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Tag: Trial Procedure

May 24, 2023
Defense not asserted in a pretrial order deemed forfeited in split 9th Cir. decision

In two surprise post-trial moves—likely driven by embedded appellate counsel—a plaintiff first lost her case, then won it back. The employee won her whistleblower claim after a jury trial in I vie v. Astrazenica Pharmaceuticals LP . No. 21-35978, 2023 WL 3563007 (9th Cir. May 19, 2023). But then Astrazenica moved for judgment as a matter […]

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February 28, 2023
Ten Trial Tips That Appellate Specialists Want You to Know

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case. And, you had better make a […]

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February 20, 2023
Ten Trial Tips from an Appellate Specialist

Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023). Here are the tips: Rule Zero: Make the Record #1 Make sure your theories of the case are captured in your pleadings #2 Was key evidence excluded? Preserve the issue by making a […]

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July 5, 2022
An Advanced Class in Making the Record, with Jimmy Azadian

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and Tim Kowal about how he has addressed these kinds of problems while serving as embedded appellate counsel. What is “embedded […]

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June 16, 2022
Trial Exhibit Not Moved Into Evidence Deemed Admitted on Appeal

“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again. At the trial between the two partners in a restaurant business in […]

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May 4, 2022
No Right to In-Person Appearances

Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed […]

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July 14, 2021
Do Curative Instructions Cure Anything?

Here is one reason why trials are so stressful: What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive? Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one […]

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July 12, 2021
Stupid Motions in Limine

Filing a critical motion in limine could be key to your trial. What about 40 motions in limine? Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine." Watch the clip here. You can listen to Jeff Lewis and Tim Kowal's entire interview with Frank Lowrey at episode 13 […]

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July 8, 2021
When Does a Motion in Limine Preserve Trial Objections?

Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing. Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection. Watch the clip here. You can listen to Jeff Lewis and Tim Kowal's entire […]

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June 29, 2021
Preserving Trial Objections, and Alternative Takes on a Recent Appellate Contempt Citation: An Interview with Frank Lowrey on the Cal. Appellate Podcast ep. 13

Georgia appellate attorney Frank Lowrey joins Tim and Jeff to discuss Williams v. Harvey, a recent decision by the Georgia Supreme Court concerning preservation of error and motions in limine, in a June 2021 interview in episode 13 of the California Appellate Law Podcast. Frank notes the important nuances in rulings on motions in limine: a denial preserves the evidentiary objections […]

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"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

"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

"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

"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.

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

"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

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