High-profile and celebrity family law attorney Chris Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff and Tim about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse.

Chris then talks about a way to bring more attention to non-celebrity cases through requests for publication of nonpublished opinions that raise important issues. And what kinds of cases pique the Supreme Court’s interest? It is often not what you think, says Chris, which is where bar networks come in handy in keeping up on legal trends.

Christopher Melcher’s biography, LinkedIn profile, Twitter feed, and YouTube page.

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 Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Transcript:

Chris Melcher  0:03
The only thing I can say consistently that that that I found is if I believe that the case is worthy of review, it will be denied.

Announcer  0:12
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  0:26
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:28
And I'm Tim Kowal. Conditionally licensed by the California Department of podcasting. The California appellate law podcast as a podcast for trial and appellate attorneys. Jeff and I are both appellate specialists and we split our practices evenly between trial and appellate courts. In each episode, we try to bring you some tips and insights that you can use in your cases at trial or on appeal.

Jeff Lewis  0:49
Welcome to Episode 34 of the podcast.

Tim Kowal  0:52
You know, Joe, something that comes up a lot on our podcast is how do we get the appellate courts and the Supreme Court to take notice of a case and sometimes the law develops based on what legal issues are deemed by the courts to be newsworthy. And so the question becomes how do you get your case to become newsworthy? And so for that topic, we thought we turn to the expert in newsworthy law, Christopher Melcher. Chris is a high profile and celebrity family law attorney and a certified family law specialist. Chris has represented clients and some of the largest divorce cases in California is his clients include a list celebrities, executives and tech company founders. Chris also serves as a consultant and expert to other family lawyers on important divorce cases. You'll also find Chris on major news outlets as a frequent commentator on high profile cases including the Angelina Jolie Brad Pitt case, the Britney Spears conservatorship case, and most recently, the Johnny Depp Amber Heard case and relevant to our discussion today. Chris also handles family law writs and appeals. Chris has twice argued in the California Supreme Court and as public and as unpublished decisions to his credit. So Christopher, welcome to the podcast.

Chris Melcher  2:04
Well, thanks for having me, Tim. And Jeff, I'm a fan and I'm first saw about your show on LinkedIn. And I've been following it. And I appreciate all the work that you do. I know it's a ton of effort, but it's great for the community to see this.

Tim Kowal  2:18
You're also very active on LinkedIn, you have a very active YouTube channel with a lot of commentary on some of these cases. And that's that's how I got to know you as well, and follow your your work and commentary. I think it's excellent. Now you didn't start out as a Scylla. Celebrity family law attorney, why family law and why celebrities?

Chris Melcher  2:38
Well, family law, I never thought I would would do this. When I got out of law school in 1994. I wanted to do corporate securities law, but there was no hiring the economy was the exact opposite as is now. So not even the public defender's office was hiring. So I just went out on my own, I was doing civil and criminal defense and guy down the hall was doing family law and talk me into switching over. And I'm glad I did. Because it's a great practice, we get a lot of client contact that you don't get in a corporate practice, we handling all aspects of their lives. So I developed this practice on doing complex family law litigation, and the celebrity thing just happened. Unintentionally, it was just as I was doing bigger cases then started representing more high profile individuals. And so that just became its own little thing in itself. But to tell you the truth, I prefer a non celeb case of this Less drama, and then having to deal with everything that goes along with representing a high profile figure.

Tim Kowal  3:46
Interesting.

Jeff Lewis  3:48
You know, I've been watching a lot of the Amber Heard trial clips because I appear in the media every once in a while. And one thing that I cannot understand, in all of these clips, I see Johnny Depp chewing gum, and I know in the Los Angeles courtroom, you'd be tossed out of the courtroom for that. Do you know anything about Virginia courts and why they're so lacs about gum chewing in the courtroom?

Chris Melcher  4:06
Yeah, you know, every judge has got its own way of doing stuff. And it is hard as a litigant to have to sit there and listen and not react and and, and you know, for both parties, but yeah, it's it's hard. I think it's he's probably got a lot of nervous energy and to sit there for eight hours and listen to all that stuff. And it's it's hard.

Jeff Lewis  4:28
Yeah. Sorry for that tangent, Tim.

Tim Kowal  4:32
Now, Chris, how did you go about building your practice? Did that did you start with the commentary and build practice from there or how did how did you get up into doing these high profile cases?

Chris Melcher  4:44
Well, it I know as a young lawyer, I would see the talking heads starting with the OJ trial, which was in progress when I was finishing up law school. And so I saw that there was this role really is interpreter that Lawyers can play for the public to understand these issues that the public is seeing in these high profile cases. And I thought, gee, I'd always like to do that. But I figured, well, I need to be more experienced, I need to build my resume. And that's honestly a lot of things that hold back all of us as lawyers, we're always saying, well, once I get the certification, or once I've handled this many cases, or once I become partner, then I will start doing whatever my dream is. So I wish I would have got started on this a lot earlier. But it is a big side job that's unpaid. All these guest appearances that I'm doing on media, I don't get paid for that stuff. I just like to do it. And I really respect that the citizens here want to know what's going on in our courtrooms. And if I'm able to explain these complex things, like what is this hearsay objection? Mean? In simple terms, I'm happy to do it.

Tim Kowal  5:54
What about I know you're also very active in putting on presentation CLE presentations for attorneys, did that come in parallel with your legal commentary? Or did one precede the other?

Chris Melcher  6:06
Well, so when I started in family law, the guy that I went to work with an eventually foreign partnership with Peter Walzer had said, all of his business came in from other family lawyers, and the way that he got that work was doing presentations at CLE events to other family lawyers and writing articles on family law and serving on Family Law committees. This made no sense to me that why would another family law attorney prefer work like that, but it is, it is true, it happens. And so I started doing these presentations, which helped me learn family law. So when I have to speak on some family law topic, I do all the work to prepare for it because I don't want to look like an idiot. And so that's why I learned family law. And that's what built my referral base or book of business. And it's been great. And as the pandemic happened in the lockdowns occurred, we couldn't do the hand to hand marketing the conferences in person that we were before. So I flip that over to webinars, which I like because you can interact with folks on a webinar in a way that you can't in person, you can see who's attending, you could chat with them shout outs. So I've I love it. I love doing that work. The media commentary is completely different, and be able to use the same technology that I have at the office with audio and video equipment. But speaking with the media is rapid fire, you're talking 60 seconds, rather than 60 minutes for CLE.

Tim Kowal  7:36
Yeah, you mentioned something to me that during or you just you just mentioned that you turn your your your CLE presentations from in person presentations into webinars. And I think I think you said that they're available over YouTube. Now. I take it now that they're available to a mass market that your participation in those is gangbusters, isn't it?

Chris Melcher  7:56
Well, it's weird with lawyers, because when I thought like, I'm going to create some webinars and do them live, and then throw them out there on YouTube for free. Nobody watches them on YouTube. And it's it's something about lawyers and our love for calendaring things that makes the live presentation. So much more engaging in watched than the recorded. And it's the same content. I mean, it's but if I put it online, I'll do a LinkedIn event, send it out to my email list. lawyers will show up because it's in their calendar, if I have it on YouTube, that they could watch it anytime they never watch it. So if it's not the calendar, a lawyer won't do it.

Tim Kowal  8:36
Yeah, it's not a real CLE. If it doesn't come with a rubber chicken, so good. So you shared about how your clients find you. And it's obvious because you're everywhere. You're you're on major, major market media, you're on YouTube, you're all over LinkedIn, but what do what do your clients when your clients find you? Why do your clients choose to work with you over other excellent family law attorneys in the area? What makes what makes you different?

Chris Melcher  8:58
Well, I kind of think clients pick their lawyers a lot like we pick our dogs or pets is somebody who's going to match their personality. And I'm very upfront with clients when I'm interviewing with them. And it's a two way process. And I let them know like, Hey, this is what I'm about. I'm not going to go in there and show boat, I work very hard, I'm going to put on the best case possible, but it's gonna be done in a respectful way. We're going to follow the rule I want to get you out of this as quickly and efficiently as possible, not looking to terrorize the other side or make any points if you know if I am going to say this may cost you a million dollars right now I'm going to tell you pay that to your partner, because you would be much better off giving that money to him or her than to me. So most of the clients relate to that that want to hear that message. So if they're a business owner, you're used to doing cost benefit analysis on litigation or any business decision in that range. It's true to them. They want a lawyer like that who's not self interested? Who doesn't have some agenda that doesn't serve them. Now, other clients don't want to hear that they hear weakness. What do you mean, you want to settle? What do you mean, you don't want to fight? What Why are you already talking about compromise in our first meeting? Well, that's not going to be good. And so I'm very direct about that. And also, what I found is that having so much content online, especially video is great for potential clients to vet you because otherwise old school, they would see your bio and know what school you went to. And that's about it. And then you have to pay for a console to listen to you and say, maybe that's not the right fit. So since there's a lot of video content out there, and I recommend this for everyone in your BIOS to have on your website to some video clips of yourself, so they can get a feeling because we are spokespeople is a big part of our job. And if you can't speak or they don't You don't present in the way that the client wants, then why waste everybody's time with a console?

Tim Kowal  11:00
Yeah, that's a great tip. No, no, Christopher, I wanted to ask you this, since you're an expert in in high profile cases that are involved in the media also often have rich and famous litigants. I want to ask you this about the concept of blind justice in our justice system, that everyone's supposed to have the same shake in our justice system, regardless of their status regardless, regardless of whether they're rich and famous, or poor. Nobody's What have you learned through your experience in representing the rich and famous does the concept of blind justice hold true?

Chris Melcher  11:31
Well, it really doesn't, I think, in criminal it can, because we have public defenders who don't get paid a lot of money, and will fight endlessly for their clients. And so I think in criminal practice, you see some equalization there for attorneys who are willing to spend a tremendous amount of time without any extra pay to represent their clients vigorously. In civil, we don't have that we're all by the hour or percentage. So you know, there it is skewed. And and even in these cases that I'm doing in divorce, you have an in spouse who has control of the assets and can pay the lawyer freely. And then you have the out spouse who's always trying to jump over that wall and get access to the money and fee awards. And it's become almost like a plaintiff and defense practice within family law. So it's very difficult for someone who doesn't have access to money to get access to justice.

Tim Kowal  12:31
Yeah. Let me ask you a follow up question along the same lines of whether there's blind justice in cases involving the rich and famous. Does does the high profile nature of a case ever factor in to an appellate courts thinking? I'm talking a Court of Appeal now where say, for example, where the court will the Court of Appeal, take a closer look at a writ petition in celebrity cases? For example, if if an early disposition would and what might be perceived as a media circus. Does that do those kinds of factors come into play?

Chris Melcher  13:04
Well, you know, I suspect that they do. You know, I've never served on the Court of Appeal or worked within the Court of Appeals. So I it's all a mystery to me. But you do see cases with high profile names attached to that, whether it's parties or sometimes lawyers, or cutting edge issues where they seem to get favored more than the humdrum stuff. And that makes sense. Because if you're on the Court of Appeal, you probably want to work on something that's more interesting than not, but it honestly in a legal analysis should make no difference. Now, I have, though, seen some courts reject cases that involve celebrities, where you would think that, you know, gee, they really want to attach themselves to this thing. But I do think it goes into the myth that and we even seen, like the California Supreme Court that one of their considerations on whether to grant a petition for review is the quality of lawyering involved. So there may be some some real considerations here that if Hey, we're going to take this case, want to make sure that the lawyers are are going to do the best job possible.

Tim Kowal  14:10
What do you think about the sorry, Jeff? I don't mean to cut you off. That's okay. I

Jeff Lewis  14:16
had a quick question. You know, one of the things that drew me to appellate law is the group of lawyers that do appeals is much smaller, and litigators, and are much more courteous in terms of extensions and each other's lives. And I was wondering, the group of lawyers that handle high profile cases, celebrity cases, would you say the same is true or the opposite is true in terms of professionalism and courtesies? What's your experience with the celebrity bar?

Chris Melcher  14:44
Well, you know, it's it's kind of a small practice and but there is, you know, even within there some divides between the white hat you know, lawyers versus the ones that are trying to to attack the celebrity. And so some, some have developed a practice of, of, you know, handling these high profile cases, but it's always on the outside of it that is trying to go after the celebrity. And and there's always some concern in those cases that the lawyer is basically saying, you know, settle, or, or if you don't, this is going to become public. And so there can be some bad blood that is developed, I think, within within those lawyers, but I hope that I'm on the good side of things. And for me, no matter what side of the case I'm on, I want it to be quiet, because I'm representing the celebrity I want to get along with the other side. So they're not running the court doing awful things to my client, especially, that's going to be publicized. And if I'm on the outside the outside shell side of the case, well, I don't want to kill the golden goose, I don't want to damage the celebs earning power, because that is going to deprive my client in the future from support. So I'm looking at it from very practical standpoint, I'm nice for a reason, not just because I'm a nice guy, because I think tactically, it serves me. But then there's other attorneys who are mean for tactical reasons.

Tim Kowal  16:16
Right. Interesting. Now, obviously, the celebrity cases can have the potential to bring a lot of attention to to the trial courts, do they do judges like this attention at all? Do they completely hate it? Do they have? Is it somewhat of a mixed bag?

Chris Melcher  16:33
Yeah, I mean, it's very odd. Because if we look at an analogue here of a jury trial, we would tell the jury, you know, you cannot go on social media, you can't look at the news, you can't look at anything relating to this case. And in some extreme cases, we will even sequester them to keep them in their bubble. Now with judges there, they're the canons of judicial ethics prohibit any extra judicial investigation. So they cannot look at social media regarding their cases. But how could you avoid doing so if you have a high profile case, like depth heard right now, you cannot look at your news feed or the TV without hearing that case. And so, and I've seen that in some of my cases, where references are made to social media, that's not an evidence. Well, how would the court know about that if it wasn't looking at something it wasn't supposed to look at? So I do think that the courts act differently when they know that their scrutiny, and that's not such a bad thing, as long as they're tightening up their process and saying, I know that this has been highly scrutinized. So let me be on my best behavior. But sometimes we see that scrutiny then provide a platform for them really not looking as good as they should.

Tim Kowal  17:52
Yeah. And I wanted to ask you just quickly on the same subject, but talking about the free Britney movement, I don't want to go too deep into a rabbit hole about, you know, the issue of conservatorship abuse. But do you think the court was concerned about this kind of hashtag movement movement, the free Britney movement and all the scrutiny that was suddenly being paid to alleged conservatorship abuse?

Chris Melcher  18:15
Yeah, I'm glad you raised that, because it was the free Brittany movement in the power of social media that broke the case open, and a court would have never done anything otherwise. And just quickly looking back at the history of that case, is that the the Brittany was put into a conservatorship without notice, even though the law requires notice. The conservatorship was granted ex parte without bringing her body her person to the court. So the judge could see her eye to eye even though the law required that. And then when her lawyer found out about it two days later, and came into court and saying I object, the court would not hear from that lawyer and said I had already appointed a lawyer for you, Brittany. So the the court was fooled into putting a conservatorship over Brittany and violating all of the legal protections that were supposed to be there for Brittany and allow that to go on for 13 years, even while she was working in a Las Vegas residency, which should have made no sense to any judicial officer looking at this how can somebody perform a Las Vegas residency and be so disabled that she would need another adult to make basic decisions over her like medical care in life and financial decisions? So it was only when the free Britney movement had really pushed in so hard that it forced attention to the case that the court then started acting the way it should have from day one. And we've also seen that in depth heard that there was understandably a lot of people rallying along, Amber Heard because we want to support and believe the victim, but then through the power of social media and her supporters, showing a lot of inconsistencies in what Amber Heard is said and kind of flip thing that court of public opinion. Yeah,

Jeff Lewis  20:02
yeah, that whole the whole makeup issue with the Amber Heard, you know when a certain makeup was made that's something I think the jurors by will never hear but it's all out in social media. It's crazy.

Chris Melcher  20:11
Well, it's right and in what I've likened it to, because you know we work on these cases and we may think are we have a big team of two or three or four lawyers and maybe some investigators, and that's our big team. Well, if you look at Amber Heard, and Johnny Depp's case, he's got a million people on social media pointing out inconsistencies. Amber saying, Oh, I was I was bruised up on May 27. And then they're finding pictures of her may 28 2016 with no bruise. I mean, this is an army of investigators that are out there helping them but

Jeff Lewis  20:47
and not just yeah, just not just their investigators. I think it's almost like crowdsourcing because the public court of public opinion seems to be on Team Johnny here. And so everybody is an at home. True Crime sleuth and is looking for inconsistencies. It's crazy.

Tim Kowal  21:03
Yeah. All right. Well, now let's talk about some non celebrity cases that the rest of us non celebrity attorneys handle. Now, Christopher, you shared with me and approach that you've used successfully in the past. And it has to do with requesting publication of unpublished Court of Appeal opinions or contrary Why is requesting the publication of problematic publish Court of Appeal opinions? Would you tell our audience a little bit about the strategy that you told me about? I think it's fascinating, I think our audience would be interested to hear about it.

Chris Melcher  21:34 
Sure. It's a way to shape the law as a non party or non counsel to a case. And through all this bar service that I've done being on these Bar Bar committees here in family law, there's these Amicus committees, and I've seen like how they'll go in and try and have a case published or D published or do an amicus brief on a on a pending issue. And it's it's been very effective in we're looking at monitoring, not non published decisions and saying, Wow, this, this case, would advance an issue that we need to develop in the law, and just asking the court to publish it, or one comes out and it's like, wow, that one's way off the rails, we need to get this off the books and asking asking it to be de published. And then the third aspect is, we're seeing an issue percolating in a case where maybe there isn't the horsepower there that there's there's not really strong representation on on the issue. And now a bar group or an attorney wants to come in and saying, Hey, here's what I have to say on this very narrow legal issue to aid the court. And through all that work, you're now shaping California law, and it's a it's a great thing to do as an attorney as a service to our community. Now,

Tim Kowal  22:56
is this something that you're doing purely in your capacity as an amicus just someone who is interested in the law, and in you have an idea of, of what, you know, what, what kind of legal issues are kind of percolating and what what things are undecided? And how they're how they're shaping up? Or is there a way to use this process to help maybe future clients that you would have? Well, sure.

Chris Melcher  23:19
I mean, it's, I'm doing it as a student of the law, and for my love of the law, but I certainly have certain areas of the law that I would like to see developed over other areas of the law. Now in we've seen in other practice areas, like say, if you're a defense attorney, you know, they're it's they're very clear objectives of what they have, that they want to strengthen defenses, or the plaintiffs bar community will want to do things to make it easier to make claims. And so their bias, whatever is very clear. Now, in family law, it's a little more difficult, because I could be on either side of an issue in any particular case. So one day, I may be arguing for the enforcement of a premarital agreement, and the next day, I may be arguing against the enforcement of Premarital Agreement. So it's very difficult for me to say, you know how any particular case would affect a client, because I could be on either side of it in family law. So where I've kind of settled on it is, is that I want consistency as much as possible in family law, because this is it's it's an awful place to practice. It's a court of equity. And I came from criminal at the beginning, where it's like, we have a statute, we read the statute, and that's about it. And in here in equity, it's it's a free for all. And so if I can find any kind of rule in family law that's reliable enough to advise my clients on or build a case around. I'm happy about that. And when I see courts, not following the few rules that we have that upsets me and that's where usually I'm gonna step in.

Tim Kowal  24:58
Well, let me let me ask you As if you're an advocate for for a client and there is a there's a court of appeal decision that comes down and it's and it's not published. But if it were published, the holding would be very useful for your for your client. But you're you're you don't have a any material pecuniary interest in the in the case that was that was just handed down under California rule of court eight point 1120, which is the rule of court that allows any party to request that a unpublished opinion be published, it does state that any person may request it doesn't have to be up to that case. But it does go on to say that you have to in your capacity as an amicus, you have to concisely state the person's interest and why the opinion meets the standard for publication. In your view, do you think that the that the statement of interest would require you in this in this hypothetical I set I set up where you represent a client who doesn't have a pecuniary or any any interest in the other case that's been handed down, but the holding would be advantageous to your client? Do you have to state that in the request for publication?

Chris Melcher  26:02
You know, and that's something I have struggled with? Because I think that we, you know, I don't know if we've maybe read that rule too narrowly. I certainly when I look at the rule, I say, Well, did somebody pay me to do this brief? No. Now, if the case were published, would that help me in a pending case? Yes. Do I need to say that? I don't know. I don't know. I mean, definitely, I'm stating in there that look, I practice family law, this is all I do. So I think the court could draw from that, that that, hey, this might end up helping one of my clients. So I mean, I guess it would be best practice to say, Oh, and by the way, Court of Appeal, I have a case where this is going to help me. But you know, it doesn't necessarily make the position any different. So I don't know where to come down on that. I think that the the harder issue is if it's adverse to your client. So if you have a pending case, where publication of this other opinion is going to harm your client, do you do you have an obligation to your client not to ask for publication? You know, I haven't I haven't got that one yet.

Tim Kowal  27:15
Jeff, what do you think about that? I kind of share Chris's ambivalence there. And I tend to think that no, technically you don't have an interest in the case. But what do you think,

Jeff Lewis  27:25
you know, I've never done a request to publish or depot where I'm not representing a client. But my gut tells me that you should disclose that, for example, I'm a family law attorney who regularly practices in this area. And clear clarification of this ambiguous rule is something that would benefit all family law practitioners, something like that would be helpful. Yeah.

Tim Kowal  27:48
Well, let's, let's talk a little bit about that, since we covered the the process for requesting publication of an opinion that's been that's been issued as, as a non published opinion, contrary, why as you alluded to looking for cases that have been published, that that creates some bumps in the road, let's call them whether for your your future clients, or just for the state of the law, it's created, creating confusion, it's creating conflicts under rule of court eight point 1125, the process is about the same except you may not make that request to the court of appeal, you have to make that directly to the Supreme Court. But can you tell us a little something about about your experience and making requests for de publication of Court of Appeal opinions?

Chris Melcher  28:31
Yeah, well, this is, you know, Tim, a little bit more edgier. Because when you're asking for publication, you are going to the authors of that opinion, you're saying, You guys are selling yourself short? This is this is beautiful prose here, you this should be published, what are you doing? Well, of course, that's going to be very well received your your but on D pub, you're going to their higher court, the Cal Supremes and saying, Look at this awful decision, I can't believe these people did this. So it has to be worth your while. And and and I've just just filed one of these last week, when again, in a very respectful way, I think, pointing out that it's a horrible decision. But I also have to keep in mind, I gotta practice potentially, in front of these justices in the future. And I'm just hoping that they don't remember this.

Tim Kowal  29:23
Yeah. Now, I want to ask you, because you've been up to the to the Supreme Court a couple of times, everyone who's had the experience of losing at the Court of Appeal is at the frustrating experience of answering the client's inevitable question of what next? You know, what, what remedies do I have from this Court of Appeal opinion that didn't go my way? And the answer is always grim. It's well a petition for rehearing which is basically never granted. And a petition for review, which, you know, maybe you have upwards of a 4% chance, statistically speaking, so that's effectively never do you have any tips that you can share that that may help get your case up to the Supreme Court.

Tim Kowal  30:00
Obviously we've been talking about request for publication. If you can get that thing published, then that increases your chances anything else that can make your maybe pave the way? I don't know if there are things you can do earlier on in the case to make it newsworthy. You've been does does newsworthiness of a case, heighten your chances of getting review in the Supreme Court?

Chris Melcher  30:18
Well, you know, this is a mystery, I think all of us, because the only thing I can say consistently that that, that I found is if I believe that the case is worthy of review, it will be denied. That's the only thing that I found because every time that I'm like, Oh, they're gonna grant this thick. How could they deny review of this issue? I always lose that. And then when I say, Oh, come on, I wouldn't even bother opposing this thing. That's why would they take this dog? This has nothing, nothing to see here. Well, they grant that. So I guess I'm one ad off on everything. You know, like one of the cases was was marriage Valley Frankie Valli represented Frankie Valli from the four seasons. And that ended up going to the California Supreme Court. But on the most minor issue in the case, it was the big case we had two trials on was whether his wife had any interest in the play Jersey Boys. It was a multi billion dollar endeavor. And I thought, well, that's the issue that will go up, if any, would go up, because there's very little law on how to apportion something like that. The issue that went up was whether him buying life insurance on his life during the marriage and naming her as the owner of that policy made it her separate property that received out of three trials, maybe 10 minutes of trial time. And that's the issue that went to the California Supreme Court.

Tim Kowal  31:45
I wanted to back up. There's one other question I wanted to ask you about your strategy. And just to repeat reprise that here, it's basically that if you have a case involving a novel legal issue, and you can find another appellate court that hands down and unput unpublished case involving the same issue might consider requesting publication of that opinion. Now, how are you going about looking for these appellate opinions to you know, to seek to have published or to have have D published, do you have like a Westlaw alert for certain kinds of issues, but what's what legal issues are on your radar these days?

Chris Melcher  32:19
Well, I mean, this is the the beauty of being involved in in bar organizations, whether it's LA County Bar, or any of the specialty bar groups is that there's there's lawyers and judges on those committees that are following published and unpublished decisions. And then there's the listserv that's discussing, certainly the new published decisions. So that's the way I'm kind of keeping my finger on the pulse of things. And you can go to the to the cow courts website and see all their unpublished decisions if you wanted to follow that. But mostly, it's it's one of us on this committee that happened to see this. And it may be one of the counsel for the parties in that unpublished decision saying, Hey, you got to take a look at this, this should really be published, probably because they want another published decision for themselves, but that get, you know, percolates up there. So, you know, that's the way I'm monitoring it. And it's it's really looking at inconsistencies in the Court of Appeal. And that's, that's certainly going to get everybody's attention saying, Well, how can two different appellate courts look at the same issue and come to different conclusions? And that certainly is going to increase the odds of the California Supreme Court granting review. Right? So

Tim Kowal  33:33
you're teaming up with other other like minded family law practitioners, who are all looking at these kinds of important issues that are percolating up and down the court system. And so if if a if a zinger comes out, then you're likely to get a get an email from one of your Bar Association's saying, hey, Christopher, you might want to write this one up.

Chris Melcher  33:50
Yeah. So we'll first in committee, take a vote on it and saying like, hey, as a bar group, are we going to get behind this and write a letter? And if if not, and if I feel strongly about it, then I'll write on my own behalf. And I don't know that it carries any more weight to me, you know, whether it's coming from Chris, or whether it's coming from bar organization shouldn't make a difference. It should be the content of that letter that counts.

Tim Kowal  34:16
Yeah. How often are you sending up these requests for publication or D publication?

Chris Melcher  34:20
So it's, it's right, you know, I would say, several times a year, probably four times a year I'm doing that. And then in this last a California Supreme Court case, which is brace I just asked to for permission to write an amicus brief, and that was certified question by the Ninth Circuit on on a California community property issue that the California Supreme Court took up and I noticed that there it was, came from bankruptcy. So the council that was involved in that case, were both bankruptcy counsel, who didn't have subject matter expertise and family law. And that's why I figured well gee, I really don't want this coming out the way it could come out. So I asked or permission to write this amicus brief. And and then the Council on, on whose clients behalf I was supporting was kind enough to carve out 10 minutes of his oral argument time for me to argue as an amicus. So that was, I mean, it was a huge amount of work unpaid. But the payoff was incredible. Because I got to be involved in this issue, make sure that it came out the way I thought it should come out, got to argue it, you know, advanced the law. And it was just it was I mean, it was no better use of my free time.

Tim Kowal  35:35
Well, Chris, I really appreciate your your contributions to both the to the bar and to the public, and talking about educating the public about these important issues that are coming out. And I really find it interesting and admirable that you're spending your free time sending up these monitoring the cases that are coming out and sending up requests to the appellate and Supreme Court about some of these opinions that may be sending our our law into some kind of some confusion. Do you have any other tips or words of advice for for our attorney listeners that were war stories you'd like to share?

Chris Melcher  36:05
Well, the thing is, I think getting engaged and we can see that this community here is so important that that we support ourselves, we understand what we can do to contribute to the law. So I would encourage everyone to be engaged more. And it's been super beneficial to me, just personally, I feel good about being a lawyer when I do this, but it's also been great for business. So if you have any questions about ways that you can get involved and what what are the steps to, you know, do this bar service and how to convert that into referrals. Don't just call me or email me. I'm happy to help because I learned all this stuff from Pieter Walser, and he learned it from his dad Stuart Walzer, so I'm happy to share the secret sauce here of my success.

Tim Kowal  36:52
All right now I think Jeff, you have some some of the real hard questions for Chris now.

Jeff Lewis  36:56
Yeah, you know, we conclude our interviews with the the most important and scintillating questions at Beck's appellate nerds around the world short responses, one sentence and seminar I always learned something new from these questions. last recording, we learned about a new way of formatting arguments that I hadn't heard of before. It's always interesting. So here is our patented copyrighted lightning in terms of your appellate briefs that you file what is your font preference century school book? Garamond, or something else?

Chris Melcher  37:22
Oh, century school book. Love it. Nice.

Jeff Lewis  37:24
That's the correct answer. Two spaces are one after a period,

Chris Melcher  37:29
there can only be one. And is it pronounced?

Jeff Lewis  37:32
Is it pronounced Amicus or Amicus or something different?

Chris Melcher  37:36
I use them interchangeably. And I have because I have no idea.

Jeff Lewis  37:42
That is also the right answer. Although I say it Amicus pled or pleaded

Chris Melcher  37:47
pled. It's gotta be pled Correct? Well,

Tim Kowal  37:51
we're not all perfect.

Jeff Lewis  37:52
Where did you find this? Guest? He's amazing. All right, when we're talking about your headings of arguments in your brief, not the table of contents or table authorities projectional the arguments. Do you do all capital letters, initial caps or sentence case?

Chris Melcher  38:04
sentence with a period at the end? So the Table of Contents reads my argument?

Jeff Lewis  38:10
Bold, very bold. All right, and your text of your arguments left justify or Full Justify

Chris Melcher  38:17
left justified. Nicely done.

Jeff Lewis  38:19
All right, final question after major headings in a brief to start the next section on a new page or continue immediately below.

Chris Melcher  38:28
I continue immediately below as long as I don't have a widow or orphan.

Jeff Lewis  38:33
Fantastic. All right. You survived the dreaded lightning round and well done. We were successful as you we'd send you a t shirt or a mug, but instead you just get our thanks.

Tim Kowal  38:45
All right, and so now we have just a couple of cases and news and tidbits we wanted to share and and Chris has agreed to stick around and take potshots if he has any the first one first case I wanted to talk about I think I just had one case I want to talk about today. And that was it is people vs Whitmore and the it's a California court of appeal decision that holds that there is no right to in person appearances in in a sentencing hearing. So the defendant in that case had specifically invoked his constitutional and statutory right to be personally present at the sentence sentencing hearing. But the court held that limiting a defendant to a virtual appearance was legally improper, but it created no harm. And so therefore, it was it was harmless error and the Court affirmed the 10 year sentence. My thought on this was isn't that structural error. There are certain kinds of errors like denial of a jury trial, for example, that the Court of Appeals broach the subject of trying to figure out well would it really have resulted in a different outcome if if we had given this defendant a jury? We don't even go there. We just say you had a right to it. This is the way we hold our trials. It didn't happen here. reversed and remanded hold the new trial. Maya Am I wrong? Wearing no objection?

Jeff Lewis  40:04
Yeah, you know, that's interesting one, what one could say you're building in a structural Avalanche or tsunami appeals during COVID. If you're going to take the position that a virtual appearance is not adequate. So there might have been a little bit of self interest by the courts in this ruling. Yeah, I

Chris Melcher  40:21
would, I would think and the California constitution says that no, what no judgment shall be set aside unless there's a miscarriage of justice. So we do have this concept of harmless error. And, and I yeah, I have to look at that case, to see how the defendant articulated the prejudice. Because being there, I understand there's a right of confrontation in a criminal trial under the Sixth Amendment. But here this is a confronting a witness is confronting the judge that sentencing, and maybe, maybe the argument is, is that the court would have felt more sympathetic, looking at a live human than a virtual human? And, and maybe that's the best argument that could be made. And in a manner that is so serious, I don't know, you know, I'm gonna have to look at that and see why they why they said harmless. So here

Tim Kowal  41:07
are the ideas that I could come up with if I had to, if I had to face this rule, and I had to show that there was prejudiced resulting from holding a virtual virtual hearing rather than the in person hearing that my client was entitled to, I would argue, maybe there was poor audio quality or a poor connection quality in my in my Zoom appearance, and I used to have to Object Object early and often if that happened to make a record of that Another idea would be maybe if someone is speaking off camera has happened sometimes like like a clerk, you know, keep alerting the the court that it sounds like someone who's speaking off camera, I can't hear what's going on, just keep making a record that that there is some unsatisfactory about the way this hearing is being conducted. And then my, my, my favorite example, maybe most fanciful example would be just stipulate a lot. You know, throw your hands around, I say, say that I prefer to stand but I'm going to have to adjust my my camera and just make a record of how disruptive it's being to be able to present your argument in your preferred way.

Jeff Lewis  42:02
Yeah, cuz, you know, appellate justices really love reading our briefs. And that is only exceeded by the loves trial judges have for gesticulating counsel, that waives arms, and that rolls their eyes during argument. I'm not sure how I feel about that last suggestion there, Tim.

Tim Kowal  42:16
Well, but this is all I can come up with. I mean, that's structural error. I don't know of any way to enforce this position to an in person trial.

Jeff Lewis  42:25
Yeah. Yeah, good point. Fair point on the issue of constitutional right to be present and structural error. There's interesting case that came out of fourth Appellate District division two, that's for Riverside case, and Riverside, like Orange County where you and I practice Tim has this requirement that before trial, you gotta have a meet, confer with opposing counsel, have all your exhibit and witness list and make a pretty binder with all the joint pre trial documents, you hand that to the clerk the day before a trial. And I guess this rule is in effect, and Riverside, somebody didn't comply, they showed up for trial for jury trial, the judge said, Nope, you're gonna have a bench trial, and found that jury trial was the wave. And one interesting side note, the judge who made this determination and ruled in the bench trial, also was a settlement judge served as a settlement judge. So the appellant who lost this case went up on appeal pointed out, Hey, I complied with the rule of court of appeal didn't like that arguments. And no, you didn't comply with the rule, he did show up with the binder, it'd be that there wasn't a valid waiver of a constitutional right to a jury trial. And that got the court's attention. It was interesting. So they reversed and found that failure to comply with the local rule, at least under these circumstances, can't constitute a waiver of a jury trial. They did leave some wiggle room that had the trial court given some notice, like, Hey, you didn't turn in your binder, we're gonna have an OSC Ray striking your right to a jury trial in two weeks, you can brief the issue. If he had done that, if the trial judge had done that, perhaps the waiver might have been effective, but it's kind of an interesting issue. It's a published case.

Tim Kowal  43:56
And I take it there was no there's no analysis of prejudicial error, because yeah, deprivation of a jury trial is structural error. Yeah,

Chris Melcher  44:06
yeah. And that's where I've, I've sought a recent decision that that I lost, where the court did imply did did apply the waiver rule like it should be that it has to be a knowing and voluntary relinquishment. And you know, sometimes they just don't apply that if they guess if they don't want to, but that that's technically right. And that's where I'm trying to build into my stipulations are to make it clear that somebody knows that they have this right, and they're giving it up. And we've seen that recently in a First Amendment case where there was a settlement that somebody agreed not to speak, and then try to challenge that to say, Well, hey, I gave I didn't voluntarily knowingly give up my first amendment right here. So I think practice tip for all of us is spell out waiver.

Tim Kowal  44:55
Yeah, yeah. Okay. I also wanted to share something Myron Moskovitz wrote in the April 14 2022 daily journal where he he criticized oral arguments on appeal as being largely futile. And this is a subject that that we've discussed on this podcast but admire Moskovitz says something that sparked an idea. I wanted it to both of you here. So here's here's Meyer Moskovitz. Quote, I have fully endorsed the slowly growing practice of issuing tentative opinions and focus letters that let the attorneys know before oral argument what the judges see as the key issues. This makes the argument much more meaningful and sends the message that the court is truly interested in getting attorneys input into how the appeal should be resolved, and quote, so after I read that, here's the idea that it sparked. Here's the proposal. I'd like your your comments on. So we know the California courts cannot deny litigants oral argument because that's a constitutional right. litigants have a right to oral argument. But what if the courts issued invitations to oral argument in certain cases when the court was interested in hearing about these issues? Invitations would be it's basically what the tentative opinion is. So when they issue a tidbit of opinion, the courts are saying this is what we are interested in. But but most courts don't issue the tentative opinions. But what if they don't have to do the 10 of opinion, they can just say we invite oral argument, they don't have to disinvite oral argument, they can't do that. But just saying that, we're looking forward to your oral argument, that kind of sends a signal that, hey, we've got a chance here. So let's give it our best, let's really work it up. oral argument can be a lot, it costs a lot of money to the client, because the attorney has got to go through the entire record again and get get ready to be to be asked any question about any of the issues of facts in the record. And if you're not going to be asked anything, if you're just going to get to get up there and speechify to a cold bench. It's just a waste of your time and the client's money. And so maybe these invitation letters would be a good way to focus the attorneys and to save to be an access to justice issues so that litigants don't have to waste money on oral arguments that are going to be pointless.

Jeff Lewis  47:03
Do you think you could draw a line between them sending those letters out? When you've called Focus letters or issue spotting letters or whatever? Do you think you could draw a line between that and an actual drop in request for all argument? Because I think lawyers will still want to argue either because they're stubborn, or because they want to build the hell out of the file? Or or because their clients are saying I want my day in court. I don't think there would be an appreciable drop in the request for oral argument.

Chris Melcher  47:28
Yeah, that's that's my sense, too, is that they're certainly the arguments can occur, but then at least it can be prepared. And then it would reduce a little bit of anxiety because going into these, I always figure like, I won this one, you know, or whatever. And then it's just more like Bloodsport that we go in. And it's all of a sudden we hear like, how is this happening? And where did this come from? And and I don't think it would take a whole lot more preparation for the court to do that, because there's probably already drafted that opinion. So but I rarely rarely see any any indication, other than through the contempt of the court towards counsel about where they're going during oral argument. Yeah. Yeah, I don't know.

Jeff Lewis  48:12
I don't know if reducing appellate lawyers anxiety is in the top 10 list of appellate justices concerns but maybe an appellate justice here as a guest on the podcast

Tim Kowal  48:21
will laugh. I thought I get you with access to justice. Jeff, those clients who do you know, who don't have the unlimited budget and would like to I like to limit their expenditure could say, well, if the court is really not going to be receptive to whatever we say at oral argument, do I really want to spend the 1000s of dollars to prepare my my attorney to go out there know that those clients

Jeff Lewis  48:41
would just say, Hey, Tim, would you go out pro bono? Would you go argue that pro bono?

Tim Kowal  48:47 
Well, but we know that we know our expectations. I did have one other case that I wanted to bring up. I have to mention it since we have Chris here because I had followed Chris's advice. And I had sent up a request for publication after I wrote up this arbitration case, Quach versus California Commerce Club. Back in April, I decided that the opinion raised some interesting issues and it ought to be published. And today the court modified the opinion and partially published it, the holding is that the right to arbitrate is not waived, even if the party invoking arbitration, happily litigated for 13 months. The newly narrowed holding is that the showing of prejudice to establish waiver cannot be met merely by litigation costs, which is all the plaintiff raised here. You have to you have to go further and and argue something else other than it cost me money by the by the moving party's delay. Wow.

Jeff Lewis  49:35
All right. Interesting. All right. Well, I think that that wraps up this episode.

Tim Kowal  49:39
We want to thank Christopher Melcher, again for being with us today. And if you have future suggestions for future episodes of the podcast, please email us at info at owl podcast.com.

Jeff Lewis  49:51
I'll see you next time. Thank you, Christopher.

Announcer  49:54
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 ca l podcast.com. That's ca l podcast.com. Thanks to Jonathan Caro 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 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.

Probate litigator and appellate attorney David Greco tells why the probate “stay killer” is his “favorite provision in the Probate Code.” Probate Code section 1310(b) allows a probate judge to override the automatic appellate stay, which can, in many cases, render the appeal moot.

David explains why this is an important tool in many probate cases.

Watch the clip here.

This is a clip from episode 29 of the California Appellate Law Podcast. The full episode is available 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.

Victoria Fuller, a certified appellate specialist focusing on family law, explains what family law attorneys most often misunderstand about the appellate process.

Her answer: “substantial evidence” review. Appellate review of a factual finding doesn’t just mean deference to the trial court. It means the appellate court considers only—only—the other side’s evidence, and completely disregards your evidence.

This means that, to have a shot on appeal, you have to look at your case a whole new way.

Watch the clip here.

This is a clip from episode 27 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.

The trial court may not deem the right to a jury trial waived simply because the plaintiff failed to comply with local rules, like failing to submit trial binders.

That is the important point about waiver of the right to a jury trial in Amato v. Downs (D4d2 May 6, 2022 No. E075421) -- Cal.Rptr.3d ----, 2022 WL 1438723. The ways to waive jury are found in Code of Civil Procedure section 631 (e.g., failing to post fees, failing to appear, written or oral consent on the record), and they are exclusive.

And the related point is: the erroneous deprivation of the right to a jury trial is a structural error. On appeal, ordinary errors only get you halfway to reversal: you still have to show the error resulted in prejudice. Not so for structural errors. A structural error defies review for prejudice. How could anyone know a jury wouldn’t have given a different result?

So the erroneous denial of the right to jury was reversible perse.

But USD law professor and legal blogger Shaun Martin still thinks the Supreme Court should step in and reverse. Even though he agrees with the Court of Appeal opinion. Prof. Martin explains:

“The wrinkle here is this: At the bench trial, the trial judge granted a nonsuit based upon plaintiff's failure of proof. Now, as Justice Raphael notes, even though everyone calls it a nonsuit, that's not technically the right term; in bench trials, it's actually a Section 631.8 motion for judgment. But the concept is basically the same thing: plaintiff didn't put forward enough evidence, so defendant's entitled to prevail.

“Defendant's argument is thus, essentially, that even if there was error in depriving the plaintiff of his right to a jury trial (and, to be clear, it was), no blood, no foul, since he'd have lost anyway based upon his failure of proof. So go ahead and affirm the judgment.”

Prof. Martin agrees with the respondent that that’s the correct outcome. But he also agrees with Justice Raphael’s opinion because, under Supreme Court precedent in In re Estate of Robinson (1895) 106 Cal.493, 496, litigants’ right to jury trial is not waived “by their failure to present evidence sufficient to secure a judgment in their favor.” Prof. Martin thinks that holding, though binding on the Court of Appeal here, is wrong and that the Supreme Court should reverse it. If the plaintiff’s evidence isn't good enough, Prof. Martin reasons, “reversing and remanding for a new trial is a meaningless (and wasteful) act.”

I respectfully disagree with Prof. Martin. I disagree because, no, a ruling on a motion for judgment under section 631.8 does not tell us that the plaintiff’s evidence failed as a matter of law. A judgment under section 631.8 is a finding of fact. It is right in the statute: “The court as trier of the facts shall weigh the evidence….” (Code Civ. Proc. § 631.8.)

Prof. Martin’s analysis makes sense if we were talking about a nonsuit or a JNOV. But motions for judgment under section 631.8 are very different from nonsuits or JNOVs. Here are some of the differences:

Here, the judge granted the defendant’s motion for judgment. The only information that gives us is that this particular judge was not persuaded by the plaintiff’s evidence. But this is not the same thing as a finding that the plaintiff’s evidence failed as a matter of law.

If the trial court had granted nonsuit or JNOV, then I would agree with Prof. Martin. In fact, if the court had granted nonsuit, I do not think Estate of Robinson would apply, because a nonsuit is not based on a “failure to present evidence,” but a failure to make an adequate offer of proof on the necessary elements of the plaintiff’s claim.

So Prof. Martin and I agree that the Court of Appeal here got it right. But contra Prof. Martin, the Supreme Court should not grant review. The fact that the plaintiff could not persuade the judge does not mean it would be futile to afford him his constitutional right to try to persuade a jury.

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.

Drawing from his experience training federal judges and top law lawyers how to write more effectively, Ross Guberman shares some of his best writing tips with Jeff and Tim on episode 33 of the California Appellate Law Podcast at www.CALPodcast.com.

Ross also gives a tour of his latest product, BriefCatch 3.0 (now available on Mac), a tool that scores legal briefs for engagement, readability, flow, punchiness, and clarity. Not sure how to take your writing from merely proper English to Elena Kagan? BriefCatch provides in-app examples of some of the best passages of Supreme Court justices.

Here are some of the tips Ross covers:

✍️ Why more judges are using pithy, attention-grabbing language—and why you shouldn’t imitate it in your briefs.

✍️ Rising above the fray without resorting to quips.

✍️ Getting the judge’s attention by tapping into three universal fears all judges have.

✍️ Discussing “bad facts” confidently, not defensively.

✍️ Using BriefCatch to improve your briefs.

✍️ Remember the purpose of legal writing is to help judges organize their thoughts—briefs are a tool, but aspire to make them tools that are a pleasure to use.

Ross Guberman’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, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

BriefCatch

Ross Guberman’s Point Made: How to Write Like the Nation’s Top Advocates

News of Brandon Sanderson’s four books published over the Covid shutdown.

Transcript:

Ross Guberman  0:03
judges fault, right? You can't say that. But I can't. I don't have any sympathy for any federal judge in America. If lawyers start doing the same in briefs,

Announcer  0:12
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  0:26
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:28
And I'm Tim Kowal California Department of podcasting license pending review. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both Jeff and I are appellate specialists who split our practices evenly between trial and appellate courts and on this podcast, we try to give our listeners some perspective in their trial court matters and on appeal.

Jeff Lewis  0:51
All right, everyone, welcome to episode 33 of the podcast.

Tim Kowal  0:55
And today we are very honored to welcome Ross Guberman into the show. Ross Guberman is the president of legal writing pro LLC and the founder of breached a brief catch LLC. Ross has conducted 1000s of workshops on three continents for prominent law firms and judges. His workshops are among the highest rated in the world for professional legal education. Ross holds degrees from Yale, the Sorbonne and the University of Chicago Law School. Ross his book point made how to write like the nation's top advocates is an Amazon Best Seller. Ross also wrote point taken how to write like the world's greatest judges, which court review called the best book by far about judicial writing. Ross's newest product, which we'll talk about today, brief catch helps lawyers improve the writing quality of their briefs and was named one of Tecno lawyers top 10 legal tech products of the year. And for the past six years, Ross has been invited to train all new federal judges, and he has presented at many other judicial conferences as well. So thank you for joining us, Ross, and welcome to the podcast.

Ross Guberman  1:59
Thanks very much for having me. Jealous. Savannah, Southern California sunshine coming through your windows. Yeah, it's

Tim Kowal  2:05
been nice. We've got some early summer weather coming. So yeah, so we're very pleased to have you Ross. As I mentioned, most of our audience is made up of trial attorneys and appellate attorneys. And and a lot of us, particularly appellate attorneys are really kind of honed in on on legal writing, grammar issues and things like that. And Jeff and I have recently been trying out your product brief catch and running all of our briefs feverishly through to see how we score according to your your algorithms and what kind of suggestions it would make to improve our writing. So I wonder if you before we get we launched into legal writing in your in your products, maybe we just learn a little bit about about you and I kind of named off all the all the braggy stuff in your resume, maybe tell us a little bit who you are Ross and how you how you got into into the law and got into being a legal writing guru.

Ross Guberman  2:55
So I sort of fell into fell into law school as many people do. I was I was actually doing a PhD in language, linguistics and so forth. And I I dropped out pretty quickly. There's one smart decision I made not to fester for too many years. So I dropped out after about a year and a half, got a master's and then then went to law school. And I actually did did enjoy the law quite a quite a bit. I enjoyed law school I was I was at a big firm. I liked that too. So I was actually pretty much dead set on become a practicing lawyer for life. But then I ended up leaving leaving the firm as you can guess from my bio. And I ventured out to do various things just sort of trying to find my way. And long story short,

Tim Kowal  3:41
why don't you like practicing company? Was that? Sorry to interrupt, but I was just curious, why didn't you like practice practicing law?

Ross Guberman  3:48
I actually did like practicing law. And I still I still like being exposed to that world. I'm just sort of a restless person who's you know, gets really excited about something and then I just run out of steam and isn't like I disliked it in any way. I just thought maybe I would try something else knowing that I could always go back to big laws. It's known back then it was two words big law. Now now it's just one according to above the law.

Tim Kowal  4:13
Yeah. Well, sorry to do I've interrupted so. So then after you left big law, what was the next step in your in your path that led you into writing and speaking on legal writing?

Ross Guberman  4:22
I tried and tried a bunch of things all at once. So I actually taught taught at the very first online university, which is still around Strayer University, had had an interesting mix of prisoners and Iraq War soldiers and stay at home parents. So that was that was interesting. And I and I did some other types of teaching. I started teaching at GW law school. I did a little bit in publishing a little bit in journalism. And then I also had a business where I wrote and edited briefs and especially appellate briefs for different firms. And that's actually how the training company got started.

Tim Kowal  4:57
Okay, great. Yeah. And you know, when I when I was looking at your resume and saw that, you know, you would you'd start as a practicing attorney and then left and and I thought about you know, I'm also someone who loves writing and I sometimes wonder what it would be like to do it full time and not be belaboured by actual you know remunerative activity. But you know, as the writer and lawyer, John Mortimer, related to his father telling him that the great thing about the law is that it gets you out of the house. And I see you spend a lot of time giving workshops and seminars and legal writing so you're still out and about, you know, you're not just holed up writing books and just you know, you're not you're not up when When did you What made you decide that you know, what to get out there and start teaching judges how to write their opinions was? It seems like Yeah, well, I

Ross Guberman  5:42
just, I'm just smiling because you know, the mind though, on the Myers Briggs, most lawyers are I you know, I for introvert, and I'm definitely a strong E. So everything you say, you know, makes sense in retrospect about definitely not being not being a monk. So training judges actually came quite a few years later, as you can guess him you don't you don't run out of the gate starting to start telling federal judges what to do. So I spent quite a few years mainly with law firms, but also a CLS first aid bars and other organizations. And then just you have to have your first gig with judges. So mine was the Eighth Circuit. So I spoke at the Eighth Circuit conference. I remember Justice Alito was there. We all were on the same bus to crazyhorse and Mount Rushmore, and that was my first action, my first venture into speaking to judges. So that was a judicial conferences, I said, those are a little more casual, a little more fun. And then shortly thereafter, I started being asked to do the, you know, annual or every couple of years program for all the new federal judges.

Tim Kowal  6:46
Okay, so Ross, why is in your opinion, why is good writing important? So in this in our world that we're kind of overtaken by talkers is good writing is as important as it used to be? It's more or less important.

Ross Guberman  6:58
Certainly in you know, in your neck of the woods, the appellate world, it's extremely important. I mean, I think I noticed a lot of law schools come out of law school thinking that oral advocacy and writing are kind of tied in importance, which, you know, could be true, of course, in some practice areas, but certainly not. If you talk to judges quietly. I mean, they love to say oral argument matters on panels, but most cases, as you know, are decided on the briefs. That's also true in the trial court. So it's certainly important in that regard. It's also it's also, I think, a very good way to distinguish yourself from other lawyers. It's, it's a, it's a fairly rare skill, if you ask around. I mean, most lawyers, of course, are decent writers, competent lawyer writers, but you don't hear that many praised effusively for writing. So I think it's important for that reason as well. And then also because it you know, at the end of the day in a common law, common law world common law jurisdiction, that's what endures, right? It's not the kind of kind of the cool biting quips people have an oral argument that Supreme Court comes down to opinions and briefs. That's how you really make your mark. So there's there my three reasons kind of my No, like, like the like, the teacher says biology is the most important class in high school. But that's what I would say about writing for lawyers and judges.

Tim Kowal  8:18
You mentioned a moment ago about, you know, about getting praised as a as a legal writer, how does a lawyer or a practitioner go about getting praise as a legal writer? So I was gonna ask you something similar later on about, about the difference between writing as a practitioner and writing as a judge. And I wonder if you are writing in such a way as to be conspicuous. I wonder, I wonder sometimes if, if you're doing something wrong, like I've heard, I've heard writing advice that here's what to do after you finish writing your brief and how to how to edit it, find the line in there that you liked the best and take it out.

Ross Guberman  8:55
Kill Kill Your Darlings advice in writing, which is, you know, kind of depressing as advice goes, even if it's even if even if it's on point. So it's actually a very interesting question. You ask it because I think I think sometimes people get confused about what makes them Garner praise, and it may not necessarily lead them down the safest or most enjoyable path. So basically, are there two ways you'll see judges and lawyers alike you get attention or even pray so the first would be kind of the quip. You know, the quip, the funny kind of Twitter ready sentence or line usually sarcastic, sometimes witty, and for better or for worse, whether people in theory think it's good to praise that stuff or not. That tends to get attention, use something that's a little BB a little bit, again, a little bit personal, a little bit clever, you will certainly on both sides, lawyer judge, get get attention and even praise for that. So that's sort of the conspicuous way of getting praised when again, that's the social that's the sort of social media Half. If you look at what gets Twitter, you know, Twitter, Twitter quoted or LinkedIn quoted, it's not case analysis, right? It's usually some, some clever quip. Right. So the other way is not quite as exciting in the short run, like you don't get immediate attention. It's quieter, but it's probably more effective. And that is just trying to rise above the fray somehow, just in the day to day sentence creation than any lawyer judge has, right all day long. Most sentences, even Justice Scalia as dissents, most sentences were in no way shape, or form, whether you're clever. And in those more, get more quiet moments, more routine moments, you rise above the fray by being especially clear, especially flowing especially concise, relative to to your peers. And it's not easy. It's not easy, because of course, you have to do all that within the confines of the subject matter. And also in a profession where you have lots of different types of demanding and critical readers.

Tim Kowal  10:58
So Ross, you are busy writing books, you're teaching seminars about writing, you're producing legal writing software, what parts about all these activities that you're doing energize you, and what parts are a little bit more draining that you talked about being being an extrovert and an introvert, and I can tell you, as you know, I'm hosting a podcast, but I'm an introvert. So activities like this can be a drain on me. It's fun, but it's a drain. And so I wonder for you What's, what's invigorating and what's draining? Yeah,

Ross Guberman  11:28
I mean, it's interesting how that changes, of course, as you as you grow up and age, so certainly right now, without you know, without any hesitation, I'd say everything associated with legal tech is energizing and exciting for some of that's obvious, as you said, I'm in the business myself, but it's not all just that I mean, it's not just my own stake or my own experience, my definitely feel like the profession, which is very often downbeat, I think we're in a particularly negative period, almost everything you see, written about our profession these days is negative. Except with this one exception, there's a lot of excitement, a lot of energy, a lot of creativity, innovation, around tech. So, you know, just just a couple months ago, I went to, it was actually a live conference, believe it or not, in New York, big legal tech conference. And just to compare the mood there to the mood of the other legal conferences I go to, it's just really, really startling just to kind of see and feel and soak up all all the energy. So there's that plus, I do like business, but I ended up trading, you know, not particularly complicated training business, but it was a business. So that's still energizing for me, even though I've transfer all that to software sales, draining, you know, I, I'm one of them, I really do. And no people say this, and it sounds suspicious, I do basically love my job as much as I ever have. But to answer your question, the one thing that's probably not as fun as it used to be to be very blunt, I wouldn't be doing doing seminars in law firms, just because and I'm not talking about COVID, that would be too obvious a point even before COVID, you just you just see as the generations change less and less, less and less appetite for kind of sitting still for two or three hours and soaking up learning. So that's, you know, that's just not quite as enticing, or, or energizing to use your word. Yeah. As it was 10 years ago.

Tim Kowal  13:21
And in just a follow up on what you said about illegal tech as being being kind of an exciting new world these days, is that have to do more with the the advances in the legal tech? Or is it have to do with maybe younger attorneys coming up being more receptive to using legal tech or some of both?

Ross Guberman  13:38
I think you're absolutely right on both fronts. So you know, for as much as people like to criticize the younger generation, this is this is a wonderful strength that that they have, and it's infectious, especially if you get you're getting older as I am. So there's a lot of that. I mean, this is the future of the profession. It's not really a choice at this point, right. So people want to kind of stave it off, delay it, but it is the future. And as you said, I think the younger generation of lawyers and law students, they're in great shape to, to exploit exploit it. But you know, your other point is also very, very well taken. There are all sorts of advances that make that make it easier, I think, for lawyers to focus on what value they can really add and avoid a lot of the other tasks. And then also, you know, we talk a lot about access to justice and inequities and the like. And a lot of this tackle, though, you know, to be honest, and I'm no exception, a lot of it ends up being marketed to huge law firms and the like. But the truth is a lot of it really, if used properly can can make getting legal advice and legal services much more reasonable and much more efficient for for many, for many clients and would be clients. So I think that's, you know, that's that's exciting as well.

Tim Kowal  14:55
All right. Well, Jeff, did you want to jump in there with a question?

Jeff Lewis  14:59
Well, I did have one question. I think I know the answer. We're gonna get to it next. But let me just ask you, you know, COVID-19 gave us the gift of time in terms of not going to court not going to seminars, lots of free time, Tim and I use that time to kind of birth this podcast, one of my favorite authors, Brandon Sanderson use the time to draft five novels that he didn't tell anybody about. What did you What did you use your time during COVID in the shutdown or not going to seminars? Was there any pet projects, or things that you're able to accomplish?

Ross Guberman  15:27
Well, I would have liked to turn out one novel on forgot five, but I turned out zero novels so little, little bit a little bit envious to hear that someone managed five. So yeah, it was certainly a, you know, is an interesting time for me, just because of the really dramatic change, right? Overnight, someone who's on the road all the time meeting different groups, sometimes four or five cities, then instantly as as was the case for most of us trapped, trapped in my house for much longer than I had imagined. So for me, it was it was mostly a positive experience with my family, certainly kids home from college and the like. So that part was really positive. But professionally, I was able to really, really focus on brief catch, and really, really dig in to some of the nuances and to really make progress and some of the goals I had without the hustle and bustle of running through airports and you know, checking in and out of hotels. So it was a new experience for me to be kind of calm and kind of quiet, and to be in my house not seeing a lot of people live. But overall, especially relative to the lot of the struggles other people had, I'd say I was pretty, pretty blessed.

Jeff Lewis  16:42 
Well, let me just say, you know, I've attended your seminars, and regardless of your view of the big draining, it was fantastic for me, I've read your books. But for years, I've been like the guy on the outside looking at a window looking in, because my firm is all Mac and I have not been able to use your brief catch software, which has been around for a while. And you just recently announced the release of brief catch 3.0 Why don't you tell us what the software is and how it can help? Yeah,

Ross Guberman  17:09
great. Yeah, the MAC MAC compatibility is exciting, obviously, for me as well. So glad Glad to hear it. So so as as the years went on with my with the books and other other things I've written, and especially the seminars, people would judges and lawyers alike would say, you know, this is all great, it's fantastic. The last two, three hours, good stuff, but how the heck are sometimes I'd say hell, how the heck, how the hell would is anyone supposed to remember all this? Is there any way to automate it? Or, you know, before the word automation was trendy, I think people would say, is there any way to make a macro or something like that. So I heard it enough times that I finally finally got the message. And I dipped my toe into into the world of legal tax. So it was a little over four years ago that the first version of brief catch was launched. And as you said, we just launched the third version. But basically, what it does is it picks a draft at any stage, including early on any section of a draft. And at this point, we have about 11,000 ways to improve the draft or fix common errors, everything from Blue booking to just, you know, savings clause instead of saving clause. That's one of the newer rules, a judge suggested I include, and it does all that incredibly fast, especially this new version, just second Slevin 1000 rules, and it will either give you just kind of a fixed, right? Correct something either accepted or rejected. Or, as you've probably seen many times, it will give you a choice of options. And then fairly new in the last year or so I have lots of explanations, and also lots of examples. So kind of everything, a lot of the things people frankly, paid a lot of money for those workshops are now readily available to our users as they're doing their work. So they don't have to go to a six hour CLE in a hotel, or at a firm. It's sort of on the job.

Jeff Lewis  19:07
Yeah, I'd say one of the features I enjoy the most is that examples. It's not just hey, would you rephrase your sentence? Here it is, hey, do you want to write like Scalia, or Alito, and you have little examples underneath the box? It's really super interesting.

Ross Guberman  19:22
It's it's fun. I mean, I don't have to apologize for saying these things are fun, right? It's my profession. But it really is fun choosing the examples. And as you said, it can also be ammunition when you get into arguments with colleagues, because now they're arguing not with you, but with Scalia, Kagan, and the like.

Tim Kowal  19:39
And that's the fun for the user.

Jeff Lewis  19:42
You know, at the risk of offending our audience, I'm going to go out and say, you know, the yellow book style manual is, you know, superior to the blue book, your software when it's evaluating citations and those kinds of things. Is it a directed towards blue book or yellow book, or is there a way to modify that?

Ross Guberman  19:58
I mean, it's directed are the errors that most most lawyers most of the time worry about. So, you know, extra spaces and reporter names and so forth. But I generally do stick to the blue book, when when I do have some things particular for California lawyers also for Texas, a couple of things for particular trial courts, even Canadian citations. You know, hopefully all this will soon be a moot point as we move to hyperlinking in the cleaned up movement. But yeah, for the most part, I tried to focus on the things that seem to torment the most lawyers, what most

Jeff Lewis  20:33
what is the cleaned up movement? And why don't you share with Tim, in particular, what that's about?

Tim Kowal  20:38
Do you mean sell?

Ross Guberman  20:40
That's right. Yeah, read between the lines, maybe have a nice, friendly argument over this so cleaned up, it's it's actually an interesting phenomenon separate and apart from the merits, because it's a rare time, there's been really any reform in the profession, that happens fairly quickly. So cleaned up is something dreamed up by an attorney here in Washington. And he was trying to trying to do something about the whole blue booking apparatus that people tend not to like, like multiple reporters and having to have citations omitted, and quotations omitted and bracketing things that you lowercase. So the idea was to get rid of a lot of that junk. And then in exchange for that, at the end of the citation, in parentheses, you'd put cleaned up. So it's taken off, and you actually I know, remember, Justice Thomas did it. And that was kind of news. And never justice did it shortly thereafter. But when I say that the reform is taken off, as with every single thing in this profession, 24 hours a day, it's still controversial. And there are also people who hate it. Right? I've heard three kind of three camps. I love it, I hate it, or I've never heard of it. It's still a fairly large, large group. So yeah, we'll see. I mean, the the anti case that I've heard is, is actually I think, valuable to consider and it's that, you know, things that sound really obsessive compulsive like bracketing, lower casing and capitalizing actually are not. So if you are quoting, if you're quoting from an opinion, and it looks like you're quoting the whole sentence, but you're really not. That's something a lot of courts want to know. They want to see the bracket to see that it wasn't actually beginning of a sentence. Interesting.

Jeff Lewis  22:26 
I've heard a 4d camp that sometimes some people say it's okay for judges to use cleaned up, because they're a trusted judge would never miss cite a case before parties, on the other hand, are lawyers representing parties? It's a risky move to do cleaned up.

Ross Guberman  22:40
That's yeah, that's interesting. I mean, I am generally concerned about that, just because I think judges do send cues to litigators and appellate advocates through their opinions. So if you know, they can't have it both ways, right. They can't do it and then say they object to it. And briefs? I mean, they shouldn't they shouldn't think that's going to work, although intellectually, I see the point. I mean, a lot of judges do get reversed, right? So I'm not sure they're all pure and perfect, as I know, you have to say publicly. But yeah, there's something to that I suppose there's something to that right, that you're less likely just given the clerks and the kind of the apparatus in the courthouse you're less likely to really miss cite a case perhaps, if you're a judge,

Tim Kowal  23:24
let's just jump back to a brief catch for a moment. I wanted to tell our listeners a little bit about Ross, you You told us about what's under the hood. There's 11,000 Rules programmed into it that the software is looking for and checking your legal writing against and legal writing, you're not going to catch my my ending that sentence in a preposition because that was just extemporaneous and exempt from the rules. But the different kinds of metrics that brief catches looking for our reader engagement, whether the brief is concise and readable, whether it's flowing and cohesive, whether it's crisp and punchy, and whether it's clear and direct. And since I installed the software, Ross, I've been madly running, you know, all of my past briefs through it, to see how I stack up on those. And, and, and most of them are fairly consistent. I think one that I noticed bounces around quite a bit is on flowing and cohesive for me, and you know, on on one brief, I think I hit 100 and on others on down in like the 60s. And and it made me think about something Tocqueville had said about writing and that that writing is an act of discovery. And sometimes, particularly if you're the appellant and you're still kind of feeling your way around the arguments, how do I get from this point to that point, you're just kind of writing and and you might get there but it might not always be a straight line and so that might make me pay on the flowing and cohesive score. So that's where really, you know, if I had endless amounts of time and hours to put into it, I could make that that road a little bit straighter. But I wonder if you can, if you have any tips for our for me and our audience about how you know best ways to make a brief, more flowing and cohesive. Sure, so

Ross Guberman  25:00
just one. One quick note is I think this is novel that the scores are based on on empirical, empirical evidence. In other words, I didn't just make up what I think matters, I actually took a huge universe of briefs and opinions and other legal documents written by superstars. And everything that goes into those five scores is somehow related to whatever I have seen through AI is more, you know, more or less common in that in that lofty group. So that's, that's how the scores are derived. So for for flowing and cohesive, three things, okay, three things. And, you know, you don't want to take the scores too seriously, of course, but these are three things that seem to matter. Again, if you look at the top notch, writers work, so one is having a lot of transitions that have logical value. So in other words, not Furthermore, not additionally, not Moreover, those are just, I'm gonna keep talking, I'm gonna keep writing transition words about one's like, even so or that sad, or from that perspective, or, in fact, anything that shows that you're trying to think through the law or sometimes even the facts. So that's, that's going to, you know, that's going to up the score, because that's something you notice in a lot of the great legal and judicial writers work. So that's the first. So the second, the second is different types of numbering, right. So again, going back to the Furthermore, further, additionally, habit, it's not that you necessarily get a higher lower score if you have first, second, first, second, third. But anything that looks like you're trying to present 234, or five things in parallel form that's easy to follow, and not just stringing them together with furthermore. And then the third is, again, this is all empirical, that's, you know, started in my books, and I notice these things. So it's a sign that you're trying to make your sentences and paragraphs flowing by linking the end of one sentence or paragraph to the beginning of the next. So if you have, you know, if you're talking about a statute, and then the next sentence starts with the administrative agency, that's, you know, subject to the statute, and at the very end of the next sentence, you then finally mentioned, I'm still talking about the statute, that's not going to get as many points as that statute, you know, past five years ago has been applied by this court seven times. Any anything that links to sentences, links to paragraphs is going to up that score. Because again, that's something much more common, and a lot of the best writers work.

Jeff Lewis  27:41
And you say, don't take the scores too seriously. You know, I have a crack associate do take them

Ross Guberman  27:45
seriously, though. Yeah, yeah, I've

Jeff Lewis  27:47
got a crack associate my firm. I read his briefs through there that consistently in the 90s, okay, he's a superstar. What's up maybe as a supervising attorney, or as a law firm? What should we do with those scores? If we're not to take them seriously? What do you recommend? Well, I'm,

Ross Guberman  28:02
I'm saying, you know, it's like the disclaimer, like, don't use this, don't use this jack knife, you know, when you're drunk, because that kind of thing. I mean, of course, I'm gonna say don't take them seriously, of course, people are gonna take them seriously, doesn't matter what I say, a lot of famous people write me to, like, appeal their scores as if they really matter. Which is pretty funny. So that, you know, in an ideal world, the point of the scores would be self improvement, right? So if you you would just be trying overall without overly fixating to get them higher and higher. Another thing that I think people miss is, instead of thinking about the scores and how high they are, maybe try to figure out why you have a high score and try to try to make it something you can remember and do again. Right. So there's a lot lot of people think if you just read great writing, you'll become a great, right. If it were that easy. We'd have a profession of fantastic writers. I mean, they could just read, you know, a Scalia dissent every day and made all right, like, Justice Scalia, Justice Kagan. So what really matters is not reading great writing again, that would make it too easy. It's really understanding the nuts and bolts and being able to replicate them. So there's something there's something to that too, you know, sometimes our profession focuses too much on criticizing and correcting not nearly enough, I'm identifying what's really successful and giving people tools, tools to replicate it.

Tim Kowal  29:21

All right, Ross, I wanted to talk about a little bit about your book point made because you had told us that the that brief catch was really an outgrowth of what you wrote about in your books and talk about in your seminars. So I kind of saw I think maybe in a manner of speaking, we can get under the hood by talking about some of the points in point made where you advise attorneys. One piece of advice I don't know that that this can be translated into something like brief catch, but I love this where you advise attorneys to tap into three key fears that all judges have, and they are fear of misconstruing a doctrine or statute fear of creating new duties, rules or defenses.

Tim Kowal  30:00
and fear of reaching an unfair result or causing harm. And when I read that I thought this, that's that's great to keep in mind. But I wondered where you got that list? And are there more fears that we can tap into?

Ross Guberman  30:12
Yeah, because a lot of people are afraid of a lot of things about the future, I suppose. So one thing for my whole career has been empiricism. And that's, unfortunately, generally lacking in the profession. So in other words, even when I wrote the book, which is a long time ago, thinker came out first edition in 2011. My idea was always who cares what I think doesn't matter what I think you want to look at the top performers as you would in any any healthier profession, you'd look at the top performers and try to figure out what they do. So what I what I noticed in my study of motions and briefs from stars is that in the introduction, although they have the same balancing tests, and the same introduction of the parties, everybody else does, they would they seem to have a way of figuring out what was going to hold the court back from doing what the client wanted. And they would preempt it somewhere in in the introduction by appealing to one of those concerns, right? So they have they have a sixth sense, if you will, there's nothing magical here, they have a sixth sense of what really happens when judges have these cases. And they're able to sort of help kind of predict what's going to be bothersome, and try to put it to rest.

Tim Kowal  31:26
What else do you get from judges about what their thought process in absorbing lawyer briefs and developing their opinions about the case, the kind of things impressed them about the briefs, and in might, you know, might turn the tide, so to speak, in your writing and in, you know, achieve persuasion?

Ross Guberman  31:48
So a couple of things come up a lot. One is early on, in a at least somewhat fair way. juxtaposing the two main parties views without without simply saying that the other party is, you know, insane, or out to lunch or completely wrong. So really presenting what what the whole fight think about is like wrestling? What does it really come down to? What are the parties really arguing over without necessarily treating it as harmless error or as an application of a four part injunctive relief standard? What are they really fighting over, and not trying to hide what your opponent is going to say? Because the judge is going to figure it out anyway. And it's just much more helpful to have it upfront. So it seems like an actual dispute. So that's one. And then another is probably related, because it's so it's a show of confidence. And that is that is admitting admitting that a couple of facts don't go your way. And also admitting when you discuss case law, that no case is truly no important case. At least, if you're talking for a paragraph or more about a case, there's almost a 0% chance that it is perfect for you, right. So that's something that people forget if it takes that long to say that a case is directly on point. It's not directly on point. And that's fine. That's part of the common law system. So it's kind of candor, right? Just candor saying Well, it's true that in that case, you know, the company, maybe it was an LLC and not an LLP. I'm just making something up, but not a big deal. Here's why. So in both the examples I gave you, the attorney as the attorney understands that you project strength, you project strength by showing that you're not you're not afraid of the complexity and the reality that nothing is nothing is perfect, right? It's rare that you have a true slam dunk, whether in the trial courts or on appeal.

Tim Kowal  33:47
Yeah, to that point about admitting facts that don't go your way. I've always wondered about and I think you also have an example in point made about this about kind of, I'll call it sweeping bad facts under the rug using using the leading an adverb, although you say, well, although this happened, you know, or you know, even though this happened, is that does that sound too defensive? Does that sound like whenever you see that that kind of word, you know, does the judge jump up pounce on it and say, Aha, so this is what they're really scared of?

Ross Guberman  34:18
Not not at all right, first of all, the judge is going to know whether you say it or not. Second, you're going to end the sentence on why the although or even though point doesn't really matter, and that's the part people are going to remember but third what a lot of people do have both trial trial briefs and appellate briefs, is actually much more defensive which is you know, my you know, my opponent my opponent is attempting usually it's like valiantly attempting or endeavoring to imply that Smith. Come on, it's just like, relaxed. That's what makes people defensive right? That thing like it's like a conspiracy, but actually, no, the case is perfect or the record is pretty Seeing the client is an angel. That's what makes you defensive. Simply saying, here's something that doesn't go quite the right way, or the client isn't perfect, or the opponent isn't all bad, but it doesn't really matter. And here's why that actually is very close to the same process the courts gonna have to go through right, again, very few cases, truly go 100% In one party's favor.

Tim Kowal  35:24 
I had another question that, that maybe in the same vein, as our discussion about cleaned up, and the subject is about informality in legal writing. And I think there's a general trend that says it's a good thing because it helps make your writing more direct and approachable. There's more engagement. But I wonder if practitioners should take a different view than what they might be getting out of judicial opinion, some judicial opinions Jeff and I have talked about they're quoting, you're making pop culture references, and sometimes they have tweet worthy lines in them. And I wonder if you if you would advise lawyers to go ahead and mimic that, or more maybe stay away from some of those kinds of particularly, right. I

Ross Guberman  36:09
mean, you had, you had an interesting, and that, to me surprising controversy out there in the ninth circuit with Judge Lee, who had a couple of Hamilton references and a reference to the bachelor and I think a Matthew McConaughy line, in an opinion, I think it was about class actions. And you would have thought the world had come to an end if you listened to America's law professors. So it's actually a really complicated. What does informality mean? What do people want? Where do you draw the line? I don't know if it really is just about terminology. But I would say even if I said to you, hey, so and so as informal writing you and I might not be thinking of the same things, right? That any two lawyers, any two judges, you might not even know if that's a compliment, or an insult to say someone has informal writing. So again, I put these things into two camps. And it goes back to what we talked about the beginning, about the kinds of things that are on Twitter, like a judge made a joke about the bachelor, right? That's like a one off attempt to be informal and engaging. And it works. Sometimes it doesn't work. Other times, frankly, there's a lot of hypocrisy and a lot of ideological bias in both directions. People tend to like those things when they like to judge or like the opinion, and think that they're absolutely beyond the pale when they don't. So that's one kind of informality. I think that's what you're talking about. And it's judges fault, right? You can't say that, but I can't. I don't have any sympathy for any federal judge in America, if lawyers start doing the same. And briefs, right. You can't have it both ways. You can't have all the little jokes and puns and also of all the backstabbing and the concurrences and dissents and then be appalled that lawyers do the same. The other type of informality actually takes talent, right? It takes actual skill. So I'll just use Justice Kagan as an example. So she has what one might call an informal prose style, but it's not really so much of the sometimes she has that sometimes she has something about Dr. Seuss, you know, something a little bit corny, and populist, mainly, it's just a choice of words and sentence structure just closer to conversational writing and speech. That's the kind of informality almost everybody

Tim Kowal  38:20
appreciates. Got it. And are there still some judges who prefer a more formal style and by formal, I'm talking about the second type that you talked about? Not so conversational, they maybe some judges would prefer something closer to the old traditional stodgy style of legal writing. Trend is the modern trend toward conversational style, pretty much overwhelming. Well,

Ross Guberman  38:42
one thing I noticed during lock downs in COVID, especially since judges whether they wanted to or not, almost uniformly ended up reading all the briefs on iPads and devices, not in hardcopy. So one thing I've noticed is now now it's almost universal, that people want shorter, more modern writing, right, a little bit closer to what you're calling this informal style, just because it's just overwhelmed. And it's just much easier to process when you're reading things on on devices. So there are things people do that are probably provocative, like having contractions or slang. I'm not sure for most lawyers, those are worth the troubles and some judges really hate those kinds of things. So you still want to exercise some discretion. So but in general, yes, I'd say things have changed in the courts and then brace themselves closer closer to a more modern style doesn't mean people aren't producing it, but it does mean that's what readers want.

Tim Kowal  39:42 
You offered another good point in point made about letting a way to let the air out of old cases that might be bad for you by and for emphasizing their age. And I've wondered if this again this this this distinction is always in my mind between things. I certainly see core Let's do this. But I always worry that if I try to do it and I say, Oh, well don't follow that case, it's really old, the court might have a different mind and say, Oh, it's it's not old. It's venerable. Which way the That's right. All on that,

Ross Guberman  40:12
like a nice wine, right, instead of just something in the garage sale? Yeah, well, you know, it's always, I'm always a little perplexed. People are often when I pray something people on Twitter jumped to criticize it. And I think they often miss what the actual lawyer was facing. Right. So in other words, if you had a great new case, you wouldn't have this problem. So when when lawyers do this, effectively, they don't really have a choice. There is a very old case, and it goes against them. So the question is not well, why are they making a big deal about it being old? The question is, what's the best way to get out of the out of the mess? So there are there's probably a way to do it. That backfires, right? I mean, as you said, I mean, especially in a common law system, old is sometimes good, not bad. But there are things you can emphasize for you know, for a case has been around for two years, it's only appeared in 10 opinions, I mean, that can be that kind of thing can be compelling. You can you can without saying hey, overturn it, you can talk about, you know, problems and the reasoning or how it might not really apply. So there are ways to ways to handle it. When not if the when you don't have a choice, right? Again, in a perfect world, all the cases would go our way. But that that rule doesn't really exist. Right? So the question is, when these challenges arise, what what is the most effective way to handle

Tim Kowal  41:32
handle them? Right? Right. Okay. And then, you know, you offer in point and point made, I want to offer this for listeners that there's a there's a, there's a great trick in Microsoft Word. And I think I assume you put this in before the advent of brief catch. But if you don't have brief catch, and you just wanted to check your, your, your writing and how the Microsoft algorithms rated, you can go to File and look for proofing. And there you'll find show readability statistics. And it will give you your average words per sentence, your reading ease score, and the percentage of your sentences that are passive. And that'll just get kind of give you a taste of, you know, I'm not sure how many rules are in there, but nowhere near the 11,000 that are under the hood and brief catch, but that might kind of wet your beak a little bit to to see how algorithms might might be pointing in your legal writing. And go ahead, I asked you earlier, you know whether good writing is still important these days. And now that you've shared some of your insight about what makes for great legal writing, I wanted to ask you if you had a philosophy about writing in general, and I wanted to while you're thinking about I'll share one of my favorite quotes about writing, and it's from Samuel Johnson, who said, it's strange that there should be so little reading in the world and so much writing. People in general do not willingly read if they can have anything else to amuse them. There must be an external impulse emulation or vanity or avarice. The progress which the understanding makes through a book has more pain than pleasure in it. Language is scanty and inadequate to express the nice gradations and mixtures of our feelings. No man reads a book of science from pure inclination. And I would add to that that probably no one is reading a legal brief from pure inclination either. So so my question from that is should attorneys try to make legal briefs more than they are? Should an attorney strive to make their briefs more than just useful roadmaps? Which is something useful for the court? Or can they aspire to something like art and a legal brief or should they leave that to the weekends?

Ross Guberman  43:38
Yeah, well, yeah, Chief Justice Roberts, I would think is not super easy to impress his son more than once that he's actually he's has enjoyed reading briefs and actually want to even wanted to learn more. I mean, I think there are people who managed to do that. I mean, Samuel Johnson lived in an austere era. There are fantastic science writers writing books and magazines in our day that I mean, I'm not a science person, but I read those books for pleasure. So yeah, I wouldn't I wouldn't give up i wouldn't set the bar too low. I you know, I don't think you're gonna have a John Grisham motion eliminate too easily bite if you think about given that people have a task at hand, they have to decide a case they have to decide a motion and you're trying to make that task as pleasant as possible. There's a lot you can do doesn't require any great creativity, there are a lot of little things you can do to make it more enjoyable. So if you go back to the science example, John, Samuel Johnson says it's impossible. Maybe it was then I had to read some of those books in graduate school back from back then science books, but nowadays, you'll see the same kind of thing, right? People give you good examples, analogies, they'll have a lot of images of the planets and the moon. You know, though, they'll relate things to other things that you know, or that you've heard others talk about scientific controversies and give you different views. It's not that different than emotion or briefer opinion, right? You try to be you try to be as helpful as you can and try to make people at least feel like they're understanding things as they go along. And that that's enough to make a lot of readers really happy and grateful, just that they understand whatever it is, you're asking them to understand. That's enough, that's enough to make them feel pretty darn good.

Tim Kowal  45:16
All right. So we've covered your product, brief catch, and your book point made, other than then picking up these products of yours, what is something that you'd recommend to our listeners that would help them improve their writing?

Ross Guberman  45:28
I'd say pick, pick someone pick a model. So pick some sort of writer and you know, in the perfect judge or lawyer, and commit to just looking at one paragraph every couple of days, and trying to deselect it, trying to think about different ways to word it, try to figure out why the choices the writer made, were made, and why and how, and and do that regularly, just a paragraph or a few sentences. And you'll actually, you'll actually see that things can transform pretty quickly, just picking small bits of text on a regular basis and trying to really understand them the way you would something that was more of a hobby, right. Or you have to you have to build something for your family. You're trying to understand the instructions. That's what I'd recommend.

Tim Kowal  46:15
Yeah. Well, Ross Guberman. Thank you for joining us today that I think that's going to wrap up our episode for today, Jeff,

Jeff Lewis  46:21
right. Yeah, thank you for being so generous with your time and insight Ross and for our audience. If you have suggestions for future episodes, please email us at info at cow podcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  46:37 
See you next time.

Announcer  46:39
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 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.

CEB has published my article on Spahn v. Richards (2021) 72 Cal.App.5th 208, which awarded a staggering $239,000 in costs-of-proof attorney fees for refusing to admit a request for admission. You can read the article here.

Spahn held the RFA here went to the ultimate legal issue in the case. Not a concrete fact, but the ultimate fact to be deduced from all the evidence.

The costs-of-proof fees encompass substantially all of the case. And it is a lower standard than for Code of Civil Procedure section 128.5 or 128.7 sanctions, and certainly lower than for malicious prosecution. This is something to consider implementing into your case strategy.

My original post on Spahn 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.

You have heard courts say that a timely notice of appeal is a prerequisite. As in, non-negotiable. As in, the court doesn’t even have jurisdiction to consider your appeal, so don’t even ask, ok? (E.g., Silverbrand v. Cty. of Los Angeles (2009) 46 Cal.4th 106, 113 [“[T]he filing of a timely notice of appeal is a jurisdictional prerequisite.”].)

But do the courts really mean it when they say that a timely notice of appeal is a jurisdictional prerequisite? This week, two cases give reason for doubt.

A belated appeal from a judgment may be resurrected by appealing from a subsequent cost award in an amended judgment:

In Pelter v. 1-800-Get-Thin, Inc. (D2d1 May 11, 2022 no. B307771) 2022 WL 1485533 (nonpub. opn.), the court considered an appeal filed a full 10 months after the judgment. The court did not mention whether a notice of entry or file-stamped copy of the judgment was served to trigger the 60-day deadline. But certainly the deadline was no more than 180 days. So at a minimum, this appeal was filed more than four months late.

The respondent filed a motion to dismiss. The respondent observed that the appellant had taken her appeal 57 days after the notice of entry of the amended judgment (issued eight months after the original judgment).

So ok, on the surface it seemed like the appeal was timely. But the amended judgment merely added costs — the underlying judgment was identical. And obviously you cannot resurrect a jurisdictional timeline merely because a judgment is amended without substantial change. Besides, on appeal the appellant only challenged the underlying judgment — she was not even attacking the cost award, which was the only thing about the amended judgment that was appealable.

But the court disagreed with this argument. And in rather strident terms: “No principle or authority supports the argument—Pelter's notice of appeal specifically references only the later, amended judgment.” That is the entirety of the analysis on the issue. (The court distinguished some other case on a different issue about saving premature appeals.)

The court went on to affirm the judgment.

Comment: Although the court says “No principle or authority supports the argument,” the Second District is mistaken. The court here is parting ways from the rule in the Fourth District (see my post on the Tiger Loans case here), Fifth District, and even the Second District (and probably others). According to that precedent and principle, the respondent was right: you cannot appeal a ten-month-old judgment by timely appealing a later amendment that merely awards costs.

In fact, another recent case, Pasternak v. Villalon (D4d3 May 12, 2022 no. G060780) (nonpub. opn.), applied this very principle. [Disclaimer: I consulted for the respondent on this case.] The Pasternak court included a lengthy analysis covering various authorities standing for the principle that an amended judgment that does not substantially modify the underlying judgment does not resurrect the time to appeal:

“Villalon’s notice of appeal from the amended judgment was filed on October 15, 2021, which was within 60 days of service of notice of entry of the Amended Judgment but more than 60 days after service of the notice of entry of the original judgment. The notice of appeal from the amended judgment was therefore untimely as to the original judgment.”

This holding follows an unbroken chain of precedents: "It is well settled, however, that "[w]here the judgment is modified merely to add costs, attorney fees and interest, the original judgment is not substantially changed and the time to appeal it is therefore not affected." [Citations.] "When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order." [Citation.] The June 23, 2006 order on attorney fees and costs did not amend the March 6, 2006 judgment in any substantive way. Rather, the judgment was merely modified to add the fees and costs awards. Accordingly, we lack jurisdiction to consider any aspect of the summary judgment ruling." (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 [Fourth District].)

But there appears to be no Supreme Court authority directly on point. So the Second District, it seems, has issued the first minority report on this issue.

An appeal filed after the 60-day deadline after a notice of entry is timely if the notice of entry does not attach the judgment:

In Hurd v. Hurd (D2d2 Feb. 24, 2022 no. B309280) (nonpub. opn.) the appellant filed his notice of appeal more than 60 days after the notice of entry of the judgment. [Disclaimer: I was the respondent’s attorney on this case.] Respondent filed a motion to dismiss the appeal based on the untimeliness.

The appellant opposed, arguing the notice of entry did not attach the judgment, so it was invalid. In rebuttal, the respondent noted that rule 8.104 of the Rules of Court do not require that a notice of entry attach the judgment, and no other authority requires it, either. (In fact, another unpublished Second District case rejected the appellant’s argument that a notice of entry is invalid that does not attach the judgment, resulting in dismissal of the untimely appeal. (Cast v. Kelly (D2d3 Jun. 24, 2021) no. B299797 (nonpub. opn.).)

But the Court of Appeal summarily denied the motion to dismiss and reversed the judgment The court did not address the jurisdictional issue. The court also summarily denied a motion for rehearing. And the Supreme Court summarily denied a petition for review.

The Upshot: Before these recent cases, I would have uniformly advised against taking an untimely appeal. Filing an untimely appeal and asserting off-the-wall theories that the appeal was timely filed after an amended judgment for costs, or that the notice of entry was invalid for not including attachments, might have been frivolous and subject to sanctions. Now, I am not so sure. These two recent cases rejected motions to dismiss untimely appeals — and rejected them rather dismissively at that. And other courts— including the Supreme Court— have found ways to hear untimely appeals in other contexts (see here and here). And despite the defect is jurisdictional, the Supreme Court declined the opportunity to direct the Court of Appeal to provide a written rationale for allowing the untimely appeal and reversing a judgment.

Arguments supporting untimely appeals, then, may be “on the wall.” Watch this space.

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.

We asked Victoria Fuller, a certified appellate specialist focusing on family law, about getting the appellate court’s attention in family law writ petitions. Showing extraordinary harm in money cases is a tough sell, but it should work in family cases, right?

Victoria explains that it is just just very hard, even when there is genuine irreparable harm like in move-away orders.

In another moment during our discussion, Victoria told us that even family law justices, upon being elevated to an appellate justiceship, have commented they had no idea just how vast is a family law judge’s discretion.

Watch the clip here.

This is a clip from episode 27 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.

The mother appealing the parentage order in R.M. v. J.J. (D3 Apr. 29, 2022 no. C090018) 2022 WL 1301801 (nonpub. opn.) had a solid issue on appeal: her ex-husband had made frequent angry outbursts and hostile gesticulations throughout the day-long hearing. The mother thought this display of her ex-husband’s rather obvious need of anger management confirmed that giving him custody of a young child was not in the child’s best interests. But the trial court refused to consider the ex-husband’s outbursts. This admitted refusal to consider these angry outbursts, mother argued, was an abuse of discretion.

But the Court of Appeal held: Outbursts? What outbursts? We see no record of any outbursts. Order affirmed.

You see, when you appeal, you have to show the Court of Appeal what happened during the trial court proceedings. The best way to do that is to have a court reporter transcribe every word of the proceedings. But that is expensive. Acknowledging this expense, the rules give financially-constrained litigants another way to provide an appellate record. This alternative is called a settled statement.

But in this case, the settled statement became a heavily-litigated affair, resulting in a version expurgated of the matters relevant to the mother’s appeal. In short, the worst of both worlds.

The Procedure for a Settled Statement:

“A settled statement is a summary of the superior court proceedings approved by the superior court.” (Rule 8.137(a).)

An appellant's proposed statement must “[c]ontain a statement of the points the appellant is raising on appeal” and “[c]ontain a condensed narrative of the oral proceedings.” (Rule 8.137(d)(1) & (2).) The latter must include “a concise factual summary of the evidence and the testimony of each witness relevant to the points that the appellant states ... are being raised on appeal.” (Rule 8.137(d)(2)(A).) The respondent may file proposed amendments in response to appellant's proposed statement. (Rule 8.137(e)(1).) As apparently occurred here, the trial court may “[m]ake any corrections or modifications to the statement necessary to ensure that it is an accurate summary of the evidence and the testimony of each witness relevant to the points that the appellant states ... are being raised on appeal.” (Rule 8.137(f)(3)(B)(i).) “ ‘As long as the trial judge does not act in an arbitrary fashion he has full and complete power over such a record.’ ” (Marks v. Superior Court (2002) 27 Cal.4th 176, 195.) “Nevertheless, ‘under the rules it is the duty of the trial court to settle a proposed statement, not to make one.’ ” (Ibid.)

The mother tried to use a settled statement here. The mother filed a motion for a settled statement, explaining the issues on appeal, and including a proposed narrative of the oral proceedings that included the outbursts.

At the hearing, the trial court indicated it did not think the outbursts were relevant. The mother explained her position that, yes, the outbursts were indeed relevant, and that this was the very issue she was asking the Court of Appeal to decide.

The trial court removed the outbursts from the settled statement. The mother objected, attaching a declaration reiterating the outbursts that she wanted included in the settled statement. But to no avail.

The Court of Appeal Finds No Error in the Trial Court’s Omitting the Outbursts from the Record:

First, the mother filed a writ petition asking the Court of Appeal to direct the trial court to include the outbursts in the settled statement. The mother’s argument involved two basic points of appellate procedure:

First, the mother argued that a trial court does not get to decide which issues are considered by the court of appeal. (Rhue v. Superior Court (2017) 17 Cal.App.5th 892, 896 (“Rhue”).)

Second, the mother argued the trial court may not use the power of the record-setting process to conform the record to support its own ruling. (Stevens v. Superior Court In and For City and County of San Francisco (1958) 160 Cal.App.2d 264, 269 (“Stevens”).

Following from these two procedural points, the mother reasoned the trial court may not expurgate matters from a settled statement simply because the trial court disagrees that the matters are relevant to the appeal, because what issues may be raised on appeal are simply beyond the purview of the trial court.

But the Court of Appeal summarily denied that petition.

On appeal, the mother raised the same argument. She argued the trial court abused its discretion in omitting the outbursts from the record. The mother argued in her brief that matters not strictly testimony, like gestures and tone of voice, are properly included in a settled statement. (In re Horton (1991) 54 Cal.3d 82, 89.) A parent’s trial court behavior is relevant to child custody. (A.G. v. C.S. (2016) 246 Cal.App.4th 1269, 1287.) And that it is an abuse of discretion to prevent a party from submitting the record required to argue an appellate point. (Stevens, supra, 160 Cal.App.2d at p. 269.)

But the Court of Appeal rejected these arguments. The court reasoned: “None of the authorities cited by Mother indicate outbursts or admonitions relating to outbursts must appear in a settled statement.” (Emphasis added.)

Comment: But mother did not argue that the cases directly held that outbursts “must” be included in a settled statement. Mother’s argument was that the outbursts were relevant to the issues on appeal, and that the trial court may not arbitrarily expurgate matters relevant to the appeal. To permit otherwise would be to allow the trial court, by such indirect means, to cut off a litigant’s right to appeal. This is improper. (See MacDonald v. Superior Court (1977) 75 Cal.App.3d 692, 696 [order barring appellant from prosecuting appeal as postjudgment discovery sanction held improper; “[w]e are not aware of any legal basis for an order of the superior court shutting off an appeal authorized by the state Constitution, the applicable appeal statutes, and the California Rules of Court.”]; In re Marriage of Reese & Guy (1999) 73 Cal.App.4th 1214, 1222, holding modified by Laborde v. Aronson (2001) 92 Cal.App.4th 459 [“[W]e consider it highly inappropriate for a trial court to attempt to dissuade a litigant from exercising his or her right to appeal.”].)

The Court of Appeal went on to state that the mother “does not cite her proposed condensed narrative of oral proceedings such that we can discern what outbursts or admonitions, if any, she proposed that were refused by the trial court. Rather, to the extent Mother suggests what outbursts she had in mind, she relies on the declaration she submitted in support of her objections to the corrected condensed narrative of the oral proceedings and not any actual proposals.” As to the mother’s objections to the settled statement, the Court of Appeal stated that she had included “editorial comment and facts not presented” at the hearing. Thus, the trial court did not abuse its discretion in overruling these objections.

Comment: In reviewing the mother’s opening brief, it appears that she did include her proposed condensed narrative in the record. (1AA 143 [Proposed Settled Statement]; 1AA 175-2AA 311 [Second Amended Proposed Condensed Narrative]; 2AA 284-413 [Corrected Condensed Narrative].) She also included her objections and declaration to the settled statement. (2AA 414-487.) The extensive drafting and litigation over the settled statement — including hiring a certified appellate specialist — suggests the mother likely incurred significantly more expense concerning the settled statement than had she just hired a court reporter. And yet the Court of Appeal rejected the mother’s claim of error regarding the settled statement because, in effect, the mother’s brief should have cited to the outbursts as reflected in a different part of her appellate appendix.

The Upshot: Do not count on a settled statement. Yes, it is in the rules. But this is not the first time I have heard that a trial judge refused to provide a settled statement, and that a Court of Appeal refused to do anything about it. Do not be misled into thinking there is a way to furnish an appellate record other than a reporter's transcript. Yes, this sets up an access-to-justice problem. The Legislature needs to fund court reporters, or re-institute its audio-recording program (which was nixed, by the way, at the behest of the reporters’ lobby, as a presiding justice recently confirmed for me.)

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.

Certified appellate specialist and mediator John Derrick talks to Jeff and Tim about mediating cases on appeal. John explains that some appellate courts have mediation programs because of a mission to promote settlement. But the courts’ job is to decide cases. John discusses the conflict between these two roles, including a story about an appellate justice who regretted volunteering he wished the case would settle, but then unsubmitting the case for a post-oral-argument mediation. (This case still didn’t settle.)

Some other items discussed:

John Derrick’s biography.

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

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

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Dan Lawton, “A Lion in Winter: Senior Circuit Judge J. Clifford Wallace at 92” (Cal. Litig. 2021, Volume 34, Number 3).

Transcript:

John Derrick  0:03
Contrast and appellate courts job is to weave the tapestry of the common law.

Announcer  0:09 
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  0:23
So welcome, everyone. I am Jeff

Tim Kowal  0:24
Lewis. And I'm Tim Koh, all California Department of podcasting license flagged for review. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both Jeff and I are appellate specialists, but we split our practices pretty evenly between trial courts and appellate courts. And on this podcast, we try to offer some nitty gritty perspective on preparing your case for appeal,

Jeff Lewis  0:49
and welcome to episode 32 of the podcast. In this

Tim Kowal  0:53
episode, we're gonna take a look at mediation and settlement during an appeal. And I don't know about you, Jeff, but it to me, it seems like appeal should be an ideal time to bring up settlement because you brought in an appellate specialist and they tend to be objective and the whole process tends to slow things down. It seems like a great time to talk about settlement. But just in my experience, you know, parties tend to get their positions kind of entrenched, and it hasn't been as accessible as maybe I otherwise would have thought it would be but maybe that's just my experience. So for more expert look at the process of mediating and settling on appeal, we turn to the expert John Derrick John's a certified appellate specialist who has litigated about 175 appeals and writs including about 25 that have resulted in published decisions. John primarily represents private individuals and privately owned businesses. John received his law degree from the University of California at Berkeley, and he received his undergraduate degree from Oxford graduating with first class honors, John was the 2014 and 2015, Chair of the California State bar's Standing Committee on appellate court, and from 2011 to 2013. He served as editor in chief of California litigation, the Journal of the litigation section of the State Bar. In addition, John is an appointed Member of the Second District Court of Appeals mediation panel, and he serves as a settlement master for the Santa Barbara Superior Court. John is also a frequent lecturer on appellate topics. And just a bit of interesting trivia about John's background before he entered the law, John founded, operated and sold two specialized information publishing businesses in the US and the UK, one of which was acquired by one of the world's largest publishers, John has also served as a special adviser to the energy secretary in the UK cabinet. So we are honored to have you with us today. John, thanks for being here. Well, thank you for having me. So now that I've covered all of the real braggy stuff, but you're too modest to say yourself, so tell us a little something more about what the actual John Derrick is and and what your practice is like?

John Derrick  2:54
Well, I'm like many appellate specialists, I'm a solo practitioner, it's just a way of life that I that I enjoy the I like, I like the flexibility that it gives me both in terms of where I do the work, what work I choose to do, and so forth. I do mainly civil cases, but about a third of my workflow in a typical year is criminal, although probably less than a third of my income, because criminal work is always terribly well paid, because the criminal cases I do are appointed on on the on the cap panel in the second district and the Adi won in the fourth district.

Tim Kowal  3:30
And why do you do that? If it's if it's not paid? Well, do you do it? Because you enjoy it? You do it because it's a public service, little of both public

John Derrick  3:37
service makes it probably sound a little too saintly, I do enjoy the cases. I think, on the whole my criminal clients, sometimes some of the easiest to deal with, actually, a lot of them had to have mental health issues. Because sadly, you know, that's just the way of the world I mean, a lot of the cases are, you know, people do kind of things which are just no sane person would do, but where they can easy to deal with. It's that they have fairly realistic expectations, often and also very appreciative of one services. Whereas sometimes, you know, you're over inflated ego who's running some LLC or whatever, might kind of think that they can buy outcomes, which obviously, you and I know litigants can't do so so I enjoy that I enjoy the criminal cases. You know, the intellectually quite challenging sometimes. I mean, sentencing is kind of like dealing with the with the tax code. It's arcane.

Jeff Lewis  4:35
Yeah, John, I don't think Tim has ever gotten a handwritten note from jail. I did a lot of CAP appointed work from the beginning of my appellate career. And yeah, representing fortune 200 clients, you save $10 million. You might get a thank you email. But when you get a handwritten note from jail, saying, God bless you, Mr. Lewis, and you're doing the Lord's work. It's gratifying.

John Derrick  4:55
It is it is. And they're always handwritten, and they're usually written in pencil, and because they I think they actually charge prisoners by the sheet of paper there, they reprogram the pencil writing onto every square millimeter of the page on both sides. But as Jeff says that those notes are good and even better are the ones which aren't all that common, but in the nature of the work, but you know, after you get them out of jail, if you do get them out or out of prison, those ones are especially heartening. I remember one client too, she shouldn't have been, I can't remember what it was. It's just some big mistake. And early in December one year, I actually got on the phone with the AGs office down in San Diego, and said, We've got to fix this. And amazingly, because they don't normally do this sort of thing. They agreed to a stipulated reversal. And we actually got her out just in time to be at home with her kids for Christmas. So I mean, you know, where do you get that sort of feeling? Civil Practice?

Tim Kowal  5:59
Yeah, well, what judging by your accent and by some of the points on your on your resume, you're not originally from around these parts? What, what brought you to the US originally? And what brought you to the law? And and then what brought you around to appeals and then mediating appeals? And then get Okay, the back of the dust jacket version of it, if

John Derrick  6:17
you will? Yeah. What brought me to the US originally was my former work. As you mentioned earlier, I had a little niche publishing business. And we set up an offshoot of that out on in the US out in Westchester County near New York, I started started spending time there. And then when we sold that business, boring with all the detail, I ended up taking back that little American bits of it, and running that into slightly changing, whatever. So it's a business is what started me here. And then I guess marriage is what kept me here, after I sold the American business when I was, I guess, in my late 30s, or run about 40, or whatever. I found myself without a day job. And so I decided to do what I actually always intended to do in England, but never did do, which was to become a lawyer. So you're

Tim Kowal  7:12
pushing 40 at the time you?

John Derrick  7:14
Yeah, I mean, I have been practicing law for 20 years now. So yeah, at the time I took the bar exam, I was kind of I don't know. I mean, I'm 65. Now, so you can do the math. And why did I do that? Well, in some ways, if you compare what I do now, with what I used to do in the past, there are some similar kind of intellectual Gears of work in as much as previously my job used to be to take very arcane into not intrinsically fascinating information, and to present it in a manner which made it very digestible, a compelling read, generally interesting and timesaving. And although my role in those days was more analytical rather than persuasive, although I did do some persuasive writing as well, particularly in my year year working in politics, but but but in some ways, it's actually a lot of those things I used to do translate well into appellate law, because here we take a, a open mountain of information in a record, some of which isn't all that interesting, you know, at face value, and we try and condense it down into a brief which is efficient, reader friendly, a compelling read and with, you know, as an advocate, but also persuasive. So in some ways, there's a third bit in common with what I used to do and what I spend my days doing now, as for the mediation there, I've always, I suppose, in my life been a bit of a bit of a mediator in the sense of it's in my nature to mediation in a way in all sorts of contexts. I mean, not just professionally and from your,

Tim Kowal  8:54
from your experience in publishing, you got to learn that your readers time is precious. Yeah, definitely. We definitely try to remember as attorneys, and sometimes we feel entitled to our judges time, but they may have to read it, but they don't have to like it.

John Derrick  9:07
Yes, absolutely. Totally.

Tim Kowal  9:10
Well, tell us about just another one last question, by way of background, tell us about one case that you had that should have settled but didn't

John Derrick  9:19
Gosh, one case that I had as a mediator or as a lawyer, or either either.

Well,

there's one that comes to mind, which I was going to actually talk about possibly later, if we get on to the topic of whether courts should be in the business of encouraging mediation, appellate court setters that will look back around to but to give you a heads up as to what that case is, it was one about 12 years ago, it was an employment case, a very charged one where an African American principal sued an Islamic school that had hired her for wrongful termination and various other forms of Employment wrong. And it was it was a case. I think that should have settled. But we can talk more about what the court thought of it a bit later if we get to that topic. All right,

Tim Kowal  10:09
yeah, I think we will get to that topic. So let's, let's get right into talking about mediating and settling cases during an appeal. So our attorney listeners know how to settle a case and the importance of trying to settle cases. And but what's the big thing that attorneys ought to know about settling cases on appeal that is maybe a little bit different from settling them at the trial level?

John Derrick  10:30
Well, one of the thing is that mediations on appeal are much less common. I would say that most cases in the trial courts go through either a mediation or that were the minimum of a settlement conference in some portion while they're being litigated. Whereas I would say that a relatively small number of appeals are mediated. And what's more, there is no such thing as a mandatory settlement conference in any of the Courts of Appeal. So if you want to do it, you have to take the initiative yourself. So that's one difference. Another difference is,

Tim Kowal  11:04
do you think sorry to interject there, but I wanted to ask you about mandatory settlement conference, do you think there ought to be mandatory settlement during appeal?

John Derrick  11:12
No, I don't really think so. Because I think it would be not a good use of people's time, because some cases are simply not capable of being settled at that point. I mean, the options are to binary and there's no meaningful middle, of course,

Tim Kowal  11:29
the courts were pushing harder at the appellate level, you still think that settlements at the appellate level are going to be less common than at the trial level?

John Derrick  11:37 
Yes, I think they probably are. And it because because this goes into the second difference, which is that there's a fundamental power shift, for obvious reasons. Most cases that go on appeal, the case is over in the trial courts. Now I know, there are exceptions to that with certain types of interlocutory appeal. But for the most part, you know, snap appeals being a good example. But for the most part, you've got somebody who's got a judgment, and you've got somebody who, you know, has got a judgment against them. And that, and often the parties haven't always got realistic expectations. Sometimes the party that lost in the trial court doesn't quite realize how big a mountain they have to climb and maybe impossible a mountain, they would have to climb. Likewise, sometimes the successful party in the trial court doesn't realize that some trial court outcomes, especially though, where the case was struck down in its infancy, as with a dimmer, that you can actually have fairly fragile victories. So you've got expectations that on both sides of the case, which don't always lend themselves to settlement, and that can make it a challenge to settle them. And, you know, it takes for example, quite a bit of sort of imagine you're, I don't know, an insurance defense lawyer, and you've just sort of seen off some plaintiff who wanted a, you know, a million dollars in damages, or whatever, and the plaintiff has got absolutely nothing. You know, a lot of defense lawyers are going to be wary about going to the to their carrier or their client and say, Look, we just won this case, would you mind kind of writing out a check for 100,000? I mean, you know, people often say, why would I want to do that?

Tim Kowal  13:14
Right, right. And to your point about the power shift that happens, usually right at the time, right? Before an appeal starts, ie the judgment, you say, you know, one side sometimes feels invincible, and the other, the other side might feel completely demoralized. But for that reason, how important do you think it is? If you're, if you're representing the appellant, let's say the losing defendant on appeal, how important is it to get a stay of enforcement of judgment, maybe even before initiating any kind of settlement dialogue?

John Derrick  13:44
Well, I mean, people might want stays for all sorts of reasons. I'm not aware of a case that I can recall where people kind of specifically sought out a stay because they wanted to kind of keep the status quo kind of in place because they wanted to mediate, but I mean, often though, you know, there are very good reasons why, why often you want to stay some stays are fairly easy to obtain a few are automatic, some require putting up a lot of money, but it depends on the type of judgment, and also depends on the timing of the appellate mediation, and most are by no means all appellate mediations, in my experience, take place relatively early on in the process when the judgment is still fairly fresh. And when and before briefing has taken it has taken place. And there are pros and cons of the timing, but uh, but certainly, I would say that it can make things easier to settle a case if kind of there aren't kind of while you're trying to mediate the case, kind of I don't know, bailiffs, you know, actively removing furniture from somebody's house to anyone just collection of judgment,

Tim Kowal  14:50
right or just sweeping bank accounts. You might feel that you have no if you're the if you're the prevailing plaintiff with the money judgment, you might feel that you have no incentive to settle I can just start wiping bank accounts and get some easy cash that way?

John Derrick  15:02
Well, that's That's right. I personally was an appellate lawyer when I'm representing a respondents I frankly love it when if the if the appellant bonds and appeal because it means I mean if one wins collection is easy and you don't have to go through the kind of nasty stuff about collecting

Tim Kowal  15:21
and you guys love wondering about insurance you're gonna collect

John Derrick  15:23
so so bonded appeals I mean far from being annoying to me, I regard as the best you've ever

Tim Kowal  15:30
seen a personal surety bond, you know, one of those creatures where the defendant appellant just finds a couple of people who will vouch for him and say, Yeah, I'm good for him.

John Derrick  15:40
Yeah, I have to say, I wonder who actually signs those? And also, I wouldn't be I've never actually have you. Have you ever come across a case where that's actually happened? Because I haven't. Yep. Okay. I haven't heard. But how good how good is the surety because even if somebody is good for the money, unless they actually putting up the money, you still then have to go after them and collect.

Jeff Lewis  16:04
Right. Essentially, they become code judgment. Debtors. Yeah, exactly. It's like the worst of both worlds. It gives the benefit of a bond to the appellant but doesn't give the surety of collection to the respondents.

John Derrick  16:20
Worlds. Yeah, yeah, exactly. I didn't get too involved hands on and arranging bones, I normally try and have, you know, the trial lawyer do that. I try not have anything to do whatsoever with the collection and enforcement of judgments.

Tim Kowal  16:35
Yeah, yeah, that that can be a taxing part of the work. If you start started getting involved in judgment collection and defense, one of the other John, I wanted to ask you about one of the practices that I employ, when I am looking to when I'm representing appellant defendant who has let's say, a defendant who has a money judgment against against it, I want to try to start rebuilding some leverage. So that's why I asked you about trying to get a stay of enforcement, because then that kind of takes a little bit of a wind out of the sails of the the prevailing plaintiff that they're not going to see any money for a couple of years while the appeal shakes out. Another thing I like to do is, is maybe file a new trial motion or, or a motion for J annovi. Even if I don't need to, to in order to preserve issues, I sometimes like to file them just to give the respondent a preview of some of the holes, they have some of the vulnerabilities in their judgment to let them know a you're not going to see any money for a couple of years because we've stayed the enforcement of judgment. And B, you got to worry about some real problems on appeal, you might come out without the judgment that you think you have. Now, what do you think about that strategy?

John Derrick  17:40
Well, I also like post trial motions. And when I'm representing appellants, I think you make an interesting point there about the show of force, of course, it can go two ways. If you're if it turns out that your post trial motion isn't all that strong, it can actually be could be you can send a signal that actually your appeal won't be that strong. But one of the reasons the two, the two main reasons why I always kind of liked it, if there are post trial motions, and when I'm a lawyer, at least other than the points you've just made, are that it fleshes out responses from the other side. So when you're working on an appellants opening brief, you might have some indication of what some of the responses might be that you can try and preempt. And also, if you'd like a post trial motion is like a potting, you know, memorandum from the trial lawyer to the appellate lawyer about, you know, this is my take on the case. And obviously coming in, you're going to apply your own judgment as to what the issues are and how they should be argued. But I find it's quite useful really to have the the the the Trial Lawyer Go through the exercise of preparing such motion, and it can also be an opportunity to flesh out the record a

Tim Kowal  18:51
bit. I agree, I love I love the post trial motions for that reason written by the trial attorney, let me offer this though, if if, as the appellate attorney, I'm coming in, and I might want to take the arguments a little bit a different way on appeal, I might want to have some input in those post trial motions so that we kind of start the pivot, because I don't want the last shot in the trial court to be, you know, telling the story of the case a completely different way than I than I intend to tell it on appeal.

John Derrick  19:17
Yeah, I agree. I agree with that. I mean, I don't tend to get very hands on with post trial motions in the sense of drafting anything for a whole bunch of reasons. But But But But I agree that it can be useful to discuss the issues if you're really involved in the case of that stage.

Tim Kowal  19:33
Now, a few moments ago, you mentioned that appellate courts have their own mediation programs. I wondered in your in your experience dealing with those mediation programs, what's your what's your take on them? How successful are they can they be improved? Should they be expanded? Because only a couple of courts have them? Do you think more ought to have them?

John Derrick  19:51
Yes, they started up in the first district and it was a little over 20 years ago. And I remember actually because it was actually one I was at Berkeley, and I actually did did some coursework about mediation and actually remember writing a paper about appellate mediation back then talking about this new program. The first district has more recently that they subsequently dropped their program. And I'm not sure why they did so but I think it may be for budgetary reasons. So it's probably as long ago as maybe 10 years ago, the, as far as I'm aware, the will the second district certainly has a program because on its panel, I believe the fifth district has a program. I'm not aware of the fourth district one, there are some pools which kind of have programs like for example, you might know more about this than me. But if you go to four, two in Riverside, I'm not sure that they've got a program, which is kind of like the one in the second district where they send out notices saying, Do you want to be part of our mediation program, but they they will make themselves available? I've had a couple of mediations there as a lawyer, you had to seek it out by the by the with the Presiding Justice Justice Ramirez actually conducting the mediation himself, Orange County,

Tim Kowal  21:11
but what do you what do you think about that? I was gonna get to that later. But you mentioned that just having one of the justices, I would assume that Justice Ramirez would not sit on the panel at that point.

John Derrick  21:21 
Indeed, he wouldn't. I mean, you know, some people prefer having judges or justices as their mediators. And they can, of course, be very effective mediators. It depends in part on the type of mediation that is called for whether you want a kind of very directive mediation, where somebody is going to kind of tell you, you're going to lose this appeal, or we're going to win this appeal or whatever, whether you want a more kind of diplomatic one where, you know, maybe in that case, a presiding justice is used to calling the shots, you know, may not be the the best person. So I don't think there's necessarily a one size fits all, you know, what is the best way to do it. But But, but I can certainly imagine in some cases, the parties might be on their best behavior, if there was an appellate justice conducting the mediation, and maybe that could be conducive to bringing about settlement. Who knows?

Tim Kowal  22:16
Maybe the justice could leave it leave it ambiguous whether he or she intends to be on the panel? Well, indeed,

John Derrick  22:21
no, I'm not aware of any litigants, which whatever have have somebody mediating and then being on the panel. I mean, it'd be an interesting idea, but I just don't think it happens.

Tim Kowal  22:33
I wouldn't imagine it would happen. Why do you think some courts implement the programs? And others don't? Well,

John Derrick  22:39
an interesting question, because there are some courts when they, when they talk about it, make it out. But it's kind of it's an efficiency, that taking cases off the calendar is a good thing, because, you know, that way they can get to the remaining cases more quickly, and, you know, just get through their workload. So it's a workload saving mechanism to some other courts might kind of see it as their mission to promote Settlement Trust, like trial court see it as part of their mission to promote settlement.

Tim Kowal  23:14
That's interesting. I wasn't aware of that they saw it as a mission. Is that a mission that is set forth legislatively somewhere? Or is that though? No, it isn't.

John Derrick  23:22
And it's a controversial one, to the extent that there is such a mission, because there is a school of thought that says that appellate courts should not be in the settlement promoting business since their job, unlike the job of trial, the job of a trial court is to resolve a dispute. That's why they're there. And if you can do so, with with settlement, you know, all the better why drag What Why drag people through trial, if you can get it done in an afternoon in a suite of conference syrup, but by contrast, at appellate courts job is to weave the tapestry of the common law. And there is a school of thought that if appellate courts are in the business of actively promoting settlement, they are not only acting outside of their core mission, but they're actually doing something to undermine that mission. For example, if you could, it would seem ridiculous to imagine that the California Supreme Court would have a mediation program. And why would it do that? Because you grant review, because this is an important and unsettled issue of law. But then you say, Oh, by the way, would you try to settle your case? And that way, we don't have to decide this important and unsettled issue of law. I mean, it sounds ridiculous, even more ridiculous at the US Supreme Court. But you could argue and I'm not saying I'm necessarily arguing this, but you know, playing at least some part devil's advocate. You could argue that it is also slightly ridiculous for an Intermediate Court of Appeal to do that, because, you know, there are cases which you know, ought to be ought to be He decided and Courts of Appeal aren't in the resolution business per se. They're in the lawmaking business

Tim Kowal  25:07
right now. It's, it's interesting, because it got me thinking that, you know, we have our political branches that are in the business of making compromises and all of all of economic life is about making compromises. The courts are the one place we can go to get a definitive ruling, is it black? Or is it white? Is it up? Or is it down? And if the courts are now saying, Well, we're don't really like having to make those calls are hard? Can we just compromise like every other aspect of our life? Seems like we're being robbed of the one place, we're supposed to get certainty out of our transactions.

John Derrick  25:40
And just to give you one kind of vignette, to a wall story, it's actually that case, I mentioned earlier that employment case, we went to an oral argument on that case, and I think it was still when this was in Orange County for three and I think it was still in that old building, or maybe they just moved, I can't remember. But this was kind of 10 or so years ago, maybe longer actually, and and then about, you know, the court, no doubt had got its draft opinion, as it always does kind of, you know, in front of it. But it obviously didn't like having to decide the case. And about halfway through oral argument, the acting Presiding Justice who's no longer on the court, but was, you know, one of the finest so got to know him quite well, by serving on a board with him over a few years. He said, You know, there's some way in which you guys can just settle this case. And then he immediately sort of corrected themselves saying, you know, maybe I shouldn't have said that, but he sort of came back to it a bit more. And they then did something which I've never actually come across before. They said, Okay, we'll have a Court of Appeal mediation laid on for you. And they either then didn't submit the case at the end of oral argument, or they unsubmitted it, but they arranged this post oral argument mediation at the court of appeal. And the mediator, there was one of their senior research attorneys who, as I recall, you know, and hadn't worked on that particular case, but was not briefed on it by it by colleagues, I would imagine. And, you know, he did his best to to settle the case, but it did not. It did not settle. And then this was this was this brings into a related issue. But the people who the people who don't like appellate mediations, because interferes with the core mission, sometimes also don't like the concept of unpublished opinion, because, right? Well, you're not. And there was actually there used to be a professor of Berkeley whose name I think I'm forgetting, but who was very keen on both of those issues. And he was dead against appellate mediation when it was starting up in the first district. And he and he had this thing about, about unpublished opinions, and also about de publication of opinions as well, he, he had a number of issues. But in this particular case, as well as trying to settle the case, through mediation, the Court of Appeal in in, in Orange County, they then put what really should have been a published decision, because it you know, it needed to be a public decision, because if they were going to take a particular view, you know, it ought to be a published decision, but they did it unpublished because they didn't like the case. And they didn't really want to decide the case. It had to do the whole issue had to do with the use of certain testimony, expert testimony, but the trial court had allowed it and that really, essentially went into kind of stereotyping certain cultural groups. And I was arguing that it should not have been allowed in the trial court let it in and the Court of Appeal figured out a way of affirming but not liking it,

Tim Kowal  28:46
since you since you stepped on the landmine of unpublished decisions. We'll take a brief diversion here and I'll ask you your opinion on an unpublished decisions. Is that Is that Is that a reasonable policy? Or is it just mischief making as I might have there?

John Derrick  28:59
Well, I think unpublished opinions for the court aren't necessary because it'll be too much work to make every case a published opinion. I mean, that's that I think is the  The General the general view that I mean, you know, the Ninth Circuit have figured out a way of dealing with this where they put out their cut, what are they call them memorandum dispositions, which can don't even really try to be like opinions. They're more like minute orders. And maybe the California Court of Appeals should do the same, which is, look, if you're going to do a proper opinion, why not have it published? Or if you think it's too boring a case to make it worth doing an opinion put up, you know, the appellate equivalent of a minute order,

Tim Kowal  29:31
right? They're out there. So don't pretend that they're not out there. Yeah. But if you have to court hypothetically, were to decide, you know, the judicial business is too hard. Let's just get into the the mediation and settlement business, they got the they got the tool to do it. They can just get us mediate cases and just publish them as unpublished decisions. And no one would be the wiser. Indeed, that's the same thing occurs to me with with de publication, you know, what is someone to draw from that other than the Supreme Court said, Well, this is not a good a good rule, but we're just gonna let the we're gonna still let the parties deal with the consequences of this bad rule. We just don't want anyone, anyone else to exactly. Well, let me ask you about this scenario that that probably every attorney has heard about, at some time or another, there's a few of these kinds of instances where the parties settle their case during an appeal, which is great news for everybody. Unfortunately, the settlement only comes a very short time before oral argument. And by that time, maybe the panel is just raring to go wants to hear argument and render its opinion and tell us counsel when they learned of the settlement. Sorry, we want to decide this case now. So get on with your argument. We're not accepting the settlement. We're not going to be dismissing the case. Now, what is the courts practice of deciding cases that have already been settled? Tell us about how the courts really feel about settlement. They think it's really better for the litigants, or they just want to reduce their workloads.

John Derrick  30:49
Yeah, I personally have never been involved in a case, either as a mediator or as a lawyer, where the party said, Okay, we've settled it. Can we go now? And the court said, You're staying, we want to argue this. I mean, I imagine the courts could do so I did myself have a case only a few months ago, where in which I was a lawyer, and where we've been trying to settle the case for literally nine months, and it just couldn't happen. I mean, but then, about two weeks before oral argument, the discussion started up again. And I wanted immediately to send out a notice you sent to the Court of Appeals saying, Excuse me, we're talking about settlement. So you may want to not, you know, devote too much time to this case right now. But there was some discussion that we shouldn't send it immediately because it was unclear as to whether the case where the settlement discussions would gain traction. So I think we took just a few days before sending off the notice, although personally, I wanted to send it off earlier, I suspect by then the court had probably already worked up finished its work on the case. But anyway, we sent the notice off, and then I think it was literally a day or two days. But I think it actually does one day before oral argument that finally the case did settle. And I you know, sent a letter in to the court or made a call. And I was kind of a bit nervous thinking, you know, this was in Division seven of the second district. I was thinking, gosh, you know, that must be really annoying to them. And I wonder whether we're going to get some snarky reply, or whether they're going to tell us, you know, they want us to appear at oral argument anyway. But in fact, I just got a nice phone call back from the clerk saying that we were off calendar or whatever. But it must be incredibly annoying to a court to have that happen, that to some extent, it's in the nature of the business. What do you meant to tell people? Look, you can't settle a case? You kind of, you know, you're past the point of no return. I mean, that doesn't sound reasonable,

Tim Kowal  32:53
right would be what the court welcome notices from the parties that look where we're talking about settlement, maybe it'll happen 5050 chance.

John Derrick  33:01
I mean, generally speaking, I'm very pro sending notices if you've got a slight reason for doing so the problem is that sometimes the trial lawyers get all upset because they think that, you know, if you send out a notice you're going to send some signal to the other side that you're keen, and something like that. And so you can you can run into a bit of pushback. But I mean, I think as a as a basic courtesy to the court, you should tell them the the earliest sniff of serious settlement discussion. Well, can I took an add one thing to that in that particular case, I was on a personal level, kind of. I mean, I think it was right in the case settled, but on a purely personal selfish level. I felt like it was as though I was kind of reading a book and somebody had ripped out the last couple of pages and so I was deprived of the of the ending because I think this was a case in which there could well have been a reversal. It was an interesting case a clear wobbler In terms of possible outcomes, and so, you know, I was disappointed at the never getting to read the opinion.

Tim Kowal  34:07
Right. There was I wanted to read something to you I, I was reading this interview with a senior judge Clifford Wallace, and he had this comment about a mediation program that he installed in the Ninth Circuit years ago. And it made me think of you I want to ask you about it. So here's here's the quote judge, senior judge Clifford Wallace says, quote, we made a lot of changes. It has nothing to do with how I write my opinions, we are far more efficient than any other court of appeals, the Second Circuit has picked up on it now we developed case management and mediation in the appellate court. No one thought about settling the cases once there was a judgment, I hired a mediator, we started doing Win Win mediations, the idea was developed by Fisher and Ury. at the Harvard Business School, once we mediated 1400 cases in a year, we had a way to get people to talk. Our data shows that there's no distinction at all as to what types of cases settle it's the lawyers and the parties who are the key variables. We started the program about 15 years ago, it's been a great help. That where I made my voice kind of ominous is the quote, I want to ask you about V half ways to get you to talk. Well, yeah,

John Derrick  35:12
and the Ninth Circuit said, he doesn't have ways because you're pretty well told her that you need to go through a mediation screening, at least they do have an excellent program, unlike the system in the in the state appellate courts, the Ninth Circuit has got its in the house program, they have an approach or how many there are, but at least several, you know, maybe half a dozen, maybe even more full time staff mediators, I've found them very, very good. Actually, when I deal with them that there, I suppose, you know, earlier, we were talking about mandatory settlement conferences, and I said that we're none, I suppose in a way that is a bit of an exception, because you do have to show up on a conference call at the Ninth Circuit, as far as I can best remember that they kind of call it a screening. And so it wouldn't be like a full on half day session, it might just be like a 20 minute or 30 minute call. And if the parties are saying, You know what, we don't think this is going to go very far. You know, you're then free to go. But But But nonetheless, it does put you into a system where you're at least forced to start thinking about mediation. And maybe that wouldn't be a bad thing in the state courts as well, unless you take this view that they shouldn't be doing this for the reasons we were talking about earlier. And obviously the the senior judge, you quote there, he thought that settling cases was part of their mission, but others might think differently.

Tim Kowal  36:45
You know, I had this this story that I heard and I can't remember where I heard it. So I'm, I'm a little bit nervous to share it. I don't know if I'm violating podcast privilege here, but I'll go ahead and share it anyway, I heard a story from an attorney who was was mediating or involved in mediation of a case pending appeal. And there was a retired judge or justice who was doing the mediation and the the settlement discussions were stalemated. And the mediator came in and said, Well, you know, it just so happens that I talked to my good friend justice, so and so who happens to be on the panel with a draft opinion in your case. Now, of course, I can't show it to you. But oh, oh, excuse me one moment. I have I have a phone call. I'll I'll take this outside and leaves the leaves the printout on the table there. The the attorney and the client look at each other. Should we shouldn't we? Of course we should they take a peek. They see the writing on the wall. Lo and behold, that afternoon the case settle. Now is that go back to judge Wallace's V half ways to get people to talk.

John Derrick  37:46
Well, I'm not sure whether judge Wallace called him back particularly. It might indeed be a fairly effective one. But I think that might be a somewhat unique, unique occurrence. Of course, when the Ninth Circuit's started their program that was back in the days when the average time from the filing of the notice of appeal to the decision coming out was going to well over two years. They were terribly terribly backlogged at one point. And so I think one of the reasons why they were so proactive in developing their program was that they felt they just needed to do something about this case backlog these days. And this is my work is in state court, but the last time was in the Ninth Circuit not too long ago, it seemed to go fairly quickly the whole thing but But nonetheless, they still they still have their program.

Tim Kowal  38:39
Alright, well let's do you have any other we talked about some practical tips for our listeners here about managing expectations we talked about you know, when you when you're on appeal, there's gonna be one party who's flying high and one who's in the doldrums and there's kind of a respective Council need to get both of them to come to the middle a little bit. So there's a managing expectations imperative, but At the beginning, I suggested maybe consider getting a stay of enforcement of the judgment just to kind of bring things to a halt might also help in the in the task of managing expectations. We talked about looking into court provided mediation programs. And and you you talked about how important it is to notify the court progress in settlement discussions, because if you get too close to the oral argument date, a settlement might not get you anywhere because the case mine might still be decided if the panel's fixin to do that. Any other nuts and bolts tips that listeners should be aware of and in best practices to get a case settled or get it into mediation pending appeal?

John Derrick  39:38
Well, there is one view that although joint sessions in mediations are increasingly uncommon, in trial court mediations, there is a view that you should have a different sort of approach in an appellate mediation, because with most appellate mediations, the case isn't an end and the trial court. And so you're not going to be you know, conducting discovery the week after the mediation or something like that you're in a whole different era. And so that there's an argument that basically, the party should just have more kind of transactional business like up approach by all sitting around a table, figuring out a sensible way forward, which is better for both sides then litigating the matter in the Court of Appeal for the next year. I can see the value of that. But I personally find when I conduct appellate mediations, that there is a great reluctance on the part of the parties, the lawyers as well as the as their clients to actually have that sort of different mediation. And so sometimes I think that one's missing a trick if one conducts an appellate mediation, just like a regular mediation, but sometimes that is what occurs because you just cannot get people to to do differently. But I think thinking a little outside the normal mediation box is, you know, does make sense. The other suggestion that I would have to people is that whether you go to eat well is that you use as your mediator, as someone who understands the pellet law, appellate mediation is to specialize in Nisha thing for there to be full time appellate mediators, and I'm not aware of any but you can have, you know, an appellate justice, or you can have, you know, an appellate lawyer like myself, who also does mediations that you would have somebody who gets it, because they're more likely to be focused in on things like the standard of review, they're more likely to be focused on the kind of interests the whole, you know, the likely way in which an appeal is is going to be played out. So just going to a regular mediator, and asking him or her to do an appellate mediation might not be the best idea. I mean, obviously, I've got a vested interest in saying that since I do appellate mediations, but I think but I think it actually doesn't make sense

Tim Kowal  42:08
when you've got a business background to some of the best mediators or those who have a business background and can kind of see beyond beyond just the the legal issues and defining practical solutions that you otherwise might not be able to get in a judgment. And to your point, having a mediator who also understands the nuances of appellate procedure and standards of review, and the rest, yeah, I'll happy to give you a commercial for for appellate mediation services is having appellate specialty and in a business background.

John Derrick  42:36
But often the oddly though, sometimes when I've gone to the, you know, I'm on the second district panel. But when I've gone to that court, as a lawyer wanting taking part in the mediation, some of the people on their panel in the past, at least, I'm not sure what that's still the case now have not only not been appellate lawyers, they haven't even been lawyers, they're just kind of mediation is kind of in the abstract. And you know, that, you know, maybe maybe they can do an effective job. But I kind of think that that, you know, isn't ideal, and that's one of the drawbacks of going to a call a call to arrange mediation. I mean, the benefit of doing that is it, you know, somebody else is setting it up for you, and you get x number of free hours. The drawback though, is you don't get to pick your mediator. And, you know, just like, I mean, half the dentists in this country are by definition below average and their skills. So half the mediators are below average in their skills. I mean, that's just a numerical necessity. Whereas if you pick your own mediator, and you get to choose and I think some of the some of the kind of big mediation programs like jams and whatever, they kind of go through their website, they kind of you know, have people who are assigned to appellate mediation as a skill set, typically they'd be retired justices.

Tim Kowal  44:04
Alright, so we covered the nuts and bolts of appellate mediation, we covered some real high level stuff theory about appellate mediation. I got my dig in against unpublished decisions and the no citation rule. So Jeff, what's left to make this a complete outing? Oh, I

Jeff Lewis  44:20
don't know about I complete it. But I did have a question for you, John. During COVID, you were doing mediations via zoom with the end of COVID Insight, hopefully, do you anticipate continuing doing mediations by zoom? Are you gonna try to do them in person? Again,

John Derrick  44:32
I think it'd be a mixture of the two. But I'm actually a bit of a fan of zoom mediations, I think I was gonna say very little as loss. But I'm going to correct myself. And I'm going to say, I personally think that nothing is lost. And something can be gained, what can be gained is the fact that it's sometimes easier to keep keep people in the in the proverbial room, if it is a virtual room than it is to keep people sort of cooped up. Once the mediation, which begins in the morning continues into the afternoon, in a suite of conference rooms, people are more likely to mediate, they don't have to travel a great distance sometimes. And that can help. I think the whole system of virtual breakout rooms is just very, very efficient, people are sometimes more relaxed, because while the mediator is in one is in the other side's breakout room, kind of the lawyer can be kind of doing useful stuff, rather than just kind of, you know, waiting

Tim Kowal  45:34 
doesn't have to be so expensive for the client. It doesn't have to be so expensive for the client necessarily. Other thing?

John Derrick  45:42
Exactly. So, you know, on a personal level, you know, I quite like doing mediations that the Court of Appeal in Los Angeles, they if you if you have a court mediation there they they lay on this quite nice suite of conference rooms, and the mediator gets to park in the in the judges carpark and things like that. So I quite enjoy actually going to the Court of Appeal to do mediations, and I'm looking forward to going back there. They haven't yet to reopen that suite of conference rooms. But at the same time, I think zoom, I think is here to stay, at least in part what what do you think?

Jeff Lewis  46:18
Well, I'm a little bit torn. I love zoom appearances. I think there's a real access to justice issue in terms of costs and expenses. Not all my clients are fortune 200 companies. So in affords greater options. On the other hand, I can think of a few cases one in particular, where a mediator, Jeff could shave and locked me and my parties in a building to like midnight downtown LA and got to settle a case, which I think it would have been a lot easier to switch off at zoom at nine o'clock at night. So I'm torn.

John Derrick  46:42
Yeah, and I can remember a case like that as well, which it began off in the Court of Appeal conference rooms. And then I think they eventually booted us out there at five, five o'clock in the afternoon or something. And then we went to one of the lawyer's offices to downtown and, and we were there till 11 o'clock at night. So so so yes, I mean, I'm also a bit torn. So I think I think the way forward is to have both in some cases will be better off with Zoom, some might be better off in person I did one a couple of weeks ago, where which did settle in and you know, one party was in New York, the other was in California. I'm not even sure they would have had a mediation in the

Jeff Lewis  47:26
days. Yeah, yeah. And, you know, on a similar vein, in terms of oral argument, I sure hope the second district keeps a video argument option open in terms of the access to justice issue, I think there's some parties who just can't afford or won't pay or won't choose to have argument if they're going to do it in person.

John Derrick  47:41
I agree. The my concern, though, is that some courts, which could have been particularly like video appearances, you know, you might, you might have some one party turning up in person, and then the other party on kind of on a screen and it's a bit uneven, especially if the partner who the person who's doing it by zoom and can't kind of read the body language and people on the bench or something like that. So I think I think if you're going to have I think you should either have both sides doing it by zoom or neither side doing it by Zune. I certainly as a lawyer wouldn't feel comfortable doing it by zoom if the other party if my if my opponent was in court, and that's one reason why I never do telephone arguments where even when they were allowed,

Jeff Lewis  48:25 
right, right, yeah, you pick up a lot of the video. Interesting. Okay, well, look, you survived the hardest part of our interview. Now we're going to do the easy part. You're going to participate if you don't mind in our patented copyrighted lightning round, which is a series of short questions that are the most vexing important questions that concern appellate nerds around the world. Give us a short one word, one sentence, answer if you can. And here we go. For your briefs that you prepare your one man office, font preference century school book Garamond or something else, Georgia,

John Derrick  48:59
Georgia. It's the most cross platform fonts there is. I find it highly readable and you know, century school book, you know, if you spent all day long reading century school book documents, Would you like something that looks a bit different, but which isn't Times New Roman?

Jeff Lewis  49:15
Interesting. We've had 32 episodes here. We've never had anybody say Georgia, I don't think interesting, including our Georgia appellate attorney that showed up here. Even our command almost important as important of a question after a period two spaces or one

John Derrick  49:28
one, that's to be written into law, it should

Jeff Lewis  49:31
be pled p LED, or pleaded PL E. A D. D

John Derrick  49:35
pled I think I didn't feel so strongly on that one. But I think pled

Tim Kowal  49:40
Yeah, you're right there. And then you've got to ask our Oxford alum about the comma. Yeah, it's

Jeff Lewis  49:46
not. I guess I will ask them. Do you believe in the Oxford comma?

John Derrick  49:49
Well, I'll tell you this as somebody who spent three years of my life in Oxford, and I've never heard the phrase the Oxford comma until I came to the United States. It's a bit it's a bit like when Americans talk about English muffins, they refer to a good which has got no equivalent in England, that having been said, I didn't use to use what you call the Oxford comma. But as with certain aspects of my life in the United States, I've now gone native and started to use the so called Oxford comma.

Tim Kowal  50:21
Are you telling us the Oxford comma is an American innovation?

John Derrick  50:24
It is it is, I believe, certainly isn't the norm in England, and it certainly wouldn't be called the Oxford comma.

Tim Kowal  50:30
Well, that is a great instance of cross pollinate pollination between our two peoples. What do they what do they call it?

Jeff Lewis  50:36
They call the colonies comma, what do they call it? Over there? What are your answers to I'm lazy, I tend not to use them mostly as an oversight. And Tim is decidedly pro

Tim Kowal  50:46
oxen, what do you charge them by the comma? Pry the Oxford comma from my cold dead fingers?

Jeff Lewis  50:51
All right. And final question, you know, for major argument headings in your brief, do you go full caps all capital letters? Or do you do initial caps or just sentence cap? What do you do with your big headings and arguments?

John Derrick  51:03
Okay, so the only things I do for full caps will be the top level heading, you know, introduction, procedural history, statement of facts, arguments. So in conclusion, so they get all caps, everything else. And I've slightly changed my system, only in the past month, because it's a constant process of refinement in the way I work. After many years of having two levels of heading where you'd have a higher level heading being upper and lower, I've now gone to all lower because I just never manage to work out a good consistent protocol for what's up, and what's lower. And then I just thought, you know, dammit, I'm gonna stop stressing about this and make everything upper and lower, but slightly expanding on your question, Mike, the layout of my briefs is different from a number of people's for example, I sent her certain types of headings, top level headings and our argument. But the main the main point, the main difference for me from most others is I do this stuff of having, you know, Roman numerals and kind of letters and complicated things. Because if I'm on page 15, of a brief, and I see a section, which has a kind of a V, like a Roman five, I mean, what does that tell me? Okay, it's five of something. But it's five of what is the first issue, the second issue, whatever. So I use a system where, let's imagine it's for the argument is divided into four kind of main issues or sections of section one, section two, section three, section four, then for each subheading, it's 1.1 1.2 1.3. And then it's 2.1 2.2 2.3. Because that way, when you look at a section heading, you know exactly what it is. This is the third section of the second argument.

Tim Kowal  52:56
I thought, just that thing for the exact same reason. Yeah,

John Derrick  52:59
yeah, it's a puzzle to me as to why people have this kind of weird sexual system. I mean, it says something the way they were

Jeff Lewis  53:09
taught to do it

Tim Kowal  53:11
and the way in which they use the decimal system, you just use just use Arabic numerals. Yeah, I

John Derrick  53:16
just use Yeah, exactly. Just don't use Roman numerals at all. Yeah. And I also dislike this this business of having levels of the argument becoming where the headings are increasingly indented over to the right it just looks weird. Maybe this is the form of publisher in me is that I want documents to look nice and to and I think a lot of a lot a lot of lawyers just give too little appearance to the to too little attached too little importance, I should say to the appearance of documents, and you should have on your show maybe we've already thought that that guy who wrote that book typography for lawyers Matthew butter, because he is locked. I don't agree with all that Because of his his approaches, but the point is, he doesn't expect you to agree with all of his points. What he encouraged these to do is to think about them. So you make kind of reasoned decisions, rather than just adopting something, because that's what you were told to do. 30 years

Tim Kowal  54:15
ago. Yeah, well, I'm to your point about using sentence case for your headings rather than trying to try to capitalize some but not all, some people capitalize every word. Some people only capitalize selective, and everyone has a different rule about it. So it's going to look weird to somebody, if you use some variation, some form of a capitalized case. So I agree with you. It's better just to use sentence case, because everyone understands what a sentence case is. Yeah,

John Derrick  54:39
one of the worst is when people capitalize names in a brief, and I never understand why people do that. Yeah. Yeah.

Jeff Lewis  54:46
Maybe all caps in the name? Yeah. Every time

John Derrick  54:49
they refer to John Smith, or whatever, it's in capital letters. Yeah. That's like shouting Smith. Yeah.

Jeff Lewis  54:54
Okay. Well, so John, listen, you know that numbering the way you number arguments, and you don't have them indented, and you do the point two and point three, I'm super interested in that. And maybe we'll adopt that in my firm, and you can have control, you can decide right here. And now. Are we going to call that the Oxford way of numbering or the derrick way of numbering?

John Derrick  55:11
I'm not sure that I think it should be either, because I actually got the idea. There was some district court judge who wrote an article in the Daily Journal about, I don't know, 10 years ago, saying this is ridiculous the way in which people are numbering their arguments. Why don't you do it this way? The idea of that person, and I think I might even have his hospital soon should be named after him. I've tried to pick it up for you.

Jeff Lewis  55:33
If you could send us a link. We'll put a link in the show notes about that. I'll see if I can. Okay.

Tim Kowal  55:39
All right. Andrew Guilford Yeah. Might have been might have been I want to say it was him. All right. Well, you

Jeff Lewis  55:44
survived the dreaded lightning round. gratulations. I think that's, that's all we have for today. Okay, well, it's been a pleasure. Thank you for having me. Yeah. It was wonderful to get to know more about you and what you do. And I guess let me just say for audience if you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  56:07
Thanks. See you next time.

Announcer  56:08
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 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.

Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed the 10-year sentence.

To the prosecution’s credit, it conceded it was error not to hold an in-person hearing. The state constitution provides that a “defendant in a criminal cause has the right ... to be personally present (Cal. Const., art. I, § 15), and this right is also guaranteed by statute. (Pen. Code,2 § 977, subd. (b)(1) [defendant in felony cases “shall be personally present ... at the time of the imposition of sentence” and “at all other proceedings” unless that right is properly waived in writing].)

But error is only the first step to reversal. The appellant also has to establish the error affected the result. And the court found no difference between an in-person and a remote hearing: “There is no indication in this record that Whitmore's physical presence in the courtroom would have benefited his case in any way or otherwise altered the outcome, nor does the record reflect any difficulties or irregularities attributable to Whitmore's remote appearance.”

Comment: Consider the dignity our courtrooms were designed to arouse: the impressive wood-paneling and high ceilings, the bailiff’s announcing “all rise” when the judge walks in, the other catechisms of justice all present in the courtroom. And yet in the space of a few months, we are to be persuaded that this was all no different than holding court in our bedrooms, with trousers optional?

The Upshot: If you want to preserve your right to an in-person appearance — whether that be at trial, at a hearing, or at a deposition — make a record why the difference matters. Here are some ideas:

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.

After Jeff quizzes Tim on a bit of appellate esoterica about the automatic 15-day default extension for appellate briefs, the co-hosts discuss whether appellate justices modulate their approaches to sympathetic cases. The conversation also covers recent cases involving:

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

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

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Transcript:

Tim Kowal  0:02 
But the court is going to be a whole over the place on a jurisdictional issue. How long can it maintain line that it's a jurisdictional issue? It's all jurisdictional if we're gonna publish the decision.

Announcer  0:12
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. Welcome, everyone. I

Tim Kowal  0:26
am Jeff Lewis. And I'm Tim colwall California Department of podcasting license flagged for review. The California appellate law podcast as a resource for trial and appellate attorneys. Jeff and I are appellate specialists. But both our practices are split about even between trial courts and appellate courts. So in each episode, we try to bring our audience of legal practitioners news that they can use in their practice.

Jeff Lewis  0:52 
Welcome to Episode 31 of the podcast.

Tim Kowal  0:55
So we don't have a guest for for you today. But Jeff did have an idea where he came across very interesting appellate conundrum. And he thought he would try to stump Tim, whether he could come up with the answer or not. So you want to set it up, Jeff, and lay it on me and see if see if I can come through with shining colors or whether I fall on my face?

Jeff Lewis  1:17
Yeah, sure. Now, this is actually came out of a discussion I was having in my office with my staff, and none of us knew the answer. So we've got we've outsourced Tim, in a new segment called stump Tim, where I asked him a vexing procedural question. Watch him stumble around for the answer. So here this in every appeal, if the opening respondents brief is not timely filed, the clerk will issue a 15 day default notice providing additional 15 day free extension to get a keep on file. That's a rule everyone's familiar with. And the rule only applies to opening and respondents brief not replies. Everybody pretty much knows that. Here's the twist. When you have an appeal and across appeal, you've got four briefs, not three, and you have combined briefs. She'll have an appellant opening brief, and then you'll have the respondents response to that and the opening combined with the opening process of deal, the grief. And the question that my staff and I were wondering was, will be appellant get the benefit of a second 15 day notice for the third brief, the combined appellants reply and cross respondents break. If that party has already received a 115 day notice for the opening brief, will they get the benefit of a second 15 day notice for the third brief?

Tim Kowal  2:34
Okay, so you have a combined scheduling or combined combined briefing? Do you have a combined scheduling order? In my experience? Usually when you have combined briefing, you get a get a scheduling order.

Jeff Lewis  2:47
Yeah, usually it makes sense by stipulation of parties, you present it to the clerk, the clerk says, okay, for briefs, and here's where they're going to be filed.

Tim Kowal  2:53
Yeah, but it doesn't say I kind of think of it normally, the scheduling order doesn't make reference to whether you get the 15 day default extensions on this one. So is it the question is, is it more akin to a respondents brief on which you do get the 15 days? Or is it more akin to a reply brief for which you do not get the 15 days? Because this is a combined respondents brief and a reply brief? I would say that you get the 15 days, but gosh, I would not want to risk it.

Jeff Lewis  3:32
would your answer be the same? If you've got a first 15 day extension on the opening brief, and then when the third brief came due, you're gonna be expecting a second 15 day extension?

Tim Kowal  3:42
I don't think it doesn't matter to me whether you got the whether you took advantage of the 15 days on the opening brief. And I don't think courts look at well, we would give it to you, but you already took 15 days for your first brief.

Jeff Lewis  3:55
All right, that's your final answer.

Tim Kowal  3:57
So to give you an answer, I thought I just stumbled around. If you did, I say I say you do get the extension. But my confidence level is only like 65%.

Jeff Lewis  4:10
Your gut instinct is right, that you should get the extension. And your caution is also right. In terms of the advice I gave to my staff about not relying on that the answer is to be found in rule 8.220 Subdivision B, which refers to just combined briefs. And 8.220 B says when you're finally a combined brief, you get the benefit of a 15 day extension doesn't mention anything about getting a second 15 day extension or default notice. I think more or less you're correct.

Tim Kowal  4:42
Interesting. Interesting. So it just mentioned a combined brief. Yeah. All right. Yeah. Take that the mean any combined brief.

Jeff Lewis  4:50
Yeah. So the first person who writes the fourth brief in the series, which is a pure reply brief, that'd be cross appellants reply brief would not get the benefit of the 15 days.

Tim Kowal  5:02
Yeah, yeah. So you could see, you could see up to 45 days in in three different default extensions for the combined opening brief combined second brief combined third brief, before you get to the final fourth brief, with no extension.

Jeff Lewis  5:17
All right, I'm going to call that segment a rousing success. And I'm gonna encourage all of our listeners to email me vaccine questions that they wished me to torture you with.

Tim Kowal  5:25
Yeah, I did feel like I was stumbling around quite a bit. All right. So with that, with that segment completed, I had a couple of cases, recent cases, I wanted to talk about Jeff, you know, mind, a first couple of cases involved defective notices of appeal. And this is a kind of a perennial topic, I like to like to address just because of different ways that that courts take them up. It's a jurisdictional issue. It's supposed to be one of those issues that you don't see a lot of variation. There's just one rule. But I see more than one one rule sometimes. And so here's, here's a recent case, Ramirez versus Oxford properties that have the fourth district Division Two is from April 2022. And this is my example of how I would expect a court to handle a defective notice of appeal. So in this case, there were two motions to vacate a dismissal of a complaint. The first motion had suffered from an excusable technical mistake, but the court would not excuse the mistake and and said, No, you got to file a second motion to vacate the dismissal. And the plaintiff filed the do over motion to vacate. But then the court said nope, sorry. It's untimely. So then Ramirez, the plaintiff only appealed the second denial, but really the issue was, was about should have, Ramirez should have filed the notice of appeal from the First Order denying the first motion, the Court of Appeal said we would really like to reach the merits. But sorry, we can't because the its untimely. Now you cannot file a motion again, cannot file the appeal from the from the first motion to vacate. So I agree with the analysis. But here's here's another case that illustrates that. Not every case takes this kind of hardline view on notices of appeal. So this was a second district case from a few years ago. bekkering versus Shell Oil Company 2014 case, the Court of Appeal got around a jurisdictional problem by just ordering ordering the trial court to enter a Nunc pro Tunc order. So what happened is, is the appellant in bekkering filed a premature appeal of an order granting a summary judgment. But the court found that that's no problem because the court could simply order the trial court to enter a judgment Nunc pro Tunc the same date as a summary judgment order. So without and then without awaiting the actual Nunc pro Tunc judgment, the court went on to construe the notice of appeal as referencing the as yet non existent judgment. So what what this reminded me of when reading it was that scene in Bill and Ted's Excellent Adventure, when they're stuck in jail, and they're thinking, how do we get out of this mess? And Bill or Ted, one of them says, I know, when we get back to our time traveling phone booth, we'll just steal your dad's keys and put them where should we put them about right here in the corner? Oh, yeah, look, here they are. And then they got out of jail that way. So some someone decided, well, if it's good enough for Bill and Ted, it's good enough to save a premature appeal. We can just just use Nunc pro Tunc orders to change the dates of the orders appealed from

Jeff Lewis  8:26
well, hey, you know, in in this bekkering case involved, somebody was sick or dying from mesothelioma, it was asbestos exposure case, or the spouse of somebody who was exposed to asbestos and person was given priority on appeal for speedy appeal. And it was against one of the most unsympathetic defendants ever Shell Oil. Ultimately, the result was affirmed. I see the court here just wanted to make sure the case was resolved before appellate passed away before he got his or her got her day in court. And I also know not to open another can of worms. But this might be why bekkering And Ramirez were both unpublished to stream kind of results. This is I guess, an argument in favor of not publishing decisions on these important jurisdictional issues when the courts are going to be all over the place.

Tim Kowal  9:17
Well, if the court is going to be all over the place on a jurisdictional issue, how long can it maintain that line? That it's a jurisdictional issue? It's only jurisdictional if we're gonna publish the decision?

Jeff Lewis  9:27
Yeah, it is. It's hard to see where that line is. If you're

Tim Kowal  9:31
so are you suggesting that if the appellant had not been so sympathetic, that maybe a different result would have obtained? Yes, that suggests that the court is a respecter of persons. So the court so the justice is reading the the legal discussion and decides Oh, well, based on this legal discussion, I guess we've got to dismiss this appeal. And then one of the other justices on the panel says, Oh, wait, Bob, did you read the facts? This is a really sympathetic appellate. Oh, I didn't realize that will happen. To find a way to save this appeal,

Jeff Lewis  10:02
I'm going to suggest that bekkering in which it wasn't a fatal mistake in the sense that no judgment had ever been entered. And they I suppose, presumably they could have had the case remanded judgment been entered, and then do a Notice of Appeal, telling someone who's super sick, go do two or three more years of this Kabuki dance, and then we'll talk to you in three years, I'm going to suggest that appellate justices are human. And we're aware that was a harsh result.

Tim Kowal  10:29
Yeah. So you're saying that the same result would have obtained either way? It's just they wanted to cut a few years out of the process?

Jeff Lewis  10:38
Yeah, yeah. Just say it wasn't entirely person oriented in terms of bias, because ultimately affirmed, summary judgment was granted,

Tim Kowal  10:50
right? Yeah. Yeah. All right. Well, let's get to the next one. You got my hackles up already. But I thought this this next case was also surprising. The question is, can you dismiss your lawsuit while it's on appeal? I thought the answer would be yes. But the answer is no. Under curtain maritime Corp versus Pacific dredge and construction, it's a published decision out of the fourth district. In that case, the plaintiff had successfully opposed the defendants anti slap motion, and then the defendant appealed the order denying the motion, the plaintiff decided to dismiss its claims. But the Court of Appeal held it could not dismiss until it was done with the appeal, the court reason that dismissing the case would have rendered the appeal moot. And because the appellate stay is meant to prevent that, the stay means you can't dismiss pending the appeal. Now, this was surprising it was the right result, of course, because obviously, if a if a if a defendant succeeds on an anti slap motion, that defendant is entitled to fees, and so the court was concerned Well, if the case is dismissed, doesn't that cut off the defendants right to slap fees, and the defendant is entitled to slap fees. So we can't let the case be dismissed. But slap fees are a collateral matter they can, that motion can be filed and heard and slap fees orders, ordered whether or not the case is dismissed. So I thought it was strange that the court thought it had to prevent the dismissal at all costs. And Professor Shawn Martin says on his blog that the holding to HIMS, quote seems fairly revolutionary. And Professor Martin links to quote tons of cases that, in fact got dismissed while the matter was on appeal. So he thinks that this is a this is a outlier, holding, but it is a published holding. And so now we have at least one published Court of Appeal opinion that says that a plaintiff may not dismiss the case when the appeal is pending. And as listeners will know, whenever there's a conflict between published Court of Appeal opinions, no matter how lopsided trial courts may exercise discretion under auto equity sales, Inc, versus Superior Court, that's a Supreme Court case, to choose between either side of such a conflict. Well, and

Jeff Lewis  13:08
in here, it'd be the clerk exercising discretion, because nine times out of 10 It's a clerk, not a court that is deciding whether or not to accept a request for dismissal and enter it.

Tim Kowal  13:17
Yeah, yeah, that's, that's true. I don't know how you'd be able to would are litigants able to communicate that to the clerk in some way?

Jeff Lewis  13:26
You have unfettered discretion here.

Tim Kowal  13:28
Yeah. What about you, Jeff, do you that opinion strike you as strange? Do you agree with that rule that that rule express that the appellate stay prevents a plaintiff from dismissing a complaint pending the appeal of an anti slap order?

Jeff Lewis  13:46
Now, in this particular case, it seemed like the this ruling regarding the trial court's ability to entertain a dismissal pending appeal was not necessary to reach the result, given existing law that these on slabs are not really part of the main issue under appeal. And so yeah, I don't understand why the court went this far didn't have to, and I don't know, but I suspect one party or an amicus group might seek review the California Supreme Court because this seems to muddy up the waters quite a

Tim Kowal  14:18
bit. Yeah, I think so too. I did have another. Another opinion on this case, kind of, on the other hand point of view that I liked that the court took the appellate stay seriously. Ordinarily, it's the appellants responsibility to take action before the trial court does something that would tend to render the appeal mood, such as seeking filing a petition for supersedeas in the Court of Appeal, but the curtain maritime case is the first case I've seen that rendered a trial court action void for what it deemed to be violating the appellate stay and without the appellant having to do anything to get the court to take that step. Yeah. So here's and then here's my final case I wanted to talk about that kind of juxtaposes with the curtain maritime case. That is art works studio and classroom LLC versus Leonean. It's a another second district case, non published case it was from April of 2022. This is another appeal of an anti slap order. And the plaintiff, there was a commercial tenant, the tenant claimed that there was at least minimal merit for its interpretation of some estoppel certificates that the landlord had had prepared. And the tenant alleged that the estoppel certificates to the buyer of this building had misstated the terms of the tenants lease. But while the slap appeal was pending, the trial court went ahead with the landlord's UD action and entered an eviction judgment in favor of the landlord. And then the judgment in that UD judgment. It rejected the tenants interpretation of those estoppel certificates, which were in turn at the center of the pending slap appeal. So you can guess what the landlord did next, had filed a motion to dismiss the appeal in that in that slap appealed, based on res judicata. It said that, well, this issue has already been decided in the UD judgment, so no need to go forward with this anti slap appeal. And the Court of Appeal bought it it said, because these issues were fully litigated in the unlawful detainer action, appellant is barred from RE litigating these issues. The first thing that struck me is that it didn't seem like quite the same issue whether the tenants interpretation was correct, which was the ultimate issue in the UD action was different from whether the whether the tenants interpretation had minimal merit, which is the touchstone for prong two of the anti slap analysis. But beyond that, if the if the curtain maritime holding is correct, the holding we just discussed that said that that the appeal and what action should stay related actions then shouldn't the appellate stay have stayed the UD case from going forward? And doesn't hurt and maritime make the UD judgment void? Because it would tend to moot the appeal, which is what happened here.

Jeff Lewis  17:15
Let me ask you, though, wouldn't that stabby tenant or savvy tenants lawyer and we know some of those wouldn't a savvy tenants lawyer use this process to delay proceedings by arguing? Oh, the pendency of the appeal. We can't proceed on the UD until this appeals resolved. UD actions are supposed to be summary they're supposed to happen lightning fast and appeals are not.

Tim Kowal  17:39
Yeah. On the other hand, wouldn't savvy landlords use the UD process to short circuit what are otherwise legitimate complex contract disputes and say, Well, you know, let's just flush all of these contractual issues under the bridge and just adjudicate the summary proceeding under a UD action, and then that renders the entire upstairs lawsuit as they call it. The unlimited civil lawsuit moot. Yeah, yeah. It's, it could be sharp practices on on either side. I think in this in this case, you know, summary, the summary, Proceedings of UD action, this is not not my area, but I thought that was typically more for maybe a presidential. That's what I thought, but maybe I'm not right. I, you know, I don't do

Jeff Lewis  18:23
a lot of this. But in terms of possession, I think they should possession is summary. Whether it's residential or commercial, but I don't know. Maybe we need Fran back on here.

Tim Kowal  18:30
Yeah. No, let's put up put on an APB to Fran to address these vexing issues. Alright, so those are the cases that I had to address today.

Jeff Lewis  18:40
All right. And then going down to our news and tidbits there was big news in terms of the CDC mask mandate, if you want to talk about that,

Tim Kowal  18:48
Tim. Yeah, you sent me this. I guess it's it's all over the news this week. We're recording this on April 19 2022. I think this just yesterday, CDC mask mandate for travelers has been struck down by Judge Katherine Kimball Mozelle of the United States District Court out of Florida. The this was the Biden administration's mask mandates mandate for airplanes and other public transport methods. Judge Mozelle said the mandate exceeded the statutory authority of the US Centers for Disease Control and Prevention because its implementation violated administrative law. So this was a question that you and I have been kind of talking about back and forth. This is one judge Jeff, one judge out of 90 Something districts across the country 12 circuits should one judge have the authority to enjoin the entire federal government nationwide? Yeah,

Jeff Lewis  19:41
yeah. It's a lot of power. And and think about this way. Imagine in a in a contested national presidential election, having a judge let's say from California, versus a judge from Florida, decided an issue of whether or not certain, you know, votes were validly cast in a national election. I mean, crazy. This amount of power. Yeah.

Tim Kowal  20:00
Yeah, I mean, I understand the reason for it. But here's, I saw this just recently come across the wires that David lat in his blog talked about Chief Judge Jeffrey Sutton of the Sixth Circuit just sounded off about these nationwide injunctions. And here's what he's what he said. Well, Chief Judge Sutton he recently spoke out about so called nationwide or universal injunctions. This is David lats characterization here, in which a single federal judge issues an order purporting to block the federal government from enforcing a law or regulation anywhere against anyone. Judge Sutton complain that these injury conjunctions, quote, have not been good for the rule of law, and quote, the sooner they are confined to discrete settings or eliminated root and branch the better and quote, and in judge Sutton's concurring opinion in Arizona versus Biden in which the Sixth Circuit stayed a district court's injunction blocking a Department of Homeland Security Policy, setting enforcement policies when making apprehensions and removals, Chief Judge Sutton wrote as follows. Call them what you will nationwide injunctions or universal remedies, they seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward non parties in the case. Such injunctions create practical problems to the effect of them is to prevent the national government from enforcing a rule or executive order without potentially having to prevail in all 94 district courts and all 12 regional courts of appeals. They incentivize foreign forum shopping. They short circuit the decision making benefits of having different courts weigh in on vexing questions of law, and allowing the best ideas to percolate to the top. They lead to rushes to judgment. And all of this loads more and more carriage on the emergency dockets of the federal courts, unnecessary feature of any hierarchical court system, but one design for occasional not incessant demands for relief and quote. What are your thoughts on Judge Sutton's criticisms of nationwide injunctions? Jeff?

Jeff Lewis  22:11
Yeah, I know it's it's concerning and especially people racing to file lawsuits first to be first in a forum or to their liking. And I wonder if you have one judge determining a rule or holding our entire Nathan, this chill the development of circuits splits such that SCOTUS is unable or delayed and picking an issue up to SCOTUS, because one order one judge has been issued? It's interesting issue.

Tim Kowal  22:39
Yeah, yeah. I think that I think Judge Sutton would agree with you there. And then just to circle back to bring this into the subject of mootness that we were talking about earlier. Maybe these nationwide injunctions are necessary, at least in some occasions to prevent a case from becoming moot. And besides, plaintiffs should not have to wait years and years and years until SCOTUS decides it's satisfied that the issues have been sufficiently developed in the various circuit courts before taking up an issue. So maybe, maybe if this is really a problem, all these nationwide injunctions, you know, it would be I take Chief Judge Sutton's point that it's nice to have the issues fully developed in various different courts, you have a whole buffet of different opinions on intakes on an issue to choose from. But some issues you just don't have that luxury to wait, maybe the maybe the Supreme Court should consider taking some of these issues up on an expedited basis, and maybe a nationwide injunction is a way to get the Supreme Court's attention.

Jeff Lewis  23:42
Yeah, yeah. I'm glad I'm a California lawyer with primary practice and state courts. So I'm going to deal with these additional complexities.

Tim Kowal  23:48
Yeah. All right, Jeff, there was there's one other case that had come up. But speaking of injunctions, it was concerning the UNRWA act here in California. Much tell our listeners just a little bit about that.

Jeff Lewis  24:02
Alright, look, I've been practicing 26 years. And every few years, a new scam that pops up where lawyers who don't have real clients are real claims, develop a whole practice area, or finally, Phantom claims based on phantom clients and making a tremendous amount of money. And these lawsuits are usually filed in volume without a real client, but actually a lawyer calling the shots. So in 2003, there was the Trevor Law Group that abused California's unfair competition law. This is the professions code section 17 200, targeting small businesses with Shakedown lawsuits, it's settled for dollars and there'll be 1000s of these lawsuits that never went to trial. To California ag filed a lawsuit against the trouble Law Group shut that down. More recently, there was the prenda Law Group, which is a group of attorneys who filed Shakedown lawsuits against people who downloaded porn movies off the internet that ended with a A 2013 Federal Court ruling by lawyers are engaged in criminal racketeering, in a very entertaining opinion written with Star Trek themes and references by Judge Otis. Right. Local federal judge. I'll put a link to that opinion in our show notes. But in the same vein as the Tribal Law Group in the prenda Law Group this month, we had Los Angeles and San Francisco TAS office team up to file a lawsuit against Potter, Andy, a law firm for filing meritless lawsuits to enforce the ADEA. And the problem with Potter Handys lawsuits according to the DA is that Palmer Handys, a lawyer represents parties that have likely never actually even attempted to visit this visit the business that is being sued for suppose an ABA violation. And that's a requirement for ADA lawsuits to move forward to give a plaintiff standing. So for example, according to this lawsuit filed by the LA and San Francisco TAS office, one of the clients have said they visited a business that was actually closed during COVID. So there was not possible to establish standing. And look, it's interesting lawsuit when you read it, you see examples of really, really glaring and I'm all for lawsuits like this, but meaning that the velocity to crack down on Potter handy, but I do sometimes get nervous whenever lawyers are sued for filing lawsuits, there is a chilling effect there to think well, if I'm filing what I think is a meritorious lawsuit today will be LA and San Francisco DHS office decide tomorrow. It's not meritorious. And I also wonder whether Palmer handy might respond to this combined la San Francisco lawsuit with an anti slap motion, arguing that its conduct is both protected under Section 425 116, which is the anti slap law and privilege under Civil Code section 47. What do you think about this Ponor? Handy lawsuit?

Tim Kowal  26:47
Yeah, I thought that, you know, I've, I've seen these types of lawsuits, my entire practice here and there. And normally they are they don't seem to have risen to quite the same scale that the potter Handi venture has attempted here. And there's they've got a whole team of professional plaintiffs who each visited allegedly, hundreds and hundreds of establishments. That was the other you mentioned one example where the establishment was closed. So obviously, that was that was a false allegation. But they but the DA also raised kind of a statistical analysis that come on, there's no way that that these these professional plaintiffs visited this number of establishments in the shortest time period. So I yeah, I I'm happy to see a crack down on this. This is you know, they're the law is a profession. It's not meant to be a business venture. And and I think maybe this is an example where we're the DEA is looking to show that there's a line somewhere between running a profession and running a business and the potter handy group maybe has crossed the line. I think that's that's kind of the theme of the DEA lawsuit here.

Jeff Lewis  27:59
And hey, one more case I want to talk about before we go is you've obviously heard of the abbreviation slapped strategic lawsuit against public participation. That's something we talk about all the time, the anti slap, which is California's law to deter slaps frivolous lawsuits, I noticed a new Twitter term on Twitter that I'm going to steal shamelessly, and I'm gonna introduce on this podcast, I didn't come up with it. I read it on Twitter, it's called smack, SM a CC, a strategic motion against credible claims. I don't know who came up with it. But it's a great term. A smack occurs when an anti slap motion and related discovery stays and appeals is used to slow down the progress of a legitimate claim, and bog that case down in procedure and process so that it can't get anywhere. And this past week, there's an example of a smack in Division six of the second district, the Second District Court of Appeal in Los Angeles. It's the clarity consulting case, I'll link to this in our show notes. This was a published decision case represents a stark warning for lawyers who misuse the anti flat motion on context. The opinions starts with this. I would like to be the appellate and receives an opinion that starts with this. This appeal illustrates an attorney's misuse of the anti slap statute. However, however efficacious the anti slap procedure may be in the right case, it could be badly abused in the wrong one, resulting in substantial costs and prejudicial delay. This is the wrong case. In the the clarity consulting court went on to not only affirm $3,000 and sanctions that were issued below, but added on another $20,000 in sanctions for filing a frivolous appeal and ends with a warning about trial lawyers who handle their own appeals to required reading I think for anyone who's considering filing a slap or filing an appeal of a slap order to make sure you really done your homework and you're not filing a frivolous appeal for improper reasons.

Tim Kowal  29:57
Yeah, it's hard enough to get to get it attorneys fees up on an unsuccessful slap movement. So that's what happened here and then but the defendant not leaving not leaving well enough alone went forward and got hit with $20,000. More. That's a That's a tough pill to swallow swallow.

Jeff Lewis  30:15
I'd like to think that appellate specialist brought in as CO counsel would slow the roll there and prevent that appeal from being filed.

Tim Kowal  30:22 
A little bit of objectivity is always a good thing.

Jeff Lewis  30:26
All right, well, hey, I know this was a short one, but I think that wraps up this episode.

Tim Kowal  30:30 
If you have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  30:42
All right, see you next time.

Announcer  30:44 
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 a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.

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