After interviewing dozens of guests on the California Appellate Law Podcast, Jeff Lewis and I recapped some of the best briefing tips from 2022. In this clip we cover:

• 😱Judges’ three key fears when deciding cases (via Ross Guberman)
• 🗡️Kill your darlings—find the cleverest line in your brief, and delete it (via Ross Guberman)
• 🏔️Litigation is an expedition—you have to bring the judge along the journey with you. You can’t magically teleport your reader to the destination by way of adverbs. (Via Justice Lambden)
• 📜It’s the best argument that wins—not the best citation. (Via Justice Lambden)

Watch the clip here.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other items discussed in the episode:

• Perry v. Kia Motors
• Defense not asserted in a pretrial order deemed forfeited in split 9th Cir. decision ( Ivie v. Astrazenica Pharmaceuticals LP)
• What is actual malice? Maxine Waters SLAPP case
• Lack of record leads affirmance by memorandum decision
• Order was file-stamped, but did not attach the POS, so it did not trigger the 60-day deadline to appeal
• New snitch rule proposal as the state bar. Cal Bar. LA Times. Cal Bar agenda item.
• cheesy case.
• Senate Judiciary Committee Chairman Dick Durbin, D-Ill., and a bipartisan group of senators reintroduced legislation Thursday to allow live television coverage of U.S. Supreme Court proceedings. Via Ben Shatz.
• Eighty percent of Supreme Court arguments went over their allotted time this term, for an average of nearly 30 additional minutes. Via Ben Shatz.
• Fed Stats indicates the median time for civil appeals in the 9th Circuit is 12.6 months. Via Ben Shatz.
• Bar Exam pass rate = 32.5%. Via Ben Shatz.
• Federal courts to wind down remote access as US COVID emergency ends. (Reuters.)
• Third Circuit’s rule requiring filings be submitted by 5 pm on the due date. Via Appellate Advocacy blog.
• “Hot mess.”
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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

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

Animal harm can be difficult to adjudicate in people courts. But the cat owner in Berry v. Frazier (D1d3 May 15, 2023 No. A164168) --- Cal.Rptr.3d --- (2023 WL 3445168), who was allegedly defrauded by her vet into a “horrific and painful” form of euthanasia for her pet, was able to reverse the order dismissing her claims.

Berry knew her pet was on the decline and decided to have it euthanized peacefully in her arms at her home before waiting nature to take its long and painful course. The vet assured her that this could be done, but when the time came, the vet told her he couldn’t place the catheter, and recommended a “heart stick” injection of fluid through the chest directly into her cat’s heart.

Berry thought that seemed rash. Her pet was not suffering, and other measures might be more reasonable. But the vet urged “its the right thing” and the pet “won’t feel a thing.”

After it was over and Berry had a chance to research the “heart stick” method, she learned it is considered “inhumane,” even the Legislature has made its use on conscious animal illegal “ ‘unless the animal is heavily sedated or anesthetized in a humane manner, or comatose, or unless, in light of all the relevant circumstances, the procedure is justifiable.’ ” (Pen. Code, § 597u, subd. (a)(2),

The trial court threw out Berry’s claims, but the First District Court of Appeal reversed.

Order sustaining a demurrer is not appealable but the combination of that order and voluntary dismissal was appealable.

First, the court had to determine whether there was an appealable order. Ordinarily, an order sustaining a demurrer is not an appealable order. Here, the order only knocked out most but not all of Berry’s claims.

So Berry voluntarily dismissed her other claims. But that didn’t work either, because a plaintiff who voluntarily dismisses without prejudice has no standing to appeal the order. (El Dorado Irrigation Dist. v. State Water Resources Control Bd. (2006) 142 Cal.App.4th 937, 977 [“ ‘[a] party who is not aggrieved by an order or judgment has no standing to attack it on appeal’ ”].)

So what was the appealable order? Trick question: neither the order sustaining the demurrer was appealable, nor the dismissal, but both combined:

“Together, the trial court's “order sustaining the demurrers without leave to amend, combined with the dismissal of the action, had the legal effect of a final, appealable judgment.” (Gutkin v. University of Southern California (2002) 101 Cal.App.4th 967, 974.)”

Allegations of false statements by vet can be actionable.

As for the merits, the court held that Berry had alleged explicit affirmative representations made by the vet concerning the use of an intracardiac injection – that the procedure would be quick and painless – that any animal owner would want to know before consenting to the procedure. So the claims for fraud, trespass to chattels, and intentional infliction of emotional distress could go forward.

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

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

Here are some legal trends and trivia from this week:

• Justice Jackson, still in first year on SCOTUS, pens solo dissent in labor case Glacier Northwest v. International Brotherhood of Teamsters. First time a first-termer has penned a solo dissent since Justice Thomas in 1991. (Via Adam Feldman)
• Manson follower Leslie Van Houten, who took part in murders, is entitled to parole after spending more than 50 years behind bars, a California appeals court ruled, reversing Gov. Gavin Newsom’s decision to deny her release. (LA Times)
• Court of Appeal holds Ventura could get rid of statute of Father Serra, rejecting historical and environmental challenges. (MetNews) (The court may be right. But for the reasons I wrote in an essay a few years ago, “Why did Constantinople get the works? That’s nobody’s business but…”, the city’s decision is unfortunate.)
• Cal. Supreme Court announces it will hear argument on June 27 on the high-profile, long-pending voting rights case, Pico Neighborhood Association v. City of Santa Monica, involving the issue: “What must a plaintiff prove in order to establish vote dilution under the California Voting Rights Act?” (Via David Ettinger.)
• Ninth Circuit says order disqualifying all prosecutors in the district is unjustified as an “extreme remedy” where only one AUSA’s conduct was questioned. (MetNews)
• No right for a criminal defendant to be present at the jury verdict, despite clear constitutional mandate, Court of Appeal holds. (Via Shaun Martin)
• Cal. Supreme Court scores high in diversity study. (David Ettinger)

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

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

Has your client decided to enforce the judgment before the appeal is over? Beware, says collection attorney Joseph Chora—after losing an appeal, a judgment creditor is liable in restitution. (The plaintiff in Dr. Leevil LLC v. Westlake Health Care Ctr. was liable for $5.7 million, as written up here: https://lnkd.in/geJWrrin.)

But on the flipside, judgment creditors should be on the lookout for grounds to file a disentitlement motion, which are supported when the appellant refuses to comply with court orders—including judgment enforcement discovery.

(This video clip is from episode 46 of the California Appellate Law Podcast. Listen to the full episode here: https://lnkd.in/gq_9_u35.)

Watch the clip here.

This is a clip from episode 46 of the California Appellate Law Podcast. Listen to the full episode here.

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

A will must be signed by two witnesses. The decedent didn’t do that in Coronado v. Berger (D2d2 May 25, 2023 No. B321347) --- Cal.Rptr. 3d --- (2023 WL 3675787). But there is an exception if the petitioner proves, by clear and convincing evidence, that the decedent intended the document as a will. And here, the letter identified the beneficiary and executor, was written on letterhead and recited the testator’s sound mind and good health, along with the testator’s full name, address, and social security number. And the testator emailed the beneficiary about it the next day.

The probate court didn’t buy it, probably because the testator and beneficiary were only romantically involved for a short time and then broke up a short time later. But the Court of Appeal reversed in an opinion that basically asks, “what more could you ask for?” The probate court pointed to the fact that the relationship between the testator (a trans woman) and the beneficiary (a woman) was only six-months old at the time and had fallen apart a few months later. But “it is not for the courts to act in a parens patriae role over competent adults by second-guessing the wisdom of their personal decisions.”

And what happens after a will is executed is not probative of the testator’s intent at the time of execution.

Takeaway: What is noteworthy about this case is that the petitioner had a heavy burden in the probate court, making her burden in the appellate court all-but-impossible. “[W]e can reverse only if we conclude that the evidence below as a matter of law compels a finding by clear and convincing evidence” that the testator intended the letter as a will.

And yet she succeeded. The two takeaways from this published opinion reversing on a factual finding on the issue of testamentary intent are (1) the wisdom of the bequest is irrelevant; and (2) acts subsequent to execution are irrelevant. If a probate court relies solely on irrelevant evidence like this, and the balance of the evidence supports a testamentary intent, then maybe the court will reverse.

But it’s still a long shot.

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

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

ADF attorney Chris Schandevel explains how he got the opportunity to orally argue dozens of cases in multiple appellate courts including state supreme courts in just a decade of practice. We also discuss:

👩‍⚖️Does oral argument make a different? Can amicus briefs make a difference? Yes, and one case proves it: Chris talk about Kligler v. Attorney General in the Massachusetts Supreme Judicial Court, where Chris’s amicus brief and oral argument made the difference.

📃Even a failed petition for certiorari makes a difference: ADF’s petition in Hoggard v. Rhodes asked SCOTUS to review the extension of qualified-immunity even to campus police officers’ non-urgent action restricting free speech. SCOTUS declined, but Justice Thomas wrote a statement agreeing with ADF’s argument, and that statement has been cited in nearly 100 decisions since then.

🕔Will the 3rd Circuit’s new 5:00 p.m. filing deadline help or hurt work/life balance? A perspective from a public-interest firm where most attorneys leave early to put kids to bed… but then log back in for some night filings.

✍Top 10 Briefing Myths! Get ready to be offended if you still use Times New Roman and two spaces after a period! Please send complaints (in Century Schoolbook font) to Chris Schandevel.

Chris Schandevel’s biography, and LinkedIn profile.

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

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

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

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

Other items discussed in the episode:

• Turner v. Commonwealth
• Hoggard v. Rhodes, statement of Thomas, J., respecting denial of certiorari.
• Chris Schandevel’s portion of the oral argument in Kligler v. Attorney General in the Massachusetts Supreme Judicial Court: https://www.screencast.com/t/M4Si2IMybun
• Link to the full argument: https://boston.suffolk.edu/sjc/pop.php?csnum=SJC_13194
• Link to the SJC’s opinion: https://casetext.com/case/kligler-v-healy
• One space after punctuation is the accepted rule for professional typographers and the consensus of typography authorities.
• Never use ALL CAPS or Initial Caps for point headings. Initial caps tell the reader they’re reading a topical phrase, which is confusing if you’re writing your point headings in complete sentences (as you should).
• Microsoft Word double-spacing adds an extra 15% of white space.
• Regularly start sentences with conjunctions like *and*, but, and so.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Transcript:

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

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

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

Jeff Lewis  0:34 
Yeah, if you find it unhelpful, recommend it to a spouse as a natural sleep remedy. Before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast casetext is a legal technology company that has developed AI backed tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to American law 200 firms and in house legal departments. In March 2023, casetext launched co counsel, the world's first AI legal assistant, who will co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of our podcasts enjoy a discount on casetext basic research at casetext.com/calp. That's casetext.com/calp. Now,

Tim Kowal  1:17 
Jeff, both both you and I are private practitioners, all of our clients, you know, we expect to get paid in cash money by our clients, and our clients tend to seek cash remedies in at least our business litigation cases of our last guest with our last guest. We talked about litigating important constitutional issues and public interest issues. And I thought we'd carry on that discussion. And we're privileged today to have Chris Chanda Vale to the show to talk more about what it's like to litigate an appeal cases at some of the highest levels in state and federal courts. cristiana, Val serves as Senior Counsel on Alliance Defending freedoms appellate advocacy team as a constitutional appellate litigator, he represents ADF clients of all stripes on appeal, preserving lower court victories and seeking to overturn unjust results since joining ADF. Four years ago, Chris has briefed and argued cases in various circuit appellate courts and State Supreme Courts. He was on the team of attorneys who successfully represented the Thomas Moore Law Center in the US Supreme Court and he regularly represents clients in friend of the court briefs. We would call that amicus briefs, but we don't know how to pronounce that were Jeff. amicus briefs filed in state and federal appellate courts and in the US Supreme Court before joining ATF, Chris served as an assistant attorney general in the criminal appeal section at the Office of the Attorney General of Virginia where he helped argued helped brief and argue dozens of appeals in both the Virginia Court of Appeals and the Virginia Supreme Court. And before that, Chris clerked for the honorable Stephen R McCullough of the Virginia Court of Appeals. Chris, welcome to the podcast. Thanks for joining us.

Chris Schandevel  2:52
Thanks, Tim. Thanks, Jeff. It is a real thrill and treat to get to be on with you guys and kind of nerd out on some appellate law issues. I couldn't I honestly couldn't think of a more fun way to spend this Tuesday afternoon.

Tim Kowal  3:04
Yeah, well, we are in strange breed, Chris. But we are pleased and also excited to talk about some of some of your experiences, which are very exciting to talk about with your Supreme Court experience. I watched your oral argument in the Massachusetts Supreme Court. We'll talk about that a little bit later. But just to get to know a little bit more about you personally, reading from your bio, it seems like you may have crossed several things off of your career bucket list already. Is that true? And what do you have in store?

Chris Schandevel  3:31
Sure I have. And to be honest, it wasn't a career bucket list when I set out to to accomplish what I have. I went to law school hoping to do constitutional litigation of some sort, but not really thinking I would end up doing appeals. I had friends in law school that were you know, they'd done speech and debate in college. They were great professional debaters. I didn't even know what Robert's Rules was. So I definitely, you know, didn't try out for moot court didn't do any of those things I kind of assumed that it was for for the other other classmates of mine, and then ended up getting a clerkship on the Virginia Court of Appeals, as you mentioned, straight out of law school that allowed me to see the practice of law at the appellate level and really fell in love with the way that the law is litigated at that level. That led to an opportunity, as you mentioned in the state attorney general's office doing Criminal Appeals, which I also really fell in love with getting to argue 60 Court of Appeals arguments in the state court of appeals and 14 in the state Supreme Court. And my first five years of practice as an attorney is just very rare from what I'm told, and was just so many incredible learning opportunities. I just really loved it and got a lot out of that and that led to where I am now. ADF really doing my dream job doing appeals and areas of law that I'm really passionate about and interested in.

Tim Kowal  4:52
Yeah, I had a question. Did you ever you know, I mentioned at the top that both Jeff and I, you know do do private practice. We are in awe of have attorneys like yourself who do public interest work? It's something that we admire from afar. Did you ever consider doing private practice? Or did you always want to do public interest work and government work?

Chris Schandevel  5:10
So I always wanted to do public interest work and government work going into law school, in law school, looking at the amount of law school debt that was going to face me, once I graduated, I kind of did my best to convince myself that maybe a summer at a law firm and maybe a couple years at a law firm, wouldn't be too bad, you know, make some money, pay off the debt. I'm not sure I ever really convinced myself that I wanted to do that. And I certainly didn't convince my big law interviewers, when they were interviewing me that I wanted to do that, because I didn't I did on on campus interviews, got one call back, but no, no offers to go to do a summer with a law firm my second summer. So that's what led me to the unpaid internship at the Virginia AGs office. And they told me, you know, this is not an opportunity to get paid. Number one, it's not an opportunity to get a job straight out of law school, because they weren't doing a lot of hiring straight out of law school. So they said, it's really a chance to get some good experience, meet some people make some connections. And I ended up working with an attorney while I was there on a giant doc review project in the basement of the governor's building there in Richmond, Virginia. And at the start of the week, it was me and 10 other interns working on that project and a couple of attorneys, by the end of it, everyone had dropped off except for me, and one attorney who kind of hung in to the bitter end, and made a good connection with him good relationship and found out at the end of it. Little did I know the entire week we spent working together he had just been appointed to be on the Virginia Court of Appeals. And this is while I am submitting my clerkship applications and getting rejection after rejection. And so quickly reached out to him asked if I could apply and he was very gracious, allow me to do that, and then ended up working for him. So that's kind of what started the process. But yeah, I have never, I've never had to build a client. In my nine years of practice. I wouldn't even know where to be where to begin with that.

Tim Kowal  6:59 
Well, you you touched on something that I did want to ask you about along that vein, about you know, you're coming out of law school, you're looking at at law school debt and looking at some ways how do I pay this off? How do I maybe you know, own a home and start a family and things like that, that we all start that we all think about when we're starting off on our career. And it reminded me that, that when the UC, the University of California system here started a law school in Irvine about 10 years ago or so. And I remember their first the first class maybe the first couple of classes, they didn't charge tuition of their students. And I remember that the dean at the time, Erwin chemerinsky was very proud of the number of of their law graduates who are going off onto careers and public interest law. And I thought, well, that's that's easy to do when you don't have any tuition loans to pay off. Right, right. Right. Most of us have, you know, an enormous loans to pay off and how big a factor is, is money. It was it was a factor, obviously, for you, but you were able to overcome it is that how are you able to overcome it? And do you see more good and evil, good hearted attorneys who would like to do public interest law but are kind of forced into the slot of doing billable work? Sure. So

Chris Schandevel  8:07 
when I went to law school, I went to UVA for law school. And you know, a lot of folks go to law school and get a law scholarship and managed to find ways to limit their costs in law school, I got into UVA, and was honestly just happy to be there. So I did not get any scholarship help. So in speaking with, you know, friends and folks who had been through law school themselves, and was told there's really a couple ways to deal with law school debt, there's the big firm route and kind of live below your means for few years, and then pay the debt down that way. But if you want to go public interest, there is the Public Service Loan Forgiveness path. And so I first thought I would go the firm route and pay it down that way, when that didn't work out, I started pursuing the Public Service Loan Forgiveness path. And the way the system works right now is you make your payments for 10 years, and they're kind of adjusted based on your meager government salary. So you don't pay quite as much per month as you would if you were if you're working at a firm, and then to the 10 years go by and you know, you're kind of living on a hope and a prayer that Congress is going to pull the rug out from under you at some point in those 10 years. But I'm just now coming up on my 10 years. And so knock on wood, all so far has gone well. So hoping to have having given back through the public interest work that I've been able to do and hoping to have those loans forgiven here shortly. So that's that's been the path that I took.

Tim Kowal  9:22 
Yeah, well, and it's enabled you to have a very successful career so far litigating a lot of high profile constitutionally significant cases, has all that left you enough time to for a personal life, and what are some of your favorite ways to spend your personal time away from work?

Chris Schandevel  9:39
It has for sure. So, I mean, so the when you're working in government, one thing that you learn pretty quickly is that the reward for good work tends to be more work. So I stayed pretty busy working in at the AGs office, but I did have the flexibility and the freedom that you know, no one was, you know there at 530 Making sure you were still chained to your desk cranking out briefs and memos, you really had the flexibility from outside those normal business hours to go home, have dinner with the family, and maybe do some more work in the evening, once the family has gone to bed if you need to. And that's really carry over to the position I'm at now with Alliance Defending Freedom. ADF is very family friendly. Their position is that there's really no more important work that a mom or dad can do than the work that you're doing that we're doing in the home. So there really is a big emphasis placed on you know, getting home for family dinner, that you really shouldn't have to miss a family dinner. And so our office actually clears out around 530, every afternoon, evening, and everyone goes home and spend time with the family. Now you might get a flurry of emails between 10pm and midnight from attorneys logging back on once the kids are in bed. And that's something that I've done my share of but yeah, so I have four kids, their ages 642 and five months, a daughter and three boys. And so that's how I spend the vast majority of my time outside of work is just playing floor hockey with them in the living room, eating dinners together going on trips, etc. They're they they really keep me grounded and bring a lot of joy to my life.

Tim Kowal  11:11 
Yep. Yeah, they will definitely keep you grounded and keep you humble. Yes, yeah. Well, you mentioned about that flurry of emails, a flurry of activity, you know, after hours after the app to after the kids are to bed, and some of the attorneys log back on and do some of their filings before the 1159 deadline. And that brought to mind the news out of the Third Circuit that you may have heard about that, they're going to start implementing a 5pm cap on filing. So if a filing is due on January 2, that means 5pm on January 2, not 1159. On January 2, how do you how do you think that will change habits and customs at your office if if attorneys are logging off at 530 Knowing that, okay, I'm gonna go home, have dinner with the wife and kids. And I'll just get that filing finished up and filed at 1010 o'clock after the kids are in bed.

Chris Schandevel  11:59
Yeah, I saw that. And I honestly I wasn't sure how to feel about it. My initial thought was, oh, great. If my filing deadline is bumped back by however many hours, that is to 5pm I have to pull the all nighter the night before I otherwise would have stayed up late to get that brief done. So it's just gonna mean a later night, earlier in the week for me. But as I thought about it, and kind of read some of the commentary around, I think the genuine motivation behind it was to allow attorneys to have a little more work life balance to be able to check out at 5pm. And know that the brief was done, the brief was filed, and it's time to go home and spend time with the family and have that life outside of work. So if it can really have that effect, then then perhaps it'll end up being a good thing in terms of work life balance, if it just had this has the effect of kind of squeezing everything earlier in the week earlier before the filing deadline, it maybe won't have that maybe it'll backfire. So I imagine they'll let it go for a good year or so and see how things play out. And I'm sure other courts are kind of watching to see to see what happens there. And the third circuit.

Tim Kowal  13:02 
Yeah, so let's take a wait and see approach to see if the stated goal of that new rule, which is to help foster a better work life balance if if that goal is actually furthered by this initiative, or new way? Yeah. Now, when we talked offline, you had mentioned about some of your your experiences with in public interest work and how you know, you you have been blessed and privileged to always I was feel that the cause that you're representing is something that you're personally aligned with. You know, that's that's another difference that Jeff and I may have with, with public interest lawyers that, you know, sometimes, you know, the the first thing we do want to make sure that our client has has a legitimate claim. And then the next thing, we want to make sure that they can pay their bills. But you know, whether we align with our cause is, you know, is a distant consideration. Sometimes it would be nice if we could always make that line up. But it doesn't always are your clients always in the right, as far as you're concerned?

Chris Schandevel  13:59 
I would say that well, first of all, there are there are no perfect angels in the world. We're all flawed human beings, right? So we all have our faults, myself included. But just like I said earlier, I've never had to build a client in my nine years of practice. I've also never had a client had a case where I felt like the client that I was representing was morally in the wrong. I've always felt like the issues that are on the table. The case it's being litigated. I have been on the side of good and my clients have been in the right and that's really a special and unique privilege. I mean, you say so I did before law school back in back in high school. I did a lot of fast food work. I was an W Long John Silver's guy and did a lot of manning the drive thru and talking to customers. And you know, the old saying is the customer's always right, because they're the customer right? And I think you have paying clients there's probably I don't know, you guys can speak to this more than I can but it's probably the extent to which the client is not alright, always right but the client is Right, because they're the client, and you need to do what's in the best interest of the client. Whereas I feel like in public interest work. And the work that I've been able to do, more often than not the client is the client, because the client is right. And that's a unique approach to practicing law and relationships with our clients where I feel like not only do I have the duty to the client that I would have, you know, in, in the other case, as an attorney, but I also believe in the cause that the client is standing for and advocating for. And so that brings an extra incentive to really give it my all and speaking for them and advocating their cases.

Tim Kowal  15:35 
Yeah, yeah, that's right. That's, that reminds me of one of my favorite quotes that I've never been able to find if it's actually attributed. It's attributed to William Jennings Bryan, I'm not sure if he actually said it. But sounds like he might have said it. He said, when he was confronted with the question of, of the free silver movement, and he said, it was a candidate from Nebraska, and he said, well, the people of Nebraska are for free silver. So I'm for free silver, I'll look up the arguments later. Right. Right, right. Look, every cause needs to have an advocate, if if they don't have an advocate in the public forum, making advancing those advocates, you know, in legitimate ways, then you're gonna have a lot of people who have a legitimate opinion, but don't have a legitimate way to voice that opinion. And so that's, that's the purpose of lawyers and politicians, for that matter.

Jeff Lewis  16:19 
Yeah. Right. There's a there's a criminal defense lawyer, I can't remember his name, who's has a say it's one of my favorite sayings. He says, If I only defend the righteous, what tools will I have to defend them with? Yeah, yeah. And it comes up a lot in free speech cases, when you do anti slap work. Yes. People all the way on the left and all the way on the right and everywhere in between. And they all have free speech rights.

Chris Schandevel  16:38 
Yeah, absolutely. As a criminal attorney on the prosecution side, in the state AGs. Office for those five years, I was always so grateful for the defense attorneys on the other side, who cared about the work that they were doing, and did it well, because the odds of getting to a right and just outcome increased exponentially when the attorneys on both sides are doing their best work.

Jeff Lewis  16:58 
That must have been an incredible adjustment for you for five years, you're representing the state and the power of government and those deferential standards of review. And you're more often than not, I'm guessing the respondent? Yeah, meaning the other side of the appeal, going from that kind of practice a law to Oh, my God, I'm now the appellant and I'm looking to change the law rather than let's just say apply well settled principles. How did that adjustment play out for you?

Chris Schandevel  17:25
It was definitely an adjustment. I've gone back and looked through my my Westlaw sites to cases I litigated and I probably had an 85 to 90% win rate at the at the AGs office. But again, you know, if it's a criminal appeal, you know, we won below, right, we don't get to appeal when we lose a jury trial true. So that that definitely changes those deferential standards on appeal. So I only had, I probably litigated six or seven of those cases, were cases where I got to be the appellant at some point in the process, either a pre trial suppression ruling, or maybe we would lose in the intermediate appellate court and appeal that case up to the state Supreme Court. And to be honest, I always really love the challenge of being in the role of the appellant and having to, you know, persuade this panel of judges or justices that what happened below was was legal error and was incorrect, and that the court should reverse that because it does feel like feel it's a more satisfying when I feel like when you can kind of flip the script and get a result reversed. So one of my favorite experiences in court, um, there was a time I was arguing two cases in the Virginia Supreme Court back to back on the same morning, and we were the apple ease and the first one we say police and appellants here in Virginia. So is the Apollyon. The first and then the appellant. And the second and the first argument, the appellant used up all of her rebuttal time. And so I literally gave my 15 minute Spiel as the APA Lee went back to counsel table, gathered up my books, walked across the courtroom to the other counsel table, put them down, went right back to the podium and launched in to my argument as the appellant in the second case, but I loved the challenge of you know explaining to a court what you know where the error was and the decision below and trying to persuade the court to reverse that decision because that's that's what I think it's hard for judges to do sometimes because you know, judges at all levels are very bright and very smart and for the most part just trying to get the outcome right and for a group of judges to have to say that another judge erred and not just I would have decided differently but err to such an extent that is either an abuse of discretion or a legal error and has to be reversed and sent back. That can be a tall ask. So it was definitely a different challenge. When I was in that position that he is office it's been very different coming to ADF. We are we have been the the APA li are the appellant more often the APA li a lot of my cases and so that has been different but again, it's been it's been a fun challenge and I've really enjoyed it.

Tim Kowal  19:53
Interesting how common are issues of waiver and forfeiture record preservation in in your or with with PLF. And in your public interest in constitutional litigation, they come up all the time in the work that Jeff and I do. And we we report on those cases as they arise in California Ninth Circuit all the time. Are they as prevalent? Do they come up very often in your cases? And do you have for that reason, for the reason of making a record? Do you have appellate counsel, consulting with your trial attorneys to make sure that, hey, this is obviously going to go up to on appeal, and we need to make sure that we've got all these important issues preserved?

Chris Schandevel  20:30
Sure. So they're, they're definitely common. My I've been joking with my colleague recently, we both kind of feel like we came to ADF to do constitutional litigation on these big issues of free speech and religious freedom. And we've kind of turned into Article Three standing attorneys more recently, because so many of our cases are being litigated on standing grounds, either, you know, sometimes that's, you know, us as the plaintiffs kind of defending claims that we don't have standing or it's us on the on the defense side and making the argument of the plaintiff across the V from us, I didn't have standing to bring their claim. So we've certainly been litigating a lot of those threshold issues and arguments and our own cases. And the benefit of being at ATF, I mean, one of the neat things about the way that we're structured and the way that we do our work. And so we don't do a lot of cases like jury trials, bench trials, not many of our cases quite reached that level, they tend to get resolved motion to dismiss or summary judgment. But we do have a team of trial attorneys and our teams are kind of broken down into subject matter areas. So we'll have like a free speech team, we'll have like a conscience team that has like more religious freedom, academic freedom, parental rights, pro life team, and those are the trial level experts that litigate the case at that level. And then we've got the appellate team that will come in and kind of assist once the case gets up on appeal once we have a decision below. But those teams are really good at that having conversations with us appellate folks throughout the process, when potential issues of waiver issue preservation come up. And they're also very good. So ADF, for a long time, didn't have an appellate team. So the trial attorneys who had been litigating these cases at the trial level, for the longest time, were litigating their own appeals. So they got to be very good at at spotting issues that might, you know, preservation issues, waiver issues, and making sure that those were all covered before we got to the appellate level. So we're very blessed just to have the level expertise that we have across the team of attorneys here.

Jeff Lewis  22:22 
Yeah, let me Yeah. Let me ask you this. There was this actor by the name of Johnny Depp, who had a little lawsuit out there. Yeah. In around the same time that was going to trial, I think, Virginia amended its anti slap law to make the anti slap law a little more robust, not quite as robust as California, but more robust. I'm wondering, with the tightening up of the anti slap law in Virginia, have you seen an uptick in public interest lawsuits invoking the anti slap law terms of protecting free speech?

Chris Schandevel  22:51
Yeah, so I knew you were the anti slap guy, and I knew you were gonna go there with me. And I was worried about it, because I've not litigated an anti slap case, nor have I really seen it cropping up in our cases yet. I will say that we ADF has recently opened an office in Northern Virginia, like a second headquarters, more or less. We've had a lot of cases we've been litigating here in Virginia and Virginia State courts. So maybe I should be surprised that I haven't seen it crop up as an issue yet, or it's probably something good to have on my radar as an issue that might start to get litigated more often here in our courts. But yeah, not an issue I've seen yet in the in the cases that I've litigated.

Tim Kowal  23:29 
Got it. All right.

Let me go back, Chris, to I had a question for you about when you were in the AGs. Office, did you ever have maybe an inkling of your future self as the as the appellant rather than than the appellee kind of gives you a premonition that you know, maybe maybe there was some error here, maybe there is some error? Maybe, you know, this isn't the greatest case to go forward on. You know, we talked about how, you know, you've been privileged to feel like you were always on the side of the right side of the cars in your public interest work. Did the same go for your work as in the governor's in the Attorney General's Office? Did you always feel like, you know, yeah, we caught the bad guy, and we got to get the conviction to stand or did you ever have any misgivings when you were there? And what what can you do about it?

Chris Schandevel  24:15 
Oh, absolutely. And that's an important addendum to put on my answer earlier. So as I said, I've always felt like the client I was representing was morally in the right with the position that we're taking in court. Now, that doesn't mean that I always believed that the prosecution had been in the right at the trial level, because not all convictions are righteous and morally sound and there are errors that are that creep into the process. And so the thing that I loved about being at the Attorney General's Office on the prosecution side is that the goal wasn't just to get a win for the government. The goal wasn't just to get every conviction affirmed. The goal really was to do justice. And that was preached from the top down. And so as an attorney litigating these these these Criminal Appeals and then also litigating habeas corpus cases, I knew from my superiors that if I found an error in the record that had properly preserved, properly raised and litigated that I had the ability to write a memo to my superiors and say, You know what, I think we need to confess error here. I think we did get this wrong in the trial court. And we need to either vacate this conviction or send this case back for a new trial or an habeas corpus. One thing we did a lot of was giving petitioners a delayed appeal, where they had perhaps asked their attorney to file an appeal. But the attorney had said, No, you don't have a chance go away, leave me alone and had dropped that ball, we would often file memos with the Court of Appeals and ask the court to give that habeas Petitioner the appeal that he was entitled to that had been denied to him. So I, some of again, I mentioned earlier, like how fulfilling it is as an appellant to get a victory, you really feel like you've made a difference in that case, as opposed to just getting a result below affirmed as the EPA Li and same with being a government attorney, and at times even getting a conviction reverse or sentence reduced, or a delayed appeal granted to someone who is entitled to wants to one you really felt like you were a part of, you know, getting to the right result and making a difference that if you hadn't been there, you know, the wheels might have just kept on turning and that unjust conviction or sentence or whatever it might have been, might have been allowed to stand. So I was very grateful to be on on that side and have those kinds of opportunities and have the support from my superiors to really get to the right result as the law required.

Tim Kowal  26:29 
And while you worked in the Attorney General's Office, of course, your your job wasn't just to, to work on Criminal Appeals. But it was also, you know, the AGs work is is broader than that. I wanted to talk about a few of your few of the interesting cases you've worked on both in the Attorney General's office and at ATF, you know, there was the one case first case I wanted to mention was Turner versus Commonwealth a case you worked on. While you worked at the attorneys General's office in Virginia. This was a concerning Virginia's new statute which prohibited the display of news in a way that constitutes a threat. Maybe Could you tell us a little bit about that case, how it came out, because that, you know, presents an interesting issue there, you know, you are in that case, defending the government and that in the statute in that case, and that it has a rational basis. And against the Free Speech challenge. I guess what, it's a strict scrutiny analysis, because it's phases of free speech challenge. And then I'd like to get Jeff's comments on it too, as a free speech specialist. So, Chris, tell us a little bit about the Turner versus Commonwealth case case and how that came out. Sure. So

Chris Schandevel  27:35
that was a very interesting case, both legally and and on the facts. So So factually, it's my understanding that was the first time Virginia had ever prosecuted someone under its new statute. So we have a set of statutes that prohibit hanging a noose burning across the cross burning case actually went up to the US Supreme Court in the black Virginia versus black case, I think there's also a statute that prohibits writing a swastika in the same manner in a way to basically threaten someone and to make them unreasonable fear of bodily harm. And so when we prosecuted an individual, who essentially had gotten into a property dispute with a couple of his African American neighbors who lived on the same street as him, men had thrown slurs at them, it was we've been very hateful towards them, and then eventually escalated it to the point where he hung a basically a dummy in effigy from a noose in his front yard, where those families, you know, driving by every day to get to their home, or their kids walking by his house to get to their home, had to walk by it every single day. And because of their past interactions with him, this individual they they took it as he's threatening us, this isn't just, you know, someone trying to express an opinion or doing something of that sort. This is actually this guy means business. And so we had testimony from the families about how they were afraid to leave their house and worry about whether they're going to be at risk walking up the street, they're afraid to let their kids you know, walk to play with their neighbors outside. So we brought the prophet the Commonwealth attorney brought the brought the lawsuit and then got the conviction. It got appealed up to the Court of Appeals at the time, the Court of Appeals only took cases by petition. So they granted the petition, realize these First Amendment issues that the defendant was making were important issues to litigate. And I was able to work pretty closely with our state SG section and writing the brief prepping for oral argument litigating that case, the Court of Appeals and the state Supreme Court.

Tim Kowal  29:29 
Are there any were there any public interest law firms involved for the defendant, in that case, free speech? Sure, firms

Chris Schandevel  29:37 
there actually weren't and doing what I do now, it does make me I'm almost surprised by that, that there wasn't a little bit more attention given to the case by public interest groups. However, having litigated the case, what I can say once I dug into the issues, I mean, at the outset, you think, Wow, this is a difficult First Amendment issue of you know, is this the sort of speech that we can prohibit or you know, is this just hateful speech? Each day the government doesn't like and once you give the government the ability to, you know, outlaw all speech it doesn't like I mean, that's a pretty scary place to be in terms of slippery slopes. And what I realized was that the General Assembly in Virginia really did a good job of writing the statute in a way that it perfectly tracked the US Supreme Court's Case law on what constitutes a true threat. And so because of that, it was pretty narrowly cabined, to only criminalize this sort of hanging a noose burning across in a way that really does put someone in reasonable fear of of harm to their lives and cases where that was the defendants intent, he was trying to threaten the person who is going to be the recipient of that message. So I was able to get the conviction affirmed on First Amendment grounds in the court of appeals of Virginia. And then in the state Supreme Court, the defendant actually dropped his first amendment claim and turned it into just a statutory interpretation case about what constitutes a public place and whether his front yard is a public place under the statute, we were able to persuade the court that it does, and it did and get the conviction of firm there as well.

Tim Kowal  31:02 
Any any First Amendment commentary on that one, Jeff?

Jeff Lewis  31:06 
You know, I don't think there are First Amendment concerns in the context of an intention, a jury finding of an intention to intimidate, you know, write a noose in the city in front of the Capitol in Washington, DC without context is first amendment protected, but that news with an intention to do harm somebody inside the Capitol, you know, there might be a violation of the law there. So, and I think I had read a couple of opinions that said maybe this issue wasn't even properly briefed, or preserved in one of the appellate decisions I read. So there's no wasn't really a meaty, substantive discussion of the First Amendment in this case.

Chris Schandevel  31:43 
Yeah, it was a very interesting case and fun case to litigate. And it appeared much more interesting on the papers when it got to my desk, because I did think it was going to be difficult First Amendment issue. But it was a case where the General Assembly had just done a such an excellent job drafting the statute, which you don't necessarily always see that statutes are drafted perfectly to fit with constitutional constraints by here. We did. And so that made litigating the constitutional issues much easier on the side of the government and also gave me a lot less heartburn about, you know, doing some sort of greater harm to broader First Amendment interests in other cases. Right, right, right.

Tim Kowal  32:18 
Yeah. Okay, Chris, I also wanted to talk about another case you worked on while working at Alliance Defending Freedom, Hoggard versus Rhodes. This is a case that involved a student in a lawsuit against university officials, after the university had sent campus police to shut down the students table outside the student center that was recruiting students for a conservative student group in the Eighth Circuit. In that case, it found that there was a First Amendment violation, but that the university officials had successfully asserted a qualified immunity defense and tell us what happened in that case, and especially how you wound up getting Justice Thomas to write to write a statement that I think was not in a in an opinion on to ask you if this comes from the shadow docket, but it's basically the cert petition was denied. But you wound up getting a very quotable statement from Justice Thomas, it's been cited in many opinions since then,

Chris Schandevel  33:14 
we did. So we were very, you know, obviously, we were hoping to get a cert grant in that case. I know there have been a lot of cases pending in the US Supreme Court in recent years trying to get the court to address this issue of qualified immunity, which is really just this judge made doctrine that protects government officials when they violate the constitutional rights of their citizens unless there's what's called clearly established case law. But what the courts have read to mean, unless there's a case that's almost identical on the facts that was decided previously, in the same jurisdiction, you can't hold that government official liable for violating someone's constitutional rights. And so we represented this college student, she was trying to start a conservative student group on her college campus. So she set up a table outside the student center, and was just basically signing up names. Anyone who wanted to join her group could stop by the table, sign up their name on a clipboard, and she'd given some candy and they go on their way. University officials called the police to remove her from that section of the patio outside the student center. Because apparently, because she was not yet a recognized student group, she was not allowed to be there, gathering signatures that she needed in order to become a recognized student group. So we felt like That was a violation of her first amendment right to be there in a public place on, you know, state property at a public university policy on her behalf. The Eighth Circuit, like you said, agreed with us that the school had violated her first amendment free speech rights are because there was no case in the Eighth Circuit that looked exactly like this one, they were not going to hold those public officials liable for that behavior. And so our cert petition, just to kind of close the loop on that, that our theory behind the cert petition was, you know, it's one thing when you're dealing with police officers We're on the street making Split Second Life or death decisions. I can understand the course not wanting to second guess those and the potential ramifications of that. But when it comes to university officials kind of sitting back in their ivory towers and coming up with, you know, speech codes and speech zones and all of those things, why should they get the same kind of deference when they violate their students rights that we're giving to police officers? So that just didn't make any sense to us. We teed it up as a question presented for the US Supreme Court. The Court, like you said, didn't grant cert didn't reach it. But Justice Thomas and a statement he issued respecting the denial of the cert in that case did say that the court really needs to take a case like this to clarify why it is that qualified immunity applies the same way to university officials that applies to police officers.

Tim Kowal  35:45 
Yeah. And the Justice Thomas's quote here in the statement respecting the denial of cert basically adopted your your argument, the quote is, why should University officers who have time to make calculated choices about enacting or enforcing unconstitutional policies receive the same protection as a police officer who makes a split second decision to use force in a dangerous setting? And he says we've offered we have never offered a satisfactory explanation of this question, we should reconsider, either our one size fits all test or the judicial doctrine of qualified immunity more generally. And you mentioned that that's been cited close to 100 times already close to

Chris Schandevel  36:23 
100 times already, which I think is pretty impressive for a statement respecting denial of cert, right? It's just

Jeff Lewis  36:29 
what a total failure, you are Chris fry,

Chris Schandevel  36:33 
failing to get started on that case, right. I mean, and the challenge in some of these cases is especially qualified immunity, right. So in the circuit courts, you have to argue this is clearly established, this is clearly established, look at how easy the case this is, look at all this case law that you have on this issue. And then if the court says it's not clearly established, then you have to go to the US Supreme Court and say, Oh, this is this unsettled issue that you should take up now. And so the the briefing strategy really has to change quite fundamentally between the work you're doing at the Circuit Court of Appeals and the work you're doing in the US Supreme Court. And we think I mean, that is true to some extent, in any case, you're filing a cert petition, then but particularly in this qualified immunity context, it really makes things difficult on the litigants.

Jeff Lewis  37:15 
Chris, can I ask I haven't followed this debate very closely about qualified immunity. Is this considered considered like a conservative cause or a liberal cause to reexamine this doctrine?

Chris Schandevel  37:26 
So I think it's it's interesting that it's an issue that really goes across ideological splits. So we regularly we have filed briefs in support of cases brought by folks that ideologically are to the left of us, and we've had folks ideologically, to let us bring filed briefs in support of our cases on these issues. Typically, you know, folks who lean left, their concerns tend to be, you know, police abuses that we've seen and how qualified immunity gets applied in that context. And I share a lot of those same concerns and the way that the doctrine plays itself out. But typically, you'll have, you know, the the law and order judges who don't want to touch qualified immunity in that context, but might be more amenable to an argument that you know, okay, even assuming it makes sense in that context for police officers, why are we applying it the same way for government officials who are sitting back and setting policies restricting free speech rights. And so that's where you really see the ideological divide, kind of dissolve and focus on kind of both sides of the spectrums coming together, asking the court to do something about this. So we remain optimistic that at some point, they will. It's interesting,

Jeff Lewis  38:34 
I've had two friends suffer some injuries from law enforcement, and these friends look like the old fat white dudes. And both times the courts avoided really reaching the merits of the controversy under this doctrine, when I think some scrutiny was was merited. It's interesting.

Chris Schandevel  38:52 
And that's the other downside of the doctrine. If I could just make one more point on it. So under a US Supreme Court decision, this is a two part test it was there a constitutional violation? And was that violation, quote, unquote, clearly established? Right. But the Supreme Court has said, you can do that. And courts can do that in any order they want to so they can first instead of asking, what was the law violated, they can say, Well, was it clearly established, assuming it was violated? And if they say, if they say no, it wasn't clearly established, thus, we don't need to decide whether or not it violated the Constitution, then the Law never gets clearly establish, and you're just kind of spinning your wheels. So that's that's another problem with the way the doctrine is played out that we're hoping the cord will address at some point.

Tim Kowal  39:31 
Interesting. Yeah, that is, that is a crossover issue. And and I'm glad it is because when something is just branded as Oh, that's just a conservative issue, or that's just a liberal issue that it tends to get short shrift. Once it becomes a crossover, then, you know, maybe people start taking a more serious look at it and address it in a principled matter, rather than some sort of lopsided manner. They'll just appease one side of an issue. One other question, Chris, about justice Thomas's statement here, consider During the denial of cert in that in the Hoggard versus Rhodes case, would this be an example of the shadow docket? Does justice Thomas's statement there in with respect to denial of certiorari? Does that come from the shadow docket? The I put that in scare quotes? Because it's, it's mostly just a made up term, a neologism. But it's yeah,

Chris Schandevel  40:20 
it depends. It depends on how you define shadow docket, right. So the US Supreme Court has always had an emergency docket, where cases come to them on kind of an expedited basis and have to get decided very quickly, with not a lot of briefing no oral argument. And so when you hear the phrase Chateau dock, and I think it's typically referring to those kinds of cases where the court does make a decision kind of on the merits of the case, either to stay a case or to grant an injunction, so to some extent, a decision that does at least touch on the merits. To an extent, this statement by Justice Thomas was not on the emergency docket. It's just a statement that he issued on the traditional in the traditional cert seeking process, you file your cert petition they granted or they deny it, if they deny it, justices will sometimes write an opinion either dissenting from denial, or they'll issue a statement explaining why they might have agreed to deny the petition. But these are some things the Justice just wants to have on the record. So we were if you want to loosely define shadow docket, you might say that this was but I think the technical emergency docket definition,

Tim Kowal  41:22 
maybe not refers to the to the emergency docket.

Chris Schandevel  41:25 
Maybe this is a penumbra of the shadows. I don't really know, I don't have my terminology nailed down.

Tim Kowal  41:31 
But I was just going to ask if it's so easily found and cited up to nearly 100 times already. It's not not really in the shadows.

Chris Schandevel  41:39 
But that's right. We're doing our best to bring as much light to it as we can. That's for sure.

Tim Kowal  41:42 
There you go. All right. And then the last one last case, we'll briefly touch on kriegler versus Attorney General. This was another one of your cases that you worked on. With the Alliance Defending Freedom. You You did the oral argument in this case, this involved the Euthanasia Prevention Coalition USA, you represented them as an amicus in the Massachusetts Supreme Judicial Court in defense of Massachusetts common law prohibition on assisted suicide. And tell me a little bit about your involvement. In this case, just a shortcut, it sounded like this case was dismissed on a motion to dismiss. And the Massachusetts Supreme Court ultimately reinstated the case and sent it back. It was it was interesting watching your oral argument on that. But I don't want to get ahead of you on that. Tee that up a little bit for us. And because I want to ask you about your experience in the oral argument there because it was a very hot bench there. You had almost everyone on the Massachusetts Supreme Court had a question for you. And definitely had a point of view on the case and want to know how you how you were able to address all that. And whether that was expected as merely an amicus in the case and not one of the actual parties.

Chris Schandevel  42:48 
Right. So it was certainly a unique experience as an amicus getting to getting to get oral argument time in that case, and getting as much time as I did. So just to make one quick clarification at the outset. So the the state Supreme Court actually affirmed the decision below and the decision below was that there is no state constitutional right to assisted suicide. So the the state Supreme Court agreed with our position as as an amicus, that the state constitution doesn't have some rights to you know, get a doctor to prescribe you, you know, lethal drugs, that you can then go and take on your own to commit suicide. So the way that we initially got involved in the case, so we do kind of monitor state courts and federal courts across the country, just to have a good sense of what issues are being litigated in some of our core practice areas. And this is certainly a case that fits within that mold, the case type of case that our life team would be litigating. So when we saw the cases going up to the state Supreme Court, we immediately thought, you know, the governor was defending the law, the Attorney General is defending it. So we thought, well, we'll file an amicus brief supporting the defense of that common law prohibition on physician assisted suicide. And as I dug into the case a little bit, I kind of realized, you know, while the state was defending it, and we appreciated that there were definitely some arguments that could have been made that that weren't being made that were kind of being left on the table there. And so we decided, you know, instead of your traditional amicus brief, where you kind of like, you know, make some policy arguments, maybe or some arguments at the margin, you know, we're going to file essentially a merits brief and lay out what we think are the strongest arguments as to why there's, there's no right to this and the state constitution. So we did that. We filed the brief. And then I was talking to my boss afterwards, and I'd tell him, I'm really pleased with how it turns out, I hope they read our brief, because I think we make some good arguments that are gonna get missed otherwise. And he said, Well, why don't we think about filing a motion to get you argument time before the court? And my first thought was, Can you do that? Is that do they let him make you come in and argue cases? And he said, Well, you know, the worst they can say is no, so we filed the motion and didn't hear anything about it. I thought that it was water under the bridge. And literally two days before argument. I got an order from the court granting the motion telling me fly up to Boston and do this oral argument and I got the notice on Monday documents on Wednesday. So it was a whirlwind of prepping for that getting the flight It's getting up there to do the argument. And the argument itself, as you said, was a very live bench and a bit of a whirlwind in and of itself.

Tim Kowal  45:08
I got to have your head on a spring because you know, you just had to keep you know, toggling back and forth back and forth to different judges peppering you with questions.

Chris Schandevel  45:15 
Yes. And I'll tell you, I talked to someone afterwards, he was in the courtroom. And they said, Man, I'm, I'm so sorry, you didn't get to make any of the points that you wanted to make? Because you were up there just answering questions the whole time. And in my mind, I'm thinking to myself, actually, I made every single point that I wanted to make in the course of that 20 minutes, but I was able to make it in the course of having a conversation with the justices and answering their questions. As an appellate advocate. That's really that's really the dream, the ideal, that's what you want to happen. You want it to be a conversation where they are genuinely interested in your answers and asking you questions, because they want your help and getting to the right result. And I have never practiced before that court. But I have so much respect for the justices, they're now having been through that with them, because you can really tell that they were seriously engaged and interested in just getting to the right result, and getting as much help from the advocates in front of them to help them reach that right result. So I was thrilled and honored to get to be a part of that.

Tim Kowal  46:09 
You could tell even though at one point, I thought one of the justices seemed like, like he wanted to get under your skin a little bit or to jar you loose and said, well, counsel, obviously you're very practiced in in your arguments. But what about you know, what about the sympathetic argument? What what do you say to this doctor on a personal level, you know, what, what's going through your mind when you know, when you notice that a judge is trying to get you off your script off your talking points out of your comfort zone? Do you do indulge and go out? Go out of your comfort zone? Or, you know, what's the best approach there and your view?

Chris Schandevel  46:39 
Yeah, so I always take the approach. I never write off a judge or a justice going into argument as like an persuadable, I just decided, you know, other attorneys, maybe I haven't been doing this long enough to be as cynical as some might become. But I'm going to have that assumption that every judge or justice is there, because they want to get to the right result. And they're open to getting to the result that I'm advocating for. So when I hear that from a justice, my initial thought is honestly not that they're trying to throw me off. But that, you know, he clearly had problems with the arguments that I was making, and had some really deep concerns about, you know, the implications of the results that I was asking for. So I appreciate hearing that from a justice, I want them to share that with me and give me an opportunity to address it and respond to it. Because if they have those kinds of concerns that are preventing them from ruling in my favor, I mean, what who could ask for a better opportunity than to have that conversation there in the moment before that decision gets made. So I it's a scary thing. You know, your mind goes, you know, what do I say, to kind of help defuse this and, and kind of move the justice where I where I want him or her to go, but I just kind of try to, you know, calmly, give the best answer that I can not get offended by the hard questions and give a response that hopefully helps to make my case while also addressing their concerns. And I'll tell you, if you had pulled me after that argument and asked me to guess which of the justices were potentially for me and which were against me, I would have, I would have ranked that Justice pretty heavily against me based on that particular exchange. And when the opinion came out, we won his vote on our side of the case. So it was a good affirmation of the approach that I that I tried to take of just not writing up justices and treating them reasonably and assuming that they are they are open to persuasion and just interested in getting to the correct result.

Tim Kowal  48:18 
One question that we like to ask the advocates is about the the nascent trend of tentative decisions or focus rulings by a panel where an appellate panel will let let the parties know, these are the issues that we would like address during oral argument. Can you give us your opinion on that? Is that good, bad or indifferent? Does it help you for oral argument? Would you rather be be surprised and and just answer the questions cold on the right there at oral argument?

Chris Schandevel  48:44 
Yeah, so I guess it's I've never I've never experienced either. So I've never seen a draft decision released to the parties before. argument. I mean, to me, that's rare. And it was shocking to me that that was a thing that that happens out there in California. So that is you can confirm that is the thing. You can draft the opinion before it. Wow.

Jeff Lewis  49:03 
There's one court in specifics division two of the fourth districts on Riverside and San Bernardino, they give you the draft opinion and then you decide whether to request oral argument are not okay. And there's some divisions in LA the second district that will give you a verbal, so I've had two or three occasions in the last three months where I've gone to oral argument before I can get one word out of my mouth. It's you know, Mr. Lewis, we preliminary agree or Mr. Lewis, we preliminary disagree. And here's what we want to hear. Yeah, it's here in California yoga kale and tentative opinions.

Chris Schandevel  49:37 
Right? Yeah, not a thing here in Virginia, not something that I've seen the closest I've seen a colleague of mine at the AGs office. He's stood up as the APA Li on behalf of the Commonwealth to give his his argument as to why that conviction should be affirmed. And the judge based I guess, gave the oral the presiding judge said Mr. And it's funny my boss's last name was Judge so got very confusing. The judge said, Mr. Judge, if you sit down, right, if you don't say anything, we're gonna rule on your favor unless you mess it up. So he turned back around and walked to counsel table and sat right down didn't say a word. And the opinion came out that way. So I don't know, I think I would not love the idea of seeing the opinion ahead of time, because I think there's real value to be gained from the oral argument itself. I know a lot of people don't think that oral argument adds as much value. Maybe Maybe I'm young and idealistic still. And I think that it can on occasion, so I, I'd want to have that opportunity to make my case. Before the judges that argument, the focus letter, I think I'm more open to that being something I would appreciate. If the judges want to really focus on two or three issues, you know, and knowing that ahead of time would be helpful going into the argument. But yeah, I guess if the opinions were always in my favor, going in a guess it would be nice to know that but being on the receiving end of that, Oh, that would be that'd be hard. Yeah.

Tim Kowal  50:54 
Yeah. There's a quote about writing that I've always liked that writing is the art of the second thought. And I thought that could probably be applied to appellate advocacy advocacy, writ large that appellate advocacy, good appellate advocacy is the art of the second thought. It's looking at the case, another time with a second set of eyes. And if that were applied to questions at oral argument that a good answer to a question or oral argument in any kind of question, that that really bears on the outcome of a case, you know, the the best answer is one that involves a second thought, not just the off the cuff response that, well, this fits into my talking points. But you know, going back to what you said a minute ago, really trying to to understand, you know, what the justice is what problem the the justice is trying to solve? And not just the answer that was gonna get me off of the of this pointy stick that the judge has just provided me with, but really get to the solution that's going to help this justice ripening in my favor, much easier to do that if you have time to give it a second thought, What are your thoughts on that? Do you did? Or is the tactic just to try to anticipate all the questions and develop your second thoughts before you walk into that room?

Chris Schandevel  52:00 
Sure. I mean, the goal definitely is to anticipate as many of them as possible and go in having those second thoughts ready, ready to share with the judges and the justices, I think, the reality of brief writing, you know, in a perfect world, we would write perfect briefs, and we would cover all the issues and all the concerns, and the judges would read them and be persuaded one way or the other. But the reality is, I don't write perfect brace, I have holes in my arguments sometimes that I don't know are there, or I have page limits that forced me to not cover some issues to the extent that I'd like to, or maybe I'm writing for a majority of, you know, five justices on the court. But I know there's going to be another three or four that have concerns that I can't fully flesh out in my my written product. So having the opportunity to go to the oral argument and have conversations about those things that are left open or left unresolved by my written product. I just think it's so incredibly valuable for the judges and the justices. And I think hopefully, too, for the advocates that we go into them viewing them as an opportunity and not just viewing them as you know, a scary exercise where we're hoping to avoid snatching defeat from the jaws of victory. Yes, as I've seen attorneys do, right, that, you know, we can we can approach them differently. I think they can be a lot more productive, perhaps.

Tim Kowal  53:10 
Right. Well, so it sounds like the answer to both questions. Do amicus briefs matter? And do oral arguments matter? are answered in the affirmative. And, and you brought receipts for both. And it's the same case, Klingler versus Attorney General, where you are the amicus, and you're the gave the oral argument that appeared to have made made the difference. So congratulations on that case. Well, Chris, you had some other questions that you're going to answer some some briefing myths. You mentioned that you had a list of top 10 briefing myths that I thought we would we would close by discussing those. And there are a few of them. Many of them. I think Jeff and I have probably both agree with there's a couple I had to I had some questions about but let's let's just get right to it here. So Christian DeVille. Is top 10. briefing, briefing miss all of us to come up here. And have you explained Myth number one, it's best to make your brief look like most briefs filed before your court. When I first read that I thought that's a myth. Yeah, so tell us why that's a myth. It's a myth that you should make your brief look like most briefs filed in your court.

Chris Schandevel  54:13 
Yeah. So this is where we get to the controversial part of the podcast, right? We start, start busting bustin some, some brief writing myths. And hopefully we'll get some feedback from your listeners on some of these. Yeah, so when I started practicing law in the state AGs office, I started looking at the briefs my colleagues were writing and I started to realize it's pretty solid kind of look similar, similar practice that kind of grown up over the years of just what our government briefs look like, but you compare them to some of the briefs written by the professional, you know, printers that some of the private parties used, and our briefs were kind of ugly, they were dull, they were dry, they're boring, the cover page, you know, look like, you know, we just scratched it off the typewriter in a few minutes. And so I said, you know, our priests should look better than this. And um, so I played around with Word and threw in a couple of bars and The top and the bottom and you know made my font a little fancier for the Supreme Court of Virginia and things of that sort. And then I noticed that that trend kind of catch on within the Office of more attorneys were kind of using the same the same formatting that I was using for their briefs. So our briefs start to look a little bit nicer. But I think that's true, not just in the office that I was in there. But attorneys tend to be creatures of habit. And we tend to keep doing the same thing, the same ways for a long time. And oftentimes, we the temptation is just to copy what everyone else has been doing. Because you know that it's safe, we're can be pretty risk averse, folks. So if everyone's been doing something the same way for a long time, maybe that must be right and acceptable. So I'll just do it the same way. But there are real downsides to that approach, because you miss opportunities to make your briefs look nice to look readable, you know, if you just default to the same font choice, or the same style choices as everyone else. The caveat I'll give is that there are definitely attorneys who do it well and do it a lot. So my advice would be, don't just look at what most attorneys who practice in that court do in terms of structuring and formatting their briefs, find the attorneys who are there a lot and who are well respected practitioners. And for me, oftentimes that state SGS, they're before those courts on a regular basis, and they tend to have really nice looking briefs, well form, well formatted, follow the rules, etc. In terms of your common practitioner. A lot of folks, as you all know, a lot of times really trial level attorneys just kind of fallen their own cases up to the appellate court just kind of doing what worked for them below. If that's not always the best approach.

Tim Kowal  56:29 
Yeah. So if you're going to copy someone, copy someone who's doing it at the top of their game, right, and just, you know, pulling out a brief, but what's the last brief that we filed? You know, 10 years ago, let's just pull that out. And without thinking filed the next breach? It looks the same way.

Chris Schandevel  56:42 
Right. Exactly. Yep. So not as controversial as it sounds, perhaps, but that's the advice. Yeah.

Tim Kowal  56:47 
Okay. Now, Myth number two, I think we're going to, I think we're gonna have some people log off. Number two times new roman is an acceptable font choice, that's a myth. Tell us why it's why times them and it's not an acceptable font choice, Chris,

Chris Schandevel  57:04 
that is a myth. And I should say by except by not acceptable, I, that doesn't mean that you're gonna get sanctioned by a court. If you use it, you can get away with using Times New Roman, but who anyone who's taken the time to actually, like study font choices on the Seventh Circuit Court of Appeals put out an excellent primer on formatting briefs that I recommend to anyone in your audience, that listening to check out you can Google it and find it pretty easily. What you learn is these fonts were developed with specific purposes in mind. And times new roman was developed for newspapers. And it was the the letters are kind of crammed together in a way that allows for the typesetter to fit more words on the page and those little columns that they have on the newspapers and also designed in such a way to make it easier for the reader to skim the headlines, skim the front page article and get through that paper as quickly and efficiently as possible. At least for me, as an appellate attorney writing briefs for judges, I don't want those judges skimming through my brace as quickly as possible, right. So I don't want to choose a font that's like forcing and encouraging them to read my brief more quickly. I want a brief that's gonna encourage them to slow down, you really sit and understand the arguments. Yeah.

Tim Kowal  58:17
Skimming the brief is not the same as readability if a font is designed for skim ability, that's not the same as readability.

Chris Schandevel  58:25 
No, it's not the same as readability so readability. So century school book is my favorite font choice. And the fact that the word book is in the name of the font is your clue that it's a font that was designed to be used in books, books are meant to be read, books are meant to be really digested fully and deeply, exactly what you want the judges to be dealing with with your brief. So that's why don't choose Times New Roman, don't encourage your judges to skim through your brief, pick a font that will encourage them to slow down, understand your arguments and hopefully rule in your favor.

Tim Kowal  58:54 
Okay, an addendum to that follow up question to that. What about trial court briefs? Yeah, the same thing apply? Would you use century school book in a trial court brief?

Chris Schandevel  59:02 
Absolutely. Yeah, we have an internal style guide that we suggest century school book for all of our trial level briefs. And again, so judges are busy. So there might be temptation to say, well, I'll just give him a skimmable brief so they can read through my brief more quickly. I know you want to fight that urge, give them something that will help them slow down and really grasp and understand your arguments might want to write a shorter brief to take less time out of their day. But you want them to read it carefully and pick a font that will encourage that.

Tim Kowal  59:26 
All right, well run a little bit long. So let's power through the rest of these Myth number three, two spaces after periods is an acceptable choice. Now, what why is it not acceptable to use two spaces after a period? Yeah, so

Chris Schandevel  59:40 
the best advice I can give you is open a book and look and see how many spaces are after the periods. All professional type. ciders pretty universally agree that only one space should go after periods. It's just kind of universally accepted for some reason attorneys be I guess being creatures of habit. We have fought that if you want to talk about like the practical impact on using two spaces, I think and some attorneys will say, Oh, it looks nicer, it spreads out my sentences. But the reality is it kind of slows down, the reader enforces some extra pauses in there that you might you might not want. So there's other ways to space the brief the pace of a brief without throwing all those extra unnecessary pauses.

Tim Kowal  1:00:17 
What about extra spaces in between paragraphs, so I

Chris Schandevel  1:00:20 
am an advocate of no extra space in between the paragraphs, I want my paragraphs to flow one from the other. Sometimes I'll do a little bit of extra space on top of a point heading when I'm starting a whole new legal argument in the brief kind of separate those out but yeah, paragraph and paragraph, I'm gonna do everything I can to connect those paragraphs using words like and, and but and so and so extra space, I think would would counteract that, in my opinion.

Tim Kowal  1:00:43 
Okay, myth number four initial caps is acceptable for point headings. Chris, why is it wrong to use initial caps for point headings?

Chris Schandevel  1:00:51
It is wrong. And it again goes back to if you want your judge to read and understand what you're writing, and of course you do. So if you're writing goods, complete sentences for your point headings, especially in your argument sections of your brief as you should be the point had, if you use initial caps, that trains the reader, we're used to seeing, you know, three or four word phrases with initial caps. So the reader immediately senses Oh, this is a phrase because it's an initial cap. So the reader reads the first three or four words and thinks, oh, but there's more, there must be another phrase, well, is this a new phrase? So if you want, if you're using complete sentences, I'm like you ought to be you want the reader to know that based on the fact that you're not using all these initial caps and confusing the reader?

Tim Kowal  1:01:33
That's good. I haven't heard that that explanation for before. But that makes a lot of sense. Can you use topical phrases? Like, if I'm doing the procedural history of the case? Can I have a subheading that says summary of the district court's order and put that in Title caps?

Chris Schandevel  1:01:47 
Yeah, so I will do some of that. In the statement of facts or statement of the case, I'll use more topical headings there. My argument section is always every point is as complete sentences. And it has to do with another big thing that I'm big on, which is storytelling, you want your table of contents to tell the full story of your case. And it's just much easier to tell a complete story of your argument. When you're using complete sentences, you can kind of get away with telling a story in the facts with some phrases inserted in there. But for the most part, even in the statement of facts, I tend to prefer the complete sentences to tell that story.

Tim Kowal  1:02:17 
Okay, myth number five Microsoft words double spacing feature is true double spacing. So if you want to double spaced your brief, you just hit the double spacing button in Microsoft Word. Is that right or wrong?

Chris Schandevel  1:02:28 
Yeah, little Little did you know Microsoft Word has been lying to all of us, Microsoft Word double spacing is not true double spacing, they add an extra 15% or so of whitespace in between the lines. So you get a lot more space in between your lines on the page, then you ought to be getting if you're doing exact double spacing. And the downside of that is it just makes it harder on the reader to move from line to line as he or she is reading your brief and easier to get lost. And so yeah, so we set all of our briefs and exact double spacing, which means we go into the paragraph settings, we get out of the double spacing that Microsoft Word sets, and we click that exact button. And then we'll set it to times two of whatever font size we're using. So for in 14 Point century school book, we'll set it to exactly at 28. Point. And again, it just improves the overall readability of the brief because you don't have all that extra extra whitespace. In between. I will add a caveat check your local rules, everything, all of these myths, if a local rule Trumps advice that I'm giving, you want to go with local rules, obviously. So

Jeff Lewis  1:03:24
although you know if the local rule says use Times New Roman, you should take a bar and go to a different jurisdiction.

Chris Schandevel  1:03:32 
You should probably look up whoever's writing those local rules if your jurisdiction says that. All right, myth

Tim Kowal  1:03:37 
number six, a shorter brief is always better, Chris, is that wrong?

Chris Schandevel  1:03:41 
I think it's wrong. And you know, maybe I'm unique. And then I get to argue a lot of constitutional issues of first impression. But you know, I think if I turned in like a 15 page brief for some of these giant issues of I've recently briefed in the Virginia Supreme Court, whether their free exercise clause is more protective of religious freedom than the federal Free Exercise Clause and had to go through a couple 100 years of history, in order to make my arguments if I turned in a 15 page brief, without all of that history and just said, you know, you're on your own court, go look it up yourself, I have a feeling that, you know, the law clerks might have appreciated a short brief in the reading process until they then had to go and do all the legal research themselves, and might have liked to have gotten more from me as the advocate on that. So I think that, you know, brevity is valuable. But like anything else, it's a tool that we're given. And the ultimate goal is persuasion. And so if persuading the judge to do what you need them to do means you have to write a little bit of a longer brief on occasion than you should write that longer brief. If it increases the odds of persuasion.

Tim Kowal  1:04:38 
Yeah, your brief should be exactly as long as it needs to be and not a word longer.

Chris Schandevel  1:04:43 
Exactly right.

Tim Kowal  1:04:44 
All right. Myth number seven, you should structure your brief in the same order as the opinion you're appealing from or if you're like, if you're the appellee in the same order as the appellants brief, if the order you're appealing from is raises points. ABCD then your briefs just be ABCD but that's not right, Chris. I don't

Chris Schandevel  1:05:02 
think that's right at all right. So and it's such a struggle as a young attorney, the temptation for me was always Oh, I'm the APA Li, I'll see what the appellants are human. And I'll just plug in my responses to each of those point headings, you know, 123, ABC. The problem with that is if they're doing their jobs correctly, they're leading with their strongest arguments, which means that if you're following their approach, you're leading with your weakest arguments, perhaps, and instead of leading with your strongest, so I always say start with the strongest lead with those. The caveat being if there's a threshold issue standing or something like that, that the court is likely to really be hung up on, you might have to lead with that argument just to clear the underbrush and get that out of the way. But for the most part, pick your strongest arguments lead with those and then refute the other side's arguments on the back end.

Tim Kowal  1:05:44 
What if What if you know the panel is just really itching to know your response to their strongest argument? Because it Yeah, I mean, like you're being evasive if you drop it down to the end?

Chris Schandevel  1:05:52 
And no, I mean, I think that's something that would be hashed out of argument, right? If I up at oral argument, it's clear that the judges really want to talk about this other issue first, and I had saved it for last, I'm going with them. And we're going to spend the first however many minutes they need to on that argument. But in my in my brief, I'm the master of my own brief, I get to leave with the stuff that I think is the strongest,

Tim Kowal  1:06:10 
there you go. Myth number eight, you should never ever start a sentence with a conjunction. Chris, that's wrong.

Chris Schandevel  1:06:17 
I mean, my first grade teacher might be surprised to hear that I think that's wrong, because I think a lot of us learned back in grade school, that that's not an okay thing to do. Again, go back to the advice I gave on two spaces, after periods, pick up a book, pick up a magazine, look at all the conjunctions that are starting sentences over and over and over again, I think my for our first grade teachers are trying to beat out of us that practice of you know, little kids like say, and then this and then this, and then this, and then this right. And so it was a reasonable approach. But unfortunately, we've taken it too far. And our briefs are much less readable, because we don't think we're allowed to start sentences with ands, and buts and so on. And so I'm all about using those connector words at the start of sentences.

Tim Kowal  1:06:58 
Yeah, so the same grammar rules that apply to kids in grammar school don't necessarily apply to US attorneys.

Chris Schandevel  1:07:04 
Right, exactly. And probably if we were paying more attention in grammar school, our grammar school teachers would have said, this isn't actually a grammar rule, I'm just going to help you write better, but we seem to have missed that part. And now we just we blame our grammar teachers for how we write

Tim Kowal  1:07:19 
myth number nine, you should never ever use contractions in Legal Brief, but that's wrong to how Chris

Chris Schandevel  1:07:25 
I think it's wrong to and that one might be a little bit more controversial. I don't use them often. But I will say I probably use them in just about every brief I file whether it's a state Supreme Court, Federal Court of Appeals, US Supreme Court, probably only a handful, two or three. But for me, it goes back to readability. There are some sentences that just read more naturally if you include a contraction, and this no contractions ever rule leads attorneys to bend over backwards to rework and rewrite and reoriented sentences to make them read away that we can avoid using that contraction, when the easiest approach would just use the contraction and move on. And you would gain a lot of readability. I think by doing that. And I'll give you a quick example. I'm a big fan of short, punchy sentences to really drive home points. And one of my favorite short punchy sentence sentences is when I'm following a point made by the other side, I'll say the government argues x and then I'll say, but that's wrong. And then I'll explain the reasons why it's wrong. And I will change as I but that is wrong. It just loses some force and some punch and some naturalness to it. So I'm a fan of including some contractions use do sparingly and use appropriately where it helps.

Tim Kowal  1:08:33 
Right. Okay. And myth number 10 substantive footnotes and explanatory parentheticals are signs of good legal writing. That's yeah, right, Chris,

Chris Schandevel  1:08:44 
I think that's a big myth. And yeah, when you first start reading legal writing, you might just assume that oh, I need to lard this brief up. But tons of big footnotes and lots of large explanatory parenthetical is for all of my case sites. Again, go back to readability, you want your brief to read like a good book, it's not going to be as interesting as a good book, we're practicing law. So there's only we only do so much within our limitations, right. But to the extent that we can make it more of an enjoyable read, the better and one of my favorite kind of examples to drive home the point about footnotes, forcing a judge to sit there and read a good brief if it's a well written brief, and she's reading along and enjoying the brief, forcing her to then, you know, jump down and read a big substantive footnote and then jump back up above the line to read the good content that she was just enjoying from your brief. The analogy I've heard, it's like having to run down stairs to answer the doorbell on your wedding night. Like you just don't want to force the reader to interrupt the good flow of your legal writing that you are given that reader by sticking a bunch of stuff in the footnotes. I try to avoid that as much as I can. I don't

Tim Kowal  1:09:44 
like dark my eyes up and down, up and down. Sometimes I just get lazy and I see okay, there's a footnote. I'm just gonna keep reading and then when I before I turn the page, I'll just glance and see what's down there. Right and then it disrupts the flow either way.

Chris Schandevel  1:09:56 
Absolutely. Yep. So to the extent that you can my I had a mentor who Repeat on my legal writing when I started writing briefs, and I can't tell you how many times on my paper on my briefs I get back and big, bold letters above the line above the line. She was always making me move stuff up above and that stick with me.

Tim Kowal  1:10:12 
Yep. All right, you know, we're going to I mean, that's going to serve as the lightning round for today, because you gave us all your grammar tips.

Jeff Lewis  1:10:19
No, we're gonna have an abbreviated version of lightning round. We are running low on time, but we're gonna have an abbreviated version. One question. Are you ready?

Chris Schandevel  1:10:26 
Let's do it. cleaned up.

Jeff Lewis  1:10:28 
Your your three choices are everybody should use it lawyers and judges judges only or nope, no cleaned up anywhere.

Chris Schandevel  1:10:36 
Everybody should use it. Absolutely. I am a huge fan of the cleaned up parenthetical i just i don't know i I'm a fan of following the blue book generally. But when it when following the blue book decreases readability of my briefs, I think it hurts persuasiveness, and gets in the way of, you know, what I'm trying to accomplish as an advocate. Now, granted, has to be used correctly. And so my fear is that attorneys are using it to make substantive changes and just saying Oh, cleaned up and not showing their work. It cannot be used in that sense. But in terms of, you know, dropping a bracket, or dropping a quotation mark, that you don't need, I'm all in favor,

Jeff Lewis  1:11:16 
what a great barometer for either a law clerk, research attorney or judge to just take a test to see if this lawyer has credibility, take a couple of cleaned up quotes and see does this really say what he says? He says?

Chris Schandevel  1:11:28 
Absolutely. So I think you have to earn your right to use that cleaned up parenthetical by using them responsibly, incredibly. And once you've shown the reader that they can trust your use of those things, that parenthetical is you're good to go.

Jeff Lewis  1:11:41 
That's it popped up. You know, it's popped up, I think, once or twice in a US Supreme Court case, and it's popped up in one California published case, has it popped up in any Virginia published decisions?

Chris Schandevel  1:11:52 
Yeah, I haven't looked at Virginia specifically to see if they've started using it yet. I'll have to see I'm expecting a decision from them by the end of June. And I certainly use it a lot in my briefs. So we'll see if any of that rubbed off on whoever's writing that opinion.

Jeff Lewis  1:12:05 
Okay. Well, as we wrap up here, anything you also want to add that you think our audience might be interested to know about you or the way you approach appellate law.

Chris Schandevel  1:12:14 
Just that I can't thank you guys enough for having me on today. It was a blast and a thrill. If there's anyone out there listening who either does appellate law and wants to just nerd out with a fellow appellate attorney or someone who's not yet in the appellate law space, maybe a younger attorney, or someone looking to make a shift free, find me on LinkedIn, reach out to me, I love to chat. I'd love to be of any help to any of your listeners as I can on those fronts. So I always enjoy talking about this stuff. And I'm so grateful that I got a chance to do this with you all here this afternoon.

Tim Kowal  1:12:43 
Likewise, Thanks, Chris. And I like your motto about cleaned up, use responsibly. That's right. And that's gonna wrap up this episode. Again, we want to thank casetext for sponsoring the podcast each week, we include links to the cases we discussed from casetext daily updated database of case law, statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on case text basic research at casetext.com/calp. That's casetext.com/calp.

Jeff Lewis  1:13:13
Yeah, and if you have suggestions for future episodes, please email us at info at Cal podcast.com. Please only use Times New Roman, Roman single space. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal and preparing for trial.

Tim Kowal  1:13:25 
All right, see you next time. Thanks again, Chris.

Announcer  1:13:27 
Thank you all. You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

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

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

Here are some legal trends and trivia from this week:

• 💉Justice Neil Gorsuch called COVID emergency orders among “the greatest intrusions on civil liberties in the peacetime history of this country. Executive officials across the country issued emergency decrees on a breathtaking scale,” referencing orders, sometimes backed by criminal enforcement, requiring home quarantine, shuttering schools, businesses, and churches, while officials “allowed casinos and other favored businesses to carry on.” Justice Gorsuch also referenced vaccine mandates and possible government pressure on social-media companies “to suppress information about pandemic policies with which they disagreed.”
• Justice Gorsuch suggests two lessons: “One lesson might be this: Fear and the desire for safety are powerful forces….We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree….But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government….Decisions produced by those who indulge no criticism are rarely as good as those produced after robust and uncensored debate.” Gorsuch concludes: “Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow.” (Statement here.)
• 👉You don’t have to make a posttrial motion to preserve issues you lost in an MSJ. In a unanimous decision in Dupree v. Younger, written by Justice Amy Coney Barrett, the court overturned precedent from a minority of circuits that required litigants to raise legal issues in a motion for judgment as a matter of law after trial, through Federal Rule of Civil Procedure 50. When a "purely legal" issue is resolved at the summary judgment stage, it is preserved for appellate review without a Rule 50 motion, the court said. (Via Ben Shatz.)
• 💡Justice Bedsworth on citing unpublished cases: “unpublished federal authority is citable. Whether it will do you a lot of good is another matter.” (Via Ben Shatz.)
• 🤚Ninth Circuit Reinstates Challenge to State’s Loyalty Oath. (Via MetNews.)
• ⏲️Eighty percent of Supreme Court arguments went over their allotted time this term, for an average of nearly 30 additional minutes. (Via Ben Shatz.)
• 🎉May judges attend law firm parties? California Supreme Court Committee on Judicial Ethics Opinions (CJEO) invites public comment on a draft formal opinion addressing whether a judicial officer may attend a celebration hosted by a law firm. The judicial officer’s presence at such celebrations, the committee explains, may suggest the judicial officer has a special relationship with or endorses the law firm, which may undermine public confidence in the judicial officer’s fairness in cases where the law firm appears. (Via Ben Shatz.) Comment: Some people won’t be happy until we make judges live in a soundproof booth.

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

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

Before oral argument in the cannabis-cultivator eviction case of 65283 Two Bunch Palms Building LLC v. Coastal Harvest II, LLC (D4d2 May 5, 2023 No. E076654) --- Cal.Rptr.3d --- (2023) 2023 WL 3268852, the court issued a tentative opinion—partially certified for publication—against the tenant Coastal Harvest. Rather than have to face this unfavorable precedent in future cases, Coastal Harvest moved to dismiss the appeal.

But the court denied the motion. “Appellate courts are disinclined to grant such an “11th hour” request to dismiss an appeal,” the court said. This is especially the case when dismissal for strategic purposes, as seemed to be the case here: “And, appellate courts are generally loath to dismiss an appeal when it appears the dismissal is calculated to derail the creation of unfavorable precedent.”

What was the unfavorable precedent the cannabis-cultivator wanted so badly to avoid? Coastal Harvest argued that a statutory presumption of a one-year lease term applied to agricultural uses. (Civ. Code, §1943; Code Civ. Proc., §1161, subd. (2).) The trial court ruled that the cannabis-cultivation here was not agricultural.

But the Court of Appeal did not even reach this issue. Instead, the court noted that a different statutory presumption applied: the general presumption under Civil Code section 1943 that an oral lease is month-to-month. And even if the one-year presumption had applied, it was rebutted by the evidence of intent to create an month-to-month lease.

Still, it appears that Coastal Harvest did not want a published opinion that suggested that “growing cannabis in moveable pots within a wooden floor warehouse was not “agricultural use” because Coastal Harvest was not “cultivating the ground.””

The Upshot:

The time to consider the potential risk of an unfavorable published appellate opinion is before the appellate record is filed. Once the record has been filed, “[a]n appellant may not dismiss an appeal as a matter of right, and we have discretion not to dismiss the appeal.” (Jackpot Harvesting, Inc. v. Applied Underwriters, Inc. (2019) 33 Cal.App.5th 719, 728, fn. 10; see Cal. Rules of Court, rule 8.244(c)(2).) Use the time early in the appeal to carefully consider these risks.

Comment:

Many appellate practitioners, this writer included, support the appellate courts’ issuing tentative opinions. But when litigants use them to file strategic motions to dismiss as here, courts may second-guess the practice. Litigants should take care not to abuse tentative opinions—it risks spoiling it for the rest of us.

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

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

In two surprise post-trial moves—likely driven by embedded appellate counsel—a plaintiff first lost her case, then won it back.

The employee won her whistleblower claim after a jury trial in I vie v. Astrazenica Pharmaceuticals LP . No. 21-35978, 2023 WL 3563007 (9th Cir. May 19, 2023). But then Astrazenica moved for judgment as a matter of law, and won. The grounds: the employee failed to prove a sufficient factual nexus to Oregon to establish a claim under the state’s whistleblower statute.

Tough break for the employee.

But on appeal, the employee argued that Astrazenica never raised its “Oregon-nexus argument” in the parties’ joint pretrial order. So Astrazenia forfeited that argument.

And the 9th Circuit agreed, albeit in a split decision. The local rule requires the parties to submit in the joint pretrial order a “statement of each claim and defense to that claim.” And the joint pretrial order “amends the pleadings.” See also Fed. R. Civ. P. 16(d) (providing that pretrial order “controls the course of the action unless the court modifies it”), 16(e) (“The court may modify the [pretrial] order issued after a final pretrial conference only to avoid manifest injustice.”).

“We have repeatedly emphasized that “a party may not ‘offer evidence or advance theories at the trial which are not included in the [pretrial] order or which contradict its terms.’ ” El-Hakem v. BJY Inc., 415 F.3d 1068, 1077 (9th Cir. 2005)2 (quoting United States v. First Nat'l Bank of Circle, 652 F.2d 882, 886 (9th Cir. 1981)). This requirement extends to “any and all theories,” id., which means that “[a] defendant must enumerate its defenses in a pretrial order even if the plaintiff has the burden of proof,” id. (citing S. Cal. Retail Clerks Union v. Bjorklund, 728 F.2d 1262, 1264 (9th Cir. 1984)).”

Astrazenica argued that the district court, by granting its motion for JMOL, impliedly amended the pretrial order to include the defense. But that doesn’t work, the majority concluded. While the district court did have discretion to amend the joint pretrial order, it would need to do that explicitly, and give the plaintiff an opportunity to respond to the belatedly-asserted defense. That didn’t happen here.

Dissenting, Judge Bumatay noted that, while Astrazenica did not “explicitly” identify the Oregon-nexus defense, it did assert a “failure to state a claim” defense and pleaded that the employee was not entitled to any relief on the Oregon whistleblower claim. The district court concluded that the lack of explicit mention of the Oregon-nexus defense did not prejudice the employee.

Coming to the point, Judge Bumatay concluded: “That doesn't seem wrong—Ivie hasn't proffered any additional evidence that she would have admitted at trial if she had more express notice of the extraterritorial defense. The district court's ruling then seems to fall within its discretion.”

Judge Bumatay also noted that, while the majority is right that the joint pretrial statement should not be amended after-the-fact if it would prejudice the plaintiff, the majority did not point to any prejudice here. And yet Astrazenica was deprived of a meritorious defense.

Judge Bumatay wonders: “So I'm not sure why *El-Hakem”—and its provision that a defense is preserved if the pretrial order makes any reference to it—*doesn't apply here.”

Takeaway: Pay close attention to the joint pretrial orders before a trial in federal district court. Local rules typically provide that any claims or defenses not mentioned will be deemed waived or forfeited.

But on the other hand, I would not count this result is typical. For every precedent supporting a forfeiture, there is a precedent supporting an exception. If you are going to argue forfeiture, be prepared to show how allowing the belated assertion would result in prejudice. That was not shown here, which makes the majority’s result surprising—and suggests Judge Bumatay is probably correct in his dissent.

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

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

The National Center of State Courts recently published its 2023 rankings of judicial salaries, with California and DC trading #1 and #2 spots. At a mean national judicial salary of around $174,000, by starting out in a modest condo and scrimping and saving, a judge in California might achieve the dream of homeownership just before retiring into private ADR.

But Troy Shelton notes that his home state of North Carolina ranks 45th with the mean judicial salary around $152,000. Meanwhile, North Carolina is flanked by states each averaging greater salaries by $40-50k.

Some interesting facts about judicial salaries:

💲 Very few Big Law attorneys, where pay greatly exceeds judicial pay, become judges.

💲 Cost of living is tricky to account for—should metro-area judges be paid more then rural-area judges just because of where they live?

💲 In 2021 the national median 1st-year associate salary was $165,000, rivaling judicial salaries—something seems wrong here.

And some interesting differences between CA and NC procedure:

⚖ NC courts can overrule past precedent using an en banc procedure—but they’ve never used it.

⚖ NC has no anti-SLAPP law—but there doesn’t seem to be much of a SLAPP problem.

Troy Shelton’s biography, LinkedIn profile, and Twitter feed.

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

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

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

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

• NCSC Survey of Judicial Salaries
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Transcript:

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

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

Tim Kowal  0:19
And I'm Tim Kowal. Although Jeff and I are a certified appellate specialist, and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some legal news and insights they can use in their practice. As always, if you find this podcast helpful, we were grateful if you would recommend it to a colleague. Yeah, before

Jeff Lewis  0:34 
we jump into our discussion this week, we want to thank casetext for sponsoring our podcast. casetext is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. He's Texas relied upon by 10,000 firms nationwide from solo practitioners to American law 200 firms and in house legal departments. In March 2023. Casetext launched co counsel, the world's first AI legal assistant co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy listeners of our podcast enjoy a special discount on case tech basic research at casetext.com/calp. That's casetext.com/calp.

Tim Kowal  1:16 
All right, Jeff, you know for today's topic, I noticed a few months ago that the National Center of state courts has published its 2023 rankings of judicial set salaries. California, obviously the home of the California appellate law podcast slipped from the number one spot in 2020 to trade spots with DC who is now has that top spot we're fairly handsomely remunerated in way of judicial salaries here in this state with a mean national judicial salary of around 174,000. If that were the case in California by starting out at a with a modest condo and scrimping and saving a California judge might be able to achieve the dream of homeownership before retiring into private ADR practice. But Troy Shelton notes that his home state of North Carolina ranks 45th in judicial pay while being flanked by states each averaging 40 to $50,000 more in annual salary. So today we're pleased to welcome Troy Shelton to talk about judicial salaries and their effect on the courts and legal practice. Troy's article is it's time to raise judicial pay in North Carolina that his column in North Carolina lawyers, Carolina paralegal news, and Troy is an appellate specialist in North Carolina. He serves as embedded appellate counsel during litigation and trial as well as obviously the appeals themselves Troy is certified by the North Carolina State Bar as an appellate specialist Troy has a wide variety of trial and appellate experience including class actions antitrust employment, land use and family law cases. Troy also frequently litigates commercial disputes in federal and North Carolina business courts and serves as a class action consultant to other attorneys. Both plaintiffs and defendants. Troy is a contributing author to the North Carolina appellate practice blog, which provides news information and tips for practicing law in North Carolina state and federal appellate courts. And Troy was a law clerk to the US District Judge Thomas D. Schroeder in the Middle District of North Carolina. Troy, welcome to the podcast. Thanks for being with us.

Troy Shelton  3:20 
Thanks. Thanks for having me.

Tim Kowal  3:21
Now, Troy, I just gave a just a little bit of background before we launch into a discussion about judicial pay and its effect on on the courts and on the bar. Tell us a little bit of background of your practice that I didn't get to in your intro.

Troy Shelton  3:34 
So I I do almost exclusively appellate law. And there's there's not too many of us doing quite that narrow of practice here in North Carolina. I didn't start out that way. I started out doing some appellate work for the man who would become later the Solicitor General for the state. And it was a different firm doing a little lytic litigation boutique here in Raleigh, North Carolina. He left in the firm to become the Solicitor General, our appellate practice or got up and was gone when he as he was gone. Then I moved over firms to I'm now at Fox Rothschild used to be a regional firm that had really the biggest appellate team here in the state of North Carolina. And we continue to be the biggest appellate team here in the state. Most of our appellate members are board certified appellate specialists. And that's what we focus on.

Tim Kowal  4:24
I was impressed that your state has your state bar has a certification program for appellate specialists, not not a lot of states have that. How long is North Carolina, the North Carolina bar had an appellate Specialist Program.

Troy Shelton  4:35
So I knew that the specialization program itself in North Carolina is one of the oldest in the country. Um, so I think we actually have we might have more specialists than just about any other state. That's what I heard recently is what the appellate specialization itself is not as old. I think it goes back to 2010 ish, maybe there abouts. So it's relatively young compared to some of the other specialties in the state and I It's a, I'd say the it's a club of about 25 or 3035. Attorneys. there abouts. Oh,

Jeff Lewis  5:07 
wow. Hey, Troy, in hearing, Tim, read your bio, there was a reference to business courts in California, the home of granola and yoga. We have, you know, the Superior Court, which is a state court. And then we have District Court, which is a federal court, we don't have something called a business court. What is that?

Troy Shelton  5:23
So our business court is you can think of a bit like chancery court in Delaware. And I think some other states have maybe begun adopting business courts, where it's a we have superior court, which is our main trial court division here. And this is sort of like a special division within the Superior Court where high dollar business disputes go and certain other sort of antitrust securities litigation, all is supposed to go into the business court. And our normal state trial court judges don't have clerks, for example, but the business court judges do. So the business court. It's a bit like being in federal district court, and many people who have business litigation cases can can be almost indifferent, really between being in business court or being in federal district court.

Jeff Lewis  6:10
Do you have the right to a jury trial in business court?

Troy Shelton  6:14
You do? You do? Yeah. Interesting. But well, to the extent your claim would already have a right to a jury trial, it's not court dependent.

Jeff Lewis  6:23 
Yeah. And do appeals for business court. Are they handled the sleigh appeals handled from the Superior Court or a district court has anything special about their business appellate panels,

Troy Shelton  6:34
so there's no business appellate panels, but so in North Carolina, we have two, we have an intermediate appellate court court of appeals. And then we have the Supreme Court of business court cases, hop over a Court of Appeals. So appeals go directly to the Supreme Court. The idea being from the late night was we want we want more business cases and more business precedent to be set, so that so that businesses will have more guidance? I'm not sure that has panned out the way the legislature had hoped. But I think that was the intent at the time.

Tim Kowal  7:05
So is it a different branch or different arm of the judiciary, by comparison, in California, we have one Superior Court or superior court for each county, and they have within them different panels, you know, for for probate and family, the general civil panel, but they're all part they're all under. They're all in the same building. They're just administratively separated, and they have their own procedures, but they're all part of the superior superior court in California. Is that similar to the way the business court works in North Carolina? Or is it as a separate entity?

Troy Shelton  7:32
It's like how you mentioned so the business court judges are also superior court judges at the same time, so they could just sit as regular superior court judges. So all the judges in our state are actually elected. But business court judges are appointed for terms by the General Assembly.

Tim Kowal  7:49
Oh, and they are not not subject to retention elections, either.

Troy Shelton  7:53 
We don't have any retention elections in North Carolina. Oh, so once, once you're elected, you're in for life. You're there for eight years a year terms. Oh, and then you're done? Oh, well, you can rerun there's a term limits, but there's no there's no normal retention election like in in other states where you there's an appointment process and then a retention election.

Tim Kowal  8:11
I say, Okay, now, we're gonna be talking about your article about raising judicial pay. In the North Carolina State State courts based on the survey of all I'll 50 or more, really more, because it counts Guam and Puerto Rico, other jurisdictions. But before we talk about state court judicial pay, tell us does that suggest that you spend more time in state courts in North Carolina? Do you do a fair amount of practice in federal courts as well?

Troy Shelton  8:36
We do a decent on federal court. But I'd say my bread and butter is being in the state appellate courts. We have multiple appeals going on a given time up in the force and not just in the Fourth Circuit. So our appellate team, which is really headquartered here in North Carolina, helps our litigators across the country. So I have, I've got to deal this down in the 11th. circuit, the Fifth Circuit, but also sometimes other states, so So I had appeal up at the South Dakota Supreme Court, but my you know, certainly the cases where I get hired for myself are normally here in North Carolina, and often in our state appellate system.

Tim Kowal  9:13 
Now on the podcast here, we talk a lot about typical mistakes that attorneys make both in the trial courts and the appellate courts, like waiving arguments or you know, failing to perfect the record on appeal, failing to order an appellate record for the appeal, filing untimely appeals or taking an appeal from a non appealable orders. Do you have the same kinds of problems that you see through the eyes of a North Carolina appellate attorney? Do you have different or novel problems that maybe other other states, California practitioners don't see?

Troy Shelton  9:42
One problem that I've seen repeated many times? You know, after a case gets dismissed a summary judgment, and then a party moves under Rule 50 Our rule 59, which is the analog to federal rule, 59 moves for a new trial, and but they're really Not it's what we will consider not an inappropriate rule 59 motion? They're actually trying to argue new things that no oh, well, you just didn't think you just didn't raise this issue. I mean, you you could have, but you didn't. So it's gone. The rule is that an improper rule 59 motion doesn't toll the time for taking to file the notice of appeal. So if if you don't really fall within one of those subsections of rule 59 for a new trial motion, then that's not going to tell you your time. And so then you're going to be out of luck on the appellate jurisdiction side, which is a huge trap for people.

Tim Kowal  10:37
That's interesting, Jeff, that reminds me of the rule here in California about invalid motions like where it doesn't, where you don't check all of the procedural boxes like a motion for reconsideration, it has to be accompanied by a declaration showing that it's based on new law or new evidence. And if you don't have that declaration, then no, no good. But are you suggesting Troy that it is, even if you tick all of the procedural boxes, if it's raising an argument that, you know, basically was weighed by not having raised it at trial, then it's not meritorious, and therefore, it's an invalid motion and doesn't get told the time to appeal? It's almost

Troy Shelton  11:12 
Well, it's not? It's not just that, well, the motion might get denied, but that it's substantively doesn't fit any of those subsections? So it's not it's not the sort of objective look, which seems I can I can understand that role that California would have ours is less objective, it goes to the substance of what's being argued in the motion. Yeah. So if it's to say, Well, if you don't even cite the subsection, so rule 59, then well, it could possibly have been a proper reconsideration. Neutral motion.

Tim Kowal  11:41
Yeah. Yeah. So it's a similar kind of animal that all of us appellate attorneys have to deal with is, though, you have an exception, you have an extension of time to file your your appeal, but not so fast. Let's look a little deeper, any kind of exception that gives you an extension to file that Notice of Appeal, beware,

Troy Shelton  11:58 
yes. And our Court of Appeals is more than happy to dis dismiss an appeal. That's improper for really any reason at all. So you don't want to give them that out? Because then they will often take it.

Tim Kowal  12:10
Yeah, that's interesting. We've talked with Todd Smith and Jody from the Texas appellate law podcast about this kind of issue of cases of courts dismissing on technical grounds. And you know, there's there's a view that look, it's a, it's appeals are remedial, they should be construed broadly to against forfeiture of the right. But in California, of all places, you would think that, that were, you know, more big hearted here and would take a more expansive view of the rules and not be limited to the text of the rules. But when it comes to dismissing appeals and finding appeals to be untimely are taking for non appealable orders, courts here tend to be very straight laced, and will just kick appeals right out the door if they don't comply with all the rules. So that's similar in North Carolina.

Troy Shelton  12:52
Yes, I think that's true. Anywhere you go that you should not attend, you should not tip the judge with, you know, easily kicking a case, because they often will, right. I mean, that's how we think about it really on the merits of a brief right, we want to make it as easy as possible for the court to agree with their client. What easier way than just clicking the appeal all together?

Tim Kowal  13:10
That's right. All right. Well, let's get right into your article, the article, naturally, Shelton's article is called it's time to raise judicial pay in North Carolina from North Carolina Lawyers Weekly for March 2023. And in the article, Troy, you discussed that judicial pay in North Carolina is in the bottom quintile, I think it is of all the other state. Now, Troy, you're not a judge. So this doesn't affect your bottom line. Why did you get interested in this topic of judicial pay?

Troy Shelton  13:35
Well, I don't think that you need to be a judge. And I don't think that you need to be a lawyer to care about how much judges are paid, because how much we pay judges has some effect on the quality of the judges they that you're going to have. Right? And also has some impact on the experiences that those people are going to bring with them. If you pay judges, at the bottom end of the scale. Are you going to get lawyers taking the job to work out, you know, work on complex cases? Are you Is anyone from a law firm, you know, the large law firm going to take to the bench at all? Our if they do, how long will they stay there, right? Because you might have, you know, a large amount of turnover. So those are things that I think that we should, if we care about the quality of the judges that we have, that we should care about how much we pay them because those things are related.

Tim Kowal  14:23 
Yeah. Now, you mentioned that, you know, what we pay judges has some effect on the quality of judging. And I wonder if I don't want you to take any make any statements that might get you in trouble. But you're you're in a jurisdiction in your state where you're in the bottom quintile in terms of pay for state judges, federal judges, relatively will be paid more than your state judges. Is there any kind of rudimentary comparison that can be made? There are a take a judge's if an attorney were offered the prospect of being a state judge versus a federal judge, they would always take federal judge because of you know the the additional power that goes along with it, but if you're just basing it off of dollars, There's no sense, you'd have that additional instead of to be a federal judge. If you're in North Carolina, you're gonna get paid more as a federal judge, does that give any insight into the quality of judging just based on the pay between state and federal judges in North Carolina?

Troy Shelton  15:12 
I think it gives some insight. You know, I think the Fourth Circuit, for example, the judges are considered, you know, very bright. I think it's also true for our federal district judges, I think you can look at their backgrounds for the, for example, the judge that I clerked for was sort of in line to be managing partner of a really large firm, he would never, I can't imagine, he's certainly never said this to me. But I can't imagine he would have taken judge being in a trial court judge in our state court system, if that had been offered to him that I find that a little hard to believe, but he was willing to take the federal district court position, because now of course, like there's the prestige of being a federal district court judge, but the pay is, certainly was then and still is significantly different between the two as well, of course, I'm not representing he's ever said any of those things to me, because he hasn't, but I can't imagine those things don't go into people's minds.

Tim Kowal  16:06
Sure. Now, in California, it seems like every week or so we're learning about a judge who is retiring from the bench to move into, you know, not to spend more time fishing or spend more time with the grandchildren. But to go into private alternative dispute resolution. You know, I think any judge few judges have publicly admitted this some will, but usually don't see them saying that, Oh, yeah, I'm doing it for the money. They're saying it because it's interesting new opportunities, I can bring a broader perspective to different people than normally than the normal narrow subset of people that I get to talk to from the bench or even in the California State, our state, Supreme Court Chief Justice retired six months ago, and now she's in private ADR. And I suspect it's has something to do with the fact that they can make more money in private judging, and maybe it's also the flexibility. But I wonder if you have any thoughts on that? Are you seeing that in North Carolina judges retiring from the bench and going into private practice, or ADR, where they can possibly make more money than they are from their state judicial salaries?

Troy Shelton  17:06
No, so I've not seen any retire. So retiring can mean two things in North Carolina, it can mean you you chose to leave the bench or you lost your election. And so you left the bid. So I have, you know, in the past election, we had, you know, one justice retire from our state Supreme Court. He's now in private practice. He just lost his election is what what happened. Same for another, another judge who was on a Court of Appeals Ryan for a Supreme Court seat, she lost. So she she's, you know, she's joined, you know, a private practice, but I don't see them retiring. And I think that sort of voluntarily, and I think that might be a function of will who chose to join the appellate judiciary to begin with? These people often didn't come from private practices, or if they did, they were very small private practices. So that might suggest that the gap between the pay that they left behind, and the pay that they are getting as appellate judges was not massive. There's only one I think there's only one appellate judge in our in either of our our appellate courts that really worked at a large firm before he took the bench. You know, it's uh, you know, he's a Supreme Court justice. I'm friends with him. We've worked together a lot, but he's really the only large firm, you know, appellate judge in the state that, you know, he I get, you know, he made his own determination, obviously, about the giant pay cut that I'm sure that you took, but that we don't have a lot. We don't have anyone else even like that, even though they're plenty, plenty, plenty such attorneys in the state. They're not really represented on our appellate courts.

Tim Kowal  18:45
Yeah, that's interesting. That suggests I wonder if there's a broader trend of not a waning interest in being a judge. I think it used to be that you asked any attorney, would you like to be a judge? And they wouldn't have to think about it, it would be a reflexive. Yes. And now I think people would probably sit back and think well, you know, let me think about that. Let me think about the, you know, what I'm giving up in terms of salary and choice of cases, quality of life, who I can talk to about about my cases and things. Do you see that that broader trend? Is there? Is there a waning interest in becoming judges?

Troy Shelton  19:18
I think that there is a I think the interest part is not just the pay the article, this is on the pay. And I do think that's a big part of it. Because I've known people who are, you know, for a position they could have gotten through an appointment, but essentially turned it down because I mean, they weren't going to take that kind of pay cut. But I think there's also a problem, because we elect all the judges, and currently our appellate judge races are all partisan races. And I think that people are on especially at larger firms are unwilling to do the sort of statewide campaigning because we don't have districts for our appellate judges. It's all statewide elections. I mean, just to go do the count. Painting would take a huge amount of time out of your private practice. Right. So I think that that causes the waning of the interest. I think if you could solve some of the salary, you could solve some of, you know, the electioneering needed the campaigning, then you might, you might see that there is an interest there, if you remove the obstacles.

Tim Kowal  20:19
Are there any you mentioned that the that the campaigning for judgeships in North Carolina or statewide does that create any issues with solicitation of donors? I know that a lot of people find the whole prospect of judges having to run for elections, whether it's to get elected or retention. retentions, I guess, are not as don't seem to be as controversial but running for election, you have to hold stuff, you know, give stump speeches and attract donations? And does that create problems for people claiming bias and things like that in North Carolina?

Troy Shelton  20:49 
It has, you know, we've had some very high profile political cases and our state Supreme Court last year, for example, and they ended up culminating with recusal motions going both ways, in these political cases trying to get both Democratic and Republican justices to recuse from some of these cases, is not necessarily about because of things they did during the campaign, but types, related matters. They worked on one with a legislator, and then was working on a case that was somewhat related to legislation she had worked on, before she joined the bench. So you do you do see some of that. The judge, I can tell you that the judges hate, they all hate campaigning, they don't like it. It's a giant burden to travel across the state. Because, you know, like, you know, not just our Supreme Court justice, but even at the intermediate appellate court, it's still those are still statewide offices.

Tim Kowal  21:37
And they have to do that every eight years. You said every eight

Troy Shelton  21:41
years. And so and so, you know, if there's a vacancy, then the governor appoints the big, you know, appoints you know, someone to for the next two years, but then they have to run again, right after that. So,

Tim Kowal  21:54
yeah, so I've been faced with the prospect of having to gear up for another election, in order to take a salary that it's in the bottom quintile of the nation that probably calls for some some hard conversations across the dinner table with the spouse.

Troy Shelton  22:08
I think that's exactly right. I think that's why you see that not so many people from private practice to join in, go into the bench because you have your lifestyle, you might live perfectly within your means. Right? You know, it's not a golden handcuffs kind of thing. But to imagine taking $100,000 pay cut $150,000 pay cut more, of course, obviously, for many senior attorneys, that's drastic. Yeah. Asking a lot.

Tim Kowal  22:34
Yeah. Well, inherent in California, I mean, everything, everything everywhere, I guess it's usually is measured in terms of home prices. And here, you know, when you take the judicial salary, compared to the home prices, you're still at a 5x median multiple, which means that technically it's it's under unaffordable by traditional, you know, by standards five years ago, you know, now maybe a 10x multiples is considered affordable. But yeah, that gets gets hard once you pay the mortgage. And you're mourning Starbucks by some measures. You're you're below the poverty line at at a judicial salary less than 200,000.

Troy Shelton  23:04 
Yeah, ma'am. And imagine you have, I have three kids, right, like you and three young kids. They're not even in grade school yet. I mean, you've gotta have to save for all their colleges, right? I mean, you you're gonna decide not to save your kids colleges, because you want to be a judge. I mean, that's a question you'd have to ask yourself. Right.

Tim Kowal  23:21 
Yeah. Now, Troy, you mentioned in your article that, that in 2021, the national median first year associate salary was 165,000, not including bonuses. We had talked about this a little bit how hard it is to get folks from, especially from big law to consider going into judiciary, if it's not, you know, comparably remunerated. But this, you know, this first year associate salary of 165,000, rivals judicial salaries in some states, including North Carolina, and I think even at some levels in California as well, you know, this seems intuitively wrong that a first year associate should be making the same amount as a judge, how do we fix that? Should judicial salaries somehow be, you know, legally pegged to private salaries? Because I think just in the last 1015 years, we saw associate salaries shoot up drastically in big law? And what does that mean? How do we address that problem of first year associates being able to make more than judges?

Troy Shelton  24:18 
And I certainly don't think that, you know, we have to have big law, you know, setting the salaries for for judges, I don't, there is, there's nothing wrong, and I think everything right, with expecting that many judges, you know, maybe prospective judges would have to take a pay cut to become a judge. I think that that's fine. And because there are of course, other benefits, the prestige, the power, you know, just the interest in public service that comes with being a judge. But I think we do have to pause and ask ourselves, think about, you know, the quality of the judge that you'd like to have. That person is a lawyer right now, but he's not a judge or she's not a judge. And ask yourself, you know, what's the opportunity costs? that person what what is it that that the the high quality candidate is given up to come be a judge? Because, you know, some people will say, Well, who really cares what lawyers are getting paid? Well, the average salary in North Carolina is like $50,000 or 60,000. You know, but that's an irrelevant number, right? Like, we need to know that because that's not that's not what they're leaving behind. At least No one's leaving behind a $60,000 job to come on be an appellate judge. We want to know what they're leaving behind. And I think that, you know, at least looking at what's it like a senior associate get paid? Right. I mean, that same if we're looking, I think it helps tell you something, I don't know that you can create some formula based on first year salary, associate salaries, but we need to know what's a mid level what's a senior associate, or a junior partner? What's that kind of person getting paid? And and maybe that's closer to the number that we should be shooting for, for a judge?

Tim Kowal  26:00
Yeah, I think in your article, you mentioned, there are a relatively small number of appellate justices in North Carolina, obviously, fewer than in California. But when you look at the state state budget as a whole, and the amount, you know, just to bump them up to a salary that that starts with a two, and it's not going to be a lot of money, I think in North Carolina would be 700,000 bucks, which is, you know, just a blip in the button, not even. So does that suggest that the the issue is more like an issue of political will? Is it because people just look at politicians don't want to have to account to people would say, why are you paying, you know, government workers more?

Troy Shelton  26:35 
I think that is part of it. I think that there's not been enough noise made about it. I will say that since I wrote that article, two things have happened. First, our house came out with its budget, which had a modest increase for appellate judges in the state. And then actually just yesterday, or the day before our Senate came out with a budget that was actually spent less but had an even larger increase for the appellate judges so that for the first time ever, the proposal was that the Chief Justice's salary was always right on the news at $200,000, and pegged the Chief Justice's salary to the governor salary, which makes sense, but is, especially in our state chief justice is in charge of actually the administration of the entire judicial system, not just deciding cases at the Supreme Court. So he's also an administrative officer in that sense. So, you know, I think that we're going the right way. I don't know if it was partisanship that that held things back because over the past, since 2018, for example, our Supreme Court has been controlled by a Democratic majority, but our legislature since 2011, has been controlled by Republicans. I don't know if that is what stymied it that we saw really just modest increases during that time. So now, now, starting January, this year, the person makeup of the Supreme Court flipped and now matches that of the general assembly. So maybe, maybe, you know, I don't know if that's an answer or not. I have no idea what's going through the General Assembly's mind. But I do see that that most recent budget, that some real progress that we're making for Yeah, I

Tim Kowal  28:11 
know, I recall, reviewing, reviewing my city's budget, when we're advocating for some some kind of campaign about removing toxic pesticides from the parks, and we were getting some pushback that, oh, it's going to be more expensive to pull weeds or to use non toxics. And so I was looking at the budget, and notice how much you know, police and fire personnel make. And you know, the city manager and the police chief and the fire chief all make close, close around a $400,000 annual salary. And you know, I think it's probably, I don't know why it should be a hard sell to get appellate judges, you know, in the same neighborhood is that?

Troy Shelton  28:45
Well, this agreement here?

Tim Kowal  28:47
Yeah. That's really, how much one other question that was triggered, in my mind reading your article, how much should judicial salaries fluctuate depending on geographical cost of living? You know, we've been talking about prices of housing, you know, different cost of living in California versus North Carolina. And even in California, you know, you go 50 miles in one direction, and you feel like you're not in California anymore. You're in the desert or you're in a we have the inland area, the breadbasket area where it's all agricultural, feels like it's a different state from the metropolitan regions. How much should judicial salaries fluctuate depending on these differences in geography, and you mentioned in your article that trial judges, for example, are scattered across the state, some in rural regions, seven Metro regions, while appellate judges tend to reside only in the metropolitan regions. And that might be a reason why their pay needs to be increased a bit more because of the higher cost of living in the metro regions. Should salaries be based on the relative cost of living or just the value of services or a mix of the two?

Troy Shelton  29:49 
Well, it's funny that they asked that when I was writing the article, I sent a draft to one of my colleagues who's a former Supreme Court justice in North Carolina, and he said he suggested writing less about this sort of variability for it, because apparently, it's, I guess the idea has been floated in North Carolina in the past. And it's been pretty controversial. I can understand why. Right. But at the same time, I know, you know, when I was a federal district court clerk, I mean, there was a cost of living pay. It just depends on, you know, depending on the geography that you're in and struggling is pretty reasonable. I mean, why I was clerking and not a giant city in North Carolina, of course, like my cost of living is way less than someone clerking in Manhattan. Right. It struck me as sort of obvious that we did pay those clerks a little bit differently. And I think for for appellate judges in North Carolina, it's an easy question. They all have chambers here in Raleigh, where I am, we should pay them a cost of living comparable to North Carolina. But I mean, I lean towards some variable pay for our trial court judges. And I know that I know that now. Like I said, I was worn controversial take, I don't know if you guys have some thoughts on that. But there's a good argument there.

Tim Kowal  31:00 
Yeah, no, I don't have a, I don't have a strong feeling one way or the other. Just, I'm glad you confirm that it is an area of controversy and where there are some different opinions on it. So we'll have to love to bookmark that and look out for the folks who do have strong opinions one way or the other. So but but you lean in favor of at least understanding the argument that there should be some some reflection for the cost of living if you're gonna live in a high cost of living area, your remuneration has to be it has to take that into account.

Troy Shelton  31:26 
I think so in your maybe maybe in North, it, maybe the answer for North Carolina is not the same as the answer for California. Right? I mean, yes, we do have some some real differences between Raleigh and Charlotte, and then really the rest of the state, which is pretty rural. But I think California probably has a much greater very, my guess is y'all have greater variability than we do higher highs and lower lows, but certainly higher eyes when it comes to cost of living. So if there's an argument to be made for, I think your state is probably gonna just about the best argument for variable pay.

Tim Kowal  31:59 
Yeah, well, and the other the other side of this, just to raise the temperature just a little bit more is that some of the variability may be because of the higher regulations? You know, there are economists and scholars who made the argument done studies that more regulations means higher cost of living. So you might say that, well, why do I have to pay you more just because your politicians decide to regulate you more? Why don't you just limit the the regulators? And that way, you don't have to pay you so much?

Troy Shelton  32:23
Yeah. I mean, you're another option would be well, you know, the state doesn't supplement, but maybe maybe the locale, the local government has the opportunity to supplement judicial pay. But my guess is if you leave it to the local governments, there wouldn't be a supplement. But just just an end state.

Tim Kowal  32:40 
Yeah. Well, if we could try, I wanted to ask you, you know, why do we have a North Carolina appellate attorney? Just a few questions as we kind of continue our our a survey of different states and try to some compare a comparison and contrast with with some of our California Rules, I like to ask whether, if you know, are your rules of civil procedure in California set by your Supreme Court in North Carolina or by the legislature. So the rules of civil procedure are set by the legislature, but the rules of appellate procedure are created by the state Supreme Court.

Troy Shelton  33:13 
Does that mean? That's different? So it's set, it's actually written into the Constitution, who gets to control what and the General Assembly our legislature has delegated some sort of trial court rulemaking authority to supplement around the rules of civil procedure? So the business court, for example, has its own set of rules that that supplement proceedings in that court and those are written by the Supreme Court, but they aren't the Supreme Court only has the authority, who is the legislature has delegated it to them.

Tim Kowal  33:41 
Got it? Okay. But what about court reporters have heard of a national court reporter crisis? There's a lot of talk of it in California, a lot of our California Superior Courts have stopped providing court reporters in departments that ordinarily had provided them like family law and probate departments. Now, they're no longer provided. If you want one, you have to order your own. Has there been any? Have you seen any changes in North Carolina in terms of court reporter access?

Troy Shelton  34:07
No. So certainly nothing recently, I should mention that our trial court division has the Superior Court division, which I spoke about earlier, which is you could consider like the main trial court division, but then there's also the district court division, which is sort of below that. So Superior Court has felonies, civil matters more than maybe $25,000. But the district court division has all family law cases, all misdemeanors, all small dollar cases go there. And in district court, in my experience, there's never a court reporters. Instead, there's audio recording, that's always recording. So you if you want the transcript, you have to though you have to essentially go get the audio file from the hearing, I suppose the trial net. I mean, there's not a lot of trials being held in district court or their trials, their bench trials and family law cases.

Tim Kowal  34:53
And it's interesting that you have the audio recording access. That's something that California has tried to get it was shut down by the courtroom. Border lobby. There are some there's a bill pending now, I believe to re implement it now that there there's this, this urgency created by the court reporter shortage. We'll we'll see what happens with it. But to date we do not have our courts do not allow audio recordings, except in very limited circumstances, like juvenile and criminal proceedings. But it is something that I think would alleviate the shortage. So is that something that works? Well, having the audio recordings available to be transcribed later for the appellate record?

Troy Shelton  35:27 
Yeah, it's not it's not always perfect. Sometimes it's hard. It's hard for the court reporter to tell who's speaking, right? It's like, hey, there's five men in a room and you can't see them right. And their voices sound somewhat similar. So you do need to take a look at the transcript to make sure that things are right or it will say unnamed person, One unnamed person to the right. So you definitely want to take a look at that when you get the copy from the transcriptionist just to make sure it's correct.

Tim Kowal  35:53 
As far as you see if you haven't seen any, any appeals that came out the wrong way because of a defect in transcribing of the audio record.

Troy Shelton  36:00
I've never seen that in North Carolina. Okay.

Tim Kowal  36:03
All right. What about how to starry decisis work in the North Carolina courts? Is it does it work similar to federal courts where the federal courts are, are bound by their own past decisions? Unless they're reviewed on bonk, or by the US Supreme Court? Does it work similar in the North Carolina State? Intermediate courts? Are they bound by their own past decisions? Or can they just ignore them at will?

Troy Shelton  36:25 
No. So they're bound to works just like precedent, our immediate core and date. So there's 15 judges on our court of appeals, they said panels of three, but there aren't districts in North Carolina. So it's not like you have to worry about conflicts between the Eastern District and the Western District divisions of the Court of Appeals, nothing like that. But I'll tell you that sometimes that their case, law, duck, there's a circuit, you know, sometimes we get a circuit split within our court of appeals, because when one panel goes off in one direction, the other panel goes off in the other direction, and they're unaware that they have created these conflicting lines of precedent. Our Court of Appeals got on board procedure allowed by the General Assembly, I don't know five or six years ago now, but I've never used it. So there's a split of opinion about the at the with the Court of Appeals judges about which ones want to use it and which ones won't? Don't. Yeah, I think, Well, if there's a split, it's not our problem. Let's bring court fix it. Right.

Tim Kowal  37:23 
So they have the ability to take matters up on bank, but they've never done it.

Troy Shelton  37:28
Yes, I think that there was a bit of the feeling my guess this is my interpretation, reading between the lines from conversations that is more of the old guard was not a fan of the envelope procedures. They never used it. But we've had so much turnover and so many other judges are are new are relatively new. And I think the median turn number of years they've served now are like down to like four years. Right? So that they're pretty green in general. So I think that because we have so many new judges, I think we're more likely to see a non voc probably sometime in the next two years. But that's just I know, nothing to be said on besides Yeah, besides that, yeah.

Tim Kowal  38:04 
But two more, two more questions that do you have unpublished as your Intermediate Court of Appeals issue unpublished opinions, and can you nonetheless cite two unpublished opinions,

Troy Shelton  38:15
they do have unpublished opinions and you are allowed to cite to them, but you have to put them in a little addendum in the back of your brief, which sort of helps flag the fact that they're unpublished. They're lesser yeah, there's the idea, I guess, is supposed to be that well, your opponent might not be able to find the these unpublished, even though they have less lo que se right or likes this case.

Tim Kowal  38:39
So I see. actually attach the opinion. You have

Troy Shelton  38:43
to attach it to the end of your brief. Yeah.

Tim Kowal  38:45 
Interesting. Okay. All right. And the last question, this is for just benefit the anti slap guru, North Carolina, I believe does have an anti slap law. Correct?

Troy Shelton  38:56
No anti slap law.

Jeff Lewis  38:57 
They're savages. They're savages. They're Why have you focused on enacted and I'm gonna ask you personally try Why have you not done anything to enact a law that gives the First Amendment its teeth that protects people from being sued for speaking thereby?

Troy Shelton  39:14 
So I've seen you guys asked this question before, and I just couldn't even figure out what a slap lawsuit was supposed to look like. I'm not I'm not sure what the problem is that we're trying to remedy. So you tell you, here's the problem. Why do I here's

Jeff Lewis  39:27
the problem. If you are sued, let's say you're a lawyer, and you say something in court, this guy's putting in us and you get sued for that. And we all can agree that you shouldn't be sued for things you say in court. Right. But to defend that case, normally, you have to go through five years of litigation, spend half a million dollars in attorneys fees or pay a big deductible to your insurance company. And after five years, you would when an anti slap law lets you cut the line. You have a hearing and MSJ like hearing within like 90 or 120 days discovery has stayed in the play Jeff has to prove why it's not a frivolous lawsuit to sue you for calling somebody bananas in court. And so the burden is on the planet. And if they can't prove that there's evidence that are law, suggesting you should be held liable, not only is the case dismissed, but they have to write a check for your attorneys fees to make you whole. So that, you know, by the end of the year, let's say, the case is done, you're out and you've cut the line in from all the other cases. Doesn't that sound pro business and very friendly towards lawyers? It sounds friendly.

Troy Shelton  40:29 
But I've never seen a lawsuit like that in North Carolina. Maybe, maybe, maybe we have other procedure. I mean, you could file your motion for summary judgment, you could serve your answer and then serve your motion for summary judgment immediately. And in North Carolina, and you'd be off to the races. Most we have, you know, I think we probably have privilege law that would protect those kinds of comments. And so you could raise the privilege early. And we have a somewhat generous appellate appellate review of interlocutory orders in North Carolina. So you could appeal, obviously, from a denial if you raised the privilege in, for example, your motion to dismiss and it was denied. You can appeal immediately from the denial. Oh, I

Jeff Lewis  41:09
see. All right. So maybe the reason you folks don't have an anti slap laws, perhaps you don't have a slap problem?

Troy Shelton  41:16 
Problem. I've never heard anyone talk. Okay. But maybe it's because of the other procedural protections? It wouldn't be favorable to it wouldn't be worth plaintiffs time.

Tim Kowal  41:25 
Yeah, I don't even know what it's like anymore to not see a slap and every lawsuit through the looking glass here in California every every time we get served every every client to get served with a lawsuit. Oh, this has got to be a slap somehow.

Jeff Lewis  41:38 
Yeah, that's true.

Tim Kowal  41:40 
Okay. All right. Well, well, Jeff has got a an oral argument to run to. So we're gonna we're gonna we're gonna cut it unless Troy has any, any last words or parting shots from North Carolina? All right, then. We're gonna thank you, Troy for joining us. I think that judicial pay topic is an important one, we'll we'll we'll keep a bookmark on that. If your state that jumps up the list, you'll let us know about it. And then I think our state is just trading the number one and number two spot with with DC and I don't know if that's going to change in the near future, because of the cost of living in those two regions are probably probably the top of of all the regions so so it's commensurate but well, what well, let's wrap it up there. Again, we want to thank casetext for sponsoring the podcast and each week we include links to the cases that we discussed, and we use casetexts for their daily updated database of case law statutes, regulations, codes, and more listeners of the podcast enjoy a special discount on case text basic research at casetext.com/calp. That's casetext.com/C A LP. Thanks.

Jeff Lewis  42:43 
Yeah, if you have suggestions for future episodes, or if you're a North Carolina judge, and you want to take Troy to lunch, 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.

Tim Kowal  42:57
Alright, thanks again, Troy. See you next time.

Announcer  42:59 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

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

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