Trial and Post-Trial Motions

New evidence would have defeated summary judgment, but the need for discovery was not supported by a declaration of diligence

Last updated on March 4, 2024 by Tim Kowal

When opposing summary judgment, an important tool is to file a declaration explaining that you need additional time for discovery. The plaintiff in Gomez v. City of Rialto Police Dep't (D4d1 Feb. 29, 2024 No. D083074) [nonpub. opn.], had the right idea, but did not comply with the requirement to file a declaration with a...Read More >>

Climate Change on Trial

Last updated on February 5, 2024 by Tim Kowal

Wealth, class, and high office don’t buy a lot of respect these days, but people listen if you’ve got some extra letters hung on the end of your name as scientists do. So climate scientist Michael E. Mann, Ph.D, sued for defamation when Rand Simberg and Mark Steyn called his “hockey stick” graph the product...Read More >>

Yes, you can use a motion in limine as a motion for summary judgment

Last updated on December 27, 2023 by Tim Kowal

Right before trial, you expect to see some motions in limine trying to exclude some of your objectionable evidence. But if you see an MIL trying to decide entire issues, you are probably ready to pounce with an argument that an MIL is not supposed to be a cheap substitute for a motion for summary...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 >>

Sanctions of $8.7M was voidable, but not void, and so was reinstated on appeal

Last updated on September 22, 2023 by Tim Kowal

A lot of savvy litigants search the web for ways to vacate an order after the time to appeal has expired. I know because many of these litigants have found my writings on this subject. Challenges made after the appeal deadline has expired is fruitless, you say? Well, sometimes it can work: section 473 of...Read More >>

What the heck is a protective cross-appeal, anyway?

Last updated on April 21, 2023 by Tim Kowal

“One more thing,” the appellate attorney darkly muses. “Be ready to file a protective cross-appeal.” Wait, what? What the heck is that? Is this just one more way we appellate specialists try to get added to trial attorneys’ speed-dial? Here a 3-minute explainer. Basically, just remember: if you lost a verdict but won a JNOV,...Read More >>

Jury released from duty could not be reconvened to make a remaining finding

Last updated on April 12, 2023 by Tim Kowal

Do not forget to have the jury make all the required findings. Once the jury is discharged, as happened in ***************People v. Jones (D1d5 Apr. 4, 2023) No. A163558, the court loses control of the jury, and so the jury cannot be reconvened. The prosecutor in Jones had charged an enhancement based on a prior...Read More >>

Excessive information leads to worse, not better, arguments

Last updated on March 30, 2023 by Tim Kowal

You have an avalanche of evidence for your upcoming trial. Document after document, email after email, photo after photo, and witness after witness promise to bury your opponent. But are you overdoing it? Appellate attorney Stefan Love, drawing on the lessons from John Blumberg’s Persuasion Science for Trial Lawyers, notes that “we can’t hold on...Read More >>

Ten Trial Tips That Appellate Specialists Want You to Know

Last updated on February 28, 2023 by Tim Kowal

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case. And, you had better make a...Read More >>

Ten Trial Tips from an Appellate Specialist

Last updated on February 20, 2023 by Tim Kowal

Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023). Here are the tips: Rule Zero: Make the Record #1 Make sure your theories of the case are captured in your pleadings #2 Was key evidence excluded? Preserve the issue by making a...Read More >>

Would you rather have a TV writer or a social scientist consult on your legal brief?

Last updated on January 20, 2023 by Tim Kowal

After reviewing the science-based trial tips in John P. Blumberg’s Persuasion Science for Trial Lawyers, who would appellate specialist Stefan Love prefer as a trial consultant: a social scientist? Or a TV writer? A social scientist can tell you, with citations to studies, why this or that strategy is likely to work. But gifted storytellers...Read More >>

Recent Case Tips on Expert Objections, and Strategy on MSJ & SLAPP Hearings

Last updated on January 17, 2023 by Tim Kowal

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection. Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial...Read More >>

New Case Tips for Judgment Creditors & Litigation Privilege

Last updated on December 6, 2022 by Tim Kowal

If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising....Read More >>

Filing Suit Tolls Any Cross-Claims, Even Merely Permissive Cross-Claims

Last updated on August 25, 2022 by Tim Kowal

After being sued, you have to answer the complaint. That part is obvious. But what about a cross-complaint? If you have cross-claims against the plaintiff, and you don’t assert them right away, can they become time-barred? Until now, this was a concern. But the recent published opinion in Paredes v. Credit Consulting Servs. (D6 Aug....Read More >>

Is the Right to In-Person Trials Enforceable?

Last updated on August 1, 2022 by Tim Kowal

Defendants are entitled to an in-person trial in criminal cases. The California Constitution says so. But the Court of Appeal now holds that, even if you are denied that right, there is nothing you can do about it. Christopher Melcher joins Tim Kowal and Jeff Lewis to discuss People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___....Read More >>

Lessons on Persuasion, From Science & Beyond, with Stefan Love

Last updated on July 26, 2022 by Tim Kowal

Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a jury to remember a few things, but one too many and they...Read More >>

Courts Cannot Reconsider Final Orders—But What Is a “Final” Order?

Last updated on July 20, 2022 by Tim Kowal

On the topic of judgment enforcement, the new rule announced in Coastline JX Holdings LLC v. Bennett (D4d3 Jul. 7, 2022, No. G059552) --- Cal.Rptr.3d ----, 2022 WL 2527118 is that a judgment-debtor’s profit-sharing plan is exempt from levy under both ERISA and California law, because profit-sharing plans are non-assignable. And on the topic of...Read More >>

An Advanced Class in Making the Record, with Jimmy Azadian

Last updated on July 5, 2022 by Tim Kowal

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and Tim Kowal about how he has addressed these kinds of problems while serving as embedded appellate counsel. What is “embedded...Read More >>

There’s Actually a Big Difference Between Motions for Nonsuit and Judgment: A Rebuttal to Prof. Martin

Last updated on May 18, 2022 by Tim Kowal

The trial court may not deem the right to a jury trial waived simply because the plaintiff failed to comply with local rules, like failing to submit trial binders. That is the important point about waiver of the right to a jury trial in Amato v. Downs (D4d2 May 6, 2022 No. E075421) -- Cal.Rptr.3d...Read More >>

A Clever Rhetorical Device Closing Argument Avoided a “Golden Rule” Violation and Earned an $18M Verdict

Last updated on March 7, 2022 by Tim Kowal

An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no....Read More >>

Nonsuit of Punitive Damages Reversed on Appeal

Last updated on February 10, 2022 by Tim Kowal

A nonsuit is one of the few exceptions to the ordinary presumptions to affirm on appeal. And so it bore out in *Newnes v. F&M Trust Co. of Long Beach* (D2d1 Jan. 11, 2022 no. B303725) 2022 WL 98179 (nonpub. opn.). Newnes’ claim for punitive damages was dismissed on nonsuit after opening argument at trial...Read More >>

You Have No Right to a Ruling on a New Trial Motion

Last updated on December 1, 2021 by Tim Kowal

The right to move for a new trial is an important right, developed from the common law, enshrined in statute, and respected by our courts. The recent case of Nickelson v. Nickelson (D2d2 Nov. 19, 2021) 2021 WL 5407839 (no. B302585) (nonpub. opn.) also respects the important right to move for new trial. You absolutely...Read More >>

Judge Who Did Not Preside at Trial Properly May Decide New Trial Motion

Last updated on November 9, 2021 by Tim Kowal

When a jury becomes unavailable before a verdict is returned, the result is a mistrial. Likewise, when a judge becomes unavailable before the statement of decision is entered, the result is a mistrial. Both common law and statute entitle either party after trial to ask the trial judge to decide the cause independently as the...Read More >>

Challenge to Extraordinarily Large $25M Mesothelioma Verdict Rejected on Appeal Because Challenge Not Based on "Minutes of the Court"

Last updated on November 8, 2021 by Tim Kowal

When a jury returns a large verdict, the unhappy defendant has to file a motion for new trial to reduce the verdict. (You can't just appeal directly, or else you'd waive the excessive-damages issue.) One way to argue the damages are excessive is to demonstrate the amount is the result of passion or prejudice. And...Read More >>

Trial Court May Not Reconsider Final Judgments, and the New Evidence, Even Though Compelling, Must Be Truly "New"

Last updated on September 1, 2021 by Tim Kowal

After a disappointing ruling, a motion for reconsideration is often tempting. It is much cheaper and faster than an appeal, and, who knows, maybe the judge really did just overlook a key fact and will correct it after taking a second look. But in the case of a final judgment having been entered, the trial...Read More >>

Attorney Committed Misconduct by Arguing Facts Outside the Record, Appellate Court Holds

Last updated on August 25, 2021 by Tim Kowal

Closing arguments at a jury trial are critical for trial counsel because it provides the opportunity to tie together all the disparate threads presented to them during the course of the trial. But often, opposing counsel will see things very differently. And they will draw very different inferences from the evidence — and lack of...Read More >>

So You Filed a Motion for New Trial to Reduce the Amount of the Judgment — But What If You Win?

Last updated on August 17, 2021 by Tim Kowal

Motions for new trial are seldom granted. So seldom, in fact, that many attorneys — and judges, too — don't even know what to do when it happens. For example, a plaintiff has a right to a jury trial, and that includes a right to have the jury determine the amount of damages. So what...Read More >>

Are Denials of New Trial Motions Appealable or Not?

Last updated on August 5, 2021 by Tim Kowal

Answer: Denials of new trial motions are not appealable. But these things are never quite that simple, are they? Here are a few buts: 1. Denials of new trial motions are reviewable on appeal. This is expressed in the recent opinion in Leinen v. Carlton (D6 Jul. 30, 2021) no. H047030 (nonpub. opn.). The Walker v. Los Angeles County Metro. Transp. Auth. (2005) 35...Read More >>

Appeal of Excessive Damages Rejected Because Not First Raised in New Trial Motion

Last updated on July 13, 2021 by Tim Kowal

The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty...Read More >>

Stupid Motions in Limine

Last updated on July 12, 2021 by Tim Kowal

Filing a critical motion in limine could be key to your trial. What about 40 motions in limine? Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine." Watch the clip here. You can listen to Jeff Lewis and Tim Kowal's entire interview with Frank Lowrey at episode 13...Read More >>

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"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

"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

"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

"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.)

"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

"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

"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

"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

Trial and Post-Trial Motions

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"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

"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

"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

"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.)

"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

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

"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