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March 23, 2023
“The Law That Swallowed California”

It has been called “the law that swallowed California.” CEQA, the California Environmental Quality Act, accomplished good things at its inception in 1970 but now it is used to thwart nearly any kind of development someone doesn’t want. “CEQA is not intended as a population control measure,” observed the Court of Appeal in a recent...

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January 30, 2023
Clerkships are uniquely valuable, so do normal workplace rules apply?

Even judicial clerks face harassment and discrimination by their judge-employers. Aliza Shatzman knows this first hand, and it’s why she started the Legal Accountability Project. But how can we achieve accountability in such a strange place as a court? Judicial jobs are not like normal jobs. Former Supreme Court clerks command signing bonuses in the...

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January 27, 2023
Judges and law schools must do more to protect law clerks

Aliza Shatzman’s dream of a judicial clerkship turned into a nightmare. Just to get the experience, and the career credit, of a judicial clerkship, Shatzman would have put up with her judge calling her “bossy” like his wife, and telling her he preferred the company of her male co-clerk. But then her judge terminated her...

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January 16, 2023
Want to get the Governor to support legal access? Here’s Justice Lambden’s $400M tip

Motivated by his sister’s deafness, Justice James Lambden has long advocated for improved access to our court system. “Without access,” he says, “there is no justice.” But by the time Arnold Schwarzenegger was governor, California still had no real funding for access. So Justice Lambden urged a budget line item for legal services. It failed....

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January 12, 2023
Gov. Newsom appointed a new Supreme Court justice, but he should have nominated her

Unlike federal judges who sit or life after being confirmed by the Senate, California Supreme Court justices’12-year terms follow confirmation by election. But our newest justice, Kelly Evans, was not confirmed, and won’t be for another four years. Why? Supreme Court watcher David Ettinger explains that Gov. Gavin Newsom opted to “appoint” then-Alameda Superior Court...

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November 18, 2022
Why Justice Bedsworth Called Justice Thompson “Hard Headed”

Of his former colleague, Justice William Bedsworth is quoted as saying: “Justice Thompson has a rare combination of a hard-headed, straight-ahead approach to the law and a big heart that never lets him lose sight of the impact his decisions have on real people.” “Head-headed?” What did Justice Bedsworth mean by that? Justice Thompson joins...

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September 16, 2022
Tim Tells a Norm MacDonald Joke

Just for fun, here is one of my favorite Norm McDonald jokes (RIP). Watch the clip here.  This is a clip from episode 30 of the California Appellate Law Podcast. The full episode is available here.

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August 19, 2022
Two stories about judges who wouldn't follow the law

Every attorney who loses a case feels the sting of defeat. But the losses you never forget are the ones you really deserved to win. I share two experiences where trial judges were not following the law. The first judge indicated he was going to rule based on “cultural considerations” favoring a family patriarch. But...

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April 6, 2022
The Doomsday Provision and the Natural Right to Self Defense

Who needs the Second Amendment? Judge Kozinski once called the constitutional right to bear arms as the “doomsday provision”: that right to which a free citizens resorts when all other rights have failed. But what role does that right have left to play in a hyper power like the U.S.? Second Amendment attorney Sean Brady, Jeff Lewis,...

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December 28, 2021
Appellate Attorneys As Warrior Scholars

One of California’s foremost appellate experts, Myron Moskovitz, talks with Tim Kowal and Jeff Lewis about the personality type of the appellate attorney as part scholar, but with some fight left. Many judges tend toward the scholastic, Myron says, but some still enjoy the electricity of litigation. Watch the clip here.  This is a clip from episode 20 of...

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December 2, 2021
No, There Is No Eviction Tsunami Coming

There have been many breathless reports of a coming "eviction tsunami" in the wake of Covid. But tenants' rights attorney and appellate specialist Frances Campbell says: take a deep breath. Fran tells Jeff Lewis and me why she thinks there is no eviction tsunami in the offing. Watch the clip here.  This clip is from the California Appellate...

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December 1, 2021
Who Has Standing to Bring an Unlawful Detainer Claim?

Did you know California landlord/tenant law is not clear on the basic question who has standing to bring eviction claims? Must the owner bring them, or may a property manager? Tenant-rights and appellate specialist Frances Campbell tells Jeff Lewis and Tim Kowal about a consequence of California's narrow standard governing what appellate opinions may be published. The cases deciding this question...

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November 23, 2021
Beware Limited Civil Appeals

The rules of appellate procedure are curious already, but what about appeals in limited civil cases? Curiouser and curiouser. Tenants' rights attorney and appellate specialist Frances Campbell discusses the important differences in appeals in the Appellate Division of the California Superior Court with appellate attorneys Jeff Lewis and Tim Kowal. Watch the clip here. This clip is from the California...

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November 19, 2021
How to HateWrite Your Legal Briefs

Tenants' rights attorney and appellate specialist Frances Campbell gives appellate attorneys Jeff Lewis and Tim Kowal a lesson in "HateWriting": harnessing that exquisite state of agitated frisson to produce a legal brief that will leave a mark without, after a final edit for overheated adverbs, drawing admonitions. Watch the clip here.  This clip is from the California Appellate Law Podcast...

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November 15, 2021
Positioning Your Client for Resolution

Businesses in litigation want to "win the battle" but also need to "win the war." Outside general counsel Lee Goldberg tells Jeff Lewis and me when and why businesses sometimes take the long view on litigation, even willingly taking short-term losses to get long-term gains. Watch the clip here.  This clip is from the California Appellate Law Podcast...

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November 11, 2021
How Corporate Counsel Chooses Trial Counsel

Does corporate counsel always tap the "white shoe" law firms for trial work? No, says outside general counsel Lee Goldberg. Lee tells Jeff Lewis and me that while white shoe firms have their place, what businesses really need is excellent trial counsel who understand the particular needs of their clients, and why relationships matter. Watch the clip here....

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November 9, 2021
The Pros & Cons of Arbitration

To arbitrate or not to arbitrate? Outside general counsel Lee Goldberg shares his experiences and perspective on arbitration with Jeff Lewis and me, and how to balance arbitration's pros and cons. Watch the clip here.  This clip is from the California Appellate Law Podcast episode 17, available here.

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November 2, 2021
Should Litigants Seek "Justice"?

Offering a sobering view of the litigation process, outside general counsel Lee Goldberg shares his litigation experience with Jeff Lewis and me, and how business owners should view it as a tool to achieve practical outcomes, not to vindicate a principle. Leave "truth, justice, and the American way" for Superman. Watch the clip here.  This clip is from...

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October 26, 2021
"Success Is Perception": Lee Goldberg on Effective Representation

Clients want success. But: What is success? Outside general counsel Lee Goldberg tells Jeff Lewis and me what this means for the businesses he represents. Success is perception, and effective counsel manages the client's perceptions. Lee concludes by observing that the successful attorney is successful through communication, not by being the hero who swoops in and solves everything. Watch...

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October 25, 2021
Courts Allow You to Appear on Zoom Without Jacket and Tie: But Should You?

The Los Angeles Superior Court has relaxed its dress code for attorneys making virtual court appearances, and need not wear jacket or tie. Orange County Deputy District Attorney Kelly Ernby discusses the new rule with Jeff Lewis and me, and we all agree: Just because the rule has changed does not mean the judges' expectations have changed. Watch the...

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October 21, 2021
The First Virtual Argument in the California Supreme Court

What was it like to give the first virtual oral argument in the California Supreme Court? Orange County Deputy District Attorney Kelly Ernby tells appellate attorneys Jeff Lewis and Tim Kowal what that experience was like. Watch the clip here.  This clip is from the California Appellate Law Podcast episode 16, available here.

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October 13, 2021
Would a Defendant Rather Be Sued by One DA, or 58 of Them?

Would a defendant rather be sued by one District Attorney, or 58 of them? Orange County Deputy District Attorney Kelly Ernby sued pharmaceutical company Abbott Laboratories for improperly delaying the release of the generic version of a drug. Surprisingly, the defendant argued the claim could not be brought by a single DA. (The Supreme Court disagreed.) Kelly...

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October 7, 2021
Should You Use ("Cleaned Up") to Clean Up Messy Quotations in Your Legal Brief? No, Answers an Appellate Court Research Attorney

Attorneys, you might have heard about "cleaning up" case quotations in your briefs. When you have a quote with a lot of internal quotations marks and ellipses and unsightly square brackets, several appellate courts — including the US Supreme Court — have used the parenthetical ("cleaned up") following a citation to signal the removal of...

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October 5, 2021
How a Motion to Strike Changed California Law

Orange County Deputy District Attorney Kelly Ernby won a landmark California Supreme Court decision in Abbott Laboratories v. Superior Court. She tells Jeff Lewis and me that it came about when, surprisingly, the pharmaceutical company defendant — not the DA — suggested the possibility of statewide enforcement by individual county district attorneys. After a loss in the Court of...

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September 29, 2021
Why are CA Appellate Opinions Unpublished Anyway?

"I found the perfect case! The facts are on point, the law is on point...but goddammit it's UNPUBLISHED!" If you are a litigation attorney this undoubtedly has happened to you. But why this confounded Rule of Court 8.1115 against citing unpublished opinions? Jeff  Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal...

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September 16, 2021
Do Appellate Justices Ever Unpublish Opinions Strategically?

Have you ever read an unpublished opinion and thought the reasoning a little mischievous, a little outcome-driven? Long-time court-watcher Howard Bashman has reported appellate justices have admitted this may be the case sometimes. (See here: https://lnkd.in/gdB-arbK.) But Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and...

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September 13, 2021
Why Do California Appellate Judges Go Easier on Trial Courts?

Did you know that California appellate justices are elevated from the trial courts more often than are federal appellate judges? Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that this may be why our state appellate courts tend to...

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September 9, 2021
Does the Court of Appeal Take Note of How Many Extensions Your Opponent Has Sought?

Just because I get this question a lot from clients and other trial attorneys, I put it to Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), who sat down to talk with Jeff Lewis and me on the California Appellate Law Podcast. Does the court give any consideration to the...

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September 8, 2021
Cultural Differences in the Courts of Appeal

Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), talks to Jeff Lewis and me about the cultural differences among some of the districts. Do the research attorneys talk amongst themselves about the case they are working up? What about the justices? The answer may depend not only on policy...

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September 2, 2021
Why Not to Wait to File an Appellate Writ

Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, talks to appellate attorneys Jeff Lewis and me about the inner workings of the writ panel at the court. While technically you may have 60 days to file your writ, Jeff explains why your writ is more likely to be denied if it is filed...

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“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

"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

"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

"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

"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

"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

"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

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

— H.L. Mencken

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

Leviticus

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