Press Record: How Courts Are Already Rewriting Appeal Rights Under FVAP

Jeffrey Lewis Welcome everyone, I am Jeff Lewis.

Tim Kowal And I'm Tim Kowal. Both Jeff and I are certified appellate specialists. And as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. If you find this podcast useful, please recommend it to a colleague.

Jeffrey Lewis And if you find it not useful, you're wrong.

Tim Kowal Jeff, it's been a few weeks since we've been back in the saddle. I fell. I had to I had to fall back on the intro script because I didn't remember how to how to start a podcast. we

Jeffrey Lewis It

Tim Kowal had a couple of guests have to cancel on us for illnesses or other reasons. And you've been down in the trenches doing trial court work.

Jeffrey Lewis yeah, trying to get a bunch of work done before we go to ClioCon. As a reminder, if we have any listeners who are going be out there in Boston and want to meet up, I'd love to meet you in person. Just shoot us an email. We'd love to say hello at ClioCon.

Tim Kowal Yeah, this will be my first time there. We'll see if we can find a space to record out there. I think you mentioned that they sell space in the booth, but I don't know that our listeners are gonna be tuning in for up to the minute legal tech updates from ClioCon. But we'll give you an after-the-minute update from what happens and try to try to see if we have some friends out there. All right, well, since we Since we don't have a guest this week, we do like to check in on some. Every now and then there are some important cases that come down the pike, Jeff, that we like to let our listeners in on. And there's a very interesting one from the California Supreme Court deciding on this court reporter crisis that we've been talking about. There's a court reporter crisis in California and in fact in the in the whole nation. It can be very difficult to find a court reporter, even if you can afford one. And that issue came up in Family Violence Appellate Project versus Superior Court. and then less than a month later, the third district took the reasoning of the I call it the FVAP case. even though I I hate acronyms in my writing, Jeff, but family violence appellate project is gonna be a mouthful in trying to get through this podcast. So I'm gonna call it

Jeffrey Lewis I call it the magic I call it the magic button case 'cause

Tim Kowal Mm.

Jeffrey Lewis it authorizes trial courts in some instances to press the magic button in their courtroom to hit record.

Tim Kowal Okay, the magic button case or FVAP. that sounds more mellifluous than FVAP. but the third district, less than a month after the Magic Button case, took the reasoning of the Magic Button case and used it to cut a thirty-one million dollar appeal bond down to one and a quarter million, even though the defendant was technically a millionaire. so the reasoning of the family violence appellate project. case w applied to indigent litigants, but in practice already it is being applied to litigants who are millionaires. They're just low millionaires. And when in relation the obligation is an eight-figure bond, then a mere single-digit millionaire can get the relief as reasoned in The magic button case. So let's talk about the Family Violence Appellate Project versus Superior Court case issued by the California Supreme Court August 10th, 2026. So what happened there? this was the first curiosity about the case is that it's an original writ proceeding against the Los Angeles, Santa Clara, Costa and San Diego Superior Courts. the litigants just skipped. The lower courts altogether and just filed an original writ proceeding in the California Supreme Court who granted review. And the local rules issued out of those superior courts that were under challenge, or that were on review dealt with the electronic recording prohibition. so as we've talked about on the podcast, and many have become aware, there's a government code section. 69957 that prohibits superior courts from pressing the magic button that they all have now after COVID. Everyone's been outfitted with Zoom and microphones and cameras throughout the courtroom. So just about every courtroom has is outfitted with a magic button and they could just record the proceedings if there happens not to be a court reporter there, so that there's at least an audio recording that can be used later for the appellate record. but section six nine nine five seven. Anticipated that and said that courts may not use the magic button to record proceedings. instead, the only way to make the official record is with a certified court reporter. But then what happens when there is a court reporter crisis, as we have in California and indeed the nation, there's a shortage? that was the issue that was confronting these courts. It didn't seem right as an act to access to justice issue that the courts Should turn away these litigants from laying the groundwork for an appeal by pressing the magic button just because there happens to be this fussy rule on the books that says that they may not do so. And what the Supreme Court held in a unanimous decision authored by the Chief Justice Guerrero is that a litigant who requests an official verbatim record and cannot Afford a private reporter is entitled to one. And if no reporter is available, the court has a ministerial duty to record electronically. So there's no discretion involved. The courts are ordered to press the magic button. And the way the court got there was to infer an exception to government code section 69957. It inferred it not textually and not under any constitutional doctrine either, even though constitutional issues were raised. Instead, the court reached for the common law in forma pauperis power from majors versus superior court and extended the Jameson versus Desta precedent, affording the right to indigent litigants to get a cost waiver for reporters' transcripts. So it the court did not reach for due process or equal protection as it's Rationale for finding this exception in the statute. And that matters because the right now runs in every civil case. one of the interesting things about the the superior court local rules is that they fashion their rules based on the importance of the right sought to be vindicated. So if there were constitutional rights or important liberty interests at stake in the actions. It would it would offend constitutional due process and equal protection norms to deny those litigants the right to a recording and thus their right to an effective appeal. so it was the importance of the right at stake that grounded the superior court rules. But the Supreme Court reached for a different rule, a common law, the pro se litigant rule. And that rule does not depend on the importance of the right at stake. So now that right runs in every civil case type, whether it's a an important constitutional or liberty interest, or it's just a plain vanilla, you're contesting a traffic ticket, or restraining orders or commercial disputes, enforcing a promissory note or employment disputes, they are all subject to the right to use the magic button. But only if you can show that you are indigent. And that gets to the second interesting part about the

Jeffrey Lewis Yeah.

Tim Kowal case is who is indigent under the Magic Button case, family violence appellate panel versus project versus superior court.

Jeffrey Lewis Yeah, I got lots of questions, including how does a court determine who is indigent? if someone's got a fee waiver, I guess that's an easy way. I've got a fee waiver on file. So but let's say it's not a fee waiver case, and you have somebody show up for a hearing and there's no court reporter and it's a busy calendar, 10 things on calendar, and there's a motion for summary judgment. The judge wants to get off the bench. How is the judge supposed to make a meaningful inquiry in open court in front of everybody? about indigency or should he just take should the judge just take the word of the party saying yeah I can't afford a court reporter and what do you do about the situation where somebody is indigent but maybe could afford a court reporter but there's no one no court reporter available and then the big question I have is what do you do with people who have counsel but they're indigent it's pro bono counsel does that person get a court reporter, get the magic button pressed. And is it a sua sponte duty for the courts to press that button and make an inquiry about indigency? or does the in pro per party have an obligation to ask the court for something before the court has to lift its finger and press the button? I got questions, Tim.

Tim Kowal I had thought we'd start with a a thought experiment. And you kind of stole my thunder a little bit on this, but if two litigants show up for a trial and neither can find a court reporter, and then the only difference is that the first one also cannot afford a court reporter. So there's no court reporter to be had anyway, but one of them is well heeled and the other one is not. And they both point out that Hey, the this is a nice new courtroom. It's updated with microphones and a magic button to record the proceedings, but before the court is going to acquiesce and push the magic button, they'll say, Well, pull out your pocket linings. Show me that you're impoverished, poor, destitute, show me your bank account statement. and if one is well heeled and the other is not, then the first one gets no magic button and the second one does. And so that's the that's the interesting situation or p possibility that can arise from this new ruling and the reasoning it adopts.

Jeffrey Lewis I know it's been a long time since you've been down in the trial court slumming with me, fighting the good fight, but those courtrooms are packed. And when a defendant, an in pro per defendant is in front of a plaintiff, a plaintiff's lawyer, I'm not sure they want to be candid with a judge about their finances. What if it would put them at a disadvantage in the litigation? And I don't know what do you do with a trial judge who says, Yeah, I don't believe that you're indigent. And says magic button denied. under what standards do you review that decision? What kind of evidentiary record do you need to make to appeal the denial of the magic button? It's crazy.

Tim Kowal Here are a couple of a couple of tips. first, a note from footnote three of the court where acknowledges that no fee waiver application is required. So this is not the same indigency requirement that it takes to get a a fee waiver. you just the footnote three disclaims, quote, that there is some absolute standard of indigency. And it reaches, quote, any litigant. Who cannot reasonably afford the costs necessary to access the judicial process. So, in other words, it's not just an absolute net worth statement. It will be in relation to the trial estimate. If this is a one-day or a partial day proceeding, most people can probably find a way to afford that. But if this is going to be a 30-day trial, That's going to be much harder to enforce to pay for all of the daily transcripts and the daily fees for the court reporter, let alone the cost to actually transcribe the proceedings at the end. so it's going to be in relation to the fees, attendant the court reporting services, and it's going to be in relation to the party's ability to pay. And how you how you make that showing, we're gonna be talking about another case in just a moment that gives some more tips on how to establish that.

Jeffrey Lewis Yeah.

Tim Kowal so one practice tip would be to ask in writing, make that request to use the magic button in writing, because without a writing, you're gonna have no way to show that you made the request for the magic button. Because again, you're starting from the standpoint from the premise that there is no Court reporter, there's no oral record. so with no reporter in the room, an oral request leaves no trace. make two separate showings. Inability to pay with a day rate and expected length of the trial or proceeding, and a showing of unavailability. you have to show that you made a good faith eff effort, a diligent effort to find a court reporter. So who you called, what court reporter, What individual court reporter or court reporter agency, when you called and what they said. And if the court refuses, you take a writ. it's a ministerial duty under the Family Violence Appellate Project case. so there is no deference involved. So that would be that would be a solid writ because without that relief, you would be effectively denied any effective ability for an appeal. So that's what you put in the writ worthiness. Why can't you wait until after the trial and appeal this? Because then I will have gone through a trial pointlessly because it can't be reviewed because there is no oral record.

Jeffrey Lewis Yeah.

Tim Kowal And then, of course, once the machine is on, you're gonna have to speak loudly and clearly into the microphone. you wanna confirm periodically on the record whether the magic button is in fact pressed and it's running and it's recording properly, because that would be a disaster if you got the relief and the court instructed the clerk to press the magic button and something went wrong or the court clerk paused it during a sidebar or a recess and forgot to resume it when proceedings continued. So make sure periodically that you have a good recording because that's it's one of the benefits. It's why a court reporter is the gold standard, is because once that professional stenographer is in the room, everyone can rest easy. We're going to have a good record now. If I talk too fast, if I talked inaudibly, Then the court reporter is going to interject and say, Counsel, slow the heck down. I can't follow you. Or, Your Honor, can we take a break soon? we've been going interminably at a breakneck pace, and my fingers are tired, and I'm gonna start making mistakes. so you have that human fail-safe in the mix to make sure that you've got a good oral record. You don't necessarily have that with an oral recording because remember, this is a judge-made procedure now for creating an oral record. There is no legislative enactment. There's no statute that tells you how the oral record is made, what to do in case there is a mechanical or digital failure in creating the record. what are your rights then? this is a you break it, you bought it type of situation for the judiciary. The judiciary has now made this right to an electronic record and any modifications, fixes, amendments, That are going to be needed to make it operate as intended are going to also have to come from the court. Unless the legislature wants to step up now. I guess that would be an interesting space to watch to see after 30 years now of hemming and hawing, and yeah, maybe we should have an electronic recording statute, but it it never happened. if all of a sudden now they will acquiesce in what the Supreme Court has done and now. get involved in the process of making sure that it works reliably and effectively and as intended.

Jeffrey Lewis Yeah. Hey Tim, I'm wondering, I was playing hooky and absent the day you interviewed a court reporter, a court reporting agency. and yeah, in terms of the

Tim Kowal Stephanie Leslie, yeah, from Regal Court Reporting.

Jeffrey Lewis view from the court reporter side, I'm just wondering, would you surmise that they would view this as a victory or a defeat in the sense that it's a very narrow authorization of pressing the magic button?

Tim Kowal I would think they would they would probably regard it as a defeat, in the sense that there was a concern that there were some some sh signs of life showing and trying to resuscitate uptake into the court reporting profession. There's been, this crisis has been, a couple of decades in the making, and no one could quite figure out why there weren't More new entrants into the profession. It's a good, well-paying profession, interesting work, set your own hours. so it's a little bit of a mystery why there's not more uptake, but there has been some reportedly some uptake in recent years and a and a big result like this from the Supreme Court That could turn the tide a little bit and say, well, no, maybe we'll just all start using electronic recordings and we don't need you court reporters anymore. So maybe this will be a dark cloud coming back over the profession of court reporting in California. we'll have to wait and see what happens there.

Jeffrey Lewis Yeah, I could foresee trial courts an abundance of caution in order to avoid any possibility of being reversed, over pressing the button or over reaching for the button, even in cases where it's not asked for, even in cases where indigencies may be a question mark, and that, reducing the demand for court reporters. I suppose you might be right.

Tim Kowal that's a a well-spotted concern that this is this is not a discretionary matter, even though there this indigency requirement, I don't know, maybe that will make this a more of a mixed question, right? Because once indigency is decided, then it's a ministerial question. But what about the question of who is indigent and who is not? That's that might be more of a mixed substantial evidence and abuse of discretion standard. because there's not a there's not a fixed legal definition of it. It's not like getting the fee waiver where there is more of a fixed standard. This is just you're not able to afford a court reporter in this context, in these circumstances, because of the length of the trial, because of the nature of the proceedings. etc and also because of the individual litigants worth. What if there are multiple litigants involved? And now do you have to you have to do kind of a an accumulated net worth or indigency type of analysis that could get very complicated.

Jeffrey Lewis And let's say a litigant has a fee waiver on file. They've qualified through their numbers, but pulls up to the hearing and in a Rolls-Royce and shows up at the hearing with a Rolex and the judge says, Yeah, I'm not pressing the button. the definition of indigency is squishy here.

Tim Kowal It is, it is squishy. so here's my misgiving, which I offer as someone who has argued for electronic recording. I always kind of hated that statute that prohibited electronic recording, even though I did start to understand the other side a little bit more, especially after writing an article about it and after talking with Stephanie Leslie. but the a shortage that hits everyone is a strange thing to fix with the doctrine that. Only reaches some people. The opinion leaves a gap here, as we've been talking about. what happens when the recording fails? Like when the mics miss a witness or there's crosstalk that defeats the transcriber, the clerk gets pulled away and maybe doesn't hit the resume button after a recess. the legislature. didn't build a remedial scheme here for recording because it prohibited the recording in the first place. So obviously, the there don't look in the statute books for any remedies because the legislature figured there'd be no need for a remedy to a to a technology that it prohibited. So if something happens with the recording after You make your showing of indigency, you get the court to grant your request to record the proceedings, and then something happens. How do you challenge that? Is that an irregularity in the proceedings? is that grounds for a new trial or a mistrial? And none of that, there's no guidance for any of that in the Family Violence Appellant Project opinion. And all of it's gonna be coming. You know that we appellate attorneys are we're we're always looking for work. so we're going to be advising clients, hey, you might have a good argument for a mistrial or irregularity. You gotta file a motion for new trial. Do you have to file a motion for new trial to preserve this type of issue, Jeff?

Jeffrey Lewis Well, let me just say optimistically, and spoilers for other issues we're dealing with on the show. After a series of court decisions and inconsistent local rules about dealing with the AI problem and use of AI in the courtrooms, the legislature, passed a law regulating AI, attorney's use of AI. So I have hope that perhaps after some awkward decisions come following this magic button case. Maybe the legislature might find some wisdom in clarifying when the duty to press or the duty to reach for the magic button arises.

Tim Kowal Yeah, that's the interesting space to watch. now my here's my prediction. because because of the rationale of the magic button case is based on indigency, and because indigency is squishy, and the other factor is that if there is an electronic tool, a digital tool that is available to help an indigent litigant. Get a fair trial and preserve a record for appeal. And if those two things exist, then courts have a ministerial duty to provide them. Then this doctrine is ripe for traveling to other areas. So here's one example is interpreters. If I can't find an interpreter in a particular in my client's particular dialect, why can't I just ask the court, look, just use an AI recorder. or AI interpreter. the technology is available. And otherwise my client would be either deprived of an interpreter or unduly delayed in the litigation. So why not use AI? It's not statutorily authorized, but again, if a if a technology is readily available and is needed to provide an indigent litigant a fair and equal access to the court system Then I think it's fair to ask why shouldn't that be at least under consideration? It seems like it might be at least an abuse of discretion to reject it out of hand.

Jeffrey Lewis Yeah. Yeah. Interesting.

Tim Kowal And would it be improper to require trials in person if there is an indigent litigant who would have to travel a long ways to appear in person? the technology is already there, as we know. The courts are all outfitted to conduct trials by Zoom. So would it be at minimum an abuse of discretion to reject such a request out of hand and just have a blanket rule that all trials have to be in person? seems like courts would have to at least entertain an argument and a showing that well, if you're indigent and if in these circumstances it would be an undue burden to require an indigent litigant to attend the trial in person, then the court would have to at least consider it.

Jeffrey Lewis Yeah.

Tim Kowal And then last, what about the reporter's transcript itself? Okay. Now the court doesn't actually get there. It only talks about what happens when there's not a court reporter there. So let's say you've pressed the magic button, let's say all went well during the trial, you've got a good audio recording. Now what? You the litigant wants to appeal. What do you do then? What is in what form does the Court of Appeal get the get the record? Do you have to send up a an MP3 file of the audio recording? Does it have to be transcribed? Hey, it's still expensive to get a court reporter to transcribe from the original audio. the an indigent litigant who couldn't afford to bring a court reporter in the first place can't afford to get a court reporter to transcribe the audio. Can the indigent litigant Use AI to record the audio recording and then send the AI transcript to the Court of Appeal as the as the oral record of the trial proceedings.

Jeffrey Lewis Tim, don't panic. I don't think we're going to have problems in that regard. when you file a designation of record on appeal, a traditional record, the clerk looks at it and if it everything's in order, then the court reporter is directed to prepare a transcript with a magic appellate numbering. If a recording is involved, then the superior court is gonna have to have that obligation once a properly presented designation of record on appeal is filed and presented to the clerk. the appellate division or the appeals department is gonna have to figure out how to translate those mp3 files to transcripts and then send it up to the court of appeal. I don't think that's insurmountable, but I will say this. I guess you're gonna see lawyers or in pro per parties using a lot more pleading paper designations of record on appeal as a co as opposed to the Judicial Council form because I don't think there's a there's a checkbox for recordings.

Tim Kowal No, there's not other than in limited civil appeals. and to your point about assuming that the indigent litigant is going to have the Jameson versus Desta cost waiver to get the electronic recording transcribed into a reporter's transcript. are the court reporters going to charge the same fee for transcribing From a digital recording, an electronic recording, is that going to create a budget problem? So I think part of why the Supreme Court was able to get here is because there's no budget issue. if this was pre-COVID, this decision would not have come out in 2019 or earlier, before the courts were all outfitted with the magic button. because the courts, the court can set its own rules when it when it's minded to do so. but it can't set its own budget. the budget comes from the legislature. So it can't outfit itself with new technology unless the money comes from somewhere. And so if it's going to become more expensive to transcribe and turn the electronic recordings into transcripts, then that can create a budget problem. And that

Jeffrey Lewis For sure.

Tim Kowal again might might require the legislature to come in.

Jeffrey Lewis Yeah. Yeah.

Tim Kowal Okay, so the next case I wanted to get to flows directly from the Family Violence Appellate project case. It's Guzman versus Superior Court, September fourth, two thousand twenty-six, out of the third district court of appeal. And what happened in this case, th this is the case where there's a big judgment and a seven-figure judgment, and the bond is gonna be an enormous bond that the appellant can't afford to collateralize. And there is a little known statute, go to civil procedure, section 995.240, that allows the court, the trial judge, in the judge's discretion, to reduce or otherwise modify the bond requirement under section 917.1. I have never seen it used. I've tried it a couple of times, but good luck. getting that one

Jeffrey Lewis Yeah.

Tim Kowal granted. but the Guzman case now says that the section nine nine five point two forty bases the right to get that review for a reduced bond based on the indigency of the litigante. And now that the Supreme Court has weighed in that indigency is not a fixed or onerous showing. The Guzman case wound up with a litigant who was technically a millionaire being able to establish that he was indigent, entitled to the relief under section 995.240, and got an eight figure bond reduced to a mere $1.25 million bond. So what happened in this case is that the jury awarded Raul Guzman $18.5 million against Nathan Weigel with cost of interests. it wound up surpassing twenty million dollars. So that means that a that an undertaking at one point five times the face amount of the judgment was around thirty-one million dollars. And Weigel was worth about one point seven five million dollars. So he moved under that nine nine five point two forty statute. And the trial court did find him indigent and set the bond at one and a quarter million. because that was the the maximum of his insurance policy And Guzman sought relief. This was the respondent on appeal. he sought the relief saying, he's not really indigent. you have to be like destitute. You have to be, homeless or borderline homeless to be indigent. He had the real hard times, Great Depression type of mental model of indigency. And and I think on behalf of I think all respondents everywhere. Will now wish that Mr. Guzman

Jeffrey Lewis You bet.

Tim Kowal did not seek this relief. The court granted an OSC, but then denied the writ in a published decision. Justice Robey writing for the panel that indigent means any person who is unable to obtain sufficient sureties, not just a person who is destitute. And indigency is, quote, a relative benchmark based on the costs inhibiting access to courts. So that's what anchors back to the common law access to courts for indigent litigants doctrine that was espoused in family violence appellate project. so it matters because a solvent defendant facing a bond that dwarfs his assets now has a real argument under section nine nine five point two forty, which reaches every statutory bond under section nine nine five point two zero.

Jeffrey Lewis the prior case, I choose to believe that perhaps the legislature will jump on the uncertain definition of indigency here or the flexible definition of indigency and will jump in and clean up that definition. And they don't even have to oppose the court reporter union to do so, to clean up what it means to be indigent.

Tim Kowal So the practical tip from Guzman is this starts to answer the question: how do you establish indigency? if you want to establish it for purposes of being able to press the magic button, Guzman would be a nice place to start. So what happened here is that Weigel's first showing, first attempt to show indigency failed. He put in assets and hardship. But he didn't put in any evidence of the cost of the bond. And the trial judge asked whether he would still be indigent at a bond in the amount of two and a half million. And he's and he said, probably not. so it was it was in inconclusive, and so sent Weigel back with an opportunity to adduce more declarations to show indigency. And what won the day was a broker's quote showing three tiers Of hardship basically. at a bond of one point two five million, the surety wanted an insurance guarantee and no collateral. So that was doable. At two and a half million, it wanted the one and a quarter million in cash on top of the insurance guarantee, which Weigel didn't have. And when you go in soaking wet at the thirty-one million dollar figure, which is required. you that that's the one and a half X number under 917.1. At $31 million of a bond, it wanted over $30 million in collateral. and so the appellant showed that there was a cliff there, that at a certain amount it would send him over the cliff and make him destitute. And so that was the showing that helped the judge get to a number that would be doable by the appellant, but not send him into becoming destitute. so it's set the bond at the last number that he could obtain, which was the policy limit. And that was happened to be the amount that the creditor could obtain anyway. So again it's I think it's the same the same rationale as when you're the respondent and the your appellant posts a bond, are you sad because now you can't immediately enforce? Maybe, but probably you're happy because at least if you can hold your breath through the rest of the appeal and you can affirm the judgment, then you'll have that pot of gold waiting for you to collect. You're not going to have a question mark about whether you're going to come out of this appeal with a Pyrrhic judgment.

Jeffrey Lewis Yeah. Yeah, I think you're right.

Tim Kowal And this is why I think this is this is a rung of the Family Violence Appellate Project ladder that is going to invite more movement in this area of additional rights and acquiescence to the indigent litigants. The section nine nine five point two forty bond reduction right lives in the bond and undertaking law, which applies to any bond given under the statute, except to the extent the statute prescribes a different rule or is inconsistent. So Guzman raises the ceiling on every statutory bond at once, meaning injunction under undertakings, attachment bonds, receivership bonds. the non-resident cost bond under section one zero three zero. so this availability of establishing a right to post a lower bond than the statute allows now runs to every kind of just about every kind of bond, not just appellate bonds.

Jeffrey Lewis Yeah, absolutely. A lot of squishiness there for the legislator legislature to come in and address.

Tim Kowal So the in the hook under 995.240 is that it has the word indigent in it. But remember that government code section six nine nine five seven, the statute at issue in the FVAP case, it didn't talk about indigency. and the court still got around it based on the common law rule that that, well, unless the legislature specifically denies a right or contemplates indigent litigants, we're going to read in an implied exception that a prohibition does not reach indigent litigants if it would deny them equal access to the courts. So under that type of rationale and that type of energy that the judiciary has expressed in affording equal access to indigent litigants in all statutes, in all types of procedural scenarios. I think that opens the door to look for those types of accessions, not only in a statute like this bond relief statute, which already applies by definition to indigent litigants, but to other procedures as well, even if they don't specifically contemplate indigent litigants.

Jeffrey Lewis Yeah.

Tim Kowal Okay, Jeff, that's those are the two cases I had to cover.

Jeffrey Lewis Well, if we have time, I sure would like to get into a little statute called SB five seven four, which is going to become effective January first, twenty twenty seven. Can you be patient and let me chat about that for a minute?

Tim Kowal Yeah, let's do it.

Jeffrey Lewis So this is the new AI law, and it's gonna really impact litigators who file things with court. I mean, there's certain parts of this law that are not controversial that don't break any new ground, but there's some areas that are gonna be complicated. So let me break it down. The first part of the law says, hey, lawyers, if you've got sensitive data, medical data, financial data, don't upload it to somewhere where confidentiality is at risk. You can only upload it to somewhere where only an attorney or someone under a strict duty of confidentiality can access it. That's not treading new ground. We're already under that obligation in terms of using cloud services. likewise, there's a portion of the new law that says, hey, attorneys. Don't delegate to AI litigating your case, unauthorized practice of law. So if you're a computer programmer and you have an agent and some subagents and you say, prepare me for trial, and you rely on these AI agents to do all the thinking and the analysis, you're running afoul of that law, but I don't think that's treading new ground. Where we get into controversy is from now on, if you use generative AI, you have to disclose it. If you've used it in connection with a court filing. And the way it's defined, the obligation is the use of generative AI. And the way generative AI is basically saying anything that basically uses an LLM to generate content. And so I'm thinking I routinely use Claude as the final step to proofread a brief for spelling and typos. And my biggest nemesis straight quotes instead of curly quotes.

Tim Kowal Mm-hmm.

Jeffrey Lewis And I'll sometimes use the Claude plugin for Word to create a track change version of the document so I can convert those quotes. And we're gonna have to disclose that. We're gonna have to disclose our use of Clearbrief because Clearbrief, it generates text in appellate briefs, right? it generates a table of authorities. I mean, if all you did was just do a table of authorities in Clearbrief, you'd have to disclose that use. And of course, traditional products like CoCounsel and Clio's Vincent products. Disclosed. So I think going forward, you're going to either see just like you see a certificate of word count in appellate briefs, you're gonna see certificates of disclosure, and every lawyer is just gonna throw out there every bit of technology on this certificate that their firm uses. This hereby certifies that this lawyer may or may not have used, Westlaw Co-Counsel, Lexis, Claude. ChatGPT, etc., in the creation of this brief. I will say one nice thing about this new law is unlike some federal local rules I've seen, the disclosure law doesn't require you to point to which part of your brief you used generative AI on. so that would be very burdensome. so that's one aspect of the law.

Tim Kowal let me ask you before you move on, do you understand how this new statute defines the term generative artificial intelligence? Because that came to mind when you were you were giving a few examples of things that could be considered generative artificial intelligence, like how some tools create a table of contents or table of authorities. Is that truly generative AI or is that pre generative AI? I don't know the term for

Jeffrey Lewis Well,

Tim Kowal pre generative AI.

Jeffrey Lewis in a prior life, chapter one, he used to be a computer guy. So you tell me, here's the definition from the statute. Generative artificial intelligence means an artificial intelligence system that can generate derived synthetic content, including text, images, video, and audio, that emulates the structure and characteristics. of the systems training data.

Tim Kowal that's probably a technical question that has an actual answer about whether Clearbrief or another tool that generates a table of contents and table of authorities, is that truly generated? what it what was it called? Fabricating the content. It's more that seems more like reorganizing. Content that already exists.

Jeffrey Lewis Yeah, but no lawyer ever got disciplined or sanctioned under one twenty eight point seven for over disclosing use of AI, right? Or

Tim Kowal Yeah.

Jeffrey Lewis use of software.

Tim Kowal that's where your list takes my head is that yeah well if everything is AI, if look, even the word field that tells me how many what my word count is in my brief, the certificate of word count in every one of my briefs is a form of artificial intelligence. So I have to disclose that this certificate of compliance was generated by artificial intelligence. and you say, if you only have to disclose that you used generative AI in the preparation of the brief, but you don't have to identify what aspect or in what way you use generative AI, then I see in the future just a very perfunctory certificate of generative AI compliance that just says this firm has complied with, this

Jeffrey Lewis If yeah.

Tim Kowal is a profession code.

Jeffrey Lewis six eight point one, the B&P code. But let me just say it was it's not as narrow as you just said. because I think what you just said is use of AI in connection with a brief or to prepare a brief. where the duty arises, what the statute says, is disclose the use of generative artificial intelligence to the court for all documents submitted to the court, and then it goes on. I that's pretty much. So let me let me give you an example, Tim. If you forgot what the anti-SLAPP statute says and you Google it, the 425.16, and an AI response comes up, because that's the first thing that comes up on a Google search these days. I think you've just used generative artificial intelligence, not to generate the brief, not to type the brief, but it fits this definition of the use of generative artificial intelligence. to the court for all documents submitted to the court. You with me? Let me say one other thing. another non-controversial part of the law. it formalizes something that we all know. if you're going to use AI to put cases in your brief or factual citations, you as a lawyer have a duty to, I don't know, read the cases, make sure they're real, and make sure they say what you say they say. That is not controversial, but that's a new part of the law.

Tim Kowal Here's a quick exercise that I prepared using AI, I'll disclose, to to make this point.

Jeffrey Lewis It's very meta. Very meta, Tim.

Tim Kowal on theme to what we have been talking about, AI can be very useful in bridging the access to justice gap for many pro se litigant And even in reducing the cost of legal services. And I'm thinking the there is certainly a line where using generative AI goes too far. And supplanting lawyer judgment. I think that's the that's the watchword, is that lawyers are there to exercise judgment and make the make the call on what arguments to include, what is what's within the lines. but there are certain aspects of even appellate brief drafting that can easily be left to AI, like how about the standard of review section of everyone's brief? if you've got a contract interpretation case or a statutory interpret interpretation case, are you really starting the timer for your client and then going into Westlaw and doing the legal research and drafting, word for word, the interpretation of a statute is reviewed de novo and then finding the applicable case. There's only so many ways to say that. there you cannot tell if AI wrote that or if a human wrote that, nor would you or should you care as long as you can vouch for the case. So I think it's important that the rule is requiring lawyers to put eyes on every single case that's being cited in the brief. But using AI to draft things like a standard of review, I don't think there is one whit of problem with that.

Jeffrey Lewis I'll go a little further, I'll maybe I'll catch some heat from our listeners on this. How about a proposed order or notice of ruling where you feed, Clio Vincent or co-counsel a transcript or a motion, and you say prepare a proposed order ruling based on what just happened at the hearing? I think that's a pretty safe use of AI. An attorney must, of course, read that proposed order, that notice of ruling. and to the extent Courts are trying to pressure lawyers not to do that. I I think this law goes in the wrong direction.

Tim Kowal Yeah, would you go that far to say it goes in the wrong direction? I wondered about it.

Jeffrey Lewis I like the part of the law that says, hey, dummy lawyer, read your cases. Okay, read

Tim Kowal Right.

Jeffrey Lewis your briefs. Make sure it's a real case. Okay, I get that. And I get the part about not using a team of 64, sub-agents to prepare for trial. That's that makes total sense. But this broad definition of the use of generative AI, not even in connection with the creation of the brief, just documents that have been submitted to the court. I think it's gonna result in meaningless. certificates and disclosures by lawyers attached to briefs that aren't gonna accomplish the what the courts hope they will.

Tim Kowal Yeah. Well and back to the experiment that I just quickly ran. I don't know that I want to bore our listeners by reading it, but I asked AI to take some of my past appellate briefs, take the standard of review section, tell me what I wrote in the standard of review back in two thousand twenty-three or before, before AI was even in the picture. and then rewrite it using AI. Tell me how AI would have written it. if I had asked it to. And it's the same thing. The purpose of summary judgment is to cut through the party's pleadings in order to determine whether despite the allegations trial is in fact necessary to resolve the dispute, citing al Aguilar versus Atlantic Richfield. and then AI version, an order granting summary judgment is reviewed de novo Aguilar versus Atlantic Richfield. Okay, it's even shorter. I decided to go off and I want to use this, this colorful quote in my standard of review. I guarantee you the reader didn't care about that. Reader, yeah,

Jeffrey Lewis Yeah. Yeah.

Tim Kowal standard of review section, obviously. I mean, sometimes I'm sure the Court of Appeal is skipping those in like a s like a summary judgment appeal.

Jeffrey Lewis Yeah. Of course. Of course. let me cap our discussion with one other aspect of the new law that I don't think is controversial, but and I think it's in line with our show. At least 50% of our show has an official policy of being hostile to arbitration clauses. the new meaning my half. the new law says, Hey, arbitrators don't use AI to make decisions unless you disclose that to the parties. Which is super interesting because the AAA has disclosed their pilot program of construction law resolution using AI with an arbitrator blessing it. This law wouldn't forbid that kind of resolution of disputes because the triple A is advertising it like crazy. they're disclosing it everywhere. But it does raise a question in terms of how much disclosure is necessary in terms of how you're feeding and training the AAA construction law. AI arbitrator, and is there some bias there? It'll be interesting to see what happens with that.

Tim Kowal Yeah, and I wondered also, i is there so this is statutory now, so arbitrators and parties could not agree to the contrary. Would that be deemed unconscionable or against public policy if they agreed that what, I would I think I'd like an AI arbitrator.

Jeffrey Lewis You can you can have an AI arbitrator. Absolutely. It's just gotta be disclosed that if the triple A says, hey, it's not retired Judge Bob, it is C three PO that's gonna decide your dispute. That's absolutely kosher. But yeah, but w who programmed C three PO and under what data? And is it pro construction, general contractor or pro property owner? That's gonna be the real the real question. I'm gonna I'm gonna raise one last question and leave our listeners with. I have cases against in pro pers and they're using ChatGPT like crazy. crazy. This new law kind of puts the parties at a disadvantage in the sense that in pro pers don't have these disclosure requirements or these restrictions. They can use ChatGPT all day long, whereas lawyers have to disclose, etcetera. It's an interesting dichotomy there.

Tim Kowal yeah, well, because it's in the business and professions code, so it's what beyond I guess the court the court could require it. Could the courts require litigants to do so? Or would that fall out of favor with the family violence appellate panel case?

Jeffrey Lewis Yeah, yeah. Yeah, it's all related. It's all a web.

Tim Kowal Yeah. We so we yeah, we've come full circle. All right. Unless you have more, Jeff, that'll wrap us up.

Jeffrey Lewis Yep. next time you hear from us, maybe we'll be at ClioCon or close to ClioCon.

Tim Kowal Yeah, I think we've got we'll get another one in the in the can next week. But yeah, the next time you we actually drop an episode might be after ClioCon. in upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See

Jeffrey Lewis And if any AI was offended by this episode, I apologize profusely.

Tim Kowal All right, see you next time.

Jeffrey Lewis See you next