How Does a Client Measure Success? Our Conversation with Outside General Counsel Lee Goldberg

Lee Goldberg joins us for a discussion about his perspective as in house counsel. Lee shares decades of experience using litigators to solve business problems and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn and his website, and what a general counsel looks for when hiring trial and appellate counsel.

Some of Lee's lessons:

  • On litigation objectives: " My client is never principle over business. Ever."
  • On the most common mistake litigators make: " [When] they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see."
  • On hiring the right litigation team: "White shoe firms have their place. ... [But] all of it has to do with my relationship with the litigators and the litigation firm. Because I will tell you this if I have a good relationship with them, then we coordinate and work together, they understand where I'm coming from, I understand where they're coming from, and that best serves the client in the long run. So no, it's not always the Gibson Dunn's, okay. It's not always the Reed Smith's that I bring into these deals. All right? Local, smaller, dedicated, smart counsel is what I look for."
  • On trial counsel handling appeals: "I will never have my trial lawyers handle my appeals. Ever, ever."
  • On success: " The thing that people keep coming back to is success. Understand something, success is perception. Success is not a piece of paper. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had."

Tim, Jeff, and Lee also cover recent cases discussing how to properly ask for discovery in response to a summary judgment, and applying the disentitlement doctrine to dismiss an appeal, including why it may be important to bring appellate counsel in to an appeal.

Lee Goldberg's website, LinkedIn profile, and YouTube channel. Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

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


Lee Goldberg: 0:04

Success is an emotional feeling that you give to the client that they did the best they could in the situation that they have.

Announcer: 0:14

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: 0:29

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:31

And I'm Tim Kowal operating under a probationary 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: 0:59

And welcome to Episode 17 of the podcast.

Tim Kowal: 1:03

And today we welcome Lee Goldberg to the show. Lee is an outside general counsel with over three decades of experience in corporate litigation and legal guidance. And I expect Lee will correct us and tell us exactly he's got 34 or 37 or 62 years of experience. But I gotta tell you after three decades, Lee we stopped counting. We writes and speaks about legal issues that affect business owners and their attorneys, including a B five, and I'll have the editor insert a boo sound effect there, and other employment related matters. Lee's recent video series on LinkedIn and his website, cow lawyers calm is about preparing a business for sale. I watched the series and found that it contains advice that I think every business attorney will find useful for their business clients. So thanks for being here, really. And welcome to the podcast.

Lee Goldberg: 1:49

Thank you very much, guys. Great to be here with you.

Tim Kowal: 1:52

Now, if you would I read off a little bit of a bio for you but but if you would tell us tell our audience a little bit about yourself and our audience is mostly trial attorneys. So please introduce yourself to our audience.

Lee Goldberg: 2:04

Yeah, thank you, Tim. I've been in practice like you said for 35 years. I'm outside general counsel to a number of companies across a very broad spectrum of industries. as General Counsel we handle everything internal communications, internals, structures, internal organization, internal operations, but then we also handle everything between the company and all third parties, including regulatory including trade suppliers, trade contractors, and anything else that would affect the business from financial to marketing to operations.

Tim Kowal: 2:48

And Lee I also noticed that you've been very active on LinkedIn over the past year or so. And I wonder if you would comment a little bit about that I noticed that that every post that you that you put up there on LinkedIn gets you know gets about a dozen at least comments from other attorneys and I wonder I wonder how you do it. I wish I can get that kind of traffic I would I probably need to stop being so esoteric and my posts.

Lee Goldberg: 3:09

Well, I gotta tell you some number one, I love your posts. Because I learned so much I mean, it's outside of my realm of operations. But with respect to my stuff, I will tell you flat out I am a tech nerd idiot. I don't know anything about technology. The only social media I have is LinkedIn. I did not have LinkedIn I did not have a website. I did not have YouTube site until my marketing guy Gary Johnson also a very dear friend put that all together for me and he's just done a wonderful job. I get a lot of good response from that.

Tim Kowal: 3:46

Yeah, well he's done a great job and Gary promised me if we get his name in the podcast he give me a free buy one get one of Baskin Robbins. Gary Yomi

Lee Goldberg: 3:54

That sounds like Gary

Tim Kowal: 3:58

and we before you became an an outside General Counsel used to be a litigator that that understand that right

Lee Goldberg: 4:04

I was in a general practice I did both transactional and litigation when my clients asked me for it I've never took a client just purely litigation it was all handling client that experiences taught me we should stick to what we're best at. litigation was not what I'm best at and I watch you guys in absolute awe.

Tim Kowal: 4:28

Do you have any good good war stories from that your days when you were a litigator? or, or, you know, most important lessons learned?

Lee Goldberg: 4:36

Oh, well, the most important lesson learned is as outside General Counsel, I'm going to hire professionals Come and get it done. That's first of all. Second of all, here's what I've really learned. For me personally, I'm a business lawyer. I focus on business I focus on getting it done. I don't focus on process and process to me personally gets in my way. I cut through all the garbage and get to the end result. And I'll know right up front, whether I'm going to get to an end result I want in terms of litigation, it's it's a process that, for me is completely frustrated, I completely don't understand some of what I see is the form over substance and the expense created by the form over substance in order to get justice, if you will. I mean, at this point, guys, I look at the world of legal, transactional and litigation, what have you as there's no such thing as Justice, there's only dispute resolution, and you get the best dispute resolution people on your side, that's the way I look at it.

Tim Kowal: 5:44

I think that's great advice. We, I still get a lot of a lot of clients, and I have to have that conversation with them about the difference between getting justice and just really, what do you want? And don't tell me, you know, to vindicate a principle or you want justice, because that's just the name on the side of the building. You know, that's not what is actually dispense there.

Jeff Lewis: 6:05


Tim Kowal: 6:06

That's my cynical view.

Jeff Lewis: 6:08

Holy smokes you two. What about the truth?

Lee Goldberg: 6:12

Yeah, well, truth justice, the America way? Well, I guess that belongs to Superman.

Tim Kowal: 6:18

Well, that gets this let us segue into the next subject I wanted to talk with you about and most attorneys probably have a vague idea of what General Counsel does and what it is. But my guess is that most of us attorneys don't really have a really good idea and accurate idea of what a general counsel is or does so in your experience, or what have you glean? What do you think trial trial attorneys and litigators think that General Counsel does versus the reality of what General Counsel really does?

Lee Goldberg: 6:44

Ah, I, I get a lot of weird questions about what I do. I will tell you, most attorneys, whether they're transactional or litigation unless they're specialized as General Counsel, they really don't understand what it is we do every single day. And the best way I can explain it is we are a C suite executive in the firm in the company. We operate with all of the other operating and corporate officers to essentially effectuate all their plans and organizations and operations for their business. We also sit, we handle the overview of all strategic planning for the business, both 123 510 and exit strategy planning years out. All right. And then third major category, which is how I'm involved with litigators, as we handle all or manage all dispute resolution. You can't operate a business these days without some dispute. You have to have the best guys around you now. If we can handle a dispute and resolution before it gets to litigation, that's certainly my preference. But if it gets to litigation, I choose litigators and bring litigators in that are specialized to handle those things. And that's, that's what we do in every every specific profession that helps a company is part of our job is to know the people that we can bring in to help whether financial accounting, sales, marketing, production doesn't matter. So knowing litigators, and knowing good appellate lawyers for litigation is actually part of my job. It has to be.

Jeff Lewis: 8:37

Hey, I've got a question. On a related note, as an appellate attorney, I'm interested to know as General Counsel, do you tend to favor the use of arbitration clauses? Or do you use private judging or good old fashioned Superior Court litigation?

Lee Goldberg: 8:54

That's really a great question, Jeff, because it's a very complex answer to what seemingly a very simple question, here's the deal. I hate arbitration provisions. absolutely hate them. No appeal from them. And I had a situation about 20 years ago, where we found after the arbitration, an actual conflict of interest that was not disclosed by the arbitrator that he had to disclose but did not disclose. We took that all the way to the California Supreme Court and loss because from court said, well, you chose arbitration Oh, well, okay. I can't I can't put my clients in that position at all. That being said, I favor alternative dispute resolution. A good mediator is worth his or her weight in gold. All right. It's It's It's a matter of positioning the dispute to get to that point. That's really where we're at.

Tim Kowal: 9:54

Well, that said, How do you view litigation as general counsel is, it's we talked about, we're not But we're not out there to vindicate a principle or just to get justice, you're looking for a resolution. And I would think that most seasoned litigators would share that view, what do you bring to the table that that helps focus litigators, even more as General Counsel?

Lee Goldberg: 10:15

Yeah, I use this quote all the time, it's from the Godfather, see, Sonny, it's just business. Alright. That's the way I look at it. litigation is a waste of money, if you are not getting what you need, and you know what, the uncertainty of litigation is extremely costly on business. So the way I look at litigation is there's a dispute, we have some resolutions, we can get to resolutions of all sides are reasonable, because in my opinion, a reasonable settlement is where both sides are equally unhappy, right? You don't get what you want everything. But as long as each person or each side is equally unhappy, I'm okay with that. They don't want to settle. They want to force my client into litigation, I have a completely different attitude, scorched earth Baby, I will spend whatever I have to spend, I will do whatever I have to do. Winning is winning by attrition, running them into the ground. And if I have and they force my client to go into litigation into trial, I'm telling you, we go all out win period at all. I'm like the old Raiders owner, just win, baby. That's all that matters.

Tim Kowal: 11:38

So it's not always the principle of justice. But sometimes it is a principle of respect, you know, you disrespect me, I'm going to run you into the ground, I'm going to make you I'm going to signal to you that this is going to cost you if you're going to continue down this path.

Lee Goldberg: 11:52

Well, that's a really good point. I never thought about it as a respect thing. I think about it as a stupidity thing. You want to be that stupid, I'm going to show you how much it's going to cost your stupidity is going to cost you. It doesn't mean it's not good for my client. My client is never a principal over business ever. Okay, yeah. So we got to get their business. And if it's going to cost me $400,000 to settle, and a million dollars to litigate. And my my uncertainty about whether I'm winning or not, is up in the air, I gotta tell you something, we're sitting down to see if we can get this resolved, move on and make our money and what we make our money on. And businesses do not make their money in litigation. Most of them.

Tim Kowal: 12:44

Yeah. So is it. So maybe you could say that the objective oftentimes in litigation, as you're thinking forward, how do I get to a judgment, but maybe from your perspective, a judgment is just another tool in the toolkit, if you can get to a judgment, you know, hopefully, you would have found a way found an off ramp before that point. But there are multiple ways of using getting leverage to get, you know, to get to a to an off ramp to get to a settlement, some sort of resolution that makes most sense for the business.

Lee Goldberg: 13:09

Well, leverage is an important word to use there. That's what I use litigators for is leverage. It's that simple. I gotta show them the other side that we're going to stand up at some point. But believe me, the idea is to show them how much it's going to cost them. So we can come to the table and sit and talk like human beings and get a resolute resolution.

Tim Kowal: 13:32

I've always heard this story about how a general counsel choose litigation counsel, maybe you can tell me if there's truth to it, that the general counsel will always tend will always favor hiring white shoe firms, because even if the white shoe firm loses, that can't come back and reflect badly on the general counsel, because they'll say look, I I hired the best money could buy Don't blame me. You share that view.

Lee Goldberg: 13:58

I don't at all. Look, white shoe firms have their place. They're amazing, outstanding lawyers. And it'll cost you three times what you what you would be charged otherwise, you can get that there are amazing lawyers out there. You have to go out there and get to know them as General Counsel, you have to understand how they work. I have a whole Bank of litigation firms of every level that I use for my clients, and understand some of it is matching the client with the right litigator with the right disposition. Some of it is a litigator that has particular expertise in the challenges of that litigation. And all of it has to do with my relationship with the litigators and the litigation firm. Because I will tell you this if I have a good relationship with them, then we coordinate and work together Understand, they understand where I'm coming from, I understand where they're coming from, and that best serves the client in the long run. So no, it's not always the Gibson Dunn's, okay. It's not always the reed Smith's that I bring into these deals. All right? Local, smaller, dedicated, smart counsel is what I look for.

Tim Kowal: 15:26

Tell me about the relationship that you have kind of sitting in the middle of the client, the principle that you're at your client business, and in dealing with trial counsel and appellate counsel, you're kind of sitting in the middle there. And what is it? What is it like what that relationship? Is the trial counsel, communicating directly with the client? Are you the go between? How does that work typically?

Lee Goldberg: 15:48

Well, it can work in all sorts of ways. Certainly, typically, what I like to do is no matter where the communication lines are, I'm always involved in the communication. My clients, I will tell you, when there's direct communications, it's only adds an extra step, because my client is going to come to me and say, What did you say? What do you mean by that? What's going on there? I do like the communication direct from me, every one of my engagement agreements say specifically that the firm's take direction from me, not from the client, every one of them, I have very close relationships with clients. And I know most firms will outside firms will not when they bring in outside counsel, pay those outside counsel directly. I do that. I want that outside counsel to know that they answer to me, because I'm the one that looks over their shoulder and half the answer to my client for anything they do right or wrong. I mean, it sits with me. So

Jeff Lewis: 16:53

You're the clients. I'm sorry, go ahead. we're

Lee Goldberg: 16:55

Go ahead, Jeff. Go ahead. And

Jeff Lewis: 16:57

you're and you're the clients, first line of defense on bills, do you take on that role of looking at the bills and dealing with billing issues?

Lee Goldberg: 17:04

Absolutely. But also I understand billing, and I understand attorneys have to make money. But I also understand my client needs value. And

Jeff Lewis: 17:14

In terms in terms of getting value, do you ever allow lawyers to work on either a fixed or contingent fee as opposed to the traditional hourly?

Lee Goldberg: 17:23

If it makes sense? Absolutely. If it makes sense, you know, contingency work in business transactions is very rare. It just is unless you're going after, you know, something that that has deep, deep pockets and the council can collect they, they really even offer it, right? That's why you see it mostly going in p eyes stuff with insurance companies defendant because they got deep pockets, if you get a judgment they pay. So I don't see that very often, Jeff, and frankly, transactional work that I do hire outside counsel for because I don't do every piece of transactional work that is more likely a fixed fee product.

Tim Kowal: 18:09

Now for when you work as General Counsel for companies that may need to contemplate future litigation, I'm thinking of like big, like big companies. I'm not sure if you represent companies like I'll give you a for instance, in our last episode, we interviewed Kelly Irby, with the Orange County District Attorney's Office and with the civil Enforcement Division, enforcing unfair trade, competition, unfair competition law against some pharmaceutical companies for price fixing. And she told us that she was a little surprised when the pharmaceutical companies attorneys made a motion to strike allegations in the pleading, which wound up taking the case all the way up to the Supreme Court. And where the Supreme Court held that, yes, the Orange County, any district attorney can file statewide litigation. And it really backfired on on the big companies defense counsel. And I wondered if Gosh, this seems like maybe a line of defense was missing over there on their side of the table. And I wonder if that's kind of a layer of consideration that you might add is thinking ahead not just to winning this litigation. But even if you if you win this litigation, you could lose the war later on.

Lee Goldberg: 19:14

Yeah, that that is a big deal. And when I said earlier about strategic planning, all of that has to come into effect, but it works the opposite. I had a client that had higher collections legal bills, than they had a default rate. Why? Because after about five, six years of going crazy getting a bunch of judgments they'll never collect on. Every lawyer out there in the public knew for a fact that if you stole or did not pay this client, they were coming after you. So there are reasons to do things like that. I'm not a big fan of that. To tell you the truth. I Anything that I do that is that looks like, you know, scorched earth litigation. It's really only to bring people to the table. And believe me, I don't believe in taking the last dime off the table. I don't look at trying to bring people to their knees. That's not the issue, the issues to get the resolution for my client, period. And if I have to do that by making the other side feel good, I'm going to do it by making them feel good.

Tim Kowal: 20:32

What are some of the most common mistakes you see trial attorneys make?

Lee Goldberg: 20:37

Not knowing their client?

Tim Kowal: 20:39

What do you mean by that?

Lee Goldberg: 20:42

They have a litigation plan. They have their litigation plan. They know where they want to go with it. They know how they think they can argue it and go for it. If you don't know your client, that is a train wreck about to happen. You need to respond to the needs of your client as a litigator. My goodness, gracious litigators, in my mind have to be the fastest thinking people on their feet around. All right, they have to learn all sorts of specialties that the different businesses that they represent do and how their businesses do it. Why they only have their way of going about things as opposed to satisfying the clients. Not only business need, but emotional needs to that's a big part of it. So I think that's the biggest deal when when when lawyers, not litigators only, but when lawyers get so full of themselves, that they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see.

Tim Kowal: 21:51

When you have a trial attorney that you you keep coming back to you Do you have your your client gives repeat business to a trial attorney? What's the most what's the most common factor that that keeps your client coming back to that trial attorney? Is it just the inverse of that the the attorney knows what that what that client needs.

Lee Goldberg: 22:09

So the thing that people keep coming back to is success. understand something, success is perception. Success is not a piece of paper. Success is not a N word result. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had. Alright, that's what keeps them coming back, I will tell you what makes them run away faster than anything. And it's a knock on all of us. And that is responsiveness and returning phone calls and emails. I tell you what I learned about 25 years ago, how important that was, or 30 years ago, when the fax machine came in my practice, when I first started out, it was easy to say Oh, you want this agreement, great, I'll get it done, turn around, get into mail, you'll love it in 10 days, or two weeks or a week. Then the fax machine came in with the thermal faxes that fade in remember those, then the faxes came in. And all of a sudden, your clients expected it now they call you up for 30 page agreement. And and you get a phone call Two hours later. Where's my agreement? Yeah, that was that was a difficult change. Well, now let's add email to it. All right, that we all have let's add zoom, where we could do documents on zoom looking at each other. This this is this is a tough thing, in terms of creating expectation. And what you have to do as a professional, if you don't want your client frustrated, is manage their expectations, period. Yeah, I that's half my job. I gotta tell you some half my job is managing expectations of everyone around me. So, you know, that's kind of the way I looked at

Tim Kowal: 24:13

it. I want to come back to something you said about success. And and then tying that back into something you said earlier about a successful settlement is where no one no one is happy. So how do you how do you square those two things, you'd you know that you've gotten the great litigation outcome, but the clients sometimes might might think unless you have managed those expectations. Maybe that's the link early on to know that we're not going into this litigation to get a judgment that we can frame on the wall at the cost of you know, hundreds of 1000s of dollars to trial counsel, we're doing it so that we can get an outcome. So maybe I've answered my own question, but

Lee Goldberg: 24:46

No, no, no, that's where the only good thought it is a reconciliation. Okay, look. Yes, expectations have to be managed the entire way. So I'll just give you a really quick Example about what I'm talking about about more than a dozen years ago I had a situation which was really bad. And a shop foreman in a steel fabrication company did some really really bad things not in bad not not bad intent to stupid right and, and their new CFO that was brought into the company was embarrassed and and he left the company into was when I was brought in and after my explosive expletives at the at the shop foreman for being so stupid, my initial conversation with the client was how much they should expect to pay. And the client was frustrated. What Wait, wait, you're supposed to come in and tell me you're gonna defend this and get this taken care of. And I said, Yeah, I can blow smoke up your skirt. You want that I'm happy to do that. But that's not the way it's going down. You're paying money. You're not insured. You didn't listen to me when I told you to get epi and coverage. All right. So you're paying and so they came to me and asked me Well, how much do you think we're gonna pay? I said, I hit a home run. If I settle this for under 700 and they're in shock, of course, right? But as you keep showing them what's going on and you show them other judgments and you see what that situation is, then they finally start coming around and we actually settled that one for 400 and I was given a gift by the client we're settling for 400 Yeah, so it's about expectation it's about letting them know what reality is and not trying to be the hero to solve and win everything

Tim Kowal: 26:46

you're constantly telling telling them what's up at the beginning and and telling them I told you so at the end

Lee Goldberg: 26:54

I try not to say to you I told you so they you lose a lot of clients doing that

Tim Kowal: 26:58

well then tell us about I mentioned your your activity on LinkedIn and you've got a great video series on LinkedIn about preparing a business for sale one if you tell us just a little bit about the Genesis genesis of that you know why why did you think that attorneys and business owners needed to see that that particular lesson and that video series can be seen on on Lee's website at cow lawyers calm which is a great website is much better than mine. Which I have to explain with Tango Victor alpha way too complicated Cal lawyers anyone can spell.

Lee Goldberg: 27:29

Oh, you're hilarious. Listen, like I said anything that I have social media or otherwise is is Gary Johnson. And also Steven, Greg, Steven, Greg did my my website and he's done a great job, I will I will I I do those video series because Gary pushes me to do those videos series. That's number one, I've always took the position that I you know, I'm a lawyer, I do law, I'm not a game show host Okay, I don't like it just was very, very uncomfortable at first. And the way he got me to do it, is by saying, Listen, don't talk about you give value to people. Tell them something that they don't generally understand about and and and this way you can feel good about what you're doing. You're not you know, putting your face on the side of the bus and say, you know, yo soy abogado. You know, I you know, so so it started with that. And I've I've had some speaking engagements, several regarding a few topics, preparing your business for sales, one of them. The other one is strategically planning and increasing your business value, which is the current one that I'm running, it's a seven part series. And then I have one following up, which is a six part series right after that is the the attitude that business owners have to have, if they're going to strategically plan their exit strategy for the best results. So between those those those are about a 2021 part series. But honestly, I put that all together in an hour and a half presentation that I done some keynote speaking on. So what I did was I thought I'd break that up and just give it to the general public on LinkedIn.

Tim Kowal: 29:26

I think there's a lot of value in there and I've got those bookmarked to share with with my business clients when they need them. So I think it's a great service and I got two more Gary Johnson plugs there. So I think I can probably rank free free toppings on my buy one get one of Baskin Robbins out of them. So as a Leo, I want to thank you for for joining us and sharing your experiences as general counsel with us. I think it's hopefully will be a benefit to our audience and trial lawyers and appellate attorneys and Jeff and I are going to talk about some some legal news and tidbits at least stick around and you can kind of pipe in if you have any any comments on our on our discussion of recent cases. So Jeff, why don't you take us into some of our Our News and tidbits for the week.

Jeff Lewis: 30:02

Yeah. Thanks, Tim. And thank you, Lee for being here today. Yeah, please pipe in if you have any thoughts on these stories, first off, I do want to share that the Fourth Appellate District Division Three down in Orange County, has announced that justice David Thompson is retiring, effective October 15. Justice Thompson, if you're listening, we'd love to have you as a guest on the podcast to discuss your 24 years on the bench. So congratulations on your retirement and come on the show. Yeah, well, we get an invite out. Go ahead.

Tim Kowal: 30:31

Oh, you know, there's a there's a case, there's a case this week about Fingleton versus Coyote Valley band of Pomo Indians and I have seen this one. And I saw that you had mentioned it, you'd flagged it to talk about it as well, Jeff. So tell me what you saw out of it. And you know, I have a couple of comments as well.

Jeff Lewis: 30:49

Yeah, it's fascinating two seasoned lawyers can look at a case and pull totally different issues out of it. I saw your write up about it. Here's what caught my eye cases. Pendleton v. Coyote Valley band of pomo Indians out of the first district. It's published and involved the long running construction and equipment rental dispute between an Indian tribe and a contractor. And the contractor repeatedly tried to enforce a mediation and an arbitration clause. And the tribe had tried every trick in the book, and many tricks that aren't in the book. To avoid arbitration and mediation violated court orders got sanctioned. When the tribe attempted to an appeal an award of sanctions. The contractor invite, excuse me invoked the dissent teittleman doctrine. And the dis entitlement doctrine says, Look, when somebody is in violation of a court order, they can't go up to the court of appeal it secretly, it's kind of like an unclean hands defense up at the appellate level. And that's what happened here, the contractor brought a motion to dismiss based on disentanglement. And the Court of Appeal granted a motion to dismiss the case. That's not unusual. What is unusual is what happened in this case is the Court of Appeal granted the motion to dismiss the appeal. With this interesting twist the appellant the tribe was free to petition the court of appeal to reinstate the appeal within 90 days, if it showed proof of compliance with the lower court's orders. I've made and oppose these motions based on this entitlement. I've never seen a sort of dismissal like this before. And it seems to me in opposing these types of motions would be seem to be a very good strategy to ask in the alternative to denial, the motion, that the ability to seek reinstatement. And if you're making the motion to dismiss based on this doctrine, to explain the moving papers, why allowing reinstatement or dismissing without prejudice would be itself prejudicial. But you pulled some other issues out of the case? What did you see?

Tim Kowal: 32:41

Well, I did see that issue that you had the you just covered, Jeff and I saw some other issues. It might be a little esoteric, to to ask even of our appellate podcast listeners, I put it in a write up for those who want to try to absorb it in writing, but it had to do with the collateral order doctrine. Well, yeah, I agree with you that the disentanglement doctrine is a powerful remedy. But I just thought that the Court of Appeal here took a lot of the zip out of it by by granting that motion to dismiss the appeal without prejudice and giving the in this wasn't a close call in terms of the dis entitlement doctrine. That was the other thing that caught my eye is that there was just a laundry list. There's at least half a dozen violations that I saw that any one of which would have been sufficient to grant a motion on the dis entitlement doctrine. And the court didn't seem to find it a close call and yet granted the motion with without prejudice.

Jeff Lewis: 33:30

Yeah, really surprising result there. A second thing that interests me about this decision is the commentary about the need for civility, you know, I'm always bringing to this show cases discussing civility. And this tribe was already in violation of several court orders and is facing dismissal under this entitlement doctrine. And the tribes lawyers made some personal attacks in the papers against the contractors lawyers, opposing the motion to dismiss in response to these personal attacks, the court said, We remind Council and the parties that zealous advocacy does not equate with attack dog or scorched earth. Nor does it mean lack of civility, zeal and vigor in the representation of clients are commendable, but so are civility, courtesy and cooperation, and they are not mutually exclusive.

Tim Kowal: 34:20

Yeah, yeah, I wonder if the appellate lawyers on this case were the same lawyers who handle the matter at the trial level, because sometimes Trial Lawyers bring to an appeal of personal history and emotional investment in the case of a fresh set of eyes and a cooler head from an appellate lawyer could be of benefit. When I thought about that,

Lee Goldberg: 34:38

I got it. I'd love to add on that. I will tell you that right now. I will never have my trial lawyers handle my appeals ever, ever. As a matter of fact, after seeing all your podcasts and Tim, frankly, reading all the complexities of your posts, I would absolutely if I have to go to trial. I am telling you and appellate lawyers sitting at that trial table throughout the entire trial. It you can't do it any other way. Not responsibly.

Tim Kowal: 35:11

Jeff, make sure Lee's check clears.

Jeff Lewis: 35:13

Yeah. music to my ears, you know, and look, sometimes Trial Lawyers bring to an appeal this this history is personal animistic animosity, you know, no trial lawyer I think intentionally makes personal attacks on opposing counsel when they're making these statements in a brief they think it's relevant and an outside appellate attorney can bring some fresh eyes and perhaps a cooler head and help that trial lawyer not step in it. So yeah, it's it is it is interesting

Tim Kowal: 35:40

back in Episode Three, we discussed some appellate strategies on summary judgment motions. And I think back then I had suggested the tip that when opposing a summary judgment motion, you should always consider raising the issue that there was more discovery that you need in order to oppose that summary judgment motion, because if the court denies you that relief, that could give you an additional additional ground to challenge a summary judgment on appeal, should you lose the motion? And I have I have to amend that advice. Now after reading the case, Begley versus Delta Dental of California, the plaintiff there had asked for more discovery, but did not use the magic words by identifying that particular particular essential facts may exist. The plaintiff didn't include those words in her affidavit. So discovery was denied. Some summary judgment was granted and the summary judgment was affirmed on appeal. I have a critical comment about the Begley case. And that is that is not the requirement that the opposing party has to identify particular facts that may exist, it's not in the statute, it's not in 437 c subdivision page, which authorizes the opposing party to seek more times more time to conduct discovery in order to oppose the motion. And I thought that imposing this non statutory requirement on the opposing party means that in the event, the moving party moves early for a summary judgment, before the opposing party has had time to conduct complete discovery. For their case, in their defense, the opposing party's right to discovery, now can be subject essentially to what amounts to a good a good cause requirement. Basically, to get the discovery extension provided under 437 c sub H, you have to already know what you're going to find. So I thought, how does this square with California is otherwise a liberal right to discovery?

Jeff Lewis: 37:21

It doesn't, it doesn't square with it, you know, the statute uses the mandatory word shall in terms of a continuance and Begley seems to infuse the trial court with quite a bit of discretion in terms of finding good cause. The mandatory portion of the statute, the statutory right to continuance is only as strong as the judges willingness, willingness to allow for discovery and allow for delay of the motion. It's I'm glad this case is not published.

Tim Kowal: 37:48

I am too although it cites its published authority on it. So this is this is the law in California, I think the upshot is that do not delay in conducting your discovery as soon as you can start conducting discovery on your defenses and claims and the case. do so. And then if if you haven't finished by the time the other party files a summary judgment motion, finish your discovery, get it on and because you're not going to be able to get that discovery continuance, you know, you don't necessarily have a right to it even though the statute says you do. Unless you essentially know the facts that are out there in discovery that's still yet on done.

Jeff Lewis: 38:22

And be sure to use the magic words in your request for continuance. All right, well,

Tim Kowal: 38:28

you got it. You got the last word.

Jeff Lewis: 38:30

Almost. That wraps up this episode.

Tim Kowal: 38:33

If you have suggestions for future episodes, please email us at cow That's ca l And our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis: 38:48

See you next time.

Lee Goldberg: 38:49

Thanks for having me, guys.

Jeff Lewis: 38:51

Thanks, Lee. I love getting the last word and thanks, Tim.

Announcer: 38:54

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 L. podcast calm. That's ca l Thanks to Jonathan Caro for Intro music. Thank you for listening and please join us again

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.Cases and other resources mentioned in this episode:Begley v. Delta Dental of Cal. (D1d3 Aug. 31, 2021) 2021 WL 3878844 no. A159983 (nonpub. opn.).Findleton v. Coyote Valley Band of Pomo Indians, (Sep. 29, 2021, A158172) and Tim's write up of Findleton.

Press release for LA Superior Court re Dress Code

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

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