High-profile and celebrity family law attorney Chris Melcher has represented some of the largest divorce cases in California, including multiple cases ending in published appellate decisions. Chris talks with Jeff and Tim about how celebrity-driven cases shape the law, such as the #FreeBritney movement against conservatorship abuse.
Chris then talks about a way to bring more attention to non-celebrity cases through requests for publication of nonpublished opinions that raise important issues. And what kinds of cases pique the Supreme Court’s interest? It is often not what you think, says Chris, which is where bar networks come in handy in keeping up on legal trends.
Chris Melcher 0:03
The only thing I can say consistently that that that I found is if I believe that the case is worthy of review, it will be denied.
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:26
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:28
And I'm Tim Kowal. Conditionally licensed by the California Department of podcasting. The California appellate law podcast as a podcast for trial and appellate attorneys. Jeff and I are both appellate specialists and we split our practices evenly between trial and appellate courts. In each episode, we try to bring you some tips and insights that you can use in your cases at trial or on appeal.
Jeff Lewis 0:49
Welcome to Episode 34 of the podcast.
Tim Kowal 0:52
You know, Joe, something that comes up a lot on our podcast is how do we get the appellate courts and the Supreme Court to take notice of a case and sometimes the law develops based on what legal issues are deemed by the courts to be newsworthy. And so the question becomes how do you get your case to become newsworthy? And so for that topic, we thought we turn to the expert in newsworthy law, Christopher Melcher. Chris is a high profile and celebrity family law attorney and a certified family law specialist. Chris has represented clients and some of the largest divorce cases in California is his clients include a list celebrities, executives and tech company founders. Chris also serves as a consultant and expert to other family lawyers on important divorce cases. You'll also find Chris on major news outlets as a frequent commentator on high profile cases including the Angelina Jolie Brad Pitt case, the Britney Spears conservatorship case, and most recently, the Johnny Depp Amber Heard case and relevant to our discussion today. Chris also handles family law writs and appeals. Chris has twice argued in the California Supreme Court and as public and as unpublished decisions to his credit. So Christopher, welcome to the podcast.
Chris Melcher 2:04
Well, thanks for having me, Tim. And Jeff, I'm a fan and I'm first saw about your show on LinkedIn. And I've been following it. And I appreciate all the work that you do. I know it's a ton of effort, but it's great for the community to see this.
Tim Kowal 2:18
You're also very active on LinkedIn, you have a very active YouTube channel with a lot of commentary on some of these cases. And that's that's how I got to know you as well, and follow your your work and commentary. I think it's excellent. Now you didn't start out as a Scylla. Celebrity family law attorney, why family law and why celebrities?
Chris Melcher 2:38
Well, family law, I never thought I would would do this. When I got out of law school in 1994. I wanted to do corporate securities law, but there was no hiring the economy was the exact opposite as is now. So not even the public defender's office was hiring. So I just went out on my own, I was doing civil and criminal defense and guy down the hall was doing family law and talk me into switching over. And I'm glad I did. Because it's a great practice, we get a lot of client contact that you don't get in a corporate practice, we handling all aspects of their lives. So I developed this practice on doing complex family law litigation, and the celebrity thing just happened. Unintentionally, it was just as I was doing bigger cases then started representing more high profile individuals. And so that just became its own little thing in itself. But to tell you the truth, I prefer a non celeb case of this Less drama, and then having to deal with everything that goes along with representing a high profile figure.
Tim Kowal 3:46
Jeff Lewis 3:48
You know, I've been watching a lot of the Amber Heard trial clips because I appear in the media every once in a while. And one thing that I cannot understand, in all of these clips, I see Johnny Depp chewing gum, and I know in the Los Angeles courtroom, you'd be tossed out of the courtroom for that. Do you know anything about Virginia courts and why they're so lacs about gum chewing in the courtroom?
Chris Melcher 4:06
Yeah, you know, every judge has got its own way of doing stuff. And it is hard as a litigant to have to sit there and listen and not react and and, and you know, for both parties, but yeah, it's it's hard. I think it's he's probably got a lot of nervous energy and to sit there for eight hours and listen to all that stuff. And it's it's hard.
Jeff Lewis 4:28
Yeah. Sorry for that tangent, Tim.
Tim Kowal 4:32
Now, Chris, how did you go about building your practice? Did that did you start with the commentary and build practice from there or how did how did you get up into doing these high profile cases?
Chris Melcher 4:44
Well, it I know as a young lawyer, I would see the talking heads starting with the OJ trial, which was in progress when I was finishing up law school. And so I saw that there was this role really is interpreter that Lawyers can play for the public to understand these issues that the public is seeing in these high profile cases. And I thought, gee, I'd always like to do that. But I figured, well, I need to be more experienced, I need to build my resume. And that's honestly a lot of things that hold back all of us as lawyers, we're always saying, well, once I get the certification, or once I've handled this many cases, or once I become partner, then I will start doing whatever my dream is. So I wish I would have got started on this a lot earlier. But it is a big side job that's unpaid. All these guest appearances that I'm doing on media, I don't get paid for that stuff. I just like to do it. And I really respect that the citizens here want to know what's going on in our courtrooms. And if I'm able to explain these complex things, like what is this hearsay objection? Mean? In simple terms, I'm happy to do it.
Tim Kowal 5:54
What about I know you're also very active in putting on presentation CLE presentations for attorneys, did that come in parallel with your legal commentary? Or did one precede the other?
Chris Melcher 6:06
Well, so when I started in family law, the guy that I went to work with an eventually foreign partnership with Peter Walzer had said, all of his business came in from other family lawyers, and the way that he got that work was doing presentations at CLE events to other family lawyers and writing articles on family law and serving on Family Law committees. This made no sense to me that why would another family law attorney prefer work like that, but it is, it is true, it happens. And so I started doing these presentations, which helped me learn family law. So when I have to speak on some family law topic, I do all the work to prepare for it because I don't want to look like an idiot. And so that's why I learned family law. And that's what built my referral base or book of business. And it's been great. And as the pandemic happened in the lockdowns occurred, we couldn't do the hand to hand marketing the conferences in person that we were before. So I flip that over to webinars, which I like because you can interact with folks on a webinar in a way that you can't in person, you can see who's attending, you could chat with them shout outs. So I've I love it. I love doing that work. The media commentary is completely different, and be able to use the same technology that I have at the office with audio and video equipment. But speaking with the media is rapid fire, you're talking 60 seconds, rather than 60 minutes for CLE.
Tim Kowal 7:36
Yeah, you mentioned something to me that during or you just you just mentioned that you turn your your your CLE presentations from in person presentations into webinars. And I think I think you said that they're available over YouTube. Now. I take it now that they're available to a mass market that your participation in those is gangbusters, isn't it?
Chris Melcher 7:56
Well, it's weird with lawyers, because when I thought like, I'm going to create some webinars and do them live, and then throw them out there on YouTube for free. Nobody watches them on YouTube. And it's it's something about lawyers and our love for calendaring things that makes the live presentation. So much more engaging in watched than the recorded. And it's the same content. I mean, it's but if I put it online, I'll do a LinkedIn event, send it out to my email list. lawyers will show up because it's in their calendar, if I have it on YouTube, that they could watch it anytime they never watch it. So if it's not the calendar, a lawyer won't do it.
Tim Kowal 8:36
Yeah, it's not a real CLE. If it doesn't come with a rubber chicken, so good. So you shared about how your clients find you. And it's obvious because you're everywhere. You're you're on major, major market media, you're on YouTube, you're all over LinkedIn, but what do what do your clients when your clients find you? Why do your clients choose to work with you over other excellent family law attorneys in the area? What makes what makes you different?
Chris Melcher 8:58
Well, I kind of think clients pick their lawyers a lot like we pick our dogs or pets is somebody who's going to match their personality. And I'm very upfront with clients when I'm interviewing with them. And it's a two way process. And I let them know like, Hey, this is what I'm about. I'm not going to go in there and show boat, I work very hard, I'm going to put on the best case possible, but it's gonna be done in a respectful way. We're going to follow the rule I want to get you out of this as quickly and efficiently as possible, not looking to terrorize the other side or make any points if you know if I am going to say this may cost you a million dollars right now I'm going to tell you pay that to your partner, because you would be much better off giving that money to him or her than to me. So most of the clients relate to that that want to hear that message. So if they're a business owner, you're used to doing cost benefit analysis on litigation or any business decision in that range. It's true to them. They want a lawyer like that who's not self interested? Who doesn't have some agenda that doesn't serve them. Now, other clients don't want to hear that they hear weakness. What do you mean, you want to settle? What do you mean, you don't want to fight? What Why are you already talking about compromise in our first meeting? Well, that's not going to be good. And so I'm very direct about that. And also, what I found is that having so much content online, especially video is great for potential clients to vet you because otherwise old school, they would see your bio and know what school you went to. And that's about it. And then you have to pay for a console to listen to you and say, maybe that's not the right fit. So since there's a lot of video content out there, and I recommend this for everyone in your BIOS to have on your website to some video clips of yourself, so they can get a feeling because we are spokespeople is a big part of our job. And if you can't speak or they don't You don't present in the way that the client wants, then why waste everybody's time with a console?
Tim Kowal 11:00
Yeah, that's a great tip. No, no, Christopher, I wanted to ask you this, since you're an expert in in high profile cases that are involved in the media also often have rich and famous litigants. I want to ask you this about the concept of blind justice in our justice system, that everyone's supposed to have the same shake in our justice system, regardless of their status regardless, regardless of whether they're rich and famous, or poor. Nobody's What have you learned through your experience in representing the rich and famous does the concept of blind justice hold true?
Chris Melcher 11:31
Well, it really doesn't, I think, in criminal it can, because we have public defenders who don't get paid a lot of money, and will fight endlessly for their clients. And so I think in criminal practice, you see some equalization there for attorneys who are willing to spend a tremendous amount of time without any extra pay to represent their clients vigorously. In civil, we don't have that we're all by the hour or percentage. So you know, there it is skewed. And and even in these cases that I'm doing in divorce, you have an in spouse who has control of the assets and can pay the lawyer freely. And then you have the out spouse who's always trying to jump over that wall and get access to the money and fee awards. And it's become almost like a plaintiff and defense practice within family law. So it's very difficult for someone who doesn't have access to money to get access to justice.
Tim Kowal 12:31
Yeah. Let me ask you a follow up question along the same lines of whether there's blind justice in cases involving the rich and famous. Does does the high profile nature of a case ever factor in to an appellate courts thinking? I'm talking a Court of Appeal now where say, for example, where the court will the Court of Appeal, take a closer look at a writ petition in celebrity cases? For example, if if an early disposition would and what might be perceived as a media circus. Does that do those kinds of factors come into play?
Chris Melcher 13:04
Well, you know, I suspect that they do. You know, I've never served on the Court of Appeal or worked within the Court of Appeals. So I it's all a mystery to me. But you do see cases with high profile names attached to that, whether it's parties or sometimes lawyers, or cutting edge issues where they seem to get favored more than the humdrum stuff. And that makes sense. Because if you're on the Court of Appeal, you probably want to work on something that's more interesting than not, but it honestly in a legal analysis should make no difference. Now, I have, though, seen some courts reject cases that involve celebrities, where you would think that, you know, gee, they really want to attach themselves to this thing. But I do think it goes into the myth that and we even seen, like the California Supreme Court that one of their considerations on whether to grant a petition for review is the quality of lawyering involved. So there may be some some real considerations here that if Hey, we're going to take this case, want to make sure that the lawyers are are going to do the best job possible.
Tim Kowal 14:10
What do you think about the sorry, Jeff? I don't mean to cut you off. That's okay. I
Jeff Lewis 14:16
had a quick question. You know, one of the things that drew me to appellate law is the group of lawyers that do appeals is much smaller, and litigators, and are much more courteous in terms of extensions and each other's lives. And I was wondering, the group of lawyers that handle high profile cases, celebrity cases, would you say the same is true or the opposite is true in terms of professionalism and courtesies? What's your experience with the celebrity bar?
Chris Melcher 14:44
Well, you know, it's it's kind of a small practice and but there is, you know, even within there some divides between the white hat you know, lawyers versus the ones that are trying to to attack the celebrity. And so some, some have developed a practice of, of, you know, handling these high profile cases, but it's always on the outside of it that is trying to go after the celebrity. And and there's always some concern in those cases that the lawyer is basically saying, you know, settle, or, or if you don't, this is going to become public. And so there can be some bad blood that is developed, I think, within within those lawyers, but I hope that I'm on the good side of things. And for me, no matter what side of the case I'm on, I want it to be quiet, because I'm representing the celebrity I want to get along with the other side. So they're not running the court doing awful things to my client, especially, that's going to be publicized. And if I'm on the outside the outside shell side of the case, well, I don't want to kill the golden goose, I don't want to damage the celebs earning power, because that is going to deprive my client in the future from support. So I'm looking at it from very practical standpoint, I'm nice for a reason, not just because I'm a nice guy, because I think tactically, it serves me. But then there's other attorneys who are mean for tactical reasons.
Tim Kowal 16:16
Right. Interesting. Now, obviously, the celebrity cases can have the potential to bring a lot of attention to to the trial courts, do they do judges like this attention at all? Do they completely hate it? Do they have? Is it somewhat of a mixed bag?
Chris Melcher 16:33
Yeah, I mean, it's very odd. Because if we look at an analogue here of a jury trial, we would tell the jury, you know, you cannot go on social media, you can't look at the news, you can't look at anything relating to this case. And in some extreme cases, we will even sequester them to keep them in their bubble. Now with judges there, they're the canons of judicial ethics prohibit any extra judicial investigation. So they cannot look at social media regarding their cases. But how could you avoid doing so if you have a high profile case, like depth heard right now, you cannot look at your news feed or the TV without hearing that case. And so, and I've seen that in some of my cases, where references are made to social media, that's not an evidence. Well, how would the court know about that if it wasn't looking at something it wasn't supposed to look at? So I do think that the courts act differently when they know that their scrutiny, and that's not such a bad thing, as long as they're tightening up their process and saying, I know that this has been highly scrutinized. So let me be on my best behavior. But sometimes we see that scrutiny then provide a platform for them really not looking as good as they should.
Tim Kowal 17:52
Yeah. And I wanted to ask you just quickly on the same subject, but talking about the free Britney movement, I don't want to go too deep into a rabbit hole about, you know, the issue of conservatorship abuse. But do you think the court was concerned about this kind of hashtag movement movement, the free Britney movement and all the scrutiny that was suddenly being paid to alleged conservatorship abuse?
Chris Melcher 18:15
Yeah, I'm glad you raised that, because it was the free Brittany movement in the power of social media that broke the case open, and a court would have never done anything otherwise. And just quickly looking back at the history of that case, is that the the Brittany was put into a conservatorship without notice, even though the law requires notice. The conservatorship was granted ex parte without bringing her body her person to the court. So the judge could see her eye to eye even though the law required that. And then when her lawyer found out about it two days later, and came into court and saying I object, the court would not hear from that lawyer and said I had already appointed a lawyer for you, Brittany. So the the court was fooled into putting a conservatorship over Brittany and violating all of the legal protections that were supposed to be there for Brittany and allow that to go on for 13 years, even while she was working in a Las Vegas residency, which should have made no sense to any judicial officer looking at this how can somebody perform a Las Vegas residency and be so disabled that she would need another adult to make basic decisions over her like medical care in life and financial decisions? So it was only when the free Britney movement had really pushed in so hard that it forced attention to the case that the court then started acting the way it should have from day one. And we've also seen that in depth heard that there was understandably a lot of people rallying along, Amber Heard because we want to support and believe the victim, but then through the power of social media and her supporters, showing a lot of inconsistencies in what Amber Heard is said and kind of flip thing that court of public opinion. Yeah,
Jeff Lewis 20:02
yeah, that whole the whole makeup issue with the Amber Heard, you know when a certain makeup was made that's something I think the jurors by will never hear but it's all out in social media. It's crazy.
Chris Melcher 20:11
Well, it's right and in what I've likened it to, because you know we work on these cases and we may think are we have a big team of two or three or four lawyers and maybe some investigators, and that's our big team. Well, if you look at Amber Heard, and Johnny Depp's case, he's got a million people on social media pointing out inconsistencies. Amber saying, Oh, I was I was bruised up on May 27. And then they're finding pictures of her may 28 2016 with no bruise. I mean, this is an army of investigators that are out there helping them but
Jeff Lewis 20:47
and not just yeah, just not just their investigators. I think it's almost like crowdsourcing because the public court of public opinion seems to be on Team Johnny here. And so everybody is an at home. True Crime sleuth and is looking for inconsistencies. It's crazy.
Tim Kowal 21:03
Yeah. All right. Well, now let's talk about some non celebrity cases that the rest of us non celebrity attorneys handle. Now, Christopher, you shared with me and approach that you've used successfully in the past. And it has to do with requesting publication of unpublished Court of Appeal opinions or contrary Why is requesting the publication of problematic publish Court of Appeal opinions? Would you tell our audience a little bit about the strategy that you told me about? I think it's fascinating, I think our audience would be interested to hear about it.
Chris Melcher 21:34
Sure. It's a way to shape the law as a non party or non counsel to a case. And through all this bar service that I've done being on these Bar Bar committees here in family law, there's these Amicus committees, and I've seen like how they'll go in and try and have a case published or D published or do an amicus brief on a on a pending issue. And it's it's been very effective in we're looking at monitoring, not non published decisions and saying, Wow, this, this case, would advance an issue that we need to develop in the law, and just asking the court to publish it, or one comes out and it's like, wow, that one's way off the rails, we need to get this off the books and asking asking it to be de published. And then the third aspect is, we're seeing an issue percolating in a case where maybe there isn't the horsepower there that there's there's not really strong representation on on the issue. And now a bar group or an attorney wants to come in and saying, Hey, here's what I have to say on this very narrow legal issue to aid the court. And through all that work, you're now shaping California law, and it's a it's a great thing to do as an attorney as a service to our community. Now,
Tim Kowal 22:56
is this something that you're doing purely in your capacity as an amicus just someone who is interested in the law, and in you have an idea of, of what, you know, what, what kind of legal issues are kind of percolating and what what things are undecided? And how they're how they're shaping up? Or is there a way to use this process to help maybe future clients that you would have? Well, sure.
Chris Melcher 23:19
I mean, it's, I'm doing it as a student of the law, and for my love of the law, but I certainly have certain areas of the law that I would like to see developed over other areas of the law. Now in we've seen in other practice areas, like say, if you're a defense attorney, you know, they're it's they're very clear objectives of what they have, that they want to strengthen defenses, or the plaintiffs bar community will want to do things to make it easier to make claims. And so their bias, whatever is very clear. Now, in family law, it's a little more difficult, because I could be on either side of an issue in any particular case. So one day, I may be arguing for the enforcement of a premarital agreement, and the next day, I may be arguing against the enforcement of Premarital Agreement. So it's very difficult for me to say, you know how any particular case would affect a client, because I could be on either side of it in family law. So where I've kind of settled on it is, is that I want consistency as much as possible in family law, because this is it's it's an awful place to practice. It's a court of equity. And I came from criminal at the beginning, where it's like, we have a statute, we read the statute, and that's about it. And in here in equity, it's it's a free for all. And so if I can find any kind of rule in family law that's reliable enough to advise my clients on or build a case around. I'm happy about that. And when I see courts, not following the few rules that we have that upsets me and that's where usually I'm gonna step in.
Tim Kowal 24:58
Well, let me let me ask you As if you're an advocate for for a client and there is a there's a court of appeal decision that comes down and it's and it's not published. But if it were published, the holding would be very useful for your for your client. But you're you're you don't have a any material pecuniary interest in the in the case that was that was just handed down under California rule of court eight point 1120, which is the rule of court that allows any party to request that a unpublished opinion be published, it does state that any person may request it doesn't have to be up to that case. But it does go on to say that you have to in your capacity as an amicus, you have to concisely state the person's interest and why the opinion meets the standard for publication. In your view, do you think that the that the statement of interest would require you in this in this hypothetical I set I set up where you represent a client who doesn't have a pecuniary or any any interest in the other case that's been handed down, but the holding would be advantageous to your client? Do you have to state that in the request for publication?
Chris Melcher 26:02
You know, and that's something I have struggled with? Because I think that we, you know, I don't know if we've maybe read that rule too narrowly. I certainly when I look at the rule, I say, Well, did somebody pay me to do this brief? No. Now, if the case were published, would that help me in a pending case? Yes. Do I need to say that? I don't know. I don't know. I mean, definitely, I'm stating in there that look, I practice family law, this is all I do. So I think the court could draw from that, that that, hey, this might end up helping one of my clients. So I mean, I guess it would be best practice to say, Oh, and by the way, Court of Appeal, I have a case where this is going to help me. But you know, it doesn't necessarily make the position any different. So I don't know where to come down on that. I think that the the harder issue is if it's adverse to your client. So if you have a pending case, where publication of this other opinion is going to harm your client, do you do you have an obligation to your client not to ask for publication? You know, I haven't I haven't got that one yet.
Tim Kowal 27:15
Jeff, what do you think about that? I kind of share Chris's ambivalence there. And I tend to think that no, technically you don't have an interest in the case. But what do you think,
Jeff Lewis 27:25
you know, I've never done a request to publish or depot where I'm not representing a client. But my gut tells me that you should disclose that, for example, I'm a family law attorney who regularly practices in this area. And clear clarification of this ambiguous rule is something that would benefit all family law practitioners, something like that would be helpful. Yeah.
Tim Kowal 27:48
Well, let's, let's talk a little bit about that, since we covered the the process for requesting publication of an opinion that's been that's been issued as, as a non published opinion, contrary, why as you alluded to looking for cases that have been published, that that creates some bumps in the road, let's call them whether for your your future clients, or just for the state of the law, it's created, creating confusion, it's creating conflicts under rule of court eight point 1125, the process is about the same except you may not make that request to the court of appeal, you have to make that directly to the Supreme Court. But can you tell us a little something about about your experience and making requests for de publication of Court of Appeal opinions?
Chris Melcher 28:31
Yeah, well, this is, you know, Tim, a little bit more edgier. Because when you're asking for publication, you are going to the authors of that opinion, you're saying, You guys are selling yourself short? This is this is beautiful prose here, you this should be published, what are you doing? Well, of course, that's going to be very well received your your but on D pub, you're going to their higher court, the Cal Supremes and saying, Look at this awful decision, I can't believe these people did this. So it has to be worth your while. And and and I've just just filed one of these last week, when again, in a very respectful way, I think, pointing out that it's a horrible decision. But I also have to keep in mind, I gotta practice potentially, in front of these justices in the future. And I'm just hoping that they don't remember this.
Tim Kowal 29:23
Yeah. Now, I want to ask you, because you've been up to the to the Supreme Court a couple of times, everyone who's had the experience of losing at the Court of Appeal is at the frustrating experience of answering the client's inevitable question of what next? You know, what, what remedies do I have from this Court of Appeal opinion that didn't go my way? And the answer is always grim. It's well a petition for rehearing which is basically never granted. And a petition for review, which, you know, maybe you have upwards of a 4% chance, statistically speaking, so that's effectively never do you have any tips that you can share that that may help get your case up to the Supreme Court.
Tim Kowal 30:00
Obviously we've been talking about request for publication. If you can get that thing published, then that increases your chances anything else that can make your maybe pave the way? I don't know if there are things you can do earlier on in the case to make it newsworthy. You've been does does newsworthiness of a case, heighten your chances of getting review in the Supreme Court?
Chris Melcher 30:18
Well, you know, this is a mystery, I think all of us, because the only thing I can say consistently that that, that I found is if I believe that the case is worthy of review, it will be denied. That's the only thing that I found because every time that I'm like, Oh, they're gonna grant this thick. How could they deny review of this issue? I always lose that. And then when I say, Oh, come on, I wouldn't even bother opposing this thing. That's why would they take this dog? This has nothing, nothing to see here. Well, they grant that. So I guess I'm one ad off on everything. You know, like one of the cases was was marriage Valley Frankie Valli represented Frankie Valli from the four seasons. And that ended up going to the California Supreme Court. But on the most minor issue in the case, it was the big case we had two trials on was whether his wife had any interest in the play Jersey Boys. It was a multi billion dollar endeavor. And I thought, well, that's the issue that will go up, if any, would go up, because there's very little law on how to apportion something like that. The issue that went up was whether him buying life insurance on his life during the marriage and naming her as the owner of that policy made it her separate property that received out of three trials, maybe 10 minutes of trial time. And that's the issue that went to the California Supreme Court.
Tim Kowal 31:45
I wanted to back up. There's one other question I wanted to ask you about your strategy. And just to repeat reprise that here, it's basically that if you have a case involving a novel legal issue, and you can find another appellate court that hands down and unput unpublished case involving the same issue might consider requesting publication of that opinion. Now, how are you going about looking for these appellate opinions to you know, to seek to have published or to have have D published, do you have like a Westlaw alert for certain kinds of issues, but what's what legal issues are on your radar these days?
Chris Melcher 32:19
Well, I mean, this is the the beauty of being involved in in bar organizations, whether it's LA County Bar, or any of the specialty bar groups is that there's there's lawyers and judges on those committees that are following published and unpublished decisions. And then there's the listserv that's discussing, certainly the new published decisions. So that's the way I'm kind of keeping my finger on the pulse of things. And you can go to the to the cow courts website and see all their unpublished decisions if you wanted to follow that. But mostly, it's it's one of us on this committee that happened to see this. And it may be one of the counsel for the parties in that unpublished decision saying, Hey, you got to take a look at this, this should really be published, probably because they want another published decision for themselves, but that get, you know, percolates up there. So, you know, that's the way I'm monitoring it. And it's it's really looking at inconsistencies in the Court of Appeal. And that's, that's certainly going to get everybody's attention saying, Well, how can two different appellate courts look at the same issue and come to different conclusions? And that certainly is going to increase the odds of the California Supreme Court granting review. Right? So
Tim Kowal 33:33
you're teaming up with other other like minded family law practitioners, who are all looking at these kinds of important issues that are percolating up and down the court system. And so if if a if a zinger comes out, then you're likely to get a get an email from one of your Bar Association's saying, hey, Christopher, you might want to write this one up.
Chris Melcher 33:50
Yeah. So we'll first in committee, take a vote on it and saying like, hey, as a bar group, are we going to get behind this and write a letter? And if if not, and if I feel strongly about it, then I'll write on my own behalf. And I don't know that it carries any more weight to me, you know, whether it's coming from Chris, or whether it's coming from bar organization shouldn't make a difference. It should be the content of that letter that counts.
Tim Kowal 34:16
Yeah. How often are you sending up these requests for publication or D publication?
Chris Melcher 34:20
So it's, it's right, you know, I would say, several times a year, probably four times a year I'm doing that. And then in this last a California Supreme Court case, which is brace I just asked to for permission to write an amicus brief, and that was certified question by the Ninth Circuit on on a California community property issue that the California Supreme Court took up and I noticed that there it was, came from bankruptcy. So the council that was involved in that case, were both bankruptcy counsel, who didn't have subject matter expertise and family law. And that's why I figured well gee, I really don't want this coming out the way it could come out. So I asked or permission to write this amicus brief. And and then the Council on, on whose clients behalf I was supporting was kind enough to carve out 10 minutes of his oral argument time for me to argue as an amicus. So that was, I mean, it was a huge amount of work unpaid. But the payoff was incredible. Because I got to be involved in this issue, make sure that it came out the way I thought it should come out, got to argue it, you know, advanced the law. And it was just it was I mean, it was no better use of my free time.
Tim Kowal 35:35
Well, Chris, I really appreciate your your contributions to both the to the bar and to the public, and talking about educating the public about these important issues that are coming out. And I really find it interesting and admirable that you're spending your free time sending up these monitoring the cases that are coming out and sending up requests to the appellate and Supreme Court about some of these opinions that may be sending our our law into some kind of some confusion. Do you have any other tips or words of advice for for our attorney listeners that were war stories you'd like to share?
Chris Melcher 36:05
Well, the thing is, I think getting engaged and we can see that this community here is so important that that we support ourselves, we understand what we can do to contribute to the law. So I would encourage everyone to be engaged more. And it's been super beneficial to me, just personally, I feel good about being a lawyer when I do this, but it's also been great for business. So if you have any questions about ways that you can get involved and what what are the steps to, you know, do this bar service and how to convert that into referrals. Don't just call me or email me. I'm happy to help because I learned all this stuff from Pieter Walser, and he learned it from his dad Stuart Walzer, so I'm happy to share the secret sauce here of my success.
Tim Kowal 36:52
All right now I think Jeff, you have some some of the real hard questions for Chris now.
Jeff Lewis 36:56
Yeah, you know, we conclude our interviews with the the most important and scintillating questions at Beck's appellate nerds around the world short responses, one sentence and seminar I always learned something new from these questions. last recording, we learned about a new way of formatting arguments that I hadn't heard of before. It's always interesting. So here is our patented copyrighted lightning in terms of your appellate briefs that you file what is your font preference century school book? Garamond, or something else?
Chris Melcher 37:22
Oh, century school book. Love it. Nice.
Jeff Lewis 37:24
That's the correct answer. Two spaces are one after a period,
Chris Melcher 37:29
there can only be one. And is it pronounced?
Jeff Lewis 37:32
Is it pronounced Amicus or Amicus or something different?
Chris Melcher 37:36
I use them interchangeably. And I have because I have no idea.
Jeff Lewis 37:42
That is also the right answer. Although I say it Amicus pled or pleaded
Chris Melcher 37:47
pled. It's gotta be pled Correct? Well,
Tim Kowal 37:51
we're not all perfect.
Jeff Lewis 37:52
Where did you find this? Guest? He's amazing. All right, when we're talking about your headings of arguments in your brief, not the table of contents or table authorities projectional the arguments. Do you do all capital letters, initial caps or sentence case?
Chris Melcher 38:04
sentence with a period at the end? So the Table of Contents reads my argument?
Jeff Lewis 38:10
Bold, very bold. All right, and your text of your arguments left justify or Full Justify
Chris Melcher 38:17
left justified. Nicely done.
Jeff Lewis 38:19
All right, final question after major headings in a brief to start the next section on a new page or continue immediately below.
Chris Melcher 38:28
I continue immediately below as long as I don't have a widow or orphan.
Jeff Lewis 38:33
Fantastic. All right. You survived the dreaded lightning round and well done. We were successful as you we'd send you a t shirt or a mug, but instead you just get our thanks.
Tim Kowal 38:45
All right, and so now we have just a couple of cases and news and tidbits we wanted to share and and Chris has agreed to stick around and take potshots if he has any the first one first case I wanted to talk about I think I just had one case I want to talk about today. And that was it is people vs Whitmore and the it's a California court of appeal decision that holds that there is no right to in person appearances in in a sentencing hearing. So the defendant in that case had specifically invoked his constitutional and statutory right to be personally present at the sentence sentencing hearing. But the court held that limiting a defendant to a virtual appearance was legally improper, but it created no harm. And so therefore, it was it was harmless error and the Court affirmed the 10 year sentence. My thought on this was isn't that structural error. There are certain kinds of errors like denial of a jury trial, for example, that the Court of Appeals broach the subject of trying to figure out well would it really have resulted in a different outcome if if we had given this defendant a jury? We don't even go there. We just say you had a right to it. This is the way we hold our trials. It didn't happen here. reversed and remanded hold the new trial. Maya Am I wrong? Wearing no objection?
Jeff Lewis 40:04
Yeah, you know, that's interesting one, what one could say you're building in a structural Avalanche or tsunami appeals during COVID. If you're going to take the position that a virtual appearance is not adequate. So there might have been a little bit of self interest by the courts in this ruling. Yeah, I
Chris Melcher 40:21
would, I would think and the California constitution says that no, what no judgment shall be set aside unless there's a miscarriage of justice. So we do have this concept of harmless error. And, and I yeah, I have to look at that case, to see how the defendant articulated the prejudice. Because being there, I understand there's a right of confrontation in a criminal trial under the Sixth Amendment. But here this is a confronting a witness is confronting the judge that sentencing, and maybe, maybe the argument is, is that the court would have felt more sympathetic, looking at a live human than a virtual human? And, and maybe that's the best argument that could be made. And in a manner that is so serious, I don't know, you know, I'm gonna have to look at that and see why they why they said harmless. So here
Tim Kowal 41:07
are the ideas that I could come up with if I had to, if I had to face this rule, and I had to show that there was prejudiced resulting from holding a virtual virtual hearing rather than the in person hearing that my client was entitled to, I would argue, maybe there was poor audio quality or a poor connection quality in my in my Zoom appearance, and I used to have to Object Object early and often if that happened to make a record of that Another idea would be maybe if someone is speaking off camera has happened sometimes like like a clerk, you know, keep alerting the the court that it sounds like someone who's speaking off camera, I can't hear what's going on, just keep making a record that that there is some unsatisfactory about the way this hearing is being conducted. And then my, my, my favorite example, maybe most fanciful example would be just stipulate a lot. You know, throw your hands around, I say, say that I prefer to stand but I'm going to have to adjust my my camera and just make a record of how disruptive it's being to be able to present your argument in your preferred way.
Jeff Lewis 42:02
Yeah, cuz, you know, appellate justices really love reading our briefs. And that is only exceeded by the loves trial judges have for gesticulating counsel, that waives arms, and that rolls their eyes during argument. I'm not sure how I feel about that last suggestion there, Tim.
Tim Kowal 42:16
Well, but this is all I can come up with. I mean, that's structural error. I don't know of any way to enforce this position to an in person trial.
Jeff Lewis 42:25
Yeah. Yeah, good point. Fair point on the issue of constitutional right to be present and structural error. There's interesting case that came out of fourth Appellate District division two, that's for Riverside case, and Riverside, like Orange County where you and I practice Tim has this requirement that before trial, you gotta have a meet, confer with opposing counsel, have all your exhibit and witness list and make a pretty binder with all the joint pre trial documents, you hand that to the clerk the day before a trial. And I guess this rule is in effect, and Riverside, somebody didn't comply, they showed up for trial for jury trial, the judge said, Nope, you're gonna have a bench trial, and found that jury trial was the wave. And one interesting side note, the judge who made this determination and ruled in the bench trial, also was a settlement judge served as a settlement judge. So the appellant who lost this case went up on appeal pointed out, Hey, I complied with the rule of court of appeal didn't like that arguments. And no, you didn't comply with the rule, he did show up with the binder, it'd be that there wasn't a valid waiver of a constitutional right to a jury trial. And that got the court's attention. It was interesting. So they reversed and found that failure to comply with the local rule, at least under these circumstances, can't constitute a waiver of a jury trial. They did leave some wiggle room that had the trial court given some notice, like, Hey, you didn't turn in your binder, we're gonna have an OSC Ray striking your right to a jury trial in two weeks, you can brief the issue. If he had done that, if the trial judge had done that, perhaps the waiver might have been effective, but it's kind of an interesting issue. It's a published case.
Tim Kowal 43:56
And I take it there was no there's no analysis of prejudicial error, because yeah, deprivation of a jury trial is structural error. Yeah,
Chris Melcher 44:06
yeah. And that's where I've, I've sought a recent decision that that I lost, where the court did imply did did apply the waiver rule like it should be that it has to be a knowing and voluntary relinquishment. And you know, sometimes they just don't apply that if they guess if they don't want to, but that that's technically right. And that's where I'm trying to build into my stipulations are to make it clear that somebody knows that they have this right, and they're giving it up. And we've seen that recently in a First Amendment case where there was a settlement that somebody agreed not to speak, and then try to challenge that to say, Well, hey, I gave I didn't voluntarily knowingly give up my first amendment right here. So I think practice tip for all of us is spell out waiver.
Tim Kowal 44:55
Yeah, yeah. Okay. I also wanted to share something Myron Moskovitz wrote in the April 14 2022 daily journal where he he criticized oral arguments on appeal as being largely futile. And this is a subject that that we've discussed on this podcast but admire Moskovitz says something that sparked an idea. I wanted it to both of you here. So here's here's Meyer Moskovitz. Quote, I have fully endorsed the slowly growing practice of issuing tentative opinions and focus letters that let the attorneys know before oral argument what the judges see as the key issues. This makes the argument much more meaningful and sends the message that the court is truly interested in getting attorneys input into how the appeal should be resolved, and quote, so after I read that, here's the idea that it sparked. Here's the proposal. I'd like your your comments on. So we know the California courts cannot deny litigants oral argument because that's a constitutional right. litigants have a right to oral argument. But what if the courts issued invitations to oral argument in certain cases when the court was interested in hearing about these issues? Invitations would be it's basically what the tentative opinion is. So when they issue a tidbit of opinion, the courts are saying this is what we are interested in. But but most courts don't issue the tentative opinions. But what if they don't have to do the 10 of opinion, they can just say we invite oral argument, they don't have to disinvite oral argument, they can't do that. But just saying that, we're looking forward to your oral argument, that kind of sends a signal that, hey, we've got a chance here. So let's give it our best, let's really work it up. oral argument can be a lot, it costs a lot of money to the client, because the attorney has got to go through the entire record again and get get ready to be to be asked any question about any of the issues of facts in the record. And if you're not going to be asked anything, if you're just going to get to get up there and speechify to a cold bench. It's just a waste of your time and the client's money. And so maybe these invitation letters would be a good way to focus the attorneys and to save to be an access to justice issues so that litigants don't have to waste money on oral arguments that are going to be pointless.
Jeff Lewis 47:03
Do you think you could draw a line between them sending those letters out? When you've called Focus letters or issue spotting letters or whatever? Do you think you could draw a line between that and an actual drop in request for all argument? Because I think lawyers will still want to argue either because they're stubborn, or because they want to build the hell out of the file? Or or because their clients are saying I want my day in court. I don't think there would be an appreciable drop in the request for oral argument.
Chris Melcher 47:28
Yeah, that's that's my sense, too, is that they're certainly the arguments can occur, but then at least it can be prepared. And then it would reduce a little bit of anxiety because going into these, I always figure like, I won this one, you know, or whatever. And then it's just more like Bloodsport that we go in. And it's all of a sudden we hear like, how is this happening? And where did this come from? And and I don't think it would take a whole lot more preparation for the court to do that, because there's probably already drafted that opinion. So but I rarely rarely see any any indication, other than through the contempt of the court towards counsel about where they're going during oral argument. Yeah. Yeah, I don't know.
Jeff Lewis 48:12
I don't know if reducing appellate lawyers anxiety is in the top 10 list of appellate justices concerns but maybe an appellate justice here as a guest on the podcast
Tim Kowal 48:21
will laugh. I thought I get you with access to justice. Jeff, those clients who do you know, who don't have the unlimited budget and would like to I like to limit their expenditure could say, well, if the court is really not going to be receptive to whatever we say at oral argument, do I really want to spend the 1000s of dollars to prepare my my attorney to go out there know that those clients
Jeff Lewis 48:41
would just say, Hey, Tim, would you go out pro bono? Would you go argue that pro bono?
Tim Kowal 48:47
Well, but we know that we know our expectations. I did have one other case that I wanted to bring up. I have to mention it since we have Chris here because I had followed Chris's advice. And I had sent up a request for publication after I wrote up this arbitration case, Quach versus California Commerce Club. Back in April, I decided that the opinion raised some interesting issues and it ought to be published. And today the court modified the opinion and partially published it, the holding is that the right to arbitrate is not waived, even if the party invoking arbitration, happily litigated for 13 months. The newly narrowed holding is that the showing of prejudice to establish waiver cannot be met merely by litigation costs, which is all the plaintiff raised here. You have to you have to go further and and argue something else other than it cost me money by the by the moving party's delay. Wow.
Jeff Lewis 49:35
All right. Interesting. All right. Well, I think that that wraps up this episode.
Tim Kowal 49:39
We want to thank Christopher Melcher, again for being with us today. And if you have future suggestions for future episodes of the podcast, please email us at info at owl podcast.com.
Jeff Lewis 49:51
I'll see you next time. Thank you, Christopher.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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