Esteemed appellate specialist M.C. Sungaila joins co-hosts Tim Kowal of TVA and Jeff Lewis and on episode 8 of the California Appellate Law Podcast for a wide-ranging discussion on:
The discussion then turns to questions relating to appellate briefing, including font choice, whether to use one or two spaces after a period, and the citation parenthetical du jour, (cleaned up).
Episode 8 of the California Appellate Law Podcast was released on March 2, 2021. Listen at www.CALPodcast.com, or on your favorite podcast player.
TRANSCRIPT:
Announcer:
Welcome to the California Appellate Law 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:
Welcome, everyone. I'm Jeff Lewis.
Tim Kowal:
And I'm Tim Kowal. In each episode of The California Appellate Law Podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal. So welcome to episode eight of the California Appellate Law Podcast. Today we're joined by the very well regarded California appellate attorney MC Sungai. Law.
Jeff Lewis:
That's right MC is a distinguished attorney with three decades of appellate practice behind her. She leads her firm's appellate practice out of Orange County, California. She's a member of the board of directors for the National Association of Women lawyers, and she's served on numerous appellate and litigation boards for national and local bar associations. She served as an adjunct professor at my alma mater, Loyola, Loyola law school. And most recently, she's taken to clubhouse where she and I bumped into each other in a room and a presentation about legal podcasting. And that's how she came to be a guest on our show. And welcome MC.
MC:
Thank you to both of you for having me. I appreciate this. And I'm particularly honored to be what I understand is your first guest. So I'm happy to join you.
Tim Kowal:
Well, first guests that we've told you about. We've had, we might have had many others that are just in the can waiting to come out. But we don't tell our guests. But I think I think Jeff and and you MC had bumped into each other on clubhouse, as Jeff mentioned, and I've tried to be an act tried to be active on LinkedIn, and I, and I know that you're active on LinkedIn, as well. And we've crossed paths a little bit. And I've enjoyed the banter on LinkedIn comments with you as well.
MC:
Yes, thank you. Yes, I think it was about a month or so ago, I did a little roundup of, of folks I'd seen with interesting posts on LinkedIn. And I, I added you to that, Tim, because I thought you had, you know, some valuable information for trial attorneys on there.
Tim Kowal:
I appreciate that. And I know one of the questions that that Jeff had wanted to ask you is, is whether your firm is is supportive of of your efforts on things like clubhouse and LinkedIn and collaborating with other appellate attorneys in the social media spheres, that obviously takes time away from billable hours and from your fellowship program, which we're anxious to talk with you about?
MC:
Sure. Well, I think that as a partner in any firm, and you know, as a private practice chair at a Buchalter for the appellate practice group, there are a lot of other things that that we are responsible for, besides, of course, doing our work as appellate layers, per se. So I think that in my view, the work that we would be doing otherwise, traveling, writing, speaking, going to clients, a lot of the clients are online on LinkedIn now far more than they were previously. And, and by that I mean in house counsel, as well as trial lawyers for us appellate lawyers. And so I look at that work as sort of an adjunct or kind of where, where that activity happens now, more than it would have been Bar Bar activities and and traveling for conferences. So I think it just kind of interchanges with that given what's going on.
Jeff Lewis:
That's great. That's great that your firm gives you the freedom to do that. I know, a former firm that I used to be affiliated with, that Tim used to be affiliated with as well wasn't necessarily supportive of spending a lot of time in non billable hour activities. So it's great that your firm gives you that opportunity. Tell us your firm has developed an appellate training program to increase the competition for business for appellant attorneys like me and Tim, tell us your secret sauce, so we're not left at an unfair disadvantage regarding this appellate academy you're developing?
MC:
Sure so. So it's called the Kauffman appellate fellowship. And it's, it's it's an idea that I've had for several years, but buckhalter was very positive and in embracing it. It's named in honor of Marcus Kaufman, the former California Supreme Court Justice, who upon his retirement founded the appellate practice at buckhalter 30 years ago. So at the 30 year mark, it seemed like a good time to have something recognizing his work at the firm and and also to mark a milestone for that appellate group. And I came in as the first official chair of the appellate group in August of last year. And and so we we kind of hit the ground running with this fellowship very early on. And it is the first to my knowledge in in big law. So in big law firms, there are a few of these fellowships in boutique firms scattered around the country. And also there are some similar programs in the US Solicitor General's Office and the state Solicitor General's offices. California has one, Utah has one. I think Texas has one. So they're designed to give an opportunity and appellate law for new graduates. So typically, in appellate law, you're going to be coming from some other kind of practice area, you've been a litigator for a while, or you've had a couple of district court or appellate court clerkships. And then you move into into doing appellate work. This fellowship is designed for folks before that. So before they have a clerkship or maybe between clerkships, maybe they have a district court clerkship, and they're considering an appellate court clerkship after that, or they're just recent graduates who are interested in appellate law. And so they'll come to the fellowship for one or two years. And then we will either help launch them into a clerkship, if that's what they're interested in. Or if all parties agree and and everything works out, then then it's also possible for them to carry on from a fellow physician to an associate position if they don't want to do a clerkship after that. So So that's kind of the program.
Jeff Lewis:
And yeah, and what do members of this program, one of the participants do for this one year, two year while they're in the program?
MC:
Yeah. So it's, it's a very bespoke program. It's tailored to the particular person and their abilities. I believe in that I believe in training newer lawyers and maximizing the next generation. So appellate practice can continue on at a high level after all of us are long gone. And to do that properly, I mean, I've taught in law schools for 10 years, UC Irvine, Whittier, and also now at Loyola, both in clinics and, and other appellate advocacy classes. So I have some sense of teaching from that, and adjusting to each person's strengths and helping them grow individually. So I believe in tailoring it to the particular person. But beyond that, I also believe that that they should be doing the max of what they're capable of doing and, and even beyond that, so our current fellow extern for justice Bigelow, during law school, she's a Pepperdine graduate. And she started in November. It's now the end of February, since she started in November and passed the bar in, you know, in January, she has worked on two different Ninth Circuit cases with me where she's done research and drafted, crafted, you know, a draft argument for it. She's done research for a US Supreme Court amicus brief, we co authored a published article together, we're working on another article. She's also done some site checking and more law clerk type things when when she started out. So it's really a wide array. But most, you know, I'm proud to say that she's done some substantive work very, very early on.
Tim Kowal:
Yeah. And Jeff mentioned that we want to know the secret sauce and and I'm serious about that, because Jeff and I were just trained in the in the trenches, we didn't have a nice fellowship program to go to what are what are your fellows learning, that that poor Jeff and I are not learning in that program? And I think it goes to your point about, you know, wanting to be able to leave something behind that helps elevate the practice of appellate law, in our in our legal community. And so, how specifically do you envision that is happening through through the fellowship program?
MC:
Yeah, so so I view it as an apprenticeship somewhat of an old fashioned apprenticeship. And I think it reflects in part how I was trained both by the judges that I clerked for judge Statler on the district court in the central district, Judge Fernandez and judge Dorothy Nelson on the Ninth Circuit. So I take somewhat the clerkship model from it but then also I had excellent training from Alice Horvitz, Horvitz and Levy so it's kind of a really a combination of the training that I had, and then reformulating it based on also how I have taught students in law schools also. So there are certain, you know, key factors, I've also tended to train a lot of new litigation associates as well and large firms I've been at, because everybody needs good foundational skills. And that's kind of part of the fellowship, too. I think that sometimes you think you might want to do something, perhaps someone will come out of the fellowship and say, Oh, good heavens, I thought I would want to do appellate law. But I never want to do that, again, you don't really want to be taped in trial doing something. At the very least, they will have a very strong foundation of critical thinking, and legal research and writing, which is fundamental to all kinds of litigation and our work as lawyers. My other thinking with regard to the fellowship is that our practice as appellate lawyers is just inherently somewhat smaller. We can't, we can't have, you know, a phalanx of associates working on things with us, it's very small teams. You know, it's one partner, and maybe one or two associates or senior counsel, like that's the biggest team that you would have on an appeal. So so there's, without the fellowship, there's a lot less opportunity for us to pass on our knowledge to people. So I think I see the fellowship is being maybe there's maybe without the fellowship, there would maybe be one or two people that I can train, you know, long term to become really strong appellate lawyers, but with the fellowship when we have them coming for one or two years, and then another one coming with the possibility of just like law clerks for judges, we have a number of them that we could have at least initially trained, so that our group at buckhalter could be responsible for, you know, maybe down the line 20 or 30, people who are out circulating in the world and, and, you know, engaging in appellate practice. So it's to me like maximizing our training and being able to pass it on, because I think that really strong palate training requires an apprenticeship model. And so there's only so many that you can train with that model.
Tim Kowal:
Yeah, I like the word apprenticeship, it reminds me how I think, you know, the first 150 years of our, of our country, I think we didn't have state bars, we didn't have credentials, bar licenses, you were to if you're going to be a lawyer, you you've got some schooling, but then you went and you work for another established attorney, and you learn the ropes that way. And now, of course, you know, for many decades, we've lived under, you know, a credentialed model, you get you, you go to an accredited law school, you get that you get the you pass the bar examination, and then and then they throw you to the wolves, and you just have to start to start billing and, and and making a living. And you don't necessarily have you're not necessarily expected to have a model or someone that you apprentice under to learn the ropes for these things.
Jeff Lewis:
Yeah, well, though, with the tweak of COVID and provisional licenses, you know, the pendulum is swinging back a little bit towards a provisionally licensed person who took the bar or someone who was getting ready to study for the bar, having been adopted by a licensed attorney and working on the provisional licensing system. Well, obviously, congratulations on getting this program started. Do you expect other firms have big law to follow suit?
MC:
I don't know. Because it is a commitment from the firm to do that. I'm very grateful that Buchalter was thought it was a great idea, and is very supportive of it. I think that to the extent that firms see value to it, I hope that they will adopt it. I think that widespread adoption would allow that kind of apprenticeship, at the very least as I said, even if folks don't end up being appellate lawyers, that they could have very strong skills and foundations for other kinds of practice. Certainly, I I hope that other firms will consider it. I do think it's, it's so far been really helpful. And the like I said, the fellow has done a lot of work on an actual cases and is certainly build significant time also. So it's not it's it's not, you know, all site checking and writing articles.
Tim Kowal:
I'm sure one of the things that you cover in the fellowship program is oral argument. And that's a topic that I know that you you talk about frequently on social media. And one of the things that we do here on the podcast is to give trial attorneys tips so that by the time appellate counsel is retained that the case is well positioned for appeal. I know from your background MC that you spent several years in litigation before moving to appellate work. And we sometimes talk about how it can be a rocky transition period getting the case from the trial court to the court of appeal. And if you can't get your issues preserved, or if you don't make a good record in the trial court briefing and oral argument skills might not count for a lot. So what is your perspective on getting appellate counsel involved while the case is still active in the trial court? And do you have any any tips that you'd like to give trial lawyers that you could share with our listeners?
MC:
Sure. Well, you know, an appellate lawyer is never gonna come out the other way. on that question, Tim, we're always valuable and earlier is better than later. So I completely endorse and agree with, with your perspective on that. I would say that I've seen a few changes, since I've been practicing in how that's perceived. And I think there's two ways. The first is that the client themselves if the if it is the client is accompany the client internally is often making my request for an appellate lawyer to be involved in a case before there's an appeal. So the, if a trial lawyer is thinking about that, or wanting to engage someone, they will be on the same wavelength, as many in House Counsel, because I've heard a lot of in House Counsel say that, that we think like them as appellate lawyers, and I think by that what they mean is that we are we look beyond the particular case on the set of facts. And we look at overall strategy and the potential institutional impact of a case. You know, what is the rule of law going to be? And how can that impact other cases that we have? Is this the best case to take up for that? And should we wait for another one, really, a strategy across multiple cases, if there are multiple cases on similar issues is what I've seen come from the client side. And then similarly, Trial Lawyers, very good trial lawyers, many of them know exactly what they know, and what they don't know. And so they know what they are doing, examining witnesses and things like that, and persuading juries and the trial judge as to certain things. But there's an art to appellate argument and to framing things in the trial court so that it will be, you know, better positioned for an appeal, no matter which side, you're on whether you win, what you hope that you're the respondent, or the appellee and not the appellant. It can still be valuable to have appellate counsel.
Tim Kowal:
Yeah, I always tell clients. Sorry. I tell clients, the best way to win an appeal is to make sure that you're the respondent.
MC:
Well, that's a good strategy. Right?
Tim Kowal:
Yeah, whatever you can do to help the help the trial attorney in that regard, I think is a good idea.
MC:
Its really teamwork?
Jeff Lewis:
Yeah, it tell it switching gears here. How has the pandemic impacted your firm's practice? And how appeals are handled? And how do you see maybe past the pandemic, when things revert to normal? Do you see any changes being retained after things get restored back to normalcy?
MC:
Well, I mean, I think that certainly in the first half of last year, I think our practices were probably the least disrupted, because, you know, filing briefs electronically, and then maybe sending a paper copy if you're at the Ninth Circuit, not that different from what we did previously. So it just kind of continued on seamlessly with filing the briefs. But the biggest difference to me, and I'm sure you you have both seen is an oral argument. So you don't go to court to make oral argument, certainly in in most cases in in the last year. And it's remote, either by telephone or by video. And and the judges are remote from each other as well. And so to me, that's been such a significant change. In terms of how to present argument, what makes argument persuasive, just how an argument moves forward. I think the best example of that is at the US Supreme Court, it isn't just a matter of changing from in person to telephonic, because you don't have the visual cues from anyone, the Chief Justice had to set up the argument in a much more formal way. There's two minutes of uninterrupted you know, beginning where you get to say your your your peace for a bit. And then the justice is asked in discrete order with a certain amount of time for each of them to ask their questions. And that is far more ordered than then, you know, the arguments are when you're in person a lot more interrupting and cross questioning and things like that. So that the medium caused a change to the format and formula of the argument itself. And I think that's happening with both the video and the audio arguments. I also think it's significant that the justices and judges are not in room together for the most part as well. It's harder, I think they're, especially if they don't confer prior to argument. You, I think it's harder to catch the cues and see who is leaning towards the other in terms of how they view the case. And they're asking the questions, you know, entirely separately. So I think that the biggest change has been the remote argument. And I think it's also likely to continue in large part, the Ninth Circuit had remote argument capability. While well before this, they were really set up with the technology, due to Chief Judge Kozinski, you really, really ramped up the tech long ago. And so they originally had this remote argument set up, because the circuit is so large, that people may be in a remote town, a sole practitioner and a remote town in Montana, or Washington, it would be just too hard for them to have to, you know, take really a day or two days or whatever, to travel somewhere. And it would be very expensive. And so they set up this program for them to be able to do that. And also for judges who could not come to the argument for whatever reason. There's sometimes be a big screen about judge right on the right next to the bench, and you kind of turn to that video screen to answer questions at times. So they were really prepared for it but and made the jump really quickly. But but it's still so so different from doing that. And I think it's going to continue specifically in the ninth because of the travel that's required to move within the circuit. And the judges are getting comfortable with doing it this way. I think that they'll be comfortable with this into the future, maybe not all cases, because it's still valuable to have everyone in the courtroom. But But I think that as people have gotten more comfortable, specifically the courts, and also as they've invested in the technology to do it, they're going to want to use that technology.
Jeff Lewis:
Well, you know, I for one sure have enjoyed hearing some of the telephonic argument for the Supreme Court. I hope they I hope they continue that practice.
MC:
Yeah, it's really nice to have that live like as it's happening, like being able to listen to it. It's really it's really cool.
Tim Kowal:
See, I had started to ask a question earlier about oral argument. And I found it in my notes what I wanted to ask, it's in the in the daily journal, Myron Moskovitz had a recent piece talking about oral arguments and suggesting the possibility of maybe, maybe you want to waive oral argument in certain kinds of cases. And I wonder what your take on that was he had said, Unless you can think of a good reason to orally argue you might as well waive it, because first there are benefits to waiving, like saving costs, and maybe getting a faster opinion published or or issued. And to in California state courts or law argument rarely changes the result. What do you What's your take on Myron Moskovitz' piece there?
MC:
Well, I guess I'm kind of I don't know if it's old school or not to say this, but but I would never let an opportunity go to waste. And this is the last time you'll be able, the only time you'll be able to be in the room with all of the judges deciding your case. And the only time you'll be there and to answer their questions that they might have. And so I I never wave argument
Tim Kowal:
If their bodies or their sometimes their minds seem elsewhere.
MC:
think that it's your I mean, that's your it's your last opportunity. And I understand the point that unlike the Ninth Circuit in the state Courts of Appeal, and and even in the state Supreme Court, they've they've really conferred already. And there's at least an internal draft of what they think the opinion might say as to which there might be a mature majority vote. But But still, unlike the ninth, it's up to you totally whether you argue or not. And I just would never give up that chance that you're entitled to in California state court. And I have I've certainly had situations where oral argument has made a difference whether it's here or whether it's in a Supreme Court in another state. I think that there are some even in the Ninth Circuit, there may be some things that are not clear or it wasn't quite put that way I think of the way that Margaret Grinnell when she was I argued in front of her many times when she was on the court of appeal. And she's such a wonderful appellate practitioner now and she she puts it really nicely she says you add argument It's your opportunity to frame things differently. It may be this, you know, similar principles that you've talked about in your brief. But sometimes, you know, just certain things resonate with with you or with anyone, if you put it one way, if you put it another way, it just doesn't click. But then your job at argument is to think about different ways of analogizing, or explaining what's going on or putting this case in the stream of the development of the law. And there have been a couple of times and even maybe clarify about the facts of the case or a way of seeing the facts in the case against the backdrop of the law. And there have been a couple times in argument where that really, you could see the light bulb went on for some of the justices that oh, you know, putting that together that way really resonated with them differently than it than it had when it was put down in the brief. So no, I would I would never wave never wave argument.
Tim Kowal:
Well, that's true. There's sometimes no telling what's gonna make the light bulb come on in someone's mind. But I was I was I've always been intrigued. I talked with a an appellate colleague of mine who deals with a lot of clients who are kind of at the at the margins, their cases don't make a whole lot of economic sense, and they don't have a lot of money to spend on it. And and he and he suggested this, this interesting idea of sort of the way he structured some of his retainer agreements, which is it's like a tiered kind of approach where he'll he'll agree to do the the the appellant's opening brief, and then leave it separately whether the client wants to come back and pay him another retainer for doing the optional reply brief. And then separately, again, for the for the oral argument, because obviously in state court, but both of those are optional. And they probably, you know, if you if you are on a tight budget, they present, you know, diminishing returns. So I thought that was that was interesting, and and I and I heard you discussing on the Texas appellate Law Podcast about tentative rulings, and that I think only the riverside court here in the fourth district, does them. And I think that's I would put it in terms of an access to justice issue, because I think that by not giving the tentative decision, it forces, those kinds of litigants, those appellants who are, who are at the edge in terms of gosh, you know, I'm just tapped out in terms of financial resources to pay an appellate attorney to go in and go through the entire record and be prepared to answer questions about where the justices can find a certain fact in the in the voluminous record that maybe I need to just opt not to have oral argument, if the judges are not going to give me an idea of what issues they are intrigued by if any, there was a question there. That's just an open screed.
MC:
That's the first time I've heard of I think the term is limited representation. I know that's true and family law. There's where it's it's set forth in the rules, you can say I am coming in only for this motion hearing. And I'm not your lawyer for life. But I've never heard of limited representation and in appellate law, and so my first question would be I wonder if the Court of Appeal views that attorneys role as limited?
Tim Kowal:
That's a good question. Because Yeah, that attorney probably would, cannot just back out at whim would have to, you know, get leave to withdraw. But of course, if if they're only talking about doing the the reply brief, and which is optional, and the oral argument, which is again, optional, that attorney could just opt not to file the the reply brief on agreement on based on prior retainer agreement with the client and same thing for the oral argument. And so effectively, that that attorneys responsibilities are at an end, after filing the opening brief that is,
MC:
yeah, that's an interesting, that's interesting. I had not heard of that before.
Tim Kowal:
And and just that it's kind of closing the loop on this topic of oral argument. I did see that there was a recent study that showed that the Ninth Circuit because we talked about how in the Ninth Circuit, you don't have the right to oral argument, you only get to orally argue with the if the court invites it, the Ninth Circuit invites or law argument in just 43% of civil appeals. And maybe that gives some indication of how many how many cases appellate judges, you know, believe that oral argument is going to be is going to add something to what's already in the briefs.
MC:
I mean, the Ninth Circuit argument is, is triggered if just one of the judges on the panel wants to hear argument, and they have different the different judges have different views on that, just like we're discussing about whether whether different appellate lawyers think oral argument is helpful. Some are much more, you know, generous in the view that they want to hear oral argument and in most cases, if they're on the panel there, they're just going to ask for it and one Have them is enough to call for the argument. There are others who are of the view that, you know, there's something very particular we want to hear about, or there's a question or there's a really interesting legal issue. We want to debate in the case, or there's something factual, we just want to make sure that we we've we have properly worked through the record. And there isn't something that, you know, we don't want to be surprised by when we're writing the opinion. And we think argument could help in that regard. So I think there's a whole variety of perspectives about why different judges on the Ninth Circuit might ask for argument.
Tim Kowal:
Yeah, yeah. Or again, like your point about the light bulb coming on. I remember just in the trial court context to dealing with a trial that dealt with an accounting issue. And this issue went on for multiple years with multiple extra trying to explain this concept. And after two years of this, a new attorney came in and orally argued that Well, Your Honor, you just have to look at it. Like it was a credit card statement. And the judge said, Oh, yeah, it's like a credit card statement. And that was that was how the case resolved. Basically, it was just a different way of looking at it. It was it was a hiding in plain sight, so to speak. But yeah, that is a Yeah, that it is it is tough to walk away from those opportunities, because there are so few of them.
Jeff Lewis:
I never wave argument. Never, ever, ever, unless it's a cost concern. It's the only chance to be interactive. And if you're the respondent, it's the last chance to get the last word in after reply by the appellant. Never, never, never. That's just me. Let's shift gears here. We're gonna do the inaugural edition of a lightning round of the most important and pressing topics for appellate attorneys. Are you ready?
MC:
Okay, I'm ready.
Tim Kowal:
You thought mine were barn burners, you got a Jeff has it in store for you.
Jeff Lewis:
Here we go. short answers. We'll see how many we can get through before our time is up. Font preference: Century schoolbook, Garamond, or something else?
MC:
Country Schoolbook.
Jeff Lewis:
All right.
Unknown:
Two spaces -
Tim Kowal:
The correct answer.
Jeff Lewis:
Two spaces or one space after a period.
MC:
I am in favor of two spaces, but I am not dogmatic about it so that if somebody else's I'm working with like the one, you know, I don't completely freak out. If we go that way.
Jeff Lewis:
I'm trying not to freak out hearing that.
Tim Kowal:
My answer is similar. I do one space. But up until a few years ago, I did two spaces and I'm not dogmatic. Jeff is one space, one space and dogmatic.
MC:
okay
Jeff Lewis:
To the grave with one species. All right. Equally important question citations in footnotes at the bottom of the page or in the brief in the body that are in the brace. Very important question.
MC:
Are you talking about the Brian Garner approach? Correct? Yeah, I think he I think that the footnotes are case, citations and footnotes are fine. If it's really, you know, extra cases or like a See also or an additional point. But purely in the footnotes. I think it really completely changes how you write the brief and like the persuasive value of what you're doing, you have to adjust everything to do it that way. And it's actually more distracting to me to do it that way. So yeah, in in the text unless specific reasons but it's in a footnote.
Tim Kowal:
God I think we have unanimity here.
Jeff Lewis:
Yeah, on that one. Let's get to something very divisive. The final lightning round. The use of the parenthetical "cleaned up" where do you stand on the use of the parenthetical cleaned up?
Tim Kowal:
a lot riding on this one MC?
MC:
Oh, I know well, and today is a momentous day right because this is the first time I think that SCOTUS actually embraced cleaned up in a citation so so too big too big day for for the appellate folks today. Yes, I think that cleaned up is helpful especially in the citations where there are a lot of multiple quotes internal quotes and things like that that you're just trying to track down. I think it can be helpful I I'm fine. I'm fine with with using cleaned up.
Jeff Lewis:
And do you use it yourself?
MC:
I haven't actually. I haven't get used it. No, I have I haven't had a situation where I've needed to where it's been messy enough to do that. But I have in an ambiguous brief in one of my cases one of my colleagues used cleaned up and I was fine.
Jeff Lewis:
Okay, well, thank you for pointing out to Tim that he's been wrong all these years and that a unanimous Supreme Court and Brownback v. King came today blessed the use of cleaned up. I love it. Clarity is key in our In our line of work and "cleaned up" lets you be extremely clear in your writing. So I love cleaned up
Tim Kowal:
My position on cleaned up is that I love it when courts use it because that sanitizes it for future use. But right if if the attorney and the brief is putting together as cobbling together a citation or the citation has been used before, with all of that barbed wire strung through it with the square, the square brackets, citations and an extra, you know, quotation marks around things, I think you have to leave that barbed wire intact when you cite it to the court. And if the court wants to adopt it, and sanitize it for use going forward in 2021, and not the product of some venerable old cases that no one no one wants to go back archives to, to view.
MC:
Yeah, yeah. Well, that's, you know, that's a good point, Tim, because there's, there's two ways to avoid the cleaned up, right, or of reaching that question. One would be, do you go back to the original case, so you don't have to do all the sites for the for the more recent one, and then you don't have anything to clean up? Because you're going back to the original, or, or you just don't use that part of the decision that has all the multiple footnotes and things like are multiple quotes in it that you need to use? So I think there's a couple different ways to handle that. And to think about that as well. But, and also, Tim, that's a really good point in terms of if you were to see it in a brief in the other side's brief, how would you take that? You would want to know, like, how was it cleaned up? What was cleaned up? And what was it citing? So you're gonna want to investigate that probably a little bit more.
Jeff Lewis:
So you can send your opponent down the rabbit hole looking for issues, where maybe there are none?
Tim Kowal:
That was a very good political answer, MC because you left both of us believing that you're on our side.
Jeff Lewis:
Well, we know she's on my side. All right. Well, you survived the inaugural edition of the lightning round. We want to thank you for sharing your thoughts on appellate practice with our audience, any final parting pearls of wisdom you want to share with our listeners?
MC:
No, I'm just really glad that you guys are doing this podcast and that Tim is doing his his commentary on LinkedIn about this. I think it's always helpful to have everyone thinking about potential downstream appellate issues and to maximizing things in the trial court. So you're, you're doing a good service.
Tim Kowal:
Thank you, MC. We really enjoyed having you on.
MC:
Thank you.
Tim Kowal:
So after that conversation, our listeners can see I'm fairly conservative on typography. So even though I'm a radical on oral argument, on average, I'm a moderate. It's that old joke about the economist who had his head head in the oven and his feet in the icebox and said, on average, I'm comfortable. So now let's move on to some recent cases and news. Jeff, I wanted to share this this case about an interesting split of authority that came up in the recent case of doe versus Westmont College. On the question of review whether you can get review of post appellate fee orders in Westmont College, a student filed a successful petition for writ of mandate to reverse a suspension decision by the college. The college appealed, but unsuccessfully as the judgment was affirmed. And in light of the affirmance, the student sought his attorneys fees under CCP section 1021 dot five for having confirmed a public benefit. But the court the trial court did not agree with a student and and denied the fee motion and the student filed a second appeal now from this denial of the fees. So in case you're thinking this is just a routine fee order being appealed. That's not how the college sought. A routine fee order is an order after a judgment and that's appealable under Section 904 point one subdivision a to but as the college pointed out, the student did not bring his motion after a judgment. Instead, the student brought it after he had prevailed on appeal. So the question is, is an appellate opinion a judgment for purposes of making a subsequent fee order appealable under Section 904 point one a two. And this issue had come up not too long ago and a 2013 fourth district case of Apex LLC versus chorus food.com. All cases cited in the podcast are available in the show notes. That case treated the post appeal fee order as a collateral order. So it kind of dodged the question of whether it's an appealable post judgment order. Unfortunately, the Westmont College case also seems to dodge the question of whether the order was based on the appellate decision. And instead the court unsatisfying Lee in my view just concluded that it was made after a judgment, even if after an intervening appeal and thus was appealable under Section subdivision a two of 904 point one, but the point is if you are entitled to fees as a result of an appellate opinion, and the trial court denies fees, be prepared to argue that the order is appealable either as directly appealable under 904 point one a two or as a collateral order. That's a piece of arcane, obscure procedural law that keeps appellate nerds like us up at night about whether or not our appeal is going to be dismissed. But most lawyers going through most of their life will never have to deal with such a vaccine question. Yeah, sometimes sometimes I don't know whether I'm just nerding out and whether it's worth mentioning some of these cases, but because I had, as I mentioned, there appears to be a little bit of a split of authority here. That's why I thought it was interesting to raise. But now,
Jeff Lewis:
Tim, I think our listeners on notice that when they turn on our podcast, they're gonna hear about vexing questions that are of interest to appellate nerds.
Tim Kowal:
Well, if they if they made it this far in the episode, yes, I'm sure they are on notice. So but I will move on to a topic of I think will be a little more general appeal, no pun intended. And let me paint you a picture. Jeff, you're researching a critical issue for your clients case. And just before you give it up all hope you suddenly stumble upon a case on point. And what a case the facts are on point. The law is on point. It's a recent case, it's even from the same Appellate District that you're in. But just as you're about to copy the citation into your brief, you notice it, that decision is unpublished as that ever that has to happen to you, Jeff.
Jeff Lewis:
Well, first of all, I reject the premise. I never never give up all. But let me say, yeah, of course it happens. Find a perfect case. It's on all four corners in the same facts, and would really be helpful and it's completely unpublished. And it's it's the most frustrating thing in the world.
Tim Kowal:
I don't think I've ever met a practitioner who hasn't had that experience. So here are some ways that you might still be able to make use of that unpublished decision. So first one, if you're in federal court, you can still cite unpublished decisions. Rule 8.1115 of the California rules of court only applies to California decisions, not federal decisions. The second way is courts have considered unpublished opinions to describe the current state of the law. The first district did this and a 2012 opinion in Robertson vs. ss w. So take a look at that case in the show notes. Third Way courts cite unpublished opinions to identify important questions of law, and that's authorized by another rule of court 8.5 100 subdivision B one. In a 2019 separate statement in people vs. Valencia, Justice Lu of the Supreme Court cited nine unpublished opinions involving the same police practice that had been challenged by the defendant in that case. And of course, that's that's the the appellate judges making use of unpublished decisions. But I would not necessarily recommend putting your toe over the line on the basis of that rule of court unless you're filing a petition for review in the Supreme Court. Okay, number number four. And and now we know we do we might be putting our toe over the line a little bit. courts and counsel have cited unpublished opinions to illustrate the effects of certain laws. So here's in a in a December 2020, California Supreme Court opinion in people versus Gentile. It dealt with the issue of convictions of second degree murder under the natural and probable consequences, consequences theory. So in arguing the point, the district attorney of San Diego submitted an amicus brief and cited two unpublished opinions. And those opinions were offered because they illustrated two scenarios where the Supreme Court's holding would allow defendants who participated in deadly crimes to quote, get away with murder, and quote, the DA apparently did not cite these cases as legal authority, but merely for their relevance as new stories supportive of a policy argument. Now, the plain language of eight point 1115 simply does not allow this. The court ultimately rejected the argument, but the court didn't mention rule point 1115 or otherwise suggest the that the citations were improper? Still, I I think this was a dicey move.
Jeff Lewis:
I totally agree crosses the line, I wouldn't put my name on a prefix that took this approach.
Tim Kowal:
Yeah, I don't think I'd had the stones for that a number of years. Here's a fifth way that you might consider if you run into a to a particularly juicy unpublished opinion that you want to use. But this one also makes me nervous. Courts have cited unpublished opinions when adopting their reasoning. So here's another first district opinion. This is save Lafayette trees versus city of Lafayette. It's a 2019 opinion. And in a in a footnote, the court presumably on its own research had come across a second district decision that it rather fancied. While the parties the parties could not have cited or argued, argued this unpublished case, the first district did not so restrain itself. It said, while we do not rely on the unpublished opinion as authority, we adopt it as we adopt as our own its reasoning and quote, and then a lengthy quotation from the unpublished case. followed. Let me ask you this. Jeff, if I want the court to be aware of an unpublished opinion, what do you think about following the Save Lafayette trees approach by stating in my brief that quote, while we do not rely on unpublished opinions, the court may adopt them as their reasoning. And then following that, with the analysis contained in the unpublished opinion, without citing to the unpublished opinion, of course, what do you think about that?
Jeff Lewis:
Yeah, that whole that whole area, it makes me really nervous in a way that appellate nerds can get only get nervous, you know, appellate justices and the research staff are very savvy. They know what published and unpublished cases are out there on this specific issue and in front of them, especially in their own district. You know, about the only thing I would be comfortable saying this point is something like, while they are no published decision supporting this point, Council is aware of multiple unpublished decisions that support this point. And this would be an appropriate time for this court to publish a decision to give the bar guidance that's about as close to signing an unpublished case that I ever want to get.
Tim Kowal:
I like that it's a very, very high minded approach. Let me also note that the same lafiya trees approach might have presented grounds for rehearing pursuant to Government Code Section 680 168 Oh 81, where an appellate decision is, quote, based upon an issue which was not proposed or breathed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing, and the quote, The statute goes on. If the court fails to afford that opportunity, a rehearing shall be ordered upon timely position petition of any party and quote, so given the parties had been barred in the Save Lafayette trees case, they were barred any opportunity to discuss the unpublished case that was mentioned and relied upon in the opinion, it arguably was an issue which was not proposed or brief by any party under government code 60 8081 and does requiring rehearing?
Jeff Lewis:
Yeah, you know, I'm not a big fan of petitions for rehearing. But that's a great point. It would be one of those rare cases where I would, I would support a petition for rehearing. And some news out of the third district court of appeal in California appellate attorney john Eisenberg has compiled a list of 57 appeals that have been pending in the third district for between two and five years. Eisenberg has a formal letter requesting that the California Supreme Court reassign those cases to other districts. They'll be introducing interesting to see what the supreme court does with this request. And more importantly, it'll be interesting to see what systemic changes are made in the third district prevent a future backlog like this?
Tim Kowal:
I'm very interested to see what happens here and I'm very appreciative of Mr. Eisenberg taking taking this task upon himself. He is a obviously a very illustrious member of the California pellet bar is the author of the rudder, the rudder guide on writs and appeals. So I would hope that that his request be well taken by the court. Okay, well, that wraps up this episode. If you have suggestions for future episodes, please email us at cow [email protected]. That's ca l [email protected]. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.
Jeff Lewis:
See you next time.
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