Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023). Here are the tips: Rule Zero: Make the Record #1 Make sure your theories of the case are captured in your pleadings #2 Was key evidence excluded? Preserve the issue by making a...
“When I got out of law school,” Joseph Chora related, “I knew nothing.” So like many of us, he started out by taking any case that came in. Until, that is, a mentor told him “that’s a dumb idea.” Instead, you should “find something that is difficult, arcane, and that nobody knows how to do.”...
You may be able to convince a judge that an arbitrator’s award was wrong on the law. The judge thought so in E-Commerce Lighting, Inc. v. E-Commerce Trade LLC (D4d2 Dec. 9, 2022 No. E074525) --- Cal.Rptr.3d --- and so reversed the setoff awarded by the arbitrator in this lender-borrower dispute. Basically, the lender and...
The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs? Do you have to separately appeal from the fees and costs award? (Yes…usually.) How can you stay enforcement of the...
When I tell trial attorneys my top appellate advice—don’t forget to get a court reporter—the common response is, “I already knew that.” But when I give them my second most important appellate advice—don’t forget to request a statement of decision—the common response is bemusement. “What for? The court gives a tentative decision, and I can...
Ordinarily, it would not be newsworthy that a U.S. District Court allowed a brief that was filed 15 minutes late. But Judge R. David Proctor not only refused to strike the late-filed brief: he ruled that striking a brief just because it was filed 15 minutes late would be absurd. In the District Court ruling...
On this cases-and-tidbits episode, Jeff Lewis and I discuss: Ramirez v. Avon Products: There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed. Flickinger v. Finwall: Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows...
CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative”...
The California Supreme Court affirmed a powerful tool for civil lawyers last year in Siry Investment, L.P. v. Farkhondehpour when it held that, yes, theft by false pretenses under Penal Code section 496(c) is available in civil actions. But don’t get too cocky: as Wang v. EOS Petro, Inc. (D2d7 Jan. 13, 2023 No. B317659)...
Judgments sometimes say the prevailing party is entitled to costs. They sometimes even have a blank for the clerk to write in the amount of costs later. But don’t wait for that to happen before appealing. That’s what the appellant did in Worsnop v. Dept. of General Services (D3 Jan. 24, 2023 No. C091167) 2023...
With his background as a brewery owner, business litigator Greg Nylen defends attorneys from “the triumvirate” of unfair-competition claims: the Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Greg shares some trends, tips, and traps emerging in this space, including: Courts are getting a bit more stringent on the “reasonable...
Even judicial clerks face harassment and discrimination by their judge-employers. Aliza Shatzman knows this first hand, and it’s why she started the Legal Accountability Project. But how can we achieve accountability in such a strange place as a court? Judicial jobs are not like normal jobs. Former Supreme Court clerks command signing bonuses in the...
Aliza Shatzman’s dream of a judicial clerkship turned into a nightmare. Just to get the experience, and the career credit, of a judicial clerkship, Shatzman would have put up with her judge calling her “bossy” like his wife, and telling her he preferred the company of her male co-clerk. But then her judge terminated her...
What happens when an unmovable object—here, a jurisdictional limit—meets an unstoppable force—here, the liberality doctrine? We find out in Magyar v. Kaiser Permanente Medical Center (D2d2 Jan. 23, 2023 No. B315353) 2023 WL 355173 (nonpub. opn.): the unmovable object gives way. And so the plaintiff, who lost on summary judgment and forgot to appeal the...
A trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum-powder case alleging asbestos-exposure. There is a growing consensus that trial court rulings on evidence are reviewed under the more lenient abuse-of-discretion standard, even on summary judgment. And Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no....
The autism pandemic now affects between 1-in-44 and 1-in-35 children by the age of 8, according to a December 2021 Rutgers report—a rate that has climbed some 241% since 2000. And one of the big ways this affects the millions of families raising children with autism is obtaining and fulfilling IEPs—Individualized Education Programs. Special-education law...
After reviewing the science-based trial tips in John P. Blumberg’s Persuasion Science for Trial Lawyers, who would appellate specialist Stefan Love prefer as a trial consultant: a social scientist? Or a TV writer? A social scientist can tell you, with citations to studies, why this or that strategy is likely to work. But gifted storytellers...
Sometimes, lawsuits involve allegations of embarrassing or even illegal conduct. And a prelitigation letter that references that conduct might be considered extortion. The trial court thought an attorney letter was extortion in *********************Flickinger v. Finwall (D2d8 Nov. 30, 2022) 85 Cal.App.5th 822. But the Court of Appeal disagreed, and published its opinion saying so. The...
Question: What’s the difference between an arbitration ruling based on an interpretation of contract that is merely wrong, and one that is irrational? The answer in Hayday Farms, Inc. v. FeedX Holdings, Inc., No. 21-55650 (9th Cir. Dec. 19, 2022), an appeal from an arbitration award, is about $7 million. This is yet another cautionary...
Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection. Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial...
Motivated by his sister’s deafness, Justice James Lambden has long advocated for improved access to our court system. “Without access,” he says, “there is no justice.” But by the time Arnold Schwarzenegger was governor, California still had no real funding for access. So Justice Lambden urged a budget line item for legal services. It failed....
Unlike federal judges who sit or life after being confirmed by the Senate, California Supreme Court justices’12-year terms follow confirmation by election. But our newest justice, Kelly Evans, was not confirmed, and won’t be for another four years. Why? Supreme Court watcher David Ettinger explains that Gov. Gavin Newsom opted to “appoint” then-Alameda Superior Court...
Preparing for an expert witness at trial? You probably are ready with the key cases of Sanchez (preventing experts from testifying about case-specific hearsay) and Sargon (prohibiting speculative opinions). Sargon has become the go-to objection for out-there expert opinions. The talcum-powder manufacturer defendants raised Sargon in the mesothelioma case of Bader v. Johnson & Johnson,...
In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022. Some of the tips and trends we cover: There is a trend toward informality in legal writing—but do pop-culture references go...
Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial...
Some appellate courts issue tentative opinions or focus letters, tipping off counsel to the issues of most interest to the panel. Justice James Lambden says they improve the quality of oral argument. Think about it: three appellate judges and their research attorneys have been thinking deeply about this one question in the case, and then...
The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone? Ben shares some...
Judges just don’t get your arguments sometimes, it seems, and that can be really frustrating. But don’t lose your cool. The Court of Appeal in Shah v. Fidelity Nat’l Title Ins. Co. (D1d1 Dec. 27, 2022) 2022 WL 17959563 (nonpub. opn.) admonished counsel for impugning the trial court and opposing counsel in the appellate briefs....
The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused...
What does an appeal look like after having done 2,000 of them? John Dodd is one of the few people with that vantage. A former staff attorney at the Court of Appeal who has volunteered on the juvenile-dependency panel along with his civil appeals practice, John explains how “an appeal is an appeal.” Once you...
