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CA Appellate Law Podcast - Carl Cecere

From BigLaw to Solo: Carl Cecere on the freedom to take significant cases

Tim Kowal     May 16, 2023

Opioids, takings, terrorism—these are at the core of a few of the cases that appellate attorney Carl Cecere is handling. After deciding to leave BigLaw, Carl found that a combination of Twitter and lots of travel with the purpose of meeting interesting colleagues has fueled a pipeline of provocative cases into his solo practice.

We discuss:

  • Clerking for Mary Lou Robinson, who started her judicial career when women still were not allowed to vote or own property
  • The Purdue opioid case, and the trend of using bankruptcy to shield liability. Reading the BK code textually may reign this in—one good thing about the judicial approach of the current SCOTUS composition.
  • The Sokalow case in which Congress extended the courts’ jurisdiction over terrorism cases by creating a presumption of consent to jurisdiction—a presumption now being taken up by the 2nd Circuit.

Carl Cecere’s LinkedIn profile, and Twitter feed.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Transcript:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts, we'd like to bring our audience of trial and appellate attorney some news and insights that perhaps they can use in their practice. As always, we are most appreciative if you find this podcast helpful, please send it along to a colleague.

Jeff Lewis  0:35
Yeah, if you find an unhelpful send it to your opposing counsel, quick thank you to our podcast sponsor casetext.  Casetext harnesses AI for the very best in legal research documents, summaries and document analysis. Imagine uploading a deposition transcript in the cloud and getting back a summary in minute pick out the latest casetext product co [email protected] For more information and see our show notes are linked to this kind of tie up a casetext.com/calp.

Tim Kowal  1:00 
All right and today we are pleased to welcome to the show Carlos de serie. He is a appellate lawyer who has practiced before the United States Supreme Court and many other circuit courts of appeals. Carl has written for the Harvard Journal of Law and Public Policy SCOTUS blog, the Constitution daily, the blog of the National Constitution Center, Carl is a member of the legal advisory board for the Constitutional Sources Project, a nonpartisan not for profit organization devoted to increasing understanding of United States constitutional history. Carl, you may know is on appellate Twitter as one of the rarefied group of appellate attorneys who follow all sorts of things like the case that the new case about the Dormant Commerce Clause that you were looking at me funny because I had not heard about it and totally digested all the divergent views and doctrines of the Dormant Commerce Clause. But Carl Siri is one such attorney who follows the wins and emerging trends of the United States Supreme Court and the various Circuit Courts of Appeal. We thought it would be great to invite him on the show to talk about his practice, which sounds very interesting to me. Sometimes I'm just, you know, down at, you know, doing the grunt work on money cases. You know, Jeff, you and I work on these money cases, we don't get to work on a lot of interesting public interest cases like Carl does. Carl also clerked for Mary Lou Robinson of the Northern District of Texas. I thought that's another point that we could discuss because Jeff, you and I sometimes get down in the dumps that we don't have clerkship experience. And we'd like to ask those with clerkships. You know why they think there's so much better than us.

Jeff Lewis  2:30 
Hashtag clerk envy. Yes,

Tim Kowal  2:33
Carl, welcome to the podcast. And why do you think you're better than we are?

Carl Cecere  2:36 
Well, thank you so much, Tim, for that really kind introduction. And it's really great to be here. And yeah, we're definitely better. I mean, we've sat there with the judge, we've digested the coffee in the courtroom, we understand what GSA carpet feels like with no shoes on and those late nights preparing for trial. And that makes a huge difference in how we approach cases, compared to mere mortals.

Tim Kowal  3:02
It's those little things that perspective we will never have. Yeah, that's right. That's just carpet under our toes.

Carl Cecere  3:09
The coolest thing about clerking I gotta say is, especially in the older, like, we were in a really old courthouse, it was a 1920s male, really big US postal office that was converted into a court house. And they had these really cool old shelves, like the old lawyer bookcases with the glass. Partition nesters. Yeah, yeah, you pull it out. It's really cool. I just loved it. I just love like looking up the things in the books and opening up the cases. And it's really neat.

Tim Kowal  3:39 
I really do lawyers will ask you what are books? What? Their actual

Carl Cecere  3:43
books at the time, and you actually read them? You pull them out? You have a little stack of them beside you. But yeah, you know, I got I do have to say it really was a great experience. Being a clerk, I think, and I really wish I'd been able to do it at an appellate court level, I tried and I failed. So I'm kind of a mere mortal, as well. But you know, it really is cool, I think to be at a judge's elbow and just work through actually deciding cases. Because, you know, they their perspective is a little bit different than a lawyers, lawyers always trying to lob stuff at the court and wonder what's going to stick and it's nice to be on the other end and be like, well, this is what convinced this particular judge why we ought to go this particular way. And in a hard case, that's kind of an interesting, really insight. And I mean, it was also wonderful to get to know judge Robinson, who was she was she was one of the first women judges in Texas. She joined the bench when she couldn't vote her own property. That's how long she had been on the bench. Oh, you're kidding. Texas. Yeah, that gives you Carter viral bench before that was Texas appellate judge. And so she just seen everything she knew everybody in the you know, in the Texas legal community and had opinions on everything and she was one of the most brilliant people I've ever met was really cool. Just to get to know her and her staff and really get to spend some time doing that.

Tim Kowal  5:02 
Yeah, I can't even imagine what kind of perspective that must have given her as a judge on some of the basic principles of our judicial system and you know, a republican form of government equal rights and everything when she's obviously reached a rarefied state where she's a federal judge, but at that time, still could not vote her own property. He wasn't a

Carl Cecere  5:18 
federal judge when she couldn't. But yeah, she joined the bench when she was 28. And yes, back when the laws in Texas were pretty backwards still. So yeah, she had a really wild perspective. And she was one of the most fearless people I've ever met, because she had busted through every barrier that was placed in front of her. And she had been practicing. You know, when she was a lawyer, she practiced in front of virtually all male judges, and with male co counsel and male opponents. She was she joined the bench. Every one of the people who practice in front of her was a man and it was a whole, uh, you know, it was a whole different scene. It was a whole different perspective. Yeah, to be able to, to assert herself in that environment. And she certainly did. Yeah, it was, it was really cool.

Tim Kowal  6:03 
Yeah, Mary Lou Robinson yet I might have to do some my own background research on her that sounds like just a very illuminating and inspiring person she passed away in January of 2019. Sounds like a very interesting clerkship. Well, let's make sure to bookmark that. And we'll we'll touch on some of that experience. But Carl, would you tell us a little bit more about your practice? What kind of cases you take on? And you know, don't leave out your experience in the US Supreme Court?

Carl Cecere  6:27 
So yeah, I mean, you know, in the Division of appellate world, I kind of think of the pure appellate specialists and the appellate litigators, the ones who spend a lot of time in the trial court kind of preserving issues and doing jury charges and stuff. I'm probably more on the traditional realm. I don't spend a ton of time in trial courts. I'm mainly doing appeals, and I kind of do them all over I do Texas State appeals. I've done appeals in other states. I've done a lot of work at the US at the US Circuit Courts. And I also do work at the US Supreme Court.

Tim Kowal  6:58 
I know you're basically you're based in Dallas, Texas, Carl, correct. And I'm based in Dallas, and you're working in courts outside of Texas, does that get nerve racking? You know, do you have to really go to school and all the local rules and local local rules in the case in the courts that you're working in?

Carl Cecere  7:14
can be a little bit nerve racking. But I've actually found that you know, you're talking about Twitter, the Twitter verses are really phenomenal resource when you're practicing in one jurisdiction some because you can always talk to pretty much any you know, somebody who's practices regularly in that core, whenever you find yourself in a new place. So it's pretty easy to avoid most of the pitfalls that wouldn't appear on the page. It's interesting

Tim Kowal  7:37 
to make use of Twitter as part of your normal course, if you're practicing in a new state and you well, you put out an APB on Twitter, what use hashtag appellate Twitter or what how do you go about it?

Carl Cecere  7:48
Well, I mean, I've gotten a pretty good sense of where people are located just by talking to people over the years. So I usually know you know from in Nevada, I know who to talk to. And if I'm in Arizona, I know how to talk to you. If I'm in some completely random jurisdiction, if I'm in Alaska, I might throw out an APB to people but you know, otherwise, I kind of have a sense of who I know and who I trust in those different places. And it makes a huge difference to have like a human touch in a different place. And I've also like, brought people on as CO counsel or local counsel, and in different cases, as well, because then that can be a great resource for that. And that's one of the reasons I can bring my practice so easily outside of Texas is that I can, you know, meet a lawyer in in New York or in DC or in Oregon, in minutes, and we can be talking about a case, just off the bat, I can just be sitting on my Duff in Dallas, Ian's barbecue, it is best of all worlds that way.

Tim Kowal  8:41
Yeah. All right. Well, I interrupted you. Tell us about some of the cases that you're working on, or cases you have worked on, you know, some formative experiences or war stories, maybe.

Carl Cecere  8:51
So what one of the cases I'm working on that's really interesting right now is the Purdue bankruptcy case. And then Purdue is the producer of Oxycontin, right, and one of the real driving forces behind the the opioid addiction in the United States. And as it turns out, in other places in the world, as well. So I actually represent a group of Canadian municipalities and First Nations, which are, you know, the equivalent of native tribes in the United States that are challenging the American bankruptcy of Purdue. And what it means is that a case is interesting is not only because of the gigantic size of the harm that Purdue did, but also because, you know, one of the real trends right now in big mass torts cases, is to try and use the bankruptcy laws to shield people who don't go into bankruptcy. And that's been a big battle. We've been fighting in a number of different jurisdictions and we're definitely doing that in in Purdue because Purdue is owned by the Sackler family. Purdue is a name they just purchased from somebody else when they bought the company, and the Sackler family tried to in something in their bankruptcy plan in the pre bankruptcy plan that would shield them from any liability from anyone ever asserting a claim against them for opioid related harms, even though the Sackler family made all the decisions. What Yeah, which is normally

Jeff Lewis  10:13
fine in bankruptcy when you have a debtor who's fully disclosing and is subject to bankruptcy rules protect somebody who's essentially a stranger to the process. Tim, you and I covered on this in this podcast, an appeal involving a settlement that ultimately was rejected. Carl, are you involved in that litigation in terms of a settlement that was rejected and then was bouncing back and forth to the Court of Appeal in the bankruptcy court or by confusing cases,

Carl Cecere  10:37 
we have not been offered, nor have we been able to have an opportunity for a settlement. And okay, in Purdue, the state claimants in the case settled during the course of our appeal. But now, the only appellants are a papeles, we won in the District Court. So Purdue is now pursuing this on appeal on the Second Circuit, the only APA leaves in the case R Us and the US Trustee. So we have not had the opportunity to sell it would be great if we did. But that's part of the problem, too, is that you're right, sometimes complete strangers to the bankruptcy are given some kind of protection, because they don't want people to interrupt the process of, you know, distributing funds and things like that. But the Sacklers are unique in that they basically drove this company into bankruptcy, they shipped a bunch of the assets from Purdue offshore into accounts in the key and the Canary Islands, you don't even know what that is basically beyond the reach of any creditor and then just sort of said, well, here's what you're left with. We want immunity for this as well. So it's a really, really strange and unique set of circumstances, we think, really an abuse of the bankruptcy process. And it's and it's kind of a piece of, of cases that are going on around the country, you know, you've been following it at all, Johnson and Johnson tried to spin off unit and bring it into bankruptcy so that it which is one of the biggest and most solvent, long standing companies in the world, because they outside of bankruptcy, but then sheds liability for talc products into bankruptcy and then kind of cabin those losses. And then we've seen three of them with they've tried to use a bankruptcy state to prevent litigation against them over there.

Tim Kowal  12:14 
Those are the trends that you referred to of large companies trying to use the bankruptcy protections as a shield for their for liability. Now, in following this trend, do you follow bankruptcy law? Is this one of your areas of practice? Are you able to just come up to speed when you got involved in this case,

Carl Cecere  12:29
I've been lucky enough to just experience a number of bankruptcy related appeals over time. So I was able to jump into Purdue pretty well. And it is not an area of the law, you want to approach kind of randomly, because there's so much procedure to understand. And you know, it's kind of like there's a bankruptcy overlay for every element that you'd have in a normal appeal. In fact, there are, you know, there are even bankruptcy specific mootness doctrines that aren't even really mootness at all, but they kind of float around when there's also kind of an attitude amongst the courts of appeals. They don't love to touch bankruptcy cases, because of their complexity. And they're always kind of afraid of doing something wrong. So bankruptcy law has kind of been allowed to develop without a lot of oversight from the appellate courts, and even from the from courts. So there's a lot of things that you do in bankruptcy law. And it's like you read the code, and like, that's not really in the code. And then the bankruptcy lawyers will just tell you what, that's just how we do it and like, but it's not really in the bankruptcy code. They'll be like, oh, yeah, like, I don't know, you know, what, the new Supreme Court majority, we're gonna go back to reading the code a lot more than we used. And I actually think that's going to be a good thing, although I think it'll probably, you know, in things like this, you know, third party releases or bankruptcy spin offs, it's probably at least some reforms, the bankruptcy code when the court actually does approach these things, because it really has drifted a little bit away from the text.

Jeff Lewis  13:51 
Yeah, you know, a bankruptcy courts are where the equitable powers of a court seem to have their greatest influence more so than civil or family or probate equity in terms of the debtor and their creditors and settlement. And it's like the Wild West. And I don't know if you've been involved in family law appeals, but it's kind of like the Wild West in terms of judges making rulings here and there. And I do concur that it is time for the pendulum to swing, swing back a little bit.

Carl Cecere  14:15 
Yeah, I really do hope it will happen. And I really hope that the court I mean, we'll see, you know, there's a decent chance that the Purdue case ends up before the Supreme Court one way or the other, depending on how it comes out. And, you know, I would assume j&j is trying to do their shenanigans again. So it'd be nice if one of these cases that are going around right now ended up in the courts, the court could kind of say, Yeah, we're gonna read the court burn and read the code a little differently than we have in the past. And they'll get that message, I think, yeah. Now, Carl,

Tim Kowal  14:43 
how do you get brought into these kinds of cases involving national significance involving players with pockets billions of dollars deep? These are waters that a lot of us would like to splash in from time to time, but you know, that's it's high profile cases, and sometimes other public interest for Whether they're high profile or not, sometimes there is some ambiguity about how the attorney is supposed to get his pay day.

Carl Cecere  15:06
Yeah, I mean, I think it really helps me a lot that I'm a solo. And if a case that comes in, that's a little strange, I can, you know, have a meeting of the partners and come to a decision really quickly about whether or not to take something down, a lot of other people might not, might not touch. So I think the basic flexibility comes from there. And it's allowed me to do a lot of things that I wouldn't been able to do in a different environment, I think, you know,

Tim Kowal  15:30
but but on the other line, when you're the solo, sometimes you don't get approached by the billion dollar companies, or buy the cases that have, you know, hundreds of millions at stake.

Carl Cecere  15:40 
That is true. And, you know, it can be kind of a tricky bit to get in front of people and to kind of establish your bonafides, when you don't have a name that people recognize, but what I do a lot of the time, I mean, it's kind of my basic practice development tip is, I travel a lot, I go to where the cases are, you know, I sit in a great jurisdiction for appellate work, you know, they're some of the best appellate lawyers in the world are right here in Texas. And we've got a really well developed appellate bar, so that we have that, and I can take advantage of that. But in developing the practice the way I wanted it to, since I kind of had a stable base to build on, I was like, well, let's go get some other cases. And what I've always done is I've just spent, you know, several weeks a year in New York, or in DC, or in LA, just getting to know lawyers and getting them to know that I'm out there. And again, you know, part of that is from people me on Twitter, I mean, people approach Twitter in different ways. But to me, it's been a phenomenal practice development tool, because I meet people on Twitter, and then I go meet them in real life. And then you know, from there, it's pretty easy to start working on cases together.

Tim Kowal  16:48 
That's interesting. So that's kind of a nice, hybrid, classical way of, of networking. And the new technological way of networking is, you know, just live on Twitter, you know, sending tweets out and having a whole bunch of networking friends that you've never met before you actually go out and what attended, you seek out large layer legal conferences, how do you make a point to meet the people that you meet online,

Carl Cecere  17:10 
kind of all of the above, there are some conferences I really like to go to every year. And I'm, you know, after you go a few times, you kind of know a few people and you find out the ways to meet the right, the right people. And but part of what I like to do is I really like to go and just spend a week in town, and just go and meet whoever I can, I mean, people my level people who are more senior to me, people who might have work, people, like organizations or trade associations that, you know, might send me a little bit of work, I'll just do it for a week, you know, just nonstop. I mean, an ideal day is to go breakfast, coffee, lunch, coffee, dinner, drinks, you know, with different people, and just meet as many people as I can. And I, I'm not super targeted about how I do it. I just kind of meet whomever is interesting, and what I liked with their practices about and we figure out ways we can, we can collaborate. And you know, it doesn't often happen, but frequently happens that some really cool cases come out of those of those meetings.

Tim Kowal  18:11
Yeah, you came from the world of big law. And now you're a solo. Do you still draw on the context and on the context and cache? I might say from your time working in big law? Yeah,

Carl Cecere  18:23 
yeah. I was really blessed with the opportunity to work at Aiken GM at a really awesome time in Aiken gumps development, because they had just hired Tom Goldstein. He runs SCOTUS blog. He recently retired from the practices Supreme Court law. But he was amazing. And he was also extremely democratic. He was really willing and able and, you know, offered to work with everybody in the firm who wanted to work on Supreme Court cases. And I bugged him weekly, to work on things. So he gave me several cases. In fact, one of the cases that I got to work on my first Supreme Court case was Heller, counsel to the District of Columbia and Heller. So I got my feet wet really fast. And my relationship with Tom and the people at Thomas firm, have continued ever since then. And that was my foothold into Supreme Court practice. So from from Tom, I met a lot of other people. He introduced me to people he got me in on cases that got me involved in plaintiffs bars and securities bars all over the case all over the country. So just from Tom, and Tom's wife, and Kevin Russell was his partner and his wife is Amy, how just meeting them. There's just been open doors all over the place. And I frequently still get calls from people that I can go on for, you know, they don't have their own appellate apartment in Dallas. So me I get calls on appeals from them quite often. And it's been a tremendous resource. I mean, it's, it's great, you know, and I tell people, you know, go to big firms that they should really invest in the community of people that they have. They're not only while they're there, but because when they leave, that doesn't get community that doesn't go away. You know, if you leave on good terms with people and you keep up with them. I mean, it can be really huge resources for you

Tim Kowal  20:01 
never forever. Have you spotted any trends in the world and culture a big law in the last few years and things changed as compared to the time when you are at Akin Gump?

Carl Cecere  20:10 
I think the practice of law is completely transformed. From the time I was practicing in big law. I mean, how long ago was that? So I was I think I left in like 2011 2012.

Tim Kowal  20:24
Okay, so we're talking about last last 10 years, you think there's been a seismic change and big loss?

Carl Cecere  20:28
seismic shift? I mean, I think not just one, I think you can look at several different ones. I mean, we had libraries, you know, we had,

Tim Kowal  20:36 
what are the Cloud libraries now and the work stalls?

Carl Cecere  20:39 
Yeah. And I actually went to a can go moved offices and didn't bring their library with them. They didn't bring their files with them. So now they have these, like, really random collaborative spaces in the middle of the always because they don't quite know what to put the place where you would put those sorts of things like have a chat JpT portal? Yeah. But you know, I think that was a big shift was that, you know, number one, just the move to a paperless office was a huge change. And, you know, not doing huge document reviews is kind of like the basis of an Associates life, that's a big change. I think now, we're experiencing a lot of opportunities to compete against big law, because it's gotten so expensive, you know, you're talking about, for an average partner at a law firm to be billing $2,000 an hour, not even like the best in their field, just like a guy, that's pretty easy to compete with on a numbers basis, if you're pretty good. And so it's created a lot of room, I think, to grow underneath the big low model, and sin to say, well, you know, you don't, you probably don't need, that guy is going to cost like, twice, three times, four times as much as me. And I'll do as good a job if not better. And that's been another thing that's been really great about Twitter is that, you know, I put my briefs up there, and people will talk about them. And I've gained a reputation as a good as a good writer, and as a good advocate through that. And so I've got a pretty decent reputation around the country, that when I meet with people, like if you're Carl, you, you know, you're not some random name, or known quantity, and you're associated with quality, which I think is really cool. And that was surprising. That was not what I intended to do. But it turned out to be really great.

Jeff Lewis  22:21 
Let's talk about brief writing for a second, as part of my extensive due diligence to prepare for today's interview, I went back two days on Twitter. And I love this post. He say the main character of your opening brief, should be the court below. And the main character of your reply brief, should be your opponent. That's fantastic. Can you expand on that?

Carl Cecere  22:40 
Well, as you can tell one thing, mostly represented palettes. That's usually the ones that hire the lawyer outside the firm, when they won, and everything everybody's happy, then they'll usually take care of it themselves. But that's part of it. And yeah, I mean, I really do believe that I really do believe that not, you know, you really should engage with if you're lucky enough to have a pinion that you are appealing. And not just some generic court order that doesn't describe the reasons why that's hard for me to engage with. Because you want to say not only why you're right, but you want to put it in a context of like, I'm considering the arguments against my position. I'm considering what the trial court said, and I'm not trying to paint the trial court as a bad guy. I'm just trying to say this is what led the trial court to make its decision rejecting us. And I just don't think that that's right. You know, I think that's really important thing to do. I think that's sometimes something that a lot of appellate lawyers are reluctant to do. They don't want to seem mean, or not nice to the trial court. So they try to pretend that the trial court's decision never really like happened. And it makes for this very abstract and hard to follow Legal Brief, you know, you want to talk about what people did and what they said and what, why they said it and why what they said wasn't the right thing, and not just kind of floating around above it, try not to create any kind of controversy. And then, you know, that shifts when you have a brief from the other side, right? Because like you have with the trial court, did you deal with that? You say what they did? And then the Pelleas reaction to what you did is really important. I mean, do they fall back from what the trial court did that's significant if they're not willing to fully defend exactly what the trial court said? Are they expanding upon it? Are they fair? Are they finding a reason to dance around what the trial court did? And I'm gonna make sure to point that out every time it really pushed them on that and say, and then, you know, the things that they don't address in my brief, I'm gonna say, have they conceded that I mean, that's they don't contest that this happened. So it sort of fills out and like, it's sort of like every time they cede ground, I want to make sure that I cover the ground that they've seen, and I want to tell them what to do. And again, it's not really to be make them the bad guy. I mean, I guess the opposing counsel is kind of the bad guy, but I don't Trying to make them seem stupid. I just tried to say like, they're not fighting me here. So they're sort of conceding this and score it wrong here. They're not even comfortable defending with the trial court did whenever you're in federal district court, and those district court's opinions are going to be, you know, put into the federal register into the federal supplement. They're kind of the law. So you know, the Court of Appeals doesn't want the bad law to be sitting out there. And then when you go to the next level, whenever you're in front of a Supreme Court, whether it's a state supreme court or the US Supreme Court, they don't want bad law out there on the books. So when the other side won't defend what the trial court did, you're almost 60 70% way that reversal. Right? And it's like, they won't defend it. They're trying to create some new rationale, it's like, well, that means the law on the books is not right. You know, and that's, that's a problem.

Jeff Lewis  25:45 
Yeah. Interesting. So if the main character of the opening brief is the court below main character, your primary care opponent, when you represent the winner, the APA Li, or California will respond on it is the main character of the deferential standard of review.

Carl Cecere  25:59 
Now, it probably still make it the core, and the lower court would still probably say, oh, that judge was so good. And he was so smart. And he really well, he did a great job. And he did everything that that nasty appellant, the saying about those guys is it's just not fair is not justified and does not support it. You know, it's like, that's what I like to do. I definitely like to lean on the standard review, to the extent I can, as well. But to me, brief reading is always about stearic. Storytelling. So it's about what real people do in the real world. And it's not about abstract principles of

Jeff Lewis  26:31 
whatever. Have you used any of the products that are coming out there in terms of AI, it's just like clear, brief and type laws and other LP with brief writing.

Carl Cecere  26:40 
I have not really gotten into that yet. I've played around a little with chat GPT enough to know that it's going to be a really powerful tool, but maybe not yet. But I do think that AI is going to make a big difference, especially for small, firm lawyers, and especially for lawyers who work on the plaintiff side, because, you know, it's going to be a real challenge to the billable hour at the end of the day. And so the big law model, which is built on building a ton of hours on every little thing? Well, I think that AI is showing the great capability to do a lot of what a junior associate once did. And that means that a solo can level up and big law firms going to be real top heavy in their billing and plaintiff when you don't necessarily have to tie yourself to the billable hour like me, you know, I do a mix of billable work and contingency work. I mean, it's a real advantage to be able to play against people were spending hundreds and hundreds of hours doing the same thing that you're doing for a lot less money, you know, time. Interesting.

Tim Kowal  27:40
Yeah, Carl, I had one other question before we move completely off the topic, brief writing and you mentioned about I think we adjust segued into advocacy in the Supreme Court, whether it's a Federal Supreme Court or a state Supreme Court, these are courts of last resort. And really, they're not courts of error in the sense that they don't care about the parties, right. They only care about making sure that the precedent in that jurisdiction is is uniform, and it espouses the doctrine that the at that particular Supreme Court prefers. And so I wonder if the brief writing and approach to advocacy changes, in your view when you are appearing in front of a Supreme Court, which is not a court of error? Because, you know, again, your does the storytelling change, because, again, the Supreme Court, you can't count on the Supreme Court carrying but if a particular plaintiff was aggrieved, you know, for example, if you'd like a neighbor dispute, a tree view dispute or something, the Supreme Court is not there to tell you whether you have a right to a tree, it's only there to tell you whether 330 million people across the country have a right to a tree. So it's a different type of focus of inquiry.

Carl Cecere  28:43 
I think it's definitely a mindset that you have to approach these kinds of cases with when you're in front of the Supreme Court or any state court of last resort. Because of that, you're right, you know, you have to approach it from let's talk about what the law is. And let's talk about whether it's right or it's headed in the right direction. I mean, the law becomes more of a character, rather than like a prop, you know, that you apply and put here. This is how this is the law. When you're in front of those discretionary courts of discretionary review, you got to do a lot more of that. But at the same time, I think it's a little bit overplayed to say that they don't care about the facts. I mean, they're still human beings. And there's no secret in the Supreme Court bar that if they're going to, you know, if an advocacy organization wants to present an issue to the court, they're going to find a case with sympathetic facts, they're not going to just take some random case with with the courts gonna be like, Well, I just don't really care if they win or lose. They try to push the justices emotional buttons because they have emotional buttons that still can be pushed. And so I think that's kind of an overlooked element of that level of advocacy is you do need to think about not assaulting them by focusing too much on the fast living like this just is error correction. You got to present it to them in a way that isn't just your error correction, but you also need to present it with a human face in the human touch and say real people are being affected by this, I think it creates a lot of new opportunities for advocacy. But it also kind of narrows the range of advocacy that you can have, because especially the US Supreme Court, you got nine people who have a very set map that they apply to the law, you know, their views on a lot of things are fixed and not in a closed minded way. They've seen issues like this, you know, in one way or another, they touch 8000 petitions a year and decide whether to take a case. They know what they're interested in, they know what they're not interested in. They know what their view of the law is in any number of different areas. And so you have to accommodate that. And some of the justices are just not going to be winnable on your issue. Sometimes, you know, you will know that. Well, Justice Gorsuch is not a get on this case, you know, maybe justice Cavanaugh is again, but not justice Gorsuch, he's written on it. He's talked about it, you know, you just know he's close. So you're searching for a kind of a different thing than you are in a appellate panel and the panel panel, you don't even know who you're going to get, you don't know what is going to happen. But with the Supreme Court, you got nine people, you know exactly where you're going to get, you have only limited shots, to shoot with them. And you're like, well, or maybe these two or three avenues to a wind. But you've got to go through very nine people's very fixed views. Yeah. So in a way, it's a lot more fun to be at the court of appeals level, because the opportunities for advocacy are kind of broader, you have to be a lot more volume or focus when yours is pretty important.

Tim Kowal  31:31
Yeah. And speaking of that, the fact that most of us attorneys, and especially those who pay attention, can get a pretty good sense of whether they can count the votes on their case and the US Supreme Court. And maybe that would be a segue to a question I wanted to ask you about Judge Sutton of the Fifth Circuit, has said that litigants are considered directing their constitutional challenges in state courts using state constitutional provisions, suggesting that there may be more playing the joints. And you might not know that, you know, maybe they use similar language as used in the federal constitution. But the Supreme Court of that state can is that liberty to interpret it differently, then has the United States Supreme Court, or you know, Judge Sutton is a federal judge? And, you know, the the feds are always trying to find a way to get us to file in state court instead of federal court, so that you could take that cynical view as well.

Carl Cecere  32:18 
Well, you know, I think Judge Sutton's. Right. And I think he, you know, he wrote a whole book on state constitutions.

Tim Kowal  32:24 
Yeah, 50 imperfect solutions, I think it was called. Yeah, and

Carl Cecere  32:27 
it seems like there are a lot of, you know, the state tradition of drafting constitutions, they seemed like they borrowed a lot from each other. So you can learn a little bit about the law in one state and apply it to the state constitutions and other state. And I think he's totally right. A lot of you know, for example, just not I don't want to take a controversial topic, just because but it's useful. You know, in the abortion context, even if Dobbs settles a certain question on the federal level, there are a lot of protections under state constitutions that might be interpreted to cover the same issue. There are a lot of constitutions that explicitly protect a right of privacy, you know, in one form or another. And so you're, you're really free to make a lot of arguments about abortion, that you that are now foreclosed in the federal court, and you can do in the state court, you can also pass a law in the state court, Lina, that's gonna apply to state court a lot easier, then you're gonna get anything through through Congress. So you also inform, you know, you can also change the law you're applying that's a big deal. We had a case that I thought really illustrate the distinction really well, I was involved in a case early in my career, where we were challenging the state funding mechanism for funding public schools. And there are a lot of state constitutions that protect the right of public education as a constitutional right under the state constitution. And so the law in the state courts has gone a completely different direction, the federal courts, because the federal court said, you just can't say that you're denied a right of equal protection under the federal constitution, just because you're a poor school district gets way less money than the rich school district. But you can under the state constitution, that's because the the state constitutions provide a baseline. Right, you know, it's a, it's not just a kind of an abstract sense of equality. It is you have a right to an adequate education under the state constitution. And that changes a great deal about how you litigate those kinds of cases. And there's a whole body of case law that talks about how the federal and state approaches diverge.

Tim Kowal  34:24 
Yeah. And I misspoke a moment ago, Chief Judge Jeffrey Sutton as Chief Judge of the sixth district.

Carl Cecere  34:30
I didn't want to step on up. Yeah.

Tim Kowal  34:32 
Thank you, Jeff. Should we talk about oral argument in briefing tips or you want to talk about the Ahsoka law case? Yes, choice, Carl.

Carl Cecere  34:41
Well, your question,

Tim Kowal  34:42
you got this case in the Second Circuit, arising out of the PLOS support of terrorism in the Ahsoka law case, maybe give our audience a little bit of a primer on that.

Carl Cecere  34:52 
So I don't represent the parties. In this case. I've just written a series of amicus briefs. It's just one area of focus that I You have developed is anti terrorism cases, civil cases, against sponsors of terror banks, you know, PLO, Iran. I've done a number of different cases involving those kinds of issues. It's just something that I find interesting. It compels me, I really liked the people who tend to be involved in those cases. So I've got to know a lot of them.

Tim Kowal  35:19
The attorneys, I assume you mean, yeah. The attorney well, and

Carl Cecere  35:22
the clients? I mean, I got to know some of that people personally involved in these things.

Tim Kowal  35:26 
What is this case about? I wasn't aware of the Tokelau case until I was reading up on your work.

Carl Cecere  35:30
So the Socolow case has been a really interesting case has been going on, there's always been a challenge in getting jurisdiction over warned sponsors of terror in United States courts, in particular, the PLO, the Palestine Liberation Organization, the PA, the Palestinian Authority, which governs Palestine, it's really hard to, to bring them into court because they don't fit necessarily in all the boxes, you know, they don't necessarily fit under the FISA, the Foreign Sovereign Immunities Act. And so it's kind of a challenge to get jurisdiction over them. And then as the Supreme Court got more interested in and kind of curtail the options for personal jurisdiction, it's become a real challenge to get these people in court. So the Socolow case arises from a kind of back and forth that's been going on between the Supreme Court, second circuit and Congress about how to deal with this problem. It used to be that getting jurisdiction over the Palestinian Authority was fine under very loose doctrines of personal jurisdiction, you know, the old International Shoe kind of framework applied to foreign sovereigns. But then when the Supreme Court started clamping down on personal jurisdiction, that became non available, so the Second Circuit started dismissing cases against the policy authority. And we've got a couple of different ones involved. Congress responded by passing something called the anti terrorism clarification act, this is back in 2018. That made it possible to get jurisdiction over the PLO in the PA, if they either number one, continue to sponsor acts of terrorism or give payments to terrorists sponsors, because you know, the PA pays people martyrs benefits and things like that, or people who are in jail for committing acts of terrorism, sometimes they get money. And so we said, cease doing that, if you want to avoid jurisdiction or cease contacts in the state of New York. And you know, when the PA has a diplomatic mission at the UN.

Tim Kowal  37:29 
So this was just so I understand that the personal jurisdiction question, or the scope of personal jurisdiction was expanded by congressional legislation.

Carl Cecere  37:38
Yeah, they passed it. They couldn't change the the constitutional limitations of jurisdiction under specific or general jurisdiction. But what they did was they moved into jurisdiction by consent. They said, basically, if you're going to continue to do things you will be deemed to have consented to jurisdiction the United States.

Tim Kowal  37:53 
Oh, interesting. So the legislation created a presumption of consent,

Carl Cecere  37:57 
yes. And said, you know, if you're gonna come to New York, and you're going to raise money in New York, and you're going to do a bunch of fundraisers there, and you're going to have offices there, then you're going to be deemed to have consented jurisdiction.

Tim Kowal  38:09 
That seems like an interesting, I don't mean this as a pejorative what I say and run around, but a project put out a way to solve that issue. Yeah, a clever way to solve that issue of the limits of personal jurisdiction, and to make a statutory presumption of consent to the jurisdiction of the court. So how is that playing out? Is that part of what's at issue in the Tokelau case?

Carl Cecere  38:29 
Yeah, they rejected the initial version of that statute. That was the initiative. So the Second Circuit said the ATCA was ineffective for some very creative reasons. So then Congress went back and created a new law, and it's called the promoted Security and Justice for Victims of Terrorism Act, and that was 2019. And that was actually passed. The first time we took the Socolow case to the Supreme Court because we appealed the dismissal of our case from the second circuit to the Supreme Court. And during that time, Senator Grassley was my client. He passed the PSJ, VTA, that kind of it's very technical about exactly why it didn't work. We've kind of passed that act to overcome the second circuit's objections. We went back to the Second Circuit. The second circuit rejected us again, saying that you can't create conditions for personal jurisdiction and in manufacture deemed consent, although we do it in other kinds of circumstances. And that's where we are now is was at the district court level. And I'm so glad they said that the PSG VTA didn't work the way it was supposed to. It was unconstitutional. Now we're the Second Circuit. We're going to try and win there and then we'll probably be headed back to the Supreme Court again.

Tim Kowal  39:39
How did you? How did you come to represent Chuck Grassley?

Carl Cecere  39:43 
It's another Twitter connection. John Elwood is a big supreme court lawyer and I've met him through Twitter and he recommended me to the people who were working on that case, they had seen that I've done some anti terrorism work and then I'm going to meet to represent them in this Amicus group. And then so we represent about 20 or 30 lawmakers, depending upon the particular jurisdiction the particular brief, and then file a bunch of different briefs in these kinds of cases, because there's a parallel series of cases that are going on all over the place in the DC Circuit. And in the second circuit as well. This has been really interesting.

Tim Kowal  40:17
But I think maybe to close this out, I wonder if you have any predictions for the rest of this Supreme Court term? I know a few months back, you had written a Supreme Court preview of the term. And so now, you know, we're through much of it. But I wonder if you have any predictions for the fireworks that were that are in store for us at the end of the term?

Carl Cecere  40:34
Well, I mean, I think that the most of the politically charged cases coming from this term, we kind of know the outcome of but I think the real story of the supreme court right now is the slowness of its pace of decisions. You know, there are something like I want to say 70 cases outstanding, that don't have opinions yet. And that's way out of line, when you're considering that in the next two months, the court is going to go on recess, and have decided to all of those cases. And this is a huge workload backlog that's gone on that's really unprecedented with the court. And I mean, it's got me wondering whether or not there's a kind of personal Fallout between the justices over the dobs leak that leak of the Dobbs opinion, and whether that's affected their ability to to, you know, circulate drafts and feel comfortable sending things to each other whether something's going to end up on the news. I don't know if that's you, I don't really know if that's the case. I really hope that's not the case. I'm hoping it's just some kind of other factor. It could be that the shadow docket, which is the kind of supreme pre merits briefing has become much more extensive. And there been a lot of emergency applications could be that could be those kinds of distractions. But I do worry that the dobs league kind of affected the interpersonal relationships with the justices and their trust, that's kind of integral for their decision making process.

Tim Kowal  41:46 
You mentioned the shadow docket. And I was hoping I see that that later this month. In May 2023. There's going to be a book released by the University of Austin, Professor Stephen Vladeck, the shadow docket how the Supreme Court uses stealth rulings to amass power and undermine the Republic, I know that there's been a lot of talk about that anticipation of you know, what that's going to talk about, I don't know if, if you have any opinions on Shadow DACA. And how that's been used?

Carl Cecere  42:11
Well, first of all, everybody should buy Steve's book, Steve Vladeck. He's a professor at UT. He's phenomenal Supreme Court scholar. And he's actually also an advocate before the court in a number of occasions. He's a, he's a national security expert. So he does a lot of cases involving servicemen. And he raises really interesting points about the problems with cases doing cases on the shadow docket, I tend to concur that like it's becoming a problem, because there have been a lot of case, you know, with the changes in the judiciary over the past few years, where you have a lot of very aggressive judges, on the certainly on the conservative side, but also on the liberal side to who are really willing to, you know, take a ruling and unclear declare an entire, you know, agency unconstitutional or overturn portions of the Obamacare eight, you know, the Affordable Care Act in a in a single swoop or, you know, overturn executive actions as they come up with the student loans or the Muslim ban, when it was happening under Trump, that's pushing a lot of work to an area of the Supreme Court's docket, that it's not really well equipped to handle because you, you try and get an emergency stay. And that state is often determinative of the merits of the of the case, because one of the elements you've got to establish is a likelihood of succeeding on the merits to obtain the stay. Right. So that single determination, which is just one factor in one of one element in the state obligation, which is often written over a weekend, you know, that becomes essentially the only opportunity the advocates really have to present their case to the court in what would otherwise be something that would take a process of months, involve lots of em, McKee weighing in and giving their views and really taking the opportunity to really make a deliberative decision. Now you're doing these things really fast, in weeks, with a tremendous time pressure, that really aren't getting the best product out. So I don't think it's really great. I don't think it's entirely the Supreme Court's fault, because a lot of it is really related to changes in the judiciary and the kinds of aggressiveness that they're willing to issue in nationwide injunctions. But I do think that the Supreme Court's gonna have to respond in some way and say, Well, you know, we're not going to maybe maybe we're not going to make merits determinations at this stage. Maybe we'll just stay the litigation. And then, you know, let it go to the merits, but not really weigh in so heavily at the, at the shadow darkened stage and really is becoming a shadow doctors. It's not conducted in the full view of the public. Yeah.

Tim Kowal  44:38
Well, yeah, very interesting. I think there's a lot of lot of topics we could continue to explore. But I did want to point out that you pronounce ama key. Does that the proper pronunciation?

Carl Cecere  44:47
I've heard it a million different ways. I don't think there's any standard definition. I've picked the one that I think is the least weird and mucky and Amicus, I guess is one that you can say but I just find it really unnatural.

Tim Kowal  45:00
Mic us.

Carl Cecere  45:01 
Does that mean is there like in many different ways of saying Amicus as there are people saying it? Yeah. And none of them's actually pertained to the original Latin I'm told. I don't even know what that that actually is. So I

Tim Kowal  45:13
like how you put it, you know, it sounds least weird to me is one of my own, personal Maxim's about about writing is that if it sounds weird that it's not English.

Carl Cecere  45:23 
Yeah, I feel like my general approach to, you know, briefing and arguing in front of judges is I want to create as little friction as possible, because I know that the process of reading briefing and making decisions is not a pleasant one. It's not between my brief and a nice juicy novel, they're not going to pick mine up just for fun. So I really try and not irritate them, you know, I try to irritate them as little as possible. Well help them get through it as easily as they can. You know,

Tim Kowal  45:52
Matt know Jeff has a few closing questions for you about how to make your your writing the least conspicuous. Least unintentionally conspicuous. Great.

Jeff Lewis  46:02
All right, Carl, this is the time for our patented copyrighted segment of the show that answers the most pressing questions that Beck's appellate nerds around the world the dreaded lightning round, short response, or required one sentence one word. Let's see how many of these we can get through thought preference century schoolbook girl monde or something else?

Carl Cecere  46:23 
Century btw century? Not century school?

Jeff Lewis  46:27
Yeah. All right. After a period, do you do one space or you do? Okay, fantastic. pleated when writing in a brief pleated All right. Headings. Let's put the Supreme Court aside. When you're in those other courts, when you're in a brief and your major argument headings, all caps, initial caps are set in case since case, fantastic left justify, again, ignoring the Supreme Court left justify or for justify

Carl Cecere  46:58
full justified by appreciate the other way as well.

Jeff Lewis  47:02
All right, Tim, to hit them all. Was there one, you had a pet peeve on there? Oh, yeah.

Carl Cecere  47:06
I hate I hate gehrmann.

Tim Kowal  47:09
You just had to get that last big is

Carl Cecere  47:12
it just the absolute worst not and I have to say it because I read a brief, I had to respond to a brief that was under page limits. And then it was 12 point gehrmann and 10 point gehrmann footnotes 10 point gehrmann footnotes cannot be read without a magnifying glass. This is like this teeny tiny little thin font. You know,

Jeff Lewis  47:31
they Jason and I were putting a motion together to file the state court of appeal. And we had a co counsel Ryan Campbell and friend editor include Garamond. And Jason, my paralegal comes to my office. And she said he said, Jeff, do we have to file this with Garamond? I said, you do what Fran says. So Fran, if you're listening to this podcast,

Tim Kowal  47:50
I think you're gonna retainer. The deal breaker. Yeah.

Carl Cecere  47:54
All right, Carl. Well, you should ask one other question, by the way, Word or Word Perfect. And the answer is word. And I have a real beef about that too. Because once I got, I had a fifth circuit, emergency motions deadline of like four o'clock, and I received something in WordPerfect at 330. And they're like, just flip it and file it. And I was like, I don't have word perfect for my machine. So I had to find I'm searching around law firm trying to find a computer that has WordPerfect on it. And it created panic that makes me hate WordPerfect to this day,

Tim Kowal  48:25 
I wasn't even aware WordPerfect was still a thing. Yeah, I guess here it is. It's still they still got a website and everything. Yeah.

Jeff Lewis  48:33 
All right. Well, regulations, not only did you survive the dreaded lightning round, I think you exceeded it and added a new question, I guess. Putting Word Perfect into the rotation.

Tim Kowal  48:43 
Yeah, how do you feel about Garamond?

Carl Cecere  48:46
I think we've established that and I don't prefer you didn't say it again, because I might have a little PTSD.

Tim Kowal  48:53
Right. All right. Well, that's gonna wrap up this episode, we want to thank again, Carl Siri, for joining us. And we also want to thank again, our sponsor case text for sponsoring the podcast each week when we include links to the cases we discuss, we use casetext for those links and listeners of the podcast can find a 25% discount available to them for the classic version of casetext if they sign up at casetext.com/calp. That's casetext.com/calp. Yep. And if you have

Jeff Lewis  49:21
suggestions for future episodes, or if you have a complaint, but complaints in Garamond, and in WordPerfect format, and send them to info at Cal podcast.com. And in our upcoming episode, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  49:35
All right, see you next time.

Announcer  49:37
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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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

"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

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

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

"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

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

— H.L. Mencken

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

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