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Tag: Briefing

June 8, 2023
Best Briefing Tips of 2022

After interviewing dozens of guests on the California Appellate Law Podcast, Jeff Lewis and I recapped some of the best briefing tips from 2022. In this clip we cover: Judges’ three key fears when deciding cases (via Ross Guberman) ️Kill your darlings—find the cleverest line in your brief, and delete it (via Ross Guberman) ️Litigation […]

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May 4, 2023
Telling judges what they “must” do only dares them to do the opposite

Consider these two alternatives for ending a brief: “This Court MUST reverse.” “This Court SHOULD reverse.” Stefan Love, who reviewed John Blumberg’s book Persuasion Tips for Trial Lawyers, explains why you should consider the latter choice. No one—judges included—like being told what they “must” do. But what if the authorities are clear that the result […]

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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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March 28, 2023
Top Tips for Respondents on Appeal to Get Your Judgment Affirmed

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 […]

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January 10, 2023
The Best Advocacy Tips of 2022

In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022. Some of the tips and trends we cover: There is a trend toward informality in legal writing—but do pop-culture references go […]

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December 14, 2022
Stipulated Briefing Extension Requests MUST Be Granted, Supreme Court Says

Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension. In Aaronoff v. Olson, […]

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May 3, 2022
“Stump Tim,” Do Sympathetic Parties Get Better Results? And Other Recent Cases

After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases involving: Defective notices of appeal. Can an action be dismissed pending appeal? A surprising recent case answered “No.” […]

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April 28, 2022
Litigating for 13 Months Does Not Waive Arbitration, But Dissent Disagrees

[Update: After I filed an amicus curiae request for publication of this opinion, the Court granted rehearing on its own motion, and re-issued a modified and partially published opinion. The Court published its holding that the defendant seeking arbitration here had not waived arbitration by litigating for 13 months. The result is the same, but […]

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January 25, 2022
The Best Time to Prepare for Oral Argument

Many attorneys are missing their best opportunity to persuade the appellate court. Appellant expert Myron Moskovitz talks with Tim Kowal and Jeff Lewis about the importance of the introduction in appellate briefs. The introduction should summarize your arguments and not belabor detail. And it should be a roadmap to the all-important statement of facts. Watch the clip here.  This is […]

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January 5, 2022
Two Recent Appeals Rejected for Insufficient Legal or Factual Citations

In a terse opinion, the Court of Appeal recently rejected an appeal on the basis that, other than referencing the appealability of the judgment, “[n]o other legal citations appear in [the appellant’s] brief.” The Second District in Singman v. IMDb.com, Inc. (D2d8, Dec. 20, 2021, No. B307783) 2021 WL 5997923 (pub. opn.) The court noted […]

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

Leviticus

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

— H.L. Mencken

"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

"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

"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

"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

“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

"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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