Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly! Watch the clip here. This...
The first question any trial attorney must be able to answer is: What is the theory of my case at trial? Once you've answered that, the next question to consider is: What is the theory of my case on appeal? The attorneys in Mahanuntawong v. Kittithanyaphak (D1d1 Jul. 9, 2021) no. A158610 (nonpub. opn.) had a pretty...
Filing a critical motion in limine could be key to your trial. What about 40 motions in limine? Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine." Watch the clip here. You can listen to Jeff Lewis and Tim Kowal's entire interview with Frank Lowrey at episode 13...
Awards for emotional distress can add tens or hundreds of thousands of dollars to a workplace-retaliation claim. But there are limits. And in this recent case, the court pointed to counsel's personal attack during closing argument as evidence the verdict was based on improper factors. In Briley v. City of West Covina (D2d4 Jul. 1, 2021) no....
How do you use acronyms in your briefs? Judge Robert Bacharach of the 10th Circuit told Jeff Lewis and me that he wishes that whoever invented acronyms hadn’t: "If you can avoid acronyms, do it." When you make the judge flip back in your brief to look up what an acronym means, or who a party is,...
One reason I like to read unpublished opinions is they are a little bit less guarded in their analyses. Even if the outcomes would not be different had the opinion been published, the courts sometimes offer analyses that seem somewhat unusual, or incomplete, or even surprising, and these can give a glimpse into how the...
Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing. Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection. Watch the clip here. You can listen to Jeff Lewis and Tim Kowal's entire...
Starting the 60-day clock for your opponent to file a notice of appeal requires strict compliance with the California Rules of Court, including the service requirements. That means a proof of service. Even actual notice in court is no substitute.Also, if an unlawful detainer doesn't suit you, have you considered an elder abuse restraining order?...
"I have done a lot of appeals," a colleague told me recently discussing how important evidentiary objections were at trial, "and I have never seen a court reverse because of an evidentiary ruling." It is true that a trial judge's rulings on evidence are rarely fertile grounds for reversal on appeal. That is because those...
Legal writing expert Laura Genovich wrote recently that writers should begin their sentences with real things rather than concepts – concretes over abstracts. Judge Robert Bacharach of the 10th Circuit said the same when he joined Jeff Lewis and me on the California Appellate Law Podcast in June 2021. “Shareholders who are anxious,” not, “Anxiety among shareholders.” That brought to...
One tactical benefit of filing an appeal is the potential to stay the underlying proceedings. The automatic stay rule observes that only one court at a time may have jurisdiction over an issue, and protects the appeal from becoming moot before the appellate court has an opportunity to reach the merits. But the automatic stay...
Judge Robert Bacharach of the 10th Circuit says the science of linguistics demonstrates short sentences tend to be more effective. But take care not to cross the line into writing sentences that are strident or glib. Do not dare your reader to prove you wrong! When Judge Bacharach visited Jeff Lewis and me on the California...
MS Word by default inserts "passim" in your Table of Authorities. The 9th Circuit discourages it -- the court wants to see every page where the authority is cited (unless the authority appears on nearly every page). See https://cdn.ca9.uscourts.gov/datastore/uploads/guides/Shell_Brief.pdf. Bryan Garner's LawProse.org has this entry on passim, suggesting it may be rather archaic by now: passim...
The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions. The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's...
Georgia appellate attorney Frank Lowrey joins Tim and Jeff to discuss Williams v. Harvey, a recent decision by the Georgia Supreme Court concerning preservation of error and motions in limine, in a June 2021 interview in episode 13 of the California Appellate Law Podcast. Frank notes the important nuances in rulings on motions in limine: a denial preserves the evidentiary objections...
Judges are paid to read your briefs, but not paid to understand them! Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that poorly-crafted sentences are "poisonous to persuasion" because they "destroy the momentum of your argument." Watch the video here. Listen to the full June 2021 interview from episode 12 of...
You cannot persuade your reader if you tire out your reader. This was the overarching lesson I took from 10th Circuit Judge Robert Bacharach's new book, Legal Writing: A Judge's Perspective. Page 1: "Legal writing is typically read out of obligation." Judge Bacharach joined Jeff Lewis and me on the California Appellate Law Podcast to talk...
Judge Robert Bacharach of the 10th Circuit tells TVA appellate attorney Tim Kowal he likes the new citation parenthetical "(cleaned up)", seen in some appellate opinions and briefs (recently in a SCOTUS decision), because excessive ellipses and internal quotation marks can be distracting to the reader. But take care not to abuse it by omitting...
As time passes in litigation, counsel should give a care to changes that may render their client's cases moot. This is particularly common when equitable relief is sought, such as injunctions. And it tends to be more common on appeal. That is what happened in Brown v. U.S. Bank, N.A. (D5 May 4, 2021) no. F079568 (nonpub....
When you are trying to determine if an order is appealable, that question is normally pretty cut-and-dried. But not in the probate case of Manvelian v. Manvel (D2d7 Jun. 22, 2021) no. B297334 (nonpub. opn.). The Second District Court of Appeal spent several paragraphs, evaluated the factual record, and threaded its analytical needle through multiple cases, including 100-year-old...
If the trial court ruled in your favor, do not make the mistake of assuming that by serving a "Notice of Ruling" you have invoked the 60-day deadline for your opponent to file a notice of appeal. A notice of ruling is a pointless document from the standpoint of appellate procedure. In Harter v. Rancho Rios Homowners...
I do not know who needs to hear this, but the Court of Appeal does not want to take any chances: While there are many tools of persuasion in the advocate's toolkit, accusing the court of being on the take from the Irvine Company, and being as corrupt as Tom Girardi, are not among them....
Counsel preparing for a trial involving expert witnesses need to keep two cases ready to hand: The first is Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, which prohibits experts from giving wild-eyed speculations on lost profits. And the second is People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), which prohibits parties from offering otherwise...
So you think you understand legal presumptions? Well, do you know the difference between a presumption that affects the burden of production, and one the affects the burden of proof? If not, do not feel too bad. The trial judge in Felix v. People of California (D5 Jun. 8, 2021) no. F080255 (non-pub.) didn't understand the difference,...
Ever wondered what a federal appellate judge thinks of your legal writing? Judge Robert Bacharach of the Tenth Circuit Court of Appeals told Jeff Lewis and me on the California Appellate Law Podcast. Judge Bacharach just published a book titled, Legal Writing: A Judge's Perspective. Judge Bacharach would like you to know: ✎ Writing clearly keeps your...
You are ready for oral argument. You have checked the tentative and you are ready to explain why the judge got it wrong. But unfortunately, the Superior Court for this particular county does not hold oral argument unless, after the court posts the tentative ruling, you give notice to the court and opposing counsel that...
In episode 11 of the California Appellate Law Podcast, TVA appellate attorney Tim Kowal discusses some recent cases with co-host Jeff Lewis in which state and federal appellate courts have found waivers and other errors made by attorneys and parties in the trial court. Like reading a high school yearbook, appellate decisions often capture attorneys...
So you have a judgment that is about to expire, but the judgment-debtor has filed for bankruptcy. Can you renew the judgment? Or does the bankruptcy stay apply until the stay expires? Yes, says the recent published opinion in Rubin v. Ross (D4d2 Jun. 4, 2021) no. E074210. Yes to both. Justice Menetrez concurs, asking: both? That...
I confess I probably would have turned away the defendant in this case had he asked me to take up his appeal from a judgment finding him liable as the alter ego of his company on a loan obligation. Alter ego findings are very difficult to reverse, and the defendant in Creation Harmony Trading, Inc. v....
Class actions only very loosely resemble the practice of law as most attorneys know it. Yes, they involve plaintiffs suing defendants in court before a judge. But most of the class members don't even know they're in the case, and wouldn't know their attorney if he showed up and their doorstep delivering their settlement check...
