How to Mediate and Settle Your Appeal, with John Derrick (Cal.App.Law Podcast ep. 32)

Timothy Kowal, Esq.
May 10, 2022

Certified appellate specialist and mediator John Derrick talks to Jeff and Tim about mediating cases on appeal. John explains that some appellate courts have mediation programs because of a mission to promote settlement. But the courts’ job is to decide cases. John discusses the conflict between these two roles, including a story about an appellate justice who regretted volunteering he wished the case would settle, but then unsubmitting the case for a post-oral-argument mediation. (This case still didn’t settle.)

Some other items discussed:

  • There are no mandatory settlement conferences on appeal: should there be? (No.)
  • Why parties don’t want to settle on appeal, and what counsel can do about it.
  • The importance of stays and posttrial motions.
  • Should judges be in the business of mediating?
  • When to notify the court about a possible settlement.
  • The pros and cons of Zoom mediations.
  • As a former publisher, John urges attorneys to use decimal-outline format for headings, i.e., 1., 1.1., 1.2., 2., etc.

John Derrick’s biography.

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

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

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Other items discussed in the episode:

Dan Lawton, “A Lion in Winter: Senior Circuit Judge J. Clifford Wallace at 92” (Cal. Litig. 2021, Volume 34, Number 3).


John Derrick  0:03
Contrast and appellate courts job is to weave the tapestry of the common law.

Announcer  0:09 
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 Cole and Jeff Lewis.

Jeff Lewis  0:23
So welcome, everyone. I am Jeff

Tim Kowal  0:24
Lewis. And I'm Tim Koh, all California Department of podcasting license flagged for review. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both Jeff and I are appellate specialists, but we split our practices pretty evenly between trial courts and appellate courts. And on this podcast, we try to offer some nitty gritty perspective on preparing your case for appeal,

Jeff Lewis  0:49
and welcome to episode 32 of the podcast. In this

Tim Kowal  0:53
episode, we're gonna take a look at mediation and settlement during an appeal. And I don't know about you, Jeff, but it to me, it seems like appeal should be an ideal time to bring up settlement because you brought in an appellate specialist and they tend to be objective and the whole process tends to slow things down. It seems like a great time to talk about settlement. But just in my experience, you know, parties tend to get their positions kind of entrenched, and it hasn't been as accessible as maybe I otherwise would have thought it would be but maybe that's just my experience. So for more expert look at the process of mediating and settling on appeal, we turn to the expert John Derrick John's a certified appellate specialist who has litigated about 175 appeals and writs including about 25 that have resulted in published decisions. John primarily represents private individuals and privately owned businesses. John received his law degree from the University of California at Berkeley, and he received his undergraduate degree from Oxford graduating with first class honors, John was the 2014 and 2015, Chair of the California State bar's Standing Committee on appellate court, and from 2011 to 2013. He served as editor in chief of California litigation, the Journal of the litigation section of the State Bar. In addition, John is an appointed Member of the Second District Court of Appeals mediation panel, and he serves as a settlement master for the Santa Barbara Superior Court. John is also a frequent lecturer on appellate topics. And just a bit of interesting trivia about John's background before he entered the law, John founded, operated and sold two specialized information publishing businesses in the US and the UK, one of which was acquired by one of the world's largest publishers, John has also served as a special adviser to the energy secretary in the UK cabinet. So we are honored to have you with us today. John, thanks for being here. Well, thank you for having me. So now that I've covered all of the real braggy stuff, but you're too modest to say yourself, so tell us a little something more about what the actual John Derrick is and and what your practice is like?

John Derrick  2:54
Well, I'm like many appellate specialists, I'm a solo practitioner, it's just a way of life that I that I enjoy the I like, I like the flexibility that it gives me both in terms of where I do the work, what work I choose to do, and so forth. I do mainly civil cases, but about a third of my workflow in a typical year is criminal, although probably less than a third of my income, because criminal work is always terribly well paid, because the criminal cases I do are appointed on on the on the cap panel in the second district and the Adi won in the fourth district.

Tim Kowal  3:30
And why do you do that? If it's if it's not paid? Well, do you do it? Because you enjoy it? You do it because it's a public service, little of both public

John Derrick  3:37
service makes it probably sound a little too saintly, I do enjoy the cases. I think, on the whole my criminal clients, sometimes some of the easiest to deal with, actually, a lot of them had to have mental health issues. Because sadly, you know, that's just the way of the world I mean, a lot of the cases are, you know, people do kind of things which are just no sane person would do, but where they can easy to deal with. It's that they have fairly realistic expectations, often and also very appreciative of one services. Whereas sometimes, you know, you're over inflated ego who's running some LLC or whatever, might kind of think that they can buy outcomes, which obviously, you and I know litigants can't do so so I enjoy that I enjoy the criminal cases. You know, the intellectually quite challenging sometimes. I mean, sentencing is kind of like dealing with the with the tax code. It's arcane.

Jeff Lewis  4:35
Yeah, John, I don't think Tim has ever gotten a handwritten note from jail. I did a lot of CAP appointed work from the beginning of my appellate career. And yeah, representing fortune 200 clients, you save $10 million. You might get a thank you email. But when you get a handwritten note from jail, saying, God bless you, Mr. Lewis, and you're doing the Lord's work. It's gratifying.

John Derrick  4:55
It is it is. And they're always handwritten, and they're usually written in pencil, and because they I think they actually charge prisoners by the sheet of paper there, they reprogram the pencil writing onto every square millimeter of the page on both sides. But as Jeff says that those notes are good and even better are the ones which aren't all that common, but in the nature of the work, but you know, after you get them out of jail, if you do get them out or out of prison, those ones are especially heartening. I remember one client too, she shouldn't have been, I can't remember what it was. It's just some big mistake. And early in December one year, I actually got on the phone with the AGs office down in San Diego, and said, We've got to fix this. And amazingly, because they don't normally do this sort of thing. They agreed to a stipulated reversal. And we actually got her out just in time to be at home with her kids for Christmas. So I mean, you know, where do you get that sort of feeling? Civil Practice?

Tim Kowal  5:59
Yeah, well, what judging by your accent and by some of the points on your on your resume, you're not originally from around these parts? What, what brought you to the US originally? And what brought you to the law? And and then what brought you around to appeals and then mediating appeals? And then get Okay, the back of the dust jacket version of it, if

John Derrick  6:17
you will? Yeah. What brought me to the US originally was my former work. As you mentioned earlier, I had a little niche publishing business. And we set up an offshoot of that out on in the US out in Westchester County near New York, I started started spending time there. And then when we sold that business, boring with all the detail, I ended up taking back that little American bits of it, and running that into slightly changing, whatever. So it's a business is what started me here. And then I guess marriage is what kept me here, after I sold the American business when I was, I guess, in my late 30s, or run about 40, or whatever. I found myself without a day job. And so I decided to do what I actually always intended to do in England, but never did do, which was to become a lawyer. So you're

Tim Kowal  7:12
pushing 40 at the time you?

John Derrick  7:14
Yeah, I mean, I have been practicing law for 20 years now. So yeah, at the time I took the bar exam, I was kind of I don't know. I mean, I'm 65. Now, so you can do the math. And why did I do that? Well, in some ways, if you compare what I do now, with what I used to do in the past, there are some similar kind of intellectual Gears of work in as much as previously my job used to be to take very arcane into not intrinsically fascinating information, and to present it in a manner which made it very digestible, a compelling read, generally interesting and timesaving. And although my role in those days was more analytical rather than persuasive, although I did do some persuasive writing as well, particularly in my year year working in politics, but but but in some ways, it's actually a lot of those things I used to do translate well into appellate law, because here we take a, a open mountain of information in a record, some of which isn't all that interesting, you know, at face value, and we try and condense it down into a brief which is efficient, reader friendly, a compelling read and with, you know, as an advocate, but also persuasive. So in some ways, there's a third bit in common with what I used to do and what I spend my days doing now, as for the mediation there, I've always, I suppose, in my life been a bit of a bit of a mediator in the sense of it's in my nature to mediation in a way in all sorts of contexts. I mean, not just professionally and from your,

Tim Kowal  8:54
from your experience in publishing, you got to learn that your readers time is precious. Yeah, definitely. We definitely try to remember as attorneys, and sometimes we feel entitled to our judges time, but they may have to read it, but they don't have to like it.

John Derrick  9:07
Yes, absolutely. Totally.

Tim Kowal  9:10
Well, tell us about just another one last question, by way of background, tell us about one case that you had that should have settled but didn't

John Derrick  9:19
Gosh, one case that I had as a mediator or as a lawyer, or either either.


there's one that comes to mind, which I was going to actually talk about possibly later, if we get on to the topic of whether courts should be in the business of encouraging mediation, appellate court setters that will look back around to but to give you a heads up as to what that case is, it was one about 12 years ago, it was an employment case, a very charged one where an African American principal sued an Islamic school that had hired her for wrongful termination and various other forms of Employment wrong. And it was it was a case. I think that should have settled. But we can talk more about what the court thought of it a bit later if we get to that topic. All right,

Tim Kowal  10:09
yeah, I think we will get to that topic. So let's, let's get right into talking about mediating and settling cases during an appeal. So our attorney listeners know how to settle a case and the importance of trying to settle cases. And but what's the big thing that attorneys ought to know about settling cases on appeal that is maybe a little bit different from settling them at the trial level?

John Derrick  10:30
Well, one of the thing is that mediations on appeal are much less common. I would say that most cases in the trial courts go through either a mediation or that were the minimum of a settlement conference in some portion while they're being litigated. Whereas I would say that a relatively small number of appeals are mediated. And what's more, there is no such thing as a mandatory settlement conference in any of the Courts of Appeal. So if you want to do it, you have to take the initiative yourself. So that's one difference. Another difference is,

Tim Kowal  11:04
do you think sorry to interject there, but I wanted to ask you about mandatory settlement conference, do you think there ought to be mandatory settlement during appeal?

John Derrick  11:12
No, I don't really think so. Because I think it would be not a good use of people's time, because some cases are simply not capable of being settled at that point. I mean, the options are to binary and there's no meaningful middle, of course,

Tim Kowal  11:29
the courts were pushing harder at the appellate level, you still think that settlements at the appellate level are going to be less common than at the trial level?

John Derrick  11:37 
Yes, I think they probably are. And it because because this goes into the second difference, which is that there's a fundamental power shift, for obvious reasons. Most cases that go on appeal, the case is over in the trial courts. Now I know, there are exceptions to that with certain types of interlocutory appeal. But for the most part, you know, snap appeals being a good example. But for the most part, you've got somebody who's got a judgment, and you've got somebody who, you know, has got a judgment against them. And that, and often the parties haven't always got realistic expectations. Sometimes the party that lost in the trial court doesn't quite realize how big a mountain they have to climb and maybe impossible a mountain, they would have to climb. Likewise, sometimes the successful party in the trial court doesn't realize that some trial court outcomes, especially though, where the case was struck down in its infancy, as with a dimmer, that you can actually have fairly fragile victories. So you've got expectations that on both sides of the case, which don't always lend themselves to settlement, and that can make it a challenge to settle them. And, you know, it takes for example, quite a bit of sort of imagine you're, I don't know, an insurance defense lawyer, and you've just sort of seen off some plaintiff who wanted a, you know, a million dollars in damages, or whatever, and the plaintiff has got absolutely nothing. You know, a lot of defense lawyers are going to be wary about going to the to their carrier or their client and say, Look, we just won this case, would you mind kind of writing out a check for 100,000? I mean, you know, people often say, why would I want to do that?

Tim Kowal  13:14
Right, right. And to your point about the power shift that happens, usually right at the time, right? Before an appeal starts, ie the judgment, you say, you know, one side sometimes feels invincible, and the other, the other side might feel completely demoralized. But for that reason, how important do you think it is? If you're, if you're representing the appellant, let's say the losing defendant on appeal, how important is it to get a stay of enforcement of judgment, maybe even before initiating any kind of settlement dialogue?

John Derrick  13:44
Well, I mean, people might want stays for all sorts of reasons. I'm not aware of a case that I can recall where people kind of specifically sought out a stay because they wanted to kind of keep the status quo kind of in place because they wanted to mediate, but I mean, often though, you know, there are very good reasons why, why often you want to stay some stays are fairly easy to obtain a few are automatic, some require putting up a lot of money, but it depends on the type of judgment, and also depends on the timing of the appellate mediation, and most are by no means all appellate mediations, in my experience, take place relatively early on in the process when the judgment is still fairly fresh. And when and before briefing has taken it has taken place. And there are pros and cons of the timing, but uh, but certainly, I would say that it can make things easier to settle a case if kind of there aren't kind of while you're trying to mediate the case, kind of I don't know, bailiffs, you know, actively removing furniture from somebody's house to anyone just collection of judgment,

Tim Kowal  14:50
right or just sweeping bank accounts. You might feel that you have no if you're the if you're the prevailing plaintiff with the money judgment, you might feel that you have no incentive to settle I can just start wiping bank accounts and get some easy cash that way?

John Derrick  15:02
Well, that's That's right. I personally was an appellate lawyer when I'm representing a respondents I frankly love it when if the if the appellant bonds and appeal because it means I mean if one wins collection is easy and you don't have to go through the kind of nasty stuff about collecting

Tim Kowal  15:21
and you guys love wondering about insurance you're gonna collect

John Derrick  15:23
so so bonded appeals I mean far from being annoying to me, I regard as the best you've ever

Tim Kowal  15:30
seen a personal surety bond, you know, one of those creatures where the defendant appellant just finds a couple of people who will vouch for him and say, Yeah, I'm good for him.

John Derrick  15:40
Yeah, I have to say, I wonder who actually signs those? And also, I wouldn't be I've never actually have you. Have you ever come across a case where that's actually happened? Because I haven't. Yep. Okay. I haven't heard. But how good how good is the surety because even if somebody is good for the money, unless they actually putting up the money, you still then have to go after them and collect.

Jeff Lewis  16:04
Right. Essentially, they become code judgment. Debtors. Yeah, exactly. It's like the worst of both worlds. It gives the benefit of a bond to the appellant but doesn't give the surety of collection to the respondents.

John Derrick  16:20
Worlds. Yeah, yeah, exactly. I didn't get too involved hands on and arranging bones, I normally try and have, you know, the trial lawyer do that. I try not have anything to do whatsoever with the collection and enforcement of judgments.

Tim Kowal  16:35
Yeah, yeah, that that can be a taxing part of the work. If you start started getting involved in judgment collection and defense, one of the other John, I wanted to ask you about one of the practices that I employ, when I am looking to when I'm representing appellant defendant who has let's say, a defendant who has a money judgment against against it, I want to try to start rebuilding some leverage. So that's why I asked you about trying to get a stay of enforcement, because then that kind of takes a little bit of a wind out of the sails of the the prevailing plaintiff that they're not going to see any money for a couple of years while the appeal shakes out. Another thing I like to do is, is maybe file a new trial motion or, or a motion for J annovi. Even if I don't need to, to in order to preserve issues, I sometimes like to file them just to give the respondent a preview of some of the holes, they have some of the vulnerabilities in their judgment to let them know a you're not going to see any money for a couple of years because we've stayed the enforcement of judgment. And B, you got to worry about some real problems on appeal, you might come out without the judgment that you think you have. Now, what do you think about that strategy?

John Derrick  17:40
Well, I also like post trial motions. And when I'm representing appellants, I think you make an interesting point there about the show of force, of course, it can go two ways. If you're if it turns out that your post trial motion isn't all that strong, it can actually be could be you can send a signal that actually your appeal won't be that strong. But one of the reasons the two, the two main reasons why I always kind of liked it, if there are post trial motions, and when I'm a lawyer, at least other than the points you've just made, are that it fleshes out responses from the other side. So when you're working on an appellants opening brief, you might have some indication of what some of the responses might be that you can try and preempt. And also, if you'd like a post trial motion is like a potting, you know, memorandum from the trial lawyer to the appellate lawyer about, you know, this is my take on the case. And obviously coming in, you're going to apply your own judgment as to what the issues are and how they should be argued. But I find it's quite useful really to have the the the the Trial Lawyer Go through the exercise of preparing such motion, and it can also be an opportunity to flesh out the record a

Tim Kowal  18:51
bit. I agree, I love I love the post trial motions for that reason written by the trial attorney, let me offer this though, if if, as the appellate attorney, I'm coming in, and I might want to take the arguments a little bit a different way on appeal, I might want to have some input in those post trial motions so that we kind of start the pivot, because I don't want the last shot in the trial court to be, you know, telling the story of the case a completely different way than I than I intend to tell it on appeal.

John Derrick  19:17
Yeah, I agree. I agree with that. I mean, I don't tend to get very hands on with post trial motions in the sense of drafting anything for a whole bunch of reasons. But But But But I agree that it can be useful to discuss the issues if you're really involved in the case of that stage.

Tim Kowal  19:33
Now, a few moments ago, you mentioned that appellate courts have their own mediation programs. I wondered in your in your experience dealing with those mediation programs, what's your what's your take on them? How successful are they can they be improved? Should they be expanded? Because only a couple of courts have them? Do you think more ought to have them?

John Derrick  19:51
Yes, they started up in the first district and it was a little over 20 years ago. And I remember actually because it was actually one I was at Berkeley, and I actually did did some coursework about mediation and actually remember writing a paper about appellate mediation back then talking about this new program. The first district has more recently that they subsequently dropped their program. And I'm not sure why they did so but I think it may be for budgetary reasons. So it's probably as long ago as maybe 10 years ago, the, as far as I'm aware, the will the second district certainly has a program because on its panel, I believe the fifth district has a program. I'm not aware of the fourth district one, there are some pools which kind of have programs like for example, you might know more about this than me. But if you go to four, two in Riverside, I'm not sure that they've got a program, which is kind of like the one in the second district where they send out notices saying, Do you want to be part of our mediation program, but they they will make themselves available? I've had a couple of mediations there as a lawyer, you had to seek it out by the by the with the Presiding Justice Justice Ramirez actually conducting the mediation himself, Orange County,

Tim Kowal  21:11
but what do you what do you think about that? I was gonna get to that later. But you mentioned that just having one of the justices, I would assume that Justice Ramirez would not sit on the panel at that point.

John Derrick  21:21 
Indeed, he wouldn't. I mean, you know, some people prefer having judges or justices as their mediators. And they can, of course, be very effective mediators. It depends in part on the type of mediation that is called for whether you want a kind of very directive mediation, where somebody is going to kind of tell you, you're going to lose this appeal, or we're going to win this appeal or whatever, whether you want a more kind of diplomatic one where, you know, maybe in that case, a presiding justice is used to calling the shots, you know, may not be the the best person. So I don't think there's necessarily a one size fits all, you know, what is the best way to do it. But But, but I can certainly imagine in some cases, the parties might be on their best behavior, if there was an appellate justice conducting the mediation, and maybe that could be conducive to bringing about settlement. Who knows?

Tim Kowal  22:16
Maybe the justice could leave it leave it ambiguous whether he or she intends to be on the panel? Well, indeed,

John Derrick  22:21
no, I'm not aware of any litigants, which whatever have have somebody mediating and then being on the panel. I mean, it'd be an interesting idea, but I just don't think it happens.

Tim Kowal  22:33
I wouldn't imagine it would happen. Why do you think some courts implement the programs? And others don't? Well,

John Derrick  22:39
an interesting question, because there are some courts when they, when they talk about it, make it out. But it's kind of it's an efficiency, that taking cases off the calendar is a good thing, because, you know, that way they can get to the remaining cases more quickly, and, you know, just get through their workload. So it's a workload saving mechanism to some other courts might kind of see it as their mission to promote Settlement Trust, like trial court see it as part of their mission to promote settlement.

Tim Kowal  23:14
That's interesting. I wasn't aware of that they saw it as a mission. Is that a mission that is set forth legislatively somewhere? Or is that though? No, it isn't.

John Derrick  23:22
And it's a controversial one, to the extent that there is such a mission, because there is a school of thought that says that appellate courts should not be in the settlement promoting business since their job, unlike the job of trial, the job of a trial court is to resolve a dispute. That's why they're there. And if you can do so, with with settlement, you know, all the better why drag What Why drag people through trial, if you can get it done in an afternoon in a suite of conference syrup, but by contrast, at appellate courts job is to weave the tapestry of the common law. And there is a school of thought that if appellate courts are in the business of actively promoting settlement, they are not only acting outside of their core mission, but they're actually doing something to undermine that mission. For example, if you could, it would seem ridiculous to imagine that the California Supreme Court would have a mediation program. And why would it do that? Because you grant review, because this is an important and unsettled issue of law. But then you say, Oh, by the way, would you try to settle your case? And that way, we don't have to decide this important and unsettled issue of law. I mean, it sounds ridiculous, even more ridiculous at the US Supreme Court. But you could argue and I'm not saying I'm necessarily arguing this, but you know, playing at least some part devil's advocate. You could argue that it is also slightly ridiculous for an Intermediate Court of Appeal to do that, because, you know, there are cases which you know, ought to be ought to be He decided and Courts of Appeal aren't in the resolution business per se. They're in the lawmaking business

Tim Kowal  25:07
right now. It's, it's interesting, because it got me thinking that, you know, we have our political branches that are in the business of making compromises and all of all of economic life is about making compromises. The courts are the one place we can go to get a definitive ruling, is it black? Or is it white? Is it up? Or is it down? And if the courts are now saying, Well, we're don't really like having to make those calls are hard? Can we just compromise like every other aspect of our life? Seems like we're being robbed of the one place, we're supposed to get certainty out of our transactions.

John Derrick  25:40
And just to give you one kind of vignette, to a wall story, it's actually that case, I mentioned earlier that employment case, we went to an oral argument on that case, and I think it was still when this was in Orange County for three and I think it was still in that old building, or maybe they just moved, I can't remember. But this was kind of 10 or so years ago, maybe longer actually, and and then about, you know, the court, no doubt had got its draft opinion, as it always does kind of, you know, in front of it. But it obviously didn't like having to decide the case. And about halfway through oral argument, the acting Presiding Justice who's no longer on the court, but was, you know, one of the finest so got to know him quite well, by serving on a board with him over a few years. He said, You know, there's some way in which you guys can just settle this case. And then he immediately sort of corrected themselves saying, you know, maybe I shouldn't have said that, but he sort of came back to it a bit more. And they then did something which I've never actually come across before. They said, Okay, we'll have a Court of Appeal mediation laid on for you. And they either then didn't submit the case at the end of oral argument, or they unsubmitted it, but they arranged this post oral argument mediation at the court of appeal. And the mediator, there was one of their senior research attorneys who, as I recall, you know, and hadn't worked on that particular case, but was not briefed on it by it by colleagues, I would imagine. And, you know, he did his best to to settle the case, but it did not. It did not settle. And then this was this was this brings into a related issue. But the people who the people who don't like appellate mediations, because interferes with the core mission, sometimes also don't like the concept of unpublished opinion, because, right? Well, you're not. And there was actually there used to be a professor of Berkeley whose name I think I'm forgetting, but who was very keen on both of those issues. And he was dead against appellate mediation when it was starting up in the first district. And he and he had this thing about, about unpublished opinions, and also about de publication of opinions as well, he, he had a number of issues. But in this particular case, as well as trying to settle the case, through mediation, the Court of Appeal in in, in Orange County, they then put what really should have been a published decision, because it you know, it needed to be a public decision, because if they were going to take a particular view, you know, it ought to be a published decision, but they did it unpublished because they didn't like the case. And they didn't really want to decide the case. It had to do the whole issue had to do with the use of certain testimony, expert testimony, but the trial court had allowed it and that really, essentially went into kind of stereotyping certain cultural groups. And I was arguing that it should not have been allowed in the trial court let it in and the Court of Appeal figured out a way of affirming but not liking it,

Tim Kowal  28:46
since you since you stepped on the landmine of unpublished decisions. We'll take a brief diversion here and I'll ask you your opinion on an unpublished decisions. Is that Is that Is that a reasonable policy? Or is it just mischief making as I might have there?

John Derrick  28:59
Well, I think unpublished opinions for the court aren't necessary because it'll be too much work to make every case a published opinion. I mean, that's that I think is the  The General the general view that I mean, you know, the Ninth Circuit have figured out a way of dealing with this where they put out their cut, what are they call them memorandum dispositions, which can don't even really try to be like opinions. They're more like minute orders. And maybe the California Court of Appeals should do the same, which is, look, if you're going to do a proper opinion, why not have it published? Or if you think it's too boring a case to make it worth doing an opinion put up, you know, the appellate equivalent of a minute order,

Tim Kowal  29:31
right? They're out there. So don't pretend that they're not out there. Yeah. But if you have to court hypothetically, were to decide, you know, the judicial business is too hard. Let's just get into the the mediation and settlement business, they got the they got the tool to do it. They can just get us mediate cases and just publish them as unpublished decisions. And no one would be the wiser. Indeed, that's the same thing occurs to me with with de publication, you know, what is someone to draw from that other than the Supreme Court said, Well, this is not a good a good rule, but we're just gonna let the we're gonna still let the parties deal with the consequences of this bad rule. We just don't want anyone, anyone else to exactly. Well, let me ask you about this scenario that that probably every attorney has heard about, at some time or another, there's a few of these kinds of instances where the parties settle their case during an appeal, which is great news for everybody. Unfortunately, the settlement only comes a very short time before oral argument. And by that time, maybe the panel is just raring to go wants to hear argument and render its opinion and tell us counsel when they learned of the settlement. Sorry, we want to decide this case now. So get on with your argument. We're not accepting the settlement. We're not going to be dismissing the case. Now, what is the courts practice of deciding cases that have already been settled? Tell us about how the courts really feel about settlement. They think it's really better for the litigants, or they just want to reduce their workloads.

John Derrick  30:49
Yeah, I personally have never been involved in a case, either as a mediator or as a lawyer, where the party said, Okay, we've settled it. Can we go now? And the court said, You're staying, we want to argue this. I mean, I imagine the courts could do so I did myself have a case only a few months ago, where in which I was a lawyer, and where we've been trying to settle the case for literally nine months, and it just couldn't happen. I mean, but then, about two weeks before oral argument, the discussion started up again. And I wanted immediately to send out a notice you sent to the Court of Appeals saying, Excuse me, we're talking about settlement. So you may want to not, you know, devote too much time to this case right now. But there was some discussion that we shouldn't send it immediately because it was unclear as to whether the case where the settlement discussions would gain traction. So I think we took just a few days before sending off the notice, although personally, I wanted to send it off earlier, I suspect by then the court had probably already worked up finished its work on the case. But anyway, we sent the notice off, and then I think it was literally a day or two days. But I think it actually does one day before oral argument that finally the case did settle. And I you know, sent a letter in to the court or made a call. And I was kind of a bit nervous thinking, you know, this was in Division seven of the second district. I was thinking, gosh, you know, that must be really annoying to them. And I wonder whether we're going to get some snarky reply, or whether they're going to tell us, you know, they want us to appear at oral argument anyway. But in fact, I just got a nice phone call back from the clerk saying that we were off calendar or whatever. But it must be incredibly annoying to a court to have that happen, that to some extent, it's in the nature of the business. What do you meant to tell people? Look, you can't settle a case? You kind of, you know, you're past the point of no return. I mean, that doesn't sound reasonable,

Tim Kowal  32:53
right would be what the court welcome notices from the parties that look where we're talking about settlement, maybe it'll happen 5050 chance.

John Derrick  33:01
I mean, generally speaking, I'm very pro sending notices if you've got a slight reason for doing so the problem is that sometimes the trial lawyers get all upset because they think that, you know, if you send out a notice you're going to send some signal to the other side that you're keen, and something like that. And so you can you can run into a bit of pushback. But I mean, I think as a as a basic courtesy to the court, you should tell them the the earliest sniff of serious settlement discussion. Well, can I took an add one thing to that in that particular case, I was on a personal level, kind of. I mean, I think it was right in the case settled, but on a purely personal selfish level. I felt like it was as though I was kind of reading a book and somebody had ripped out the last couple of pages and so I was deprived of the of the ending because I think this was a case in which there could well have been a reversal. It was an interesting case a clear wobbler In terms of possible outcomes, and so, you know, I was disappointed at the never getting to read the opinion.

Tim Kowal  34:07
Right. There was I wanted to read something to you I, I was reading this interview with a senior judge Clifford Wallace, and he had this comment about a mediation program that he installed in the Ninth Circuit years ago. And it made me think of you I want to ask you about it. So here's here's the quote judge, senior judge Clifford Wallace says, quote, we made a lot of changes. It has nothing to do with how I write my opinions, we are far more efficient than any other court of appeals, the Second Circuit has picked up on it now we developed case management and mediation in the appellate court. No one thought about settling the cases once there was a judgment, I hired a mediator, we started doing Win Win mediations, the idea was developed by Fisher and Ury. at the Harvard Business School, once we mediated 1400 cases in a year, we had a way to get people to talk. Our data shows that there's no distinction at all as to what types of cases settle it's the lawyers and the parties who are the key variables. We started the program about 15 years ago, it's been a great help. That where I made my voice kind of ominous is the quote, I want to ask you about V half ways to get you to talk. Well, yeah,

John Derrick  35:12
and the Ninth Circuit said, he doesn't have ways because you're pretty well told her that you need to go through a mediation screening, at least they do have an excellent program, unlike the system in the in the state appellate courts, the Ninth Circuit has got its in the house program, they have an approach or how many there are, but at least several, you know, maybe half a dozen, maybe even more full time staff mediators, I've found them very, very good. Actually, when I deal with them that there, I suppose, you know, earlier, we were talking about mandatory settlement conferences, and I said that we're none, I suppose in a way that is a bit of an exception, because you do have to show up on a conference call at the Ninth Circuit, as far as I can best remember that they kind of call it a screening. And so it wouldn't be like a full on half day session, it might just be like a 20 minute or 30 minute call. And if the parties are saying, You know what, we don't think this is going to go very far. You know, you're then free to go. But But But nonetheless, it does put you into a system where you're at least forced to start thinking about mediation. And maybe that wouldn't be a bad thing in the state courts as well, unless you take this view that they shouldn't be doing this for the reasons we were talking about earlier. And obviously the the senior judge, you quote there, he thought that settling cases was part of their mission, but others might think differently.

Tim Kowal  36:45
You know, I had this this story that I heard and I can't remember where I heard it. So I'm, I'm a little bit nervous to share it. I don't know if I'm violating podcast privilege here, but I'll go ahead and share it anyway, I heard a story from an attorney who was was mediating or involved in mediation of a case pending appeal. And there was a retired judge or justice who was doing the mediation and the the settlement discussions were stalemated. And the mediator came in and said, Well, you know, it just so happens that I talked to my good friend justice, so and so who happens to be on the panel with a draft opinion in your case. Now, of course, I can't show it to you. But oh, oh, excuse me one moment. I have I have a phone call. I'll I'll take this outside and leaves the leaves the printout on the table there. The the attorney and the client look at each other. Should we shouldn't we? Of course we should they take a peek. They see the writing on the wall. Lo and behold, that afternoon the case settle. Now is that go back to judge Wallace's V half ways to get people to talk.

John Derrick  37:46
Well, I'm not sure whether judge Wallace called him back particularly. It might indeed be a fairly effective one. But I think that might be a somewhat unique, unique occurrence. Of course, when the Ninth Circuit's started their program that was back in the days when the average time from the filing of the notice of appeal to the decision coming out was going to well over two years. They were terribly terribly backlogged at one point. And so I think one of the reasons why they were so proactive in developing their program was that they felt they just needed to do something about this case backlog these days. And this is my work is in state court, but the last time was in the Ninth Circuit not too long ago, it seemed to go fairly quickly the whole thing but But nonetheless, they still they still have their program.

Tim Kowal  38:39
Alright, well let's do you have any other we talked about some practical tips for our listeners here about managing expectations we talked about you know, when you when you're on appeal, there's gonna be one party who's flying high and one who's in the doldrums and there's kind of a respective Council need to get both of them to come to the middle a little bit. So there's a managing expectations imperative, but At the beginning, I suggested maybe consider getting a stay of enforcement of the judgment just to kind of bring things to a halt might also help in the in the task of managing expectations. We talked about looking into court provided mediation programs. And and you you talked about how important it is to notify the court progress in settlement discussions, because if you get too close to the oral argument date, a settlement might not get you anywhere because the case mine might still be decided if the panel's fixin to do that. Any other nuts and bolts tips that listeners should be aware of and in best practices to get a case settled or get it into mediation pending appeal?

John Derrick  39:38
Well, there is one view that although joint sessions in mediations are increasingly uncommon, in trial court mediations, there is a view that you should have a different sort of approach in an appellate mediation, because with most appellate mediations, the case isn't an end and the trial court. And so you're not going to be you know, conducting discovery the week after the mediation or something like that you're in a whole different era. And so that there's an argument that basically, the party should just have more kind of transactional business like up approach by all sitting around a table, figuring out a sensible way forward, which is better for both sides then litigating the matter in the Court of Appeal for the next year. I can see the value of that. But I personally find when I conduct appellate mediations, that there is a great reluctance on the part of the parties, the lawyers as well as the as their clients to actually have that sort of different mediation. And so sometimes I think that one's missing a trick if one conducts an appellate mediation, just like a regular mediation, but sometimes that is what occurs because you just cannot get people to to do differently. But I think thinking a little outside the normal mediation box is, you know, does make sense. The other suggestion that I would have to people is that whether you go to eat well is that you use as your mediator, as someone who understands the pellet law, appellate mediation is to specialize in Nisha thing for there to be full time appellate mediators, and I'm not aware of any but you can have, you know, an appellate justice, or you can have, you know, an appellate lawyer like myself, who also does mediations that you would have somebody who gets it, because they're more likely to be focused in on things like the standard of review, they're more likely to be focused on the kind of interests the whole, you know, the likely way in which an appeal is is going to be played out. So just going to a regular mediator, and asking him or her to do an appellate mediation might not be the best idea. I mean, obviously, I've got a vested interest in saying that since I do appellate mediations, but I think but I think it actually doesn't make sense

Tim Kowal  42:08
when you've got a business background to some of the best mediators or those who have a business background and can kind of see beyond beyond just the the legal issues and defining practical solutions that you otherwise might not be able to get in a judgment. And to your point, having a mediator who also understands the nuances of appellate procedure and standards of review, and the rest, yeah, I'll happy to give you a commercial for for appellate mediation services is having appellate specialty and in a business background.

John Derrick  42:36
But often the oddly though, sometimes when I've gone to the, you know, I'm on the second district panel. But when I've gone to that court, as a lawyer wanting taking part in the mediation, some of the people on their panel in the past, at least, I'm not sure what that's still the case now have not only not been appellate lawyers, they haven't even been lawyers, they're just kind of mediation is kind of in the abstract. And you know, that, you know, maybe maybe they can do an effective job. But I kind of think that that, you know, isn't ideal, and that's one of the drawbacks of going to a call a call to arrange mediation. I mean, the benefit of doing that is it, you know, somebody else is setting it up for you, and you get x number of free hours. The drawback though, is you don't get to pick your mediator. And, you know, just like, I mean, half the dentists in this country are by definition below average and their skills. So half the mediators are below average in their skills. I mean, that's just a numerical necessity. Whereas if you pick your own mediator, and you get to choose and I think some of the some of the kind of big mediation programs like jams and whatever, they kind of go through their website, they kind of you know, have people who are assigned to appellate mediation as a skill set, typically they'd be retired justices.

Tim Kowal  44:04
Alright, so we covered the nuts and bolts of appellate mediation, we covered some real high level stuff theory about appellate mediation. I got my dig in against unpublished decisions and the no citation rule. So Jeff, what's left to make this a complete outing? Oh, I

Jeff Lewis  44:20
don't know about I complete it. But I did have a question for you, John. During COVID, you were doing mediations via zoom with the end of COVID Insight, hopefully, do you anticipate continuing doing mediations by zoom? Are you gonna try to do them in person? Again,

John Derrick  44:32
I think it'd be a mixture of the two. But I'm actually a bit of a fan of zoom mediations, I think I was gonna say very little as loss. But I'm going to correct myself. And I'm going to say, I personally think that nothing is lost. And something can be gained, what can be gained is the fact that it's sometimes easier to keep keep people in the in the proverbial room, if it is a virtual room than it is to keep people sort of cooped up. Once the mediation, which begins in the morning continues into the afternoon, in a suite of conference rooms, people are more likely to mediate, they don't have to travel a great distance sometimes. And that can help. I think the whole system of virtual breakout rooms is just very, very efficient, people are sometimes more relaxed, because while the mediator is in one is in the other side's breakout room, kind of the lawyer can be kind of doing useful stuff, rather than just kind of, you know, waiting

Tim Kowal  45:34 
doesn't have to be so expensive for the client. It doesn't have to be so expensive for the client necessarily. Other thing?

John Derrick  45:42
Exactly. So, you know, on a personal level, you know, I quite like doing mediations that the Court of Appeal in Los Angeles, they if you if you have a court mediation there they they lay on this quite nice suite of conference rooms, and the mediator gets to park in the in the judges carpark and things like that. So I quite enjoy actually going to the Court of Appeal to do mediations, and I'm looking forward to going back there. They haven't yet to reopen that suite of conference rooms. But at the same time, I think zoom, I think is here to stay, at least in part what what do you think?

Jeff Lewis  46:18
Well, I'm a little bit torn. I love zoom appearances. I think there's a real access to justice issue in terms of costs and expenses. Not all my clients are fortune 200 companies. So in affords greater options. On the other hand, I can think of a few cases one in particular, where a mediator, Jeff could shave and locked me and my parties in a building to like midnight downtown LA and got to settle a case, which I think it would have been a lot easier to switch off at zoom at nine o'clock at night. So I'm torn.

John Derrick  46:42
Yeah, and I can remember a case like that as well, which it began off in the Court of Appeal conference rooms. And then I think they eventually booted us out there at five, five o'clock in the afternoon or something. And then we went to one of the lawyer's offices to downtown and, and we were there till 11 o'clock at night. So so so yes, I mean, I'm also a bit torn. So I think I think the way forward is to have both in some cases will be better off with Zoom, some might be better off in person I did one a couple of weeks ago, where which did settle in and you know, one party was in New York, the other was in California. I'm not even sure they would have had a mediation in the

Jeff Lewis  47:26
days. Yeah, yeah. And, you know, on a similar vein, in terms of oral argument, I sure hope the second district keeps a video argument option open in terms of the access to justice issue, I think there's some parties who just can't afford or won't pay or won't choose to have argument if they're going to do it in person.

John Derrick  47:41
I agree. The my concern, though, is that some courts, which could have been particularly like video appearances, you know, you might, you might have some one party turning up in person, and then the other party on kind of on a screen and it's a bit uneven, especially if the partner who the person who's doing it by zoom and can't kind of read the body language and people on the bench or something like that. So I think I think if you're going to have I think you should either have both sides doing it by zoom or neither side doing it by Zune. I certainly as a lawyer wouldn't feel comfortable doing it by zoom if the other party if my if my opponent was in court, and that's one reason why I never do telephone arguments where even when they were allowed,

Jeff Lewis  48:25 
right, right, yeah, you pick up a lot of the video. Interesting. Okay, well, look, you survived the hardest part of our interview. Now we're going to do the easy part. You're going to participate if you don't mind in our patented copyrighted lightning round, which is a series of short questions that are the most vexing important questions that concern appellate nerds around the world. Give us a short one word, one sentence, answer if you can. And here we go. For your briefs that you prepare your one man office, font preference century school book Garamond or something else, Georgia,

John Derrick  48:59
Georgia. It's the most cross platform fonts there is. I find it highly readable and you know, century school book, you know, if you spent all day long reading century school book documents, Would you like something that looks a bit different, but which isn't Times New Roman?

Jeff Lewis  49:15
Interesting. We've had 32 episodes here. We've never had anybody say Georgia, I don't think interesting, including our Georgia appellate attorney that showed up here. Even our command almost important as important of a question after a period two spaces or one

John Derrick  49:28
one, that's to be written into law, it should

Jeff Lewis  49:31
be pled p LED, or pleaded PL E. A D. D

John Derrick  49:35
pled I think I didn't feel so strongly on that one. But I think pled

Tim Kowal  49:40
Yeah, you're right there. And then you've got to ask our Oxford alum about the comma. Yeah, it's

Jeff Lewis  49:46
not. I guess I will ask them. Do you believe in the Oxford comma?

John Derrick  49:49
Well, I'll tell you this as somebody who spent three years of my life in Oxford, and I've never heard the phrase the Oxford comma until I came to the United States. It's a bit it's a bit like when Americans talk about English muffins, they refer to a good which has got no equivalent in England, that having been said, I didn't use to use what you call the Oxford comma. But as with certain aspects of my life in the United States, I've now gone native and started to use the so called Oxford comma.

Tim Kowal  50:21
Are you telling us the Oxford comma is an American innovation?

John Derrick  50:24
It is it is, I believe, certainly isn't the norm in England, and it certainly wouldn't be called the Oxford comma.

Tim Kowal  50:30
Well, that is a great instance of cross pollinate pollination between our two peoples. What do they what do they call it?

Jeff Lewis  50:36
They call the colonies comma, what do they call it? Over there? What are your answers to I'm lazy, I tend not to use them mostly as an oversight. And Tim is decidedly pro

Tim Kowal  50:46
oxen, what do you charge them by the comma? Pry the Oxford comma from my cold dead fingers?

Jeff Lewis  50:51
All right. And final question, you know, for major argument headings in your brief, do you go full caps all capital letters? Or do you do initial caps or just sentence cap? What do you do with your big headings and arguments?

John Derrick  51:03
Okay, so the only things I do for full caps will be the top level heading, you know, introduction, procedural history, statement of facts, arguments. So in conclusion, so they get all caps, everything else. And I've slightly changed my system, only in the past month, because it's a constant process of refinement in the way I work. After many years of having two levels of heading where you'd have a higher level heading being upper and lower, I've now gone to all lower because I just never manage to work out a good consistent protocol for what's up, and what's lower. And then I just thought, you know, dammit, I'm gonna stop stressing about this and make everything upper and lower, but slightly expanding on your question, Mike, the layout of my briefs is different from a number of people's for example, I sent her certain types of headings, top level headings and our argument. But the main the main point, the main difference for me from most others is I do this stuff of having, you know, Roman numerals and kind of letters and complicated things. Because if I'm on page 15, of a brief, and I see a section, which has a kind of a V, like a Roman five, I mean, what does that tell me? Okay, it's five of something. But it's five of what is the first issue, the second issue, whatever. So I use a system where, let's imagine it's for the argument is divided into four kind of main issues or sections of section one, section two, section three, section four, then for each subheading, it's 1.1 1.2 1.3. And then it's 2.1 2.2 2.3. Because that way, when you look at a section heading, you know exactly what it is. This is the third section of the second argument.

Tim Kowal  52:56
I thought, just that thing for the exact same reason. Yeah,

John Derrick  52:59
yeah, it's a puzzle to me as to why people have this kind of weird sexual system. I mean, it says something the way they were

Jeff Lewis  53:09
taught to do it

Tim Kowal  53:11
and the way in which they use the decimal system, you just use just use Arabic numerals. Yeah, I

John Derrick  53:16
just use Yeah, exactly. Just don't use Roman numerals at all. Yeah. And I also dislike this this business of having levels of the argument becoming where the headings are increasingly indented over to the right it just looks weird. Maybe this is the form of publisher in me is that I want documents to look nice and to and I think a lot of a lot a lot of lawyers just give too little appearance to the to too little attached too little importance, I should say to the appearance of documents, and you should have on your show maybe we've already thought that that guy who wrote that book typography for lawyers Matthew butter, because he is locked. I don't agree with all that Because of his his approaches, but the point is, he doesn't expect you to agree with all of his points. What he encouraged these to do is to think about them. So you make kind of reasoned decisions, rather than just adopting something, because that's what you were told to do. 30 years

Tim Kowal  54:15
ago. Yeah, well, I'm to your point about using sentence case for your headings rather than trying to try to capitalize some but not all, some people capitalize every word. Some people only capitalize selective, and everyone has a different rule about it. So it's going to look weird to somebody, if you use some variation, some form of a capitalized case. So I agree with you. It's better just to use sentence case, because everyone understands what a sentence case is. Yeah,

John Derrick  54:39
one of the worst is when people capitalize names in a brief, and I never understand why people do that. Yeah. Yeah.

Jeff Lewis  54:46
Maybe all caps in the name? Yeah. Every time

John Derrick  54:49
they refer to John Smith, or whatever, it's in capital letters. Yeah. That's like shouting Smith. Yeah.

Jeff Lewis  54:54
Okay. Well, so John, listen, you know that numbering the way you number arguments, and you don't have them indented, and you do the point two and point three, I'm super interested in that. And maybe we'll adopt that in my firm, and you can have control, you can decide right here. And now. Are we going to call that the Oxford way of numbering or the derrick way of numbering?

John Derrick  55:11
I'm not sure that I think it should be either, because I actually got the idea. There was some district court judge who wrote an article in the Daily Journal about, I don't know, 10 years ago, saying this is ridiculous the way in which people are numbering their arguments. Why don't you do it this way? The idea of that person, and I think I might even have his hospital soon should be named after him. I've tried to pick it up for you.

Jeff Lewis  55:33
If you could send us a link. We'll put a link in the show notes about that. I'll see if I can. Okay.

Tim Kowal  55:39
All right. Andrew Guilford Yeah. Might have been might have been I want to say it was him. All right. Well, you

Jeff Lewis  55:44
survived the dreaded lightning round. gratulations. I think that's, that's all we have for today. Okay, well, it's been a pleasure. Thank you for having me. Yeah. It was wonderful to get to know more about you and what you do. And I guess let me just say for audience if you have suggestions for future episodes, please email us at info at Cal And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  56:07
Thanks. See you next time.

Announcer  56:08
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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, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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