Matthew Strugar knows something about defending protesters threatened with legal action, even jail — because he used to be one of them. Drawing from his activist background, including defending animal rights, Matt talks about how civil-harassment restraining orders are abused to squash speech rights, though the anti-SLAPP law can still come to the rescue. Matt also talks about why protests outside private homes are still protected, even though judges don’t like it.
Matt then mediates a fight between Jeff and Tim about whether anti-SLAPP fee awards are automatically stayed on appeal.
Matt Strugar’s biography and Twitter feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
TRANSCRIPT
Matthew Strugar 0:03
Would you say that the Montgomery Bus Boycott was about getting Miss parks or $15 dollar fine bath? Or was it about an a larger issue?
Announcer 0:12
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.
Tim Kowal 0:26
Welcome, everyone. I'm Tim Kowal.
Jeff Lewis 0:28
And I'm Jeff Lewis. The California appellate law podcast is a resource for trial and appellate attorneys. Tim and I are appellate specialists, but both our practices are split about even between trial and appellate courts. In each episode, we bring our audience practice tips and legal news they can use in their legal practice.
Tim Kowal 0:43
And welcome to episode 41 of the podcast. Before we go a quick thank you to our podcast sponsor casetaxt casetax is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/ca lp.
Jeff Lewis 1:09
And today we welcome to the podcast attorney Matthew strew gar Tim, have you ever received a postcard from an animal thanking you for legal work you've done?
Tim Kowal 1:18
I will not have to roll my eyes back into my head trying to remember if I have no The answer is no.
Jeff Lewis 1:24
Our guest today received a postcard from an animal came to my attention. I read some articles in November of 2021, about him receiving postcards from Wales and he had been involved in litigation against SeaWorld regarding animal rights and years after the lawsuit ended. He received a series of vintage SeaWorld postcards hand written by whales and other sea creatures that can improve his legal work. In addition to animal rights litigation, our guest has litigated prisoner rights cases, Disability Rights Cases, police misconduct cases and an area near and dear to my heart, anti slap cases. He does not identify himself as an appellate lawyer. But he's argued before the California Supreme Court and the California Court of Appeal in important free speech cases. Most recently in June 2022. He argued an anti slap case before the California Supreme Court in geyser V. Coons. So Matthew, welcome to the podcast.
Matthew Strugar 2:17
Thanks for having me, you guys only a recent listener, but I've already picked up lots of helpful tips in my short time. So that's fun.
Jeff Lewis 2:25
We're thrilled to have you here. Tell us Is there anything about your practice or yourself that I might have left out? Regarding who you are what you do?
Matthew Strugar 2:33
I have series of a bunch of cases that are getting some attention about sex offender registration for people with pre Lauren's First Texas sodomy convictions that I think is the only other thing I would add to that. So you know, people talk a lot of smack animals in kind of like sexual deviance. That's my those are my practice areas. Got it? Got it.
Tim Kowal 2:51
Are there still people wasting away with Lawrence v. v. Texas, pre Lawrence v. Texas convictions
Matthew Strugar 2:58
who thank you for asking. There are still three states that require sex offender registration for people with pre Lawrence sodomy convictions. Those are Mississippi, South Carolina and Idaho. And there are about 26 states that still will require registration for people with convictions from those states. So it's it's probably not a ton of people enrolled. But it's kind of a widespread problem.
Tim Kowal 3:20
That's very interesting. We just covered what was it the profit, profit 36. And I get the number wrong the case where miners need to get tried in in juvenile courts, and that that got opened up recently to be retroactive to a now 40 something year old convict. And I wonder if it was so sweet, Jeff, and I covered that on the on the show about how that can happen that a 40 year old with a final judgment can can get a finding that the judgment suddenly becomes non final because he had successfully petition for habeas on a sentencing issue. And now it goes back on the prop 56 issue about whether the civil or the criminal court rather than the juvenile court ever had jurisdiction.
Matthew Strugar 4:02
Listen to that episode. And it's, you know, that sort of finality issue is pretty interesting. We have sort of a similar issue through tech versus Humphrey as to whether people can come in, you know, for 3020 30 years after 30 years after their convictions and sort of say, well, now the courts consider it protected and sort of how does tech interface there and we have two cases pending before the ninth circuit that argued back in May that that, you know, should be coming down the next year that will answer that those questions.
Jeff Lewis 4:29
Are you sure you're not an appellate lawyer? I do a lot of appellate work.
Matthew Strugar 4:33
This is gonna be you know, next. i You and I both are up in front of the first district and next week. It'll be my fourth appeal argued in eight weeks. I you know, I didn't think I was much of an appellate lawyer, but I've now argued for the DC eight for the Ninth Circuit's and you know, up and down in California, so I don't identify as one but I seem to be doing a lot of
Tim Kowal 4:51
that these days. It may be time to update the resume.
Matthew Strugar 4:54
Get that Specialist Certification like y'all
Jeff Lewis 4:56
got don't tell anyone but it's the best, best type of legal Practice. Alright, hey, before we jump into some of your legal accomplishments, can you tell us a little bit about your life and employment that led you to become a lawyer? Sure.
Unknown Speaker 5:10
I mean, just growing up, I sort of had a bad personality. So my mother always told me I'd be a good lawyer. I think she meant it kind of derisively. And then I grew up in the sort of punk rock scene in Richmond, Virginia, which was very political in the 1990s. Mostly, I radicalized with a group called food, not bombs, which are usually punks, and sometimes hippies, who will take sort of discarded food at grocery stores, cook it and then serve it to anyone who's hungry in the park on Sundays, usually, at least that's when it was in Richmond. And you know, the when the cops started trying to tell us we couldn't feed people discarded food, basically, the leftovers of capitalism, we couldn't redistribute them, it sort of what radicalized me, then in the late 90s, it became part of the sort of anti globalization movement that a lot of the left was involved in, then got arrested a number of times was always sort of helped out either criminally or civilly by the National Lawyers Guild, which is a bar organization I've been a part of ever since. And, yeah, all that just kind of led me to law school where I just wanted to get into different types of movement lawyering, be it animal rights, which is very close to my heart, or, you know, any other kind of just social justice movement.
Tim Kowal 6:12
So pretty much the standard path to the legal career. I think there's a lot more people, you know, there's
Matthew Strugar 6:19
a lot, a lot of us out there. But yeah, not a standard path. That's true. Yeah.
Jeff Lewis 6:23
Tell us a little bit about the National Lawyers Guild, you know, when when there's TV coverage of protests, and we see people running around with bright green hats on, can you tell us what those people are doing and a little bit more about what the National Lawyers Guild does?
Matthew Strugar 6:38
Sure, National Lawyers Guild was the very first racially integrated Bar Association's founded, I think, in the 1930s by a bunch of old, you know, you know, 100, year ago radicals on the founding principle that human rights are more important than property rights. Basically, the Florida School just kind of sees itself as the left left wing of the legal move of the legal world. And the green hats are our legal observer program, which we have nationwide, which basically sends out people who are trained, usually lawyers or law students, but not always, when people are trained to kind of observe law enforcement reaction to protest the sort of make sure, you know, just to observe, make sure that the police are sort of respecting first amendment rights and has the right to assemble and they'll they'll gather notes, sometimes write reports, and a lot of times use the kind of information that they gather to either set up or, you know, he uses evidence in civil cases,
Jeff Lewis 7:35
in civil cases, or if if any protesters are prosecuted criminally, they can also be used defensively. Right? Correct. Yeah. Yeah. Interesting. All right. Hey, I want to ask you about two or three of your, your big cases that I found really interesting. But before we jump into that, what do you think your clients or your opposing counsel might say, is unique about you, or the way you approach your legal practice?
Matthew Strugar 7:58
Yeah, no, it's just opposing counsel. But I get told by a lot of people, your practice is all just the fun cases. People tell me, you know, when I was talking about starting a solo practice, somebody said, Well, you know, you gotta do employment law or something, because you just want to do this stuff, all the rest of us do for, you know, for fun, you know, you got to have something that sort of pays the bills daily. And you know, I'm six years in a little bit more of the solo practice. And so far, still just doing the cases everyone else thinks are fun. So I'm really lucky because I get to sort of I get enough calls that I can pick and choose my cases, and almost every single case I take is close to me political art, you know, close to my heart politically in some way. So I get to do sort of a radical legal practice or movement support, and and still be choosy about what I take and what I don't take a
Jeff Lewis 8:46
lot of you really only been on your own six years. Yeah,
Matthew Strugar 8:50
I left the PETA foundation in 2016.
Jeff Lewis 8:53
Wow. Okay. All right. You've done well. Hey, let's talk about the geyser case. That was one that I was fortunate to participate in a moot with you about? Tell us what the case is about what the California Supreme Court's gonna decide and why why any lawyer should care about it.
Matthew Strugar 9:10
Sure, the geyser case involved a family Kamal who lived out in Rio Alto and they lost their longtime home to foreclosure and it was bought out by the nation's largest fix and flip operator Wedgwood and Wedgwood the family of wanted to stay in the house so they got together with the Alliance of Californians for community empowerment action also known as ace which is a large housing rights organization in California. And together with ace they had like kind of an occupy a style protest on the front lawn of the house to try to stave off the sheriff's from evicting people that got picked up by law Pinyon. It was written about a number of times, and they went and they had protests in the actual offices of Wedgwood and Wedgwood sort of agreed to negotiate with the family and then didn't really negotiate with them all that much. Eventually evicted them. And the night that they got evicted about 30 people showed up outside the city. He goes home and had a protest from about nine to 10. There were police officers there observing everything. They didn't give any orders to disperse. They didn't give any instructions. They didn't give any warnings that nothing. And then the CEO hit, you know, CEO, Mr. geyser hit the housing arts organizer for Ace and the mother and father, the family with civil harassment restraining orders, saying basically, you know, you can't protest outside my house. So we found that I slapped motions, because we thought that was speech in connection with an issue of public interest in a public forum. So E three, and E for the statute should apply. But the trial court found that there was no issue of public interest saying this was just a purely private dispute between this family and this company. There's no evidence that the larger public cares. And we said, well, you know, there's been this media coverage in LA Pinyon, and Huffington Post and other places, and he said, No, no media interest doesn't convert a private, you know, some something that's private, a private dispute into a public one. So we went up to the Court of Appeals, the Court of Appeals sort of affirm that and a split decision, went to the California Supreme Court Supreme Court vacated, remand it sent it back, they basically issued that same opinion again, sorry, yeah,
Jeff Lewis 11:11
did they the when he went up to the Supreme Court the first time, that was right around the time that the Supreme Court had issued the film on case and the Supreme Court asked the court of appeal to reconsider your case in light of film on right.
Matthew Strugar 11:25
That's right. And then film on film on basically says what context matters about speech. So first, you take what the issue is, and then you have to find out whether it's in connection with that issue. And you do that by looking at purpose, audience and speaker. So we went back and we said, listen, the audience was anyone who listened to the public writ large, the speaker wasn't just the family, it was 30 people. The purpose might have been to get the whole back. But it was also to, you know, call this guy a scoundrel, and it was even more to call him a scoundrel, because the eviction already happened. So getting the home backs was, you know, sort of a Hail Mary at that point. And when we went back down, you know, the dissent, the judge would dissented the first time sort of asked the attorney for Mr. geyser, would you say that the Montgomery Bus Boycott was about getting Miss parks for $15? dollar fine back? Or was it about a larger issue? And that's, I mean, that's really what it comes down to. I mean, they they ruled against me again, at the court of appeals against putting to one and we went up to the Supreme Court on the issue of basically, how do you decide what the issue is? And should you defer to the moving defendants framing of the issue? And I think that's important, because it really can be the whole ballgame. If, if a trial court says no, this is just a, you know, any dispute can basically be characterized as a dispute between individual parties, or, you know, have a broader issue again, like think of something like Rosa Parks, or, you know, the John Scopes Monkey Trial set about what one guy teaches in his classroom, or is it about the origin of human life? So really like what level of generalization you set the issue at will determine whether the statute applies in almost every circumstance, if not every circumstance. So
Tim Kowal 12:57
the you mentioned that, Matt, when you were describing the case, and you mentioned all the groups that were involved on on either side of the issue, I was I was a little bit lost, because I just skimmed the case yesterday, and I thought it was just all about the way the opinion made it read is that it was just a dispute between geyser and the Coons, you know, I didn't know about these other groups from reading opinion. Maybe I have to maybe they're in the footnotes or something like that. And I didn't make it down there. Well, it's interesting. Yeah, it is. It is sounds like a bigger issue.
Matthew Strugar 13:26
And what's interesting is Mr. Cruz is actually the housing organizer, the family that calls the lead defendant is a housing rights organizer. He's not the family. I mean, if it's a purely personal dispute, purely has to do some work there. So you know, what does that mean? Why, why sua housing rights organize over a supposedly purely personal dispute? I mean, this guy, guys are also put out press releases about that ran a hit piece in Breitbart News against ace time, and Hillary Clinton and George Soros. I mean, there's just they were working the press even more than my side ones, but then sort of saying, just stay on. No one cared about this. So it'll be interesting to see what the court does. I felt good about the argument and to do the right thing.
Tim Kowal 14:05
What was the issue? Just quick question. This may be ignorant, but is the was the issue of the venue of the demonstration, an issue the fact that it was outside or a private residence?
Matthew Strugar 14:15
There's two answers to that. The formal answer is no. That's a step two issue. The real answer is yes, that's absolutely what's going on here. Judges don't like people showing up at people's houses. So they'll bend over backwards to find that that there's no anti slap, you know, prohibition on suing people for doing it. There was no you know, under frisbee versus Schultz, the Supreme Court said you can prohibit demonstrations outside of residences, but there was no such ordinance in Manhattan Beach. When they sued my clients. We you know, said your remedy is with your legislature, not with the courts. He then went to the legislature went to the Manhattan Beach City Council who you know, voted him down three to two and didn't pat you know, fail. It's such a prohibition so even to this day. In Manhattan Beach, there's no there's no prohibition on residential picketing. But, you know, judges still don't like it.
Tim Kowal 15:07
Do you think the legislature should step in there? If that is a legislative issue? Do you have any qualms about picketing, demonstrating in private neighborhoods?
Matthew Strugar 15:16
I've done because it was a much used tactic by the animal rights movement in the late 90s. In the early 2000s, I think I've probably done more residential picketing cases than maybe almost anyone you know, but that we always say, in those cases, you know, the the remedies with the legislature, I, you know, I think can come, I think it kind of creates more problems than it solves sometimes, because most of these, most of these ordinances just say, you can't be within 150 feet, 250 feet of the residents. And practically, that just sometimes puts people in front of other neighbors who have no connection to anything, which is, you know, it's you know, it's kind of messy. And in these cases, you know, even frisbee says, You can't prohibit people marching through the neighborhood. It's just focused residential picketing that can be prohibited. So I don't know that it really it's really like a, the solution is any better than then the problem?
Tim Kowal 16:05
Yeah, it does seem like it gets a little bit closer to the civil harassment restraining order. I see. That's how the dispute started is that there was a restraining order issued in the first instance that followed by the anti slap,
Matthew Strugar 16:17
right, yeah. But you know, I would say, of course, if there's no prohibition on targeted residential picketing, then under the civil harassment, statute, 27.6, constitutionally protected activity can't be the basis for it. So I think in any instance, where they were, someone tried to move for a self assessment restraining order, where there wasn't already a residential picketing prohibition, you know, you really risk getting hit with an anti slap motion under 83 or 84.
Tim Kowal 16:42
So because you you litigate in, in what you call the fun cases that they have, have some political connection aligned with, you know, issues that are near and dear to your heart. Is that, is that the secret to getting review in the Supreme Court? Because you've, you've gotten out there a couple of times? And is it because you're just the nature of your practice selecting these fun cases that have just been they're intrinsically interesting, they're politically interesting. Is that why the Supreme Court is, is given you the nod a few times here?
Matthew Strugar 17:11
I think that really helps. I think, also, you know, the the mind run of anti slap motions involve just things that have nothing to do with public parks are very little to do with public participation. I think the courts are pretty frustrated with that. And I think that's why, you know, maybe I lost is that there's a lot of overcorrection I think the other way sometimes, so when you bring what too many people would sort of seemed like the paradigmatic slap case, and courts find that it doesn't apply. But that does sort of, you know, raise some eyebrows in the in the California Supreme Court, at least, I hope. I mean, in both cases, my opinion was unpublished, and people told me, I had no chance of getting a getting a grant on an unpublished opinion, you know, both both times I got it. So I do think that that that kind of helps and, you know, just really searching for developments and splits in authority in different ways courts are doing different things and how that can play out and really just sort of hammering that. I mean, the this issue of should you defer to the, to the defendants framing of the issue when identifying what the issue is, is something that the dissent had noted, in my case that and said, well, film on sort of suggests you should do this, but courts aren't doing it and kind of gave me a little bit of a roadmap to the to the petition for review. So I think that kind of stuff, always, you know, courts are looking to not do error correction, but solve solve problems that are going to apply to everybody. And this is basically fundamental to every edits that motion under e three or E four, which is where most of them are it
Jeff Lewis 18:34
sounds like the secret is make sure there's a dissent that writes you have a roadmap to get into Supreme Court.
Matthew Strugar 18:40
This sense really, really helped. I also think that my dissenting justice went to law school with two of the justices or then two of the Venn justices. Where's that, but all right, that helps us out, buddy. So that helps.
Jeff Lewis 18:54
All right. Hey, I want also want to ask you about this case, arising from the Fourth Circuit, white coat waste project versus the Greater Richmond Transit Company. Tell us a little bit about that case, and how you got involved. And tell us about it.
Matthew Strugar 19:08
Yeah, as a case against the public transit operator in my hometown, Richmond, Virginia. And it's basically I've done a series of these cases, as my, you know, maybe six or this one wasn't, but now six or seven cases about advertising on buses. So maybe not the most important issue in the world. But basically, those are run by government. I mean, we both municipal transit operators aren't governments. So the advertising is a forum, it's usually a non public forum, although, you know, maybe it's limited public forum, something like that. But But forum analysis applies. So then the question becomes, you know, is it applied in a reasonable and viewpoint neutral way and in Richmond, they were allowing in all kinds of ads about vice presidential debates and ads, you know, for dog rescue saying don't stand for animal cruelty. But when my clients wanted to run an ad criticize doing some experiments on beagles at the local veterans hospital. They said no, we deny this as a political ad. Hey,
Jeff Lewis 20:07
can I ask were these like gruesome photos that were we put up or what was the ad
Matthew Strugar 20:12
is a picture of an adorable Beagle behind a series of bars like the Beagle was in jail. There was a license. There was no there was what was completely anodized. So were you
Jeff Lewis 20:22
involved at the trial level? Did you file the papers at the trial level? Yeah, that
Matthew Strugar 20:26
was my case, from the trial level. We, you know, the Greater Richmond transit company said, Well, we can prohibit political speech based on Cydia, Shaker Heights versus Lehmann, this old case from the 70s and other the Supreme Court where municipal transit operator prohibited candidates speech and it was evenly applied at all times. But then the question kind of becomes once political sort of leaves the candidate or you know, ballot measure realm, you know, what, what counts as political and grt C's designee testified? Well, you know, Nike wanted to run an ad with Colin Kaepernick, I'd have to investigate who Colin Kaepernick is this, you said that, you know, the army could run ads, but if an individual a peace activist wanted to run an ad saying there shouldn't be armies, you know, they couldn't do it. So basically, you know, argument was both its viewpoint and it's not capable of reasoned application, because political almost mean anything. And we were lucky enough, we wanted the trial court as applied, but the district court said, well, we can't i can't invalidate this facially because the Supreme Court said these were okay. And Lehman. So then grTc appealed, I cross appealed on the facial invalidation. And with a George W. Bush, Trump and Clinton panel, I prevailed both on affirming the as applied and valid invalidity. And I also got it fit to clarify facially unconstitutional as not capable of Reason. Reason application.
Jeff Lewis 21:48
All right. And has it gone up to the Supreme Court did the other side seek review,
Matthew Strugar 21:55
they didn't seek review, they just slipped to the fees last week, which is really nice. And it's good, because there was a similar case out of Pennsylvania, where ACLU did that case, and my defendant grTc filed an amicus in support of cert, the Supreme Court didn't take cert there. But I thought that was an indication they would in my case, if I won, but I thankfully they didn't.
Jeff Lewis 22:17
All right, so that case is done. That case is done.
Tim Kowal 22:20
So now, as a result, what the transit authorities have no discretion to review, or is there is there going to be a new is that to the legislature or the municipality, whatever it is to to set up a new standard that has more capable of reasoned analysis.
Matthew Strugar 22:38
So there are 13 prohibitions. There's like a prohibition on religious speech and sort of disparaging speech semantics. Some of those also have some issues with them, but they don't apply to my advertisement. So I didn't challenge them. So grTc can still enforce all 12 of those. It's only the political prohibition that they can't and they're free to go and sort of pass a new more tailored, whether that be candidate invalid advertising or something else version of the political ad prohibition, just the the existing version that's sort of unmoored from any definition of political that is facially invalid. Yeah.
Tim Kowal 23:11
So the grounds of it to political is no longer and available grounds for restricting speech. That's right. Yeah. Makes sense.
Jeff Lewis 23:20
That's what I thought. Hey, yeah, hey, Matt, one of the recurring arguments, Tim and I have has to do with the award of attorneys fees and anti slap motions, I do a lot of anti slap motions, mostly representing the defendants. And oftentimes, when you win as a defendant, you get a big feel or the other side appeals, you start enforcement of that award. It sometimes cuts the appeal short and the case concludes once the plaintiff figures out, Oh, I gotta pay this pending appeal. So he and I have gone around and around around about whether or not these awards of fee should be automatically stayed or not. When a plaintiff files a notice of appeal. You have any thought on that. on that issue?
Matthew Strugar 24:01
I think I'd probably benefit a lot from hearing from you, Jeff about like, what the what the benefit is forcing in the first instance.
Jeff Lewis 24:09
Oh, well, let me Yeah. I can't tell you how many times the other side filed the Notice of Appeal thinking that that state enforcement and we serve a debtors exam notice, and the other side says, Wait, what are you doing? It's stayed pending appeal, and we send them the authority, and then they quickly write us a check and the appeal was done. And I recognize my arguments and the arguments adopted by most California courts are purely policy driven, that if the purpose of the anti slap case is to get a defendant out quick and fully compensate him allowing the cost to be stayed unduly drags the process out. So that, you know, that's the justification in my book, but Tim's got some crazy ideas about, you know, the text of the statute. Things like the words the legislature has written I guess Go ahead, Tim.
Tim Kowal 24:59
I think For the for the benefit of the audience, I'll give the prescious of my my article. It's published in the in the spring edition of the California litigation magazine. So it asked a question that the title of the article is our anti slap fee awards stayed on appeal. And and I answer the question, yes, anti slap fees are automatically stayed on appeal. But under the the Dalling versus Zimmerman case, which is the one that's always cited, that answers the question No. And, and I argue in the article about how that that stems from from a prior Supreme Court decision that that predated a 1993. legislative amendment to the statutes and the 4/3. Case. Court down here in Santa Ana in Qualls versus parent notice that in in its 2017 opinion and reason that nearly all post judgment awards of costs, and California courts should be subject to the automatic stay except for the three specific ones enumerated in the statute, which one is for expert costs not under 998 and others for limited civil cases. And the third ones escaping my my recollection, but it the the upshot was that anti slap fee award should be stayed on appeal. And I had a question for you, Jeff, about whether as a practical matter when there is an appeal of a slap order, and you have a slap fee award, do you press on ahead and, and get judgment enforcement of your fee award.
Jeff Lewis 26:29
Step one, we didn't notice of entry of order to start the clock ticking on the on the fee award because it's a separate timeline for appealing fee awards than for the slap itself. And then step two, we notice that the debtors exam, you go right ahead. I mean, I I like it,
Matthew Strugar 26:46
I'll tell you like both 1983 litigation and anti slap litigation, I usually will just stipulate to not force because I really don't want my money if they're gonna go for I don't want to get paid and then have to pay them back. But but sometimes I do worry that some of the smaller defendants on the other side are going to just either get rid of their money, hide their money, declare bankruptcy, that kind of thing. So I have required a you know, a bond that they post the bond with the court or even a cash undertaking of what the what the thing is so that the courts holding it or there's some kind of something securing it while we do the appeal of I really think the person's maybe like doesn't have a lot of money or is particularly squirrely, but But as a practical matter, I haven't ever tried to like actually collect on it myself in during during the appeal, you know, but I like if if just telling me that that leads to people dismissing appeals and I'm gonna have to change up my strategy. Well, yeah, cuz then
Jeff Lewis 27:43
ethical appellate counsel will talk to their client and say, you know, all the time and energy that Jeff spending on debtors exams and chasing you around gets added to the judgment for fees at the end of the case, you know, that conversation usually prompts action, way, way way. You're
Matthew Strugar 27:58
telling me you have ethical opposing counsel.
Jeff Lewis 28:01
That's the difference between your cases and my cases. Yeah.
Matthew Strugar 28:06
Bloodsport, my case, because everybody's an ideologue.
Tim Kowal 28:09
Yeah. Is that a phenomenon of taking the fun cases? The cases are fun, but opposing counsel sometimes are not.
Matthew Strugar 28:15
Absolutely. I mean, everybody was on the side of an ideological fight with my clients and the other side's once an ideological lawyer that can lots
Jeff Lewis 28:22
of lots of passion. Lots of speaking about passionate cases, you sued SeaWorld, and spoiler for our listeners, you lost. But did that lawsuit against SeaWorld have any impact on the cultural conversation about animal rights or how SeaWorld operates?
Matthew Strugar 28:40
You know, that case was this is a case on behalf of five orca whales were kept at SeaWorld, we filed claiming that they were held in violation of the 13th Amendment Surprise, surprise, the courts did not find that 13th amendment applied to orca whales. But that case was 2012. And that was really before she rolled was sort of a common villain in the cultural consciousness. And that case, got a lot of press and that's, you know, sometimes, you know, the president of the Center for Constitutional Rights when I was there. Jules Lobell has a book and some law review articles called success without victory about sometimes you just fight to fight and you fight to change the conversation. I don't know. I think I think we I think we got the issue on the radar a little bit, obviously, while we're doing that some of our experts who we retained told us Oh, there's this documentary coming out that's really going to you know, blow up the conversation about SeaWorld. It's called Blackfish. And, you know, I dealt with so many activists who think that there's a documentary that's really going to change the world. I'm just like, okay, yeah, sure. Well, and then Blackfish came out and really did put SeaWorld like on the map as the kind of national villain and you know, the onion will runs a series of you know, articles about just how much people hate SeaWorld. So, you know, I hope that our case had something to do that I want to take a whole lot of credit for because I really do think it was the documentary and some of the other people's activism, but, you know, any, any, anything I did to sort of move
Jeff Lewis 30:00
that along. That movie was something else that changed my thoughts but I'd say SeaWorld has been a villain for me for a long time for different reasons. I live and work in palace, Verdi's and we used to have a place here called marine land. One night in the middle of night, SeaWorld bought marine land and shipped one of the beloved whales from marine land to SeaWorld and then shut down marine land. Right? So ever since then, SeaWorld has not been popular with folks in palace Verdi's interesting stuff. Alright, let's shift gears here and talk about I saw in my Twitter feed yesterday, news about the Chad loader case is it pronounced loader or louder loader loader? Who is Chad, and tell us a little bit about his case and how you got involved and what's happening there.
Matthew Strugar 30:45
Sure, Chad's a, had a technology company sold it and then became kind of a citizen, journalist activist who went through a whole lot of the January 6 footage and would expose various people associated with the proud boys movement, or the proud boys organization as being involved in the January 6 Capital protest or capital riot or whatever you want to call it. And, and in doing so, he the oil sorry, the DOJ has cited Chad's tweets. And I think one of the indictments about how they sort of came to learn that this person was was there. So that's kind of who Chad is. The defendant in the case where I represented Chad is named Adam Michael Kiefer. He's a local guy who was associated with the proud boys he was at least in DC on January 6, and at least outside the capitol, and sort of Chad identified Adam on Twitter as being there because being a like a local guy involved with the proud boys and then being somebody who was there and Adam Kieffer filed a civil harassment restraining order and got it you know, issued the ex parte temporary restraining order issued against Chad, basically saying, like, This guy needs to keep his name out of my mouth essentially is like, oh, yeah, all the restraining order really said and as a result, you know, and a restraining order issues, you have to give up all your firearms, you go into a database, like it's a it's a real thing, even if it's just a just a tiara. So
Jeff Lewis 32:18
those restraining orders are super easy to get if that ex parte early stage, you could get one on behalf of a whale if you wanted to. I mean, the Superior Court will rubber stamp anything, right?
Matthew Strugar 32:28
I mean, you know, I encourage anyone, there you go, spend a day in a civil harassment restraining court and stay on the mosque and see how quickly those things issue different judges are different about them. I mean, for the most part, they're sort of known as being too easy to get in the courts even know it. And they've started consolidating civil harassment restraining orders in front of one judge, because they thought when they distributed them out broadly, basically, no judge wanted to be the one who denied one. And then you know, somebody went and killed somebody, so they would just grant them. So they, you know, that was sort of their thinking and consolidating them from one department and Stanley Mosque, which was nice, because that departments may be a little bit more skeptical. But But yeah, those things issued pretty easily. So after that issued, I came in with a couple other attorneys. And we filed an anti slap saying, basically, this is voters speech in connection with an issue of public interest, there basically couldn't be more public interest than, you know, who participated in January 6, or January 6, generally. And, and the court had a cornetta, like, three or four hour hearing where our key for testified for a long time and sort of the judge gave him all the rope to hang himself, he started yelling at the judge, he started yelling at his own attorney, you know, it was kind of a mess. And then the judge back this back in January, the judge granted that granted the anti slap denied the civil harassment restraining order. I do a lot of these anti slaps involving civil rights restraining orders. And this judge insisted on sort of keeping those two together, which I think isn't the right way to do it, I think you should determine the anti slap first, you can appeal it up. But that that, you know, that's just
Jeff Lewis 34:03
appealed up and stay the case, stay the restraining order piece. Hey, let me ask you this on a personal level. You know, putting aside the other work you've done, the people involved in January 6 are dangerous people. Did you ever personally feel any hesitation about jumping into this case and that you'd be putting yourself at risk?
Matthew Strugar 34:24
No, I mean, I don't know. I've made a lot of powerful interest angry in my life. I mean, these people are trolls. Mostly, I got a call driving to the courthouse for the first hearing from a guy named Joey camp, who's you know, I think, you know, been in and out of prison. And, you know, he was telling me my wife's name and my address and my social security number. And, you know, I was just kind of like, Good work, dude. You can use the internet like, I don't care. I mean, we have, we're armed like we're protected. I don't think that any of these like losers are really going to come after us but they do like to scare us and you know, or they do like to some I'm scared the attorneys mean I got a death threat my fourth day working at Center for Constitutional Rights as an attorney. And this guy has a thick southern accent and said if we kept representing Guantanamo detainees, you know, we find ourselves hanging from the from the biggest tree behind our office and I just laughed and said, This guy's never been to Manhattan, there are no trees here. Like you're gonna have to have thick skin to do this kind of stuff.
Tim Kowal 35:21
Yeah. Well, you've you've been involved in in protest movements, you know, your whole life, basically. I mean, now you're now you're defending or you're involved in legal aspect of them now, but you have some familiarity with with what protests are like or the or the you know, Jeff mentioned that the the January 6 protesters are dangerous people did you get a sense that that there's something something different above and beyond you know, the the issues that are, I guess, involved with the conspiracy and things talking about? talked about in the January 6 Commission, but do you get the sense that these these protests are riots? What do you want to whatever you wanna call them? Our, our, our souI? Generous there, there are different kinds of class of protests and riots as than what than what you typically see in political protests and uprisings?
Matthew Strugar 36:06
You know, I mean, my reaction January 6, was just like, Oh, it doesn't seem so bad to have seen or not necessarily been involved in, but I did think sort of the public was I, you know, I just tried to imagine like if this were left wing protesters, I mean, I was protesting at Trump's inauguration. And we didn't try to take the capital. But if like some people who was protesting with got in there, I would have thought, oh, you know, this is an overreaction. But I think the people who were involved especially, you know, the proud boys and these militia movements are particularly scary, just in the the fact that they, you know, stockpile weapons and sort of talk about violent revolution in a way that most protest groups don't so, you know, a little bit mixed. I mean, I think more than I think more than most people I'm sort of sympathetic to this is just a protest, these people have the rights to do this, even though I hate them. But on the other hand, I do recognize that at least some of them seem to have really violent fantasies and ideologies.
Tim Kowal 36:59
I think it's a very important and, you know, I think an honest intellectual exercise to always imagine it, imagine the shoe on the other foot. And I think after, after that, that year, you know, I think it's, you know, should be there's some available data for both sides, you know, to imagine, like, oh, how dare these protesters are going way too far. You know, it's a shoe can be imagined on the other foot.
Matthew Strugar 37:22
Yeah. Remember, on January 6, or maybe January 7, I was like, I was like, I saw the video, and I don't think the cops are shot Ashley Babbitt. You know, I think that was a bad shooting. And, you know, everybody who was one of my friends was, you know, thought I was, I was like, I would take the case. But I mean, I think she probably as a case, and I don't think she was I don't think she was a deadly threat to anybody at that moment. But
Jeff Lewis 37:46
but,
Matthew Strugar 37:47
you know, whatever. I wasn't there. I don't know. I'm not looking to defend her either. But, but I'm just I can I lost a lot of support. And that's criticized for that take?
Tim Kowal 37:56
No, I think I think it's, I think that's that's admirable to try to try to try to look at the every issue from from the other perspective. So back to the kefir and the loader case. So the so ki forgot that civil harassment restraining order, which which you mentioned, can be rather easy to get. And then and then loader was able to go in and get and filed an anti slap motion, and it was able to, was able to successfully got that overturned, got the civil harassment restraining over overturned, I had a question that, you know, it may be a little bit of a tangent, but so T forgot, originally got the court to order loader to stop tweeting about him. But then obviously, as we saw this exposed Kiefer to slap liability, because now he's got got a big fee award against him. But I wonder if if Kiefer had instead changed his strategy. And if he had just appealed to Twitter and said, This isn't these are offensive tweets, it's harassing me and Twitter agreed and shut it shut it down, he would have gotten the same result, but with no exposure to slap liability. And I wonder that seems a little weird. You know, it's more dangerous to go and ask a judge for relief than to just go right to the to the publisher or the platform Twitter to get the the offensive the the, you know, the offending message taken down? Is that is that is that a problem? Do you think?
Matthew Strugar 39:23
Yeah, I think I'm probably in the big nine minority, especially on the left and thinking that there there is something to this idea that these social media companies are large, and they have a lot of power to suppress politically unpopular speech, and that there might there might be ways to deal with that. I mean, I nobody really likes Pruneyard, which is the case saying that there's a California free speech, right, California constitutional free speech, right, and certain public, certain private property areas, including malls and large scale entertainment venues. I mean, I think a rule that applied Pruneyard to social to large scale social media companies would be probably a good one on balance, but you know, I don't think Neither side of the ideologies really want anything like that. The right loves private property and the left loves social media moderation. So, you know, I'm I'm sort of the lone opinion that Yeah, I think there's kind of too much power to, to shut down without process to shut down politically unpopular speech on social media. Yeah, I
Tim Kowal 40:21
thought about Pruneyard when I saw that the anti slap ruling hadn't made a mention that Twitter that the message was was made on a public forum, that being Twitter and I thought that's interesting. They referred to Twitter as a public forum, when we're in the in the debate that you were referencing, it's always talked about No, no, it's just a private platform and the private and the proprietor of the private platform can decide what speech goes on there and whatnot. And I wonder if that is, it seems like a little bit of you can always make distinctions but it seems like a little bit of an intellectual problem to treat Twitter as a public platform for the for the purposes of the slap statute. But then, you know, the proprietor of the platform can say, No, not a public platform only. Only the things we want said go on there. Yeah, I
Matthew Strugar 41:05
think maybe the difference there is E three of the anti slap, which is public forum also has other has words after public forum is free as free speech in a public forum or place open to the public. So I think people use public forum is shorthand for E three, when a place open to the public is obviously much broader than maybe a government forum, you know, government property opened up for speech.
Tim Kowal 41:28
Good to know. Okay, that makes sense. Yeah, I
Jeff Lewis 41:31
gotta tell you, I don't do a lot of civil harassment restraining order cases. And frankly, I do very little at the trial level, I do get a lot of requesting appeals. Usually the restrained party, I can't tell you how many times I've seen these harassment restraining orders misused for purposes of restraining speech, as opposed to harassing conduct. And it's a huge problem. I don't know what the solution is, because oftentimes, somebody doesn't hire an anti slap Lawyer fast enough. And by the time they're up at the appeal stage, the facts or the circumstances are just that an appeal is not warranted, and when it's not a good route to take. And I sure wish the legislature would do something to take care of the problem of civil harassment restraining orders being issued, directed solely at speech rather than conduct.
Matthew Strugar 42:20
Yeah, I really recommend a law review article by a guy named Eric Kaplan, because just called civil harassment restraining orders and free speech, or maybe it's the other way around. He's teamed up with Eugene Volokh a couple of times to submit amicus briefs and some civil harassment cases involving speech all over the country. And then the law review article really sort of lays out, you know, the problems with exactly that it's probably a decade or more old, but it's still completely relevant.
Jeff Lewis 42:44
Interesting, I
Tim Kowal 42:45
will try to find that and put a link to that Aaron Kaplan article in the show notes.
Jeff Lewis 42:50
Yeah. Now you've had a run of appellate cases, and you can refer to yourself as an appellate lawyer, if you chose to, what are some lessons that you think you might have learned from these cases that might make you a better trial lawyer?
Matthew Strugar 43:03
Hmm. I mean, I, I'm not a guy who like files, like every objection with written discovery or anything like that, but I still think the appellate work really has made me realize you have to preserve everything below and basically, like, fight every issue, just fight. I mean, if you fight every issue, there's going to be something that the law will develop in, or, I mean, oftentimes, the law will develop in Well, you'll have like a chance to really convince a judge, like, Hey, this is like a new interesting thing, you know, pay a little bit more attention to this, then you do your, you know, run of the mill, appellate cases. And, and really, like try to, you know, treat think of judges as people who are interested in nerds who are interested in interesting legal issues, and try to find like that cutting edge stuff to bring to them because I think that they're a lot more interested in that. And you can only do that if you've preserved Hello.
Tim Kowal 43:55
Yeah, yeah. I think that that advice resonates with me as well. And I wonder if many appellate attorneys who who who don't do a lot of work in trial court or haven't in their in their practice, maybe they maybe they miss that because it's easy for us appellate attorneys, Jeff and me to look at the record and say, Oh, well, you should raise this issue. This is really the issue that that's going to be the winner on on appeal if anything, but you know, it's not the issue that that was going to be persuasive at trial and and and like you said, sometimes the case changes sometimes the facts you know, facts kind of fill in and a different theory presents itself as the more suitable to get into victory. So yeah, I agree with that. You got to fight every issue that's sometimes I hate when you do when we do affirmative defenses and you have to throw everything in there that's even conceivable. But then sometimes you get to get to trial and you think, Wait, did I did I include that? You know, that
Matthew Strugar 44:51
is latchis in there.
Tim Kowal 44:55
It's gonna suddenly it fits or mistake of fact or something. Suddenly it fits.
Jeff Lewis 45:00
Do you ever? Do you have a philosophy or creed that you live by in your practice? Like, for example, Are there cases that you just will not take? Are there arguments that you'll never make? Or do you take anybody who walks in the door?
Matthew Strugar 45:12
Well, like I said, I'm lucky in the sense that I only really have the privilege of really only taking cases that are politically close to my heart. Even for the cases that are politically close to my heart, though, there are still some kinds of cases I won't take. I don't believe defamation should be a tort. I know that that's kind of out there. But like I, you know, no matter how much of a slam dunk case, even if somebody is my closest friend, or my closest political ally, I'm not found a plaintiff side, defamation, false light, interesting, anything like that, because I just I think, I think strategically, it's usually a mistake. And I legally, it leaves me with a bad taste. So that's probably about it. I mean, like I, you know, my cases are for if they're not actually for, like political allies, therefore, like political movements, that that will be advanced, even if the person isn't political. So someone who gets beat up by the police might not be, you know, necessarily a political activist, but it, you know, does, you know, advance the issue of police accountability generally. But, you know, know, if somebody contacts me, even if somebody has money, and most of my clients never pay me, but even if somebody has Money comes to me with a case that doesn't have anything to do with, you know, my political ideologies, I'm privileged enough to not just say, No, you're looking for different kinds of attorney,
Tim Kowal 46:25
what if what if a client calls you and is, is the opposite politics, but, but wants to vindicate a shared principle like free speech?
Matthew Strugar 46:35
Yeah, it would depend just how it would I would have to balance that would depend a lot on just how opposed they are to what I want to do. But like, I you know, I'm sort of like the old school ACLU type thinks that, like, it was important that they took Brandenburg and it was you know, like important that they took skirt the you know, the the Nazis marching through Skokie. You know, when I, my first job is Center for Constitutional Rights sort of prided itself on you know, we won't take those cases against people who, who don't believe what we believe, but I kind of think sometimes you really have to, but I would really hope that they would find I think they would probably get better representation from somebody who doesn't, who does agree with them than me. But, um, but yeah, if it would really, you know, I really do think the state is overreaching, and that their rights are being infringed on even if they're not sort of my political ally, I would still see that as advancing, you know, a political goal of mine, to represent somebody in that situation.
Tim Kowal 47:29
Yeah. Yeah, I think that's good. Do you? Do you take criticism for for having that viewpoint, you referenced it as being an old school ACLU type of philosophy? Was that, is that suggest that things have changed?
Matthew Strugar 47:43
Oh, I think things have definitely changed. I think I'm definitely I think I've seen this kind of having a boomer left mentality, much more so than the kind of, you know, current millennial, I'm Gen X. So you know, I could be right in the middle there. But, um, but I do think that, you know, younger, you know, younger generation, or younger leftists, at least, basically have less respect for free speech as just an ideology generally. And, you know, don't don't sort of see that sort of common interest against against government overreach, like, basically don't see how it's going to come back and bite the left. And I always try to use the, you know, the example of Palestinian rights activists, you know, whether you're talking about campus speech, or anything else, you know, they think, oh, that's just, they're just going after Christians and racists and right wing people, and, you know, everything they're doing to all those groups, they're also doing the students, you know, Students for Justice in Palestine chapters and those kinds of things and try to like, see, you know, you know, if you open the door to that to our ideological opponents, they're going to use those same tools against us. And we have to realize that, and I do think that that's something that there is a bit of a generational divide there.
Tim Kowal 48:51
Do you see the legal system, the courts, current current judges, as being being more resilient and kind of intending to hold more of what you referenced the old school, ACLU type liberal left ideals? Or do you do sense a change even in, in the court system? Yeah. Well, you
Matthew Strugar 49:09
know, the US Supreme Court has been what I think, you know, generally pretty good on are generally very good on free speech things. And that sort of trickles trickles down and a lot of ways. But, you know, should that change to you know, Justice Thomas, get what he wants, overturning New York versus Sullivan or whatever else, I do worry, it's just going to be sort of both sides reaching results oriented decisions. I'm also somebody who thinks that many, many cases are just results oriented decisions. But I sort of see that lurking everywhere, probably more than it actually is. But um, but, you know, I hope that I hope that the sort of maybe more old school minds prevail on that because I do think it really benefits everyone we could, you know, have diversity of thought and you know, without criminalizing or canceling or whatever. Yeah, I
Jeff Lewis 50:00
gotta tell you if Clarence Thomas got his way on New York Times v. Sullivan, that would dramatically change my anti slap practice because I sometimes represent people in battles with public figures. And boy, that'd be one big arrow no longer in my quiver that I could use. Yeah. All right. Well, listen, we want to thank you for your time today. Before we go, Are there any other pearls of wisdom you want to share with our audience before before we conclude the interview?
Unknown Speaker 50:27
No, keep listening to this podcast. That's my only problem was
Jeff Lewis 50:30
okay. It's since you don't really truly describe yourself as an appellate lawyer. We are going to skip the patented copyright lightning round where we ask your phone preference. Please skip that. We do want to thank case text for sponsoring the podcast each week we include links to the cases we discuss using case texts and listeners of the podcast can find a 25% discount available to them if they sign up at case text.com/calpe. That's case tax.com/ca LP,
Tim Kowal 50:58
and if you have ideas or suggested guests for future episodes, please email Jeff for me at info at cow podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.
Announcer 51:15
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.
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.
If you write your brief in a straight line, legal writing pro Ross Guberman might give your brief high marks as being Flowing & Cohesive. But if you write like Tocqueville did—as “an act of discovery”—you may need these tips from Ross on how to make your brief more Flowing & Cohesive.
Watch the clip here.
This is a clip from episode 33 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.
Appellate rules are treated as jurisdictional.* So it is important for appellate rules to be very clear. One such nice and clear rule is: Orders granting summary judgment are not appealable. (Code Civ. Proc., § 437c, subd. (m)(1); Saben, Earlix & Associates v. Fillet (2005) 134 Cal.App.4th 1024, 1030.)
Except, the rule is a lie, as it proved in Reed v. Aviva USA Corp. (D1d1 Jun. 16, 2022 no. A158535) 2022 WL 2165479 (nonpub. opn.). The trial court granted defendants’ motion for summary judgment. But for some reason, the court did not enter a formal judgment. So the plaintiff appealed from the order granting summary judgment.
The Court of Appeal acknowledged that an order granting summary judgment is not appealable. But the court reviewed the order anyway:
“But because the trial court's order granting summary judgment stated that Reed's claims against Aviva were “DISMISSED WITH PREJUDICE in their entirety,” we construe the order as an appealable judgment because it showed a clear intent to finally dispose of Reed's complaint against respondents.”
Here is the problem with making exceptions to jurisdiction rules like this. If the rule is that orders granting summary judgment are not appealable, then what the plaintiff needed to do was to file a motion under Code of Civil Procedure section 664 to have the clerk enter a judgment. It is a ministerial duty that by law must be performed.
But say the plaintiff, after receiving the file-stamped order mailed by the clerk, has been waiting around a few weeks expecting the imminent entry of a judgment before realizing it is not coming. Then the plaintiff files a motion to enter judgment on a noticed motion basis. By the time the trial court rules grants the motion and the clerk enters the judgment, it is quite likely that 60 days have passed.
So now the plaintiff is in a darkly ironic conundrum: On the one hand, the plaintiff has blown the deadline to appeal from the order, which, on its face, showed a clear intent to finally dispose of the complaint, and thus was appealable under the logic of Saben and many other cases like it. And as we know, the deadline to take an appeal from an appealable order is jurisdictional.
But on the other hand, the plaintiff now has a judgment, which is explicitly an appealable order under Code of Civil Procedure section 904.1(a)(1).
What does this mean? That there two appealable judgments? And the latter judgment restarts the time to appeal? But that would violate the rule — again, jurisdictional — that the time to appeal cannot be restarted by a subsequent order or amendment. (But see here.)
What the Court of Appeal should have done here was to catch the problem when the plaintiff filed the Civil Case Information Statement. The court should have instructed the plaintiff to go back to the trial court and get a judgment. Yes, it may seem fussy. But jurisdictional rules are fussy. They impose heavy burdens on litigants. So something seems off when courts treat them lightly.
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.
The vexatious litigant in Marriage of Deal (D1d3 Jun. 21, 2022) no. A164185 (nonpub. opn.) is not a very sympathetic figure. The ex-husband, Thomas Deal, having filed 12 appeals and seven writ petitions after his divorce proceedings years ago, continued filing meritless actions and appeals that made “implicit threats against various members of the California judiciary and the State Bar.” Thomas, the court observes, now “stands alone on the silent battleground rattling his saber.”
No surprise, then that the trial court declared him a vexatious litigant. And once a court declares a litigant to be vexatious, Code of Civil Procedure sections 391 and 391.7 prevent the litigant from filing new litigation without obtaining permission from the presiding judge.
So Thomas requested permission. And it was denied. And so Thomas, going for a baker’s dozen, filed his 13th appeal from the denial.
The Court of Appeal then did two things. One was not surprising. But the other was surprising.
Unsurprisingly, the court concluded the appeal was frivolous. Thomas raised already-litigated issues and without “an intelligible argument.”
But surprisingly, the court also held that the prefiling denial under section 391 is not an appealable order.
An prefiling order denying a vexatious litigant's request to file new litigation is not among the appealable orders listed in section 904.1. It is not a postjudgment order because the the order does not involve issues different from those underlying the judgment, and it does not involve enforcement to stay issues. (Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651.)
Nor is the prefiling order an injunction or an order denying a motion to dissolve an injunction. (But see Luckett v. Panos (2008) 161 Cal.App.4th 77, 90 (Luckett) [prefiling order or order declining to dissolve a prefiling order under Code of Civil Procedure section 391.7 is appealable as an injunction or order denying a motion to dissolve an injunction].)
Finally, the court denied Thomas’s writ petition, and declined to treat the appeal as a writ petition.
The court concluded: “In sum, we conclude a trial court order denying a vexatious litigant's request to file new litigation under section 391.7 is not appealable. And without an appealable order, we must dismiss the appeal.”
I tend to share Prof. Shaun Martin’s take on this case:
“We don't generally let a single judge decide things once and for all without any right to review whatsoever. Yet that is precisely what the Court of Appeal's holding does here. A vexatious litigant prefiling order always reposes discretion in the presiding judge as to what future cases may or may not be filed, and the judge reviews those proposed filings and decides whether they should go forward. That decision is not immune from review. If the judge gets it wrong, the error should be corrected. That's the reason for appeals. And it's not a "piecemeal" appeal problem here. There's one order, then the proposed case is over -- it can't be filed and prosecuted as proposed. That's an appealable order, in my view.”
The prefiling order under section 391.7 should have been found appealable as an injunction: “a prefiling order against a vexatious litigant meets the definition of an injunction.” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 90.)
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.
Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and Tim Kowal about how he has addressed these kinds of problems while serving as embedded appellate counsel.
What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.
Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.
Jimmy Azadian’s biography.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
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Jimmy Azadian 0:00
If I don't make a record, I could be committing malpractice. And he said, Mr. Azania, I'm telling you again, sit down, shut up. That did not go on record.
Announcer 0:14
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:27
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:30
And I'm Tim colwall operating under an expired license from the California Department of podcasting. The California appellate law podcast is a resource for trial and appellate attorneys. Both Jeff and I split our practices about evenly between trial and appellate courts, and we always try to give trial and appellate attorneys some news they can use in their practice.
Jeff Lewis 0:49
All right, welcome to episode 40 of the podcast and a quick announcement this podcast is sponsored by case text. Case Tex is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find peace authority fast. I've been a subscriber since 2019 and highly endorsed this service. listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at case text.com/kelp. That's case tex.com/ca L P.
Tim Kowal 1:19
All right, Jeff. And today I'm very excited and honored to invite our friend Jimmy is alien to the podcast today. Jimmy is Adrian is a member in diagramas Los Angeles and Washington DC offices. He serves as the firm's West Coast appellate chair and CO leader of the nationwide appellate and critical motions practice. Jimmy specializes in complex federal and state court commercial litigation, free speech issues and applying California's anti slap statute in federal court. Jimmy was a law clerk to the to Ninth Circuit Judge Consuelo Callahan, Jimmy has served as counsel in more than 250 appeals and writ proceedings covering a wide variety of industries and subjects throughout the country. He's widely published and frequently cited as a leading authority on appellate advocacy. So Jimmy, welcome to the podcast. Thanks, Tim.
Jimmy Azadian 2:07
Thanks, Jeff. It's great to be here.
Tim Kowal 2:09
Well, thank you so much for joining us. Tell us if you would a little bit more about yourself and your practice. Just to kick us off here today?
Jimmy Azadian 2:16
Well, I would say my practice is very similar to yours. Most of my practice is in the appellate realm. That's in federal court and state court. We have we have some work in the United States Supreme Court, but most of our work is at the intermediate federal and state court appellate levels. And a growing area of my practice, over the past, I would say decade has been embedded appellate work, which is a fancy term for just simply including yourself as an appellate lawyer on a trial team, whether that is pre trial, or during trial, or even post trial with the post trial motions that come about that has been a growing area and I would say is now probably taking up a quarter of my time.
Tim Kowal 2:57
Wow. So how often are you in trial these days as a as embedded appellate counsel,
Jimmy Azadian 3:02
you know, these days is the operative term, right, because of because of the pandemic. But I will say, I'm gonna answer the question from the perspective of pre pandemic. And then now what I consider to be hopefully post pandemic, we are at trial, I am at trial, probably a good four to five months out of the year. And that seems to work for an appellate attorney. It is and it's two trials a year. That's about what I can take on my plate. I have a number of very good colleagues who also take on embedded appellate work and embed themselves in trials and support the trial teams of the firm. And so we have kind of a regionalized embedded appellate practice throughout the country. Our Texas Group handles the Texas trials. As you can imagine, the California group handles the California trials. And then Michigan handles the Sixth Circuit and the Michigan trials. And then Chicago does Illinois, and then DC handles Virginia DC. So we've kind of Slice the Pie up that way.
Tim Kowal 4:07
Yeah. Now I heard, I've heard this term embedded appellate counsel from Corey Webster, your colleague, and from you, maybe I missed something. But is this a term that you and the Dykema team have come up with? Or is this did this pre exist?
Jimmy Azadian 4:21
You know, because it's such a funky term? I definitely don't want to take credit for it. And no, we did not come up with it. It is my you know that I'm a student of history. And I like to look back and see where things come from Tim. And the first time I've seen I saw the term ever mentioned, was by Solicitor General Braxley. And it was in when actually he was at my former law firm in Washington DC at Sidley Austin. And I remember coming across an article where he talks about embedding appellate counsel in a trial team or in a trial proceeding. And so that's the very first time I saw that word used in the context that we're describing it. So I have to probably give credit to him.
Tim Kowal 5:06
Yeah, yeah. Well, I've been borrowing it myself. And so I just wanted to know if I needed to be sending you a nickel every time I say it.
Jimmy Azadian 5:13
Definitely not. I'll take your nickel. But RIGHT.
Jeff Lewis 5:15
Jimmy did do this, just to support your own firms, trial teams, or do they ever farm you out for other firms? Trial Work?
Jimmy Azadian 5:23
Yes, and yes, but we're often hired, often hired by other firms to serve in that role. Clients have become very sophisticated in this area. And they liked the idea of having independent counsel come into the embedded role on a trial team or on a pre trial team to be able to support some people caught looking over their shoulder of the other lawyer, but it's actually to support the work of that trial team, so that they can be freed up to do what they do best, which is creating the case and, you know, creating witness outlines and making sure that they are actually preparing the case to win the case. Whereas our job is to make sure to spot check in to see if there's any blind spots that have gone unnoticed or maybe not given the sufficient attention that they deserve. And as appellate lawyers, we know how important those blind spots are. And I like to think of it as kind of the backseat driver, almost, you know, the you're just making sure that we're following all the rules, if not later, we're going to hear from the Court of Appeal, that we missed, something that could have been easily, you know, addressed.
Tim Kowal 6:34
Well, now that we're talking about it, I want to ask you a couple more questions about what it looks like to have an embedded appellate attorney at trial. Is it like having a second chair? Is that is that kind of the role? Or is it something a little bit more distant?
Jimmy Azadian 6:47
Actually, I call it a third chair, I call it a third chair. And then there's a reason I call it that is because we really shouldn't have a seat at the table, we really shouldn't in my philosophy is we shouldn't be giving the impression that our role is somehow to present the evidence, right, which is what a trial attorney does. And I'm now just simply talking in the context of a trial, right, not about pre trial motions, which is, I think, a very important part of what we do as appellate attorneys is to help with that motion practice. But if we're focused at the trial, you really want to be that support. I like to sit in the gallery, just to make it clear what my role is. Sometimes, my trial team, believe it say we have appellate counsel here today. And that's not to a nerve, anyone or to send a message that oh, hey, Judge, you know, we got we got, you know, a different skill set here, that's going to prove to be useful in case someone misbehaves. No, no, that's not the reason. It's, you know, judges all like to know who's in the courtroom. You know, that I mean, whether you're in state court or federal court, we've all sat there in a gallery before. And even if you're the only person gallery, bailiff, or somebody comes up to you and says, What's your business here, and you have to tell them what it is. So you, I find that it is good to say what your role is. And frankly, I think the judges, by and large, appreciate it. And once in a while, they will even say, Mr. is 18. What do you think, you know, what do you think about that issue? You know, so we have found that it has been very helpful to the client. Now, I'm going to say one other thing about this, Tim and Jeff, I don't think it's very profitable as appellate attorneys, because I find myself to be more profitable for my firm, and for my clients, and the sense of how we build our time, when we are writing and researching at our desks, which is what we do as appellate attorneys, right? We can spend four to eight hours on a single time entry, writing an opening brief writing an answering brief writing a reply, researching some area of law, right, that could take forever. We love that work. But when you're in the trial court, and when you're doing pre trial work, even post trial work, it's broken up, there's lunch break, there's recesses, there's, you know, there's constant, different things on the menu that you have to account for. And so I find even though I'm spending as much time on those matters, as I would say on appeal, the billing for that it's much less comparatively.
Tim Kowal 9:22
Yeah, interesting. And so it is, it does sound like it is a different skill set from either from from being a trial attorney or from being just an appellate attorney. When you when you think of an appellate attorney, as someone just locked in their office phones turned off just processing the briefs and doing legal research. Being an embedded appellate attorney is a different skill set. So what kind of different skills have you learned as by serving as an embedded appellate attorney?
Jimmy Azadian 9:52
So let me just say this, I actually don't view it as a different skill set. I actually think it takes our skill set as an held attorney and in fact, sharpens it and heightens it. And I'll explain to you what I mean by that. But what I do think is different is the focus, the focus of what we're doing, when we're in that embedded role is different in quality than what we're doing as appellate attorney. So let me explain what I mean by all that, when you're an appellate attorney, your job is to spot issues, right, it's to see if there are arguments that can be made that necessarily were not made below. But still, you can make them without them being waived. You look for items in the record that might have been missed in the lower court. And that's whether you're an appellate an appellant and appellee, or respondent or petitioner, those are generally the useful skill sets we're talking about, right. And it's being able to think creatively about arguments that maybe haven't been made nuances to arguments, and the strengthening or weakening arguments. Well, when you're in a better role, and trial court, those are the exact same, those are the exact same tools in your tool belt. Now the difference is that you are live at the event, the event that you as an appellate attorney only read about in the record, it's now happening in folding in front of you, right, and so you don't have the luxury of sitting back in your, you know, casual clothes, and not having the, you know, the interruptions that we're used to, and being able to just lose yourself in a well written Justice Powell decision, you know, and and read that to Jesus, you just can't do that, you know, you are on high alert. And that's what I mean by a different focus, because there are many things happening in that courtroom, which we, as an appellate lawyers have to kind of refocus ourselves, we have to say, we've got the judge on the bench, we've got the clerk, usually on the side, we've got the jurors coming in and out, right, and then we've got some, we've got opposing counsel, doing stuff, right. And so and then you've got your attorneys that you're keeping an eye on. And so all of these various groups in the courtroom impacts what's happening on that precious record, which is your job to make sure that record has everything that you need, cuz that's
Tim Kowal 12:23
gonna, that's got to make the job very scary to be an Intel embedded appellate attorney, because what is the one thing that we appellate attorneys love saying, Oh, your trial attorney should have made that objection on the record? Well, now you are the one the trial attorney is looking to, to make sure I don't screw up right. That's right. There's a screw up a trial, hey, wasn't my fault, ask the embedded appellate attorney.
Jimmy Azadian 12:45
Exactly. And that's where I like to call ourselves the third chair or the safety, right. And that's really the value that we bring to the table. Now, there are many ways however, it's I don't want to give you the impression that this is something where, you know the moment passes by, and you're done. Oh, you forgot to put down the record or there are so many opportunities to still do so you can file a paper the day after, you can tell the judge I'd like to be able to make a proffer. I'd like to be able to put something on the record from the day before to make sure the record is clear on that fact, even when it comes to sidebars. Right, which is, I think, rife with problems.
Tim Kowal 13:25
Yeah, we're gonna get into that. Okay. In a minute. I had one other question for you. What kind of Attorney What kind of trial attorneys are the ones reaching out for embedded appellate counsel, who are the trial attorneys who are aware, you know, are that self aware that, you know, this is a this is an important trial, I want to make sure I don't miss anything. If I hand this off to an appellate attorney later on down the line, I don't want that appellate attorney saying, Hey, you should have done X, Y and Z. I want that appellate attorney here with me now, who are the kinds of appellate trial attorneys who are retaining embedded appellate counsel.
Jimmy Azadian 13:58
So there are two pines, one are the top arm law firms, and they're doing it at the behest of their client, their client, their corporate clients, the corporate clients saying I want an embedded appellate counsel, and I want it to be someone from another firm that you work well with. Right. So that's one
Tim Kowal 14:14
source they wanted. They wanted to be an outside counsel.
Jimmy Azadian 14:18
They do they wanted to be an outside counsel. Well, sometimes other times they don't like you heard me say that our trial team will oftentimes utilize our appellate team in house. But once in a while a client will say you know what, I'd like you to be able to use someone independently from outside of your firm and perfectly fine. It actually happens quite frequently. I see the value to it, especially if that other firm is going to be the one that's going to end up doing the appeal. I rarely find that you know, am law firms will top law firms will do both the trial and the appeal. Sometimes they will, but usually the client likes to kind of split it up right to have fresh set of eyes, look at the case once it moves over to the appeal. But the other great source of work is I find very good trial seasoned trial attorneys who are mid size and solo practitioners. Right? There's one firm in particular in Orange County that comes to mind that I work with. And actually, it's a former law student. And he took my appellate advocacy course, at Pepperdine, actually, with Corey Webster, about 12 years ago, they were in the same class. And he remembered the portion on back then we didn't call it embedded appellate work. He called it supporting the trial lawyers. And he remember that portion of that of that class that I taught. And he, when he formed his own firm, he brought me into several to several matters several really important matters, where he felt it would be helpful when they're going to trial to have embedded appellate counsel there. And it turned out to be a very good thing that turned out that the case ended up getting resolved in one of the cases early because we found a defense, you know, that was identified earlier, a defense that ended up gutting the whole case. Yeah, in our favor.
Tim Kowal 16:14
All right. So a few moments ago, you mentioned something about sidebars. And in that that triggered something that you and I were talking a few weeks ago and you you kind of painted this picture, that got me thinking about something I had not thought of before. And so I want to I want to paint it now for the audience. So imagine you're at trial, and you're the you're the trial attorney, you have a court reporter there you've done, you know, check that box, and you're putting on your objections to the evidence, you're getting everything on the record, you're looking back at your embedded appellate counsel in the gallery, and he's giving you the thumbs up, you're doing a great job. But then after you make this one critical objection, the judge says counsel sidebar, kind of approach the bench. And you suggested to me that this should sound the alarm bells in the trial attorneys mind. Why do you think that why should sidebars be a cause of heartburn?
Jimmy Azadian 17:02
Because it is often the case that the court reporter even though she or he is listening to the sidebar with the we're talking about state court now, of course not federal court where virtually all the conversations are audio taped, or at least the court reporters to transcribe those sidebars, I have found, but mostly in state courts, the state, the court reporters will have their their earpieces where they can hear it. But what I don't see happening often is typing with their fingers. Right? They're listening, but they're not typing. And of course, there's no audio. So when I see that happening, I will not I'm not gonna run as a better counsel up to the bench. That would be ridiculous. You know, I mean, probably I get thrown out of court. I wouldn't. But I would wait for when counsel returns. And I will put a note in front of my trial attorney. And I will say, I noticed that the court reporter did not transcribe whatever was spoken. I'd like to speak with you about what you all talked about at lunch, we're at a break, so that I know whether this is something we need to now place on the record. Right. And sometimes it's not important. And the trial attorney will tell me no, it's not. You know, it's better that we don't even put on the record, actually, they'll tell me because something might have been said that they don't want to see other records. And that's fine, too. But it is important, it is important to have that dialogue with your trial attorney and to make sure that you're making a checklist, Tim and Jeff, I call it a checklist. You're sitting there, I mean, picture a, you know, a clipboard, almost. I don't have a clipboard, but it's like a clipboard, right, like a referee or a coach on the field. And you see that an exhibit has been proffered. But it has not yet been admitted into evidence. But of course, everyone is operating like it has them. At the end of the day, you have a list of those exhibits. And you say to your attorneys Now, which of these are important for us to put into evidence and they'll look at you they'll say they aren't evidence. And you'll say, Nope, they're not into evidence. Right. And so that's one way of really helping another way is to make sure that, you know, they have received rulings, on their objections. Oftentimes, we will object, but the court will either nod or do something else, right, not really rule squarely at the objection. And you did not get a ruling on the objection. However, the trial attorneys think they now have a ruling and that they're, they're good to go for appeal. Not so they've waived, they waived the objection. So anyway, I don't want to get off track. But those are just some simple things you can do.
Jeff Lewis 19:35
Hey, Jimmy, let me get you further off track and ask you kind of a nerdy tech question. When you're in trial, and you want to bring a point to the lawyer's attention. And maybe there's a jury, and you don't want to be seen scrawling a note and handing a big note to trial counsel, maybe to underscore a big point. Is there any tech you use like text messages or other software to not only message your trial lawyer but keep a virtual clipboard of issues to be addressed?
Jimmy Azadian 20:00
Yes, so we have two, three ways of doing that. We have an I am software application where we can usually most of the trial attorneys, at least the second chair, usually the second chair has their computer up, and they can see the message that's coming across. So we'll use that if and by the way I've been using that I am now when we're doing oral arguments as well. Oh, we're the appellate courts. Were my second chair, rather than handing me that note in that awkward way. Right. We're like Corey Webster will be like, Jimmy, you, you you cited the wrong part of the record, you know, you should have cited this. Yeah, he'll he'll just I am. And say, you know, you cited this page, but really needed to also cite this other page. So it's that software, I find text messaging to be actually pretty helpful. Still, so long as your trial attorneys and you have had a conversation about it. And you've said, look, let's text each other, let's form a group text. Intentionally. We're all on it. The paralegal is on it. The tech support person is on it. Everyone's on it. They're seeing the messaging come through, so that if one person misses it, another person will say, look at this text message. Yeah,
Tim Kowal 21:11
that's the key. All right. So so back to the sidebar. So back to this, this picture that I painted about, you know, you're you're trying to get, you're being disciplined about getting everything on the record, and then the sidebar happens. So as embedded appellate counsel, your advice is not a not a blanket rule that no, everything has to get on the record. So if you go up the sidebar, drag that court reporter along up there with you. And that's not your advice, right?
Jimmy Azadian 21:36
It's not my advice. It's, if you can make sure that you usually can make sure to caucus with your attorney and to say, look, what is the what is the nature of the conversation? Was there anything helpful to us, you know, to the judge, say something that we'd like to make sure that's on the record?
Tim Kowal 21:52
And then and then maybe ask the judge to put it on the record at the next time? The jury's out? Yes,
Jimmy Azadian 21:56
yes. And if for some reason, you forget to do that. And you still have trial proceedings pending. At that point, you could even file a notice sidebar, you know, conversation, you know, I mean, to look, reach into your creative toolkit, and somehow put that into the record. So that if it's important, the appellate court knows, hey, an oral proceeding occurred, and part of that was not necessarily reported. But now we want it should be part of the record for the appellant Is
Tim Kowal 22:26
that is that admissible? That seems like is that an end run around the the settled statement or agreed statement procedure and making a record of these off transcript,
Jimmy Azadian 22:35
I can't stand settled statements, I just can't stand them. And I tried to avoid them at all cost. And so far, I've been very successful. Whenever the conversations been brought up, I just say I won't do it. And it just, it just find another way. But I think settled statements present their own host of problems. Let me let me say this before I get to that, when I'm talking about sidebars, of course, I'm also talking about in chambers conferences, which is where a lot, a lot happens, right? The in chambers conferences are they they might seem like they're off the record. And even if they are off the record, I want you to know this, even if a judge says this is off the record. That doesn't mean that you don't later say to your honor, with your permission, I would like to put this on the record something that would state it right without Of course, you know, getting the judge twist, twisted backwards somehow against you. One example, I will say Tim and Tim, you might even remember this because you and I were at the same law office when this happened. But there was a case that was before a federal judge in downtown LA, it was a patent infringement case. And believe it or not, this client had been there serving an embedded appellate role, even though at the time, this is back in 2010. We didn't really label things back then the way we do now everything doesn't have a label, then it was, hey, come along, you're the appellate guy. Maybe you can tell us if something doesn't sound good or look right. That was really the obstruction the client gave. And so I was there. And I realized that there were things happening off the record, and that the judge was purposely keeping things off the record. And I'm talking about in a very surgical way. very intentional way. This judge was saying, Nope, this part of the testimony is not going to be on the record. And then the witness would start to testify, and I would notice to the court reporter is not recording certain things. And I'm also noticing, sadly, sadly, that the judge is communicating with the other side during the witness's testimony. Now I'm not going to name the judge. I will say the judge is no longer a match. But those, report it and when that youngster that I was back then I think you knew me as you know, a little a little more fiery than I am today. I said Your Honor, I must ask you to put these things on the record. I'm noticing there are conversations happening between the bench and counsel. I'm noticing there are things that are going on reported. And it's very important that these things get on the record, would you please allow that to happen? And the judge very sternly, and with a very full voice told me to shut up and sit down. Okay. And was that on the record? That that was being on the record? Yes, that did end up being on the record. Okay, good. But most of the times that most of what I'm about to tell you did not end up on the record, like, for example, I stood up again, after a few minutes, and said, Your Honor, I do not want to exacerbate exacerbate the court exasperate the court. But what I want to do is, you have to understand that it's my job to make a record, if I don't make a record, I'm I can be committing malpractice. And he said, Mr. Is adn I'm telling you again, sit down, shut up. That did not go on the record. Okay. Nor did my statement that I'm asking him to put something on the record that also didn't go on the record. All right. Every day, we came back from court, we would, we would file a notice of colloquy between the bench and the bar. And we stated what was said, and with the hope that it would get on the record. Ultimately, the case reached the Federal Circuit, as I said, it was a it was a it was a patent, patent infringement case. So it wasn't heard by the Ninth Circuit. And it took a matter of three days for us to get a stay of the order, which you can imagine did not go our way. Right, the judge entered a ruling against our client, but we got that state in three days. And then we got a durable stay a week later, and then we ended up winning the appeal. But I remember that a very important part of that appeal was us having a showing that the proceedings were tainted, that this judge was not allowing things to go on the record.
Tim Kowal 26:48
Well, I wanted to ask you about, since we're talking about things that that that should go on the record and making requests to the trial judge to put things on the record, wanted to recite the portion of the operative statute here Code of Civil Procedure section 269. And maybe we can we can talk a little bit about this because it says the court reporter shall take down, quote, All testimony, objections, made rulings of the court exceptions, taken arraignments, please sentences or sentences. And this is the one I wanted to ask you about arguments of the attorneys to the jury, and statements and remarks made and oral instructions given by the judge. So that that statement, or that that clause, arguments of the attorneys to the jury suggests that unless there's a jury there, if you're having a discussion, just with the judge about an evidentiary objection, say, there's not a right to have a court reporter take that down. And I wondered, despite that, that is not, you know, that seems to be the upshot of section 269. Do judges nonetheless seemed receptive to having to request to have certain arguments colloquy is put on the record?
Jimmy Azadian 27:59
The answer is yes. And you know, I will also say, I don't think that just because there's no statutory right, per se to this, does that mean that there's no constitutional right to it? I do think that there is a constitutional right to have your proceedings, you know, properly documented by a court if they are going to be documented. And that's the job of the court reporter. Because ultimately, if the case will go up on appeal, you want you don't want to hear from the Court of Appeal, or the appellate court is that the record is incomplete, or the record does isn't helpful, because it doesn't provide what the Court of Appeal needs in order to resolve a particular issue. Right. That that means is you failed as an attorney, and frankly, it also means the trial court failed in its mission to be able to present an appropriate record for review. So regardless of what the statute says, I would say, as as attorneys, it is our job to make sure for our clients that what is being stated in court does appear on the record, if you want it to be qualified, if you want it to be.
Tim Kowal 29:03
Yeah. Let me just tell our audience a little bit about since since you mentioned about the sidebars and and perhaps a constitutional right to having some of this matter be put on the record. There was in in preparation for our discussion today I looked up the 1992 California Supreme Court decision of people versus pin holster, were there that it was a case that involved 133 sidebar conferences, and the criminal defendant on appeal raised those 133 sidebar conferences that were not reported. None of those 133 conferences were reported, argued that this violated his constitutional right to due process and to have adequate review on appeal. And the court disagreed with that and said that well, there was under the circumstances that didn't amount to a substantial part of the of the reporter's notes. Substantial part is a provision that's under Penal Code Section 1181. And the court also made kind of a throwaway observation that in and if you really wanted them to be part of the record, you could have done a settled statement. Yeah. Okay. Have you ever and we've talked about the settled settled statements and how difficult they are trial judges sometimes just don't want to give them and I've seen appellate courts faced with a frustrated appellant who tried to get a settled statement, and they say that sorry, you know, trial court has it within its discretion to deny doing a settled statement. So it's, it's in the it's in the rules, but it's not really enforceable, it might as well not even be in the rules. I wonder if you had any reaction to that is, you know, how can there be a constitutional right to to have matters in the record if in a criminal proceeding, you could have 133 unreported sidebars, and that doesn't cause a constitutional issue?
Jimmy Azadian 30:47
Well, I think the first thing to note is in the in the Johnny Depp Amber hurt trial, which I only very loosely followed just through whatever came across, you know, my headlines on my phone, but I think they had reached 133 sidebars just the first day of that trial. So you know, it's not, it's not a remarkable proposition.
Tim Kowal 31:08
Okay, to che.
Jimmy Azadian 31:09
Yeah. And, you know, what we don't know is and maybe if I revisit that case, we'll learn what we don't know is from your explanation how long that trial was right? As 133 sidebars over the course of a six month trial? Oh, that's not you know, that's not too many sidebars? Right. I mean, when you when you've been paying off the jury for that long, you're, you're probably gonna have, you know, half a dozen to a dozen sidebars every day. So 133. Well, it sounds like a very large number. I mean, just to put it in context. But putting that aside, I agree with the court. And that decision, because again, the court is looking at it from a position of reversible error, right? Was there a showing there that somehow if the sidebars were reported, that would be able to supply that bullet to be able to reverse and it didn't see that there was a proffer that was presented even on the level of what the sidebars were, in order to say, had the sidebars been properly presented, you know, transcribed, then you wouldn't be able to have an opportunity to reverse. But I think also what the court is saying there is attorneys do your job, right. I mean, we didn't that wasn't a pro se litigant. It'd be interesting if it was a pro se litigant or criminal defendant representing itself with the trial court would have said there, but it was counseled, it was a counsel case. And I think what the court is saying is do your job, figure out a way to get this on the record. Okay. And they offer this settled statement. But they're not saying that that's the universe of possibilities on how you could get it into the record. That's, that's just one, you know, advisory notes that they throw out at that decision.
Tim Kowal 32:49
Yeah. Well, now, let me ask you a leading question. So we've been talking about these issues. What happens when you have these colloquia that are that the court reporter is not typing down? How do you get those to be part of the record in state court, but this problem doesn't happen in federal court, does it Jimmy,
Jimmy Azadian 33:05
you know, I have not really seen it happen, except for the time that I mentioned to you, that judges should remain nameless that bad infringement case. I have not had had this happen in federal court yet.
Tim Kowal 33:17
You know, why doesn't this problem happen as much in federal court?
Jimmy Azadian 33:21
Well, I think that the the the simplest answer is that the most of the proceedings in Article Three federal courts are video recorded or audio recorded. Right at state level. It's true. My bankruptcy friends Selmy. In other articles, federal courts, and in the tax courts and other anything that has a federal court, I hear even the Social Security Administration appeals are are, you know, recorded. So there does seem to be more of an effort to do that. And I know that at one time, we were doing that in California, in our state courts. Yeah. But that's no longer the case.
Tim Kowal 34:00
Yeah, we did that. Back in 1986, the legislature passed a statute a pilot program that allowed electronic audio recordings. But but that program sunsetted, the Judicial Council was tasked with reporting back to the legislature whether the program was a success, and the judicial council did and said, yes, it worked well, but the legislature didn't reenact the statute. So the Judicial Council decided Florida is going to pass a rule that allows for audio recording of proceedings. But then what happened was the California Court Reporters Association versus Judicial Council case went up eventually to see went out to to the Court of Appeal. And the Court of Appeal agreed with a quarter of the Court Reporters Association that the judicial council rules cannot override the legislative intent of the statute which was to sunset this program and for whatever reason not to reenact audio recordings. in superior court they still exist in in limited civil action. that rule is still there. It's still authorized by statute, but not in superior court actions. And I, and I've wondered, ever since why hasn't the legislature simply amended Code of Civil Procedure section 269 to allow those audio recordings, it was a it was a hit that it avoids all these issues and brings the state courts up into the 21st century along with the federal courts. I asked that question at a, at an event to justice O'Leary, presiding justice of the the 4/3, down here in Santa Ana, and she mentioned that court reporters have an awful lot of influence in Sacramento. And so it's a it's a terribly inefficient.
Jimmy Azadian 35:38
That was a very diplomatic answer, by her and by her honor. And I think she's absolutely right. I mean, the real money to be made, you know, on these proceedings, and transcribing this proceedings is in the unlimited category of cases, as you noted, and it is in these in these cases, and I think it is a very powerful lobby, the court reporters haven't tracked us mostly in federal court, I'm, I still, I'm still surprised at the way we do things state court, when it comes to our court reporting.
Tim Kowal 36:07
It leads to a terribly inefficient system where, especially now that a lot of counties have discontinued providing court reporters for proceedings. When you do I don't know how much how much attorneys are actually physically attending these days. But I it's it still happens in in virtual in zoom hearings, where there will be multiple court reporters sitting there waiting to waiting for their Mater number to be called up. And rather than just having having to pay one court reporter, you're paying 2345 court reporters to sit there for the same hearing,
Jimmy Azadian 36:42
or at least you're paying them to show up fee, right? If they're not able to get another get another it used to be, if you had multiple show up in person, they could find another gig in the same court room guardhouse and then you wouldn't be charged. But now it's virtual. And so they're showing up and now you're going to be charged to show up for you. They're not going to even if they're not transcribing, because I don't think you're gonna have three or four reporters transcribing the very same proceeding. But what I think the reason for this kind of circus is, if we can call it that is you have each attorney probably telling themselves the same thing I tell my attorneys, and that is I don't care if the other side says the court reporter. We bring one. Okay, because I've been burned before where the other side says, oh, let's split the cost. Or let's get a court report. You know, we'll bring our court reporter and you say, Are you sure? Are you sure? Oh, yeah, we're sure. You know, we've ordered the well guess what you got at the hearing? No court reporter. Right. And so you don't want to be that person to explain to the client. Why something as simple as a court reporter why that didn't happen. It's like an insurance policy. Yeah, you never need it when you when you have it. And then when you don't have it, all of a sudden you need it.
Tim Kowal 37:55
That's the same reason you issue your own trial subpoenas to the witness, even if the other side is calling that witness, you know, you don't want them to pull the line.
Jimmy Azadian 38:04
Exactly. That's exactly right. You know, I just Jeff, Tim and I worked together when I first got to Orange County, and he was like my seeing eye dog in a sense, like, he would show me things, you know, how they do things at trials in Orange County. And I remember that's one of the things that you had conversed with me on one of my first trials in Orange County was we still send out those we still send out those notices. I've been forgotten that well, not notices, but actual subpoenas.
Tim Kowal 38:32
So does this, in your view is this created access to justice problem? The fact that we have we don't have electronic oral recordings in California state court, we don't have court reporters that are provided by the court. And so if you want to, if you want to record, you're going to have to shell out of pocket, does this does this create an access to justice problem for for litigants who are no less well heeled?
Jimmy Azadian 38:55
So I don't know that I'm prepared to go as far as to say generally, it presents an access to justice problem? Well, certainly there are cases that we can identify where justice has been less accessible because of what we just talked about, right, because of certain things not being recorded or reported, rather, for the appellate court. What I am prepared to say is that I think it creates a confidence and justice problem there is I think it undermines the competence that we as attorneys, and we as litigants, that the public generally places in the administration of justice and the courts and in the legal profession, because it's something so basic as a public hearing. It's not a sealed receiving public hearing, and it's not being properly recorded to the point where things that at least one attorney believes is stated in court. It's undisputed that it stated that at least one attorney would like to see on the record and it's not being placed on the record. I think that creates confidence issue. You know, I think it undermines the confidence we have. And I think it starts to give the appearance, I wouldn't say of impropriety for the bench officer, but it starts to give the appearance that there are undercurrents that there are things happening beyond what the eye can see. Right. And that's never a good feeling when you're an attorney or a litigant or a judge.
Tim Kowal 40:23
All right, so we've talked about what an embedded appellate counsel is. We've talked about some issues with sidebars at trial, we've talked about some other tips for making sure that you have all of the important things that you need at trial. On the Record. Do you have any other tips for us, Jimmy about any other tips or war stories or good? Good? Maybe examples from the trenches of serving as a as embedded appellate counsel?
Jimmy Azadian 40:49
Oh, gosh, we could go on all day. I will tell you there's one thing that recently, I was reminded of by a judge who had actually come and spoken to some of my law students. And I thought this is such great advice. And I think Jeff, and Tim, and we, I don't know about you, I think this is true about you, too. I like to hear the things that I heard once, when I first started practicing law that the first principles, the things that we learned, when we were first lawyers, and I think over time, it's good to be reminded of those things, because it has become so ingrained in what we do, but it's become almost second nature, or it is second nature, but that what this judge said was, be authentic, be yourself, courts, juries, audiences, they understand you better, and they find you more credible, if you are yourself if you're authentic. So don't be paranoid. If you're not Perry Mason, you know, don't don't be Ted Boutrous if you're not Ted Boutrous. I mean, be you speaking your voice and be heard, you know, be heard that way. And I think that's still really good advice.
Tim Kowal 42:03
ALL RIGHT. Jimmy is at and thanks for for being here with us today. I think that wraps up this episode, Jeff. Yeah.
Jeff Lewis 42:09
Before we go though, I do want to thank case text again for sponsoring the podcast each week we include links to the cases we discussed using case text and listeners, the podcasts can find a 25% discount available to them if they sign up at case text dots.com/ca LP.
Tim Kowal 42:25
If you have suggestions for topics we should talk about or other guests that we should bring on the podcast please email us at info at cow podcast.com. And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal.
Jeff Lewis 42:39
See you next time.
Announcer 42:41
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes 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.
After an ear doctor was sued for pushing a charity on one of his patients, the jury returned a defense verdict. But the Court of Appeal reversed in Silvester v. Niparko (D2d7 Jun. 20, 2022 no. B301926) 2022 WL 2197100 (nonpub. opn.), holding that the trial court abused its discretion when it refused to allow Silvester to offer evidence of his impaired and vulnerable state when Dr. Niparko pushed his charity on him.
Seldom do judgments get reversed based on evidentiary rulings. But the judge here steadfastly kept out all Silvester’s evidence on an element of his claims, even rebuttal evidence.
Silvester suffered from tinnitus (ringing in the ears), and saw Dr. Niparko for treatment. Dr. Niparko successfully relieved Silvester of several millions of dollars by persuading Silvester to donate them to Dr. Niparko’s charity. But Dr. Niparko did not cure Silverster’s ears. (A second opinion years later indicated Silvester’s fish diet was spiking his blood mercury, which, once resolved, alleviated Silverster’s symptoms.)
Silvester sued Dr. Niparko (and after Dr. Niparko died, his estate) for actual and constructive fraud in taking advantage of his fiduciary relationship with Silvester who, in his vulnerable and impaired state, justifiably relied on Dr. Niparko.
But the trial court excluded the evidence of Silvester’s vulnerable and impaired state. Worse, the trial court also allowed Dr. Niparko to put on evidence that Silvester was not vulnerable or impaired, while barring Silvester from offering rebuttal.
The jury returned a defense verdict after less than a day of deliberations.
The Court of Appeal reversed, holding the trial court abused its discretion by excluding Silvester’s evidence supporting his justifiable reliance.
Here is the standard of review on evidentiary rulings to clip and save:
“Trial court rulings on the admissibility of evidence, whether in limine or during trial, are generally reviewed for abuse of discretion.” (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1317, accord, Zhou v. Unisource Worldwide, Inc. (2007) 157 Cal.App.4th 1471, 1476.) “The trial court's error in excluding evidence is grounds for reversing a judgment only if the party appealing demonstrates a ‘miscarriage of justice’—that is, that a different result would have been probable if the error had not occurred.” (Zhou, at p. 1480; see Evid. Code, § 354; Code Civ. Proc., § 475.) Under Evidence Code section 353, a verdict also “shall not be reversed due to the erroneous admission of evidence unless: ‘(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion ....’ ” (Atkins v. Strayhorn (1990) 223 Cal.App.3d 1380, 1390; see Evid. Code, § 353, subd. (a).) If a trial court's decision to admit or exclude evidence involves a question of law, we review that decision de novo. (Zhou, at p. 1476.)
Here, what tripped up the trial court was that evidence of Silvester’s vulnerability supported two different elements of his case. His vulnerability was relevant to establishing Dr. Niparko’s fiduciary relationship, and it was relevant to establishing Silvester’s justifiable reliance. On the existence of a duty, the trial court figured that the doctor-patient relationship already took care of that, so no need to bog down the record.
But the court agreed that the evidence was also relevant to Silvester’s justifiable reliance for his fraud claims. The trial court had allowed Dr. Niparko to offer evidence that Silvester was not in a vulnerable state. So definitely by that point it was error to refuse to allow Silvester to put on his own evidence.
The trial court had also excluded Silvester’s medical ethics expert on the grounds that breaches of medical ethics could not support Silvester’s fraud claims.
The Court of Appeal held this, too, was an abuse of discretion.
A breach of medical ethics may be a breach of fiduciary duty (see Scripps Clinic v. Superior Court (2003) 108 Cal.App.4th 917, 930-931 [triable issue of fact whether medical clinic breached its fiduciary duty by violating medical ethics code]), if that breach of fiduciary duty results in “misleading another to his prejudice” (Civ. Code, § 1573).
The court reasoned that evidence that Niparko's solicitation activities violated medical ethics standards was relevant, and the trial court abused its discretion by prohibiting Egan from opining whether Niparko had violated ethical guidelines.
There was one more curious detail in the opinion. The opinion notes that, during the trial, “Respondent agreed to a general verdict form in exchange for Silvester's written agreement that he would not seek to execute on any estate assets other than insurance and indemnity protection.”
Typically, defendants prefer to have special verdict forms, because it is easier to challenge them in posttrial motions and appeal. Silvester, to get his way on a general verdict form, agreed to limit his rights to enforce the judgment against the estate beyond the insurance and indemnity coverage.
This is an interesting strategy that may be worth exploring in your next trial.
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.
When trying to settle or mediate a case on appeal, how important is it to stay enforcement of judgment? Appellate mediator John Derrick talks with Tim Kowal and Jeff Lewis about whether posting a bond make a judgment-creditor more or less likely to come to the table. And what about the strange and rare personal-surety bonds?
Watch the clip here.
This is a clip from episode 32 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.
I have always thought a minute order has to be signed to be appealable. I don’t think so anymore. Even thought Liang v. Shi (D4d3 Jun. 14, 2022 no. G060655) 2022 WL 2128432 (nonpub. opn.) is unpublished, I think it’s holding is correct that the unsigned minute order there was appealable.
Liang involved an action to enforce a marital settlement agreement. The trial court awarded the mother $100,000 in fees. But the court made the award in an unsigned minute order, and then later signed a formal order.
The Unsigned Minute Order Was Appealable:
The father contended the minute order was not appealable for two reasons. First, because it was unsigned. Second, because it was followed by a formal signed order.
On both points, father had some authority to back him up.
On the first point, it is easy to find lots of cases that say an unsigned minute order is not appealable. But nearly all of those cases (maybe all of the published ones) deal with unsigned orders of dismissal. And under Code of Civil Procedure section 581d, an order of dismissal must be signed. (E.g., Powell v. County of Orange (2011) 197 Cal.App.4th 1573, 1578.)
Outside of dismissal orders, however, there is no requirement that a minute order be signed to be final and appealable.
And on the second point, it is also true that a minute order is not appealable if it contemplates entry of a formal order. (Banning v. Newdow (2004) 119 Cal.App.4th 438, 458 [“[W]here a formal order is required, a minute order is not appealable.”].) And here, father pointed out that the court did contemplate a formal order.
But not so fast. While the court asked counsel at the hearing to prepare a formal proposed order, the minute order did not indicate any subsequent order was contemplated. And that’s all that matters.
The Appeal from the Denial of Father’s Motion to Vacate Was Timely, But Unfortunately, All the Arguments Were Forfeited:
Luckily for father, he also moved to vacate the minute order. The motion was based on Code of Civil Procedure section 473(b). Father argued he had inadvertently slept through the hearing. The court denied the motion, and the father appealed that order along with the underlying minute order.
The mother moved to dismiss the appeal from the denial of the motion to vacate. The mother argued it raised the same issues as those in the minute order, and as that appeal had to be dismissed, it could not be resurrected by appealing the denial of the motion to vacate.
On this, the mother was only mostly right. What the mother was missing was that the motion to vacate may raise separate issues. And the father could raise those separately in his appeal from the denial of the motion. “[A]n appeal from an order refusing to vacate a judgment will lie when the record available to the appellate court on such appeal raises issues which are not disclosed or could not be disposed of on appeal from the judgment itself. [Citations.]” (Rooney v. Vermont Investment Corp. (1973) 10 Cal.3d 351, 359.)
Unfortunately for father, however, his appellate briefing did not raise any issues that were not disclosed in the underlying minute order awarding fees. So any issues in the motion to vacate that could have been decided on appeal were forfeit. (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179 [issue forfeited by failure to clearly identify in a heading, citing Cal. Rules of Court, rule 8.204(a)(l)(B)]; see Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [" 'The absence of cogent legal argument ... allows this court to treat the contention as waived" '].)
Comment: Note that the appellant here was represented by a very experienced certified appellate specialist. The rules of appellate procedure can trip up even the best attorneys. Best not go it alone.
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.
Being a victim of discrimination and harassment at the hands of an employer is hard enough, but what happens when your employer is a judge? On episode 39 of the California Appellate Law Podcast, Aliza Shatzman discusses her personal experience and why it was not only personally horrifying, but damaging to her career.
Aliza also shares how the experience motivated her to create the first-of-its-kind Legal Accountability Project, a resource for aspiring law clerks and other judicial employees.
We also cover with Aliza:
Aliza Shatzman’s biography, LinkedIn profile, and Twitter feed @AlizaShatzman.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
Tim Kowal 0:03
judges and have discipline their own, don't they?
Aliza Shatzman 0:05
Oh gosh. I wish judges are notoriously unwilling to discipline their own.
Announcer 0:12
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.
Tim Kowal 0:26
Welcome, everyone. I'm Tim Kowal, all operating under a provisional license from the California Department of podcasting.
Jeff Lewis 0:32
And I'm Jeff Lewis. The California appellate law podcast is a resource for trial and appellate attorneys. Tim and I are appellate specialists. But both our practices are split about even between trial and appellate courts. And in each episode, we bring our audience practice tips and legal news they can use in their practice,
Tim Kowal 0:48
and welcome to episode 39 of the podcast. A quick thank you to our podcast sponsor case text case, text is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at case text.com/ca LP. That's case text.com/ca LP.
Jeff Lewis 1:15
All right, and today we welcome attorney Elisa shots men to the podcast. Elisa is the president and co founder of the legal Accountability Project, a nonprofit aimed at ensuring that as many law clerks as possible have positive clerkship experiences while extending support and resources to those who do not. Elisa, I earned her BA from Williams College and her JD from Washington University School of Law. And during law school, She interned with four different components of the US Department of Justice. After law school, she clerked in the DC Superior Court in March 2022. She submitted a statement for the record for a House Judiciary Subcommittee hearing detailing her personal experiences with harassment and retaliation by former DC superior court judge. The intent of our statement was to advocate for the judiciary Accountability Act, legislation that would extend Title Seven protections to employees of the federal judiciary, Elisa regularly writes and speaks about judicial accountability. She has been published in the UCLA Journal of gender and law, the NYU Journal of legislation and public policy above the law law 360 Slate, Ms magazine and balls and strikes. Elisa also has two forthcoming short pieces in the Harvard journal on legislation and the Yale Law policy review. Welcome to the podcast.
Aliza Shatzman 2:37
Thanks for having me on the show. Yeah,
Jeff Lewis 2:39
no problem. Before we jump into the legal accountability project, why don't you tell us a little bit about yourself and the work you did before you began this project?
Aliza Shatzman 2:49
Sure. So graduated from Williams College in 2013. And Washington University School of Law or WashU. In 2019. In turn for the Justice Department in four different offices during law school, I had aspired to become a homicide prosecutor in the DC US Attorney's Office, and so I wanted to get a breadth of experience. After law school I decided to clerk in DC superior court during the 2019 to 2020 term intending to launch my career as a homicide prosecutor. Unfortunately, during my clerkship, I experienced gender discrimination and harassments ultimately faced retaliation by the former judge for whom I clerked. While I was during basic training in the DC US Attorney's Office, I became aware of the judiciary Accountability Act legislation that would protect you to Cherie employees under Title Seven. While I was going through the judicial complaint process in July of 2021, I reached out to some House and Senate offices to share my story and advocate for the judiciary Accountability Act, or J. And then when a House Judiciary Subcommittee hearing happened in March 22, I was invited to submit a statement for the record advocating for the J and an amendment to cover the DC courts, which is where I clerked, and then I was working as a family law attorney at the time. In the weeks following my statements, I received a very positive response and began talking with my friend and now co founder Matt Goodman, about some ways to further that advocacy work. And then eventually the legal accountability project was born. And we officially launched on June 1 2022.
Jeff Lewis 4:23
Okay, great. And it's just a pet project. Is this a side gig? Or is this a full time project for you?
Aliza Shatzman 4:29
So this is my full time job. I quit my job in April to get this off the ground. This is what I'm doing full time. My co founder also quit his job to do this. And what makes us unique in this space is that we are the only nonprofit working on judicial accountability and clerkships issues full time and I'm the only founder in this space advocating based on my personal experience with harassment and retaliation by a former judge,
Tim Kowal 4:55
the only nonprofit dealing with judicial accountability you said judicial accountability and clerkships. Yes. Well, I assume we'll get into that a little bit deeper. But how is just generally how has problems or complaints by clerks been dealt with up until before now.
Aliza Shatzman 5:12
So law clerks rarely file complaints against judges because there's just this enormous power disparity between fresh out of law school clerks and often Senate confirmed often life tenured federal judges, it makes it enormously difficult to file a complaint. In the instances when complaints are filed. Those if you are a federal law clerk, you're complaining under the Judicial Conduct and Disability Act, that is a federal legislation by which a law clerk and attorney or a litigant can file a complaint against a judge. And so in the past, unfortunately, the vast majority of those complaints are dismissed. The other process by which a law clerk can attempt to seek summer dress is employee dispute resolution, or ADR. That's the internal complaint process for law clerks to seek reassignment to get away from their misbehaving judge. Unfortunately, that remedies for that process are limited. And that process is not standardized. So overall, they're not handled well. And law clerks. I mean, most of them are just suffering in silence, which is why I'm out here advocating for this issue and sharing my story. I think they need to be handled one better and two differently.
Tim Kowal 6:26
Right. Now, you mentioned that your experience was in the DC Superior Court, and and your advocacy for the legal accountability project is in Congress. And I wonder if you can explain a little bit more about the DC Superior Court where it fits in is it is it under the jurisdiction of Congress? How does all that work?
Aliza Shatzman 6:45
Sure. So the DC courts are Article One courts, that means they were created by Congress or their article one courts that folks have heard of our Court of Federal Claims, bankruptcy courts, tax courts. So the DC courts are regulated by Congress, as is the DC commission on judicial disabilities and tenure, the regulatory body for DC judges. DC courts are our local courts here in the District of Columbia. They hear cases on local issues, but they are regulated by Congress. And our judges are unique in that they are Senate confirmed for 15 year terms. So right now, the judiciary Accountability Act does not cover the DC courts. I'm advocating for an amendment to include the DC courts and other article one courts. Currently, one article one court is covered the Court of Federal Claims, but there are others that I believe should be covered tax courts, bankruptcy courts, and there is precedent for this. If you look at the ethics and Government Act, that covers the DC courts and other article one courts. If you look at the Judicial Conduct and Disability Act, which we mentioned a minute ago, that covers many Article One courts. So I think it's a no brainer to cover the DC courts under the J.
Tim Kowal 7:55
Yeah, why would they cover some federal courts but not all?
Aliza Shatzman 7:59
So in my conversations with congressional offices involved in J drafting, it seems to be primarily an oversight. But the DC courts are unique they are DC is local courts, and Congress is notoriously unwilling to further regulate the DC courts because they're considered a local issue. So it makes it politically challenging, especially to convince Democrats to further regulate the DC courts. I think this is an issue where further regulation is necessary. It's unclear right now whether the DC courts are protected under Title Seven of the Civil Rights Act. I've talked to fed court scholars who believe that the DC courts as an article one court are similarly exempt from Title Seven the way Article Three federal courts are exempt. So right now, DC courts law clerks similar to Article Three federal law clerks cannot sue judges under Title Seven of the Civil Rights Act and seek damages for harms done to their careers, reputations, future earning potential. So this is a niche issue that I'm trying to raise awareness of, and it's the subject of my law journal article with the UCLA Journal of gender and law.
Jeff Lewis 9:07
So it's a niche issue, but it's important let me ask you this. I took an unusual route to appellate law, in that I never clerked for a judge. I never had an externship. I never worked in chambers. Can you explain to our audience, kind of what your expectations were regarding the benefits of a clerkship and why you sought one out in the first place?
Aliza Shatzman 9:26
Absolutely. So for folks who haven't clerked, a clerkship is basically when a young attorney spends one or two years working for a judge, learning from them. It's typically fresh out of law school grads, although more and more judges are looking for folks with some work experience. So typically, what happens is law clerks tasks vary from chambers to chambers, but they handle research and writing. They go to court with the judge. They take notes, they assist them, they participate in judicial decision making which may It is enormously valuable for folks who want to go on to careers as prosecutors public defenders or in big law, and they also learn The Good, the Bad and the Ugly from the attorneys who appear before the court. So it is an enormously valuable learning experience. In the best of circumstances through a clerkship, a law clerk will develop a lifelong mentor mentee relationship with a judge and they the judge will help them in their career path. Unfortunately, in the worst of circumstances, which is what I'm trying to raise awareness of. It can be an enormously negative experience and a lifelong retaliatory negative relationship. Judges have enormous power over their former clerks lives, careers and reputations, and a judges reference can make or break a law clerks career, their next job and even a lukewarm reference is basically a statement that's this clerk might be unemployable in the future.
Tim Kowal 10:52
Can you think of a of an analogous industry where, where an employer will have as much influence as a judge will have over a clerk like, for example, congressional aides and staffers to do similar stories come out of there where I can imagine that maybe the relationship is somewhat similar is between a clerk and a judge.
Aliza Shatzman 11:14
So I don't think there's really any analogous workplace which is why it's so troubling. And so congressional staffers are protected under Title Seven of the civil rights act as our executive branch employees back in 1995, pursuant to two separate laws, these protections were extended. So while a congressional workspace is kind of similar in size, it's small a couple of staffers and a house office and a member of Congress, the member of Congress is accountable to the voters every two years or in the Senate every six years. They are not life tenured. I think it is the life tenure of judges or for judges, you have 10 or 15 year terms, if they're state court judges, the perception of life tenure, that makes it so enormously difficult.
Tim Kowal 12:00
Yeah. And that would be different in in Article One courts, though, at least there would be a little bit more room for accountability there. Is that Is that true?
Aliza Shatzman 12:09
Theoretically, maybe in practice? No, I can say in the DC superior courts. And actually, I mean, I've talked to lots of state court judges as well. They reach out we talk about these issues, I always ask what I'm missing in the conversation about judicial accountability. Even folks who have tenure terms, and then they're subject to reappointment or re election basically perceive themselves to have de facto life tenure because it's so difficult for them to be removed or not reelected. And then in the DC courts. The DC commission on judicial disabilities and tenure is the regulatory body for these judges. In the 52 year history of the commission in the DC courts, they have never disciplined or removed a judge for gender discrimination or harassment or retaliation. That is a red flag that these types of disciplinary processes are not working effectively.
Tim Kowal 12:58
Now Elisa before your clerkship in the DC, Superior Court, have you ever heard of judicial clerks or judicial employees complaining, harassment or misconduct, like the kind that you experienced?
Aliza Shatzman 13:11
So honestly, I really hadn't. I mean, I applied for clerkships in 2017 and 2018. I started my clerkship in August of 2019. And really, obviously, I experienced mistreatment. And that's when I became aware of it. And as I started confiding in clerks, I discovered that it was pretty pervasive in my courthouse and others, and it was really watching Olivia Warren testified before the House Judiciary Committee in February of 2020, that I became very aware of the scope of the problem. I knew vaguely the allegations made against former judge Alex Kaczynski back in 2017. But I think, unfortunately, before it happened to me, I wasn't fully aware of the scope of the problem.
Tim Kowal 13:55
I wonder if you could, if you give our audience a flavor of the kinds of allegations that you are hearing about the kinds of allegations that are being made by former judicial clerks that are that have driven you to deform the the, the Accountability Project?
Aliza Shatzman 14:11
Sure. So I since I've been speaking publicly, so a couple months now, I receive emails and other messages, LinkedIn messages, Twitter, DMS every day, from current and former clerks and state and federal courthouses across the country, sharing their stories telling me they couldn't speak publicly thanking me for what I'm doing. And the fact pattern is trouble me because while I can, I'm not going to go in detail about the range of allegations a lot of them fall in one similar fact pattern and it's my judge says that I am a poor performer and I am not dedicated to the clerkship, but he or she won't give specifics. And I hear that over and over. And what troubles me in addition to the fact that reminds me kind of my of my own experience, is that what I see In these stories is the breeding ground for a long term retaliatory negative relationship between these judges and their former clerks. As if harassment and mistreatment during one's clerkship were not devastatingly painful enough, the idea that a malicious judge would continue to give negative references to badmouth the former clerk and the legal community to get them barred from future jobs from their dream job. It's just I mean, it's despicable. And I really worry, as I hear these stories that not enough is being done. I mean, I've been heartened by the positive response to my story. And I'm told by judges every day, they understand the judiciary Accountability Act is not going away. But I'm really trying to underscore the scope of the problem, the pervasiveness of the problem. And also, people began to talk about these issues in 2017, when the Washington Post broke, because insky story, but that former judge had been harassing his clerks for decades. It just story broke in 2017. And we need to think about that people say to me, Well, I got engaged when I heard those stories. I'd said my changes, then, well, what about the decade's worth of clerks whose lives and careers were destroyed? In the past, we really can't only focus on these issues when there is a flashy hearing, or a flashy story in the Washington Post, this needs to stay in tension.
Jeff Lewis 16:27
Do you want to share any of the experiences that you had personally as much as you feel comfortable, that led you to form this project with your with your co founder?
Aliza Shatzman 16:37
Sure, I talk about this a lot. I'm happy to share my story. And I really feel like it's one of empowerment, I mean, I want to empower other clerks to speak out and file complaints and share their stories. So I'm happy to share mine. So I started my clerkship in August of 2019. And pretty much just weeks into the clerkship, my judge began to discriminate against me based on my gender, gender and harass me and just generally mistreat me, he would kick me out of the courtroom and tell me I made him uncomfortable. And he just felt more comfortable with my male co clerk told me I was aggressive and nasty and a disappointment. The day I found out that I passed the DC bar exam, he called me into his chambers gotten my face and told me you're bossy. And I know bossy because my wife is bossy. And it was just, I was just, it was just devastating. I mean, I remember crying in the courthouse bathroom, crying myself to sleep at night, I wanted to be reassigned to a different judge, but we didn't have an employee dispute resolution plan in place in my courthouse and 2019 that would have enabled a reassignment. So I tried to stick it out, because I desperately wanted to be a homicide at USAA and the DC US Attorney's Office, and I needed that year of experience. And I needed a reference from a judge. So we eventually transitioned to remote work. During the pandemic, I moved back to Philly to stay with my parents. And from mid March to late April, the judge basically ignored me. So they call me up in late April and told me he was entering my clerkship early because I made him uncomfortable and lacked respect for him. So he reached out to DC courts HR, and they told me there was nothing they could do because HR doesn't regulate judges, and that judges and law clerks have a unique relationship. And then they asked me didn't I know that I was an at will employee took me about a year to get back on my feet. after that. I connected with some other DC judges who directed me to the DC Commission where I ultimately file my complaints. So I drafted it, but I wanted to wait to file it till I had a new job because I feared the judge would retaliate against me. So I secured my dream job in the DC US Attorney's Office moved back to DC in July of 2021. And I was two weeks into training. When I was told the judge had made negative statements about me during my background investigation, that I wouldn't be able to obtain a security clearance and that my job offer was being revoked. So a couple days later, an interview offer for a different position with USAA. I was also revoked based on the judge's same negative reference when I was two years out of law school and the judge just seemed to have such enormous power over my life, my career and my reputation.
Tim Kowal 19:15
Right. So this went beyond just being a negative personal experience. It turned into a negative professional experience.
Aliza Shatzman 19:22
Yes, yes. And that's one of the things Yeah, so long term like retaliatory relationship. The long term negative relationship is something I'm really trying to raise awareness as that it goes so far beyond just the Chamber's poor relationship with a judge. No,
Tim Kowal 19:36
I'm sure at some point, the judge your your former judges, other colleagues, judicial colleagues learned of these allegations and police their own and set them aside and had a good talking to right. The judges kind of discipline their own, don't they?
Aliza Shatzman 19:51
Oh, gosh. I wish judges are notoriously unwilling to discipline their own and in the DC courts, I mean bar associations do promulgate rules that kind of say judges should police their own if a judge becomes aware of colleagues misconduct or judges poor health that they are obligated to report on this, but my former judges colleagues protected him till the bitter end. And
Tim Kowal 20:18
how do you know that? You know, to the extent
Aliza Shatzman 20:20
I am aware of folks who spoke with the Commission during the investigation, and I can't comment too deeply on that, but I am aware, I'm aware that's his colleagues protected him, which I find particularly troubling. I've said publicly, there are judges on the bench in DC right now who have committed misconduct, there are judges on the bench who protected my misbehaving former supervisors misconduct until the bitter end for on the bench right now who have not been investigated. And I mean, what I've said to the DC commission since this time, and what I've said to the DC courts, to the extent they listen to my public statements is that by Miss handling these types of judicial complaints, the Commission and the courts chill future complaints by law clerks, against judges, because they get the message, don't bother coming forward, don't bother filing a complaint, your reputation will be destroyed and nothing will be done. And I just think that's enormous ly troubling. I share my story in the hopes it'll empower others to speak out. But as I as I do, I understand I'm talking about all these terrible things that happened to me and what our law clerks gonna think. I mean, are they going to be empowered? Are they just going to be fearful?
Jeff Lewis 21:31
Well, let me let me ask you on this point, let me say two things. First, let me just say as a, as an older lawyer, I'm so sorry, you went through this and that there wasn't a mechanism in place to to be there for you. So I'm just so sorry to hear about this. And let me ask, in addition to cataloging some of the horror stories of clerkships is part of your project going to do anything to memorialize or highlight happy and positive experiences by law clerks?
Aliza Shatzman 21:58
Definitely. So yes, the legal accountability project, we're working on a couple of fall initiatives. The first one is a centralized clerkships reporting database. And I think I should back up because I haven't really explained the process by which folks get clerkships right now there is no way for law clerks to know who the good judges are to apply to and who the misbehaving ones are to avoid unless they are through whisper networks of other former clerks reaching out to someone who's going to give them the full scoop, going to say this judges great absolutely apply to them, or this judge harasses this clerks never ever apply to them. So what I'm seeking to do is kind of combat those whisper networks and centralize the information. So our centralized clerkships reporting database will enable every former and current clerk from every law school to make a report about their clerkship, good, bad medium, we want to hear all of them. And every law student at every institution will be able to read the reports and know who they should apply to and who they should avoid. And we're working with law schools, because we want to capture the full scope, the good, the bad, the medium, we don't want to just put up a website and let people report randomly. Because what I know is that in those types of circumstances, we'll get the people with the terrible experiences some or the people who are raving about the judge, we want to get the full scope. But yes, absolutely. We want to get the good ones to tie.
Jeff Lewis 23:26
Yeah, I'll just say it's not just good and bad. There's other qualities of judges in terms of making a love connection between a judge and a clerk like judges that maybe would give a clerk more courtroom experience are more writing experience or is more close supervision as opposed to a hands off those kinds of qualities, right?
Aliza Shatzman 23:42
That's correct. Yes. And those are the types of questions we asked about in our survey database. We elucidate that kind of information as well. Yes.
Jeff Lewis 23:51
All right. And will I be able, as a member of the public to access this database and learn about all the stock stories behind a judge I'm about to appear in front
Tim Kowal 23:59
of as a lawyer. Yeah, I love the robing room. And you will not
Aliza Shatzman 24:03
not unless you decide to change your career and go clerk for a year. No. So the database will be accessible to former clerks who filed a report law students whose schools are participating in the database initiative and to law school administrators and Dean's to the extent they want to read the reports. It will not be publicly accessible. Judges will not be able to read the reports we anticipate that most law clerks will report anonymously and that is fine. And I am personally very sensitive to fears about reputational harm or retaliation, based on my personal experience, it's really just about centralizing and democratizing the information so that we stop seeing these really troubling silo effects whereby a couple of schools are hoarding information that they know about misbehaving judges, sometimes they warn students, sometimes they don't, but for the five or so that collects this information, it does nothing for the 1000s of law students who apply each year to clerkships and who are unwittingly walking into hostile work environments, just because their law school has decided not to maintain any sort of internal database. It has nothing to do with the ranking of the school. The geographic location is totally random, which schools are doing a good job of protecting their students, and which ones frankly, are doing a terrible job?
Jeff Lewis 25:21
And are you focusing on the East Coast? Are you going nationwide? What's the scope of this fall initiative in terms of your database?
Aliza Shatzman 25:28
We are going nationwide. Right now I'm talking to about 50 schools, and we're looking for 10 partners for our pilot program. And it's going to represent a variety of geographic locations, sound
Tim Kowal 25:40
or law schools willing to get involved here or is there are they worried about like an omerta code code of silence that if they start participating in this project, that they might get the cold shoulder there, or their students might get the cold shoulder when it comes to judicial clerkships.
Aliza Shatzman 25:56
So law schools have been very receptive to this project. And I think there are two reasons. The first is that they like that this takes the onus off them that it takes it out of their hands. If every clerk reports into a centralized database, the law schools don't need to judge the veracity of the reports. They don't need to weigh a positive and a negative report and decide, do we show students both? Do we show them neither? Do we warn them? Do we take this judge out of our database, they like that it's clerk to clerk reporting. So they are interested. And the other reason I think law schools are excited about this is because harassment in the judiciary and these long term retaliatory negative relationships we've talked about, drive young attorneys from the profession, either because they are blackballed from their jobs by judges who are giving retaliatory negative references, or they just feel so mistreated that they leave the law. That's a bad look for law schools to say we graduated 200 students, but two years later, this many are no longer practicing law. So law schools are excited. They are, you know, wanting to learn more information. And for the schools that are not ready to make changes. Now. We'll be circling back with them next year to try again. And I am going to be going to a lot of law schools in the fall traveling all over the country to share my story to talk about the legal accountability project and the work we're doing. And we're already seeing a real groundswell from law student groups. They are excited to talk about these issues. They want these resources and for the schools that haven't signed on to our initiatives are hoping that between law students, law school alumni and professors will really get at some of these recalcitrant administration's.
Jeff Lewis 27:39
So the creation of the database seems to be one of your your initiatives for project and to solve a problem in terms of clerks finding a good fit and avoiding a bad fit. Are there any other problems that you're seeking to tackle regarding with your project?
Aliza Shatzman 27:54
Yes, so our other big fall Initiative is a workplace assessment of the federal and state Judiciary's. So the federal judiciary has been notoriously unwilling to conduct a large scale workplace assessments and ours is going to elucidate data on the types of law clerks facing mistreatment, the true availability and accessibility of resources in their courthouses and their concerns about reporting either to the judiciary or to their law schools. What we see is that sometimes, Judiciary's conduct internal assessments, The Washington Post recently reported the DC Circuit conducted one last year, and that was for internal purposes that was not supposed to leak. What we saw from that survey is 57. Employees, law clerks and other judiciary employees experienced harassment and retaliation by judges, an additional 134 witnessed or heard about problematic behaviors. And that creates an enormous data mismatch between those data and what the federal judiciary leadership says probably, which is harassment is not pervasive in the federal courts. Well, that's false. I know that to be untrue. So we are planning to send our workplace assessment to the past 10 to 20 years of law clerk alumni at various institutions in the fall, we are confident that law schools maintain that contact information and we're asking them to send our survey, we're looking for a geographically diverse sample for a diverse sample in terms of the rankings of the schools. And we hope to finally quantify the scope of the problem of judicial misconduct, because I really feel like that is the first step toward crafting effective solutions. And this data has never been collected before. So stakeholders and nonprofits and advocacy orgs are very excited to see this data. And, you know, I'm working with folks across the spectrum, from the most conservative to the most liberal offices and organizations. I'm talking to lots of individual judges who think it's time to do this. And it's really just recalcitrant judiciary leadership that's just unwilling and so we're trying to pick up the slack.
Tim Kowal 29:53
So you said that the judiciary the federal judiciary leadership has been unwilling to do this assessment, but what what You But individual judges a little earlier, you said that the judges were not policing their own. But what about their enthusiasm? Or are they receptive to the legal accountability project?
Aliza Shatzman 30:10
They really are. And I mean, I think it's probably not a representative sample, because the judges who reach out to me or who agree to speak with me are probably the ones who are doing a good job. But I talk to state and federal judges every day they reach out to me I reach out to them talk about judicial accountability, the judiciary Accountability Act, and the legal accountability projects, initiatives. And the I've received a lot of support from what I'm doing. I mean, when I talk to state judges, or federal judges who were previously state court judges, they say, either I didn't even realize that I was exempt from Title Seven, or nothing about me change the day, I went from being a state to federal judge such that I should suddenly be exempt from Title Seven. So they are on board. And, you know, I think it's really, for judges who are doing the right thing right now, which is treating everyone with respect, they should support additional judicial accountability measures because they raise the bar for workplace civility, and this legislation will not really affect them at all day to day. It's the misbehaving judges or judiciary leadership, who seems to have something to hide, which is going to be affected by the new rules, and a judiciary wide commitment to enforcing the existing rules. Yeah.
Tim Kowal 31:21
Now, I hope this doesn't sound like a cheeky question. But I wanted to ask is, Is there something like a Harvey Weinstein problem going on here? I mean, I'm not such suggesting an equivalency, between the judiciary in Hollywood. But there does seem some, at some level, there's a similarity between, you know how surreal world Hollywood is, and also how surreal a world that the judiciary is the neither one is a normal profession, you know, normal people don't look at Hollywood and, and think, oh, you know, like, I can apply for a job there. It's kind of like a special place only special people go there. And similar thing for the judiciary, these are, these are special people, they kind of they kind of live and exist outside of a normal reality. And we're seeing, you know, your project is seeking to apply some of the normal rules that apply to normal workplaces to a special place. You know, as you said, there is no profession or industry that you can think of where the relationship between a judge and a clerk is quite the same or anywhere near it. Even even legislative aides are different because there's more accountability built in institutionally with with elected political leaders, as opposed to the judiciary, do you anticipate resistance kind of institutional resistance to trying to apply normal rules to something like a very special type of workplace?
Aliza Shatzman 32:40
So I think right now, it's only considered a special workplace because there's some issues in the legal community with deifying, judges and disbelieving law clerks, I really think of judges as employers, they are running workplace and they should be subject to workplace protections and workplace regulations like everyone else. Yeah, I think I don't think it's a unique workplace. I think it's a workplace particularly conducive to harassment due to the enormous power disparities, the exemption from Title Seven and the lack of enforcing workplace policies. But no, I don't think these are special workplaces at all.
Jeff Lewis 33:18
Let me let me ask you this. It's been widely reported, there's a court back east with nine justices. And it's been widely reported about a opinion that was leaked, and an investigation going on asking for law clerks for cell phones or cell phone data. And lots of hard questions are being asked back there. Did you have any thoughts about the dynamic that's going on back east in terms of those clerks and the Supreme Court justices?
Aliza Shatzman 33:41
Absolutely. Well, I think it's an enormous invasion of privacy to ask a law clerk for their cell phone records. So I should say that upfront, but I think more importantly, for my purposes, this issue highlights the enormous power disparity between a Supreme Court justice and his or her law clerks. When Justice asks you for your phone records, you are really not in a position to say now, that doesn't mean you shouldn't you shouldn't say no, and you should hire an attorney. But in terms of folks, I've spoken to just former SCOTUS clerks and other people off the record. They're very concerned about this enormous power disparity where they feel like they can't say no, so it's, this is an important case, because it's raising awareness of some of the issues I'm talking about. I'm just a heightened level. So
Jeff Lewis 34:27
yeah, I imagine if you hand your cell phone off to your mentor to somebody you trust, and there's nothing in there about a leaked draft, but there's all sorts of records in there or texts about something else controversial, perhaps you're gay, perhaps, you know, anything. There could be career lasting implications from handing that phone over. And, and I and I imagine that any of those law clerks that lawyer up might also face consequences just for lawyering up.
Aliza Shatzman 34:53
Absolutely. And I mean, if you're a supreme court clerk or you're a clerk anywhere you go in This clerkship hoping for a lifelong mentor relationship hoping for a positive reference. So yeah, if you were to not turn over your records, or if you were to turn them over and your judge found out something about you that was, you know, less than stellar or otherwise, you know, negative, that would have enormous damage to your career and reputation as well. I think it's just so important to highlight the enormous long term power that these judges and justices have over their clerks and former clerks careers.
Jeff Lewis 35:30
Yeah, it was on display. There was a J six hearing this week when you saw one former law clerk questioning from live national TV, his former mentor about the actions of another former law clerk, crazy lifelong relationships formed by these clerkships. Interesting.
Tim Kowal 35:50
I had Well speaking of the Supreme Court, and this is a little bit following up on my question about there being this there being kind of a special is, you know, is a is a judicial clerkship, a special type of workplace or you answered, it's not where it shouldn't be. But I want to follow up about the perception that it is. So talking about the Supreme Court, there's there's been reporting that former Supreme Court law clerks command, you know, enormous signing bonuses, $400,000 $450,000. And, and then similarly, there's, there's also reporting that, that over 80, former staffers of the Senate Majority Leader, Chuck Schumer's office are now working in big tech. And I don't imagine big tech is going to the hill looking for top coders. I don't think that's that's quite the skill set they expect to find there. There's, there's some other kinds of value that they have. And I wondered if in both cases, judicial clerks and and other people close to powerful people is maybe the the big value, or even the principal value of having these kinds of clerkships and legislative aide positions is the connections that they bring, at some level, the value of having an elite clerkship is that it shows you have these connections. And if I can get, for example, Neil Katyal, to put his name on my brief, do I care that he didn't write a word of it? Not a bit, I'm not going to pay Neil Katyal, you know, $2,500 an hour, which is apparently his going rate, because he's Marcel Proust, I'm paying because judges and law clerks are going to see Neil Katyal his name and realized this case is a big deal. And I'm going to look at these arguments with different eyes then. Benefits just just lowly Tim colwall. So most of us attorneys hocking wills and trusts and breach of contract complaints for a living, look at all that and say, Yeah, I give up a body part to be in this kind of Skull and Bones club, that how do you respond to that perspective that everyone knows, clerkships are not quite a normal job? They are? Not that, you know, I'm not suggesting that they shouldn't be, you know, I agree with you that they shouldn't be subjected that same same kind of harassment laws and rules. But judges, in a way are not normal employers, you don't get the you're getting a special kind of value for being a clerkship and you get the feeling that some people kind of take that approach that working for an elite government official, like judges is a special privilege. And maybe, maybe you should just suck it up. You ever you ever encountered that kind of resistance?
Aliza Shatzman 38:17
I do occasionally. I think it's more that I see it bubbling up on Twitter, I'm not sure anybody's willing to say it to my face, knowing what they know about my personal experience. But I think some people certainly feel that way. And I should say, in terms of sharing my story, I've received wider support from male attorneys and from female attorneys. I think the perception among some female attorneys, particularly government attorneys, as is we experienced it, and we got through it, why can't you? So I think that is a terrible attitude. I think we are seeking to change workplace culture and nobody going into a job shouldn't be subjecting themselves to harassment, discrimination, retaliation, it might be a privilege to work for a judge, but that doesn't mean you should ever be mistreated in the workplace.
Tim Kowal 39:08
Yeah, and I agree with you, but that I just wanted to set up that question, because I wondered if there's that perspective there because it is it does strike me as such an unusual, unusual workplace. And I just, I think it's it's it's a struggle, and I'm glad you're you're taking up that struggle and trying to apply some of our basic, you know, basic rules of decency in in that kind of surreal workplace.
Aliza Shatzman 39:32
I really think that we should think about judges more as employers, and that when we get down to it with the judicial appointments process, we should be thinking about them more as employers than as judicial decision makers. I mean, this is a bipartisan issue. both Democratic and Republican judicial appointees mistreat their clerks and both conservative and liberal clerks face harassment and retaliation. We should really be thinking about who is going to be a good employer who's going to treat everyone And with respect, regardless of your judicial philosophy, I mean, I care less about any one individual ruling than I do about how these judges are treating their clerks, how they're treating the next generation of young attorneys. And I think we should be thinking about that a lot more. I mean, you think
Tim Kowal 40:15
that that attorneys and even the public at large valorizes judges too much?
Aliza Shatzman 40:21
Absolutely. There is an enormous problem with deifying. These judges treating them as if they can do no wrong. And it it starts in law schools, which is one of the many reasons why I'm trying to tackle this problem with law schools is because we are taught from day one that judges can do no wrong. I mean, it's everything from the way clerkships are talked about as this checkbox you need for your first job, so many panels starting one L year on clerkships bringing all these judges to campus maintaining these close relationships, judges and law schools and professors. Yes, there's an enormous problem with deifying, judges and disbelieving law clerks. And that's why larger cultural change in the legal community is necessary and why, you know, legislation can't fix everything. And this is one of the reasons why I think it's so important to share my story. And I feel like it resonates with a lot of people, which is a helpful start, but I really need them to understand that my story is not rare. Even if you think it's particularly outrageous. It's not this is happening in courthouses every day. And if you are not encouraging law clerks to bring their full selves to work, if you are telling them to be silent in the face of mistreatment, you're really part of the problem at this point.
Tim Kowal 41:34
So at least if attorneys listening right now are interested in getting involved either in the legal accountability project or in addressing some of the other pieces of the puzzle to bring more accountability to judges as employers, what what can they do?
Aliza Shatzman 41:48
Yeah, so they can learn more information on our website. That's legal accountability project.org they can sign up for more information they can donate. Those are both helpful. If you are an attorney, who is a obviously you're a Law School alum, um, you should reach out to your law school and see are you planning to participate in the clerkships database? Are you planning to send out the workplace culture assessment, we really need buy in from alums. And I think the other thing that's important is, the legal community is always looking for more attorneys to represent law clerks pro bono when they're going through the employee dispute resolution process when they are filing formal complaints when they are trying to seek judicial accountability. So if you're moved by my story, and you are an employment attorney, I hope you'll consider reaching out to me, I can connect you with law clerks currently seeking attorneys who can help and part of our long term goal probably our three year plan at the legal accountability project is to create an employment attorney database to connect employment attorneys with mistreated clerks seeking help.
Jeff Lewis 42:51
Well, hey, I want to thank you for standing up for those who are in such a power disparity that they can't stand up for themselves. And I want to thank you for appearing on our podcast today. It's been really, really informative. So thank you.
Aliza Shatzman 43:05
Thanks for having me on the show.
Jeff Lewis 43:07
Yeah, I think that that wraps up this episode. Tim,
Tim Kowal 43:10
right. If you have suggestions for future episodes, we always welcome tips for topics to talk about and guest to bring on the show, please email us at info at cow podcast.com. And look in our upcoming episodes for more tips on how to lay the groundwork for an appeal and more insights into the lives of lawyers and judges.
Jeff Lewis 43:30
And we do want to do one more thank you to case techs for sponsoring the podcast each week, we include links to the cases we discussed using case texts and listeners of the podcast can find a 25% discount available to them if they sign up a case text.com/ca LP
Tim Kowal 43:45
C. So you really got me with his role reversal today, Jeff. All right. Thanks for listening. See you next time.
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You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases the news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes 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.
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 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.
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.
The unusual thing about Kling v. Horn (D2d7 Jun. 8, 2022 no. B310164) 2022 WL 2062642 (nonpub. opn.) is that the party who won the judgment was the one raising a problem about it.
Following an arbitration over an attorney fee dispute, the trial court entered a judgment of about $120,000 to the attorney. But to the attorney’s chagrin, the judgment stated that the parties shall bear their own fees and costs. The attorney didn’t like this because he claimed he was entitled to contractual attorney fees. So the attorney moved the trial court to amend the judgment to remove that part.
But before the trial court ruled on the motion, the client appealed. So when the trial court amended the judgment confirming the arbitration award, the client appealed again. The client’s second appeal, then, argued the amended judgment violated the appellate stay.
Compounding the confusion, the trial court also granted the attorney’s motion under Code of Civil Procedure section 187 to add the client’s business entities as co-judgment debtors. Again, while the appeal was pending. This was the subject of yet another appeal, 3123 SMB, LLC v. Horn (D2d7 Dec. 14, 2021) no. B309412 (nonpub. opn.).
The court noted the trial court created a “procedural mess” by amending the judgment pending appeal.
In the 3123 SMB case, the court held that the appellate stay applied to proceedings to add judgment debtors under Code of Civil Procedure section 187.
The appellate stay under Code of Civil Procedure section 916 “divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 198 (Varian).) "When triggered, [section 916] bars all proceedings" in the trial court "that 'directly or indirectly seek to "enforce, vacate or modify [the] appealed judgment"'" (LAOSD Asbestos Cases (2018) 28 Cal.App.5th 862, 872.)
One of the exceptions to this rule is that a trial court may amend a judgment to correct clerical errors "when the mistake is obvious from the other parts of the record and the proper correction can be made therefrom.” (Crawford v. Meadows (1921) 55 Cal.App. 4, 11.)
But amending a judgment to add a new defendant is not a clerical error: 'The difference between judicial and clerical error rests . . . on whether [the alleged error] was the deliberate result of judicial reasoning and determination'" and on "'whether the error was made in rendering the judgment, or in recording the judgment 6 rendered.'" (Machado v. Myers (2019) 39 Cal.App.5th 779, 797.)
The ruling adding new entities “was an intentional decision based on the trial court's understanding of the law and the facts; it was not an "inadvertent one made by the court which cannot reasonably be attributed to the exercise of judicial consideration or discretion."” (Bowden v. Green (1982) 128 Cal.App.3d 65, 71.)
In the Kling v. Horn case, the court again analyzed the appellate stay under section 916. Another exception is for collateral matters. And generally, orders of attorney fees and costs are collateral to the judgment, and the appellate stay does not prevent the trial court from determine fee and cost motions. (Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.)
But the amended judgment here did not involve a routine fee or cost motion. Instead, the original judgment stated that no party was entitled to recovery of fees and costs. So by “amending the judgment to remove the provision stating each side was to bear its fees and costs, the court "directly" sought to "'modify [the] appealed judgment.'" The trial court was without jurisdiction to do this.
The court reversed the amended judgment.
Comment: Note that the underlying judgment on the arbitration award was affirmed. So Horn, the prevailing party on that judgment, likely will ask the trial court for the same relief again. But will Horn be entitled to attorney fees? Recall that the underlying judgment stated the parties are to bear their own fees and costs. And Horn did not appeal from that judgment. At this point over a year later, that challenge arguably is untimely.
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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Last month, the Court of Appeal threw out an appeal as untimely in Meinhardt v. City of Sunnyvale (D4d1 Mar. 9, 2022 No. D079451) 76 Cal.App.5th 43, covered previously here. The California Supreme Court has granted review on the issue: “Did the Court of Appeal correctly dismiss the appeal as untimely?” reports David Ettinger.
Meinhardt held that the trial court’s order denying a police officer’s petition for a writ of mandamus was the appealable order, and by awaiting a formal judgment, he missed the deadline to appeal.
Meinhardt focused on the California Supreme Court holding in Dhillon v. John Muir Health (2017) 2 Cal.5th 1109, 1116, that an order partially granting and partially denying a petition for writ of administrative mandamus was a final appealable order.
But the officer made some good arguments, too. The officer argued that, under Code of Civil Procedure section 1094.5, subdivision (f), governing proceedings involving writs of mandamus, the trial court “shall enter judgment.” And where further orders are contemplated, normally this undermines finality.
The officer also argued that the order here was no different from orders sustaining demurrers without leave to amend, and no different from orders granting summary judgment, and those are not appealable until a formal dismissal or judgment follows. But again, the court was not persuaded. Specifically, the court noted that section 437c(k) requires entry of a separate judgment. But then again, so does 1094.5(f). The court also did not distinguish why the denial order here was appealable, when orders sustaining demurrers and granting motions for judgment on the pleadings and summary judgment are not.
The officer also noted that another case, Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, had held that an appeal from a denial of a petition for administrative mandamus must be taken from the judgment and not the order. But the court declined to follow that holding.
Look for the Supreme Court to take up these questions.
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.