As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette. So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of...
CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription). Here is a summary: My most frequent advice as an appellate attorney: “Don’t forget to get a court reporter.” This wisdom of this advice—the most oft-dispensed...
It has been called “the law that swallowed California.” CEQA, the California Environmental Quality Act, accomplished good things at its inception in 1970 but now it is used to thwart nearly any kind of development someone doesn’t want. “CEQA is not intended as a population control measure,” observed the Court of Appeal in a recent...
Trick Question: You have 180 days to appeal if no one serves a notice of entry or a file-stamped copy of the judgment. You never received one of those documents. So you have 180 days to appeal, right? Wrong. Or at least, you can’t be so sure. That’s what the defendants learned in Dannelley v....
Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language...
While the California Supreme Court is still reviewing the question whether a writ of mandate is the sole method of reviewing an order on a motion for good faith settlement (Code Civ. Proc., 877.6, subd. (e); In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, review granted August 17, 2022, S275134), a defendant appealed the...
Sometimes even appellate justices are annoyed by the rules of appellate procedure. Apparently the entire panel would like to affirm this denial of a resentencing petition filed by Arreguin, convicted in 1993 for his part in the murder of Richard Schell. Arreguin served as the getaway driver and urged the gunman to “shoot ‘im, shoot...
Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing. Then we turn...
When you are trying to enforce a judgment, you may be tempted to seize special personal property, like mementos, or the beloved family pet. But while these are personal property, if they do not have significant value, it will be seen as an improper purpose. So that might not be a good strategy. But judgment-enforcement...
Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this? Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random...
CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the...
Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule. But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may...
This podcast is often a soapbox for complaining about oddities in the California court system. But then we wondered: are the courts in other states better? Maybe they’re the same—or worse. So we thought we should start a conversation with a couple of attorneys on their own soap box in Chicago, Dan Cotter and Pat...
I haven’t met an attorney who wouldn’t love a tentative opinion or a “focus letter” on their appeal. But have you ever tried to articulate how, exactly, it would help to know what the panel is thinking? It seems intuitive, but really, what would you do if you knew the panel disagreed with you on...
The 100th episode of the Portia Project®️ airs today, March 2, 2023, kicking off Women’s History Month. The Portia Project Podcast features women judges, attorneys, and other legal professionals, chronicling their unique paths in the law. Subscribe in your podcast player, or listen and learn more here. In anticipation of this achievement, we interviewed M.C....
In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations...
You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case. And, you had better make a...
After getting hit with an anti-SLAPP fee award, the plaintiff in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.) filed a notice of appeal. McKenna had already filed the order granting Sony’s anti-SLAPP motion based on alleged misappropriation of the likeness of the late actor Christopher...
“I know the sting of a loss as well as anyone,” says Justice Laurie Zelon, but if the course of the case is really not going to change, writ relief is highly unlikely. If the issue is going to be dispositive of the case so that the case would have to be retried, however, that...
This will probably never happen to you, but in case your appeal is dismissed and you are late in filing your motion to vacate the dismissal to reinstate the appeal, consider asking the Court of Appeal for a favor like in Sidney v. Riley. The Court of Appeal asked the Supreme Court to grant review and...
So you think you know how to determine the deadline to file your notice of appeal? You can test your abilities using the facts of Castillo v. McCreary (D2d3 Feb. 21, 2023 No. B317493) 2023 WL 2131341 (nonpub. opn.). On September 3, 2021, the trial court entered a minute order imposing discovery sanctions against the...
For attorneys, the best referral is a referral from another attorney. But before you refer to another attorney, beware of the ethical traps. Kristi Thomas, a labor and employment attorney who also focuses on ethical issue, warns in a recent article that incautious referrals can lead to a conflict of interest, or an improper referral...
Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023). Here are the tips: Rule Zero: Make the Record #1 Make sure your theories of the case are captured in your pleadings #2 Was key evidence excluded? Preserve the issue by making a...
“When I got out of law school,” Joseph Chora related, “I knew nothing.” So like many of us, he started out by taking any case that came in. Until, that is, a mentor told him “that’s a dumb idea.” Instead, you should “find something that is difficult, arcane, and that nobody knows how to do.”...
You may be able to convince a judge that an arbitrator’s award was wrong on the law. The judge thought so in E-Commerce Lighting, Inc. v. E-Commerce Trade LLC (D4d2 Dec. 9, 2022 No. E074525) --- Cal.Rptr.3d --- and so reversed the setoff awarded by the arbitrator in this lender-borrower dispute. Basically, the lender and...
The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs? Do you have to separately appeal from the fees and costs award? (Yes…usually.) How can you stay enforcement of the...
When I tell trial attorneys my top appellate advice—don’t forget to get a court reporter—the common response is, “I already knew that.” But when I give them my second most important appellate advice—don’t forget to request a statement of decision—the common response is bemusement. “What for? The court gives a tentative decision, and I can...
Ordinarily, it would not be newsworthy that a U.S. District Court allowed a brief that was filed 15 minutes late. But Judge R. David Proctor not only refused to strike the late-filed brief: he ruled that striking a brief just because it was filed 15 minutes late would be absurd. In the District Court ruling...
On this cases-and-tidbits episode, Jeff Lewis and I discuss: Ramirez v. Avon Products: There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed. Flickinger v. Finwall: Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows...
CEB has published my article, “There Is No Such Thing As a “Corporate Representative” or “Person Most Qualified” Witness.” The article discusses Ramirez v. Avon Products, Inc. (D2d8 Jan. 23. 2023 no. B313982) --- Cal.Rptr.3d --- (2023 WL 354915), which reversed a summary judgment. The corporate defendant had supported summary judgment with a “corporate representative”...
