H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is favorable to criminal defendants.

• Enforcing the tough-on-crime Three Strikes law, the Los Angeles appellate court handed DA George Gascon a loss on his assertion of prosecutorial discretion to refuse to enforce Three Strikes.
• But the court also enforced the softer-edged Prop 57, the law that requires all criminal charges against minors be tried in juvenile courts. The Supreme Court held Prop 57 was retroactive, with the rather unsettling result that a now-40-year-old who murdered his mother at 16 (he stabbed her 45 times) may soon be released.

Then we turn to some anti-SLAPP news: Another dissent in the 9th circuit arguing that Anti-SLAPP denials should not be immediately appealable.

Then on the expert witness front: A state appellate court holds exclusion of expert opinion is structural error on appeal requiring automatic reversal.

Then some news and tidbits, including oral argument “focus letters” coming to the 1st District.

Transcript:

Tim Kowal  0:03
finality becomes something of a term of legal art. And so is only the sentencing part. Non final is the entire thing non final is there. Can you be halfway pregnant?

Announcer  0:14
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:30 
And I'm Tim Kowal California Department of podcasting licensed pending references check. On the California appellate law podcast. We talk about appellate things and trial court things. Both Jeff and I work about half and half in the trial courts and appellate courts, we try to give our listeners some actionable insights and both of those venues.

Jeff Lewis  0:47
Welcome to Episode 38 of the podcast and a quick thank you to our podcast sponsor casetext. Casetext is a legal research tool that harnesses AI, and a lightning fast interface to help lawyers find key security facets of the subscribers since 2019 and highly endorsed the service and our listeners can receive a 25% lifetime discount available to them if they sign up at casetext.com/calp. That's casetext.com/calp

Tim Kowal  1:17
Okay, so Jeff, we were gonna cover some some recent cases In news this week. We haven't. We haven't made it to any in the last couple of episodes. So we're gonna cover with our audience. Today's one high court case holding that the California prop 57 voter initiative which required all criminal charges against minors be tried in juvenile courts was is retroactive. And as a result, a now 40 year old criminal convict who had murdered his mother at age 16 may soon be released. We'll also cover the Los Angeles appellate court holding that handed District Attorney George guest Gascogne a loss on his assertion of prosecutorial discretion in refusing to enforce the three strikes law and moving on to anti slap procedure. There was another dissent recently in the Ninth Circuit, arguing that anti slap denials should be should not be immediately appealable. And on the expert witness procedure front, a state Appellate Court recently held that the exclusion of expert opinions is structural error on appeal and it requires automatic reversal. And after that, we'll turn to some recent court news. So the first case that we're going to talk about is out of the California Supreme Court, it is people versus pedia. The Supreme Court held that California's Prop 57 is retroactive in all non final cases. So all minors must be charged in juvenile court under Prop 57. But here the defendant Podio, who murdered his mother by stabbing her 45 times was convicted way back in 1999. So that seemed pretty final. But the the United States Supreme Court held back in 2012 and Miller versus Alabama, that mandatory sentencing of juveniles is cruel and unusual violation of the Eighth Amendment. So Padilla six had successfully filed for habeas back in 2014. And appeals had been rattling around since then he got re sentenced to the same life without possibility of parole. But yeah, he appealed that in 2016. In the meantime, the United States Supreme Court handed down clarification of the Miller case in Montgomery versus Louisiana, about the analysis required for sentencing of minors. So Patea got the RE sentencing reversed and remanded again. So he's keeping this appeal alive. So to that extent, ultimately, the California Supreme Court would find that it was non final. So by 2020, proposition 57 passed the DSR his open shot on the goal and he took it although he had only sought habeas of his sentencing the sentencing aspect of his conviction hat. Now, he would argue that conviction too was improper under Prop 57. And so writing for the 443 majority, Justice Liu held that prop 57 Israel retroactive in non final cases, was Phidias. Case final, no the majority held because the habeas proceedings had made the final judgment non final writing in dissent, Justice Corrigan joined by the Chief Justice and a pro tem justice argued, quote, the majority suggestion that a long final case can subsequently become non final, essentially treats finality like a switch that can be toggled on and off. And also, the result will be that if the trial court finds that pedia should have been charged originally in juvenile court, now applying prop 57, quote, the juvenile court could no longer assert jurisdiction over him. His immediate release would be required regardless of any sign of rehabilitation or consideration of public safety and Justice Corrigan went on, it seems highly unlikely that voters intended by silence to dispense with these carefully crafted procedures for the treatment of youth offenders facing life without opportunity of parole terms. Jeff, you have any reactions to that?

Jeff Lewis  5:16
Yeah, I can understand why it is such a close decision. You know, my gut tells me when the law is amended to make the law better, to improve upon the prior law, that those who can take advantage should be able to take advantage of a new statutory scheme, even though the result is counterintuitive here to have an adult who's gotten a number of days in court, the benefit of juvenile law.

Tim Kowal  5:44 
Yeah, yeah, I found. Initially, I thought justice Corrigan's arguments were better. But I I find myself ambivalent about about him. I think both of the opinions have a point there the question about what makes a final decision, I think vexed both the majority and the dissent here because it was certainly a final decision. But once habeas was granted, certainly it's not literally final. So finality becomes something of a term of legal art. And so is only the sentencing part. Non final, is the entire thing non final, is there. Can you be halfway pregnant? It kind of kind of can you be halfway final? That seems to be what the Justice Corrigan thinks that No, notwithstanding what's happening with the sentencing, we can't go back and touch the original guilty verdict. But that seems to be the opening that's left after VPD a case.

Jeff Lewis  6:36
Interesting, interesting case. A NeXT, another criminal or sort of criminal case, I want to talk about this case involving the Los Angeles Deputy District, excuse me, Los Angeles District Attorney, gas gone. On June 2, the California Court of Appeal resolved an issue involving how much discretion the TAs office has with respect to the three strikes law. In LA County, the voters, you know, elected a very progressive District Attorney Gus Kahn. And one of the things he has done is he directed all his deputy VAs not to fully enforce the three strikes law, which gives longer sentences to repeat criminal offenders. And a group of DEA sued gas gone over this new policy. At the trial level. The deputy DA is one, the court agreed and issued an injunction reversing the policies, meaning giving the deputy TAS the power back to enforce the three strikes law this week, in an opinion issued by second the second district court of appeal, the Court held that the La da was properly enjoined from directing deputy DA is to no longer enforce the three strikes law and bottom line gas Colin can no longer direct his deputy DA is not to plead or to seek Restrikes sentencing enhancements. But Deputy District Attorneys do retain the discretion to dismiss such an asset. It's such an enhancements. So at least at the front end, the Deputy District Attorneys are not going to be hamstrung by gas cones policy and more regarding the three strikes law. I found this case interesting reading in terms of the separation of powers anytime you have different branches of government telling each other what to do, it's always interesting reading. What do you think, Tim?

Tim Kowal  8:17 
Yeah, yeah, I agree with the with that separation of powers angle to it. It was interesting seeing that internees seem dispute inside the Los Angeles District Attorney's office. Obviously, significant contingent of deputy DA is there are not happy with with the policy here. And obviously, they got a win here out of the out of the Court of Appeal. All right. So moving on to anti slap denials, anti slap denials may not be appealable much longer in the Ninth Circuit anyway, when the plaintiff defeats a meritless slap motion. Jeff, you know that the the plaintiff may still have to face an appeal, even if it's a meritless appeal, and that's what happened twice. In the now seven year old case of Flo and Eddie Inc. Versus Pandora media LLC. This was a case out of the Ninth Circuit in June 2022. The plaintiffs are the founders of the turtles, they sued Pandora for failing to pay for for playing turtle's songs on their internet music platform. Pandora filed anti slap motions arguing that playing the music was protected speech. Pandora lost its slapped challenge, but it took two appeals and seven years to get there. And writing a concurrence Judge Daniel breasts, said he thought this was too much to take the federal rules do not provide for the appealability of denials of anti slap motions. Instead, they have been held to be appealable as collateral orders. But the definition of a collateral order is an order that among other things, is quote completely separate from the merits of the of the action, and an anti slap motion in the second prong explicitly requires the moving party to prove the complaint lacks merit. So almost by definition, an anti slap denial is not a collateral order. I wonder what you thought about that, Jeff, is that as our resident anti slap guru?

Jeff Lewis  10:11
Well, you know, I'm all in favor of federal courts enforcing slap laws. In this particular case, seven years of battling just over a slap. It seems like the cases were like a smack strategic motion against credible claim than a slap. And I wonder if it's time for SCOTUS to weigh in on the resolve and the split and authority about whether slabs are actually procedural or substantive under the Erie doctrine and resolve these issues.

Tim Kowal  10:37
Yeah, that has been a nettlesome nettlesome problem, the way that the federal courts, the Ninth Circuit anyway, has has applied, California's anti slap statute is by kind of grafting it on to Federal Rules of Civil Procedure 12 And as a motion to dismiss and or a rule 56 motion for summary judgment. But last time I read those statutes, they didn't say anything about public participation or write a petition. So so so the courts are doing doing something that's not quite obvious or intuitive there. I think we'd all be better off if Congress got in the act and and passed a federal anti slap statute.

Jeff Lewis  11:18
Absolutely. Make it even call it Tim's law now that you've suggested. Right?

Tim Kowal  11:22
And and just to be clear, for our listeners, the flow in Edie versus Pandora case, the majority does not accept the view that anti slap denials are not appealable they are still appealable immediately as collateral orders. But the judge, Judge presses concurrence notes that that he has several other circuits in his in his pocket, so to speak, on his side on the question of whether a denial of an anti slap motion is a collateral order,

Jeff Lewis  11:54
oh, well, we'll put a link to the case in our case notes and maybe even a link to a turtle song, see if we can be embroiled in litigation.

Tim Kowal  12:00 
Right. Okay, moving to to trial procedure involving expert witnesses. exclusion of expert opinion, was recently held to be a structural error on appeal that requires automatic reversal. This is cases Klein versus Zimmer, Inc. This was one of many lawsuits filed by a hip replacement patients against the maker of the Durham cup. That's Zimmer Inc. The trial court held there, that the rather the The Court of Appeal held that the trial court committed structural error when it improperly excluded the defendant Zimmers expert who was put on to rebut the plaintiffs expert. This is surprising Jeff because normally trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant can show that the the exclusion of evidence evidence affected the result. But here the exclusion of a rebuttal expert resulted in automatic reversal. Basically what happened is the plaintiff offered an expert to opine that the Durham cup was the cause of his pain and suffering. And in rebuttals Zimmer wanted to put on expert to to opine that there were other possible causes. Now, those other possible causes were not more likely than not they didn't arise to a 51% probability that they were the cause. And so on that ground, the trial court said no, it's not coming in the rule is that expert opinion is only allowed, if it if the opinion is that it's more likely than not to be the cause. Well, the Court of Appeal rejected that a defendants expert does not have to prove that does not have to offer a witness to prove a likelihood more than 50%. That 50 or 51% threshold is the relates to the plaintiffs burden of proof and the defendant does not have the burden of proof as long as the defendants expert can offer a another plausible theory of causation. That is acceptable and the opinion could not be excluded on that basis. And where the excluded rebuttal opinion was the only rebuttal opinion the exclusion led to a one sided presentation of the evidence. And this The Court of Appeal held was structural error and structural errors require reversal automatically. So I thought from this, Jeff, that maybe the upshot here is that, you know, look, I noticed that the trial judge is a former personal injury defense attorney that suggested to me that despite the care and experience devoted to this trial, that trials procedure governing experts is sometimes very important, obviously and very variable. You know, sometimes you don't know how these these things are going to come out the rule that the Court of Appeal held here was not was not expressed formally in the case law. So this is this is a new rule. So to the extent that expert issues could be crystallized and emotional laminae you know, and an emotional m&a is granted, let's say, let's say that that emotion lemonade for that rebuttal expert had been granted. And defendants rebuttal expert was As was excluded at the motion eliminate stage in this case, Jeff, would you advise taking up a writ petition on that rather than go through a whole trial that might wind up having to be redone because of this de facto structural error and excluding the the expert,

Jeff Lewis  15:15
I suppose, you know, I love it when motions eliminate are ruled on well in advance of the first day of trial. But if you're one of these courtrooms where motions eliminate are ruled on moments before opening statements or jury selection, I don't know that I would bother because I don't think you could get relief from the Court of Appeal in time for it to be meaningful.

Tim Kowal  15:34
Yeah, yeah, I wouldn't hold out a lot of hope. But if it's a although, I guess, on the other hand, if if this happens now, with the with this Zimmer case, in your back pocket, you know that you can get an automatic reversal if your rebuttal expert is excluded on this basis? Yeah, absolutely. Absolutely. All right. Well, that that does it for the for the case. today. Let's move on to some other news, some other appellate news out of our courts.

Jeff Lewis  16:04
Yeah, we've covered on a few different episodes. This delay up in the Third District Court of Appeal cases two years to be heard. At one point a prominent appellate lawyer brought a written petition to draw attention to this issue of long delays. The supreme court denied that petition to Muller to get anywhere. But although that writ was not successful, there was big news this month about these delays. The Commission of judicial performance issued a statement admonishing Presiding Justice Vance ray of the Third District, four years of delays, he was asked to retire and he may never hold judicial office again. The disciplinary document was pretty harsh in its findings that I think rather light in its discipline. It found that Justice Ray had engaged in a pattern of delay in deciding around 200 appellate matters over a 10 year period, in one matter appellant had received a six year prison term, and it served that sentence sentence while the appeal was pending in between January 2011 and march 2021. The Commission found that Justice rate failed to properly exercise his administrative and supervisory authority to provide a forum for the expeditious resolution of appellate disputes. So he's retired, no actual discipline other than being asked to resign and not to hold office again. There are now three vacancies in this district governor Governor Newsom has an opportunity to make a real impact in the administration and speed of appeals in the third district with new appointments.

Tim Kowal  17:34
Yeah, well, I can't help but think of, you know, we've covered John Eisenberg's project to try to get address some of these delays. And he was not able to get traction in the Supreme Court or in the judicial council. But that doesn't mean that those complaints were not heard or heated. They it looks like looks like we're just seeing the court system deal in the commission of judicial performance deal with these problems in its own way.

Jeff Lewis  18:01
Yeah, yeah. And in other news in the first district, I've got a case coming up arguing in early July, and I was excited to read it the first district as amended their rules to provide for a focus letters and tentative rulings, learned that for bench shots scan blog one week, in the case notes, I've got an argument coming up first week of July, so I'm really hoping to get a possible focus letter or tentative ruling in my case.

Tim Kowal  18:28
Yeah, I'm excited to see that I think that's, you know, from, from a lot of us practitioners lips to the first district districts IRS. I hope that I look for this and hope that other districts follow suit. All right. There was one more case I lied about being finished covering cases. There's one more case we want to cover briefly out of the Third District Court of Appeal. Jeff, is a bumblebee a fish, defense, the bans well, you're you're you're right be the third district answered yes, in almond alliance of California versus the Fish and Game Commission. The case involved the interpretation of the California Endangered Species Act, the state act is more limited in the federal act. The state Endangered Species Act only allows listing of endangered species that are quote, bird, mammal, fish, and phibian reptile or plant and Bumblebee doesn't quite fit neatly into any of those categories. Fish, on the other hand, is defined to include quote, invertebrates, and the definition does not specify that the invertebrate has to be in an aquatic invertebrates. So the court held that the legal definition of invertebrate was not limited to aquatic life. So a bumblebee can be a fish. And so it is

Jeff Lewis  19:48 
yeah, so I think we've established in this podcast that bumblebees can be fish and adults can be juveniles.

Tim Kowal  19:54
That's the upshot of this episode. And I think that wraps us up for today. And again, we want to thank casetext  for sponsoring the California appellate law podcast. And we include links in to the cases we discuss in the show notes. All of those links are to casetext and listeners of the podcast can find a 25% discount available to them if they sign up at casetext.com/calp

Jeff Lewis  20:19
If you have suggestions for future episodes, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for in the field when preparing for trial. See you

Announcer  20:30 
next time. You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases 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 Cal 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 have not seen a case citation with a parenthetical (”cleaned up”) yet, you will eventually. Writers use it when altering—ever so slightly—quotes from legal authorities. Legal writing pro Ross Guberman explains why some attorneys love it, and others hate it.

Ross also addressed my view: that I trust judges to “clean up” quotations, but I don’t know if judges and law clerks would trust us attorneys’ trying our hand at it. Ross is not enthusiastic about double standards in legal writing: if judges adopt a practice, it is too much to expect lawyers not to follow suit.

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.

Do quips and “Twitter-ready” lines make for good legal writing? Legal writing pro Ross Guberman says the better approach is “quieter,” less conspicuous writing that “rises above the fray” by being clear, flowing, and concise.

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.

“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again.

At the trial between the two partners in a restaurant business in Amirnezhad v. Ghayam (D2d8 May 4, 2022 no. B306361) 2022 WL 1401387 (nonpub. opn.), Amirnezhad prevailed and got an award of almost $160,000 in attorney fees and costs. the basis for the fee award was a promissory note.

But, the note was not admitted at trial. True, Amirnezhad introduced it at trial. He authenticated the signature. Both parties testified about it. And no one disputed its authenticity. But it was never actually moved or admitted into evidence. So Ghayam argued there was no evidentiary basis for the award of contractual fees.

Exhibits Discussed But Not Actually Admitted at Trial Still May Be Deemed Admitted into the Record:

The Court of Appeal disagreed that the note was not in evidence. The court relied on Dodson v. Greuner (1938) 28 Cal.App.2d 418 (Dodson). That case involved an action against the administrator of an estate for payment on a note given by the decedent. (Id. at p. 420.) The defendant-appellant challenged judgment on the note on the grounds that the note had never been formally admitted into evidence at trial. (Id. at p. 423.) The appellate court acknowledged that “the record d[id] not show that the trial court announced [that the note was] ‘admitted.’ ” (Ibid.) Nevertheless, it deemed the note admitted where the court and the parties had each treated the note as being in evidence. (Ibid.) Specifically, the plaintiff had offered the note and proved the signatures, both parties testified about the note, and the clerk had marked it as evidence. Under these circumstances, the appellate court was unable to “hold it was not admitted in evidence.” (Ibid.)

As basically the same thing happened here, the court deemed the note admitted into evidence.

The Upshot: If you forgot to move a key exhibit into evidence, argue the Dodson case. If you laid the foundation for the exhibit and there was no dispute over its authenticity, then under Dodson the appellate court may deem the evidence to be part of the trial record.

But you still have to make sure the missing exhibit is part of the appellate record. For this, consider consulting an appellate specialist.

(Hat tip to the CalAttorneysFees.com blog for this case here.)

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 Co-Founder of Casetext, Pablo Arredondo, explains how legal technology that is available today will allow solos and small firms to compete against Big Law. Tim and Jeff talk with Pablo about:

• Why Artificial Intelligence—which didn’t work well for a long time—now makes it much, much easier to find the legal authority you’re looking for.
• The searches you are used to making is just “casual Friday in the keyword prison.” But now, you can put real English sentences into Casetext’s Parallel Search and it works.
• Casetext’s A.I. isn’t limited to legal authority: you’ll be able to put your entire case file into a database and search for the evidence that supports the key facts in your case.
• This gives small firms an alternative to deploying armies of staff to find evidence in a voluminous file.
• Using Casetext’s Compose to create a first draft of a brief in a few minutes.
• A.I. might be able to replicate “murder boards” in the future for attorneys preparing for oral argument.
• In fact, the way “neural net” A.I. works is so impressive, Pablo describes it as a “black box,” and sometimes it is hard to describe what it does without using words like “thinking.”

Pablo Arredondo’s biography and LinkedIn profile.

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.

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

Other items discussed in the episode:

• Casetext
• Parallel Search
• Compose
• Genius Makers, by Cade Metz
• LexisNexis’s LexMachina analytics platform

Transcript:

Pablo Arredondo  0:03 
Yes, technology will probably make it so that attorneys without a drop in quality can reduce some of their supporting stuff.

Announcer  0:11
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:25
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:27
And I'm Tim Kowal California Department of podcasting license pending references check. The California appellate law podcast is a resource for trial and appellate attorneys. Well, Jeff, and I do some stuff in trial court and we do some stuff in appellate court and we try to bring some actionable insights to our listeners for at least one or or both of those venues. All right,

Jeff Lewis  0:47
Welcome to episode 37 of the podcast. Today, I want to thank CaseText for being a podcast sponsor. CaseText is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019. And I highly endorse case text as a legal research tool. And listeners of the California appellate law podcast can receive a 20 for 25% lifetime discount available to Matt to them if they sign up at casetext.com/calp. That's casetext.com/calp.

Tim Kowal  1:23
So Jeff, when we had Ross Guberman on the show a couple episodes episodes ago, he told us that he was seeing a kind of Renaissance and legal tech right now. And case tax and its search tool parallel search are great examples of that parallel search, does what I had always expected the natural search and I put natural search in quotation marks the natural search function of the big search engines. But those natural searches never really delivered on their promise, at least from my vantage. It's about a parallel search and case stakes are about as fast as Google. And the results are always for me right on point. It's been it's been a very pleasant surprise using case texts and parallel search. And the way it accomplishes that is through the use of AI and Jeff, you and I had the opportunity recently to talk with the Co-Founder of case text Pablo era Dondo about how it works, and what other legal tech is right around the corner that our audience should be aware of. So we're pleased today to welcome to the show Pablo era Dondo Pablo is Co Founder and Chief Innovation Officer at case text. Pablo is innovations including case Tech's pioneering brief analysis tool, Kara aI had been recognized by the World Economic Forum, the associate American Association of law libraries and the ABA. Pablo was also a code ex Fellow at the Stanford legal Stanford Center for legal informatics, focusing on civil litigation, and how litigators access and assemble the law. Pablo is a former patent litigator at Kirkland and Ellis and Quinn Emanuel and took his law degree from Stanford. So, Pablo, welcome to the podcast.

Pablo Arredondo  2:56
Thank you. Thank you for having me.

Tim Kowal  2:58
So as I mentioned, you are a practicing attorney before you went off and founded case text, what were the legal tech needs that you saw when you were a practicing attorney, that were not being addressed by by the legal tech industry at that time?

Pablo Arredondo  3:13 
You know, the short answer might be all of them. I was practicing, you know, at Kirkland, and we were representing fantastic technology companies like Apple Computer. And I remember I was a PC user up until that point, but here we are, you know, I had this Daydream that Steve Jobs would come check on the associates, which he never did, if anyone's wondering. And I thought, well, I don't want to offend the man. So I better buy a Mac. And this is right, when Steve Jobs had just come back from the wilderness. You know, he has big Renaissance. And so I was comparing sort of Steve Jobs at its prime technologies can traverse the Santa square, it's true to the tools that we were using to represent his company. And this, you know, these tools, whether in legal research in eDiscovery, and knowledge management, basically, if you threw a rock, you would hit something that didn't feel like it was put together by people would, you know, that loved what they did?

Tim Kowal  4:06
Well, and and obviously, you went off and started case text and parallel search. And these compete pretty much directly with the big guys, Westlaw and LexisNexis. Why did you choose that, that corner of the market in particular, to innovate?

Pablo Arredondo  4:21
Absolutely. So I mean, going all the way back to the days of Cara, the idea of using the litigation record, coupling the research engine directly to it, to have like, sort of much better results that are tailored to what you're actually working on was sort of one of the ideas I thought really, you know, that excited me and so I wanted to sort of anchor things there. And the truth, though, very soon, after pretty much shoulder to it, you start to realize just how unfortunate it is to have a calcified duopoly sitting on top of something so fundamental of the lawyers ability to navigate the law and find the precedent that they need and what it means to have these exorbitant services that then once are both exorbitant but also not feeling enormous pressure to innovate and to keep the ball moving. And I would hear horror stories from, you know, Paulo Mio, who was at the time, the director of the Stanford Law Library, and somebody, you know, very much considered like a mentor would tell me about attorneys who like would get 1015 minutes at the law library before their turn was up, you know, almost like, you know, toddlers at the water fountain. And so, you know, it was not just an issue of wanting to raise the bar. But quickly, it's like almost an issue of distributive justice, right? If one side has access to these tools, and the other one can afford it. It's not a fair fight. And so, you know, we love to think of justice with her scales and the blindfold on but you know, the tools you use to get what you put on each side of the scales really matters.

Tim Kowal  5:41
Yeah, yeah. And before we dive further into case text, and its comparison with with Western Lexus, what are some other ways common ways that attorneys are under utilizing legal tech?

Pablo Arredondo  5:55
Okay, well, so I think I mean, that's kind of a broad question, in some ways. I know, you know, states now, there's been a trend towards having a duty of technological competence, right, that that's now for the first time being sort of added. And I thought, okay, great. So surely that means transformer based neural nets, right. I mean, come on. And what I learned a little bit is that sometimes even simple things like, you know, PDFs and DocuSign, and things like that, things that are a little bit more pedestrian, still haven't really, you know, gotten everywhere that they should be. But so, you know, I hesitate to go into all the different aspects of it. But I think that it behooves attorneys, especially now that we're seeing a lot more gains, take a look around at their systems. And there's a great song by Jim Morrison, where he says, I've been down so long that it looks like up to me. And I think for some attorneys, the state of their technology has been all they've known. And so to them, it seems like no, this is what it's supposed to do. And it's really not. Yeah, well, Pablo,

Jeff Lewis  6:51
when I went to law school, we shepardize cases with books, the shepherds, and you know, we didn't Westlaw was just coming around, but it was mostly books. And, you know, I like to think that open minded in terms of technology, tell me if I've got a 20 volume appellate record that I have in PDF form, why couldn't I just hit the F search button and put in a word search for something I'm looking for in the appellate record, as opposed to using one of the case text products?

Pablo Arredondo  7:18
All right, there we go. So now you're at the heart of it in a way, what happened right after the books was the digitization of case law of legal materials. And that was a profound step forward. And by the way, for all the smack I can be going to talk about Alexis got hats off to the that was a very good thing to do in the 70s. And but what you left then was you were leaving the prison, if you will, of Westlaw is key topic system where Westlaw editor's got to decide how everything was organized. But you entered a different prison, you entered the prison of the keyword. And what that meant is, you're entirely at the mercy of the word that you happen to guess you know, to enter into Ctrl F, or to enter into a case law search bar. And what that meant was two important things. One, you were going to waste a lot of time because you were going to pull in things that you didn't actually care about. But that happened to contain the word that you chose. And that's frustrating. And that makes you a less efficient lawyer. But even more insidious, you were going to miss things that you did want, that didn't happen to use that exact word. And that makes you a less effective lawyer. And those twin things in the data science term precision and recall, are, you know, the fundamental problem with literal keyword search is that that's what happens.

Tim Kowal  8:32
Okay, well, Pablo, back up a minute because, you know, keyword searching, what other way is there to search for, for something that you're looking for other than to hit one of those search terms? Isn't that how Google works? And I want to find something that's in a case when I have to search for the words that are in that case?

Pablo Arredondo  8:50
Not anymore. And if there's one headline for your listeners, it's this is that that has been true, you were right for the last four or five decades, because what was actually being searched with something called the keyword index, which was like a literal spreadsheet where each word in the English vocabulary got a row. And each case or document got a column and you know, X if it's there, blank if it's not, and the profound breakthroughs that have been happening in an area of AI the subfield of AI called natural language processing, and specifically the applications of these things, called neural nets have allowed us to encode and capture language in a much richer way, in a way where actually you're no longer at the mercy of your keyword. And to be clear, 1990s Westlaw natural language search, which you mentioned, that's casual Friday in the keyword prison. That's all that was, right. So the answer is no, you no longer have to be at the mercy of your keyword. And I sure all lawyers will join me in rejoicing, because much of our life will be improved because of this.

Tim Kowal  9:47
Okay, so there's a new way to search do attorneys need to be trained on on this new way to search everyone? All attorneys know now, whether it's the old way of searching where I want to see subject matter within Five words, if I search terms of jurisdiction to make sure that I get all the returns for subject matter jurisdiction, or whatever it may be, and maybe natural language strips out the the term that connectors, but you still have to have the terms in there. What is the new way of searching? And do attorneys need to be trained on the new way to search within this natural language processing system?

Pablo Arredondo  10:21
Well, as it happens, the neural nets are now another important thing along with being able to now match language independent of articulation, you can now input directly the complete sentences that you want to include in your brief your memo your letter to opposing counsel, the technology is able to have a full sentence as an input, you can even leave in PARTY NAMES exactly as you have it in your brief. And it's able to look at that sentence as a whole, not just as individual words, but as a whole, and bring you relevant language. So the truth is, what lawyers know how to do well is think about what sentence do I want to write to the judge, and that's the training, you need to use these tools, you can just put that exact sentence in our system.

Tim Kowal  10:59
And those those results are able to be as as relevant as the results I would get from the traditional search term based searches far, far better. How, why why why should it be better? If I'm hitting fewer of the search terms? How could it possibly be better?

Pablo Arredondo  11:17
Well, because you're putting in a complete sentence, which really encapsulates exactly what you want. And what it's going to do is bring back things that match that sentence as a whole, and not things that might happen to have one of the words in them, but are completely unrelated to the sentence that you put. That's part one. And then the other reason it's better is that there will be things that use completely different words to get at the same concept. And those will now be surfaced, right. So there's essentially in every way that one might measure search, this is progress.

Tim Kowal  11:45
Well, so does Does Google use this natural language processing? Yes. They are there currently.

Pablo Arredondo  11:53 
Yes, Google uses it for web search, I believe something like now 98% or something like that? Don't Don't quote me on that. Exactly. But have they always are they switched over it sometime? No, no, they switched over. And in their words, the sort of underlying technology Now to be clear case, tech stuff has been specially tailored for law. And there's a lot of things we've done. But this sort of underlying breakthrough, this ability to now bring these neural nets to bear on language, believe I'm quoting Google's blog correctly, one of the great leaps forward in the history of search

Tim Kowal  12:21
is, what about Westlaw and Lexus? Have they moved over to natural language processing? Well, if

Pablo Arredondo  12:27
they have, they've hidden it from everybody, because I haven't seen it in their their products at all. Now, please understand, you know, Westlaw, you know, boasts of their 25 years of using AI, and that's not inaccurate in the sense that they were using these earlier techniques. But it's, it's telling, when you look at their description of it, they talked about like, alright, you know, the most important thing is that content, you know, that key topic system that I referenced, you know, that's, that's what really gets the AI going. And the truth is, that's the whole point of the neural nets now is actually no, there's actually much more, there's better ways, in fact, to capture language that don't require an army of nameless editors that are, in fact, built on different approaches. And so it's only in the last couple of years that we've seen this, like, really tremendous jump forward.

Tim Kowal  13:10
Why What was the motivation for that jump forward? I understand the natural language processing stands, it's kind of a different paradigm from search term based searches. Was this? What was the motivation for the big switch? Why do we wait so long?

Pablo Arredondo  13:26
Okay, great question. So I mean, the wanting to tackle language, and then the wanting to bring computers to bear in language is once you know, as old as computers themselves, and was there from the very earliest days of artificial intelligence, which I think the term was coined at a conference at Dartmouth in the 50s, you know, and they were going to spend the summer and just figure everything out, right? Well, it didn't quite work out that way. So language has always been something where you wanted to apply it. But language is a really tricky thing, right? Language has a lot of weird aspects to it. And that were just not as amenable as something like chess, right? Where there's these like clear rules, clear winner and loser, right? Things like sarcasm, kicking, right? Things like metaphor, all of these different things that language does. And so that made it more difficult, especially using these earlier, expert approaches. Right? And maybe Can I take a step back? And just mention what I mean by that? Yeah, from the earliest days of AI. And by the way, there are many people much more qualified to speak on this than I and I refer you guys, you know, guys like Geoff Hinton and stuff like that. But let me let me do my best. Since the earliest days of AI, there were these two schools of thought. One of them said, the way you make something smart computer smart, is you get a bunch of experts together, people that really know the thing. And they think, how would I go about thinking about this, you know, what the rules are, you know, mnemonic, whatever I would do, and you kind of chisel that into the code, right? You basically and so for chess, it would be go bring all the grandmasters of the world together and ask them like how do you think about chess and you know, queens are worth more than rooks and better not to Castle etc, etc. And that Experts system was sort of one major school of artificial intelligence. And a lot of things were created under that sort of approach. But there was another approach that said, Wait a minute, what's actually intelligent on this planet? It's this weird thing that we have in our heads, these brains. And these brains don't have a flowchart. You know, in them, they don't have, you know, somebody who wrote a bunch of rules, they've got this rather amazing constellation of neurons that are all connected to each other, and that have, over time sort of been manicured by experience to be oriented in certain ways. And if that's what's really smart, and we want to build something smart, why don't we do what that does. And so this was the neural net approach. You don't want to overstate how much it borrowed from neurobiology. But loosely, it was saying, What if we could create sort of mathematical computer neurons and feed a lot of data?

Tim Kowal  15:55
So you're creating a brain? Basically,

Pablo Arredondo  15:59
you're you're you're adopting certain aspects of how a brain works, right?

Tim Kowal  16:05
And why was this? Why was this approach resisted for so long? Well, I

Pablo Arredondo  16:08
don't think it worked very well in the beginning. Because the amount of computational power you need to really test it is massive. And again, these theories, the underlying sort of concepts are very old. And so go back to like, you know, when the computers were the size of a dorm room and had the power of like a Casio watch, you know, and so I think that the neural net folks had a tough go of it. You know, I think there was a lot of times they were kind of, you know, why are you wasting your minds pursuing this path?

Tim Kowal  16:33
You know, you're trying to you're like trying to build the space shuttle when it's still the Bronze Age.

Pablo Arredondo  16:37 
Right, right. But what changed is, the computers did get a lot better. And there was now a lot more also access to digital data to train with. And, you know, there were certain I think, breakthroughs in terms of some of the applications and things that would figure it out. And so it culminates in things like aI actually, I shouldn't say culminate, because it's very much just getting started. But some of the like moments that you'd see now, with this new wave of resurgence of these neural nets, I mentioned the chess systems, right, that the experts would come and teach. Well, there was a neural net that taught itself to play chess in four hours just by playing itself. And they pitted it against the system that represented, you know, for centuries of mankind learning to play chess, and decades of chess experts working with computer scientists to try to do it. And the I just played by sell for four hours when you know, held its own and won often in these games. That's sort of the I think that's a very colorful illustration of, you know, sort of the power of these neural nets, versus the expert system.

Tim Kowal  17:35
Well, that that helps to conceptualize the difference in how you would approach running a search on a search term based system like West or Lexus, where you you, you assume that the that Westlaw and Lexus do not understand language, so you're telling them search for these terms so far apart from each other. Whereas when you run a search on parallel search, this is a system that understands language, so you can give it a sentence with terms and it will pick up the concepts and it will return relevant results, even if they don't match your search terms, because it picks up your meaning. And it's not strictly based on the terms. Do I have that right?

Pablo Arredondo  18:10
I would say, yes, I want to be careful when you say it understands language, right? On a podcast, especially you can't see the air quotes. You know, computers are stupid. They don't understand anything in the way that like a human does, right. But what's happened is the way that love language is now captured and stored. The search engine essentially acts like it understands language, which is for an attorney working to make his deadline very, very close to having one that actually does understand it. So but I want to be careful not to overhype things, and I think later we might talk about like the, you know, robot lawyer kind of hype and all that stuff. And it's important to draw the distinction. But yes, basically, once you start storing language with this approach, your ability to find what you're looking for, feels much more human rights, because it's not tripped up on the exact word literal word that you chose. Yeah.

Jeff Lewis  18:58
Hey, can I ask Pablo does case text, use the inputs from lawyers and the results that lawyers let's say, click on more often to refine and change the way case Tex behaves?

Pablo Arredondo  19:13
So not in the direct way that I think you're meaning, right, where it's like a direct feedback loop? Obviously, we're monitoring, you know, success rates of certain activities, right copy with, you know, with, you know, an anonymous aggregated high level, you know, constantly evaluating things. But the power of this technology is actually something where it's actually trained on the back end, using a massive corpus. We actually trained it by putting the entire common law through one of these neural nets. And, you know, you make it play these little weird Mathematical Games. So it's actually not required the, you know, the attorneys are not the one that are fueling its ability to do what it does. And I think that's important in law, because so much of what a lawyer clicks on is context specific, right? It matters who your client is, what side you're on, right? What are the unique facts that may or may not be reflected in that query. So I think you can all He goes so far trying to like directly use the click feedback in terms of relevance.

Tim Kowal  20:06
Well, we talked about a lot of a lot of what's under the hood, case texts and parallel search. But for our, for our listeners who are just interested possibly in what the product can do for them, Jeff and I have shared a little bit of our experiences that I have had, I've had such an easy time running searches, as compared with, with using the big guys in the past that, that when I'm on, when I'm on an oral argument with the, with the court, and an issue comes up, I feel comfortable just typing propositions into parallel search, and it will spit things out at me. And sometimes I wonder if it's if it's making it up, because it's so on point right away. And I haven't had the confidence to be able to do something like that with with the other search engines because they're just so much slower. And I usually don't find the relevant result until at least three or four cases in, and I've just had so much more success. Is that a with with case text? Is that a common testimonial that you're getting from your users?

Pablo Arredondo  20:59
Yes, and I should point out, because I know we lose our skeptical bunch, we hear that a lot from people that we are not sponsoring as well, including members of the judiciary, you know, law firms, were so pleased at how well and widely this has been used case, Texas being used at some of the largest firms in the world, but also a lot of folks that just hang their hunger shingle, you know, boutique firms. It's designed to be, you know, really powerful technology, but also to be priced in a way that it's not precluded from, you know, everybody who wants to represent their clients to the best of their ability.

Tim Kowal  21:32
All right, well, what are some other applications that the the engine under the hood of case text can be used for? And I know you've you've alluded to, to the proposition that the appellate attorneys, for example, might be able to run searches across their the appellate record to find propositions that support statements that they want to put in their briefs. impossibly the same thing for trial attorneys preparing for trial, and they want to find what evidence supports, you know, I've got, I've got tomes and tomes of deposition transcripts and documents produced in discovery, I need to find the evidence that supports the key proposition for my case, can can case text and the Kara AI engine, I think underneath it all, can that be leveraged for those purposes?

Pablo Arredondo  22:18 
Right. So you know, a few weeks after we put parallel search out for searching case law, we started hearing requests for, Hey, can I have parallel search over more things? Right, you know, case law is a very important thing to search through, but it's just one ocean of contents that a litigator finds themselves swimming through on any given day. What about expert reports, right, what about transcripts? What about ediscovery? And because we had to solve some pretty significant technical hurdles, in order to scale this, these techniques up to work for, you know, rather massive common law that grows every day, we were well positioned to if people sort of take it out for a spin. And so we tested it, we said, what happens if you take you know, a quarter million emails and put it in here and simulate sort of ediscovery. And what we found, perhaps not surprisingly, is that you know, emails are language to and a search engine that can act, you know, not based on literal keyword, but sort of I get what you're saying and bring back stuff was quite useful there. And we, you know, took a select number of our firms and did a beta project for them. And we were so pleased to see it start immediately playing a role, you know, on things like anti trustee discovery, right. And things, you know, when you hear lawyers say, you helped me find critical evidence much earlier in the litigation, right. Anyone who's practiced law knows, like, that's the muse. That's kind of what you do this for, right. And when you hear, you know, we found things we might have overlooked. But for the fact that the search ended do this, you know, this really validated for us that what we needed was to point these, this neural net technology and everything that a litigator needs to deal with. And so as of last night, we just released something called all search, which now all of your listeners can use. And essentially, what it says is tell, you know, give, upload the docs that you need to search through, you can just drag and drop a folder. And within minutes, you'll then have the power of neural net search directly on those documents, right? It's basically

Tim Kowal  24:12
so you'll be the user would basically be able to run, run the same kinds of searches that they normally do using parallel search. But now it'll be against the database, have their own record their own trial record.

Pablo Arredondo  24:24
Exactly. Their documents will now be stored in a much richer fabric that's been enabled by these breakthroughs. Yeah, let's

Jeff Lewis  24:31
talk specifics. Pablo. If I if I had a murder trial of doing an appeal on and I upload to case text 10 volumes of trial transcripts, and the issue of death is discussed a lot and homicide and murder. If I put in the word die or death, what could I expect to come up in terms of search results?

Pablo Arredondo  24:48
So that's just it to just the word dire death, right? When this you know, lawyers aren't poets, right? When are we just concerned with death as a concept, which you might be saying is what did anyone testify about? out, you know how they reacted to the death? Right? And what you'd find here and you know, I'm obviously pre selling this a little bit is stuff about, you know, subsequent to his being deceased, you know, What actions did you take or after the patient expired right? And you know, one of the real ways to feel the value of this is to put in a search like that, and just marvel at how many different ways in English you can say anything, right. But that's a great the exact kind of use case we're talking about, because you would hate to miss testimony, because it happened to say deceased or expired right passed away.

Tim Kowal  25:32
So case tags and parallel search search will pick up that if you if you have a search term that says, you know, when, when the victim dies, liability obtains such and such, it will know that die also means kicks, the bucket gives up the ghost passes away, expires, whatever other words that we've come up with in our language for expressing that that ultimate concept.

Pablo Arredondo  25:56
Yes. And by looking at the context of that sentence, it won't bring you any reference to like The die is cast right to singular die even though that word is there, right? The way we demo it with Enron is we search I feel uneasy about this something you know, maybe more people at Enron might have said, do anything about it. And you know, it's everything from this feels weird, I have to tell you, I'm conflicted. This is unsettling, you know, I personally to, you know, every variation of it, and we take it for granted as English speakers how easily we can compress all of these different articulations. But before these neural nets, it was absolutely impossible for a computer to do it.

Jeff Lewis  26:31
Hello, without breaching confidentiality in terms of the firm's that tested this out for you? Do you have any great success stories about how attorneys have used this tech to either get a win or be more efficient and how they prepare cases?

Pablo Arredondo  26:44
Yes, absolutely. So um, there's been a few different use cases that have come to mind. So one of the firm's has used it now on three major litigations in the eDiscovery context. And I've described exactly the kind of detail you'd love to hear how we found critical documents faster, and we found critical documents we might have overlooked to firms have actually started taking discovery requests, you know, like interrogatory ease, and saying no, wait a minute, that's a full sentence? I mean, it's a question, right? What if I just put that entire interrogatory as is directly in as a query, and that's surfacing what they need, right? So you can imagine the difference, right, the interrogatory itself can be answered, as it is, right, you don't have to go try to devise the query that best gets it. And that can also matter, because, you know, the interrogatory will say, you know, what, you know, list all your manufacturing plants, you don't want to miss the thing, talking about factories, right, or production facility, right, things like that. So not only can it take the interrogatory as a whole, but it returns all the different articulations that are responsive, right? We've seen folks using it, some firms actually created client facing databases, right to, you know, you know, put a bunch of collective bargaining agreements and stuff so their clients can more easily search what they need, again, not needing to, you know, vacation and time off all the different things that you can come up with, with contracts. And then, you know, folks have been using it to prep for summary judgment, I think that's a great use case, right? You put everything that you might need the whole litigation record into neural net. And then whenever you're trying to find something, you can do it. I should note that you don't forfeit literal, Boolean keyword to use this stuff. You know, there's a great New Yorker cartoon where the guy's in front of his microwave, and he says, No, I don't want to play chess, I just want you to reheat the lasagna. And the truth is, there are some times where like, you want to brute force keyword approach, you just need every reference to Frank Reynolds or whatever it is. Right. Right. And that's certainly available to you. Yeah. So those are just some of the use cases that we've seen. And to be honest, every week, we go and talk to our firms and there's a new one they want to try pellet record is another one.

Tim Kowal  28:46 
Well, there was a I want to I want to ask you a couple more questions about about the possible applications for parallel search in the legal profession. But there was you had reference to me earlier off offline a book by Cade Metz called genius makers, and it's about artificial intelligence and these neural networks and there was something in there, I just read the Cliff Notes version of it, but I want to ask you something because because when you refer to it as released, I got the impression that it's something like you're you're you're coding a brain you're you're designing something that that by which the computer can after fashion, think for, for itself or understand language, and I'm using the the air quotes for that. But here's, here's what Cade Metz said, at least in the cliffnotes version. So I don't know if this is an accurate quote, but it's the summation neural networks can learn tasks that human engineers cannot program by themselves. But the engineers have to be careful when choosing the data that the network will use to learn. Otherwise the network can learn unintended things, and quote, and I wonder is, is that true?

Pablo Arredondo  29:51
Absolutely. And fundamentally, and what are now? unavoidably Yeah,

Tim Kowal  29:57
what does that mean unintended things right.

Pablo Arredondo  29:59
So let's talk about some of the weak sides of this stuff. Because I think I've extolled the positives right? First. And this is just to get to your question in a more to show you just how right you are right? neural nets are a black box. And I don't mean by that, like the way the recipe for Coke is a black box, meaning somebody has it in their safe and just would prefer not to tell you, right? With traditional search engines, the kinds of case tags Westlaw Bloomberg built, etc, I could take any query you gave, and tell you exactly why these results are where they are, right? We give this much weight to the citation count of the case. And the date is, you know, factored by this much weight with neural nets, I can do absolutely no such thing. I can tell you how we created it, you can tell me that it works really well. But why a given result is where it is is not something that we can discuss in any intelligent way. So that's part one.

Tim Kowal  30:53
So in that way it is thinking, I mean, because because you're not telling it how to get from point A to point B, but it is getting to point B somehow.

Pablo Arredondo  31:02
Right? Well, I mean, yeah, it becomes sort of it's, it's just that it's mathematical properties that can't be tied back to human things. Like I could say, well, this is clearly dimension for nineteen's vector pointing, it doesn't mean anything. And, you know, there, you might think, Oh, I can't use this thing. Right. That's if I don't know how it works? Well, I think, you know, a lot of the legal profession is using tools that they don't necessarily understand the full algorithm underneath it. And moreover, I would say like for most of human history, right, if you had like a rash, you know, the shaman would come and rub the leaf on your rash, and it went away. And you didn't know about the physiology or anything like that. It just worked. And, you know, here, obviously, attorneys review these cases, it's not like you're having the AI right. And so anyway, so that's part one about the blackbox aspect. But then to get to your direct question, absolutely, the way these neural nets are created is you basically push a huge amount of data through them. So for us parallel search, we put the entire Commonwealth through them. And there are biases encoded in the common law, right. And those biases will be reflected in how the neural net is sort of oriented, to the point where searching Pablo into the car might get different results than if you search Michael went to the car. Right. And I'll leave the listener to think about the different ways that that? And so this is a key area. And it's frankly, why I think having ai do things like you know, should we give parole, right, I think is a profound violation of due process, right? I think when it comes to legal research, where they're surfacing results for an attorney to view, right, I don't think it's quite, you know, in the same way. But But absolutely, one of the things with these neural nets is that they reflect the biases and what they're trained on.

Tim Kowal  32:45
And that's very interesting it because as we know, technology never stands still, we're always pressing the envelope. So we'll see where things go. So I want to ask with with that, further bit of background about how it works, can can AI be used to predict how judges will rule maybe how certain judges will rule or certain courts will rule on certain kinds of issues?

Pablo Arredondo  33:09
There's a lot of there's a whole field of legal analytics, that attempts to bring quantitative thinking in ways to predict things like that. My personal view is that a lot of it is basically phrenology right? Remember, they used to measure skulls to tell you if this guy was a criminal or not. And what I mean by that is, you know, you wrap yourself in the banner of quantitative measurements, like we are measuring things, surely. But when you actually dig a little bit deeper, those measurements are not in any way related to what ends up happening.

Tim Kowal  33:39
I would assume that, that judges that people in general are predictable, and do things consistently. And it's like, remind you at dusk, Dostoevsky said that one thing you cannot say about people is that they are reasonable. The very word sticks in your throat, you know, you can shower him in bubbles of bliss, and then he'll do something just just just to show that he's a he's a person and not a piano key.

Pablo Arredondo  34:04
Right? And yeah, exactly. I don't want to overstate it like I think Lex machina company that was acquired by Lexus, I think has shown some useful sort of statistical differences in how certain jurisdictions, you know, how long does it take to get to summary judgment, right, I would just advise them to be used forgive the pun judiciously. Right. And just understand that just because someone purports to measure, does it mean actually, that they're there, they're predicting with any with any seriousness. Again, there are other folks besides myself, who could probably come and go deep dive on that.

Tim Kowal  34:34
What about on a related question, but maybe not going so far, when, when an attorney is preparing for oral argument, is there is there a future in which AI can predict what kinds of questions the judges will ask out oral argument?

Pablo Arredondo  34:50
That's actually kind of brilliant. I haven't thought about that. So if we took the briefing, you know, we go gather 100,000 brief pairs, and then took the actual trend. scripts of the oral arguments right and fed that into a neural net. Can you then take two new random breed breed pairs and put it in and say, Oh, I bet the judges gonna ask that? I don't know the answer to that. Well, here's what I will say. It will make a guess. I don't know how accurate it is. Right. Right. All right, we're gonna need

Jeff Lewis  35:17
to call that the Cole. oral argument, sir search if you if you end up proceeding that way.

Tim Kowal  35:24
Okay, and then, you know, we we lawyers like to think of ourselves as irreparably, irreplaceable, you know, a machine can never do my job. But I don't know, is that am I right or wrong? It sounds like I'm right, for now, at least for for large portions of my job. But you know, how much? How much might be how much of our profession could be replaced? Because one of the things that you're describing sounds like it could, you know, could level the playing field. And I think, I think Jeff might have mentioned, you know, promote some access to justice, because where we're large cases would require armies of attorneys and law clerks and paralegals to, to rummage through all the files to find the answer to, you know, a simple question about, you know, what's the answer of this evidentiary question, parallel search and AI could could do that in an instant? And that technology is now available to everybody? So, so in what way? Do you see the shaping the legal profession?

Pablo Arredondo  36:21
So you know, my first response was, of course, it's absolutely ridiculous to think that AI is going to replace a lawyer, you know, fully the idea. There's so many aspects to the practice of law that are so beyond I mean, it's not even close. It's essentially laughable. But what's interesting to me is what you the way you couch that was, do you need 10 lawyers, as long as you have one lawyer, to handle all the lawyer, you know, the strategy and that sort of aspects of it. I do think, yes, technology will probably make it so that attorneys without a drop in quality can reduce some of their supporting staff. That's just the reality. And I think that's not unique to law. Whether that's a ministerial paralegal or kind of junior associate, I think it kind of depends on how you allocate tasks among their right. But, you know, we do need lawyers who are able to do the parts that really can't be automated. And frankly, the way those get created is they their junior lawyers next to attorneys that know how to do it, and they learn how to do it. So I think it would be unfortunate, right, if we suddenly got rid of all the junior Associates, and again, I think also in talking about this, we're talking a little bit long term now where it's heading. The truth is the breakthroughs that happen that are leading to what I can show you now with real what you can go use right now. They broke through walls that are now leading to like increased acceleration, right. And so it's harder to sort of rule out this or that, you know, aspect of it. But you know, to me, my test is, show me an AI that can tell when Scalia is being sarcastic when Justice Scalia is being sarcastic, and then we'll talk about replacing attorney. Yeah, yeah.

Tim Kowal  37:52
Case, tech says it has another another product called compose, which is very interesting. It's, it's been it's been marketed recently. And it allows attorneys to, to use to use the case Tex software to basically piece together a brief, can you tell us a little bit about how compose works?

Pablo Arredondo  38:12
Absolutely. And you know, in case takes wood, our aim is to build the best thing for attorneys not to necessarily build AI into everything, right. So we really try to start with the user, you know, the attorneys experience and work our way there. So what composer does is, you know, we take huge amount of human effort, we map out, you know, if you're moving to dismiss under this service claim, right, or you're moving for sanctions, because of this, or that, we spend a huge amount of time to organize that, and sort of what are all of the major arguments, main arguments, common arguments you might make. And then we use technology to make it so that once you've selected what you want to make it wherever you are, as a court, it'll go, it'll bring you the support for that. And that's technology assisted but human at the end of the day is very human curated. And the reason for that is, of course, it needs to be right, because the way composer works is the idea that you can essentially plug and play right and put it in that way. And so it's sort of an attempt to some you know, I've heard mixed reviews on this sort of weaponized treatise right, you know, that sort of takes a treatise, but turns it into, like, you know, I realized there's a litigation going on. So, you know, I'm going to ask you which side you are on movement or non movements, and I'm going to behave accordingly. But another analogy that comes to my mind is if you think of legal research as being dropped in a jungle with a machete, composes sort of like a French patisserie, right, where it's just all laid out, and you go, Oh, I would like one of those little criminalized ones and things like so ya know. So it's a very powerful product. And, but because it's human, it's so human intensive. You know, California Attorneys listening to this will have a wide library of motions there. But, you know, for instance, if you're in Arizona, we don't have many motions, you know, that are set up for you directly. So compose is extremely powerful for the library covers. And we're expanding that library every month, but it's unlike parallel search. Are all search which is kind of universal out of the box composes expanding on a more targeted basis? Yeah, we put, let me put a little more detail on that answer in that I played around with those a bit in the context of anti slap motions. I've made or oppose probably 40 or 50, anti slap motions over the years, and I have my own personal library of arguments, what composed us makes that library obsolete? Really, because you're presented initially with a question, are you making or opposing the anti slap motion? And then it tailors a list that you simply do checkboxes as to what kind of prong one arguments do you want to make? Well, what

Jeff Lewis  40:36
kind of prong two arguments are you gonna make? And then it spits it out into a word processing format, an excellent first draft of a brief, not anywhere close to a final draft, but boy, does it save you the headache of assembling that first draft,

Tim Kowal  40:50
you don't have to stare at the blank page or you know, get a grant to go and get the legal, the legal standard, at least you get that started. It's very useful.

Pablo Arredondo  40:59
And that's where we're going. I mean, if you think think of a lawyer in 1800s, right, he's got his pen, his paper, his bookshelf, and his file cabinet, you know, a couple other things, calendars, you know, stamps for envelopes, right? Our firm conviction of case Texas that the ideal system is going to unify these different key functionalities, legal research, you know, keeping your case files, drafting your brief read and put it into one system where they can talk to each other where they can inform each other. And, frankly, where things can be just a little better designed, because that's what technology lets you do. Yeah.

Jeff Lewis  41:29
Yeah, that's a great point. Because everything we've talked about have been so far today, really separate symptoms and systems that don't talk to each other. Something we haven't talked about yet is, when I get a brief and appellate brief, especially one of the first things I do for my opponent, is I upload it to case text to see what kind of report that case Tex can generate regarding the cases cited in the quotations. And I'm always intrigued about the results. Why don't you talk a little bit with our listeners about that product

Pablo Arredondo  41:55
and uploading a brief? Right, yeah, so our first sort of big commercial product case text was something called Kara. And what Kara did was let you drag your brief whether a Microsoft Word, Doc, your draft before you file, or opposing counsels brief, and it would recommend highly relevant cases that weren't in the brief. And it did that, honestly, this was before some of the breakthroughs I've talked about in AI. And so we did that, in some ways by having a much more robust, you know, it's good shepherd decision. Let's face it, that's the word. You know, I know Lexus owns it. That's the word, right? Shepherd, isation, and Keysight are very, you only look at direct sites, these are the cases that directly cite to this case. And the problem with that, imagine back when there were blockbuster videos, if you went to the blockbuster clerk and said, You know, I really liked the godfather. Can you recommend any movies? And the clerk said, Godfather Part Two, Godfather Part Three? That's all I got? Sorry. You know, great, you would find that one thing, right? You would say that's not exactly. You know, what about all these other great mafia movies? Right? Well, in the same way, what we did with Cara was we said, we're not just going to look at what cases cite directly to the cases in your brief. But what cases get cited alongside them, right? What are in the same string sites? What do we know when Judge is talking about a? What other cases do they talk about? Even if they don't cite to each other? It's how Pandora recommends signs to tell Amazon, you know, this, this sort of soft citation relationship. So that coupled with actually just paying attention to the 30 pages of text in the brief, was a pretty powerful query. Right. And so that put us on on the map that was sort of our first, you know, our first, you know, kind of prizes fanfare million dollar round, you know, the various things. And Westlaw and Lexus and Bloomberg have copied it to varying degrees of success. But what they missed, and I'm expanding a little bit on your question, but what their systems at least last I checked, they only take documents that have brief sites, and that have case sites in them. They're only looking at, it's like a brief analyzer. And they're missing something very important there, which is often attorneys are drafting their own motion to begin with, right there. They're doing research towards creating that first sort of draft. And so what our system and our system alone does is let you drag and drop a complaint, or, you know, a patent in suit, or a cease and desist letter. Not so that you can see what cases are missing because you don't have cases and a complaint, but so that the entire research experience can be tailored to what you're working on. If you search copyright and Westlaw or Lexus or traditional case, text, just search the word copyright, you literally get the phonebook, you get a case Feist about copywriting the phone book, right? With our system, you can drag and drop your complaint. And if it's about a musician being sued in the Southern District of New York for infringement based on some phrase, you can then search copyright the same simple word. But your results are going to be completely different. There are going to be of course, musicians being sued in the Southern District of New York for copyright infringement. So you know that that ability to have a research engine pay attention to the litigation, record complaints and briefs. We're very proud to have pioneered that. And that's something that you can you can go do right now and kiss text and knock his text alone.

Tim Kowal  45:02
All right, well, Pablo, we've covered case text and parallel search. We've covered how AI is different from from search term based searching and why it's superior in your every day searching that that lawyers do just to get an answer to a simple legal question. We talked about how it's going to revolutionize possibly the way attorneys prepare for for large scale trials and appeals. It may obviate the need for large armies of attorneys to find the needle in the haystack when AI might be able to just do it with with one or or at least fewer than an army of attorneys. And we've talked about case Tech's compose product that can help attorneys put together the first draft of almost any kind of brief so that they avoid the panic of staring at the blank page. And is there anything else that our listeners should be aware of that may be up and coming? And how AI might be able to to improve their their practice and their business?

Pablo Arredondo  46:00 
Well, yeah, certainly we have some stuff in the pipeline that we can talk about that gets into, you know, the fancy sembly question answering that spans many things. Right. So you're looking at deposition testimony, and you know, RFA is request for admission and kind of synthesizing them. But rather than just talking about our pipeline, I didn't know for you guys, obviously kiss Tex is dear to my heart. But you mentioned at the beginning of this called brief catch right to him from Ross Gruber. Yeah, think brief catches example of a one of many tools now that are out there. The truth is, venture capital has finally started paying attention to legal tech, you know, did it about, you know, sort of getting frothy 10 years ago. And there's a number of new abilities from a lot of great companies out there that are worth checking out. And so I guess if I would leave you guys with something, you know, listeners with something it's like, just because it's what you've known for 20 years, and there's a comfort in that right. But be open to new possibilities, new functionalities, because you might find that after using them for just a few minutes, you can't believe how long you spent doing it the other way. And so I think it's a very exciting time for the technology that underpins the practice of law.

Tim Kowal  47:05
Yeah, that was the that was the sentiment that Roscoe ruined express that we're in kind of, we're in an exciting time in legal tech right now. And, and your innovations with case techs and parallel search really seems to bear that out. So we're excited to look look forward to see what what you and others have have for US attorneys in the future. Thank you guys. Alright, Pablo, thanks for joining us, Jeff. Do we have anything else to cover?

Jeff Lewis  47:30
No, I think that wraps up this episode. Again, we want to thank case tax for sponsoring the podcast and each each week we include links to the cases we discuss using cakes, text and listening to the podcast can find a 25% discount available to them. If they sign up at case tech.com/help That's the case tech stocks.com/ca LP.

Tim Kowal  47:49
All right, we want to thank our listeners if you have suggestions for future episodes, please contact us at info at cow podcast.com and tune in next time for more actionable insights in the trial court and appeal court.

Announcer  48:02
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca do 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.

In a 4-3 decision, the majority in People v. Padilla (May 26, 2022, no. S263375) --- Cal.5th ---, started with the proposition that California’s Prop 57, which requires minors to be charged in juvenile court, is retroactive in all nonfinal cases. But when is a case “final”? Here, Padilla, who at age 16 murdered his mother by stabbing her 45 times, was convicted way back in 1999. That seems pretty final, right?

Turns out, “finality” is not quite literal, but more a term of legal art. The majority was more comfortable with blurring the lines than was the dissent, which is why the 4-3 split.

There were some unique twists and turns since the 1999 judgment and sentence of life without possibility of parole (LWOP) that made the judgment nonfinal in the majority’s view:

First, back in 2012, the U.S. Supreme Court held in Miller v. Alabama (2012) 567 U.S. 460, that mandatory sentencing of juveniles is cruel and unusual in violation of the Eighth Amendment. Raising Miller, Padilla successfully filed for habeas in 2014. He got resentenced to the same LWOP, but he appealed that in 2016.

In the meantime, the U.S. Supreme Court handed down clarification in Montgomery v. Louisiana (2016) 577 U.S. 190, about the analysis required for sentencing minors. So Padilla got the resentencing reversed and remanded again.

By this time in 2020, Prop 57 passed. Padilla saw his open shot on goal and took it. Although he had only sought habeas (and subsequent appellate relief) relating to his sentencing, now he would challenge the conviction, too, raising the newly-enacted Prop 57.

Justice Liu for a 4-3 majority held Prop 57 is retroactive to nonfinal cases, and that the judgment was nonfinal.

Retroactivity:

Generally, new criminal laws do not apply retroactively. One exception to the rule against retroactivity is for new laws that mitigate punishment. In In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada) the Court held that such laws are presumed to apply to cases charged before the law's enactment but not yet final. (In re Estrada (1965) 63 Cal.2d 740, 745 (Estrada).)

But the exception only applies until the judgment becomes final. (Estrada, supra, at p. 745.) This is a separation-of-powers principle that prevents the legislature from declaring the law involved in a final judgment to be different than what the court said it was. when the judicial department has concluded its judgment in a particular case, “Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.” (Plaut v. Spendthrift Farm, Inc. (1995) 514 U.S. 211, 227 (Plaut).)

Finality:

Was Padilla’s case final? No, because the habeas proceedings made the final judgment nonfinal.

A case is final when “the criminal proceeding as a whole” has ended (People v. Esquivel (2021) 11 Cal.5th 671, 678 (Esquivel)), and “the courts can no longer provide a remedy to a defendant on direct review” (In re Spencer (1965) 63 Cal.2d 400, 405 (Spencer)). “When Padilla's sentence was vacated, the trial court regained the jurisdiction and duty to consider what punishment was appropriate for him, and Padilla regained the right to appeal whatever new sentence was imposed. His judgment thus became nonfinal, and it remains nonfinal in its present posture because the Court of Appeal ordered a second resentencing, from which the Attorney General now appeals.”

The Court also considered the difference between a direct challenge to a nonfinal judgment, and a collateral attack to a final judgment. Merely filing a collateral attack does not make the judgment nonfinal. As the high court has explained, collateral review is distinct from direct review in that it seeks to unwind a judgment that has been affirmed on appeal. (Brecht v. Abrahamson (1993) 507 U.S. 619, 634.)

The AG argued Padilla was making a collateral attack to a final judgment, so the Estrada presumption did not apply to make Prop 57 applicable here. But the Court disagreed: “Padilla's present appeal from his resentencing is part of direct review of a nonfinal judgment, not collateral review of a final judgment.”

Dissent:

Justice Corrigan in dissent, joined by the Chief Justice and Justice Perren of the Second District sitting pro tem, argued that “The majority's suggestion that a long-final case can subsequently become “nonfinal” under Estrada essentially treats “finality” like a switch that can be toggled on and off.”

Justice Corrigan went on to note that the result will be that, if the trial court finds Padilla should have been charged in juvenile court under Prop 57, “the juvenile court could no longer assert jurisdiction over him. His immediate release would be required, regardless of any sign of rehabilitation or consideration of public safety. It seems highly unlikely that voters intended, by silence, to dispense with these carefully crafted procedures for the treatment of youth offenders facing LWOP terms.”

Comment:

What is surprising about this case is that the high court justices were so evenly split on the question of what makes a judgment “final”—a foundational point of appellate procedure.

But as the majority and dissenting opinions illustrate, the question is hard to answer. No one doubts that the original 1999 judgment was final after the Supreme Court denied review and Padilla chose not to petition for certiorari. And no one doubts that, despite the finality, the sentence could be challenged via a petition for habeas corpus after the U.S. Supreme Court in Miller prompted a constitutional challenge.

So that prompts the question: Is a “final” judgment really final if it can be challenged by collateral attack like habeas (as opposed to directly as by a direct appeal)? And if it is still considered “final,” in what sense? At a minimum, it is clear we do not mean the judgment is “final” in a literal sense.

The upshot of the majority opinion is that, once a judgment has been successfully reopened to review via a collateral attack, all bets are off, and the judgment is no longer final. So the Prop 57 challenge was available, even to attack the underlying charges — despite the fact that these had been beyond the scope of the collateral challenge.

The upshot of the dissenting opinion is that, although a judgment may be challenged via collateral attack, the review and remedies available should be limited to those available by the collateral challenge. So here, the collateral challenge did not reach the underlying charges, so these should remain “final” and beyond appellate review.

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.

California Litigation has published my article “Are Anti-SLAPP Fee Awards Stayed on Appeal?” in its Spring 2022 issue. You can access the online version here: https://bit.ly/3aFty3P

A PDF of the article is here: Litigation-Volume-35-Number-1-2022, T. Kowal, Are Anti-SLAPP Fee Awards Stayed.pdf

My article answers the question: Yes, anti-SLAPP fees are automatically stayed on appeal. But for the past 20 years at least, the answer has been “no.” That is because that is how Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400 answered the question, calling SLAPP fees a “nonroutine cost” and thus excepted from the automatic stay.

But the Legislature had abrogated the “routine vs. nonroutine” distinction way back in 1993. Dowling, it seems, did not catch the drift.

Fortunately, Quiles v. Parent (2017) 10 Cal.App.5th 130 noticed something was amiss. Quiles concluded, "there is a reasonable argument that nearly all postjudgment awards of costs in California courts should be subject to the automatic stay of section 917.1, subdivision (d), including attorney fees and unusual costs particular to specific statutes or contracts." The only exceptions that appear to be contemplated are for costs under section 998 and 1141.21, because these are expressly excepted in the statute.

The upshot: If you want an anti-SLAPP fee award to be automatically stayed on appeal, cite Quiles. It is the better reasoned case and more consistent with the statutes. But until the Supreme Court resolves this split, litigants who want to enforce anti-SLAPP fee awards pending appeal may still rely on Dowling.

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 a cadre of appellate nerds began the California Academy of Appellate Lawyers (and Eating and Drinking Association) 50 years ago, the state appellate system was not functioning well.

Ben Shatz joins Jeff Lewis and Tim Kowal to talk about the founding of CAAL, where appellate jurists and practitioners could speak frankly about the problems in the courts, and how to solve them.

And following CAAL’s founding, says Ben, the related flourishing of state and local bar sections and publications devoted to appellate practice ushered in a golden age of appellate practice in California.

Ben also shares his brief-writing process, and whether you should use the blue book or the yellow book.

Appellate Specialist Ben Shatz’s biography, LinkedIn profile, and blog, SoCal Appellate News.

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

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

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

Other items discussed in the episode:

• Ben Shatz’s Daily Journal article, “Happy 50th Anniversary, CAAL.”
• The California Academy of Appellate Lawyers
• The Appellate Court Experience
• The history of SoCal Appellate News
• CaseText

Transcript:

Ben Shatz  0:03 
you nerds should have a nerd club, you should just have some special place where dorks like you can get together and talk about this stuff that only you care about.

Announcer  0:11
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. Welcome, everyone.

Jeff Lewis  0:26
I am Jeff Lewis.

Tim Kowal  0:28 
And I am Tim Cole wall California Department of podcasting license pending review of my blockbuster rental video history. In each episode of The California appellate law podcast, we talk about trial court things and appellate court things both Jeff and I split our practices about evenly between trial and appellate courts, and we try to bring some insight from both of those venues to our listeners.

Jeff Lewis  0:48
All right, welcome to episode 36 of the podcast and a quick announcement. This podcast is sponsored by case text. Case text is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019, and highly endorsed the service listeners of the podcast will receive a 25% lifetime discount available to them if they sign up for case text at case text.com/scalp. That's case, Tech's dot com slash ca LLP.

Tim Kowal  1:17
All right, Jeff. And I know for a fact today that there are no important appellate seminars happening and you know how I know that it's because we have been chats with us today and no important appellate seminar has happened with our bench chats, moderating or participating on a panel. Ben Schatz is a certified specialist in appellate law. He's handled hundreds of civil appeals, writs and petitions and in courts, including the United States Supreme Court, the United States courts of appeals, California Supreme Court and the California Courts of Appeal. Ben served as a law clerk to the Honorable Robert Johnson for the District of Nevada, and as an expert X turned to the to judge Dorothy Nelson of the United States Court of Appeals for the Ninth Circuit. Ben publishes everywhere, including California litigation, California lawyer, Los Angeles lawyer and CB civil litigation reporter. He writes the exceptionally appealing column in the daily journal. He's editor in chief of California litigation, and He is the proprietor of Southern California appellate news, a key source of appellate news for this podcast, and not to mention judges and attorneys throughout the state. And as relevant to what we'll be talking about today. Ben is a member of the California Academy of appellate lawyers. So welcome to the podcast. Ben, we're so pleased to have you with us today.

Ben Shatz  2:34
Thank you, gentlemen. Happy to be here and happy to speak to whoever is in your audience who likes to talk about appellate nerdy stuff?

Tim Kowal  2:41
Well, you are a self proclaimed appellate nerd as the as our Jeff and I and so we're yeah, we're just delighted to be able to talk about some of these things and you have some insights that we certainly don't have and like to try to pick your brain about him. Shoot. Alright, well, well, first, let's get let's get some some of your vitals for our audience who might not as we mentioned, our audiences split about half between appellate attorneys and trial attorneys. Appellate attorneys certainly will know you from from appellate conferences. I owe you my I owe you a lot of credit for becoming a certified appellate specialist because I took all your Pincus seminars.

Jeff Lewis  3:16
Yeah, let me add Ben is the but for and proximate cause of my certification as appellate specialist, those recordings on Pinkus were invaluable. So thank you.

Tim Kowal  3:25
Okay. So I've been how many years you've been in practice? About 30 years? And would you rather be in state court or federal court? what's your what's your preference?

Ben Shatz  3:35
Oh, I'm happy either. I've considered myself fluent in both federal appellate practice and and state appellate practice.

Tim Kowal  3:42
What about Would you rather be the appellant or the respondent or in in federal parlance, the appellee.

Ben Shatz  3:49
I like to win. So I suppose statistically, it's better to be the respondent to APA Li. But, you know, it doesn't matter. You know, what matters is a good appeal something to really sink one's teeth into.

Tim Kowal  4:01
Yeah, yeah. What what what gets your motor running in terms of a good appeal, what the what cases are walking in the door that that you're you're knocking people down to get to and say That's mine, I claim it?

Ben Shatz  4:13
Well, it's always fun to have some kind of issue of first impression, some statutory language that's a little bit vague, sometimes even contractual language, which has been messed up and some really good arguments on on both sides. issues that have some depth, I think are enjoyable.

Tim Kowal  4:32
I had this question for you as well, because you've hosted and participated in so many appellate law conferences. Are there issues or problems that come up so often that it suggests to you that maybe California's appellate rules are maybe too complicated? We've I've talked, I've talked with appellate attorneys who also do both state and federal practice. And they've commented to me that, that the state rules may be roughly similar In the end to federal rules, but they tend to be much more complicated. Is that your experience? And are there? Are there subjects that you think the main may need to be simplified?

Ben Shatz  5:09
I'm not sure I would, I would say that it's too complicated. I would just say that it is complicated. And really what you're saying is, you know, kick in our legal system be improved? Well, of course, it could be improved. And borrower organizations play a big role in that, constantly trying to come up with with better rules, clearer rules, simpler rules, trying to attack or clarify rules or doctrines that exist that that are problematic. But you know, I don't think the biggest problem from my perspective is that appellate practice is too complicated. I think that maybe too many lawyers are too simple. In other words, it's the lawyers that are making the mistakes, the law is out there, right? Like you don't appeal from an order sustaining a demurrer. Right. And yet, lawyers constantly do that. And I don't blame the system for having rules about appealability. And lawyers, just not understanding them and getting themselves into trouble. Which isn't to say it doesn't work both way. I mean, there are definitely instances where things get a little bit too complicated. And maybe they should be be simplified. Yeah,

Jeff Lewis  6:17
the rules for calculating the time to appeal following a motion for new trial and those rules, I still get triggered about studying for the certified appellate exam with the crazy permutations there. That's an area where I would love to see it simplified.

Ben Shatz  6:32
And some of those have been extended recently, to create a little bit more time. But yeah, I mean, that well, that that intersections are always the most interesting part, right? The intersection between the trial court and the appellate court, the post trial motions, that's where things get especially tricky, and maybe that would be a good area for additional simplification. So, you know, I'm not trying to fight your question too much. But I do think that it's, it's a little bit loaded, because, you know, we have a complicated jurisprudence in the state. And you can only simplify it so much. I know that the judge Karnow in San Francisco recently wrote a daily journal piece, talking about how, you know, things are too complicated, generally, and focused on appellate practice and, in particular, so you know, that that view is out there. It may also be that having lived in in the pellet bowl pellet fishbowl for 30 years, you know, I'm not seeing the water, because I'm so used to drinking it.

Tim Kowal  7:29 
Yeah, I appreciate that perspective. And something you said about some attorneys maybe not being sufficiently attuned to these important appellate procedural issues and rules was a segue to this next question I had which was, Can Can trial attorneys who are not appellate specialists, or were don't have any, any particular don't have a lot of experience in appellate law, let's say, Can they still give top quality appellate advocacy? Or do you think that that having an appellate specialist in your back pocket is a necessity?

Ben Shatz  8:02
Well, that's a loaded question. I you know, as an appellate specialist, I believe in appellate specialists, and I do think that that's very helpful. But but but can you can your average lawyer do a good job on appeal? Sure, that can happen. You know, Steve Carlton was a great pitcher for the Phillies, and he can hit. I mean, there are people who have multiple talents. There are pro purrs, that went appeals. So you know, yeah, anything can happen. Right. But you know, you've got to play the statistics. So statistically, I think you will get a better appellate project. If you use somebody who does a lot of Appeals, and the reason that the appellate specialty was created by the State Bar was to allow the public to try to choose somebody who has at least a certain amount of quantitative experience.

Tim Kowal  8:53
Well, this is a an appellate law podcast. We're all appellate specialists here. So we've got a I've got to make some opportunities for us to do some commercials here. So you may call it a loaded question. I call it an opportunity to advertise our services. So something else you mentioned about the value of Bar Association's gets on to what we had you here to talk about. And on a recent episode, we talked with another guest about the value of bar associations because they can keep us aware of what kinds of questions judges might be looking to resolve. And then you just published an article in the Daily Journal about the association that's at the top of the California appellate pyramid, and that's the California Academy of appellate lawyers. The daily journal article is happy 50th anniversary towel. And for our listeners who don't know about the Academy, a brief description from the Academy's website, the California Academy of appellate lawyers is an election only organization devoted to excellence and appellate practice. It fosters networking in the best sense meeting interesting and committed colleagues and judicial officers in congenial settings for everyone. and learns, and many developed both referrals and lifelong friends. So our listeners will certainly be familiar with their local Bar Association's appellate sections. For example, LA County, for example, has an appellate Law Section, then how is the California Academy of appellate lawyers different from your from from your local Bar Association's and appellate sections?

Ben Shatz  10:20
Well, the Cal Academy to begin is the oldest organization devoted to California appellate practice. And frankly, it's the oldest organization devoted to appellate practice in the entire country, arguably with the exception of an earlier group that was founded in Illinois, but but that was doing something a little bit different. And that was not an election only organization. So in terms of of gathering pellet nerds together, the Cal Academy was the beginning. It was before there was anything with the State Bar or with the any of the local bars. And the story recounted in my article is, you know, one day you have two guys, two guys who actually are quite famous in California legal history, Ed Lasher. And Gideon canner and Adam Gideon are sitting around and Gideons office one day, and they're doing what we're doing right now, they're going to talk about some really geeky appellate doctrines, and they're getting deep into into appellate activities, and, and getting his partner Jerry fatum. runs by because fatum is always in a in a hurry to go somewhere. And he you know, he looks at them for a second and says, you know, you nerds should have a nerd club, you should just have some special place where dorks like you can get together and talk about this stuff that only you care about. And, and took that comment to heart. You know, it was a little bit scornful, but it was also a little bit spot on, which is, well, yeah, why isn't there an organization where people who really care deeply about appeals and appellate practice and appellate process can get together and talk. And and so that started the idea of, of trying to create such an organization. And it's not easy to get something off the ground from from nothing. But ad went on a letter writing campaign. And he started writing to the lawyers around the state who he knew and who he had heard of, were appellate specialists of the sort. And remember, there was no appellate specialization, way back when so I mean, it was all sort of word of mouth and what you would read in the advance sheets in terms of who was who was doing good work, and who really was at the top of the game in the appellate world? And wouldn't it be fun for these guys to get together. And again, mostly, it was guys, there were not women involved at this time. And and there was something else going on. And that was that there wasn't very much interaction between the practicing bench and practicing bar and the and the bench. And there were especially on appeals. I mean, there just were no opportunities where appellate justices and appellate lawyers would ever get together and talk to each other about anything. So there was a tremendous disconnect there. And that was incredibly troubling to the practitioners, because they definitely had messages they wanted to get to, to the bench. But how do you do that? Right? It's hard. So you know that some polite inquiries were made to a number of the justices. And any and a cocktail party was had a State Bar convention where some of these early founders could get together. And they invited some of the justices and said, you know, what do you think about an organization where appellate lawyers can get together and include you, and you can come with and talk to us as well. And the reaction from the bench was overwhelmingly positive. They all said, that sounds like a damn good idea. Right? We would like to talk to you as much as you would like to talk to us. And we would like your help, because we have some problems that we need to address. And I'll get to that in a minute. So yes, by all means, you should plunge forward and do this. And by the way, when we say you know, get together and talk, we mean sabrosa, right? We don't mean like writing letters in the daily journal for everyone to see what we're talking about. This is more like, let me pull you aside and tell you, I think there is a problem here with this particular person or a chord or doctrine or something that really should be thought about and discussed. And again, it went both ways. And so the idea was, it would be nice to have a forum for people to have intimate conversations. And that was something that really helped the academy and persist to this day, you know, the Academy had used to meet in Ojai regularly. And the reason they picked Ojai was that it was sort of remote. And if you have the justices and the lawyers come out to meet in Ojai, they couldn't escape. They weren't gonna go run off to some other place, you know, and hang out with some other people and do things. They were there, and they were there for the duration. You know, they were there for the weekend. And the point is that they could If they could get together and be social, let their hair down, take their robes off and tell it like it was. And what happens in Ojai stays in Ojai, you know, so that the conversations that were had, were private, but effective and designed to lead to changes out in out in the, in the public world. So that's, that's really part of the genesis of the academy. And that continues to this day where judicial guests come to Academy meetings, and they know that that they are free to say whatever they want to say, and that the practitioners Also feel free to say what they want to say, and that none of that ever leaves because the confidentiality is in place, everybody can be trusted. And everybody there is there for a reason. They're there on the judicial side, because they're invited guests, because they're there appellate justices, and the lawyers who are there, our Academy members, meaning that they have been vetted, their work has been evaluated for not just quantity, like the State Bar specialization, but really quality. You know, it's not just that you know, all the rules, but are you a really outstanding appellate practitioner, that's sort of the and the point of that is, you've reached that level, where you don't need to worry about basic stuff, you know, we can talk about the most detailed, most nitty gritty, high level ideas, without, you know, worrying about any sort of background. And so it's just sort of an elevated approach. And so, you know, that history of the academy, in part answers your question about, well, how does the Academy, which is, you know, statewide, differ from your local county bar organization, you know, your local county bar organization is open to anybody who wants to come. And it's a great place for lawyers who don't have a lot of appellate experience, or who want to start building up their practice, to join and to get involved. And that's where I started my appellate career. In the in the early 90s, I joined the LA County Bar Appellate Courts Committee, and I went to meetings for 10 years, 10 years straight. And eventually, I got on the leadership rank there. But I mean, that was that was my way to meet people learn about the appellate world, see, who was you know, in and about the appellate community of Los Angeles. And the County Bar organizations, of course, have a focus on doing MC LA, because they want to provide a service to their members, not just in, in networking, but also in in educating and teaching. And they have a relationship, presumably with their local appellate bar, so that justices and judges will go to, to their events and speak. But you know, those meetings are generally sort of business and business type MC le, type focus their public meetings. And so there's always a little bit of recognition that you know, what anything I say here gets out there. So, you know, I'm going to be a little bit cautious about about what we're going to say. And also the level of discourse in meetings like that can range from the extremely basic to the extremely arcane, whereas the academy is trying to just focus on the, on the extremely arcane. So so those are, those are a couple of the, of the differences. And also, you know, depending on how a County Bar functions, there may not be the same level of social interaction. Whereas the academy was originally designed purely as a social mechanism. In fact, the the when they were trying to figure out what to call it, one of the early names was going to be the the appellate lawyers eating and drinking Association.

You know, because you need to change the name. Yeah, well, and there's still a lot of that, that takes place. But that was the idea was to have some fun event during

Jeff Lewis  18:43 
a COVID. Were you able to have the functional equivalent of a, an Ojai meeting on Zoom did those meetings to lap in virtually

Ben Shatz  18:52
the academy whether the the COVID pandemic just fine in the same way that the appellate courts and most other organizations did, which is to say that they moved online. And the the, by the way, the American Academy of appellate lawyers did the same fact, the meeting meetings were held virtually, and there are advantages and disadvantages to that. We don't need to discuss it, but because of that, that's all been beaten to death. But But yes, the Cal Academy persisted in its activities, be using Zoom platforms and things like that.

Tim Kowal  19:24 
What's the need for the vow of confidentiality for the for the academies meetings?

Ben Shatz  19:31
Because we want people to feel free to express themselves I mean, that again, that was the whole point of it. You know, I mean, anybody can write a letter to the to the legal newspaper and say, you know, I'm really upset about such and such but it's different when you can have a conversation and and the level of comfort and trust that that makes a big difference. I mean, that's always been part of how the how the Academy has operated and it makes a lot of sense because it provides for candor. on both sides. And by the way, I should mention, you know, I'm not an officer of the Cal Academy, I'm not here to speak in any official capacity or make any statements on behalf of the Academy. I'm just here to, to answer questions about the, you know, what the Academy does, and where the, you know, how the academy got to, to where it is. And, and frankly, the academy was something that was always on my radar screen from the time that I first started practicing. You know, Gideon canner was one of my first mentors and Reed hunter who was an early president. And and the the firm that I began with at the old Crosby Heafy firm is filled with a calot Academy members and past presidents and, and so I always knew that, you know, if I'm going to be an appellate lawyer one day, I really want to be in the academy. But my perspective is different. I think most lawyers, including appellate lawyers, they might not have ever heard of the academy, they might not know anybody who's a member, because it is a relatively small group. And it would be nice for more people to know about the academy, there is a website. And so, you know, it's not that the academy itself is meant to be secret. Quite the contrary, the academy welcomes applicants who are qualified to apply to be evaluated.

Tim Kowal  21:18
Now, Ben, you mentioned that, that when Gideon Kanner and Ed Lasher, in the other founders of the academy approached judges about maybe being a part or at least being invited to the academy meetings, they were overwhelmingly receptive and said that we want to talk with the with the bar as much as you want to talk to us. What kinds of what kinds of things did the judges want to communicate to practitioners?

Ben Shatz  21:44
Well, the you know, there are always problems everywhere, right. I mean, the one of the things that the the bench wanted it to get across early in the early days was problem number one, the level of appellate practice is pretty bad. You know, generally back in the in the 70s. And earlier, you know, most lawyers just really didn't know much about appeals didn't know what they were doing. The resources that exist today did not exist, right. I mean, there was no router guy, there was no Internet, there was no, I mean, basically, lawyers had no idea what they were doing. And so one of the things that the appellate bench wanted was for some group to get out there and teach people how to do appeals. Now, the academy did not necessarily take that on. Right, the academy was not interested in becoming the educational institution of appellate practice, because again, that wasn't its point. Now, that's more to the point of other bar organizations like the local organizations to try to up the game and educate, which isn't to say that the academy doesn't do CLE programs, because it does, it does lots of CLE programs, but they're, they're huge, but they're different than the sorts of programs that you see that are out there today. And again, there wasn't no MC le industry out there, because there wasn't no MC le requirements that existed, right. I mean, so you know, we're taking this way back. So what else were the justices concerned about? They had institutional problems. The judiciary was very small, very underfunded. And there were a lot of problems with the way that the appellate courts were being run, and going back to those decades, and they wanted help from the bar, not just to up the level of appellate practice, but to you know, maybe bang the drums and say, you know, the appellate courts need more help. They need to be structured differently. They need more funding from Sacramento, I mean, just all kinds of facts. And I'm sure there were plenty of substantive issues as well. So so there were a lot of problems with the timing of appeals. I mean, we think we have slow appeals now. I think it was particularly bad back then. And in fact, it was so bad that right around the same time, the State Bar created the its committee on appellate courts, and assess, assess. Huff Statler was the first chair of that, and I've written an article about the history of that group as well, although I did not go into the details of its genesis, but essentially, everybody in the state felt that the appellate court system simply was not functioning well. So the State Bar committee gets together, and they start coming up with proposals and they start publishing these papers. And you can you can read them of historical note, and they were proposing some very radical changes to the way that appeals would function. They were proposing another layer of appellate courts. They were proposed. I mean, they were making mega changes, at least proposing them right. And that also helps energize the practicing appellate bar, because the early founders of the academy were looking at these as they were coming out and saying, This is outrageous. There is no way that we want the appellate court system in the state to be changed. So right so drastically, and the you know, a lot of those proposals were didn't go anywhere, but I think that that was all So a factor in creating the academy getting people motivated to we need to get together and say something about these proposals that the State Bar committee is throwing out. Because there are a lot of problems with it. And also around the same time is when groups like the LA County Bar committee on appellate courts, you know, several years after that came into existence, because it was recognized that there were problems, there were things to be talked about. And we you needed to get the right people together in a room to figure out ideas and get those ideas to the right places.

Tim Kowal  25:34
So I think that gives us a sense of what you what you're saying in your article, when you say that there was something in the air at that moment in time a deep seated concern about the functioning of the appellate courts. And so after the advent of the academy, and, and other in other bar groups, both at the state level at the local level, we started to see some more participation, some more, I guess, integration or communication between the bench and the bar. And what it was was this was just the beginning of a kind of a flourishing. Did that did that usher in the golden age of appellate law in California? Well, I

Ben Shatz  26:13
suppose you have to say yes, I mean, look at where we are. Now, we have, you know, State Bar certified specialties. We have bar groups all around the state, at least locally, in many places that are focused on on appellate practice, the Academy has continued on doing what it does. And the State Bar Committee, which which was always a very small committee, you know, it started off, as you know, about 15. Lawyers sort of handpicked to address these problems. That committee extends to the divorce of between the State Bar and CLA has now become the Committee on appellate courts within the litigation Section of the California Lawyers Association. And I'm involved in that group too. And one of the things that they're working on we're working on is creating something called the appellate practice network, which we're hoping to get off the ground. And the idea for that is there still is not in California, a a home for any lawyer who wants to become involved in appellate practice, at the statewide level, you know, you can join your County Bar organization, and if your County Bar has an appellate court section, well, good for you, you have a home. But what if you're in a county that doesn't have enough appellate lawyers? You know, we've got 58 counties, and you know, the ones with the most active appellate communities la San Francisco, San Diego, Alameda, I mean, that's great for those lawyers. But what about everybody else? You know, and CLAS mission is to serve all lawyers and California. And even if you are active in your local community, what about being able to contact people in other districts where you don't practice? You know, so why shouldn't there be a group that is a statewide, publicly open organization, and that's what the CLA committee is designed now to be? It's evolving into that and when this appellate practice, network idea takes off, any lawyer can can join CLI, and then we'll be able to join this Appellate Group, and they're hoping to have a listserv so that you can ask questions, and get answers from people all over the state. Now, the academy already has that, right? The American Academy has that. And a lot of the local groups have that. But yet, as I pointed out, you're still not covering all the people who could benefit from that.

Tim Kowal  28:31 
I think what I'm hearing when I hear you talk about the Academy and the flourishing of all these new bar associations is it sounds like a vindication of the Bob Putnam thesis Bowling Alone, where he talked about kind of the disintegration of a culture is when people stopped joining groups and and what I'm not hearing is that there was any particular rule or policy or program put in place, it was just let's just get attorneys talking to each other, let's get the the appellate attorneys talking with the appellate judges and, and that that fostering of communication between the bench and the bar and, and in within our practice groups, advanced the cause of of educating our bar and improving our court system without having an agenda, so to speak. Is that, is that fair? Is that a fair summation? Sure, absolutely.

Ben Shatz  29:19
I mean, and we are living in the golden age of appellate bar organizations.

Tim Kowal  29:26
Now, I want to ask you, now that I've mentioned that, that the academy is not about any particular program or policy, but today, does the academy or or members of the Academy have not to not to breach your your vow of secrecy, but there are there any issues that the Academy has its eyes on like John Eisenberg, for example. Over the last couple of years have been the effort to try to alleviate some of the congestion in the Third District Court of Appeal in particular and wonder if the if the academy had any any role in that or opinions on that? Or is there a role for the, for the Academy to play in those kinds of problems?

Ben Shatz  30:06
Well, the Academy has a website, and you can go to the website and part of the one of the links on the website will allow you to see the various letters and briefs that the Academy has written over over many decades. Any issue that affects appellate practice, civil or criminal, you know, the Academy has both are of concern to the academy. So obviously, what's happening or what, you know, what's been reported about the third district? Yeah, the academy is interested in that. They're interested in big issues. They're interested in small issues. And we write lots of letters. So you can look on the website and see, you know, what sort of issues the academy is is interested in? It's not necessarily and it's not, it's not substantive, right. The academy is not a a defense bar organization or a plaintiffs bar organization. Where is this or that? You know, it's all about the appellate process that in and of itself.

Tim Kowal  31:02 
Now, Ben, what kind of attorneys make up the California Academy of appellate lawyers? Are they are they mostly big law, law firm attorneys? Are there small private practitioners involved in the academy? Well, that

Ben Shatz  31:16 
again, if you go to the website, you can pull up the membership. And you can see everybody, and it's funny that you mentioned big law, I would think that, you know, the big law lawyers are a very small, very, very small part of the academy. If you think about how appellate practice developed, you know, again, going back to the beginning, it was solos and small, firm lawyers, which was, again, one of the reasons why they really wanted to get together and find each other, and talk to each other. And, you know, one of the early founders was Ellis Horvitz and Ellis, you know, he put his money where his mouth is, in the sense that he didn't just help, you know, with with the academy, but he founded an appellate boutique, right, he founded the first appellate boutique. And the current membership of the Academy, I would say is split. You know, maybe roughly into thirds. You know, there's a lot of lawyers who work in boutiques, and there are a number of boutiques, small to large for boutique size, there are still a lot of solos, and there are some big law lawyers. But you know, it's if there's a perception that the academy is all about, you know, a big law, fancy lawyers, you know, not at all that is that is wrong, that doesn't accord with the history, or the or the development or, you know, where we are today. So, you know, take a look at at who was on the on the membership, and I think you'll see there plenty of folks who are practicing out of their, their garage, so to speak, you know, that, and they're there. They're amazing appellate lawyers,

Tim Kowal  32:45
the Academy has somewhere around 100 members, is that is that about the right size? It seems fairly small for a state as large as ours with as many attorneys as we have? Is it meant to be a small a small group to maintain that collegiality, or should it be bigger is Academy looking for more members?

Ben Shatz  33:02 
Well, the academy is always looking for more members, right? The Academy wants to have the very best, it's like men and black, the best of the best of the best, right? I mean, if that's you sign up and and and see if you're accepted, right. But there's nothing in the academies Constitution that says, you know, this group shall be limited to X number of lawyers. So in that sense, it was not like the old state bar committee used to be limited to 17 lawyers across the state. So it was really hard to get on to that committee, you'd have to apply year after year and hoping that one of the spots would open up. The academy is not looking for membership on that, on that basis. It is not quantitative. It's purely qualitative. Now, you question the the number of lawyers Well, I mean, how many certified appellate specialists are there in California? 600. Okay. Okay, so now if the county Yeah, if the academy, as you say, has 100 members, you know, and I don't know if that number is is right, but it's probably roughly right. You know, that doesn't strike me as as too few.

Jeff Lewis  34:04
By the way, it used to be about 300 members, and then the State Bar relaxed the experience requirements to be eligible to take the test. And then I noticed a jump from 300 to 600.

Ben Shatz  34:16
Okay, yeah, I mean, because that I was gonna say I thought it was about 300. But, you know, for the for the State Bar. Certification is a moneymaker. That program makes a million dollars a year. So they are very eager to have people pay to take the test, pass the test, and then continue to pay their annual dues. Not to Yeah, license fee to pay their license fee with the certification kicker.

Jeff Lewis  34:40
Yeah,

Tim Kowal  34:41
Jeff, when did you check the I just checked a couple of weeks ago, I counted 308.

Ben Shatz  34:46
Yeah, I don't that 600 number seems way too high to me. But what? Yeah, if you need to do it.

Jeff Lewis  34:52
Okay. We'll put a link in the show notes to the definitive answer who's right and who's wrong? Hey, let's switch gears for a second up and I got to know you a little bit in connection with a different organization, not the academy, but as the appellate court experience, are you? Are you still involved in that in any way? Did it survive? COVID? And can you tell the listeners a little bit about what aces?

Ben Shatz  35:12
Sure I'm happy to talk about ace, the appellate court experience was a is a joint program between the LA County Bar appellate courts section, which we've talked about the Second District Court of Appeal, and the constitutional rights foundation. And the the point of the of the ACE Program is for high school students to be able to learn about the blue, learn about the law, learn about appeals, go to the Court of Appeal, watch an appellate argument talk to lawyers who've argued and appeal talk to the justices and get a feel for a an important lesson in civics. So CRF is in charge of finding schools and teachers to pair classes with lawyer volunteers from the LA County Bar Association. And also the Cal Academy was is a partner in that okay. In in, in, in matching volunteer lawyers, with school so that the lawyers first will go to a classroom in a school and provide an overview of the court system, and what an appeal is all about. And also talk about a particular case that the class is going to watch. Then they go to the court and they watch the appeal and they can talk to the participants. And then after the decision comes down, the lawyer volunteer, it goes back to the court and explains what happens and what can happen next and, and things like that. So it's a volunteer civics program. I was involved in the in the foundational meetings for this. And I was very skeptical that we could make it work because there's a lot of moving parts there, getting a bus to transport kids from a school to go to the court to talk to the justices and getting a volunteer lawyers to devote time to do this. I mean, it was a little, you know, out there. But in fact, and this is around 2005. Everybody was uh, everybody involved really wanted to make this work. And they did, you know, CRF had wonderful people involved. The court was very much behind it that the clerk of court at that time, Joe Lane was a big supporter. And and the County Bar stepped up to provide the volunteers and even some some funding from lawyers and law firms. And so the program took off. And it functioned extremely well, with many classes over the course of a school year visiting the divisions of the Court of Appeal and watching arguments and the volunteers doing it. And it was never that hard to get volunteers because it turns out lawyers love to do this. It's actually a lot of fun to talk to kids about appeals. And then we hit a problem when there was a school strike with LAUSD and so that sort of interfered with the, you know, connecting with the school, and then shortly after that, then then COVID hit, and suddenly, you know, kids were not getting on buses to go to courts, because the courts were closed, the schools were operating differently. And so we have not had, you know, I think we had one ACE program that was maybe by video. But you know, it's so much harder to do in the video environment. So ACE has not quite bounced back yet. I think that when, when we're completely through this through the pandemic, and the courts are completely open, and the schools are completely open, and nobody has a problem, you know, sitting in a room with a bunch of strange kids that you've never met before, then then I think we'll get back on track, because the program has been a tremendous success. And it's just sort of had a little hiccup these days with with those obvious logistical concerns. And I should also mention, the program was such a big success in Los Angeles, that had spread, you know, the Orange County, I think, did that a little bit of it, or certainly some schools from Orange County were coming up to LA to do it. The InVenture division six jumped on board and they've had classes and the third district in Sacramento was was able to replicate it, you know, it was very interested in it. And so we helped set it up up there with with I think it was the Sacramento County Bar pellet group, maybe was getting the volunteers and they were working on that. So, you know, it was an idea whose time had come. And it was really wonderful.

Jeff Lewis  39:14
But I hope it comes back. I remember there was like a last minute cancellation, like we're gonna go and you kind of cornered me on email to go and I didn't really want to do it. And I really enjoyed it. I was surprised how much I enjoyed interacting with these kids. I thought I was going to be giving up PowerPoint to a group of drooling zombies. And these kids were so enthusiastic and smart. And yeah, really enjoyed it. So I'll be keeping an eye out to maybe see if it comes back. We'll certainly include a link in our show notes to the program.

Ben Shatz  39:43
Yeah, there's a website on CRF for eighth, there's a website on the second district's website as well. So you know, it's still there. You know, it hasn't died. We just need to find a way of bringing it alive again.

Jeff Lewis  39:57
Yeah, yeah.

Tim Kowal  39:59 
It also may I wanted to make one pitch for for your blog, the Southern California appellate news blog that you've done for gosh, well over 10 years, I believe you had done. You did a podcast just a few months ago talking about the origin story of SoCal appellate news. And one of the one of the comments that you made in that, in that podcast, I'll put we'll put a link to that podcast in the show notes was that you really don't have an opinion or, or an agenda in any of your reporting. And in that, in that, is that that bears true on you are, you're truly just reporting a lot of a lot of great appellate news from across the state. And, but and it made me wonder, I mean, you gotta have some angle. What I don't mean that in a mischievous way. I mean, what is it that really gets your motor running to get you spend a lot of time reporting this news? And it's got to be a labor of love? What is it that kind of gets you out of the bed in the morning to type away at the keyboard at SoCal appellate news?

Ben Shatz  41:00 
Well, I'm deeply ensconced, and what I call the appellate world. Right. And so, you know, I read the newspapers every day, many of them the legal papers and, and other blogs and all the information that's out there with an appellate angle, you know, if there's an angle, it's what's the appellate angle. And I also read the decisions that are published and unpublished, and the civil cases as they come out, and you know, what I'm really looking for are interesting, saying, See unusual facts, you know, there's plenty of appeals that, you know, every day, they're just coming out, and they're just sort of the usual scenario, but I'm looking for the the the ones that are outstanding, in some good way or bad way. You know, I'm looking for that funny footnote, where that, you know, that that lawyer who just barely didn't get sanctioned, and you know, what the what the lesson there is, you know, I mean, that the sort of train wreck stories, that journalism in a census is all about. So and, you know, remarkably, there's, there's something every day or every other day, I think of no. And, yeah, I'm doing the the compilation and looking at the news for my own benefit. I mean, that had always been part of my practice. As a young lawyer, I was told, you know, you need to read the Daily Journal every day, and you need to look at the recorder every day, you need to be part of the legal community. And you need to know what's going on. And so, you know, all I'm doing sort of as an as a service to the appellate world is plucking out the things that are of appellate note, and putting them in one place, so that people can confine them easily. You know, it's hard to do that, you know, we're all busy. And not everybody can look at everything. And so I, you know, I think that I've been providing a valuable service to, to the appellate community that apparently is out there.

Jeff Lewis  42:46
It's, it's a great sir. It's tremendous service, I benefit from it. And we just say from the podcast, on occasion, we, you know, go to your blog and look for story ideas. Can I ask them? On a personal note, you're involved in so many sections, academies programs? Pinkus, you read the Daily Journal every day? You're a member of a large law firm, I must have demanding hours, how do you manage to stay so involved in all these activities and still practice law? What's the secret?

Ben Shatz  43:15
Well, there's only 24 hours in a day. I mean, we all have the same amount of time. I don't know what that what the secret is, you know, it's not like I say, Oh, I get up at 4am. And I do this, and I do that, you know, I, I feel that I lead a fairly normal life. But I am for, you know, even even by bar junkie standards, fairly engaged, you know, at all levels, you know, local, state, national, I mean, I've got a lot going on. And yet, there's always more. I mean, there are there's always more organizations that, you know, theoretically, I could join and do things in. And the lesson I draw from that is there are a lot of opportunities out there. And so, you know, the question isn't, you know, why am I involved in so much but but why are Why are not more people involved in so much? Yeah, yeah. Fair point.

Jeff Lewis  44:02
Yeah. Especially in areas action

Tim Kowal  44:04
for today. Why aren't you?

Jeff Lewis 44:08
Yeah, we'll have a link to the application for at least the the California Academy at the end our show notes. Let me ask on a related note, you say you read the newspaper every day, I have to tell you, I've been a lawyer. 26 years, I have never subscribed to the daily journal. I get my news reports from other sources. And do you see a future where the daily journal continues to be printed on paper? It continues to stay in business when you see other newspapers and magazines kind of going out of print, or at least digital only?

Ben Shatz  44:39 
And that's an interesting question. You know, when Tim was introducing me, and he said that, you know, I'd published articles and all of these various outlets. A lot of those don't exist anymore. Yeah. CTV civil litigation reporter gone. California Lawyer magazine, gone. I mean, there has been a tremendous shrinking of of print outlets. Are these sorts of things, and I appreciate your point about the, you know, reading the newspapers, I had always worked at a law firm, where we always had the newspapers, but I'm sure those subscriptions are expensive. And so it's not easy for everybody to, to get that and to access it. And I also, of course, am well familiar with the, you know, the notion of the death of print, you know, everything is going digital, and blogs and, and so forth. And, you know, I tend to think to answer your question directly. The law is a very conservative retro grade profession, you know, we're always the last to change. And so I think the, you know, what, when, when normal newspapers are gone, and everything's online, they're very well, still may be a daily journal, and I met news and a recorder, you know, in part because there are laws that say that notices there have to be printed. Right? You know, you look at the ads there. And those are the ads that are, you know, printing legal notices. I think that the newspaper, the legal legal press has done a fairly good job of transitioning to the digital world. And, you know, be as I said, I would I read the journal daily journal every day for decades, and then the pandemic hit, and suddenly, I'm not in the office. So I'm not getting the newspaper, but of course, it's online. And so, you know, that's just a new way. And honestly, and I haven't actually picked up a daily journal in several years, because I don't even know where they are. Maybe they're piling up somewhere in the office. But, you know, they're not being circulated. It's reading stack. Yeah. And the way that the that they want to us, so you know, you're right to point out that there, there is a future in the evolution of, of media. And we're doing it right here, you know, this this podcast, this zoom call that we're having, and we're talking about blogs, I mean, there's definitely a shift. But I do think that there always needs to be what I would call the paper of record, right? There needs to be one or two sources that are sort of the official, you know, the New York Times type, you know, well, if there's one paper, this is it, right? And because without that you get so fragmented. You know, you can't have blogs replacing that because there's a blog on everything out there. Yeah. So I don't know what the answer to that is, you know, now I run it. I have a column in the daily journal. So every month I submit an article, the series is called exceptionally appealing. And the focus was supposed to be on exceptions to appellate practice, because again, I'm interested in the unusual, the outliers, not the basics, and there's a lot to write there. But, you know, over over time, I've branched off into other things that I think are of note to those who themselves are exceptionally appealing. Hence, articles like the history of the state bar committee on appellate courts, or the history of the California Academy of appellate lawyers, or, you know, my next article is going to have a little bit about the the blue book and the yellow book. I mean, these are things that appellate lawyers care about, and you know, have to have some attraction to the general practicing bar. And my column I think, has been well received. I get emails fairly regularly from people who find it either helpful or amusing, or both. And for me, that's success. But at least

Tim Kowal  48:13
let me get you to weigh in on Blue Book versus yellow, yellow book, what's superior?

Ben Shatz  48:19 
What's not a matter of what's superior? The none of them are superior. Right? I mean, legal citation is, it's completely ridiculous.

Tim Kowal  48:26 
I gotta get your opinion on something on the record been a my opinion

Ben Shatz  48:29
on the record is, if you are drafting a brief for a California appellate court, you should be using the yellow book. You know, now that's not really a stretch. It's in the advisory committee notes to the to the rules of court, that lawyer brief writers are encouraged. That's the quote, to abide by the California style manual. So

Tim Kowal  48:49
you're illegal, what does it call it? Descriptivists. You just you say what the law? Is that what it should be?

Ben Shatz  48:56
Yes. Well, I'm not in a position to do that. Right now. I think that that it would be nice to have a new edition of the yellow book, because it hasn't been updated in forever, in 20 years. And that's, that's a problem. But, you know, I don't like seeing a blue book form in state court. I feel that, that that exactly. It's misplaced. You know what, what you're saying is, I'm a law student, and I only know blue book, or I'm a federal lawyer, and I only know a blue book, or it's saying only I only learned blue book, and I'm never going to learn another one. So that's good enough for me. So

Jeff Lewis  49:35
it's saying I never saw the movie. My cousin Vinnie. Right, yeah. You don't mind sticking out like a sore thumb. Let me let me ask you a final subject before we wrap up the interview. And that's about your brief writing process. You know, when you're not writing a monthly column and you're involved in sections when you're just writing a brief, what is your brief writing process? There's some lawyers who like to start the with the introduction. And then right from there, there's some people who Do their introductions last? Some people write out all their headings first? And then they start drafting the body? What is your How do you approach brief writing?

Ben Shatz  50:07
Every project is different. But you know, I would probably say, I gotta start with the facts. I mean, how can I write anything? How can I write an argument or an introduction? If I don't even know the story, right? I mean, so I, you know, I try to try to start with, with the factual statement, so that I at least know what I'm doing. But from from there, you know, that's gonna get revised, and the arguments get revised, and the intro and the conclusion, I mean, everything, it becomes very organic and grows in all directions. But, you know, the storytelling really is essential. And a lot of the, you know, the founders in their letters back and forth, I think there was a line and one of them were some somebody said something like, you know, I would rather let the other side you know, write my legal argument section, if I get to write the factual section, because that's what drives a case, you know, cases are about the facts. And that's the one thing that the Court of Appeal or whoever, you know, the judges don't know the facts of your case, they may know the law perfectly, or what they were, where they want to go, but they don't know the story. And so they're relying on the lawyers to present a coherent story that includes what happened in the real world and what the procedural history was in a case. And so, you know, I tend to do focus on that more at the beginning of any project than anything else.

Jeff Lewis  51:27 
Interesting. Okay. I took you know, personally, I tend to write the facts section last, I do the arguments, and then I go back and kind of fill in the facts, because I know I want to emphasize certain facts. All right.

Ben Shatz 51:38
Yes, yeah. Interesting. It's not always it's always going to go back. But you have to at least have a factual Foundation. Because how can you evaluate the case law and know if a case is on point for you or not? If you don't know your own facts, right.

Jeff Lewis  51:51
Yeah. Right. Yeah, for sure. For sure. Interesting. Okay. Well, I think we're close to the end of the hour here. I don't want to take up too much more of your time. We want to thank case text for sponsoring our podcast. And each week, we include links to the cases we discussed using case case, text, and listeners of the podcast can find a 25% discount available to them, if they sign up at case text.com/ca LP.

Tim Kowal  52:17 
And if you have suggestions for future episodes, please email us at cow podcast@gmail.com. And thanks, Ben shots for joining us.

Ben Shatz  52:26
Thank you for having me as your real pleasure. Take care.

Announcer 52:29
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 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.

The anti-SLAPP statute allows defendants to challenge complaints that chill the rights to speak and petition. But the rights to speak and petition have blurry and elastic boundaries. So often plaintiffs with legitimate claims get stuck defending SLAPP motions.

Worse, when the plaintiff defeats a meritless SLAPP motion, the defendant gets to appeal.

That’s what happened—twice—in the now-seven-year-old case of Flo & Eddie, Inc. v. Pandora Media, LLC, 2022 WL 1800780 (9th Cir. Jun. 2, 2022). The founders of The Turtles sued Pandora for failing to pay for playing Turtles songs. Pandora filed anti-SLAPP motions arguing playing music was protected speech. Two appeals and seven years later, Pandora lost.

Denials of SLAPP Motions Are Considered Collateral Orders in the 9th Circuit, But Judge Bress Thinks They Shouldn’t Be:

Judge Daniel Bress wrote a concurring opinion saying this is too much to take. The federal rules do not provide for the appealability of denials of anti-SLAPP motions. Instead, they have been held to be appealable as “collateral orders.” But a collateral order is an order that, among other things, is “completely separate from the merits of the action.” Will v. Hallock, 546 U.S. 345, 349 (2006). And an anti-SLAPP motion explicitly requires the moving party to prove the complaint lacks merit. So, by definition, an anti-SLAPP denial is not a collateral order.

This is not a new argument. Judge Bress favorably cited the concurrence of Judge Watford, joined by then-Chief Judge Kozinski and Judges Paez and Bea, in Makaeff v. Trump Univ., LLC, 715 F.3d 254, 261 (9th Cir. 2013), where the same reasoning was offered.

In Makaeff, the majority rejected that reasoning, holding that “while the inquiry on the motion to strike may glance at the merits, its central purpose is to provide an added statutory protection from the burdens of litigation that is unavailable during the ultimate merits inquiry.”

Of course, that could be said of motions to dismiss or for summary judgment, and denial of those motions are not collateral orders. So the Makaeff holding is not wholly satisfying.

Judge Bress also noted that the 9th Circuit’s precedent making SLAPP orders appealable as collateral orders is falling out of step with other circuits, including the 2nd, 7th, 10th, and D.C. Circuits, and more recently the 11th Circuit.

Another Wrinkle in the Appealability of SLAPP Orders:

Here is another nuance to keep in mind:

An order granting a SLAPP motion is a final order, and immediately appealable as a final order under 28 U.S.C. § 1291. But an order granting a SLAPP motion is not listed in FRAP 58, which requires final orders other than those listed in rule 58 to be formalized in a separate document—a judgment. Without the judgment, § 1291 final orders not listed in rule 58 are still appealable, but the deadline to file the notice of appeal is 150 days, rather than the usual 30.

But an order denying a SLAPP motion is appealable as a collateral order, rather than as a final order under § 1291. So rule 58 seemingly does not apply. Thus, the deadline to appeal a denial of a SLAPP motion is 30 days. In contrast, the deadline to appeal a grant of a SLAPP motion may be 30 days, or it may be 150 days if a separate judgment is not entered.

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 2020 film I Care A Lot is premised on the possibility of predator conservators using the conservatorship system to loot the estates of the elderly. Could it actually happen?

Probate attorney David Greco says that, while the film makes some leaps, conservatorship abuse does happen. Improper uses of conservatorship include children seeking conservatorships over parents for writing them out of their estates, or even for refusing to take their children’s phone calls.

David also relates a story of a conservator who locked her ward in the house and isolated him from examiners. Thwarting her efforts cost multiple millions in attorney fees.

David explains why the #FreeBritney movement is a long-time coming, and has produced at least one favorable change that allows conservatees to hire their own counsel. (Query why that basic right had been denied until 2021.)

Watch the clip here.

This is a clip from episode 29 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.

In one of the many lawsuits by hip-replacement patients against the maker of the Durom Cup, Kline v. Zimmer, Inc. (D2d8 may 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

The plaintiff had offered expert testimony that his pain and weakness were the result of a defect in the Durom Cup. Zimmer offered its own expert to opine on alternative causes of the plaintiff’s complaints. Zimmer conceded that those alternatives were “less than a reasonable medical probability,” but still, they were plausible causes that the jury ought to consider in making its finding on causation.

Following precedent that expert causation opinions are inadmissible if expressed short of a reasonable medical probability, the trial court excluded Zimmer’s rebuttal expert. The jury returned a verdict against Zimmer of over $80,000 in economic damages and $7.6 million in noneconomic damages.

The Court of Appeal reversed.

The Trial Court Erred in Excluding Rebuttal Expert Opinion on Grounds the Opinion Was Less Than a Reasonable Medical Probability:

First, the court acknowledged that an expert opinion expressed to less than a reasonable medical probability is a ground for exclusion. “To allow a jury to consider a claim where the plaintiff's prima facie showing falls short of reasonable medical probability would be to allow the jury to find the requisite degree of certainty where science cannot: “ ‘If the experts cannot predict probability in these situations, it is difficult to see how courts can expect a jury of laymen to be able to do so.’ ” (Ortho Pharmaceutical, supra, 163 Cal.App.3d at p. 403 [quoting Parker v. Employers Mut. Liability Ins. Co. (Tex. 1969) 440 S.W.2d 43, 49].)”

But that is not a ground to exclude rebuttal opinion. The court agreed with Zimmer that “to have a defendant state affirmatively that one cause rises to the level of reasonable degree of medical probability is improper burden shifting upon the defendant.”

As the court put it: “Zimmer did not need to show that a different cause was more likely than not the cause of Kline's injuries. All that Zimmer needed to show was that Kline's evidence was insufficient to prove Kline's injuries were more likely than not caused by Zimmer. It should have been permitted to do so by offering expert opinions offered to less than a reasonable medical probability that Kline's injuries may have been attributable to other causes.”

In other words, a defendant is entitled to offer alternative theories, and it is error to require the defendant, as a threshold matter, to establish the alternative theory is more probable than not.

A few interesting comments about the role of experts and juries in deciding scientific questions:

The court made a few other epistemological observations about arriving at conclusions about the world:

• “to allow testimony from a sincere but overconfident expert, but not from an equally sincere expert harboring reasonable doubts, risks closing the courtroom door to scientific consensus (or the absence thereof).”
• “To withhold such information from the jury is to deprive it of relevant information in assessing whether the plaintiff has met its ultimate burden of persuasion.”
• Withholding valid-but-unlikely expert opinions from the jury “would improperly transfer from the jury to the court the responsibility for resolving conflicts between competing expert opinions.”
• “just because an opinion does not reach the reasonable medical probability threshold does not render it speculative…. While the trial court has discretion to determine the point at which an opinion becomes speculative, subject to the applicable provisions of the Evidence Code, that threshold is necessarily shy of the 50 percent likelihood cutoff imposed on Zimmer in this case.”

Improper Exclusion of the Only Expert Rebuttal Was Structural Error:

An evidence ruling normally is reversible only if it worked a different result. (Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1223.) This rule is compelled by article VI, section 13, of the California Constitution, section 353 of the Evidence Code, and section 475 of the Code of Civil Procedure.

But “structural” errors are reversible per se. “One element of a fair trial is the right to offer admissible evidence on a material issue. (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357, superseded by statute on other grounds as stated in In re Marriage of Swain (2018) 21 Cal.App.5th 830, 840.) Therefore, improper exclusion of expert testimony can amount to structural error when it deprives a party of this right.”

Where excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” Thus, the court held, “The trial court's categorical exclusion of Zimmer’s expert testimony on a central issue, which was beyond the experience of laypeople, deprived Zimmer of a fair trial and therefore constitutes structural error.”

The Upshot: This is the second reversal after a trial, which means the parties will have to try this case a third time. The trial judge, the Hon. Daniel J. Buckley, is a former personal-injury defense attorney. This suggests that, despite the care and experience devoted to this trial, trial procedure governing experts is both extraordinarily important and extraordinarily variable. To the extent expert issues can be crystallized in motions in limine, trial counsel should consider taking up a writ petition.

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.

Jeff and Tim discuss some surprising recent cases, including two cases where the courts allow untimely appeals, and a case where the right to an appellate record via a settled statement was duly requested and rejected in the trial court and with no recourse in the Court of Appeal.

And Jeff previews an anti-SLAPP motion brought by Sony Music that might be characterized as a SMACC: a strategic motion against credible claims. Did the Legislature, when enacting the SLAPP statute, have corporate giants like Sony in mind?

Cases discussed in the episode:

• Tim’s post on recent strange outcomes involving untimely appeals.
• Pelter v. 1-800-Get-Thin, Inc. (D2d1 May 11, 2022 no. B307771) 2022 WL 1485533 (nonpub. opn.).
• Hurd v. Hurd (D2d2 Feb. 24, 2022 no. B309280) (nonpub. opn.).
• Cast v. Kelly (2/3 B299797).
• Quest Internat., Inc. v. Icode Corp, 122 Cal.App.4th 745 | Casetext.
• Tim’s post on R.M. v. J.J. on settled statements.
• Serova v. Sony Music Entm't (2020) 44 Cal.App.5th 103. Serova’s PFR is here. Sony’s Answer to PFR is here. FAC’s Amicus Brief is here.
• United States v. Allen (9th Cir., May 16, 2022, No. 21-10060) “The public trial guaranteed by the Sixth Amendment is impaired by a rule that precludes the public from observing a trial in person, regardless whether the public has access to a transcript or audio stream.”
• Potter Handy update from a newspaper in San Mateo California.

Transcript:

Tim Kowal  0:03 
deeming an untimely appeal to be timely for no reason at all, just seems to me like random violence to appellate procedure.

Announcer  0:11
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis  0:25 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:27
And I'm Tim Kowal California Department of podcasting. pending review. The California appellate law podcast is a resource for trial and appellate attorneys Jeff and I are appellate specialists we split our time about evenly between trial and appellate courts. In each episode, we try to bring our listeners some legal news and tips they can use in their practice.

Jeff Lewis  0:44
Welcome to Episode 35 of the podcast and a quick announcement. This podcast is sponsored by case Tech's case Tex is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority quickly. I've been a subscriber since 2019, and I highly endorse the service and 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 text.com/ca LP.

Tim Kowal  1:17
Yeah, I've been a longtime user of case texts as well. The parallel search search function is amazing. And I highly recommend using it. And all of the cases that we cite in our show notes are through case text. So this this week, we were going to share some recent cases and news. And the first pair of cases that I wanted to share Jeff are about dealing with untimely appeals. And when I first started doing a lot of appellate law blogging, and we did this podcast, I mostly wanted to try to find, you know, scary cases and be able to jump out from around the corner and scare poor trial attorneys into this is why you need to worry about appellate procedure because this is how easily your appeals can get dismissed. But I found a pair of cases this week where clearly untimely appeals did not get get dismissed and I was just gobsmacked by it. The first case I wanted to share is Peltor versus one 800 get thin inside of the second district. It's a May 2022 case it's unpublished. And there the court and appeal filed a full 10 months after the judgment was entered. The deadline could not have been more than 180 days after the rule. So at a minimum, this appeal was filed more than four months late. But the court found the appeal was timely. How can an appeal filed 10 months after an appeal after a judgement possibly be timely? Jeff? Well, the answer you see is that there was an amended judgment that were the the word of the plaintiff costs in month eight. So are the defendant I guess here so it was timely as to the amended judgment. But wait a minute, the respondent argued the arguments on appeal had nothing to do with the cost Award and the amended judgment. The entire appeal was attacking the 10 month old judgment and an amendment judgment.

Jeff Lewis  2:58
Yeah, my gut would tell me that. Okay. If you want to file that later notice of appeal to the later judgment, then sure you're welcome to attack the costs, but you're out of luck for arguing the merits? No, my gut tells me

Tim Kowal  3:10
Yeah, yeah. The rule is that an amended judgment that merely orders cost does not restart the time to appeal from the underlying judgment. But the court disagreed it said, quote, no principle or authority supports that argument that the rule I just said that, that an amended judgment unless it substantially changes. The underlying judgment does not resurrect the time to appeal from the underlying judgment. But the Court of Appeal held that the appeal here was timely. Now, Jeff, I think I know that the court is mistaken here. There are in fact that at least and certainly it's mistaken that there is no principle or authority that says the holds for that rule that I just stated. There are several cases, in fact, including out of the second district that hold that an amended judgment does not restart the time to appeal unless it changes the substantive underlying judgment. But again, the court went on to affirm I guess you could chalk this up to the no harm, no foul principle, but I'm not so sure, deeming an untimely appeal, to be timely in order to do justice is at least something that's an intelligible, I can understand the impulse. But here, the court didn't reverse it still went on to affirm and so deeming an untimely appeal to be timely for no reason at all, just seems to me like random violence to appellate procedure. What do you think, Jeff?

Jeff Lewis  4:29
Well, I have a few thoughts. First of all, you know, it's unpublished and it goes, you know, we've talked for a few episodes about our thoughts about why more opinions should be published in by unpublished decisions, certain things kind of fall under the radar, and this is clearly bad. And let me say this, you know, the bottom line rule is to be safe, you should always file a notice of appeal from the original judgment, as well as the amended judgment just to make sure covering your bases No, no appeal ever got dismissed from filing too many notices of appeal, but I was thinking back About a tweet you recently sent on Twitter, where you said you ascribe a theory of the Jeff Lewis law hypothesis for the utility of complicated appellate rules, relaxing the machinery of our connahs How appellate judges show sympathy to deserving litigants without changing the actual outcome. And here, in this case, the one 800 gift in case the lead appeal was allowed at the trial courts really ultimately was affirmed the appellant lost and the young woman who died on the operating table rather than having her case thrown out on a timing issue for an untimely appeal, the case was thrown out more or less on the merits. So I guess this result in in this one 800 get thin case would offer further evidence in support of support of my hypothesis,

Tim Kowal  5:43
it may support your hypothesis, as I said, it didn't the court went on to affirm so you could say it's no harm, no foul. But I wonder why did the court bother to even take up the issue? Maybe the court could have just swept it under the rug not even said a word about the appeal ability or timeliness issue. And, in fact, that is what that's what happened in the next case that I'll talk about. It's heard versus heard. And I should disclose I'm I represented the respondent in this in the appeal in this matter. So I'll be a little circumstance circumspect about the facts. So this, you honest, yeah, there's another non published opinion here. And and I'll back up because it relates to another case. Also, which I consulted on, it was cast versus Kelly. And so both are heard case in the cast case are both out of the second district. I was brought in, in the cast case to consult on an appeal, after the court had requested briefing, why the appeal was not untimely, because because it had been filed more than 60 days after the Notice of Entry. And the best argument that I could come up with was that the Notice of Entry did not attach the judgment. And the court concluded Nah, that's not a good reason. The rules state that the that what starts the 60 day clock is either a file stamped copy of the judgment or a Notice of Entry. It doesn't say that the Notice of Entry has to attach the judgment. But here's what happened in the Hurd case, the shoe was on the other foot, I was the respondent there and the Appeal had been filed more than 60 days after a Notice of Entry. And the Notice of Entry there did not attach the order that was appealed from so the same reasoning came up as in the cast versus Kelly case. I, I argued that, hey, the rules of court do not require that the Notice of Entry attach the judgment and the court concluded. No, it's it's timely. And then it went on to reverse the judgment. Now Chase, the but there the court didn't even make a whisper about the appealability or the timeliness issue. It just acted as if it never it never was raised. And so I took I took up a petition for review to Supreme Court there on grounds that the Court of Appeal lacked jurisdiction, because as we know, or as least as we're told, appealability and timeliness of the Notice of Appeal are fundamental jurisdictional issues with the court summarily denied my petition.

Jeff Lewis  7:57
Yeah, well, it doesn't surprise me Supreme Court doesn't exist to cure legal error. They scream Supreme Court was more concerned with published opinions. And these were both unpublished disastrous results rather than affecting what a prior guests called the tapestry of our case law. Right.

Tim Kowal  8:11
It could be but if we start to see a lot of these cases come up that that run roughshod over the jurisdictional rules that ignore the gatekeeping function to ensure that our courts of appeal only hear appeals from from appealable issues and that are filed timely, then, how long can we continue to maintain the belief that the court is on the level when it says that these are jurisdictional rules? Recall that there was the Supreme Court not like I guess it's a little while ago back in 1975. And the Hollister convalescent hospital versus Rico case that involved an appeal that was dismissed because it was filed one day late. And why was it filed one day late? Because the clerk told the appellant the wrong date that the order had been entered. So completely innocent appellant upon a miss mistaken report from the clerk wound up filing an appeal one day late and could not get relief from the Supreme Court there. But now we have the way to get relief. If the court ever asked how can we possibly entertain this appeal when it was filed late? You could just say, Well, I have seen courts just simply ignore the issue, Your Honor, and that seems to work just fine.

Jeff Lewis  9:19
Yeah, that might not be my argument.

Tim Kowal  9:23
It's only one that exists and it seems to work. All right. Another another topic moving on from timeliness and untimely appeals. Another perennial topic of interest to appellate attorneys and to trial attorneys. Are is the record on appeal. And, you know, Jeff, as appellate attorneys are number one, and the most common advice to trial attorneys is get a court reporter for your hearing. If you don't have a court reporter What do you do the only other game in town are settled statements. Now personally, I've never done a settled statement. But there is it is a it is provided in the rules that you can put together. are a proposed settled statement explaining what had happened at the at the hearing or the trial. And the court is supposed to review it and sign off on it and maybe make edits as necessary. And that becomes the record of the oral proceedings for purposes of appeal.

Jeff Lewis  10:13
Now, I have to say, you know, I understand the theory behind this, and I've been involved in a lot of appeals with settled statements. I've never actually prepared one, but I've been involved where I've had to read them. The respondent In theory, it aids the Court of Appeal, figure out what happened at the trial level, but in practice, the settled statements don't really add much they're not a replacement for reporters transcript in any meaningful sense. They will say, you know, a person one argued ABCD, person two argued 123, and the judge ruled ABC, and that's about it doesn't really give you much flavor. So I've never really understood why a party that provides a settled statement as to what happened, receives preferential treatment in the Court of Appeal over a party who had no court reporter and didn't go through the hoops of a settled statement. I've never understood. I've never understood that. Go ahead. That was a tangent. I'm sorry. Go.

Tim Kowal  11:04
Yeah, that that raises a good point. But here's what the here's what the appellant tried to get into a settled statement in the recent unpublished case of RM versus JJ out of the Third District. This was a an April 2022 case, the appellant there had a pretty solid issue on appeal. She argued that her ex husband had made frequent angry, angry outbursts and hostile gesticulations. Throughout the day long hearing, the mother thought that this display of her ex husband's rather obvious need of anger management confirmed that giving him custody of a young child was not in the child's best interest. But the trial court refused to consider the ex husband's outbursts at trial and the appellant thought I'm gonna get this reversed because you you refuse to consider probative evidence at trial and making this discretionary ruling. That can be an abuse of discretion all by itself. And the Court of Appeal basically said, I don't see any outbursts in the record. So we can't consider this issue because there's no record of these suppose it outright outburst, the order was affirmed. Because what happened is that on appeal, you have to show the Court of Appeal what happened during the trial court proceedings. And normally you will get a court reporter the appellant didn't have a court reporter here, whether because it was expensive or some other reason. And so the appellant tried to use the settled statement process. But the the settled statement itself became a heavily litigated affair and resulted in a version that was expurgated of all the matters relating to these outbursts, which the mother had wanted to raise in the appeal. So she got the worst of both worlds, you wound up spending more money litigating over the settled statement. And and also she didn't get in any of the evidence of the of the outbursts that she wanted the court of appeals to consider. Yeah, it's

Jeff Lewis  12:44
interesting, because I think in an earlier episode that we taped, I bought you for suggesting that either either a trial court or an appellate court would ever be interested in eye rolling, hand waving or other gesticulating, but I guess

Tim Kowal  12:56
I was wrong. Yeah, well, we, we can't know if it was going to if it was going to get anywhere because it didn't make it into the the mother filed a writ petition to try to get it into the record arguing that the trial court abused its discretion by refusing to settle the statement that was proposed that was denied. And then on appeal when she raised the issue, again, the Court of Appeal said, Well, maybe but you you cite, you didn't cite to your proposed settled statement. Instead, you use cited to your declaration in support of your settled statement. And that's not good enough. And I know of no rule that says that you have to cite to one and not the other. But it left me with the upshot that if you want a settled statement, basically you have no right to it. It's in the rules. But the court of appeals, the trial court doesn't like given them and the Court of Appeal has no inclination in enforcing or forcing the court of the trial court to give you one. Yeah.

Jeff Lewis  13:46
Get a court reporter. All right. I want to talk next about a case that's now pending before the California Supreme Court oral argument scheduled for next week and late May. And the case is sarova vs Sony Music involves the intersection of anti slap law class actions and First Amendment work. And let me just set the table for some of our listeners. You know, California law has declared this certain lawsuits that arise from either free speech or government petitioning activity, which have no evidentiary or legal value are considered slap lawsuits. Those are strategic lawsuits against public participation. And California's anti slap law provides that any defendant sued as a result of free speech, speech or government petitioning activity to bring a motion to dismiss the case at the very beginning of the lawsuit. If a plaintiff can't prove up that the case has merit with evidence cases dismissed. This is known as an anti slap motion. And the first issue whether a lawsuit arises from protected activities. Notice the problem, one question, and the second issue, whether the plaintiff can provide evidence that the case has a minimal merit. That's known as prong two. And that brings us to this case involving Sony Music. So this is a case it's been to the California Supreme Court twice the second visit and after Michael Jackson's death An album of Jackson songs or songs that were reported to be sung by Michael Jackson was published after his death. There was controversy about whether the songs were actually sung by Jackson in a lawsuit was filed under the California unfair competition laws and Consumer Legal Remedies Act against Sony Music and others responsible for publishing the album. Sony filed an anti slap motion arguing that as to promote one statements made about the album or protected activity and as the prompt to the statements were not commercial and then not reachable reachable under the unfair competition law. So the procedural history of this case is a mess. And you'd have to draw a diagram to really diagram out all the issues but two decisions by the California Court of Appeal and two petitions for review granted the California Supreme Court, and most recently, the Supreme Court said it's going to address whether statements made about a creative product, including music on the packaging, and advertisements constitute an issue of public interest under prong one. The second the Supreme Court is going to consider whether representations made about a creative product can constitute commercial speech or non commercial speech whether or not it's actionable under California's unfair competition law or Consumer Legal Remedies Act. I get to this case caught my eye because of well, two trips up to the Supreme Court, I always find interesting, and also cases that are at the edge of anti slap protection in this case, certainly is a very close one. You know, the Sony defendants in one brief, argued that allowing the case to survive an anti slap motion proceed to trial with, quote, chill or ticks artistic expression to its core. And I'm always concerned about case law that has the potential to narrow the application of the anti slap law. On the other hand, I don't think the legislature had big businesses like Sony Music in mind when they imagine enacting the anti slap law to protect helpless defendants. And I wonder if this case with two trips to the Supreme Court and two decisions by the Court of Appeal might be best, best described as a smack strategic motion against credible claims this case concerning an album released in 2010, which has been ping pong, back and forth in the courts of appeal for years. I watch it closely. And I'll be listening closely with oral arguments on May 24. And maybe we'll talk about the decision in a future episode. And we'll have links to the case and the some of the really excellent briefing in AR in our show notes.

Tim Kowal  17:22
You see any indication in any of the cases, Jeff, whether the courts treat litigants differently, who raised the anti the protections of the anti slap statute who are well heeled versus those who raise the protections who are who are the poor, put upon defendants? No, were intended by the legislature.

Jeff Lewis  17:40
I haven't, both in personal experience in cases I've litigated. And just by observation of cases I've read I have not I have not seen that.

Tim Kowal  17:48
Well, I guess that's a good thing. I mean, that's what the law is meant to do. Right. The rich in the in the poor are supposed to get the same result.

Jeff Lewis  17:56
Yeah, yeah. Although if the idea of the anti slap law is to prevent big companies from or big entities are well to do plaintiffs from silencing critics or silencing chilling petitioning activity, I think inherent in that idea is that there's an inequitable finances between the plaintiff and the defendant. In here where you have presumably, plaintiff of modest mean, like it's a big corporation that runs counter to what I suspect was the legislature's intentions, but we'll see how the case turns out

Tim Kowal  18:26
well, do you want to hazard a prediction about how this one comes down?

Jeff Lewis  18:29
i It is my prediction that under prong A it will be considered with the anti slap law. And under prong two, all the communications on the album cover and the videos were all non commercial in nature and not actionable. And under prong two, Sony wins. That's my prediction. All right. But do me favor hold this recording until after all argument is done. All right. Next, I want to talk about one other case that came down yesterday, we've been talking a bit about some cases that you brought to my attention about witnesses, observing witnesses with masks on and not having masks on and whether that can impact confrontation, rights and the ability to assess the credibility of a witness. This next case involves a Ninth Circuit case regarding the conduct of criminal trials during the height of the pandemic in US versus Allen, there was a criminal conviction and the district court in Northern California closed a criminal courtroom to members of the public. And that's not a big surprise that happened in courtrooms across the country, but also only allowed members of the public to listen to an audio stream, but not a video string. So I remember one of the public wanting to watch or observe this criminal trial. The only way they could do it is by listening and audio stream. And the trial counsel made an objection that this violated the Sixth Amendment rights to a public trial. And they went out the defendant appealed to the ninth circuit and the Ninth Circuit has held that the district court's order was not narrowly tailored. Third, because courts throughout the country facing the same need balance public health issues that can defend its public rights trial, other courts developed COVID protocols that allowed for video observation. And the court went on to say that video observation of a trial as opposed to just audio observation of a trial is qualitatively different terms of the proceedings to the conviction was vacated and a new trial was ordered. I interviewed him one more time.

Tim Kowal  20:26
Sorry about that. Did the opinion still say why the court decided not to stream the video and only to stream the audio?

Jeff Lewis  20:35
Now, only that it was meaning out of step from other courts, but didn't really have a justification?

Tim Kowal  20:40
Yeah. And did the court I'm actually not aware of the policy reasons. Obviously, I know that, that there's a constitutional requirement to the to the public trial, but what is the what's the historical justification in need for having the public trial? And why was it not served well enough by an audio stream? Well,

Jeff Lewis  20:58
I think about it with a video stream. You can look at witnesses, you can look at a judge, you can look at a defendant and through facial expressions, better assess credibility and get a better sense of what's happening in the courtroom, as opposed to just hearing words. It's different. You can radio on TV.

Tim Kowal  21:14
Yeah, I agree with that outcome. I'm surprised that the court that the trial court was resistant to the video stream.

Jeff Lewis  21:23
Yeah, me too. Hey, Oh, one other thing I want to bring up to our audience. You know, an earlier episode we talked about a lawsuit filed by the LA and San Francisco DBAs office jointly won lawsuit against the potter and the law firm. And you know, Palmer Handy was accused of clogging the courts with frivolous ADA lawsuits, and a newspaper up in San Mateo open link to the newspaper article in our in our show notes. This newspaper up in San Mateo did a examination of the stats that for the year 2021. Potter handy file 2076 EDA lawsuit in the United States District Court for the Northern District. And this accounted for 85% of all ADA lawsuits filed in that district for that year, and 23% of all filings of any type in the Northern District. And it's that's a remarkable stat especially it's a San Diego law firm after the DA is filed their joint lawsuit of the newspaper did a study and found that Potter handy filed three ATA lawsuit after the filing of this lawsuit. So I wonder if other ADEA filings not by just this firm but by other firms have dropped in this and other districts have been shocked to see the volume of these cases. Drop.

Tim Kowal  22:35
That's That's a staggering number 2076 lawsuits that if you're filing if you're if you're filing lawsuits that represent nearly a quarter of all of the filing seen in that court that's making that would be making myself rather more conspicuous than I'd be comfortable with.

Jeff Lewis  22:51
Yeah, I guess the only surprising thing about this joint la San Francisco da lawsuit is why didn't happen sooner given that volume?

Tim Kowal  22:59
Yeah. But yeah, that is it's very, that is interesting to think that the stark downtick and the number of their filings Yeah, I think the DEA is out to be looking at themselves saying, and we've already done a public one other

Jeff Lewis  23:10
case I want to talk about a case ruling came down on last week in the Superior Court, but sure I expect it to go up to the Court of Appeal a California it was the one of the first states in the country to enact a law requiring corporations that are Hort headquartered in California, to have a minimum number of female members of the Board of Directors, the law was known as Senate Bill, two, six. And I say it was known as Senate Bill eight to six because last week, the law was struck down on equal protection grounds by an LA Superior Court Judge. And so it'd be interesting to see how how that proceeds up the Court of Appeal maybe to the California Supreme Court and see if somebody steps in to try to defend that law.

Tim Kowal  23:49
Yep. Yeah. And we have a, I think we don't do one more announcement, or can I make the final announcement?

Jeff Lewis  23:57
I'll do one, one more. And that is, you know, we're very familiar as appellate lawyers with amicus briefs, and this usually occurs when a case when a courts considering whether to accept discretionary review of a matter or in the Court of Appeal, regarding cases that will definitely be decided, with the leaked draft brief in the Roe v. Wade matter before the United States Supreme Court. It's the first time I've ever seen this. And I learned about it from the Howard bashment how appealing blog an amicus party has sought leave to file a late elite brief attacking the draft opinion that was Lee, kind of a first it's the first in terms of the leak and it's the first in terms of a post amicus brief looking to attack it a draft opinion. It's kind of an interesting issue, and I suspect many more any more briefs will follow.

Tim Kowal  24:44
Yeah. Well, yeah, I think the we've seen some fallout from that leak and the fallout will continue, I'm afraid. All right. Well, our final announcement today, one of our CO hosts who is not myself, is celebrating a birthday today, Jeff Lewis we We all want to ask him his age, but we're recording this on May 17 2022. It's Jeff Lewis's birthday. And I know that because I can see the sign in his office and in the Zoom screen there that says it is your birthday. And in true appellate fashion, there is no overhype. It's, there's there's no exclamation mark after that it is your birthday period. Nice stuff do we don't need to needless adjectives or punctuation?

Jeff Lewis  25:24
Yes, it's very, very cleaned up and short. Well, I think that I appreciate the birthday wish. And that wraps up this episode. And again, we want to thank keys text for sponsoring the podcast and each week we will include links to the cases we discussed using case texts, and listeners of the podcast can find a 25% discount if they sign up for case texts at case text.com/help. That's case text.com/ca LP,

Tim Kowal  25:50 
and we always welcome suggestions for topics or guests from our listeners, please email us at info at cow podcast.com. And we'll be back next time with more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  26:05
All right, see you next time.

Announcer  26:06
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 ca 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.

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