When a judge enters an order, and then later modifies the order, you would probably guess that you should appeal from the modified order. And you would be right. But now try this: Voiding the modified order reinstates the original order, and the time to appeal from the original order has expired. What now? The...
I have yet to meet an attorney who would not welcome the appellate court providing a tentative opinion prior to oral argument. All upside, no downside, right? There was a downside in Navellier v. Putnam (D1d5 Aug. 17, 2023) No. A166476 (reh’g denied with mods Aug. 30, 2023) (nonpub. opn.). The plaintiffs’ case was dismissed...
The worst thing about arbitration is the risk of winding up with a decision contrary to law, facts, and common sense—and, because it’s arbitration, having no meaningful recourse. But that’s just the tradeoff. Right? Actually, that’s not the case. Back in 2008, the California Supreme Court held in Cable Connection, Inc. v. DIRECTV, Inc. (2008)...
Your next trial could succeed or fail based on whether the expert’s opinion gets admitted or excluded. Based on their recent presentation to financial experts, we cover three key cases—Kelly, Sargon, and Sanchez—that govern expert opinions. We also cover some fundamentals and tips to protect expert work product. Some things experts should remind their attorneys:...
The Judge Pauline Newman saga reached a tentative end—or a respite—when the Federal Circuit imposed a year-long probation on the 96-year-old federal appellate judge. Aliza Shatzman of the Legal Accountability Project discusses the allegations of cognitive decline and workplace misconduct against her, and how the investigation and report may be a model for more transparency...
Tim announces his new firm, Kowal Law Group, APC, and discusses some legal tech with Jeff before moving on to recent cases, including: 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 Sign up for Not To Be Published, Tim Kowal’s...
One of the most biggest recent case is the split decision out of the 9th Circuit holding that a prohibition on secretly recording communications between two people violates the First Amendment. Project Veritas v. Schmidt, No. 22-35271 (9th Cir. July 3, 2023). The statute at issue here was an Oregon statute. But it suggests that...
Most cases that reach the Supreme Court live and die on the “shadow docket.” That is the name given to the docket where everything other than full merits decisions happens. Most prominently, that is where the Supreme Court decides whether to grant stays of orders pending appeal, such as abortion-rights cases, voter redistricting cases, immigration...
A good trial involves heroes and villains, themes of good and evil, tense conflicts, and, at the end, a difficult moral choice. All stuff that could make a few good movies. Gary Wax is a filmmaker-turned-appellate lawyer, and he brings his insider’s eye and his top-500 list to help us analyze some of the best...
9th Circuit expert Cory Webster joins us to discuss several recent decisions out of the 9th Circuit. On this episode, we discuss: Cory Webster’s biography and LinkedIn profile. 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...
WARNING: This episode contains opinions of a law-nerd nature. Discretion is advised. Have you ever encountered the parenthetical “(cleaned up)” at the end of a case citation? By now over 5,000 judicial opinions in nearly ever jurisdiction have used it, including the U.S. Supreme Court. So it’s time you got acquainted with it. The credit...
This comes up every call I get after a judge trial: the statement of decision. The statement of decision in a bench trial stands in for the verdict in a jury trial. It tells you—and more importantly, the Court of Appeal—what findings the court made and what theories it accepted. Pretty important if you’re planning...
As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey complicated issues as a subject-matter specialist to generalists on the bench. Then...
After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait...
Stays of judgment enforcement in California are governed by statute. There are basically only two ways to stay enforcement of a money judgment: (1) post a bond and file a notice of appeal, or (2) ask for a temporary stay under Code of Civil Procedure section 918—but the stay only lasts until the deadline to...
Here are some legal trends and trivia from this week: U.S. Supreme Court: Liberal justices' 'dissent rate' lowest since Roberts joined in 2005. (Wash. Examiner) But women are underrepresented at oral argument at the Supreme Court: just 20 women—19% of the 103 total advocates— argued before the justices. (Ben Shatz) ⏳Cal. Supreme Court is taking...
CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here. The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The setup is that, when...
The voters of San Berdardino passed Measure K in 2020 to limit supervisors to a single four-year term at a monthly compensation of $5,000. The trial court invalidated Measure K as unconstitutional. But the Court of Appeal in San Bernardino County Board of Supervisors v. Monell (D2d4 May 25, 2023) --- Cal.Rptr.3d ---- held the...
Improper conduct by a trial judge is one thing. But where do you take complaints against an appellate court? Supreme Court Associate Justice Martin Jenkins heads up a new Bias Prevention Committee, and committee member Ben Shatz joins us to talk about its mission: to promote an appellate court environment free of bias and the...
After interviewing dozens of guests on the California Appellate Law Podcast, Jeff Lewis and I recapped some of the best briefing tips from 2022. In this clip we cover: Judges’ three key fears when deciding cases (via Ross Guberman) ️Kill your darlings—find the cleverest line in your brief, and delete it (via Ross Guberman) ️Litigation...
A challenge to a trial judge for cause is subject to waiver if not filed at the earliest practicable opportunity. North American Title waited a year in ****************************************North Am. Title Co. v. Sup. Ct. (Fresno) (D5 May, 19, 2023 No. F084913) --- Cal.Rptr.3d --- (2023 WL 3560761), before accusing the judge of bias for his...
Our regular roundup of noteworthy appellate decisions and legal news includes these stories: ⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited. ⚠Did...
Animal harm can be difficult to adjudicate in people courts. But the cat owner in Berry v. Frazier (D1d3 May 15, 2023 No. A164168) --- Cal.Rptr.3d --- (2023 WL 3445168), who was allegedly defrauded by her vet into a “horrific and painful” form of euthanasia for her pet, was able to reverse the order dismissing...
Here are some legal trends and trivia from this week: Justice Jackson, still in first year on SCOTUS, pens solo dissent in labor case Glacier Northwest v. International Brotherhood of Teamsters. First time a first-termer has penned a solo dissent since Justice Thomas in 1991. (Via Adam Feldman) Manson follower Leslie Van Houten, who took...
Has your client decided to enforce the judgment before the appeal is over? Beware, says collection attorney Joseph Chora—after losing an appeal, a judgment creditor is liable in restitution. (The plaintiff in Dr. Leevil LLC v. Westlake Health Care Ctr. was liable for $5.7 million, as written up here: https://lnkd.in/geJWrrin.) But on the flipside, judgment creditors...
A will must be signed by two witnesses. The decedent didn’t do that in Coronado v. Berger (D2d2 May 25, 2023 No. B321347) --- Cal.Rptr. 3d --- (2023 WL 3675787). But there is an exception if the petitioner proves, by clear and convincing evidence, that the decedent intended the document as a will. And here,...
ADF attorney Chris Schandevel explains how he got the opportunity to orally argue dozens of cases in multiple appellate courts including state supreme courts in just a decade of practice. We also discuss: ⚖️Does oral argument make a different? Can amicus briefs make a difference? Yes, and one case proves it: Chris talk about Kligler...
Here are some legal trends and trivia from this week: Justice Neil Gorsuch called COVID emergency orders among “the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale,” referencing orders, sometimes backed by criminal enforcement, requiring home quarantine, shuttering schools,...
Before oral argument in the cannabis-cultivator eviction case of 65283 Two Bunch Palms Building LLC v. Coastal Harvest II, LLC (D4d2 May 5, 2023 No. E076654) --- Cal.Rptr.3d --- (2023) 2023 WL 3268852, the court issued a tentative opinion—partially certified for publication—against the tenant Coastal Harvest. Rather than have to face this unfavorable precedent in...
In two surprise post-trial moves—likely driven by embedded appellate counsel—a plaintiff first lost her case, then won it back. The employee won her whistleblower claim after a jury trial in I vie v. Astrazenica Pharmaceuticals LP . No. 21-35978, 2023 WL 3563007 (9th Cir. May 19, 2023). But then Astrazenica moved for judgment as a matter...
