In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its entirety, the plaintiff appealed. (The record did not reflect the trial court’s reasoning for the denial.)
But in its Appellant's Opening Brief, the plaintiff failed to address all of the arguments in opposition to the fee motion—including that the award was for misrepresentation claims and not breach of contract, that the plaintiff failed on most of its claims, and that the awards against the various defendants could have been recovered in limited civil actions.
Instead, the plaintiff-appellant addressed only one of the defendants’ arguments in its Appellant's Opening Brief, and then addressed others in its Appellant's Reply Brief. This was, the Court of Appeal held, “a day late and a dollar short.”
Here is the authority to bookmark for the next time your opponent raises an argument for the first time in an Appellant's Reply Brief:
"'An appellant . . . forfeits an issue by failing to raise it in his or her opening brief.' [Citation.]" (Dameron Hospital Assn. v. AAA Northern California, Nevada &Utah Ins. Exchange (2022) 77 Cal.App.5th 971, 982.) "We generally do not consider arguments raised for the first time in a reply brief. [Citation.]" (Raceway Ford Cases (2016) 2 Cal.5th 161, 178.) '"'"Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission."'"' [Citation.]" (Donorovich-Odonnell v. Harris (2015) 241 Cal.App.4th 1118, 1141.)
The plaintiff did try valiantly to save its appeal. The plaintiff argued that the argument it did timely address in its Appellant's Opening Brief—that the fact that some of its recovery was within the limited-civil court’s jurisdiction did not bar recovery under Code of Civil Procedure section 1033(a)—was the only one that could have supported denial of all its requested fees. But the Court of Appeal reasoned that the defendants’ other arguments based on apportionment—and that the plaintiff failed to carry its burden which fees were recoverable—was not a frivolous basis for denying the fee motion.
Before the hearing where it denied the fee motion, the trial court issued a tentative ruling giving its reasoning. And the trial court ultimately adopted its tentative. But the trial court did not memorialize the reasoning in the tentative in any order of the court. And the plaintiff-appellant did not make a record of the tentative—such as by filing a notice of ruling or notice of entry.
Had the plaintiff made the tentative part of the record, the plaintiff’s decision to be selective in its appellate arguments might not have been fatal. But ordinarily, a ruling will be upheld on any available basis. Here is the authority to bookmark on that point:
"'A judgment or order of the lower court is presumed correct .... [E]rror must be affirmatively shown.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) Subject to exceptions not applicable here, "an appealed judgment or order correct on any theory will be affirmed, even though the trial court's reasoning may have been erroneous; i.e., appellate courts will not review the reasons for the trial court's decision. [Citations.]" (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2021) ¶ 8:214, p. 8-166.)
H/T Marc Alexander at the California Attorney’s Fees blog.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss:
Kyle Schneberg’s biography, LinkedIn profile, and Instagram feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
Kyle Schneberg 0:03
Not being authentic. It's really a betrayal of people's expectations.
Announcer 0:07
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 0:21
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:23
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists but we're uncertified podcast hosts. In this podcast we bring our audience of trial and appellate attorneys some news and perspective they can use in their practice.
Jeff Lewis 0:35
And a quick thank you to our sponsor. A podcast is sponsored by casetext. caseTexas, a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a keys tech subscriber since 2019. And I highly endorse their service listen to the podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's Casetext.com/CALP.
Tim Kowal 1:02
All right, Jeff. And today, as you know, we are pleased to welcome Kyle Schneeberg to the show joining us in our live studio, which is strange because we don't have a studio. It's actually just sitting in Jeff's lap. Now, Kyle is a founding partner of bedsore law, a national law firm fighting for new nursing home justice. Prior to his current position, Kyle spent 16 years as a trial attorney representing injured plaintiffs. He is an alumnus of the Jerry Spence Trial Lawyers college, and he has spoken on expert panels about skilled nursing facility liability to the USC Leonard Davis School of Gerontology the California Advocates for Nursing Home Reform and the Consumer Attorneys Association of Los Angeles. Throughout his career, Kyle has tried numerous cases to jury verdict and help injured victims recover over $100 million. Kyle, welcome to the podcast. Thanks for being here.
Kyle Schneberg 1:51
Thank you, Tim. It's a pleasure to be here with both of you. Well, and
Tim Kowal 1:54
Kyle, was there any important details that I left out of those introductory remarks?
Kyle Schneberg 2:00
I think you've covered it. You know, one thing I mentioned sometimes is that I started out with a defense background and I've been from solo practitioner firms to large firms, midsize firms. I've got a wide range of experience seeing this industry from all kinds of different angles.
Tim Kowal 2:15
Yeah, I was curious to know a little bit more about the Jerry's bench trial lawyers College. I've always heard about that and thought that was completely memorable and game changing experience. Can you share a little bit about
Kyle Schneberg 2:25
it? I'd love to. It was I'm fortunate to have gone and 2018 It changed a bit after 2020. It's now called the Spence trial method. And it's a bit different, a lot of the same people but different. That was an experience like no other. They took about 50 attorneys twice a year, hundreds of applications. So it was somewhat exclusive. And we went out to an old cattle ranch that Jerry Spence owned about two hours outside of Jackson, Wyoming, we had virtually no cell phone coverage, no Internet, and we went out there for about three weeks. And we worked on legal theory for about 12 hours a day, about seven days a week, it was very intense,
Tim Kowal 3:06
they put you out in the middle of nowhere. So you don't have any distractions, right, by design. So what was that total immersive experience that changed the experience? Do you think,
Kyle Schneberg 3:15
Oh 100%. And not just professionally but as a person, we went very deep. Jerry Spence designed this to sort of impart how he approached cases and tried cases. And he was a very big believer in something that sounds a little crazy called psychodrama. Even the psychodramatists admit it's like the worst name you could give, you know, any practice, but what it refers to is essentially psychology, dramatization of people's traumas. And in order to learn how to do this, we did it on ourselves. And as you can imagine, it was very intense.
Tim Kowal 3:51
Yeah, so it was a more psychology and persuasion driven the nuts and bolts trial practice, you know how to get documented under the business records exception, say I take it that way, not the focus of the expense method
Kyle Schneberg 4:01
fair. And it was taught by volunteer trial attorneys from all over the country who had been involved with the program for a long time. But what we really studied were two things empathy, because it's very hard to represent somebody who has had a serious injury, if we can't empathize with what they've gone through what they're going through, but also storytelling. In other words, how do we communicate that experience to a judge or defense counsel or a jury?
Tim Kowal 4:27
Yeah, well, sorry to get waylaid on that I just so interested in hearing about the Spence trial College. Kyle, tell us a little bit more about your trial career. And I'm particularly interested in how you've counted up to $100 million. That's an amazing spreadsheet on that.
Kyle Schneberg 4:40
Yeah. Let's take a while to recreate you know, as I mentioned, I've worked for many offices. In my almost 20 year career, I've had the good fortune to work with some of the greatest trial attorneys in the nation and been part of trial teams where we've gotten eight and nine figure verdicts, huge settlements. In fact, one of the greatest attorneys in LA Rex Paris, who's an old Trial Lawyers college guy, I think put it best to get a gigantic settlement or verdict, you've got to turn down a big settlement or verdict to get those, you typically need a very serious legitimate case.
Tim Kowal 5:13
Yeah, yeah. Well, Jeff, I don't know if you know, I've known Kyle for a year or two. And then recently, we were on opposite sides in a case. And so at first, I liked Kyle, and then I hated Kyle. But now that case is done. So I like Kyle, again.
Kyle Schneberg 5:26
I appreciate the zealous advocacy there, Tim? Yeah.
Tim Kowal 5:29
Well, as long as I didn't want my case to make, you know, make a Richter scale, you know, event on your $100 million recovery. I don't think it's going to add up too much in there. I don't think you're gonna have to update that number Kyle after our case, but it was nice to work with a good attorney who was also ethical, it's someone that you don't have to you don't exchange fire breathing comments with.
Kyle Schneberg 5:47
I feel the same way.
Jeff Lewis 5:48
All right. So Kyle, before we talk about bedsore law, your current practice, let's talk a little broader about the state of personal injury law in California. Do we have too many personal injury lawsuits in California?
Kyle Schneberg 6:01
So you know, it's good that you asked this question because this comes up in every trial. And if we're not plaintiffs attorneys are not raising this invite, dear probably come up organically. I bring it up. Because we want to find out how people are going to react to our cases. The reality is, this is how we settle disputes in in our modern society. And it's really the most just way to do it. You know, the alternatives are what fistfights or you know, the Hatfields and McCoys. So we definitely don't want to I think it's just a part of human nature. We have these disputes that we got to resolve one way or another.
Jeff Lewis 6:36
Well, let me say this, though, I'm a business owner, I'm an employer, aren't personal injury lawsuits, bad for business?
Kyle Schneberg 6:42
You know, I'm a business owner to personal injury laws don't discriminate against business, what we have is a negligence system that's based in common law. It's been around for hundreds of years. And if anything, the only laws we have relative to personal injury laws are laws that actually minimize that common law tradition. The reality is, this is how we get justice. And I think in any society, you know, justice is a good thing, the more injustice we have, the worse it's going to be for everybody, including businesses and their owners.
Tim Kowal 7:11
How much does the increase the prevalence of insurance play into the number of personal injury cases and the size of the settlements, the nature of the negotiations, I imagine a lot of personal injury plaintiffs, you know, maybe, let's say 100 years ago, they may have gotten hurt, but figured, well, you know, it's not that big a deal, this person doesn't have the money. But now everyone thinks, Well, you know, so and so's insured. So they're not gonna care, they'll just let the insurance company pay for it. I wonder if that change the dynamics of a personal injury litigation
Kyle Schneberg 7:37
insurance company is very relevant to the whole system, you know, every now and then I come across these old case opinions from the 30s and 40s. And 50s. It's sometimes we seem even in the 1880s. And insurance has been around for a long time. I would say in my experience 99%, these recoveries, verdicts settlements are against the insurance company and the insurance companies responsible for those. So the personal exposure or the actual exposure to a business, it's pretty rare. In my experience,
Tim Kowal 8:05
yeah, it's the insurance company becomes the defendant. They're the pocket that the plaintiffs trying to reach into where there's an important
Kyle Schneberg 8:11
distinction there because they don't become the defendant, which I think is somewhat disingenuous in our society. Because if they have a 90 year old lady who, you know, ran over three people, the insurance company gets to come in and say, well, Miss so and so you know, is 90 and doesn't have any money and this and that, but meanwhile, there may be a $2 million insurance policy behind the curtain that we can't tell the jury about.
Tim Kowal 8:34
Right. Well, and does California impose any limits on recovery for non economic injuries in California
Kyle Schneberg 8:42
adu there are several laws that govern the recovery of damages, etc, that but the main one that comes up in my practice is, of course micro, the medical Injury Compensation Reform Act from 1975 that kept non economic damages at $250,000.
Tim Kowal 8:58
What are your opinions about the micro law? And I know there's a lot of pros and cons about, you know, have that really limits legitimate plaintiffs recovery, because litigation is expensive. And when you go into these cases, you need to find an attorney who will represent often you're looking for a contingency attorney. And if the damages are kept to such an extent that contingency doesn't make sense, then kind of pricing a lot of plaintiffs out of the market aren't. So what are the kind of give us a city Buster on the pros and cons of the micro law?
Kyle Schneberg 9:25
Right? It's one of the worst, most unjust laws for consumers in history. I mean, it absolutely has blown out responsibility for many kinds of injuries. It micro did not cap economic damages. So you know, the example I've always gone to is if a doctor did surgery on Jeff here, and you know, injured him negligently so that he lost his right arm and now his livelihood is affected, his life is affected. There's a certain amount of economic damage that can be attributed to that. case is probably viable if he had just severely wounded Jeff. And he's able to still do his job, but he has excruciating pain in his arm for the rest of his life. That's a 250 case. And the risk of that case may not, you know, it may prevent Jeff from finding someone to represent him.
Tim Kowal 10:17
Yeah, okay. Well, most of your practice has been in is a medical injury, nursing home injury, that's what you're doing now. But where did where did you cut your teeth? What kinds of injury cases?
Kyle Schneberg 10:28
Well, I first cut my teeth on bad faith cases for farmers back almost 20 years ago. So I've been around the block in a lot of different areas. I've done most of my work in general injury, but I have a history since approximately 2010 of handling elder abuse cases. I'm not a medical negligence, med mal attorney, I largely don't handle those. We do have an overlap, though, in elder abuse and medical negligence because of the nature of the laws.
Tim Kowal 10:57
Yeah. Kyle, what are some lessons that you've learned about how to have a successful personal injury practice?
Kyle Schneberg 11:05
I've learned a lot of lessons in my career, for better and worse, you know, authenticity goes a long way in this industry, in my opinion, with ourselves with our clients. My goal has really been to figure out what Justice looks like for my clients. And I think, you know, humbly, I've been fairly successful doing that. I've had very few dissatisfied clients. I mean, there's some folks out there who I'm not sure if anyone can satisfy them. In fact, some of my best results have been for clients who were not happy with them, even though they were phenomenal results. But being authentic with ourselves and with our clients is something I learned is more important as I row.
Tim Kowal 11:45
Yeah, I'm reminded you told me once that just to kind of take a brief detour onto illegal marketing, you were telling me about how you were doing some marketing at one time on Instagram, I think or maybe me tic TOCs. The big thing now and people have been telling me the algorithms are on tick tock are driving the search results on Google and I should be on tick tock and I said I can't imagine what kind of appellate legal marketing I would do on tick tock but you know, the algorithms or the algorithms, do you have any comments on how to be authentic in your legal marketing and the social media age?
Kyle Schneberg 12:15
I do. You know, in this comes from my TLC training trailers, college, Jerry Spence is famous for saying he was there for one of the three weeks, he was about 90 at the time, he is famous for saying, anybody can beat me in the courtroom, if they can be more authentic than me. And authenticity is really where he comes from. I think this is how maybe people get into trouble on social media is not being authentic. It's really a betrayal of people's expectations. And right now, social media has caused everyone to get personally involved. I mean, people think they know the person on social media, right? So if that authenticity falls apart, these people who have bought into that feel terribly betrayed, you know, it becomes very emotional.
Tim Kowal 13:00
Yeah, I think that's very interesting. What do you mean by that not being authentic is a betrayal of people's expectations? Are you talking about when a client hires you after they have gotten comfortable with you, and they get a sense about who you are. But then if you go into the courtroom, and you become a different person? Is that what you're talking about? It's a betrayal of the clients expectations.
Kyle Schneberg 13:20
Not so much that, you know, I have the experience of taking on cases from other law firms. One of the firms I worked for did a lot of work for attorneys who didn't litigate, and there was the case originated with other attorneys, and then they would send it to us if it needed to go toward trial in litigation. And what was very common is I would find out the clients did not have full information about a lot of their cases, the risks, the benefits, and as you can imagine, that was very troubling to them.
Tim Kowal 13:52
Yeah. I had one other question about your experience or your perspective on personal injury practice. Now, there are a lot of personal injury attorneys out there, as you know, and in fact, you can see a lot of them on your your way to and from work from the freeway on the billboards, do all personal injury attorneys practice basically the same way. What are the different schools of thought among personal injury attorneys?
Kyle Schneberg 14:14
No. And that's what makes this industry so unique. Every attorney, I believe in from my own experience approaches a case differently. There are attorneys who, again, are interested in the pre litigation process. They're not interested in the litigation process. And then there are attorneys large look like myself who have been involved mostly in the litigation process. We can even get into the nuances of the different areas of Injury Law. So every attorney I think, has a different model for how they try to win a case for their clients.
Tim Kowal 14:44
What are some of those different models? Some is just trying to get a settlement or go in for the big bucks by going to trial? What's the best approach? What's the Kyle Schneeberg approach?
Kyle Schneberg 14:54
You know, my approach is to find out what my clients want to do and I've worked really hard to Spend time with my clients to educate them. And it's been my experience that the more I educate them, the more time I spend with them with, you know, within reason, because our time is, of course limited, I get a more happy, satisfied client at the end of the process if they know what the risks and benefits are one of my major criticisms in the personal injury space, it has to do with the law changed back in 2012. That said, if an insurance company paid a certain amount for treatment, you can recover that amount for decades, it didn't matter what the paid amount was, what mattered for the purpose of economic damages was the billed amount. So what was the charge, and there is now a huge conflict of interest where if I have a client get a surgery on Medicare for $3,000, but a doctor may have done that on a lien for $40,000, it greatly affects the value of the case. On the other hand, I want my client to make that decision. I don't want to send them toward a doctor and steer them that way, because they're also going to be responsible for that cost. If the case doesn't work out the way we hope it does. Yeah, a lot of clients are not being told about this, though.
Unknown Speaker 16:07
Interesting.
Tim Kowal 16:09
So where's the line between where an attorney should delegate things to associate attorneys or paralegals? And what sorts of things should the attorney who has been retained by the client attorney the that the client has the personal relationship should do and should not delegate, you have a firmly drawn line in your mind on on that question of what to delegate and what to handle personally,
Kyle Schneberg 16:28
it's a really tricky issue, meaning, you know, it's tough, I believe anything substantive, substantive in the case, in terms of decisions being made or expectations, I think that should really go up to an attorney to at least be involved with, but there are a lot of sort of clerical tasks in a case, you know, getting medical records, updating the file regarding how a client's recovery is coming, if it's coming, even basic discovery responses, but yes, the attorney should be involved anytime there's going to be a decision that potentially affects the clients expectations of the outcome.
Tim Kowal 17:04
Well, at some point, obviously, you started to do more and more injury law in nursing homes. Tell us how you got into that. And obviously, that turned into bedsore loss, tell us about that transition into your work and do nursing home injuries. And finally, into bedsore law, which you're doing now is a national practice.
Kyle Schneberg 17:21
Thank you. Yeah, I'd love to talk about that. And back in in brown 2010, I was working firm to exclusively handled elder abuse and nursing home injuries, we were doing both defense and plaintiffs. And at the time, I went into probably 100 to 200 facilities across the nation. As a defense attorney. It was a very educational experience. For me, I learned a lot about that industry, my career then moved towards general injury and trial practice. But when I started my solo practice in 2018, I focused primarily on general injury for the primary reason that skilled nursing cases are very expensive to maintain. We have a lot of expert witness testimony, we have a tremendous amount of document collection, they're very long motion heavy. Now, I'm at a point where I have the ability to move back towards nursing home, which I actually prefer for a variety of reasons. And I think there's a real need in the current industry, legally and the nursing home industry for it or this service for people.
Tim Kowal 18:22
Was this an area of law that you sought out? Or did you suddenly just start getting calls about injuries occurring in nursing homes? And it was and then you realize that there was a need here for more attention?
Kyle Schneberg 18:32
No, I've kept a hand in it. Even since I left my initial nursing home injury firm about 10 years ago, I've litigated these cases all along. But with a focus in general injury, our pivot into this industry completely is a conscious choice to go and seek out more of these cases and help these folks,
Tim Kowal 18:51
is there just not enough attorneys working in this space?
Kyle Schneberg 18:54
That's an interesting question. I think there is a bit of an old guard that is coming toward the end of their career, you know, don't tell them I said that. But just age wise, they're getting older. I'm not sure what they're going to do with their practices. There are a lot of younger attorneys getting into the space is a very technical space, though it's very challenging, and the nursing home industry, due in part to their own poor decisions, as well as decisions outside of their control. It's getting much worse than it's been even in the last 10 to 20 years.
Tim Kowal 19:25
What are some of the common issues that come up again and again, in these nursing home injury cases?
Kyle Schneberg 19:30
Well, one of the problems we've seen by the way, there are several academics who study this industry in considerable detail. There's long been known to anybody in the industry that there is a correlation between nonprofit ownership and quality of care. So it's well known that nonprofits provide better care than the for profit companies. This is documented. Unfortunately, the industry has largely moved to for profit ownership. What we also see is a correlation between the amount of staffing being provided and the frequency of injuries and bad outcomes. And as you can imagine more staffing and better staffing leads to better outcomes, fewer injuries. But what we've seen over the last 10 years is a real crush down on the staffing. I think it actually improved about 15 years ago, but it's gotten increasingly poor over the last 10 years from what I'm seeing in my cases. But now with inflation, the competition for employees there really the nursing home industry is really struggling.
Jeff Lewis 20:31
You have been able to sneak into trial in front of the jury. Some of those stats about the difference between nonprofit and profits and staffing levels.
Kyle Schneberg 20:39
I unfortunately don't have to because we have expert witnesses that can do this for us. Yeah, and one of the most well known and regarded experts is out of University of San Francisco, Charlene Harrington, she's done a lot of work in this industry over the last 30 years.
Jeff Lewis 20:53
Interesting. Hey, one of the lawyers that I follow is a personal injury lawyer back east, his name is John Fisher. And he's written a couple books about law practice management, but he's also a PII lawyer, in addition to an author. And one of his philosophies is he does not agree to confidentiality agreements ever in his medical malpractice cases. I wonder if there are any core values or philosophies like that that are behind like does bedsore law have a broader mission other than just representing folks?
Kyle Schneberg 21:22
It's that's an interesting point, that I guess this is a little bit different. I think our broader mission is to become a force to be contended with in this industry. There are some incredibly large injury offices in Los Angeles that are very effective in compelling insurance companies to take their case, seriously, the insurance industry and I've heard, you know, various anecdotes about why insurance industry from what I understand over the last 20 to 30 years has become increasingly aggressive in its defense tactics. For example, a year ago, I had a liability denied on a rear end case where my client was like an 80 year old woman, she was adopted a red light. And the insurance company denied liability on that case, when they're insured and rear ended my client. So it is very aggressive out there. We are trying to build a firm with resources and a size that can compete in this field. And I don't believe anybody has done that yet, in the nursing home injury base,
Jeff Lewis 22:25
are you telling me that an insurance company will give different segment values to a case based on the identity and perceive aggressiveness of the law firm representing the plaintiff?
Kyle Schneberg 22:36
What we're told and I haven't been on the other side to see this is that they do track results of individual attorneys of law firms, meticulously analyzed the data of jury verdicts in a given jurisdiction. They're very savvy. And to be fair, it's not illegal, it's not unlawful. Some of my colleagues, I think, get very emotional about it. But unfortunately, this is business for the insurance industry. And you know, they're allowed to do this.
Tim Kowal 23:03
So what would happen if the insurance company saw that the plaintiff's attorney had retained a certified appellate specialist and they were ready to go the distance in this case, that means that they're going to take this case more seriously, and increase their offers?
Kyle Schneberg 23:16
You know, maybe one of you guys would like to jump in pro bono on some of my cases, and we can test that theory, the insurance industry, my experience that what they really are afraid of are economic damages. That's their main, so I'm not sure if the appellate angle is that make too many waves with them?
Tim Kowal 23:34
Yeah, they're looking at to see if they're gonna get big dollar verdicts awarded against him. Yes.
Jeff Lewis 23:39
Hey, I want to back up to earlier in our interview, we were talking about the cap on non economic injuries in California. Is there a movement to change that? Or is that going to change anytime soon? I think we talked before this interview about tying it to inflation or tell me about where the law is headed in terms of that cap.
Kyle Schneberg 23:58
Sure. So that's already happened. There was a very quick development earlier this year. And this is this. As you can imagine, this camp is something that has been fought since essentially, it was legislated in 1975. But earlier this year, through the work of some very fantastic attorneys and people on both sides of the table, they reached an agreement and the law is changing for the first time in almost 50 years. The cap will go up from $250,000 to $350,000. Next year, it will continue to increase for 10 years, and then there is an adjustment yearly for inflation.
Jeff Lewis 24:35
Oh, that's great. That's fantastic.
Tim Kowal 24:37
Oh, and your practice in against nursing homes is the micro law apply there as well.
Kyle Schneberg 24:42
It does in for a couple of reasons. One, the burden to prove Elder abuse is much more stringent than the burden to prove medical negligence. So we have some overlap. But what's really interesting to me at the moment and elder abuse is such an interesting field from I think an appellate standpoint in L or abuse, they for whatever reason, they tied a pre death pain and suffering cap to the micro cap, I think back in the 90s when elder abuse was legislated. And the reason they did this was to incentivize suits. But what's interesting is a year ago, they legislated a new pre death, pain, suffering law in general. And it took effect earlier this year, that now allows pre death, pain and suffering for the first time in the history of California to be recovered by anyone. And so what's interesting about the elder abuse is now what was an incentive has essentially become a penalty. And I'm not aware that anybody has, you know, amended that or fought to change that yet.
Tim Kowal 25:37
So playing that again, so there was a pre death, pain and suffering payment, there used to be a cap on it, right? So
Kyle Schneberg 25:42
until January 1 2022, nobody could recover pre death, pain and suffering damages, you could have a wrongful death lawsuit, but if somebody died before their recovery, so what it did died with the plaintiff, right? So what the legislator did a few decades ago, because as you can imagine, if somebody is abused at 85, they may not live to see justice in their lifetime, the legislators said, Okay, we'll allow up to $250,000 of pre death, pain and suffering
Tim Kowal 26:10
for the smokers. Okay, and that can be recovered by the estate, the representative,
Kyle Schneberg 26:13
which is often the successor in interest, but now generally, we treat elder abuse cases as uncapped. They're not subject to the microcap but because of this legend, the wording of this legislation, it's anybody's guess what a judge would do is read the notes on covers
Tim Kowal 26:31
now unclear with 1000s. Whether this pre death, pain and suffering, it may be limited by Micra or it may be unlimited under the elder abuse statutes. Well, I
Kyle Schneberg 26:40
think because of the shift to allow pre death, pain and suffering for everyone that the cap should be, you know, it's become moot through elder abuse, but it's still in the books, and presumably, the people involved with the micro change. Were aware of it. So I could see a judge saying, Well, you know, it could have changed that at the same time.
Tim Kowal 26:59
Yeah. So this isn't this is an open question that we need to watch fertile ground for some appellate
Jeff Lewis 27:05
lawyer to come in and exploit. Let me ask you, this made this a better question for Tim. But Kyle, what would you say your opponents would say is unique about you, or the way you handle your cases?
Kyle Schneberg 27:18
My opponents, I'm pretty transparent. If we could ask Tim by the way, who was recently my opponent, I try to be pretty transparent. I truly believe in civility. I like to work with the other side to reach a fair outcome, whatever, you know, whatever we decide that is, on the other hand, you know, if we go to war, we go to war, and it will be merciless, and we'll get what our clients deserve.
Tim Kowal 27:42
Yeah. Luckily, I didn't see the merciless side of Kyle. We were I came in late in the case and we were able to I was I was only able to see this side of Kyle, we were able to just get the thing resolved. So yeah, very transparent and civil. Usually our experience, Jeff is appellate attorneys we kind of swoop in and we have plausible deniability that hey, I don't know what happened before. Let's all be friends now.
Jeff Lewis 28:03
Yeah, I love practicing appellate law. That pillow bar is so much more polite. It's a great practice. Yeah.
Tim Kowal 28:08
But Kyle, speaking of merciless advocacy, do you have any good war stories you can share with our audience? War stories, you know, particularly where you've been merciless.
Kyle Schneberg 28:19
Maybe this will fall into that category. I tried a case a relatively small case. And you know, none of the damages are small for my clients. But this was valued as a smaller case, less than a month after I came back from the trial or his college. And it was in the Long Beach courthouse. It was a soft tissue, rear end crash, very minimal damage. These are very tough cases, because juries typically don't like them. And we got into a discussion during voir dear, where half the panel half the folks in the box brought up examples of plaintiffs lying about injuries. One woman mentioned a guy who walked with a cane during his trial while she was on a jury and then saw him at like a 711. Right after the day was over and you know, had no cane and was walking fine. Another woman said she handled workers comp cases for an employer and they had videos of people, you know, faking all their injuries. And as you can imagine, as a trial lawyer, I'm thinking, oh, boy, this is not going to go well. In fact, the foreman ended up being an executive assistant to the at the time, the city attorney belay, who said that all they dealt with all day long were unjust employment lawsuits in her office. So this case was a dispute over we had demand at $27,000 for a client who had several injections into his back in order to get better. He was a young guy taught for special ed, very nice guy. And the defense only Mercury Insurance only wanted to pay $12,000 on the case. And I think we were being pretty reasonable. So what happened is through reviewing the whole file and going through the cases, the case that took on from another firm, the defense had claimed that they were going you know X amount at the time of the crash I think 30 miles per hour and And in trial, the defendant testified he'd been going about 10 miles per hour to crash. And I had asked this jury and why dear, can you allow for the possibility that not only some people out in the world will lie to get money that there are people in the world who will lie to win the case as a defendant. And so when on the stand, this guy brought in, by the way, he you know, he owned a business downtown, he drove like a supercharged x five he had like a Rolex on and kind of this impatient old man, the old being in his 70s clearly didn't want to be there when he repeatedly said they couldn't have been going more than 10. And then we brought out his interrogatory responses saying he was going about 30. I think that was the end of the case. Yeah. And Mercury ended up paying about 75,000 on that case.
Tim Kowal 30:47
Yeah. I didn't ask you this before about when you mentioned about how insurance companies are very savvy, and so they will study the plaintiff's attorneys to see if they, you know, what's their exposure as against this particular attorney? What are their resources? Like? Do you think that they have research on this and is it discoverable? No, it's
Kyle Schneberg 31:05
definitely not going to be discoverable. I'm not sure if you've had any cases come up involving attorney work product. But a few years ago, it became much more I think, restrictive the law surrounding attorney work product. II know, I think there's a mythology on my side of the courtroom, where there are some conspiracy theories about the insurance companies and whatnot. But I have repeatedly heard that they do track this information, you know, is this data that's shared among insurance companies? Or is it just you know, each insurance company keeps track of its own? I have no idea.
Tim Kowal 31:36
Okay. Another question about the micro law and the fact that bedsore law is a national practice. And so you've got cases, not just in California, but in other states, how do you compare litigating these cases against nursing homes and other states as compared to California? Is it do California laws make it more difficult than practicing in other states? How do you rate it? It really depends.
Kyle Schneberg 31:56
Some states are more restrictive than California, others are less, there are states that have certain immunities that we don't, you know, I think it really comes down to the jurisdiction of the jurors, at the end of the day, unless you get hauled into arbitration, these cases are going to be decided by a jury. And so both sides are trying to figure out is that a jury that's going to be sympathetic to this argument in this injury, and if you know, if they're like, if you're stuck in Orange County, you're expecting a worse outcome than if you get into LA County, because the jury is down there are on the whole. And by the way, this is not a black and white rule, you can have a worse outcome in LA than Orange County. But on the whole the statistics are that Orange County is going to give you a lower results. So there are states that are the same way.
Tim Kowal 32:41
Yeah. How do you account for that? And I've heard the same thing from med mal attorneys that someone will just leave the practice entirely because it just makes him sick to get all the way up to trial prepare, put on a great trial for a worthy deserving plaintiff. And yet, you have jurors who just decide well, but this is a doctor, doctors can do no wrong. And how do you account for that bias? And and does it really vary so much by jurist from one jurisdiction to another?
Kyle Schneberg 33:06
It does? In my experience? It does. There are so many factors in these cases. I mean, listen, I've heard that there have been verdicts decided, because they didn't like the shoes, you know, that the female counsel was wearing or something like that jurors can be very, they're human beings, right? They can be very arbitrary and capricious at times, which is why authenticity is so important. In that process. When I had this case that I talked about in Long Beach with what I would characterize as relatively conservative jurors, I spent a lot of time talking to them, asking if they could be receptive to certain evidence. So what we look at when we're handling a case in a conservative jurisdiction, we look at who's involved. And to your point, you know, I would much rather have a nursing home defendant than a doctor defended a doctor defendant is almost always going to be liked by a jury. Yeah, nursing home is often not liked by a jury.
Tim Kowal 33:57
What are some questions you'd like to ask during volunteer to try to get the sense of the jury? And if they are a conservative jury who's going to put the thumb on the scale in favor of the doctor or a jury who is going to be a little bit more independent minded?
Kyle Schneberg 34:09
So based on my training, I try it, you know, and listen, I'm a human being I have my own prejudices that quite frankly, I wish I didn't have. And I think I'm not too much of a prejudiced person. But who knows? That's probably what prejudice people say. I try not to approach jurors with any preconceptions, because one, you know, the people who my most recent case a couple of years ago, trial for the pandemic blew everything up. The people who I thought were going to be with me weren't and somebody who I thought didn't like my case was the most favorable. So I really try to be authentic with them. And it's the hardest thing to do. And this is what we spend some of the most time on in the trailers College. We want to hear people out. We don't want to judge them. We don't want to argue as an attorney. You know, stereotypically, if somebody disagrees with us, we want to argue with them and win them over right? But that's the worst thing you can do. So what I do and what my colleagues do, we ask them tell me more. Why do you feel that there are too many lawsuits? Why do you feel that a million dollars for a serious injury is inappropriate? Let me hear that out. And you know, I'll probably agree with it. Even though even if I don't agree with the ultimate principle, I can agree. Yeah, I think there are too many lawsuits. I think it's terrible. But look, you know, this is how we solve problems. So can we at least agree that we want to do the right thing here? Yeah.
Jeff Lewis 35:28
Hey, you mentioned COVID-19, blowing up? How did COVID-19 impact you and your practice? And do you think you're back to normal now, in terms of the way we're litigating cases,
Kyle Schneberg 35:37
you know, I don't think anyone's back to normal. In short, I still vividly remember March and April 2020. It was terrible for me, you know, I have two small kids, my wife and my parents are elderly. I had just expanded my business, which was about two years old, you know, we moved into bigger office space, I hired people like in February of 2020. And we were very vulnerable as a business entity. So it was terrifying. Everything slowed down for us, you know, everything came off the rails for several months. So let me start with a good thing. Great thing is moving to remote. I can't tell you how many hearings I've had that ended up being a five minute hearing, I had a hearing two weeks ago, where the defense had two clients didn't pay first fees for one of them. So the judge continued out this hearing for 60 days, that would have been a four hour time commitment. Before the pandemic. Now, it was like a two minute you know, I'm working, they call it a matter and we do it so and the difference there is I'm not hourly. So I don't build for travel. I think a lot of defense attorneys who did Bill for travel, this is affected, I get to work more on my clients cases, rather than sitting on the four or five and traffic. But what I think is really been detrimental to the legal climate is the effect on the employment market. It is very expensive to find people and it's very hard, harder. It's always been hard to find people. But I think it's more expensive and harder than ever, which is a challenge because there's so many man hours that go into these cases. Yeah.
Tim Kowal 37:04
Interesting. All right. Jeff, do you want to talk about this? Some of our news and tidbits with Kyle?
Jeff Lewis 37:09
Sure. Yeah. We want to do a follow up on that Trujillo case.
Tim Kowal 37:14
Yeah. You know, Kyle, we thought that maybe you'd had some insights on this because it deals with a 998 offer, which I assume comes up quite frequently in your practice. We talked about this case, Trujillo versus City of Los Angeles, in Episode 58. It's a October 2022. case, it's a was a published decision out of the Second District Court of Appeal. So it was a case about accepting a Code of Civil Procedure section 998. For of compromise, the court in Trujillo held that the acceptance was not valid because even though it was within the statutory 30 days, and normally the 19 offer if it's accepted within 30 days, that's it judgment has to begin or on the settlement. But that didn't happen in Trujillo, because the acceptance had come after the trial court had already orally granted a summary judgment. So the 998 offer came some few days before the hearing on defendants summary judgment motion at the hearing the court orally granted the motion but before the Judgment actually came down, the plaintiff who had great presence of mind immediately sent over a signed accepted version of the 998 and then sent that up to the trial court to get that entered as a judgment. But the court of appeals said no dice. But so we talked about that, as I said, Jeff and I did but Trujillo that opinion has been bothering me ever since. And I wrote up a summary of the case and outlined all the things that seemed to me not right about the decision. And one of the things that bothered me is that the Court drew a bright line at Oral rulings on msgs reasoning that the bright line was necessary to prevent mischief because you can see why the outcome made some common sense that look, the writing was already on the wall. You that's not what the 988 procedure is for. So I did preventing mischief in that case. But on that score, what about tentative rulings? What if instead of showing up at the hearing and getting an oral ruling granting the summary judgment, there just been a tentative ruling the day before the hearing, Trujillo doesn't prevent the plaintiff from immediately sending back the signed accepted version of the 998 offer then, and I thought court could do what it does with dismissals. There are cases where after a judge has made unfavorable statements at an MSJ hearing, a plaintiff dismisses the case without prejudice in order to avoid award of attorneys fees under Civil Code 1717. The courts have consistently held that once the writing is on the wall, you cannot avoid a prevailing party determination that way and then someone on LinkedIn pointed out to me this is followed the podcast Igor Luca Shin pointed out under federal rule of civil procedure 68, which has the same basic structure is 998. As long as the offer is served 14 days before trial, the 14 day period under Rule 68 As long as it's served within the statutory period and accepted within that period, judgment must be entered on the settlement and there's no escape hatch for oral or tentative MSJ rulings. And there's a recent case on that Kubiak for versus county of Raleigh. So Ninth Circuit opinion back in May of this year 2022, or the defendant had made a rule 68 offer and a few days later the court granted summary judgment. But just as in Trujillo before the court got around to entering Judgment, the plaintiff rushed ahead accepted the offer submitted it to the clerk who, as part of the clerk's ministerial duties entered judgment on the rule 68 settlement and the Ninth Circuit held that's that's it, rule 68, quote, was designed to function in a mechanical manner. A rule 68 offer once made is non negotiable, it is either accepted in which case it's automatically entered by the court or rejected.
Jeff Lewis 40:37
Think about this, Tim, when you make a 998 offer, if you've already filed your MSJ 75 days, notice for an MSJ, a 998, offers held open by law for 30 days, if you're making that 998 offer the MSJ has already been filed, might have even already seen the opposition papers you're calculating and your 998 offer a chance you might win the MSJ you might not. And so yeah, this result really bothered me and also after MSJ, let's say you're thinking about hiring an appellate specialist to do an appeal, and you want to do a 998 offer in terms of hedging your bets in terms of whether the appeal would be successful or not. This case seems to foreclose post judgment by MSJ. Post judgment nine nine offers to hedge your bets on appeals.
Tim Kowal 41:18
Yeah, yeah, it does. And I tend to more formalist approach and so I just follow whatever the text of the statute says, and I know the court is trying to avoid and what seems to be an absurdity here, or at least some mischief, I get that. But I tend to agree with the Ninth Circuit's approach here that the rules just be mechanical. And if the legislature wants to provide for exceptions or discretionary in the trial court to avoid unseemly results, then it could do that. But it didn't do that in 998. And it didn't do it in rule 50 rule 68. And yet you have, you know, two jurisdictions, the California Court of Appeal, interpreting 998 in a very different way than the Ninth Circuit, and other circuits have interpreted FRCP 68. I agree. All right. The other
Jeff Lewis 42:01
tidbit, I want to just announce, we'll just have a link in our in our case notes to this. We talked in an earlier episode about a fantastic amicus brief that was filed by the Youngin. In a case seeking review in the United States Supreme Court about parody how much parody is protected or not. And recently, a Babylon B website, which is a fake news website, filed an amazing amicus brief, it's an interesting read, and we'll put a link to that in our show notes.
Tim Kowal 42:26
Yeah, you called the Babylon via fake news website.
Jeff Lewis 42:30
That's what I call it. How would you describe it?
Tim Kowal 42:32
It's a parody news website. The onion is onion, also a fake news website?
Jeff Lewis 42:36
Yes. It's fake news. It's not real.
Kyle Schneberg 42:39
It's scary that we're differentiating in our society between those terms.
Tim Kowal 42:45
Well, well, it is. Fake News has a definite negative connotation. You're up to no good.
Jeff Lewis 42:50
Okay. All right. It they are both parody websites.
Tim Kowal 42:54
Alright, I've come to the rescue of both the onion and the Babylon V.
Jeff Lewis 42:58
All right. Well, I think that wraps up this episode. Thanks so much, Kyle, for coming in and sharing your wisdom and defending the existence of personal injury lawyers in our society.
Tim Kowal 43:07
Yeah, and share it for us about bedsore law and national practice that defends inhabitants and their families in nursing homes against negligence and other predations and liability that occurs in nursing homes across the country. So I think you're filling a need there, Kyle. So I applaud that effort.
Kyle Schneberg 43:22
We love what we do. And I just want to thank you guys for having me on today.
Jeff Lewis 43:25
Yeah, of course, after you do it, we want to also thank casetext.com for sponsoring the podcast each week, we include links to the cases we discuss using casetext and listeners, the podcast can receive a 25% lifetime discount available if they sign up at casetext.com/CALP.
Tim Kowal 43:40
And if you have suggestions for future episodes, please email us at info at cow podcast.com. And in our upcoming episodes, look for more guests and perspectives on how to improve your practice. See you next time.
Announcer 43:53
You have just listen to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
CEB has published my article, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” originally published here.
The article may be cited as
Tim Kowal, “Settlement Offer Under Section 998 Automatically Expires If Judge Grants Summary Judgment,” CEB (Nov. 15, 2022), available at http://bit.ly/3ATYO9Q
A PDF of the article is here: Kowal_Section998.pdf
The article covers Trujillo v. City of Los Angeles (D2d1 Oct. 27, 2022 No. B314042) -- Cal.Rptr.3d -- (2022 WL 15119812), a case about accepting a Code of Civil Procedure section 998 offer of compromise. The court held the acceptance was not valid because, even though it was within the statutory 30 days, the acceptance came after the trial court had already granted summary judgment.
I note several odd things about the decision and the reasoning, including why the court drew the line at oral rulings on summary judgment, but would allow a plaintiff to accept a 998 offer after a tentative ruling.
And as covered on episode 61 of the California Appellate Law Podcast, cases interpreting FRCP 68, the federal analog to section 998, have come out the opposite way.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
There are some interesting new postjudgment opportunities suggested in the published case of WV 23 Jumpstart, LLC v. Mynarcik (D3 Nov. 21, 2022) No. C095046. The court holds that an out-of-state money judgment may be domesticated in California, even though California lacks personal jurisdiction over the defendant. And then the domesticated judgment may be re-domesticated back in the original forum. There are two reasons you should take strong notice of this case, particularly if other states follow this approach:
(1) Judgments accrue interest at different rates depending on state law, so consider domesticating all your judgments in a high-yield jurisdiction—the highest yields are in Massachusetts, Rhode Island, Vermont, and Washington, at 12%.
(2) Judgments lapse after a certain time depending on state law, so consider domesticating all your judgments in a “stay-fresh” jurisdiction—judgments in Delaware, for instance, never expire.
Here is what happened in Jumpstart:
In a Nevada lawsuit back in 2010, lenders won a $1.5 million deficiency judgment against loan guarantors. Lenders then got the judgment domesticated in California pursuant to Code of Civil Procedure section 1710.10 et seq.
Nevada judgments expire after six years. In 2016, the Nevada judgment expired, and the lenders did not seek renewal. But the California judgment remained.
In 2020, the lenders assigned their judgment to Jumpstart, who renewed the California judgment. By this time, the judgment amount was over $2.6 million, including postjudgment interest (interest presumably accrued under the California 10% rate).
But the Nevada-based defendant Mynarcik had no contacts in California. And no assets there, either. So Jumpstart wanted to enforce the judgment against Mynarcik in Nevada. But the Nevada judgment had been expired for several years already.
No problem: Although the Nevada judgment was expired, Jumpstart still had the domesticated judgment in California. So Jumpstart decided to take the domesticated California judgment and domesticate it right back to Nevada. A little like standing in a bucket and pulling yourself up by the handle, but worth a shot.
Mynarcik moved to quash and vacate the twice-domesticated judgment in Nevada. Mynarcik also raised a personal jurisdiction challenge to the California judgment. The Sacramento Superior Court agreed with Mynarcik that California lacked personal jurisdiction, and thus the domesticated judgment could not stand.
The Court of Appeal reversed, based on the Full Faith and Credit clause of the U.S. Constitution and California’s Sister State Money Judgments Act. (Code Civ. Proc., §§ 1710.10 et seq.) The court acknowledged that neither of these, however, answered the question of whether lack of personal jurisdiction was a viable defense to domesticating a sister-state judgment. But the court reasoned that the Act was intended to create a straightforward judgment-enforcement mechanism “without judicial intervention.” Allowing a defendant to argue that the court lacked personal jurisdiction, obviously, would require judicial intervention. So, the court reasoned, the Legislature must have meant to disallow jurisdiction challenges.
The court went on that, so long as the originating state had jurisdiction over the parties,” the defendant received due process. “Thus, so long as the originating state had jurisdiction over the parties, the judgment was authorized, and the litigants were afforded due process, there is no basis to read an additional jurisdictional requirement into the Act based upon the ministerial act of registration.”
The court concluded: “California's lack of personal jurisdiction over Mynarcik was not a viable defense to registering the Nevada judgment in California,” and so reversed the trial court’s order to the contrary.
There is a flaw here. The defendant’s challenge was not that the forum court lacked jurisdiction to issue the original judgment. The challenge was to California’s jurisdiction to enter a new judgment. The new judgment does more than reify the findings in the original judgment—which findings the defendant did not challenge. The new judgment in California carries a postjudgment interest rate greater than that of the original forum—and the greater rate was enacted by a forum lacking jurisdiction over the defendant. The new judgment in California also carries an expiration date a later than that of the original forum state—and that later expiration date was set by a forum that lacks jurisdiction over the defendant. And the new judgment in California comes armed with judgment-enforcement tools more expansive than that of the original forum (see here and here)—and those powerful tools were enacted by a forum, again, that lacks jurisdiction over the defendant.
So when the court says that the domesticated California judgment “does not alter the judgment; it merely enables a creditor to collect on a preexisting judgment,” this is not so. The California probably accrues greater interest than the Nevada judgment (California rate: 10%; Nevada rate: contract or prime rate plus 2%). Nevada law provides judgment debtors certain corporate asset-protection devices not available in California. (See here and here.)
Assuming the Jumpstart holding is correct and is followed by other jurisdictions, it suggests two concepts that judgment-creditors should consider employing as soon as they obtain a judgment:
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation.
M.C. sits down with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast to discuss some of the insights and recurring themes and advice she’s gleaned from having interviewed now over 100 of the most successful women in the legal profession today:
Then we turn the tables on M.C. and ask her the “lightning round” questions she asks of her Portia Project guests.
M.C. Sungaila’s biography and LinkedIn profile.
Listed to M.C.’s podcast, The Portia Project.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
TRANSCRIPT:
Tim Kowal 0:00
Are you the advocate or looking for an outcome while we are looking for an opinion?
Announcer 0:10
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:21
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:23
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and uncertified podcast hosts. In this podcast we bring our audience of trial and appellate attorneys some news and perspectives they can use in their practice.
Jeff Lewis 0:35
And a quick thank you to our sponsor casetext. Casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've had a case tech subscribers since 2019. I highly endorse their service listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up a casetext.com/calp. That's casetext.com/CALP
Tim Kowal 0:58
Jeff when we started this podcast back in the middle of 2020. And then for the first several months we we recorded episodes that I now refer to as the rudder guide in podcast form, and we got about as many listeners as that description might suggest, but then we brought on a very special guest to the podcast and that guest quadrupled the number of listeners that we got to the podcast. That brave first guest was MC Sun gala and we are delighted to welcome her back today. MC Sun gala is a distinguished attorney with three decades of appellate practice under her belt She leads the Buchalter law firms appellate practice out of Orange County in California MC is a member of the Board of Directors of the National Association of Women Lawyers. She is consistently ranked among the top appellate attorneys in the state patent She is a leader in the profession having served in leadership on Bar Association's and creating appellate clinics to improve the practice of appellate law in the state. Most recently, MC has launched the award winning podcast, the Porsche project, the Porsche project was recently recognized by the recorder and the American lawyer media international as a finalist in the 2022 California law awards for innovation and diversity, equity and inclusion. We're so pleased to have MC back on to talk more about the world of appellate law as it looks through the eyes of the Porsche project. Welcome to the podcast MC.
M.C. Sungaila 2:17
Thank you so much, both of you for having me back. I really appreciate it.
Tim Kowal 2:21
Well, we have to your podcast, the Porsche project has just been making ways we see it's been releasing so many episodes and gotten so many accolades. Well, we'll talk more about that in a minute. Tell us anything that I missed in the introduction that our listeners should remember about you and tell us a little bit about what you've been doing in your day to day practice.
M.C. Sungaila 2:37
Sure, well, I appreciate the introduction. That was very kind of you. And yes, I have been doing appellate practice for a long time, and I continue to enjoy it. I'll continue to do it. And so I wouldn't, one thing I really love about my practice is that it's really varied between the courts, I love to do an array of substantive areas. So that's what I love about appellate practice each time where the laws developing, you know, we're working in different cases in different areas. So I've had asylum cases in the ninth circuit through the Ninth Circuit clinic that I teach at at Loyola law school. I also am working on a case a brief right now in the US Supreme Court on inrae Grand Jury case involving attorney client privilege, and I'm working on a case in the Utah Court of Appeals right now involving civil procedure questions. So it's an interesting range. It always is.
Tim Kowal 3:29
Yeah. So you're moving into into Utah law, you've mastered all of the California subjects. And now we got to branch out into other states. That's exciting. Yeah.
M.C. Sungaila 3:37
Every once in a while, like, go go out of state. Yeah.
Tim Kowal 3:40
Yeah. Tell us what's new in in litigation and appellate practice in California recently, and maybe talk about you seeing any any effects or any long lasting effects of the pandemic? How are things kind of settling down? Are we in for some long term changes? Are there more changes to be seen?
M.C. Sungaila 3:57
Yeah, it's it's interesting. I mean, we're at least at the point where there's a lot more technology in the courts, you know, the courts of appeal, the State Courts of Appeal were, I think, really caught flat footed a bit in the beginning of COVID. In terms of oral argument, a lot of them were holding it telephonically for these first few months, which was a little challenging for everyone, I think. So it's nice to have that option, both in federal and state appellate courts to do that most of the courts are starting to come back a little bit, although I've heard that still, you can still make one side will make a request for a remote and then often not least, the argument will be remote instead of Live, which is I mean, we've gotten used to that a little bit so we can do either. Now we've expanded our toolbox. So that's good, although in the perfect world that in my view, I'd rather be in person and seeing all of the judges together on the bench and seeing that interaction. But you know, we're we've expanded and so we're able to devote this point I think the question too, is something that I've heard from the some of the podcast guests from State Supreme Courts and others aides is that fair, especially Chief Justices who are interested in the overall administration of their court system is that they really had a wake up call from COVID in terms of access to justice, having things be more available online, having more hearings available to be done remotely, especially for those who are representing themselves. But I think also for council represented parties. And that is something to where I think they were a little bit surprised about how much people were using, you know, off roading out of outside of the public system. So that was something that was a surprise to them. I think they hadn't realized yet jambs and other alternative service providers are, you know, they're pretty robust and had been robust for a while, but really seeing that impact, because I think that, especially in the state courts, the amount of work that was going through was just, you know, cut in half, I mean, criminal cases, were not proceeding civil cases really weren't people were either settling going to arbitration or mediation, finding some way to resolve their dispute. And they saw that, you know, they thought, oh, when will we reopen? We're gonna have this massive out, it's gonna be really busy. But a lot of people had resolved it in different ways. And it was kind of like, oh, we have competition, basically, which is how some of the chief justices have told me that we have competition to the public court system now in these private, you know, mediation opportunities, and we need to show up for people like we need to think about that. It's interesting to hear them say that so plainly, you know,
Tim Kowal 6:29
good. Yeah. I'm sorry. Go ahead. Did you notice a surge in references to pro tem judges, we use that once or twice to have we got a reference but by the presiding judge of Los Angeles Superior Court to have a pro tem judge, a former LA Superior Court Judge, as it happened to preside over a trial in the early months of the pandemic of 2020, when we realized that we were not going to get a trial anytime soon. And we use that Pro Tem reference and it was very successful in order to get our trial heard. Oh, you got on got put on mute there. MC.
M.C. Sungaila 6:58
I know, hold on one second.
Tim Kowal 7:02
Okay, there knows we had a little bit of interruption from a canine friend in the studio.
M.C. Sungaila 7:08
Exactly. So I think just chief justice to has indicated, you know, just recently, she said, Oh, we're gonna have retired judges and justices available as mediators themselves, you know, within this current court system, and otherwise, I think that's also a recognition of the usefulness of that, and that they want to, you know, be competitive in that way.
Jeff Lewis 7:28
Interesting. You know, we were talking about the use of zoom and technology by the courtrooms. And one of the issues that erupted here in LA where the three of us practice is court reporter availability, shortage of court reporters, and the fact that it's not a print problem that could be fixed by throwing more money at court reporters, there just aren't court reporters to report all the hearings, and whether or not the courts are going to change their attitude, or maybe the legislature will change its attitude regarding electronic recording of hearings. Do you have any thoughts about that? Where the courts might be going?
M.C. Sungaila 8:00
Yeah, I mean, that's a true crisis, that erupting right now courts are acknowledging it. And, you know, we as appellate attorneys are like, Oh, my gosh, you don't have a record? This is terrible. Right. Yeah. So So yeah, it's a real problem. But there's always been a tension, and it's largely been from court reporters themselves are the union's associated with the court reporters. But I've always lobbied against allowing recordings. So I don't know where that's going to land. At this point. It's always landed against automatic recording, and making sure that court reporters are able to report, but I don't know how you know, how you address this situation, which is really at a an acute level right now.
Jeff Lewis 8:42
You know, for our podcast, we use AI and software to create transcripts of a podcast, it's not that hard to create a transcript or to correct it, if there's issues of the issue to see what my prediction is there certain departments like family law, writs, and receivers, and like where domestic violence issues are, where a lack of reporters going to come back in terms of settled statements being needed to be settled and doubling the workload on the court. And those particular courtrooms I suspect will drive the legislature to solve this problem.
M.C. Sungaila 9:16
Yeah, well, there's a deep access to justice questionnaire, because in family law, you're talking about a lot of people who are self represented and may not have a lot of money to get, you know, talk to have the court reporter there and all of that to begin with. So the recording, that's a whole other issue.
Tim Kowal 9:29
Yeah, I just so happened to have been recently poring through the legislative record back from the 1992 AB 2937. Bill, the one that killed two that would have would have reenacted the electronic recording statute. And, and most of the opposition was, as he mentioned, you know, fueled by the court reporter lobby, there were a lot of letters written by judges who said I don't want to have to manage putting new tapes in taking tapes out labeling the tapes, putting you know, running them back when someone says Can you Can I have that read back, then you have to rewind it and find the spot in the tape. And it was a big hassle. But now that we've all proven, you know, it's this is 30 years ago now. And now we all get shown that we can have full trials over zoom with microphones with cameras, we chose, we've overcome the equipment problem. And and obviously, this is not a funding problem anymore. We have the money. It's a question of availability. And so I think the technology is up to snuff now, and we don't have that labor issue, apparently, is not not an issue. So it seems like something's gonna have to be done at the legislative level.
M.C. Sungaila 10:31
Yeah. And that and like I said, that access to justice concern is pretty acute for the courts to in they see that they want to be responsive to that.
Tim Kowal 10:39
Yeah. All right. Well, without further ado, let's talk about the Porsche project. Now, MC the last time we talked, we discussed your commitment to training up the next generation of appellate Attorneys, including through your firm's appellate fellowship, the Porsche project that you started takes that to the next level, it shows how women in the law have taken the next step to become trial and appellate judges, tell our listeners a little bit more about the the Porsche project, how you got the idea for it and how you got it started?
M.C. Sungaila 11:05
Yeah, so originally, I had started work on a book of interviews and the stories, the paths to the bench of women appellate judges around the country. And so I had done a few of those interviews and turn them into, you know, essays and things like that, working with the judges. And the reason I decided that I wanted to do that. And the reason that the publisher was also on board with it was that there's not as many women appellate judges, as you might think, in the country, at both the state and federal level, there's, you know, maybe 130 140, there's not a lot. So there was enough to, you know, highlight in the book and not be too overwhelming. And also, I thought it was a good way to encourage people to apply to consider to apply to the bench themselves, and see the various paths that people have taken. Because I think that some people will disqualify themselves from applying for the bench at the get go, because they think I don't have the perfect background. I wasn't a prosecutor, I wasn't this, I wasn't that. And when you see going through all of the history of everything, even when we thought that was true, it really wasn't people have so many different varied backgrounds, and they bring those with them to the bench. And there's value in that diversity of experience also. So that was kind of my initial goal. And then in doing the written project, I found that actually, it was really fun talking with them, the judges wanted to talk, they want to have conversations, and then we turn those conversations into, you know, written products and essays. And that took a lot more time than I initially thought would happen for each interview a lot of back and forth. And I also thought that it lost something in the translation, that having that conversation, having that very sort of personable showing by each of the judges during the conversation, you've got a better sense of their personality of their purchase to things from the conversation than from a written product, which ended up being you know, neat, polished, and all of these things, but you didn't get the same sense from the conversation itself. So I kind of shelved that project as a book. And then during COVID, I started thinking about, Oh, maybe it could be a podcast. And then then I hoped for a while that somebody else would have this idea and do it and I wouldn't have to but nobody did. Well, I thought, Okay, well, first, you can't have a podcast unless people are willing to talk to you. So I reached out to about, I would say, 15 people initially, if they were willing to participate, you know, trailblazing judges, people who were doing, you know, significant work in public interest or other areas. And they all said yes, which was very kind of them. And so we wanted that. And I thought, well, you know, maybe they'll just be like a 15. And that will be it. But what happened was that each person really enjoyed doing the interview, I thought it was valuable both for themselves and some self reflection, but also that it was a valuable project, women lawyers and law students, and maybe even those, maybe thinking about law school. So they would immediately say, oh, Judge, so I recommend her and she would really enjoy doing this. And so the guests would immediately start connecting me to, to future guests. And and I know enough from my legal training, just to never say no to a judge and just, you know, be very respectful of all and it was such a great opportunity. I mean, at that point, I felt like podcasts, the mission of the podcast is, you know, something more important is happening here. I'm just the shepherding source of the podcast. And I'm going to carry it through as long as people want to do it. As long as they see value in it, I'll carry on so and then along the way from that was it got much broader to trial judges, all different kinds of judges, I thought I'm applying to the bench would be helpful to know becoming a judge is very different depending on which level court you're at how you get there, whether you're appointed or elected varies from state to state. So I thought there was kind of like a civics lesson in all of this as well about how the judicial branch is selected. And then I thought, well, if I'm in law school, I remember that I didn't really understand all the different things you could do with a law degree. And so I thought it would be a good career resource too. So I started reaching out to all the ways by Women who are leaving and an off the bench and a bunch of different ways to women managing partners, women who are chief legal officers or general counsel in women in government in different ways with their elected office or serving as public support or working at a policy position in the government, just a whole array of people who are writers now, you know, non legal things, leaving museums, just a number of different things. I thought that people knew all the various ways that the legal training was useful and helpful in their careers. Maybe they might go to law school, they might not. They might say, Yeah, I don't want to practice law, or I don't want to be a judge. But that doesn't mean that legal education valuable. Yeah, yeah. Yeah, that's
Tim Kowal 15:39
one of the things that's so such a feel good recurring feel good moment and listening to the Porsche project is that there are so many different varied paths to the bench in the Porsche project, yes, are not limited to women on the bench. There are also prominent women litigators and law firm owners. And these are people that you would assume had it all mapped out from the start, you know, that they were valedictorian of their law school, they were, you know, editor of Law Review, they did everything right, you know, they aced everything they ever did. But that's not necessarily the case. Some of them got into, you know, didn't get into their dream law job, or they didn't get the clerkship and you know, but at some point, they decided, you know, I'm not meant for mediocrity, or just why not take that shot, they'll go in and get that elected seat for Judge, right? They make those connections, and they wind up getting the appointments anyway, or they or they go start their dream law firm job, and it's outside of the big law model. And so it folks focuses on all these types of stories that challenge, you know, that point to challenges that are specific to women like workplace discrimination, or harassment, or the special challenges of family. But many of the stories are just challenges and failures that are universal. Yeah, attorneys, people who are maybe jaded, they got their, their JD, their law degree, and then it wasn't all it was cracked up to be. What are some of the stories that stand out to you as being, you know, inspirational? Yeah,
M.C. Sungaila 16:54
I mean, I think they're very human stories, I really appreciate that they're willing to be vulnerable enough to share that and to show their humanity as well as what they've succeeded in accomplishing. I think one of the larger stories that really struck me personally, because I hadn't really realized, I mean, I feel like very, very blessed to have started my legal career when I did, if it had even been five years earlier, or, you know, 10 years earlier that I went to law school, the amount of opportunities that would have been available to me would have been much more limited. I really didn't realize how, what a watershed moment, the early 1980s was in for women in the profession, the appointment of Sandra Day O'Connor to the US Supreme Court was really impactful. It caused a lot more women to be appointed to State Supreme Courts, as well. And it really helped open the floodgates for women in law school. And so listening to some of these stories, I was really kind of shocked that it was so close in time, like it had been the late 1970s, early 1980s, I would have had the experience that a lot of these judges, Supreme Court justices and trial judges had coming out of law school, like Chief Justice term of the Utah Supreme Court, who was told, you know, men on Law Review need only apply to these particular positions. I mean, that was just how they put their ad out. And so certain things were just not available to women to try. And we think about that as being so far back in time. But it isn't really a more time out like a lot of progress in 50 years, and even some of the judges California who said, Yeah, you know, mid 1980s, early 1980s, judges were a little concerned to hire women as law clerks, big law firms in Los Angeles would say, well, we'll hire you for a couple of years, but there's no way you're going to be in a partnership track, and you're not staying and to think about that now. Like, wow, that never happened. No, when I graduated in the 90s. So a big change in that timeframe. And so I thought, Hmm, that's very impactful to me. So I didn't realize how close it was in time, I think of it as being further back than I thought I didn't know about that. Certainly the current, you know, the, the new generation doesn't know anything about that. And so I thought, well, it's a little depressing to hear about that. It's also really uplifting, because people who experienced that as an entry point to their careers ended up becoming state supreme court justices. Nonetheless, as you pointed out to him, they found a way, right. So that's pretty exciting. If they can do it, and you don't have those same entry barriers in the same way, then what can you do? Like there's so much more that people can accomplish? And you don't see that as a positive change? So that's one thing that really struck me how much has happened and changed, right?
Jeff Lewis 19:30
Hey, you've said often that your heart is into in pro bono and public interest work, and you've obviously flourished, doing that in a big, firm environment, and the podcast showcases attorneys who've managed to do pro bono and public interests work outside the big firm model that was surprising to us. Did that come as a surprise to you to learn of the attorneys who have managed to do public interest work under their own shingle? Are you aware of that secret I wanted to use the podcast as a way to kind of let the secret out that you can't do publicly Interested in pro bono work outside of the big firm context?
M.C. Sungaila 20:03
Yeah, I do have a deep interest in in public interest and impact appeals in particular, I think for two reasons. One is sort of that's how I was raised in terms of service that you find ways to serve with your skills that you have, and especially appellate work, you can make such a difference with one case, that case can be helpful for the client, but also for so many others in setting precedents. So there's a special role, I think that appellate preventive can play and not as many people who can do it. So I feel that sort of obligation responsibility in that regard, I do intentionally highlight public interest lawyers, and those who are doing important work in that regard in a bunch a bunch of different contexts for two reasons. One is I want to show the array of places in which you can do that work to law students, so they're not too narrow about it. And second of all, because I want to encourage other attorneys to learn about in particular, the organizations that do this, and to perhaps volunteer their own time, pro bono, you know, to carry it forward and to do more of that work also. So those are sort of two of my two of my goals in doing that. And there are really great, just great public interest organizations doing interesting work. We've had human trafficking organizations on we've had a course PLLC here in Orange County, which is just so well known for so much of its public interest work in so many areas, and which was actually founded by the Orange County Bar Association. So that's kind of an interesting thing, just like public council in LA was an outgrowth of bar work. So there's that and then family violence appellate project, which does important work in the family law arena and domestic violence arena, in California appellate courts. So I just tried to highlight really all of those that I think are really interesting that people should know about the areas in which work is being done. As far as doing pro bono work as a private lawyer outside of a big firm, I think that's mostly what we think about is big, firm work. That's not exclusive. I mean, I can think of one person in particular, you know, Harmeet Dillon, who has her own firm, her own boutique firm, but then she founded her own nonprofit to do work that she thought was important in the public interest arena, too. And she has such a amazing story. In her podcast episode. She's really very frank about her personal life and personal challenges as she was going through law school, and you know, just amazingly strong person when you hear that story. Yeah, that
Tim Kowal 22:26
made for a very interesting episode hearing about her. How she set up her shop and realized, you know, she was doing the work that she wanted to do, but how do you get funding for doing this public interest work? Well, you can just give it to my client, but that's not ideal, obviously. So maybe nonprofit, and she hired ethics attorneys and tax attorneys in order to do it. All right. And I thought, wow, that's, that's a smart cookie.
M.C. Sungaila 22:46
Yeah, exactly. Well, I think it's interesting. I mean, I think she and I share that same view of like, well, okay, let's get something done. How do we do it? We don't know. But we'll figure it out.
Tim Kowal 22:55
Yeah, well, on that subject, you know, the guests on the on the Porsche project are not just women who have landed on the bench, but have used their jadis. In other ways. That's kind of a recurring thing in the Porsche project is that a JD a law degree doesn't just mean one thing. If you don't find fulfillment, or your first job or your second job, or even your third law job, then maybe it's time to broaden your horizons. And MC one thing I learned about you that you've talked about on the podcast, as you learn that through through your kind of distaste for cross examination that taste for blood and drawing blood out of a cross examination witness that you know that that wasn't for you, you the area of appellate law a little bit better, it was more to your taste. I wonder if you could tell us some some of the unexpected, some other unexpected career paths that your guests have taken, even if they didn't, even if they wanted up on the bench? Maybe they took a winding road to get there that that you found interesting?
M.C. Sungaila 23:45
Yeah, I think I think you're referring I'm not the only appellate lawyer who is said that had that same kind of story. That's the thing that made us realize that we were not trial lawyers, and we better find something else to do with ourselves so that we felt badly for the witnesses when they were being crossing things. And we're like, whoa, you know, that's, that's very different. Looks like a different kind of beast than trial lawyers, they have a different view of that. So yeah, that's apparently there's more than just me that had that kind of epiphany about going into appellate work.
Tim Kowal 24:14
Yeah, that can make for a personality portfolio of the different parts of personalities that make for excellence in different areas of the law.
M.C. Sungaila 24:21
Yeah, I was just like to kind you know, to people, even even people who may not have been truthful. Yeah. So but I just couldn't do it. But But yeah, but I love talking to judges. I mean, from, you know, my courtship. That's what I was used to doing. So it worked out well. Yeah, there's, I think there's a lot of twists and turns to all careers. And that's another thing you think like, you see the end result, you see where someone ends up, but you don't often get to see like, all of the, you know, meanderings that eventually got there. And afterwards, you look back and go makes total sense, but I'd be in this position given all of my experience in these other roles, and but at the time, it wasn't clear at all. The it's interesting to hear those stories but but where people have gone with it, I mean, I can think of Patricia hunt Holmes, who was one of the first woman partners of Vinson and Elkins in Texas. And then when she retired, she became well, she started out with a PhD and then was in academia, then she went into law. And then she decided she had enough experience to write, you know, to have meaningful books that she would write at this point. And now she writes about the intersection of law and fiction, to some degree, there's little, there's reality to all of her stuff, but like, you know, being a novels about young women and big firms and navigating big firms, but there's always like a murder mystery part of it. And she did one on human trafficking, which was a human trafficking victims story, but she used it to highlight how much her town her city of Houston Texas was really a hub for a lot of trafficking and to get some traction going into community to be proactive about it. So yeah, that's, that's interesting. And then there's there's some people who have ended up becoming, which is really something I think people think about thing museum directors, so people who have run legal nonprofit than moving to just a nonprofit sector. So with Jessie Kornberg, who runs the Skirball Cultural Center in Los Angeles, she was previously leading at Sonic legal organization, nonprofit in LA. And then prior to that, Ms. J. D, which is now really well known for women law students and new entrants, women entering the profession. So there's that and then Jessica Aronoff, who ran break cycle, which was a teen domestic violence organization. And then she moved to foundation work working for a private foundation. And then from there now is leading kitten Children's Museum in Santa Monica. So it's interesting also, it's interesting to hear a lot of them be very conscious about how they're training and the things that they learned are very helpful for them in their current roles like Jennifer friend who runs Project HOPE alliance for homeless kids here in Orange County. She was a big law partner prior to becoming the director of Project HOPE Alliance. And she's the most like intentional about saying this you know, what I use for my cross examination what I use from you know, organizing litigation and leading teams and here's how I use that now in board meetings or to persuade donors or to work on coalition's it's really interesting to hear someone be that conscious of how their legal training is helpful in a different setting.
Tim Kowal 27:29
Yeah, yeah. And you recently had Molly Dwyer on your podcast, the clerk of the Ninth Circuit Court of Appeals. And I remember she said something to the effect that she realized she was a better organizer or her manager. Her organizational skills are better maybe than her legal skills, or she at least enjoyed doing that better. Made me think of MCU and I were at an awards dinner recently, where we're Presiding Justice leery of the 4/3 Court of Appeal was was accepting the sales award. And retired justice Aronson was there complaining about how justice O'Leary had once called him a quote crappy manager. And it all in all, in good nature, of course, but you know, attorneys don't always have the same skill sets. They're all you know, they could be excellent lawyers. But there's a lot more that goes into the law, the legal industry.
M.C. Sungaila 28:20
Yeah, I think there's also a lot to learn from the people who are in different roles, like the clerk roles. I don't think you think about that. But a clerk is often a lawyer, you know, you don't think about that. So thinking about that is something that might be something you would want to do down the line. The other things I think a lot of guests who are in the business world so Clos or general counsel, they have a different view of how they made different choices in their career, maybe more intentional from the standpoint of what kind of skills they wanted to acquire and where they get those who they wanted to work with, like who they wanted their boss to be, you know, if they were a deputy in the in the legal department was the GC, someone who had particular leadership skills that they thought, you know, maybe they had a gap, and they wanted to learn as I thought this person was particularly good at that. It's interesting to hear that kind of thinking, because we don't think that way organizationally within law firms exactly the same way. So it's, it's interesting to hear those stories about why people made certain career moves. Right.
Tim Kowal 29:22
Okay, MC, you've now interviewed over 100 judges and prominent female attorneys and and you've extracted all their secrets of effective advocacy. So now dish, tell us the secret. Well, when you ask your guests their tips on how to persuade what are some of their most common answers, what are some of the answers you found surprising maybe with with brief writing tips?
M.C. Sungaila 29:46
Yeah, you know, I was thinking about this. If there are so many discreet tips that I think we've heard a lot, especially at the appellate round in terms of you know, some judges read the reply brief first, or they read all of the tables of contents across the board. So make sure that those are clear and helpful for them. You know, don't don't write too long, even if you have 50 pages, don't use them all. If you can use them last, you know, choose your issues carefully. They don't want to see a double issues. Three to four issues is fine. No, all of that is I think, was fairly consistent. I think that I think that there were two things that stood out to me like, overall, if you listened to all of those discrete comments, you know, what is the overarching difference or difference in perspective that the judges have, and which I particularly asked like Patricia Mallette, on the DC Circuit was one of the, you know, really well, with most well regarded US Supreme Court attorneys prior to joining the bench, and she was terrific. So I really asked her in particular, was there something you learned, like if you were an advocate, and you knew what you knew now being on the bench, what would you do different words as an appellate lawyer? And were you surprised by any? And I think what she said, really kind of encapsulates what I think the overarching view is different. And that's you, as the advocate are looking for an outcome. And we're looking for an opinion. And that means so many things, like we're we want to know how to write the, you know, both in a way that fits this case, but we're also thinking about the larger body of the law, are we going to disturb anything if we write this a different way? And so it's actually really helpful to have you tell us how we should write the opinion with be more intentional about that, because that's what we're looking forward. That's where we need help, right. And then, and then also, I think the other part of it is this sense of, of obligation of responsibility to the rule of law and to the law itself, that they don't, it comes out in different ways that we talked about frequently at the state Supreme Court level, which is, hey, I'm not just deciding your case, I'm deciding this legal issue for so many other circumstance. And I want to make sure we don't decide it in a way that is not something we saw coming. You know, in some other settings, we want to make sure we've considered this rule as a matter of policy, practicality, it's a good rule, not only for this case, but for other settings, too. And that I think, is part of part of this same kind of we're looking to write an opinion, we're looking to write an opinion that adds to the body of law. And so we think about that in so many different ways. We see it as advocates in terms of questions like, well, yes, counsel, I know, these are the facts of your case. But what about this hypothetical, but that's just like the tip of the iceberg in terms of how the appellate justices are thinking about it. And then also, I think, the role of oral argument, I think so much, we think, oh, you know, we'd like to think it makes a difference for probably, you know, maybe not in the outcome in so many cases. But particularly in courts where there isn't a conference before argument, I've heard over and over from the justices that they they're prepared, they're prepared, of course to go to argument, but they consider argument part of their preparation to the decision making to they want to hear what their colleagues are asking, you want to hear what the lawyers have to say. And they keep they try very hard to keep an open mind during that argument. And part of the decision making to them is hearing the back and forth hearing the other questions their colleagues asked, which might actually raise things that they hadn't thought about prior to argument. So even if it may not in the end, and up as far as we can see me as like advocates making a difference in the outcome. Their whole approach to it is is with that, you know, sense of as the advocate, your you got to be 110% prepared by their timestamp to the lectern, know, you know, the outcome you want and all of the different questions. But oral argument, those on the bench is one more part of that preparation to write in that opinion, which is their ultimate output. So they just have a different attitude towards that. And that's something that I've heard over and over in different ways, different appellate judges. So I think just being aware of that, like, what are they doing, like, in a very practical way? What is their job? And what are they focused on? What are they concerned about? I think that in itself will really impact how we do our job, like how are we going to make their job easier? Yeah, there's a lot of disparate ways. But I think that think keeping that in mind will really impact the decisions you make as an advocate.
Tim Kowal 34:17
Yeah, you said a couple of things that I think are really next level thinking. And I think it really goes to what makes an appellate attorney different when we talked about what's so you said that from the judges perspective, they're thinking you the advocate, are looking for an outcome while we are looking for an opinion, how are we going to frame this opinion? I think that's that's subtle, but really significant. It kind of reminded me what we were just talking about a few minutes ago about as trial attorneys is really effective trial attorneys, you want to just gut that witness on when you're cross examining them. And so if you ask that same attorney, well, what do you want on appeal? Well, I want to bury my advocate and I want you to help me do it. I want you to say that their arguments are bad and they should feel bad. Well, no, we're not going to issue that kind of opinion. So you needed a different kind of perspective, a different kind of advocate to help us get where you want us to go? The Yes,
M.C. Sungaila 35:06
yeah, exactly. Yeah, I think it really defines the difference between trial and appellate lawyers too, because we're conscious of that in a different way. It's focused on the law in the direction of the law. And, you know, making the court comfortable with this decision, not only in this case, but in other settings, it's gotten sort of confirmation on, which is always been my view of what we're doing as appellate lawyers. And I think about it consciously this way every time, which is where we have a case, which to me is or client, which is to me is like, you know, a pebble in the stream or a boulder in the stream, depending on how, how big how big the issues are. And we're looking to place that in this stream, this river or whatever that's going by, and we need to have an explanation as to why the boulder goes there. Like, why does that make sense in the stream of a lot. And if it changes the direction of the stream to do that, we need to have a good explanation as to why that, okay, and why that's where the stream should have been going all along, or something like that. And that, to me is always that conscious in the background of, we're a part of something bigger that our case is sports partisan and bigger. And that's something that the justices are conscious of, too. And that's kind of what I keep hearing from them is we're conscious of that we're very conscious of that by what we're doing. We just want to kind of do no harm with with the law in the in the bigger sense. And in fact, this stream analogy, I've run it through with a couple of different judges, and many of them have said, Yeah, that's exactly how I think of it. That's exactly how I think of what we do. Yeah,
Tim Kowal 36:41
that's an excellent metaphor. I love that. And then the other thing that you said that I thought was really interesting about oral argument that justices will consider preparing for oral argument as part of their preparation for writing the ultimate opinion. And it reminded me of, you know, I was listening to one of your episodes talking about the subject of oral argument. And you and I, we discussed this the first time you're on the podcast about oral argument, and I have voiced the view that well, for for some cases where the economics don't justify it, preparing for oral argument is a big deal, because you have to review the entire record, review all the oral art, review all the arguments and issues, be prepared to answer any question about any argument or anything in the record. And that's a big undertaking. You don't just take, you know, just show up. And so sometimes the I might think about the jesting that my client waive oral argument. And and you said no, no, no, I can't imagine ever walking away from an opportunity to give, give the justices that one last unique glimpse into the case, understand the argument that if whatever I said, didn't work the first time, and I was reading an article or one of justice beds worth columns where he was making my pitch he was saying, you know, it's ironically saying the same thing that you just said, it's, it's so hard we go under undergo so much work to prepare for oral argument. Why don't you spare us advocates once you spare us every now and then by just waving oral argument? And and then we had justice Thompson on who said I can't imagine anyone ever wait waiving oral argument, at least show up?
M.C. Sungaila 38:07
Yeah, he and I are aligned on that for sure. I mean, but as a lot of these, the judges and justices that I've interviewed, they've all said, also, I think there's something that we don't think about as we see it, but we don't think about it the same way. It's a consensus building decision making at the appellate level. No, one judge cannot just decide something if they do they're in the dissent, you know. So there's persuasion that's going on among the justices with the questions that are asked afterwards. And conference. There's a lot of that going on. And so there's a listening, but they want to listen to each other and the questions that they ask, and they want to ask questions of the advocate sometimes to get the other colleagues to think about things. You know, we've all had that sense. But we're like, oh, we don't think that question is really directed at me. It's really to have another colleague think about something in a different way. But all of that process, but we're all part of that process. But all of the judges on the bench and the advocates, then you see the value of argument in that way as well, because it's a prelude to they're sitting down and conferencing and thinking about issues. So the questions the colleagues asked are just as important to a lot of the judges I talk to, as you know what the advocate says. Yeah,
Tim Kowal 39:22
well, and then going beyond the tips and tricks that you can get from listening to the Porsche project podcast. MCU said that what you get out of your interviews for the Porsche project is to know about the human being behind the robes, and many in our audience are busy trial attorneys. Why should busy trial attorneys pause to, you know, to try to get a glimpse and an understanding of who that person is beyond you know, underneath the robes?
M.C. Sungaila 39:47
Yeah, I mean, I think there's something Well, first than what we were discussing before. I think it's interesting to understand their perception of the process of their role in the process and their perception of decision making process. Is the oral argument and the process with each other of, you know, interrogating the advocates and then persuading each other with regard to decision making. Also, I think all of that's helpful just to to have an understanding, and then where someone comes from. I mean, I think that there's so much interest in, you know, having a device diversity of experiences on the bench. And some of that is because we're saying, Hey, someone who is who was a prosecutor or someone who was a public defender, or someone who was a civil litigator, they come with different understandings of how certain areas of the law work, and they can share those with their colleagues, and it can impact their decision making. So I think it's important as an advocate to understand, you know, hey, where did these people come from professionally, personally, what kind of challenges did they experience kind of empathy? Would they have two different situations as a result, like a very personal level of empathy, just as a leader who mentioned there, she has such a deep experience on the trial bench, and as the presiding judge on the trial court that, you know, she said, when she thinks about just writing opinions, she's very focused on being clear. She's not just telling this trial judge what you need to do now, if we're remanding it to you, but she knows that all of the colleagues on the trial board are going to be scratching their heads and reading sort of a bill opinion, to say, Well, what should we do in our case? So because of that background, a deep background on the trial bench, she's thinking about that when she's writing opinions. How can I be clear about what this disposition is? So when you say, is it important to understand, you know, someone's background like, Well, I think that background plays a lot into and she's very conscious of this in what she's doing when she's writing opinions and how much direction she's giving to the trial judges?
Tim Kowal 41:42
Yeah. Okay, one last question before I turn it over to to Zeus for our special lightning round. MC, you said that, that when you first started the Porsche project, your ambition was to capture on record the approximately 130 140 Female appellate judges throughout the country, it sounds like you're getting close to that goal. Will you? Do you intend to close the book on the project once you hit that goal, or or what's next after the Porsche project?
M.C. Sungaila 42:06
Yeah, so I do I really, we have a lot of great participation by State Supreme Court justices. So by early well, by spring of next year, we will have voices sometimes multiple voices, Justices from 32 State 32 States Supreme Courts, in some cases, two or three justices from certain courts participating in the Bucha project. So I'm very excited about that level of participation. And the federal courts are also getting involved the Federal Circuit Courts, and I hope that some of our US Supreme Court justice as well for participate at some point and you know, more state supreme court justices. So I'm hoping that there'll be even more participation there. But also in the sort of wide array of things that you can do with a law degree or something else that comes to me, that I'll think of, we have legal design people, which is a new movement in approaching to contracts and a bunch of other things. We have international, I have an episode with international legal design experts, illegal tech founders of all kinds of different companies, which is something that you know, we all is helpful to learn about. So yeah, I don't know. I think that when I reach a certain level regard to the number of judges, which is thinking or reevaluate exactly how much more we'll do,
Tim Kowal 43:17
yeah. Okay. All right, MC Sun Gala, we're gonna take you off now to a special lightning round. And I think you'll find some of these questions familiar, because some of them are lifted from the questions you ask your guests on the Porsche project. I'm gonna turn it over to Jeff to administer.
Jeff Lewis 43:32
Yeah, you know, Saturday Night Live when they have returned guests, they get a special red jacket for return guests when you get invasive questions.
M.C. Sungaila 43:42
No, I'm preparing. Like looking at these questions. I'm like, yeah, these are kind of tough. And I do this to these my poor guests. Every time I'm going to be a little more empathetic.
Jeff Lewis 43:51
You'll get no such empathy from us. Yes. So um, see what talent would you most like to have?
M.C. Sungaila 43:57
I would like to be able to play the harp or to plein air paint. Oh, that's a pretty specific but yeah,
Tim Kowal 44:04
yeah. Yeah. I don't know about the harp. That seems hard.
Jeff Lewis 44:09
With YouTube, you can learn how to do anything given enough time what trait you most deplore in yourself and others.
M.C. Sungaila 44:15
Okay, so I think they're a little bit different. So in others, I really do for like meanness and treating those people perceive as being lesser than them, or if I were in some way with disregard or disrespect, so those things don't bother me and Ben have told me about someone's character. In Me, I wish that I had a better sense of time. I do a lot. But I always think that like whatever task Oh, that'll just take a couple hours. And it always takes more time than it does. So that I wish I were better at estimating that.
Tim Kowal 44:45
That is my Achilles heel and time blocking. Yes,
Jeff Lewis 44:49
absolutely. Yeah, absolutely. And who are your favorite writers?
M.C. Sungaila 44:53
Well, I'm super eclectic. I have hundreds of books in my home and in my office, probably more than I could ever read although I understand from seem to lab that that's a good sign that you have this you know sort of level of humility. You can never learn it all or never learn everything's I hope that's good. Otherwise, it's just a ton of books that I may not end up finishing. But I really appreciate particularly chance of writing so terms of arrays and artfulness with language, so, and storytelling too, so I will put in that category, Nancy packer, who taught at Stanford and the creative writing program, she didn't write that much because she taught students but she has a couple of books of short stories that are like the most tightly beautifully written stories in that genre. And then Brian Doyle's mink river I don't know if you've read anything by Brian Doyle, but he is a really wholly unique storyteller and just a beautiful writer. And Jhumpa Lahiri. He's Interpreter of Maladies short story collection I've always loved that one. And also John O'Donoghue, who's an Irish Mr. Really liked his writing really powerful. Yeah, interesting.
Tim Kowal 46:01
You know, that that these you like these writers for their turns of phrase, and that's something I look for as well just, even if the subject matter is not entirely surprising if the if it's told in a way with unique arresting turns of phrase that metal sells me.
Jeff Lewis 46:14
And, Tim, I'm gonna task you with putting Amazon links in our show notes to those books.
Tim Kowal 46:19
I'm gonna need some spellings and
Jeff Lewis 46:23
all right, and who is your hero in real life?
M.C. Sungaila 46:25
Yeah, that's a that's a tough one. Because I think I put them a little bit different. I mean, definitely my family like my mother, my parents, grandparents, I think about you know, my dad, who always like, firmly believed that his daughter could do basically anything. And I think about how important that is to having especially your father believe that and not limit you like, Oh, that's my girl child. So she can only do certain things. I really value that. And then my family and my grandparents came over many of them through through Ellis Island and did some really worked in steel mills did some really hard work so that their children could go to college and do well. So so that's pretty heroic in my book. But as far as law, it's the judges that I worked for the three judges and the dog who just had a bite. Well done this.
Jeff Lewis 47:18
Yeah. Okay, and what person living or dead would you invite to a dinner party? Okay, so
M.C. Sungaila 47:23
this one is super eclectic. I was trying to like narrow it down to one person. And I'm like, No, I'm just gonna have a whole part. You have all of these interesting people and have these discussions of like, okay, the Queen of England, she would be pretty cool. Winston Churchill, Sandra Day O'Connor, Ruth Bader Ginsburg, Thurgood Marshall, Professor Victor Hansen. He was really interesting historical perspectives from Stanford Law Professor Lewis litski, who's a friend of mine, but also is a really interesting thinker about First Amendment law. And my parents might judges that I worked for, and also some podcast guests who I really, really like and would love to have dinner with at some point. So the former Missouri Supreme Court Chief Justice in Covington, Washington, Supreme Court Justice Raquel Montoya Lewis, who was a tribal judge before she became a trial court and Supreme Court Justice has a really interesting perspective. And then who I mentioned already, DC Circuit Judge Patricia Mallette, who's just really remarkable.
Tim Kowal 48:19
Yeah, the the IQ points represented at that dinner table would be staggering.
Jeff Lewis 48:24
Yeah. And the final lightning round question. And, Tim, I'm gonna suggest maybe we rename this not the lightning round. But the final lightning round question is, do you have a motto for life? And what is it?
M.C. Sungaila 48:36
Yes. So I think I have a few. And that is echoed by my dog. So to the I aspire G, which is really like my mom's the charity. Yes, he had a bone. And that didn't help either. So okay, so mottos for life. So I think there are two that I aspire to, which is really my mom's but she tries basically tells me every day, which is make this the best day ever. And also that every day is a new canvas, Keynote the way you want. And I think about that is like starting over and being fresh. And like whatever happened the day before, or wasn't great, you know, you have an opportunity to start fresh each day and to take that with a lot of grace and humility. So pretty simple things, but that's how I look at them. And what I actually engage in without having to aspire to or think about I think is the kind never give up. And if there seems like one approach is a dead end or it ends up being an ally, you just back out of it and go somewhere else find a new way. You know, there's a wall just find a way around it and persist.
Tim Kowal 49:38
Yeah. Okay, great. Well,
Jeff Lewis 49:41
you survived our patented lightning round, and perhaps we'll send a one of a kind Limited Edition above your way as a thank you for coming on the show and surviving lightning round with us.
M.C. Sungaila 49:52
Awesome. Thank you so much. I feel blessed to have survived.
Tim Kowal 49:56
Yeah, the turnabout lightning round. As these questions turn right back. walk around on her. And if you'd like to see those here those questions put to over 100. Judges and prominent women attorneys tune in to the Porsche project with MC Sungai. Left,
Jeff Lewis 50:12
right. And as we wrap up this episode, I do want to share a bit of sad news. Just before hitting record on the podcast today, I learned that Judge Judy Cherlyn, formerly of the Los Angeles Superior Court had passed away. Judge Chirlane was the judge and the first trial I had over 20 years ago. She had a big impact on me early in my career, and I'm sure I'm not the only lawyer who will miss her her presence and wisdom. So I just want to share that sad news. Yeah, thanks,
M.C. Sungaila 50:37
Josh. She she had a major impact on women lawyers in Los Angeles and also a lot of impact in her work with the Western Justice Center Foundation, which was started by Judge Dorothy Nelson on the ninth circuit.
Jeff Lewis 50:51
And with that, MC, thanks so much for joining us. That wraps up this episode, we want to thank cakes, haystacks for sponsoring the podcast and each week we include links to the cases we discussed. Using casetext and listeners, the podcast can find a 25% discount available to them if they sign up at casetext.com/calp. That's tikkis text.com/ca LP and also look for links in the podcast to Amazon to all of the books that MC listed Tim's gonna find.
Tim Kowal 51:18
That's right. And if you have suggestions for future episodes, please email us at info at cow podcast.com. And please tune in for future episodes for more guests cases and news. See you next time.
Announcer 51:30
You have just listened to the California appellate podcast, a discussion and timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Clemency requests in California must be approved by the Supreme Court, and they are not always approved. Denials of clemency requests, says David Ettinger, are “essentially court determinations that the clemency grants would have been abuses of gubernatorial powers.”
In one particular case back in 2019 concerning Joe Hernandez, a majority of the Supreme Court, without specifying a reason, declined to recommend the commutation.” Ettinger notes that then-Gov. Brown fumed, “Read the ones who were approved and read the ones who were disapproved and you tell me what the rule is.”
Gov. Newsom, on the other hand, has a nearly perfect record on his clemency recommendation requests. Why the change?
Watch the clip here.
This is a clip from episode 53 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Of his former colleague, Justice William Bedsworth is quoted as saying: “Justice Thompson has a rare combination of a hard-headed, straight-ahead approach to the law and a big heart that never lets him lose sight of the impact his decisions have on real people.”
“Head-headed?” What did Justice Bedsworth mean by that? Justice Thompson joins Tim Kowal and Jeff Lewis on the California Appellate Law Podcastm to explain.
Watch the clip here.
This is a clip from episode 54 of the California Appellate Law Podcast. The full episode is available here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Cynics have suggested that the “jurisdictional” deadline to file an appeal “’is only as jurisdictional as [the courts] want it to be.’” The Court of Appeal knows this—after all, that is a quote directly from a Supreme Court dissenting opinion. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 677 [dis. opn. of Tobriner, J.].) The court recently acknowledged that this supposedly iron-clad rule is, in fact, riddled with exceptions. (Garg v. Garg (D4d3 Sept. 7, 2022 No. G061500) --- Cal.Rptr.3d ---- 2022 WL 4092828 (see summary and commentary here).)
Here is one more exception: We already knew that, when a motion for new trial is filed, that extends the time to appeal to 30 days after the motion is denied. And we already knew that the trial court’s deadline to deny the motion is 75 days after service of the notice of entry of judgment. That’s all laid out clearly in California Rules of Court 8.108 and Code of Civil Procedure section 660, and these rules are treated as jurisdictional. But if a party files a motion to disqualify the trial judge before the judge denies the motion for new trial, that tolls the 75-day period.
That is what the Fourth District Court of Appeal held in Gearing v. Garfield Beach CVS, LLC (D4d3 Nov. 8, 2022 no. G060807) 2022 WL 16827538 (nonpub. opn.). After the trial court nonsuited the plaintiff’s case, the plaintiff moved for a new trial. But then three weeks later—before the court had had a chance to rule on the new-trial motion—the plaintiff moved to disqualify the trial judge.
Under the normal rule, the motion for new trial would have been deemed denied automatically 75 days after the June 1 notice of entry of judgment, i.e., August 16. But at that time, the disqualification motion was still pending, and was not decided for another month in mid-September. The judge denied the motion for new trial a couple weeks later—by this time, well beyond the maximum 75-day period under Code of Civil Procedure section 660.
So even though the plaintiff filed her appeal within 30 days after the denial as rule 8.108 provides, the defendant argued this was too late: The motion for new trial motion had been “deemed denied” a month-and-a-half earlier, and the 30-day period after that had already expired.
The Court of Appeal rejected the defendant’s argument that the appeal was untimely. True, the defendant’s chronology was sound, and under normal operation of rule 8.108 and section 660, the motion for new trial would have been deemed denied in mid-August, making the plaintiff’s appeal in late October, more than 30 days later, untimely.
But the disqualification motion disrupted this chronology. Once the plaintiff filed her disqualification motion, the trial court was divested of jurisdiction to rule on the new-trial motion.
There is precedent for this holding in Collins v. Nelson (1940) 41 Cal.App.2d 107. The exact same thing happened Collins: a disqualification motion was filed before the trial court could timely rule on a new-trial motion. Collins held that the trial court’s time to rule on the new-trial motion was tolled during the pendency of the motion to disqualify, because it lacked jurisdiction to rule on the new-trial motion. (Collins, supra, 41 Cal.App.2d at p. 112.)
Collins reasoned: “To hold otherwise would lead to absurdity, because a party resisting a motion for new trial could defeat it merely by resorting to the proceedings named in section 170 ... , in the determination of which motion to disqualify the trial judge more than 60 days [CCP 660 now provides for 75 days –ed.] might reasonably be expected to elapse, especially if an appeal were taken, as in the present case.” (Id. at pp. 112-113.)
The Collins court is correct that it would be perverse to allow the nonmoving party to thwart a new-trial motion by filing a motion to disqualify, thus depriving the trial court of jurisdiction to act on the motion within the time allowed by law. But that does not make it “absurd” in the sense that the Legislature could not possibly have intended it. In fact, jurisdictional rules, by their nature, need must occasionally lead to perverse, even seemingly “absurd,” outcomes—such as the trial to appeal being dismissed as untimely because a clerk miscommunicated the date of entry to counsel.
Would it not also be absurd to allow an appellant to extend the jurisdictional time to appeal by the artifice of filing a motion for new trial followed by a motion to disqualify?
At any rate, this represents yet another exception to “jurisdictional” rules that are not supposed to admit of any exceptions.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
If you read court cases for a living, you may have some that conclude, “while we are sympathetic to the appellant, this is a problem for the Legislature to resolve.” Which is usually sensible enough. But how does anyone know if the Legislature is reading these cases?
Justice Lambden wondered the same thing. So that’s why when he wrote one such opinion, he forwarded a copy of it to the Speaker of the Assembly. Not as advocacy, mind you, just as an FYI. After all, Justice Lambden explains, it is a function of the courts to educate.
He would even tap on the microphone as a trial court judge to punctuate the record, “hey, Court of Appeal, this is an interesting issue.” You’ll never get a holding on an important issue if no one ever brings it up on appeal!
Watch the clip here.
This is a clip from episode 51 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
When the Supreme Court applied lis pendens law inconsistent with the lis pendens statute, Justice Zebrowski wrote a letter that got the attention of the State Bar. That got him on a lis pendens “task force,” which in turn was responsible for convincing the Legislature to amend the lis pendens statutes.
This is but one example how Justice John Zebrowski, though retired from the California Court of Appeal since 1999, has served in a number of important roles affecting law and legal practice. On this episode of the California Appellate Law Podcast, Justice Zebrowski tells co-hosts Jeff and Tim about his work on the Law Revision Commission, and the BAJI Committee writing and amending civil jury instructions. But given the low-absorbency rate with jurors, is the practice of jury instructions at trial merely ceremonial? Justice Zebrowski weighs in on that. And what is the difference between BAJI and CACI?
Mediating or arbitrating a case? Justice Zebrowski offers some advice from 23 years as a neutral:
Justice John Zebrowski’s biography.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
Hon. John Zebrowski (Ret.) 0:03
One of the things that you never lost your case doing is making it too clear for the decider.
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 Kowal and Jeff Lewis. Welcome, everyone.
Jeff Lewis 0:24
I am Jeff Lewis.
Tim Kowal 0:25
And I'm Tim Kowal. Both Jeff and I are certified appellate specialist and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague. And a quick thank you to our sponsor. Our
Jeff Lewis 0:41
podcast is sponsored by casetext. Casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019. I highly endorse the service unless there's of our podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/CALP.
Tim Kowal 1:05
Today on the podcast. We are honored to welcome justice John's the broski to the show. For the past 23 years since retiring from the Court of Appeal justice Zebrowski has held down a full time arbitration and mediation practice focusing on all manner of corporate and business related disputes. Justice Nebraska is an alumnus of the University of Pennsylvania and Georgetown Law. After several years in private practice, Justice Zebrowski had joined the Los Angeles Superior Court as a commissioner from 1982 to 1986. And he was appointed to the bench in 1986. And then in 1995, then Governor Pete Wilson made judge Zebrowski into justice Zebrowski, who then retired from the bench in 1999 to join ADR services. But as we'll discuss further, that was not the end of justice Zebrowski service in shaping California law. Justice Zebrowski, welcome to the podcast. Thanks for joining us today. Thank you. Now justice Zebrowski, I read that you are a western Pennsylvania native and the son of a factory Foreman and a waitress what was the path from there to the California Court of Appeal?
Hon. John Zebrowski (Ret.) 2:17
Well, it was like things that happen in life where you get a little bit of luck and a little bit of help at the same time and things work out. And this was a situation where when I was in high school, my one of my high school track coaches was acquainted with an alumnus from the University of Pennsylvania. And this alumnus happened to be interested in the track team. And so my coach arranged for me to meet this alumnus and the alumnus arranged for me to meet the track coach from Penn. And one thing led to another and I was offered a scholarship to go to Penn, not 100%. Unfortunately, I still had a supplement. That was a little bit of side work, but it made it possible for me to attend Penn. So there was an attending Penn then, once I graduated from Penn, I worked for a couple of years and then applied to Georgetown when I went to Georgetown. And when I graduated from Georgetown, I came on to work for a firm here in Los Angeles that has since been merged out of existence and the old McCutchen firm. But I worked there for a while and then I was given this opportunity to join the Superior Court and I did join the Superior Court. And then from there, when as you said in your intro a little while ago,
Tim Kowal 3:24
I also heard that you had done some spent some years working in steel mills now being being from Western Pennsylvania, that it's a common profession or common job out in those parts. So I take it that was that a career in law was not a not a straight trajectory you had your path led you through the steel mills. And as you mentioned, track and field scholarship, supplementing your income and other ways. Tell us about your experience working in the steel mills and how that informed your later work as an attorney.
Hon. John Zebrowski (Ret.) 3:52
Well, I worked in the steel mills for during the during the time of my college undergrad career I worked at in the steel mills about 16 months in order to supplement the money that I had from the scholarship so I could afford to go to Penn. And but before I got to work in the steel mills, I had worked in other places to truck loading docks, construction work, dairy plant things and things of that nature. But working in the steel mills illustrated to me the danger of working in heavy industry like that, and people really do get injured jobs of that kind. And when I was there that was prior to the Occupational Safety and Health Act. So things were a little more dangerous than than they are now hopefully. But it was quite an experience to see how people worked and what risks they would take just to bring home a few dollars of pay
Tim Kowal 4:42
and was a career in the law always almost part of your career objectives or did that only dawn on you at a later time?
Hon. John Zebrowski (Ret.) 4:50
I always had an interest in it but it was really in my undergrad time that I decided I would go to law school. I can't say I was planning it from kindergarten. It was something that came up later on tonight, I started deciding what I was going to do that was not going to be working in the steel mill.
Tim Kowal 5:04
Right? Well, justice, Nebraska while you have not served on the bench in a couple of decades, still, in that time, since you retired from the bench in 1999, you have served in a number of other important roles affecting law and legal practice. And I'd like to just touch on a few of those with you. First, you served on the law revision commission, you were appointed by Governor Schwarzenegger to the law revision commission in 2008, where you served as chair in 2010. What can you tell us about the role of the work that you do in in the law revision commission for our listeners who are not familiar with its impact on shaping California law?
Hon. John Zebrowski (Ret.) 5:39
Well, the law revision commission is designed to assist the legislature in maintaining the statutory law of California and in good shape where there's not ambiguity. There's not miss types. There's not things missing there. It's the work of the law revision commission is to assist the legislature, but it's in a very technical way, it's not a policy discussion, we're not the ones that the legislature comes to to decide what the policy content of the statutory statutes should be. We're the ones to make sure that they make sense. Like, for example, one of the projects we did was to take all the references to firearms that appear in the California statutes, and make sure that they are all all those terms are clear to us. And we found things like, for example, there would be one concept that we have three different labels attached to it, even though it looked like they meant to say the same thing each time, they use three different words or phrases to refer to those topics. And as you know, when you're doing a statutory construction, one of the things you look for is a different word being used. And if a different word is used, there's a presumption that that's because the legislature wanted it to mean something different. But the lawyer who's in commission would do its work and conclude it really appears that the legislature meant to say the same thing here, but they were doing it at a different time in a different place, with different personnel involved, and so forth. So they used a different term to refer that very same concept. So our report them would contain a recommendation that just be looked at and to see whether we should have this amended so that it would all be one term and not lead to ambiguities. So those are the types of things that we do. And I think the people of California are getting a good bargain from the work of the largeish. Commission. It's very small, but it has some very good staff people and they do a lot of hard work.
Tim Kowal 7:28
I wonder if it gets difficult finding finding folks to serve in a in a role that does not you say that the law revision commission does not concern itself with matters of policy, does it difficult to separate the two because those kinds of things always everything else tends to bleed into policy. I'm thinking of a recent discussion, Jeff and I had about a recent Ninth Circuit opinion where Judge Beya filed a separate opinion about the use of the term non citizen used in majority opinion, where the statute says uses the word alien. And the majority had reason that alien could be deemed to be a derogatory or offensive term and decided to use opt for the term non citizen instead. And Judge Beya said, That makes things difficult for the litigants who have to use the statute and its term alien, and then the judges who apparently now don't like the statutory term. So all things pedantic and definitional eventually become a matter of policy. It's only a matter of when it sometimes seems I wonder if it becomes if you ever had an experience where it was difficult to find that line in between what's policy and what's merely mechanical or definitional.
Hon. John Zebrowski (Ret.) 8:39
I didn't really find that on my work with the law revision commission, although we would at times have discussions about whether the use of a particular term or phrase presents a question of policy. And if we were to determine that it did present a question of policy, we will then decide that we'll just tell the legislature that it looks to us like this implicates a question of policy, and therefore we're moving on past it. But if we're wrong about that, let us know. And we'll do a study of it and give you a supplemental report.
Tim Kowal 9:07
But are there any pardon me? Are there different philosophies or schools of thought represented among the different commission members?
Hon. John Zebrowski (Ret.) 9:15
I didn't find that to be the case for this type of work. This type of work is really law technician work. You're just trying to find out are these these two words a non citizen alien are used? Is that because they mean different things? Or is that because they were put in at different times by different people, and maybe they should be harmonized?
Tim Kowal 9:34
Right. And how many members are there on the law revision commission?
Hon. John Zebrowski (Ret.) 9:38
That's a good question. It's been a long time now since I was on the law revision commission, but if my memory serves me, I'd say it's about a dozen. Okay. There's a mixture of people in private practice and people in government practice and people from some of the prosecutorial offices and people that work for the legislature and get together get a good mix of people. Yeah.
Tim Kowal 9:59
He also served on the State Bar lists pendens committee where you drafted code commentary that now appears in the annotated code. In my anecdotal experience, too many lawyers, both practitioners and judges don't seem to understand what a list pendens is and when you may record one, what is the role of the list pendants committee and what was your experience serving on it?
Hon. John Zebrowski (Ret.) 10:19
What that was a sort of a unique situation. There was a list pendants law that was in effect until about 20 or 25 years ago, the time when this law that's now in effect went into effect. And that law, if you read it, it's it appeared to call for a a factual review of the loose pendants to determine whether it was valid or not. But the Supreme Court came up with a decision saying that you cannot consider the facts on a motion to expunge a list pendants. So this meant that the list pendens would stay on the encumbering the property up until the time of at least the end of appellate procedures and will cause a lot of mischief. And the mischief has been caused in a situation in which the law as being applied by the Supreme Court case was exactly 180 degrees, the precise opposite of what the legit what the state statute said. So I wrote an article about this was published in the magazine and the Los Angeles Bar Association, pointing out that we have this legend, we have the statute saying one thing and we have the casing another thing. And so that created some interest. And so the bar got the State Bar formed what they somewhat grandiosely, called the Liz pendants, task force. So so they had this basically with a committee, but they call it Liz pendants, Task Force and they asked me to join it. And the job given to the task force was to come up with a new list penance law. And so that's what we did. We came up with a new list penance law that is in the books now. And then we presented it to the legislature in the past.
Jeff Lewis 11:51
So he's the reason we have to take a writ up instead of an appeal on a motion to expunge the list pendants. Well, there
Hon. John Zebrowski (Ret.) 11:58
are a lot of things that were changed. I mean, not now you can get a review of the facts. And if the facts don't support his payments, for example, maybe you have to post a bond or something. But it made a lot of what we regarded as improvements to the law. And as I say, I haven't really been following lis pendens matters too much in recent years, because it's not the kind of thing that would come up in an ADR setting very much. You'd need a unique circumstance to come up with an endless pendants, question, maybe in a malpractice case or something like that. But it seems to have been weathering the test of time pretty well.
Tim Kowal 12:32
Well, that's an encouraging case study. So you spotted a problem. In this case, it was a deviation between the statute and what the California Supreme Court said concerning Liz pendants, wrote an article about it, the Los Angeles County Bar Association took interest in it created this task force and and then lo and behold, we got a legislative change out of it.
Hon. John Zebrowski (Ret.) 12:53
Not as a state bar, not the LA County Bar, the article got published in the magazine of the county bar by the state bars bar that got interested in it. And all that was done by people who were active in the real estate section of the State Bar. And then I got asked to join after the this task force had been assembled.
Tim Kowal 13:10
So is that a viable blueprint for other practitioners or judges, former judges who may see some some friction in the law, some room for improvement is to start with an article if you can get the attention of the State Bar or one of its practice groups? Well, I
Hon. John Zebrowski (Ret.) 13:25
haven't seen it happen in any other circumstances. And I think you'd have to have a unique circumstance to have it work. But this was a situation where it was pretty obvious that the statute said one thing, and she sets on an 80 degrees, the opposite. And so it was an outlier that just was causing problems.
Tim Kowal 13:42
And was it was it the fact that it was causing problems, the real impetus for effecting that change? Or was it? Was it really just the academic fact that people don't like it when statute says one thing, and that's in the Supreme Court says another thing? Or do you have to actually have the prejudice like we'd like to talk about in the appellate world?
Hon. John Zebrowski (Ret.) 13:59
Well, I would say all of that, at the time at around the time that I wrote that article, I was serving in the old rescind receivers, departments in the Superior Court. So I was getting these those pendants, cases, one after another. And I'd look at it and I'd say, Well, the way the statute is written, this doesn't support this pennant, but the way the case is written, it does. And so I have to be making, making these decisions and explaining to the attorneys why I'm making this decision is contrary to the wording of the because I have to lower court so I have to follow the ruling of the upper course. So I have to follow what the Supreme Court says after explaining the attorney while making his ruling that is contrary to the plain language of this statute.
Tim Kowal 14:39
Right. Now, we've had to go off on some unrelated tangent. We've talked about this problem of rule eight point 1115. And the rule that says the practitioners may not cite an unpublished opinion for any reason, we talked about this, this problem in the sense that the rule that the way that the rule is drafted is so broad that practitioners are actually forbidden. By the text of the rule from citing an unpublished decision, even in a petition for review to the Supreme Court on the grounds that there is a divergence of opinions. So you can say that there's a divergence of opinions but technically under Rule eight point 1115, you're not allowed to cite which of the unpublished diverging opinions exist. And I thought that's and of course, the the practice is that litigants will still cite to the unpublished opinions and the Supreme Court seems to sanction it seems to bless it as an accepted practice. But there you have some friction between the way that the Supreme Court actually practices and litigants before the Supreme Court actually practice and what the rule says, um, I wonder if you can comment on on that, either either as another example of friction that that needs to be addressed, or just on the on the topic of unpublished opinions. Generally,
Hon. John Zebrowski (Ret.) 15:49
we see a lot of citation of unpublished opinions at our work because the way the rule is drafted, it doesn't appear to rule out the citing of an unpublished opinion saved in arbitration. And in any event, people will cite them quite quite frequently. But now, you have to ask yourself, how did this situation arise where we have this opinion, but yet it's unpublished. Now we know what the rules say about if it breaks new ground, if it shows a new way of the laws applied, you're supposed to publish it, but yet we'll see these unpublished opinions come. A lot of times. The reason why an opinion is unpublished is you have to put yourself in the shoes of the Pella justice appellate justice sitting there has this case, a case has to be decided they can't the appellate justice can't say, Well, we're just not going to decide this is too close, or we don't think it's proper of the presented or whatever you have to you have to decide it somehow. But of course, you may not have complete confidence in the briefing that you got, you may not have complete confidence in the way that cases have been presented. But you have to decide the case. So what do you do you decide the case the best you can and then you don't publish it. Now the reason you don't publish it, so it won't be cited? Because you're not confident that it's right. So when you're dealing with a unpublished decision, it's not like it's, I talked to a lot of law professors about this, they just think everything should be should be published. Because it's more things for a law professor to play with, I think you can imagine what that would do to practice if we expanded the number of published opinions by a factor of about 10, or 15. And you'd have to read through 10 or 15 times as many case reports, as you do now, in order to present your papers. So if you see a case is not cited, there's not published, there's usually a good reason why it's not published.
Tim Kowal 17:32
Well, and you just mentioned, one of the reasons is, is because there's just an enormous amount of effort that has to go into writing an opinion to begin with, and then if you're going to make it a publishable quality, so that they say if you have a, you have a case that the facts are subtle, and it could kind of go either way, but you get a you get the panel deciding that it should go that it should be affirmed rather than reversed. But it's it's a close call, and you don't want it to be an example that can be cited as a definitive, unequivocal case of why all such cases should go that direction, then you want to just make it unpublished. So it doesn't become a problematic precedent. So I wanted to ask you, if money and time are no object, and you could justices could invest as much time as we're as was needed into making the holding as crystal clear as possible. So that could it could be used assignable published authority, would we still have a need for a point 1115? Or there's the other cynical explanation for that appellate justices sometimes use the use on published cases is to kind of sweep cases under the rug. But if they're if the case should come out one direction, but maybe there's not good legal authority to support the outcome, the way the panel wants it to come out, then they'll just stamp unpublished on it and be on their way.
Hon. John Zebrowski (Ret.) 18:45
Yeah, well, I'm not gonna accuse anybody, but I will say I've seen some of these unpublished opinions coming through in arbitrations, for example, and it's hard to imagine how somebody could write this opinion and then have it published. I mean, like, for example, the statute that says that when you're selling a house, you have to disclose all known defects. Well, it says known defects. But I see I've seen several cases in appellate in arbitration practices where the findings of the court was that the duty to disclose extends to not only known defects, defects you should have known in other words to a negligence test. Well, that's a quite a quite a different ballgame there. If they're going to say that you're subject to disclosure to an obligation to disclose things that you should have known but what you didn't so you can't disclose it, because you didn't know in
Tim Kowal 19:34
the public cases hold that sellers have to disclose known defects, but there are some unpublished cases that will say known or should have known but but they're not published. And they just kind of so they kind of exist in that unsuitable periphery of the law,
Hon. John Zebrowski (Ret.) 19:50
where sometimes you'll get a situation like that justice has a lot of things to do there other cases attend to your drafting an opinion. They look at it and they say, well, the attorney needs that are actually handling this case, they'll know what I'm talking about, because they've been handling this now for two or three years, so they know what this case is about. So I don't have to spend that extra 20 hours polishing the explanation here so that a person that walks in off the street completely cold, never saw this case before can read it and be clear about it. So they'll issue the opinion in unpublished form, because they're not worried about somebody misunderstanding and getting let off down a rabbit hole somewhere.
Tim Kowal 20:28
And one other question about unpublished opinions in arbitration practice. Now, rule eight point 1115 doesn't apply to arbitration. So there's no the rule doesn't prohibit practitioners from citing unpublished opinions in in arbitration, which is why you you've mentioned that you've seen so many of them cited before you as an arbitrator. But notwithstanding the fact that they may and consistent with rule point 1115 cite that practitioners may cite unpublished decisions to you as an arbitrator. Do you? Do you find that it's appropriate to you welcome citation of unpublished opinion? Or do you get the sense that you often do that?
Hon. John Zebrowski (Ret.) 21:03
I wouldn't say I objected it being done. But I look at them with a skeptical eye, let's say let's put it that way. Because if if it's an opinion, that's dealing with a well established point of law, you ought to be able to cite me the published opinion on that. So there's a quick there's a reason why it's unpublished. And it could be unpublished, mainly, just because it's cumulative to other cases that are published. But then as I said, you can always take me the publish case, then. So it's so it's not, the implication is it's not standing for the published opinion theory. But for some reason, it's not published, even though it seems to conflict with that as well. So why is it not published?
Tim Kowal 21:39
Yeah. So if you see an unpublished opinion cited to you, as an arbitrator, you're probably thinking, Okay, this either is ought to confirm some published authority, or if not, we must be talking about some area of law. That is that is unclear. This is a matter of first impression.
Hon. John Zebrowski (Ret.) 21:56
So it could have been one of these situations where it's not being explained clearly in the unpublished opinion, because the attorneys will know what the case is about. And it's not a good use of money resources. And there could be a lot of reasons like that why it's unpublished? Yeah. So you're putting up a whole new panoply of considerations that now instead of trying to resolve the cases before you and you're thinking, why was this case not published? Well, that's kind of irrelevant. See if you'll get into it
Tim Kowal 22:20
as a former appellate justice, do you think you see that issue differently than other other arbitrators who have not served on the Court of Appeal? Or do all arbitrators kind of understand that to put an asterisk next to the citation of an unpublished opinion?
Hon. John Zebrowski (Ret.) 22:33
That's a good question. I never really saw whether the people who had the experience of serving as an appellate justice look at that differently.
Tim Kowal 22:41
Alright, one other one of your other experiences I wanted to ask you about before we move on to talking about your experience as a as a neutral, you served on the Baji. Committee, which prepares the civil jury instructions from 2005. Up and I think up until the present, earlier this year, we had a discussion with another appellate attorney, colleague of ours, Stephen love. And we discussed some studies showing that jury instructions, just go in one ear and out the other of most jurors, and just the absorbency rate of jury instructions is effectively zero. I wanted to ask you the same question, as I asked Mr. Love is the practice of reading jury instructions to the jury merely ceremonial. But first, I want to just by introduction ask you, what does the bahji Commission do?
Hon. John Zebrowski (Ret.) 23:26
The Budget Committee has been in existence for something like 60 or 70 years long time. And, as you mentioned, kept currently the bad instructions. Now the big instructions had to a certain extent, not, not technically, but in practical effects been to an extent superseded by the KC instructions, but the bad J instruction is still being maintained. So there's a committee of about half a dozen of us that meet usually once every six months and go over any new cases that have come up that impact upon jury instructions, and we update the badging instructions in West Sell, sell them and people buy them and use them a lot, particularly in federal court. And so they're still alive and kicking, although I don't know if they'll last Outlast Casey, because Casey has the support of the judicial council. So
Tim Kowal 24:19
and yeah, so what is the you said that the badji is more often used in federal courts, but Casey has the blessing sanction of the California judicial commission?
Hon. John Zebrowski (Ret.) 24:29
I don't know if it's, if I would say more often, but I would say that often I see them in federal court.
Tim Kowal 24:35
So what is
Hon. John Zebrowski (Ret.) 24:36
the future? The main the main difference seems to be that the case the instructions were created with the concept of trying to make the instructions more understandable to the average person. So that's the whole point of Casey they changed the the syntax of the sentences and try to make it more understandable which is a laudable goal. Of course, unfortunately, one of the things that can happen is if you're trying to simplify something, you can just leave some things out and there'll be simpler, but we'll also be wrong. And so there's that's the risk that is posed by taking the KC approach. On the big side. It's been around for a long time. And the criticism of badji is that sometimes the technical language it gets into the instruction is a little much for a jury to understand so badly and subject to that criticism. So there's different in different cases, you might want to use different set of instructions.
Tim Kowal 25:23
And do you have a perspective on? On the question of what impact does reading jury instructions to actual jurors have on the outcome of a case now, when, as as attorneys, you know, Jeff, and my experience with jury instructions is probably when we're drafting a complaint we'll look at, we'll look at the jury instructions to make sure we have the elements, right. And then when we're preparing our opening statements and closing arguments are consulting on as embedded appellate counsel for the trial team, we want to make sure that we're hitting all of the ultimate facts to establish our causes of action or affirmative defenses. And then obviously, the judge wants to read the correct jury instructions so that on a potential appellate review, there's no jury instructional error, but that the critical moment is when the judge reads the jury instructions to the jury. And we hope we assume, rightly or wrongly that the jury is understanding them, and then actually applying the facts to those jury instructions. But like you mentioned, sometimes the jury instructions are complicated. Maybe we can make them simpler, but maybe there's no, maybe there's no denominator to too small and common. That is enough for 1212 jurors to all understand what the law actually is. What's your what's your impression of his reading instructions to a jury merely ceremonial.
Hon. John Zebrowski (Ret.) 26:40
I think it's largely ceremonial. I think you're right that the jury doesn't absorb too much of what is read to them. That's why back when I was in a trial department in the mid 80s, and computers were just coming out. This is back in the days of the IBM desktops and the Korean knockoffs and all that I got myself a Korean computer, and I started preparing my instructions on instead of today's to be written out in in on forums and the internet, and the Asians look like chicken scratching, a lot of times you get a form, and you'd scratch things out and write things that really kind of a mess, I started writing out my jury instructions on a computer. And then I would print out copies so that every member of the jury had their own copy of the jury instructions. And then we would have to read them because the law requires you to read them. And I would explain to the jury or we have to read them. But you're going to get your own copy and get to keep this copy. And anytime you want to refer to it in the course of this litigation, you can refer to it. And I think that they absorb a lot more of it when when they have their own jury instruction. That's their set of jury instructions, reading it to them, I think you're right doesn't do much good. But it doesn't one thing, I guess it corporate takes it down. And you now have a record that these are in fact the jury instructions that were read to the jury who you would think it'd be easy enough to put an exhibit sticker on and put it back in to the fall within an IC sticker on it. But maybe people don't trust that system. But of course we don't trust it for jury instruction, we probably shouldn't not be real trusting about other things as well. But in the event reading this, their eyes glaze over. And it doesn't get them anywhere. But I found that when they have their own set of instructions, they read them like like they're reading through the Bible and looking for great truth in there.
Tim Kowal 28:23
And yet, I don't. Yeah. Is that a common practice? And if not, should it be a common practice giving you handing the the jury jury instructions,
Hon. John Zebrowski (Ret.) 28:32
I assume that's common practice now, because I was able to start doing it back around 1984, or five and, and all the way up through there. Of course, the computers do much better. And also a lot easier to do now than was that. And back in those days, there was no windows, it was all DOS, you had to learn all the keystrokes, and all that sort of thing. But then once you learned the basic stuff, you could do the instructions that way.
Jeff Lewis 28:53
Your Honor, you're in your third decade as a neutral doing private dispute resolution. What are some of the most valuable things you've learned from 18 years on the bench and 23 years of ADR that you'd like our listeners to know,
Hon. John Zebrowski (Ret.) 29:07
the most valuable things I've learned? Well, I would say that one of the things that you never lost your case doing is making it too clear for the decider. And sometimes we'll get some briefs in and they're kind of long, and they're kind of convoluted, and they're going down a lot of rabbit trails, and they're not real clear. They don't seem to be real clear. And then you fast forward till three weeks later after having worked with this brief for a long time. Now you realize that the case is not all that complicated and could have been presented in a much easier format and a much easier method. And when you make something that's not complicated, complicated, you're just creating a chance to snatch defeat from the jaws of victory. So one of the things I would say is don't make it too complicated and more complicated than it needs to be.
Tim Kowal 29:57
Oh, it's great tip. That's yeah, I have I can at So that is just serving as appellate counsel, when I when I get hired by the client after after a jury verdict, usually I get the firehose of all of the evidence that was so great for my case and the jury, disregard it, and yada, yada, yada. And I think, okay, I need to get the the thumbnail version of this, let me go to the I'm going to get the transcript and go to the opening statement or the closing argument or the trial brief and see, hopefully, the the the ABLE trial attorney was able to make it to make it nice and simple. And sometimes sometimes they're able, and sometimes they're not sometimes they're all over the place where the critical issue is not covered there. It's if the critical issue is, yeah, but what are the damages, or there was all the damages? But what is the liability? Usually the weakest part of the case gets glossed over. And maybe that's for a reason.
Hon. John Zebrowski (Ret.) 30:46
I think sometimes it's a bit of economics involved. It's like the A for ism. Some famous person once said that he wrote a long, long letter and finish off by saying it would have been shorter if I had more time. That's right. And I think it's just economics, it's easy to sit down and start typing and just typing until you're done. And then send it to the arbitrator, as opposed to refining and refining and refining and refining it like you do with your appellate briefs. And then try to streamline it and target it before you send it over. Maybe the money is just not there to spend doing that. And so it is what it is.
Tim Kowal 31:20
That's right. I think that's true of a lot of practice. My office just got served with a couple 100 in a special interrogatory is and I asked my associate who to whom I assigned the project of responding to them. Are they contention interrogatory is or are they actually targeted? interrogatory is that the idea of being any said that they are contention interrogatory as I said, Okay, so if they're really, they could probably come over with a cover letter stating I would have propounded fewer interrogatory ease, but I didn't have the time. So I just sent it to my paralegal to create these shotgun contention. interrogatory is,
Jeff Lewis 31:53
your honor a few years ago that the daily Jordan Journal reported in an interview with you that you had a strong, you had strong opinions against beginning in mediation with a group meeting of all the participants. Can you tell us a little bit about your thoughts about starting mediations with a group meeting? And what kinds of cases lend themselves to actually starting at a group meeting, which ones don't?
Hon. John Zebrowski (Ret.) 32:15
Well, I was a little surprised to see that they said I had a strong feeling. I don't know if I call it a strong feeling. But I do agree with the general idea. The back when mediation was just getting started and revving up. Anybody who was becoming a mediator would go to mediation, classes, go to go to classes and have somebody teach you how to do mediation, and all the mediation courses will tell you the first thing you do is you get everybody in a room. And then you give them a little speech about what a mediation is, and what you're going to try to do. And then you start with the little, it was almost like a therapy session, we turn to Joe and you'd say, Now, Joe, the other side is claiming 123? How do you feel about that? And then Joe would tell us for a while, how he feels about it. And then you turn over here to Sam and and say, Sam, how do you feel about what Joe just said, and then Sam would come up with what he just says. And it would kind of ramble around like that and boss around the room. And sometimes they would go places that you didn't want them to go and weren't anticipating them going. So basically, I I don't mean this to say that they have having group meetings is not valuable, it can be valuable if it's used in the right place. So what I do now, and I talk with each side separately, beforehand, before I decide whether I'm going to try to get them together and ask them for their opinions about whether we should get together or not either at this point or later point, or should we have some subset that gets together? Maybe we send out a little diplomatic team of two or three people but we don't send the whole crowd over. I mean, so you have to kind of figure out where things are obviously otherwise, you may stir up animosities that you don't want to have stirred up in a mediation because they'll get in the way of settling the case. Right.
Jeff Lewis 33:52
Yeah. Interesting. And yeah, there is some value to giving some people some catharsis at some point in terms of emotionally responding.
Hon. John Zebrowski (Ret.) 33:59
Well, that's a good, that's a good point. I guess I should have prefaced my remarks by pointing out that most of the cases I'm handling are business and finance insurance and business type of cases where you do have to keep the psychology in mind, but it's not the same thing as handling a family law case or a PR or anything like that. Yeah, you're gonna get a little different approach when you have a case like that.
Jeff Lewis 34:24
And during COVID, you know, we've all been doing things via zoom, and I assume you've been doing mediations during COVID via zoom. I was wondering, did you find zoom to be effective in terms of mediation? Do you intend to continue using Zoom once COVID-19 winds down?
Hon. John Zebrowski (Ret.) 34:40
I had my doubts about it when I was getting started, but I've been doing it for a good while now. And I find that it works pretty well really. There are a few things that maybe need a little bit of finesse. Like you have to make sure you learn how to move people around from one room to another not get their own room and that's that sort of thing, but it works pretty well. One of the things that is true for mediation as well as an arbitration is that if you're, if you're handling a case that has a lot of documentation, so there's going to need to be a lot of looking at documents, and you need to make sure that either you set up a way to, to publish these documents, so everybody can see what the document is, or that you've just let everybody know before the mediation begins, that we may be looking at these 10 exhibits. So please have responded give us with you. So if I say I want to talk about the third paragraph, and exhibit 10, you'll be able to pull that right up and we're not on a 30 minute hot. Where's that document in Omaha? Right?
Tim Kowal 35:35
The point? The point, Justice broski. How do you avoid doomed mediations, I've seen mediation start, for example, with the parties opening offers just galaxies apart, I think this will never settle. This is a waste of everyone's time, and yet who come up with a settlement. And then I've seen other mediations where the parties are, there's a gap in the middle. But it seems bridgeable, and yet no one moves throughout the entire mediation and it's a bust, have you been able to pick up any clues or signs that you've learned to look out for that tell you whether a case is likely to settle or these these parties are just entrenched, intractable, they're never going to move?
Hon. John Zebrowski (Ret.) 36:11
Well, you have to remember that most cases, the statistics show most cases still do settle. Even if they don't settle at that first time you tried to mediate it. So there can be a sensible reason for having a mediation, even if you think the chances for settlement are not good right now, because it'll move it in the direction of settlement and may get the right kind of thinking started. So it's not like if the case has hasn't settled today that it's it's a failure, because the case is probably going to settle between now and the time that the case goes to trial. And it may be because of what you got started during the mediation. So you have to keep the an upbeat attitude toward it and see how much progress you can make. So I always try to make even if I can see that I'm not going to be able to make enough progress to bring the case to a complete resolution, I try to make as much problem progress as possible. So that the next time we talk, if we didn't talk again, which we tried to do, that we're starting from a better plateau to get a settlement done.
Tim Kowal 37:07
Are there any other impediments to a settlement are their personalities wonder if you've ever if you've encountered a situation where you think that a party could be brought to a settlement posture. But but maybe that party's counsel is just still obsessed with with beating his chest and sticking out of principle, wonder if you've ever come across that and there is a solution for that sort of problem.
Hon. John Zebrowski (Ret.) 37:31
That happens not infrequently there, you have to try to analyze the sort of, it's sort of like departing from the strictly logical I'm starting to analyze a psychological now and figure out who is stopping this case, from settling when it looks like it probably should sell. And then you have to dis find graceful ways of getting people apart from each other. So you can talk to somebody separately, getting getting sometimes getting people to people from one from one side of the case, one from the other side, getting them apart from the others. And you can't do that in a way that is going to antagonize the attorneys or make the attorneys think you're just trying to go around them or something like that, because they're in charge of one half of the case. And if they get their heels dug in there, they're probably going to stay that way. So it's a little bit of a less quantifiable value to try and start thinking about what somebody's psychology is. But sometimes it's the case settled or doesn't.
Tim Kowal 38:25
Right. Let's talk about your your memories and experience from the bench. Can you can you tell us some fond memories looking back at your four years on the Court of Appeal?
Hon. John Zebrowski (Ret.) 38:34
Well, that was a good experience all the way through, I had three good people I was working with. And we also would bring in pro tennis from time to time and they were all very helpful. And and I can't remember ever having an art argument the entire time that I was on the court of appeal with the people I was there with. And it's not because we didn't disagree, because at times we would disagree and people would write the sense and so forth that nobody would start calling each other names and things like that in the in the dissent, pointing out how stupid they are. And that sort of thing was all done very respectfully, and I thought it was very positive experience.
Tim Kowal 39:08
Okay, now now moving to the other end of the of the spectrum, what was the hardest thing about being an appellate justice something that when you decided to retire, you thought, well, at least I'm not going to miss that part of being an appellate justice? Well, I
Hon. John Zebrowski (Ret.) 39:21
don't know if this fits in your parameters. Exactly. But one of the things about being on the Court of Appeal is least when I was there, I you know, caseload is always changing. You have to know the current situation is caseload and I haven't talked to anybody up there for a while now about what their caseload is are like but when I was on the Court of Appeal, the caseload was such that you could easily work 24/7 never stopped working until you collapsed. And there was always more things that could be read more more time that could be spent on a case. So you always had to be determining when when is the time to shut off work on this case, move to the next case. We were talking earlier about the reason why cases are unpublished there's an example for With cases unpublished because we have the answer, but we were only talking about whether it's clear enough to be publishable when we don't have the time to decide that. So we're just going to not publish it and decided for this case and let the case go forward.
Tim Kowal 40:13
Got it. What about what about the oral argument aspect of being an appellate justice was that I've heard from other justices, that it's particularly grueling part of the job, because you really have to, you've already read everything. But now you have to be be prepared for what the what counsel is going to say during the argument to prepare to ask questions. Was that did you find that a taxing part of the job?
Hon. John Zebrowski (Ret.) 40:35
I didn't really because it always seemed to me that the amount of time that the appellate counsel got to argue their appellate case in the state courts at least was really quite small, really quite short? I mean, it was rare for anybody to get more in 30 minutes, you might get some division of 30 minutes. But that was that was just a culture that you didn't really have these long arguments. And most of the work I've done in back in chambers when you're studying the briefs,
Tim Kowal 41:03
and how, how useful Did you find oral argument? Did you find that you had you had already typically gotten to a pretty good sense of the issues and the facts from the briefs? And the oral argument was maybe maybe ceremonial? Of course, you'd listen but or did you feel that it was as something vital that that may be there, maybe, maybe counsel is just not able to get there, to get the real gist of the case off of the page, they were buried in minutiae and oral argument was the time for for them to really shine forth with their with the brightest arguments?
Hon. John Zebrowski (Ret.) 41:34
Well, I find that sometimes it's one of one of one side and one of the other the calendar would usually include some cases that after you spent a bit of time studying the brief and talking to your colleagues about it, and having conferences, and then reading the underlying cases, by the time the argument was coming up, here, we're going to go in and play Listen, but you're probably have your mind pretty much made up. But at the same time, on that same calendar, there may be a couple of other cases where you really want to hear what the argument is on a particular issue. They're the ones that get a little bit frustrating is where because of the short amount of time allotted to the console console comes prepared to talk about subject a when what you really want to talk about a subject B. And so occasionally, I've seen panels, send out a letter saying, please talk about this subject. And I think that's a very good practice, if you can induce the justices to do that, because then at least you'll be targeting what it is that they want to hear about,
Jeff Lewis 42:26
what's the secret to inducing a justice to send out a focus letter before argument,
Hon. John Zebrowski (Ret.) 42:32
or you send them a very polite letter? I'm not sure what else we can do.
Jeff Lewis 42:37
Interesting, Your Honor, if we have listeners who are getting ready to appear before you in a mediation or an arbitration, what are one or two things you would want them to know about you or the way you conduct proceedings in order to get the most out of time in front of you either on a mediation or an arbitration?
Hon. John Zebrowski (Ret.) 42:52
Well, there are a few things, I guess. So one is that my orientation toward the mediation is not necessarily to figure out what the right answer is, but rather to figure out how can we settle this case under these circumstances?
Jeff Lewis 43:08
Right. Interesting. So
Hon. John Zebrowski (Ret.) 43:11
the attorneys will, will think we're trying to refine the law and find out what the what the real outcome should be if the case were litigated. But I'll tell people sometimes, you know, I agree that you should win on on argument a, but I'm telling you, you should pay money to settle a case anyway. Because you might not win, and if you don't win, things could get bad. It's gonna cost you a lot of money. And when there are a lot of other things that go into it. And it's not, you don't always want to play the scorched earth battle to the final conclusion.
Tim Kowal 43:42
Now, justice, the broski, in in an interview you did some years back with the California legacy project, you said, of Court of Appeal opinions that when when they're done well, it produces a good body of law, that that will be beneficial to the public, but that when judicial opinions are done badly, they can cause problems. And I wanted to I wondered what you meant by an appellate opinion that has done badly? what are maybe some signs that you would look at to to to conclude that an appellate opinion is done badly? Or? Or maybe I'll ask a better question that that what kind of problems does a does maybe a poorly written or poorly decided appellate decision? Cause?
Hon. John Zebrowski (Ret.) 44:23
Well, I guess a good example would be that let's pin this case that we discussed earlier, because you get now anomalies in the law where things are not consistent. So what happens next? Now the next justice comes down the road and sees that things are not consistent, but they've got a fork in the road, they can go to the right or they can go to the left because things are inconsistent. So they, some of them may decide to go to the right, some may decide to go to the left, they come to another fork in the road where things are hit another inconsistency. So it just it just builds on itself and builds on itself until we have this large body of jurisprudence that is just followed up and it's an outlier and it's causing everybody a lot of injustice and extra expense and frustration and so forth.
Tim Kowal 45:05
Now in the Justice broski, in the 20 years since you left the bench, Have you spotted any things in the legal profession that have changed, whether on the bench or in the, in the practice of law, or both? It seems
Hon. John Zebrowski (Ret.) 45:19
to me that young attorneys don't get nurtured as much as they used to, they don't get trained as much to use was more of a seems like it's, at least among some of the larger firms seems to be almost a more Spartan approach, come out with your shoulder on it, but we're not going to train you before you go. Just go out there and fight the battle and you come back, great. Not that's the way it goes. And you have
Tim Kowal 45:41
any advice or hopes that you'd like to impart to other to legal practitioners and judges?
Hon. John Zebrowski (Ret.) 45:47
I think there's a value in this mentoring and if they not understand their economic considerations as well. But if you can afford the mentoring time, it's valuable thing to have.
Tim Kowal 45:56
All right, very good. Well, I think that about wraps up my questions just as a broski. Are there any other words of wisdom that you'd like to impart to our audience today?
Hon. John Zebrowski (Ret.) 46:05
Justin, when you come to your mediation, you should not necessarily have the mindset of being ready for combat because you shouldn't view it as combat, you should view it as a chance to use a problem solving methodology to try to get yourself a better result than you could get by fighting it out to the bitter end.
Tim Kowal 46:20
Yeah, it's a different skill set, isn't it then than winning a trial participating in a mediation I think you have to get to put down some of your arms and be prepared to come to a to a compromise and you put down your sword
Jeff Lewis 46:33
and bring your ears alright. All right. Well, that wraps up this episode, we again we want to thank casetext for sponsoring our podcasts each week, we include links to the cases we discuss using casetext and listeners, the podcast can find a 25% discount available to them if they sign up the casetext.com/calp
Tim Kowal 46:50
LP and if you have suggestions for future episodes, please email us at info at cow podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. We once again thanks our guest today Justice John Zebrowski. Thanks again.
Jeff Lewis 47:08
Thank you so much.
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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 www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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When a nonagenarian’s new 35-years-junior wife started liquidated his assets, his daughter, Lisa Royals, intervened. In her resulting lawsuit of Royals v. Lu (D1d4 Jul. 18, 2022) 81 Cal.App.5th 328., not only did Royals allege almost $1.1 million in financial elder abuse, she also sought a writ of attachment for three times that amount—apparently based on statutory penalties and attorney fees. And despite the requirement that attachments be based on retrospective rather than prospective debts, the trial court issued a $3.4 million attachment order.
The First District Court of Appeal reversed. Royals’s pleadings were “unclear what justified an attachment amount of more than three times the actual damages that Royals pleaded on information and belief.” And even after the appellate court’s request for supplemental briefing on that point, the court found “Royals’s elusiveness” to be “troubling.”
The trial court did not cover itself in glory either. The trial court “might have insisted upon an evidentiary and legal foundation” for the $3.4 million attachment request, but instead “did not question” the request “and simply rubber-stamped it.”
This is not now the attachment statutes work. (Code Civ. Proc., § 483.010 et seq.) The statutes require a sworn affidavit stating the requested amount, and stating that the amount is based on an existing indebtedness in a fixed or readily ascertainable amount. Pleading damages based on penalties and punitive damages, or in “an open-ended way” to justify an inflated damages award, cannot satisfy the attachment statutes.
The court suggests the correct way forward: “Had Royals supported her attachment request with competent proof and a sufficiently specific statement of the amount she sought to secure, her prayer for compensatory damages could be considered a claim for “indebtedness” subject to attachment, as could her prayer for attorney fees and costs, an additional mandatory item of recovery in a financial elder abuse action (Welf. & Inst. Code, § 15657.5., subd. (a)) that is expressly attachable under the Attachment Law (Code Civ. Proc., §§ 483.015, subd. (a)(2), 482.110). But a claim for punitive damages recovery is meant to deter and punish, not to make anyone whole.”
Royals got wise that the Court of Appeal was going to reverse her attachment order. So Royals asked the trial court to vacate it, which the trial court did. Royals then moved to dismiss the appeal of the attachment order on grounds that, now that the attachment was vacated, the appeal was moot.
No dice. The trial court’s vacatur of the attachment was a nullity: “a trial court has no jurisdiction to vacate, modify or otherwise change an order that is the subject of a pending appeal. (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 12, 270 Cal.Rptr. 346 [“Until remittitur issues, the lower court cannot act upon the reviewing court's decision; remittitur ensures in part that only one court has jurisdiction over the case at any one time.”].)”
Royals argued that the trial court had jurisdiction to stay the attachment order pending appeal (upon posting a bond per Code of Civil Procedure section 917.65), so by extension the trial court had jurisdiction to vacate the order as well. “This logic is flawed,” the Court of Appeal concluded. “There is a material difference between enforcement and vacatur.”
So despite the trial court’s thinking better of the attachment order, the Court of Appeal denied the motion to dismiss as moot, kept the appeal, and issued a published opinion enforcing the affidavit and indebtedness requirements of the attachment statutes, and rejected the use of attachment orders to collect punitive damages prejudgment.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
“NALA has published” Tim Kowal (Presenter), “Preparing the Excerpts of Record for Federal Appeals,” NALA (Mar. 24, 2022), This course provides an overview of designating the record and preparing the Appendix or Excerpts of Record for federal appeals. Preparing the record is critically important to success on appeal, but is often overlooked by attorneys, who may come to their paralegals shortly before the briefing deadline. Both attorneys and paralegals should be aware that the process is time-intensive. Not only that, but now that the courts have entered the digital age, the courts require the Appendix or Excerpts of Record to conform to demanding technical specifications. This is a daunting undertaking by both the paralegal and the attorney, and paralegals can add tremendous value by understanding the process and encouraging their attorneys to plan ahead.
The link to the article is here: https://bit.ly/3wO1i7A
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.