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Strategic Litigation

What do we mean by "strategic litigation"? Every litigation involves strategy of some sort, and every attorney has their idea of what strategy is appropriate. But as Mike Tyson said, everybody has a plan until they get punched in the face.

Here are some examples of the kind of challenges we help our clients navigate when their cases don't go according to plan:



A preliminary injunction can effectively win or lose your case, even long before the trial. If you are seeking an injunction, we can help you win, and defend it on appeal. And if you are opposing an injunction, we can help you defeat it, or challenge it on appeal, as well as seeking an appellate stay of the injunction.

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A case may be temporarily stayed for a number of reasons, most commonly when an appeal or a bankruptcy is filed. We help many clients understand their rights to stay a case, including whether they need to post a bond, or whether they need to seek relief in the trial court or the appellate court, such as for a writ of supersedes.

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Corporate Representative
& PMQ Depositions

Many attorneys overlook the importance and nuances involved in corporate-representative depositions. When a person-most-qualified is designated to testify for an entity party, that representative has a different role than a typical witness. Make sure your trial team understands the strategic concerns.

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One common but unexpected way cases get derailed is when the judge imposes issue sanctions, evidence sanctions, or terminating sanctions. We have helped clients avoid these sanctions, and challenge them on appeal.

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Dispositive Motions

Changes in the case, such as through discovery or pleading amendments, could make it worth considering a motion for summary judgment, which could end the case before trial. We help maximize the chances that these motions will succeed and hold up on appeal. And when opposing these motions, we advise on the technical objections available that can save the case from early demise, and to resurrect it on appeal.

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Trial Rulings and Strategy

Trial attorneys have to focus on staying on message to persuade the jury. We serve as embedded appellate counsel to assist with the technical but necessary aspects of trial like preparing motions in limine, jury instructions, and verdict forms, addressing adverse evidentiary rulings, and putting key trial exchanges on the record. And if you are in federal court, grounds for judgment as a matter of law must be raised before the jury is charged, or else they are forever waived.

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Post-Trial Motions

Once the jury hands down its verdict, the trial team needs to start looking at the case with new eyes. Is the jury's verdict consistent with the facts? Is the jury's verdict internally consistent? Are the damages excessive or inadequate? Are there legal challenges that can be raised against the verdict? Many of these challenges may be forever waived if they are not timely raised in a posttrial motion. And even if a posttrial motion is not strictly necessary, previewing the defects in the judgment may favorably position your appeal for settlement.

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Statements of Decision

On a trial without a jury, it is critical to timely request a statement of decision. A statement of decision in a bench trial (where the judge decides the facts) stands in for the role of the verdict. Without a statement of decision, there is no record of how the court decided any of the facts. We help the trial team timely request a statement of decision, and ensure the statement of decision hits the key issues to position the case for success on appeal.

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When a lawsuit raises factual issues concerning the right of free speech or the right of petition, it may be subject to an anti-SLAPP motion. "SLAPP" stands for a strategic lawsuit against public participation. A defendant who brings an anti-SLAPP motion and successfully dismisses or strikes aspects of the complaint is entitled to attorneys' fees. And either party is automatically entitled to appeal the order. We counsel clients and attorneys on anti-SLAPP motions, and avoiding filing pleadings that may be susceptible to anti-SLAPP challenges.

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ESI Discovery

Voluminous discovery usually involves issues with ESI—electronically-stored information. With a strong technology background, we have consulted numerous clients how to comply with ESI obligations.

These issues in the trial court often come up unexpectedly. Contact Kowal Law Group to anticipate these issues in your case. And remember Justice James Lambden's advice: litigation is not a battle, it's an expedition.

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"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

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

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"A judge is a law student who grades his own papers."

— H.L. Mencken

“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?”

— James Madison, Federalist 62

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

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

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