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Abortion Pills and Vaccine Mandates

Last updated on June 18, 2024 by Tim Kowal
We have a few big cases to cover: 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 Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases. Other items discussed in the episode:Read More >>

Top 10 Tips to Avoid Fee Disputes, with Carl Mueller

Last updated on May 28, 2024 by Tim Kowal
Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. In the continuation of our discussion in the last episode, Carl Mueller shares his top 10 tips to avoid them and win them. The tips include: Carl I. S. Mueller’s biography, LinkedIn profile. Appellate Specialist Jeff Lewis' biography,...Read More >>

What to know about “snap” and “super snap” removals

Last updated on April 23, 2024 by Tim Kowal
Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants. But don’t commit...Read More >>

Is the Racial Justice Act Unconstitutional?

Last updated on April 17, 2024 by Tim Kowal
Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if...Read More >>

Social Media and Jury Waiver High Court Cases, and Other Appellate News

Last updated on April 2, 2024 by Tim Kowal
The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss: Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and...Read More >>

Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases

Last updated on March 5, 2024 by Tim Kowal
We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration: We also discuss a case on the Racial Justice Act, a rare case reversed for lack of substantial evidence, and a Public Records Act case. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn...Read More >>

Judge Nazarian to Judges: Take the Accountability Pledge

Last updated on February 27, 2024 by Tim Kowal
There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial...Read More >>

Sleep Well, Crush Your Enemies, with Leslie Porter

Last updated on February 20, 2024 by Tim Kowal
You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road,...Read More >>

So You Think You Understand the Snitch Rule?

Last updated on February 13, 2024 by Tim Kowal
Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.” There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.)...Read More >>

Kyle O’Malley, the Attorney Who Won the Raines’ Supreme Court Employee-Screening Case

Last updated on February 6, 2024 by Tim Kowal
Just a few years out of law school, Kyle O’Malley won a landmark case in the Supreme Court of California. The employer’s screening service in *Raines v. US Healthworks Medical Group*, 15 Cal.5th 268 (2023) used a generic questionnaire asking about menstrual cycles, hemorrhoids, hair loss, and all sorts of fool questions not tailored to...Read More >>

No More Anti-SLAPPs in Fed Court? With Cory Webster

Last updated on January 30, 2024 by Tim Kowal
The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court. We also discuss that recent panel that departed from an...Read More >>

Cert on Homeless Encampments and En Banc on SLAPPs

Last updated on January 24, 2024 by Tim Kowal
The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable. Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published...Read More >>

Cal’s initial disclosures, minimum discovery sanctions, & some ¯\(ツ)/¯ cases

Last updated on January 16, 2024 by Tim Kowal
California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct. And some recent cases:   Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page....Read More >>

How appellate attorneys beat summary judgments, with Yisrael Gelb

Last updated on January 9, 2024 by Tim Kowal
Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including: We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.”   Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed. Appellate Specialist...Read More >>

2023’s Best Guests, Cases & Tech

Last updated on January 3, 2024 by Tim Kowal
Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical maverick Jack Metzler. And then there are our legal scholars...Read More >>

Eugene Volokh on Restraining Orders and the First Amendment

Last updated on December 19, 2023 by Tim Kowal
Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same...Read More >>

CEB has my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal”

Last updated on December 8, 2023 by Tim Kowal
CEB DailyNews has published my article, “Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal.” The article is about In re the Marriage of Jensen (D2d2 Sep. 5, 2023) No. B320565 (nonpub. opn.), which distinguished void from voidable judgments. What makes a judgment or order “voidable” or “void” can be...Read More >>

High-Profile Employment Appeals with Glenn Danas

Last updated on December 6, 2023 by Tim Kowal
Employment and class-action attorney Glenn Danas has argued 49 appeals in state and federal appellate courts throughout the country, including a current streak of eight consecutive reversals. Glenn talks with us about litigating the landmark Iskanian case, and how he turned the panel that initially issued a 148-page tentative against his client. Glenn also shares:...Read More >>

Liar in a Crowded Theater, with Jeff Kosseff

Last updated on November 29, 2023 by Tim Kowal
Turns out you CAN shout “fire” in a crowded theater, and lots of other lies besides—unless the government meets a heavy burden, that is. The author of four books and more than 20 academic articles, First Amendment scholar and Naval Academy associate professor Jeff Kosseff makes the case for the freedom to speak freely, and...Read More >>

Thankful for Unpublished Opinions

Last updated on November 21, 2023 by Tim Kowal
In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent. Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited...Read More >>

Appellate Bonds: What You Client Needs to Know, with Dan Huckabay

Last updated on November 14, 2023 by Tim Kowal
Trial resulted in a sizable judgment against your client. You know to stay judgment enforcement you have to post a bond, but what, exactly, does that mean? And how do you do it? Enter Dan Huckabay from Court Surety Bond Agency. We sit down with Dan and ask him how we attorneys can be a...Read More >>

Elegant Legal Writing, with author Ryan McCarl

Last updated on November 7, 2023 by Tim Kowal
Ryan McCarl, author of the latest book on legal writing, Elegant Legal Writing, sits down with us to discuss why now, more than ever, attorneys need to elevate beyond ChatGPT and distractions to rise to our role as teachers of the law. Ryan offers these actionable tips: 🖋️ “Defer editing” and “second-guessing” until a later...Read More >>

Reversals on Technicalities: 4 Recent Examples

Last updated on October 31, 2023 by Tim Kowal
Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples: 😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible. 😎 If the court refuses to provide a statement of decision on key...Read More >>

CM/ECF Is Outdated So Get Ready for the 9th Circuit’s ACMS, with Susan Gelmis

Last updated on October 18, 2023 by Tim Kowal
Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why...Read More >>

The 9th Cir. “Reimagines” Diversity Jurisdiction

Last updated on October 10, 2023 by Tim Kowal
The one sure thing your law-school loans purchased is instant recall of the fact that “federal courts are courts of limited jurisdiction.” But not as limited today as when you signed your promissory note. We discuss Impossible Foods Inc. v. Impossible X LLC, the recent 9th Circuit decision holding that specific jurisdiction over a defendant...Read More >>

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 >>

The Power of Anti-SLAPP Motions: Sept. 2023 Cases

Last updated on September 27, 2023 by Tim Kowal
Anti-SLAPP motions are sometimes called early summary judgment motions. But the fact that they are “early” is why they are so powerful: not only do they provide defendants a quick way to defend against claims that involve speech, they force the plaintiff to prove its case without any discovery. On this episode of the California...Read More >>

Judges Use Clearbrief & So Should You, with Jackie Schafer

Last updated on September 19, 2023 by Tim Kowal
Among the hundreds of great new legal tech available in recent years, Clearbrief stands near the top. Jackie Schafer, a former big-law and state attorney general who had a vision of attorneys and their staff working more effectively and efficiently, designed an app that lives right in your Microsoft Word. Clearbrief lets you upload your...Read More >>

Appeal Your Arbitrator?

Last updated on September 13, 2023 by Tim Kowal
We discuss some interesting recent cases out of the California Court of Appeal: Then we discuss the “Eisenberg rule,” and a survey that explains why lawyers still use legalese.   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...Read More >>

Best Practices for Expert Testimony

Last updated on August 29, 2023 by Tim Kowal
Your next trial could succeed or fail based on whether the expert’s opinion gets admitted or excluded. Based on their recent presentation to financial experts, we cover three key cases—Kelly, Sargon, and Sanchez—that govern expert opinions. We also cover some fundamentals and tips to protect expert work product. Some things experts should remind their attorneys:...Read More >>
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"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 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

"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

"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

"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

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

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

— H.L. Mencken

"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

"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

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