After a disappointing ruling, a motion for reconsideration is often tempting. It is much cheaper and faster than an appeal, and, who knows, maybe the judge really did just overlook a key fact and will correct it after taking a second look. But in the case of a final judgment having been entered, the trial...
Three years and one SLAPP appeal into litigation over a commercial real estate dispute, defendants filed a second anti-SLAPP motion in in Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (D4d3 Aug. 20, 2021) 2021 WL 3700752 [no. G058687] (nonpub. opn.). But the statute says anti-SLAPP motions must be filed within 60 days...
When it comes to expert evidence, the trial court may properly exclude evidence that was not actually prepared by the expert. The normal rules of evidence authentication still apply, even where experts are concerned. But when an expert wants to offer opinions based on the same unauthenticated and unadmitted evidence, excluding that opinion is an...
Jeff Calkins, a recently-retired senior research attorney with the Court of Appeal, talks with appellate attorneys Jeff Lewis and Tim Kowal about what it is like working at an appellate court ("like a monastery," in a good way), about how the writ panel works, cultural differences in the different district Courts of Appeal, and why...
An order of contempt is not directly appealable. (Code Civ. Proc., § 1222.) It is reviewable only by writ. But what about an order of fees following a contempt order? The statute does not provide for appellate review or writ review, and the factors for writ review just do not apply to a cost order....
Closing arguments at a jury trial are critical for trial counsel because it provides the opportunity to tie together all the disparate threads presented to them during the course of the trial. But often, opposing counsel will see things very differently. And they will draw very different inferences from the evidence — and lack of...
There are two important but subtle rules of civil discovery that come to the surface in Estate of Huang (D2d4 Aug. 17, 2021) no. B307671 (nonpub. opn.). The first is that you cannot submit the same interrogatory twice: if you don't like the answer (or lack of an answer) you got the first time, you had better...
They can't be serious about that. That is what you probably think when you read rule 8.204(a) of the California Rules of Court. It sets forth a lot of pretty commonplace requirements for appellate briefs. It requires tables of contents and authorities, headings and subheadings, that kind of thing. It also says parties must "support...
The California Supreme Court in *Daly v. San Bernardino County Board of Supervisors* (Aug. 9, 2021) ___ Cal.5th ___ has decided one particular area of the law is unclear and needs "reexamination." When a trial court grants an injunction, and the injunction is appealed, does the injunction still apply during the appeal? When the Board of...
Appellate attorney John Reeves offers his pithy summation of the difference between trial attorneys and appellate attorneys. Watch the clip here. This clip is from the California Appellate Law Podcast episode 14, available here. Related Posts: Why Don't Appellate Judges Ask More Questions? Have you Noticed a Decline in Civility? Choosing the Right Verdict Forms for Your...
Motions for new trial are seldom granted. So seldom, in fact, that many attorneys — and judges, too — don't even know what to do when it happens. For example, a plaintiff has a right to a jury trial, and that includes a right to have the jury determine the amount of damages. So what...
After discussing the significant increase of amicus briefs filed in the California Supreme Court (and other state high courts and federal courts,), appellate attorney John Reeves discusses with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast what kinds of arguments in an amicus brief appellate judges might be most interested to read....
In a recent case involving more than one case number, the defendant got an early victory in one case, and got an award of attorney fees. The trial court, however, did not like the idea of rewarding one party partway through a complex litigation, so it imposed a sua sponte stay of enforcement of that...
Policy groups are more prevalent in our court system than ever, filing amicus briefs in record numbers. In California, amicus briefs are filed in over 37% of Supreme Court cases. Appellate attorney John Reeves tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that this is a good thing, ensuring court opinions...
Can parties settling a lawsuit agree to a stipulated judgment that is non-appealable? (Yes – that is rather an easy one.) What if there is a dispute whether the settlement has been performed: Is the order deciding that question appealable? This latter question is taken up in Summit Bridge National Investments IV, LLC v. Meguerditch Panossian (D2d2...
Nine out of every ten appeals are pretty straightforward, simply appealing from a judgment after a trial. But every tenth appeal or so is a headscratcher. This happens a lot in the case of interlocutory orders – critical orders like demurrers and preliminary injunctions that occur before a final judgment. These can devastate the case,...
Amicus briefs filed in an appeal by nonparties can be influential in the outcome of a case, but appellate attorney John Reeves, who has authored a number of amicus briefs, tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that amicus briefs should not be saying the same things the parties have...
Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and Tim Kowal that remote court proceedings using video technology may be a way to address an deficiency in access to justice in our judicial system. Watch the clip here. This clip is from a June 2021 interview in episode 12...
Answer: Denials of new trial motions are not appealable. But these things are never quite that simple, are they? Here are a few buts: 1. Denials of new trial motions are reviewable on appeal. This is expressed in the recent opinion in Leinen v. Carlton (D6 Jul. 30, 2021) no. H047030 (nonpub. opn.). The Walker v. Los Angeles County Metro. Transp. Auth. (2005) 35...
Getting writ review in the Court of Appeal is rare – even when writ review is the only appropriate means of review. In a recent opinion in LSG Las Tunas, LP v. A & R Corporation, Inc. (D2d2 Jul. 29, 2021) no. B307534 (nonpub. opn.), the appellant filed a writ petition along with its appeal, but the...
What makes appellate judges change their minds at oral argument? Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that judges can hear the same arguments with fresh ears. For example, arguments may have been unclear, and oral argument is an opportunity to make it clearer. Or your brief raised too many...
Appellate attorney John Reeves joined TVA appellate attorney Tim Kowal and co-host Jeff Lewis to discuss incorporating amicus briefs into your appellate strategy. John discusses Marin Housing Authority v. Reilly, a California case pending possible review by the United States Supreme Court, and has already attracted the interest of amici. At issue is whether a...
I was just wondering this myself: What happens to your arguments – your sound, cogent, and trenchant arguments – in a motion to dismiss an appeal, after the Court of Appeal summarily dismisses your motion? Are your arguments dead and gone? Or may you raise them again in your respondent's brief? The answer is: You...
Do appellate judges want to hear from you at oral argument? Contrary to many appellate practitioners' perspective in California state courts, Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that the unwritten rule among federal appellate judges is to come to conference with a tentative vote, otherwise they won't get assigned...
You are wasting your best opportunity to persuade if you are not prepare complete tables of contents in your briefs, Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me. The table of contents shows your reader the gist and structure of your brief. Yet probably half of litigants are leaving this rich vein unmined....
One of the first questions an appellate attorney tries to answer is whether there is an appealable order. It is pretty obvious why this is important: if the order is not appealable, your appeal will lose. But have you also considered: if you appeal from a nonappealable order, your entire case might lose? That is...
Avoid "throat-clearing" in your writing, but have a care for when "softening" may be needed. Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that meaningless expressions, like, "It should be noted that," are largely overused. But they can serve a useful purpose. I recalled this anecdote about novelist James Thurber, who...
Did you request a statement of decision? Did you object to the proposed statement of decision? These are among the first questions I ask after there has been a bench trial. Three recent appellate decisions demonstrate how easy it can be to forfeit strong issues on appeal by failing to request a statement of decision,...
As the legal community tests the waters with in-person trials after the Covid lockdowns, pro tem judges may continue to be an attractive option. Like private arbitration, pro tem judges offer more flexibility and availability than Superior Court judges. And contrary to arbitration, parties electing to use a pro tem judge preserve their right to...
Are the briefing limits in your court based on page count? Or word count? If page count, you still may be better off using Times New Roman, says appellate attorney Frank Lowrey in this edition of the world famous CAL Podcast's Lightning Round. Other vexing questions discussed: One space after a comma, or two? Pled,...
