Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language ultimately is about being a communicator, not a technician.

(Example: I asked Lindsey if the example “the reasons are as follows” is technically incorrect as containing a subject-verb disagreement. Yes, says Lindsey, but “as follow” just sounds too weird.)

Then we continue our experiment in comparing and contrasting state procedural rules. Here is what we gleaned about the differences between California and Florida:

👉 In FL, the Supreme Court makes the rules of civil procedure, unlike CA where that is the province of the legislature.

👉 Unlike CA, in FL the rules allow parties to create an electronic recording of proceedings for purposes of an appellate record.

👉 Both CA and FL have no horizontal stare decisis: district appellate courts may freely disagree with one another.

👉 But unlike CA, a FL District Court of Appeal cannot ignore its own past decisions: to do that, it has to take the matter up en banc (like in the federal system).

👉 Unlike CA, in FL all the appellate opinions are published.

👉 But unlike CA, in FL there is no right to a reasoned opinion, meaning most affirmance are summary affirmances (how frustrating!!).

👉 Unlike CA, in FL there is no right to oral argument on appeal.

👉 Like CA, FL is beginning to experiment with “focus orders,” identifying issues counsel should be prepared to discuss at oral argument.

👉 Like CA, FL follows the doctrine on appeal that a judgment will be affirmed if valid for any reason, even if the trial court’s stated reasons were deficient or wrong.

👉 But FL has a much more colorful name for this: the Tipsy Coachman doctrine!

Lindsey Lawton’s biography and LinkedIn profile.

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

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

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

Other items discussed in the episode:

Ep. 75: Comparing CA and IL Courts
Ep. 76: John Nielsen Compares CA and UT Courts
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Transcript:

Lindsey Lawton 0:01
Do you have permission to use the word that I don't really know where this advice to strike the word of that originated from?

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

Jeff Lewis 0:24
Hello, everyone. I'm 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 attorney some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague. Yeah,

Jeff Lewis 0:41
if it's not helpful recommend it to your opposing counsel. And a quick thank you to our podcast sponsor casetext. Casetext is a legal research tool that harnesses AI and a lightning fast interface. To help lawyers find case authority fast. I've been a subscriber since 2019 Highly endorse their service and listeners of our podcasts will receive a 25% lifetime discount available to them if they sign up at casetext.com/calp That's case text.com/cal.

Tim Kowal 1:05
All right, Jeff. And today we're going to continue our tour through the country and talking with other appellate practitioners in other states and we can compare is all the soapbox issues that we talked about grousing about California procedure? Maybe California is the same or better or worse than other states. So today, we're pleased to invite appellate attorney Lindsey Lawton to the show. Lindsay is an appellate attorney in Florida and until late 2020. She was a career staff attorney to justice Alan Lawson of the Florida Supreme Court before that Lindsay was a career staff attorney to justice Stephanie Ray and a senior law clerk to judge Joseph Lewis Jr. of Florida's First District Court of Appeal. Lindsay spent nearly four years at the Florida Supreme Court and nearly 10 years at the District Court. During that time, she evaluated hundreds of appeals and extraordinary writ petitions, including researching writing and making recommendations to her judges and justices. In late 2021. Lindsay presented for the Florida bar's appellate practice section on appellate brief writing, which will be apropos as we discussed legal writing during today's podcast. Welcome to the show, Lindsay. Thanks for being here.

Lindsey Lawton 2:14
Thank you, Tim, and Jeff, for having me.

Tim Kowal 2:17
Well, let's start off by asking you to tell us a little bit more about your practice. Is there anything I didn't cover in my introduction that we should know?

Lindsey Lawton 2:24
Yes, well, I always get confused about how to explain what I am. On the one hand, I am a solo practitioner, because I have my own law practice called Lawton law, where it's just me. But I actually also work closely with another law firm to on many of my cases, in an of counsel role in that law firm is the Bradley law firm out of Orlando. And pretty much everything I do is appeals for a little bit of trial support.

Tim Kowal 2:47
All right, what do you like best about your practice, you moved from working in the Court of Appeal system to being a private practitioner, Jeff, and I moved from working in litigation to moving up into appellate work. And I think that sometimes we had to remove some of the harder adversarial edges from our practice. Maybe you had to get more adversarial in the way you write an advocate.

Jeff Lewis 3:08
We had to remove a lot of adverbs from our vocabulary, which was from the trial court up to the Court of Appeal.

Lindsey Lawton 3:13
Always a good idea.

Tim Kowal 3:14
Yeah. Tell us about that transition from a career research attorney in the Court of Appeal to private practitioner.

Lindsey Lawton 3:20
Sure. So when I left the court system, I was aware of the concern that a lot of people have about whether they can transition from being in this neutral role as a law clerk helping the judges to an advocate. So I talked to a few of my friends who had gone before me from making that transition to get some pointers. One of them recommended that I read Brian Garner's book, The Winning brief. So that was the first thing I read, to help myself with the transition. And I think it helped out quite a bit. You know, it didn't really feel like that hard of a transition. And I think one reason is, I think the better briefs do sound more like like the courts writing than what some people might think. They don't have all those adverbs. And like just sort of bombastic language. Of course, you do want to punch it up, just maybe one notch. And so my colleague, Brian, Mike Brownlee has helped me punch mine up just a little bit. So it's always good to have another set of eyes on your writing. But for the most part, I think the courts like it when you write in this more objective sounding way. So I think my background has served me well there.

Tim Kowal 4:20
Yeah. Let me ask you this. As you're talking, I got to thinking that sometimes when I write for the Court of Appeal, versus when I write for the trial court, when I write for the trial court, I feel like I have to You said to kick it up one notch from judicial writing. When I'm writing in the trial court, I feel like I have to kick it up two notches, because sometimes opposing counsel has got it up, you know, turned to 11. And sometimes they think, Oh, well, they're just going to lose the judge. But sometimes the judges go for their maybe they're like a ruling based on Well, this party had more adverbs. They obviously feel much more strongly about their argument than you do, Mr. Colwell. So they must be right. Is there any merit to that do trial judges do you think maybe because they're pressed for time they have to have more their calendar that they they will just look to who has the loudest brief, maybe put a thumb on the scale that in that way, even imperceptibly without them knowing they're doing that. I wonder if they do that sometimes?

Lindsey Lawton 5:10
I don't know. I don't think there's any way to know, you know, I just in I don't usually appear in the trial courts, but even in the appellate court, sometimes my opposing counsel will have it taken up a couple of notches on the front, or the just being loud front. And I just hope that what I've heard from judges is true that they don't really respond well to that.

Tim Kowal 5:29
Yeah. Well, given your long background in the Florida State appellate system, I think this almost goes without saying, but I'll ask anyway. Would you rather be in state court or in the federal court, the 11th circuit in Florida?

Lindsey Lawton 5:41
Well, you predicted it, I would rather be in state court. I think my background is in state court. But with that said, I have had a few federal appeals already. And I'm learning the ropes over there and doing whatever I've got to do to learn what I need for each case. So yeah, it's just you know, less familiar, but there are a lot of overlap and a lot of similarities to

Tim Kowal 6:02
Yeah, we're going to be talking about differences between California and Florida state rules of civil procedure and appellate procedure a little bit later on. Are there any differences that you discover between state law and 11th circuit's procedure that can tend to trip up practitioners? I know there are differences. Sure. What about Would you rather be the appellant or the respondent? Or is it the appellee in Florida system

Lindsey Lawton 6:26
in Florida is the Epperly when you're talking about the appellant versus the appellee. Of course, we also have petitioners versus respondents. But I would definitely I'm pausing, because I said definitely. I would say it rather, editor. Yes, I think I'd rather be I definitely would rather be the APA li or the respondent in one sense, and that is statistically the APA, Li and the respondent are the most likely to win. And we all like to win. But being the appellant is more of a challenge. And you're really creating the product from the ground up a lot more. And so it can be more interesting.

Tim Kowal 6:59
We sometimes ask our guests to tell us what is unique about their legal practice. But with you, Lindsay, I think I know the answer. Because after reading your bio and talking with you offline, I know you to be a dedicated amateur of language and I give amateur at the classical meaning a person who lovingly pursues a study not as just a mere means of trade but as a devout disciple. And in your bio, you say this about your relationship with language. This is Lindsay Lawton, I enjoy language, all language written, spoken, sung and signed, I mean everything about language from delightful nuances and the meanings of words to the beauty of different dialects. And the connection between linguistics and culture, I'm sometimes mistaken for the grammar police, open parenthesis only because I make a hobby of handing out helpful tips, close parenthesis, that goes on a bit, tell us more about why you're so enamored of language, and how that makes your practice unique.

Lindsey Lawton 7:54
I don't know why I'm so enamored of language, except that I would just compare it to, you know, the reason that I like ice cream and chocolate, it's just, you know, it tastes good. I enjoy language is just natural to me, you know, and I always enjoyed reading as a kid, I had great English teachers in high school and went on to become an English major, probably because of that. I also was a Spanish major. So that's part of the, you know, it's not just that I love the English language, or the grammar, I love, linguistics and language. And so it's just natural to me, and how that makes me and my practice unique. I guess I'm just very I have the grammar rules have always stuck in my brain. And so for the most part, my writing is going to be very polished from a medical perspective. And I'm going to enjoy the process of it, which I believe translates into a good product and a good, something enjoyable to read.

Jeff Lewis 8:49
And California, it's about 70 to 90% of all appeals go nowhere near whether it's a de novo review from a motion or substantial evidence review from trial. Yes, I'm similar stats in Florida in terms of the prospects of an appeal.

Lindsey Lawton 9:02
Yes, it's very similar. I know, there's one appellate court that I've been to a lot of CLE is at where the court provides it statistics. And I think it's somewhere around like 85% of the cases get

Tim Kowal 9:13
affirmed. Wow. Oh, that's even higher than in California. Yeah.

Lindsey Lawton 9:17
Yeah. And that's just that figures is pulled out of, you know, one year so it can vary, but I think it's pretty close. I haven't seen the the number go down as low as 70.

Jeff Lewis 9:26
Lindsay, you and Tim are super active on LinkedIn, I get on there once a week to read and you two are really active. How do you find the time to write and to spend time doing not just a post of your cat but really substantive helpful advice on LinkedIn?

Lindsey Lawton 9:42
Well, I have kind of a topic that I post about, and it's a topic that I'm very familiar with. As you both know, it's typically I post little grammar tips. And so the one way that I find the time is that I'm writing about something that I already know, and don't typically have to go and do any research to write and My post I keep very short, I kind of keep in mind that LinkedIn, even though it's professional, it's social media. So I kind of have my social media persona on there, where I'm just sort of speaking off the cuff about a topic. I know, pretty briefly, it still can take a lot of time, though, because especially when you get into discussions with people underneath your posts or underneath their posts, so you do have to be careful not to let it suck you in and use all your time as social media tends to do.

Jeff Lewis 10:27
She's looking at you, Tim, in terms of all your comments, she's looking right at you

Lindsey Lawton 10:31
know, I appreciate all the comments keep on going. But I go through phases where I'm posting more or something else depending on what's going on. Interesting. Because I usually don't like sit back and write spend a bunch of time writing the original post.

Tim Kowal 10:43
That's right. Yeah. When you write something that you know about, and especially if it's something that you love, then it makes it easier and more fun and enjoyable to do. Do you ever feel self conscious? Lindsay writing grammar tips? Do you find yourself when you're writing the grammar tips that Oh, my God, I hope I don't have a subject verb disagreement in this post somewhere and all the my audience of grammar nerds are going to pounce on me.

Lindsey Lawton 11:06
Definitely. It's not uncommon that there is a mistake that I find after I hit post. Sometimes people pointed out to me, and sometimes I catch it before anyone points it out. But it's a little tricky, because the algorithm experts on LinkedIn say you're not supposed to edit for a certain amount of time if you want your post to have any reach. So I didn't know about that one. Yeah, sometimes I sit there, let the mistake be there. But yeah, people understand that it's just a mistake and not reflective of my knowledge of grammar.

Tim Kowal 11:37
Yeah. Now, can you share with us maybe one or two of your grammar tips, maybe ones that you've shared on LinkedIn, or ones that you've not shared? Maybe some that you feel? Are the top grammar tips, or the top faux pas that attorneys make regularly? Something that you could share with our audience today?

Lindsey Lawton 11:55
Yes, yeah, I have two favorites, I guess. The first is I'm giving you some permission. And the second is, I'm telling you something not to do. So the permission is you have permission to use the word that a lot of people want to strike the word that in writing as much as possible. I don't really know where this advice to strike the word of that originated from, I can tell you that in all of my education, like in writing, as an English major, no professor ever told me to strike the word that and it was after I became a lawyer of a fellow like law student was editing my work one day, and she wanted to take out the word that and I had never heard that before. Since then, I have seen that it's kind of this common editing approach. But a lot of times the word that is important to clear meaning of your sentence. And so I would say err on the side of keeping the word that in, don't take it out unless you have some good reason. Other than that, someone told you the word that is excessive. If it sounds natural, keep it in. The second one is lawyers tend to misuse the phrase as such. So a lot of times people will use as such to be a synonym, therefore or thus. But it's really not as such as a phrase with a pronoun in it, the pronoun is the word such. And such has to refer back to a noun that you already said in the sentence. It is not just a synonym for this and therefore, so be careful with that one.

Tim Kowal 13:17
Interesting, I hadn't thought about it. I don't like that phrase. So I just I stopped using it a while back, you made me think of another phrase that we use almost unthinkingly that is a verb. And so as such, it has to agree in view, whether it's singular or plural with the the noun that it's referring to. So when he ends up saying The reasons are as follows reasons is plural follows is a singular. So you should say the reasons are as follow. Although that sounds really weird to me. And that violates my first rule of grammar, which is if it sounds stupid, it's not English. So I'm left with just leaving all these disagreeing subject verb clauses in there using as follows When it refers to a plural noun.

Lindsey Lawton 14:02
It's funny, you bring that up, because I have the same thought as you on that, at some point, I started changing as follows To as follow. And then someone told me I was wrong. And I don't know who's right. But I switched back, I always just say as follows. And I just take the as follows as referring to this big chunk of language, and not as to the individual reasons.

Tim Kowal 14:21
Yeah, you can almost hyphenate as follows. It's become a term of art. Yeah. list starts now. That's basically what it means now. Okay, well, let's get to business and talk about some comparisons between Florida Rules of Civil Procedure and California Rules of Civil Procedure. We've talked with guests from Illinois and Utah. And, you know, Lindsey, you're really the one that kind of kicked this off in my mind. Is this being an interesting comparison to make when you told me that in Florida, the appellant doesn't have a right to a reasoned opinion on an affirmance and I thought, well, by God, that's awful. You poor Floridian appellants who don't get a reasoned opinion just a summary affirmed. And I thought gosh ought to take a break from my soapbox and give the rules of appellate procedure writers in California a little bit of an easier time because at least we get a reasoned opinion in all of our references. So I wanted to ask you some other questions and see where things come down in California versus Florida. And one issue that I like to explore is the question of who sets the rules of civil procedure? The court rules in Florida? Is it the legislature or is it the Supreme Court? Or is it some mix of both?

Lindsey Lawton 15:33
It is the Supreme Court? How is it in California,

Tim Kowal 15:36
we have a statute Code of Civil Procedures is set by the legislature. We also have the rules of court, which are set by the Judicial Council, which is under the Supreme Court, but they may not conflict with the Code of Civil Procedure. If there's any statute on point, the rules of court may only elaborate but not contradict.

Jeff Lewis 15:55
So it's the state legislature that tells us we have to do a meet confer before we file the demurrer or all those other procedural rules and not the courts. It's the Yeah, it's the state.

Lindsey Lawton 16:06
Wow. Yeah, I was really surprised to see that.

Tim Kowal 16:09
Well, and that's how it works in Utah as well. We talked with John Neilson, about that. That turned into another question. The biggest practical difference that I know about that may be a result of the legislature versus the Supreme Court, deciding the rules of civil procedure are may be answered when I asked you this next question, are court reporters required is a reporter's transcript required for an appeal? Do you have to have a court reporter at the proceeding taking down a simultaneous transcript? Or can in Florida Can you have electronic recordings of a proceeding that can be transcribed later to be used as the appellate record?

Lindsey Lawton 16:48
You can have electronic recordings? I say that because I think in certain proceedings, like some criminal proceedings, and maybe a few others, I don't want to name them out. In case I'm wrong. There is a digital recording that can be transcribed. But in just regular civil cases, the court doesn't provide a reporter or a digital recording, you have to arrange for your court reporter

Tim Kowal 17:12
in Florida, is there a crisis of a shortage of court reporters? Do you have that problem like we have in California, and in many other states?

Lindsey Lawton 17:20
I have not yet encountered it. But I've been hearing that it is affecting Florida to you.

Tim Kowal 17:25
So in what ways? Is it affecting Florida? Because if I understood, right, you don't normally have to have a court reporter present in order to make an appellate record because it's still digitally recorded?

Lindsey Lawton 17:36
Oh, well, in most cases, it's not digitally recorded. So in civil cases, you definitely have to arrange for your court reporters to come to the hearing, or the trial, to be clear. And I'm just saying that there are a few types of cases where there are digital recordings made. But I would never rely on that without checking with the court to make sure that's going to be the case, because it's very important to an appeal, to have a transcript, whether it's something transcribed from the digital recording, or from a live court reporter who was sitting there. And as far as like I say, I've heard I've been hearing just probably on LinkedIn and from others that there's generally a court reporter shortage in the country. I haven't talked to any attorneys who told me that they couldn't find a court reporter for their proceedings. But I did Google it to see if it's affecting Florida, and I just saw an article online saying that it is but I have no personal experience to know for sure.

Tim Kowal 18:25
Yeah. Yeah. The background in California is that there's a statute that provides for court reporters, it doesn't forbid at least doesn't expressly forbid the use of electronic recording. And so the legislature created a pilot program back in the 90s. But when it sunsetted, by that time, the court reporters Union had gotten wind of it and shut it down. The Judicial Council decided, well, the electronic recording is a good idea. It's important to for access to justice at everyone have access to a court reporter to a an appellate transcript. And so they provided for the use of electronic recordings, and then one of our District Court of Appeals decided that conflicts with the statute so that Judicial Council rule of court has to be struck down. And so that's where we have been for the last 25 years or close to 30 years. I think we're a verbatim court reporter transcript is the only game in town effectively for making an appellate record. And there have been numerous efforts by the legislature to create another route for using electronic record, but they have all fallen upon the same fate. Let me ask you about horizontal starry decisis. We've talked about that on the podcast, one of our District Court of Appeals can just thumb its nose and another District Court of Appeal does not have to follow the holdings even though they're directly on point. What say you in Florida, do you have horizontal starry decisis where all the district court of appeals are considered to be one court that to follow each other to be consistent?

Lindsey Lawton 19:53
We have six district courts of appeal that was recently changed in Florida we used to have five now as of January 1 of this year, we have six and they are all independent and can disagree with one another.

Tim Kowal 20:03
So Florida is similar to California in that regard. What about in California, the First District Court of Appeal could thumb its nose at its own opinion from yesterday morning and decide to go the complete opposite way on the same point of law. What about in Florida? Does the same District Court of Appeal have to follow its own prior holdings?

Lindsey Lawton 20:23
Eighth, so the District Courts of Appeal sit in three judge panels to make their decisions. And so a generally so a panel does have to follow the precedent of the of its own district. But the court can go on bunk and reverse its precedent.

Tim Kowal 20:39
Okay, so that's very much like the federal method of taking these things, taking the prior decisions on bonk and reverse it, if it wants to reverse itself. But a three judge panel cannot do it on its own. Correct. Okay. Interesting. So that makes Florida State appellate system very similar to the 11th circuit and the other I assume all federal circuits work a similar way. I only know the ninth circuit to be sure, but I assume the 11th circuit in the other circuits work similarly. Now I wanted to ask you about the other soapbox that I like to get on most often about unpublished opinions in California. The minority of our District Court of Appeal, opinions are published, the vast majority are in the subterranean body of law, unpublished opinions. They're all they're accessible on Westlaw or Lexus or on our podcast sponsor case text, the best of them all. They're all there. You can find them just as easily. They appear in searches just as often as published decisions do but they're unpublished you cannot cite them for any reason I was about to say cite to them. But I know Lindsey says you should not say cite to you cite a case. You cannot cite an unpublished opinion for any reason, technically, not even to the Supreme Court does show that there is a split of of decisions, even though that rule is flouted with regularity. How does it work in the Florida State system? Are there unpublished opinions?

Lindsey Lawton 21:57
There are not typically unpublished opinions of the Florida appellate courts, every opinion deciding a case in Florida gets published, you know, the orders that they may issue along the way aren't necessarily published. Occasionally, the court will issue an unpublished order that might have some substance. There's no prohibition on citing it. But I mean, as you say, it's not precedent, if it's unpublished. If you do cite it, you're not going to get in trouble. That sounds like you might get in trouble in California, you cite and unpublished opinion.

Tim Kowal 22:25
Yeah. Yeah. You can get in trouble there. Have we seen any cases of litigants getting sanction, Jeff?

Jeff Lewis 22:30
Not for that alone. But usually the same kind of litigant who cites an unpublished decision might I don't know, not have an appellate record, not make points in a headache, commit all sorts of other fatal appellate since?

Tim Kowal 22:43
Right? If you were to cite only unpublished opinions for an authority, then I think it'd be a very good chance that the court would deem that argument to have been forfeited. Yeah, yeah.

Lindsey Lawton 22:54
What if there's no appellate decision on point,

Jeff Lewis 22:56
then congratulations, you're about to make new law. But you can't cite unpublished

Tim Kowal 23:01
you still can't that's a good reason to look out for any unpublished opinions that raise issues or decide issues of law that haven't been taken up before. And any person doesn't have to be one of the parties, any person can make a request for publication in the Court of Appeal. So I've done that personally, a couple of times in the last year, I think two out of three of my requests have had been granted. So it can be frustrating to see issues that have never come up before and then they're disposed of in an unpublished decision. Right? Well, let's talk about written opinions. Now. Lindsay, we have in California a right to a written opinion on appeal. And I know Florida does not give litigants a right to reasoned opinion when it affirms. Can you tell us about that? How frustrating is that? How difficult are the conversations with your client? When you go back and say I'm sorry, we put up our best fight this really great argument that I thought would win over the court. The court didn't buy it, because and then you can't finish that sentence. The court felt about your slam dunk argument.

Lindsey Lawton 24:03
Yeah, it is frustrating as an advocate and it is certainly disheartening as an advocate and for the client, what we call it we call it a PCA stands for per curiam affirmed, which a PCA is a decision with no explanation affirming. And so you know, you hit the nail on the head, it's it can be frustrating for both the attorneys and the clients. Personally, I know that when the PCA is issued, that a lot of work went on behind the scenes to reach that result. But it still can be very unsatisfying for the clients. And it is even as an advocate, often I'm wondering, what was I want the explanation? What was there a second part of your question?

Tim Kowal 24:43
Yeah. Well, what about in cases where there are cases that I've argued that I've seen opinions on where there are technical defects and the appellants arguments say that there's a defect in the whether it's not an appealable order or was an untimely appeal or an issue was waived or forfeited by by the attorney, and yet the arguments are still good. And even if they're not so great, sometimes the panel just decides, you know what, I don't want to set up a malpractice trap for this poor attorney. So we're gonna go on, excuse me and say that despite this issue, even on the merits, we would have affirmed and then explain why they rejected the appellate arguments on the merits. You don't get that happening as often in Florida, you might be left with a client asking the attorney Well, do you think this is because you screwed up at the trial, and you didn't preserve the issue correctly? And then is that to create a malpractice problem? Wouldn't it be nicer for that reason to have more reasoned opinions on differences?

Lindsey Lawton 25:37
That's a good point. I think a lot of appeals probably come down to lack of preservation. But then I've seen written opinions that go into well, this was not preserved, like you say, we would affirm anyway. I don't know that the clients are looking at it from that perspective, blaming the attorneys. But yeah, that is one reason that it would be nice. So there could be some certainty there. But I guess that's something that would be fleshed out later in a malpractice suit if unfortunately, that happened.

Tim Kowal 26:01
Yeah. And Jeff, did I remember correctly that John Nielsen from Utah told us that they often do not have reasoned opinions on affirmance? Is that many of them? That's right, I

Jeff Lewis 26:10
think he did say that.

Tim Kowal 26:11
Okay. Let's talk about some briefing Follies. Jeff. You know, Jeff, and I were just talking a moment ago about how in California, there are a lot of ways that you can lose arguments. For example, if you don't put a key argument under its own heading in the brief, the Court of Appeal could decide that now you've buried this argument, so we didn't have to reach it, or if it's not accompanied by citations to authority. Now you got me selfconscious. Lindsay, because before taping, you said you should say citing cite the case, not cite to the case. If you don't cite to authority, or to the record, you will have deemed to have forfeited those issues. Do you have similar kinds of trap doors in briefing in Florida?

Lindsey Lawton 26:53
Yeah, I mean, I don't know that I would call them trap doors. But we do have an appellate rule that says, let's see, it lists out the contents of your brief and one of them is, well, I'm looking at it as a table of contents, listen to sections of the brief, including headings, and subheadings that identify the issues presented for review. I've seen cases and opinion and I should have gathered grab the site before the podcast, but it didn't. But I've seen opinions that talk about sorry, you know, the part of the rule I'm really thinking about is later. Well, the rule talks about organizing your issues clearly and cogently. And more than that I've seen appellate opinions that would say an issue was sort of just alluded to or just hit very perfunctorily. And that's not sufficient to raise an issue for appellate review. And I guess I would say it's not I wouldn't consider it a trapdoor because I think someone writing a brief should know that you have to flush an issue out and make an effort to persuade the court rather than just, you know, name the issue until the court figure it out.

Tim Kowal 27:47
Yeah, yeah. As the appellate attorney, I decide, look, I want to argue issues a and b, you know, these are the issues that you're likely to win on. Within the trial attorneys still says, Yeah, but got, you know, W X, Y and Z were really great issues. And I don't think they're so great. But the trial attorney says they go in there. And so I might just throw them in at the end, the kitchen sink argument. And I've done that did that years ago in the courtroom, I won on issues a and b. And then the court went ahead and said, issues W XYZ, we're not fleshed out enough didn't have separate headers. So we're, we're deeming them waived. They would have been useful to me, but I think they would have lost anyway. Yeah, lesson learned. I have seen that happen. Yeah. Let's talk a little bit about summary judgment procedure. We've talked about on the podcast that if you're opposing a motion for summary judgment on the grounds that you need more discovery in California, you must file a motion under our Code of Civil Procedure section 437. CS, subsection H, you have to file this motion explains why why you'd be able to show a tribal issue of fact, if only you had this discovery and explain why you haven't done the discovery until now. Are there something similar to that? Or are there other tricks or traps be aware of in Florida motion for summary judgment procedure?

Lindsey Lawton 29:01
I think there may be a lot of traps in the summary judgment procedure in Florida simply because the Florida Supreme Court adopted the federal summary judgment standard just a couple of years ago. And so the all the requirements under that rule are being flushed out in Florida still, we do have rule 1.5 10 D. Again, that's modeled after the Florida up to the federal rule. And it says if a non movement shows by affidavit or declaration that pre specified reasons, it cannot present facts essential to justify its opposition. The court may differ considering the motion or deny it allow time to obtain affidavits or declarations to take discovery or issue any other appropriate order. And so there's a question as to whether this is the only way to get a continuance of summary judgment decision. What constitutes an affidavit or declaration? Do you need to file a separate motion? Or can you make the showing required under the rule in your response? So I think these are things that We're figuring out in Florida right now.

Tim Kowal 30:02
Yeah, that's a good question. And I think when you read that Florida rule, it does sound from what I recall almost identical that affidavit or declaration. And it was not clear to me last time I read, rule 54, whether you could just file a declaration the day before the hearing or the day of the hearing for that matter, and say, Look, I complied with the rule. I need more discovery, you have to continue or deny the motion? Or does it have to be in a notice motion or an ex parte application? That's a good open question. I don't know if that's been resolved under Federal Rules of Civil Procedure 54, either. But

Lindsey Lawton 30:34
I'm not reading the rule of saying it requires a separate motion. I know that in the 11th circuit, you don't even necessarily have to provide an affidavit or something under penalty of perjury. If you're an attorney making the representation to the court. The 11th circuit says an attorney is an officer of the court if you're telling the court reasons that you need more time, then that ought to be good enough.

Tim Kowal 30:54
Yeah. Let's talk about oral argument in our respective appellate courts in California. litigants have a right to oral argument, some Court of Appeal jurists wish that litigants would waive that right more often. But there are different schools of thought of whether you should waive it. I think I've come to the side that says you probably should never waive it after talking to one retired Court of Appeal justice who said I always got a little bit of a weird feeling whenever a party waived a right to oral argument it I wondered if it meant they didn't feel that strongly about their arguments. So if there's a chance that's ever going to be the thought reading through the mind of one of my panelists, I'm sure not going to waive oral argument again. What about in Florida? Lindsay, is there a right to oral argument in the Court of Appeal?

Lindsey Lawton 31:35
No, there's no right in the District Courts of Appeal, you generally have to request it, if you're gonna get it. The appellate court can order oral argument on its own motion. But very rarely does that happen in the District Courts of Appeal? It happens regularly in the Florida Supreme Court, but in the DC A's. You need to ask for it. And you need to ask for it. Not within your brief, but you need to file a separate request for olare as its own distinct document. And I believe that's due after the reply brief. It is and yeah, but you don't have a right. And I've heard the same type of thought that you express hearing from a judge that there are some judges out there who have said you don't request oral argument. It's not a waiver issue. But if you don't request oral argument, then they question whether you have a good case. I've heard I've heard a lot of judges say the opposite that it makes no difference. Err on the side of asking for oral argument. Yeah.

Tim Kowal 32:23
I wonder if this is a universal feeling as well that do oral arguments change the outcome? Have you ever come out of an oral argument thinking? Gosh, you know, based on the questions and the responses to my brilliant answers from the panel, that I think they're really going my way now. They started kind of hostile to me. But by the end, I had the meeting out of my hand. Do you ever, ever get that idea that you've oral argument really turned the tide of your case?

Lindsey Lawton 32:45
I wouldn't say no, I don't think so. Because I usually think my briefs are strong enough that that going into it? Well, they probably weren't convinced by my briefs right, at oral argument, sometimes look back and say, Oh, I should have answered that question a little better. You know, I finally had said this the exact use of magic words differently, that maybe they would see the case differently. But in reality, my experience tells me that I don't think oral argument makes a big difference. Typically,

Tim Kowal 33:10
I think that's that may be close to a universal feeling. I think it's it's sometimes more for the benefit of the client than for the Court of Appeal. And it may be good for the attorney's ego as well. And it might not be too dissimilar from the ceremony of reading jury instructions. It's something that is important to the process. But does it really make a difference to anything? Well, let's talk about on a similar note to what you just said, Lindsay, about oral argument. And sometimes you wonder coming out of an oral argument. Gosh, maybe I could have answered this question a little bit differently. Sometimes Court of Appeals in California will issue focus letters, letters to the council that say at oral argument, the panel is interested in hearing more discussion on this specific issue. Be prepared to discuss that or they will publish or deliver a tentative opinion. So you can see exactly where the Court of Appeal is going in its reasoning. Does that happen in Florida? And what's your reaction and the reaction of the bar to those types of maneuvers?

Lindsey Lawton 34:06
Focus orders do happen? Not that often. But I think they're kind of a relatively new thing. And so we're obvious naturally, we're starting to see them more. I think it's a great idea for the courts to issue focus orders. It just for obvious reasons, that helps the appellants and the athletes get prepared to know what the court actually wants to hear about, which I think would make for a more productive discussion. Now, I have not seen a court in Florida issue a tentative opinion that that would be neat. I like the idea, but I don't think it's likely to happen. Does that happen very often, in your jurisdiction?

Tim Kowal 34:41
Not often just remember which districts do it.

Jeff Lewis 34:44
Yeah, there's one division and the second district and then there's a one division down in the fourth district that does tentatives where you can actually in the fourth Appellate District, the division two you can actually get the full opinion fully baked. And yeah, but it's the minority position. Most of the courts let you just come in and guess what's on the justices mind?

Tim Kowal 35:03
Yeah, I think the court,

Lindsey Lawton 35:05
I was just I was thinking I would think by the time a panel wrote an opinion, they would probably be ready to dispense with the oral argument. And I don't know.

Tim Kowal 35:14
I'm told there's two main reasons why courts don't do more tentative opinions. One is the authoring justice. If something does prove incorrect, as at oral argument, if one of the main points are refuted at oral argument, explain why the justice was incorrect, then that could result in a bruised ego. And so there is a reservation against doing that and exposing at that point in Kohut analysis, the attorneys to be picked apart is maybe not something that the justices are accustomed to, in that enjoy doing. And then the other reason would be the reason most often given, like you said, in Florida, Lindsay, still something of a recent development in the appellate courts. And so at anytime there is an appellate Conference featuring an appellate justice, you can bet that one of the questions they're going to be asked is, why aren't you doing more focus letters and tentative opinions. And the reason that that's most often given that I think is the best one, when we get these focus letters or the tentative opinions, the attorneys come in, and they're certainly very well prepped on those issues, but almost to a detriment, because they're so laser focused on those issues that we kind of miss would normally come in not knowing what we're thinking what issues were honed in on, they would come with the broader, more holistic view of the case, kind of give us a roadmap, set the tone, introduce the parties a little bit, kind of taking another run at teeing up the case for us and giving us a new lens through which to see the case, when we give him a focus letter. They're coming in. They're just you're ramping this issue right down our throat. And not to say they're not great arguments, but we're missing the bigger picture that we would have gotten if we hadn't issued that tentative opinion or focus letter. That makes sense. Any other common traps that you see in Florida civil procedure, appellate procedure, are there rules of procedure in Florida that you think are pretty good, and that other jurisdictions to consider adopting them? And you had mentioned earlier about something about the requirement of requesting findings of fact? Yeah,

Lindsey Lawton 37:06
yeah. The reason you tripped me up is because you said are pretty good. And I think other jurisdictions should follow them. I'm not so sure about that. But there is a recent there has been a recent amendment to the Florida Rules of Civil Procedure. I'm going to pull up the language here. So there's a new rule it's Well, it's an amendment to rule 1.530. That says to preserve for appeal a challenge to the sufficiency of a trial court's findings in the final judgment, you must raise that issue and a motion for rehearing before this rule amendment, I think, three or four, the district court kind of already had that rule, they would often find things not preserved for failing to, or I say things, they would often find issues about insufficient findings of fact, Unpreserved, because it wasn't raised in the in a motion for rehearing. Now. That's the rule across all the districts in Florida by virtue of this rule change. So I don't know if it's a great rule or not, you know, obviously, the Florida Supreme Court thought it was, but several of the district thought so ahead of time, but it certainly could be a trap, if anyone's unaware of that, of that rule change. And the way that it comes up a lot of times is in, for example, in family law cases, there are judicial opinions that say a court must make Express findings on various factors that the court had to consider for child custody issues or equitable distribution, things like that. And so if your only issue that you're arguing on appeal is that the trial court did not make sufficient findings on those factors, then you're not going to be able to raise that unless you preserve it with a motion for rehearing.

Tim Kowal 38:32
That sounds similar to some of our procedures in California about statements of decision, they're called after a bench trial, you don't get a verdict, obviously. So if you want to know what the Fact Finder thought about issues, you have to request that the judge issue a statement of decision, if the judge doesn't issue findings on the shoes that were important to you, you have to specifically request findings on those issues and object that they were not made. And if you don't do any of that there's like a two or three step process. If you miss any part of that process, you're deemed to have waived a right to a finding on that issue. And then you're up against the doctrine of implied findings, that anything, any old thing that can be used for him that judgment will be inferred against you. And then substantial evidence it and as long as it's backed by substantial evidence, which is almost synonymous with any evidence, then it's going to be affirmed.

Lindsey Lawton 39:19
Oh, that's interesting. So in Florida, we have a similar rule, but there's kind of an asterisk that I'd add to it. So it's in Florida. There's the rule that if the trial court reached the right result for any reason, then the appellate court will affirm we have a little nickname for it called the tipsy coachmen doctrine, which comes from a poem. You've heard of this.

Tim Kowal 39:37
I remember reading about it on your LinkedIn I think, Oh, really? Okay.

Lindsey Lawton 39:40
So it comes from a poem about a coachman, which is, you know, the driver of a horse drawn carriage who is apparently drunk, but gets to where he's going anyway. So, for whatever reason, the appellate courts have nicknamed this doctrine after that poem, but they the caveat that I'm not sure is the rule of law. are debates I'm in California, based on what you just said is if the application of his doctrine would require the appellate court to make a finding a fact that the trial court did not make, then the appellate court won't apply it.

Tim Kowal 40:11
I like the name tipsy coachmen doctrine better than the boring old implied findings doctrine. A little more

Jeff Lewis 40:17
catchy, or chemistry, isn't it? Yeah, the

Lindsey Lawton 40:21
implied findings, maybe that's a little different of a thing, because I know, for example, if the appellate court is reviewing, you know, decision on a motion to suppress and the court didn't make Express findings, the court is going to assume that the court made findings in support made the requisite findings, even though it didn't say them expressly.

Tim Kowal 40:37
All right, well, now Jeff has to ask you a set of the hardest questions of the mall. So I'm going to hand you over.

Jeff Lewis 40:44
Okay. And, you know, first I guess, a trigger warning for our audience if the word that offends or triggers you in a sentence, I'm about to use the word twice. So here we go. This is the time for our patented copyrights segment of the show that answers the most pressing questions that Vex appellate nerds around the world, the dreaded lightning round are looking for short responses of one sentence or less. Let's see how far we could go here. Font preference and tree schoolbook Garamond or something else?

Lindsey Lawton 41:11
Something else? Why don't you want me to say something else?

Jeff Lewis 41:14
Don't say times new roman Roman, don't say Times New Roman.

Lindsey Lawton 41:17
I kind of want to say that I actually liked that better. But in our courts, I know it's supposed to be going fast in our appellate courts, we have to use Arial or Bookman old style now. So I would be partial to those.

Jeff Lewis 41:30
Okay, well, that's a new entry. Okay, after a period two spaces are one,

Lindsey Lawton 41:37
definitely one. All right, fantastic. pled or pleaded. pled

Jeff Lewis 41:44
fantastic. And when you're doing the major argument headings for your briefs, all caps initial caps are set, in this case, initial caps. All right. And as a bonus sub question when you're doing initial caps do capitalize every word or just those that are four letters or more which letters see which words to capitalize

Lindsey Lawton 42:01
just those that are four letters or more. I don't know that I've ever thought about it as four letters or more. But I do think of it as kind of the rule taught back in maybe elementary school about when you capitalize things, words in the title of a book. So you wouldn't have capitalized a or the or similar words.

Tim Kowal 42:16
What about a verb like is, is only a two letter word, but it's a verb.

Lindsey Lawton 42:21
Okay, question. I would probably struggle with that one on a case by case basis.

Jeff Lewis 42:26
You have to phone a friend for that one. Okay. I think you did fairly well. You stumbled a bit on the font question. We'll give you you know, nine out of 10 on that one. gratulations. on surviving the lightning round, we'll send you a mug as a thank you for appearing on the podcast and surviving the table.

Tim Kowal 42:40
What are the round? Now that I got into fisticuffs? Almost with John Nielson? About possessives possessors of words ending in S. So the example I used was how do you make a possessive of the word Congress? Is it Congress apostrophe or Congress? Apostrophe S?

Lindsey Lawton 42:58
I would put that apostrophe s on there. Yes.

Tim Kowal 43:01
Thank you. I'm gonna tell John.

Jeff Lewis 43:03
Yeah, you could say, Lindsey, don't cite to Lindsey. But you could cite Lindsey for that proposition.

Tim Kowal 43:11
That's that's the takeaway. Yeah. All right. All right. I think that's gonna wrap up this episode. Again, we want to thank case text for sponsoring the podcast each week. We include links to cases we discussed, we use case text for that. listeners of the podcast can find a 25% discount available to them if they sign up at casetext.com/calp desk. That's casetext.com/calp.

Jeff Lewis 43:37
Yeah, if you have suggestions for future episodes, or if the word that offends you, please email us at info at Cal podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal 43:49
Thanks again to Lindsay law and for joining us.

Lindsey Lawton 43:51
Thank you for having me.

Announcer 43:53
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes 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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While the California Supreme Court is still reviewing the question whether a writ of mandate is the sole method of reviewing an order on a motion for good faith settlement (Code Civ. Proc., 877.6, subd. (e); In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, review granted August 17, 2022, S275134), a defendant appealed the denial of its motion in Armstrong Townhomes, LLC v. Milgard Mfg. (D1d2 Mar. 9, 2023 No. A164469) (nonpub. opn.).

The problem with the notice of appeal was it was filed 68 days after the notice of entry of order—too late. (Recall, however, that writ petitions are not subject to the jurisdictional filing deadlines—see here.)

So the Court of Appeal asked the defendant to file a letter brief explaining why the appeal should not be dismissed. An untimely appeal, for example, could be treated as a writ. Or here, the defendant had taken the position that the appeal was filed only after the Court of Appeal had summarily denied a writ petition—yet there was no writ petition in the record. What, the court wanted to know, was the defendant talking about?

But the defendant did not file the invited letter brief. Counsel sent the clerk an email indicating they “plan on submitting a letter brief,” but due to preparation for an upcoming trial, they needed an extension, which the court declined.

The requested brief having never been filed, the court dismissed the appeal as untimely.

(Note, however, that another recent case in CBM Investments, Inc. v. Royal Business Bank (D2d8 Mar. 6, 2023 No. B310205) 2023 WL 2365334 (nonpub. opn.) held that an appeal from on order on a motion for good faith settlement was a nonappealable order and dismissed the appeal on that basis. So if you are going to try to get review of an order on a motion for good faith settlement, be prepared to seek writ review, and seek direct review, and to do so timely.)

Thanks to Ben Shatz for citing this case.

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Sometimes even appellate justices are annoyed by the rules of appellate procedure. Apparently the entire panel would like to affirm this denial of a resentencing petition filed by Arreguin, convicted in 1993 for his part in the murder of Richard Schell. Arreguin served as the getaway driver and urged the gunman to “shoot ‘im, shoot ‘im,” which the gunman did, fatally. But the California Supreme Court in People v. Strong (2022) 13 Cal.5th 698, 717-718 held that earlier findings that a criminal defendant was a “major participant” and showed “reckless indifference” were not binding because, of late, the Court has relaxed those standards.

So upon filing of a resentencing petition and alleging he could not be convicted of murder under the newly relaxed standards, Arreguin is entitled to resentencing.

Justice Gilbert, writing for the majority, concludes it is checkmated by Strong.

But Justice Kenneth Yegan is not going quietly. And he is going to exercise his First Amendment right to suggest a different approach. Quoting People v. Musante (1980) 102 Cal.App.3d 156, 159, conc. opn. of Gardner, P.J.:"I fully recognize that under the doctrine of stare decisis, I must follow the rulings of the Supreme Court, and if that court wishes to jump off of a figurative Pali, I, lemming-like, must leap right after it. However, I reserve my First Amendment right to kick and scream on my way down to the rocks below.”

Here is how Justice Yegan would have gone about affirming the denial of resentencing:

“Respectfully, there is another way to discharge our duty at the California Court of Appeal. That is to say, the California Constitution admonishes us to not reverse an order unless there is a miscarriage of justice. (Cal. Const., Art. VI, § 13.) There is no miscarriage of justice here. There is a procedural error only. It does not matter that appellant "checked the box" stating he could not presently be convicted of murder. This statement is false. And because appellant falsely checked this box, a new round of litigation has followed. This is a poor idea stemming from the declared false premise.”

What Justice Yegan is saying is that, yes, Arreguin did file a proper petition for resentencing under Penal Code section 1172.6, which normally would entitle him to an evidentiary hearing whether he would be convicted under the new “major participant” and “reckless indifference” standards. But it is a fundamental principle of appellate review that error alone does not warrant reversal of a judgment. Rather, the appellant must demonstrate the error has resulted in a "miscarriage of justice"—that is, that a different result would have been probable if the error had not occurred. (Cal. Const., art. VI, § 13.)

Justice Yegan is not buying that, under these facts, there is any possibility that Arreguin could get a different result.

The majority sympathizes, but thinks that operative precedent indicates the error is structural: Arreguin is entitled to a resentencing hearing regardless of the fact his cause is hopeless. “[W]e hope our Supreme Court will offer guidance on whether requests for section 1172.6 evidentiary hearings in felony murder convictions prior to Banks and Clark are ever subject to a harmless error analysis.”

Comment:

I consider is odd that the court assumes the right at issue here is structural apparently despite a clear articulation of such a rule by the Supreme Court. In another recent case, People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___ (discussed here), the Fourth District Court of Appeal held that a right to an in-person jury trial was not structural, even though it is hard to imagine a more textbook example of a structural right of procedure.

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Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing.

Then we turn to how Utah differs from California in civil and appellate procedure, including:

👉 Unlike CA, the UT Supreme Court promulgates its own rules that govern the courts.

👉 Perhaps as a result, in UT there is no court-reporter crisis. Instead, proceedings are electronically recorded. If you need a transcript, a court reporter will transcribe the recording. (This is an important #AccessToJustice issue.)

👉 Unlike CA, UT appellate decisions are binding on the appellate court. The court can overrule its past decisions, but it cannot just ignore them, as often happens in CA.

👉 Unlike CA, all UT appellate opinions are published.

👉 Unlike CA, UT appellants are not entitled to a reasoned opinion on affirmance—which is why many appeals are disposed of by order.

And in true appellate-nerd fashion, during the Lightning Round John and Tim briefly debate the exceptions to using ‘s to make possessives of certain words ending in s.

John J. Nielsen’s biography and LinkedIn profile.

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

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

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

Other items discussed in the episode:

Appellate Advocacy Blog
John Nielsen’s blog about learning to write by imitation.
John Nielsen’s post about breaking into appellate work.
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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When you are trying to enforce a judgment, you may be tempted to seize special personal property, like mementos, or the beloved family pet. But while these are personal property, if they do not have significant value, it will be seen as an improper purpose. So that might not be a good strategy.

But judgment-enforcement attorney Joseph Chora suggests a couple of good collection practices:

💡Does the debtor have a girlfriend? Set the examinations for the debtor, his wife, and his girlfriend all on the same day. You may find that the examinations will quickly become unnecessary.

💡Does the debtor have valuable intellectual property? The creditor may be able to acquire the IP for nominal value, depriving the debtor of its golden goose. In one case, Joseph relates, this resulted in settling the judgment for 125% of its face value!

Watch the clip here.

This is a clip from episode 46 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.

Two clearly untimely appeals—and I use “clearly” advisedly here—were not dismissed. If appellate deadlines are jurisdictional, then how to explain this?

Because the judgment was affirmed anyway, you answer? Well, I say, if the court is going to affirm anyway, then why not dismiss as the jurisdiction rules require? Otherwise, is this not just random violence to the rules of appellate procedure?

Jeff has a different view. Here is the Jeff Lewis hypothesis for the utility of complicated appellate rules: relaxing the machinery of arcana is how appellate judges show sympathy to deserving litigants without changing the actual outcome.

But regardless, the no-harm-no-foul excuse only applies to one of the cases. The other case we discuss ended in reversal. How did the court explain how it could possibly reverse a judgment based on an untimely appeal? Simple: It ignored the issue.

Are these cases just exceptions to the normal operation of the rule of law? Of course. But remember: because the sovereign decides the Exception and when, the sovereign is not, in the end, subject to the Rule of Law except, in the final analysis, by the sovereign’s consent. The Rule of Law, then, becomes merely a slogan.

Watch the clip here.

This is a clip from episode 35 of the California Appellate Law Podcast. Listen to the full episode here.

CEB has published my article, “Appeal Filed One Minute Late—Literally One Minute—Dismissed As Untimely,” about an appeal challenge anti-SLAPP fees in McKenna v. Sony Pictures Entertainment, Inc. (D2d5 Feb. 15, 2023 No. B304256) 2023 WL 2007687 (nonpub. opn.). To file the notice of appeal, the attorney logged on to the e-filing system late in the evening of the appellate deadline. Like, really late—at 11:52 p.m.

Owing to a reportedly “slow connection,” the notice of appeal was not file-stamped until 12:00 a.m. That is, the day after the deadline. One minute late.

Here is a PDF. Kowal_LateAppeal.pdf

You can read the original post 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.

Can you appeal an order sustaining a demurrer as to less than all causes of action? No—if there is still a cause of action hanging around, the order does not satisfy the one-final-judgment rule.

But if the order sustaining the demurrer would result in a “needless and expensive trial and reversal,” then the order may be reviewed on a petition for writ of mandate.

But there was still one more problem with the homeowner’s association’s writ petition in River’s Side at Washington Square Homeowners Ass’n v. Superior Court (D3 Mar. 6, 2023 no. C095860) 2023 WL 2364423. After the trial court sustained the defendants’ demurrer on the HOA’s construction defects claims on standing grounds, the HOA filed an unsuccessful motion for reconsideration. By the time the HOA filed its writ petition, it had been 95 days since the notice of entry of the order, and 33 days after the order denying reconsideration.

The filing deadlines for writ petitions in the Court of Appeal are not jurisdictional.

So the writ petition was untimely, right? And appellate deadlines are jurisdictional, right?

No, not on writ petitions. Here is the authority to clip-and-save:

“Although there is no statutory time limit on a common law writ petition, appellate courts generally apply the same 60-day time limit applicable to appeals.” (McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, 1100.) Defendants argue the petition is untimely because it was filed more than 60 days after notice of entry of the order sustaining the demurrer, which is the primary order that Plaintiff challenges. As Defendants acknowledge, however, the 60-day time limit for writ petitions “is not jurisdictional.” (Davis v. Superior Court (2020) 50 Cal.App.5th 607, 615.) “[U]nlike appeals, appellate courts have discretion to decide a writ petition filed after the 60-day period, and typically look to whether there is any prejudice to the opposing party in doing so.” (McDermott, supra, at p. 1100.) In addition to prejudice, appellate courts may deny a writ “where a party unreasonably delays in filing the petition.” (H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1368.)”

The court noted that the defendants did not contend the delay resulted in any prejudice, and that the HOA’s delay was not unreasonable, particularly in light of its efforts in moving for reconsideration. The petition was not untimely.

Before seeking writ review of an interlocutory order, consider asking the Superior Court for certification under Code of Civil Procedure section 166.1.

Another reason the Court of Appeal readily granted writ review was that the Superior Court certified its order sustaining the demurrer under Code of Civil Procedure section 166.1. Section 166.1 states that a judge, upon motion by a party or on the court’s own motion, “may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation.”

Here, the trial court issued a section 166.1 order indicating that the threshold standing issue “raises a controlling question of law as to which there are substantial grounds for difference of opinion, and there was virtually no chance the case would settle until that issue is resolved.”

This factored in the Court of Appeal’s analysis in granting writ review.

If a key question of law is involved in an interlocutory order denying a demurrer, motion for judgment on the pleadings, or motion for summary judgment, consider asking the trial court to certify the question for review. You might entice the trial judge further if resolution of the issue would facilitate a settlement.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.

This podcast is often a soapbox for complaining about oddities in the California court system. But then we wondered: are the courts in other states better? Maybe they’re the same—or worse. So we thought we should start a conversation with a couple of attorneys on their own soap box in Chicago, Dan Cotter and Pat Eckler, the proprietors of the Podium and Panel Podcast, and compare notes about civil and appellate practice in our respective jurisdictions.

Says Pat: “I can’t imagine Illinois does anything that anyone else should adopt.”

Here is what you’ll learn in this episode:

👉 Jury trials: You can only get a general verdict in IL—no special verdicts!

👉 Unlike CA, the IL Supreme Court promulgates its own rules that govern the courts.

👉 But also unlike CA, IL court rules often conflict with the Code of Civil Procedure—and the conflicts are tricky to resolve.

👉 Like CA, in IL you have to have a court reporter to make an appellate record.

👉 Like CA, IL also has no horizontal stare decisis (appellate court decisions are not binding on other districts).

👉 Like CA, IL issues a large body of uncitable unpublished opinions.

Dan Cotter’s biography and LinkedIn profile.

Pat Eckler’s biography and LinkedIn profile.

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

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

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

Other items discussed in the episode:

When Courts Give the Silent Treatment
Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Transcript:

Patrick Eckler 0:03
I can't imagine Illinois does anything that anyone else should adopt.

Announcer 0:07
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 0:20
Welcome, everyone. I am Jeff Lutz.

Tim Kowal 0:22
And I'm Tim co all 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 insights they can use in their practice. But Jeff and I split our time we both do some trial court stuff and appellate court stuff. If you find this podcast helpful, please recommend it to a colleague.

Jeff Lewis 0:41
And quick announcement. Thank you. Our podcast is sponsored by case text case text is a legal research tool that harnesses AI and a lightning fast interface to help lawyers by disability fats. I've been a subscriber since 2019. I highly endorse case text, listeners of the podcast receive a 25% lifetime discount available to them if they sign up a case. text.com/celt That's Keith's text comm slash c a l d.

Tim Kowal 1:05
Now, Jeff, I wanted to share a personal experience from having done this podcast with you for the last couple of years. You joke with me, Jeff, that you had to work hard to get me to relax enough to do this podcast in the first place. And you'd like to remind me how heavily scripted were our first few episodes, which we now refer to as the rudder guide in podcast form. And now I wonder if I've gone too far in the other direction freely offering my unvarnished criticisms of our state's no citation rule, for example, and how the jurisdictional and I put jurisdictional in scare quotes the jurisdictional appellate rules sometimes seem to be relaxed when the court is minded to reach the merits and the unpredictable results that occur because of our Judiciary's lack of horizontal starry decisis. And the unexpected side effect of getting up on a soapbox on this podcast is that it puts us in a club of other soapbox attorneys and other jurisdictions, for example, when I complain that our appellate courts sometimes summarily affirm, did you know that in Florida for example, appellants have no right to a written opinion at all on an affirmance and in jurisdictions that nominally are Americans. And even in jurisdictions that nominally allow you to cite unpublished opinions, the panel will often treat you a bit rough if you try it. So maybe it's better just to have a rule, not decided at all don't even try. So we thought that we would start a conversation with a couple of attorneys on their own soapbox in Chicago, Illinois and compare notes about civil and appellate practice in our respective jurisdictions. Today, we welcome to the show the proprietors of the podium and panel podcast in Chicago, Dan Kotter and Pat Eckler. Dan Carter is counsel to insurance companies and other financial institutions it and consulting companies and nonprofits. He's been the chief privacy officer of several companies and law firms, and he has extensive experience as an in house counsel, Dan has handled many complex insurance, regulatory issues and transactions as well as reorganizations of holding company systems. He's also worked on privacy and cybersecurity issues for over 25 years. Donald Patrick Eckler focuses his civil practice on defending lawyers, accountants, insurance brokers and other professionals in civil disputes in state and federal courts across Illinois and Indiana. His practice ranges from representing insurers and coverage disputes to defending professionals, businesses and tort defendants and complex litigation pads commercial litigation experience involves complex contract disputes and class action lawsuits. In his experience as a college basketball coach Pat has also represented a coach before the NCAA committee on infractions. Pat is also a committee chair, columnist and board member with both the Illinois Defense Council and the professional liability defense Federation, for which he serves as a current president. He publishes extensively in professional journals on a wide range of topics, including legal ethics, attorney client privilege, and Illinois and federal civil procedure. Dan and Pat, welcome to the podcast. Thanks for joining us. Thank you.

Patrick Eckler 4:04
Thank you for having us. I'm not the president of the PLDs anymore. I by term ended, but that's okay. Okay, currently, I apparently I need to update my bio.

Tim Kowal 4:12
There you go. Now, Dan, and Pat, you both practice in the Chicago area. And we've gotten connected on LinkedIn where a lot of lawyers from a lot of different jurisdictions talk about law. How much is social media such as LinkedIn and blogs and podcasts shaping the law and legal culture? Is it supplementing traditional institutions like law reviews? Are they complementary? What do you think as both of you do a lot of publishing and traditional media?

Dan Cotter 4:39
I think it's more complimentary. I just I think, though, that one of the things that I think is been a silver lining, I guess, COVID has really been the substantive and kind of more actual activity on LinkedIn, like so we met on LinkedIn. I see a lot more lawyers a lot more in the insurance space a lot more than the appellate space a lot more in all kinds of areas of law. Put it out Good content and have a good discussions. I don't know how much it's really impacting law in Illinois or Indiana or California, and more or less just because I don't think many of the judges, you know, kind of like Sotomayor said the other day or was a Kagan for nine lawyers, we were probably not the best people to be doing tech stuff.

Tim Kowal 5:20
generalists, like all attorneys.

Dan Cotter 5:23
Yeah. We have a generalist here, by the way, that patent I talk about frequently judge Easterbrook on the Seventh Circuit, if you ever get a chance to listen to an argument, whether it's the acronym listener, he just writes the council repeatedly for use of acronyms. And he's always says that we're generalist, maybe you know what you're talking about. But yeah, please do that site.

Tim Kowal 5:43
Break. Those acronyms are hammered. Masham.

Patrick Eckler 5:47
He says they he calls them initialisms. And he refer and he says, Please use English words. So someone will say an acronym. He doesn't know what it is, or it claims not to I doubted it. There's no way he doesn't know when many of these cases and he says what was that? English words, please, counsel? We're generalists. And off he goes, and then they can't stop doing it. And he just throws his hands. I mean, you can use to eat he gets utterly frustrated with because they can't stop doing it. And it's pretty funny. Just call it the act. We know what you're talking about.

Tim Kowal 6:16
Yeah, there you go into your water so ugly, ugly,

Patrick Eckler 6:21
they are to answer your question I grew up down there. It's complimentary. It really gives you an opportunity, though, to to ferret out an idea to get input from people who wouldn't otherwise be able to chime in on it, you're having the opportunity to discuss an issue, whether they're in your state or across the country like you I mean, sometimes I'll post something on an issue of appellate procedure or procedure we do here in Indiana, or Illinois. And I'll say, hey, what do they do in your state? Because it's interesting to compare and contrast, because most states have got similar procedures in one way or another. But it's where those fine lines are. And that can teach you about your procedure. Oh, that's interesting. Maybe we can do that in some different way. Or you never know how it's going to shake out, I do a fair amount of insurance coverage. And I clients will say, What do you think, is this covered? I say, I don't know, I don't get the policy. I don't know, I gotta look at the rule. And you read the rule, and you read the rule in light of the facts are in front of you. And you end up with an entirely different reading that you didn't have before. Because you took these facts and applied it to these words and went okay, maybe we can do something like that.

Tim Kowal 7:22
Yeah. Now you're both active in publishing legal commentary. So in addition to your your work, and doing the podium and panel podcast, which you started back in January 2021, is the podium and panel podcast an extension of the conversations that you're having in your published writing, or you're talking about different things.

Patrick Eckler 7:39
Many times it's there's overlap Dan's column in the Chicago School of Law, but we both have weekly columns in the Chicago Daily law bulletin, which is a venerable publication that is read by all Chicago lawyers worth their salt. Dan and I are both lucky enough to have spaces there. Dan publishes on Mondays and writes a lot about the Supreme Court in particular, and then I write a column that's now on Thursdays, and I focus on civil practice issues from a defense perspective. And so many times we will refer to cases that we talked about on the show, if it's double billing. It's called being efficient. And then we have a segment of our show called the Rule of a week, which may be a topic in one of our columns, depending upon the issue. I think our rule of the week, this past week was my column that got published yesterday on peer review. And so you know, it's, it gives us an opportunity to cross market. It's not only double billing, it's cross marketing. So in the LinkedIn post, it says, Hey, if you want to learn more about this, you know, see this podcast where he and I talked about it, or will say that you're going to talk about this more on the episode upcoming, and it allows us to tell get people to listen to back episodes and increase the views of the listener count.

Jeff Lewis 8:48
Yeah, that's a great idea. Wow, we should steal that they can do steal that. You can steal it

Patrick Eckler 8:55
don't have any protection we do. We do have a trademark on prediction sure to go wrong. We do. Not on rule of the week,

Dan Cotter 9:03
and a patent algorithm system. That's impeccable. Blackbox, that favors wins. But we've got enough to floss this.

Patrick Eckler 9:11
It's not It was developed by the same sign German scientist that developed the black box that gives higher bonuses and raises to the equity partners, as opposed to the income partners. They it's that same, it's amazing. We got to take advantage of it this time the German scientist helped us as opposed to helping the other guys so it was good.

Jeff Lewis 9:30
So let me ask you, in addition to LinkedIn, and the podcast and YouTube played around at all with either Twitter spaces or clubhouse, you know that kind of live audio format. Have you guys played around with that at all?

Dan Cotter 9:41
We have not in terms of the show itself. I'm on Twitter, but I'm not really used live feature and clubhouse is interesting because it seemed to spike for a while and second half of 2022. And then I don't see anybody clip housing or whatever it would be called. Or not much. They're still out there. I listened to some stuff on clubhouse and to me it was kind of Oh, was like just go into a campus of a college people, different lounges, different fraternities, sororities or, you know, dorms and just chat about whatever. And you know, some of the speakers sometimes were, you know, actually prepared and said something and other times, I'm like, what? Why the hell did I waste 20 minutes listen to somebody talk.

Patrick Eckler 10:21
Yeah, I haven't done it. I think I've listened to one thing on clubhouse. I didn't do it for be Twitter I was on years ago, and it was bad for my mental health. So I haven't been on it. And it was just, yeah, it's very effective of sucking you in and getting you to say things you regret. And what's it? This is what it was 140 to 280 characters and I was just like, you don't want I'm done. So no, yeah, well, if

Dan Cotter 10:44
you come back, you'll recognize it is under Elon Musk, not much has really changed in terms of it still. But y'all that people that we're gonna go to Mastodon, or other platforms for me, you know, none of it panned out, because they found I think that those were even harder to navigate or get connections on, it's still

Tim Kowal 11:04
cool. Well, in a minute, we're gonna compare notes and talk about differences between Illinois State court and California State court. But since you are both in Illinois, which is in the seventh Federal Circuit, let me ask you both. Would you rather be in state court in Illinois or in the Seventh Circuit? I know, Pat, you do a lot of litigation. Dan, you counsel a lot of companies. And so you may be called upon to have a preference for one or the other. Do you Do either of you have a preference? And why?

Patrick Eckler 11:27
Can I give the lawyer answer? No, no. It depends.

Tim Kowal 11:32
There's a real answer. The answer is it depends.

Patrick Eckler 11:34
You tell me where what kind of case it is where in Illinois State Court I'm going to be and that'll tell me which appellate court I'm going to get unless what happened a couple of weeks ago happens to you. And the Supreme Court of Illinois transferred a tranche of cases out of the fourth district, which is a insurer and defense friendly appellate court and transferred them out to districts unknown. For reasons not published for not a number of cases not made public, at least that I have seen. And this follows on we used to have a very easy way to figure out which counties were in which pelleted districts. They gerrymandered the districts in Illinois in order to ensure a Democrat supermajority on the Illinois Supreme Court, which they got and they re jiggered these districts such that they one looks like a see, the fifth district now looks all kinds of goofy and encompasses nearly half the counties in the state. And it completely scrambled all of the districts except for Cook County, which is its own Appellate District.

Tim Kowal 12:45
This is and this has to do with the appellate districts in Illinois had to do with the composition of the Supreme Court.

Patrick Eckler 12:50
So in Illinois, there are five appellate districts. We have one appellate court, but five districts, the first district which is Cook County has three members of the Supreme Court, each of the other districts have one member of the appellate court. So the cook so Cook County has, it represents about 40% of the population of the state. So it gets about 40% of the population of the Supreme Court. And then the other districts are spread and they each so they the members, the people who live in those districts elect a member of the Supreme Court, and then that person is subject to retention. And if they aren't retained, which happened for the first time in decades and 2020, then the supreme court appoints someone to fill the term until the next election could be held two years hence. And then there was an open seat election for that seat in that newly constituted district.

Tim Kowal 13:41
That's interesting. I had not even thought of that, because that's not the case in California, the governor can nominate California Supreme Court seats from anywhere in the state, not limited to any district. And so frankly, I don't even know where any given one of our Supreme Court justices hail from, you

Jeff Lewis 13:57
know, you know, I've heard of gerrymandering in the political context, but never heard a story about it in the context of judges and

Dan Cotter 14:03
justice. Yeah. It's pretty crazy, even

Jeff Lewis 14:05
to Chicago.

Patrick Eckler 14:07
I will say this is that the Supreme Court of Illinois under the Constitution is, except for the composition of the districts is essentially entirely independent of the other political branches, I say other political branches, as you can hardly call them non political considering they're elected, but they don't have to go they've got supreme power over anything that occurs with regards to the courts, for example, lawyers are regulated by an agency of the Supreme Court, not by the Illinois Department of Financial Professional Regulation, like nearly every other professional in the state.

Jeff Lewis 14:41
So when it came time for the COVID shut down and everything that was dictated by the Supreme Court, not the legislature

Patrick Eckler 14:47
with regards to COURT Yes. And but everything else was was run by the governor through our list the name of the app, the emergencies act or something that he has invested with Raphael power, but no with regards to Two court closures and the Supreme Court has issued rules. They issued emergency rules for depositions. They issued rules with regards to they said no remote jury trials of any kind, even if the parties agreed and in the criminal context, you weren't allowed to have them. Right.

Tim Kowal 15:17
In Illinois, do you still have remote jury trials? Or is it back to in person,

Patrick Eckler 15:20
though we were in person, there have not been the court? Well, there was one I've aware of one remote jury trial was tried up in Lake County by a friend of ours, Tony Alden, and a lawyer from all state they tried it, and that I want aware of any other one where that's occurred.

Tim Kowal 15:37
And that is decided by the Illinois Supreme Court, whether the jury trials are gonna be remote or in person. Yeah. Okay, because we have complete authority over that. We've talked about that here. Jeff. And I talked about a case that mentioned that the statutory authorization to hold remote jury trials is set to sunset, I think on July 1 of this year, so unless the legislature acts, then the courts have no say in it, they'll have to go back to in person jury trials, even if it's more convenient, or whatever reason, or even if there's another flare up COVID cases. And that gets to an another interesting question that I stumbled upon, I never realized this that California is in a minority of jurisdictions where the rules of civil procedure are dictated by the legislature rather than the court. Can we follow the federal model where the Congress go wrong? Congress and accept federal rules of civil procedure?

Patrick Eckler 16:27
You have no idea. Dan, please explain what we do in Illinois, because you're gonna love this.

So yes, we have a Code of Civil Procedure. We also have Supreme Court rules. Those procedures enacted by

they both have the same they both have the force of law, things sometimes conflict there is. So for example, there's a current bill in this in this so the supreme court rule, it's the IMA rule prequel rule. 215 governs independent medical exams. It says the court has discretion to set the conditions for an independent medical exam fine. They want to Code of Civil Procedure section 735 ALCS five slash two dash 1003. Right orders that a person can be present for the IMA. And now the plaintiffs bar has has sponsored a bill that allows it to be recorded video taped, digit Supreme Court says the trial judge gets to decide this in their discretion. And so you have a conflict between the two. And I mentioned the separation of powers issue at the beginning. I think that between the two, the Supreme Court rule controls because it's an issue of justice. So it's wrong branch. But we have two sources of law. So for example, venue is in the Code of Civil Procedure, orange enacted by the legislature by the legislature for nine convenience is in the Supreme Court rules. appeal of a denial or grants of one of those is in the Supreme Court rules under the the appellate rules.

Tim Kowal 18:01
And what are you to assume that they occupy the same stature when they're in conflict? Is one override the other consistently or is there

Dan Cotter 18:09
a penalty? As Pat said, the Supreme Court will suit Governor because it's specific to justice. But there's, there's disputes and people challenge season core, and it's a massive, one of the things that's bad, and Belen life, probably in many states is patent I've talked about on the show. In some cases, there's all kinds of rules and don't lie about readings of the law. But what happens in Illinois, so the unique thing in Illinois couldn't was civil procedure, things that happen. And prejudgment interest that happened year or two ago in the 11th hour, is a lot of times what legislators do in Springfield is they introduce a shell bill, and it's got it maybe in the health code or something else education. And then what happens is they read that bill, and then they strip it at the end. And then they fill it with something different. It could be insurance law, could be civil procedure could be anything. And then the legislature argues that they did the three readings and that thing was debated. And then it goes up to the Supreme Court because again, it's in our Constitution, that process. It's a real mess. And like I mentioned, one of the things that happened a year or so ago, was prejudgment interest that the legislature put into being and again, it gets challenged right away. We just by referendum or by by ballot initiative did the safety act with cash bail, that's being challenged and the Supreme Court's agreed there that case in terms of whether there's gonna be cash bail in our criminal justice system. So it gets to be a mess because like Pat said, some stuff house and civil procedure, sometimes there's an equivalent thing in the Supreme Court rules, sometimes they conflict. Sometimes it's not clear what either one is really saying And so yeah, so yeah, one of the

Patrick Eckler 19:47
let me put some meat on the bone with with the unmentioned was shell bills. There is a shell bill for every section of the Illinois combined statutes. So then at any time, the leaders can pull a bill because it has to be Due to germaneness requirements, under the Constitution under Article are under Article Two, Section Eight of the Constitution, it has to be to germaneness requirements. So they have every section of the code has a shell bill in my shell bill, it takes a definite article and makes it an indefinite article. And that's a bill. Okay, so we can change any section of the code we need to change at any time.

Tim Kowal 20:23
This is kind of how the house will send up a tax and spend bill to the Senate and they'll just put it on the shelf until they they want to start their own bill, because the Senate doesn't have taxing authority. But if they got a taxing bill from the house, and they can

Patrick Eckler 20:35
they can say that the bill began in the in the house. Yes, believe it, even though it began in the Senate. Right. It's the same kind of shenanigans. And what there is, is the Senate President and the Speaker of the House have to certify that they follow the rules. And Illinois has adopted what's called the Enrolled Bill doctrine, which means different things at different states I've learned. But in Illinois, it means that so long as the Senate President and Speaker of the House have signed off, but they follow the procedure. They follow the procedure, and the Supreme Court isn't going to challenge it. Now. There have been multiple challenges to this as Dan elucidates on a variety of issues, and the Supreme Court has its most recent opportunity to the case settled right before it was going to get decided. But they have two cases, they've got the prejudgment interest case making its way up, they've got the Safety Act, and they've got the new assault weapon ban case, it's gonna go up, it's got the same issue. Every one of these steps. The prejudgment interest bill in the Senate and the first bill on the Safety Act passed at the same time at 3am. In the morning, at the very end of a lame duck session, January 13 2021, is gonna go down in may go down in the annals of history is a very bad hour for the Illinois General Assembly of those two bills get struck down because they didn't follow the Constitution.

Dan Cotter 21:45
And one other thing you should know about right now in Illinois, is not only the Supreme Court has a supermajority, but both the House and Senate are super majority Democrat. And it's been that way for a couple of years. Now, at one point, they were kind of split and there was they were closer, but over and over again, through gerrymandering and other efforts, it's become more and more democratic. We have majority body. And so you mentioned things that Pat talks about the sign offs. Again, you can't question them, but a lot of times, you'll look at the kind of legislative history and the record, and it's likely this will be inadequate. But

Tim Kowal 22:22
so you mentioned that in Illinois, there's Code of Civil Procedure, and then there's what is it called the Supreme Court rules, rules of court, it's similar to in California, we have California Code of Civil Procedure. And then we also have the California Rules of Court which is promulgated by the Judicial Council. But there's definite hierarchy there that the rules of court are not allowed to conflict, they can only supplement or fill gaps in the Code of Civil Procedure and a famous contest that is still relevant today between the Code of Civil Procedure and the rules of court concern the use of court reporters, or alternatives to court reporters rather electronic recording system back in the 90s. They rolled out this pilot program installed equipment in a few different county Superior Courts to test out whether we can electronically record the proceedings and have them transcribed later on for use as an appellate record. And it seemed to work out okay, maybe even arguably a cost savings. But the court reporter lobby has amazing influence in Sacramento and they quash bill after bill after bill. And so today, you cannot use any method for creating an appellate transcript except the court reporter. There's two other methods that Jeff and I kind of joke about because they are so rarely successfully implemented. The settled statement and agreed statements basically have to come up with a summary of what happened at the proceedings. Supreme Court rule 23 is what we call bystanders report. Yeah, yeah. Sounds like the same kind of thing. Yeah. And yeah, so the the legislature there was a bill proposed in the 90s to allow electronic recording got quashed. And so now here we are, there's a national court reporter shortage. And there's not a lot anyone can do about it. Unless someone can stand up to the special influence and get some kind of alternative method implemented, we'd now have all this all the courts have zoom technology or some equivalent recording technology for broadcasting its proceedings, all they would have to do is hit the record button. But there is a Code of Civil Procedure right on point that says you may not hit the record button even for judicial note taking purposes and certainly not for creating an official or unofficial appellate record. Can we rule in a rule of court just just to close the circle on this one, there was a rule of court that allowed the courts to raise funds and to spend funds on electronic recording system and this Court of Appeal found it invalid because it conflicted with the Code of Civil Procedure.

Dan Cotter 24:34
You know, it's interesting if you within the last month Pat night as a rule of the week, we talked about an Indiana proposed change that had to do with electronic recording of hearings and getting rid of court reporters and it's we don't know where it's it's still in its infancy, but it's interesting and Pat and I when we talked on the podcast, as I mentioned before, he was able to join us. You know, when we record our weekly podcast, we often have audio issues and So we just marveled at some of that, you know, the minute and a half of excess, that air, things cut off, we have to get back in and back out. We have to do some surgery to the thing. So just interesting that, you know, maybe that's what Indiana gotten from because it's not really clear. Yeah,

Tim Kowal 25:15
I want the simultaneous court reporter transcript is the gold standard. There's there's not going to be anything that's better than that. But there are a lot of litigants, particularly indigent litigants. A lot of family law practitioners and probate practitioners have been kind of spoiled because they were the last holdouts that those departments in California were still provided with court reporters as a matter of course, for years. Jeff and I are in our civil matters where you had to bring our own court reporters, but now because of the shortage, even family law and probate law attorneys need to bring their own court reporters in Illinois. Do you have to bring court reporters are they provided for are there alternatives to court reporters to creating an appellate record?

Patrick Eckler 25:54
So a couple things, if you're in one of the 16 calendars of the Chancery Division of the circuit court of Cook County, the chief judge, that judge has a court report. That is the only civil judge that I am aware of that has an assigned court reporter, obviously a 2016. Cow that is the primary criminal courthouse in Cook County, there are court reporters in the criminal courthouse, but no other civil court Am I aware of in Illinois, of any variety has court reporting now, there is recording in many of the smaller jurisdictions and certainly in DuPage County, which is the second largest county and cook area in Illinois, just the county just to the east of or just to the west of Cook County in Kane County, which is just to the west of that they have reporting. But the principal civil courthouse in Cook County, you could not wire for recording, they can't even wire it for internet, the daily center, they can't wire for internet, because if they did, they would have to shut the building down because of all the asbestos. Oh, you're kidding. So they can't disturb it. So they can't wire the thing for internet, so they surely can't wire it for recording. So that's off the menu. The problem with the recording situation is in not having a court report I wrote about this in my column all of the problems of how a trial would be different. If you don't have a court reporter that can go into chambers that can go to the sidebar that can go and allow for the individual voir, dear of an IRA person who needs to who has got some sensitive issues they need to talk about, let's suppose they've got a personal reason why they can't be at the trial or they have a health issue or that protect perhaps there's you know, the nature of the case requires an inquiry into sexual abuse or things and it makes who knows what it's going to what kind of questioning you can't do that without having the entire jury to do calisthenics up and down out the jury remitted to the courtroom? Because you've only got recording in one place. You've got to be in how do you how do you do a reback with a recording device? You asked the perfect question. The witness goes, Can you repeat that? How do you do a read back? What happens if the recording device doesn't record?

Tim Kowal 28:02
Now? Yeah, that was one of the big problems. One of the complaints that were common when they had the pilot program in California in the 90s is a lot of judges wrote in to the legislature and said I don't like these recording system, because every time an attorney asks, can you read that back? They didn't have a special people. They're monitoring and running the recording system. And it was all on tape. So the judge had to reach over, hit the stop button rewind, find the place and the tape hit record. Again, when it was done. How do

Patrick Eckler 28:26
you do? How do you do daily copy. You can't do daily copy without having a team of two court reporters one of the morning one of the afternoon. So you get the morning report by four or five in the afternoon and you get the evening one the afternoon by seven or eight at night.

Tim Kowal 28:39
You have to treat the proceedings as generally as though there is no court reporter there. Just you just have the peace of mind that well, if I do need to appeal, then I can turn that recording into a transcript somehow. Yeah,

Patrick Eckler 28:51
court reporters are not only invaluable for the preservation of the record, but they are invaluable for the trial, the function of the trial itself. And in the absence of them, you have got a real problem. The answer to the shortage that I know is acute in California and certainly exists here as well is not to get rid of court reporters, it's to train more of them. And we have to find a way as a profession to do that.

Tim Kowal 29:17
Well, that's been the problem. And for 30 years, they've been losing uptake in that profession. Hard to imagine why it's a not a well remunerated profession or interesting profession. It is a difficult profession. I've looked at the stats for the number of people who test I know they had to take a dexterity exam and a certain number of words a minute, and a very small percentage. I think it was like less than a third of the people who test for this exam, pass it in California expensive. nationwide.

Patrick Eckler 29:44
It's expensive to test for it to the equipment costs. I've been told upwards of $20,000 along with the education and the time it takes but they are very well paid. So you want to talk about flexible job work when you want to for a working mother. What a great job. You can work anytime.

Dan Cotter 30:01
It's the same with shorthand, and that's part of the skills. And my mother wanted shorthand back in the day. And that's a lost art as well.

Tim Kowal 30:08
Yeah. So it sounds like we have similar struggles on the court reporter front, let's get some other procedural issues I wanted to ask you about. Sorry, we go

Patrick Eckler 30:16
we go back real quick on more crazy civil procedure stuff. So who writes your pattern jury instructions in California?

Tim Kowal 30:24
We have two of them. We have Casey caaci. And Baji. Ba J. I don't know the institutions are who?

Jeff Lewis 30:31
The Judicial Council and so that's

Patrick Eckler 30:34
the other one, do they represent the law of California,

Tim Kowal 30:37
the Judicial Council writes the rules of court and arm I think the head of the Judicial Council is the Chief Justice of the Supreme Court.

Patrick Eckler 30:45
So in Illinois, the Illinois pattern jury instructions are written by the IPI committee. It's a committee appointed by the Supreme Court, unlike the Supreme Court rules, the IPIs do not have to be approved by the Supreme Court. And it is not infrequent that the IPIs gets struck down. Yet, under supreme court rule 239, you must use the IPIs, even if you don't think that they represent the law. So what you end up having to do, you have to tender an alternative instruction, the judge will give it because they can't.

And you preserve the issue. And then if you write and the instruction gets struck down, then you get the privilege of trying the case again, and that's going to become a big issue, because we recently had the IPI committee which is controlled by the plaintiffs bar eliminate a version of our proximate cause instruction that clearly represented the law of Illinois, as stated by the Illinois Supreme Court. They got rid of it. And so that's a coming issue in the future. So yeah, it's a it's a mess that there used to be special instructions, and those are eliminated as well. And so yeah, it's constant. And I don't try a lot of cases, but the one that was the last time I did, it takes days because we go through all these instructions, even though like Pat said, You got to use them. Because you're arguing over there's an alternative language, sometimes bracket a language, that sometimes you're arguing that it's just wrong, like that said, because it doesn't, it's not consistent with what actual lines whether the courts have actually

Jeff Lewis 32:16
here and suddenly, California we have form instructions, and we have special instructions you can propose, are you telling me that your state no longer has special instructions,

Patrick Eckler 32:25
so special in a rogatory ease, so you can have a non pattern IPI, the judge can either take it or leave it, they have to give it IPI. If it's the case, if the facts and often they have to give the IPI. If you have a non standard instruction, they can take it or leave it special interrogatory is were used as to test an element of the claim because under Illinois law, and they get restricted under the Code of Civil Procedure, we only give general verdicts, we don't give special works. So if you want to add so and by that I mean our issues instruction folds all of the elements into one instruction, they don't get asked duty breach causation damage, they get asked do you find in favor of whom and for how much? Right yeah,

Tim Kowal 33:12
one for a general verdict, you saying you cannot or the judge cannot give a jury a special verdict form.

Patrick Eckler 33:19
Forms are not special verdict forms are not allowed. So you get a so you can get special, we used to be able to get special interrogatory ease, and I testify. So this actually is a creature. So go to civil procedure, section 1008 of the Federal Code of Civil Procedure. And the what it said is, is that under the old rule, the instruction, if it was offered had to be given and if it contradicted the general verdict get controlled. So you had multiple circumstances where the jury that happened, a lot of police shooting cases, they found in favor of the plaintiff. And then they asked the question, was the police officer at the time of the shooting, acting in defense of himself or others reasonably in fear for the light his life for that? And they would answer the question, yes. No verdict zero after giving a million dollar verdict, and the jurors are like, well, we didn't understand the levees, you didn't understand the issues instruction, because there was obviously an affirmative defense of self defense or defense of others. Your plane, we didn't understand the causation instruction. You didn't understand that the issues instruction, but you understood the very simple question. So the person who was I was testifying against as a fellow day who's now he's on the Supreme Court rules committee at that time, he was President of the Illinois Trial Lawyers Association, Larry Rogers, Jr. And Larry had had one of these, or at least one of these cases, maybe two, and Larry and I testified against each other both in the House and the Senate on this topic. And we now have this goofy rule where they don't have to give the instruction. And if they do give the instruction, it doesn't control. So basically, it's useless.

Tim Kowal 34:53
Most of the exercise of reading jury instructions is useless. Anyway, we've talked about this serves mostly a ceremonial fun motion, so that we can tell ourselves in good faith that the jury was instructed on what the correct law was sure it went, you know, 100 feet over their heads, but fault interrupted.

Patrick Eckler 35:10
So, ya know, it's a very goofy situation we have. And I was deeply involved in the special interrogatory fight several years ago. And we actually have had Larry on the show about a shooting case. And that he handled that he has over eat with argued in the Seventh Circuit. And it funny the first time, you're going to have him on the show, the opinion came down as we were beginning to record. Right. We're going to talk about the oral argument, and it came down. So we had this reschedule once the opinion came down. And but yeah, he was came on the show about a case of tragic situation and what's suburban county, and he's great, but it's an issue we don't agree on.

Tim Kowal 35:46
I'm still

Dan Cotter 35:47
here's a bit suspicious as well, I think I would say about coming on the show, because he thought that we were going to take some angle, but again, we're the third podcast, an angle, it's really to kind of get off cases of interest to the public. So

Tim Kowal 36:00
well, I'm still reeling at the prospect of not being able to have a special verdict form. My first instinct I don't know about you, Jeff, is I would want to go in on a motion for new trial and at least try to get something on the record about where the fulcrum point was in the trial, because if you just get a verdict form that says, you know, thumbs up or thumbs down, you have no indication of

Patrick Eckler 36:19
welcome. Yeah, the last case I tried was a shooting case, under the old rules, and it was a third party criminal act case, I represented a bar and the we offer 12, special interrogatory she rejected every one of them. The judge did, we offered multiple pattern, alternative pattern and revised instructions of non pattern instructions, trying to get something in front of the jury about the criminal is the guy who shot the plaintiff. Fortunately, plaintiff didn't die. But of course, he did it a cop bar and the cop. So the shooter, the guy who shot the plaintiff, he gets killed by the cops who were in the bar, because there were six cops in the bar.

Tim Kowal 36:58
Okay, well, I wanted to get to some other procedural curiosities here to try to compare and contrast here. Let's talk about starry decisis. I mentioned earlier than that. In California, we have no horizontal starry decisis. So we have six districts District Court of Appeal in California and opinion of any one of them is not binding on any of the others. In fact, the opinion of the Fourth District Court of Appeal is not binding on what it's going to do today. So it's kind of Olly olly oxen free, there's no precedential value basically wouldn't burn very, very similar

Patrick Eckler 37:30
to what happened with Justice statement the other day in the fourth district. Then we talked about it where the guy said was the case it started out in the second district, right? So temple justice diamond had to say this is one of the ones that the Supreme Court, no, this was part of the gerrymander. This was part of the gerrymander.

Dan Cotter 37:46
This is part of gerrymander. Yeah. not bound by fourth or second. So it's just a mess. And, as we mentioned earlier, the the first district has, I think, five or six, panels, six, six, and so even there, and they rotate every so often, so that there's not the same for three or on any panel and given time. And so in the first district, again, because there's six divisions, because even you can be in the same division on the same issue, but because it's three different panelists, and because they rotate, there's no binding effect at all, even though as Pat said, we have this theory in the thing that we have one appellate court, but unlike Indiana, which only has one Indiana appellate court isn't the size of the state. Here we have very different monster.

Tim Kowal 38:32
Yeah, in Illinois, is one districts opinions. Do they follow their own opinions? As a matter? Of course, maybe they do or better practice? Maybe they do. But they're not bound to know well, they're not boundary was found to follow its own opinions or any other districts opinions?

Patrick Eckler 38:45
That's right. So give me an example. Another one that's close to my heart, because I wanted to appeal. So the statute of limitations for spoliation claims. So the first district was split on what the statute of limitations was set. It was five years, the second district Senate was two years. And I'm sorry, the third district said it was two years. So that meant the court I was in was in the second district, which means he gets to choose if the second district had spoken on the issue that he was bound by what the second district said, if the district if he's in the second district, and only the first district has spoken to it. He's bound by as a trial judge. But if he's in the second district, the first district said A and the third district said B, he gets to choose which one he likes. Okay, oh, we can choose C, I have C's on the menu. So but that's the

Tim Kowal 39:29
trial judge bound by the judicial opinions in his or her own district,

Patrick Eckler 39:34
if they've spoken to it, or they're and they're bound by any of the appellate courts? Have they spoken to it? But if there's a conflict, they're bound by the one in which they sit. And if there's a conflict, and it's not one of the courts of the district in which they sit, they get to choose? Yeah,

Tim Kowal 39:50
that's something that's different here in California. Because you are not bound. A trial judge is not bound by the appellate decisions of its own district. You can follow any other district Oh, okay, that's it. That's interesting. Do you think there'll be some sort of loyalty to your own district? But no, it's not. So that's,

Patrick Eckler 40:08
I mean, your system is not unlike the fact that the appellate court is not bound by its own decision is no different than the federal system, May a federal district judges and bound by his own rulings, he's bound by the Supreme Court. He's bound by the circuit court in which he sits, but he can do pretty much what he wants otherwise in the circuit court isn't bound by anything, but the Supreme Court, they can do whatever they want. They don't have to pay attention to what some other Circuit Court did.

Tim Kowal 40:31
The panels of the Ninth Circuit are bound by Ninth Circuit precedent. They do have horizontal starry decisis so

Patrick Eckler 40:37
that they have that in the Seventh Circuit in their own of course, but they can only be overturned by a non bog panel if we're gonna change our mind, which they did in the ivy decision, which dealt with discrimination based on sexual orientation.

Tim Kowal 40:49
Okay. Okay. So we have a similar situation in terms of no horizontal starry decisis in Illinois or in California. Let's talk about unpublished opinions. So in California, we cannot cite to an unpublished opinion in our state court system, not just that they have no precedential value, you may not even mention them, technically, not even to show technically, even if you're filing a petition for review in the Supreme Court, you're not even allowed to show that there is a split of opinions that split a decision when one side of that split is made up of unpublished opinions. But it's routinely done anyway. And the Supreme Court has never admonished anyone. It's apparently a tacit blessing on that practice. Is it? How does it work in the Illinois State system?

Jeff Lewis 41:29
Not that simple.

Tim Kowal 41:32
That's simple. No.

Patrick Eckler 41:34
So in Illinois, we had unpublished opinions were created. Because in the middle, there were too many cases. And so they cost too much to bind all the cases. So what they did is they gave the Supreme Court had an order that gave a certain allotment of published opinions to each of the appellate districts. And that went on for about 10 years. So the appellate side, what's that? A lot meant they had it a lot for about

Tim Kowal 42:01
10 years. There's a number of opinions or number of pages, no the number of opinions that

Patrick Eckler 42:05
they were allowed to publish. And that was, like the early 90s to the mid aughts. And then they kept the rule even after in the late aughts when we adopted an entirely electronic system and stopped binding them. We still kept unpublished opinions and basically unpublished opinions turned into the flotsam and jetsam of Illinois jurisprudence. And you know what says we're going to put all this stuff. And so there's been a one and you can't and at that time, you could not cite them for any purpose for any reason. Nobody's allowed to use them. There were stories of justices and oral argument ripping up the briefs of an advocate who had cited at appellant they're the stories of this, this reveal.

Dan Cotter 42:45
Right admonished in front of you for doing that.

Patrick Eckler 42:50
ripping out Yeah, yeah. Open. So yeah, yeah. So don't do it. So then there was a long and so I had been a very loud advocate of getting rid of this rule, but only because of the flotsam and jetsam only prospectively not retrospectively, the Supreme Court Rules Committee wrote it to be able to use all the unpublished opinions and to do justice to their argument. The argument was that a judge is a judge can cite to music, lyrics, poetry, you know, books, but he can't cite to an unpublished opinion. Like it's like this podcast, but to this podcast, we'd like to I don't know why you would do that. But and then so that was direct with the Supreme Court changed it. Instead, it was only opinions that were issued after January 120 21, are allowed to be cited for persuasive authority only they are not binding, we still have a process of a lack of getting opinions published. So the opinion is unpublished. You can file a motion asking for it to be published. And generally, that's granted. So we still have that process of pinning of opinions that Do you have a process of allowing unpublished opinions to get published upon request of one of the parties? Yeah, within 15 for for a non party such and I've heard that too. Yeah, a non party could ask for it. Yeah. And now in Illinois, what happens is when you do that, you that extend the time to file a petition for leave to appeal to the Supreme Court. So if an opinion is published, then the 35 days to file your PLA restarts. So there's that?

Tim Kowal 44:25
Yeah, that happens here as well. Yeah. 15 days of filed that request to get it to make it published.

Patrick Eckler 44:31
So does it restart the time to file the PLA or whatever? Supreme Court?

Jeff Lewis 44:36
Petition for review? It does restart the time here.

Tim Kowal 44:38
Yeah, yeah, it's 30 days before it becomes final in the Court of Appeal, and then the baton gets handed up to the California Supreme Court. All right. Now let's talk about written opinions. Now I was recently talking with Lindsey Lawton, another LinkedIn appellate attorney. And she pointed out to me that in Florida, they have no right to a written opinion, when the Court of Appeal is affirming. So I get a lot, a lot of the differences. Our summary affirmance is just one page judgment is affirmed. Have a nice day. In California, we have a constitutional right to a written opinion on appeal. And after talking with Lindsay, I was very grateful for that constitutional provision. Do you have that in Illinois, you have a right to a written opinion.

Patrick Eckler 45:20
I think you get it. I've never seen it not done. What you what you have in Illinois, is supreme court rule 352. That the you're entitled to oral argument Unless the Court says it doesn't need it. And then it then has to explain why. Now, the appellate court almost as a rule doesn't do that. There's only one panel of the first district on opinions that are issued without oral argument, that'll drop a footnote and say, under supreme court rule 352. We say we don't need oral argument to decide this case. We don't have oral argument. There's only one panel that seems to do that with any regularity in the entirety of the of the state. But they're the Supreme Court, I can't remember which Chief Justice it was really wanted more oral argument, and really got on some of the districts for not having it, in particular, the second district for a while, very rarely would grant oral argument. And then they got the beat down. And then they started doing it more often as my understanding grudgingly as I understand it, but yeah.

Dan Cotter 46:15
But then what happened with the second district now is certain a rocket docket. So whenever we see a case of interest, Pat night for the podcast, we do it that Sunday, because it's oftentimes Monday or Tuesday, they miss you. And sometimes it along opinions. It's almost like they're pre written. They're 2030 pages of detailed stuff that would be impossible for any clerk or justice to pop out within two days of oral argument. But

Patrick Eckler 46:40
yeah, my last appeal in the second district that did not go as I would have liked, I knew what was going to happen. And I knew they had already written it. And sure enough, seven, less than seven days after the oral argument, there was a 30 page opinion. So they didn't play. We didn't write that in the week in between the date of the oral argument and the date that they issue the opinion. So, so

Jeff Lewis 47:02
tentative rulings, many of your students are focused.

Patrick Eckler 47:05
No, that's very I have, I have a case out in California with one of my partners, and they've got this tentative rule. It's like, what the hell is this? It's about that. That's wild.

Tim Kowal 47:17
All right. Well, I've got a ton of other topics that we could touch on. But we're running short on time. So let me just ask you, Pat and Dan, are there any procedural quirks anomalies, curiosities that you wanted to talk about that you think are really unusual in Illinois, or that work really well in Illinois and ought to be adopted elsewhere? Before we move on? And I thought I wondered if maybe it would apply in the summary judgment context. I know that's an area where you need the best trial attorney minds and appellate attorney minds kind of coming together, making sure you're preserving all issues for post trial motions, things like that waivers. Sometimes, Jeff and I talk about the rigidity of federal rule of civil procedure 50, A and B, which require judgment as a Motion for Judgment as a matter of law to be made before the jury is charged. And after in order to preserve it for appeal, or else it's just forfeited. Any other issues we should talk about for the good of the record.

Patrick Eckler 48:09
I can't imagine Illinois does anything that anyone else should adopt? I can't imagine there's such a thing. I will say that the state, the courts have pretty well enforced section 1202, which deals with post trial motions. And if you don't raise it, your goose is following a jury trial. If you don't raise it in your post trial motion, your goose is cooked on that issue. And there was a case that came down. Not so long ago, I wrote an amicus brief on it for the Illinois defense counsel with a colleague, former colleague of mine rich Berglund on this very issue. And it's that that's one area where I think they really have done a we've got a good rule and they've actually applied.

Tim Kowal 48:50
Yeah, that sounds similar to rule 58. Yes. Yeah. Give the trial judge an opportunity to fix the error if there was one. Yeah, right. Yeah. They're not that they're not that rigid here. There are only a couple of different kinds of issues that you have to raise in a motion for new trial. But otherwise, you're free to let all your legal issues, you're good legal issues, put those in your back pocket for appeal and not give the trial judge and opportunity to fix it. Okay, what about just quickly touching on oral argument on appeal? Do the Illinois State Court Courts of Appeal ever give tentative opinions or focus letters they ever tip off the attorneys what they should be ready to talk about?

Patrick Eckler 49:27
They don't call them that they may send on rare occasion they may send be prepared to talk about X, Y or Z.

Tim Kowal 49:33
Yeah, that's this letter we have here. That's very, very rare.

Dan Cotter 49:37
Yeah. And occasionally they'll ask for something be brief. But again, it's very rare as well. Yeah. something peculiar to the case. It's far

Patrick Eckler 49:45
more common in the Seventh Circuit, we'll write a letter to the or give supplemental briefing if they raise an issue, especially in the Seventh Circuit on jurisdiction, subject matter jurisdiction if they are always questioning jurisdiction in the Seventh Circuit. So you'll oftentimes have How the hell are we hear in this case,

Tim Kowal 50:00
they're just dipping their toe in the water. They're in Illinois State courts on these, what we call focus letters. There's only a couple of districts that do it here in California, but the reception among attorneys is universally positive. And then whenever a justice is asked during some conference on a panel or something, they're usually for it, if they have an opinion on it, and they'd say, it's just a matter of getting a new generation of justices on the bench who will adopt the practice, because otherwise, it's just not something that they're used to. And so they don't do it. I kind of

Dan Cotter 50:29
like it because it focuses the parties on the topics that the justices are interested in rather than sometimes where they just kind of, you know, so free for all and not very helpful, potentially.

Tim Kowal 50:41
Yeah. All right. Well, thanks, Pat and Dan, for joining us and talking about some of these curiosity, appellate and procedural issues. Jeff, let's do a quick lightning round with Dan and Pat here.

Jeff Lewis 50:53
Lightning round. Okay. This is our patented copyrighted a segment of the show and answers the most pressing questions that Vex appellate nerds around the world. short responses, one sentences if you can one word if you can. I know it's hard before yours to do that. Question number one thought preference century school book your mind or something else? Times New Roman?

Dan Cotter 51:13
Yep. Come on.

Tim Kowal 51:15
We're recording we are looking at why just is God?

Patrick Eckler 51:19
Yeah, I will

say that it is. I rarely see. I mean, there are some people that use Garema. On some that use. Bookman was the one that my 13 point Bookman was one that my former colleague of mine who has 700 published opinions, that's what he would use. And that's what I use on a lot of appellate briefs because if it was good enough for Robert Chemours, it was good enough for me. But generally, my grant regular briefs are probably Times New Roman, which is probably sacrilege

Jeff Lewis 51:46
to we got to have a litmus test for future guests. Question one. All right. Second question.

Patrick Eckler 51:53
I'm bracing myself Lisa did say Ariel.

Jeff Lewis 51:55
Yeah.

Tim Kowal 51:56
Comics.

Jeff Lewis 51:59
Second question. Following up period, one space or two, one but I often

Dan Cotter 52:04
straight just by by my 56 year old brain.

Patrick Eckler 52:11
To one less I'm writing for the Illinois Defense Council quarterly, which requires only one. Wow. Okay. Yeah, I'm failing all of this miserably.

Tim Kowal 52:22
You don't take a hint from that?

Patrick Eckler 52:24
I've answered honestly. That's the truth. Yeah. Know what I'm supposed to say. Right?

Jeff Lewis 52:31
I think I know the answer is third question, but I'm gonna ask it anyway. meat of your brief when you have headings, argument headings, now Roman numeral one, etc. Use all caps, sentence caps or initial count.

Dan Cotter 52:43
So it depends. So

Patrick Eckler 52:46
in the Roman numerals, I typically have a brief I have five trial corpora. That will be five parts, introduction, facts standard, you know, those are all caps. The second level the eighth, so those are Roman numerals. The next ones, the A's, are just regular sentence and bold. They're not first letter caps. It's a sentence. That's bolded with a period as a complete sentence,

Tim Kowal 53:09
there you go, correct answer.

Jeff Lewis 53:11
I could live with that. I can absolutely put that you've redeemed yourself.

Patrick Eckler 53:15
Okay. Well, yeah, we haven't got to the Oxford comma yet.

Jeff Lewis 53:19
I don't have a question for that. I think the final question I'll ask is Tim's question that he likes to ask which is pled P OLED or pleated Lea de vie, what's your preference?

Dan Cotter 53:29
The correct one is the latter. I read that somewhere. That's the correct one. Yeah, it's

Patrick Eckler 53:34
plaid. Definitely not pleated. That sounds terrible. I don't care about right. It sounds terrible.

Dan Cotter 53:40
Right, though that's the correct answer. If you look at the there's actually a white paper or something out of that.

Tim Kowal 53:48
The official institution act to that

Patrick Eckler 53:50
70 song of love and he was right. I don't want to I have love and he was wrong. I don't want to be right. You know, that's

Tim Kowal 53:58
the official institution that designates new irregular verbs has not made pleated into an irregular verb. So plaid is just a made up irregularity.

Patrick Eckler 54:07
It's one that sounds good, though. All right.

Very important. On the years,

Jeff Lewis 54:14
both survived our dreaded lightning round, and we'll be sending you our patented copyrighted coffee mug as a thank you for surviving the lightning round,

Tim Kowal 54:22
appropriately edited space not to win between sentences. Okay, well, that's gonna wrap up this episode. And we want to thank our sponsor case techs once again for sponsoring the podcast. When we include links each week in the show notes to our podcast, we use case text listeners of the podcast will find a 25% discount available to them if they sign up at case tech.com/calpe That's case text.com/c A L P.

Jeff Lewis 54:51
And if you have suggestions for future episodes, please email us at info at Calpine podcast.com And in our upcoming episodes there are tips on how to lay the groundwork for an appeal would prepare On retrial.

Tim Kowal 55:01
Thanks again, Dan and Pat,

Announcer 55:03
thank you. You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases, the news coming from the California Court of Appeal, and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening. And please join us again

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I haven’t met an attorney who wouldn’t love a tentative opinion or a “focus letter” on their appeal. But have you ever tried to articulate how, exactly, it would help to know what the panel is thinking? It seems intuitive, but really, what would you do if you knew the panel disagreed with you on a certain argument? Repeat your argument—loudly, with gesticulations?

One of the reasons oral argument is helpful, suggests Justice Laurie Zelon—now retired and working as an arbitrator—is because it gives counsel an opportunity to give a “surprising” and unexpected take on the case as a whole. “If you give a tentative ruling, you may not hear those things,“ and “there is less opportunity to see that turning that you didn’t see.”

Think of it this way: Every attorney knows that the most important part of the brief is not Roman numeral III, Part D, subpart 4, romanette iii. Even if that is where your key legal argument lives, the prime real estate in your brief is your introduction. Why? Because that’s where you introduce your sympathetic client, set the tone of your brief, and make your common-sense pitch for your proposed outcome. If you haven’t made your successful elevator pitch, a laser-focused re-examination of your legal argument from romanette iii of subpart D.4 of your brief is not likely to save you.

Take the opportunity of oral argument instead to refocus your elevator pitch.

Watch the clip here.

This is a clip from episode 48 of the California Appellate Law Podcast. Listen to the full episode here.

The 100th episode of the Portia Project®️ airs today, March 2, 2023, kicking off Women’s History Month. The Portia Project Podcast features women judges, attorneys, and other legal professionals, chronicling their unique paths in the law.

Subscribe in your podcast player, or listen and learn more here.

In anticipation of this achievement, we interviewed M.C. Sungaila, the host and creator of the Portia Project Podcast, in November on the California Appellate Law Podcast. Listen here.

M.C. was also the Cal.App.Law.Pod’s first guest. You can listen to that episode here.

You can support the Portia Project Podcast by purchasing one of the guests’ books, or books by or about other women lawyers here.

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In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations because that is the prerogative of the the Legislature, who has not enacted such a mandate. The court reasoned that the Superior Court was correct when it ruled that “there was a ‘statewide standard for school vaccination,’ leaving ‘no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates.’ ”

Two charter schools and a former state senator, Richard Pan, who authored SB 277 out of a need for a “statewide standard,” filed a petition to depublish the opinion. The charters, Granada Hills Charter and New West Charter, argued that the Court of Appeal’s opinion “was overly broad and erroneous,” and that it would be “misused to interfere with the prerogatives with the prerogative of public and non-public schools alike.”

Senator Pan argued that individual schools need to be able to set their own vaccination policies. He said that when he had urged, while a senator, a “statewide standard,” he meant only “a minimum standard.” Schools should not be able to ignore or relax state vaccine mandates, according to Pan, but schools should be able to impose new and stricter mandates.

The plaintiff, the parent of a child fully vaccinated except for the Covid vaccine, responded by noting that Education Code section 49405 states that “ on the subject of vaccination shall be adopted by school or local health authorities.” The plaintiff also noted that the opinion meets the requirements for publication under California Rules of Court rule 8.1105 because, among other things, it establishes a new rule of law or applies a new interpretation of existing law, and involves a legal issue of ongoing public interest.

On February 22, 2023, the Supreme Court denied the depublication request, and denied review.

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