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Tag: Record on Appeal

February 8, 2024
Attorney who ignored appellate rules hit with $50k in sanctions

Failing to request a statement of decision. Misunderstanding what “substantial evidence” means. Preparing an incomplete appellate record. Yes, these mistakes will lose you your appeal. But they can also get you sanctioned. The appellant’s counsel in Mandir, Inc. v. Tiwari (D4d3 Mar. 27, 2023 No. G060437) (nonpub. opn.) got sanctioned nearly $50,000 for pursuing a […]

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October 16, 2023
You still need a reporter's transcript even if nothing happened at the hearing

If you’re planning to appeal, you need a court reporter at your hearing. But what if the hearing is over a pure question of law, like whether there’s an enforceable arbitration provision? That’s what happened in Olague v. United Care Facilities, LLC (D2d5 Sep. 29. 2023) No. B323075 (nonpub. opn.), involving an appeal from a […]

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May 22, 2023
Lack of record leads affirmance by memorandum decision

Most appellate opinions in California include a full summary of the facts and procedural history, as consistent with the constitutional entitlement to a reasoned opinion. But sometimes the Court of Appeal will issue a mere “memorandum opinion” when the result is compelled by authority on which there is no real question. (People v. Garcia (2002) […]

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May 15, 2023
No reporter's transcript, no problem: denial of motion to compel arbitration still reversed on appeal

I have previously noted that California appellate courts ought to change their practice of requiring an oral record when the appellant does not seek review of any factual findings. (See here, here, and here.) Appellate justices are openly split on this point. (See here.) On the side of relaxing the requirement of having an oral […]

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May 9, 2023
Judge Bress slags SLAPP appeals, and other recent cases

Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms: Judges should issue more sanctions against frivolous SLAPP motions. The Legislature should amend the statute so that SLAPP denials are reviewable only by way of writs. Jeff tries to stump Tim on a SLAPP appeal […]

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April 4, 2023
Use a settled statement to fill gaps in your record (but don’t try to rewrite the record)

Nice try, but this is not what a settled statement is for. The defendant in **********Rok Mobile, Inc. v. Brannon (D2d2 Mar. 24, 2023 No. B308642) 2023 WL 2621771 was served with a complaint but failed to answer. In October, Brannon went into default, and five months later got a default judgment against him. On […]

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April 3, 2023
Oral record on appeal was required to review the validity of a trustee notice to beneficiaries

We are in the middle of a nationwide shortage of court reporters. Probate departments recently have stopped providing court reporters. California needs 2,750 new court reporters to fill its gap. One thing that would help (as I suggested in a recent presentation) would be for the appellate courts not to insist on an oral record […]

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March 27, 2023
Can You Read It Back? Tackling Court Reporter Scarcity in California

CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription). Here is a summary: My most frequent advice as an appellate attorney: “Don’t forget to get a court reporter.” This wisdom of this advice—the most oft-dispensed […]

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December 5, 2022
Yes, You Need a Court Reporter at the Hearing on a Motion for Anti-SLAPP Fees

Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of […]

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November 13, 2022
Preparing the Excerpts of Record for Federal Appeals

“NALA has published” Tim Kowal (Presenter), “Preparing the Excerpts of Record for Federal Appeals,” NALA (Mar. 24, 2022), This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who […]

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print (29)
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"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

"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

"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

"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

"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.)

"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

"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

"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

“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

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

— H.L. Mencken

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