An impassioned and personal closing argument is often your chance to persuade the jury. But get too personal and you could commit a “golden rule” violation (i.e., you cannot ask the jury to “put yourself in my client’s shoes”). So hats off to the plaintiff’s attorney in Chen v. Herschel (D2d2 Mar. 2, 2022 no....
Here are two ideas for getting round the “no-citation rule” that prohibits California attorneys from citing unpublished cases. But careful! Only one of them is actually a good idea. First, I ask appellate attorneys David Ettinger and Dean Bochner if attorneys may reference an unpublished case the same way a recent published case did: by naming the appellate district...
Here is a question I did not realize had not been answered about appellate stays and attorney-fee awards. When the losing party appeals an order that gives rise to a motion for fees, does the appellate stay deprive the court of jurisdiction to award fees? In civil cases, the answer is no. But in probate...
Reviewing some 9th Circuit and California appellate cases of note from early 2022, appellate specialists Tim Kowal and Jeff Lewis discuss these juicy issues: Can the 6th Amendment right to speedy trial be indefinitely postponed due to Covid? (Yes, if the defendant is not incarcerated, says the 9th Circuit in United States v. Olsen.) Can...
Did you know you are forbidden to cite unpublished cases — even when urging the Cal. Supreme Court in a petition for review that there is a split of authority? Appellate attorneys David Ettinger and Dean Bochner note that this use of unpublished cases are routinely employed, but it violates California Rules of Court rule...
Legal academic-turned-practitioner Ryan McCarl has some writing tips for lawyers, including one you haven’t heard before: Add more white space to your briefs. And remove clutter generally. And this surprised co-hosts Jeff Lewis and Tim Kowal: those vertical lines on your pleading paper? Get rid of them. They’re unnecessary and they make the reader feel crowded. (Disclosure: I...
Sometimes appeals are filed prematurely. Some classic examples are appeals taken from on order sustaining a demurrer (you need to wait for the dismissal), or from an order granting summary judgment (you need to wait for the judgment). The Court of Appeal may choose to “save” your premature appeal at treat it as taken from...
This recent case involving the underappreciated topic of appellate stays has me heartened on one point, but dismayed on another. What is heartening: Appellate stays have teeth. In Stupp v. Schilders (D1d2 Jan. 25. 2022 no. A161177) 2022 WL 213774 (nonpub. opn.), the trial court imposed a rather large discovery sanction against Stupp totaling over...
A statement of decision is the court’s formal explanation of the factual and legal basis for its decision. In some cases, the court is required to give a statement of decision. And in San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925, the failure to provide a statement of decision was...
Attorneys are prohibited under CRC rule 8.1115 from citing unpublished cases for any reason. But not even the Supreme Court takes the rule seriously. Practitioners routinely cite unpublished cases in petitions for review to demonstrate the existence of splits of authority, even though rule 8.1115 clearly prohibits this practice. Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to...
Nosing out whether an order is appealable can be difficult. But we know injunctions are appealable because they are listed explicitly in Code of Civil Procedure section 904.1, the appealability statute. But a preliminary injunction issued by an arbitrator is not. They are not a final “award,” and thus not appealable. That is the holding...
When a defendant fails to answer a complaint, the next step is entry of default. At that point, the defendant may move to vacate the default. But usually, the defendant will wait until after the judgment is entered, and then move to vacate the judgment. Technically, you can do both. But don’t. That is what...
Attorney and author Ryan McCarl joins Tim and Jeff to discuss his forthcoming book, Elegant Legal Writing, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page...
A nonsuit is one of the few exceptions to the ordinary presumptions to affirm on appeal. And so it bore out in *Newnes v. F&M Trust Co. of Long Beach* (D2d1 Jan. 11, 2022 no. B303725) 2022 WL 98179 (nonpub. opn.). Newnes’ claim for punitive damages was dismissed on nonsuit after opening argument at trial...
If you won your case and you have a right to recover attorney fees, mind the deadlines. The prevailing parties in Wallace v. Alameda Cnty. Mgmt. Emps. Ass'n (D1d5 Jan. 25, 2022) Case No. A162044 (nonpub. opn.) blew the deadline. The petitioners, who had won a writ of mandate in the trial court, actually had...
Appellate expert Myron Moskovitz explains why unpublished opinions are a sleight of hand. Courts do one thing in one case, and the opposite in another case, and then tell you only the first case is “precedent” because the second was not “published.” But ALL cases are published online. We can all read what the court...
Appealing a sanctions order? If sanctions were awarded against the attorney, be sure the appeal is made out in the attorney’s name. The appeal on behalf of the clients in Lafferty v. Fleetwood Motor Homes of Cal., Inc. (D3 Jan. 26, 2022) no. C059562, was dismissed because the attorney was not listed in the notice...
CEB has published my short article, “A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable.” (The article was originally published on my blog here.) The article covers the published opinion in Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) 2022 WL 1522087. The parties settled a consumer...
What do judges think about the Covid impacts on court proceedings? Jury trials were put on hold in the early months, and only resumed in fits and starts. In-person appearances began again last year, but are being tabled again. At least as it concerns criminal jury trials, you can get a good sampling of judges’...
In “lemon law” cases under the Song-Beverly Act, the “prevailing party” is entitled to attorney fees. But what is a “prevailing party”? Is a plaintiff who recovered $1 in nominal damages a prevailing party entitled to attorney fees (and over $680,000 in fees at that)? In a published opinion, the Court of Appeal in Duff...
Jeff Lewis and I round up some recent appellate cases, and briefly discuss why California still does not make audio recordings of proceedings like federal courts do. Here are the cases we discuss: Singman v. IMDB.com, bookmark this published opinion holding that legal propositions in a brief without a citation will be ignored. Center Street...
Doctors who do not conform their practice to the “standard of care” risk disciplinary action from the state medical board. But not only is the development of the “standard of care” opaque and mysterious, it is often quite wrong. Appellate attorney Tim Kowal and health care litigator Rick Jaffe, Esq. discuss two presidents who died because of the “standard...
In 2021, the California Supreme Court issued a surprising opinion. The Court held that an untimely appeal is not an absolute bar to appellate jurisdiction, at least in juvenile dependency cases. (In re A.R. (2021) 11 Cal.5th 234, discussed in Tim Kowal, “Untimely Appeal May Be Excused in Dependency Proceedings, Cal. Supreme Court Holds,” Apr....
Recent months and years have seen a surge in medical-board investigations of doctors whose individual medical advice strays from public health policies. Health care litigator Rick Jaffe, Esq. discusses the tension these medical board interventions create by promoting public health policy, on the one hand, and chilling the practice of individual medicine, on the other hand. Watch...
This one seems wrong to me. This is a published case in Conservatorship of Joanne R. (D2d7 Dec. 17, 2021 no. B310906) 72 Cal.App.5th 1009. The appellant was put under a year-long conservatorship. Under the Lanterman-Petris-Short Act governing conservatorships, the appellant was entitled to a jury trial, to commence within 10 days of demand, challenging...
What happens when a judge dies or becomes unavailable before the entry of a judgment? A mistrial resulted, and was affirmed, in Marriage of Stone (D2d2 Jan. 24, 2022 no. B297778) 2022 WL 202815 (nonpub. opn.). The trial judge presided over the first phase of a dissolution proceeding. After the trial, the judge issued a...
Many attorneys are missing their best opportunity to persuade the appellate court. Appellant expert Myron Moskovitz talks with Tim Kowal and Jeff Lewis about the importance of the introduction in appellate briefs. The introduction should summarize your arguments and not belabor detail. And it should be a roadmap to the all-important statement of facts. Watch the clip here. This is...
Confused by all the challenges to the vaccine mandates? Health care litigator Rick Jaffe, Esq. sets them out in two main types: (1) challenges to the state police power; and (2) challenges to the federal agency and police power. (And then a third: religious conscience challenges.) Watch the clip here. This is a clip from episode...
An order enforcing a settlement agreement is an appealable order, but what about an order denying enforcement of a settlement agreement? In a previous unpublished opinion (see Tim Kowal, ”Denial of Motion to Enforce a Settlement Held Appealable....” Dec. 20, 2021), one court reminded the bar that parties really ought to have orders on settlement-enforcement...
Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review. David also discusses the...
