Justice David Thompson sets up the oral argument Catch-22:

If the argument wasn’t in your brief, why wasn’t it in your brief?!

If the argument was in your brief, then why are you repeating yourself?!

This is at the heart of what Justice Thompson calls the perennial question about giving an effective oral argument.

In this discussion about oral arguments on appeal, Justic
e Thompson provides the solution: Identify the crux of the case. Try to present it in a slightly different way, putting a slightly different spin, perhaps to disarm the panel.

And be ready to answer any questions.

But don’t regurgitate. And don’t come up with a brand new theory of the case.

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.

CEB has published my article, “Don’t Seek Default Without Notifying Opposing Counsel,” available at https://bit.ly/3WjAZ4m

The PDF article is here: Tim Kowal_CEB has my article, “Don’t Seek Default Without Notifying Opposing Counsel”.pdf

The article summarizes a recent case, Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___, where the plaintiff’s attorney “calculated to keep [the defendant] in the dark” about a lawsuit in order to obtain a default judgment.

If you have served a summons and complaint and the defendant has not answered, don’t get too excited. Attorneys have a duty—an ethical duty, and a statutory duty—to warn opposing counsel before requesting default. The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further.

My original blog post is here: https://bit.ly/3TGpQsl

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.

Sometimes it is hard to pinpoint what actually caused a harm, like a medical injury. But we can use the process of elimination. An opthalmologist expert offered an opinion based on the process of elimination—differential etiology, in medical jargon. But the trial court excluded it, and then granted the defendant hospital’s motion for nonsuit.

That was an abuse of discretion, held the appellate court in Siemon v. Regents of the University of California (D1d1 Oct. 19, 2022 no. A160654) 2022 WL 12083207 (nonpub. opn.). Differential etiology—i.e., process of elimination—is a valid method of establishing proximate causation, so long as the jury finds it credible.

The plaintiff in Siemon suffered injury after eye surgery. The injury was an inflammatory reaction known as toxic anterior segment syndrome, or TASS, occurring after eye surgery and resulting in inflammation, pain, and possible vision loss. The plaintiff’s opthalmologist expert opined the cause was inadequately cleaned and sterilized instruments used during surgery.

But the expert did not identify any actually contaminated instruments. Instead, the plaintiff’s expert eliminated all other variables so that improper sterilization was “the only cause of TASS remaining.”

The trial court granted the defendant hospital’s motion to exclude the expert’s opinion, and then granted the hospital’s motion for nonsuit following the plaintiff’s opening argument.

Process of elimination is a valid basis for an expert’s opinion on causation.

The Court of Appeal reversed. The plaintiff’s expert’s opinion was based on a valid method of determining causation.

“ ‘Differential diagnosis, or differential etiology, is a standard scientific technique of identifying the cause of a medical problem by eliminating the likely causes until the most probable one is isolated.... [Citation.] ... [¶] The first step in the diagnostic process is to compile a comprehensive list of hypotheses that might explain the set of salient clinical findings under consideration. [Citation.] The issue at this point in the process is which of the competing causes are generally capable of causing the patient's symptoms or mortality .... [¶] After the expert rules in all of the potential hypotheses that might explain a patient's symptoms, he or she must then engage in a process of elimination, eliminating hypotheses on the basis of a continuing examination of the evidence so as to reach a conclusion as to the most likely cause of the findings in that particular case.’ ” (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 308, fn. 6 (Johnson & Johnson).)

The plaintiff need not establish “ ‘the proximate cause of injury with absolute certainty so as to exclude every other possible cause of a plaintiff's illness, even if the expert's opinion was reached by performance of a differential diagnosis.’ [Citation.] Instead, ‘ “the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not” ’ that the product was a cause-in-fact of the disease. [Citation.] Then the burden shifts to the defendant to prove ‘the existence of an alternative explanation, supported by substantial evidence and not mere speculation,’ to defeat the plaintiffs’ explanation as a matter of law.” (Pilliod v. Monsanto Co. (2021) 67 Cal.App.5th 591, 623.)

Here, the hospital did not dispute that differential etiology analysis was valid. Instead, the hospital argued the plaintiff’s expert did not conduct a valid differential etiology analysis because he did not consider the full range of potential causes of TASS and failed to adequately rule out possible causes. But the hospital did not point to any other causes that the plaintiff’s expert failed to consider.

But the process of elimination is limited because it cannot prove negligence.

The trial court also prohibited the plaintiff’s expert from testifying that the hospital “failed” to properly clean or sterilize instruments. Even though the Court of Appeal held that the expert should have been permitted to opine that dirty instruments caused the plaintiff’s TASS injury, that does not mean the dirty instruments were the result of the hospital’s “failure.” An instrument can become dirty in the absence of negligence.

As the plaintiff’s expert acknowledged, “even if an instrument is 100 percent sterilized there could be residual dead bacteria whose wall has an endotoxin that can precipitate TASS.”

For the same reason, res ipsa loquitur did not apply here. There were other ways TASS could have resulted, or even that the instruments could have been dirty, that did not include the defendant hospital’s negligence.

The Court of Appeal reversed with directions to conduct a new trial allowing the plaintiff’s expert to testify that the TASS was likely caused by a contaminated instrument, and that generally this is a breach of the standard of care. But the expert may not testify that the hospital actually failed to properly clean or sterilize any instruments.

Takeaway:

These close legal calls on expert evidence are often made during the trial, and the parties have to go through trial, judgment, postjugment motions, and appeals before knowing whether the key evidence in the case stays in or comes out.

Here, the trial court made the call before trial began, and the Court of Appeal weighed in on the call after a nonsuit. When the parties start trial again, the plaintiff will be armed with the Court of Appeal’s observation that the plaintiff’s evidence “would be sufficient to support a judgment in [her] favor.” That counts for something.

Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

We attorneys are trained to spot patterns, but many of us are poor at spotting patterns of inefficiency in the way we practice. Ernie “The Attorney” Svenson joins this episode of the California Appellate Law Podcast to explain how lawyers can adopt “systems thinking” to make their practice more effective, efficient, and even more fun.

Ernie shares how he learned about efficiency from his judge during his clerkship who, to shave time off the “Oyez, Oyez, Oyez” ceremony, cut the last “Oyez.” And how his judge delegated the task of explaining to new clerks about the edited “Oyez.” Now THAT is systems thinking!

Too abstract? How about a taste? Here are Ernie’s “gateway drugs” to get you hooked on legal tech:

SaneBox — Most lawyers use some filtering to reduce email load, but SaneBox has really advanced filters that will find you spending less time in your inbox.
TextExpander — Everyone sends out routine emails (think: retainer agreements). TextExpander populates an complete email with a macro. (And it will getting your gears turning about other ways to automate your day-to-day.)
Automated Calendaring (e.g., Acuity, Calendly) — No attorney should be booking their own appointments.

Ernie Svenson’s biography, website, and LinkedIn profile.

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

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

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

TRANSCRIPT:

Ernie Svenson 0:00
If you do need to try some shiny objects, but unless you're really skilled at it, it's better to find people who are doing that for you.

Announcer 0:10
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis 0:24
Welcome, everyone. I am Jeff Lewis.

Tim Kowal 0:26
And I'm Tim Kowal all the California appellate law podcast is a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists, but we try to split our practices about evenly between trial and appellate courts. And we try to make this podcast a resource for trial and appellate attorneys so they can get some news or tips that they can use in their practice.

Jeff Lewis 0:44
And quick thank you to our sponsor. Our 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. And I highly endorsed the service and listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/CALP.

Tim Kowal 1:08
Alright, and our next guest Jeff is someone that that you and I talk about every now and then with with some tips that we picked up off of his podcast, we have Ernie Svenson that we're glad to welcome to the show. Ernie the attorney as he's known on the internet, obtained his law degree in 1985 from Loyola University, and thereafter clerked for the United States District Judge do Plantae in the Eastern District of Louisiana for 18 years, Ernie practice law in a big law firm, where he ultimately learned to harness technology in a way that his partners did not fully appreciate. He started a solo practice making strategic use of legal tech, and now teaches other attorneys the value of systems thinking and technology and a law firm setting. He does this through his podcast, his online community and through online courses. Today. Ernie joint joins us from New Orleans. Ernie, welcome to the podcast.

Ernie Svenson 1:59
Thanks for having me, Tim and Jeff. It's great to be here.

Tim Kowal 2:03
Now, was there anything in in that short introduction of you that I left out that our attorney listeners would be would find useful? No,

Ernie Svenson 2:11
I don't think so. That pretty much covered the gamut.

Tim Kowal 2:14
Okay. All right, good. Well, you know, Ernie, as I was telling Jeff, this is going to be a little bit of a different kind of conversation than we normally have. Jeff and I usually talk about legal cases or other news coming out of the court system here in California. But in our conversation today, we're going to be talking about how lawyers do their work, and maybe some ways that they can do it better and even be happier doing it. I'm a subscriber to your podcast, law firm autopilot, Ernie and I listen to law firm autopilot almost every week your podcast is it's invaluable to me because it frequently reminds me of two things that are so essential to running a law practice but but are so easy to lose sight of in the Hurly burly of the week. First thing that I'm frequently reminded of listening to law firm autopilot is that everything that can be delegated, should be delegated. And the second thing that I'm reminded of is that you should be doing only those things that you can do. And another another quote that came to mind when I was thinking about our conversation coming up is this quote from Aristotle that we are what we consistently do. And excellence is therefore not an act but a habit, it's quite likely that you've, you've quoted that same quote on your on your podcast, or any and what I've gotten from listening to your podcasts over the last couple of years is that you seem to believe that attorneys have something important to add to the world, but that too much of their energy is getting sucked up in pushing paper and and shiny objects. And so I wanted to get into why you think attorneys have something important to offer, what you know what sort of thing that is, and how you came to realize that most of us are being kept from our full potential. So Bernie, while you still practice law, what were the things that you enjoyed most and maybe some things that you didn't enjoy?

Ernie Svenson 3:56
Well, I mean, I came out, I went to law school thinking that I would learn to think better, I was a philosophy major, I liked the idea of exploring truth, and all that kind of stuff. But I liked the practicality of a law degree. And you know, what happens in litigation. And so I thought that that would be something that would happen when I practice law in it. And it was, you know, but I mean, the undercurrent for me and the practice of law, the thing that I liked the most was the strategic thinking that goes on there, and especially the part of strategic thinking that involves having a deep understanding of human nature. My dad was a psychoanalyst, you know, shrink guy. And so I grew up paying attention to the psychology part of things, but then there's strategy and logic and so forth. And so all those things come together, you know, in, in lawsuits and in the practice of law, and that's what I enjoyed.

Tim Kowal 4:46
Yeah, yeah. One thing I was fine with, with human nature and but I think both Jeff and I do a lot of business litigation, and it tends to be family law issues always come up even even when we try to stay far away from it. There's always a cycle logical issues at stake. And I think if someone was purely dollars and cents about it, they probably never litigate to begin with, from a certain standpoint, there's always some kind of these days. Yeah, there's always some kind of principle or there's a, there's some kind of psychological issue that I will not be trifled with, or something like that at play. So that's, that's interesting that you know that you do have to have some deep understanding of human nature in order to fully appreciate the strange profession that we have here. Is there anything about practicing law that you miss?

Ernie Svenson 5:30
I mean, well, I didn't litigation. And I think if I were to do it over again, I might explore transactional practice a bit more, but I liked litigation. And I liked the combination of it. You know, it's kind of like when they say, people like having written a book, but they don't like writing it. I liked the culmination of a trial and seeing it all come to a head and you know, the two years I spent clerking in federal court, I got to see that happen a lot without having to do the preparation. So that was nice. But, you know, if you do it yourself, it's there's something deeply satisfying. At that moment, when the jury is deciding the case, to the judge, and you got a ruling, you know, all that work. And then you get a ruling. Of course, it's best if the ruling comes out the way you wanted to. But, you know, you learned either way. So, yeah, like that moment.

Jeff Lewis 6:17
Hey, Ernie, speaking of your clerkship, you write a lot. And you speak a lot about the impact that clerkship had on your career and how it was to be a lawyer. Can you share with our audience a bit about what you got out of that clerkship? And in particular, there's a story right about about the words that that judge had you use as law clerks to open up the court for business each day?

Ernie Svenson 6:37
Yeah, well, I mean, the, you know, the overall, three things I learned or learned more about, you know, like clerking for Judge Declan Shea was, you know, he's to tell me, whenever he'd seen me roll my eyes, because we were doing something that I thought was like, you know, why are we doing this? He'd say, Well, you know, if something's worth doing, it's worth doing well. And by that he really meant it's needs to be done exceptionally well. And so he didn't do anything that he didn't do exceptionally well, we did. So therefore, we did not do anything, that we you know, we didn't have fast anything, we it was quite the opposite. And that was a good way to start out once practice. He also taught me not to trust other people to tell you the truth, or know the truth, or have the best approach, even if they were lofty people that you would otherwise, you know, tend to listen to, you know, verify everything for yourself. He's always asked his clerks, when you're talking about something, how do you know that? And that's really what he was always thinking when he dealt with people. How do you know that? How can I trust the what you're telling me is, in fact, the truth, that was a biggie, and then also be decisive? He was very decisive, he would rule from the bench in a bench trial. And that shocked the lawyers who say, Okay, let's go. And he just issued the ruling. And I think one time I asked him, I said, Well, I don't see other judges doing that. It seems like you'd be better off kind of thinking about it a little bit. Yes. Now, let me say what he is, nothing gets clearer. The more I you know, let it sit. There he goes, now, I will take something under advisement if I need to research something. And maybe sometimes I do need to think about a little bit usually, you know, and if you don't know, it's because you didn't prepare. So that those are big lessons. But the two ova story, you know, it was when I tell a lot, and that's really an example of understanding human psychology. The judge could have said to us, you know, hey, look, I'm really impatient, you know, like you wasting time. Or he could strike out the one Oh, yeah, on the card. And as he would put it, sometimes let the tom toms beat, meaning let the message go out far and yonder. You know that this is the way it is. And there's something about either sometimes you need to be the one saying, this is the way I want it done. And sometimes it's better if you let other people stay it and the story is on in my first week, I show up and other law clerks given me, you know, the tips, not only what I need to do, and there's a card on the, on the table where we, you know, Stan, when the courts being open, and it has the OEA, you know, blah, blah, blah, all that stuff. And he said, Look, you have to memorize this, and you got a week to memorize it. And because the judge didn't want to see hold the card, so you open up the court, other people have stuff to do, you're just standing there like a bump on a log, you know, you're a clerk. So this is your your job. But what the third area was stricken through. And I said, Well, so do we say three or two is now just too late. So what happened to the third one, he goes, Well, the judge struck it out. And I said, why? And then he looked at me with this glare to make sure I understood he was not joking. They said, because it saves time. So I mean, I can imagine what happened one day, the judge, you know, just hastily grabbed it and said, look, it's taking too long and he struck through it. But he you know, he knew that story was gonna get repeated. So that story along with others about how he wanted things done quickly and effectively, you know, got transmitted, and by the people transmitting it, it was much more effective than if he had said it was a good lesson.

Tim Kowal 9:51
Interesting. That's interesting story. There's a lot a lot of layers there. In terms of there's a meta lesson about about effectiveness and delegating, that he was so concerned about saving time that he transmitted his instruction about saving time through a subordinate. very crafty. Yeah. And I also like to comment, this, it sounded like a quote, when you said that your judge said something to the effect of nothing gets clearer the longer I let it sit there.

Ernie Svenson 10:19
Yeah, no, he did say that. And it was, you know, there's things like that, that he would say, and I'd say, Well, I understand that that sounds true. But is that true? And how is that true? And then I got to observe it, you know, he had like, he would, in his shirt pocket, he carried an index card. And on that index card were notes for the day, but also was anything he had under advisement. So he didn't keep things under advisement. But if something was under advisement, it was on that note card. And so he was always keenly aware of what we owed him as far as work. And he, you know, if it sat too long, he'd come and go, Hey, where's that motion now that you're gonna write, or whatever it was, and so you always felt under the gun. That was another one that was a little subtle psychological ploy, which, you know, probably wasn't purely for that purpose. But, you know, we always knew he knew exactly what was going on. And he knew, because he didn't have a lot of things to keep track of.

Tim Kowal 11:12
Let's talk a little bit about by way of prelude to talking about legal technology. Ernie, can you tell us a little bit about back when you were in big law, how your partners reacted when you tried to introduce legal tech and some ways that maybe you can make some of the processes and things that were being done around the firm, a little bit more efficient and effective by use of legal tech. But I assume that if there's any kind of low cost way to make things more effective, they embrace it with open arms, didn't they?

Ernie Svenson 11:39
Well, you know, I mean, when I went to the firm, it was a small boutique firm, and the young partners who were part of the echelon of that firm that were the forward thinking people, they did do some things that were advanced like they, the smaller firms did not pay for a Lexus subscription. Because Westlaw wasn't an exist in existence then. And they partnered up with Arthur Andersen in the building, so they could share that cost because they thought that was important. So there were things that they did, there were forward thinking. But then over time, as technology became more dominant, and it became not about one thing or two things, it became about looking at a lot of things, then they started to kind of not be so tuned into it. And I those, I could rattle off the list of things that you know, the elder partner people rolled their eyes and said, No, we'll never do that. We'll never do voicemail. Well, you know, really, you'll never do voicemail? Well, that's funny, because our clients are using voicemail, and they like it. And I will never do voicemail, we'll never do email, we'll never do computers, you know, I've never had a computer on my desk said, every one of the main senior partners until they discovered that, you know, they could use it for email and things. So it was it was always like, say no first and then given quietly, later was kind of their approach. And once I noticed that, that was the pattern, you know, I I became impatient, I started looking for the third ova to strike out. But there wasn't such a thing. So I just had to figure things out myself. And, and that's what I kind of did. You know, that's how I learned technology was I would just ask a lot of questions of the tech people in the firm, and do as much of the things that they were doing as I could so I could learn it, because I you know, I think everyone learns best by doing. So if you say no to something like Oh, no, that'll never work well, then yeah, it's never gonna work, because you're not going to do it, and you're not going to understand how to do it, you're not gonna understand what the real threats are and what the opportunities are. So I was willing to invest that time. And to me, that was a manifestation of if you're going to do something, if it's worth doing, it's worth doing well worth practicing law is worth doing, it's worth doing well. That means updating your idea of what practicing law means. And while you know where it shouldn't get bogged down in the drudgery of paper pushing or data processing, you should at least understand how it's done so that you'd have direct other people to do it.

Tim Kowal 14:02
Right. Now, that's surprising that there were attorneys who ever said I'm never going to use a computer, I'm never going to use email. Then again, even today, I'm resistant to using text message, I tend to think here's an email fast enough. How many how many nanoseconds are you saving by sending a text but one of your other mantras on on law firm autopilot podcast that you say I think daily I think it's in your it's in your opening remarks is is to avoid the shiny objects. And so I think about that too, that there's always a ton of legal tech and you could you could easily be overwhelmed by adopting you know, the the newest legal tag and finding out whether it works for you and then abandoning that trying something new or just just overloading yourself and your staff with a lot of new bells and whistles that that maybe you're not not doing the trick. How do you and so to the credit of the big firm foot draggers in terms of legal tech, they probably think that well you know, we have systems That already worked well for us. We're not going to reinvent the wheel with a bunch of shiny objects, so to speak. So how do you find that middle ground? And what's, how do you make sure that you are not violating the Mac, the age old maxim of if it ain't broke, don't fix it, while also not not turning, you know, turning a blind eye to advancements that can really move your practice forward?

Ernie Svenson 15:19
Yeah, it's well, I'm thinking when, as I prepare to answer this question, I'm thinking about a guy named Rory Sutherland, who's got a wonderful book called alchemy. And he's a marketing guy, but he, he's an outside the box thinker. And so, because the answer is you shouldn't Chase like shiny objects. But how do you know they're shiny objects unless you chase some things that turn out to be shiny? Right. So in my case, I've chased a lot of shiny objects. So I have a really good intuition at this point. For things that are, I can categorize them quickly. Like you could say, that's just something that's doing something different that you know, has already been done. And so you shouldn't switch gears to try something for a small incremental gain. So to me, you know, if it's shiny and new, that doesn't necessarily mean it's not going to pan out or be useful. But unless your instincts are finely honed, you shouldn't be messing with that. And the reason I thought of Rory Gallagher is because, you know, he's got this analogy that he calls, he says, you know, like, people say, well, is dishwasher safe? And he said, Well, you know, this is a good instruction and how to think about things that you try that are new, because the best way to find out something dishwasher safe is treated as though it is and after a year, you'll know it's either broken, or it works. Right. And that, you know, it's so that side of the box thinking there is yeah, you do need to try some shiny objects. But unless you're really skilled at it, it's better to find people who are doing that for you. And then if you can trust them, you know, in my case, I hope people will trust me and I can say, Look, this is a shiny object. Don't do this. But it's more it's more important for lawyers, I think, to forget about shiny objects, what are the things that have been around for a long time that they're still not using or doing right? Like because you if you spent all your time maximizing the benefit of those things. If then when you graduate from that, then start looking around for shiny objects. But until you finish that, then don't even bother looking for some new thing like artificial intelligence, which is amazing. But you know, if you don't have systems for your practice, if you're not good at processing email, if you're not using automated scheduling, if you're not using outsourcing, I mean, don't mess with that.

Tim Kowal 17:28
Yeah, that's one of the things I find so valuable about your podcast or any Is that is that you are trying out the shiny objects so I don't have to personally try all of them out. You kind of try out all the shiny objects and report back this one. This one is worth your while this one might work if you know if you satisfy you know, if you check these boxes and these others, you know, don't worry about them. So yeah, that's one thing I find invaluable. You're a Sherpa up the mountain of shiny objects.

Ernie Svenson 17:55
Yes, I tried it and I had the scars to prove it.

Tim Kowal 18:01
You You spoke of Rory was it Rory Gallagher's book.

Ernie Svenson 18:06
Rory Sutherland Sutherland, Rory. Yeah, I might have said Yeah, earlier because I think about the guitar player, but it's really subtle.

Tim Kowal 18:11
Okay. Yeah, put a question mark there. What other books have had a big impact on you that that are that our listeners might pick up? I know, You've had pull podcast episodes dedicated to this topic. And one earlier this year, I think that I picked up and read it. Your recommendation that is a classic that I came to late was Peter Drucker is the effective executive. And and I especially loved the parable of the stone cutters in that book where he talks about their three, three men cutting stone and one says, you know, and they're each ask, what are you doing? And the first replies, Well, I'm earning a living. And then he goes into the second guy. Well, what are you doing? I'm becoming the best stone cutter in the county. Okay, that's, that's a better response. And then he asked the third person, what are you doing? I'm building a Grand Cathedral. That's the person who is who has his why. And I love that. Love that advice. I wonder what other what else is at the top of your bookshelf?

Ernie Svenson 19:09
I mean, I guess if you know, I'm going to, if I'm going to narrow it down to one or two, I want those books that I would recommend to be very actionable. And so I would say the E Myth book, but I don't think that's an actionable book. Other than that, it makes you aware, if you read it, and just take get the big takeaway, which is that uses systematize your business, you know, it's not written for lawyers per se, but in every business that's being run, you should look at it as though it's a franchise so that you want to franchise it because a franchise business is one that has, you know, been through the ultimate dishwasher test and things haven't worked out to where they're super efficient. So you should try to be doing that. So if somebody asked me, What am I doing, you know, when I'm cutting stone, I'd be saying, I'm trying to make my practice, you know, so that I could sell it because it's not because I want to, but because I know that if that's my goal, everything else that I need to have happen. then it's gonna fall into place. Having said that, and we haven't talked about Peter Drucker, who's the ultimate explainer of knowledge work, I think that there's a lot of different things that come into play and knowledge, work and knowledge work being intangible. And the system's not having been written down about how to do it in the modern world with computers. It's a very challenging thing. So if I had to pick one book, I happen to have it right here. Michael Hyatt is free to focus book, this book is great, because it touches on all the things that I recommend, as being an essential like documenting systems. He talks about sweet processing, they're using tax expander as Tax Automation, he talks about that. But he also talks about the strategies of how to be effective, and he's a devotee of Peter Drucker as well. So I think that book is the best one for people to check out.

Jeff Lewis 20:51
Interesting. Yeah, they're already I met you beginning of the pandemic. And when I first met you, I was very skeptical about your thoughts about systems and how it could apply to law firms. I mean, a law firm is not McDonald's, and litigation is not a hamburger. But I've come around to that thinking on this topic, and I've really learned to embrace it, would you explain to our audience, what it took me so long to understand about what systems thinking is and how any lawyer could benefit from it?

Ernie Svenson 21:21
Well, I think lawyers should be inherently drawn towards systems thinking. Because I mean, really all it is, it's a way it's looking at things and saying, Okay, if this happens, then this also needs to happen. Or if this happens, then we go here and that lawyers are doing that good lawyers are doing that instinctively. The trick with systems thinking is, as with all thinking, is if you want to improve it, it's best to write it down, right, because when you can look at things that are written down, now you can work with them and see the flaws better, or come back to later and refine it. So the thinking is improved by the writing and the most nuts and bolts kind of systems thinking slash writing is documenting procedures for how to do things, which is is boring, but you know, it's it's essential. And that's another thing I learned from Judge de plush that he had a book called the Bible. But he was Catholic. He's Catholic, and he would name things, you know, he loved the whole Catholic thing. So he would call the book the Bible. And that book was on my desk when I showed up to work the first day, and he never met me and said, Hey, by the way, you know, Welcome to Section eight. Let's talk about what you're supposed to do. That was all documented. And the first time he did it was over a period of three years because he was very organized. And he was very systematic. And he because he was because of that he knocked down his caseload from being the highest and eastern district to the lowest. And he kept it there. Because he had systems for everything right now, not everything that was systematized was in the Bible, but anything that was routine that was repetitive that the clerks needed to do that was in the Bible. And if there was a rare occasion where I said, Hey, you know, this happened, I don't know what to do is look in the Bible. So I did, it's not there. All right, well, then, here's what we're gonna do, and you're gonna put it in the Bible. So that also is still gonna be the idea. Like he wasn't going to do all this work. He was delegating everything to somebody else. And even though he had high standards, he trusted that his his system, which involved other people doing a lot of the work before him was going to work because he didn't he spent the least amount of time explaining anything. And I would I would say that the scratching through though, yeah, it was part of that system, like, oh, I'll just remove this word. And that's a ninja move. That's going to get a lot of things done as well. So all of that is systems thinking to me.

Jeff Lewis 23:37
Yeah. Interesting. You know, before there was an internet or Wikipedia, he had this book that was like, what would be a company wiki today, or a John Fisher type wiki of how to do it. So he didn't have to sit and explain over and over again to a new batch of law clerks. How he does things in his courtroom.

Tim Kowal 23:53
Yeah.

Ernie Svenson 23:54
And it had it had monumental things that it hadn't minutia like I mean, you know, as you as the even clerk, Rod Clark had different responsibilities. That's common in a lot of courts. And you know, one of the clerks was responsible for keeping up the pocket parts from the books because we had books. And the other clerk, you know, the equivalent task was the water the plants. And he had a green thumb, and he could water the plants, and he knew when they needed help, but he didn't want to do that. So he would explain here's how often you need to water the plants. I was good at killing plants until I got the Section H. And then I realized, well, this is part of my job. I have a manual. Here's what I'm supposed to do. And I did it. And while I worked,

Tim Kowal 24:33
yeah, no, that reminds me of a saying that the thing was, Are you hunting antelope, or field mice? And I think this was attributed to Newt Gingrich, actually, he noted that a lion can hunt field mice, but the yield doesn't doesn't justify the caloric output, you know, so I could water the plants. I could. I could say, you know, whatever the Oh, yeah. Oh, yeah. Oh, yeah. But, you know, my time is better spent doing other things and even shaving off those pick their stories about Formula One race cars, they rebuild these, these whole things or the funny cars, what not the Formula One, you know, they rebuild these things like every every year and they they're like shaving off, you know, just a 64th of an inch off of a nut, you know, just to get that much more, much less weight on the whole thing. It's like, yeah, that's another might be another aspect of systems thinking.

Ernie Svenson 25:24
I'll give you one that applies to pellet law to lawyers writing, because I'd forgotten he taught me a lot about writing. Because everything that went out under his name, he would review with me sitting next to me and scratching through the words and watching me scratch through them, and watching him scratch to them. And one of them was, you know, it's a Louisiana law, blah, blah, blah, whatever something happened. They go now we don't need that he was in Louisiana, then you just state with the laws. And he goes, here's, here's what people know. They know, we're a court. They know we issue rulings, they know this is a diversity case, because we said in this diversity case, probably earlier. So all we need to say is in Louisiana, and that will be understood that we're talking about Louisiana diversity laws like wow, that's like, but everybody else is putting all those other words in there repetitively. But to him, it wasn't just a problem of copying mindlessly. But it atrophies your ability to think when all you're doing is looking at that. I've seen that word before. I believe that they're like he that he hated that. And he beat that out of me. Yeah.

Jeff Lewis 26:25
Interesting. Hey, so Ernie, what are some examples of some small pieces of either systems or technology that any lawyer could employ at the firm after listening to today's podcast to improve the firm, not not a notion size revamp of the whole firm, but a small bit of technology or systems thinking?

Tim Kowal 26:44
Yeah, I just want to tag on to this question. Just to note that my my team is is not doesn't easily embrace technology. And so I'm, I'm always interested for, for gateway drugs, you know that we'll get tech averse people to embrace technology get us hooked journey.

Ernie Svenson 26:59
Alright, well, so let me so gateway drugs, and what is most effective for most people are kind of two different categories. So let me start with the the easy to adopt thing that all lawyers should be working on. So I think email is a microcosm of all the problems that come into systematizing, a modern knowledge business, you're making a lot of decisions, you're collaborating with other people, you're delegating it, it's like the hub. And most people, again, will look at email, oh, yeah, I've got email, and they stopped thinking about what's going on inside of the email. So anything that can help you process email better, is what you should be working on. Some of that involves filtering. So you know, a gateway drug, there would be you Sanebox sandboxes, this tool, and I don't know anybody who doesn't rave about how amazing it is, if they needed it. Now you can set up filtering on your own. And if you're happy, that's great. But if you want to set up a filtering system, and email, it's tricky, because then you have to start organizing and managing all that. And that takes that takes caloric input and your cognitive processing. So Sanebox is artificial intelligence made simple, all you have to do is sign up for it pointed to your email inbox, it'll start holding emails and filtering some, and then you need to learn how to use it, but it's pretty easy to use. So same box, for sure everybody should use that. But that's not the only thing that you need to do, then you need to start thinking about other things. Text Expander because anything that involves text automation, is useful and important for lawyers. And because text expander works anywhere, including email, including word whatever it works anywhere where you know, a character is appear by typing with a computer, and it works on Windows, and it works on Mac. So that tool is a Swiss army knife. And if you get good at using text expander, you're going to be way more efficient, and be and you're going to output things more reliably. Because you're not well, none of us are going to be good at typing repetitive text. If I keep typing my email address, you know, one out of 10 times, I'm going to have a typo in there. Yeah, but I'll never have a typo with Text Expander. So it's not just that it saves time, it makes the text output more reliable.

Tim Kowal 29:10
And I think I started using text expander. And I find that that is a gateway drug into systems thinking because once you have a system for creating this type of email, oh, and what goes along with creating that email is now my assistant needs to send out something else. And so you start thinking in terms of systems when once you start using text expander

Ernie Svenson 29:31
absolutely like that is that's it and that trains you to think systematically and change. It trains you to think systematically about automation, but it goes beyond automation, because in order to figure out what you can automate and how you can automate it, you have to be rigorous in a very, you know, mathematically logical way about if this happens, or if I want this to happen. Can I do this? Yes, let me see. Okay, great. Oh, wait, that didn't work. Let me try it this way. So that's kind of it may feel like you're operating like a plumber and less like an architect. But you know, to be a good architect, you have to know some engineering and plumbing, right? So same thing applies with knowledge work.

Jeff Lewis 30:12
Hey, Tim, if you want to get your team excited about using tack in terms of TextExpander Did you know they do these weekly and monthly reports comparing how many times your team has expanded things and how many minutes have been saved? It's always fun to go over those that weekly calendar meetings.

Tim Kowal 30:26
Yeah, that's a good idea.

Ernie Svenson 30:28
That is a good idea.

Jeff Lewis 30:30
Ernie, was there a third example you covered? SaneBox? You covered TextExpander? I think we cut you off. There was a third example of

Ernie Svenson 30:36
automated scheduling. Automated scheduling is a no brainer. Every lawyer, every knowledge worker, everybody should be using automated scheduling. And I don't care what acuity Calendly. Those are the two biggies. But whatever it is, nobody should be going back and forth. scheduling things. And the power of automated scheduling is it has to be experienced firsthand for people to realize how useful it is.

Jeff Lewis 30:58
Yeah, it's amazing. Let me tell you about the holy grail of the convergence of text expander and automatic scheduling. When somebody says, Hey, Jeff, can we chat about something? I type in four little keys, and they get an email back with a link say, Yeah, let's chat. Here's my scheduling link below. It takes me two seconds, whereas it used to take me 10 minutes of the back and forth and they Well, I can't do Tuesday, can you do Thursday, life changing, just life changing? Um, there is a trade off. You got to be religious about maintaining your calendar and putting things on there. So people don't double book you. But it's fantastic.

Tim Kowal 31:30
Well, here a little bit, but let me mention one confounder for me, which has been scheduling more than more than two people. So if I'm trying to schedule a for example, schedule, the three of us for this podcast, say Calendly. At least the free version that I use doesn't doesn't allow that. I don't know if if a paid version allows for that. You have to go up. He got upgrade my

Jeff Lewis 31:49
man. Okay. That's why they have different tiers for people like you, they get you hooked on the on the one to one scheduling, and then

Tim Kowal 31:59
they advertise that sort of thing, because I know all Yeah, I'll write the check if, if I know what I'm getting for it. But okay, so that's, that's good to know.

Jeff Lewis 32:07
Like, imagine this being able to save like two or three spots on your calendar, pending people selecting what they want. And then once they select it, the one spot gets locked in on everyone's calendar, and the two other ones disappear. That's that's magic.

Ernie Svenson 32:20
That's magic. That's great.

Tim Kowal 32:22
Yeah, Jeff, I'm gonna lay the broadcast. Yeah, hey,

Jeff Lewis 32:27
let me say this, you know, I didn't learn anything about legal technology in law schools. When I went to law school, we were still, you know, using the books to shepardize cases. And what do you think law schools today should be teaching law students in terms of either automation technology or systems thinking? Oh, my

Ernie Svenson 32:46
God, well, there's so many things that law schools should teach that they don't that happened even before technology, like, I think persuasion should be taught in law schools, because it kind of comes into play a lot in the practice of law. And it's human nature stuff. But if we're going to focus only on technology, I would say, and of course, I know, this will never happen. But we're fantasizing, I realized, so I think database management, because I think that is what a database is, is organizing, structured data. And then if it's not structured, well, then you get, you know, text, and then you can start talking about artificial intelligence. But you can't start talking about those things until you understand how to manage structured data. And this to me, is the reading, writing and arithmetic and of the modern world, like you must we deal with data, right? And then data can become information, if we organize it and filter it to do whatever. What tool do we use that a database, and databases are, are everywhere, and like every software has a database in it. But we have a lot of lawyers don't even think about databases, they owe us word, if you ask them, What are the top four things you used? Word, Excel, PowerPoint, whatever, every one of those has a database underlying. So understanding what your options are about how to organize digital information. And then especially the structured part, because that's what's going to be easier to automate. And more reliably automated is structured data. And we are there I mean, anything that any data that's structured at this point can be automated, even if all of it doesn't really reside in the same place. Like, that's how you use like tools like Zapier to connect Cleo to, you know, fill in the blank, air table, whatever. And all that happens, because of the database and understanding databases. I think that's that's huge.

Jeff Lewis 34:32
Yeah.

Tim Kowal 34:34
Yeah. Jeff has gotten me into using notion quite a bit. And I have really embraced notion and it is, it is a more of a true database. It actually one of the stumbling blocks for me early on was was to try to understand actually, the first thing that Jeff got me on was the that was a database was airtable, which creates these beautiful reports for you if you want to track how many how many client calls I'm getting in and how many of those converted into real clients. paying clients and what are your billable hours this month? And where do they come from? And then they can turn all that data and create automated reports. It's really great. But for a while, it took me a long time to understand how is this different from Excel, because I can do reports like this in Excel. But there is something different, I haven't found a good way to explain quite how it's how it's different. It's real. It's a relational database is the buzzword, but it's hard to explain exactly what that means. But once you get it, it's really next level thinking, Yeah, it's

Ernie Svenson 35:30
awesome. For me, like when I started using this tool called case map, because, you know, that was a way to organize litigation. And I did that, you know, try it, try it for free for 30 days. And then I realized, like, wait a minute, this is like I was using before I use case map, I was using a word perfect. And I had a field and Word Perfect for date, and then a field for the name and the fact that I would sort the Date field, and I have all my stuff in a chronological order, right? So data database can do that. But a database can also say, Well, this fact has this name in it, that name as a witness over here in this witness table. And then there are these issues over here. And it's connected to these issues. So you can now start saying well show me all the issues that this witness is related to or show me all the documents this witness authored or received, and just clicking on a button and seeing all this immediately present itself. And that's for litigation. But that's to me, the best way of quickly understanding it is if you have a need to filter information that way, in litigation, you should be using a database until you do have any, you just don't maybe know it, and you should be using a database. Yeah,

Tim Kowal 36:38
that's right. It makes you so much more of a powerful advocate, when you can lay your lay your fingers easily on Oh, these are the facts that relate to this issue. These are the documents that relate to this issue. Rather than having to wade through your just entire your dumb Windows folder or your the folder on your desktop that has the entire list of documents for your case, it doesn't allow you to zoom into what are the actual documents that are important to this issue that I need to write a brief on right now.

Ernie Svenson 37:03
And it frees your brain up to focus on the things that the computer can't do, which is think about the strategy and all that other stuff. Because if you burning calories, trying to you know, find things remember things. That's not good. That's right. So go ahead.

Tim Kowal 37:21
We're both way too polite. So many of our listeners, Ernie, our appellate attorneys, and they're they're dealing with large transcripts to read and and they have a longer time than trial attorneys to craft a brief so they can spend copious amounts of time reading through these transcripts with a brief deadline, you know, in the offing 3069, even 90 days down the road, what technology or systems do you advise to you have for our listeners for how to how to go through large amounts of of transcripts? There used to be a tool I think Lexus I think it was it was similar to case map, I think it was called Text map snap. And that allows you to go to go through deposition transcripts are their court transcripts and create kind of a really relational database to Okay, here's another passage that relates to the issue of causation. And here's another pass as it relates to the issue of liability and so on. I wonder if there's is that still is that tool still around? Are there? shiny

Ernie Svenson 38:16
objects? Yeah, no, I think it is no case map is now cloud based. And I can't imagine that they would have let go of that functionality. Because it was so powerful, you would just highlight passages, and then say pump that into case map and it would it would no, it would be able to then link out to the specific passage, it would pick up the name. So there's no way they got rid of that that's too useful. But I mean, I could be wrong, but I doubt it. But you know, in general, the idea of highlighting a transcript, so let's talk about like the simplest way to do it, the transcripts going to be a document that has words, and so it's going to be had been generated by word or WordPerfect. That means it's going to be expressible as a PDF. And it's better to be dealing with PDFs for doing this than word or WordPerfect. Because they're just kind of always slipping around and re paginating you don't want that you want like you want to lock into the transcript. If it's not in a PDF form, you may get a PDF, but it will be and then you go and you highlight all the areas in that PDF for the transcript. And what you should do is if you're using Adobe Acrobat, and you should be that you can do this and Kofax, which used to be called nuance, and probably every other piece of PDF software, there's a way to say when I select the text and highlighted in yellow or whatever color you want, I want you to copy that text over into the comments area, so that I can scroll through the comments area and see nothing but that tax that I selected. And you can even make notes on this time. That's the most embryonic but powerful way to deal with transcripts. But that's a PDF skill and that's one of the things that I've been beating the drums about for a long time because PDFs are digital paper. So the more skilled you are dealing with digital paper, the better off you are because then you don't have to deal with regular paper and PDFs can do things that regular paper can't do. So yeah, highlighting and in a PDF is important. And if you're using Acrobat, you do have to go to the preferences and enable that functionality that says, copy the text over why that's not the default setting. I don't know. But you have to enable that. So you know, do that immediately feel Adobe Acrobat?

Tim Kowal 40:23
Speaking of Acrobat and PDF, that's, that's another? That's another biggie in terms of legal software. Is Acrobat the still the go to? Are there other shiny objects worth reaching for? No,

Ernie Svenson 40:37
I mean, the thing, my theory on which of these to use, and I'm a Mac user. So there's the software called PDF, pen, PDF pen pro, I think, and my lawyer by California lawyer friend, David Sparks, who is one of my North Stars of technology. He used that as practice, I believe, for the most part, and he got away with it and liked it. But I, you know, my theory on PDFs, and PDF software is, why don't you find the thing that's been the stalwart, and that's acrobat. And yes, it's more expensive than Kofax. If you're Windows user, and you don't want to pay the price for Acrobat, go find Kofax. And it does everything Acrobat does. But there are some specialized things, plugins, which most you know, 99% of lawyers are not going to ever use. But I just feel like I don't ever want to suddenly discover that I needed to use something different. Now, for me, if Kofax worked, the way that it works on Windows on a Mac, I might be tempted because it's they're basically interchangeable. But Kofax is 1/3, the cost, they don't even offer subscription. So you just want to own the software, that's the place to go. Some people asked me, you know, I'll get asked this question like, Well, what do you think about nitro and then they'll give me all their favor, and I'll go look, if you're using it, and it does everything you need to do, don't ask my advice. I'm just talking to people who are looking for either validation and what they're already using, or aren't using anything, in which case, I would say Get thee to a nunnery with PDFs, software, like Acrobat or Kofax, as soon as possible.

Jeff Lewis 42:07
Interesting, you know, already, when I first met you, I thought, this is the guy who can explain to me how to use certain software. And it took me a couple months to realize you're not the guy who really explains how to use it, cuz you can find that anywhere on the internet. You're the guy who helps me understand which software I should be picking, and how to best integrate that software into my firm. And so yeah, I know, there's some people who are so stuck on their choices, they'll never move off of what they currently is interesting. They say, let me ask you, when I started practicing law, we would attach these blue backs, it's cardboard to the back of briefs, and we would hand up brief to a guy on a motorcycle, he'd go down to court file it hopefully by 4pm. And now we file briefs with PDFs into the cloud at 11:59pm. It's a totally different way of practicing law, right? Where do you see legal technology going in the future? You attend these conferences? You follow up the legal technology, folks? Where do you see it going? In the future?

Ernie Svenson 43:04
Well, first off, I no longer thing to go to conferences is the place where you're going to find what the next big thing necessarily is. Because so much of it's a lot of shiny object noise. But I think the obvious one that anyone at these conferences would agree with is artificial intelligence. Artificial Intelligence, you know, is explained in different ways. And people can start talking about robots taking over the world. And that's not what I'm talking about. I'm talking my definition of it is that artificial intelligence is advanced pattern recognition, with automated decision making happening, and also automated action taking. And it's it's something that transforms anything that involves complex patterns, and it's going to change anything that involves that whatsoever. So therefore, it is a hotbed. Well, it's a huge opportunity in the law, because law is a hotbed of complex patterns, right. But it's lawyers who aren't paying attention think, oh, this complex patterns will never be dealt with, with lawyers. Well, you know, the simple, they weren't good at predicting where the simple patterns were gonna be taken over by computer so I would trust them on the complex matters. And so I would say the AI that is involved in writing, and I know you Jeff have heard me talk about Jasper AI, which then became Jarvis AI, which became Jasper AI, that is mind blowing tool. And I don't use it because I want to write complex things. I will use it because I'm watching the robots learn how to write things. And while I'm always going to override them, just like jujitsu partially overrode me, I'm not going to depend on them to do it all for me. But they can jumpstart the process really fast. And it's shocking what they can do. This is going to disrupt the law is already disrupting it. But so much of what we write and think about has complex patterns and, you know, structured data is easy to automate. But unstructured data with complex patterns is not easy. But that's what artificial intelligence is for. And it's going to disrupt the law.

Tim Kowal 45:03
Yeah, AI is can actually start writing briefs is that you're talking about?

Ernie Svenson 45:09
Well, I mean, it can start writing things like so all writing involves the crummy first draft, we know this, right? And nobody likes to write to me first draft. The other day, I had to write, oh, I know what I was writing about password management. And I want it because, you know, we did one of those things in the inner circle about Q and A's. And somebody asked me about passwords, and they, they said they didn't use password managers. And so why not, they told me their reasons. It's okay, gotta write something about this. But I decided to go into his Jarvis Jasper thing and see how much of it he could write for me. And I gave it because you give it a certain amount of text and give it pointed in certain direction. And it has this tool called boss mode, which if you click the button, it just starts writing. So I said, um, you know, password managers can help you because they would like it was a sentence, I didn't even use the 600 characters. I was too lazy. And so let's see if this work. Oh, my God, did it work. And I just kept hitting them keep writing because it was like writing, you know, intelligible sentences that weren't, I wasn't gonna adopt them wholesale. But there, they were appearing out of the blue. And I was thinking, Oh, that's great. That's an interesting idea, I should work with that. And then I would just take those parts and feed it back in and hit keep hitting next. And it was like, a video game. And it got to a point where I realized I'm gonna have to take over now and make it say what I wanted to say. But that part happened after about, you know, 30 seconds.

Tim Kowal 46:27
So is it taking this information? It's it's AI is writing sentences. And it's basing that off of what the your voice dictation and something else is, well, is it plugged into the Internet? Or is it doing research in the background?

Ernie Svenson 46:40
Now, the way you get started is you have to, you have to tell it, here's the title, like, here's the, you know, the point of this. So let's say I said password managers can make your life easier. And then I give it a sentence or two describing kind of what I think is going on with that, which by the way, all I did for that was I went to one passwords website and saw and said, Well, what do they say about this? Copy and paste? And then hit go and it started going? It was? Yeah,

Tim Kowal 47:07
it was wild. That's, that's incredible. That's a space to watch for? Sure. I did. I wanted to ask you. My next question was going to be about outsourcing brief writing as appellate attorneys a big part of what we do is is brief writing, it's my it's my favorite part, I think, I think probably 99% of appellate attorneys, it's their favorite part, if not 100%. It is, of course, the most time consuming part. And so sadly, every now and then I just get jammed up. And I need to, you know, give a brief to an associate to at least write the first worst. And, and, and at times, everyone else is busy. And I've I've gotten to thinking well, you know, I've got some other attorneys I do who do some contract work for me, maybe I should have them do a first draft of an appellate brief. And I wondered, Is that the right way to think about this? I don't know if if AI is ready for primetime and drafting?

Ernie Svenson 47:57
You wouldn't you know, you're not going to use AI yet. But what I think what I think the here's how I think of the structure in writing a brief and I've read lots of briefs, and I've done lots of research. And you know, one of the things that I I was surprised by, I don't know how many of the lawyers do this, but I did this and I realized a lot of lawyers don't do this. When I would go to write a brief, I would do whatever research I'd needed to just get the lay of the land. And then I'd stop and I'd say, Okay, I think I know what argument I have to make. And I think you should know that fairly quickly. And you guys probably know this, like right off the top of your head for a lot of things, right? So then you go okay, this is my argument. If you write out your argument and say now, person that you delegate this to, which I would go to if somebody says Well, I don't know where to go, I would go to a law clerk legal, that's a great place to find lawyers in the US and say, Okay, I want somebody to write my brief, but here I'm giving you direction I'm saying these are what I think the arguments are. Obviously if you find that that's true, then tell me but otherwise, you're just going and doing that grunt work of finding the cases that support whatever the arguments are, right, like that's not high level thinking. The high level thinking is knowing which of those arguments to make and in what order to make them and dealing with any of the nuances that come up because there's a sticky case or you know, that's the high level thinking but that low level stuff you know, I watched young associates come in and do that for me you know, and of course, you know, the the better they are in law school writing, the more I can rely on them, but you know, you can find those people on the internet and I would say just go to law clerk legals start looking if you don't know where to look.

Tim Kowal 49:34
Yeah, that's, that's a good that's a good idea, but it got me thinking of another something else that I struggle with and maybe, maybe, Jeff, you can tell me if you struggle with this, too. I call this the email hot potato. This is a struggle I have with delegating things. So I delegate something I send an email to an assistant or let's say, let's carry on with the example that you used about brief writing let's say I delegate it to someone at that law clerk legal here's here's the basic argue meant I need you to do the grunt work of finding the authority that supports this argument, then they're gonna come back with me, to me say a day later with, here's what I found. And then it's probably gonna sit in my in my inbox because I thought, well, I thought it was gonna take them a few more days to do this. So this is going to sit and languish in my inbox and the whole process is going to stretch out because I'm not managing my inbox as expeditiously as I as I should maybe,

Ernie Svenson 50:22
yeah, right. But we've exposed here that in your inbox, what got it wasn't an email problem. It's a decision making problem, because you're saying, I wasn't prepared to make a decision on this until a little bit later. So you either so here's the here's the decision tree, do you have time to do kick back with some additional feedback now so that that person could start working on it again? And you can go back to doing what you're doing? Or do you not have the time, you don't have the time, or you don't have the time? And you can say, okay, hey, I got your thing, because I think every email that you get from somebody, and this is a text expander slip that I have, should say, Hey, I got your email, I haven't got to deal with it. And you can, you know, create more sophistication of options of whatever you want to say. But basically, every email you get, you shouldn't be able to fire off a response that says, Hey, I got your email, because if you don't, that person is going to wonder if you got it. So that's baseline. But then you know, you work with what they gave you and you figure that out. And but you're always going to be the thing about systems, you need to be looking for patterns in your own behavior and other people's behavior, and so forth. And if you're not good at finding those patterns, look over your shoulder because computers become an up behind you who are going to be good at that. Yeah.

Jeff Lewis 51:33
Interesting. Hey, we've been talking a lot today about the operation side of running a law firm. I want to shift gears here for a little bit and talk about marketing. So I've learned a lot about marketing from you. Appellate attorneys tend to be introverts. What's your best advice for introverts who need to market their services?

Ernie Svenson 51:51
Well, I am an introvert was an introvert. And, you know, we can talk about what that means. It doesn't mean I'm shy, but you know, I don't like, I definitely didn't like wasting time going around glad handing and going to networking events, I hated that. But you do have to do a couple of things. In order to market your services, one, you got to do a good job, because you're not going to be referable if people think you don't do a good job. So that's the obvious one. But that needs to be said, then if you're good, then you want more people to know this. And what the problem with people, excuse me, and this is human nature is they forget things. They forget you exist. They forget you do that kind of work, they forget how good you are doing that kind of work, they forget how much you care about doing that kind of work. So you have to remind them, and the best way to remind them is to be in touch with them regularly, which you know, email is really great for, if you're going to have to send emails to a bunch of different people. That's that's very time consuming. But if you can send a generally useful email to a bunch of people that already know you once a month, that takes care of the job. So that's why I emphasize email marketing as the golden goose that everybody should be using to market their practices, regardless of whether they're introverts or not. But if you're an introvert, for sure, it's the easy way to do it. Yeah.

Jeff Lewis 53:06
Interesting. So we're not going to see an Ernie, the attorney tick tock general, anytime soon.

Ernie Svenson 53:10
No, because to me, that's a shiny object. I mean, and here's why it's a shiny object. I'm already tapped out on using the channels that I have. And and I'm probably not doing enough there to get you know, do what I need to do. So for me to take on tick tock means I'd have to learn the whole new system under tick tock. It's a new world, the algorithms changing, I don't have time to play that game. Now. I know lawyers, and I've had one on my podcast, he talked to me about how it helped her immigration practice. Great. You know, if it works for you do it again, you know, I'm not telling people, I'm not dogmatic. I'm just saying, if you pick pick one, if you're not doing any of them, then pick one and focus on that. For some words, LinkedIn will be really good for some Tik Tok is great. I don't really know that. I wouldn't say Twitter is really good for almost anybody. So I would start with Twitter. Facebook, could be LinkedIn, and Facebook could be and YouTube if you if you want to make videos, which is a whole nother level of sophistication.

Tim Kowal 54:11
So what's the shiny object to you might not be a shiny object to someone else that might be right or wheel,

Ernie Svenson 54:16
right. Yeah, right. I mean, sometimes the shiny object is doing it using too many of the same thing. Yeah, yeah. Wow.

Tim Kowal 54:25
Don't pile on.

Jeff Lewis 54:26
Hey, Ernie, you've been incredibly generous with your time today, Tim, and I want to thank you so much for being here and for all that you do for helping us lawyers adapt technology to our practices. It's been a really interesting conversation. Yeah. Thank

Ernie Svenson 54:40
you for having you guys in the group, too.

Tim Kowal 54:43
Thank you, Ernie. And again, we want to thank our sponsor casetext for sponsoring the podcast each week we include links to casetext we discussed using case text and listeners of the podcast can find a 25% lifetime discount available to them if they sign up at casetext.com/CALP and to our audience. If you have suggestions for future episodes or topics or guests that we should include on the podcast, please email us at info@calpodcast.com. In our upcoming episodes, look for more tips for your legal practice.

Jeff Lewis 55:15
See you next time.

Announcer 55:17
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

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A trial court hit Calvary Chapel with over $30,000 in sanctions for violating court injunctions that required the church to comply with local Covid restrictions. The church steadfastly refused to enforce the state and local rules that imposed capacity limitations on indoor gatherings, and that required face masks and the submission of a social-distancing protocol. The court enjoined the church to follow the protocols, on pain of daily sanctions.

The church petitioned the Court of Appeal for review from the contempt orders. And in People v. Calvary Chapel San Jose (D6 Aug. 15, 2022 No. H048708) 82 Cal.App.5th 235, the Sixth District agreed with the church.

Noting a string of recent U.S. Supreme Court decisions siding with California churches, the California Court of Appeal gleaned the rule that a pandemic-related public health order prohibiting indoor gatherings is not likely to pass constitutional muster if that health order prohibits church services while permitting “any other type of indoor secular activity.” In the most recent case, Tandon v. Newsom (2021) 593 U.S. ——, 141 S.Ct. 1294, the Supreme Court concluded that “[t]his is the fifth time the Court has summarily rejected the Ninth Circuit's analysis of California's COVID restrictions on religious exercise.”

Here, the public health orders imposed four types of restrictions on the church:

Capacity restrictions that prevented the church from holding gatherings indoors in excess of 100 people or 25% of capacity, whichever is less.”
Restrictions on indoor singing.
Requirements on face-masks and social-distancing.
Requirement that the church submit a social-distancing protocol.

The Court of Appeal held that the capacity restriction could not satisfy strict scrutiny, because the restriction exempted secular activities like bus stations, airports, grocery stores, restaurants, office buildings, and retail stores. “We are mindful,” said the Sixth District, “that in Tandon, the Supreme Court stated that “at-home religious exercise” was comparable for purposes of the Free Exercise Clause to “hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants.” (Tandon, supra, 593 U.S. at p. ––––, 141 S. Ct. at p. 1297.)”

In fact, the prosecution did even not dispute that the capacity limitations could satisfy strict scrutiny review.

But the court did not reach whether the other restrictions could pass muster. The court held that even if they were valid, the prosecution did not provide a record of the basis for the daily sanctions. Instead, the government “imposed a single, aggregate punishment” for violation of all of the orders. As the court found at least one of those orders was unconstitutional, the the contempt order must be reversed in its entirety.

Takeaway:

If you are interested in how the U.S. Supreme Court has dealt with church challenges to Covid restrictions, the Sixth District Court of Appeal provides a good summary. And here is the court’s takeaway:

“From these decisions, we understand the United States Supreme Court to hold that where a pandemic-related public health order prohibiting indoor gatherings has the effect of prohibiting indoor worship services, the order is not neutral and of general applicability if the public health order permits any other type of indoor secular activity, notwithstanding that secular indoor gatherings are also banned. Such public health orders are therefore unlikely to satisfy strict scrutiny review under the Free Exercise Clause. [Citations.]”

In short, the courts must be very suspicious where Covid restrictions are enforced as against churches but exempted as against secular establishments. The Constitution assumes that churches are treated as out-groups, and exemptions raise the specter of favorable treatment toward in-groups. This obliterates the Employment Division v. Smith rule that religions organizations are subject to generally-applicable rules, and restores the pre-Smith strict-scrutiny analysis.

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If an attorney files a frivolous pleading, one of the remedies that should come to mind is a motion for sanctions. But the operative statute requires giving opposing counsel a 21-day warning first, known as a safe harbor.

How long is the 21-day safe harbor? There is now a published decision to tell us. The answer, according to Transcon Financial, Inc. v. Reid & Hellyer, APC (D4d2 Jul. 22, 2022 no. E076728) 81 Cal.App.5th 547, is that the 21-day safe harbor is no less than 21 days. A sanctions motion filed on the 21st day is too early. So the order granting that sanctions motion was reversed on appeal.

In Transcon, the plaintiffs filed a complaint containing a legally frivolous cause of action and alleged confidential financial information for the purpose of harassment. The defendants served a safe-harbor letter by email, attaching a copy of the sanctions motion under Code of Civil Procedure sections 128.5 and 128.7 that they intended to file. Both those sections contain 21-day safe harbor requirements.

So defendants waited. They waited until the 21st day. And then filed the motion on that day. (The 21-day period is extended for service by email, so the defendants included that time as well.)

But filing on the last day of the safe-harbor period was the wrong move. “The moving party must file the motion “outside the safe harbor period,” not “on day one of the safe harbor period, day 21 of the safe harbor period, or any day in between.” [Citation.] In other words, the “sanctions motion cannot be filed until the 22nd day after service of the motion, i.e., after the 21-day safe harbor period expires.” [Citation.]”

The trial court was “required to deny the sanctions motions, because compliance with the safe harbor provisions was mandatory.” So the sanctions order of $7,570 was reversed.

Comment:

The opinion contained no real analysis how the shortened safe harbor prejudiced the plaintiff or its attorney here. The purpose of the safe harbor is to provide a reasonable time for the offending party to reconsider its pleading. True, the plaintiff was deprived one day of that period. But there was no mention in the opinion that the plaintiff withdrew its pleading after the sanctions motion was filed. And a review of the docket indicates the offending complaint was not withdrawn. To the contrary, the defendants filed a demurrer to the complaint, and the plaintiffs opposed the demurrer.

So where is the prejudice? The court did not say that the safe-harbor provision is jurisdictional. The court also did not say that the error defies review for harmlessness. And there was pretty clearly no prejudice. So what is going on here?

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But the plaintiff’s attorney in Shapell Socal Rental Properties, LLC v. Chico’s Fas, Inc. (D4d3 Oct. 17, 2022 no. G060411) ___ Cal.Rptr.3d ___ didn’t do that. Far from it. Instead, counsel “calculated to keep [the defendant] in the dark” to obtain a default judgment.

The Court of Appeal said the trial court’s failure to grant the motion to set aside the default was “inexplicable,” and on remand, disqualified the trial judge from hearing the case further.

The plaintiff-landlord here filed an unlawful-detainer action to evict a commercial tenant in Laguna Niguel that operates a chain of retail stores. The tenant had paid some but not all rent during the earlier months of the pandemic, and the landlord acted aggressively to collect. The tenant’s law firm asked that all communications be directed to its attention.

But when the landlord served the summons and complaint, it did not serve the tenant’s attorneys. Instead, the landlord served a low-level employee at the retail store. Service was made at 5:00 p.m. the Friday before the Thanksgiving holiday. And although the landlord had been in communication with the tenant’s attorneys for over two months, the landlord never notified counsel about the complaint.

The trial court entered default judgment, and denied the defendant’s motion to set aside the default judgment.

Failing to notify defendant’s counsel of an intention to seek default violates ethical and statutory duties.

Attorneys have a statutory duty to notify defendants of an intent to seek default. Code of Civil Procedure section 583.130 states the “policy favoring trial or other disposition of an action on the merits are generally to be preferred over the policy that requires dismissal for failure to proceed with reasonable diligence in the prosecution of an action in construing the provisions of this chapter.”

In LaSalle, applying section 583.130, the court held that “it is now well acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary's default.” (LaSalle, supra, 36 Cal.App.5th at p. 135.) As members of a profession and officers of the court, counsel had the responsibility to treat opposing counsel with “ ‘dignity, courtesy, and integrity.’ ” (Id. at p. 134.)

Here, the plaintiff’s first and most deadly mistake was not notifying defendant’s counsel about the complaint or the intent to seek default. But things got worse from there. The court took a dim view of the fact that the plaintiff served the complaint on an employee “at a most inconvenient time: after 5:00 p.m. on the Friday the week before the Thanksgiving holiday.”

The court concluded that plaintiff’s acted “in a manner precisely calculated to keep [the defendant] in the dark about what was going on and to produce a substantial possibility of a default.” The facts supporting this conclusion, the court said, were not subject to dispute. So the trial court had no discretion to refuse to grant the defendant’s motion to set aside the default judgment. (The court said that the trial court’s denial of the motion was “inexplicabl[e].”)

Practice Tip:

In appellate briefs, and especially at oral argument, attorneys would be well-advised to cede ground that cannot be won. Here, the landlord’s counsel earned no points with the Court of Appeal. The court noted that counsel’s “refusal … to acknowledge any duty to notify counsel for CFI before taking its default is even more troubling.” The landlord’s appellate brief “ignores its counsel's breach of ethics altogether….without once acknowledging the black-letter rule that an attorney has both an ethical and a statutory obligation to warn opposing counsel of an impending default.”

The court went on: “Even at oral argument, counsel for Shapell neither accepted responsibility, nor acknowledged its trial counsel's violation of the ethical and statutory duties confirmed by LaSalle.”

Ceding ground on these issues would not have changed the result. But it might have softened the harsh tenor of the opinion, and it quite likely would have spared the appellate attorneys from being singled out in the opinion.

The tenant may be entitled to restitution, even though the issue of possession was moot.

Driving the dagger even deeper into the landlord, the court noted that the tenant may seek an award of restitution against the landlord.

The landlord filed a motion to dismiss the appeal on the ground that the tenant had already given up possession, so there was nothing left to fight about. The Court of Appeal disagreed. For one thing, the landlord was also seeking damages, so that issue was not moot.

But of more procedural interest, the court noted that the tenant may still seek restitution. The restitution statute, Code of Civil Procedure section 908, provides that a person whose property has been taken under a judgment “ ’ “is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable.” ’ ” (Gunderson v. Wall (2011) 196 Cal.App.4th 1060, 1064.)

Restitution may include restoring possession to an evicted tenant. (Old National Financial Services, Inc. v. Seibert (1987) 194 Cal.App.3d 460.) The court acknowledged that this outcome in unlawful detainer cases is rare. But rare does not mean never.

And even if restoring possession is not appropriate, the successful appellant may still seek restitution in money damages:. (Beach Break Equities, LLC v. Lowell (2016) 6 Cal.App.5th 847, 854.) “[E]ven without an order from the reviewing court, the party prevailing on appeal may seek restitutionary relief through a motion in the remanded matter, rather than by filing a new cross-complaint or filing an independent action.” (Ibid.)

So bookmark Shapell Socal and consider restitutionary remedies if you are an appellant.

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Jeff and Tim discuss some recent cases to add to your attorney toolkit:

For personal injury attorneys, a recent civil-criminal crossover case dealing with victims’ right to restitution warns: the right to restitution is not waived unless the criminal case is over or the DA signs off. (People v. Nonaka, (Sep. 30, 2022, 2d Crim. B313848).)
Quashing a subpoena based on free speech gives a right to attorney fees. But caution: the court regarded the fees as purely mercenary in this case, and denied them. (Doe v. McLaughlin (Sep. 21, 2022, A161534).)
No, Zoom trials are not a substitute for real trials — not unless the Legislature says so before July 1, 2023. (Tim’s post on Rycz v. Sup. Ct. is here.)
Beware dismissing appeals, because they’re almost always “with prejudice.” (Tim’s post on Bush v. Cardinale is here.)
How to lose your appeal by flubbing the Rule 8.108 appeal extensions. (Tim’s post on Sharma v. Toyota Motor Sales USA, Inc. is here.)

We also discuss the Onion’s amicus brief in the US Supreme Court, and the California Supreme Court’s order declining to review whether bees are fish (but which the media interpreted as affirming that bees are, indeed, fish).

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

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

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

People v. Nonaka, (Sep. 30, 2022, 2d Crim. B313848).
Doe v. McLaughlin (Sep. 21, 2022, A161534).
Tim’s post on Rycz v. Sup. Ct. is here.
Tim’s post on Bush v. Cardinale is here.
Tim’s post on Sharma v. Toyota Motor Sales USA, Inc. is here.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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UPDATE: The Court granted a publication request (filed by this commentator) on November 8, 2022. See here.

A big part of winning at trial is getting your evidence in—and keeping your opponent’s evidence out. So on appeal, parties often argue that the judge made the wrong ruling when it kept your favorable evidence out—or let your opponent’s evidence in. And like with many things on appeal, the trial judge usually gets a lot of leeway on evidentiary rulings, because they are reviewed for abuse of discretion.

But not always. Ever since the Supreme Court’s holding in Reid v. Google, Inc. (2010) 50 Cal.4th 512, practitioners have watched carefully to see if a trend of more rigorous review of evidentiary rulings might emerge, at least in the context of motions for summary judgment. Reid applied de novo review to evidentiary objections made at summary judgment when the trial court failed to rule on them. (Id. at p. 535.) As the Supreme Court noted, it is hard to know if the trial court abused its discretion if it did not exercise any.

So supporters of more rigorous review have been disappointed that, despite Reid, every appellate district has published opinions distinguishing Reid and applying the abuse-of-discretion standard to evidentiary rulings. (There are only two published cases since Reid that have applied the de novo standard: Pipitone v. Williams (2016) 244 Cal.App.4th 1437, and Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206.)

And that is also what happened in Doe v. Software One, Inc. (D4d3 Oct. 12, 2022 no. G060554) 2022 WL 6901145 (nonpub. opn.), which distinguished Reid and applied the abuse-of-discretion standard to evidentiary rulings connected with a motion for summary judgment.

In Software One, Doe sued for discriminatory and retaliatory termination. Software One successfully moved for summary judgment, but then Doe filed a motion for new trial on a legal issue, which the trial court granted, thus vacating the summary judgment.

On appeal, Software One argued the trial court erred in failing to sustain its objections to Doe’s evidence. Software One had filed nearly 100 pages of written objections, raising objections to 79 portions of Doe’s declarations opposing summary judgment.

The Fourth District noted that “the weight of authority since Reid supports application of the abuse of discretion standard.” The court also noted that “application of the abuse of discretion standard is eminently sensible in light of the practical realities of evidentiary objections in summary judgment proceedings.” “The court specifically pointed to the volume of objections raised: This quantity is not unusual for a motion for summary judgment: “We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objections, without focusing on those that are critical.” (Reid, supra, 50 Cal.4th at p. 532.)”

The court went on to note that trial courts “typically rule on evidentiary objections in summary fashion, which often prevents us from determining the precise nature (i.e., principally legal or factual) of the trial court's ruling. And rulings on evidentiary objections often “involve trial courts making qualitative and sometimes equitable determinations,” which are the sort of decisions we typically review for abuse of discretion. (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1124 (conc. opn. of Turner, P. J.).)”

Comment: The court’s analysis is valid, but one still has misgivings about treating hearsay objections as discretionary. Evidence is either hearsay, or it is not—there is no discretion on that point. Now, a trial judge, having determined a piece of evidence is hearsay, may yet decide the evidence is sufficiently trustworthy for the point at issue. That would be a discretionary call. But if the trial court overruled the hearsay objection because the court incorrectly found the evidence was not hearsay, then the court did not actually exercise any discretion—and a failure to exercise discretion is an abuse of discretion.

The better approach, in this commentator’s view, would be for the appellate courts to treat this issue as one of waiver. Under Reid, the de novo standard applies only when the objection is made, and the party opposing summary judgment specifically invites the trial court to rule on the objection. This gives effect to the summary judgment statute, Code of Civil Procedure section 437c(b)(5), which already requires that evidentiary objections to be made at the hearing. So if the opposing party has filed 100 pages of written evidentiary objections, as Software One did here, and a certain subset of those are particularly important in defeating the motion, then counsel needs to take care to raise them specifically at the hearing. If the judge then fails to rule, then under Reid the ruling (or lack of ruling) is reviewed de novo.

But if the opposing party simply lets a ream of written objections stand without raising them at the hearing, then the objections should be treated not as overruled by operation of the trial court’s discretion, but as waived by operation of Reid and section 437c(b)(5).

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There is an evergreen warning in Brilliant Digital Ent., Inc. v. PersonalWeb Tech., LLC (D2d4 Oct. 3, 2022 no. B317580) 2022 WL 4716637 (nonpub. opn.) that an incomplete appellate record can doom an otherwise righteous appeal.

And there is also a reminder of a more esoteric nature about a rule that allows unsecured creditors a right to mandatory intervention.

In Brilliant Digital, Amazon held a $5.4 million judgment against PersonalWeb from an earlier lawsuit. In that earlier lawsuit, Amazon had won the judgment for its attorney fees in defending against PersonalWeb’s unreasonable litigation tactics.

Then came the lawsuit between Brilliant and PersonalWeb. Brilliant Digital sued PersonalWeb, claiming some $19 million based on promissory notes. But something was a little fishy about the litigation. Brilliant sought a receiver against PersonalWeb, but PersonalWeb did not oppose it. Brilliant also sought a preliminary injunction, and PersonalWeb stipulated to it. Of relevance, the injunction stayed all PersonalWeb’s judgment-holders from enforcing their judgments. This meant Amazon could not enforce its $5.4 million judgment against PersonalWeb.

This was too much for Amazon to take. Amazon moved for mandatory intervention under Code of Civil Procedure section 387(d)(1)-(2). No one opposed the motion. Intervention is to be “liberally construed in favor of intervention” (Crestwood Behavioral Health, Inc. v. Lacy (2021) 70 Cal.App.5th 560, 572), and the statute applies where the intervenor has a “sufficient interest” in the action, and the action would impair the intervenor’s “ability to protect [its] interest.” (Id. at pp. 572-573, fn. omitted.)

But the trial court denied intervention, on the ground that a creditor normally does not have a “sufficient interest” unless the creditor has a lien or attachment on the debtor’s assets, or the case falls within the exception in Continental Vinyl Products Corp. v. Mead Corp. (1972) 27 Cal.App.3d 543. The Continental Vinyl exception is for cases in which a debtor colludes with a nominally adverse party to litigation to avoid the intervenor’s debt.

Unfortunately for Amazon, it did not adequately brief Contental Vinyl.

An unsecured creditor may intervene where the parties are colluding against the creditor.

But the Court of Appeal reversed. The Court of Appeal agreed that Amazon had not adequately argued Continental Vinyl in the trial court, but the court declined to overlook the fact that the exception applied here given the obvious collusion between Brilliant and Personal Web.

What really drove home the collusion was the fact that although Brilliant was claiming $19 million in unpaid debt against PersonalWeb, Brilliant was still offering to lend an additional $1 million to Personal Web. And the purpose of that loan was to fund litigation against Amazon. And that loan, would be secured by “receiver’s certificates” issued by the receiver—the receiver appointed on Brilliant’s motion unopposed by PersonalWeb.

These facts amounted to “collusion … ‘likely to result in injustice’” and thus establishing the Continental Vinyl exception, allowing an unsecured creditor to intervene.

The appeal was nearly lost for record defects

There are two points of appellate procedure worth noting.

First, why didn’t the Court of Appeal issue a writ of supersedeas? At the outset of the appeal, Amazon filed a petition for a writ of supersedeas to stay the collusive litigation pending the appeal. The criteria for supersedeas were met here: Amazon ultimately prevailed, a stay would have caused no cognizable prejudice to the other parties as they were engaged in collusion, and the lack of a stay threatened to moot or undermine the purpose for which Amazon sought intervention.

Yet the court offered no reason why it denied the petition.

The second procedural point of note is that Amazon almost lost this appeal by failing to provide a complete record. As noted above, the court pointed out that Amazon did not adequately raise the Continental Vinyl exception. In fact, Amazon only raised the exception in the trial court by way of a supplemental brief. But then on appeal, Amazon did not even include that supplemental brief in the record!

The court gave Amazon a big assist in this regard. The court noted that the supplemental brief was missing, and directed Amazon to file it with the court. At that point, the court also noted that Amazon had failed to include the underlying motion to intervene, as well as the reply brief and the complaint-in-intervention. Amazon then filed a motion to augment, which was granted.

Fortunately for Amazon, no respondent's brief was filed. Had the respondents filed a brief, Amazon’s record defects may well have been unsalvageable by the time they were discovered.

This is why it is critically important to review the appellate record early in the appeal to ensure completeness.

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Before Justice David Thompson left the bench in 2021 to become a private neutral, his colleague Justice Bedsworth called him “hard-headed.” And compassionate. But hard-headed? Justice Thompsons explains what Justice Bedsworth probably meant by that: “I say what I mean,” and tends to be direct—particularly at oral argument.

Justice Thompson discusses his more stringent judicial philosophy when it comes to publishing opinions, and granting writ relief. But he does favor tentative opinions and the use of focus letters to make for more effective oral argument.

Justice Thompson also provides some hard-nosed advice to lawyers:

On writ petitions: If you don’t convince the panel in the first paragraph, you’ve lost. (But some justices might be more lenient.)
On briefing: Get the basics right. Follow the Rules of Court. Explain how the trial court’s error resulted in prejudice. Acknowledge the flaws in your argument. And above all, be true to the record.
On using “signposts” in briefing: Transitions between sentences, paragraphs, and thoughts are the way good writers hold their reader’s hand through your brief. And “moreover” is a substandard signpost.
On doomed appellate strategies: Rearguing the same theory that lost at trial.
On settling on appeal: If the case hinges on a key legal issue, a neutral with experience on the appellate bench may soften a hard position and help bridge a previously insurmountable gap.
On oral argument: Never waive. At least show up and offer to answer questions.

Justice David A. Thompson (Ret.)’s biography and LinkedIn profile.

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

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

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Court of Appeal press release on Justice Thompson’s retirement.
Huerta v. Santa Ana, in which Justice Thompson dissented from an opinion affirming a summary judgment that no reasonable juror could find a dangerous condition that resulted in the tragic deaths of three girls on Halloween night.

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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CEB has my article, “Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict,” about Kline v. Zimmer, Inc. (May 26, 2022, B302544) ___ Cal.App.5th ___. Here is the link: https://bit.ly/3bqglfY.
The PDF article is here: Tim Kowal_Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict.pdf
The case involved a trial error in which the judge excluded the defendant’s expert to rebut the plaintiff’s expert on causation. The trial court excluded the expert because the expert’s confidence in the opinion did not exceed 50% likelihood.
The Court of Appeal reversed. A defendant’s expert doesn’t have to prove 51% likelihood. The 51% threshold is the plaintiff’s burden of proof, not the defendant’s. And where the excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” This was a structural error, requiring automatic reversal.
My original blog post is here: https://bit.ly/3tb7OU5.

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