Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review.
David also discusses the California Supreme Court’s “shadow docket” — precedential opinions that are issued without full merits briefing or oral argument.
Read David and Dean’s article, Revisiting California’s No-Citation Rule.
Dean Bochner’s biography.
David Ettinger 0:05
That's an accepted an accepted practice, but it violates the rule, which is the whole point of the article. We're just trying to get the rules to coincide better with with the practice.
Welcome to the California pellet podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff lewis 0:32
Welcome, everyone. I am Jeff Lewis.
Tim kowal 0:35
And I'm Tim Cole wall California Department of podcasting license pending determination of moral character. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both Jeff and I are appellate specialists and we split our practices evenly between trial and appellate courts. We both worked directly with trial attorneys to prepare cases for trial, Trial and Appeal. And in this podcast, we offer some of that appellate perspective on various issues that arise both in trial court and on appeal
David Ettinger 1:04
to Episode 22 of the podcast. Today's first we have two guests on we haven't done that yet in the year. So we've been doing this podcast.
Tim kowal 1:14
Now this is a first for us. So we are we are pleased today to welcome our first guests duo David Ed injure and Dean Bochner. Dave, David Ed injure has briefed and argued many notable appeals including more than a dozen arguments before the California Supreme Court. He's considered by many in the industry as a scholar and appellate law and leverages his keen insights to support clients immediate and long term challenges in the appellate courts. After many years as a partner at Horvitz and levy David is currently of counsel, and he joined the firm in 1982. His many legal publications include several articles on hospital peer review committee confidentiality, David served two terms on the appellate Advisory Committee for the Judicial Council of California, to which he was appointed by Chief Justice Ronald George. And our second guest today is David's law partner, Dean Bochner. Being defends manufacturers, hospitals, municipalities and other entities and high exposure litigation. At trial Dean assists clients by preparing dispositive motions and preserving critical issues for appeal. On appeal. Dean serves as lead counsel in cases covering a wide range of practice areas including products liability, medical malpractice, defamation, employment, property and contract the dean is also a partner at Horvitz and levy where he has been practicing since 2004. Before joining the firm, Dean served as executive vice president of a financial services company that purchases assignments of civil judgments pending on appeal, in that capacity been evaluated hundreds of civil appeals in both state and federal courts throughout the country. So welcome to the podcast today, David and Dean, I'm so glad that you both decided to join us.
Dean Bochner 2:58
Thank you. Good to be with you.
Tim kowal 3:01
I wondered after after the introduction of both you. I want to ask to start with you, David, if you just tell us a little bit about your practice today. I know you're of counsel but I also know I follow your blog at the end Horvitz and levy website and I follow it closely it's is a lot of your work focused on the Supreme Court because you a lot of your posts at the blog focus on the Supreme Court.
David Ettinger 3:24
Right my career now is primarily doing the blog I stopped doing most appellate work about four almost four years ago. So sort of a semi retirement I do have one pro bono appeal. That's it's in the works still. But other than that I haven't done briefing for about four years. The blog does cover does focus on the California Supreme Court, mostly procedural practice kind of things. But we also do talk about the subsequent rulings that the the court does make.
Tim kowal 4:00
Right you have a lot of good tips about you know, splits of authority thing good things for appellate practitioners and trial attorneys to look out for the name of the blog is at the lectern. It's at www dot ATT the lectern calm. Did you and how did your How did your practice evolve? Did you did you start in the in the trial courts and move up to appeals or is it always have you always been an appellate attorney?
David Ettinger 4:23
It's it's been 100% appellate at a law school I clerked for a state court of appeal justice for two years. And then I moved to Horvitz and Levy and that's where I've been ever since.
Tim kowal 4:37
And we talked about a lot of your your writing on at the lectern focuses on the California Supreme Court. Do you the how much did your practice ever take you into many federal appeals? The
David Ettinger 4:49
firm does do a number of federal appeals in ninth circuit and other circuits as well and I and I've had several during my career most of my work was In the state appellate system,
Tim kowal 5:02
yeah. Now, Dean, what about you tell us a little bit more about your practice and how how it evolved? Is your practice today? I think it mostly appeals but you but you also work with with trial attorneys and the trial court as well,
David Ettinger 5:15
as That's right. My practice focuses on civil appeals. And as you noted, primarily in the areas of products liability and medical malpractice cases, though I've handled appeals in other areas too. And like David, most of my practice is focused on the California State courts, although I have handled some matters in federal courts and in other states as well. But I also consult with trial lawyers and litigation pending in the trial courts and help draft dispositive motions, motions, eliminate jury instructions and post trial motions, all with an eye toward preserving issues for appeal.
Tim kowal 5:51
Do you have any any key key insights major traps that you've been able to help trial attorneys avoid when navigating, you know that that chasm in between the trial courts and the appellate you know, nothing
David Ettinger 6:02
specific comes to mind, but it is very helpful to be in a position to draft motions and jury instructions that that do? Often jury instructions especially present a lot of appellate issues? And so I think we can add a lot of value in that respect.
Tim kowal 6:21
Is that something you do do you offer to help draft EMI ELLs and jury instructions,
David Ettinger 6:26
absolutely inverted forms as well and prepare trial briefs during the course of trial?
Tim kowal 6:31
I was I was offered to do that. But I have to confess I secretly hope they won't take me up on it. It can be such a lot of grunt work but as you say it's it is critically important it is there's there's kind of a privilege and being able to sit at you know, with with tented fingers at the end of the process saying oh, you should have done XY and Z. But then when when they actually asked you to help do xy and z if they go oh my God, I hope I don't screw anything up. It's right now, Dean, you're also chair of the CLA CLA litigation section committee on appellate courts. We'll post the show notes posted a link to that in the show notes. Can you tell our audience a little bit about what that what the CLA litigation section committee does?
David Ettinger 7:12
Sure. The Committee on appellate courts was founded about 50 years ago as a standing committee of the State Bar. And when the CLA emerged from the State Bar in 2018, we continued as a standing committee of the CLAS litigation section. We have about 20 members who are diverse, both in terms of practice and geography. Our members include civil and criminal appellate lawyers, large firm attorneys, sole practitioners, government attorneys, and even law clerks from Sacramento to San Diego and most large cities in between our committee does a lot of different activities. I'll give you a few examples. We propose and comment on proposals to amend rules that govern appellate practice. In California, we present educational programs like webinars and an annual conference called the appellate summit that features academics, appellate justices, trial court judges and prominent appellate practitioners. We draft a lot of publications of interest to the legal community, including articles in the litigation sections quarterly, California litigation magazine, the annual California litigation review, and we added a monthly online publication called the litigation update that summarizes important decisions from the California courts, the Ninth Circuit, and the US Supreme Court. We also have an access to justice subcommittee that focuses on improving access to the appellate courts, for those who can't afford an attorney in civil cases. So that's a broad overview of the committee's work
Tim kowal 8:45
is a litigation review is that the magazine that comes I get one, I think every quarter from being a section member of the orange bar association, Business Litigation section,
David Ettinger 8:55
I think it's a different publication. Ours is from the CLA litigation section. And it's called California litigation, and it comes three times a year
Tim kowal 9:05
in the mail. No, I think I have seen that. And that's that's an excellent journal. And, you know, you mentioned talking about, you know, proposed changes to appellate and civil procedure. And I think we'll, we'll talk about one of those today. And an article that you, you both co authored about. The California has no citation rule. But but just one other one other topic. Before we get to that, David, I know you have a series of you had a series of posts up at your blog at the lectern earlier this month about the shadow docket, as it's called, in the California Supreme Court. And there's been a lot of a lot of talk about the shadow docket at the United States Supreme Court over the last many months. But can you tell our audience a little bit about what the shadow docket is in the in the US Supreme Court and about how why you think that there's a shadow docket also in the California Supreme Court?
David Ettinger 9:57
Sure. Well, I think I'm the only one One who's actually called it a shadow docket at the California Supreme Court at the at the US supreme court, the court has been ruling of late on often emergency motions, and they do so without briefing or not full briefing or oral argument. And they will publish an opinion, they will issue an opinion that can be can be precedential. Without the usual process of of an appeal. And I identified a few instances where the California Supreme Court has done similar things very much less frequently, I would say, than the US Supreme Court, but has done has made decisions in cases without full briefing and without oral argument. It's truncated proceeding. So that's that's what I call a shadow docket.
Tim kowal 11:00
Okay, so with that, that include disposition of motions in in appellate courts as well.
David Ettinger 11:07
Um, well, those you don't have it any, any precedential value out of it, when when there's a motion rolling in the Court of Appeal, unless they're going to publish, they can publish an opinion, they can issue an opinion on emotion, which they do, I guess, occasionally, but very rarely
Tim kowal 11:27
and wonder I was wondering, Is that the same as the same standard for for publishing opinions as it is in disposing on motions? Just Is it the same I forget what what rule accord it is that that has the standards for publication? Right? I
David Ettinger 11:41
would, I would say it's, it would be the same, it would be the same standard to publish a decision based on emotion. I would think that I haven't done a study. But I would think the most frequent published decision on motions in the Court of Appeal would be a motion to dismiss an appeal. For whatever reason, there have been whether it's tie an untimely notice of appeal, or in other other matters, that this entitlement document doctrine has generated a few public decisions of late.
Tim kowal 12:21
So in, in your, in your opinion, and we're just kind of talking about this, this more or less made up idea of the shadow docket. I think that I think it was an author of some law reviews, some years ago, came up with that term, and it is apparently stuck. But in your view, does it have to be does the the action by the court have to have precedential value for it to be considered part of the quote unquote, Shadow docket?
David Ettinger 12:41
Yeah, I would say so. I mean, if I mean, the Supreme Court, makes orders all the time that are not published and have no precedential value. The court has conferences every Wednesday, and will issue orders on maybe 100 petitions for review each week, denying almost all of them, and none of that is is of any interest, or precedential value.
Tim kowal 13:10
So that's not part of the shadow docket, then that would not be the shattered docket. Okay.
David Ettinger 13:17
But as an example of what they would do one of the one of the instances of shadow docket rulings that that what I call shadow docket rulings are occasionally the the Supreme Court will make rulings on requests from the ninth circuit to answer questions of California state law. And they will issue an order denying the request saying we're not going to we're not going to take this case. But there's always a butt in there. Not always but a case a few times they put a but in their denial orders were say they've cited to a court of appeal decision that really answers the question for the ninth circuit without the Supreme Court having to have taken the case. got full Supreme Court briefing, hold, hold an oral argument and issue a detailed opinion. So that that's a that's a good example of what I'm characterizing as a shadow docket ruling.
Tim kowal 14:25
Interesting. Okay. And in the in the US Supreme Court, what are the typical types of orders that are considered part of the shadow docket? Or I thought I heard that that refers to its motion docket or request for stays, or is that part of the shadow docket, so called? Right?
David Ettinger 14:42
I think, and I'm not as familiar, nearly as familiar with the US Supreme Court's shadow docket as I am with the California Supreme Court. But I think one example is some of the pandemic restrictions that were challenged because as As discriminating against religion, religious entities, and the the US Supreme Court had made some decisions without holding oral argument without full briefing that upheld the rights of of religious entities as against some pandemic restrictions.
Tim kowal 15:23
Right. Right. And those were done without without complete briefing. It was not one of the watch cases because it wasn't briefed, didn't have oral argument that all the legal commentators got to pick over, including our own Jeff Lewis, who's a Supreme Court commentator, we're robbing him of his ability to get some to get some headlines.
David Ettinger 15:41
I don't know, I don't know that oral argument does a whole lot to
Jeff lewis 15:44
shape the ultimate outcome of these decisions. So I don't know, when I hear about the shadow docket, the justices being deprived of the oral argument, the briefs, etc. They're gonna do what they're gonna do. And that oral argument changes anything. That's just me.
Tim kowal 16:00
Well, but it's part of as far as putting it into the sunlight. Right? Yes, I think that's that's the opposite connotation of the the shadow docket. That's why I was gonna ask you, David is the the the very term that's been chosen moniker shadow docket suggests that there is something that is less than transparent about what's being been what goes on there. It's it has somewhat something of a negative connotation for more ICIT. Is that is that you're feeling and do you believe that that negative connotation is deserved?
David Ettinger 16:30
Well, I don't know whether it's so much transparency as a truncated procedure, an expedited procedure without the usual opportunities for input that you have in a normal appellate process. But yeah, I think I think shadow doc, it carries with it a negative connotation. Certainly.
Tim kowal 16:53
Okay. Anything else our audience should know about the shadow docket before we talk about? You
David Ettinger 16:58
know, I don't think so that that covers things. All right.
Tim kowal 17:01
Well, we'll circle back around to it. I have a question about, you know, maybe tying your article into this concept of the shadow docket. But I want to talk about your your article published in the California Lawyers Association magazine about unpublished decisions, the so called no citation rule, rule of court eight point 1115, that the California Attorneys know well, and I will say that there's not a California Attorney among us who has not researched an issue found the perfect case on all fours on the facts and the law, but dammit, it's uncited. It's unpublished I can't cite. So in the article, you cover the general rule that an unpublished opinion is not suitable for any reason. And then you survey a few of the exceptions to the rule such as that citing unpublished opinions in a petition for review in the Supreme Court is permissible. But as a strong opponent, myself of the no citation rule, I've compiled a list of my own possible ways around the rule. So I wanted to hear your your kind of your summary on the on the no citation rule and your, your article about and then I want to ask you some questions about whether some of my proposed and runs around the no citation rule might pass muster, in your view. So to tell our listeners a little bit about your article and why you published it.
David Ettinger 18:17
I could let Dean start with that because he took the lead on drafting the article.
Sure, yeah, Cal, as you noted, California, like a lot of other states has a rule that prohibits courts and lawyers from citing unpublished opinions. That rule was intended to prevent litigants from citing those opinions as precedent on the merits of a legal issue. But the language of the rule is a lot broader. It says that an unpublished opinion, must not be cited or relied on by a court or a party in any other action. Now, despite this categorical bar, in practice, courts and lawyers cite unpublished opinions in a variety of contexts. For example, is he noted to show a conflict among Court of Appeal decisions in order to obtain review in the California Supreme Court and to identify noteworthy facts that appear outside the appellate record? Those are just a couple of examples.
Tim kowal 19:11
But what do you mean, you can cite to an unpublished opinion in order to show fat to identify
David Ettinger 19:17
facts that might be relevant to the issues in the case, you know, under the text of the rule that is prohibited because you are citing or relying on, you know, an unpublished opinion, and it's a categorical rule, but it's done all the time. And in our article, we cite several opinions that do that.
Tim kowal 19:38
Now, I noticed that some of the examples that you cite were courts, you know, maybe arguably, you know, putting their toes on the line of rule a point 1115 in your in your practice, and we're all attorneys here. If you were if you were to consider doing that citing an unpublished case, to show to show a fact or to show that something is Well, maybe I can give an example would would you do that just by putting a citation or would you do a request for judicial notice?
David Ettinger 20:08
Well, I personally would not do that I wouldn't cite an unpublished opinion, given the the state of the rule as it is currently drafted. But I, you know, we note in the opinion that or in the article that the current practice among courts, both courts and litigants, they do do this. They do cite unpublished opinions just to identify relevant facts from other other cases. But if you're asking what my practice would be, I don't do it at all. I don't know if David has a different practice.
I do I have cited it. I don't know what I've done it in petitions for review. I don't know whether I've ever done it anywhere else. But petitions for review. If if you want to show that an issue is recurring in the courts of appeal, it's it's an accepted practice, although in violation of the letter of the rule. It's an accepted practice to cite unpublished opinions to tell the Supreme Court Hey, this, there's a lot going on under the surface, not just published cases. But this this issue is coming up a lot in in unpublished opinions too. And that's that's an accepted an accepted practice, but it violates the rule, which is the whole point of the article. We're just trying to get the rule to coincide better with with the practice. Together.
Tim kowal 21:38
I thought I recalled that citing unpublished opinions in a petition for review to show that the issue is is coming up was one of the stet was was one of the exceptions provided for in the rule, is it not?
David Ettinger 21:50
It is it is not. And that and that's that's one of the point, one of the main points of the article, I
Tim kowal 21:56
admitted that. I don't know where I got that into my head, but that's okay. Good to know.
David Ettinger 22:01
Yeah, it's, it's done all the time. And and I was would
Tim kowal 22:05
you show that the issue that, you know, this was right for review, if you can't show that, look, all these other courts of appeal are tripping over this issue everywhere? Well,
David Ettinger 22:14
I mean, if you were going just by the way, the rule is written right now, the letter the roll, you'd be restricted to show just published opinions dealing with that issue. Or maybe
Tim kowal 22:24
you can get a student to draft a law review article about all these unpublished decisions, and then cite the law review article
David Ettinger 22:31
that has been done. Not by us, but I know I remember when I was clerking at the court of appeal when I was first got to law school, where a brief cited a law review article. And in that law review article was an unpublished discussion of an unpublished opinion that was right on point and useful public service. I said, Oh, that's fair. That's a very clever way to get get around the rule.
Tim kowal 23:00
I like it. I'm not the only scofflaw around and
David Ettinger 23:03
you know, and that's scofflaw is the word that I think, you know, the the point of the article is to save practitioners and the courts from being habitual scofflaw in when they when they cite to these unpublished opinions.
Tim kowal 23:21
Well, yeah, I could see your your point about I think one of the one of the points you you made is that prior to rule eight point 1115, the rule was that you could cite unpublished cases just not as precedent. But then, of course, you put that kind of rule in the hands of attorneys and will always find ways to say no, no, I'm not citing it as precedent. No, don't worry, but but really, you know, it's precedent, you know, I want you to take it as precedent.
David Ettinger 23:45
Well, precedent or or no, there, there's, the rule says you can't do it. You can't cite to it for except for two very narrow exceptions, which hardly ever come up. But But attorneys in the courts find unwritten exceptions to the rule all the time. The Supreme Court doesn't Supreme Court justices do that?
Tim kowal 24:12
Well, here's what one of the one of the the exceptions maybe the unwritten, unwritten exception is that of course, we know that, that California practitioners can cite to federal cases in their briefs, even if they're unpublished. And every now and then you'll find a useful federal opinion that discusses an unpublished California opinion. So what say you is it lycett To discuss a federal decision that discusses an unpublished California
David Ettinger 24:40
I think deciding in a federal non Pub is permissible, but under the letter and the spirit of the law. So yeah, the rule only addresses unpublished state court of appeal or Appellate Division opinions.
David Ettinger 25:00
I would agree with that if you're strictly discussing the federal court opinion, I think you're you're safe. But once you start discussing the unpublished California decision, I think that would probably violate that would definitely violate the terms of
Tim kowal 25:14
the rule. What if you're couching it in terms of this is just what the federal court said about this California on pub.
David Ettinger 25:27
I would just discuss the federal opinion without discussing the the non pub. I think that's your your safest bet.
Tim kowal 25:30
Okay. Now, your your article also mentions this other possible way around. And that's the fact that that courts and counsel have cited to unpublished opinions to illustrate the effects of certain laws. And there was this case last year, last December, out of Supreme Court People vs. Gentile. And the district attorney in that case had cited to unpublished opinions that supported his argument that barring convictions of second degree, murder, under the natural and probable consequences theory, would result in criminals, quote, getting away with murder and quote, and so the DA did not cite those cases as legal authority, but merely for their relevance, as you know, I guess as equivalent to news stories that supported his basically a policy argument. Now, the plain language of rule eight point 1115 would not allow this but the Supreme Court, and the Supreme Court ultimately rejected the DBAs argument, but didn't suggest that any rule 11 point 15 violation that occurred or that the DBAs conduct was in any way improper? I thought the I thought the DBAs move was a bit risky, but what do you Well, I
Dean Bochner 26:44
I would agree that well, first of all, yes, it definitely violates the terms of the way the rule as it is written now, which is, which is the problem, I think, but I also think that it was an acceptable thing to do to bring a factual scenario before the Supreme Court saying, say, if you, you know, if you have factual scenario X they'd be getting away with murder is what is what the district attorney was, was saying. And, you know, they're not they weren't citing it for it. The distinction is between factual and legal, just to put it very broadly, and they were they were citing it for for factual purposes, not not for legal precedent, not for the persuasiveness of the legal decision.
Tim kowal 27:41
Right. So you think that should be permissible, it's not permissible, as under the rule as drafted, but you think that that ought to be a permissible use?
Dean Bochner 27:50
Right? I it shouldn't be. It already is, in effect, de facto, it is acceptable. It's just, it's not acceptable under the way the rule is currently written.
Tim kowal 28:05
That's interesting. So de facto, it's acceptable. So you've seen enough cases that would suggest that, you know, maybe give you a little bit of heartburn, because you are technically in violation of the of the text of the of the rule. But you've seen enough these cases where the court doesn't mind that deviation. Right.
Dean Bochner 28:23
And, and the Supreme Court itself, does it I there was a year or two ago, there was a separate statement when the supreme court denied review in a case. And one of the justices wrote this separate statement and cited to a whole host of unpublished opinions, saying, you know, this problem is not going to go away. Look, look at all these non pubs that have this, you know, the same issue keeps coming up. So we should we should address it?
Tim kowal 28:57
Well, you know, I should mention that I think that people versus Gentile case we just talked about, I think, I think, David, you tipped me off to that. I think I was probably reading your blog last year, and that's probably how I first learned of it. And I think I also learned about this, this next case from you as well. First people versus American surety company. That was that was also last year. That case upheld the validity of a bail bond. Even though the amount was the wrong amount, the bond company had relied on a published 1919 Court of Appeal holding for its position. The court rejected that holding stating, quote, in the course of our research we encountered but cannot mention by name, a number of unpublished Court of Appeal decisions, rejecting Americans argument and distinguishing the earlier Court of Appeal opinion and quote, and so David, you had mentioned that well, the court itself does, you know, cites to these unpublished cases sometimes. So I thought, well, so So hearing I put you to the test, but if the court did it, here's what I propose lawyers might try in this in the same spirit, you tell me if you think it's putting the toe over the line. So here's here's what I suggest. If you find that that great case, it's on all fours, and you really want to cite it to the court, but you know, you can't consistent with rule eight point 1115 You could state while rule eight point 1115 prohibits us from naming unpublished decisions following the first appellate districts example in person, people versus American surety company, and then put the quote to put the citation of that published case, we simply note that a recent opinion of district X is responsive to this question. And then maybe it's like a little breadcrumb, they can go and find the Embed unpublished opinion,
David Ettinger 30:37
in my opinion, that's and I think the Court of Appeal was over the line. In the American surety case, the rule is not just against citation of the rule, it's also relying, I mean, citation of an unpublished opinion, it's also you cannot rely on an unpublished opinion. And here, they were relying on unpublished opinions, and not just for factual scenarios, they were relying on the law of stated in these unpublished opinions. And you know, just because they say, you know, just because they say, well, we can't name the cases, you know, that that's, I think it was still a violation of the rule. Both the spirit and the, you know, so even under our even under our proposed revision of the rule, I think it would still be a violation of the of the rule.
David Ettinger 31:29
Yeah, I would agree with David said, and I think the same is true of the statement that you proposed, you're relying on the unpublished opinion that you're referencing before its precedential value, which is barred by the rule.
Tim kowal 31:43
Yeah, I get that distinction. So So you're saying that even in the the people versus American surety case, the court was referencing those previous unpublished opinions as though they were precedent, which would be saying, look, there's all these other cases that held for this proposition so therefore, it must be right now. Now, let me offer this if instead, the court had said let's let's just forget any kind of reference explicit or otherwise, to these unpublished decisions, and let's just let's just crib there same reasoning that we find to be so persuasive because obviously the court there's no you know, there's there's no copyright on persuasive reasoning so we could just crib from that I wanted to relate. A recent legal seminar appellate seminar I attended, there was a an appellate research attorney there who mentioned to my great surprise that attorneys really ought not to just quote, quote from unpublished decisions, they really need to, you know, wordsmith it to make it their own their own words, because it's it's kind of a form of plagiarism. And the attorney thought that, that even quoting or cribbing, from the reasoning of unpublished decisions, ran afoul of a point 1115. I wonder what do you think about that?
Unknown Speaker 32:58
You mean, putting it in quote mark in quotation or just using
Tim kowal 33:02
quotations is just copy and pasting the language from the unpublished?
Dean Bochner 33:07
I think I don't see anything wrong with that. I personally, I would try to make I guess he used the word wordsmith. I guess I would try to make make it my own language. But I don't see anything wrong with using the thoughts of from an unpublished opinion in in a brief, without without citation to it. Yeah,
David Ettinger 33:37
I would agree with that, too. And one of the, you know, great treatises on civil appellate practice expressly says that, that that practice is authorized to take the reasoning of an unpublished opinion and put it in your brief.
Tim kowal 33:55
Yeah, like I said, I was very surprised that this research attorney had that view of things, but they said that, you know, they they look, they look hard at those things, and they will, they will find it, and it for whatever reason, it seemed to rub that attorney the wrong way. I didn't get an indication of whether that view is shared by the justices at the Court of Appeal where she worked, but I found that surprising via this. What district was that court?
Jeff lewis 34:21
Court of Appeal attorney speaking? Recall? On the spot, we can edit a podcast later,
Tim kowal 34:27
I can't quite remember I want to say was the second district I see. Okay. All
Dean Bochner 34:31
right. In just before you leave that point, I had an appeal where a Superior Court I think it was the commissioner but the Superior Court in its statement of decision lifted portions of a non unpublished Court of Appeal opinion and put it into the statement of decision without any attribution and in researching for the appeal, I found the non pub recognize the language. And that's I saw nothing wrong with the Superior Court doing that.
Tim kowal 35:09
No, again, I can't imagine what what would be wrong with it. But reasonable minds can differ, apparently. Now, in your article, you had a you had a really good case quote that I had not seen before. It's from the case Hart versus machinary. It's a Ninth Circuit case from 2001. And the quote is that in writing a precedential opinion, quote, It is exacting an extremely time consuming task. And few if any appellate courts have the resources to write presidential opinions in every case that comes before them and quote, and I thought upon reading that, that I assumed the author of that quote, hoped it would, it would arouse sympathy for the courts practice of making certain cases non sizeable but for me, it had the opposite effect. I would argue that the fact that an appellate decision is precedential, and that all the and that the court labor is all the greater under that reality is part of the guarantee the judiciary provides to litigants that its decisions are on the level, because it tells litigants that hey, you might not like it. But after careful consideration, this is the rule we've come up with that's going to apply across the board. It's nothing personal. This isn't just a rule, we crafted just for your case, it's going to apply to every case that comes before us. But when a court decides to remove that precedential value, it seems to remove an important part of that guarantee that our opinions are precedential. They apply to every case, not only to yours. So what guarantee do litigants have, that the decision is not just directed at a particular result? In their case, indeed, in an unpublished opinion, what is the opinion but personal, it's literally the result, the court fashion for these particular parties, and no one else? I wonder what your what your reaction to that that extreme cynicism on my part would be?
Dean Bochner 37:03
Well, hey, it's not necessarily that it's just for those parties. Well, I mean, the opinion because it is not published is just for the parties. But the reason it might be unpublished is because the law might be so clear, that they're just restating the court is just restating a rule from well settled law. You know, I've had I've had a few opinions, a few appeals where the other side was in was challenging in the Court of Appeal settled California Supreme Court law. And, you know, I did very short briefs saying, Can here's the settled law. And the Court of Appeals said, Yep, that's settled law. We can't We can't change Supreme Court law. And it came out in a very short unpublished opinion, which is what the Court of Appeals should have done.
Tim kowal 38:05
Right. Right. Certainly, that happens sometimes, but in in some cases, you get reasoning that, that seems, you know, it. It doesn't it's not followed by citations to you know, well, civil law, it's just some reasoning that maybe seems uh, you know, not quite thought all the way through and leaves the reader a little bit unsatisfied, and it doesn't have any precedential breadcrumbs that you could follow it through. And you just wonder if, you know, maybe this this opinion was not thought all the way through? And I wonder if that's why was on?
Dean Bochner 38:37
Well, I think I think your your argument would be with the court of appeals decision not to publish a particular decision, if it's, if it's unique, or, or different in some way that's not covered by other other cases. And it's the kind of case that would be likely to be valuable precedent to be cited by others in the future, then the court should be publishing the case. So I think, you know, the the criticism should be more directed at the court deciding not to publish, then at the not the no citation role. Hmm.
Tim kowal 39:21
That's a good that's a good point. I thought maybe I would, I would start a public service and just start, just start sending out motions because anyone can move for publication have an opinion, it doesn't have to be one of the litigants to the case. So maybe that could be a useful, useful public service. I just don't want my name to be mud by filing a filing motions hither and yon. Now in your in your article you propose to modifications to rule a point 1115 Would you tell our listeners about the modifications you're proposing? Sure,
David Ettinger 39:54
we propose a modest revision and then a more comprehensive revision of the modest revision. We're just adding The third exception to the rule and that exception would allow parties to cite unpublished opinions for the purpose of showing a conflict among Court of Appeal decisions in order to obtain California Supreme Court review. This would resemble the approach that the Ninth Circuit took in a rule that allows unpublished dispositions from that court to be cited in petitions for panel rehearing, or rehearing on bonk to demonstrate the existence of a conflict. And just to clarify an answer I gave earlier, I have cited unpublished opinions for the purpose of, you know, in petitions for review or in opposing petitions for review. It's just some of the other purposes I haven't cited them for the more comprehensive revision that we proposed would limit the current rule by prohibiting courts and parties from citing unpublished opinions as binding or persuasive precedent. And if there the rule were revised in that way, we think it would be more narrowly tailored to resolve the problem it was intended to address, which is to prevent the citation of non pubs as precedent under this rule. Non pubs could be cited in a wide variety of unobjectionable circumstances, like the ones we discussed in the article.
Tim kowal 41:14
Okay. You know, do you have a preference for one of those proposals over the other? Are you are you in favor of the narrow amendment or the broader amendment?
David Ettinger 41:23
Personally, I'm in favor of the the more comprehensive revision? I don't know how David feels. But that's my preference.
Dean Bochner 41:31
I agree with the you know, that that would most appropriately align the practice the rule with the current practice?
Tim kowal 41:45
Well, I agree with you, obviously. And I told you that Jeff, and I differ on the no citation rule, Jeff, is against the notes citation rule, I'm strongly against the no citation rule.
Dean Bochner 41:57
Well, there are just so many opinion, I mean, you would be you know, I don't know, maybe five 10%. of Court of Appeal, opinions are, are published right now. And the vast majority of the ones where the Court of Appeal decides not to publish are appropriately not published, if you if you look at them, you know, you just just pick one at random, it will probably be one that you could not imagine a need to cite to that opinion in the future, in under under any circumstances. And that's really the test is, you know, is this is this opinion, going to be helpful, as has precedent for somebody in a future case. And the vast majority of the the non pubs are not,
Tim kowal 42:51
I wanted to ask you just to tie back into our discussion on the shadow docket, I might argue that it's fair to talk about some of these unpublished cases as being part of the Court of Appeals shadow docket because they reflect a substantial majority of the court's judicial work, and yet it's outside of the normal, quote unquote, daylight operation of judicial lawmaking. So what do you think with that, would that be a fair extension of the term shadow docket or no?
Dean Bochner 43:17
Well, if it's a different shadow, you know, there's these the non pubs still come after full appellate process and still comes after full briefing oral argument you get you get a an opinion, a written opinion with reason stated. So it's, it's not that kind of shadow, the shadow you're talking about is it's just not as publicized. But the public doesn't know about it as much even it there's certainly public documents, they're available on the courts website. They're there on Westlaw and Lexus, but they're just not as as prominent and as publicized as as a published opinion.
Tim kowal 44:02
Yeah. Yeah. As we talked about, if you can find a find a law student who will talk about an unpublished opinion in a law review article, you can cite that to the court, but you can't cite to the court what it did last week, if it was in an unpublished opinion.
Dean Bochner 44:14
Right, and if the publication criteria is used is applied correctly, there would be no reason to cite to that opinion that they that they did next last week, so yeah.
Tim kowal 44:28
Well, Jeff, do we have time before you need to slink out to do a quick lightning round? It is a lightning round after all.
Jeff lewis 44:36
Okay, yeah, we'll do a quick lightning round. These are the most vexing questions that concern appellate nerds around the world and try to keep your answers short. One word, one sentence, keep it super short. So I don't get in trouble with my wife for being late to my next appointment. All right. In terms of briefing Bob preference, said schoolbooks Garamond or something else.
Dean Bochner 45:04
In what do we what do we use? I don't even know what we use.
David Ettinger 45:07
I believe it's century schoolbook is what we use 13 points.
Jeff lewis 45:11
That is the right answer. All right, two spaces or one space after a period.
David Ettinger 45:18
Yeah, I'm a to spacers. Well, wow,
Tim kowal 20:21
you don't have a firm convention.
David Ettinger 45:23
I believe our firm convention on that point is to leave it up to the individual attorney to their preference. And from what I've seen, a lot of the younger attorneys prefer one space. A lot of the old timers like myself, prefer to spaces. Oh,
Tim kowal 45:40
I thought they'd bring in the reins on on you and have a universal convention. That's interesting. Okay.
Jeff lewis 45:48
All right. Ah, penultimate question here. Do you include the table of contents in your table of contents? That's a great question.
Dean Bochner 45:56
You know, that's something you need to ask our legal assistants about. I don't know,
Tim kowal 46:02
my brief for not having the table of contents and my table of contents?
David Ettinger 46:06
I don't think we do. But I'd have to double check that one.
Jeff lewis 46:09
All right. Last question. For the arguments, the major arguments in your legal briefs, all caps, initial caps or sentence case.
Dean Bochner 46:17
Go ahead. Do
David Ettinger 46:18
I believe we use sentence case? But again, I would I would defer to our legal assistants on that question.
Dean Bochner 46:25
But I think that's right. I think we've fairly recently changed that. To make it just just sentence case for all our headings.
Jeff lewis 46:35
Alright, well, you too, survived our world famous lightning round. Congratulations. And I guess we'll pose those questions your legal system. So when they're on their podcast
Tim kowal 46:45
Next, go to produce them next time. Alright, Jeff, I think that wraps us up today.
Jeff lewis 46:55
Yeah, if you have suggestions for future episodes, please email us at Cal email@example.com. And in our upcoming episodes, look for tips on how to lay the groundwork groundwork for an appeal with trial.
Tim kowal 47:05
Thanks. See you next time.
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 X Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
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 firstname.lastname@example.org or (714) 641-1232.
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