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California Appellate Law Podcast - Jeff Lewis

PMQ Declarations, Extortion & AI Judges

Tim Kowal     February 7, 2023

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 the letter has to be really bad, but some judges find extortion where there isn’t any. That can be chilling. Which may be why the Court of Appeal published this recent opinion finding no extortion, thus reversing the trial court.
  • Are DVRO or CHROs prior restraints on speech? Czodor v. Luo (Jan. 10, 2023, G060756) suggests narrowly tailoring the restrained speech to statutory abuse.
  • Could AI tell the difference between extortion and a permissible demand letter? We discuss one attorney’s proposal that judges replace their law clerks with AI.
  • Mitchell v. Mitchell (Jan. 27, 2023, A164780) reminds us that attacking trial court or opponent is not a viable strategy.

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Transcript:

Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:18 
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorney some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague.

Jeff Lewis  0:34 
And a quick thank you to our sponsor casetext. casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019, and I highly endorse their service and listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at casetext/calp. That's casetext.com/C A LP.

Tim Kowal  0:55 
All right, Jeff, we've got some recent cases and tidbits to share with our audience today. So let's get right into it. The first case we're going to be talking about involves a summary judgment. That was not appealed, but it got reversed anyway. So this is very unusual, Jeff the case is Magyar versus Kaiser Permanente Medical Center. What happened here was there were two summary judgments in there entered six days apart. So this was a slip and fall case. outside in the parking structure outside of doctor's appointment. The plaintiff sued both Kaiser and the operator of the parking structure, modern parking and the trial court granted summary judgment in favor of both defendants. But this sometimes happens not a lot, Jeff, but every now and then you'll get two different judgments each defendant here what for whatever reason, submitted their own proposed, you know, separate proposed judgment in the trial court, instead of just sending it back and said, Give me one proposed judgment that I can sign and be done with the trial court signed both of them, but didn't do it on the same day. We entered one on September 15 And the one against modern parking on September 21. Six days later, the plaintiff appealed from the first summary judgment but apparently neglected to appeal from the second, the court said that ordinarily, this means that the second judgment was outside the court's jurisdiction to review on appeal. But under the liberality doctrine, the court inferred that plaintiff probably intended to appeal from both because there was quote, nothing that would logically and conclusively demonstrate that plaintiffs intended to appeal solely from one of the judgments and quote, so for example, there's authority that when there are two judgments entered on the same day, the doctrine of liberality requires that the court construe the notice of appeal to mean both judgments are intended on the notice of appeal. But here, the orders were not entered on the same day, they're entered six days apart. There's in fact, another case that's analogous where two orders were entered 44 days apart. And the court said no liberality doctrine does not reach that far. So this is the first case that answers the question. If two judgments are entered on the same day, then the notice of appeal will be construed to mean both. If there's a judgment entered on one day and another appealable order entered 44 days apart, then the notice of appeal will not be construed to apply to that 44 day later order. But the question is six days closer to simultaneous or closer to 44 days? Simultaneous, that's a different beast, right? But 44 days, six days, it's all more than simultaneous. Anyway, this is about the broadest application of the liberality doctrine that I've seen. And it starts from the curious assumption that all judgments are contained in the Notice of Appeal unless something in the record, quote logically and conclusively demonstrates otherwise. And Jeff, that just seemed off to me. Well,

Jeff Lewis  3:35 
it depends on which side of the V are on as an appellate attorney. It's not terribly off, I will say, I'm super frustrated by this doctrine. I have a case right now, where the judge at the trial court inexplicably signed two identical judgments months apart, the Notice of Appeal, we identified the later judgment, not the earlier judgment, I brought a motion to dismiss because, hey, the earlier judgment was the first word on the matter. And that's the one that should have been appealed from the Court of Appeals said, Nope, at least in response to the motion to dismiss maybe in the briefs on the merits, we'll deal with it. But I've come across this liberal doctrine before and I guess it's an appellate lawyer. It's nice to have that breathing room.

Tim Kowal  4:09 

Well, it is and I can sympathize with it. But Jeff, you know that my hobbyhorse here is that the courts always when it is going to dismiss the appeal, it will stand and get up on the soapbox and say it's because it's this is a jurisdictional rule. And as much as we would like to reach the merits, sorry, we just can't do it. We can't make an exception because the exceptions are only provided by the legislature. We don't get to make it up as we go. But this liberality doctrine is an exception made up by the judiciary. So it's in Congress to talk about the appeal ability and timeliness of appeal rules is jurisdictional when you have an expanding liberality doctrine in the offing. All right. One other point about this case, Jeff, you know, sometimes we've talked about whether litigants should use the Judicial Council form notice of appeal, and I've told you that I've changed my practice and I had stopped using it by the lawyer but in this case that actually helped the appellant to use the Judicial Council form. The court noted that the court found it important that the plaintiff's Notice of Appeal using that form and remember that form has all those boxes you have to check what type of judgment are you appealing from? Is it a judgment after a jury trial? Is it a judgment after is it following and post trial motion is at a judgment following a summary judgment motion and in this case, the plaintiff check the box for this is a judgment after an order granting a summary judgment motion. The court didn't go into detail explaining this significant why it found that significant, but I got the impression that the court felt that because cases ordinarily terminate with a single judgment. The plaintiff appellants here should not be made to cower in fear of there being piecemeal judgments and where the plaintiff would have to take an appeal from each one. When there's a judgment following an order granting summary judgment. That ought to be the one final judgment.

Jeff Lewis  5:51
Yeah, you know, that same Judicial Council form also has a space for the date of the order or judgment you're appealing from. So I don't know that this use of the form or the courts interest in the use of the form really helps me understand the outcome here.

Tim Kowal  6:04 

Well, that's fair. As I said, the court didn't explain why it found it interesting. It only said that it found it notable. Okay, next, I still recommend my clients not use that form. Yeah, I do as well. Okay, next case, Jeff, you and I both flag this case as interesting. The upshot here is that there is no such thing as a corporate representative or a person most qualified witness when you are the moving party in a summary judgment motion. So here's what happened in Ramirez versus Avon Products, Inc. This is a published decision out of the second district division eight, a trial court relied on a hearsay declaration when it granted summary judgment to Avon in this talcum powder case alleging asbestos exposure. And what happened is that the important takeaway from the published Ramirez opinion is that corporate litigants cannot get around hearsay and foundation problems by designating their witness a corporate representative or a person most qualified. These are deposition tools not and runs around the rules of evidence. So what happened is that Ramirez alleged asbestos exposure dating way back 50 years ago to the 1970s, Avon offered the declaration of a vice president by the name of Lisa Gallo, but Gallo had only worked at Avon since the 1990s, which pretty long tenure as it is, but it still didn't go all the way back to the age of the plaintiffs allegations in the 70s. And so Ramirez objected when Gallo submitted a declaration about goings on of the company in the 1970s, where she had no foundation or personal knowledge. Plaintiff objected on hearsay and foundation grounds but trial court overruled those objections concluding that Avon had designated Gallo as its corporate representative, and the person most qualified on those topics, and besides the events happened 50 years ago, so it's not likely that Avon is going to have people still around who privy to the goings on personally in the 1970s. But the Court of Appeal didn't buy it, the trial court could get around the foundation and hearsay objection just by dubbing a witness a corporate representative or a person most qualified. The Court of Appeal said that the evidence code recognizes only two types of witnesses, lay witnesses and expert witnesses, and Gallo was not offered as an expert. The court went on to say that there's no special category of quote unquote corporate representative witnesses, as the trial court had suggested. There's no exemption from the evidence code for a witness who has conducted an independent rule. Gallo had said that I conducted an independent review and this is what I found, court said that does not get around hearsay and foundation objections, whatever is meant by independent review. What about a person most qualified attorneys are familiar with that concept when seeking information from an entity defendant via deposition? And if Ramirez had deposed Avon seeking that same information that Gallo had submitted in support of the summary judgment that Avon presumably would have offered Gallo to testify to the very same matters as in her supporting declaration? So why can't Avon do the same thing without having the deposition been taken? First, the answer, the Court explained is that the tools available in deposition are for discovery not to give the deposed party and end run around the evidence code. So Jeff, you want to pipe in here? Yeah, no, it's

Jeff Lewis  9:18 
super interesting case. You know, when the trial court, you know, said, Well, an independent review was done. And the Court of Appeal doesn't buy that as a replacement for foundation and laying a foundation for personal knowledge. I wonder, did the client literally say I did an independent review or could have declared avoided this result by saying, I have access to the corporate files going back to the 1920s? I've read each one. I spent three days reading each one. And I now have personal knowledge regarding the events set forth, or is it just a matter of getting those documents in front of the judge in exception to the hearsay rule? I just wonder what the solution is to the gate that's been slammed down by this case?

Tim Kowal  9:55 
Yeah, yeah. The court didn't make a very clear path here. But I think what it's suggested is that there is the business records exception to hearsay. But that was not established here. I think that maybe Gala was not the custodian of the records, or maybe just didn't, they didn't do the job in the declaration to lay the foundation for business records exception. And besides, she was trying to get in I think more than just the documents would have supported anyway, even some of the documents that the court did go later on, in the opinion to discuss one of the particular documents that was full of hearsay purported to be the conclusions of a scientist but didn't talk anything about the qualifications of the scientist or the methodology and pointed out that scientists conclusion sounded more like a PR statement than the conclusion of a scientific investigation. So for all those reasons, the court that now these these documents are not coming in under any exception, the groundwork hasn't been laid, there isn't the indicia of reliability sufficient to consider these enough to meet the burden of the moving party on summary judgment basis. And I just thought that Avon here, you know, I thought had a point in sensing that something seemed amiss, because it pointed out that look, plaintiff can depose Gallo for all this information, and then plaintiff can use the bits of gallows testimony that are supportive of plaintiffs theory of the case as party admissions. Right. But then when Avon wants to use Gallo same testimony to support its own case, it's barred on hearsay grounds and lack of foundation grounds that seem like that can't be the way it works. Avon II said, asymmetrical warfare comes exactly, exactly so the person so the first and most qualified can only be used by the person deposing the person most qualified. And the court said, Yep, that's how it works. That's how it works. The person most qualified as a way for the party suing or being sued by the on the opposite side of the V from the company to get information about the company to use in building its case. It's not for use by the company, you know, get self serving statements out into the record. Yeah, against the other the evidence code.

Jeff Lewis  11:55 
Well, yeah, you know, look, the rules regarding pm Q depots or pmk vunerable. Do like me, those are all interesting, but let's get down to it. We all know everybody's listening. This podcast knows the real reason you want to discuss this case. It's not so much the result, but the standard of review for evidentiary objections. I keep

Tim Kowal  12:12 
banging the table about the standard of review on evidence objections should be released for the matters of law like hearsay as black and white, you know, if you want to 352 objections are reviewed for abuse of discretion. I get that. I'll make that case all day long. But hearsay Foundation, those seem black and white to me and the court did go out of its way to note the split of authority on the standard of review of evidentiary objections made in connection with summary judgment, especially with one side holding that the standard is de novo and the other side sticking with abuse of discretion. The Ramirez panel actually did not go in this direction, even though it found that the evidence was improperly admitted, still cited with the majority, the majority of districts reviewing evidentiary rulings in summary judgment context for abuse of discretion. So my question was, why wasn't it within the trial court's discretion to consider the evidence in gallos declaration? Trial Courts can consider hearsay all day long as part of its discretion. So why not here?

Jeff Lewis  13:08
Yeah, that's a great question. I don't know why I didn't that wasn't the direction of this case. I don't know.

Tim Kowal  13:14 
And I wonder if it's because the court just decided, maybe the court didn't, because when the court admitted this evidence, it was thinking that there was such a thing as a corporate representative witness who can get around the evidence code, and there was a person most qualified exception to foundation and hearsay objections. And the court said, no, no, no, if if you had just considered this evidence reliable for other reasons, then maybe we would consider it within your discretion. But you made an error of law because there is no such thing as a corporate representative exception to hearsay or a P MQ exception to hearsay. So you got the law wrong, Judge. And so that's why it's being reversed as an abuse of discretion, because an error of law in the reasoning is an abuse of discretion. Okay, and that the last case that I had on my list to discuss before I turn it over to you, Jeff, for your cases, is the clicking jury versus fin wall case that holds that upheld that a pre litigation demand letter was not extortion. I was find these cases vexing Jeff, because every now and then, one of these pre litigation demand letters is deemed to be extortion. And I just feel that there's not been a clear enough line demarcation line. So anyway, I always think it's worth highlighting when cases come down on one side of the or the other on whether a pre litigation demand letter is or is not extortion. So this is case out of the second district gets a published case from November of last year, and there were unsavory allegations between a homeowner and his contractor. The owner in a drunken conversation with a contractor had confessed that he had taken money illegally as kickbacks during his overseas trips for his employer apple. The contractor thought this seems kind of icky but continued on the job for a while but then eventually quit on the job before finishing, allegedly based on the trepidation his trepidation of taking this ill gotten money that the owner had boasted of of getting it as kickbacks from his employer apple on overseas trip and when the homeowner demanded payment homeowner got it upset he didn't finish the job now it's gonna cost me a lot of money to bring someone else in here to get it finished. He demanded payment from the contractor. The contractors attorney responded with a matter of fact statement that litigation quote could result in Apple opening an investigation into plaintiff's relationships with vendors and quote, well, the homeowner pounced on this and sued for extortion and the contractors attorney in the suit was against the attorney by the way, the homeowner sued the contractors attorney who filed an anti slap motion arguing that his pre litigation letter was protected conduct but the trial court held that the letter was extortion. The Court of Appeal fortunately disagreed. The circumstances here did not fit into the egregious facts of the Flatley vs. Mauro case if you're ever dealing with extortion or alleged extortion issues, flatly versus Morrow, Supreme Court case that you need to look at, but instead, the court decided the statement was a permissible threat under Malin vs. Singer, a 2013. Court of Appeal case, which recognize that certain threats to disclose information during litigation do not amount to extortion as a matter of law, and of significance, the court thought that it was important that the letter wasn't sent to the owner himself. It wasn't meant to get the party quaking in his boots, it was sent to the owners attorney. So that was kind of a buffer that showed a sign of good faith rather than just trying to instill fear. And the letter was responding to the owners demand letter. So it was response to threatened litigation, not wasn't just coming out of the gate making this these demands. And the letter defended the contractor on the merits. So it didn't just say, you know, back off, because I'm going to make life a living hell for you. But it also, you know, dress the case on the merits. And the statement that litigation may bring the kickbacks issue into light was not a threat to report to prosecution or to prosecutors. But it was merely a matter of fact, observation. This was relevant to the reasons why the contractor begged off the job. So it's going to come up, and that's going to create problems for you. You know, I'm just saying it that saying we want to make the problems for you just a matter of fact, state, it's going to be a problem for you. So the court went on to find that the plaintiff failed on the second prong of the anti slap analysis to show a likelihood of prevailing on the merits. So the order denying defendants anti slap motion was reversed with directions to grant the motion and the defendant contractors attorney will recover his attorney fees for both his motion and the appeal. And, Jeff, just one final comment. I just thought I was surprised that the trial judge found that that letter was extortion, it just did not seem like a close call to me. And it just leaves me a little cold that there are trial judges out there who would find that that kind of letter is extortion.

Jeff Lewis  17:44 
Yeah. This is a perfect example of why AI will not replace lawyers in the context of anti slap litigation. I can't tell you how many times flatly V. Morrow is cited for the proposition that well, it's extortion and therefore exempt from the anti slap when people are not familiar with the facts of flat light, that there was a trifecta of threats made. I think it was to the IRS, criminal authorities and immigration that there was no real good faith attempt to negotiate the deal. I think even the picture of the envelope and the header and everything was put in as part of the opinion in this case, the facts of flatly were so extreme, you put 100 lawyers and judges in a room, they would all agree that's extortion. This is not even close. You know, I don't think anyone should ever invoke flatly without really immersing yourself in the extreme facts of that case. And if 100 People aren't going to agree it's extortion. Don't raise it, you lose all credibility and an anti slap motion or opposition.

Tim Kowal  18:37
Yeah, no, that's a great tip that it gives me an idea if we ever get a chance to interview someone who was promoting AI software for attorneys or to replace attorneys or law clerks, which we'll share in a tidbit later, maybe we should give him the facts of this case and see how the AI would come out on whether this is extortion or not.

Jeff Lewis  18:52
Yeah, it's a subtle distinction. But the although it's a subtle distinction, the facts of flat lay are so extreme. It's hard to find a case that fits within those four corners.

Tim Kowal  19:00
Yeah, agreed. All right, Jeff, what cases do you have for us?

Jeff Lewis  19:04
I have a couple of short ones. First one is unpublished. It's I'm going to butcher the name the door V Lu o at CZ DORV Lupo, l you Oh, it's an unpublished January 10. Case. Well, here's the reason I'm interested in it. And by the way, this came out of the fourth three involves the intersection of restraining orders and free speech and social media. You know, CHR OHS civil harassment restraining orders, workplace restraining orders and divorce restraining orders or special proceedings allow someone to obtain a quick restraining order with all the trapping without all the trappings and burdens of a full blown lawsuit. And most of the time these restraining orders whether it's CHR o or DVR, they say stay away, don't own guns, and they end up there. You get into these First Amendment issues when you start dealing with social media and future conduct and prior restraint because sometimes trial courts go too far and they say don't post anything on social media, which is a prior restraint there. This case, although it's unpublished, it's a great roadmap of the line between what is prior restraint, and what is lawful, lawful restriction on someone's social media use. And here, the person to be restrained was ordered to remove all the posts of the complaining party and not post in the future. any pictures or likeness of the protected party, if such pictures or likeness or posts would be abusive within the meaning of Family Code section 6203 and 6320. So by narrowing it said of saying don't post anything but say, don't post anything that a court could conclude is abusive. They made it narrow enough to survive scrutiny and so is upheld. And even though it's an unpublished decision, it's a great roadmap of how to navigate the important protections against prior restraint with legitimate interest in protecting people seeking domestic violence restraining orders.

Tim Kowal  20:50 
And is that you think that's narrow enough? Because it's not the courts not specifying anything other than don't violate the statute?

Jeff Lewis  20:58 
Yeah. So I guess there might be a vagueness challenge. I don't think there'd be a vagueness challenge facially, but as applied, possibly, but I imagine the person who's posting things about his acts or her acts on the internet probably has a pretty good idea from the specific case about what is and isn't abusive. And it probably has no legitimate reason to post pictures or likenesses of his ex. And so I don't know that a vagueness challenge as applied would ever succeed in this context.

Tim Kowal  21:24
And is there a time limit on this order about restraining the future conduct? I think they're they always expire after a five years.

Jeff Lewis  21:31 
It's five years the outer limit for these types of orders, sometimes only for one year or two years. But you can always go in and renew them and renewing them. It's pretty easy.

Tim Kowal  21:39 
Yeah, yeah. Yeah. Okay. Yeah, that's an interesting case. So it's a good roadmap for getting these orders that otherwise might fail as prior restraints by putting a narrowing provision in it.

Jeff Lewis  21:50 
Yeah, yeah. And then the other case, I don't think any of our listeners need to hear this. But our other case, I want to bring up another unpublished decision, Mitchell V. Mitchell. Every once in a while you have a case where you're working on the opening brief, and you get fired up, and you can't believe your opponent has done a, b, c, and d, or did A, B and C below and you put things in your initial draft that maybe make you feel good to write but should come out of your draft. This case, Mitchell V. Mitchell, from January 27 is another example of why you should take a deep breath and not do anything that's remotely close to attacking the integrity of the trial court or your opponent in a brief appellate case here did not issue sanctions, but issued a very stern warning and admonishment to appellant's counsel, because reminding the reader of the decision appellant's counsel that once you make these accusations either about the trial court or your opponent, and once it's filed the opponent, and the court must expend resources in defending against and processing the appeal, and an unsupported appellate tirade is more than just words on the paper represents a real cost to the opposing party and to taxpayers, and disparaging the trial judge is a tactic that is not taken lightly by the reviewing court. Counsel better make sure he or she has the facts right before venturing into such dangerous territory, because it is contemptuous for an attorney to make the unsupported assertion that a judge was acting out of bias towards a party. So good reminder to maybe have somebody else read your draft and take a deep breath before you file it.

Tim Kowal  23:16 
Yeah, yeah. As the court said, the opening brief is not an appropriate vehicle for the attorney to vent his spleen. Yeah, I was. Whenever I see these cases, these kinds of opinions that remind about the cost, the cost that frivolous or unsupported arguments impose on the other side under the courts. There's something about it that could threaten to be a little chilling to litigants who, you know, they think it's a good case, maybe the Court of Appeal has a different opinion, or the Justice thing. They're thinking I'm persuaded, and therefore you have wasted my time and the public's time and resources.

Jeff Lewis  23:50

There's nothing chilling, or that would impact a lawyer from showing not telling but showing how to trial at trial court acted with bias or how a trial court frequently violated appellants rights, you show it the trial court did this. The trial court did that. And let's leave the reviewing court to reach that opinion. No lawyer is ever going to be sanctioned for explaining what happened below. Right. And if it's egregious, and as egregious as you think the Court of Appeal will recognize that,

Tim Kowal  24:15 
yeah, yeah, there might be a nice, it would be a good useful legal tech that could take your brief and take out all of the conclusory remarks and all the statements that are supported only by your own adjectives and leave only what is supported by the record and then see if it's worth sending it up to the Court of Appeal. Yeah. I mean, a lot of briefs that are only conclusions and adverbs, and not a lot of substance besides, clearly you're right. Okay. You know, there were a few tidbits I wanted to share just some quick shots here. Let's see there's one been kicking around for a little while. I just want to share it. I thought it'd be interesting for anyone who is working on a writ petition. Here's a nice language from published opinion a few months back about rent relief. This kind of provides a nice roadmap and mental roadmap and roadmap for your reef. Here's the quote, It is appropriate to review discovery orders via a writ of mandate. This is a case about a discovery order. Obviously, it's appropriate to review via a writ of mandate when we are presented with a question of first impression, which is of general importance to the trial courts and to the profession. And in conjunction with which general guidelines can be laid down for future cases. That quote is from Rudnik versus Superior Court. It's a 1974 case, oldie but a goodie, something to bookmark for your writ petition file. Yeah. All right. And then here was this interesting bit about under the heading should AI replace law clerks? No. Okay. so hear me out. Jeff, you're out. Attorney Adam unit kowski, who has written a series of posts on his substack blog about the various areas where AI might replace human lawyers, including writing arbitration awards, because arbitration is voluntary, at least nominally, and even writing initial drafts of judicial opinions. Here's what Mr. Yuna kowski says. He says in the shorter term AI could and in my view should serve the same role that law clerks play. Now the AI would review the briefs summarize the arguments and make a recommendation as to how the case should come out. After the judge decides how the case could be resolved, the judge should summarize the rationale, the judge could summarize rationale to the AI and the AI could then prepare a draft of the judicial opinion based on that rationale, and the judge would review and edit the AI would cite check and offer further comments. And the opinion would then be released, presumably with the final check being a human judge. But the benefits of AI for this purpose would be twofold accuracy and speed and unicast. He had mentioned the old adage about justice delayed is justice denied. So AI could step in come to the aid of those who have been waiting years and years and years for a result in this case by speeding up the process. So what about

Jeff Lewis  26:52
justice being denied being justice denied by having a robot be the filter for legal arguments? I'm not comforted by this article.

Tim Kowal  26:59 
All right. Well, Jeff, you ran your own experiment on this. So tell us about that.

Jeff Lewis  27:04 
Yes, I'm here to tell you that AI has determined to declare that AI is not ready to be used for law clerking I use I'm a big fan of notion, I use that product. And they have an AI beta going on right now. And I had it write an article about the prompt was, should AI be used to replace law clerks and the spit out of six paragraphs that I got from VA AI said this is a an issue that depends on the individual needs of the particular project. And while AI technology offers the potential for increased efficiency, it's important to weigh the pros and cons carefully before making a decision. This is a clear threat that Skynet is right around the corner, and that we should not use AI to replace our justice system.

Tim Kowal  27:47
Well, all kidding aside, I do. I was alarmed to see someone supporting the idea of judicial opinions being written by AI. I don't think we're quite at that level. yet. We're still just being introduced to the possibility that AI can write sentences and whole paragraphs that might fool people into thinking that they're being written by human beings. And now we're talking about deciding people's livelihoods and lives in judicial opinions through the use of AI. That is scary. Yeah,

Jeff Lewis  28:13
I've got two thoughts here, Tim, one of these days, we should do an episode where AI writes all of our dialogue. And we'll just read what the AI wrote. We'll see how that goes. And then number two, on the issue of AI being useful in some spaces, I use Westlaw, they have a thing called brief check. And I use case text. They also have a brief check thing where you can put in your opponent's brief and put in your brief and it will spit out the universe of cases you should be reading. I think that's a great application of AI. Maybe they give you a universe of cases to at least start your research from there are limited uses of AI but I'm not ready for AR to start driving my legal car.

Tim Kowal  28:48 
No, I agree with you. I think this seems a little bit jumping ahead. To me, there are a lot of applications of AI, before we jump ahead to consuming our written content, replacing all the content written content that we consume with AI content that seems jumping rather far ahead. Okay, next tidbit, the Supreme Court California has granted review and a couple of civil cases, one of which is the the two and a half million dollar sanctions award in Los Angeles versus Price Waterhouse Coopers, the PricewaterhouseCoopers case held that unless there's a specific section of the discovery act authorizing it and award of sanctions may not be imposed. So that case actually reversed the trial court's two and a half million dollar award of sanctions. It was awarded to the against the city of Los Angeles for its egregious abuses in that PricewaterhouseCoopers case. So that award was reversed. But there was a very what I thought a persuasive, dissenting opinion by Justice Grimes, who raised a point that I thought devastating She noted that there is no specific provision in the discovery act either that sanctions the spoliation of evidence, but if the discovery act sections authorizing sanctions Do not authorize the sanctions in the PricewaterhouseCoopers case in the majority's holding has rendered spoliation as long as as well as the other egregious wrongs the city of Los Angeles had committed in that case as mere wrongs without a remedy. So this is just another one of those cases that the law can not do anything about unless the supreme court grants review and the Supreme Court did grant review. So we'll stay tuned to see what happens there. Okay. There was on the subject of sanctions, there's another case where $69,000 and appellate sanctions were imposed by the sixth district. This was $60,000 awarded to the respondent plus another 8500 to the clerk of court against an appellate and his counsel and an unpublished decision court held that given the clear application of the law, the case doctrine in this instance, we conclude that any reasonable attorney would agree that the appeal is totally and completely without merit. The court also noted that the appellate talents brief, misrepresented the record, and also played fast and loose with the substantial evidence standard, significantly, the substantial evidence argument in the appellants brief misrepresents the record and misapplies, the standards of appellate review. And finally, the purpose of the appeal appeared to be to delay contempt proceedings against the appellant. So those are all big nose that resulted in a $69,000 award of appellate sanctions.

Jeff Lewis  31:22 
Interesting. Hey, did Supreme Court grant review together like it's hearing those pieces together to decide this issue about sanctions powers? Are these two unrelated grants? Oh, yeah,

Tim Kowal  31:30 
this is an unrelated case. There's not far as I know, not been review granted on the $69,000 sanctions case.

Jeff Lewis  31:37 
And it actually the justices decide to grant review, or is it AI that determined whether or not these were appropriate cases for review?

Tim Kowal  31:44
You know, that? How would we know unless the Justice volunteer that information? Okay.

Jeff Lewis  31:48 
All right. Stay tuned. Okay. And

Tim Kowal  31:50 
then for last tidbit, there's currently a heated debate in the Third Circuit, Federal Circuit Court of Appeals about whether the filing deadline should be midnight, or 5pm. Midnight, sorry, go ahead. This is prompted analysis of when appellate filings actually occur. So there's been a study of win winner attorneys actually filing their briefs in a study of about over 1.3 million docket entries made in the Court of Appeals in 2018. Most were made between 8am and 5pm. But at 9%. After 5pm. There, the filings, about 8.9% of the filings were after 5pm. But if we're just talking about briefs, that number goes up to 15%. And after 6pm of all filings, about 4.9% are filed after 6pm. And if we're talking about briefs, it's 10%. Yes. So what does that about 25% of briefs in the court of appeals are filed after 5pm. So yeah, why don't change the midnight rule?

Jeff Lewis  32:48 
What is the problem they're trying to fix here? You know, here's the question that maybe you're a crack team of law clerks there at your firm consult. How many? Let's see. 25% of these briefs were filed after 5pm. So 75% were filed before 5pm. What is the success rate of appellants opening briefs for the rushed briefs filed after 5pm? As opposed to the steadier briefs filed before? 5pm? I wonder if there's a material difference in the reversal rate?

Tim Kowal  33:15 

Yeah, that'd be fun that to have on hand. But your first point about what problem does this solve? Are the judges waiting around? You know, at the end of the day hoping the briefs come in so they can start reading them?

Jeff Lewis  33:26
When is Tim's brief? Can it be here? I can't wait to read it. That's what they're saying.

Tim Kowal  33:30 
Now, I think that may be true of my appeals. But I don't know about yours. Do you run

Jeff Lewis  33:34 
out of briefs to file to read? I need another brief on my pile? I don't have enough to read.

Tim Kowal  33:38 

Yeah. Well, I think every attorney breathed the sigh of relief with when those electronic filing rules came out and allowed filing to be done up until 1159 and 59 seconds. I don't think anyone is looking for would be hoping for that rule to roll back to 5pm.

Jeff Lewis  33:54 
Yeah, I'll say though, when you've gotten a brief that's filed in the middle of the day, and you get the feedback within an hour, whether your briefs accepted or not terms of technical requirements when you file in the middle of night, so you live in 59 You have no idea if your brief is technically compliant, it will be properly filed or accepted. So best always to file before five. But please don't change the rules regarding midnight.

Tim Kowal  34:15 
Well, yeah, that's right. If the clerk processes it during the same day that you filed it, then there's no question about when it's going to it's going to be stamped on the same date you file it or maybe the day later when the clerk processes it because you filed it after business hours. Always a better practice to file it sooner rather than later. But okay, well, that's the last of my tidbits for today, Jeff.

Jeff Lewis  34:33
All right. I think that wraps up this episode. Again, we want to thank casetext for sponsoring podcasts each week we include links to our cases, we discussed using casetext and listeners of our podcast can find a 25% discount available to them if they sign up at casetext.com/calp. That's the casetext.com/CALP.

Tim Kowal  34:50 
If you have suggestions for future episodes, please email us at info at cow podcast.com We're always interested in hearing your suggestions for guests that we should have on the show or topics that we should cover and in our upcoming episodes always look for more tips on how to lay the groundwork for an appeal when preparing for trial that only

Jeff Lewis  35:06 
send us human feedback. We don't want AI feedback. See you next up.

Announcer  35:11 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

Leviticus

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Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

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Rubin v. Green (1993) 4 Cal.4th 1187

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