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Oral Argument

How to Prepare for Oral Argument

Last updated on October 4, 2023 by Tim Kowal
Have an appellate oral argument coming up? We discuss tips shared by top appellate attorneys how to prepare for and give oral arguments. Some tips include: 🗣️ Anticipate the panel’s questions when you can, but… 🗣️ …be prepared to respond when you don’t know the answer. 🗣️ Be prepared to answer: “What is your rule”...Read More >>

What does it mean when the appellate court orders counsel to discuss certain authorities at oral argument?

Last updated on September 15, 2023 by Tim Kowal
Sometimes in the weeks prior to an appellate oral argument, the court will order the parties to be prepared to discuss certain issues or cases. Sometimes this is called a focus letter or a pre-argument order. They are pretty common in the Ninth Circuit. But a dissent to a pre-argument order is less common. In...Read More >>

If the appellate court issues a tentative opinion, do this.

Last updated on September 6, 2023 by Tim Kowal
I have yet to meet an attorney who would not welcome the appellate court providing a tentative opinion prior to oral argument. All upside, no downside, right? There was a downside in Navellier v. Putnam (D1d5 Aug. 17, 2023) No. A166476 (reh’g denied with mods Aug. 30, 2023) (nonpub. opn.). The plaintiffs’ case was dismissed...Read More >>

Court allows losing party to dismiss appeal after unfavorable tentative

Last updated on June 20, 2023 by Tim Kowal
After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait...Read More >>

Jennifer Novak on Representing the Environment in Court

Last updated on by Tim Kowal
As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey complicated issues as a subject-matter specialist to generalists on the bench. Then...Read More >>

Maxine Waters’ SLAPP, 5pm Filing Deadline, “Snitch Rule” & More Recent Legal News

Last updated on June 6, 2023 by Tim Kowal
Our regular roundup of noteworthy appellate decisions and legal news includes these stories: ⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited. ⚠Did...Read More >>

Racking Up Appellate Argument Experience with Chris Schandevel

Last updated on May 30, 2023 by Tim Kowal
ADF attorney Chris Schandevel explains how he got the opportunity to orally argue dozens of cases in multiple appellate courts including state supreme courts in just a decade of practice. We also discuss: ‍⚖️Does oral argument make a different? Can amicus briefs make a difference? Yes, and one case proves it: Chris talk about Kligler...Read More >>

Court refuses to dismiss appeal to avoid unfavorable precedent

Last updated on May 25, 2023 by Tim Kowal
Before oral argument in the cannabis-cultivator eviction case of 65283 Two Bunch Palms Building LLC v. Coastal Harvest II, LLC (D4d2 May 5, 2023 No. E076654) --- Cal.Rptr.3d --- (2023) 2023 WL 3268852, the court issued a tentative opinion—partially certified for publication—against the tenant Coastal Harvest. Rather than have to face this unfavorable precedent in...Read More >>

Legal News & Tidbits: Gun ban ok, but not gas ban, and a worry about diversity on the bench

Last updated on May 5, 2023 by Tim Kowal
Courts upheld a gun ban but overturned a gas ban, and found yet another strange application of section 998 offers. Judges and clerks are more becoming more racially diverse, but come from a very short list of schools. And PJ Rubin talks about the best kind of oral argument. Cal. Ct. App. says California’s ban...Read More >>

Use photos in your advocacy, but don’t overdo it

Last updated on April 28, 2023 by Tim Kowal
“Give your listener one thing to do at a time,” says appellate attorney Stefan Love. So you’ve got a great photo to flash on the screen, or a damning quote for your jurors to read, but at the same time your jurors are supposed to be studying the photo or quote, the attorney is also...Read More >>

Use ChatGPT to prepare for oral argument, with Prof. Jayne Woods

Last updated on April 18, 2023 by Tim Kowal
AI, they say, will revolutionize the practice of law. But can it do anything for my actual practice, as in, the case I am working on right now? Prof. Jayne Woods joins us to explain how she used ChatGPT—the question-and-answer AI interface—to draft a very passable first draft of an oral argument outline. Even better,...Read More >>

Unlocking Your Case Theme at Oral Argument: Jeff Markowitz with a Minnesota Perspective on Appeals

Last updated on April 11, 2023 by Tim Kowal
You have just about 15-30 seconds at oral argument before the panel is likely to interrupt you. How will you use that time? Minnesota appellate attorney Jeff Markowitz says you should be unlocking that key point that allows the rest of your case to unfold. If you haven’t discovered that point by the time of...Read More >>

A tentative opinion makes unlikely those “unexpected” arguments that turn a case

Last updated on March 3, 2023 by Tim Kowal
I haven’t met an attorney who wouldn’t love a tentative opinion or a “focus letter” on their appeal. But have you ever tried to articulate how, exactly, it would help to know what the panel is thinking? It seems intuitive, but really, what would you do if you knew the panel disagreed with you on...Read More >>

"Focus letters make oral argument better,” says Justice Lambden

Last updated on January 4, 2023 by Tim Kowal
Some appellate courts issue tentative opinions or focus letters, tipping off counsel to the issues of most interest to the panel. Justice James Lambden says they improve the quality of oral argument. Think about it: three appellate judges and their research attorneys have been thinking deeply about this one question in the case, and then...Read More >>

Quality and Value of Oral Argument Would Be Enhanced” by Focus Letters or Tentative Opinions, Says Justice Thompson

Last updated on December 21, 2022 by Tim Kowal
Trial judges issue tentative decisions, why don’t appellate justices? Justice Thompson draws from his positive experience as a trial judge enjoying improved oral arguments after issuing tentative decisions, and suggests that the Court of Appeal might enjoy the same improvement. But we might have to wait for a “changing of the guard” as younger justices...Read More >>

M.C. Sungaila Reports Back After Over 100 Interviews of Women Judges & Attorneys at the Portia Project

Last updated on November 22, 2022 by Tim Kowal
M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation. M.C. sits down with Tim...Read More >>

Concede Weak Arguments, Gain Credibility, Says Justice Lambden

Last updated on November 8, 2022 by Tim Kowal
Even more than being buried alive, Justice Lambden says attorneys are terrified of missing an argument. This is why attorneys tend to indulge the temptation to be overinclusive in their arguments. But making too many arguments comes at the cost of credibility. If the attorney is just “running the loop again,” the bench is more...Read More >>

Justice Thompson on Effective Oral Arguments: Give a “Different Spin”—And Answer Questions

Last updated on October 28, 2022 by Tim Kowal
Justice David Thompson sets up the oral argument Catch-22: If the argument wasn’t in your brief, why wasn’t it in your brief?! If the argument was in your brief, then why are you repeating yourself?! This is at the heart of what Justice Thompson calls the perennial question about giving an effective oral argument. In...Read More >>

No Right to In-Person Appearances

Last updated on May 4, 2022 by Tim Kowal
Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed...Read More >>

The Best Time to Prepare for Oral Argument

Last updated on January 11, 2022 by Tim Kowal
If you have finished briefing your appeal, you have already missed the best opportunity to prepare for oral argument. Appellate expert Myron Moskovitz tells Jeff Lewis and me why the time to begin preparing for oral argument is while drafting your reply brief. Watch the clip here.  This is a clip from episode 20 of the California Appellate...Read More >>

Oral Argument Lost Because Counsel Failed to Call Clerk Within an Hour of Posting the Tentative Ruling

Last updated on June 14, 2021 by Tim Kowal
You are ready for oral argument. You have checked the tentative and you are ready to explain why the judge got it wrong. But unfortunately, the Superior Court for this particular county does not hold oral argument unless, after the court posts the tentative ruling, you give notice to the court and opposing counsel that...Read More >>

A Four-Letter Word You Must Not Say at Oral Argument

Last updated on June 3, 2021 by Tim Kowal
Counsel: ...and plaintiff's ability to enforce recruh‘s closure and endangerment standards. Judge Easterbrook: The plaintiffs ability to enforce what? Counsel: Recruh's closure.... Judge Easterbrook: Could you use English words, please? Counsel: Yes, Your Honor. The Resource Conservation and Recovery Act. Judge Easterbrook: You will find that we are generalists rather than specialists, and using jargon...Read More >>

Genetic Testing, Charles Manson, Appellate Oral Argument, and Tentative Opinions on Appeal: An Interview with Alan Yockelson

Last updated on May 12, 2021 by Tim Kowal
On our latest podcast, Jeff Lewis and I interview Alan Yockelson, discussing genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud. Also discussed: • The value of tentative opinions on appeal • How appellate oral argument can change an outcome • Asserting objections...Read More >>

Interview with MC Sungaila on the California Appellate Law Podcast Ep. 8

Last updated on March 2, 2021 by Tim Kowal
Esteemed appellate specialist M.C. Sungaila joins co-hosts Tim Kowal of TVA and Jeff Lewis and on episode 8 of the California Appellate Law Podcast for a wide-ranging discussion on: appellate apprenticeship preparing cases for appeal whether to consider waiving oral argument (M.C.'s answer: Never.) The discussion then turns to questions relating to appellate briefing, including...Read More >>

Remote Argument Survey Highlights Positives and Negatives of Streaming During Pandemic

Last updated on December 3, 2020 by Tim Kowal
Remote Appellate Arguments Could Be Here to Stay According to a survey conducted by the clerk of the Ninth Circuit, an overwhelming 86% of lawyers who have given oral arguments remotely thought the level of engagement with the judges was the same or better than in-person proceedings. A lower percentage, though still a majority, rated...Read More >>

What Oral Argument on Appeals Tells You About Your Chances of Prevailing

Last updated on October 20, 2020 by Tim Kowal
Oral argument on appeal is often seen as the main event, especially through the client's eyes. But when you get a cold bench with few questions asked by the appellate judges, there is little to report back to the client. This new analysis gives you something to say. Appellate attorney Kirk Jenkins has an analysis...Read More >>

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

— H.L. Mencken

"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

"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

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

Leviticus

"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

"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

"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

"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.)

"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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