Most appellate opinions in California include a full summary of the facts and procedural history, as consistent with the constitutional entitlement to a reasoned opinion. But sometimes the Court of Appeal will issue a mere “memorandum opinion” when the result is compelled by authority on which there is no real question. (People v. Garcia (2002)...
Here are some legal trends and trivia from this week: ️Remote access in federal courts to end on September 21, 2023. (Reuters.) ⚖️Former Chief Justice talks about her legacy, SCOTUS ethics, and programs to address “historical racism”. (Via David Ettinger.) This is how a judge politely says “your arguments are bad and you should feel...
After the theatrics of trial comes the sleep-inducing reading of the law. Do jury instructions matter? Studies show that jurors don’t even understand jury instructions, so what is the point of the judge taking a half day at the end of trial putting the jury to sleep by reciting all those CACI forms? Appellate attorney...
The 60-day deadline to appeal begins to run once a party is served with a file-endorsed copy of the judgment that shows the date of service. Sounds simple, but the requirements for that document under California Rules of Court, rule 8.104, can be tricky to meet. A case in point is Construction Industry Force Account...
Opioids, takings, terrorism—these are at the core of a few of the cases that appellate attorney Carl Cecere is handling. After deciding to leave BigLaw, Carl found that a combination of Twitter and lots of travel with the purpose of meeting interesting colleagues has fueled a pipeline of provocative cases into his solo practice. We...
I have previously noted that California appellate courts ought to change their practice of requiring an oral record when the appellant does not seek review of any factual findings. (See here, here, and here.) Appellate justices are openly split on this point. (See here.) On the side of relaxing the requirement of having an oral...
Here are some legal trends and trivia from the week ending May 11, 2023: 5:00 filing deadlines coming! The Third Circuit adopted a rule that requires filings be submitted by 5 pm on the due date. Fed. R. App. P. 26(a)(4)(B) sets the deadline for electronic filings in a court of appeals to be midnight...
Sometimes you CAN beat city hall. But the city, even after a court loss, can still win. Municipal law attorney Peter Prows discusses strategies to keep in mind if you ever go up against the city. The key takeaway: Once its made up its mind to do something, a city (or agency or whatever) will...
When challenging an agency action via a writ of administrative mandamus, the trial court’s ruling is the appealable order. If you are going to appeal, do not wait around for a judgment, or you could be too late (like in this previous case). But that is not what happened in the mandamus case of County...
Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms: Judges should issue more sanctions against frivolous SLAPP motions. The Legislature should amend the statute so that SLAPP denials are reviewable only by way of writs. Jeff tries to stump Tim on a SLAPP appeal...
The court in Robertson v. Larkspur Courts (D1d1 May 2, 2023) No. A166818 (nonpub. opn.) could have done worse to the recalcitrant plaintiff than just dismiss his appeal. In this landlord-tenant dispute over a mold issue, the parties stipulated to a judgment. The landlord did its part and paid Robertson $28,000 as agreed. But then...
Courts upheld a gun ban but overturned a gas ban, and found yet another strange application of section 998 offers. Judges and clerks are more becoming more racially diverse, but come from a very short list of schools. And PJ Rubin talks about the best kind of oral argument. Cal. Ct. App. says California’s ban...
Consider these two alternatives for ending a brief: “This Court MUST reverse.” “This Court SHOULD reverse.” Stefan Love, who reviewed John Blumberg’s book Persuasion Tips for Trial Lawyers, explains why you should consider the latter choice. No one—judges included—like being told what they “must” do. But what if the authorities are clear that the result...
On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine: Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing....
The film production in which a prop-gun-wielding Alec Baldwin fatally shot the cinematographer spun off a civil lawsuit in Salveson v. Kessler (9th Cir. Mar. 29, 2023) 22-55472 (nonpub. opn.). But as the 9th Circuit holds, the civil case—involving a producer’s claims concerning his former lawyer’s business and tax practices—holds out no issues of public...
“Give your listener one thing to do at a time,” says appellate attorney Stefan Love. So you’ve got a great photo to flash on the screen, or a damning quote for your jurors to read, but at the same time your jurors are supposed to be studying the photo or quote, the attorney is also...
CEB has published my article, “What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal.” In the short article, I discuss a common confusing scenario: what happens when a judgment is reversed, but the fee award is still on appeal? That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil,...
The first step to determine whether an appeal is timely is to find out if there was a Rule of Court 8.104(a) “triggering document”—either a “notice of entry” or a file-endorsed (stamped) copy of the judgment showing the date of service. In McKenzie v. Alta Resources Corp. (Apr. 25, 2023 No. G061292) 2023 WL 3067690...
Adam Unikowsky, an appellate litigator with nine appearance in the U.S. Supreme Court, argues that judicial law clerks could be replaced by AI. We discuss: “AI will make judges release more accurate decisions more quickly. This is good.” Judges already rely on clerk summaries, so if AI produces better summaries faster, that is good. AI...
Here are some recent news items of interest to attorneys and court-watchers: California courts spent nearly half-billion dollars on court reporters, but that’s not enough. (Via Ben Shatz.) So if a court reporter isn’t available, SB 662 would allow electronic recordings to create the appellate record. Stiff court reporter lobby opposition expected. (Via Ben Shatz.)...
“One more thing,” the appellate attorney darkly muses. “Be ready to file a protective cross-appeal.” Wait, what? What the heck is that? Is this just one more way we appellate specialists try to get added to trial attorneys’ speed-dial? Here a 3-minute explainer. Basically, just remember: if you lost a verdict but won a JNOV,...
After dissolving her marriage and entering a marital settlement agreement, Darya Khankin went through some old boxes and found over a million dollars in undisclosed funds she claimed were taken by her ex, Anatoly Dumov. So she moved to set aside the dissolution judgment, noting that under Family Code section 2103, failure to comply with...
Sometimes when a case on appeal settles, the settlement will involve stipulating to reversal of the judgment. That much was no surprise in the stipulated reversal of a citizens group’s challenge to the City of Palo Alto’s utility rate structure in **************************Green v. City of Palo Alto (D6 Mar. 27, 2023 no. H049436) 2023 WL...
AI, they say, will revolutionize the practice of law. But can it do anything for my actual practice, as in, the case I am working on right now? Prof. Jayne Woods joins us to explain how she used ChatGPT—the question-and-answer AI interface—to draft a very passable first draft of an oral argument outline. Even better,...
Here are some recent news items of appellate interest: It's official: AI has passed the Uniform Bar Exam. GPT-4, the upgraded AI program released earlier this week by Microsoft-backed OpenAI, scored in the 90th percentile of actual test takers. (Look for two new California Appellate Law Podcast episodes on ChatGPT and AI in the law.)...
Everyone knows two things about the deadline to appeal: The deadline is 60 days. You can get an extension if certain posttrial motions are filed. But the 60-day rule is only partly correct. The posttrial timing can be slippery. And there are more complexities besides. In this 5-minute clip, Jeff Lewis and I discuss how...
Do not forget to have the jury make all the required findings. Once the jury is discharged, as happened in ***************People v. Jones (D1d5 Apr. 4, 2023) No. A163558, the court loses control of the jury, and so the jury cannot be reconvened. The prosecutor in Jones had charged an enhancement based on a prior...
You have just about 15-30 seconds at oral argument before the panel is likely to interrupt you. How will you use that time? Minnesota appellate attorney Jeff Markowitz says you should be unlocking that key point that allows the rest of your case to unfold. If you haven’t discovered that point by the time of...
Commentators have predicted that California appellate courts would thumb their nose at the U.S. Supreme Court’s 2022 holding in Viking River. Viking River was the case that abrogated the California rule of Iskanian, and held instead that employers could enforce waivers of representative PAGA claims. And thumb its nose is just what the Second District...
A few days ago we mentioned Tim is opening a satellite office in Texas, which means expanding the podcast’s jurisdiction. So in this episode we take care of some business with the proprietors of the Texas Appellate Law Podcast, Todd Smith and Jody Sanders. Todd and Jody had the same idea during the pandemic to...
