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 (or blame) for introducing this new device goes to Jack Metzler. Jack shares how he came up with the innovation over several long moments of deliberation on Twitter (specifically: about 90 seconds). But unlike most tweets, Jack’s idea flourished into a law review article that now stands as the 2nd most-often cited article in judicial opinions of all time (and only 40 citations behind Justice Louis Brandeis’s 1st place paper).

Jack subjects himself to the following questioning:

❔What does (cleaned up) even mean? Answer: It means you can start a quote with a capital letter without using those stupid ugly square brackets, without having to explain it. And other stuff like that.

❔Ok, so judges are using it. But will judges trust lawyers to use it faithfully? Answer: Judges already don’t trust lawyers, so I don’t even understand your question.

❔I think the judges want to see the quote exactly as it appeared. Answer: That’s not even a question. And no one is forcing you to use (cleaned up).

Jack Metzler’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:


Announcer  0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19
And I'm Tim Kowal all both Jeff and I are certified appellate specialists. But as uncertified podcast hosts we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, please recommend this podcast to a colleague if you find it helpful.

Jeff Lewis  0:35
And before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast. casetext is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. casetext  relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms to in house legal departments. In March 2023. Casetext  launched co counsel the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of the podcast enjoy a special discount on casetext  basic research at casetext.com/calp. that's casetext.com/calp.

Tim Kowal  1:14 
All right, Jeff, so this is the episode you finally done it. You've done Jack Metzler to the podcast today. Now Jack is an appellate attorney and at the District of Columbia office of disciplinary counsel, where he's a Senior Assistant disciplinary counsel but our audience of legal and appellate nerds no jack is the proprietor the originator of the cleaned up parenthetical before that, or maybe in parallel with that Jack is also the author of Posner thoughts annotated, an annotated and expanded version of Richard Posner's anonymous fake Twitter account called Posner thoughts, which purports to tweet judge Posner's thoughts within Twitter.

Jack Metzler  1:51
I'm sorry to interrupt you, but it's Posner. I can't You're hurting my ears.

Tim Kowal  1:55
Then The Nerdery already begins. Jack Cohen Jack judge Posner's thoughts within Twitter's 140 care limit. Judge Posner himself admits to reading the account with great enjoyment, finding it extremely funny some examples of Posner's thoughts. My preschool was highly regarded and even more so once I entered. I never graduated from high school didn't need to. I went to Harvard Law School because Yale seemed too easy. And back then a Supreme Court clerkship was no real Biggie among Jack's other risky ventures. As I mentioned, he holds the credit or blame for proposing in 2017 the use of the parenthetical cleaned up after citations to cases and quotes that have been cleaned up or as all argue Bowdler eyes. Since then, well over 5000 opinions for many courts, including federal and state, appellate and trial courts have adopted Jack's cleaned up parenthetical just a bit of the origin of cleaned up Jack had published an essay in the Journal of appellate practice and process on the parenthetical cleaned up citations some years ago. Apparently, Brian Garner has endorsed the practice and the most prominent cleaned up user is Supreme Court Justice Clarence Thomas, who included it in a February opinion was up February last year 2022 Jeff or Jack? I think that's right. And according to information that Jack gave the ABA journal in March 2021, the cleaned up parenthetical has appeared, as I said in over 5000 judicial opinions. Well, Jack Metzler welcome, I think to the podcast.

Jack Metzler  3:30
Thank you. Glad to be here.

Jeff Lewis  3:32 
Glad to have you, Jack.

Tim Kowal  3:34
Yeah, we only got you got one superfan and one doubter jack here. So let me ask you to get started here. When you're not busy needling, federal appellate judges and driving conversations of legal and appellate nerds everywhere. I assume you're doing some actual legal work somewhere. Tell us about your legal practice.

Jack Metzler  3:55
Stir. So I have since the beginning of the year, I'm the assistant Senior Assistant disciplinary counsel for appellate litigation for the DC Office of disciplinary counsel, which is in our system, the the prosecutor of attorney discipline cases. So we've got people who prosecute those in before hearing committees in their two levels of appeal before our board professional responsibility and DC Court of Appeals and I am in charge of the our appellate section.

Tim Kowal  4:27 
Okay, and what appellate courts are your most typically appearing?

Jack Metzler  4:30 
So now I'm exclusively in the DC Court of Appeals before I had this job. I was at the Federal Trade Commission, where I did appeals in all of the regional Courts of Appeals and the Supreme Court. Well, I shouldn't say all, I didn't get to all of them, but a lot of them.

Tim Kowal  4:46 
Now, does the DC courts of appeals embrace the use of cleaned up?

Jack Metzler  4:50 
Yes. Well, you know, along with every Federal Court of Appeal, about half the state highest courts of appeals, and I think All or maybe all but one US district courts have used it one judge or that not every single judge. But but every court, there may still be one outlier. I didn't check today. Okay.

Tim Kowal  5:11 
Bill, it's like to ask if you've if you've got an interesting war story or a mistake that you've seen opposing counsel make that stayed with you over the years, something that you'd like to? Or maybe if you are mentoring a young lawyer, something you'd like to pass on and say, make sure whatever you do, don't do X?

Jack Metzler  5:27
Well, boy, that's tough to do that within the cotton, the most recent things to think of are things I shouldn't talk about, because they are ongoing. Yeah, let me put a pin in that. See if

Tim Kowal  5:39
we can bookmark that. Mine is don't ever use the parenthetical cleaned up, but our mileage That's going too far. All right. All right. Well, let's get right into it. I mean, I think when we post this episode, Jeff, we're gonna have to put a prominent nerd alert on it. Because you know, if you are aware of the parenthetical cleaned up, then this is going to be of great interest to you. If you've never heard of it, then maybe just go on living your life. But I wanted to give a quick origin story. Or maybe Jack, would you like to give the origin story I thought maybe you've given so many of these podcasts that you are tired of it by now. But I was interested to learn that you have not been sought out by so many other appellate nerds like Jeff and me to talk about the origin story of cleaned up, would you kind of give us a rough overview of how it originated

Jack Metzler  6:21
there. So it was so 2017 and spring, it was March. And as I recall, it was late at night, and I was reading on my phone

Tim Kowal  6:32
was getting very literary, was it a balmy day.

Jack Metzler  6:37 
It was a dark, not stormy night. Anyway, I was reading on my phone, a decision that had come out that day. And it was one that that people had been talking about on Twitter. And I think it was one of the immigrant it might have been like the DACA case, or one of those, it had come out from either like a district court in Texas. And as I was reading along, I came to this section where I recognized this problem, the author, the judge was quoting cases from that had been quoted before many times. And you could just see in the writing the struggle that he was having with all of this extraneous brackets. And, you know, sometimes there was like an emphasis that had to be removed, or emphasis that was added. And it had to be, you know, like, the second case back had added an ellipsis or something like that, you know,

Tim Kowal  7:31
all those lovely square brackets everywhere.

Jack Metzler  7:34 
Right? And so I recognize this problem deep, deep in my soul from encountering it many times myself. And I was like, you know, what, I know, what this judge is going through? And why do we even bother with any of this? You know, my, the thing is, if you're going to quote, a case, and you're going to quote the case, because the Court said it now the court quoted something else, fine. But judges don't. Like you never say the holding of a case is we hold that, you know, bracket, lowercase a, l l, you know, men are created

Jack Metzler  8:17
equal. Yeah. Imagine if we had to talk like that.

Jack Metzler  8:21 
Right. Right. So that's not the holding, when the court holds something, it holds, like the words not that the extra stuff. And so you know, if that's the purpose, I thought, then why do we have to do all that? And I'll be honest with you, this is a topic I think that people think about most of all, when it comes to cleaned up, is they think that it sounds is the biggest objection. It sounds too colloquial. And I spent a good 90 seconds thinking about what would be the best, you know, phrase to use. And, you know, I rejected some things. I came up with some others. And I just said, Yeah, you know, I think cleaned up pretty much does it. And so then it was late at night. But nevertheless, there was a good response on Twitter, like an enthusiastic response on Twitter, I would say, and so like, within the next day or two, I wrote up, you know, I sort of flushed the idea into a couple of pages, and then later turned it into the article, which eventually was published.

Tim Kowal  9:16
All right. All right. So we got the origin story cleaned up is 90 seconds of deep thought followed by an enthusiastic response on Twitter. Right. All right. And then just for our audience, who maybe is not aware of, it hasn't come across this thing. This is a cleaned up parenthetical. What it does, basically is, as Jack mentioned, when you got a quote that you want to use in a case, but it's got a lot of these ungainly, special characters, square brackets, and ellipses and things. And it's not really germane to the quote that you want the court to read you to strip all that out. And then when you cite the case, at the end of the case, you put a parenthetical that says cleaned up, and the purpose is to allow the author to remove non substantive material like brackets ellipses quotation marks, footnote call numbers and internal citations or to will change letters case without placing the change letter in brackets. And to omit any reference to an intermediate decision in a chain of at least three decisions like when quoting a decision that quotes a second decision that quotes a third decision, this recursive nightmare that sometimes happen, you can just omit reference to the second decision, and then just followed up with the cleaned up. And if the judge is if your reader is curious, that cleaned up parenthetical lets them know. Okay, well, if I want to explore further and see what exactly has been changed, I can go back to the the author's least telling me that something has changed. So if I find anything fishy, I'll just go check the work.

Jack Metzler  10:34
Exactly right. And the sound of that mean, the the best analogy is, you know, the ellipsis, we don't tell people no style guide tells you what you're supposed to what you're allowed to, and not allow to leave out when you have an ellipsis. You're just, you know, relying on the court to trust you. Or if not trust them to verify they can always go and see what you left out. And I think, actually, if we want to go back, that's one I've seen before to your original question. Do not young attorneys ever do something like using ellipses to take out the word not? That's a bad idea? And although I haven't seen that one exactly, I have seen some unscrupulous uses of, of an ellipsis. And I would not recommend that I would recommend against it.

Tim Kowal  11:19
What about the use of cleaned up to chain to substitute a party name with the party designation, like instead of using Smith, take out Smith and replace it with plaintiff? Would that be an acceptable use of cleaned up?

Jack Metzler  11:32 
No, no, I mean, any change to any words is not allowed? You would. So the idea, like I said before, is if I should also say this is only for courts for quoting a court. It's not for statutes, or books or articles or anything else. And because the justification is when you're quoting a court, you care what the court said, you don't care about. Honestly, it doesn't even matter that the court quoted someone else. Because ideally, you're it's that's the court, you know, the court that you're quoting is the one you care about. If the Third Circuit said it, well, maybe the Fourth Circuit said at first, but you're in the Third Circuit, and you want the Third Circuit to know that they said it. So it doesn't really matter this that the there's no like obligation to tell the court that, you know, the Fourth Circuit had the idea first, for example.

Tim Kowal  12:24
Yeah. Now that that makes sense, when you put it that way that it's when you're talking I imagine what if the the judge who authored the opinion was reading the opinion from the bench as, for example, the Supreme Court justices will sometimes do, and when they read quotations, they're not going to indicate whether there's Oh, and then begin a single quotation, and then close with a double quote, they're gonna omit all that when they read it. And so when you are putting a quotation in your brief, maybe you just put the words in there, the syntax is not really important. You just transcribe it as if the judge had read it speaking, rather than that in writing with all of the symbols. Yeah,

Jack Metzler  13:00 
I think that's a pretty good analogy. I never thought of the speaking out loud, you know, idea before.

Tim Kowal  13:05 
Yeah, we're reminded that the Old Testament Scriptures or the the Torah didn't, it didn't have chapter numbers or anything, I don't think it had a lot of the apostrophes and other syntax, they just had the words and a lot of that was not added until much later on. So maybe it's similar to thinking there that all of these special characters on our keyboard are really just flourishes that we add in the editorial process, and they could be edited away by a subsequent author without any substantive change.

Jack Metzler  13:31 
Well, I can't speak as to that I think don't change the periods or commas, at least not with cleaned up.

Tim Kowal  13:38
Okay, so you're a coma purist?

Jack Metzler  13:40 
Well, that's part of the text. It's not when I say punctuation, I just mean brackets and the stuff that really doesn't change.

Tim Kowal  13:46 
Yeah. Yeah, that can set off and signal in clauses and things like that. So that's, that's a good point. All right. So that's the story behind cleaned up. Can you tell us what's been some of the controversy behind it? You mentioned? You know, obviously, we've gotten well over 5000 opinions that have used it. So many judges obviously have felt comfortable using it, including the Supreme Court, at least we know, Clarence Thomas, Justice Thomas has felt comfortable using it in the Brownback decision. Do you know are you aware, when I asked you, if courts are adopting it or embracing it? You know, we could talk about how many courts are using it in their own opinions. But does that mean that the courts are inviting practitioners to use it is there a difference between a judge using cleaned up the cleaned up parenthetical and attorney practitioner using the the cleaned up parenthetical in their briefs? Well,

Jack Metzler  14:34
so I think some people that some judges, I think, and when I say some, I can think of to have that view, and certainly I've heard it from some practitioners too, that, you know, this is fine for judges, but but not for attorneys. And so, okay, but I really don't see any difference again, I go back to the ellipsis. We don't if you Trust, if you allow, I shouldn't say trust, because there are good reasons not to trust attorneys. I work in, you know, disciplinary cases, there are good reasons not to trust attorneys. But there's no rule against using an ellipsis. And really nothing in the blue book prevents you from just using an ellipsis to take out the word not that's on you, that's trusting you to do that. And you know, you couldn't do it, you violated no stylistic or Bluebook rule, but you're gonna get in some big trouble because you're misrepresenting things to the court. So I really don't see the cleanup is actually much different, because you're telling them things have been removed, and you're on your honor, not just to say that you haven't removed anything important that you decided, but that you actually haven't removed anything except brackets, you know, ellipses, and internal quotation marks citation or a footnote reference. So if the they say that, for attorneys are, are your reputation is is your practice, that's the whole thing. And when judges start looking it up, and seeing that you're not doing what you are implicitly promising to do, to get good results are not going to follow from that. So so I don't really understand why people would say, this is fine for judges, like we charge judges more than attorneys. Well, I've seen some judges, you know, do some things in opinions that are that I would question. Let's put it that

Tim Kowal  16:21
right. Let me ask you this follow up, then. If you're quoting something in a brief and you're choosing not to paraphrase it, but to quote, to use the quote, because that quote is just it's so good. It transcends being paraphrase that the court really needs to know this quote, because it's so good, but it needs to be cleaned up a little bit. And if you're right, that the code is so good that the courts going to stand up and take notice and say, Oh, this is a really good point. Oh, but it's cleaned up, you're gonna send the judge back to check it out and see what's been cleaned up? Is that going to risk irking the judge a little bit that well, this is a really good quote. But I'd rather just be able to see exactly where it came from, how it appeared at this citation that the attorney is pointing me to, wouldn't the judge rather see, quote, with all of its warts, all of its ungainly symbols, rather than have to go back and check the attorneys work to make sure that no substantive material has been cleaned up.

Jack Metzler  17:13
I see Jeff shaking his head. So I gotta

Jeff Lewis  17:16
jump in here. My assumption is every time we file an appellate brief, is there some clerk or research attorney who checks scrupulously every citation of fact, in every citation to law, they don't take Jeff Lewis's word for it. And what a great opportunity to build credibility with the judge or the law clerk for the research attorney than to have faithfully executed on cleaned up and provided a good clean up of all the extraneous garbage. So that's where I land.

Jack Metzler  17:42
I have to agree. Sorry, Tim. I clerked for Judge Showflat on the the 11th Circuit Court of Appeals. And he would sometimes say what's rule number one? And I'll tell you what rule number one was, we don't trust the lawyers. So wow, maybe you can build up that trust over time. But as far as but I agree with Jeff, whether I, you're making it easier for the judge to read it, because some clerk somewhere is going to go make sure that you haven't misrepresented anything. And the lack of hearing that when he doesn't hear, Oh, those cleaned up sites, we you really can't trust those not hearing those is gonna build your credibility with the judge.

Tim Kowal  18:24 
Okay. All right. Well, you survived that objection. Let me put to you another objection that I found from Professor Tessa dice art. Here's what she wrote in a post. I'll link it in the in the show notes here. This was back in 2021. She said perhaps one of the best explanations he's talking about generally here, the role of citations and then we'll get to the question about cleaned up, how it applies to cleaned up one of the best explanations of the role of citations that I have read and this is Professor Tessa dicer that I have read came from Eugene Bullock, Eugene Bullock wrote, I remember asking a federal appellate judge once why courts don't shift more to the citations in footnote style. That's another that's another barbarism that Brian Gardner has endorsed along with cleaned up, I'm ingest a little bit here but gotta give some pizzazz to it. Why don't courts shift more to the citations and footnotes style, which I thought looked cleaner and made it easier to follow the flow of the argument, same argument for cleaned up and the the judge laughed and said something like, you've used citations to authority as support for the argument, but I view them as often the most important part of the argument and quote, so here's back to Professor deicer commentary, if judges view citations and quotations to case law as the most important part of the argument, then they might want to be wary of efforts to clean those sources up. And one of the judges most common complaints about briefs is that attorneys mistake the law in the record as you pointed out, rule number one, we don't trust the attorneys. That post in fact, Professor die starts referring to a previous post of hers where she had discussed a Ninth Circuit opinion where the court chastised attorneys for misrepresenting precedent by altering quotations from cases So what's your response to that along the same lines that Well, you got to you're not going to trust the attorneys anyway, you're always gonna go back and check the sites. But I guess I'm still questioning does it? Wouldn't it be better instead of using cleaned up, which is, I think you mentioned one of the objections to it is to colloquial, the way I would put it is that all the other parent articles we have are very precise about what the author has done, you know, internal quotation marks removed internal brackets and alterations removed internal ellipses and citations removed, you know exactly what the author has done with cleaned up. As I mentioned earlier, it's understood that it just means the non substantive material, but the words cleaned up by themselves don't contain that you have to refer to that definition that is outside the four corners of the parenthetical. So is that a problem? And wouldn't it be better just to say, here's what I did in reporting this quote?

Jack Metzler  20:50
So a couple of things I agree with, actually, with Scalia and garner have this discussion in their making your case book, where Garner what is of the, you know, idea that you should put foot citations and footnotes, because it's easier to read? And Scalia says, No, you want the judge to check your work as you're going along. And and Alexa Chu, who's another legal scholar, and sort of citations has a an article called stylish legal citation. And in which she argues and I very strongly agree that the citation is part of the argument. And it goes like this, right? So if I say, x proposition, right, that all you have from that is me, Jack said, Well, who cares what I say. But if I follow that with a citation, then you know, that's not just me talking. That's the Supreme Court, the United States talking and not only that, you get to find out some things. That was a case that was, let's go back a couple years where it's not quite so questionable. Like that's a case from 2020. It's not that'll land you. Or you might find out, that's the Fifth Circuit. Well, I'm in the Fifth Circuit, or maybe I'm a district court in the Fifth Circuit, that's my boss who said that. So just through the citation, you get to make part of your argument, you build credibility every time, this is why I think inline citations are the way to go. So it's not just about N. Sure, I agree with Garner, it would be easier to read. But if you're reading like a fiction book, that swell if you're reading an article in a magazine, great, but what you're doing in a brief to a court is trying to convince the court that they should do something because that's what the law is. And the law comes in our common law system, from the these prior judicial opinions. Now, when it comes to quoting a decision, that gives you an even better opportunity, because it's not just Jack says it. And it's not even just that, Jack says that the Fifth Circuit of Supreme Court says it, here are the words that the court used. And so you don't even have to trust me, those are the words now, you might say, but what about the cleaned up? As we've talked about before, so the cleaned up is my representation this time, you know, you do have to somewhat believe me, but it's easy enough to check that I haven't removed anything substantive. Now, it doesn't say it within the corners of the parenthetical. And a couple of times, you've said, Well, maybe our readers had never heard of cleaned up. And they don't know what this is all about. And to those listeners. I'm not very concerned about them a couple years ago, I used to get that. And I would say, Look, if you have not seen cleaned up, then you're not reading cases that come out from the courts of appeals. I can't tell you how often I just get note for someone, you know, this big case that just came out, has it cleaned up, because they all make a exaggerating, but just a little bit like the next time there's a big case, not in the Supreme Court. But every other court of appeals or a big district court decision. You know, just take a look and just search for cleaned up. You'll see it there. So at this point, it's not really a question about whether anyone has seen it, or whether anyone knows what it is. The people who aren't familiar with it, haven't seen it. You don't need to worry about them because they're not reading cases. Right?

Jeff Lewis  24:17 
Well, yeah. Let me push back a little bit on this jack. You know, I'm a big fan of cleaned up but a big fan of yours. Let me share something with you. I found it really interesting. I was at an informal zoom of research attorneys with the second district formal zoom, informal meaning there was a meeting of research of attorneys for the Second District Court of Appeal in California, which is Los Angeles. And when I say informal, it wasn't the official position of the court. They weren't speaking on behalf it was more like a q&a of peeves of research attorneys and things that bother research attorneys. So we know you know how not to piss them off when we prepare it. And I asked this group there's like five or six of these research attorneys. Do they favor or are they against the use of cleaned up and nobody in that discussion, who what cleaned up was, at least in the among the research attorneys, I was flabbergasted I thought I'd get either strong reaction for or against. None of them. I'd heard a bit I was

Jack Metzler  25:10
shocked. This was who was the audience? Again,

Jeff Lewis  25:13
this is a research attorneys who were on a panel in the second district court of appeal, California Court of Appeal. And these are the attorneys who know, do some site checking and draft opinions and that kind of thing. And they weren't against it when it was explained, but they just hadn't heard of it. I was just shocked.

Jack Metzler  25:29
Well, so this gets into the one particular subject, which may be touchy with you guys. I know, this is the California appellate podcast. But California has some rules that sort of make it difficult for cleaned up. As far as I can tell the California state rules, at least the cite the style guide, the California style guide, as far as I can tell, may be the only authoritative source that like that is actually against cleaned up not expressly, but by sort of the other rules, I think, seem to preclude it. Oh, hold

Tim Kowal  26:04 
on. I gotta get I gotta take notes here for ammunition against Jeff. All right. Wait on Me.

Jeff Lewis  26:09
He said, maybe there was a lot of there was some hedging. But yeah,

Jack Metzler  26:12
I mean, it suggests for exam well, like so this whole idea of putting parentheses around a citation? Well, that's kind of odd. I guess what I would say is, there's several of them. There's a rule about quotations within quotations, which is section four point 22 of the California style manual, which, you know, is contrary now, we all I know, and everybody knows that cleaned up is not in the blue book, right? So you're going against the blue book, you know, full stop. But on the other hand, if the things that cleaned up replaces, which we all see a million times, not all of those are actually Bluebook standard, either. So and I don't have this on the top of my head anymore. But But essentially, if you are willing to say, internal quotation marks, omitted brackets omitted, and so forth, you're already outside the blue book. So you might as well go all the way and just use an easier one. But I see, and maybe you guys can tell me better than I know how much like my court doesn't have a style guide that I have to follow? Do you have to follow the California style guide? Or is it just sort of optional,

Tim Kowal  27:19
it is optional, you can use either the blue book or the California style manual, but you are going to stick out like a sore thumb in the California state court system if you are using blue book rather than the yellow book, The California style manual.

Jack Metzler  27:32 
Yeah. So in that case, I'm not really all that surprised. The people who are sort of very much in the weeds of checking the California citations are not seeing this, because they're probably going for mostly California cases. And there are California cases that use cleaned up, but I looked at them. And I'll be honest, they get it doesn't fit very well with the typical California style. Just because you're already just as a matter of, like automatically already putting in a bunch of extra brackets and parentheses, like even like a second string site, you have to put the first one goes in parentheses. But if you want to have like a second one, that one goes in brackets, and also like in a parenthetical, if you're quoting something inside of parenthetical, and you want to sort of add your own little gloss at the beginning of the quotation, right, if you want to say holding that, and then a quote, the holding that goes in brackets inside the parentheses. Am I right about this?

Jeff Lewis  28:33
Yeah, I think you are. But let me also say the yellow manual, or the yellow book has not been I don't think it's been revised in over two decades. And yeah, the version I have is my prediction that when it gets revised, cleaned up is going to be last in the next edition. That's my bold prediction.

Tim Kowal  28:47 
Well, in Jack, you

Jeff Lewis  28:48
pointed out, you sent us a number of California state court published opinions that have used the cleaned up parenthetical. Jeff, you previously indicated that you'd only spotted it in one published Yeah, I thought it was one. But Jack has found a couple of dozen. The reason I know about that one, by the way, Jack's every time I submitted a pellet bravewell about say 90% of the time I use cleaned up and I add a footnote citing to your article that the kick this off. And the One California case I was aware of that uses it as kind of authority for using the citation. So I'm trying to educate folks in California about it.

Jack Metzler  29:22 
So I actually looked at that one. And I have to tell you, unfortunately, that is not the best example of the use of cleaned up.

Tim Kowal  29:31
All right, what is for misuse the parenthetical it didn't

Jack Metzler  29:35
misuse it, it's more that it didn't use it enough.

Tim Kowal  29:40
That makes sense. So the only sin that you cleaned up users only identify

Jack Metzler  29:45 
not, I don't know whether Can I share a screen with you? Because it might make it easier?

Tim Kowal  29:49
Sure. Let me I'll enable it here if I can, but we'll have to narrate this is the video version of the podcast but most listeners are going to be listening only so we'll have to narrow All right, what we're seeing on the screen,

Jack Metzler  30:01 
I want at least you to see it. So this is the on the left, I have the case that Jeff pointed me to. And you see it uses cleaned up. And then the original case is on the right. Yeah. So I have highlighted here. Yeah. I think the cord was doing on the right.

Tim Kowal  30:22
So this is the original quote, the source of the quote,

Jack Metzler  30:25
right, the original is on the right. And you can see in the original, it starts with a single quotation mark, then a double quotation mark.

Tim Kowal  30:34 
Yeah, when you get a single and then a double quotation mark, you already know that you're already spotting a cleaned up use.

Jack Metzler  30:40 
And then right after that there is a T in brackets. And if you move on, you see that there's an ellipsis. And then at the end of the sentence, there is in

Tim Kowal  30:51
period, and then citation in brackets, double quotes, citations, and another set of brackets, and then a single quote, and then a citation. It's just a mess,

Jack Metzler  30:59
right? So what I think the core is done, if we go back to the right, where they use cleaned up, is to get rid of all of that sort of that stuff that has highlighted the citation and bracket citations and bracket and actual citation, and then some of these extra quotation marks. Yeah. But if you look what the court left,

Tim Kowal  31:19 
it still left the unsightly square brackets at the beginning, right, and then the stupid ellipses in the middle of the quote,

Jack Metzler  31:26
right, so the reason I say that this is not the best use of cleaned up is,

Tim Kowal  31:29
is that not a comprehensive use, right? So that

Jack Metzler  31:33 
leaving that ellipsis, in there makes this sort of confusing, because if you the normal use of cleaned up, you would take out an ellipsis, but you indicate your own changes in the normal way. So this suggests that the court that used cleaned up took something out between the word review and is where that ellipsis appears. But in fact, it is quoting that ellipsis. So it's sort of like a backwards implication that ellipsis is the new courts work as opposed to something get quoted, I see why I wanted to get rid of the other stuff. But really, what the court should have done here is just go all the way I don't really care about the about changing the case of the first letter in the word D at the beginning, but that ellipsis is is kind of problematic. That's all I wanted to also notice

Tim Kowal  32:20
that the in that parenthetical there rather before the the parenthetical cleaned up, cleaned up, it's actually not even in a parenthesis in a parenthetical, the quote ends with a comma rather than a full stop period, as it did in the original quote, it's a comma, close quote, and then the words cleaned up that yeah, this can seem a little bizarre.

Jack Metzler  32:39
So Jeff, you might want to look at one of those other examples. Yeah,

Jeff Lewis  32:42
I will. But Tim, we just had on the screen, an incomplete use of cleaned up on the left, and then a wordy bogged down version on the right, that had not been cleaned up. Would you not concede that the version on the left, which must is much easier on the eyes, much easier to get your point across than the one on the right, with all that bogged down citation and the word citation and citation right after each other?

Tim Kowal  33:06
Yeah, you know, I'm not going to go in on any ideological crusades against the use of cleaned up, but I'm still not sure that that I'm going to use it. But I am much closer to being there than I was before we started this conversation. One other objection that I've got this is going to pull the camera back a little bit. Are we making too much use of quotations? I mean, that quotation we just read. It's not such a sparkling and concise and pithy quotation that it could not possibly have been said. In other words, or why do we even need quotation just put what the court said can leave the quotation marks off. It's still what they said. If the court if it's not exactly what the court said, it's what you say it said, and obviously, a jack pointed out, it's the words that are important that the symbology that goes along with

Jeff Lewis  33:50
it. Well, hey, Jack said Rule number one is we don't trust the lawyers. When you quote, a case, it's like there's a sub rule of well, if they're quoting a case, maybe they're not so much lying this time.

Tim Kowal  34:01
But they were trying to construct an entire brief out of just using case citations, like, oh, that way, you could never again, say anything I said, because it's all in quotations. It doesn't work that way. You have to put it in prose that flows naturally. And as we said, Yeah, we don't trust the attorneys, we're always gonna have to go back and check the sites. But hopefully, you're proceeding brick by brick and making uncontroversial statements all along the way. They don't always have to be in quotation marks, are we too addicted to quotations that we're trying that we're creating these new innovations so that we can use them more without the unsightliness of all the extra symbols in inside them?

Jack Metzler  34:36
Well, you know, there's always the danger of this is why we can't have nice things. No. The I think there's a balance and it is certainly when you quote reflexively I don't really think I think we need to attorneys as writers, we need to check ourselves on that and there are times when it matters, you know, In the heart of your argument, when you really do want the you do want the extra push that the authority gives you as you're going along, you know, of course, subject to the original author's writing style and making it fit. It's very inconvenient when judges write things that are hard to fit into my sentences. But, you know, in those places, I think there's a good reason to use the courts words, but there are a lot of places where it's not, you know, you will, you know, one of my pet peeves is when people will quote something where the context, clearly the court was talking about that case, it's like, yeah, where the court says something like, and that behavior is outrageous and must be denounced. And people will say, just like, in that case, the behavior is outrageous and must be denounced, like, they're not comparing the actual behavior. They're just using that quote, because it's, you know, it's some some words, the court said that he wished that they could that the court would say about their case. Yeah. And also in sort of less controversial parts of the brief, where, you know, if you say, you know, there in order to grant a motion to dismiss, there should be no genuine issue of factor or law and the movement is entitled to relief. Well, you don't really have to, quote rule 12 B six to get that relief, like, no one's just gonna be like, No, we're gonna kick them out. You can cite the rule, but you don't really have to quote it. Yeah. So I mean, that's my view, but we just need to check ourselves. And yeah, you know, this cleaned up does make it easier to quote, but ideally, it's used to make things easier when the quote would have been there anyway.

Tim Kowal  36:38
All right. Well, it's my final question. I won't speak for Jeff. But this is along the lines of what we talked about earlier. This is, if a practitioner, someone listening to the podcast is thinking about, you know, this sounds like a pretty good idea I want to use cleaned up. But I'm still a little concerned. You know, I know that a lot of courts, a lot of judges are using it. But how do I know that I'm not going to be submitting my briefs to that one judge, you know, or one of that that small cadre of judges who just really doesn't like it? You ever come across any reports that there are some judges who just don't like it? Or I know you're, you and Jeff, are true believers, they'll use it anywhere. But what about those who are a little bit more trepidatious about using it? Would you caution against using it in any certain jurisdictions?

Jack Metzler  37:14 
There's, there's one place I would not use it. And that it's because there's an Intermediate Court, I think, in Missouri, or Alabama, where two members of a panel said went out of their way to say the very thing you suggested earlier, which is that this is fine for judges, we don't think appellate advocates should use it. So if it were me, I probably wouldn't use it there. On the other hand, other judges of that same court have used it. So you know, maybe they're going to come around. There have also been an Intermediate Court in somewhere in the Midwest, or it's Colorado. I'm not very good with geography, where initially at the beginning, they came up with their own version of cleaned up, I think for the colloquial objection, like it was just a different couple of words. And there seemed to be sort of a little bit of tension on the Court of Appeals until their Supreme Court use cleaned up and so I think that one then that was settled. So other than those two, I don't really think there's any place I wouldn't use it.

Tim Kowal  38:25
All right, okay. And,

Jeff Lewis  38:26
and it's okay to use the emoji broom and an up arrow instead of the words cleaned up shirt. Okay,

Tim Kowal  38:32 
yeah, that's fine. You'll go along with anything. Alright. Well, I think the record against you already is pretty damning at this point, but just gonna conduct a lightning round to check for any other typographical barber isms.

Jeff Lewis  38:44
Nope. Before we get to lightning round, I want to ask you both about a kind of rip from the headline moment, and it's making its way through Twitter. I want to ask your your thoughts on this. It's a practice I haven't seen here in California. I'm going to share my screen for a second, as you know, in the internet is talking about this lawyer that's facing sanctions for using chat GBT in a brief, and he's been ordered to show cause and one of his lawyers asked for an extension. And I this is the first time in 26 years practicing. I've seen something like this, the district judge overseeing this issue denied in part and granted in part the extension did a hand right hand written order on the lawyer's letter requesting more time to brief or respond to this OSC re sanction. So my question is, Jax is common where you practice to have judges handwriting orders like this?

Jack Metzler  39:32
No, it is not.

Jeff Lewis  39:35 
As the appellate lawyer kind of gives me the heebie jeebies of like,

Jack Metzler  39:37 
I have seen an appellate guy I don't do as much work in the district courts or trial courts. Generally. I have seen cases in which where courts require people to have a proposed order. And yeah, of course there's handwritten changes on that. And then sometimes they'll write in something that is completely you know, that is just completely different like you no opposition. I've seen that before, where, you know, which is relevant and a reason you might grant in addition to whatever the the reasons given by the movement. But no, I haven't seen the full sort of, let's just do it right now and file that. Wow. Yeah.

Jeff Lewis  40:15
It's crazy. Yeah, the

Tim Kowal  40:16
audience. You know, I'm

Jack Metzler  40:17 
pretty sure though chat GPT did not write that response.

Tim Kowal  40:22
That's right, maybe that's the point to be made. And what we're looking at for the audience who's just listening is that we're looking at the lawyer's letter sent to the judge. And on the whole right hand side of it in filling in all the whitespace. The judge had written the order denying the motion, just handwritten. So yeah, that's a good point. You can be sure that that was not the product chat. GPT.

Jeff Lewis  40:42
And, Jack, I don't want you to put in jeopardy any pending prosecutions or open cases. But do you have any thoughts about that chat GBT at a lawyer's use of chat GPT in briefs?

Jack Metzler  40:51
So speaking in an unofficial capacity. Yeah, I can tell you that in in DC. The Office of disciplinary Council is authorized to start cases, basically, if the disciplinary Council learns about misconduct in any way, so if we read about it on the news, or it turns up on Twitter, that is a fine source, which could result in an investigation and I'll tell you that the people involved in that case are not DC lawyers.

Jeff Lewis  41:21
Well, okay. All right. All right, Jack. Well, to earn a podcast mug as a guest you have to survive the dreaded lightning round which is our patented copyrighted segment of the show that answers the most pressing pressing questions that Vex appellate nerds around the world short responses one word or one sentence where you can you know in the spirit of cleaned up for your appellate briefs that you filed these days fought preference century schoolbook Garamond or something else?

Jack Metzler  41:48
Lately I use Times New Roman. Is that preferred by that court?

Jeff Lewis  41:51
Are you just a monster?

Jack Metzler  41:53
Now that you want full answer?

Jeff Lewis  41:54 
Yeah, yeah, that's good.

Jack Metzler  41:56
So if you're finally a refund 14 point Times New Roman double space, it doesn't make any difference right it's not any more or less legible than century expanded is actually my preferred font. And so times new roman is familiar The reason people hate it is because it was the default font on for Microsoft Word for several so long now the default font is called libre if you file it a briefing, libre, You are a monster. But, but times new roman is fine. Garamond sucks.

Jeff Lewis  42:31
Wow, shots fired.

Tim Kowal  42:33 
Yeah, okay, well, my mind's blown here. I thought you were a trendsetter. And now you're like a trick. You're going back to a previous trend. And you've got a valid reason for it. So I yeah, he's, I don't know what to say.

Jeff Lewis  42:44
Is reason supported by authority. All right, I'm almost afraid to ask. I'm gonna ask the next question. Two spaces or one after a period. One. Oh, fantastic. All right, pled or pleaded, pleaded when you're doing your major arguments, not the page headings but the major arguments and appellate brief. All caps, initial caps or sentence caps.

Jack Metzler  43:03
Initial casts. Nicely done. All caps. I'm sorry, wait,

Jeff Lewis  43:09 
small all caps initial capital.

Jack Metzler  43:11
What are we talking about major headings like major headings?

Tim Kowal  43:14
Yeah. Like, like introductions, summary of argument. That kind of thing. Oh,

Jeff Lewis  43:18 
no, no, under that like Roman numeral one, that motion should have been granted. Roman one small caps. Small caps. Okay. And final question left justify or Full Justify for your briefs.

Jack Metzler  43:30
So I prefer left the court that I currently practice before the most does everything justified?

Jeff Lewis  43:38
Oh, okay. I guess we're justified in doing that. Yeah. All right, Jack, you earned your podcast mug and you survived our dreaded lightning round. Congratulations.

Jack Metzler  43:47
Thank you very much. This was fun. Yeah. Let me let me give you one more thing. It didn't come up. I wanted to let you know in case you're interested you know that article cleaning up quotations Journal of appellate process, practice and process is the the second most cited case in judicial opinions of all time. Wow. These most cited case is Brandeis. Brandeis and, and Warren Brandeis breathed the right to privacy. Oh, and I should tell you, I'm only about 40 behind them, or 30. So

Tim Kowal  44:25
you're gonna overtake and be the most cited article of all time and the Supreme Court or appellate briefs

Jack Metzler  44:33
in judicial opinions. All state and federal. It's mostly due to a couple of judges who just keep citing the cleaned up article over and over again. But I'm still taking it.

Jeff Lewis  44:45
It's stuck in some form template opinion that the judges keep reusing. Right? Well,

Jack Metzler  44:49
like, you know, early on a lot of people like like you said, Jeff, you say you cite it every time that's what reminded me of it. There's a couple of judges who still cite it every single time. And so they've got like, 80 or not Any opinions that from the same judge citing it, but nevertheless, citation count if you're just counting? I'm taking it.

Tim Kowal  45:07
Well, well deserved. Well deserved. I hope you get some sort of plaque or at least, you know, I'll make up my own plaque. Yeah. Cleaned up parenthetical somewhere on there. All right, well, that's gonna wrap up this episode. Again, we want to thank our sponsor casetext for sponsoring the podcast each week when we include links to the cases we discuss, we use casetext daily updated database of case law, statutes, regulations, codes, and more. listeners of the podcast will enjoy a special discount on case text basic research when they visit casetext.com/calp. That's the casetext.com/CALP And if you

Jeff Lewis  45:42
have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  45:52 
All right, thanks again, Jack. Thank you.

Announcer  45:54 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

This comes up every call I get after a judge trial: the statement of decision. The statement of decision in a bench trial stands in for the verdict in a jury trial. It tells you—and more importantly, the Court of Appeal—what findings the court made and what theories it accepted. Pretty important if you’re planning to challenge those findings and theories on appeal.

But you don’t have an automatic right to a statement of decision. And very commonly, parties—even their attorneys—are tricked into thinking they have a statement of decision, when really all they have is a tentative decision.

In this clip from episode 74, we discuss why a statement of decision is important, when to request one, how some judges might actually try to trick parties into not requesting a statement of decision, and when you might not want to request one.

Watch the clip here.

This is a clip from episode 74 of the California Appellate Law Podcast. Listen to the full episode here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

After the record is filed on appeal, you no longer have an absolute right to dismiss the appeal. So if you decide that the the appeal is not worth the risk of attorneys’ fees or bad precedent, you have to request a dismissal. And last month, the Court of Appeal cautioned that if you wait until the court issues its tentative opinion, it’s probably going to be too late. (Court refuses to dismiss appeal to avoid unfavorable precedent.) My plea was: not many courts do litigants the favor of issuing tentatives, so please don’t abuse it. Requesting dismissal after an unfavorable tentative risks ruining it for the rest of us.

But the court in Northgate Gonzalez, LLC v. Realm Real Estate, LLC (D4d2 Jun. 16, 2023 No. E078106) 2023 WL 4042678 (nonpub. opn.) didn’t seem to mind. The City of Riverside permitted Realm to build a mixed-use commercial and apartment complex. But Northgate complained that the project violated an easement that required the use be commercial. The trial court agreed and issued a preliminary injunction.

After two-and-a-half years on appeal, the Court of Appeal issued a tentative opinion. But before oral argument, the trial court made its injunction permanent, thus mooting the appeal. So Realm requested dismissal, and the Court of Appeal granted it.

Realm already filed a new notice of appeal from the permanent injunction. (No indication which way the Court of Appeal’s tentative went, though.)

Takeaway: If you are appealing from a preliminary injunction, consider also file a petition for a writ of mandate. Otherwise, you might go through two years of briefing only to find your appeal is moot.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey complicated issues as a subject-matter specialist to generalists on the bench.

Then we discuss the March 2023 SCOTUS opinion Sackett v. EPA, which sided with a landowner against the EPA. The EPA’s jurisdiction in keeping our waters clean extends to the “waters of the United States,” or WOTUS. Can wetlands and unconnected waters be WOTUS? Under the EPA’s “significant nexus test,” the answer was yes. But the Court reversed and replaced the test with a “continuous surface connection” test.

Jennifer explains how the new test may still open the floodgates to more water litigation.

(Neither Jennifer nor Jeff laughed at that pun.)

Jennifer Novak’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:


Announcer  0:03 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff Lewis  0:16 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim co all both Jeff and I are certified appellate specialist. And as uncertified podcast hosts, we try to bring our audience of trial and appellate attorney some legal news and perspectives they can use in their practice. If you find this podcast helpful, we are always grateful if you'd recommend it to a colleague.

Jeff Lewis  0:35
Yeah, and if you find it unhelpful, send it to your opposing counsel. Before we jump into this week's discussion, we want to thank case text for sponsoring our podcast keys Tex is a legal technology company that has developed AI backed tools to help lawyers practice more efficiently since 2013. He's Texas relied on by 10,000 firms nationwide from solo practitioners to analog 200 firms and in house legal departments. In March 2023. Case Tech's launched co counsel, the world's first AI legal assistant counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners to the podcast enjoy special discount on keystrokes basic research at case Techstop comm slash scalp that's case text.com/c A L P. And another benefit of case decks is it doesn't generate fake cases

Tim Kowal  1:23 
that is become increasing value as the news of Chet GPT comes across the way Blake's

Jeff Lewis  1:29 
Alright Tim, I'm excited today we have the opportunity to welcome Jennifer Novak to the show. At age five Jennifer Novak decided she had two goals to be a lawyer and to be a mom, she's proud to have achieved both. She is a second generation California female attorney who has practiced litigation across a broad spectrum of fields since 1996. As a deputy attorney general with the California Department of Justice, Jennifer handled cutting edge legal issues and matters valued in the hundreds of millions and billions of dollars on behalf of the people of the state of California. Now back in the private sector. She founded her law firm to be of service to people who understand the importance of environmental laws, but want to keep the regulatory process fair for those who take compliance seriously, based upon her experience representing clients ranging from Fortune 500 and national companies to retirees who operated manufacturing businesses decades ago. She understands the stress and uncertainty that a threatened or actual lawsuit brings. Jennifer, welcome to the podcast.

Jennifer Novak  2:27 
Thank you. I'm so excited to be here.

Jeff Lewis  2:29 
No, we're happy to have you now we're going to talk a little later in the show about what prompted this interview the recent Supreme Court decision and Sackett versus the EPA. Before we wade into those waters, let's get to know a little bit more about you. Was there anything about you wasn't revealed in the bio I just read? Oh, well,

Jennifer Novak  2:45 
there's a lot about me that isn't in one bio, Jeff, but I think you'll get a sense of who I am and the things I'm passionate about as we keep going today. So I'm happy to keep going.

Jeff Lewis  2:54 
Okay, great. Well tell us a little bit about your primary practice area.

Jennifer Novak  2:58 
Well, I am an environmental lawyer. My tagline is that when businesses and property owners are accused of polluting, we can clean up the legal mess. But that's a little simplistic. We do a lot of work both for environmental groups, as well as the regulated community. And really, I feel like our talent is translating very complicated regulations and laws, and to something understandable that people can see applies to their day to day lives.

Jeff Lewis  3:24 
So do you have to deal with these issues in state or federal court terms of these environmental cases,

Jennifer Novak  3:29  
they tend to arise mainly in federal court these days, however, sometimes we are still in state court, especially when I was working for the government and government agencies would get sued. That's where we ended up in state court.

Tim Kowal  3:42
And Jennifer, I listened to Jeff mentioned your former career or former tenure as the Deputy Attorney General in the California Department of Justice, can you talk to us a little bit about how you were able to parlay that experience representing the government, and now your private practice representing manufacturers and other private interests in these environmental disputes? Sure. So

Jennifer Novak  4:00 
you know, when you're working for government agency, like DOJ, you have a whole wide range of clients at these various agencies. And they're really experts in their field. And they're the ones who day in day out have to be dealing with the practical effects, and also the mission of any one particular agency. So it was fascinating because on one hand, we'd be constantly attacked by environmental groups for not going far enough to protect the environment. On the other hand, my clients would be attacked by cities and businesses who felt as if they were really being restricted too much. And it was overburdened some in terms of the regulation. So it was interesting to learn how to speak government, understand the things that government agencies are concerned with, the things they're not that concerned with. They don't care if you come from a big fancy law firm and you're threatening litigation because whatever I mean, they're not going to lose their job over this. They're just going to keep going on and to be able to take that balancing and then be able to go into the real The world and explain to people, you hear the things that government is going to be looking for your the arguments that are going to work, here are the things you kind of have to do by law. But where do we draw the line in terms of where the government has overreached?

Tim Kowal  5:13 

Yeah, yeah. So now you can be the translator. It's like, what does the government saying to me here?

Jennifer Novak  5:18 
Pretty much I like to say I'm a Rosetta Stone between government speak and government concerns and the real world.

Tim Kowal  5:25 

Got it? As you are, Jeff.

Jeff Lewis  5:27 

Yeah. So let me ask you, I think you find yourself most of the time in federal court, do you have a preference between state and federal court terms where you litigate these environmental issues,

Jennifer Novak  5:36 
I think I prefer federal courts simply for the reason that they take more time to actually read through the issues and understand them, they have more resources to be able to do that. Not to mention, if it's a situation where discovery issues are at play, it does help that you have the initial disclosures in federal court, and you can't play hide the ball quite as much. But that being said, I find that if a judge has not been faced with environmental issues before, you really do need a lot of face time for them to get comfortable with how environmental law varies from what they're used to day in, day out, the burdens of proof are different, the assumptions are different, the science is very heavy, and state court would afford me that opportunity to at least get in there and 1015 minutes at a time, start working on them to the point where they understood I was the credible source and could translate their day to day lives into what I was trying to get them to do from an environmental perspective.

Tim Kowal  6:35 
That's interesting. In your experience, you found that state court judges tend to be a little bit more teachable, is that what I was hearing, they're giving you more opportunity to educate them on what all these terms mean, what the jargon means, what the science is behind the claims and defenses.

Jennifer Novak  6:49 
That was true. I don't know that that was their intention. But when they keep dragging you in for status conferences, when you you are suggesting a bifurcation of trials, so you're not, you know, jamming up their courtroom too much at a time. That's what tended to happen. And the cases where I did better, say at a trial court level, were ones where the judge really took that kind of time to get to know who we were what we were there about in federal court. You know, they write their own rules. And so I can't say that there's really one type of experience that we have in there. Yeah, for the most part, they just don't like a lot of the big complicated environmental cases, because you're staring at 20 or 30. Lawyers, and you can see the judges calculating in their heads, how much money this type of case is costing.

Tim Kowal  7:34 
Yeah, right. Jeff, and I talk on this podcast about sometimes the difference between generalists and specialists and how appellate attorneys usually are generalists, and sometimes pour, you know, a large amount of volume into into very small clay vessels. That is the brains of individuals like Jeff, for me, but we're, you know, in our defense, we can use that to be more relatable to the panel of appellate justices who likewise tend to be generalists and not specialist. How do you you mentioned some ways that in trial courts sometimes if they give you more opportunity to speak and use that opportunity to address the jargon, and the scientific principles that are going to be at play? What are some Do you have any other techniques that you use? Do you put like a glossary in your briefs? How do you get the reader that you're the Fact Finder and the judge in your briefs to understand your arguments, if there's if their eyes are gonna tend to glaze over and a lot of the difficult constitutional principles or scientific jargon and principles, we usually do

Jennifer Novak  8:29 

try to include glossary because probably more so than any other area of law I've encountered. We are very acronym heavy, I mean, you're talking sequin NEPA circle of regret, you know, but also, I just don't like acronyms. And so for example, in a case, like the one we're going to talk about later, a lot of people will short and clean water act to CWA CWA Well, for me, I will usually shorten it to the act, so that you're reading real words. And hopefully, I've done my job at defining what we're talking about. So that when I have to throw an acronym at you, because otherwise, it would be simply way too burdensome, and take up too many pages for me to keep using long terminology over and over again, I'm still minimizing the techie part of it EBIT up, but more importantly, it's making sure you're telling the story in a way that anybody can understand it. You don't have to be steeped in this particular area of law to get some of the concepts, and then you try to relate it to people's lives. And so for example, when I was thinking about the socket decision today, you know, one of the controversies is you can be in the desert and look around and see it as dry. But you may actually be looking at areas that are designated as federally protected waters when it rains. And I thought, you know, Jeff, and some of the photographs he takes in his spare time and I thought, you know, Jeff would understand right, what you're looking at and what you see versus what legally speaking you're dealing With Jennifer's caption

Tim Kowal  10:01 
to every photograph is waters of the United States.

Jennifer Novak  10:05 
That is the problem that Justice Thomas has in the second decision. So I hate to keep bringing that one up. But you nailed it.

Jeff Lewis  10:12 

So Jennifer, what do you think your clients or opposing counsel or judges might say, is unique about either you or your legal practice or how you approach cases?

Jennifer Novak  10:23 
I've been called a straight shooter. So even if I'm working with environmentalists on a pro environment case, or you know, I'm working with people who traditionally represent only defendants, and they're being prosecuted for an environmental issue, I kind of tend to have the same opinions, regardless of which side I'm on, the only question is, given the facts of that situation, or given the policies at stake, where you're drawing the line. So you're not going to tend to find me on one extreme or the other. And I think that helps and trying to navigate what's really at stake, where someone's going to waste time fighting about things that don't really matter. And where you can tell somebody like, Hey, this is actually a really good deal, because it could get a lot worse for you. So I think that helps. And plus, as I mentioned before, we do straddle the line where sometimes we will represent environmental groups. So that gives us a pretty good balanced sense of where I think the law should be.

Jeff Lewis  11:22 

Interesting. Okay. Do you have a favorite or best war story from your years in the trenches fighting environmental battles?

Jennifer Novak  11:28 

Yeah, I don't know if it's a favorite story. But it certainly is an unforgettable one comes from when I was representing the appellant down in Orange County, the Fourth District Court of Appeal, we were late in the calendar, and we were sitting there suffering through a stuffy courtroom, you know, the cases are dragging on everyone's taking maximum time. And with about three or four cases, still to go before hours, I decided I just got to get up and get my energy back up. And I left the courtroom and I ate a granola bar in the hallway, client of mine came out, we chatted about strategy for a few minutes, I went to the bathroom. And as I'm washing my hands about to leave the bathroom, the door bursts open. And one of my clients screams, they've just called your case, oh my god, I had to go running down the hall in my heels, stop in time to just take one big breath to compose myself. And then I just stride into the courtroom. And I had a friend representing an intervening party, who was kind enough to have carried my binders up to the podium. And he's starting to kind of hem and haw, you know, to delay for me. And as I start walking toward the podium, it was almost like, and ladies and gentlemen, it's Jennifer Novak. You know, I go to the podium, and I just made eye contact with each one of the panelists, and then may it please the Court I'm Jennifer Novak. And I represent the appellant and I just started going and as I'm speaking, managed to sneak open my binder to get to a place where I could pick up the argument in case I needed it. And I just kept going. And about 1015 minutes in they stopped they asked me a question I keep going. And one of the justices kept giving me a sigh as if to look at me like I don't know where you just came from or who you are. It was a very surreal experience. But it had a lot of valuable lessons, right? Always be very well prepared. So you can handle any situation on the fly, always keep your composure. And at the end of the day, we won. So it must have worked.

Jeff Lewis  13:30 

All right. That's a good one. We'll call that a good story. All right, good, good, good.

Jennifer Novak  13:34 
Otherwise, I'm a pretty boring person. I think so I'm glad to have come up with a horror story.

Jeff Lewis  13:38 
All right. Hey, so what's one litigation mistake you've either made or that you've seen one of your opponents make that you'll never forget.

Jennifer Novak  13:46 
So this was a hard one for me to consider, guys. I think one huge mistake I see is really on behalf of a party or a client. And that is not recognizing that litigation takes time. You to test out different theories to develop evidence to make traction with a court, you just can't wave a wand and have the judge rule your way because you think you're right. And I have seen clients who won't fully engage in the process, then they then don't get the results that they want. So I would call that a huge mistake.

Jeff Lewis  14:18 
Yeah, yeah. Good. And do you have a philosophy or a creed that you live by in your practice? And are there cases or clients that you won't accept or arguments you will not make?

Jennifer Novak  14:30 
So I am not a yes, man. There are certain people who want to hear what they want to hear or as I try to explain to them that especially in an environmental regulatory scheme, they are subject to these and they do have obligations. And if I think that you have to engage in a certain course of action, both legally speaking and because it's good for you, I'm going to tell you, and if I sense that a client is going to start second guessing me and making me keep affirming and reaffirming that Yes. This is the way the law works. I won't take up. I can't at this point in time. It's just too much work. Yes. Okay.

Tim Kowal  15:09 

No, yeah, life is too short to deal with clients who won't follow their own attorneys advice.

Jennifer Novak  15:14 
Exactly. I've been doing this for a while now, people. So, you know, you can trust me if I'm your lawyer to steer you, right? Or at least to give you options from what you can choose. But I'm not just saying this for my health.

Tim Kowal  15:28 
Right. Yeah. And you don't want to be in a position later on, where the court has asked you, Miss Novak, why did your client persist on taking this very aggressive approach or this very aggressive position concerning their obligations? And then you're left having to tap dance and say, well, there is an arguable a colorable claim that we can make here. And that's what we're standing on, you know, you don't want to be in those uncomfortable positions. Unless you feel that it's a righteous argument.

Jennifer Novak  15:53 
Right. I try to avoid that if I can. Yeah.

Jeff Lewis  15:56 
What is your favorite part of your practice? You know, most pellet lawyers will say, you know, sitting in a quiet room and drafting the brief is their favorite part. But in terms of what you do, and how you practice, what is your favorite aspect of your job,

Jennifer Novak  16:07 
just given the subject matter, and the fact that it is a relatively new area of law, when we compare it to other things? You know, our major federal environmental laws are only about 50 years old. And the science means the regulatory scheme is constantly changing. So there's never a dull moment, you always have to learn something new. And it's very different from I'm going to just compare the words of one contract to another, or did I meet the elements of this tort? Or did I meet the elements of this crime is both a challenge and that can make my brain hurt sometimes, but it was also really exciting. And not to mention, it's so applicable to our day to day lives, you know, these issues were really important.

Jeff Lewis  16:46 
Interesting, you have any favorite legal writing or briefing tips you want to share with our audience,

Jennifer Novak  16:51
I really tried to steep myself in the research. And I do a lot of my writing in my head, because I just want to think about it and mull it over and see what makes sense. So to me, the more you're comfortable with this area of law and how the case is apply, and what's out there, I think the better the storyteller, you can be you're not just relying on I'm quoting from one case, and then another case. And then here's the plain language of something. I will note that I have heard judges say that they can be easily distracted when they're reading, not necessarily appellate judges, but trial court judges. And for that reason, they really like liberal use of subheadings and indented quotations, because it's easy for them to digest things and little tidbits. And if they just see page upon page of text, they get lost. And so I've definitely have incorporated that into my writing as much as possible when pages allow.

Jeff Lewis  17:45 

Well, okay,

Tim Kowal  17:47 
I like that. I like that a lot. I try to use subheadings liberally for the same reason that when you're digesting a lot of briefs, and then you come back and back to your first point about doing a lot of the writing in your head. And I think judges, maybe they do some of the analyzing in their head and it comes back to them later. Oh, yeah, they there was this point that that was made somewhere? And where do I find it through these undifferentiated mass of paragraphs, you know, after paragraph with no headings, or subheadings. If you add a lot of those headings, they could retrace the breadcrumbs and find out what they recalled reading in your brief. Well, and

Jennifer Novak  18:16 
I'm not saying hide the ball, I mean, go to the table of contents and read through it. And it should get lay it out point by point by point by point, all the arguments I'm going to make and why I think I'm right. Yeah,

Tim Kowal  18:29 
I like it. Jennifer, I

Jeff Lewis  18:30 
know you're involved in the California Lawyers Association, which branched off from the state bar a few years back, tell us about your involvement with the Association, what lawyers can get out of it, because I gotta tell you, I haven't done anything with that organization, since since they branched away.

Jennifer Novak  18:44 
Well, it's not that much different since they branched away, except they're no longer considered a government agency. And we have a lot more flexibility in what we can do. So I got involved with the Environmental Law Section, probably about 10 years ago, I'm a little late to the game in terms of my practice area, but I joined the executive committee. Pretty much right off the bat, I served as the chair for our organization, which represents about 2700 environmental lawyers, professors, law students, consultants, people who just like environmental issues, and among the activities we do for law students, or we have a diversity and inclusion fellowship program that awards scholarships to students for summer work, we have a writing competition and a negotiations competition that we run with multiple publications, which give people opportunities to write and publish. In addition, our main event is an annual conference at Yosemite every October, which brings together thought leaders and professors and politicians and authors and it's part hiking and enjoying Yosemite and parts conference. It is a fantastic event if you ever have a chance to go. In addition, we do have things like podcasts and other conferences that we put on and for me The first time I showed up at one of these events, I'm staring at former clients, opposing counsel colleagues. It was a one stop shop, like a high school reunion or something. And it just reminded me that especially in our field, we're pretty congenial. And we get along well, and it's nice to be able to have those relationships. When you're sitting across the table from somebody on a case later on, that's going to be really contentious, but you know each other as people, and I would put an additional plug for the California Lawyers Association, generally, they're really making a big focus of lawyer wellbeing and mental health issues. So there's a lot of resources there to make sure that we're not burning out and suffering as we traditionally have done.

Jeff Lewis  20:45
Yeah. Okay. That's great. You had me at Yosemite. I didn't hear anything.

Jennifer Novak  20:48 
I thought that would appeal to you.

Tim Kowal  20:51 
Yeah, I like that idea, like a legal conference by athalon. You know, some hiking and then to go back and sit and be quiet and listen.

Jennifer Novak  20:57 
Well, you know, when you're at the breakfast line, and you see a Supreme Court justice right next to you loading up, you know, his plate. It's not a bad place to be. Yeah.

Jeff Lewis  21:06 
All right, it's time to dip our toe into the waters and talk about the Sackett case, let's hear a bit about the Clean Water Act. Sackett case, set it up for our audience, use small words, so I can follow you in terms of what was at issue in this case, and what the court decided

Tim Kowal  21:22 
and try to tee up a lot more water related jokes for Jeff.

Jennifer Novak  21:27 
So at its heart, the second key decision which was just decided by the United States Supreme Court, deals with this question of which waters we're going to consider to be protected under federal law and where the federal government can extend its authority. The Clean Water Act is really from 1977. And the whole purpose of it was to deal with this question of, you know, the nation's waters had degraded to the point where literally rivers are catching on fire, fish are dying, you can't drink water from some places, and where you had some states exercising their right to crack down and clean up pollution, it doesn't help if the state across the river from you is liberally allowing people to dump whatever they want to dump all your individual efforts are going to go by the wayside. So by enacting law at a federal level, what Congress was trying to do is to restore and maintain the nation's waters so that they were fishable, drinkable, swimmable, with the goal of doing this by 1985. And first and foremost, it made it illegal to dump pollutants into waters of the United States, unless you agree to some level of regulation. Now, on an individual basis, obviously, no one's coming after you for chucking something into the ocean. But when they started looking at traditional sources of pollution, things like sewage spills, industry having chemicals go into the water, big trash dumps, they thought they could attack this by looking at some of those historic sources of pollution, and then starting to clamp down on regulating them. The more we know about sources of pollution, the more refined that has gotten to the point where we really are putting trash ordinances in for certain cities to keep trash out of our rivers.

Tim Kowal  23:21 
But I want to make sure I'm hearing you right is the idea that we wanted to have a an expansive enough definition of waters of the United States so that if there's dumping in some area, that's not technically a water of the United States, and but that it could travel to the waters of the United States, that would defeat the purpose, right, because you want to clean up the waters of the United States. So it has to be expansive enough to prevent pollution, through whatever means even if it's through a tributary far down line, but if you if you dump in, it's going to wind up polluting a water of the United States as traditionally known.

Jennifer Novak  23:53 

And that's not necessarily the language of the Clean Water Act itself, so much as that very practical reality, that it's not just the ocean, you've got things leading to the ocean that carry pollutants with it, and we want to protect those waters, too. So that's been a source of controversy from both a regulatory standpoint, just a government overreach standpoint, and within the courts for the last few decades, like what do we mean when we're talking about the waters that deserve that level of federal protection? Got it. So with that in mind, it's hasn't really been settled for the entire time that we've been talking about the Clean Water Act, and there are multiple attempts by the US Supreme Court to figure out a definition. It's hard to have a one size fits all definition for every potential tributary that we may be talking about. And so Saket comes in, you know, as the most recent of the line of these cases. It's interesting in that there's it's a nine oh decision. So even the most liberal of the justices agreed ultimately, with the Sacketts who were challenging The US government's actions, but how they get there is in very different ways. So from a factual standpoint, you have this couple who buys a house back in 2004, I'm sorry, they buy a lot in Idaho. And just from looking at this lot, it seems pretty bare, they intend to fill it in and then build a house on it. And here comes the US government to say you can't do that, because your sight drains kind of down this road across a road into a ditch and that ditch ultimately goes to a lake. Even though this lake doesn't cross state lines. We think it still engages in commerce people come here they visit they can fish they can recreate.

Tim Kowal  25:42 

That's priest Lake, yes, therefore, the lake is entirely within Idaho, but it can still be considered a water of the United States.

Jennifer Novak  25:50 
Exactly it by the federal government's definition. And because your site drains through various channels to get there, you know, we're gonna consider your site to be part of a network of wetlands.

Tim Kowal  26:03 
The Sacketts weren't they weren't dumping directly into priest Lake, they were dumping on their property helped me understand that there was some reference to wetlands that were the Sacketts on a wetland, how does the wetlands context contributing to a polluting and a water of the United States?

Jennifer Novak  26:18 
Well, wetlands can be considered a water the United States, traditionally, you're going to see them as that border between, you know, a waterway and dry land, you know, the soggy area where you have a transition can catch erosion, it can go purify the water that leaves land before it goes into the federal water. With respect to the Sacketts, they were part of a drainage system, of which the system of wetlands also existed and contributed into priests alike. And for that reason, the Army Corps of Engineers said they're all connected. And they implemented this test called the significant Nexus test. Meaning that what comes off the Sacketts land and what comes off the wetlands can greatly impact this lake. So we want to control what's what they can do on their land. Yeah, ultimately, you know, you can read the way the courts going to go with this when they talk about the fact that it's going to be a modest house. And they note that just by looking at the land of the Sacketts, might not have known that it was going to be designated as a federally protected land. So Army Corps of Engineers told them, they had to stop with their fill, they were going to have to submit a work plan to restore it. They could be subject to criminal penalties if they refuse. And it's this combination of the strict liabilities that come with environmental laws, laws, the significantly high penalties you could face if the government wants to impose them, and then balance that with the rights of private property owners to build on their land if it's not right on a water body. And that's where we end up.

Tim Kowal  27:53 
Yeah, and I wonder you mentioned that this was an AI no decision. There was, I believe six joining in the majority written by Justice Alito, and then there were a couple of concurrences, one by Justice Thomas, who joined by Gorsuch, which I assume would have gone even further than the majority. And then another written by I can't remember was it Kagan? Justice Kagan? Yes, joined by justices Sotomayor and Jackson, that agreed that the significant Nexus test, you know, was to unworkable, I guess, but would have signed on to a different test. What was the the alternative test that the call it the the liberal bloc would have joined on to the Kagan Sotomayor and Jackson, did they propose a different standard,

Jennifer Novak  28:32 

they actually didn't propose a different standard. Interestingly, both their concurrence as well as the one written by Justice Kavanaugh, to which the three justices who are the most liberal also signed on, you know, really went back to the text of the Clean Water Act to say that the terminology is adjacent, we're talking about not just the navigable water body itself, but waters that are and wetlands that are adjacent to it. And really, it's a semantics issue, with the majority saying, well, adjacent means you're like right next to right on top of your touching, and justice Cavanaugh and others noting, well wait a second, adjacent means neighboring nearby, you know, I can affect you, I maybe my house doesn't touch your house. But if we have a yard between us and a fence, we're still adjacent to each other. Interestingly, it was Justice Kagan, who pulls back and starts with the very language of the Clean Water Act that I started with that acknowledgement that the whole purpose of it was to be broad reaching, and was to go back and restore the nation's waters and saying the majority is coming at this like, well, as an example, Justice Thomas's concurrence goes way back to the 1800s with a lot of his case discussion about what it meant to be navigable way back when, and Justice Kagan says, you know, Congress knew all that Congress knew how they had treated the waterways in the past and they wanted to do something really broad really draconian And there's actually legislative history using that terminology. And saying we've got to do something so radical to turn this around. The majority acknowledges that the Clean Water Act has gone far in terms of cleaning up the nation's waters. And then it moves on to talk about states rights, and the government overreach. And there's almost an undercurrent of, you know, in the past, when we've agreed with you, you've then just taken that agreement and gone even farther. So now we have to put our foot down, and we can't let you keep doing that.

Tim Kowal  30:30 
I wonder if you think that the the reason that that this was a it was unanimous in the sense of rejecting the significant Nexus test, if you think that the maybe the the shared idea there among all of the justices was maybe like a due process or anti vagueness issue that look, the Sacketts are just moving gravel around on a lot that they purchased to build a single family residential home, modest home, Tim, a modest, modest home, and suddenly they get a visit from the EPA Police telling them, you know, you're potentially in criminal violation of the laws.

Jennifer Novak  31:02 
You know, I don't read the concurrences is trying to set a bright line tests so much as saying it's hard to do that, and I don't read them is saying that the government's decision to look a little case by case goes to foreign lacks due process. But that kind of brings us to a bigger issue, which is this one of agency deference. And it's never mentioned in the entire opinion. And what's interesting is, as people in my world, were watching the Sackett oral argument, that there was almost a disbelief like, no one's talked about Chevron deference. No one's talking about this, you there's a little bit of an undercurrent throughout the majority opinion, where they they talk about the agency going too far and acting as if an agency has no idea what it's doing. Justice Cavanaugh has concurrence talks about real world implications, and how those should have been taken into account before we simply have judges making rules. And in a sense, that's kind of what he's saying is that this has been looked at by people who understand the implications of what they're trying to do and how they're interpreting the law. And we shouldn't be here second guessing that it's just he never comes out and uses the dirty word. He never says Chevron,

Tim Kowal  32:15 
yeah, I did a ctrl F through the opinion and find the term Chevron anywhere. I thought this was going to be the opinion that took a hatchet to it.

Jennifer Novak  32:23
No, I think we're waiting on that one to come down next term. Pretty soon.

Jeff Lewis  32:28 
What Why is it with all the weighty topics the Supreme Court could take up, you know, abortion guns, why did they take up this case? Do you think?

Jennifer Novak  32:36 
Well, like I said, that question of whether the federal government has gone too far. And what it's trying to regulate within the environmental arena, actually is one that that does rear its head every decade or so, there's mentioned in the socket decision of the case we call Swank. And that's one where you had farmers out in the middle of nowhere, not near any, you know, navigable water, traditionally, and they would have these pools that got created by rainfall or by springs, sitting on their private property, not bothering anyone but migratory birds would use those pools as they flew over. And so the federal government said, well, the Migratory Bird rule is that the birds are interstate, you know, that, arguably is within our jurisdiction, they stop in your pools, therefore, your pools are subject to federal jurisdiction. So in that case, the United States Supreme Court disagreed. But we do see this kind of push pull of the US Supreme Court deciding that the government is going too far. And there's definitely a lot of discussion in both the majority opinion as well as Justice Thomas's concurrence about how if we use the significant Nexus test, test, then everything is pretty much connected to everything else, and the government can control everything. And then where would we be in terms of states having the primary rights, and then kind of taking this to an extreme level and saying, that just can't be the case. So really, Congress intended this to be very narrow, the federal government can only have power over certain things and states get power over everything else.

Jeff Lewis  34:13 
Let me ask you, though, like in the case of California's waters and natural resources, to the extent that the Supreme Court has now kind of narrowed or retracted the jurisdiction of the EPA here and the Clean Water Act, does that give room for California to be more proactive and issue more regulations to protect natural resources in California?

Jennifer Novak  34:34 
Some would argue California has already done that. And then some, we are pretty strong in terms of our regulatory scheme here. But so if you do Google this, if you do a deep dive into what this means for the quality of our waters, you will see a lot of people opining that, hey, this is California, we're going to be fine. I will tell you a very significant place where that could change is with respect to say doesn't suits, because the Clean Water Act does have a provision within it that not only can the government and force the Clean Water Act, but in certain circumstances interested citizens can to. And we certainly I've worked both sides of these kinds of cases, both representing businesses who are threatened with these suits, as well as representing environmental groups who feel like a business is being, you know, recalcitrant and a bad actor.

Tim Kowal  35:25 
Is that a difference between state and federal 100%? Okay, so under the federal Clean Water Act, no citizen suits

Jennifer Novak  35:32 
under the federal Clean Water Act, yes, citizen suits. But if you are trying to enforce a state law for the same thing, there's no citizens supervision there, you'd have to use more traditional methodologies. In which case, yeah, in which, and that, and so that is a key distinction as if some of these water bodies lose the ability to bring a citizen suit, you know, now, there's not the same incentive to be enforcing from a private standpoint. But more importantly, the state of California has become very reliant on citizen suits to help supplement its own enforcement scheme. So there's cases that the government won't take on because they know environmental groups will come in and step in. If the jurisdiction isn't there, you're gonna see fewer of those lawsuits potentially.

Tim Kowal  36:19 
So let's go ahead with the California Legislative regulatory protections are may be more robust than federal should the California Legislature if it wants to enhance environmental protection should authorize citizens suits and state courts in California?

Jennifer Novak  36:35 
Oh, I can't wait for that fight. That'll be really interesting.

Jeff Lewis  36:40 

Interesting. So in terms of your day to day practice, how do you think this case is going and the cases that follow are going to impact your day to day practice?

Jennifer Novak  36:48 
It's just gonna make things more complicated, I think is just as Cavanaugh noted, the Supreme Court isn't really creating a bright line rule. It's just complicating things even further. So you know, for example, 81% of the streams in the western United States are what we would call intermittent or seasonal. You can they're dry almost all the time, unless it rains or you're using them as a conveyance for something else. So is that a continuous flow? You know, if it even if it goes into a navigable water body from there, are we really going to be having a fight over what you know, what is connected to what at this point and how often it has to be full of water. If you look at the Los Angeles River, there's water in there almost every day. But that's not natural rain flow. I mean, that's not its natural river course, that's taking water from water treatment plants, it's being dumped there, urban runoff that's going through it. So even that has been controversial over the years for people have kayaked down the LA River to prove it's quote unquote, navigable, but Justice Thomas would have considered that to be, you know, not the case. Because that traditionally, right, it's not being used to navigate for commerce anymore.

Tim Kowal  37:58 

So the significant Nexus test, which is now disavowed under the the Sackett case, has been replaced by the continuous surface connection test. But you're saying that, even though that does seem on the surface, it seems

Jennifer Novak  38:12 
I was waiting for Jeff to come in on something like that, Tim,

Tim Kowal  38:15 
the continuous surface connection test seems to be easier to apply. But you bring up a wrinkle right off the bat that yeah, what happens with these seasonal bodies of water? How continuous does it have to be to be continuous surface connection under the continuous surface connection test. So that is going to be one of the litigated issues to wait for

Jennifer Novak  38:35 
it's going to come I may be printing and perhaps not in that situation, because I would submit that if it's been traditionally a stream bed, and it still looks like a stream bed, and you wouldn't walk by it and think it's something else that chances are, we should be calling it, you know, a tributary and giving it that same level of protection. But when we do have other areas where if you look at a map, you'll see blue line streams, that means they're federally designated streams throughout the desert throughout other areas, it's going to be a lot of hoops. And you're going to have to go through a lot more to prove that a water body deserves that kind of protection. Whereas the whole point of the Clean Water Act, and the way it was written was to make it as easy as possible to have these regulations and to protect these waters and to enforce the laws.

Tim Kowal  39:22 

Yeah. All right. So the continuous surface connection test, maybe it's not as simple to apply as it seems on the surface. But it still got to be simpler to apply than the significant Nexus test with its broad multifactor analysis.

Jennifer Novak  39:38 
Well, the court thinks the significant Nexus test is just everything. Everything's connected to everything. And you know, and I would submit that this is also where you do look at what an agency has studied and thought of in the past. We do have things that most people might not think of as being particularly significant watercourses, but maybe historically, yes, it did have fish or it was used for transportation before we diverted all the water and built cities around it. There's at every level, state, regional, local, federal, most water bodies have somebody who has looked at it studied it decided how we treat it. It's just those people are not the court. And those people tend to not be the lawyers arguing in court. And that's going right back to the Chevron deference. And we have a similar version here in California. And the notion that, if somebody's already looked at this and thought about how we should treat something, do we pay attention to that? Do we not pay attention to that, you know, if Joe off the street can decide that it doesn't look like it's a water body to me, so I can do whatever I want with it. You know, Is he right? Should he be questioned?

Tim Kowal  40:47 
Just replace one test with another and we paid lawyers were paid to argue both sides that are either side of the of the question. So now we're going to be translating these analyses that we made in the past under the significant Nexus test, and try to graph it onto this continuous surface connection test, I would wager

Jennifer Novak  41:05 
it certainly is not going to take any jobs away from water lawyers, that's for sure.

Jeff Lewis  41:11 
Yeah, law, although the no majority issued a clear ruling about what the rule is going forward, I think the court did give agency some guidance that it should be narrower and construes the waters and some guidance should be given to property owners and businesses in terms of whether or not they can ever be subjected to the laws in terms of due process. So there Yeah, I would expect to see the agency come forward with something to replace the continuous surface connection test that's a little narrower, and yet still tries to comply with the act.

Jennifer Novak  41:43 
Well, it's funny because I just went on the EPA website this morning. And they're they've acknowledged that some of their interpretations are on hold pending, you know, determination of what Sackett means or doesn't mean, but they also know you par for the course over the last eight presidential administrations that even some of its own regulations are still not applicable in some states due to various lawsuits. So that's been what's been going on for a long time, in terms of trying to figure out, can we even have a one size fits all rule? Or, you know, is it going to be as the court fears that you have to apply to an agency to tell you what they think if they opine on it after you've paid the money? And then chances are 75% of the time, they're going to tell you you can't do it anyway. So see, I agree with you, Jeff, somewhere in there is some common sense.

Jeff Lewis  42:36 

And the Sacketts now, I guess, can move forward with building their house, so long as the Oregon State authorities don't come in and try to regulate the construction. Right? It's I don't know, I left,

Jennifer Novak  42:48 
as I read the opinion is remanding. And saying, you know, kind of consistent with the holdings of the case. I don't know if the federal courts get another shot at this, you know, for some other reason, but I think certainly the argument that they're influencing an interest rate Lake, and therefore the Clean Water Water Act applies, that does seem to be dead in the water.

Jeff Lewis  43:09 
Oh, interesting. I gotta tell you, I honestly probably would never have read this case, if he hadn't texted me over the weekend and suggested thanks for bringing it to my attention here. Well,

Tim Kowal  43:20 
and before we meet Jeff, for the punch for the last maybe the last water pun of the episode that we'll have to wait and see whether this opens the floodgates to more Clean Water Act abuses. Come on,

Jeff Lewis  43:31 
Tim. Nicely done nicely. All right, even as we approach the end of the hour, Tim, did you want to run Jennifer through the gauntlet of the lightning round?

Tim Kowal  43:41 
All right, Jennifer, this is the time for our patented copyrighted segment of the show that answers the most pressing questions and pressing questions that vexed appellate nerds around the world. The dreaded lightning round, short responses, one sentence if you can, here we go. Font preference in your briefs and your legal briefs century schoolbook. Garamond Times New Roman or something else? Times New Roman? Times New Roman, we're getting a lot of love for times new roman lately. Okay, wow, two spaces after a period or just one space after a period? Well, since I'm over 40, it's two spaces. I'll allow it. I have to ask this on just behalf and because it's been a hot topic. Have you ever used the citation parenthetical cleaned up? If you're ever quoting something that removes ellipses or internal quotation marks or citations instead of identifying everything that you're omitting some practitioners and judges use the parenthetical cleaned up ever used it? No. Okay, Jennifer, as

Jeff Lewis  44:40 

an environmental lawyer, I'm just gonna suggest cleaned up is a parenthetical you need to look into I mean, it's what you do for a living. It's clean up.

Jennifer Novak  44:46 
Yeah, I like to keep it honest. So I'll tell I'll tell you where I'm skipping things or where I've left some words out.

Tim Kowal  44:53 
Okay, about the Oxford comma, a serial comma.

Jennifer Novak  44:58 

I don't want to get sued. So I have been using it more.

Tim Kowal  45:02 
All right, and then the I like to ask this one when you use possessive. So let me give you an example. The possessive of Congress is that Congress apostrophe or Congress's Congress, apostrophe s. It's just an apostrophe, just an apostrophe. Okay. Right. And you How do you pronounce it? Congress's? Okay, so that so the apostrophe makes a noise. We have a split of opinion on on this. Some people say it makes a noise. I say it doesn't make a noise. Okay. All right, you've survived.

Jennifer Novak  45:32 
Can I leave you with one little thing that I know is also of importance to appellate lawyers real quick? Yes. To the question of whether oral argument is a waste of time, I'll note my mother was one of the very first certified appellate practitioners in the state of California and definitely believe that you went on the briefs. However, my former boss and mentor, the late Norman Epstein once told me that it was tantamount to malpractice to skip oral argument because you deprive a court of the ability to really test out the truth. And if they have questions, and you're not there to answer them, then you're doing a real disservice to both the court and your client. So no, it is not a waste of time.

Tim Kowal  46:12 
Okay, that's, that lays down a gauntlet and we've talked about Italian California appellate courts, you know, you're asked if you want to invoke your right to oral argument, and, you know, maybe under circumstances, you might say, Oh, we're going to waive it in this context, but But you say it could be tantamount to malpractice to waive it. It's that important.

Jennifer Novak  46:31 
Yeah. Plus, I never give up the chance to get FaceTime with a judge.

Tim Kowal  46:35 
Yeah, yes. Another you're in good company with that opinion. All right. Well, Jennifer, you survived the dreaded lightning round. Congratulations. You've earned your California appellate law podcast mug look for that. And that would that's gonna wrap up our episode today. Jeff, we want to thank again case tech for sponsoring the podcast each week. We include links to the cases we discussed from case Tech's daily updated database of law, case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on case Tech's basic research@haystacks.com slash CALP that's case text.com/c A L P.

Jeff Lewis  47:13 
Yeah. If you have suggestions for future episodes, or if you have a water related pod you want to share with us please email us at info at cow podcast.com in our upcoming episodes of pro tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  47:26 
Thanks again, Jennifer.

Jennifer Novak  47:27 
Thank you really appreciate it. Guys.

Announcer  47:29 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

Stays of judgment enforcement in California are governed by statute. There are basically only two ways to stay enforcement of a money judgment: (1) post a bond and file a notice of appeal, or (2) ask for a temporary stay under Code of Civil Procedure section 918—but the stay only lasts until the deadline to file an appeal, plus an extra 10 days.

So the indefinite stay of an immediately-enforceable sanctions order in Marriage of Bush (D4d3 Jun. 15, 2023 No. G061202) 2023 WL 4013349 (nonpub. opn.) was a little surprising. The court granted sanctions of $3,635 in favor of the husband against the wife. But until the court decided the property issues, it was still possible the ultimate judgment would wind up with the husband owing the wife. So the judge stayed enforcement of the money order.

Can the trial court do this? Just take an immediately enforceable order for the payment of money, and stay enforcement?

Yes, the Court of Appeal held. But the court did not explain why. The court just stated that “Effectively, the court stayed the sanction until it determined how the parties' assets should be characterized and divided.” The husband argued that the trial court erred by failing to include the sanction amount in the final judgment, but that didn’t matter: the sanction amount was still in full force and effect upon entry of the judgment—even if the judgment didn’t mention it.


There is a key detail that, if changed, would require a different outcome. That detail is the amount of the discovery sanction of $3,635. If instead the amount was greater than $5,000, the sanction would have been immediately appealable. And in that case, the order could not have been stayed consistent with section 918 longer than 10 days after the deadline to appeal.

So if you are faced with a situation that involves staying an interim money order, be sure to consider whether the time limit under Code of Civil Procedure section 918 applies.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

Here are some legal trends and trivia from this week:

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

CEB has published my article, “When It Comes to Writs of Administrative Mandamus, the Appealability Rules Are Confused,” available here.

The article is about the mandamus case of County of Santa Cruz v. Santa Cruz County Civil Service Commission (D6 May 5, 2023 no. H049856) 2023 WL 3267749 (nonpub. opn.). The setup is that, when challenging an agency action via a writ of administrative mandamus, normally you have to assume the trial court’s ruling is the appealable order. But the Santa Cruz court permitted an appeal much later than that, when the appellant appealed from a statement of decision (which itself is usually not appealable).


The decision contradicts last year’s holding in Meinhardt v. City of Sunnyvale (2022) 76 Cal.App.5th 43 (but the Supreme Court granted review in Meinhardt).

My comment: It should make you nervous when courts are wishy-washy on appealability. Once the cases suggest an order might be appealable, you need to assume they are definitely appealable, because they’re treated as jurisdictional.

My original post of the same title is here.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

The voters of San Berdardino passed Measure K in 2020 to limit supervisors to a single four-year term at a monthly compensation of $5,000. The trial court invalidated Measure K as unconstitutional. But the Court of Appeal in San Bernardino County Board of Supervisors v. Monell (D2d4 May 25, 2023) --- Cal.Rptr.3d ---- held the term limit and pay cap were constitutional. (As to new supervisors, though, the pay cap will not apply.)

The procedural wrinkle was whether the appeal was mooted when, a new term- and pay-limit measure, Measure D, passed in 2022, totally superseding Measure K. Justice Menetrez thought Measure K was moot, and filed a dissent saying so. He pointed out that, given the trial court had invalidated Measure K, and given Measure D was now in effect, Measure K was nothing but a memory. “[N]o matter what we do,” Justice Menetrez pointed out, “Measure K cannot go back into effect unless and until Measure D is invalidated.”

There was a possibility, of course, that Measure K could cease to be moot—i.e., if Measure D (which is currently on appeal) were to be invalidated. But the court could easily solve for that eventuality, Justice Menetrez noted, by staying this Measure K appeal pending resolution of the Measure D appeal.

To the possibility of a stay, the majority reasoned that there “is not even any pending request for a stay.” But this statement is not entirely forthcoming because, as Justice Menetrez notes, the county had requested a stay, which was denied (over his objection).

But to give the majority the last word: “We see no reason why the [Measure D] appeal filed later should have precedence over the one filed earlier.”

The Takeaway: It can be almost impossible to predict how a Court of Appeal will come out on a question of mootness. And despite being a jurisdictional doctrine, mootness is almost completely discretionary.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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 appearance of bias.

What is the best way to do that? That’s where you come in. As attorneys, litigants, or amici curiae, your suggestions are needed on how to support the integrity and impartiality in our appellate courts. Some ideas:

All members of the public are welcomed and encouraged to contact any of the members of the Bias Prevention Committee: Chair J. Martin Jenkins; J. Helen Bendix; J. Stacie Bouleware Eurie; J. Do; J. Carin Fujisaki; J. Cynthia Lie; J. Rosendo Pena; 2d DCA XO Eva McClintock; DAG Amit Kurlekar; DAG Charles Ragland; Central CAP Exec Director Laurel Thorpe; Private Attorneys: Charles Sevilla, Ben Shatz, Rasha Gerges Shields, Rupa Singh.

Ben Shatz’s biography, LinkedIn profile, and blog, SoCal Appellate News.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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:

Watch the clip here.

This is a clip from episode 67 of the California Appellate Law Podcast. Listen to the full episode here.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

A challenge to a trial judge for cause is subject to waiver if not filed at the earliest practicable opportunity. North American Title waited a year in ****************************************North Am. Title Co. v. Sup. Ct. (Fresno) (D5 May, 19, 2023 No. F084913) --- Cal.Rptr.3d --- (2023 WL 3560761), before accusing the judge of bias for his statements that North American was playing a “shell game” to evade an eventual judgment. So the judge struck the statement of disqualifications as untimely.

But the Court of Appeal issued a writ reinstating the challenge. Tracing the legislative history, the Fifth District held that challenges based on personal bias were not subject to waiver.

Here, the trial judge in this wage-and-hour class action had grown frustrated after the title company defendant engaged in several acquisitions and name changes. The judge repeatedly accused the defendant of playing a “shell game,” engaging in “trickery” and “scheming” and “a corporate game of three-card monte,” and trying “every device to make sure that they evade the payment of their obligation.” And more like that.

For whatever reason, the defendant waited around a year before filing a statement of disqualification. But no matter. While a statement normally must be filed at the earliest practicable opportunity, the Court of Appeal noted that Code of Civil Procedure section 170.3, subdivision (b) specifically states “[t]here shall be no waiver of disqualification where the basis therefor is either of the following: [¶ ] (A) The judge has a personal bias or prejudice concerning a party. [¶ ] (B) The judge served as an attorney in the matter in controversy.” (People v. Barrera (1999) 70 Cal.App.4th 541, 547.)

Based on this and “the fundamental guiding principles put in place to protect the parties' and the public's confidence in the judiciary, disqualification based on the judge having personal bias or prejudice shall not be subject to waiver based on failing to present a statement at the earliest practicable opportunity under subdivision (c)(1).”

But won’t this invite abuse? The court noted that normally there is no reason for a party to delay before challenging the judge for bias. And if a party does delay to within 10 days before the start of a trial, under section 170.4(c), the challenge would not prevent the trial from going forward.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

Our regular roundup of noteworthy appellate decisions and legal news includes these stories:

⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited.

⚠Did the failure to raise an affirmative defense in a joint pretrial order forfeit that defense? The 9th Circuit held it did, but Judge Bumatay thought it was raised indirectly and the lack of a more explicit assertion did not prejudice the plaintiff.

🤚Suit against Maxine Waters for falsely saying her opponent was “dishonorably discharged” may go forward: evidence that Waters was shown a military document refuting her charge, and Waters’ failure to conduct any other investigation, supported plaintiff’s showing of actual malice for purposes of defeating the anti-SLAPP motion.

📃Record defect resulted in California Court of Appeal resulted in affirmative via a rare “memorandum decision.”

✉60-day deadline to appeal is not triggered by file-stamped order unless it attaches a proof of service.

🗣New snitch rule would impose a mandatory duty to report violations of other lawyers.

👩‍⚖️Oral arguments at U.S. Supreme Court run long by average of 30 minutes.

💼Supreme Court makes it easier to preserve issues raised in summary judgment motions in Dupree v. Younger.

🛑Federal courts to wind down remote access as US COVID emergency ends.

🕔3d. Circuit to impose 5:00 p.m. filing deadline.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

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