How Lisa McCall Appeals Family Law Orders—and Gets Them Published

Lisa McCall I'm always thinking about the appeal. And I think that is not something that most trial lawyers are doing. I think the really good ones are, but I think as they're getting closer to the end of a trial and it's not going well, that's when they're gonna call me panicked, going, I don't think this is going the right way.

Announcer 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 Cole and Jeff Lewis.

Jeff 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.

Jeff Lewis Yeah, if you find it unhelpful, go ahead and send it to your opposing counsel.

Tim Kowal Jeff, before we get started, we had a note from one of our listeners. I think we had expressed back in March that we didn't know what a judgment roll was. And as a shout-out reward to our listeners, we wanted to voice that comment. Maybe we'd get some insight on what a judgment roll is.

Jeff Lewis Yeah, sure. So Megan Taylor wrote in after our March 3rd episode, and in that episode, we talked about the term judgment roll. I think it was in the context of someone designated the record instead of a clerk's transcript, instead of an appendix. I think they had tried to designate a judgment roll, and neither of us knew what that meant. And Megan knew exactly what it meant because she wrote in, she lived it, she had a family law case before Judge Carmen Luehe in Orange County, and the judge used that very term when questioning the validity of her judgment. Megan did her own research at the law library and learned that a court reviewing a judgment on the judgment roll is limited to the documents in the official court record, not the behind-the-scenes communications. So, Megan, thank you for writing in and letting us know — it's exactly the kind of feedback we love. And if you have a question, a story, or even a correction, if I got something wrong, Tim never gets it wrong. But if I get something wrong, go ahead and drop us a line at info@calpodcast.com, and we might just mention you and embarrass you in a future episode.

Tim Kowal Okay, and with that, we want to welcome our guest today, Lisa McCall. Lisa is a solo practitioner practicing in Orange County. She's a dual certified appellate law specialist and family law specialist, one of a small group of approximately 12 in the entire state of California. Lisa is also a fellow of the American Academy of Matrimonial Lawyers. Lisa's 18-year practice has consisted of a combination of family law litigation and civil appeals and writs, primarily in the area of family law. She previously served as the chair of both the appellate law and family law sections of the Orange County Bar Association. Lisa is a member of ACFLS, the Association of Certified Family Law Specialists, where she previously served as the associate chair of the Orange County Chapter and on the editorial committee. She's currently a member of the Amicus Committee of the ACFLS, which we'll be talking about because we're very interested in how to get more opinions published. And the Amicus Committee reviews unpublished cases and drafts letters requesting publication. They probably also know how to pronounce the word amicus, something that we do need to recognize authority on. So, Lisa, welcome to the podcast. Thanks for joining us.

Lisa McCall Thank you. Thank you for having me.

Tim Kowal Okay, now right out of the gate, do you have any further perspective on what a judgment roll is? Jeff and I had thought that it just pretty much means the record. And this comment said that it is limited to the documents in the official court record. Does that mean, do you think — and this is open to Jeff too — does it mean that it doesn't include what happens on the oral record? Is that the difference?

Lisa McCall I don't know if there's a difference between what happens on the oral record versus the actual minutes of the court. My understanding of the judgment roll has always been that it's basically the docket and the orders that are contained in the court file. It comes up the most when we're talking about motions to vacate a void judgment. The error has to be apparent on the face of the judgment roll. I always understood that to mean the actual orders in the court file — something that any judge could look at and immediately verify without maybe having to go get a reporter's transcript. So I would agree with your assessment.

Tim Kowal Yeah, it's kind of like — Jeff, do you think that it's just basically standing in for the written record, not the oral record?

Jeff Lewis Yeah, I suppose. Yeah. I've never actually had to deal with it in an appellate or trial context. But yeah.

Tim Kowal Would it include trial exhibits if this is a case after a trial?

Lisa McCall Well, if it has to be apparent from the face of the judgment roll, I'm assuming that means there's a judge who's sitting in their chambers looking at the online file and they're saying, what's in there? Is the error apparent from the face of what I'm looking at, right? Without getting any further into it. So I would assume that doesn't have anything to do with exhibits and transcripts, but I haven't researched it thoroughly enough to opine definitively or authoritatively on it.

Tim Kowal Yeah, and this is after I promised you I was not going to try to catch you off guard on some unknown topic. So we started this conversation at an appellate-nerd level 10. So let's try to back it up to maybe a seven or eight. So let's talk about what it's like just from your perspective as a dual specialist. Jeff and I — every time our group comes up to do our CLE compliance, we have not only have to do our general CLEs, but also appellate specialty CLEs, which are a little bit more difficult to come by. And you have to do two sets of appellate specialist CLEs every time your group comes up. Tell us what that is like. And how difficult is it to maintain two separate sets of specializations? And you've taken that exam two different times in two different specialties. Give us a little perspective on what it's like to hold two specializations.

Lisa McCall Well, as far as the MCLE is concerned, the family law stuff is very easy for me because I'm heavily involved in all of the family law organizations — the ACFLS, the OCBA, the AAML. So just this year, I just started my new MCLE compliance period, and I'm already over 60 hours just for the first six months of this year. So family law has never been difficult for me to get. The appellate law one is a little more challenging. We have our monthly appellate law meeting that we do for the appellate section of the Orange County Bar Association. And so you can usually get most of what you need from that. But I like to supplement using the Pincus educational program recordings. Those have been great. So between the two of those, I usually can do that. But that one takes a little more effort because there aren't quite as many. I'll go to a family law weekend and get 12, 14 hours in one weekend. So it's not quite as easy to come by for appellate law.

Tim Kowal Yeah. Was it a difficult decision? It sounds like you got your family law certification first.

Lisa McCall Yes.

Tim Kowal And then later on added the appellate certification. Was that a difficult decision to decide, I'm going to have to study up and take another one of those full-day mini bar examinations?

Lisa McCall Not at all. In fact, I started out doing appellate law. I kind of did it backwards from how most people get into appellate work. So I started doing appellate law and then went to trial work. And so I had always wanted to be an appellate law specialist, but it took me a while to get enough oral arguments at the beginning to be able to have the point structure that was necessary to take the exam. And then at some point, my point structure was off the chart and I probably had enough to satisfy it twice over. So it was just a matter of waiting it out until I was qualified, but I always wanted it.

Tim Kowal That seems rare. Do you know of many family law attorneys who — not only early on but ever — angled at being an appellate specialist?

Lisa McCall Not from the very beginning, not usually. I don't think most lawyers know of it as a real option at the beginning. I think it's something they learn about through practice. But I started out working for Marge Fuller, who was one of the most well-known and respected family law appellate attorneys in Orange County, at least, if not the whole state of California. And she trained me from the time I was a little baby lawyer, 25 years old, taught me everything she could teach me about doing appeals primarily in family law. And so at some point she said, you're really going to need to get some trial experience if you're really going to be good at this, if you really want to know the ins and outs of getting these issues right on appeal. And so I went and worked for a trial attorney for about six and a half years in family law, and then opened my own practice in 2018, and it's been a combo practice of litigation and appeals, but I've been shifting more in the direction of appellate work in the last few years.

Tim Kowal Yeah. So you really did start as an appellate attorney and realized that you needed to, as Marge Fuller told you, get nuts-and-bolts experience in the trial court. What kinds of approaches or perspectives have you developed as an attorney with an appellate-first mindset practicing handling trials? Do you feel like you take a different approach to family law trials than other family law attorneys?

Lisa McCall I think I do, just that I'm thinking about the record the whole time. I think a normal trial lawyer — yes, we're of course trying to make our record, we're getting exhibits in and we're making our arguments — but I'm always thinking about what happens if this isn't what I want, or what happens if this is what I want, how do I protect it? So I'm constantly thinking about how to protect the record as I'm doing a trial. And I think that I'm thinking about — if evidence is excluded, I'm making my offers of proof, letting the court know what that evidence would have shown had they not excluded it. I am making sure that everything gets into evidence that needs to be in evidence, making sure I'm requesting a statement of decision where needed. I'm always thinking about the appeal. And I think that is not something that most trial lawyers are doing. I think the really good ones are, but I think as they're getting closer to the end of a trial and it's not going well, that's when they're going to call me panicked, going, I don't think this is going the right way. I'm thinking about that from the beginning.

Tim Kowal I did some quick Googling before we started recording. And I saw — tell me if this is true from your experience or if you've looked it up — statistically, there are fewer family law appellate decisions published pro rata than civil generally. And I suspect that has to do with the fact that so many family law orders and judgments are so fact-bound and discretionary that that becomes prohibitive to publishing many of them. Is that true in your experience? And if so, is that a hindrance to pursuing appeals through family law? Doesn't it make it a more frustrating endeavor if you're coming out and they're fact-bound, they're discretionary, and you're not going to get a published decision, and yet you've gotten, I think, 12 published decisions to your name. So that's a huge credit to you.

Lisa McCall But yeah, in the last few years — I think since 2017, it's like eight, something like that. But it's not a huge number. The ones that are published usually are focusing on development of some area of the law, and they establish something new, or they explain some area of the law in a better way, or they clarify — if two cases have different approaches, they kind of clarify where the distinction is. And so the ones that are just complaining because the judge was biased against me, or the judge didn't listen to my evidence, or the judge was really wrong in finding me not credible — those ones don't go anywhere. And I think there are a lot of those appeals in family law, and I think those are rightfully not published. The ones that are published are the ones that continue to develop the law. And I think having fewer cases that are focused appropriately on developing the law is a better approach, which is the one that is utilized.

Tim Kowal When you take on a case that's still in the family court, you must be — I mean, are you taking cases that have publish-worthy issues possibly lurking at the end of them?

Lisa McCall Yes. Not always.

Tim Kowal Not always, but that factor enters your thinking.

Lisa McCall Well, I will say generally, if I'm doing a trial, I don't think it's a good idea for the same lawyer to do the trial and the appeal. Because when you are the trial lawyer, you have bought your own story. You have convinced yourself by the end of it, and you are no longer objective. And so it's nice to have a separate appellate attorney who can be objective and look at the issues and say, I don't see an appealable issue here. So I try not to be the same lawyer for both a trial and an appeal. The only time I find myself being the same lawyer, usually, is when I'm doing some kind of a post-judgment cleanup motion of some kind, like maybe a motion to set aside, and that's unsuccessful, and then we end up on appeal. So I'll find myself in both the trial court and the court of appeal, but not usually. It's rare.

Tim Kowal Let's talk about some other nuts and bolts, the trial tips that you have in family court from the perspective of a dual specialist in family law and appeals. And maybe we'll start with statements of decision, since that procedure has changed a little bit or will be changing effective, I believe, January of 2027. Let's talk first generally about statements of decision as an appellate tool. And I'd be curious, Lisa, to get your perspective — or if you would share how you explain the process to litigants and to trial attorneys. Jeff and I have talked about how, yes, on the one hand, it's super important to understand why to make a request for statement of decision and why to object to any omissions in the statement of decision, because then you're in implied-findings territory if you don't. But on the other hand, even if you do check all the boxes and you get it reversed, it just gets sent back to the same judge to make the missing findings, and then you're back. You might as well just challenge it on lack of substantial evidence to begin with. So I wonder if you share that cynical perspective, or if you explain it to your people differently than Jeff and I do.

Lisa McCall Well, I'll start out with — I'm trying to avoid substantial-evidence type appeals in the first place. So if I'm getting down to the evidence, I'm probably in losing territory on appeal to begin with. So I'm usually focused on getting the record correct so that I can take whatever legal issue I have with how it was analyzed or ruled upon, or failure to consider, or improper burden of proof, that kind of thing. So I'm trying to get a clean record so that I can take those legal issues up. So that's usually kind of my focus on that. On the statement of decision process — so we've always had to, up until now, up until January of 2027, we always needed a tentative decision. And then we had to do the request for statement of decision. And the tentative decision was something that was a required piece. And under this new iteration of Code of Civil Procedure sections 632 and 634, it's now not going to be required. The court can just order a party, one side, to prepare the proposed statement of decision. And so I think there was some confusion. One of the things that I found myself explaining to trial counsel often was — well, the court did a 10-page decision, so why do we need a statement of decision? All of the reasoning is right here. And I would tell them, well, because it's not a statement of decision — it's the required tentative decision. And then you have to request the statement of decision, and then you have to get the proposed statement of decision, and then you have to do objections, and then you get a final statement of decision. So I think there's a lot that has been kind of confusing to people about — well, why do we need this? And so I think the new law is going to clear that up a little bit and help people focus. But the purpose of the objections is to, like you said, avoid the doctrine of implied findings. And the current version of section 634 says if you don't bring an omission or ambiguity to the court's attention, the doctrine of implied findings controls. So that's what we're always trying to avoid.

Tim Kowal I like your perspective about how confusing and misleading it can be when clients and even trial attorneys see that tentative decision. They just skip right past the label, as typically you would do. Typically the label does not control — if the court is making all of its findings in a document, why does it matter what the label is? But this is one of the exceptions where the label does control.

Lisa McCall Well, and then that adds another layer of complication, which is sometimes the court will call its tentative decision the statement of decision. And so then they say, well, look, it's the court's statement of decision. And I'll say, well, did anyone request a statement of decision? Did the court say it was ordering a statement of decision and allow a period for objections? So the process was confusing to all. And I think the new iteration of the statutes is going to clear it up. We're supposed to be getting a new California Rules of Court 3.1590 as well. So hopefully it'll streamline the process and everyone will understand it a little better.

Tim Kowal You're right — things may change slightly in the new Rule 3.1590. But let's cover for our listeners what we expect the new statement of decision procedure to look like. So instead of waiting around for the tentative decision before we decide whether to request a statement of decision, what do litigants need to do now, Lisa?

Lisa McCall So first of all, we have to request the statement of decision still. But we used to be able to request it within 10 days after the tentative decision on a hearing over eight hours. Now it always, in all cases, has to be requested before submission. So I tell people, make it the last line of your closing argument: "And I respectfully request the court issue a statement of decision on the factual and legal basis for its determination on child support." And sometimes I'll even go a little more detailed, like including the guideline and any basis for deviations from guideline — that being the child support guideline that controls in family law proceedings. So now it has to be done before. That was something that I could usually help trial counsel with. The first question I ask is, did you request a statement of decision? If they say no, I say, how long was your hearing? And then often we're getting into a fight over — was it actually eight hours? Because family law proceedings are often heard in little pieces. And so they'll say, well, it was three days — it was obviously over eight hours. And so I'll help them prepare the request, and I'll get something back from the court saying, sorry, the hearing was seven hours and 48 minutes, and you're not entitled to a statement of decision — denied. So we're going to eliminate that problem, but we're also going to add in a new area where I can't help trial counsel if they don't request the statement of decision before submission. So these rules are going to be very important to trial counsel to know. The second thing is the objections — the time to object to the proposed statement of decision is now 10 days instead of 15 days. And there's a rule on submission of judgments as well, that it has to be prepared within 30 days of the decision or 30 days of the final statement of decision. And also, the request used to be able to be made orally, like I just mentioned. Now, under the new rules, it's going to have to be made in writing. But writing includes orally on the record if there's a reporter present. So at least in Orange County family court, we can request it orally most of the time because there are almost always reporters. But in a lot of the other counties, it's not a given.

Tim Kowal Yeah, that's important. That's actually, I think, part of the new rule — that it can be requested orally, but only if there is a court reporter.

Jeff Lewis At least the Orange County family law courts provide reporters, like the good old days?

Lisa McCall They do. Pretty much always. The only one that really doesn't is the Department of Child Support Services, but all the other regular family law assigned departments do.

Jeff Lewis That makes appellate law much easier down there.

Lisa McCall Sure does. There's no challenge. It also — we have to remember, when we're going out of county, to make sure there is a reporter, because the unknowing Orange County family law attorney finds himself in a courtroom and goes, "I forgot, we needed a court reporter here." And then they have very special elaborate procedures to get a court reporter into the department.

Tim Kowal So back to my cynical question, Lisa. Have you ever had an appeal challenging an omission from a statement of decision where that finding was appropriately requested and the omission was appropriately objected to, and it was still omitted from the final statement of decision? Do you have any war stories where that wound up being a successful ground of attack on appeal? Because — while you're thinking about it — the only example I can think of, we did get it reversed on the basis of a lack of a required finding in the statement of decision, but it just went back to the judge to make that finding. And even in that case, after — at one point I started kicking myself wondering, maybe we should have just attacked on the ground that there was no substantial evidence, because there truly was no evidence at all. Because when it got sent back, the court just held another trial to allow the other side to put on evidence for the first time. And I thought, well, gosh, maybe that wouldn't have happened if I'd just gone squarely at the lack of substantial evidence in the first place.

Lisa McCall I will tell you — maybe not from a statement of decision perspective, but Family Code sections 2030 and 2032 have required findings for a request for need-based attorney's fees and costs. And I was the respondent on appeal where the appellant challenged an order that didn't make the required, mandatory findings under Family Code section 2030 about ability to pay and need and disparity of income. And it was sent back for that exact purpose, to the same trial judge, to just make the findings. And she made the exact same order. So they went through this exercise of taking this case up on appeal two years down the road, lots of money, just to get the exact same order with some findings. So I'm not sure it's all that useful. You have to be really careful about when you're challenging findings. The only time I really see findings being a big issue are rebutting the presumption against custody under Family Code section 3044. A case will generally be reversed for not making those findings because they're so serious. But then again, I mean, it was reversed on the attorney's fees one too, and it just didn't really matter.

Tim Kowal Yeah, and I think we've talked a little bit about how there is that statutory requirement of findings where there is a finding of domestic violence and there's going to be a custody award to that party — to that parent with a domestic violence order — then that presumption has to be rebutted in written findings. And that is treated a little bit differently than the normal statement-of-decision rule. Whereas if the court fails to make findings on — what is that statute, I think you just mentioned it — section 3044?

Lisa McCall 3044.

Tim Kowal Yeah, the 3044 presumption. And that is deemed — has been deemed — a structural error, meaning automatically reversible, which I thought was interesting, because obviously omitted findings that are otherwise required on a statement of decision are not per se reversible, but omitted findings on 3044 presumption issues are automatically reversible.

Lisa McCall I suppose generally it would make a difference whether it was prejudicial to the outcome, right? Generally.

Tim Kowal Yeah. Although — I mean, the fact that the 3044 missing findings have been deemed to be per se reversible means that there's no — I guess the court has made a determination that it's, in all cases, prejudicial. Probably because of a legislative declaration that it's generally not in the best interest of the children.

Lisa McCall Well, the whole point of Family Code section 3044 was to protect domestic violence victims. And so the idea of 3044 was — the legislature made comments and findings that domestic violence concerns were often overlooked in family law cases. And so, to avoid that problem, they implemented this presumption against custody that had to be rebutted with express findings. And so to allow the court to get around that would sort of defeat the whole legislative purpose in the first place.

Tim Kowal It's — I just find it interesting that there's slightly different, or very different, treatment of those two, and it could just go to what the court deems to be the legislative intent or purpose behind the section. And obviously the courts have found — or at least the one court that has reached that issue — found that the legislative declaration of harm in the absence of findings is more urgent than the normal inference that the lack of findings in other cases are harmful. Let's talk about some other nuts and bolts tips that you would have for family law practitioners. For example, motions in limine or other types of trial procedures — how do you use motions in limine to preserve the family law record for appeal?

Lisa McCall So motions in limine can be used pretty creatively in family law cases. They're not used as often as they could be, I think. Sometimes when they're used for the broader attempt to just exclude all evidence, I think they're generally less successful in family court. The courts typically will say, I'm denying your motion in limine, but as the trial goes, you can make that objection to each piece of evidence. So I think that maybe has discouraged some trial counsel from using them to the extent that they could. I still find them useful — if, for example, I think there's an order or a stipulation that controls on an issue and I want to exclude the other side from putting on evidence on the issue because I think there's already a dispositive ruling on the issue, that's a good use of it. One creative way I saw it used, by Dory Rogers, who I used to work with — we had a move-away case. You have to assume that the moving parent is moving, right? There's no — the court doesn't have any control over telling them to move or not move. The only control that the court has is over the child. And so we had an evaluation done, and the recommendation was that the mom shouldn't move, but everything else in the report was favorable to our client, but that was legally improper. So on a motion in limine we had that stricken, so now all that was in the report was legally permissible. So I think that's an interesting use of just sort of cleansing out any improper evidence or findings. Motions in limine — I think the biggest one is obviously you want to keep out anything that's going to open the door on something that the judge shouldn't hear. But I think it's less of an issue in a bench trial than it is in a jury trial, because in a jury trial you can't unring the bell with the jury, but presumably a sitting judicial officer should be able to filter out something it's heard that it's not allowed to consider. So I think that's why we see it a little bit less in a family court setting than in a general civil setting.

Tim Kowal Yeah, I would have guessed that there might be more need for them just because of the amount of heat in the room in family law proceedings — one side would want to keep out scurrilous accusations from the other side. Is that normally mitigated by disciplined counsel and trial judges?

Lisa McCall I think I would have to say yes.

Tim Kowal Yeah. Well, that's good, because otherwise, I mean, those kinds of motions in limine obviously would drive up the cost where the economics are already very challenged in those kinds of cases. Are there any other tips that you have for family law trial attorneys? When you're meeting as prospective appellate counsel, if an appeal has to be filed after the trial, what are some of the ways that you're trying to help trial attorneys lay the groundwork to have a good appellate record?

Lisa McCall So the biggest one is offers of proof — timely objections and offers of proof, those are the biggest ones. I recently had a successful win on a case, an unpublished case called Marriage of Burmeister, which was a fun one. The court had excluded — because of untimely filing of trial documents — the court had excluded my client from putting on any documentary evidence of any issues not raised by the other side; he could only use the documents that were put in by the other side for his case, and he couldn't bring any witnesses on his case-in-chief, only on rebuttal. And it was a pretty strong sanction for a one-time miss of trial documents. And the court of appeal agreed and said we need a more incremental sanction. But one of the things that I specifically remember is that frantic call from trial counsel — "What am I doing? The judge won't let any of my evidence in — how do I preserve this? How do I preserve this?" And my answer was, of course, offers of proof. And then it was, "Well, the judge won't let me make offers of proof." Well, then do it in writing. And so, luckily, he had done in writing all of the offers of proof showing what all of the evidence would have shown had he been able to put on his side of the case, and it was enough to preserve the issue for a successful reversal. So I would say the most important thing is being able to show what that evidence would have demonstrated had you been able to put it in, because otherwise you just have — "oh, he excluded the officer from testifying." Well, okay, well how would that have helped your case? We don't know. And so there's that constitutional requirement of a miscarriage of justice that has to be demonstrated.

Tim Kowal Yeah, that's great presence of mind on the part of your trial counsel — and you, in advising them to put in that offer of proof in writing if necessary — because otherwise, how do you establish the error if you've got nothing to point to, right? Unless it's structural, of course, which I did argue in this case — it was — the court took the other route of abuse of discretion, but I think it could have arguably been structural as well. And did the — do you recall if the court, in its — I guess you said it's an unpublished opinion — did it cite to the offer of proof from the record?

Lisa McCall It did. Yeah.

Tim Kowal Yeah, so if you give the court the easier way out, obviously that's going to increase your chances. Of course, then again, maybe if you had forced the court to make a decision on the structural issue, it could have resulted in a published decision.

Lisa McCall Well, that I think that's speculative, Tim, without an offer of proof that that would have happened.

Tim Kowal That's right. Well, let's talk about, on the subject of appellate strategy and published versus unpublished decisions, your work on the ACFLS Amicus Committee — and let's just get this out of the way — how do you pronounce that word, amicus?

Lisa McCall I pronounce it "AM-i-cus," but probably half the committee pronounces it "a-MY-cus," so I don't know if there's a correct way.

Tim Kowal I think both are acceptable. Okay, that's the most important thing — I just want to make sure I don't look stupid in front of people. So on the Amicus Committee, which advocates to the court of appeal for publication or depublication of family law opinions — walk us through what the process looks like, what criteria drive the recommendation on the part of the committee to file a request to publish an unpublished decision.

Lisa McCall So generally we're controlled by the California Rules of Court — there are specific guidelines for publication — but mostly what we're looking for is if there's something new, a new interpretation of law, a new analysis of something that isn't in a prior case, as the law changes. Obviously, there is new case law to address situations. So, like, for example, I just saw a case — I was doing my review of a case that dealt with a litigant's right to a remote appearance in a case, right? We didn't used to have Zoom appearances, so now we have cases addressing Zoom appearances. So the cases come as the law comes. So on the Amicus Committee, we have a group that has almost every dual specialist in the state of California on the committee, which we're proud of, and we have Rick Cohen, who is the director of the Amicus Committee and reports directly to the board of the ACFLS state board. And so our committee — each of us take a role in reading the unpublished cases for that particular day and making a recommendation to Rick, and Leslie Shear also participates in that, and we bring it to them and say, "What do you think? We think this is a good issue." We do summaries of each of the cases and tell them which ones we don't think are appropriate for publication and why. And then, if they agree, it goes to the rest of our committee, and if everybody votes on it, then it goes to the higher ACFLS board, and we write letters requesting publication or depublication of cases. And so it's actually pretty fun, because it keeps you really right there in the development of the law. I'm doing this every month, and I've been on this committee for about 10 years now.

Tim Kowal Can you tell us a little bit about what the guiding lights are for ACFLS and the Amicus Committee specifically in seeking to get certain decisions published? Is it advancing certain important rights? Is it clarity of the law? I mean, I'm sure it's all of the above, but can you tell us a little bit more about what the guiding lights are?

Lisa McCall I think it's all of the above. The thing that I'm usually looking for is — is this something new that we don't already have a case on? Is there something that's going to help trial lawyers when they're taking their cases to court? Is this something that's going to help the judicial officers understand the law and have something to fall back on when making a decision on a certain topic? So there are some areas of law, like spousal support, where we have so many cases because different issues come up all the time. But we're really looking for that next case that deals with something that none of the prior cases dealt with, or if they did, in a less articulate and clear way. So we're trying to guide the trial courts and the trial lawyers going forward and give them that roadmap.

Tim Kowal Are there any examples where maybe the Amicus Committee declined to request publication, but — I don't know, Lisa, have you ever personally, or on behalf of your firm, filed a request for publication in a case?

Lisa McCall I did, maybe once — it's not often. I'm not really trying — that's not really what I'm trying to do on behalf of my clients. On behalf of my clients, I'm just trying to get the win, right? And once I have the win, it's always fun if it's published, but I don't need it to be published, and I'm not sure that's necessarily how people want to become sort of famous. So I don't really request that on behalf of my clients most of the time. In fact, in family law, they're often trying to ask me to anonymize the decision and do it in initials and try to keep it away from them. So it's sort of not where I'm trying to make fame for myself, I guess. But in my work on the Amicus Committee, if there is a case that one of us inevitably has worked on, we stay off the discussion on whether to request publication or not. We are excluded from the discussion. So that kind of keeps it a little more sterile.

Tim Kowal Are there unpublished decisions that maybe the committee thinks, on the merits, it's probably better that it's unpublished, but for the sake of clarity of the law, this really should be published?

Lisa McCall Yes, that issue comes up. I think if it's better for the development of family law as a whole — I've seen both happen. I've seen us say, well, this really needs to be clarified, and if this is what the law is, then this is what the law is and it needs to be published. But I think there's definitely always a discussion of — is this what's best for the development of family law? And that's always going to be part of the discussion on something like that. So I've kind of seen it go both ways.

Tim Kowal And are there some areas of family law in particular that you're watching, or that the Amicus Committee is watching?

Lisa McCall Well, I would say the fastest-developing area of law in family law right now that we're all seeing is domestic violence. And I think it's largely because the Family Violence Appellate Project has been very interested in helping shape the development of the law. And so even in cases where the ACFLS Amicus Committee is not requesting publication, FVAP is requesting publication. And so that's how Marriage of Hoke, which was a recent one of my cases, got published — the ACFLS did not request publication on that one, but FVAP stepped in and did that. So we're seeing a lot of very specific development of the domestic violence body of case law.

Tim Kowal Speaking of the Family Violence Appellate Project, is there overlap between ACFLS and FVAP in terms of membership or goals alignment?

Lisa McCall I think goals alignment, yes. I don't know about membership — not that I'm aware of — but it could be. On the goals alignment, I think all of us are trying to narrow down what should be considered and what shouldn't be considered, and how these cases should be approached. And so certainly there would be times that the ACFLS and FVAP would both request publication of a case — that would happen. But it's not necessarily a collaborative effort.

Tim Kowal And lastly, on the subject of unpublished opinions, do you have any opinions or insights on why more appellate decisions are originally unpublished even if they satisfy the criteria for publication? I wonder if you think that sometimes, if they're on the margin, they're just waiting for the amicus panel to weigh in on it, or some other litigant or non-party to weigh in and nudge them in the direction of publication.

Lisa McCall I think it's hard to decide sometimes, because when an appellate court is rendering its opinion, it's relying on all of the cases that came before it — so the idea would be that there isn't anything that's groundbreakingly new, because it's relying on the stepping stones of all the cases that came before it. And so the question is — is this particular case, which relies on all that historical case law, something that really changes the analysis? And just because there's a new factual situation doesn't necessarily mean it's changed the law or changed what we have to consider. So I think if an organization like the ACFLS or FVAP says, no, actually, we think this particular factual situation is very important and here's why — then they'll consider that. But I think probably they're just thinking, well, we're just following the law.

Tim Kowal With that in mind, is that a perspective that you keep in mind in drafting your own appeals, and thinking, look, here's an interesting legal issue, and actually this really warrants a published decision? You mentioned that can run at cross purposes sometimes — you want it to be anonymized, you sometimes want the court of appeal to choose the narrowest grounds and keep it unpublished and inconspicuous so it won't get challenged on review, perhaps. But is that something that factors into your analysis when you're doing the merits briefing?

Lisa McCall Typically, sometimes, if there's an issue where I'm thinking I really could use better guidance on this, I will tell the court, "This is all I've got," and that's sort of my way of saying, give me something.

Tim Kowal Yeah. Do you do that in the briefs, or at oral argument, or both?

Lisa McCall Usually just in the briefs. The only time I ever did it at oral argument was when a justice specifically asked me if I thought there was any reason to publish the case, and I gave the court the reason that I thought it would be useful to have it published, which was — I thought it would be interesting to clarify how minor's counsel is used in a family law case and what their role is. And it came out unpublished, so I guess they didn't agree with me, and it had nothing to do with the role of minor's counsel in how they wrote the opinion. So I've also had the situation where I've gotten a published opinion — my most memorable one was LaSalle v. Vogel. It was a case about a court denying set-aside of a default judgment against a family law attorney, and I had taken it up on appeal, and I wrote all these brilliant arguments about why the court should reverse the judgment, and Justice Bedsworth did this beautiful decision about civility — about civility in trial court and how we should all be treating each other. And it's a great published opinion on civility, and everyone would say, "Good job on that case, Lisa," and I'd say, "Well, yeah, okay, but I didn't really do anything." But thank you — I guess I'll take the win. But what the court of appeal is interested in is not always what we are interested in when we're briefing.

Tim Kowal We'll have to leave that one last topic for another time, and maybe that'll be the hook to invite Lisa back in the not-too-distant future. Lisa, thank you so much for taking time to join us today. Is there anything, other than the topic that we'll have to leave aside, that you want to share?

Lisa McCall I don't think so. Nothing that comes to mind — I just don't like to cut anyone off. No, I just wanted to say thank you for having me. I appreciate it. It was fun.

Tim Kowal All right. Well, thank you, Lisa — it's been a very helpful discussion on family law appeals, and it reminds me why I try not to get involved in family law appeals. Anyone who asks for one, I send them right over to Lisa, because I get scared of what is appealable and what's not appealable. That's another topic we could have covered today, although that would probably take a half hour to get through. Jeff and I tried to do that on an episode before, and I was sweating bullets the entire time, thinking that I was probably helping someone commit malpractice.

Lisa McCall It's a really good topic and a really interesting topic. I have a whole hour on that.

Tim Kowal Okay, so we've got two issues already for another episode, so we're going to have to get that on the books soon. All right, well, Jeff, that's going to wrap up this episode with Lisa McCall. If you have suggestions for future episodes, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis See you next time.

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