Sometimes appeals are filed prematurely. Some classic examples are appeals taken from on order sustaining a demurrer (you need to wait for the dismissal), or from an order granting summary judgment (you need to wait for the judgment). The Court of Appeal may choose to “save” your premature appeal at treat it as taken from the subsequent judgment. But there is a condition, as the court recognized in Ortiz v. Related Mgmt. Co., L.P. (D2d1 Feb. 23, 2022, no. B307902) 2022 WL 537930 (nonpub. opn.).
That condition is: If you want to court to treat your appeal as taken from the subsequent judgment, make sure there is a subsequent judgment.
The appellant in Ortiz was unhappy with an arbitration award. The appellant moved the trial court to vacate the award, which was heard at the same time as the prevailing party’s petition to confirm the award. The appellant lost, with the court confirming the award. But the court did not actually enter a judgment on the award.
The appellant appealed the order confirming the award.
“An aggrieved party may appeal from an order dismissing a petition to confirm, correct or vacate an award. [Citation.] No appeal, however, will lie from an order denying vacation or correction of an arbitration award. [Citations.] Such an order may be reviewed upon an appeal from the judgment of confirmation.” (Mid-Wilshire Assoc. v. O’Leary (1992) 7 Cal.App.4th 1450, 1453-1454, original italics.) Likewise, “[a]n appeal lies only from the judgment entered on an order confirming an arbitration award, not from the order.” (Cummings v. Future Nissan (2005) 128 Cal.App.4th 321, 326, original italics.)
“In this case, there is no judgment confirming the award. Accordingly, the appeal from the order ... denying the motion to vacate ... the award must be dismissed.” (Mid-Wilshire, supra, 7 Cal.App.4th at p. 1454.)
The appellant urged the Court of Appeal to save the appeal by deeming it to have been taken from a judgment. The appellant argued that is what happened in Cooper.
But the court distinguished Cooper. There, a judgment actually had been entered after the appeal was filed. The court noted: “Indeed, Cooper cited California Rules of Court, rule 8.104(d), which states, under a heading entitled “Premature notice of appeal,” that “[a] notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment ” and that “[t]he reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment.” (Italics added.)”
Here, there had been no judgment. So the court declined to save the premature appeal.
The court also declined to treat the appeal as a writ petition. In contrast to the liberal approach the courts sometimes take in treating appeals as writs, the court here expressed a dim view of that practice, quoting Mid-Wilshire, supra, 7 Cal.App.4th at pages 1455-1456:
“If we were to do otherwise, we would ignore the mandate of our Supreme Court to reserve the exercise of that discretionary power for cases involving compelling evidence of ‘unusual circumstances.’ [Citation.] Strong policy reasons underpin the one final judgment rule, and the guidelines for ‘saving’ appeals from nonappealable orders. The interests of clients, counsel, and the courts are best served by maintaining, to the extent possible, bright-line rules which distinguish between appealable and nonappealable orders. To treat the instant appeal as a writ application would obliterate that bright line and encourage parties to knowingly appeal from nonappealable orders, safe in the knowledge that their appeal will be ‘saved by the appellate courts.’ We cannot condone or encourage such practice.”
While the outcome is not surprising, the strident tone is a little surprising. Courts often rather cavalierly forgive litigants for taking premature appeals. In episode 2 of the California Appellate Law Podcast, we discussed some of the cases that exercised jurisdiction over premature appeals. Courts have deemed orders granting summary judgment to be judgments. (See Lowery v. Kindred Healthcare Operating (2020) 49 Cal.App.5th 119, 121 n.1 [where it was not clear judgment had been entered].)
My favorite case in this vein is Beckering v. Shell Oil Co. (D2d3 2014) no. B256407 (nonpub. opn.), at *2 n.1. In that case, the Court of Appeal was faced with a premature appeal of an order granting summary judgment. The court there — apparently more motivated to forgive the misstep than was the Ortiz court — ordered the trial court to enter a judgment nunc pro tunc the same date as the summary judgment order. Without awaiting the actual nunc pro tunc judgment, the court, quite satisfied, went on to construe the notice of appeal as referencing that as-yet-nonexistent judgment.
Be cautious in determining when to appeal. But if you spot a defect, be prepared to explain to the court the many tools it has in its toolkit to save the appeal.
Another Tip: Once you spot that you have a premature appeal, be prepared to go back to the trial judge and ask that a judgment be entered immediately so that your appeal can proceed. On request via email, I am happy to send you a template motion to enter judgment.
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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
This recent case involving the underappreciated topic of appellate stays has me heartened on one point, but dismayed on another. What is heartening: Appellate stays have teeth. In Stupp v. Schilders (D1d2 Jan. 25. 2022 no. A161177) 2022 WL 213774 (nonpub. opn.), the trial court imposed a rather large discovery sanction against Stupp totaling over $27,000. The court stayed the sanctions order pending appeal. Undaunted, the respondent’s attorney, Ester Adut, applied for a writ of execution anyway. The trial court imposed $1,050 in sanctions under Code of Civil Procedure section 177.5, and the sanctions were affirmed on appeal.
So the appellate stay was vindicated. That is the good news.
(But don’t get too excited: the stay was explicitly ordered by the trial court. The general rule — that an appeal stays enforcement of the order pending appeal — is meant to operate automatically. The biggest problem with an automatic rule is that automatic rules are not self-enforcing. You have to run to the trial court to get an order saying, yes, the automatic stay is in place. It would be helpful if a court would vindicate the automatic stay by holding violation of the automatic stay is sanctionable.)
What is dismaying about Stupp is the court ignored the rule that requires a bond to effect a stay of a money judgment on appeal. Code of Civil Procedure section 918 states that a trial court may not stay an order pending appeal if the bond statutes require that the order be bonded to effect the stay. In other words, in the case of money judgments, the most the trial court can do is issue a temporary stay. The temporary stay can only extend until 10 days after the deadline to file a notice of appeal.
Here, the sanctions order was a money judgment. (Banks v. Manos (1991) 232 Cal.App.3d 123, 129 [holding a sanctions award issued under § 128.5 is akin to a money judgment which must be bonded to impose a stay on appeal].) The sanctions order was entered April 23, 2019. Assuming the 180-day deadline to appeal applied here, the maximum stay the trial court could impose here would extend until October 31, 2019. Adut did not seek the writ of execution until nearly three months later, at the end of January 2020.
By operation of law, then, the stay order had expired. And where it concerns the requirement to bond a preliminary injunction, the court’s failure to impose that requirement makes the order void. ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 10, held that an “undertaking is an indispensable prerequisite to the issuance of a preliminary injunction, regardless of whether the party to be restrained has reminded the court to require the applicant to post one, the restrained party does not waive its right to that statutorily mandated protection by failing to affirmatively request it.”
But the appellant did not raise that argument in her brief. And the court did not address it, either.
The Upshot: Pay close attention to the appellate bond and stay rules. They are complicated. And you cannot rely on the courts to understand them for you.
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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
A statement of decision is the court’s formal explanation of the factual and legal basis for its decision. In some cases, the court is required to give a statement of decision. And in San Francisco v. Hale (D1d2 Feb. 17, 2022 no. A161503) 2022 WL 483925, the failure to provide a statement of decision was reversible error.
The appellant in Hale was a mother disputing a visitation order. The court had found the father committed domestic abuse, so under Family Code section 3044, that created a rebuttable presumption that custody was detrimental to the child. The father did not rebut that presumption, yet the court ordered nearly equal-time visitation — in effect, joint custody.
The mother timely requested a statement of decision, but the court said, “I'm not going to issue a statement of decision on this case.”
The Court of Appeal reversed. The trial court’s failure to issue a statement of decision was error. And because the trial court gave no explanation that could support its order, the Court of Appeal found the error was prejudicial.
A statement of decision is required after a trial. It is not required after law-and-motion hearings. But it may be required in some special proceedings. The court provided a helpful statement of the law to bookmark:
“In general, Code of Civil Procedure section 632, and therefore section 3022.3, “applies when there has been a trial followed by a judgment. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294.) It does not apply to an order on a motion. (Ibid.) This is true even if the motion involves an evidentiary hearing and the order is appealable. (Gruendl v. Oewel Partnership, Inc. (1997) 55 Cal.App.4th 654, 660.)” (In re Marriage of Askmo (2000) 85 Cal.App.4th 1032, 1040.) But “[e]xceptions to the general rule have been created for special proceedings. (Gruendl, ... at p. 660; accord, Maria P., ... at p. 1294.) In determining whether an exception should be created, the courts balance ‘ “(1) the importance of the issues at stake in the proceeding, including the significance of the rights affected and the magnitude of the potential adverse effect on those rights; and (2) whether appellate review can be effectively accomplished even in the absence of express findings.” [Citation.]’ (Gruendl, ... at p. 660.)” (In re Marriage of Askmo, at p. 1040.)
“ “[W]here the issues are sufficiently important, as in a child custody case, formal findings of fact and conclusions of law are required upon the request of a party, regardless of the nature of the proceedings.” (In re Marriage of S. (1985) 171 Cal.App.3d 738, 747 [modification of custody order]; Michael U. v. Jamie B. (1985) 39 Cal.3d 787, 792 [“Although custody is a special proceeding, statutory and decisional law nevertheless require findings of fact when requested by a party”]; In re Rose G. (1976) 57 Cal.App.3d 406, 416 [findings of fact and conclusions of law required in proceedings to terminate parental rights].)”
Written findings facilitate meaningful appellate review grounded on the “policies set forth in the governing law,” which is “essential to the creation of the body of precedent necessary for the system of rebuttable presumptions to produce consistent and predictable results.” (Jaime G. v. H.L. (2018) 25 Cal.App.5th 794, 806.)
The court concluded the failure to issue a statement of decision was prejudicial because “the record offers no explanation to reconcile the orders and demonstrate the court found the presumption rebutted.”
The court remanded for reconsideration of the visitation order consistent with the court’s analysis of the applicable presumption and custody rules.
The Upshot: If you are the prevailing party after a trial or a special proceeding where a statement of decision may be required, consider preparing a proposed statement of decision and submitting it to the trial court. This may cut off an argument on appeal that the omission of the statement of decision was error, and you may be able to bolster the record on appeal.
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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Attorneys are prohibited under CRC rule 8.1115 from citing unpublished cases for any reason. But not even the Supreme Court takes the rule seriously. Practitioners routinely cite unpublished cases in petitions for review to demonstrate the existence of splits of authority, even though rule 8.1115 clearly prohibits this practice.
Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their two proposals to amend rule 8.1115, and allow citations to nonpubs in appropriate circumstances.
Watch the clip here.
This is a clip from episode 22 of the California Appellate Law Podcast. Listen to the full episode here.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
When a defendant fails to answer a complaint, the next step is entry of default. At that point, the defendant may move to vacate the default. But usually, the defendant will wait until after the judgment is entered, and then move to vacate the judgment.
Technically, you can do both. But don’t. That is what the defendant tried in HFL Law Group v. Schermer (D2d3 Feb. 10, 2022 no. B309020) 2022 WL 406947 (nonpub. opn.). The defendant moved to vacate the prejudgment entry of default, lost that motion, and then when default judgment was entered, moved to vacate that, too.
The upshot: Don’t make the same argument in successive motions to vacate. When the defendant lost the first motion to vacate, and the judgment was entered, the issues were fully and finally adjudicated. At that point, the defendant’s remaining move was to appeal the judgment. The defendant did not appeal, and instead filed a motion to vacate the judgment, arguing the same grounds as before.
Her appeal of the denial of her second motion was timely, and the order was appealable, but to no avail: the issues were already final and the Court of Appeal lacked jurisdiction to disturb them.
This case raises an interesting nuance of appellate procedure. Notice that the defendant filed a timely appeal. The order was an appealable order. Yet the Court of Appeal still could not review the order. Why?
The answer has to do with what is called the “one shot” rule. “California follows a ‘one shot’ rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited. (See § 906 [the powers of a reviewing court do not include the power to ‘review any decision or order from which an appeal might have been taken’ but was not]; ....)” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 761, fn. 8.) Thus, the issues determined in an appealable judgment or order from which no timely appeal was taken are res judicata. (In re Matthew C. (1993) 6 Cal.4th 386, 393, superseded by statute on other grounds as stated in People v. Mena (2012) 54 Cal.4th 146, 157; In re Marriage of Williamson (2014) 226 Cal.App.4th 1303, 1318; In re Marriage of Gruen (2011) 191 Cal.App.4th 627, 638; Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185-1186; Eisenberg, supra, ¶ 2:13.5.)
Here, the defendant filed a prejudgment motion to vacate default. She argued she never received service, and that the proof of service was false because she could prove the process server never came to her home. The trial court sustained evidentiary objections to the defendant’s evidence and denied the motion.
But when the trial court entered judgment, the defendant did not appeal the judgment. Instead, the defendant filed her same motion again, and then appealed the order denying the motion. That was a mistake. “Once the default judgment became final, however, Schermer became bound under res judicata principles by Judge Fujie's jurisdictional ruling that she had been properly served.”
Nor could the defendant get around the “one shot” rule simply by arguing the judgment was “void.” “A litigant is not permitted to keep re-filing the same challenge to jurisdiction simply by characterizing it as an argument that the judgment is void.”
The Upshot: When a trial court enters an order rejecting a key argument, that is the time to consider your appellate options. If you are considering raising the same argument before the court a second time, beware.
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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Nosing out whether an order is appealable can be difficult. But we know injunctions are appealable because they are listed explicitly in Code of Civil Procedure section 904.1, the appealability statute. But a preliminary injunction issued by an arbitrator is not. They are not a final “award,” and thus not appealable. That is the holding of *Kirk v. Ratner* (D2d7 Feb. 10, 2022) --- Cal.Rptr.3d --- (2022 WL 405422).
The parties settled their show business dispute, agreeing to confidentiality. Worried that Kirk would breach confidentiality, the movie executives initiated arbitration. The arbitrator issued a temporary restraining order followed by a preliminary injunction. The movie executive plaintiffs were not required to post a bond for the injunction.
Kirk petitioned the superior court to vacate the injunction. The court dismissed the petition on grounds it lacked jurisdiction because the preliminary injunction was not an “award” under Code of Civil Procedure section 1283.4.
Kirk appealed. But the Court of Appeal dismissed the appeal, holding both that the preliminary injunction was not an “award” subject to a petition to vacate, and the order dismissing the petition was not appealable for the same reason.
A superior court may only review an arbitrator’s “award.” The preliminary injunction was not an “award,” so it was not reviewable.
Section 1283.4 defines an arbitrator's “award” as a written ruling that “include[s] a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” “The issuance of an ‘award’ is what passes the torch of jurisdiction from the arbitrator to the trial court.” (Lonky v. Patel (2020) 51 Cal.App.5th 831, 843 (Lonky).)
True, had the superior court issued the preliminary injunction, it would have been immediately appealable under Code of Civil Procedure section 904.1(a)(6). But arbitrator injunctions are not governed by section 904.1. Only those arbitrator orders that are “awards” under section 1283.4 may be reviewed by the superior court.
Federal law is different. But that is because federal law is governed under the Federal Arbitration Act (FAA) (9 U.S.C. § 1 et seq.), which differs from those in the California Arbitration Act by allowing for immediate review of certain interlocutory or partial awards.
The appellants argued that no published California case has considered whether arbitrator preliminary injunctions are reviewable. And the court did not point to any. So bookmark Kirk.
The court’s second holding is subtle. The court held that, after the arbitrator issued the preliminary injunction, the trial court’s order denying the petition to vacate that injunction was itself nonappealable. Recall that the court just held that the arbitrator’s injunction was not appealable. Thus, the trial court’s order denying the petition to vacate was legally correct. So why wasn’t that the end of the opinion?
Because efficiency. Former cases had read into section 1294(c) a requirement that the underlying arbitration award be final. And the court agreed with those cases here. “Without such a requirement, a wide variety of orders vacating (or dismissing petitions to vacate) interim arbitration awards would be appealable, which would interfere with the “ ‘efficient, streamlined procedure[ ]’ ” that is supposed to be arbitration's ‘fundamental attribute.’ ” (Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619, 634 (Judge).)
Comments: A few thoughts about the opinion:
The Upshot: If an arbitrator issues a preliminary injunction against you, consider seeking review by writ.
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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Attorney and author Ryan McCarl joins Tim and Jeff to discuss his forthcoming book, Elegant Legal Writing, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page — white space bucks up your reader to plod on.
Ryan also offers a thoughtful caveat to Tim’s proposal to abolish Rule of Court 8.1115, the “no citation” rule concerning unpublished opinions.
More information here.
Discussed in the episode:
Transcript:
Ryan McCarl 0:05
My basic philosophy of legal writing is that the law is complex enough. And so the purpose of law legal writing should be to chart a path to the complexity and, and make sure that the writing itself does not add complexity.
Anouncer 0:18
Welcome to the California pellet podcast, a discussion of timely trial tips and the latest cases and news cutting from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:31
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:33
And I'm Tim Cole wall holding a provisional license from the California Department of podcasting. In each episode of The California appellate law podcast, Jeff and I provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both Jeff and I are appellate specialists who split our practices pretty evenly between trial and appellate courts. And we work directly with trial attorneys to prepare cases for appeal. And in this podcast, we offer some of that perspective on various issues that arise both in trial court and on appeal.
Jeff Lewis 1:01
Hi, welcome to episode 24 of the podcast.
Tim Kowal 1:05
And in this episode today, we welcome Ryan McCarl to the show, Ryan McCarl is a founding partner of rushing McCarl LLP, a California Business Law Firm. But previously, Orion was a fellow in artificial intelligence Law and Policy at UCA School of Law UCL L. Excuse me UCLA School of Law where he taught advanced legal writing, and research the use of machine learning and natural language processing tools in the legal profession. In addition to many published law review articles Ryan's book, elegant legal writing is currently under publisher review. So we're anticipating reading elegant legal writing when it comes out. And that happens also to be the the name of Ryan's legal writing blog, elegant legal writing calm. Ryan also clerked for the 10th Circuit Judge David M evil on the United States Court of Appeals for the 10th circuit. So thanks, Ryan, welcome to the podcast. Thanks for joining us.
Ryan McCarl 1:59
Thank you for having me.
Tim Kowal 2:01
So you took your undergrad I saw on your on your CV, your undergrad and law degrees from the University of Chicago. And when I saw that, I remember reading a quote recently reading a book of essays from Joseph Epstein, who used to teach at University of Chicago. And he had mentioned that Max Vabre, once said of University of Chicago that it elevates soul saving over skill, acquiring education. And I took that to mean that it's a pretty hardcore humanities program there in the undergrad. Was that your experience when you were an undergrad at University Chicago?
Ryan McCarl 2:32
Well, that background of promoting liberal education was one of the things that drew me to the University of Chicago in the first place. Now I think of it less as soul saving and as more more pragmatic, I think that reading literature, all the literature in particular that I read when I was younger made me a much better writer. And I recommend to lawyers, although it's really hard to find time when you have a full practice load to try to make some time even for audio books or you know, the Paris Review, New Yorker stories, things like that, to try to try to you know, spice up their writing by by listening by listening to or reading literature. As far as literature Chicago goes, I it's very, very dear to me. The what makes it special, in my mind is that it's a place where people love to learn and value academic pursuits. I think that's especially true of the undergrad college, but in law school as well, you know, there were it was a heavy it was a heavy emphasis on theory, which, you know, encouraged you to kind of think deeply about the legal subjects that you're covering. And there's also you know, things like daily lunch talks where professors come in from all over the country and give academic talks and, and the the auditoriums are usually full of students, which is kind of remarkable given that they could be studying or they could be doing something else. So that that that really, you know, those lunch talks and the professor's I had, and the you know, being forced to kind of deeply grapple with legal theory really, it helped me become a better lawyer.
Tim Kowal 3:51
Yeah, well, Soul saving and skill acquiring I mean, I think I think that's a real right brain and left brain meld that you seem to put together with your background and artificial intelligence. And now legal writing, writing a book and publishing a blog on legal writing that really, you know, puts the left brain in the right brain to get I wonder how you get your legal career is included, you know, clerking teaching, law review articles writing a book on legal writing, and now it seems maybe finally settling down to the to the boring nuts and bolts of practicing law. What's the thread that ties all of these endeavors together?
Ryan McCarl 4:27
Well, now that I'm, you know, running my own firm with, with my partner, John rushing that we started about two years ago, almost two years ago, now, you know, there's nothing else I'd rather be doing. I just I love, I love being able to, you know, to slide cases that we want and to help people, help people help people, you know, meet their goals. And I'm particularly drawn to cases that involve legal complexity. And that's something that has driven me throughout my career is sort of wanting to understand areas of law that are that are complex and big and little understood and trying to help bring add clarity to them and help nudge the law in the right direction. I understand everybody needs a lawyer. But I really prefer to work on cases where I think the client has the better of the argument in the, in the broadest sense of law. You know, there's, you know, we have a case right now, for example, with a complex partnership dispute, essentially, where there's a series of entities that that are interlocking and of contracts, and we're making the argument that they're all a common enterprise, that's actually a general partnership. And that's an example of a really complex theory. I think it's completely correct. But there's not a lot of cases that that that, you know, it'd be much easier to sort of rule the other direction and say, No, the contracts are, what they are, the entities are what they are. And I really love thorny cases like, and you know, so I think that being able to bring clarity to law and nudge the law in directions that I think is kind of theoretically correct, while at the same time helping clients navigate complexity and meet their goals is very appealing.
Tim Kowal 5:57
Yeah, I learned to a good word in law school reminded me something about what you just said about approaching a case from the appropriate level of abstraction. If you have if you have really good facts, then you want to, you know, just focus on those facts. But if you're if you have really bad facts, you're you know, your client or key witness is a scoundrel, then you want to take a very high level of abstraction. And just to have the court look at the the the legal the doctrinal aspect of the case and ignore your facts. When I talk about a lot of cases on on the podcast sometimes that we, we can see, you know, the rule of law seems to have gotten short shrift, but you can kind of look behind and see then, okay, I see, based on these facts, why the court did not want to give this young girl the benefit of the normal operation of law?
Ryan McCarl 6:42
Well, yeah, and I, I think that the, it's ideal. In a case, if you don't see the wise obstacle to the client winning, if you can find the legal angle, even as you come in late in the case, and you didn't, you weren't the one that filed the complaint, maybe you can find the theory or the angle that you can genuinely believe is the correct legal outcome, as well as the the factual outcome that you want. And consistent with the facts of the case, I think that's a really that's a really great value add, if you can do it, and it makes what you're doing stronger.
Tim Kowal 7:14
Tell us about an experience you might have had in your in your legal career so far that has this had an outsized impact in the way that you approach the law?
Ryan McCarl 7:23
Well, back in believe it was 2017, I actually had a dispute with a landlord in which there was a misrepresentation of the rent price that I was in, I was surprised to know when I moved in, and the rent price was actually higher, significantly higher than I had been agreed to, and they hadn't sent me the lease. And then when I tried to leave, they hit me with about a $12,000 lease termination fee. And so I sued them pro se, and that was quite that was a transformative experience. For me, it turned out to be essentially a whole nother legal education, a practically Law Education, in addition to what I've done the law school, because, you know, I had to stand there myself, with my hand shaking in front of the Clerk of the Superior Court, you know, to file my complaint. So, you know, I was taking on, you know, some of the biggest apartment managers and Lambdin most wealthy landlords in the state and in the country, at some point, there were, there were 12 Different lawyers and the other side of the case, and it lasted for a year and a half, but I got to do, you know, I, I got to go in front of the court and, and write and argue, motion after motion and handled discovery from A to Z. And you don't get that kind of practical experience as as a sort of big law associate, because in that situation, you're part of a team working on a big case, that you can see only a small part, usually, and you're you only have kind of a discrete role, and you don't have ownership of the whole ownership or, or view of the whole perspective. So so being able to sort of run a case from A to Z all the way through, you know, for a year and a half was transformative.
Tim Kowal 8:55
So you were presented the entire time. That's right.
Jeff Lewis 8:59
And did you win?
Ryan McCarl 9:01
Yes. Instead of instead of me paying $12,000, they had to pay me in a settlement. Nice.
Jeff Lewis 9:06
Nicely done.
Tim Kowal 9:08
Very nice. I don't know. I wonder how many attorneys have experience self representing? You have any Jeff? No,
Jeff Lewis 9:15
I'm the closest I came as my wife with a small claims court, I thoroughly prepared her, gave her lots of advice. And she she lost? That's the closest brush I've had with the law in terms of improper No,
Ryan McCarl 9:26
it's really too bad that, you know, it's a sort of a special skill to be able to do this. Because we you know, in the law firm, we get a lot of intake calls that are matters that are just too small to involve an attorney. And it always kind of hurts my heart because we have to turn them down. But, you know, I know that if it was me personally, that the thing happened to that somebody just walked off with $10,000 or something, then I would, I would have the tools to do something about it. But but it's just it's impossible to it's not cost efficient for the client to actually hire an attorney to help them. You know, there's
Jeff Lewis 9:59
a lot of negative talk right now from lawyers about State Bar proposals to allow non lawyers to offer certain services or paralegals to jump in and do more than they have. And there's a real access to justice and gap in terms of the needs of people. And it'd be interesting to see what happens with this experiment the State Bar is proposing and those I get the same calls, I get 10 calls a day of people who can't afford me, and wouldn't be economical for me to do what they want me to do and be interested see what happens with the State Bar?
Ryan McCarl 10:29
Yeah, absolutely. And, you know, I know, we might talk later about artificial intelligence stuff. But I, one of the examples I give of how AI might affect the practice of law, and this law review article that is coming out in the Cincinnati Law Review, I actually talked about Turbo Tax, which is not really AI. But what it is, is it's sort of a, it's what they used to call an expert system. And it's essentially, it's a complicated flowchart, in which they've taken the tax code, they turned it into a flowchart. And you know, you have different decision points, essentially, where you provide certain information and it guides you one direction or the other, it doesn't actually make any complex decisions for you. Because it if it's a question about how to categorize income, it makes you make that decision and think it through. But the overall process is it reduces the friction of being able to handle the tax code and deal with the tax code and file your taxes for report, there are people, I kind of think that similar systems can be designed to deal with community property issues in a divorce, you know, you can have template generating systems to create wills, and, and to some extent, maybe the Trust for a lot of these legal tasks. And so I'm not sure about this specific proposal, but I do think that there are ways technologically and otherwise to try to make Josas more accessible.
Well, alright, Tim, throw you a curveball in your outline. Go
Tim Kowal 11:49
ahead. No, I know, based on your your background in AI, I'd wondered if we're going to, we're going to get into some questions about your tips on writing. And I wonder if your approach to writing is informed by your your background and familiarity with artificial intelligence.
Ryan McCarl 12:05
I think in some in two ways, it kind of is. And so one kind of a way, that's hard to explain, I I've done I've taught myself as an adult to to do is sort of in Python coding, and intermediate level and the detail, Python, Python is Python is the name of a relatively easy to learn, but powerful computer programming language. And so I taught myself to, you know, to create computer programs that that can that can, you know, help you with various tasks. And I that experience, I think, you have to be incredibly detail oriented, because, you know, the computer knows how to do only what you expressly tell it. And, you know, you can't leave anything to implication, and, you know, having to think through a problem and kind of structure it in a way that is that is robust and clear. And having to write, you know, the code in a very detail oriented way, sort of helps with some of those skills. But as far as, you know, another example, I guess, would be, you know, when an AI program tries to, you know, some of the at least the old fashioned AI programs, when they try to parse tax to understand what's, you know, what's being talked about the, the more clearly the text is structured, the better. So if you can think of like Lexus headnotes, that, you know, can extract rules from a taxed? I think, once upon a time, they're all manually done, but I think these days, you know, they're computer assisted to some degree. And the way, you know, it's easier on the program, if it's clearly set forth, you know, in sort of separate paragraphs, for example, what exactly is being discussed, and you know, that, that, that bringing that sort of clarity to your writing is helpful as well. But you know, what, what really comes to mind, though, is actually kind of a practical spin on that, which is how AI tools can affect can help lawyers in a pragmatic sense. And an example that I use in my law review article is, now you can submit entire documents as search queries in your legal research. And the there's a, there's a program, I hate to tell a company, but there's a there's a new legal research company called case text in which I have no stake whatsoever, but I've used it, and they have my primary search tool. Yeah, it's a great source tool, they have something called Kara AI, they call it where you can, you know, instead of sort of sort of submitting a natural language search query, or even like a sort of terms like connectors, logical operation search query, and then it goes and finds relevant documents, you can actually upload, for example, the entire opposition brief and on appeal, and just feed the whole thing as a search query, and what it can what it does, you know, I don't know how it works internally, but you can represent entire documents as sort of points of geometric space, and then find similarly located nearby located points in the form of cases and then return those cases. And it's pretty it's pretty fascinating, advanced, I think, in how you can do legal research.
Tim Kowal 14:56
I haven't tried that aspect of it. The Kara AI You know, feeding in the opposition brief, I just use the case text and the parallel search in place of doing the traditional Westlaw searches. I find it's much faster and the results are excellent.
Jeff Lewis 15:09
Yeah, I use the the Westlaw Edge product where you upload a brief and it gives you which cases are good, which cases are bad, maybe a list of other cases you should check out. And the thing I enjoy the most is the quotation check. I can't believe how often I see people misquote cases.
Ryan McCarl 15:25
Well, yeah, that's, that's always valuable. Because, you know, if you see a particularly bad quote for you and the other side's motion, it's always helpful to read the surrounding context and find that they've omitted the second half of the sentence or, or some other material qualification.
Tim Kowal 15:41
Okay, two more questions just to so our listeners can kind of get a GPS on you who's a better model for writing, Dickens or Hemingway?
Ryan McCarl 15:51
Unquestionably, Hemingway, in my mind, because the writing is, it's concise, it's powerful, it's entertaining, it's forward moving, you know, and it's and it's relatively straightforward. And, you know, to each their own, as far as say, you know, a lot of people love Dickens. But for me, personally, I've always found it to be a little bit boring and hard to grab my attention. And so I might want to, for me, one of the most fundamental aspects of critical writing is to make is to motivate the reader to continue and make it easy for them to do so. And and reduce the, you know, the burden on them, essentially, to make to make it easy for them to grasp your point, and inviting and invite them to move on to the next stage and turn the page rather than sort of just want to skim your brief and then discard it or even not, not finish up.
Tim Kowal 16:39
Okay. And then the other question, I wanted to ask you, it, it sounds like based on some of your some of what you told us already, you're not just the type of legal writer who just wants to sit in the tower, just give me my keyboard and leave me alone. You'll get out there in the fray, you try your own cases for heaven's sake. So I don't know if you'll if you'll get if you're willing to get in trouble with Jeff and me and sign our petition to abolish rule eight point 11 to 15. And allow litigants to cite unpublished opinions.
Ryan McCarl 17:03
I actually don't like that proposal to be honest with you. So the the reason is that, I think when judges write unpublished opinions, they're doing so with the belief that there are there Well, let's let's start the other direction. When they start when they write a published opinion, they're thinking about how the opinion will affect the law and affect future cases. So they're thinking about the legal externalities and the opinion. And and when they write an unpublished opinion, I think that they may feel more free to, you know, decide the case, as they see it in front of it without necessarily thinking so much about how it shapes the doctrine. And I see if you were to retro actively make unpublished cases suitable. It's almost like you risk changing the law in the sense that cases that were previously unavailable in the corpus of of precedent are now suddenly part of the precedent, and it could be a pretty significant change, you know, on a go forward basis, it would be a little bit, you know, less that that concern will be removed, if you can only say unpublished cases after 2022, for example, but you know, to me, it would, it would, it would still, it would, I think that the the knowledge that that your your justification for your ruling is going to be publicly visible and searchable, it has a powerful effect on the and then how the judge thinks about the case and how they write their opinion. Most importantly, so as long as we're going to have published and unpublished opinions, I think it makes sense to keep the unpublished ones unsuitable.
Tim Kowal 18:31
That would be a fair proposed amendment. What do you think, Jeff? To that, if we are going to change it, then we should, we should still not allow litigants to to cite, preach, you know, pre change unpublished opinions, because those are probably those are probably written with the intention that they remain in a subterranean body of law that was never meant to to get the job with the rest of our precedent. Second, the motion. All right. So Ryan, you have a book coming out called elegant legal writing, and you have a book or you have a blog called elegant legal writing. So what do our listeners need to know about elegant legal writing?
Ryan McCarl 19:13
Well, so my basic philosophy of legal writing is that the law is complex enough. And so the purpose of legal writing should be to chart a path through the complexity and and make sure that the writing itself does not add complexity. And so you know, the goal really is to reduce limit be aware of the how you're taxing the reader's attention span. And you know, the fact that they're not necessarily intrinsically motivated to read your your discovery motion, and accordingly to reduce the cognitive load as much as possible. And make make the document as inviting as possible and then get it over as quickly as possible.
Tim Kowal 19:52
Yeah, that reminds me of something that I when we had judge Bacharach on on the show back in episode 12. I told I told him that I thought the upside A lot of his book was was that litigants ought not to tax their reader. And he had that the reason I asked you if your artificial intelligence background informed your your legal writing tips is because I recall the judge Bacharach had had surveyed a lot of psycho linguistics studies, I had not even heard of what cycle in linguistics was before reading his book, but he cited a lot of those types of studies to get to the point that you were just making about how to get your point across using as you know, as few brain cells as possible. And you know, what patterns what speech patterns and language patterns are easier to understand what types of words and locations are more persuasive? So I wondered if, if your approach is similar to that or are different?
Ryan McCarl 20:43
Yeah, well, I, you know, when I've, when I was preparing my advanced level writing, course curriculum, and then the elegant legal writing book, I did do some reading and cognitive psychology, just very basic textbooks and so on and found a lot of interesting material there to draw the, you know, the overall takeaway for me was that writing should be concise and forward moving. And it should aim to sort of structure information in a way that is easily discernible, and doesn't force the reader to sort of create the structure in their head, because you've already laid it out appropriately in the first place. That sort of analogous field to this is intact is user experience, design, and information, you know, information architecture, as they call it, where you know, these, there's a lot of people, designers who think about things like how menus are arranged, and how elements of a webpage are arranged with a goal of trying to help people get to their goal as quickly as possible, and to design it in a way that's inviting and, you know, aesthetically pleasing, as well. And I think all those principles can be used to make your own writing better in the legal legal sphere.
Tim Kowal 21:55
So some of the examples that that I recall talking about with Judge Bacharach, I wondered if want to get get you to sound off on these as well, he talked about throat clearing openers, so these would be sentences that start with clauses like it should be noted that or that being said, and, alright, here's a general rule is that you should do away with those, they just kind of the they tend to add clutter, and wonder what your thoughts are, right? What's your thought on that?
Ryan McCarl 22:22
Yeah, I mean, a good example would be, you know, plaintiff, plaintiff respectfully requests that, for example, should always be turned into the court should, in my view, and that's a lot of, and the overall principle being to first of all, reduce, reduce the number of words and, you know, be able to be as concise as possible to get the reader to the core of the sentence, the the, you know, the character in the action of the sentence, sort of the noun, the noun and the main verb of the sentence as quickly as possible, because whenever you're, you have these long winded openers, you're actually delaying informing the reader what the sentence is actually talking about. And so the readers sort of waiting to figure it out. And they may only be waiting for a split second, but that adds up over time, and makes makes the writing less readable. So I completely agree with that. I think that generally, short transition words are better than than long transition phrases, although I do think variety is important, you know, and there's actually some pretty good chapters about that in in, for example, Roscoe Berman's book point made, he talks a lot, he gives some persuasive examples of that, you know, one more transitions like But and so and so on are I think are generally superior. Superior,
I never really thought, oh, go ahead.
Tim Kowal 23:39
Is but superior to however?
Ryan McCarl 23:41
Yes. Although, like I said, the variety, you know, you do want to think about the the aesthetics and the rhythm, and you do a variety. So I wouldn't say I have a blanket rule against however, yeah, and for the same reason, you may, you might start with the, you know, start with sobre, todo lo substantive praise, and then put the however, you know, between commas after that, just just to kind of shake it up. And, and, you know, I think I think having some spice in the writing is important, too.
Tim Kowal 24:10
You mentioned earlier that you prefer short, emphatic sentences that Hemingway over the dickens. But you also mentioned that it's important to have some variety. So how do you how do you square that? How do you get enough variety, without without crossing the line into what you might consider wordy?
Ryan McCarl 24:27
I don't really think they're their intention at all. I think you, I think, for example, you want your sentences to like Brian Garner is what he says about sentence length, in general is that your sentences should center on an average of roughly 20 words per sentence, but you certainly shouldn't have every sentence be 20 words. You want to have a varying variation around that average, you know, you're not, you're never adding words just to make the sentence longer, but you might combine two separate ideas or concepts into kind of a list structure.
Ryan McCarl 25:00
have one long sentence that's structured and a couple that with a short sentence that provides emphasis, you know, and just kind of being aware, aware of how you know, the short sentences draw attention to themselves when they're placed alongside a long sentence. But I think you can combine information from into several, either you can break it up into several sentences or put it in one sentence. And in neither situation, should you ever add words for its own sake.
Tim Kowal 25:25
Just one, one concern that I have in in trying to be too concise in my writing, is that I wonder sometimes, if you have judges and their clerks are used to digesting these kind of long winded and repetitive and overly verbose briefs, and so they've got to gotten used to well, I'll kind of read every other word I'll read really fast. And just just to get through it, and I'll anticipate that the litigant is probably going to repeat his or her arguments many times. And so if I come in there, and I can, I can condense my core argument down to a paragraph or a page? Am I not at a disadvantage, because because I've written it in such a way that if you just read it once, but carefully, you'll get my argument, but they're not trained based on the you know, the quality or the type of work product they're getting in, they're not trained to read it in a way that that I'm anticipating my reader needs to read it in order to get my my lovely sink.
Ryan McCarl 26:19
Yeah, I mean, that's, that's a reasonable risk to take or a reasonable, you know, risk to be concerned about, I guess I have, I have two thoughts. One is one is that, ideally, you've made the brief sufficiently, I mean, maybe this is, this is just wishful thinking. But you may, maybe it's possible to make the brief, sufficiently fast moving and getting to the point and well structured that the judge finds themselves reading it even if they intended to, so because they feel kind of dialed into it. And another thing is that, you know, you can make sure that points are unmissable, for example, because you've made them into headings. And those are likely to get read, you know, if it was a really important component to an argument, for example, it may, you know, putting it in a very short section or making it into a head making into a heading if it's appropriate logic, you know, there's a lot of ways to address that. But also keep in mind, I think that the shorter the overall document, the more likely it is to get in its entirety. I mean, I remember when I was a 10th circuit clerk, sometimes I would start with the reply brief, which is just totally illogical. But but but the reply me did to me into what is what is the what's the dispute? You know, what was what was argued about, and how was challenged, and so about, and so on. And, and it also happened to be the shortest document. So it's the one I felt last, the least resistance to reading.
Tim Kowal 27:35
Yeah, I think sometimes by the time you get to the reply brief, I think the probably the the moving party has acknowledged, okay, all the other all the other arguments, you know, arguments eight through 10, were just, you know, spaghetti at the wall to see if they'll stick but here this frame is I really care about,
Ryan McCarl 27:50
I think that that's completely right. And I think I don't know if people that didn't clerk are aware of this or not, but at least the way it worked for us on the 10th circuit was that we got all the all the briefs at once. So we get to all the with all the briefs, and they actually record at one time. And so you know, it's up to you how you sort through that information.
Tim Kowal 28:08
Yeah. Yeah, sometimes I think there's this this kind of I don't know, if we attorneys actually think this, but there's this idea that once once you file the brief, then the judges are just like each other to get to it. I need to read this. Yeah, that's fascinating.
Ryan McCarl 3:25
Yeah, right. Absolutely. Absolutely. Chances are, it didn't get read until the day before the hearing.
Tim Kowal 28:31
Oh, you mentioned something about headings and tables, table of contents. How important is a let's let's talk to our members of our audience who are writing in the trial court where you don't always have to include a table of contents, if the if the brief is not over 10 pages, do you think it's important to include a table of contents regardless of the page length?
Ryan McCarl 28:52
I think there's value in that honestly, you know, when I'm, in practice, my firm doesn't normally do it with a particularly short trial motion, for example, just because because it's a little bit a little bit troublesome to do as one more thing to format one more step in a process that sometimes you're in a rush to do, but you know, or at least the time sensitive type of motion. But that said, there is value in doing it. And certainly any document longer than, you know, 10 pages, for example, I think there's a lot of reason to have one. And the benefit of it is that it gives the again, it just provides an immediate overview of your whole argument. And you can see the structure have it laid out. Because if you've also the Table of Contents really doesn't lie about whether there's a logic to your organization. You know, you can when you haven't seen when you've when you sort of just write in a linear fashion A to Z, but you don't you haven't really thought through the overall architecture of document I think that ends up showing but if you have a table of contents in which you have to look at just the headings in isolation, it can become more clear whether you have provided the overall document wide coherence that you want to
Tim Kowal 29:59
write Let's move on to another bit of advice that I picked up from one of your blog posts where you say that legal writers should, quote induce your brain to enter a flow state. And you say that to enter a flow state, you should consider three suggestions, one, complete prewriting breathing and visualization exercises to avoid multitasking, and three, minimize distractions. So I know about avoiding multitasking and minimizing distractions. But can you explain what prewriting exercises are? So that I understand that what all for you the reasons are that I am failing to enter a flow state?
Ryan McCarl 30:34
Sure, well, I'll say that, you know, if you sit down at your, at your desk with the intention of writing for a block of time, it's first of all, you have to create the block of time. So you know, we have an ICT circuit appeal right now. And we have a reply brief coming up pretty soon, that's due pretty soon. And it's just really difficult with how busy the week is with our day to day caseload, to carve out that block of time in which you can actually quiet your mind, ignore everything else, and think through a real complicated, really complicated argument, and then put your best foot forward. So I, you know, for me, I had to do it on Sunday, for example, but in terms of the exercises, you know, if I sit down, sometimes I'll find myself, for example, revising a contract that I don't particularly feel, you know, intrinsically motivated to, to revise at that moment, and maybe there's more attractive tasks that are on my on my docket that I could turn to instead, but this one has to get done. And so for that, in that situation, I think you'd have to kind of, for me, I have to kind of quiet my mind and stop the negative self talk that's going on in my mind about, well, you know, you know, I, maybe I'm just a litigator, I don't want to do transactional work, or maybe this ad, there's this other thing that's coming out, that's, that's, you know, that that's more urgent, and you'd have to sort of, it's really difficult to make progress on a task if your mind is crowded with that kind of thought. And so for that reason, what I talked about in the book, and the blog is, is, you know, doing things like setting intention to write for, you know, 20 minutes on this task, rather than having a bigger project of writing the whole thing, or just say, I'm going to sit down and tackle their preemption argument this morning. I'm not going to, I'm gonna ignore every other aspect of this case,
Tim Kowal 32:16
by visualizing visualizing what part of the task,
Ryan McCarl 32:19
yeah, so setting, you know, setting an intention of what you're going to do, you can visualize yourself actually doing it as one tried to do it, but musicians and sports, you know, perform athletes use that where they actually visualize themselves, you know, carrying out, you know, you know, performing a certain song and I think studies show that, you know, a guitarist that, that imagines, as they imagine the chord changes in their mind and think through that way. Sometimes it's said to be almost as good as actually practicing with a guitar in your hand. And I think that's somewhat true the writing, I think that you know, you you know, if you if you think about the through the process of writing in advance, you imagine yourself doing it, it can ease the the road for your mind, and ease those obstacles, and then mindfulness and breathing exercises, it can be useful as well as just a way to kind of see the worries and the in the in the concerns you have about the peace and the negative thoughts you have about it. And just kind of let them float by, maybe write them down. But realize that you don't want to overvalue them and let them determine your activity.
Jeff Lewis 33:18
Don't worry, Tim, you could build for both. That's right.
Tim Kowal 33:24
So also in your blog, Ryan, you discuss the importance of typography. And Jeff and I talked about font choice, but but just taking take it from a from maybe a higher level of abstraction and maybe a more pragmatic level. Why is font choice important?
Ryan McCarl 33:41
Well, it relates to readability. And it relates to aesthetics, which I think are somewhat undervalued in document design for lawyers. I don't think lawyers really think of the concept of document design in general. And, but it is closely tied to readability. And it's closely tied to whether your document isn't biting. And I think that if your documents or your filings and your templates are are aesthetically pleasing and typographically sound, it does actually make you look different. And, you know, sometimes it might look like you're you must be violating a rule, because it looks so different than what other law firms submit, you know, and, you know, so for example, you know, sometimes you need line numbers. I don't like line numbers. And so whenever they're not actually required by a court rule, I omit them because it creates more visual whitespace around the text, which makes it more inviting and easier to read. If you think about, you know, when you read a novel, you've never seen a light novel with line numbers, and because they're a distraction. And so I think thinking about document design, and aesthetics is important, you know, with respect to, you know, that, you know, there's things there's basic things that you can do to sort of move your briefs in that direction. One is to sort of reduce visual clutter. A lot of law firms, for example, will put their address in the footer of every page of a filing and to me that's completely completely nonsensical, visual visual clutter. And another thing that you'll see on pleadings, you know, the little pleading templates, or that they'll use for everything that have not only line numbers, but also sort of these random vertical bars on each side of the text, you know, maybe one bold and one less bold, and, well, the white, the white margins act as a frame of the text anyway, so that's just purely redundant visual clutter. And you know,
Tim Kowal 35:22
when you're pleading template, obviously, where it's called for you include the, the line numbers, that's what do you you do not include those vertical lines on either side. Now, interesting.
Ryan McCarl 35:33
Just the line numbers in the text. Okay. Yes. And you know, as far as font goes, you know, I when I taught advanced legal writing I gave, I gave my students a choice between a handful of fonts my, my font and the font my firm uses for filings is Palatino Linotype but a couple other options are century school book book, Antica, and Baskerville was, you know, how Palatino Linotype? Yes.
Jeff Lewis 36:00
With century school book being the correct choice to teach, you're wondering,
Ryan McCarl 36:03
well, the Supreme Court that thinks so I think and they century I believe, or central circuit, I think may use century or century school book. Those are those are they're, they're, they're different. They're, they're more artful in some ways. And that's some of the other choices, but I like nology to live by. And I think it's, it does, it's very readable, but it doesn't necessarily draw attention to itself.
Tim Kowal 36:27
So in my in my trial court briefs, I'm still using Times New Roman, should I switch? And I see in my outline here, Jeff has typed a note to me. Yes, you're a monster, Tim?
Ryan McCarl 36:40
Well, I can just tell you that that times new roman is the default choice that a lot of people use, but it was actually designed for narrow newspaper columns. So in terms of the, you know, the actual width of the letters, it is narrower than, you know, then for example, Palatino Linotype for the other the other fonts I mentioned. And you know, that makes it makes a difference. And so I would, I would, you know, just try try the others and print them out. Sometimes you can't see these differences on the screen so clearly, but if you print them out, and you know, just explore which which of these is actually more inviting to read. And like I said earlier, I think that having your brief look a little bit different from everybody else's, can actually be a bit of an asset if if it looks better.
Tim Kowal 37:21
Well, now that you've mentioned putting whitespace on the page, it's got me thinking, Should I be including extra line breaks in between sections, or even paragraphs in my briefs?
Ryan McCarl 37:31
Yes, I do advocate using the space after and space for settings on the paragraph menu and word to add additional space after and before headings. So rather than hit ENTER twice, it automatically you'll have a heading and then you hit enter, it'll automatically insert that space. I don't remember the exact settings I use, but I do make sure that the headings are padded and that way. And in my blog posts are padded too. So it does create create more whitespace. And I think it makes it easier to read.
Tim Kowal 37:59
The idea of being a just gently signals to the reader. It's not so bad. It's just yeah, one or two paragraphs in their cell paragraphs, actually,
Ryan McCarl 38:08
it's armless. That's right. That's right. Brian, what
Tim Kowal 38:12
do you think most lawyers are doing wrong in their writing?
Ryan McCarl 38:18
That's a very long list. And you know, it's sort of inspired, you know, something else is somewhat one, one or more sort of flaws or misconceptions. I think it's inspired every chapter in my book and every post in the blog. But if I were to sort of pinpoint a couple of things, firstly, the reliance on legalese and ritual phrases to this day is very, it's almost gotten to the point being surprising to me, because of how, you know, the legal writing, you know, legal writing gurus on this one, popular writers about it, as well as legal writing, academics have all moved to a plain language style and to advocate it. I mean, I'm not aware of anyone, any legal writing expert, who has ever said, you know, what, we need more legalese. And so the, the, the, you know, the continued presence of words, like witnesses and contracts is similar, of a phrases like, comes now before the court and your first line of your pleading is, it's just, it's kind of baffling to me. And all that is, is ultimately clutter that that can go and, you know, it's just important, distinguish between words that are terms of art that actually, you know, have an established meaning in the law as opposed to words that are just sort of professional jargon and things that people write to sound lawyer Lee and sort of separate themselves from from the hoi polloi and the ditch ditch words along those lines, and then I think the overall emphasis on you know, readability and concision I think is generally is generally not there. I'm not, I think a lot of filings that you read that, for example, they'll include kind of long droning sentences that don't seem to have any, any real structure. It's such that nobody would ever read this aloud. You know, it's clear that no one's ever read this aloud because the sentence is true. kind of rolls on without any, you know, any emphasis. And there's a lot of there's a lot of things like that. I mean, there's just legally legal switching to a plain language style and aiming to be concise and be the number one thing that would that would improve most lawyers writing, but also just actually thinking about how you how what you're writing affects the cognitive load of the reader is going to lead you to make better choices as well.
Tim Kowal 40:24
All right, well, I think that's I think it's great food for thought about, especially avoiding legalese. I agree with you that it's, it's gotten to a point where it is surprising how often I still do see it. So notwithstanding the heretofore mentioned forementioned, elegant legal writing, what is the what's the best book on legal writing, other than elegant legal writing?
Ryan McCarl 40:45
I believe I'm a big fan of the word coach, Brian Garner, you know, my favorite rejection note of all time was from, you know, the University of Chicago Press, when they turned down my Elliot legal writing proposal, because they said, This is too similar to Brian Garner, who's already in our catalog. And I said, that's great. Great news, you know, I assigned to my students legal writing in plain English. And I think that is the place to start. But that if you want to go beyond that, you know, all of his books have something to add. Even the Red Book, you know, the Red Book is a reference text, but it has a lot of great sections on it. A lot of great practical tips about quotations. For example, it's got a great section on quotations that, you know, that has a lot of a lot of useful information. And then I'll just mention two others. Besides Brian Garner, I like messing his book, The Art of advocacy, which is the one I've discovered most recently, and that is filled. What's great about that is it's filled with tips aimed primarily at appellate brief writers. And it's filled with good excerpts from appellate briefs. So it's sort of modeled on Ross movements point made in some ways. And that's the other book that I'd highlight is point made, you know, I've read that book, I probably, I don't know, four times over the years has a lot of great tips. So what's a little bit different about the approach of my book is that it focuses more on mechanics and providing what lawyers sort of set like kind of a toolbox, particular, you know, particular small tweaks that can make to their field of their writing process, or, you know, their editing process that can make a big difference that add up to a big difference in their writing.
Tim Kowal 42:21
And where will people be able to buy elegant legal writing, hopefully,
Ryan McCarl 17:24
on shelves everywhere near you soon, but it's still under peer review with it with a big academic publisher. And, you know, we'll see, we'll see how that goes. In the meantime, I'm posting sections of it on the blog as blog posts, although it's been a little sporadic, as the firm has gotten extremely busy, you know, and then if people want to read more, they, they're they're welcome to email me as well. My email is Ryan McCarl at rushing, McCarl calm, and anybody that wants to get in touch and welcome to.
Tim Kowal 42:52
Alright, well look forward to it. So So that concludes the interview section comes now Jeff Lewis with the lightning round.
Jeff Lewis 43:00
Yeah. And Tim, you'll have to cut me off if I run over time here. I'll try to get through it as fast as we can. Ryan, these are the most vexing questions that concern appellate nerds around the world and we're looking for your shortest, perhaps one word perhaps one sentence response. We already covered font preference. Let's go with two spaces are one after one yet.
Tim Kowal 43:22
I was I was waiting for that question. Because we just talked about creating more whitespace on the page.
Ryan McCarl 43:28
Yeah, that's one that everybody has an opinion on. But as far as I'm concerned, it's been settled by by typographers
Jeff Lewis 43:34
Yeah, it is settled Tim All right.
Tim Kowal 43:36
So that's that's an appeal to authority on that we're
Jeff Lewis 43:38
glad or pleaded
Ryan McCarl 43:42
pleaded but I'm not I you know, I have some it's one that I would want to look up to be certain but pleaded was my instinct.
Tim Kowal 43:50
Yeah, there's not an accepted a regularized verb form of plead and until the minority say so it's pleaded correct answer no. No, it's play.
Jeff Lewis 44:01
ad for argument headings in an appellate brief, not the section headings but your argument headings. All caps initial cap or sentence case.
Ryan McCarl 44:10
Oh, please. sentence case. Absolutely. Absolutely. That's a pet peeve of mine. All caps is the use of capital letters to create emphasis. Is is my there's one of my top pet peeves.
Jeff Lewis 44:22
I kind of cheer inside when my opponent does it. I'm like, Yes. He's yelling at the court. Yes.
Tim Kowal 44:27
What about me? Yes, for for like introduction and conclusion. I'm still putting those in all caps because
Ryan McCarl 44:35
I use small caps for that, actually. Okay. Yeah, it's a slight slight. It's a slight aesthetic tweak that I think makes it a little bit easier to deal with. I think I use all caps. Anyway, we've made we've changed that but that's, that's a good way to do it. I have something I have a setting in My Word styles called zero level headings for that. And what I do is, I think bold and small caps, and then a little extra space underneath.
Jeff Lewis 44:58
And the final question from like, Turning around left justify or Full Justify?
Ryan McCarl 45:04
Well, you know, I don't know if it really makes a real difference but I think last chunk I don't I honestly not sure I, I use the default setting and word for block quotes for justification main, most important thing is never to use justification outside of block quotes in my mind, but otherwise, I think the default setting in Word is fine.
Jeff Lewis 45:21
I think that rule has substantial justification. Alright, Ryan, you survived our podcasts and survived the lightning round. If we had a bigger budget, we'd send you a t shirt or a mug that said, I survived Jeff and Tim's a lightning round.
Ryan McCarl 45:33
Well, thank you both for the opportunity. I look forward to you know, I'm glad that I learned about this and I look forward to listening to the little catalogue of the past podcasts.
Tim Kowal 45:42
We appreciate hearing your your tips on legal writing. I'm sure our audience will as well where I'm up against a little bit of a deadline. So Jeff, I don't have time to do our our recent case news today. So we're just gonna wrap it up right here for today. And then we'll we'll push our recent cases on to the next episode.
Jeff Lewis 46:02
Thanks media Ryan.
Tim Kowal 46:04
If you have suggestions for future episodes, please email us Jeff, what is our new email address?
Jeff Lewis 46:09
Let's go with cow podcast@gmail.com for now. Okay,
Tim Kowal 46:13
and in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.
Anouncer 46:21
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 l podcast.com. That's ca l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
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.
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A nonsuit is one of the few exceptions to the ordinary presumptions to affirm on appeal. And so it bore out in *Newnes v. F&M Trust Co. of Long Beach* (D2d1 Jan. 11, 2022 no. B303725) 2022 WL 98179 (nonpub. opn.). Newnes’ claim for punitive damages was dismissed on nonsuit after opening argument at trial — before even an opportunity to present evidence.
This was reversible error, the Court of Appeal held. On a motion for nonsuit, the court “must accept all facts asserted in the opening statement as true and must indulge every legitimate inference which may be drawn from those facts.” (Abeyta v. Superior Court (1993) 17 Cal.App.4th 1037, 1041.) More than that, the appellate court will not affirm the judgment of nonsuit “ ‘unless interpreting the evidence most favorably to [the] plaintiff's case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.’ ” (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 839.)
In short, if reasonable minds can disagree, nonsuit should not be granted. (Hoch v. Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 60-61.)
So it is ironic that there was a dissent. Presiding Justice Rothschild stated she did not believe any reasonable jury could have found punitive damages on the plaintiff’s proposed evidence.
If reasonable appellate justices can disagree, as they clearly did here, then how can the dissent argue no reasonable jury can disagree?
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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Appellate expert Myron Moskovitz explains why unpublished opinions are a sleight of hand. Courts do one thing in one case, and the opposite in another case, and then tell you only the first case is “precedent” because the second was not “published.” But ALL cases are published online. We can all read what the court is doing. “Unpublishing” cases is a bad magic trick.
Watch the clip here.
This is a clip from episode 20 of the California Appellate Law Podcast. Listen to the full episode at https://lnkd.in/gB3-Krkw.
If you won your case and you have a right to recover attorney fees, mind the deadlines. The prevailing parties in Wallace v. Alameda Cnty. Mgmt. Emps. Ass'n (D1d5 Jan. 25, 2022) Case No. A162044 (nonpub. opn.) blew the deadline. The petitioners, who had won a writ of mandate in the trial court, actually had a couple of decent ways to salvage the situation. But they were not aware of them until it was too late.
The case was a union dispute over the election of the union’s board. The petitioners sought a writ of mandate under Code of Civil Procedure section 1085, and a declaration the officials breached their fiduciary duties. The trial court granted writ relief, directing a new election be held. Five months later, the respondents filed a return stating they’d complied and the new election had been held. Two months after that, the petitioners moved for their fees.
The petitioner’s fee motion was filed more than 180 days after the court had granted the writ. That was too late. "A notice of motion to claim attorney's fees for services up to and including the rendition of judgment in the trial court . . . must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case . . . ." (Cal. Rules of Court, rule 3.1702(b)(1).) Rule 8.104 requires a notice of appeal be filed, as relevant here, no later than "180 days after entry of judgment." (Rule 8.104(a)(1)(C).)
But wait, the petitioners argued. The time to appeal or file a fee motion could not have begun running, they argued, because there was no formal judgment. Not so. Here is a good statement of the law to clip-and-save:
“"A judgment is the final determination of the rights of the parties (Code Civ. Proc., § 577)' "when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined."' [Citation.]' "It is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration except the fact of compliance or noncompliance with the terms of the first decree, that decree is final . . . ." '" (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.)
Accordingly, it is immaterial that no formally designated "judgment" issued.
"[A]n order granting or denying a petition for an extraordinary writ constitutes a final judgment for purposes of an appeal, even if the order is not accompanied by a separate formal judgment." (Public Defenders' Organization v. County of Riverside (2003) 106 Cal.App.4th 1403, 1409.)
"That there are additional proceedings involving the return on the writ does not change the finality of the judgment issuing the writ." (Los Angeles Internat. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1354-1355.) 3 * attr(page-number) Instead, a subsequent order regarding "the adequacy of the [responding party's] return on the writ is appealable as an order enforcing the judgment." (Id. at p. 1355.)
The petitioners had two good arguments that might have salvaged their fee motion. Unfortunately, those arguments appear to have occurred to them too late.
First, the petitioners noted that the order granting the writ could not have been a final, appealable order, because that order did not dispose of all claims in the case. Recall that the petitioners also had asserted a cause of action for declaratory relief, seeking a declaration that the union officials had breached their fiduciary duties. And that claim was nowhere mentioned in the order granting the writ of mandate.
Good argument. Except for one thing, as the court noted: “But in their motion for attorney fees, appellants argued they ‘achieved complete success and a full remedy in this action.’” It was not until after the respondents argued the fee motion was untimely that appellants belatedly claimed the declaratory relief claim remained unresolved and they were really only seeking "interim attorney fees.”
So the petitioners had already neutered that argument.
The second way the petitioners might have salvage their fee motion was by seeking a good-cause extension of time. Under California Rules of Court rule 3.1702(d), the trial court may extend the time for filing a motion for fees for good cause. But the petitioners did not seek a good-cause extension. So obviously the trial court did not abuse its discretion in failing to consider granting an extension the petitioners never asked for.
The Upshot: Carefully calculate your post-trial and post-order deadlines, including deadlines to move for attorney fees. Entry of a key order is a good time to consult an appellate attorney.
Thanks to Marc Alexander and Mike Hensley of the California Attorney’s Fees blog for the tip to this case.
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.
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Appealing a sanctions order? If sanctions were awarded against the attorney, be sure the appeal is made out in the attorney’s name. The appeal on behalf of the clients in Lafferty v. Fleetwood Motor Homes of Cal., Inc. (D3 Jan. 26, 2022) no. C059562, was dismissed because the attorney was not listed in the notice of appeal.
Rubbing the attorney’s nose in it, the Third District Court of Appeal held the sanctions award was improper on legal grounds, and must be reversed. But the sanctions against the attorney remained.
The sanctions were imposed because the Lafferty plaintiffs and their attorneys sued the wrong defendant. The Lafferties sued Fleetwood, a mobile home company, for defects in their mobile home. But although Fleetwood had a California entity, its manufacturing business was in Indiana. The Lafferties refused to dismiss, forcing Fleetwood to obtain dismissal on summary judgment. Fleetwood then moved for and obtained sanctions against the Lafferties and their attorney under Code of Civil Procedure section 128.5.
But section 128.5 at that time only applied to actions brought before 1995. The Lafferties’ lawsuit, brought in 2006, did not apply. (The legislature later removed section 128.5’s date restriction. But that was after entry of the sanctions order.)
What about the appellant Lafferties’ attorney? Unfortunately, he did not appeal the sanctions order. The court explained in a footnote:
“Even though the sanctions order also applies to attorney Timothy D. Murphy personally, he did not join in the notice of appeal and therefore cannot be afforded relief on appeal. (Cf*. In re J.F*. (2019) 39 Cal.App.5th 70, 75 [jurisdiction of the reviewing court is limited by the scope of the notice of appeal].)”
The California Supreme Court recently directed courts to be more lenient than was Lafferty here, and to excuse the omission of the attorney in a notice of appeal of a sanctions order. In the January 2020 opinion in K.J. v. Los Angeles Unified School Dist. (Cal. Jan. 30, 2020) 8 Cal.5th 875 (covered in this blog here), the Court held that the omission of an attorney from the notice of appeal of a sanctions order was not fatal. Applying liberality in construing the notice of appeal, the Court held the appeal was saved because the client had not been sanctioned, the respondent could not possibly have been misled that the attorney obviously intended to appeal. The omission, due solely to inadvertence, could not defeat the policy of liberality in construing notices of appeal.
And on episode 23 of the California Appellate Law Podcast, for instance, discussed Alexi & Ani LLC v. Warren from the Fourth Appellate District, Division One, involving an appeal of a sanctions award against the Mark Gerragos law firm. The appeal was fraught with problems including the fact that it was an attempt to appeal a sanctions order that was unopposed at the trial court level. The notice of appeal failed to identify the proper party: it should have been the attorney, not the client, appealing the sanctions award.
But the Court of Appeal exercised its discretion to liberally construe the notice of appeal by referring to the civil case information statement to save the appeal. The Alexi & Ani court cited the Supreme Court’s K.J. decision.
The Lafferty opinion does not mention K.J.
I have discussed some other recent opinions in which the Court of Appeal applied the liberality doctrine to save an otherwise defective notice of appeal. (Westlake Village [omitting alter ego from notice]; Bennett [listing wrong order]; Fang [checking wrong box re type of appeal].)
The Upshot: Do not forget to name all appellants in the notice of appeal. But also be prepared to discuss the doctrine of liberality in construing the notice of appeal, and cite K.J. if any defects in the notice of appeal arise.
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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
CEB has published my short article, “A Trap for the Unwary: Order on a Post-Settlement Fee Motion May Be Unappealable.” (The article was originally published on my blog here.) The article covers the published opinion in Sanchez v. Westlake Services, LLC (D2d7 Jan. 18, 2022 No. B308435) 2022 WL 1522087. The parties settled a consumer rights lawsuit concerning the sale of a car, with the settlement providing that the plaintiff may seek a motion for attorney fees. The trial court denied fees as barred by the sale contract. The plaintiff appealed the order denying her fees. The court dismissed the appeal because the order was not appealable.
The Upshot: When you are considering appealing orders granting or denying motions to enforce a settlement agreement subject to the trial court’s jurisdiction under Code of Civil Procedure section 664.6, ask the trial court to enter a judgment on the order. That may be the only way to ensure the order is appealable.
And there are many trap doors when your appeal is mixed up with a dismissal.
My original article is here: http://bit.ly/3gklJjJ
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.
Get a weekly digest of these articles delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.