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Tag: Appellate Practice

November 1, 2023
Can a respondent forfeit issues by failing to brief them? A bizarre opinion says yes

A bedrock rule of appellate practice is that an appellant who fails to brief an issue forfeits that issue. That rule applies to appellants. You know, the person challenging the judgment. It does not apply to the respondent—the person defending the judgment. Why? Because a bedrock principle of appellate review is that all intendments and […]

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April 25, 2023
Should AI Replace Law Clerks? Yes, says Adam Unikowsky

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 […]

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June 7, 2022
Ben Shatz on the California Academy of Appellate Lawyers 50 Years On

When a cadre of appellate nerds began the California Academy of Appellate Lawyers (and Eating and Drinking Association) 50 years ago, the state appellate system was not functioning well. Ben Shatz joins Jeff Lewis and Tim Kowal to talk about the founding of CAAL, where appellate jurists and practitioners could speak frankly about the problems […]

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December 7, 2021
Should You Take a Writ? Anne Grignon on Arbitration Writs & 3 Tips for Your Next Appeal: Cal.App.Law Podcast ep. 19

Appellate attorney Anne Grignon joins Tim Kowal and Jeff Lewis to discuss her recent win in  Banc of California v. Superior Court from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorney then turn to private judging generally, discussing Justice Segal's recent caution about the industry's […]

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October 14, 2021
How Does a Client Measure Success? Our Conversation with Outside General Counsel Lee Goldberg

Lee Goldberg joins us for a discussion about his perspective as in house counsel. Lee shares decades of experience using litigators to solve business problems and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn and his website CalLawyers.com, and what a general counsel looks for when […]

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November 4, 2020
Can't the Trial Attorney Just Handle the Appeal?

I have a new short video up explaining what an appellate attorney is, and why you should bring an appellate attorney on to your litigation team.

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October 16, 2020
Appellate Reversal Rate Up, Time to Process Appeals Up, Per Cal. Court Stats Report Some interesting information about California appellate courts from the 2020 Court Statistics Report:

-- The rate of reversal in 2019 was up to 18% in civil cases, from 16% in 2018. -- About 4% of appeals are dismissed. (This should make you think about appealability and timeliness issues!) -- Last year saw the most depublished opinions in a decade. Not by a lot. But I find it noteworthy […]

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October 12, 2020
Updates from the Fourth Appellate District

At the OCBA's Appellate Section event last week, the Presiding Justices from each of the three divisions of the Fourth Appellate District provided some inside baseball on their respective divisions: Justice Judith McConnell from Division One (San Diego), Justice Manuel Ramirez from Division Two (Riverside), and Justice Kathleen O'Leary from Division Three (Santa Ana). Some […]

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print (29)
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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

"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

"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

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

Leviticus

"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

"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.)

"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

"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

"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

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