Alan Dershowitz signed a complaint containing frivolous allegations in Kerri Lake v. Gates. But he’s only “of counsel” who reviewed one paragraph, containing nothing frivolous. So the panel reversed the Rule 11 sanctions—but warns that, going forward, “of counsel” is not a valid defense. Judge Bumatay writes separately to say it should be. Jeff agrees...
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: Can an attorney sign as to only part of a pleading? Alan Dershowitz signed a complaint. The complaint contained frivolous allegations. But wait! Dershowitz says he was only “of counsel” and was only...
If you want to challenge a sanctions award over $5,000, you have to appeal now—if you wait, you lose. So when a discovery referee in Glickman v. Krolikowski (4D3d, Mar. 7, 2025, No. G064853) 2025 WL 732088 [pub. opn.] allocated most of the discovery costs to Krolikowski, he did the smart thing and appealed. After...
Judge VanDyke made a YouTube video to accompany his dissent in Duncan v. Bonta, the Second Amendment case in which a Ninth Circuit en banc panel upheld California’s ban on handgun magazines over 10 bullets. Judge VanDyke’s video shows him disassembling a gun, comparing accessories, and using a portion of oral argument to claim his...
A federal judge ordered the Trump administration not to deport five plaintiffs, alleged MS-13 and Tren de Aragua Venezuelan gang members. The administration complied, but then the judge verbally ordered the administration to turn around a plane and return 261 non-party alleged gang members. The administration didn’t do so, and appealed. Meanwhile, the President tweeted...
Even if you technically can’t use an electronic recording to create the appellate record, trial courts do provide them for us in your closing argument PowerPoint. Jeff shares his experience. And after spending most of a morning watching oral arguments waiting for his case, Jeff offers these tips: The goal is to reduce "friction." If...
On demurrer, the plaintiff saw his main claim—though not the entire case—get gutted. So the plaintiff decided to dismiss the rest of his claims and appeal. After all, you can do that in this situation. But how you do it matters. A lot. The holding of Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30,...
Here’s a trap door to avoid: if you are trying to expedite an appeal by dismissing remaining claims, do not use the Judicial Council dismissal form. Instead, you need a judge-signed dismissal. While Jeff is still in trial, Tim covers Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972....
If you are forced to prove a key fact at trial after the other party refuses to to simply admit them in response to a request for admission, a California discovery statute entitles you to recover your attorneys’ fees. It doesn’t even matter if you aren’t the prevailing party: when a party should simply admit...
All eyes are on the electronic-recording original proceeding in the Supreme Court, Family Violence Appellate Panel v. Superior Court, and the Court’s recent order to show cause why, when a court reporter can’t be found, California’s trial courts should not be ordered to hit the “record” button. This could this be the most significant advancement...
The challenge to the electronic-recording ban, in a rare original writ petition in the California Supreme Court, will progress to the merits. The Court has invited the respondent Superior Courts of Contra Costa, Los Angeles, Santa Clara, and San Diego to file a return in April 2025 showing cause why Court should not order them...
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: 🗯️Watch what you say in your appellate briefing extension. Attorneys commonly explain that they need an extension because the case is “very complex.” But if your appeal is arguing that the fee award...
Please AI responsibly: Attorneys at a major law firm are making use of ChatGPT. That's not a bad thing normally, but filling in legal cites is not what it's for. The unchecked ChatGPT cases were fake at a rate of 8 out of 9 total cases in a single brief. On this recent legal news...
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: ChatGPT Fail: Remember last year when ChatGPT “hallucinated” leading a solo attorney to cite a couple nonexistent cases? Well, a couple of Big Law attorneys from Morgan and Morgan, “America’s largest injury law...
Your check for arbitration fees gets delayed in the mail. Under a particularly harsh pay-or-waive provision of the California Arbitration Act, if your fee is received on day 31, too bad—your arbitration rights go Poof! Or do they? There’s currently a big split among the appellate courts on this. Tim goes solo while Jeff is...
Add another entry to the split in the Court of Appeal over whether the Federal Arbitration Act preempts the California Arbitration Act’s harsh 30-day pay-or-waive deadline. Following the no-preemption side in Keeton v. Tesla, Inc. (D1d1 Jun. 26, 2024 No. A166690) (mentioned here), and closely parsing the arbitration agreement’s less-than-complete invocation of the FAA, the First District...
If you pay your arbitration fees late, there is a penalty. That penalty, under the California Arbitration Act, is that you are deemed to have waived arbitration. In a split decision last year in *Hernandez v. Sohnen Enters.* (discussed here), the Court of Appeal held that, when the parties’ agreement specifies the Federal Arbitration Act,...
My presentation Trial Mastery: Developing a Winning Strategy and Preserving Critical Issues, is now available at LawPracticeCLE available here. In the presentation I cover my Top 10 Appellate Tips for before, during, and after trial. I also offer these insights: There is a big difference between the story you tell at trial, and the record....
The San Bernardino Superior Court electronically records trial. Can Jeff use the recording as the appellate record? Short answer: no. But there’s an original writ pending in the Supreme Court on a similar issue, so watch this space. We also cover: Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed. Appellate Specialist Tim...
Motion-in-limine orders, like other evidentiary rulings, are not appealable. But there is one case, Brand v. 20th Century Insurance Company/21st Century Insurance Company (2004) 124 Cal.App.4th 594, where the excluded expert was a party’s former attorney and disqualified on that basis. And attorney-disqualification orders are appealable as collateral orders. But when the same thing happened recently...
Jeff is in trial, so take in a few quick summaries of recent cases and get back to billing: 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...
At the hearing on the successful defendant’s anti-SLAPP motion—but before she moved for fees—the trial court granted the motion, but denied fees. This was surprising for two reasons. One, the prevailing anti-SLAPP defendant has a right to fees. Two, and more interesting, the defendant hadn’t even made her motion yet. Reversing, Ruano v. Goldberg (D2d4...
998 loser still gets enforcement costs. Did you win your case but lose the CCP 998 bet? While your prejudgment costs are limited, you are still entitled to judgment enforcement costs. Elmi v. Related Management Company, L.P. (4D3d, Jan. 8, 2025, No. G062788). A judge’s participation at a legal conference about a case is not...
There is a small but growing number of cases holding that incivility can bite you in your attorneys’ fees motions. But are the courts serious about that? Mess around and find out, is the lesson from Madison v. Theodore (D2d7, Jan. 8, 2025, No. B310551) [nonpub. opn.]. During a long court trial, the proceedings "took...
There was a bit in an old radio show (Kevin-and-Bean KROQ old, not Little Orphan Annie old) had Ralph Garman review movies he’d never seen, based only on watching the trailers. In this episode, we review some cases we haven’t read. We discuss the cases below, which lead to some good tangents. Other items discussed...
This is why your teenagers are anxious: TikTok’s fate hangs in the balance at the Supreme Court. We discuss the recent oral arguments, and Donald Trump’s amicus brief asking the Court to sit tight and he’ll make a fantastic deal that will be fantastic and make the Court very happy and everyone will be very...
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention: File for attorneys’ fees within the appeal deadline: Remember that the deadline to file a motion for fees is the same as the deadline to appeal. That means 60 days after the notice...
Trial courts get busy sometimes. They making a ruling, but might overlook ever to enter a formal order. Sometimes it is a statement of decision (which is not appealable). Sometimes it is in a minute order that directs a party to propose a formal order (also not appealable), like the nonsuit ruling in Blauser v....
Here is our 2024 roundup, and in exchange we have a request for suggestions for 2025 content. If you are an attorney, what content do you prefer? Check out the poll. Now here’s the roundup of updates for 2025: 📅 MSJ Deadlines Are Updated: Remember 81-20-11. With the MSJ hearing as the target, motions must...
The important appellate tip in the denial-of-coverage insurance case of Saydman v. Aegis Sec. Ins. Co. (Cal. Ct. App. Dec. 20, 2024 No. G063209) (nonpub. opn.) is: get a court reporter. Even when the hearing is on a routine motion for attorneys’ fees involving no testimony, expect the appellate court to affirm if you don’t...
