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February 27, 2024
Judge Nazarian to Judges: Take the Accountability Pledge

There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial...

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February 20, 2024
Sleep Well, Crush Your Enemies, with Leslie Porter

You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road,...

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October 31, 2023
Reversals on Technicalities: 4 Recent Examples

Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples: 😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible. 😎 If the court refuses to provide a statement of decision on key...

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August 22, 2023
Investigating Judge Newman, with Aliza Shatzman

The Judge Pauline Newman saga reached a tentative end—or a respite—when the Federal Circuit imposed a year-long probation on the 96-year-old federal appellate judge. Aliza Shatzman of the Legal Accountability Project discusses the allegations of cognitive decline and workplace misconduct against her, and how the investigation and report may be a model for more transparency...

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July 25, 2023
Two-Party Consent Privacy Laws Might Be Unconstitutional, and Other Recent Cases

One of the most biggest recent case is the split decision out of the 9th Circuit holding that a prohibition on secretly recording communications between two people violates the First Amendment. Project Veritas v. Schmidt, No. 22-35271 (9th Cir. July 3, 2023). The statute at issue here was an Oregon statute. But it suggests that...

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July 11, 2023
The Best Legal Movies Ranked, with Gary Wax

A good trial involves heroes and villains, themes of good and evil, tense conflicts, and, at the end, a difficult moral choice. All stuff that could make a few good movies. Gary Wax is a filmmaker-turned-appellate lawyer, and he brings his insider’s eye and his top-500 list to help us analyze some of the best...

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June 27, 2023
The “(cleaned up)” origin story, with Jack Metzler

WARNING: This episode contains opinions of a law-nerd nature. Discretion is advised. Have you ever encountered the parenthetical “(cleaned up)” at the end of a case citation? By now over 5,000 judicial opinions in nearly ever jurisdiction have used it, including the U.S. Supreme Court. So it’s time you got acquainted with it. The credit...

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June 13, 2023
Got Bias? The New Bias Prevention Committee Wants Your Help, with Ben Shatz

Improper conduct by a trial judge is one thing. But where do you take complaints against an appellate court? Supreme Court Associate Justice Martin Jenkins heads up a new Bias Prevention Committee, and committee member Ben Shatz joins us to talk about its mission: to promote an appellate court environment free of bias and the...

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May 16, 2023
From BigLaw to Solo: Carl Cecere on the freedom to take significant cases

Opioids, takings, terrorism—these are at the core of a few of the cases that appellate attorney Carl Cecere is handling. After deciding to leave BigLaw, Carl found that a combination of Twitter and lots of travel with the purpose of meeting interesting colleagues has fueled a pipeline of provocative cases into his solo practice. We...

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April 6, 2023
When Texas & California Appellate Podcasts Meet

A few days ago we mentioned Tim is opening a satellite office in Texas, which means expanding the podcast’s jurisdiction. So in this episode we take care of some business with the proprietors of the Texas Appellate Law Podcast, Todd Smith and Jody Sanders. Todd and Jody had the same idea during the pandemic to...

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March 7, 2023
Laboratory of Judiciaries: Comparing CA and IL Courts

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...

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March 2, 2023
Congratulations to M.C. Sungaila’s on the 100th Episode of the Portia Project Podcast

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....

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February 21, 2023
Negligent Referrals and Other Ethical Traps When Referring Clients

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...

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January 31, 2023
Latest Trends in Defending Unfair Competition Claims, with Greg Nylen

With his background as a brewery owner, business litigator Greg Nylen defends attorneys from “the triumvirate” of unfair-competition claims: the Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Greg shares some trends, tips, and traps emerging in this space, including: Courts are getting a bit more stringent on the “reasonable...

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January 24, 2023
Special Education Law with Tim Adams

The autism pandemic now affects between 1-in-44 and 1-in-35 children by the age of 8, according to a December 2021 Rutgers report—a rate that has climbed some 241% since 2000. And one of the big ways this affects the millions of families raising children with autism is obtaining and fulfilling IEPs—Individualized Education Programs. Special-education law...

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January 3, 2023
The Coming Changes to Med-Mal Caps, with Ben Ikuta

The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone? Ben shares some...

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December 27, 2022
2,000 Appeals and Beyond, with John Dodd

What does an appeal look like after having done 2,000 of them? John Dodd is one of the few people with that vantage. A former staff attorney at the Court of Appeal who has volunteered on the juvenile-dependency panel along with his civil appeals practice, John explains how “an appeal is an appeal.” Once you...

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December 20, 2022
Top Cases of 2022

Need to catch up on important cases you missed in 2022? This end-of-year episode has you covered. Here’s the list: Most Important Case for Money Litigators: Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081), holding treble damages and attorney fees under section 496 may be supported in your next fraud, conversion, breach...

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November 8, 2022
Where’s the Harm?! & Other October 2022 Cases

Every attorney knows that to reverse an order, it’s not enough to prove error. You also have to prove the error harmed your client. But when the Court of Appeal in Transcon Financial, Inc. v. Reid & Hellyer reversed a sanctions order for the reason that the offending party was not given the full 21-day...

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November 1, 2022
The Lawyer Who Reversed the “Victory Bell” Case, with Brooke Bove

If you were a lawyer drawing breath in summer 2022, you heard about the “victory bell” case. A prominent defense attorney, returning to base camp with a stunning victory after defensing a medical malpractice case, rang his firm’s victory bell and announced, the victim “was probably negligently killed, but we kind of made it look...

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September 27, 2022
New Lawyer’s Toolkit Cases on Missing Findings & E-Filing Mishaps

What happens when the court fails to make required findings? Probably not, because the California Supreme Court says you still have to demonstrate prejudice. But in this episode of the California Appellate Law Podcast, Jeff Lewis and Tim Kowal talk about how, in certain kinds of cases, the prejudice analysis may give a very light...

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August 30, 2022
“Justice Belongs to the Community”: A Discussion with Justice Laurie Zelon

Justice Laurie Zelon spent 19 years on the Court of Appeal for the Second District before retiring in 2020 to work on cases as a mediator, arbitrator, and private judge. Justice Zelon talks with Tim Kowal and Jeff Lewis about: her commitment to serving the community, and why we can’t throw up our hands because...

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August 9, 2022
Carrot & Stick: Treble Damages in Business Tort Cases, and Appellate Sanctions

Business litigators need to know about the civil-theft remedies under Penal Code section 496. After some appellate courts expressed distaste for awarding treble damages and attorney fees to garden-variety business torts, Tim Kowal and Jeff Lewis discuss the California Supreme Court’s opinion deciding the question: Yes, it seems a little surprising—but yes, that is what...

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July 12, 2022
Litigating the “Fun Cases”: Civil Rights Appeals with Matthew Strugar

Matthew Strugar knows something about defending protesters threatened with legal action, even jail — because he used to be one of them. Drawing from his activist background, including defending animal rights, Matt talks about how civil-harassment restraining orders are abused to squash speech rights, though the anti-SLAPP law can still come to the rescue. Matt...

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June 28, 2022
Harassment in the Judicial Workplace: Aliza Shatzman’s Discusses the Legal Accountability Project

Being a victim of discrimination and harassment at the hands of an employer is hard enough, but what happens when your employer is a judge? On episode 39 of the California Appellate Law Podcast, Aliza Shatzman discusses her personal experience and why it was not only personally horrifying, but damaging to her career. Aliza also...

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April 26, 2022
Jeff Lewis Interviews Tim Kowal, on episode 30 of the Cal. Appellate Law Podcast

In this special episode, Jeff interviews me about the best and worst things about appellate law. I talk about a couple of my favorite war stories, my approach to legal writing, and my favorite comedian. Then to business, we discuss some recent cases, including appellate sanctions for trial court conduct, the nonappealability of arbitrator injunctions,...

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February 1, 2022
Rejected Arguments for Lack of Citation, and Other Recent Cases, on Ep. 23 of the California Appellate Law Podcast

Jeff Lewis and I round up some recent appellate cases, and briefly discuss why California still does not make audio recordings of proceedings like federal courts do. Here are the cases we discuss: Singman v. IMDB.com, bookmark this published opinion holding that legal propositions in a brief without a citation will be ignored. Center Street...

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January 18, 2022
A Proposal to Amend the No-Citation Rule, with David Ettinger and Dean Bochner

Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review. David also discusses the...

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September 10, 2021
A Discussion on Why Trial Attorneys Should Know a Good Appellate Attorney, and Legal Marketing: Tim Kowal on the Lawyer Business Advantage Podcast

Attorney business coach Alay Yajnik was kind enough to invite me onto his podcast, the Lawyer Business Advantage, to discuss how an appellate attorney can help trial attorneys win and add value to the services they provide clients, telling clients appreciate hearing why the attorney cares about the case rather than just how much the...

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"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

“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

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

Leviticus

"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

"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

"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

"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

"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.)

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

— H.L. Mencken

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