After a former employee won a claim against the employer in Snoeck v. ExakTime Innovations, Inc., (D2d3 Oct. 2, 2023) No. B321566 (nonpub. opn.), the court granted the motion for attorneys’ fees. The court agreed that the value of counsel’s efforts would have been over $1.1 million. Would have been. But then the court applied...
Have an appellate oral argument coming up? We discuss tips shared by top appellate attorneys how to prepare for and give oral arguments. Some tips include: 🗣️ Anticipate the panel’s questions when you can, but… 🗣️ …be prepared to respond when you don’t know the answer. 🗣️ Be prepared to answer: “What is your rule”...
At trial, you have a right to impeach an adverse witness’s testimony. The court denied that right in People v. Bingham (D1d5 Sep. 26, 2023) No. A163112 (nonpub. opn.). The court admitted the 911 call of Bingham’s girlfriend reporting that Bingham had beat her up with a lock, but excluded her subsequent statements recanting. That...
If you set out to achieve the “impossible,” you are ambitious, but not alone. Impossible Foods, creator of the “Impossible Burger,” learned that another company, Impossible X, was also using the “Impossible” brand on some personal fitness and lifestyle websites, an Amazon platform, and a YouTube channel. But its sole owner-operator, Joel Runyon, lived in...
Anti-SLAPP motions are sometimes called early summary judgment motions. But the fact that they are “early” is why they are so powerful: not only do they provide defendants a quick way to defend against claims that involve speech, they force the plaintiff to prove its case without any discovery. On this episode of the California...
Congress has not enacted an anti-SLAPP statute like the ones in many states, such as California, which prohibit “strategic lawsuits against public participation.” Anti-SLAPP motions protect defendants sued for defamation or the like. But again, there is no federal anti-SLAPP law providing for such a motion. Still, that has proved no problem for the 9th...
A lot of savvy litigants search the web for ways to vacate an order after the time to appeal has expired. I know because many of these litigants have found my writings on this subject. Challenges made after the appeal deadline has expired is fruitless, you say? Well, sometimes it can work: section 473 of...
Among the hundreds of great new legal tech available in recent years, Clearbrief stands near the top. Jackie Schafer, a former big-law and state attorney general who had a vision of attorneys and their staff working more effectively and efficiently, designed an app that lives right in your Microsoft Word. Clearbrief lets you upload your...
So you have been sued and successfully compelled arbitration. Next step: do not fail to ensure your arbitration fees are received within 30 days. Not just paid, but received. The employer-defendant in Doe v. The Superior Court (D1d3 Sep. 8, 2023) No. A167105 put the check in the mail on day 25, but it was...
Sometimes in the weeks prior to an appellate oral argument, the court will order the parties to be prepared to discuss certain issues or cases. Sometimes this is called a focus letter or a pre-argument order. They are pretty common in the Ninth Circuit. But a dissent to a pre-argument order is less common. In...
We discuss some interesting recent cases out of the California Court of Appeal: Then we discuss the “Eisenberg rule,” and a survey that explains why lawyers still use legalese. 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...
The Judicial Council provides a form Notice of Appeal. But be careful if you use this form because it asks for extra information that could be used to limit the scope of your appeal or cause you to appeal from the wrong order. That is what nearly happened in Lacour v. Marshalls of California (D1d4...
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...
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...
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...
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...
