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Statements of Decision: The what, why, how…and when judges trick you into waiving them!

Last updated on June 22, 2023 by Tim Kowal

This comes up every call I get after a judge trial: the statement of decision. The statement of decision in a bench trial stands in for the verdict in a jury trial. It tells you—and more importantly, the Court of Appeal—what findings the court made and what theories it accepted. Pretty important if you’re planning...Read More >>

Best Briefing Tips of 2022

Last updated on June 8, 2023 by Tim Kowal

After interviewing dozens of guests on the California Appellate Law Podcast, Jeff Lewis and I recapped some of the best briefing tips from 2022. In this clip we cover: Judges’ three key fears when deciding cases (via Ross Guberman) ️Kill your darlings—find the cleverest line in your brief, and delete it (via Ross Guberman) ️Litigation...Read More >>

Judgment creditors, beware restitution—and pounce on disentitlement, says Joseph Chora

Last updated on June 1, 2023 by Tim Kowal

Has your client decided to enforce the judgment before the appeal is over? Beware, says collection attorney Joseph Chora—after losing an appeal, a judgment creditor is liable in restitution. (The plaintiff in Dr. Leevil LLC v. Westlake Health Care Ctr. was liable for $5.7 million, as written up here: https://lnkd.in/geJWrrin.) But on the flipside, judgment creditors...Read More >>

Jury instructions are ceremonial, but they are not just ceremonial

Last updated on May 18, 2023 by Tim Kowal

After the theatrics of trial comes the sleep-inducing reading of the law. Do jury instructions matter? Studies show that jurors don’t even understand jury instructions, so what is the point of the judge taking a half day at the end of trial putting the jury to sleep by reciting all those CACI forms? Appellate attorney...Read More >>

City law held unconstitutional? Just amend! “See how easy it is to be a city attorney?”

Last updated on May 11, 2023 by Tim Kowal

Sometimes you CAN beat city hall. But the city, even after a court loss, can still win. Municipal law attorney Peter Prows discusses strategies to keep in mind if you ever go up against the city. The key takeaway: Once its made up its mind to do something, a city (or agency or whatever) will...Read More >>

Telling judges what they “must” do only dares them to do the opposite

Last updated on May 4, 2023 by Tim Kowal

Consider these two alternatives for ending a brief: “This Court MUST reverse.” “This Court SHOULD reverse.” Stefan Love, who reviewed John Blumberg’s book Persuasion Tips for Trial Lawyers, explains why you should consider the latter choice. No one—judges included—like being told what they “must” do. But what if the authorities are clear that the result...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 >>

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 >>

The absolute-no-matter-what jurisdictional deadline to appeal… and its five exceptions

Last updated on April 13, 2023 by Tim Kowal

Everyone knows two things about the deadline to appeal: The deadline is 60 days. You can get an extension if certain posttrial motions are filed. But the 60-day rule is only partly correct. The posttrial timing can be slippery. And there are more complexities besides. In this 5-minute clip, Jeff Lewis and I discuss how...Read More >>

Judgment debtor fraudulently transferring assetes? Don’t file a new action, just levy the asset

Last updated on April 5, 2023 by Tim Kowal

File away these two “gold nuggets” for next time you enforce a judgment, courtesy of judgment-enforcement specialist Joseph Chora: If the debtor is transferring assets to third parties, sure, you could file a fraudulent-transfer complaint. But why? You can simply levy on the transferred asset. Not only is this faster and cheaper, but it...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 >>

“The Law That Swallowed California”

Last updated on March 23, 2023 by Tim Kowal

It has been called “the law that swallowed California.” CEQA, the California Environmental Quality Act, accomplished good things at its inception in 1970 but now it is used to thwart nearly any kind of development someone doesn’t want. “CEQA is not intended as a population control measure,” observed the Court of Appeal in a recent...Read More >>

3 Judgment-Collection Tips Focusing on the Debtors’ Paramours, IP, and Their Little Dog, Too

Last updated on March 13, 2023 by Tim Kowal

When you are trying to enforce a judgment, you may be tempted to seize special personal property, like mementos, or the beloved family pet. But while these are personal property, if they do not have significant value, it will be seen as an improper purpose. So that might not be a good strategy. But judgment-enforcement...Read More >>

Random Violence to Appellate Procedure

Last updated on March 10, 2023 by Tim Kowal

Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this? Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random...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 >>

"Is it going to matter?” Justice Zelon’s big criteria on writ petitions

Last updated on February 24, 2023 by Tim Kowal

“I know the sting of a loss as well as anyone,” says Justice Laurie Zelon, but if the course of the case is really not going to change, writ relief is highly unlikely. If the issue is going to be dispositive of the case so that the case would have to be retried, however, that...Read More >>

“Find something that is difficult, arcane, and that nobody knows how to do, and you will always have work”

Last updated on February 17, 2023 by Tim Kowal

“When I got out of law school,” Joseph Chora related, “I knew nothing.” So like many of us, he started out by taking any case that came in. Until, that is, a mentor told him “that’s a dumb idea.” Instead, you should “find something that is difficult, arcane, and that nobody knows how to do.”...Read More >>

Clerkships are uniquely valuable, so do normal workplace rules apply?

Last updated on January 30, 2023 by Tim Kowal

Even judicial clerks face harassment and discrimination by their judge-employers. Aliza Shatzman knows this first hand, and it’s why she started the Legal Accountability Project. But how can we achieve accountability in such a strange place as a court? Judicial jobs are not like normal jobs. Former Supreme Court clerks command signing bonuses in the...Read More >>

Judges and law schools must do more to protect law clerks

Last updated on January 27, 2023 by Tim Kowal

Aliza Shatzman’s dream of a judicial clerkship turned into a nightmare. Just to get the experience, and the career credit, of a judicial clerkship, Shatzman would have put up with her judge calling her “bossy” like his wife, and telling her he preferred the company of her male co-clerk. But then her judge terminated her...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 >>

Want to get the Governor to support legal access? Here’s Justice Lambden’s $400M tip

Last updated on January 16, 2023 by Tim Kowal

Motivated by his sister’s deafness, Justice James Lambden has long advocated for improved access to our court system. “Without access,” he says, “there is no justice.” But by the time Arnold Schwarzenegger was governor, California still had no real funding for access. So Justice Lambden urged a budget line item for legal services. It failed....Read More >>

Gov. Newsom appointed a new Supreme Court justice, but he should have nominated her

Last updated on January 12, 2023 by Tim Kowal

Unlike federal judges who sit or life after being confirmed by the Senate, California Supreme Court justices’12-year terms follow confirmation by election. But our newest justice, Kelly Evans, was not confirmed, and won’t be for another four years. Why? Supreme Court watcher David Ettinger explains that Gov. Gavin Newsom opted to “appoint” then-Alameda Superior Court...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 >>

The “Published” Vs. “Unpublished” Distinction Matters Less Than You Think, Says Justice Lambden

Last updated on December 9, 2022 by Tim Kowal

Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases. Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning...Read More >>

A denial of a clemency request in CA amounts to a finding of abuse of power

Last updated on November 21, 2022 by Tim Kowal

Clemency requests in California must be approved by the Supreme Court, and they are not always approved. Denials of clemency requests, says David Ettinger, are “essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.” In one particular case back in 2019 concerning Joe Hernandez, a majority of the Supreme Court,...Read More >>

Why Justice Bedsworth Called Justice Thompson “Hard Headed”

Last updated on November 18, 2022 by Tim Kowal

Of his former colleague, Justice William Bedsworth is quoted as saying: “Justice Thompson has a rare combination of a hard-headed, straight-ahead approach to the law and a big heart that never lets him lose sight of the impact his decisions have on real people.” “Head-headed?” What did Justice Bedsworth mean by that? Justice Thompson joins...Read More >>

Advocacy Justice: Justice Lambden used to send opinions as “FYIs” to the Legislature

Last updated on November 16, 2022 by Tim Kowal

If you read court cases for a living, you may have some that conclude, “while we are sympathetic to the appellant, this is a problem for the Legislature to resolve.” Which is usually sensible enough. But how does anyone know if the Legislature is reading these cases? Justice Lambden wondered the same thing. So that’s...Read More >>

Writ Petitions Are Won or Lost in the First Paragraph

Last updated on November 11, 2022 by Tim Kowal

When you have a legal emergency and you need the Court of Appeal to act right away, you need writ relief. But less than 10% of writ petitions are granted. So how do you get the court’s attention? Justice David Thompson spent more time on his court’s writ panel over the last decade than anyone,...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 >>

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

— H.L. Mencken

"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

"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

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

"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.)

"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

"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

Categories

"A judge is a law student who grades his own papers." — H.L. Mencken

"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

"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

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

"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.)

"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