Cal.App.Law Podcast Ep. 14: Circuit Splits, Amicus Briefs and Interview with John Reeves

Timothy Kowal, Esq.
August 3, 2021

Appellate attorney John Reeves  joined TVA appellate attorney Tim Kowal and co-host Jeff Lewis to discuss incorporating amicus briefs into your appellate strategy. John discusses Marin Housing Authority v. Reilly, a California case pending possible review by the United States Supreme Court, and has already attracted the interest of amici. At issue is whether a public housing authority, in calculating a family’s annual income, is required to exclude Medicaid-funded payments made to a family by a state agency to allow the Section 8 tenant to provide personal caregiving services in order to keep a developmentally disabled family member at home.

John, Tim and Jeff also discuss amicus briefs, when you should consider soliciting amicus briefs in your appeals, what kinds of arguments are best suited to amicus briefs, and other aspects about practicing appellate law.

Listen below:


John Reeves: 0:02

There are few things in this world that annoy appellate judges more than repetitive, amicus briefs.

Announcer: 0:10

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: 0:24

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:26

And I'm Tim Kowal operating under an expired license from the California Department of podcasting. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.

Jeff Lewis: 0:54

All right, and welcome to Episode 14 of the podcast.

Tim Kowal: 0:59

Right and today, we welcome John Reeves to the show. John is an appellate attorney whose practice focuses on federal appellate and Supreme Court litigation. His practice is based in St. Louis, Missouri, you can find John's numerous amicus briefs and any number of high profile constitutional litigation, including a recent petition for certiorari to the US Supreme Court from a decision in the California Supreme Court in Marin Housing Authority vs. Reilly, which we'll be talking about on the show today. So welcome to the podcast. John.

John Reeves: 1:28

Welcome. It's a pleasure to be here.

Tim Kowal: 1:31

So So as I mentioned, your practice is based in St. Louis, but you're obviously very engaged in a lot of national and federal litigation and appeals. How do you choose what what cases to get involved in?

John Reeves: 1:44

The most important thing I look at the day appellate practice at that level she'll look at to begin with is is there a clear split, either among the federal appellate courts or among and or among the state courts of last resort? If there is you've already satisfied the first difficult hurdle to clear, right? The vast majority, I don't have percentages or a statistics from me, but the vast majority of cases on which the US Supreme Court grant cert are those cases where there's a circuit split.

Tim Kowal: 2:15

Do you see that there has to be more than just, you know, one, two circuits, and then being split that to be, you know, more than more than two or three or four circuits?

John Reeves: 2:24

Yes or no? So it depends. It depends entirely. That's the big question. There really isn't a good answer to that. Sometimes. There can be maybe they've the courts grants cert, where there's just one split, where two courts disagree with each other other times they fail to grant cert until there's a split that develops more and more. Now, of course, then there's that Well, what do you mean by a split? Is it one court disagreeing with each other? Or is it where, you know, nine or 12 courts have always concluded this one thing? And then so you have this 15th case where this one courts called do the opposite? And then whoa, wait, yeah, that that's a big outlier there and whatnot. Yeah, that, that, again, I don't have a statistics. And it doesn't really matter what the subject matter is either the split, looking for split is the most important thing and get, you're in a much better position. If the court if the law opinion you're trying to get reviewed, explicitly acknowledges the split. I'm not saying it's not possible, otherwise to get served. But you're in a much easier position. If the lower court opinion explicitly acknowledges the existence of a split.

Tim Kowal: 3:38

As an appellate attorney, are you looking for opportunities in the as in the district court itself to to make the record that early in the case? Or are you mostly getting involved when it's already up on appeal?

Unknown: 3:49

Absolutely, absolutely. That is actually an aspect of the appellate practice that has really developed and, and sprung up in the last 15 years. There's two parts to that: one appeals themselves have become so more specialized, you have trial lawyer more and more going to appellate specialists, to handle the appeal, but even before that you now have this is relatively new, it's only been going on for about 15 years. You have Trial Lawyers seeking appellate specialists at the trial level to basically be in the background. And to serve as like the person who's looking at the case, from looking at from the long game, you'll while the while the trial attorney is doing the discovery is developing all the factual theories and whatnot, and looking at what what's the strategy for if this goes to trial or even summary judgment in terms of establishing the record, you've got the appellate specialist in the background, who is so like, doing the research, looking what the more broader issues are, making sure that it's clear what the what what your jurisdictions rules are regarding, as you said, preservation, they're at trial and even before they even start summary judgment making sure that whatever the staff review is for summary judgment in the event that, well, if you win, and then the other summary judgment, then the other side appeals, you want to make sure that the arguments you've made are, are clear cut and everything in an appellate specialist brings that kind of perspective. That's not, not the trial attorneys lack I mean, don't get me wrong. I'm not saying that. It's just it's it's just a different perspective. it's it's a it's a complimentary perspective that fits in with what the trial lawyers do. Yeah.

Tim Kowal: 5:33

Well, Jeff, see, I see my attempt at light banter has turned into a disquisition on advanced trial strategy. So maybe we should move on to the actual meat of our of our interview today and talk about Marin Housing Authority v. Riley. And I thought our listeners would be interested in hearing you talk about this case, John, because it illustrates how decisions made in our judicial system here in California can get the attention of appellate attorneys like yourself in other states. And yes, we could talk about maybe we talked about the Marin County Housing Authority case, we could talk about Amicus briefs more generally, and how to maybe how practitioners can can involve that as part of their appellate strategy. Let's set the table briefly to discuss Moran Housing v. Riley, the California Supreme Court just issued its opinion in that case. And now there's a petition for certiorari to the United States Supreme Court. And the case involves Section 8 rent subsidies, I understand and apparently, some Section 8 recipients also receive compensation for providing in home care for for disabled family members, for example. So the question that arises is what happens if that compensation takes them above the threshold for receiving Section 8 aid? Does that compensation count as "income" for determining need for Section 8 assistance? SoJohn, if you would set up the basic facts of the case and then how you came to be involved in it?

John Reeves: 7:00

Gladly, yes, thank you to himself. But to as a practical effect, this is going to make far more people eligible for HUD housing. And in the process, your HUD funding isn't unlimited. I mean, it's money doesn't grow on trees to use the old saying, right. And there are people literally backlogged waiting for to get HUD funding who are ineligible who don't have it yet,

Tim Kowal: 7:25

Right. Getting this increased income are arguably taking away money from people who have less income, yes, who equally need that housing? Or maybe maybe they have even a more dire need for that housing.

John Reeves: 7:37

Exactly. And again, I apologize. I can't remember what the what the amounts were that that, that that Miss Riley was receiving, in this case from the California from the Medicaid agency, but again, what you said that's just goes to prove the deeper issue of you know, under that rationale, if you accepting the California Supreme Court's rationale, her income would count towards being reduced, would be excluded for HUD purposes, but someone working somewhere else doing some, some other job making the exact same amount of dollars per year, that wouldn't be excluded. Yeah. So. So that's an issue. And so yeah, it's it's a very serious policy issue. Yeah,

Tim Kowal: 8:20

yeah. So yeah, we have a taste of the facts. You have a taste of the policies at stake. What let's talk about your interest as an amici. And the other ameche involved what who are the other amici? involved? builing, Amica, Amica. spruce, and what are their interests concerning this case? Sure.

John Reeves: 8:36

Okay. Well, so I'll start off with the, the, the amicus entity I filed on behalf of is the Scott County Community Development Agency. Now they're based in Minnesota. And that actually ties in with how there is a an explicit split in this case between the California Supreme Court and two other other jurisdictions. There's a split in this case, the California Supreme Court explicitly rejected two earlier cases, one by the Fifth Circuit and one by the Minnesota Supreme Court that concluded that this income, this income cannot be excluded. And Scott County, the party that I represented, as the amicus was actually the party in the Minnesota Supreme Court that ended up that ended up winning. So so that's so their interest. And so that's the that's the amicus party, I'm represented the other The only other there's only one other because party, the file day, an advocacy brief and supportive of the Supreme grand at this stage, and that's the county Excuse me, I apologize. This is the California Association of housing authorities. And they're they're like an umbrella group of various local housing authorities in the state of California. They're charged with administering the HUD regulations. And both their interest and the interests of my group, Scott County, they really allied we made sure that the briefing wasn't repetitive but but basically the California group, they focused primarily on the policy matters and how you as we were saying this, this is just going to further drain the the already limited funds, they're needed to provide assistance, these people, my brief and term amp amplified on what the circuit split or the nature of the circuit split between the California Supreme Court on one hand and the Minnesota Supreme Court and the Fifth Circuit. On the other hand, as I said, both the Fifth Circuit and the US Supreme Court they they came to the separate conclusion, then what the California Supreme Court did.

Tim Kowal: 10:35

Interesting. So what's the tactical advantage to splitting up the issues like that, rather than both of you covering both issues in your briefs? Or we're just one of you filing a brief or filing a joint brief? You talk about those kinds of considerations?

John Reeves: 10:50

Absolutely. Well, the most important thing in amicus brief can do Why? Why do you want amicus brief, it's to bring the court's attention to something to some matter that the briefs on the merits weren't able to address, either for lack of time or maybe, or for some other reason. That's the first thing. The second thing tied into it. That is an amicus brief gives the court an opportunity to look at the case from a broader picture, that when you see apart, that it prevents the core for being so focused just on the two parties here and enables them to see what the broader consequences could be or are to this to this issue. That if they rule this way, what could be a amicus brief can can bring to the court, what are some of the other consequences of this issue? That may be the main briefs haven't haven't haven't been able to dress because of time constraints. And the related to that, and I always say this, any good health practitioner will tell you that the worst thing you can do in an amicus brief is just regurgitate what the briefs on the merits have said that, unfortunately, that happens more often than it should. It there are a few things in this world that annoy appellate judges more than repetitive amicus briefs. They don't have all the time of the world. They're they're busy. You know, they have other things to do. They don't want to sift through. You have a long, a long brief that just repeats what

Tim Kowal: 12:15

they're not reading brief for pleasure they're reading because...

John Reeves: 12:17


Jeff Lewis: 12:19

yeah, yeah, that's great. But you know,

John Reeves: 12:21

yeah, hard to believe that the judges have I know, it's stunning to all of us. But

Jeff Lewis: 12:25

I was just gonna say every brief, you know, every appeal involves a mistake that was made by the trial court, and somebody argues it should be reversed. And somebody's arguing there was prejudicial error. And the real role of advocates briefs is to demonstrate the policy: "the why."

John Reeves: 12:39


Jeff Lewis: 12:39

The "why" the justices should care and why they should reverse and they should, in my opinion, amicus parties should spend 90% of their effort or word count on the "why" and the policy implications of granting or not granting relief.

John Reeves: 12:53

Yes, I fully agree. I fully agree. And on that note, just to add one more thing, just for to be clear what the status of the case is, right now, the cert stage briefings been completed. And the court actually about a month ago, after it was submitted issued an order or asking calling for the views of the United States Solicitor General, that's asked the Solicitor General's office to submit its own. Yep, at brief amicus brief to inform the court what it thinks that the case should be granted, should it not? So it'll be very interesting to see what happens with that.

Tim Kowal: 13:30

Are there any rules against amicus or different amici from coordinating their briefs with one another?

John Reeves: 13:36

That's a great question. No, there isn't. There's some some lawyers who are familiar with the process are... I've noticed they can be a bit reluctant to to try and coordinate by lawyers. I mean, the lawyers who for the parties on the merits, who they may all now that is this, they may think that well, is this is this wrong to collaborate, but there's nothing against it. I mean, as long as I mean, as long as you're not going to share any attorney client privilege, there, but no, there's there's absolutely nothing, nothing against that.

Tim Kowal: 14:09

Okay. Now, I noticed that Marin Housing Authority asked the court the California Supreme Court to stay the issuance of the remittitur. pending the filing and disposition of the of the petition for writ of certiorari in the Supreme Court. The California Supreme Court granted the stay. I wanted to ask you is that common in your experience from what you've seen, to do parties ask the the State High Court if the if the parties intend to take a petition for writ of certiorari to the US Supreme Court as a common to ask the State High Court to to stay issuance of the remittitur?

John Reeves: 14:43

I'll answer that question two parts one. It is it is common for the parties to ask a state stay at the issuance of the remittitur. If if the circumstances are such that it will harm the clock the party seeking review If it's not staged pending the time that they do start, and I'll get into that more in a second, the second quiet question, which is a subset of your first question, How common is it for the California Supreme Court or any other court to grant a stay of the issuance? That is a relatively rare thing for them to do. It's not unheard of. But it is relatively rare. And just just to give a broad perspective, what we call the what you call the remittitur in California is called the mandates in the federal appellate courts and several and most of the other state appellate courts effect as a side note as a Missouri practitioner one of the things I love about, about the California State courts, you guys still use all those old school common law terms and everything like you guys still have the demurrer and everything.

Tim Kowal: 15:44

And we're not very progressive in that way.

John Reeves: 15:46

irony of ironies, right. But but just and I don't want to, and again, feel free to stop me if I, if I go down a rabbit hole here, but just for your listeners to understand what we're talking about with the remittitur. What the remittitur is, on the appellate level or what like I said, it's the remittitur. In California, the mandate in the federal appellate courts is after the appellate decision is issued, the parties have a couple of have some time, typically 14 days or so. I apologize otherwise in California, to ask the court to their the case. You go rehearing if the federal federal appellate courts and back are just to rehear the case, if and when that's denied, the remittitur is issued or the mandate. what the remittitur does is that's the legal mechanism that actually sends the case back to the lower court for the lower courts to enforce whatever judgment it is that the higher court ordered it to do. So basically, now you get to the trial court can enforce the judgment. So in this case, what what's the what's the thing that the trial court has to enforce? Yes, to enforce the fact that that Ms. Riley, is that her income from that her I put not her income there her payments from the Medicaid do not count as income. And that's binding now? Well, the problem is you It takes a while to prepare a cert petition. And the SIR process is such that probably the de facto position is even while while you're writing a cert petition, and you file with the court, they're waiting to hear it. There's no legal mechanism allowing the trial court to not enforce its judgment during that time during this cause harm. irreparable harm. And that's the key there that even if cert is granted, and they that the court finds out that the petitioners show one, it's like, whoops, you just failed to collect all this money, or you just, you know, we really can't fix it. Sorry, really sour grapes.

Tim Kowal: 17:43

So does that lead to an issue of potential mootness for the petition for certiorari, if if this order that's requested to be reviewed by the US Supreme Court is already being enforced and causing harm? And as a Supreme Court look at that is making its ultimate remedy potentially moot?

John Reeves: 17:59

You know, that's a really good question. I'll admit, I never thought about that, that the standard that they use doesn't include the concept of, excuse me the concept of mootness. But I suppose it could I can't think of a circumstance under which you live. But I that's an interesting concept. I suppose it could. So mostly, what's animating is just just protecting the client from... Yes. Exactly. And so if the California Supreme Court stays the remitter, or federal appellate court stays its mandate, which which the California Supreme Court did here, that means that the lower court does not have the authority to proceed with executing what the California the California Supreme Court basically puts the effect of its ruling on hold. That's what happens. And it is a relatively rare thing to be done. It's not unheard of, but it's relatively rare.

Tim Kowal: 18:49

Yeah. So he said, it's, it's rare. Does that suggest that the California Supreme Court maybe anticipated this was likely to be taken up by the US Supreme Court?

John Reeves: 18:58

Absolutely. I think that especially because it was a four three decision in a matter that that where there was an expose, listen, acknowledged, split, where they basically acknowledged for all practical purposes, that they were really differently from the Fifth Circuit and the Minnesota Supreme Court. Yes, absolutely. Yeah. Where is it? Now, interestingly, go ahead.

Jeff Lewis: 19:17

Now this is a chicken or an egg situation is the fact that they stayed the remand make it more likely that cert would be granted?

John Reeves: 19:26

That that part? I don't I honestly don't know. Certainly, it means the California Supreme Court thinks it'll be granted. Now there. I'm not aware of any studies that look to see where when when the lower court be at the Court of Appeals or the state Supreme Court stays the remand or the mandate. How much that affects the likelihood of a supreme grad I I do know that the I can think of at least a couple of federal examples where the Court of Appeals has granted the motion to stay the mandate and then the Supreme Court denies it. cert. But on the other side of that, that sort of leads into another thing. There is a procedure that Walton happened here the question well, what if the California Supreme Court had denied the remittitur? Here? Would there be any other relief that the that Moran housing could have sought? Yo to stay or to, you know, to prevent this thing for God with their actual Yes, they could have applied to what's called one of the circuit Justices of the US Supreme Court. This is this is where we get into the the what what Supreme Court specialist called the shadow docket. You saw this a lot of with the our former President Trump getting all these nationwide injunctions, and they go to the court and before they have a grad cert, they'd, you know, shoot down a nationwide injunction or something like that. What how this is the size Supreme Court practice that a lot of outside lawyers, even a lot of appellate lawyers don't know about what what that is, is every justice is aside as the circuit justice to oversee a particular circuit. What that means is if there's like an A, and the rules provide, that if the lower court denies the state refused to say, the remitted or the mandate, you can apply file an application to whoever the circuit justice is who's assigned to that circuit. And I'm embarrassed to admit, I don't know who the Ninth Circuit justice is right now. I think that at the time of this, it was Kagan, but don't quote me on that. And the circuit justice by himself or herself has the authority to grant the state pending cert. And this leads to something that used to see more of called in chambers opinion, if the Justice most of the time the Justice will just deny it. flat out that I know that because that happened to me twice. That's happened to be twice in the last three years.

Tim Kowal: 21:43

Looks like Elena Kagan.

John Reeves: 21:45

It is justice Kagan. Okay,

Tim Kowal: 21:46

The 11th circuit's guardian angel.

John Reeves: 21:48

Exactly. And so you can have an instance. So sometimes you get justices issuing what's called an in chambers opinion, it's an opinion just have that justice, because it's in chambers explain why they're granted or denied the application. But you haven't seen that a lot in the last few years. Instead, what most what the courts are doing with most of these applications? Well, what the ones they think are worth further review is the Justice will refer to the whole court, and the whole court itself will then issue a decision. Now, of course, that didn't happen here. It wasn't necessary. But if you get this grant of a stay pending cert from a circuit justice or the court, that's a that's a darn good indication that your cert your cert petition is going to be granted it's not guaranteed, but it's it's far more far more likely than not.

Tim Kowal: 22:32

Yeah. Okay. That's, that's interesting. So let's discuss now amicus briefs more generally, or more broadly, some recent research has shown that the number of Amica briefs has grown over the past 20 years or so. And I'd like to share with our audience some stats that I found, startling, they come from the AMA 2021 posed by California appellate attorney Kirk Jenkins, at the California Supreme Court review. The post at that at that blog is titled California has more amicus briefs than adult than adult analytics researchers have realized, part one of a two part, I think it's a three part series. So here's the first data point that I found startling, and I'll post the link to that article in the show notes. So here's the first data point, researchers looked at two cohort cohorts of states and they looked at the number of amaka sprees filed in all the High Court decisions in those states. So in the first cohort, totally 19 states amicus briefs were filed in less than 5% of the cases. So a fairly modest amount of amicus briefs. But in the second cohort of states in which California is a member, amicus briefs were filed in over 25% of the cases. And in California, that figure was over 37%. And then here's the second data point that I found startling from that same Kurt Jenkins post, researcher, researchers looked at the abacus heavy cohort in which California is included for the years 1990 through 2004. And interestingly, although the percentage of cases with at least one Abacus edged up during those years, the average number of briefs per appellant didn't. This suggests that the increase was not so much in the number of briefs being filed in the same sorts of cases, as it was briefs filed in a wider cross section of cases. So I thought I shared that with you, john. And I wondered if you can comment on that. Because it seems like we I think in in a previous podcast, we talked about the number of amicus briefs kind of surging, and this kind of drills down a little bit and shows that it's not just the same kinds of you know, constitutional policy heavy cases that are just attracting more and more advocates for us. It seems like those submitting amicusabacus briefs are kind of spreading their efforts out and do a wider range of cases.

John Reeves: 24:44

Yes, I and I fully agree with you on that. And I think that that reflects well, among other things, how the appellate profession has gotten more and more specialized. And the and I and to be clear, I think this is a good thing. That more ambiguous briefs are being While in different types of cases across the board, I think it's good to have as long as the the issue itself within that subset, the type of case is your major issue. That's, that's worth the court's time. It reflects a growing concern on the appellate level of lawyers in general, to to make sure that the appellate courts are making the right decisions based on all as many good viable arguments they have before them. I can tell you right now, I mean, my like you say, I'm here in St. Louis, Missouri. And I've been filing quite a few ambiguous briefs on behalf of the Missouri organization of defense lawyers. But that's on the defense side in the Missouri Supreme Court. In in, in the insurance defense context, the which is another issue. I'll be obviously, you know, that that that's the thing, that's definitely more of a state court oriented thing. you'll ever see a US Supreme Court case on interpreting an insurance policy, it may be in federal court, but that's just because of diversity jurisdiction. But my point is, those kinds of cases can have just as major consequences for the average person, as a constitutional obligation be how do you interpret insurance policy? How do you you'll what is coverage? What is not? We all have insurance? And it's just that's just as input. That's it? And that's just one example?

Tim Kowal: 26:17

Yeah. Now, do you think if you're if you're an appellate jurist, and you've got a menu of different briefs that you can read for for any particular argument, are you going to tend to reach for, you know, for an amicus brief versus a party brief, depending on the kind of argument being made, like if it's a set statutory interpretation? I don't know, maybe the party's analysis will be will be just as good as any amaka spree. But if it's if it's a policy argument, you know, that the parties are going to argue, you know, for for the position of whoever's paying them, right, and advocates brief might have something more authentic to say about the policy analysis?

John Reeves: 26:49

That, you know, that's a good question. I, my initial answer is I'm not sure if I mean, I'm in terms of what the actual appellate judges and justices around this country do. I'm actually not sure what I've never seen any of any studies showing what what their preferences for what to read first. So in terms of what they actually do in their, their ivory towers and the hidden chambers, you I, your guest is just as good as mine. But having said that, one thing I can tell you is that at the US Supreme Court level, again, I can't guarantee this. I mean, I never had the privilege of working on the United States Supreme Court. But I mean, my I would strongly guess that in any case, the first if there's a brief by the US Solicitor General's office, that's the first brief that they're going to read, regardless of a thing, because they've got they've got some of the best appellate attorney attorneys out there. They give huge deference, not deference, but they give a huge consideration to the Solicitor General, they don't always agree with the Solicitor General, but they they usually have the best quality briefing and the best written arguments. So they're the most forthright with the court about what the case is actually about. So so that that that much I can I can tell you,

Tim Kowal: 28:00

yeah, yeah. So what what are you seeing in in the submissions of amicus briefs or the or their effectiveness, that maybe practitioners like Jeff and me who I haven't, I haven't, you know, sought out an amicus on any of my cases. And maybe you're seeing something that I should learn to see in some of my cases that have maybe if they if they have policy implications, or if they have, if it's even just a statutory analysis that could have broader relevance and maybe reaching out. So what sort of things are you seeing that that that I should train myself to look out for, in maybe soliciting advocates for some of my cases?

John Reeves: 28:34

Well, you're right. I mean, I mean, it is, excuse me, I apologize. I think if you're if you have an appeal, and you think it's it's a good issue, I mean, it it is worthwhile to solicit. Amica has briefs the I know that a lot of firms in DC at the US Supreme Court level are doing that they have they'll send out like an anarchist memo to different organizations, different nonprofits, asking, you're soliciting their requests, like here in Missouri, the Missouri organization, defense lawyers, we actually on our homepage have a submission panel you could do where you can submit a submit a request. And it's worth it. The bigger if, and obviously a lot of this depends on the size of the team. You have. I mean, if you have a huge team, I just filed a dynamic us brief on the merits. The US Supreme Court case said that the party I filed for is a very large, very well known dc, dc Supreme Court practice. I mean, they had this group had one lawyer designated as just as the person to coordinate the filing of all the advocacy groups to reach out to the reach out to the to the potential ameche and make sure everyone was on the same page and whatnot. And yeah, and that goes to beforehand to soliciting potential briefs and whatnot. So yes, it is worth it. The the now Now I will say one other thing, the one context in which I would strongly advise against filing and because briefs Unless there you have a really good reason for it is if you're asking, you know, if you're seeking certain the Supreme Court of the United States or you're, you're asking the California Supreme Court to grant or I apologize, if you're opposing the granting of search in the Supreme Court of the United States, or if you're posing the California Supreme Court, accepting discretionary review. It's typically not considered good to file an amicus brief IT support the argument that the court shouldn't grant review. And the reason for that is you don't want to draw more attention to the case than then it should like if you're so if you're opposing review, you want to you want to minimize say what they made the right decision below. It's no big deal. And filing an amicus briefs in that context, unless you have a really good reason for it is just going to bring more attention to the case for the court. And the court could very well be like, well, wow, look, all these parties opposing the granting of, you know, saying we should we shouldn't grant this will affect the way people are concerned. There's clearly something there we better grants. That's

Tim Kowal: 31:07

Yeah, yeah. A lot of subtle analysis going on here. Yeah. All right, Jeff, I think it's that time in the show where we get to the lightning round.

Jeff Lewis: 31:15

Okay. Hey, john, Have you listened to this show before?

John Reeves: 31:19

I'm embarrassed to say no, I haven't. What is the lightning round. I'm, I'm super excited to hear.

Jeff Lewis: 31:23

Fantastic than you'll be surprised each of these important questions that vex appellate nerds around the globe. We're looking for a short response one sentence, perhaps these very vital important questions. Here we go.

Font preference: 31:41

century schoolbook, garamond or something else?

John Reeves: 31:45

Century schoolbook without question.

Jeff Lewis: 31:48

That's the right answer.

John Reeves: 31:50

Good. I'm on the right show. Good. Yeah.

Tim Kowal: 31:53

And we appreciate your emphasis as well. Lack of equivocation.

Jeff Lewis: 31:56

Yes. two spaces or one after a period

John Reeves: 32:00

one without question once again.

Tim Kowal: 32:03

Oh, you're making friends with Jeff today.

Jeff Lewis: 32:06

pled or pleaded

John Reeves: 32:08

Yes. A lot my appellate Twitter but I'm sorry, say one more time. What was it? What was the question? I'm sorry. Or pleaded pled

Jeff Lewis: 32:18

All right. Very good. You're three for three.

Tim Kowal: 32:21

Yeah, no, I'm gonna have to count you down on on pled. You're just realize that you're regularizing verbs willy nilly. But But that means nothing but don't just I thought you were a strict constructionist john.

John Reeves: 32:36

No, I am an originalist. originalist is not the same thing as a strict constructionist. But that's that's a debate for another time.

Tim Kowal: 32:43

Fair enough.

Jeff Lewis: 32:44

All right, fantastic. 3 for 3 you're welcome to come back any any time any parting thoughts you want to impart upon our California listeners to our audience?

John Reeves: 32:53

Appellate? If you if for those who are well, what what's the difference between an appellate practice and a trial practice after the trial practitioner can be likened to the high school quarterback on a Friday night who gets all the all the glory he gets the job done and everything. The appellate practitioner is the nerd that does the high school quarterbacks homework for him to make sure that everything's in line. And unlike High School nerds, the appellant nerds love doing that and staying out of the limelight. That's the difference.

Tim Kowal: 33:22

Well, it's very inglorious and self deprecating to us. But I think it's fairly accurate. Yep. Yep. All right, john, we appreciate you coming on the show and taking some time with us.

John Reeves: 33:34

My pleasure. My pleasure. Thanks, Jim. Thanks, Joe.

Tim Kowal: 33:37

All right, Jeff. Well, let's get to some get to some recent appellate news and tidbits out of the California Court of Appeal. And john agreed to stick around with us and listen in and if he has any pot shots, he'll he'll chime in with them.

Jeff Lewis: 33:49

Okay, great. So one case that caught my eye. It's from March of this year, but it caught my eye because I was recently recently lecturing to some CPAs. About best tips for testifying as a forensic expert. And a case caught my eye involving Jillian Michaels, one of the trainers from the biggest loser, that weight loss show.

Tim Kowal: 34:07

No, yeah, I usually hear on the radio all the time.

Jeff Lewis: 34:09

Yeah. So she had a case. It's Michaels versus Greenberg Traurig. 2021 62 Cal.App.5th 512. I'll put in the show notes. The thing that caught my eye about this case is first of all, it's a legal malpractice case. Sargon was used to try to exclude expert testimony.

Tim Kowal: 34:29

Yeah, Sargon is the big, recent California Supreme Court case that that says that speculative expert opinions will be excluded.

Jeff Lewis: 34:38

Yeah, and more specifically, before a jury hears testimony that judge is supposed to act as gatekeeper and keep away from the jury any speculative opinions. The interesting thing about this Michaels case is it's an MSJ case. And on summary judgment, Jillian Michaels offered up an expert opinion regarding millions of dollars in damages that she's suffered as a result of malpractice. And at the trial level at MSJ the court applied Sargon and excluded it. And that result was reversed on appeal in the second district case that came out in March. What I found interesting is that the second district found that at the MSJ stage, unlike right before trial, right before a jury is going to hear evidence at the MSJ stage, opposing declarations are to be construed liberally. And experts don't necessarily need to lay the foundation for their opinions and explain their methodologies to the same degree and with the same specificity as is required at the time of trial. So it gives those opposing an MSJ (most often plaintiffs) a little more wiggle room and a little more vagueness in terms of offering up expert testimony. It is interesting decision. But I highly encourage trial lawyers to read it.

Tim Kowal: 35:55

That is interesting. Is that a second district case, Jeff,

Jeff Lewis: 35:58

Second district division eight,

Tim Kowal: 36:00

Because it reminds me of a case I was reading I believe out of the fourth district that came to the opposite conclusion. I don't believe it. It was on an on a motion for summary judgment and it was a it was a personal injury case against the against Caltrans for a design defect of a highway interchange off ramp. And the plaintiff experts submitted declaration stating that there was a design defect and the government Caltrans asserted the defense of design immunity. and and the the court granted the Caltrans summary judgment. And even though plaintiff expert declaration seemed to create a triable issue of fact, that was disregarded. I think this case seems like it cuts the other way on that.

Jeff Lewis: 36:44

Yeah, yeah, I recall us discussing that case in one of our shows. And

Tim Kowal: 36:48

yeah, I'll see if I can take that up and put it in the show notes. Okay, great. Great. And, and also, when you mentioned this, this Jillian Michaels case, to me, it reminded me a few episodes back, you had told me that you had never seen a court reverse Court of Appeal reverse because of an incorrect evidentiary ruling made by the trial court. So after you mentioned that I set out to find a case like and rub your nose in it and prove you wrong. And it took me a while but our listeners might want to take a look at the second district case from June 2021. Nicholson versus Southern California Edison company. It's an unpublished opinion, but the case involved an injured electrician who sued as Edison for negligence. But the trial court granted summary judgment for Edison by excluding the plaintiffs testimony. And the Court of Appeal held that this was an abuse of discretion. The evidence was based on personal knowledge. So the ruling was incorrect as a matter of evidence, and the evidence was relevant to the material facts. So it was prejudicial.

Jeff Lewis: 37:45

All right, well consider my nose rubbed. But to clarify, what I was saying is I've never had one of my appeals reversed on one of those grounds. But point taken,

Tim Kowal: 37:53

alright, but I'll be watching your cases, then Jeff.

Jeff Lewis: 37:58

And then I also want to point out the you know, California every year puts out statistics regarding the number of cases that are filed in the Superior Court and the Court of Appeal and how they're disposed of and how long it takes for each court or each district to resolve cases I always find reading this report. Interesting. A new report was just issued, and we'll link to it in our show notes. But the thing that I found most interesting is always the number one question I get from Trial Lawyers is: how long is this appeal going to take? And this report shows that 90% of all appeals, from the moment the notice of appeal is filed to opinion, the shortest disposition for 90% of appeals is in the second district division 6 at 687 days. That's from the filing the notice appeal to opinion. And the longest is the second district division 1 at 798 days. I always find that interesting to see the trends in terms of how long it's taking for opinions to come out on cases.

Tim Kowal: 38:58

Is that the longest side, I thought about the longest head had been coming out of the sixth district if I wasn't mistaken. I wonder if they dropped out of the running, maybe transferred a lot of cases

Jeff Lewis: 39:09

now. Maybe we could do a deep dive. Now keep in mind, this is for 90% of the cases. And I wonder if that 10% contains some outlier cases. The other interesting fact is this tracks the statistics report tracks criminal, civil and total rates of affirmative and in this latest report 78% of civil matters result in a being affirmed by the Courts of Appeal. And that's slightly lower the prior year was 79%. So I don't know if there's a trend there, but that's interesting. Yeah. Okay. All right. Well, that wraps up this episode.

Tim Kowal: 39:46

If you have suggestions for future episodes, please email us at Cal That's c a l In our in our upcoming episodes, look for tips on how to lay the groundwork for appeal when preparing for trial.

Announcer: 40:01

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 ca o That's cal Thanks to Jonathan Caro for Intro music. Thank you for listening and please join us again