“Give your listener one thing to do at a time,” says appellate attorney Stefan Love. So you’ve got a great photo to flash on the screen, or a damning quote for your jurors to read, but at the same time your jurors are supposed to be studying the photo or quote, the attorney is also talking at them.
You need to spoon-feed your listener. But use only one spoon at a time.
Watch the clip here.
This is a clip from episode 43 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.
CEB has published my article, “What Happens to a Fee Award After the Judgment Is Reversed? Try a Stipulated Reversal.” In the short article, I discuss a common confusing scenario: what happens when a judgment is reversed, but the fee award is still on appeal?
That is what happened in Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC (D4d3 Jul. 20, 2022 no. G059899) 2022 WL 2824967 (nonpub. opn.). Briefing in the fee appeal was still underway when the judgment was reversed. Do the parties still have to go through with the briefing and argument?
Nope. Instead, they filed a joint stipulated request to summarily reverse the attorney fee award. And the appellate court granted it.
The article is available here.
The PDF is here. Kowal_StipulatedReversal.pdf
My original blog post can be found 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 first step to determine whether an appeal is timely is to find out if there was a Rule of Court 8.104(a) “triggering document”—either a “notice of entry” or a file-endorsed (stamped) copy of the judgment showing the date of service. In McKenzie v. Alta Resources Corp. (Apr. 25, 2023 No. G061292) 2023 WL 3067690 (nonpub. opn.), the judgment of dismissal following demurrer was stamped and attached with a proof of service. But McKenzie waited more than 60 days to appeal. That was too late.
But wait! McKenzie urged that the judgment and certificate of service were defective and so could not trigger the 60-day deadline (meaning her deadline was 180 days). McKenzie raised three alleged defects with the triggering document:
A valiant effort. And in point of fact, there are often problems with the rule 8.104(a)(1)(A)-(B) signed file-endorsed copy showing the date of service. A lot of requirements need to be met: (1) signed, (2) stamped, (3) proof of service, and (4) contained all in a single document. Miss any one of these and you have a good argument that the 60-day deadline has not been triggered. (This is why a Notice of Entry is a far cleaner triggering document.)
But the document here checked all the boxes. Untimely appeal dismissed.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Adam Unikowsky, an appellate litigator with nine appearance in the U.S. Supreme Court, argues that judicial law clerks could be replaced by AI. We discuss:
💻 “AI will make judges release more accurate decisions more quickly. This is good.”
💻 Judges already rely on clerk summaries, so if AI produces better summaries faster, that is good.
💻 AI is a mysterious black box, you say? Well, law clerks are already invisible to the public yet influence judicial decisions without any input from the litigants.
💻 True, law clerks are human—but they are still often wrong. “Is it really preferable that judges receive recommendations and draft opinions from ideological 26-year-olds?”
✍ A writing tip: “Unclear writing usually implies unclear thinking. If something is unclear, it’s probably because I haven’t really figured it out.”
👩⚖️ An an oral argument tip: Don’t read from your notes. Adam relates a story when the Supreme Court stopped an advocate by asking, “Counsel, are you reading this?”
Adam Unikowsky’s biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
Adam Unikowsky 0:03
unclear writing usually implies unclear thinking when you're reading something. And it's not a well written oftentimes because you don't really understand your argument. Welcome to
Announcer 0:11
the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim kowal and Jeff Lewis.
Jeff Lewis 0:24
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:26
And I'm Tim kowal both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys, some news and perspectives they can use in their practice. As always, if you find this podcast of use and helpful to your practice, please do recommend it to a colleague and a quick announcement.
Jeff Lewis 0:42
Our podcast is sponsored by casetext, casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast casetext has also announced a new AI tool called co counsel, which we highly endorse listeners of the podcast will receive a 25% lifetime discount on casetext legal research tool available to them if they sign up at casetext.com/calp that's casetext.com/calp
Tim Kowal 1:08
and speaking of AI that's the topic on everyone's lips is what is AI going to do to legal industry is going to replace all US lawyers. And to talk more about that topic. today. We welcome to the podcast Adam unit kowski. Adam is a former law clerk to Justice Scalia, he's a prominent Supreme Court and constitutional litigator. He has had nine Supreme Court arguments under his belt is Adams, appellate and Supreme Court experience spans a wide range of industries and subject matters including securities litigation, Indian law, patents, civil procedure and constitutional law. With his depth of insight into the appellate and supreme court litigation process. Adam frequently collaborates with larger legal teams in developing strategies across multiple cases and courts. And in addition to his supreme court clerkship, Adam also was a clerk for Judge Ginsburg on the DC Circuit, and specifically bearing on our conversation today about AI in the legal field. Adam holds undergraduate and graduate degrees in electrical engineering and computer science. atomia kowski. Welcome to the podcast.
Adam Unikowsky 2:11
Thank you. I'm looking forward to participating.
Tim Kowal 2:13
Well, thank you very much for joining us. We did see you posted a tweet on Twitter some months ago about your substack blog post. I think the title we'll talk about a little bit later on the podcast the title, I think it's should AI replace law clerks. But before we get into that, let's talk a little bit more about you and your practice. Would you tell us a little bit more about your practice, Adam, and do not leave out your supreme court appearances?
Adam Unikowsky 2:38
Sure, well, I partner at General block and the appellate Supreme Court practice in Washington, DC. But really, I handle both called supreme court litigation, as well as trial litigation, litigation agencies, pretty much interested in anything. So any type of litigation with a legal angle, I'd love to do it. You know, for instance, this year, I've argued appeal as an arbitration case, and then a securities enforcement action case. I've argued cases and everything from federal Indian law, to constitutional law, criminal procedure to lots of other things. So yeah, I have interests across a wide range of legal issues. And you know, I love taking I love arguing the Courts of Appeals and the Supreme Court. That's what I love to do. There's just nothing else that gets me more excited. But of course, I love doing cases in federal district court to where you really have to be creative, and there's no record they have to use, you can make your own new arguments and not be accused of making a new argument. So that's pretty great tip. And as you said, He's I've argued several times in front of the Supreme Court, which is, of course, a real rush for any lawyer, and I'm doing another one in October, at least in the fall, probably October Runa. Interesting case about Article Three standing, so I'm really stoked about that.
Tim Kowal 3:38
Oh, that's fascinating. We'll have to watch for that, if you would send us a link to that case, as we can put it in the show notes and follow it. So speaking of clerkships and asked you this a few moments ago, just before we hit record about the value of clerkships. Now, you've clerked on both Supreme Court and an Intermediate Court of Appeals in the DC Circuit, it seems like part of the value of a clerkship is that you get an experience and a sense of how the court operates. And if that holds true, I wonder if you think a clerkship holds additional value or heightened value. If you're doing it a different level where your practice takes you most at the district level, or at the intermediate level or at the US Supreme Court level? I wonder if you can comment on that.
Adam Unikowsky 4:14
Yeah, I do think it helps, you know, having a sense of how the judges decide cases, gives you a sense of what you should put in your briefs to try to get them to decide the case in favor of you. I mean, it's probably the case that if you're litigating regularly in the courts of appeals for purely instrumental purposes, the appellate clerkship will offer you more information about the process behind the scenes. But of course, clerked for the Supreme Court is a really neat thing to do. I mean, you know, you're working on very significant cases, you're seeing the how things work from behind the scenes, and it's a great year.
Tim Kowal 4:42
Can you point to anything, any experiences, or behind the curtain conversations, glimpses that you've got at the intermediate level that maybe you wouldn't have gotten through your experience at the US Supreme Court?
Adam Unikowsky 4:53
Well, you know, I think one of the differences is that the Court of Appeals has mandatory jurisdiction over appeal. They can't just take the cases that seem to be good vehicles to resolve legal issues, they have to decide every case that reaches them. And so you know, a lot of cases tend to be very complicated, factually, with lots of twists and turns and sort of seeing how the judges deal with that and kind of pick out the important issues. I think it's helpful for an appellate lawyer that you really have to turn your brief into, like a story, you know, and crystallize the case into a couple of issues where else the judges eyes kind of glaze over. I think that just like understanding, especially since the judges hear a lot of appeals, like actually, the DC circuit where I clerk hears less than, for instance, the Ninth Circuit, you know, I mean, the California Court of Appeals, where the judges are probably hearing 510 more cases per sitting. And there's only so much information they can retain about a given case. And so like, recognizing that you will know a lot more about your case in the judges, and you've got to crystallize the case into an easily comprehensible story is like one of the things that you learn that's particular to clerking in an appellate court, I think, yeah.
Tim Kowal 5:54
Now, Adam, you're an appellate attorney, can you give us tell us, you know, the day in the life of your practice as an appellate attorney? Are you always in the Court of Appeal? Are you sometimes in the district courts or trial courts helping to make the record what's a typical day or week look like for you?
Adam Unikowsky 6:08
I'd say it's, it's actually probably less often in the courts of appeals than in other tribunals. I do a lot of cases in federal district court where as you say, I think in some ways, there's more creativity as a lawyer necessary, because you're not sticking with the record, you're making the record, you're figuring out your legal theories. And oftentimes, I'm asked to come in before lawsuits even been filed, you know, client will call and say, you know, there's this looming issue, and should we sue? Should we do something before we sue, you know, could we sue, and you know, that the public never learns about this representation. But that actually often involves some of the most creativity involved, because you have to figure out the legal issues, and then you can also figure out what you can do to avoid them. And so there's several degrees of freedom there. So, you know, depends on the day really exactly what I'll do.
Tim Kowal 6:47
Right? Do you have any preference being the appellant or the appellee?
Adam Unikowsky 6:51
Well, I like to be the appellee. Because then you want to say there is no abuse of discretion advocacy here. But you know, getting a decision from a district court flipped is very exciting, right? Like, clients love it, because they feel vindicated. You know, it's obviously harder to get a decision reversed than not most cases are affirmed. So I guess you're more likely to win if you're the appellee. But there's nothing quite like getting a decision flip like you feel like you've done your job. So
Tim Kowal 7:15
what are some of the things that you bring to the table as an appellate attorney, that most commonly kind of make the trial attorneys eyes light up in recognition? Yeah, this is why we wanted to bring an appellate perspective into the room. Did you see any things that commonly come up things that are commonly missed perspectives that maybe are commonly not seen until you bring an appellate attorney into the picture?
Adam Unikowsky 7:34
You know, I just think it's sometimes helps to have a fresh eye on some of the issues. I mean, you know, it's easy for trial lawyer, you've been locked into a case for several years to, you know, get upset about maybe certain factual rulings or some procedural rulings that may actually have been totally unfair in context, but which the appellate court isn't really going to care about at the end of the day, they'll say, no abuse of discretion, have, you know, and so I think what the appellate lawyer does is try to pick apart the issues of law that are reviewed de novo, it may not seem particularly salient to a trial lawyer who's battling over the facts and gauging emotions practice over discovery, but it's the kind of issue of an appellate court might be interested in.
Tim Kowal 8:11
Yeah, yeah, you have to start moving the case from day one, you know, asking the questions that you think a panel is going to ask, What about bringing developing a theme of the case? Do you find that when you come onto a case, the trial team already has a theme that you figure can carry forward onto the appeal? Or do you feel that you often have to redevelop or redesign a theme of the case for the appellate arguments?
Adam Unikowsky 8:31
Yeah, the trial teams usually have a theme, because, you know, they're always planning to bring the case to a jury. I mean, our firm as with many firms, like, you know, when you start the case, you're assuming you're going to try the case, and the case goes away, it goes away. But from day one, that's how you're laser focused. And of course, you have a jury that hears the case, they're going to fall asleep, unless you have a pretty clear theme. You know, unfortunately, sometimes the theme for the appeal may not be the same, like the justice and fairness of the situation, may be relevant to factual findings. And then on appeal, it's actually really the interpretation of the contract. So you know, you've got to just make sure to preserve your issues, and know what you're going to raise to the jury and know what you're preserving in the record.
Tim Kowal 9:08
Yeah. Let's talk briefly about do you have any favorite briefing tips, any patented you add a muta kowski tricks that you like to use commonly in your briefs?
Adam Unikowsky 9:17
I always like writing an intro, I mean, a punchy and show that sets forth my case, I like to do that. You know, first, I always try to be under the word limit by a lot if I can. I really don't, you know, like, because I find when I'm reading briefs, when I'm reading cases, like my eyes start to glaze over around like page 37. So my philosophy is like, as short as possible, and if you have to go to the word limit, fine. That's certainly that's important to me. And the other thing is clear, unclear writing usually implies unclear thinking, like when you're reading something, and it's not well written, oftentimes, because you don't really understand your argument and you're just like, putting it there and trying, you know, so like, for me, that's the most important thing. Like if something is unclear, it's probably because I haven't really figured it out. You know, and when I proofreading a brief or when I'm writing and reading over that's, that's what I tell myself anyway,
Tim Kowal 10:03
I'm writing that down. If something is unclear, it's probably because I haven't figured it out. I think that really rings true for me, I like to sometimes come back to my appellate briefs that I filed. I mean, in an ideal world, I'll have, you know, put it in the drawer for a couple of weeks before I file it and make sure it still makes sense. But sometimes it doesn't happen until a couple of months after I filed it. And I bring it out to see if it still makes sense. And every now and then you find something I don't know if that argument quite makes sense. And it doesn't make sense to me. Now, it probably wasn't exactly clear in my mind, then. And it probably has a very low percentage chance of persuading anybody, but it's unclear.
Adam Unikowsky 10:36
And the other thing is also collaboration is very important. Like I always assume I've missed something, even if I'm certain I didn't miss an argument. I'm assume I've done it, I've missed it. And I always like to collaborate with another person, you know, associated another partner. And for the associates listening out there, don't just say this is great. You found a typo. Like the purpose of the review is to tell me what I've missed. So I mean, collaboration is really essential to to getting good product.
Tim Kowal 10:58
And we covered Adams briefing tips. What about oral argument? You know, you've got nine Supreme court appearances under your belt Do you have what goes into making an effective oral argument? And do you still get butterflies and making oral argument appearances other than in the Supreme Court? Now, you know, you're you've been up against the big nine is now all clear sailing, when you're in an Intermediate Court of Appeals
Adam Unikowsky 11:20
is definitely not clear sailing in any court. Judge can can end your career if you did something bad. So no, I get I mean, even if I'm in state court, or if I'm in an agency, I mean, I had an argument in the Patent Trademark Appeal Board, excuse me, a few weeks ago, or a few months ago, where I was like stream butterflies. It was a zoom argument and like, in front of a judge deciding the case. So it's so nerve racking, the tips for me are just like, answer the questions directly. And like, don't try to get back to what you're going to say because they don't care. You've already read it. And so like you get a question, just don't filibuster answer directly. And if you never in your 10 minutes, get back to like the prepared remarks, don't care about them anyway.
Tim Kowal 11:59
I think that's a hard lesson for a lot of attorneys to get to, they've got their outline, and everything on there is gold, they have to cover them all.
Adam Unikowsky 12:05
So when I come to the podium, and I never bring any written materials, and no outline, because I worry, I'll use it as a crutch. I have my briefs there in case they're like, on page 46 of your brief, you said this, but other than the briefs that are on next to me, I don't bring a paper and by design, because I don't want to start reading. So
Jeff Lewis 12:20
even when you're in front of the United States Supreme Court, you walk up to the podium without prepared remarks,
Adam Unikowsky 12:26
yet no notes? Wow. Well, you know, it sounds better. You know, there's actually there's a funny argument from several years ago, where an attorney was clearly reading for like about a minute and then Justice Scalia, it's on Oh, yeah. But I forget what it's called, stops him. And he says, counsel, are you reading this? And there's this like, painful 22nd? Pause. And then Justice Breyer is like, sorry, I just just go on. So that was one of the most painful oral arguments are heard and I've striven to avoid? It's a strike with you. Okay. Yeah.
Tim Kowal 12:54
All right. Yeah. So yeah, the judges and justice hate read oral arguments that much that they will they'll stop the an advocate and mid sentence.
Adam Unikowsky 13:02
You don't want to do that. Yeah. And you're there to answer their questions. And like, if they see that you're stumbling, or stuttering, maybe they'll start asking you questions. So maybe it's an incentive for them to do that, you know? Yeah.
Jeff Lewis 13:10
Hey, can I ask what do you think of the new format in, you know, the post COVID era, the justices when they are asking questions down the line in more orderly fashion, as opposed to the old way? Here? They're everywhere. What do you think of that new question asking format.
Adam Unikowsky 13:26
So it's now kind of like a hybrid. So during COVID, when they're on the phone, it would just be down the line. Now they're back in the courtroom, and they do the free for all. But then there's questions at the end. So like the way it works, and I was like, they wait for Justice Thomas to ask question, if he has one, maybe a couple. And then there's the usual free for all. And then at the end, they go through all the justices and ask their questions. I think it's great. I see. It used to be quite dissatisfying, like your 30 minutes expired. And like, That's it, there's more questions and like, you know, if it goes on a little longer, so justices have a chance to ask whatever questions they have. I think it's all the better. I mean, you know, a few extra minutes. You know, I hope it improves the quality of the decision making, maybe it does. And so I think that's great.
Tim Kowal 14:04
Now, Adam, as I read from your bio, up at the top, you have undergraduate and graduate degrees in electrical engineering and computer science. Could you tell us a little bit more about that at the time you were studying electrical engineering and computer science? Did you have designs on going into law with that under your belt? Or was the path to law a turn that would come later on?
Adam Unikowsky 14:25
It was late so you know, I started as a physics major, which I ended up actually being a double major also, I really enjoyed that. And then I thought, you know, maybe I should try something more practical. So I did electrical engineering, computer science, which is really just like computer engineering, computer science, which I enjoyed as well. Then I ended up getting a master's degree and I don't exactly know how I somehow got diverted to law school. I mean, I like to argue like everyone else, and I was on my school's to colleges debate team, believe it or not, and so I just kind of thought it would be an interesting career. And it was almost like I remember just like, one day on a lark. I was just like, Yeah, I'm gonna go to law school, but it wasn't you know, I didn't say Get out that way somewhere around senior year, I was just like, No. Let's give this a shot. And that's it.
Tim Kowal 15:05
Okay, so on a lark, I'll decide to go to law school and on a lark, I'll get Supreme Court clerkship and on a lark, all big nine, that oral argument appearances and the US Supreme Court.
Adam Unikowsky 15:15
Well, you know, but it's I mean, physics and also, you know, engineering is like, it's great. It's absolutely fascinating. I learned a lot, you know, I'll never regret.
Tim Kowal 15:23
Now that must play a role in your current quest to replace all human law clerks with artificial intelligence. Well, as your background play in there,
Adam Unikowsky 15:32
I mean, some of the people that computer people I met in college were amazingly brilliant, I have incredible admiration for many of the people that I encountered at the time. And you know, and now one can see the type of unbelievable technology that maybe not them specifically, but amazing computer engineers have produced I mean, gotta say, I don't know if you all use Chet GPT and things like that. And, you know, Ali's able to fusion and all these technologies, but like, it's mind blowing. I was absolutely flabbergasted when I saw their capabilities. Yeah.
Tim Kowal 16:01
Okay, so Adam Unocal skis article on his substack blog, which will cite in the so in the show notes is should AI replace law clerk. So here's the pitch from the blog post. And then this is after Adam offers some disclaimers about how AI probably should not replace judges. He goes on to say, here's the price of the of the piece. However, in the shorter term AI could and in my view, should serve the same role that law clerks play. Now the AI would review the briefs, summarize the arguments and make a recommendation as to how the case should come out. After the judge decides how the case should be resolved, the judge could summarize the rationale to the AI and the AI could prepare a draft of the judicial opinion based on that rationale, the judge would review and edit the AI would cite check and offer further comments. And the opinion would then be released and quote. So can you expand on that a little bit that makes it sound fairly practicable, and not terrifying? You know, if it's used as a tool to supplement what the judge is doing all along, which in a way is what the law clerks are doing now?
Adam Unikowsky 17:03
Yeah, I mean, the goal of the judicial process is to produce accurate, well written opinions. Swiftly, right. I mean, judges are public servants. And we want to have and their goal is to resolve disputes. I mean, it's great that law students have good career opportunities, I enjoy being a law clerk. But ultimately, as practical matter, judges are there to resolve cases accurately, fairly in an unbiased way and quickly. And the question is, Can AI help them do that? And I think it can, I mean, if we assume we'll soon get to a place where an AIS memo is going to be as good or as or better than a recent law students memo. And also the AI can complete this process in like 10 seconds, you know, I think it can do it. And if it can do it, it should do it.
Tim Kowal 17:46
Let's talk about today. Um, do you think the AI is good enough, right now, as we are having this conversation to completely replace human law clerks? Or do you think that at least one law clerk is still going to be there to check the work of the AI? Where do you where do you think we are, as of this moment in April 2023.
Adam Unikowsky 18:05
So like, I kind of feel like it keeps changing, like every week, like, you know, when I wrote this post, still GPT three now, or GPT, four, which does all kinds of interesting things. And, you know, there's competition. So like, I haven't even checked the most recent data is like a month ago that I worked with, are not ready quite ready for primetime yet. But I wouldn't be surprised. And I haven't even tried some of the newer stuff. And then I, you know, within a year or two years, I wouldn't be surprised if like someone not knowing who wrote it, compared a law clerk memo to an AI memo would say the members better. It's more thorough, didn't miss anything, whatever.
Tim Kowal 18:43
Yeah. Yeah, how do we have to share I mean, because we are fairly early on in this AI endeavor, while the share an anecdote because maybe that's about all we have at these early stages. I've run some chat GPT driven memos actually, through co counsel, the case text product, and they have been great at helping me get up to speed for a new client call, for example, they send me a brief or an opinion, a judicial decision that they'd like to review. And I can run it through and they can summarize it, or I want to know about a particular legal issue. So I have given me a quick and dirty summary of California case law on a particular issue. And it gets me up to speed, you know, in five minutes, or otherwise, it might have taken me half hour or an hour and with the assistance of a junior associate, but there are limitations that I spotted. I had a conversation this morning, where I made use of a couple of quick memos that I ran just five minutes before the phone call. But then there was one case that the potential client told me now here's the, you know, the definitive case in this area, and I go back to these memos that I ran, and it hadn't talked about that case. I don't know how I missed it. But now of course there are there going to be oversights and incorrect things in a human law clerk or junior associates memo as well. But yeah, I guess maybe the point is that AI is not a panacea, where where it's it's going to have advantages and that it's it's going to be faster, certainly faster, more accurate. In some ways, but maybe less accurate in other ways, and how do we ferret that out? So we know how to compensate for its deficiencies?
Adam Unikowsky 20:07
Well, that depends on on what his deficiencies are, and there's going to slowly decrease. So like, I mean, you know, if the AI will miss things, but if it misses fewer things than a human, then I think you want to use the better rather than the worse, right? I mean, nothing is perfect, but you want to, you know, human, certainly human law clerks, you know, reflecting on that period of my career, I was my 20s, I was pretty dumb. I don't really trust the former version of myself to provide. To be honest, not only that, but you know, the AI is have read every single case, I mean, at least once wants to train on the full database. I don't know if that's happened yet. But eventually, they'll train and help us law and they'll have read every single case and memorize it, that's certainly a useful feature. And you know, and it's cheap. And it's also unbiased, right? I mean, the AI and its humans may have unconscious or implicit biases, based on you know, the characteristic of a litigant or a lawyer, and then the A won't have that because computer and I think that's another advantage
Jeff Lewis 21:00
out of I've got a couple of questions. And part of my ignorance, I never clerked anywhere. So I have maybe a romanticized view of the process. Maybe it's a little less transactional than what you laid out in your article. Is there something to a judge in a law clerk interacting and a judge, maybe stepping down from the ivory tower and learning from a clerk? And vice versa? That would be lost if AI replaced a law clerk?
Adam Unikowsky 21:27
Well, to some extent, yeah. I mean, I had a great time clerking for both the judges, I got along with them. Well, we had a lot of very interesting conversations, and I don't know what they got out of it. But I got a lot out of it, that's for sure. You know, but I'm pretty practical person. And the judges job is to decide cases, according to law, especially in lower courts. It's just mastering the facts in the record and the relevant legal principles. The other thing is, you can still have the law clerks. I mean, they're not that expensive. law clerks don't make a huge money. You know, it's just the types of things they'll do might be different, maybe you'll have fewer of them. And you I mean, like, you can serve law clerks. If the judge wants to hang out with a younger person, that's fine. You know, I mean, a lot of being a law clerk, as you know, sitting in your office, and like figuring out some issue you've never seen before, right? And when you graduate from law school, or anything, and then make mistakes, that's a pretty typical awkward day. And so I'm not sure we should romanticize that either. I guess.
Tim Kowal 22:20
Are you familiar with the the technique, I guess you call it a prompting the AI prompting chat GPT. I'm not an expert in this. I've not tried it myself. But I guess the idea would be, you can give a search prompt to chat GPT say, you know, tell me if the International Shoe standard is met in this case, such that minimum contacts are established when the defendant was served at an airport, you know, when traveling in the state, something like that, but then you could give it further prompts that Oh, and this was just for a passing through a layover flight. And also, by the way, he has no other context, I guess you just keep feeding it more information and more prompts, scale it into the right jurisdiction, oh, this is a state court that's going to be deciding it rather than a federal court or what state it is keep getting more and more specificity in the prompt, and it will massage and give you different or better results. And I wonder if that is going to wind up playing a big role in how to give proper prompts to chat GPT, whatever the AI interface technology is, and do attorneys law students, law clerks need to be trained better, and how to use how to get the best results out of AI.
Adam Unikowsky 23:26
So you're right, the AI can remember your prior answer and modify its answers based on new information. And in fact, there's always websites explaining interesting ways to get chopped up to do what you want, like, you know, answer this, assuming I'm an educated person in the voice of a college professor or something, it will do it actually, you know, in the voice of an economist or something, if you like that mode of thinking. So yes, I think that hasn't technology improves, I, we will have to learn to use it in a way to harness its capabilities.
Jeff Lewis 23:57
Adam, I'm still stuck. I'm sorry, I'm still stuck on stepping up to the podium without notes. And I'm wondering, preparation must be super important for you, as AI changed the way in which you prepare for oral argument?
Adam Unikowsky 24:11
No, I haven't really used AI in my practice. It's more just been like, Whoa, this is neat. Like, I wouldn't say that I use it every day, I find that if you're trying to read something during an argument, then you're losing or you're winning, and they're not listening anyway, in which case, you just just stop because you're gonna you know, so I feel like, of course, you have the briefs there, because they'll just ask you something about the briefs. And you need to say, oh, at page 38. Let me look at the footnote. But you know, yeah, meaning, you know, so that's the answer your question. Yeah,
Jeff Lewis 24:40
I gotta tell you, you know, the courts we practice in mostly California state courts. 90% of the time, the opinions already written in full and much of oral argument, I think is the chance to play up policy or the why and the passion arguments. So I don't see much value in reading. But I gotta say I always have little cards with notes like little segment notes in case the hard question. comes up that I don't really want to advance, but guess I have to answer it. Interesting. Interesting. Have you played around with chat GBT to do a mock oral argument? I've done that. It's really fascinating.
Adam Unikowsky 25:11
I haven't, but it's good idea. Yeah.
Tim Kowal 25:14
Yeah. Along those lines, I've been meaning to check up to see if I remember years ago, Josh Blackman was involved with the project to catch him going off years old memory now. But I think his project was to try to feed into an AI system, all of the past opinions of various Supreme Court justices to kind of build a an ideological profile, so to speak, so that the AI could prognosticate on how a particular justice would come out in a particular case with particular facts and law at issue. And gosh, again, this was years ago that remember, he was explaining this project, and I haven't kept up with it. But I wonder I mean, that project must be supercharged by this point. I wonder if you're going to the United States Supreme Court, or for that matter, any Intermediate Court of Appeals seems like AI, probably not too far off, if we're not there already, where the AI could probably prognosticate how this particular constituent panel would come out. If there is a on a certain issue, even if it is a an ideologically charged issue.
Adam Unikowsky 26:09
I think I mean, that sounds like a particularly high degree of difficulty. But I mean, you can imagine some cases. So consider something where, you know, certain judges have certain views, a qualified immunity or something. All right, I can certainly see a world in which the AI is capable of like comparing the facts of one case, to the relevant legal standard, you know, figuring out the level of generality, the legal standard, then looking at the judges qualified immunity cases and saying, Okay, this is a qualified immunity Hawk, it's really got to be identical to the facts of the prior cases. And if it's more of a dove, well, then, you know, it's sort of in the same ballpark close enough. And so you can imagine that I mean, like, I think it's many years off to really, you know, read all the judges judicial opinions, and then read a brief like, that strikes me is hard. But look, my philosophy with this stuff is if a human can do it, then there's nothing special about the human brain that can't be replicated, if you have a bunch of circuits rather than neurons. And so, we mean, you are capable of reading a brief and saying, Hey, I read this judge's decisions, this is what I think the judge is going to do. And if we can do it, then I don't see any reason why computer can't do it, you know, with the as the technology improves,
Tim Kowal 27:15
yeah, that's gonna be the trick is that will be the space to watch to see if there is something that AI consistently for whatever reason doesn't seem to be able to do a certain thing that we humans can do. That will be the space to watch to see what is it that makes us humans special. If anything, I think that that may be a neat opportunity that AI gives us is that we're not just piecing together legal arguments, AI, now we've got, you know, their AI breath hot on our neck, that they're doing what we're doing on our mediocre days, we have to make every day you know, we have to push that envelope. So we could do that thing that AI can't do. Yeah,
Adam Unikowsky 27:50
I mean, we know a lot of lawyering not all but a lot of lawyering is a little bit mundane. I mean, it's applying the facts of the law, certainly a lot of judging. And unpublished opinion is applying the facts of the law. Like, I'll agree that an AI may not be able to come up with incredible scientific advancements prove amazing math theorems or whatever. But like how much of judging or what law clerks do, or how much of what we do every day is really quite at that level of of intellect. So I don't think lawyers will be replaced, but many tasks we do, I think, can probably be automated. That's what I think.
Tim Kowal 28:21
Yeah. You mentioned something about, you know, when you were saying that maybe anything that we human lawyers can do an AI can do. And I thought, Well, what about when you're trying? You're asking a specific research question, like I was asking you a research question about to co counsel the other day about terminating sanctions? And can you get relief on that. And the result I got out of it, it was interesting, because some of the results, they come back with ones that are directly on point here was an issue of terminating sanctions. And here's how the court came down on it. But there was another one involving here was, you know, attempt to disqualify an expert. And even though it's the results that even though it's not right on point to the research requests, it is analogous to, you know, because it effectively ended the case when this expert was excluded or something like that. Wow, that's pretty creative. You know, I would not have gotten that on a Boolean search result through traditional legal research tool.
Adam Unikowsky 29:07
I mean, the way these AIs work is they're not really creative. I mean, they're basically taking a huge database and figuring out using some probabilistic model what the most likely next word is based on a bunch of input words, based on huge training dataset. But you know, when we're lawyers, in many cases, not all, that's what we're doing. We're looking at a set of facts and looking at how prior courts have evaluated similar facts. And in fact, when you're writing a brief, you kind of don't want to have to be graded, right. It's much easier if you say there's a case that's directly on point and it forecloses plaintiffs or defendants claims. In fact, the most effective briefs are like I wrote in the blog entry that when a court calls your arguments, creative, it almost always means they've just rejected your argument. And so for many of the legal tasks, I don't know what percentage but many of them seems to me that these models of just you know, looking at prior decisions and doctrines Send materials and just figuring out what the next word should be based on prior cases is kind of what it should do if you speak.
Tim Kowal 30:06
Yeah, that's an interesting point about trying to be as uncreative as possible. You only want to be creative where you don't have any good arguments, you know, engineering Maxim, you want to fulfill your project with as few innovations as possible.
Adam Unikowsky 30:19
Exactly. You know, it's so much easier when you have a case that forecloses the other side, it's one paragraph, you move on to the next section, right? No policy arguments. No extrapolation. It's nothing. You went. And you know, so that's the best brief. Yeah,
Tim Kowal 30:35
well, yes. So was your point there that will AI be able to make those creative arguments, the policy arguments, this the social ramifications of a judicial holding going a certain way?
Adam Unikowsky 30:45
I mean, AI is actually pretty good already making policy arguments, you ask it, like, give me five reasons why, you know, this is better than that. And it'll it'll kind of do it actually fairly well, because of its mastery of lots of policy arguments out there. But I think AI may like your your nightmare, when you're a breed when you're a brief writer is like, screwing up, like not finding the right case. Right? Like, there's sometimes there's just an answer that you haven't figured out. And, you know, that's something the AI will help you with. And the other thing is, when you're writing a brief, I mean, you want it to be a little bit punchy. But I mean, you know, it's got to be a little boring to like, it can't be like, you know, because you're right, you don't have your panel is going to be it's written, you know, in this sort of calm, methodical style, you know, rather than tons of possess, like got to limit the possess, and that's the kind of writing style that the AI is good at. So like, you know, maybe AI won't be a spectacular novelist, but nor are most lawyers, nor should they be, at least in their briefs.
Tim Kowal 31:39
Right. Okay, Adam, let me go back to your article. Again, the article is should AI replace law clerks? In your article, you anticipate the objection? So you're telling me there aren't any harms to letting AI tell judges what to do? And Adam's answer is, yes, that is basically what I am telling you. Could you elaborate on that? Well, the word
Adam Unikowsky 31:58
basically is doing a lot of work there. You know, I think that one important thing is not saying that the AI is going to replace the law, the judge, it's an assistant and the judge still has to exercise his or her independent judgment. And so the benefit of the AI is that it's harnessing the the human abilities with the computer's ability, like AI does some things better than people, right? Has AI knows more stuff, right? than you do? And I do. And anyone does, because AI has read every single case, AI may like judgment, but number one, the judge is there to exercise judgment. That's why it's called the judge. And number two, I'm not 100% persuaded law clerks have a particularly good judgment either reflecting on my own experience.
Tim Kowal 32:37
Yeah, yeah, that's the things that comes through in the rest of the analysis. In your post some of the reasons that you give for embracing a I amount of something on the order of Well, there are we have some drawbacks to our current system, our current way of doing things. So for instance, you mentioned that judges already don't read all of the cases, they do rely to some extent on summaries provided by their clerks. And so, you know, if they're relying instead on summaries provided by AI, then, you know, your judge is really losing anything. Yeah, maybe they're gaining something.
Adam Unikowsky 33:10
It depends on the judge, like Justice Scalia would actually read every single case cited any opinion that he would write, he was like, obsessed with not citing a case incorrectly, he would really do that. But you know, it's easier to do that when you're in the Supreme Court hearing 60 cases a year than when you're on the Court of Appeals hearing that 1000s. And certainly trial courts are just too. And so you know, as you say, if the judge is going to rely on a summary, there are advantages to on an AI to complement the judges abilities. That's right. You also
Tim Kowal 33:38
mentioned or anticipate the objection, that well, AI is a black box. So we don't know what we're getting in your response to that as well. law clerks are already invisible, we don't have any influence on the decisions or the biases, the inputs that the that are provided by the current human law clerks.
Adam Unikowsky 33:57
Well, so there's that, like, you got an oral argument that you're doing. And then you see these, you know, 27 year olds and formal clothes and you're like, okay, then with blank stares, you know, not, it's not clear why I feel that much more connected to them. Plus, you don't really understand the human brain either. I mean, no one really, I don't really understand how the AI works. I've read these discussions, you know, Transformers and whatever, I still don't fully understand exactly what it's doing. But you know, the creative process is also quite mysterious. I think just the output that matters if the AI produces a consistently great set of memos by
Tim Kowal 34:29
Yeah, you know, and it's funny that you say that you don't understand how it works. It makes me feel a little bit better because I also don't understand how it works and I don't have any advanced degrees in electrical engineering or computer programming, but for that matter, you're also in good company because the co founder of case Tech's says he doesn't completely understand how it works either to some extent, you know, they program some of these synapses, for lack of a better term, these these algorithms and then they're kind of off to the races. It's almost like self learning in a way he puts he has put a lot of things in air quotes, you know, when it says that AI is reading or understanding language, yes to put air quotes around reading or understanding, it's not quite reading or understanding in human in the same way that humans do it. But whatever way it's doing it, it's producing useful results that do effectively mimic human work product.
Adam Unikowsky 35:17
Yeah. So I read these articles about the transformers and all that stuff, you know, you read it, and you're like, okay, but like, does it really work? And I guess, we don't really have an intuition about what happens when you train something like billions of times on like, billions of you know, gigabytes, or more terabytes and terabytes worth of data over a long time. At some point, it's like, you know, just use a silly example, like how at one language changes to another, like, how is it the case that like, you know, in 1000 years, you know, Latins split into French and Romanian, Spanish, Italian, and even more than that, like, whatever the original human language was, was split into many different languages that how could that have happened? And yet we know it did, factually. And part of it is that our brains can't process how like, you know, magnitude of time, and incremental changes can all add up together. It's not really related, but it just hard to process just sufficient amount of time. And the magnitude of computer operations that AI does eventually can I guess, produce these amazing results?
Tim Kowal 36:17
No, yeah, I like that analogy. Yeah, there are a lot of things, a lot of social phenomenon, we don't have either the right language or brains are just not made. Like for example, I'm thinking how for some people, the explanation to every social phenomenon they don't like is some form of conspiracy theory. Well, you know, some things may look like a conspiracy theory. And there may be something strange that we can't explain going on. But sometimes we lack any better way of explaining it other than conspiracy theory. And maybe it's true here where we lack any better way of explaining what AI is doing, other than it's reading and understanding and analyzing cases for us. But yeah, whatever is to transformers are code. Yeah, successfully mimicking? Well,
Adam Unikowsky 36:52
I took an AI course back when I was in college, we're talking like 2001, or something. And they taught us about neural nets. And like, I remember thinking it was lame, I was just like, okay, fitting something, or have and the whole neural thing seemed like a gimmick, and like, okay, so you train it on a bunch of things, and like, you fit a curve to something and maybe like, it'll get a little better at chess or something. But I guess you do, you know, I mean, I didn't expect that. So I have to say, I was surprised at what I'm seeing, in principle, look, the human brain can do it. So there's some kind of computation happening here. And there's no principle reason why, you know, silicon set of neurons can't replicate that although works very differently. But I wouldn't have believed it until I saw it.
Tim Kowal 37:29
You mentioned that you've read a lot of, you know, dystopian science fiction in your time, do you have any trepidations about the future of AI? is, are there any dark turns potentially, in our future?
Adam Unikowsky 37:39
You know, I read a lot of, you know, AI concern, and there's a whole community of people out there who think AI is very dangerous, and are really worried about alignment. And, you know, I read all that stuff, because it's very interesting. You know, I don't, I don't feel like I have a good intuition. Like, I had no intuition that AI could even accomplish this before it came out. So I'm not sure I have a very good intuition of like, what's going to happen? I think there's a benefit to having multiple API's, you know, made by different people to ensure that, you know, the biases of assembler developer, don't prop it, you know, that may be subtle don't propagate. You know, AI alignment is such an abstract topic. I don't even know what I don't know about this. So I'm, you know, just try to read it every week and and try to make sure I know what I don't know, and then try to know it.
Tim Kowal 38:23
Yes. Well, that does that fat give cause for some trepidation that we don't know what we don't know, you know, should we be careful in how much we rely on it? And maybe if we rely on it, we should do so only in small increments?
Adam Unikowsky 38:35
Yeah. I mean, that may be true. In some cases. I mean, with respect to you know, law clerks, you know, the judge discipline judge should rely only to a limited extent, only to the extent that it's persuasive. That's how a judge should treat a law clerks memo. You know, if you're persuaded by it, fine. But you know, you have to kick the tires, you can't assume that it's correct, you should look at the cases. And so if there's like that the level of review that we assume should happen, and I think probably does typically happen, I don't know about every single judge in the country, then I think it's fine to use the AI as an input to a human process, if it's being checked, which it should be, you know, I have another post about AI is being arbitrators, which I actually think may be a good idea in some ways, too. But of course, I wouldn't want an AI Supreme Court that would be that would be weird.
Tim Kowal 39:21
And could AI to the extent that it's processing and relying on decisions that are out there, some of which may have an ideological tinge? Could AI thereby produce ideological results? Is there a garbage in garbage out problem?
Adam Unikowsky 39:35
You know, so there's a lot of talk that Chechi Beatty is too left wing and things like that, you know, and then, you know, you see on the internet, like, Oh, it'll praise Biden, but one praise Trump and things like that, you know, so yes, you don't want an AI pushing you in a particular direction. Lord knows that lots of law clerks are ideological to write. AI is not alone in that regard. Number one, though, an ideological case. I'm sure the judge will be making his or her own decision. Like I think the fact that AI says, you know, some ideologically charged thing will necessarily persuade the judge the AI is most useful outside of that context of cases. And also the AI can be programmed to produce both sides of an ideological issue as well. So I don't anticipate, like dogmatic AI is in particular social issues, like moving judges any more than dogmatic law clerks.
Tim Kowal 40:24
Okay. All right. And last question, do you have any predictions for what we're going to see next? How do you see these things playing out? Do you? Do you predict that there are any judges who are going to follow your advice and start replacing their human law clerks with AI? Or do you think they need to start seeing some proof of comp more proof of concept before they do that? And what are the steps that you see playing out before your proposal might be adopted by some appellate judges?
Adam Unikowsky 40:49
Well, yeah, there's gonna be a lot of proof of concept. I mean, I think it'll start as like, the judge will have the former law clerks, and the judge may ask the law clerk to use AI, or the judge may use the AI himself or herself. Like, it'll be the judge and the law clerks and the AI just to see the stuff it'll do. And also, originally, it might be for like, little stuff, you know, find a case that says this. Or, you know, here's one sentence of that, you know, can I get fees for this? When do I have to apply? What's the deadline to apply for fees? What's the standard for fees? What happens if I applied late is your tolling, you know, whatever, things like that, and then say, like, write a little paragraph rejecting the argument for fees on the ground that it's untimely, if it is little stuff. And then if people are like, wow, that's doing it, and they check the case? And it seems right. Yeah. And then it'll inch forward.
Tim Kowal 41:38
Yeah, yeah. It's a brave new world. I think, you know, maybe we'll even start seeing AI, listening to our conversations and providing us live fact checks, and, you know, additional tidbits that we could put into our conversations. What do you think, Jeff, maybe we'll ask Pablo, if we can get that when it comes available and enhance our content? Right?
Adam Unikowsky 41:56
You have Alexa? Alexa was listening. I mean, it seems goofy. I was listening, but it was in your house. I mean, you say, hey, Alexa listens. Right? And so anything you say, can have Alexa, install this listening? Yeah, I have some problems with that, too. But it's if you're worried about that, then a lot of other things have to change.
Tim Kowal 42:11
Yeah. I was told by an Amazon engineer that it's, it's not listening. I don't know how it works. Whether it's listening only for the word Alexa, or hey, Alexa, whatever that code word is. But yeah, how do you trust it? I guess you'd have to ask it was so trusting. All right. Well, Adam Yuna kowski, thank you so much for joining us and talking about your article. Should AI replace law clerks. We'll have a link to that in the show notes. We'll be following your work on substack. And I hope you'll come back to the podcast again in the future.
Adam Unikowsky 42:40
I'd love to thanks so much for inviting me. Yeah, and that wraps up
Jeff Lewis 42:43
our episode. We want to thank case techs again for sponsoring our podcast and each week we include links to the cases we discuss these in casetext and listeners of the podcast can find a 25% discount available to them when they sign up a casetext.com/calp. That's casetext.com/calp.
Tim Kowal 42:58
And if you have suggestions for future episodes, or guests that we should include on the podcast please email us at info at cow podcast.com. And in our upcoming episodes like for more tips on how to lay the groundwork for an appeal when preparing for trial.
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Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
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“One more thing,” the appellate attorney darkly muses. “Be ready to file a protective cross-appeal.”
Wait, what? What the heck is that? Is this just one more way we appellate specialists try to get added to trial attorneys’ speed-dial?
Here a 3-minute explainer. Basically, just remember: if you lost a verdict but won a JNOV, think protective cross-appeal—because if you lose the JNOV, then you’re back to challenging that nasty verdict again.
Watch the clip here.
This is a clip from episode 78 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.
After dissolving her marriage and entering a marital settlement agreement, Darya Khankin went through some old boxes and found over a million dollars in undisclosed funds she claimed were taken by her ex, Anatoly Dumov. So she moved to set aside the dissolution judgment, noting that under Family Code section 2103, failure to comply with disclosure requirements means the court “shall “set aside the judgment.
But the trial court at the hearing considered the parties’ declarations as well as testimony, found both sides were generally credible, and concluded Anatoly’s explanation—involving investment of funds from Darya’s mother in Russia—was reasonable.
That’s “absurd,” argued Darya on appeal. But the court in Dumov v. Khankin (D6 Apr. 14, 2023 no. H050180) 2023 WL 2942989 (nonpub. opn.) noted that challenging a factual finding “requires that she demonstrate not merely that Dumov's evidence could be disbelieved but that her own evidence was “ ‘of such character and weight’ ” that she was entitled to relief as a matter of law.” (In re. I.W. (2009) 180 Cal.App.4th 1517, 1528 (I.W.), disapproved on another ground in Conservatorship of O.B. (2020) 9 Cal.5th 989, 1010, fn. 7.) That means that, to prevail on appeal, the appellant “would have to establish that no reasonable trier of fact could have failed to credit her evidence over” the respondent’s. This is almost always impossible.
To seal the deal, Darya did not provide an oral record of the hearing at which the trial court heard the parties’ testimony. “To carry this heavy burden, Khankin at minimum was obligated to provide the entire evidentiary record on which the trial court based its ruling—if the parties did not retain a court reporter or a transcript was otherwise unavailable, it was incumbent upon her to obtain a settled statement.” And “[w]here no [record of the oral proceedings] has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters.” (In re Estate of Fain (1999) 75 Cal.App.4th 973, 992.)
Darya noted that she was not aware that there was not a court reporter during the hearing. But that is of no moment, because when she later did become aware, she could and should have moved for a settled statement.
The appellant in this case misapprehended the principles of appellate review so badly, in fact, that it could easily have been argued that the appeal was objectively frivolous so as to support a motion for appellate sanctions. Before appealing, ask yourself if you are challenging a credibility determination. If you are, reconsider your decision.
And if in addition you had the burden of proof on the credibility determination, a trip to Vegas may be a wiser investment (and more enjoyable) than pursuing the appeal.
And if on top of all that you also do not have a record of the oral proceedings, get ready to get sanctioned.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Sometimes when a case on appeal settles, the settlement will involve stipulating to reversal of the judgment. That much was no surprise in the stipulated reversal of a citizens group’s challenge to the City of Palo Alto’s utility rate structure in **************************Green v. City of Palo Alto (D6 Mar. 27, 2023 no. H049436) 2023 WL 2644025 (nonpub. opn.).
The surprising part was that the Court also went along with the parties and issued their agreed list of instructions to the trial court on remand. And all this over a class-action settlement clocking in at less than $18,000.
The settlement would allow the city to avoid issue preclusion (about whether the city may continue charging rents for the use of general-fund assets). And, of course, the settlement would allow the plaintiffs’ attorneys to seek their attorneys’ fees.
The Court agreed that the parties successfully established the factors under Code of Civil Procedure section 128(a)(8) for a stipulated reversal:
The surprising thing about the opinion is that it directs the trial court “to consider and implement the parties' settlement in a manner consistent with the parties' settlement agreement.” This includes allowing the parties to amend the complaint (to add new claims consistent with the settlement); direct notice to the settlement class, hold a fairness hearing, and consider approving the settlement and attorneys’ fees; and finally, to enter judgment on the settlement and direct the City to comply with it.
The parties proposed even more instructions—about retrying an issue concerning the city’s practice of charging rent to its utilities—but the Court did not go along with those. Ordering a retrial “would require examination of the merits of the case and exceed the scope of the stipulated reversal.”
Code of Civil Procedure section 128(a)(8) imposes a presumption against stipulated reversals, and ordinarily that presumption is very difficult to overcome. (Hardisty v. Hinton & Alfert (2004) 124 Cal.App.4th 999.) Green is surprising because the court seems to give light treatment to the presumption, and even goes beyond the stipulated reversal by issuing further directions to the trial court.
The reason stipulated reversals are difficult is that judgments are the exercise of judicial power. A judgment, particularly the judgment of an appellate court, is the expression of a general statement of law, forged into judicial act and backed by the full force of law. We do not want people to get the idea that judgments may be manipulated by private, interested litigants.
As relevant to this class action, it is possible that, as the court noted, the reasons for the settlement are valid given that nearly all the ratepayers in the city are parties, and thus will all share in the proceeds of a little more than $17,000. It is possible that that is the reason for the settlement.
But is it probable? Or it is similarly possible—even probable—that observers may wonder if many of those ratepayers wouldn’t rather let their pennies ride and try to vindicate their position that the city may not continue charging rents to its utilities. And observers may further wonder if the driving force behind plaintiffs’ stipulation was less the $17,000 and change, and more the forthcoming motion for PAGA attorneys’ fees.
In any event, if you are exploring settlement on appeal, do not expect to receive such light treatment as was illustrated here. Try to avoid structuring a settlement that depends on a stipulated reversal.
(See my previous post on in Mid-Wilshire Property, L.P. v. Dr. Leevil, LLC 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 summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
AI, they say, will revolutionize the practice of law. But can it do anything for my actual practice, as in, the case I am working on right now? Prof. Jayne Woods joins us to explain how she used ChatGPT—the question-and-answer AI interface—to draft a very passable first draft of an oral argument outline. Even better, ChatGPT could event engage (with a little coaxing) in a moot court dialogue, asking questions and follow-ups about legal issues.
Some of Prof. Woods’ takeaways:
Jayne Woods’ biography.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim colwall. Both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorney some news and perspectives they can use in their practice. If you find this podcast helpful, we'd be most appreciative if you would share it with a colleague.
Jeff Lewis 0:34
And if it's not helpful, send it to your opposing counsel. And a quick thank you to our podcast sponsor, he's text. He's text harnessing AI for the very best in legal research documents, summaries, and document analysis. Imagine uploading a deposition transcript to the cloud and getting back a summary in minutes. Check out the latest case tech product co counsel hates text.com. For more information and see our show notes for a link to a discounted sign up at case text.
Tim Kowal 0:58
And just speaking of the CO counsel product of case texts, I found a lot of value already, and how it speeds up the processing and summarizing of documents and helps me get quick and dirty analysis of legal questions that come up in my practice. And you'll recall during our conversation when we interviewed Pablo era Dondo, one of the cofounders of case text, we asked him if AI would be able to assist attorneys preparing for oral arguments such as by, for example, predicting what an appellate panel would ask counsel during oral argument. And so when I saw
Jeff Lewis 1:29
that technology is years away, that can't possibly happen, Tim?
Tim Kowal 1:33
Oh, don't speak too quickly, Jeff, because I recently saw Professor Jane Woods recent blog posts at the appellate advocacy blog. And she ran an experiment with chat GBT doing just that she asked us a bunch of questions about what kind of questions an appellate panel might ask in a free speech issue. And I was delighted to have the opportunity to speak with her today. So today we welcome Jane woods to the show. Jane Woods is an associate teaching professor of law at the University of Missouri School of Law, Professor Woods teaches legal research and writing and advocacy and research. She has also taught appellate advocacy and moot court before becoming a professor Jane was an Assistant Attorney General for the Missouri Attorney General's office in the Criminal Appeals division, where she wrote and submitted approximately 400 appellate briefs and argued multiple cases for both the Missouri Court of Appeals and the Missouri Supreme Court. And before that, she was a law clerk for the honorable Karen King Mitchell on the Missouri Court of Appeals western district. Jane woods, welcome to the podcast. Thanks so much for being with us.
Jayne Woods 2:35
Thank you for having me. Yeah, this
Tim Kowal 2:36
is a very topical issue of AI chat GBT and our sponsor case Tech's product co counsel, I think are on the minds of a lot of attorneys and law students. You're the first law professor we've had on the show, and we're eager to talk with you about your forays into how AI may change legal practice. But before we get into that, can you tell us a little bit more about yourself about your journey from legal practice into academia?
Jayne Woods 3:01
Yeah, sure. And actually, there's just one little correction I have. I'm still a clerk for Judge Karen Mitchell in the Western District. I did that after I did my attorney general stint, and then I've been working for her since 2011. And so I'm still doing that now. Yeah, so I started out doing the practice thing. And then I started clerking for her and shortly after I graduated law school, I started adjunct teaching at the University of Missouri research and writing was always my favorite part. So they let me come back and do that. So I did that for a while. Yeah, sometimes
Tim Kowal 3:29
we ask our guests, what is your favorite part of appellate practice? We have an important exception other than the legal research and writing part. So you made your whole career out of the legal research and writing part. Did you have another aspect of appellate practice that you enjoyed? Well, actually,
Jayne Woods 3:43
my former boss at the Attorney General's office, he always used to say that appellate practice is the purest practice of law, because it's where we don't have to deal with discovery. We don't deal with clients as much, because we're really arguing about the law and the theory of law. And so I agree with him. I think that's the really fun part.
Tim Kowal 3:59
That's right. And if you work for the government, you also don't have to worry about billing, right? But that definitely helps make it or marketing or I still remember coming out of law school with a head full of law, but empty, have any useful skills. And I was telling you before we hit record that it's hard. I still remember coming out of law school like that. But I don't remember where things changed. And so now I feel it would be hard to train a first year law student as anything changed, I guess my own personal experience would say, No, it's not changed. We all grizzled attorneys become set in our ways, but maybe others are better in educating than I am. So how do you prepare law students to go out into practice, you know, ready and raring to go?
Jayne Woods 4:37
Well, it's also very different for me because I remember when I was a well, I started out learning about books. And I was in the library doing books and actually jeopardizing with a real Shepards book. So the whole legal databases thing was new that when when I started and so it wasn't until our second semester that we even got to use Westlaw and Lexus. So it's kind of fun. Now we don't have that restriction on students they automatically Get into the legal databases. And you know, now we have the Google generation. So they're already very familiar with how to do that sort of thing. But just kind of switching their mindset from the Google searching to using these legal databases is is a new and different experience. I think the funnest part, though, is actually showing them a book and how the citations work, because they came from an actual book.
Tim Kowal 5:20
They actually did come from a book. Yeah, we talked about published and unpublished opinions. And it's kind of a misnomer, because everything is online, whether it's published or unpublished, it still comes up in my search results. So what the heck does that mean unpublished? Well used to mean that things were actually published, like in a book with paper and binding and everything. And these opinions are not published. So that's why they're called unpublished. Right? And what about, you know, before we talk about how lawyers can make better use of AI, you have any perspectives on how lawyers can make better use of young legal talent? Because that's kind of what the game is with AI is, you know, how do I replace it? I don't want to have to hire somebody, maybe I can just use a robot AI to produce the same results. But maybe they're just not good at training young talent, like it's difficult to delegate, it takes time, the first couple times you tried to delegate something, you think to yourself, well, I could have done this already by now. So what's the point?
Jayne Woods 6:14
It is a little bit that we would chat up to at first, you have to figure out how to tell it to do things, right. I don't know, I think that young associates still bring a lot to the table. You know, for one, they are much more aware of current events, which obviously some AI really is not current, yet. It only stops. It's like 2021. So definitely have them more attuned to the world around them. And you know, I don't think you can replace the human connection.
Tim Kowal 6:36
Yeah, yeah. There's something that one of our local law schools does here. Chapman law school is actually not renamed to the Fowler School of Law. But they did a clinic, I suppose they still do a clinic. I taught at adjunct for a couple of years. And it's a it's a civil procedure workshop clinic. It's for first year second year students, I think it's maybe after they see their after or concurrent with going through their civil procedure. So if they get practice actually doing a notice of remand, it actually propounding some discovery and responding to discovery. So by the time they come out of law school, and they get hired as a junior associate, they at least have had a little bit of exposure so that they're not looking at a Discovery set that they have to respond to. And they're asking, What the heck is this?
Jayne Woods 7:13
Yeah, it's funny. You mentioned that I remember my first legal job that summer after my one year, they asked me to draft some interrogatory. And I was like, Oh, great. I know what those are. I remember learning that in Civ Pro. And I was like, I don't know how to write one.
Tim Kowal 7:25
Yeah, right. No, it's funny how it's just putting pen to paper. And knowing how something is done. It is really making that connection from the world of the abstract the pure law, as you say, to doing something that is actually going to be filed in a court. Sure. In your opinion, is AI a threat to job security for new lawyers? What are law students, your law school saying about things like chat, GPT and CO counsel?
Jayne Woods 7:51
Well, it's interesting, because a lot of them are unaware of chat GPT or are not interested in learning about it. I've been encouraging my one ELS to go experience it now and play with it while it's still free. Because I think that it's something that's definitely gonna be part of their lives in one way or another. And so now is the time for them to learn about it, when it's you know, they're in a safe environment, they're not going to end up being liable to a client for any sort of malpractice or anything for using it. And so I do think that it's something they should learn. But then again, I also have some law students who are still struggling to learn how Microsoft Word works. So they're in all sorts of different levels.
Tim Kowal 8:26
It is funny, you see older attorneys who are confident in technology and younger attorneys who are not confident in technology. So it's like anything, generalizations are always false at some level, but I wondered if there may be an opening there for young attorneys to leverage artificial intelligence for their favor, because I was at a tourney networking meeting this morning, for example. And we talked about AI and chat GPT. And everyone just kind of looked around you. Have you tried using chat, GBT? No, you know, do you have imagined anyways, you could use it in your practice? No, I don't think I could ever use that. And so law students, if like you said, you're urging them to get up to speed on it, they can probably bring that value to older law attorneys who otherwise would be afraid to touch it with a 10 foot pole.
Jayne Woods 9:07
Yeah, absolutely. And I think one of the skills that law students now can really develop is learning how to put in an effective prompt into AI software to get the results that you actually want, because I think there is a bit of an art to prompting the AI to return a result that's helpful to you. And so if they can start learning that now I think that will put them ahead in the game for getting jobs later.
Tim Kowal 9:27
Yeah. You mentioned an important concept, that prompting that we'll get into a little bit later. But yeah, there's a way to train AI train these chat GPT to give you better and better results. So yeah, it does depend on the skill of the user and getting more useful results out of chat. GPT What are some common mistakes in we're going to talk about oral advocacy, because your blog post about GPT was testing your chat. GPT is ability to give attorneys better results, more information in preparing for oral advocacy. But before let's leave chat GBT aside for a minute Just talking about oral advocacy, because that's something that you train law students, and what are some common mistakes in oral advocacy that you see law students and maybe even practicing attorneys make
Jayne Woods 10:09
being married to their outline? Refusing to yield to those tightly? Yeah, exactly. hanging on to it like a security blanket and refusing to yield to where the court wants to go. Because the questions really are the most important thing. And I think if you fear them, instead of embracing them, that's really going to put you in an awkward position at oral argument.
Tim Kowal 10:29
That's right. Do you have any methods, any tips on how to get attorneys unmarried to their outlines? Because yeah, I mean, those stories abound where thank you for your question, Your Honor, I'll answer that later. It's a little bit further down in my outline.
Jayne Woods 10:41
Exactly. Yeah, I don't know if I have a surefire way. One thing I always tell my students is not to imagine it like being cold called in class, because the judges have a different purpose and asking you questions than your law professors do? Because the judges really want to know the answer to what is the effect of this case? If I decided this way? How is it going to affect the next case that comes down the pipe? And so they really just want to kind of play it out and see, and have that intelligent conversation about the law. Whereas you might have a law professor who's really trying to nail you to the wall and figure out like, Did you do the reading?
Tim Kowal 11:13
Yeah, no, that is probably the toughest thing about oral argument is that when you're preparing for it, I mean, all the while you're doing the briefs, and then preparing for oral argument, the question is always burning on your mind, what could this panel be thinking? How could they possibly disagree with me, right, and when they first opened their mouth, that's that means you're going to get a clue as to where they're going. And if their mind is not right, where you are in the outline, then there's a little bit of a disconnect there. And that's information that you have to be able to use it right on the fly there. But to try to bridge that disconnect. So it can be it's extraordinarily helpful. It's it's the only, it's your last chance, and maybe your best chance to bridge a disconnect between you and the panel. Yeah. All right. So Jane, we brought you on to talk about Chad GPT and preparing for oral argument. Let's back up. And let me ask you what first brought you to an interest in chat GPT. And let me just for my for the audience sake, you wrote a post at appellate advocacy blog, the title of the post, it was in last month in March 2013. It's called can chat GPT prepare me for oral argument. And then we'll describe a little bit later about how you your approach there and how you the questions and prompts you gave chat GPT in the the case that you were asking it to give you prompts about but what what brought you to the idea of doing this experiment using chat GPT to help assist you with an oral argument.
Jayne Woods 12:27
So obviously been hearing a lot about it just like everybody else. And you know, I want to know, how is it gonna be helpful, because if it's this truly life changing world changing thing, you know, I want to use it. And so I started trying to think, Okay, well, everybody talks about writing and how it's going to affect writing and the legal writing community, you know, do we fear it? Do we worry about plagiarism? What is this going to do? And so I started thinking, well, if it's really as powerful, as everybody says, then surely it can do more than just right. So what else could it do? And I was in the process of making lesson plans for my students for oral argument and talking about how we're going to prepare for it. And based on how we tell students to prepare, you know, drafting outlines, thinking of questions and writing summaries of cases. I was like, Well, those are things it probably can do. And so I just decided to test it.
Tim Kowal 13:10
Yeah. So you were testing it to create an outline of questions or an outline that you might be able to follow during the oral argument. Right? Both actually. Yeah, both. And let's discuss what you found to be good uses of chat. GBT, your blog post outlines how you found that chat, GBT could create a good first draft of an outline. Can you tell us a little bit more about the type of outline that have created for you? What was good about it? And what might have been lacking about it?
Jayne Woods 13:35
Yeah, sure. It's seems to be very good at formulaic writing, if you ask it to write like a five paragraph essay, it can nail that. And so I think outlines are very much in its wheelhouse. And so if you tell it, you know, kind of some basic facts of your case and what you would like it to do, and, you know, specify you want it for an oral argument outline, it started out with an introduction, it had a head grabbing sort of liner there, that one liner to catch everybody's attention at the beginning. And then it laid out well, these are the main legal issues in this case that you've presented me. So make sure you talk about this and make sure you talk about this and talk about this. And then it had a conclusion, everything that I probably would generate myself if I were going to create an outline.
Tim Kowal 14:12
And what about what was lacking in the outline? Was there anything about the outline that you thought, well, this could have been done better? I need to tweak this? Yeah,
Jayne Woods 14:19
I mean, it's hard because of, you know, I didn't get to enter a whole lot of facts into the prompt. So the more facts you give it, the more detailed questions and outlines it can prepare. And so what I gave, it was a pretty broad brushstroke of what the problem was about. And so the questions and the outline were pretty general in that sense. But, you know, I knew I would need to fill in the details as the lawyer of course, if I prompted it further and told it add this in. I'm sure it would have.
Tim Kowal 14:44
Yeah, yeah, I'll admit to not not having used chat GPT specifically, a lot. I have used co counsel, which I understand is based on the engine of Chet GPT, but it is made for lawyers, and one thing you can do is you can upload documents, you can upload your briefs and other cases. Do It and and have it give you an analysis based on the information that you've uploaded. So I think that could probably help supercharge that process. And what about the next step that you talked about was talking about the cases that were relevant to your argument that you talked about chat GPT summaries that it provided of the cases and you know, some successes and to chat GPT has credit and some not so successes in the debit column. So can you describe what was good and bad about Chachi PTS ability to create case summaries? Yeah, so
Jayne Woods 15:28
the case summaries that it created that were actually accurate, were really great, because they were short, they got right to the point, they narrowed in on the reasoning of highly relevant facts. And you know, if I could distill a case down to a single paragraph, that's probably what I would have written. And that's what it did. But it did it way faster than I could. The one downside is that one of the cases that I asked it to look at tends to be an outlier in the area of law. And it actually got it completely wrong, like the exact opposite of what the case held. But I think my understanding of how tat GPT works, I think that that actually makes sense, because it is based on kind of a predictive text model. And so it's looking for the most likely outcome of words in the most likely order. And in that particular context, the party in the position of the appellant in that case, typically wins. And they typically win for the reason that they actually lost in that case. So when it predicted the exact opposite. It made sense, because it predicted it in line with the rest of the cases.
Tim Kowal 16:27
That's interesting. That reminds me of again, when we had a discussion with Pablo Redondo that one of the cofounders of case text, he mentioned that there is a problem with AI a well known problem that you it's something to do with the problem of negation is that when you put in a prompt, you know, find me a case that says X, you'll get a whole bunch of cases that say x results to say x and a whole bunch of results to say not x, it's directly on point, just the opposite of the point. And it's very hard for AI to get that quite right. Yeah. So yeah, so that does suggest that you can get good summaries of cases. But how do you make that information valuable, while also knowing that some of those results might just be 180 degrees off?
Jayne Woods 17:05
Well, I mean, as you know, as
Jeff Lewis 17:09
you said, you ensure that you have a decent lawyer, experienced lawyer reviewing the computer generated results. Sam, come on with the softball question.
Jayne Woods 17:19
Yeah, that was actually going to be my response is that, you know, as an appellate attorney, you know that you've already been familiar with all these cases, when you're reading the briefs and preparing for argument yourself anyway. And really, my thought and preparing them as summaries wasn't to rely on them so much as to refresh my memory. If I were to go argue the case, just to keep them all straight in my head, but that's how I recognize the one was wrong, although it's so confident in the way it presented that I really questioned myself. And I had to go back and look at the case again.
Jeff Lewis 17:46
And yeah, yeah, interesting. Well, yeah, really careful with your, the way you formulate the prompts in the chat. GBT. I had an experience, I was trying to write a letter involving a copyright matter. And I typed in the prompt, write me a cease and desist response to a cease and desist letter regarding a copyright claim. And the response I got back was nope, chat. GBT is not gonna replace lawyer won't do that. But if you narrow the prompt, instead of say, write me a letter, say, Does this particular legal doctrine apply in the area of copyright law? It'll give you a nice thing that you can cut and paste and put into a letter. It's just you have to be super careful in terms of how you frame your question to chat, GBT.
Tim Kowal 18:25
I didn't realize they had done that. So is that kind of like an ethics directive that they programmed into it? No, we're not going to replace humans.
Jeff Lewis 18:33
Basically, we're not going to engage in the unauthorized practice of law. We're not gonna you know, we're not that other company. I can't remember the name of it. That was gonna have a one a $1 million reward for any lawyer would walk. Oh, yeah. earpiece.
Tim Kowal 18:47
They're not that. Yeah. Well, that's what I wanted. Yeah. If Chad GPT This is a tangent, but a chat GPT defames somebody or does something unethical? Who's liable?
Jayne Woods 18:58
Great question. We actually were talking about that today, because you had a thing on chat GPT. And some of the concerns that are coming up and one of them was about liability, or things like that. We talked about
Jeff Lewis 19:07
because it dropped discovery. About You know, sometimes, Tim, you and I we do malicious prosecution matters or legal malpractice matters where the legal research of an attorney is put into question. I wonder if chat GBT saves inquiries and outputs whether or not that could be the subject of discovery to legal malpractice or mouth a malicious prosecution case regarding that lawyer's subjective belief in the validity of his claims and adherence to the standard of care.
Tim Kowal 19:33
Oh, great question. So yeah, is the output chat GPT or CO counsel work product protected under the privilege?
Jayne Woods 19:41
I'm not gonna touch that when I'm not a PR professor.
Jeff Lewis 19:44
Yeah, I'm gonna say Yeah, but you know, if you sue, you know, certain cases, when you see a malpractice, prosecution, you waive that protection, or if you have sought advice of counsel, so yeah, stay tuned. I think the chat GBT queries and results the extent there's saved anywhere might be fertile ground for discovering the future.
Tim Kowal 20:03
Yeah, well that yeah, they are saved in CO counsel, all your previous questions and results are saved. So I wonder if it's a good practice to blow them out of there, if they do prove to be discoverable. I had one other question for you before we leave this topic of using AI to create case summaries, Jane. So back to your point about one of these cases, one of the Case Summaries was completely accurate except 180 degrees off, does that have anything to do with legal opinions being written in too subtle manner? Maybe the opinion itself wasn't clear enough. Is this a limitation unique to AI chat? GPT? Or could a human junior associate have made such an error?
Jayne Woods 20:40
Well, with this particular case, I would question whether you should retain a junior associate if they made that same mistake. It was quite clear in the opinion which way it was supposed to go. GPT just really got it wrong.
Tim Kowal 20:53
Got it. Okay. Okay. That's good to know. All right. And I thought this was one of the more interesting things about your piece, you asked chat GPT to generate some possible questions that the appellate panel might ask you during oral argument. Can you tell us a little bit more about that?
Jayne Woods 21:06
Sure. Yeah. I mean, that's one of the things that we tell our students to do all the time. And that's what appellate attorneys are trying to do in preparation was think, what is the court gonna ask me? So I just asked shad GPT. I said, here's the case. This is basically the facts of the case. What do you think an appellate court would ask? And it generated a list of 10 questions. And I was like, Well, those are interesting. Like, can you give me more? And I just kept asking it, can I have more? Can I have more and it ended up with I think, 30 something before the program actually froze, and I couldn't get any more after that.
Tim Kowal 21:35
Oh, really doesn't get fed up after a while. Yeah, I
Jayne Woods 21:38
don't know. I think it was one of those times when it was a lot of users going on or whatever.
Tim Kowal 21:41
Yeah. And you say in your article that you found that while chat. This is a quote, while chat, GBT is very adept at answering questions. It's not terribly inquisitive. But then later on, you indicated that it could be valuable practice in building confidence answering answering questions about the case. Can you talk a little bit more about the process you use? You had a very interesting way of going about it, you actually You ask questions, answered questions, and there was a back and forth you kind of engaged in a mock dialog with a with Chad GPT.
Jayne Woods 22:09
Yeah, I tried so hard to get it to actually go with the back and forth. And I could not get the free version to do it. Now I just actually upgraded right before we started talking. And I got the new version, the GPT, four, eight will do the engaged back and forth with you, which is super cool. But under that free version, the one that I did for my blog post, and that one, I had asked it to roleplay because I heard that's the best way to prompt it to do things like that. And every time I asked it just spit out a transcript for me of other people possibly role playing court and counsel. And so I was like, Well, this is great. I don't want to read an oral argument. I want to practice one. But it did at one point, when I asked it to directly ask me a question. I could get it to respond to my response. But it only did it like once or twice. And then after that, it would ask me a question. I would give it my answer. And it would say that's great. Thank
Tim Kowal 22:56
you. Yeah. Well, were the questions useful, where the incisive, you know, back to your quote, you said that it's good at answering questions, probably better at answering than asking questions. So talk a little bit more about your impressions on the kinds of questions that chat GPT asked.
Jayne Woods 23:11
Yeah, it's very socially awkward in the sense. It's like trying to have a conversation with somebody who answers every question you ask, but doesn't ask you any questions about yourself. And so it's kind of one of those things where just kind of dies if you don't ask anything else. And so I could not get it to engage with me in that way. Now, like I said, the new GPT four would engage with me more. But what's interesting about that is that it got really stuck on a procedural question, and did not get into any of the substance. And I was really wanting it to engage with me on substance, but it was just really hung up on that procedure.
Tim Kowal 23:41
Yeah, no, I think that's fascinating. So what's your takeaway? And in your view, is chat GPT a valuable tool for attorneys right now? Or is it not yet quite ready for primetime? Does it need more work? First,
Jayne Woods 23:52
I think that the two versions that I've tried the GPT for definitely is a lot cooler to interact with, as far as trying to do a roleplay with the court and prepare yourself that way. I'm not sure that either one of them is quite there on the legal reasoning yet, because it's not going to ask you those hard questions about your interpretation or your understanding of a case. It will ask you about cases generally. And so I think it's really good practice, certainly for one else who are probably not going to get those really intrusive questions about you know, what does this case mean? But I do think it might end up there at some point, you know, now that we know GPT, four can pass the bar exam by 90 percentile. Surely, it's getting close to the the reasoning we want. Yeah. I'm wondering,
Jeff Lewis 24:31
and what a great boon for solo attorneys who don't have somebody to bounce ideas off, you know, big firms, they could do Moots. They could do practice arguments, but solo attorneys. Wow, what a great opportunity to just get your wheels thinking in terms of possible questions.
Tim Kowal 24:48
Yeah, and even when you mentioned that, it's not terribly inquisitive, maybe doesn't ask the most probing questions, but sometimes, you know, like we talked about earlier, you're racking your brain trying to figure out what am I missing about this case, but The one subtle angle that I'm missing in your head is so far deep in those weeds, that maybe you're forgetting to train yourself to answer the more basic questions, and so maybe Chet GPT, or CO counsel, whatever it is AI product is training you to think about and to answer succinctly the the more basic questions about the case.
Jayne Woods 25:17
Yeah, for sure. And it definitely asked those kinds of questions. You know, it asked me like, explain how Rosenberger applies to this situation. And I think that's a very legitimate question that a court might ask
Tim Kowal 25:27
Yeah. Is there a learning curve to learning to use chat GPT, anything that practicing attorney needs to know before using chat? GPT? Effectively,
Jayne Woods 25:37
I think personally, the only information I would say is make sure that when you first start playing with it, you ask it things that you already know the answer to, so that you can kind of learn its limitations. Because if you ask the questions that you don't already know, the answer to you don't know if it's telling you true information or not. So that would be my only guidance. Other than that, I think it's really just playing with it and figuring out how to draft prompts in ways that really get you what you're wanting.
Tim Kowal 26:01
Yeah, I'm thinking again, to the meeting I was at this morning, where a lot of attorneys were just, their eyes got big at the idea of using chat JpT for their practice, should attorneys be afraid of using chat? GPT? What's a gateway drug for getting an attorney to try out? GPT?
Jayne Woods 26:16
That's a great question. You know, I personally don't think anybody should be afraid of it, I think that we should really learn about it. Because whether we want it here or not, it is here. And it is going to be a big part of our world. And so you might as well learn about it. Now, while it's still in its infancy, rather than later, when it actually, you know, could take over a job, possibly, I don't know, but I don't think that you should be scared of it. I think instead, just go play with it and ask it things, you might start by asking it to give you a bio of yourself. And that was really interesting to to see what it did for me. I'm a lot more accomplished than I thought I was.
Jeff Lewis 26:50
That's great. You know, Tim, I found that asking questions that you already know the answer to can help develop confidence in the product. And what I mean by that is not necessarily the legal research area. But suppose you're getting ready for oral argument, you know, the record cold, you know, what happened in this case, or you getting ready for trial, you know, these trial exhibits called you throw those exhibits up into the cloud, whether it's a co counsel product or something similar and say, find me all the emails that prove John Doe had malice, and it spits out a list with hyperlinks of all the right answers. And you know, because you're just getting ready for trial, you know, it's correct. So I think the best way to get somebody comfortable using this technology is right, when someone is very familiar with their own case, they have aI prove what they can do.
Tim Kowal 27:34
Yeah, I think that's a good idea, Jeff, and even when you mentioned, you know, what is all you asked a question, what is all the evidence that supports malice or whatever other element? That's key to your case? Maybe it spits out something that you didn't think of before? Maybe, you know, the core issues that the court decided that was really argued at the hearing, you covered all those got those all down cold in your brief, and you're ready for oral argument about it. But maybe there was one other thing that chat GBT picked up and you know, under the substantial evidence standard that could amount to an affirmance. And so you need to be able to pick it that one as well. Now, Jane, you mentioned earlier about using prompting to in chat GPT to help tone its answers. So giving when you give chat GPT a series of instructions, it'll continue refining and improving its response. So for example, if I want to know an answer to something about personal jurisdiction, say, I will want to prompt chat GPT that I want to know the answer based on what Ninth Circuit law will say. And then I want to know about specific jurisdiction rather than general jurisdiction. And then I might prompt it further and say, I want to know, we can do this yet, if it's capable of answering how a particular Ninth Circuit Judge might answer the question or what questions a particular jurists might ask an oral argument involving, let's say, a foreign national, rather than just a citizen, a resident of a different state in the United States. Do you have any thoughts or advice to attorneys or law students about using prompting or training to get chat GBT to produce better information?
Jayne Woods 28:57
Sure. I actually asked chat to PT about this, because I was trying to figure out what can I tell my students? And one thing I was really curious about was whether it operated better with boolean terms, if we did some sort of Boolean searching or Boolean language, and it very clearly told me no, use natural language. And it said to give as much information as possible.
Tim Kowal 29:17
Yeah, that's interesting. I've run some searches. And I forget to say, you know, under California law, and then the results will be great, except that it's, you know, all over the place. So I have to say, run this, run the result again, but give me the answer under California law, or you have to continue refining. So I think that's a huge advantage, because you get to not only do you get to help chat, GPT improve, but based on its response, you can see oh, you know, this wasn't quite what I expected. So let me give it a little bit more information, and it keeps getting better and better. All right. So someone has suggested actually, we're going to interview this person soon on the podcast that AI at some point in the future maybe even suggested, it's already here that AI will be able to draft entire judicial opinions. As such that in the future law clerks may be unnecessary. Are you similarly optimistic about AI as capabilities?
Jayne Woods 30:07
I don't know if I would call it optimistic given that I am still a law clerk. Next replace me. But I would be surprised if it could draft a legal opinion in that way. And maybe it will, maybe it will at some point. But as of now, from what I've seen, it's really good at informative writing. But check GPT at least does not give a whole lot of legal authority even when you prompt it to include legal authority, it might give you one case, and then of course, you have to go check and make sure that case is actually what it says it is. But it's not a really thorough in depth analysis, I would say it's more surfacey. And I think that judicial opinions tend to be a lot more in depth, of course, depending on the issue. And then you have to remember, too, that judicial opinions are not necessarily informative writing, sometimes they're persuasive as well, trying to get the other people on the panel to agree and trying to convince the general public that the answer is what the answer is. So
Tim Kowal 30:57
yeah. And then finally, do you have any opinions about the future of AI and chat GPT and the law and what sorts of things might be inevitable about chat GPT, or AI? Generally, what sorts of tasks will never replace a live human being lawyer?
Jayne Woods 31:15
Well, I think that probably our days of drafting complaints, and petitions are probably going to be gone pretty soon, because I can't imagine that anybody's going to have to do that on their own anymore. Even discovery sort of basic questions, those sorts of things. I imagine what we're really gonna be shifting to is not the drafting so much as the revision as attorneys, I think we're really going to be looking at it kind of as you know, partner would over a lower associate and just checking their work and seeing how it does. But I don't think it will replace us. I think part of the reason I'm just guessing here, but my guess is so why case text calls it co counsel is because they see a world where we're going to collaborate with AI as opposed to being replaced by it.
Tim Kowal 31:53
That is the language that they use. I like the way Pablo put it that we'll be able to redeploy our staff and our junior associates to doing other tasks than some of the grueling tasks that CO counsel can take over and do. But I was surprised a little bit when you mentioned about drafting complaints. And maybe you're right about that, in terms of you know, it can recite a chronology of the case and all the relevant facts, I guess it can recite, you know, what facts and evidence are relevant to a particular ultimate issue. But I thought in terms of that, can you just load up all the facts and tell chat, GBT or CO counsel draft me a complaint?
Jayne Woods 32:28
Well, so I actually tried that with my students with our problem. I hadn't draft three different versions of the complaint, because I asked it to do it. And every time it drafted something slightly different. And so then I had my students analyze the three versions of the complaint to see how it compared with the rules to see how it was persuasively. And I mean, all three of them, I think, you know, you could look at them and combine them and come out with a complaint that is satisfactory. Is it going to be amazing? Probably not. But is it going to do the job? Yep.
Tim Kowal 32:54
Yeah. Well, yeah, complaints are never bedtime reading in any event, they're to serve a purpose. Yeah, so I think I think we'll have to continue, you know, collectively thinking about the types of tasks that AI will be able to replace. Because yeah, I think we are entering into a new era here. Well, one other question. I know that there are I have been following, but I know there's some doom and gloom scenarios or some predictions that AI chat GPT will will turn in some hellscape. Somehow. I don't know if you've been hearing any of that. Is there anything to be concerned about with jet GPT? Other than what we've talked about? You know, we'll replace some of our jobs visit in danger. I guess maybe that's a it's probably a question for a different podcast, I guess. But any other parting thoughts about chat? GPT?
Jayne Woods 33:39
No, I don't think so. It's just I think it's really it's a cool idea. I think it's going to be the future of the law profession. I was talking with some other colleagues about how the railroad changed the legal profession. I think this is probably another one of those big things in the world. That's going to change the direction. Yeah,
Jeff Lewis 33:55
yeah. Big time. You know, I don't have any more questions. But before we conclude, there's one a couple of time we tidbit I wanted to share with you, Tim, that maybe Jay might find interesting as well, before we conclude our interview. I did last week a meeting of the roundtable it was the LA County bars appellate section had an interview with a bunch of Second District research attorneys about their preferences and quirks regarding appellate race, and I thought you might find this one interesting, Tim, you ever submit appellate brief that's fully hyperlinked with citations to the record and citation to Westlaw cases. Right. And you've done that?
Tim Kowal 34:27
Yeah, I've seen those. It seems like it would be immensely helpful. Yeah, my paralegal
Jeff Lewis 34:31
Jason, he whips those together. They look fantastic. My jaw hit the ground when I heard not one, not two, but every research attorney during this MC Lee presentation saying, Yeah, we don't click on those links from a tech slash security point of view. They don't click on those links, meaning you send them the brief. They go to Westlaw look up the case manually. They don't take the risk of clicking on a malicious link, which I suppose is a good thing. But yeah, so I thought you'd be intrigued to hear that tidbit. And then the second
Tim Kowal 34:59
I heard The exact same thing at a conference I was at late last year. And remember Jody and Todd from the Texas appellate law podcast told us about a couple of years ago, early in the pandemic, the Texas judiciary got plagued with some rants, I got hacked. So there are real security risks. They will these guys even go after the judiciary, you know, during the pandemic, you know, these ransomware people, you know, some of them just really give the hacker industry a bad name.
Jeff Lewis 35:26
Yeah, we need to get people from clear brief. I've never used that product, we get people from clear brief on this podcast explain that gap between the product they offer in terms of hyperlinking and justices or law clerks who don't want to click on the link? I'd be interested to hear what to say. So that was one issue. And then the second issue, can you put your professor hat on for a second? Okay, you ready for this? Everybody knows the superior way to cite a complicated ruling is to use the parenthetical cleaned up, right to remove unnecessary periods and commas etc, unnecessary citation. Is this
Tim Kowal 35:56
a leading objection away?
Jeff Lewis 35:59
When asked what these research attorneys were asked, do they have a preference? Should we use this? Should we not use it? What do they think? Does it help them? Do you know what they said? What is cleaned up? They had no idea when I had to explain all of them. So anyway, none of them had heard of it. None of them had heard of it. Wow. So I'm gonna say it's not a bad thing to you that I suppose it's not offending anybody. Whenever I use it. I always do a footnote explaining exactly what cleaned up is, and you know what it's about. But anyway, I thought you would be amused to hear that second one.
Tim Kowal 36:32
What a Jane in the Missouri Court of Appeals do they use cleaned up?
Jayne Woods 36:36
I have seen it a couple times. It's not something I would teach my one else because I think that it's probably dangerous in the hands of people who don't know exactly what it means. But yeah, I have seen it a few briefs. I don't know if I have a general sense for how people feel about it, though. I mean, it makes sense to me, honestly.
Jeff Lewis 36:51
Yeah. Yeah. You know, I'm a purist when it comes to like reading a brief and try to avoid any speed bumps that can affect the eyeballs, you know, reading across the page. And I think it's fantastic. Tim, if I could speak for Tim, I know he loves it. When I do. This seems to feel like it's a great thing for judges to do. But that lawyer should never do
Jayne Woods 37:07
it. I will say as a law clerk, it would probably raise my suspicions immediately. And I would go check the citation.
Jeff Lewis 37:13
But then when you check that citation, you see Oh, yes, perfectly cited. I now have enhanced confidence in this attorney. He's possibly his reputation has increased.
Tim Kowal 37:26
All right. Well, yeah, I'm surprised. Surprised to say, Jeff, you fairly and accurately characterize my view on it.
Jeff Lewis 37:31
At first, yeah, you're wrong, but I'm fair. All right. Well, I think that wraps up this episode. Again, we want to thank our sponsor, Keith tech, the makers of the co-counsel product for sponsoring our podcast each week, we include links to our cases discuss that we discussed using the case tech link, and listen to our podcasts can find a 25% discount available to them to sign up the case. tech.com/help
Tim Kowal 37:54
And if you have suggestions for future episodes, either guests or topics that we should have on the podcast, please email us at info at cow podcast.com. We'll even take suggestions that are provided by chat GPT and in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. And thanks again to our guests, Jane woods for being with us today. Thank you. Thank you, Jane.
Announcer 38:18
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
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Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Here are some recent news items of appellate interest:
🤖 It's official: AI has passed the Uniform Bar Exam. GPT-4, the upgraded AI program released earlier this week by Microsoft-backed OpenAI, scored in the 90th percentile of actual test takers. (Look for two new California Appellate Law Podcast episodes on ChatGPT and AI in the law.) (Via Appellate Advocacy Blog.)
🤔The Cal. Supreme Court sometimes depublishes opinions it doesn’t like. It recently depublished People v. Velez (interpreting the U.S. Supreme Court’s Second Amendment decision in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) 597 U.S. _ as making “clearly unconstitutional” part of California’s statutory scheme for issuing concealed-carry firearms) and People v. Calvary Chapel San Jose (an opinion reversing contempt orders imposed for a church’s noncompliance with state and county Covid regulations). David Ettinger posits the Supreme Court might be “indirectly criticizing U.S. Supreme Court decisions by throwing some shade.”
💡Just won an arbitration? Consider waiting a bit to file your petition to confirm the arbitration award. There might be a strategic advantage to eating up your opponent’s 100-day period to file a petition to vacate. But note that the viability of that strategy is currently on review in the state Supreme Court in Law Finance Group, LLC v. Key, reviewing this issue: Does equitable tolling apply to the 100-day deadline in Code of Civil Procedure section 1288.2 to serve and file a request to vacate an arbitration award in response to a petition to confirm the award? The court granted review in November 2021. (Via At the Lectern.)
📊The Federal Judiciary’s 2022 Annual Report and Statistics report that the 9th Circuit’s median time from appeal to opinion is 13.2 months. (Slowest: 1st Cir. at 14 months. Fastest: 8th Cir. at 4.6 months.) 9th Circuit civil appeal reversal rate: 15% (Via Ben Shatz’s SCAN.)
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Everyone knows two things about the deadline to appeal:
But the 60-day rule is only partly correct. The posttrial timing can be slippery. And there are more complexities besides.
In this 5-minute clip, Jeff Lewis and I discuss how to calculate the deadline to appeal. We also discuss that while the deadline to file an appeal is jurisdictional, and thus not subject to any equitable or discretionary exceptions, there are in fact at least five official exceptions to the jurisdictional deadline to appeal. (As well as unofficial exception that the court may simply ignore the fact that an appeal is untimely.)
The five official exceptions are:
Watch the clip here.
This is a clip from episode 78 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.
Do not forget to have the jury make all the required findings. Once the jury is discharged, as happened in ***************People v. Jones (D1d5 Apr. 4, 2023) No. A163558, the court loses control of the jury, and so the jury cannot be reconvened.
The prosecutor in Jones had charged an enhancement based on a prior serious felony. The jury returned a guilty verdict, but did not make a finding that the defendant had committed a prior serious felony before the trial judge thanked and released the jurors from their duties. The judge specifically told the jurors that, while they previously had not been able to talk about the case with anyone, “that’s over. Now, if you want to talk about the case, you can.”
Some minutes later, the prosecutor remembered the prior serious conviction needed to be found. So the judge sent the bailiff to track down the jurors. The bailiff did so, but it took about four hours.
A jury that has been released may be reconvened, but only if the jury has remained in the court’s control.
The court did note that the jurors had not left the courthouse. But the record was silent whether the jurors had abided by the admonitions (from which they had been released). “Given such a paucity of evidence, we cannot conclude that the jury remained within the court's control.”
The operative statute in Jones is Penal Code section 1164. There does not appear to be an analogous civil statute, but the rule is likely to be the same or similar. So in your next jury trial, have a checklist of all the findings the jury needs to make, and do not let the judge discharge the jury until its work is done.
A good practice is to have thorough verdict forms prepared before beginning trial.
Thanks to Prof. Shaun Martin for writing about this case, including this observation about the remand:
“[A]ll this means is that a new jury's going to be empaneled to decide whether the defendant had previously been convicted. Which I'm certain he has been. So it's going to be the quickest retrial in the history of California jurisprudence. As well as perhaps the most boring jury service ever.”
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.