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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 Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or...Read More 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 >>

Mastering Trial Strategy: Advanced Techniques, Ethical Insights, and Critical Mistakes Every Attorney Should Avoid

Last updated on November 6, 2024 by Tim Kowal
My “Moneyball” lesson for trial success: get more of your evidence and arguments into the record than your opponent does. MyLawCLE has published my presentation, “Mastering Trial Strategy: Advanced Techniques, Ethical Insights, and Critical Mistakes Every Attorney Should Avoid.” The two-part presentation on federal trial strategy begins with trial attorney James Susag’s coverage of developing...Read More >>

Late objections to RFAs do not invalidate otherwise substantive responses

Last updated on October 31, 2024 by Tim Kowal
When discovery objections have been waived, does serving responses that still contain objections (which have been waived) count as “substantial compliance”? Yes, says Katayama v. Cont'l Inv. Grp. (D4d3 Oct. 9, 2024 No. G063872) [published]. What happened is plaintiff failed to respond to requests for admissions. Defendant then moved to deem the requests admitted, but...Read More >>

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

Last updated on October 24, 2024 by Tim Kowal
Here are a few cases and stories I did not have time to write up but seemed either important or irritating enough to mention: (Artwork by Randall Holbrook, RNDL.DESIGN.)Read More >>

Electronic recordings? Not so fast.

Last updated on September 19, 2024 by Tim Kowal
Los Angeles Superior Court will now offer electronic recordings where a court reporter is not available. But not all courts have the equipment. And even if they do, by statute these recordings may not be used to create an appellate record. So what does it mean? Also, the Supreme Court in Meinhardt v. City of...Read More >>

Headnotes Aug. 15, 2024

Last updated on August 15, 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: (Artwork by Randall Holbrook, RNDL.DESIGN.)Read More >>

CEB has my article, “The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned”

Last updated on August 7, 2024 by Tim Kowal
CEB DailyNews has published my article, “The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned.” The article is about Taylor v. Superior Court (D4d2 May 9, 2024 No. E082661) [nonpub. opn.], involving two wrinkles to the peremptory-challenge deadline. Wrinkle #1: When the trial judge denied a...Read More >>

Headnotes Jul. 18, 2024

Last updated on July 18, 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: (Artwork by Randall Holbrook, RNDL.DESIGN.)Read More >>

Headnotes Jul. 11, 2024: One-sentence summaries of this week’s below-the-fold cases

Last updated on July 11, 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: (Artwork by Randall Holbrook, RNDL.DESIGN.)Read More >>

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

Last updated on July 3, 2024 by Tim Kowal
This is the inaugural edition of Headnotes—cases I did not have time to write up, but seemed either important or irritating enough to mention anyway:Read More >>

The 15 days to file a 170.6 does not start running if a “significant issue” was left unassigned

Last updated on June 6, 2024 by Tim Kowal
The first thing you do after filing a case is check the assigned judge. Once the judge has been assigned “for all purposes,” you have 15 days to file your peremptory challenge to disqualify that judge. There are a few wrinkles to that “all purpose assignment” deadline, however. The court addressed them in *Taylor v....Read More >>

How to Avoid Fee Disputes, with Carl Mueller

Last updated on May 21, 2024 by Tim Kowal
Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. Carl Mueller litigates these billing disputes and explains what attorneys should know to avoid them and to win them: In the next episode, we will cover Carl’s top 10 tips for avoiding a fee dispute. Carl I. S....Read More >>

A Day Without a Court Reporter, published in California Litigation, May 2024

Last updated on May 16, 2024 by Tim Kowal
“Don’t forget to get a court reporter.” This stock advice of the appellate attorney used to leave my probate and family law colleagues unfazed: “Court reporters are already provided for us,” they’d say. But now that the court-reporter crisis has reached an acute stage, they don’t say it anymore. California Litigation has my article, “A...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 >>

CEB has my article, “Does 998 cost-shifting apply to settlements? A three-way split?”

Last updated on March 27, 2024 by Tim Kowal
CEB DailyNews has published my article, “Does 998 cost-shifting apply to settlements? A three-way split?” The article is about the Lemon Law case in Ayers v. FCA US, LLC (D2d8 Feb. 27, 2024 No. B315884), where the parties settled for less than defendant’s 998 offer. In a published opinion. the court held that, contrary to the...Read More >>

Five Hard Truths About an Appellate Practice, with Raffi Melkonian

Last updated on March 26, 2024 by Tim Kowal
Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is...Read More >>
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"A judge is a law student who grades his own papers."

— H.L. Mencken

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

Leviticus

"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 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

“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

"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.)

"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

"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

"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

"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

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