinks our business and even this podcast will be aped by robots by this time next year. Until then,...Read More >>

An attorney is now a “vexatious litigant” for filing five unsuccessful writs and appeals

Last updated on October 22, 2025 by Tim Kowal
As an attorney, you might not be surprised to learn that—if you file serial meritless lawsuits in pro per—you, too, may be deemed a vexatious litigant. File five unsuccessful lawsuits within seven years, and that’s what happens. But you might not realize that appeals count toward your five-lawsuit limit. That was the outcome in the...Read More >>

Law360 Features Our Take on the Ninth Circuit’s Anti-SLAPP Ruling

Last updated on October 15, 2025 by Tim Kowal
The Law360 article on the Ninth Circuit’s en banc decision in Gopher Media LLC v. Melone features quotes California Appellate Law Podcast co-hosts Jeff Lewis and me on the significant shift in how anti-SLAPP motions are handled in federal courts, overturning more than two decades of Ninth Circuit precedent. The Ninth Circuit held that denials...Read More >>

Legal-tech guru Ernie Svenson on how attorneys should use AI

Last updated on October 14, 2025 by Tim Kowal
Just a couple years ago when we talked with Ernie Svenson, the attorney who talks tech fluently, AI was not even a thing. Now in late 2025, it’s the only thing. Ernie joins Tim and Jeff to discuss the rapidly evolving landscape of AI in legal practice, why AI gives small firms an advantage, and...Read More >>

Teaching Justices to Write: Cherise Bacalski

Last updated on October 7, 2025 by Tim Kowal
Teaching Judges: Appellate Expert Cherise Bacalski on Brief Writing and the Human Side of Law In this compelling episode, Tim Kowal interviews Cherise Bacalski, a Western United States appellate specialist and writing coach at NYU Law's New Appellate Judges Program, about her insights from both sides of the bench and how her background in rhetoric...Read More >>

Headnotes: AI Hallucinations Cost $10k, Forgetting to ask for fees proves fatal

Last updated on October 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: Seeking Family Code 2020/2032 need-based fees? Don't forget to establish the incurred fees as reasonable. Fees reversed because they were for discovery motions not even ruled on yet. (But on remand expect the...Read More >>

AI “deepfake” evidence results in terminating sanctions

Last updated on September 25, 2025 by Tim Kowal
The AI “deepfake” videos offered in support of plaintiff’s motion for summary judgment in this Superior Court case goes way beyond the innocent AI “hallucinations” more commonly reported. Plaintiff in Mendones v. Cushman & Wakefield, Inc., (Cal. Super. Ct. Alameda Cnty. Sept. 9, 2025 No. 23CV028772) submitted two videos that the trial judge easily concluded...Read More >>

9th Circuit overrules the appeal-extension rule: 30 Days Means 30 Days

Last updated on September 17, 2025 by Tim Kowal
Appealing in the 9th Circuit? Your deadline is 30 days. Don’t let Rule 58’s “separate document” extension lead you astray. Appellate specialists Tim Kowal and Jeff Lewis also discuss ChatGPT 5 (a “market disruptor”), and sanctions strategies in federal court. And more practical insights on navigating procedural pitfalls, avoiding sanctions, and ethically incorporating AI tools...Read More >>

Appeal Deadline Alert: Don’t count on Rule 58, 9th Circuit says

Last updated on September 16, 2025 by Tim Kowal
Appealing in the 9th Circuit? Your deadline is 30 days. But sometimes the court makes certain rulings that are appealable but without a formal order—and that’s where FRCP 58 comes in, which says that those rulings are not deemed “entered,” and so the 30-day appeal deadline doesn’t yet run, until 150 days later. But in...Read More >>

When Copy & Paste Gets Costly, & other recent cases

Last updated on September 9, 2025 by Tim Kowal
Failing to cite your secondary sources in briefs is poor form. But is it plagiarism? Jeff and Tim debate. And when the Supreme Court The publishes a case, should it explain itself? PJ Gilbert and Tim say yes, Supreme Court and Jeff disagree. Also in this episode: Tune in for AI ethics, briefing blunders, and...Read More >>

Don't Save Your Arguments for Later

Last updated on September 4, 2025 by Tim Kowal
The plaintiff's strategic decision to "not discuss" prong two of the anti-SLAPP analysis in hopes of supplemental briefing later proved fatal in *Ramirez v. McCormack* (D2d8, Aug. 8, 2025, No. B340986) reh'g denied (Aug. 19, 2025). Courts expect parties to present complete arguments in their initial briefs—don’t rely on getting a second chance. In a...Read More >>

Headnotes: Fee Traps & Statute Snafus — Four Cases Every California Litigator Should Know

Last updated on August 29, 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: RFA Fees: Unreasonably deny an RFA, get hit with attorneys fees…even if you otherwise are protected under a one-way fee statute. So if you are asked to admit you signed the document that...Read More >>

Patrick Hagen’s legal writing tips for the LinkedIn masses

Last updated on August 26, 2025 by Tim Kowal
Patrick Hagen is a man of the people—he still proudly uses Times New Roman! But he also has the ear of LinkedIn’s legal-writing elite, with over 36,000 followers as of August 2025. Patrick sits down with Jeff and Tim to share the source and method behind his viral legal-writing tips, how his judicial clerkships shaped...Read More >>

Headless PAGA Claims, with Monte Grix

Last updated on August 20, 2025 by Tim Kowal
Unlike any other state, California effectively deputizes employees to act as “Private Attorney Generals” to sue employers for PAGA claims—both for themselves, and for their co-workers. But since the individual claims can get compelled to arbitration, employees started to file claims only on behalf of the “body” of co-workers, asserting no claim on behalf of...Read More >>

Headnotes: Fee Fights & Procedural Pitfalls — Four Cases Every California Litigator Should Know

Last updated on August 12, 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: Self-represented attorney CAN get fees awarded when co-litigant is spouse, but it's fact specific: there has to be a true professional relationship between spouses. If the attorney spouse was making all the decisions,...Read More >>

Headnotes: From Judicial Immunity to Free Speech, This Week in Law That Made Me Look Twice

Last updated on August 6, 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: Not CA, but might restore your faith in the judiciary—via IJ: The Stored Communications Act allows the government to subpoena social-media companies for user data, and it even allows those subpoenas to be...Read More >>

Headnotes: ChatGPT Privacy, Forum Clauses, Lengthy Opinions & Judicial Farewells

Last updated on July 29, 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 ChatGPT testify against you? Maybe, says Open AI CEO Sam Altman: “If you go talk to ChatGPT about your most sensitive stuff and then there's a lawsuit, we could be required to...Read More >>

Headnotes: Politicians Can't Whistleblow, Sloppy Filings Fail, Cities Self-Tax, and "Res Judicata" Gets Rebranded

Last updated on July 24, 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: Elected officials aren't whistleblowers, Cal. Supreme Court says. “Employee” means rank-and-file public workers, not elected officials who “report to the electorate.” But: they can still bring First Amendment claims. Brown v. City of...Read More >>

The John Eastman Disbarment Recommendation

Last updated on July 23, 2025 by Tim Kowal
Summarizing the extraordinary events surrounding the 2020 election, the California State Bar Court’s review decision issued a decision in June 2025 recommending that President Trump’s election attorney, John Eastman, be disbarred. Tim and Jeff unpack. Jeff and Tim (nervously) debate the implications of the ruling. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed....Read More >>

Unethical to paste from a legal article without attribution, appellate court warns

Last updated on July 22, 2025 by Tim Kowal
The California Court of Appeal recently warned that pasting unattributed legal content in an appellate brief is “a serious breach of ethics,” and “obviously unacceptable” and “sanctionable.” The pro per appellant in Kelly v. Tow (Jul. 17, 2025, No. G064417) 2025 WL 1982214 (nonpub. opn.) challenged an sanction against him for filing an improper discovery...Read More >>
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"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.)

"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

"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

"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

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

— H.L. Mencken

"Do not worry about people stealing your ideas. If your ideas are any good, you'll have to ram them down people's throats."

— Howard H. Aiken

"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

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

Leviticus

“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

"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

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