Question: What’s the difference between an arbitration ruling based on an interpretation of contract that is merely wrong, and one that is irrational?
The answer in Hayday Farms, Inc. v. FeedX Holdings, Inc., No. 21-55650 (9th Cir. Dec. 19, 2022), an appeal from an arbitration award, is about $7 million.
This is yet another cautionary tale that arbitration severely constrains the litigants’ appellate rights. The 9th Circuit panel agreed that the appellant’s interpretation of the contract was the right one, but that was not enough: the arbitration award was not “irrational” or “some form of vigilante justice,” so it stands.
The arbitration panel awarded the plaintiffs $21 million on the contract dispute, but when the plaintiffs moved the district court to confirm the award, the defendants argued that $21 million was excessive. The large award was more than the plaintiffs stood to receive had the contract been performed, and so under California Civil Code section 3358, the award was excessive.
The district court agreed the arbitration award was excessive, and reduced it by $7 million.
On appeal, the Ninth Circuit addressed a question of first impression in its own circuit: whether the standards for vacatur in the Federal Arbitration Act applied for awards governed by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, when the Convention did not specifically say so. Agreeing with other circuits, the Ninth Circuit held that the FAA standards did apply. And the standard, expressed in different ways, is exceedingly tough.
Here is how Marc Alexander, proprietor of the California Attorney Fee Blog and the California Mediation Blog, described the court’s analysis:
“A plausible interpretation of the contract cannot be overturned. An award that is manifestly irrational and completely disregards the law can be overturned under FAA standards. The "irrationality standard 'is extremely narrow and is satisfied only where the arbitration decision fails to draw its essence from the agreement.'" Does the decision fail to draw its essence from the agreement? Have we entered the realm of the metaphysical?”
The Ninth Circuit held that the original $21 million arbitral award was not irrational. And so it had to be affirmed. That meant that the district court’s order reducing the award by $7 million had to be reversed.
The importance here is that the 9th Circuit reversed the district court and reinstated the aribtral award, even though the panel agreed with the district court that the award was excessive. As Judge Milan wrote, the defendant "probably offers the best interpretation of the parties’ agreements,” and the panel expressed "concern about a seemingly unfair damages award that likely violates § 3358.”
But as long as the arbitral award "was not some form of vigilante justice,” it has to be affirmed.
The “irrationality standard” strikes me as itself irrational. An interpretation is either right or wrong. There is almost always a “rational” way of arguing any position. The HayDay court’s standard for challenging an unlawful arbitration award is, in effect, “do not bother arguing any infirmity in the arbitrator’s decision, for the only ground for reversal is infirmity of the arbitrator’s mind.” The upshot of this standard is that only a vote of no-confidence in the arbitrator’s cognitive or ethical constitution can warrant a reversal.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.
Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)
And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.
Also:
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Motivated by his sister’s deafness, Justice James Lambden has long advocated for improved access to our court system. “Without access,” he says, “there is no justice.”
But by the time Arnold Schwarzenegger was governor, California still had no real funding for access. So Justice Lambden urged a budget line item for legal services.
It failed. So he tried again the next year.
It failed again.
Not one to bang his head against a wall, Justice Lambden tried political savvy. He renamed the budget item. It’s name: The Sargent Shriver Access Issue. “We always suspected Maria Shriver probably had a little influence on the governor.”
This time, it passed. “It was the first time California actually funded legal services at that level,” Justice Lambden says, “and it’s been a line item ever since,” responsible for $300 million in access funding.
Watch the clip here.
This is a clip from episode 51 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.
Unlike federal judges who sit or life after being confirmed by the Senate, California Supreme Court justices’12-year terms follow confirmation by election. But our newest justice, Kelly Evans, was not confirmed, and won’t be for another four years. Why?
Supreme Court watcher David Ettinger explains that Gov. Gavin Newsom opted to “appoint” then-Alameda Superior Court Judge Kelli Evans to Justice Guerrero’s associate-justice seat.
And when Ettinger disagreed on his blog, he got a phone call from the governor’s office.
Ettinger noted that the state constitution says that when a justice does not file her “declaration of candidacy” before September 16—thus indicating she was going to let her term expire—that triggers the governor’s duty to “nominate” a new justice to sit for a new term. And a new term must begin with a confirmation by election.
Here, although then-Associate Justice Guerrero did file a declaration of a candidacy, she withdrew it when she was nominated to become chief justice. That, says Ettinger, means Guerrero intended to let her associate justice term expire, meaning the governor needed to nominate a new justice to a new term.
Gov. Newsom, on the other hand, took the position that Justice Guerrero left a “vacancy” when she ascended to the Chief Justice seat, and vacancies are filled by “appointment,” not nomination.
Ettinger explains in depth in his At the Lectern post.
We also discuss the 1968 debacle over LBJ’s nomination of Fortas after Earl Warren announced his retirement, followed by the scandal over the destruction of the “Fortas papers” leading to the first and only filibuster of a SCOTUS nominee.
Should there be a norm against justices retiring in an election year, if only to avoid these dramas?
Watch the clip here.
This is a clip from episode 53 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.
Preparing for an expert witness at trial? You probably are ready with the key cases of Sanchez (preventing experts from testifying about case-specific hearsay) and Sargon (prohibiting speculative opinions). Sargon has become the go-to objection for out-there expert opinions.
The talcum-powder manufacturer defendants raised Sargon in the mesothelioma case of Bader v. Johnson & Johnson, No. A158868 (D1d4 Dec. 23. 2022). The plaintiff recovered a $12 million verdict based in part on plaintiff’s expert’s novel opinion that fibrous talc causes cancer. The defendants argued that the broader consensus of experts did not agree with the plaintiff’s expert. So the defendants objected on the basis of Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769.
But that was the wrong objection. The Court of Appeal noted that Sargon “does not speak to whether a theory has achieved a consensus in the field sufficient to render it "generally accept[ed].”” If the defendants wanted to object that the expert’s opinion was a novel theory not generally accepted within the relevant scientific community, “their motion to exclude did not challenge his testimony based on Kelly and its progeny.” So the objection was forfeited.
Had the defendants raised a Kelly objection, it could have come out either way, so the court did not express a view one way or the other.
But don’t feel too badly for the defendants’ attorneys: the Court of Appeal went on to hold that, even if the trial court erred in allowing the expert opinion to come in, the error was harmless and did not affect the result.
The Upshot: Don’t stop at Sargon! Sargon is not a substitute for objections to novel and not-generally-accepted scientific theories. For that, make sure to keep People v. Kelly (1976) 17 Cal.3d 24 in your expert-witness toolkit.
h/t to Michael Shipley for covering this case.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022.
Some of the tips and trends we cover:
And from one of our favorite conversations, Justice James Lambden offered this metaphor for the practice of law and the importance of civility:
“Litigation is not like preparing for a battle, it’s more like going on an expedition … like taking a trip across the mountains and encountering different places where you have to do different things.”
Transcript:
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Kowal both Jeff and I are certified appellate specialists and uncertified podcast co hosts we split our time about evenly between trial and appellate courts. My wife says that makes us attack librarians. So we attack librarians 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 and if not, please recommend it to opposing counsel, and a
Jeff Lewis 0:42
quick announcement and thank you to our 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. And I highly endorse their service. And listeners who are Podcasts can receive a 25% lifetime discount available to them. If they sign up at casetext.com/CALP that's casetext.com/calp.
Tim Kowal 1:05
Okay, Jeff, and we're continuing our recap of 2022, some of the best and worst practice tips and Follies of 2022. And in Episode 64, we brought you our picks for the most important cases of 22. Today, we're going to review the cases from 22 that we thought had the best tips for advocacy, both briefing and oral argument and civility, avoiding sanctions, we run the gamut so and also what to do and not to do when it comes to briefing and oral argument. So Jeff, you want to kick us off on the category of briefing and writing what to do what not to do and briefing and writing some of our best and worst from 2022?
Jeff Lewis 1:44
Yeah, I'll kick us off. And thank you so much for starting starting this list, he did a great job with this list. We're gonna start with Sigmon versus imdb.com, from Episode 23. And this is a published decision. And the opinions only four paragraphs long, a lawyer who represent himself at trial and again on appeal is an opening brief had a table of authorities with only one entry. And from this, the court found that legal propositions in a brief without a citation to back it up will be ignored. It's a great as Tim would say, a great tool to add to your toolkit for briefing rules.
Tim Kowal 2:18
That's right. Yeah. And I thought that this case, Jeff was was not really that surprising, because we all should know those of us appellate practitioners who've read the rules of court that if you don't include citations to your arguments that they may be ignored. I thought this was interesting, because why did the court publish it? Because that was the sad thing is that this case was published and was very, very short. So you can't just say that? Well, it's held to its facts. It's because of these unique circumstances. There were no circumstances provided. In this opinion. I thought that maybe this published opinion that holds that uncited legal propositions may be ignored could be abused in the future just for citing routine, black letter law, if you don't include a citation for it. Is that going to be ignored? You think, Jeff?
Jeff Lewis 2:59
I don't think it's gonna be ignored. Look, I think it's obvious the law clerks at the air that research attorneys of the Court of Appeal decided this would be a published decision, obviously, so to be mentioned on this podcast to improve the quality of appellate briefs.
Tim Kowal 3:12
Both right. Okay, let's go to our next one.
Jeff Lewis 3:15
All right. The next one is unpublished decision and Quach versus California commercial Commerce Club from April 2022. Again, it's unpublished.
Tim Kowal 3:23
I think this one later did become published. I think I put in Okay, Acacia so it was later published. Nice. Okay. Breaking news.
Jeff Lewis 3:30
This is one of these rare cases where I agree with you, Tim, this case suggested is unethical to copy arguments from court opinions without attribution. And I agree it's not a good practice. But the Court of Appeal in a footnote said it'd be unethical for a appellate attorney to cut and paste an argument from an opinion without giving any attribution. I think you had a write up on this.
Tim Kowal 3:52
Yeah, I did have a write up on this. I wondered why you would want to copy and paste language from a from an opinion without citing to it, if I recall correctly, this was I guess it's possible that it was copied and pasted from an unpublished opinion. And maybe that's the reason for not citing to it. Yeah, yeah. Yeah, that could be and I had heard from a legal conference somewhere that a research attorney had said, you know, when you copy and paste from unpublished opinions, just to get around that non citation rule, we know about it, we don't like it. I thought, why would you care? If it's a good argument, then you then follow the argument? If it's not a good argument, then go find a persuasive than fine, but don't dig me for borrowing. There's no copyright protection and legal opinions. All right, one of our most fun episodes, Jeff, I thought was our interview with Ross Guberman and episode 33. Ross is a treasure trove of briefing advice, and that was an episode 33. So refer back to the full episode here. But here are some of the highlights that I recall from our conversation with Ross Guberman. We talked about how all judges have three key fears we should try as advocates to try to tap into those fears that judges have. They are the fear of misconstruing a doctrine or statute the fear of creating new duties, rules or defenses and their judicial opinions and the fear of reaching an unfair result or causing harm to a litigant. So try to tap into these fears when you're writing your next appeal, see if you can tap into them and either spark or allay those fears as the needs of your case dictate. Another tip from Ross Guberman is about discussing bad facts with confidence, not out of defensiveness. Judges and coyotes both can smell fear. But unlike with coyotes, you don't want to try to haze a judge, but you definitely don't want to act like you are fearful of certain facts or and you certainly don't want to just plain ignore bad facts or downplay them. That all looks defensive, take the bad facts head on and explain why you win. Anyway, another tip from our conversation with Ross Guberman. Remember, the purpose of legal writing is to help judges organize their thoughts. briefs are a tool but aspire to make them tools that are a pleasure to use. So try to give them the information they need. But sometimes, you know, this isn't just a toolkit. It's not just hammers and nails, tried to make it a pleasure, use a good turn of phrase, try to avoid jokes. Humor is sometimes not well taken in in legal writing. But there are still ways that you can make your writing pleasurable to read. We did talk about using clever quotes and flourishes remember Business before pleasure nail the organization and analysis first, mastery of style comes later. And with great care. That's why Ross reminds writers of the old advice to kill your darlings. Find the line in your brief that gives you the greatest satisfaction when reading it back and then delete it.
Jeff Lewis 6:41
You need your brief to stand out you know get attention especially if it's a repetition. You want to get attention. But I guess you don't want the writer to get the attention. Jenny want the legal issues and arguments to get the attention? It's a fine line.
Tim Kowal 6:53
It is it is a fine line. What do you think about the kill your darling rule? Jeff, do you use that you ever write anything when you get when you read it back and say I really liked that line?
Jeff Lewis 7:02
You know, I'm hard to satisfy when I get to the final final brief that I'm ready to submit. I still think there's areas that can be fine tuned. It's the rare day where I look at that, Scott, I really enjoyed reading that back. I have a very critical eye and so I don't find many darlings. This is not an issue that I typically have in my briefs.
Tim Kowal 7:19
Yeah, I do like writing I like aphorisms, putting aphorisms, pithy remarks in my writing, and I try to put my, I guess, sharper edged aphorisms in my non legal writings. So if I'm writing essays or book reports or something, I'll put that up on a blog or on LinkedIn or something and try to scratch that itch there and leave them out of my briefs. Right. Okay. And then on Episode 51, we had another one of our great conversations with Justice James Landon, a retired Court of Appeal justice from the first district I just really love this line to that Justice Landon had describing litigation. He said, litigation is not like preparing for a battle. It's more like going on an expedition like taking a trip across the mountains and encountering different places where you have to do different things. And the reason I put that in the outline here, Jeff, under briefing and advocacy tips, I thought it was just kind of a great high level type of way of thinking about your advocacy in general, that everything about what we do in persuasion, is like taking a journey. It's like trying to take the judge that you're trying to convince on this journey with you through the facts. It's kind of a metaphor for showing and not telling, you know, you don't need if you're trying to use adjectives in order to bring your judge to your conclusion, you're doing it wrong, you need to take them on the journey with you. You don't get to magically teleport them to the conclusion by way of adjectives and adverbs. Right, right. Another one of justice Landon's tips was have an elevator pitch for your case, if you only have arguments, but no theme, you're not ready to sell your case. That was another great tip for advocacy in briefing in general, if you're going into your brief, without really knowing what your case is about. Maybe you're not ready to put pen to paper yet. You should know the theme of your case before you try to craft your arguments
Jeff Lewis 9:09
and maybe abandon themes that were adopted at the trial level and tune them better if and switch them if they didn't work at the trial level.
Tim Kowal 9:16
That's right. That's right. That was the tip that Justice Thompson had for us. We'll we'll come to a recap of his tips as well. And then justice Landon had this bit of wisdom about the vexing problem of what to do about unpublished opinions. We talk you know, this is one of my hobby horses. Jeff, what do you do when you find that great case on all fours? All the facts are there the law is there but it's unpublished, just as Landon Landon says, Who cares? The California Court of Appeal is not bound even by published decision. So even if it was published, it's not like it's going to save the day for you. There's no horizontal sorry decisis in the California appellate system. If you find good legal reasoning, whether it's in a published or unpublished opinion, use it. If the good argument comes from a published case, then make the art even cite it if the good argument comes from an unpublished case, make the argument but don't cite it. In either event, it's not the best citation but the best argument that wins. And Jeff This reminded me of one of my favorite quotes kind of in my I tried to memorize this. I haven't been complete a memory memory yet, but it's Johann SCOTUS authority sometimes precedes from reason, but reason never from authority. We should not opinion and this was one of the early church fathers, we should not allege the opinions of the Holy Fathers unless it be necessary thereby to strengthen arguments in the eyes of men who unskillful and reasoning yield rather to authority than to reason. I thought that just reminded me justice Landon's comment reminded me about this because he says, you know, it's not about the authority, you're not trying to you're not trying to arm wrestle the judge into believing your arguments, you want to persuade them into believing your arguments,
Jeff Lewis 10:52
yeah. Or at least give them comfort in terms of laying their fears that at least other people have either had published or unpublished decisions come to the same line of thinking. So the decision maker here would be in good company, right?
Tim Kowal 11:05
Yeah. Okay. And then we also talked with MC Sangala, our first podcast guest, and also who also made another appearance on episode 60 of the podcast, MC has interviewed over 100, judges and attorneys now on the Porsche project, maybe even more by now, it's been a couple of months. She's distilled the wisdom and experience of women, judges, justices and top attorneys in the nation. And the big idea that MC Sungai, Allah came to, after all these interviews is that when writing for a judge, be mindful of the disconnect between lawyers and judges, advocates are looking for an outcome. But appellate judges are looking for an opinion, you're looking for a way to write that opinion, consistent with the law that makes us few innovations as possible. They're not like us advocates trying to bury opposing counsel, they are trying to do so write their opinions in a graceful manner. So try to help the judges get to a conclusion that fits comfortably within settled law. And obviously, in a way that helps your client as well. Yeah, yeah.
Jeff Lewis 12:07
And then next up from Episode fifth. Before we had our interview with Justice Thompson, I retired justice Thompson, who I give some advice on rip petitions. If you don't convince the panel in the first paragraph, you've lost, but some justices might be more lenient. That's a practice we follow at this firm. And we've applied it to good results here on briefing, Justice Thompson. advisors get the basics right. Follow the rules of court explain the trial court's air and how it resulted in prejudice. Acknowledge the flaws in your argument. And above all, be true to the record. I remember justice Thompson I asked him point blank here, two justices and the research attend our attorneys ever remember attorneys from this case to the next case who are not true to the record? He said, Yep.
Tim Kowal 12:50
You do not want to be memorable in that fashion. Yeah.
Jeff Lewis 12:54
And then using signposts and briefing transitions between sentences, paragraphs, and thoughts are the way good writers hold their readers hand throughout the brief. And the word Moreover, is a substandard signpost. Yeah. So that was Justice Thompson.
Tim Kowal 13:09
Yeah, that's right. Yeah. Moreover, is just another way of saying, I'm still talking. Not help.
Jeff Lewis 13:16
From episode 58. We talked about using pictures, even memes and briefing, we discussed the prayer at football games case in front of the US Supreme Court where one justice rebutted in an argument of another that prayer was quiet and short, private with that Justice use several powerful photos of a group of players congregating at the 50 yard line. So yeah, sometimes pictures and memes can be provocative.
Tim Kowal 13:38
Yeah, right. I know, this is a favorite tip of yours. Jeff, do you have any other elaborate just a little bit more on your practice of using pictures from the record in your briefs?
Jeff Lewis 13:47
I do like to do it. I like to take snippets of either it's a photograph or a key chart or exhibit and just cut and paste it right in the middle of a brief. It breaks up long arguments and long narratives and it catches the eye for better or worse. Do you like to do it on a related point
Tim Kowal 14:03
in the discussion section or the introduction of a preference? No, I don't typically do in
Jeff Lewis 14:07
the introduction. I'll do it normally, in the statement of facts statement, a case or argument, as you say, on a related point, you know, a lot of appellate lawyers don't take advantage, the fact that California Rules of Court let you attach any 10 pages you want to the end of a brief, and what are the 10 pages that you would most want the Court of Appeal to focus on whether it's from the record or from an important case, I find it really surprising that most appellate lawyers don't take advantage those 10 pages and find some picture or excerpt or deposition transcript or something and make it easier for the Court of Appeal justices to see what's important.
Tim Kowal 14:40
Yeah, that is a great tip. And I've been thinking more than it might be good just almost as a rule unless you have some better idea to use that 10 pages at the back of your brief to just maybe include the if you're well, I guess you're the appellant including the amended order or the ruling that you're challenging that has the trial court's reasoning that you're challenging on up Oh, that's the first thing that the that the research attorneys and justices are going to want to grab for.
Jeff Lewis 15:05
Yeah, yeah, I just filed an opening brief where we're challenging the jurisdiction of the court of appeal because the other side didn't file a Notice of Appeal properly. And we use those 10 pages to file to attach a judgment, an earlier judgment and a notice of appeal. Those are 10 pages. So the justices can very easily see those jurisdictional foundational documents.
Tim Kowal 15:25
Yeah, yeah, that's perfect. All right. In Episode 32, we talked with John Derrick and appellate specialist and appellate mediator, who as a former publisher offered this advice to attorneys in their briefs to when they're crafting their outline, that all important outline for structuring your brief use a decimal outline format for headings, like instead of Roman numeral one, and then big A, and then Arabic one, and then small a, use one and then 1.1, and then 1.2, and so on. What about you, Jeff, have you tried that yet? I know there is a I think it's a minority view that uses the decimal format, it's a little bit easier to put things in context, when you just happen to open the brief to a page and you see a number and you're being unfamiliar with the rest of the outline format. You don't have any idea where you are. What do you think, do you like the traditional way or this decimal format?
Jeff Lewis 16:13
I can't say I've used it, I would say if you've got nested arguments where you're at the 1.3 point 7.9 place, you got bigger problems in your brief and how to number in terms of complexity of arguments, but now I'm more old school use them?
Tim Kowal 16:30
Yeah, yeah, I think that's a good idea. Also, I know research attorneys and justices seem to be insisting that the courts are insisting that you bookmark your full briefs so that they can find all of your arguments and headings by using the bookmarks panel on the left hand side of Adobe Acrobat. So maybe that makes it less important to have that kind of absolute type of reference that the decimal outline form outline format would provide. And then another piece of daring advice in formatting your briefs came from Ryan McArdle in Episode 24, he had a lot of great writing and briefing advice, but the one I thought was the most daring was to kill those vertical lines on your pleading paper. Now, this is a trial court tip, not appellate court. If you're using pleading paper and appellate court, then you need to really rethink your life choices. But you can in the trial court, Ryan McCarl says, there's no reason to have those vertical lines on the left and right hand side of your paper, you do have to have the numbers that pleading paper format does require that you have the numbers so that the judges can cite the page in line numbers. But those extra vertical lines and especially even if you're including your firm name and address and email address and phone number on in the margins of your paper, that's just creating a lot of visual clutter that makes your your reader anxious. So kill all that stuff. Ryan McCarl says, I tried that on a couple of my briefs. I kind of like it. I haven't adopted it as my official pleading paper format, but I have tried it and I like it.
Jeff Lewis 17:56
I got a little anxious just hearing you talk about that the thought of removing those lines and sticking out like that. So no, thank you. But let me know how it goes for you.
Tim Kowal 18:06
You know, you and I both really adopting legal tech but sometimes you have a real Who Moved My Cheese disposition on certain. That's true. We also had had a really fun conversation with Stephen love. On episode 43 Devin love had reviewed a recent book on persuasion trial tips based on science on scientific studies. And Stefan's conclusion is that the tips were in greater abundance than the science. It's true that there is much interesting science on the limits of human attention. For example, you can get a person to remember a few things but one too many, and they forget it all. So this was in our review of John Blumberg book persuasion science for trial attorneys. And when Stefan love and then you and I Jeff went back and forth with him. During that conversation, the foil for the conversation was trying to decide whether all these great trial persuasion tips were scientifically based or just plain good advice based on common sense. It was all good advice regardless, but some of the tips we discussed were excessive information can lead to worse not better decisions. Juries learn better with pictures. He could have guessed that, but avoid competition for resources. So don't use written words spoken word and images all at the same time. It just creates overload and confusion. Not that was a good advice because I think we see this a lot Jeff Justin, even non legal presentations, PowerPoint presentations where people just put up on the screen what they're going to say and they also say it to you. Yeah, yeah. Along similar lines, you should not present all your evidence at trial because it overloads the jury's cognitive capacity. This is a tough bit of advice to put into practice, Jeff because it means you've got 20 pieces of great evidence, but this advice would say you know, cut out half of them or how do you know what to cut out? out if you got great evidence, don't you want to put it all in? When the appellate attorney coming in later say, why didn't you put it all in? Now, I don't have this available in my appellate record.
Jeff Lewis 20:08
Indeed, it requires a certain trust in the decision making process, a trust in the jury or the judge. And I suppose the enough experience a good read of the jury, you could do that. But you know, and on the point of excessive information, leading to worse, not better decisions and limiting this evidence, I wonder from a plaintiff's perspective versus a defensive perspective, if some defense strategies might be to have an access of information and presenting all evidence at trial, so the jury just kind of throws their hands up.
Tim Kowal 20:37
That's exactly right. We that reminds me of something that Ben Ikuta said during our conversation with him a couple of weeks ago that if if you're the defendant Hospital, in a med mal case, then confusion and complexity is on your side, you want to bring a lot of experts to talk a lot of jargon and a lot of confusing things. So the jury just throws up their hands and says, I'm sure the doctors have this all in hand. They know this better than I do. So yeah. So know when when simplicity plays to your hand. And when complexity plays to your hand that will help you decide whether to put in a lot of evidence or try to focus in narrow your case. Another bit of advice that we've talked about what Stephen love, judges who strive to run, ruthlessly efficient trials should reconsider. Eliminating downtime actually undermines jurors ability to process the information. So I've seen this a lot in trials, Jeff, where the judge is mindful of sucking up all the jury's time and doesn't want to use a lot of more breaks than necessary and wants to keep you know, done with your witness. Okay, get the next one in here, pronto. And let's get started ASAP. But if you're the pre trial attorney, try to build in a little bit of downtime in between your the different segments of your presentation that will help the jury process the information they just been given.
Jeff Lewis 21:50
Well, and there's a timing issue, a timing issue there. If you have a big point that's going to be made by a witness, maybe timing it right before the lunch break, or when you know, the morning break will happen. So that even though you have one of these judges, that is ruthlessly runs a schedule, you have a built in breaks, the jury has time to take in this big aha Perry Mason moment you've had on the stand.
Tim Kowal 22:11
Yeah, that's right. That's right. And if you do have a good checkpoint type of information, something you want to anchor in the jury's mind. Maybe you put that up on an easel board, but butcher paper, you know, write down the information and then leave it up there where the jury can see it the rest of the trial. Yeah, as long as your opponent doesn't jump up and down screaming, yeah, or they or they turn it around away from the jury. And then for the same reason, trial attorneys should slow down in their presentations, don't talk so fast, use repetition, and even stop talking every now and then again, let the jury digest the information you're giving them. All right, so next topic in our interviews this past year, Jeff, we've covered some issues regarding legal judicial writing. And again, we talked about this subject with Ross Guberman. When we talked about tweet worthy writing and judicial opinions, the trend in judicial opinion writing is toward informal writing. But Ross mentioned a Ninth Circuit opinion, we talked about this opinion by Judge Lee who had a couple of Hamilton references and a reference to the bachelor. And I think a Matthew McConaughey line. There was also some Star Wars commentator taking some some shots at Star Wars in the opinion. And this was all in a case about class actions. So maybe maybe the judge felt that there was a little bit of dry going Material that he would spice it up a little bit. And that prompted the question that that we talked about with Ross. What does informality mean? In legal writing? Does informality mean dropping a lot of pop culture references and tweet worthy, memorable aphorisms should? And if it does, should attorneys imitate this trend toward pop culture references and tweet worthy writing that we see in judicial opinions? This is kind of a monkey see monkey do phenomenon we have if we see incivility and informality and judicial writing, we're going to see it in attorney writing eventually, right
Jeff Lewis 24:01
now, right. And when justices does the loser of the case, think well, the case wasn't taken seriously. This was just a writing exercise. And that justices didn't appreciate that real people and real monetary issues were at stake. And same, I guess could be said of lawyers who adopt that informal style.
Tim Kowal 24:18
Yeah, yeah. And I think the takeaway there is that there is a difference between formality in terms of conversational legal writing, I think that's the good kind of informality that we can all adopt safely and that most judges enjoy more informal legal writing less stuffy legal writing, we can drop needless jargon and Latin. We don't need to overflow the banks of the English language and start trying out other other languages in order to make our points. We can stick with just conversational tone in our legal writing, but we can stop short of cracking jokes and that would be more appropriate for social media. And then also on the subject, Jeff, we covered a second amendment amendment decision in McDougal versus his county of Ventura This was back in episode 26. I think that's the episode we talked with Sean Brady. And, you know, Jeff, you and I kind of agreed at the time about Judge van dykes tone, we'll call it or his the tacky took in his majority and concurring opinion, I think it was where he anticipated there would be an on bonk review. So he wrote his own dissent in his concurring opinion. And after we talk with Sean Brady, who had mentioned that there's some weird things going on with some of our Second Amendment jurisprudence, and you feel that, as Judge Van Dyck obviously did, that there was something amiss going on and needs more attention than maybe the way he went about it was certainly sure, it was certainly successful at garnering attention into this kind of deviation of precedent on Second Amendment. So both you and I kind of thought, well, maybe there's something to it, if it's getting results in terms of garnering attention to an important issue. Maybe we have to call that a success. Do we still agree with Judge van dykes tack in the McDougal versus Ventura decision?
Jeff Lewis 26:03
Well, let me say more broadly, that I think the ability of a appellate justice or federal appellate judge to issue a dissent is one of the most important things that a judge can do. And it gets attention on issues that need attention. And so yeah, yeah, I still agree.
Tim Kowal 26:19
Yeah, I guess I do, too. I guess I do, too. It was we were just recapping our conversation with Ross Guberman about the kind of this monkey see monkey do problem. I I wouldn't want there to be too much imitation of Judge van dykes, we'll call it a derisive tone toward his colleagues. I think most attorneys would know that that's not the appropriate tone to take toward judges, even if judges sometimes will take shots at each other. Let's move on to tips about oral argument, effective advocacy in oral argument on appeal. We talked with Myron Moskovitz. I don't remember if this came up during our conversation with Myron, we just shared this during one of the tidbits of our episode, but Meyer Moskovitz talked about the futility of oral arguments on appeal. Myron observes how seldom oral argument affects the ultimate outcome and how tentatives are focused letters can improve the system. He also talks about how the refusal to give tentative or focused letters has become inexplicable. Myron says, Come on how many of us are quick enough on our feet to come up with a persuasive rebuttal to a new twist we've never seen before, right on the spot and no prior thought about it with three robes staring at you waiting to see if you can talk them out of a position they've already decided to take in their written opinion. And quote, I think that's a pretty strong case to be made for focus letters.
Jeff Lewis 27:36
Yeah, you know, I gotta say the most surprising thing about doing this podcast with you and interviewing retired justices is what a wide variety of opinions there are out there about the utility of oral argument. We've heard some appellate justices say, Yeah, it really doesn't make that big a difference. And most of the cases we've heard some say, yep, every one's important. You just never know when that's the that's the argument. That's gonna matter. It's been surprising.
Tim Kowal 27:59
Yeah, I have myself flip flopped on that. I've gone from from waving a couple of oral arguments after getting instruction from my client to after talking with Justice Thompson. We'll cover this in just a moment. Who says never waive oral argument because it makes us judges on the panels think you must not really believe in your case. Yeah. Yeah. And related to this point about oral argument, MC singalila. had this great advice. Justices want to know how to write the opinion. So take a breath and stop trying to win for just a minute and help the judge see how it can be written in an actual appellate opinion. That was from our discussion in Episode 60. And then the prior point about the futility of oral argument unless you have a focus letter that came from Episode 34. Okay, Jeff, you want to share justice Thompson's tips about oral argument and rent relief, these points about oral argument? Yeah, you
Jeff Lewis 28:51
know, he's he, he said, Never wave. I don't know, I would put an asterisk next to that strategy. But he says never waive oral argument, at least show up and offer to answer questions. I have to say, at least when I was paid appointed counsel of criminal cases, there will be times where I would waive or when I have an elderly client, and I want to move things along. So there are exceptions to that rule. But I will say this, as a respondent, I never want to waive oral argument because the appellant always got the final word in the reply brief. And I really want to have the final final final word. And as the appellate even if everything has been briefed already, the ability to tell the justices why to make policy arguments, not just that there was a mistake, and that there was prejudice, but why the court should care. So I tend to agree, never wave in general, with some exceptions. And he also offered up on appellate strategies that re arguing the same theory that lost a trial might be a doomed strategy and early on, identify what that theme was and maybe making adjustments on the fly.
Tim Kowal 29:47
I think that was a very strong takeaway. Very strong sales pitch for us appellate attorneys for why the trial attorney maybe should consider handing off the reins to an appellate attorney or at least getting a second set of eyes on their case. Yeah,
Jeff Lewis 29:59
you also You know, set up our oral argument catch 22. If the argument wasn't in your brief, why wasn't in your brief? Why are you going to argue it for the first time in oral argument? And if the argument was in your brief? Well, why are you simply repeating yourself? And this is that the heart of what Justice Thompson called the perennial question about, give me an effective oral argument. And Justice Thompson provides a solution, identify the real crux of the case, try to present it as in a slightly different way, putting a slightly different spin, perhaps to disarm the panel. You know, again, I would say getting into the policy arguments, or maybe as Ross Guberman talks about tapping into those three fears, either putting the fear in or allaying the appellate justices fears depending on where you are in the case. Yeah.
Tim Kowal 30:40
And what do you think, Jeff, about during oral argument going ahead and just taking on your opponent's strongest arguments or strongest facts? Yeah, I mean, you've presumably, you've already done that in the briefs. But if you think you can do it with confidence at the oral argument that might be even more powerful. It's not something I've ever done.
Jeff Lewis 30:57
But boy, maybe that's a fish to add to my head in terms of prepare for oral argument. Yeah. And finally, just as Thompson said, Don't regurgitate and don't take the other extreme and come up with a brand new theory of the case. Don't simply repeat what's in your briefs and don't come up with a brand new theory of the case on the fly in the middle of the year. oral argument doesn't work out. Well.
Tim Kowal 31:16
Yeah, that's that's a good book. And his two comments about a theory of the case don't use the same failed theory of the case that used a trial. And that didn't work. And also don't come up with a brand new theory of case at oral argument make sure to do expound on that new theory in your briefing. All right. Yeah. Meyer Moskovitz had one other oral argument tip. He's a font of wisdom for appellate advocacy. But here's another bit of oral argument advice from Meyer Moskovitz. There's Moskovitz. His theory about when you should start preparing for oral argument is that after your reply brief, is it a week before oral argument, Myron says you should know what your oral argument theme is, before you even draft your reply brief. Not after your reply brief after it's too late. The reply brief, Myron says is so crucial, because it's the last thing the justices will read. And even for some jurists, it might even be the first thing they read. But he thinks it's it's probably the most important part of your briefing. So you should be able to anticipate what the panel is thinking before you go into that reply brief. And craft your oral argument is kind of a book end to what you're putting in that all important reply brief. So if you haven't been able to guess what the justices are thinking, by the time you write your reply brief, then you're certainly going to be too late by the time you sit down and start writing out your notes for oral argument. Right?
Jeff Lewis 32:30
Yeah, MC Scalia, with our second visit with her talked about how appellate judges look at oral argument as another part of their process in preparing to make the decision. And we shouldn't look at oral argument as just an isolated 30 or 60 minutes. That's not how the panel sees it. It's really the final stage in the drafting of the opinion. I thought it was a helpful way of looking at it and just slammed in give us advice about
Tim Kowal 32:53
Yeah, Jeff went MC and gala related that I don't remember it was before or after I read something similar that Justice beds worth wrote in his column about how important oral argument is for his his preparation of the case. He was actually making this point in his pitch that attorneys waive more oral arguments, but But it had the opposite effect for me because he related how much time and concentration he spends in advance of oral arguments. So we can think what questions do I need to write? What are the key questions I need to ask and what are the key issues that are going to drive the opinion here? So that oral argument is important for the justices. They're preparing for it just as you are, in a lot of ways, they're preparing for it even more in a focused way because they're writing getting ready to write their opinion at the same time. Yeah.
Jeff Lewis 33:36
And then returning to some of the points raised by Justice Landon in our interview with him, he said even more than being buried alive, just landed said attorneys are terrified of missing an argument and that is why attorneys tend to indulge temptation to be over inclusive in their arguments. But he says making too many arguments comes at the cost of credibility. If the attorneys just run in a loop again, the bench is more likely to tune out we always notice justice London recalled from his time on the Court of Appeal when an attorney told the court which argument to focus focus on but making too many arguments comes at the cost of credibility. If the attorney is just running the loop again, the bench is more likely to tune out we always noticed justice lamb recalled from his time on the Court of Appeal, when an attorney told the court which argument to focus on you'll show courage if you can all adjust certain argument is not your strongest and you'll earn credibility when you pivot to the argument that is your strongest.
Tim Kowal 34:29
Yeah, this really speaks to the need for experience and confidence both. You know, earlier, we talked about how important it is if you're the trial attorney, not to bombard your jury with every scrap of evidence that you may have and that's going to take skill and experience and competence on the trial attorneys part to know you know, I think I've already gotten well over the line. I don't need to keep going because then I'll just start over taxing the jury's ability to process this if same thing happens on appeal think if you start repeating yourself or saying the same argument in different ways or making too many arguments. It undermines your confidence in your main arguments. So I think it takes takes skill and experience and confidence on the part of the appellate attorney to know when enough is enough. Yeah, yeah. All right. And turning to our final topic, civility and sanctions in appellate practice. First case that we wanted to recap was clarity. Ko consulting versus Gabriel. That was an April 2022 decision that we talked about back the episode handy here. But we covered this case dealing with $25,000 in sanctions, which was talked about quite a bit earlier in 2022. We talked about this in Episode 31. The clarity court offered this public service announcement on behalf of appellate attorneys everywhere, quote, trial attorneys who prosecute their own appeals may have tunnel vision. Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar schooled in appellate practice. And that's quoting from another case. But clarity code consulting is a published decision well worth bookmarking for the issue sanctions that can occur on appeal and the wisdom and consulting appellate counsel before going forward another case involving an admonition of counsel for making uncivil accusations in his appellate briefs, sometimes with judges don't get your arguments and that can be frustrating but don't lose your cool. The Court of Appeal in Shaw versus Fidelity National Title Insurance from December of 2022 admonished counsel for impugning the trial court and opposing counsel in the appellate briefs. The appellate attorney had said that the trial court refuses to learn the law. The trial court misrepresents the law and knowingly airs to achieve a pre conceived outcome. Perhaps the most colorful turn of phrase the MSJ proceedings tele counsel said was a magical mystery trial. And finally the council accused the trial court of duplicity and not to be left out. opposing counsel, as
Jeff Lewis 37:01
I just said, was that a darling? The trial judge should have taken out of his writing that reference the musical Mystery Tour.
Tim Kowal 37:08
Yeah, yeah, that is a maybe a fun turn of phrase and another context but it was simply off putting in this in this one in a legal brief. I think this was a darling that to have been killed before getting the file button. Not see. The Court of Appeal admonished, though did not sanction counsel for the diversion from the Rules of Civility, quote, such bombastic ad hominem attacks have no place in an appellate brief and are potentially contemptuous and sanctionable behavior and quote, I've never seen this tack work in appellate courts, Jeff, counsel may be admonished for using bombast and adverbs to access but worst of all, you have lost all hope of persuading your panel. Shah was unpublished but relied on published authority. So if you're looking for a citation, check out the shot case for that authority. And then finally, I wanted to cover the McQueen vs. Wong case from back in March 2022. This case was interesting because appellate sanctions were imposed, but not necessarily because of any improper activity that occurred in the appellate court. The appellate court in that case, if you recall, Jeff pointed to gamesmanship, that appellate that the appellant had perpetrated in the trial court. So the appellate sanctions were for trial court misconduct. The appellate arguments here were not sanctionable by themselves. And I thought this was interesting. So be mindful of your conduct, because it can come back to haunt you, even if not in trial court sanctions later on. It can haunt you on the appeal. Right, right.
Jeff Lewis 38:38
You want to take a stab at covering some recent tidbits. Tim, should I start, see how it goes? Yeah, give it a shot. All right. So Tim, imagine you have the privilege of arguing before the US supreme court one day, and instead of making the arguments and saying the things that come to your mind, you simply repeat the words and phrases whispered into your air ear through AI technology. That is the improbable and provocative proposition made by a company called Do Not Pay. It's offered to pay $1 million to an attorney willing to sneak an airport air pod through court security and parent AI arguments to the United States Supreme Court. Did you see that tweet today?
Tim Kowal 39:18
I did see that when you shared it with me, Jeff and I saw someone's response. How do you propose getting your iPhone and your air pods through the Supreme Court checkpoint? They don't allow you to take your cell phones into the courtroom there.
Jeff Lewis 39:31
Yeah, yeah, we have to be very creative that you're hiding. That was what an interesting story. You know, it's a little bit of clickbait because that same company is in the news or having a AI powered advice in a actual trial proceeding, not to the US Supreme Court, but a trial proceeding that had made some headlines. So that was one news story I want to share with our audience. Second new story I want to share is that a judge in San Francisco denied an injunction from some folks who are alumni and descendants Mr. Hastings I used to be the names sake of the law school up there Berkeley, I had no idea there are legal proceedings to stop the name change from happening. I guess there's legislation that has renamed the school to the University of California College of the Law, San Francisco. And the injunction was denied by a judge up there, but I suspect an appeal will follow.
Tim Kowal 40:17
Yeah, that's, that's an interesting development there. I wonder how long before Yale has to change its name. And after a lie who Yale a very prominent slave holder back in the day, I wouldn't hold your breath on that. Because it's not an Ivy League school only only the non Ivy Leaguers need to change their names. Yeah. Yeah. Nice. All right. All right. Well, that's gonna wrap up this episode. Again, we want to thank casetext for sponsoring the podcast each week when we include links, we use casetext for those links and listeners of the podcast can find a 25% lifetime discount available to them if they sign up at casetext.com/CALP that's casetext.com/calp. And if you have suggestions for future episodes, please email us at info at cow podcast.com. And as we go forward in 2023, look for more tips on how to lay the groundwork for an appeal and get more trial and appellate insight.
Jeff Lewis 41:09
Right. See you next time.
Announcer 41:11
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 Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial court denied it, telling the defendant that, even though his MSJ was technically timely, he still should have filed it earlier.
That’s wrong, and the Court of Appeal published its opinion granting a peremptory writ. The deadlines for filing a motion for summary judgment are set by statute, namely, Code of Civil Procedure section 437c(a)(2). The moving party may need to allow for additional time depending on the form of service.
Here, the 75-day notice period for a hearing at least 30 days before trial, plus two court days for electronic service under section 1010.6(a)(3), means the defendant needed to file the MSJ at least 107 days before trial. Luckily, the defendant did that, filing exactly 107 days before trial.
Was that cutting things a little close? Perhaps. But it was timely. And as the court noted, “Numerous courts of appeal have held that a trial court cannot refuse to consider a motion for summary judgment that is timely filed.” Quoting one of those cases, the court related that “"We are sympathetic to the problems the trial courts experience in calendaring and hearing the many motions for summary judgment. However, the solution to these problems cannot rest in a refusal to hear timely motions.””
So the trial court’s “calendaring issues are not a basis on which the trial court can refuse to hear a timely filed summary judgment motion.”
The court published the decision “to provide guidance on the deadline for filing a summary judgment motion that is served electronically.”
The Upshot: The court’s refusal to hear a timely-filed motion is one of the few areas where the Court of Appeal may be inclined to grant writ relief. So if you have a timely righteous motion, don’t let the trial court deny you a hearing just because of local rules or department calendaring preferences.
H/T to Michael Shipley for spotting this case.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Some appellate courts issue tentative opinions or focus letters, tipping off counsel to the issues of most interest to the panel. Justice James Lambden says they improve the quality of oral argument.
Think about it: three appellate judges and their research attorneys have been thinking deeply about this one question in the case, and then the panel springs it on counsel without warning.
Instead of just making sport of the outing, a focus letter would help bring counsel into the conversation where they might stand a chance at helping the discussion along—rather than just floundering out there to no one’s benefit.
Watch the clip here.
This is a clip from episode 51 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.
The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone?
Ben shares some of his secrets and insights:
🗝 Winning a medical-malpractice trial requires flawless planning and execution, so hyper-preparedness is essential, including hiring experts even before filing a case.
🗝 The right expert is important. Jargon and confusion work to the defendants’ benefit. So the plaintiff’s experts need to be able to thread the needle between showing expertise while also being intelligible and relatable.
🗝 The MICRA caps limit general damages to $250,000, upending the economics of litigating even the most heart-breakingly devastating injuries caused by egregious negligence. So the only way to bring justice to the bad actors in the healthcare field is to find high-earning victims—the MICRA caps don’t apply to economic damages.
🗝 In 2023, the $250,000 MICRA caps will be relaxed slightly to $350,000, and the amount may be recovered against the provider defendant, the institutional defendant, and unaffiliated defendants, for a total possible non-economic damages recovery of $1,050,000.
🗝 Firm culture matters: Ikuta Hemesath is fully virtual, which keeps costs low and gives staff flexibility. What about firm culture and relationships? Ben shares that the firm takes off one day a month for a group outing.
Ben Ikuta’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.
Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
Transcript:
Announcer 0:03
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.
Jeff Lewis 0:17
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:19
And I'm Tim Cole wall in the California appellate law podcast. We tried to bring trial attorneys and appellate attorneys some news they can use in their practice. Both Jeff and I are appellate specialists, but we split our time about evenly between trial and appellate courts. And a quick announcement. This podcast is sponsored by case text case text is a legal research tool that harnesses AI and a lightning fast interface to help attorneys find case authority fast. I've been a subscriber since 2019. Jeff has been a subscriber since 2019. I've been in subscribers since 2021. And we both highly endorsed the service listeners of the podcast receive a 25% lifetime discount available to them. They sign up at case text.com/c A LP and today we welcome Ben Ikuta. To the show. Ben publishes frequently on issues of interest to trial attorneys and Jeff I thought it'd be great to bring Ben on to talk about his med mal practice. Ben has practiced medical malpractice defense for eight years after graduating from UC Hastings in 2008 and then later transitioned to being a med mal plaintiff's attorney Ben beat Dan holds prominent Mt. med mal attorney in one trial and Dan Hodes hired ban in 2016, and at his firm Ben became a named partner in 2021. After several successful jury verdicts and multi million dollar settlements about a year ago, Ben started his own med malpractice with Michelle Hemesath. Since opening the firm Ben's firm has already recovered over $17 million. On behalf of clients. Ben is published and given presentations many times on med mal issues, including for the Consumer Attorneys of California, the Consumer Attorneys Association of Los Angeles and the Orange County Trial Lawyers Association. So welcome to the podcast. Ben, thanks for being with us today. Appreciate it. All right. Well, Ben, if I gave a little bit of an introduction to your practice, is there anything I missed that that we should cover right off the bat here?
Ben Ikuta 2:06
No, nothing else is everything I do better than
Tim Kowal 2:09
no guy. The med mal guy. Now there are all that many of you. I know. We talked about mutual colleague who just found it. It's a very tough practice it there's a lot of attrition in it, especially especially for younger attorneys who see a lot of regular you know, general personal injury attorneys, you know, winning nice awards, and they tried to replicate it in the med mal field, and it doesn't quite pan out quite the same. What is the secret we know about the micro caps and everything? We'll talk about that a little bit more. But tell us a little bit about why you got into med mal when it is such a tough practice? Sure.
Ben Ikuta 2:40
So I started my career and I fell defense I absolutely loved it. I loved doing doctors and physicians and hospitals. I'm hated the insurance company to pay our bills, but we like to practice and then as you noted, previously, I switched sides and plaintiff side with being Hodes, I love it here on the plaintiff side as well. It's extremely interesting. It's fascinating. And absolutely, just really enjoy it. Love it, everybody, people who really can't find a lawyer. So one of the very few Midvale lawyers out there on the plaintiff side, and the reasons for that, and it's a lot of reasons there's migrant, obviously we talk about it later. But the biggest reason, frankly, because doctrines, it's have a lot of credibility, instinct, credibility, the moment they step inside the court. And it's not like, you know, stealing a bad driver or suing, you know, Walmart in the Flint case, there's already an advantage towards doctors for credibility is everything. It's very hard to overcome that. And also, the drains just don't feel qualified, they feel qualified to judge bad driver, the ultimate qualified to judge a doctor who, you know, perform a procedure they never even heard of right, much less performed. So it's very difficult to win these cases. I think the overall numbers show that 90% of all men, donkeys that go to trial, by the Miss J get to trial go in favor to the vets.
Tim Kowal 3:48
Yeah, and everyone, everyone's got a doctor and maybe they envision their doctor sitting in the witness stand and they wouldn't want to they wouldn't want to fight, you know, give a verdict against their own doctor.
Ben Ikuta 3:57
That's exactly right. Yeah, it's almost like a reverse reptile, if you will. People don't want to believe that their own doctor would harm them. It's almost like a self preservation issue. It's very difficult when these cases,
Tim Kowal 4:06
well, maybe we'll get into this a little bit more. But when it comes to we have you know, there has been tort reform in this specific field we have the microcap in in California. It makes me wonder if there's already a bias that juries have against awarding giving awards against doctors was there a need for such a strenuous cap didn't sound like there were a lot of runaway verdicts against doctors even before the microcap or misremembering things.
Ben Ikuta 4:30
Well, you probably didn't remember it was 1975. Before I was born, really it was insurance companies. It was driven by the insurance companies, it made some bad investments and they want to find a way to save money and they convinced the legislation to pass this micro law that it's not just a 250 cap. There's like eight different laws that really are all pro Doctor anti plaintiff, anti patient and yet passed 48 years ago and has not written the Center for inflation until the new year until what? Till 23 But it has been devastating. It's been absolutely devastating. for victims of malpractice, particularly those that aren't big wage earners or the wrongful death cases of those who aren't big wage earner. So death of a child, for example, the most you can get in that case, at least previously was 250 makes it extremely difficult take these cases, particularly when there's no adjustment for inflation, you know, my average trial cost six figures now, that wasn't the case, you know, decades ago. So it's cost prohibitive makes it impossible to take these cases.
Tim Kowal 5:25
So let's just kind of finish off the bullet points of what the microcap entail. So we were already discussed that there's kind of an institutional or a jury bias against giving big big awards against doctors but once you get let's assume that you can get over that that hurdle that bias and get the jury to agree to give you a big award. Now you're faced with a micro cap give us the broad strokes of what the Micra caps impose on you as a plaintiff side med mal attorney?
Ben Ikuta 5:48
Sure the cap is again $20,000. It's only for pain, suffering, general damages, grief, anxiety and positive mental life etc. for wrongful death case, it'd be loss of love and companionship at the most you can get or non you know, damages. And so again, unless you have a big wage earner and you have somebody that's still alive, and that's catastrophic insurance, it's just very difficult to take these cases. So death of an elderly person death of a child death with the mom death of a low wage earner, it really makes it difficult. I can go to my last trial if you'd like I actually what I think is very, very pertinent. It shows how definitely this cap is bolding, that'll work. Yeah, let's do it. Yeah. So this case, you know, I tried it in August, and I thought it took this case a heartbroken family bought the death of a two year old girl. And this little girl had at birth at a VP shockwaves it helps to train you know, people spinal fluid from the brain into the stomach and a well known issue with this BP shut that it can malfunction. It's flailing started can get blocked and then there's excess fluid in the brain while she goes to er, she's never seen by a doctor, the PA the physician assistant said no, she's fine and central home even though she came in with complaints of nausea, vomiting, not being yourself. She was just really really under the weather. And in the waiting area. She started throwing up this pink rock material for heartstopper breeding stocks. They do a code blue on her right there in the waiting area. They bring her back the heartbeat back with epinephrine and chest compressions. But she brain at this point, and she dies a day later. That's a case where I was offered exactly $0. Not a penny before Friday. And the reason why because these insurance companies, only a small handful that now insurance companies know the worst case scenarios to them. I can't wait for a million dollars. They want to send a message they want to this is a
Tim Kowal 7:29
little girl who came in presenting the symptoms and then was turned away and wound up dying a day later.
Ben Ikuta 7:35
Well, I mean, she went into cardiac arrest cardiopulmonary arrest right there in the waiting room. Two hours later, she's not admitted she was sent home while in the waiting area mom's filling out paperwork. She dies basically right there and
Tim Kowal 7:47
right in the waiting room of the hospital. Correct? Correct.
Ben Ikuta 7:50
I tried that case in August because the opportunity dollars, I didn't win that case, the drinking back deadlocked six, six, which in my role is a loss. I spent $100,000 my case I think about that, wow. That I could do. I mean, it's a very extra heavy case, I begin your day, the best that I could do at trial is to pick right so I get an attorney fee of 150 grand and I spent 100,000 My time and 100 grand in case my family ends up getting $100,000 in their pocket. The death of the little girl is devastating. And just shows how difficult is pick these cases. I mean, those are two weeks or three weeks that I tried working on the other cases, it really is devastating. And it works right. And now, I cannot take that case again in the future because I will go bankrupt if I did.
Tim Kowal 8:33
Well and you have gone bankrupt in the last nine months, you've racked up $17 million in victories. So tell us how you how you count up to 17 million in a short amount of time facing up against the quarter million dollar microcap? Sure.
Ben Ikuta 8:46
So we have two cases that either involve the death of a high wage earner or the death of a catastrophic ly injured child or person who needs a lifelong in these lifelong dollars and cents medical care, those are the only cases that are economically viable. And the majority of my 17 million are those cases,
Tim Kowal 9:03
because if you can get the economic side of the damages is not subject to the micro cap.
Ben Ikuta 9:08
Exactly. The micro cap only applies to non economic but again, a child you only have
Tim Kowal 9:14
children. That's it is McCobb when you think about it, that that way that a child basically is just a loser from the standpoint of the law governed under the microcap and
Ben Ikuta 9:24
then she doesn't even know about the cat that I'm talking about the cat so they can have a great first trial on the plaintiff side I want to child death case. Again, no surprise no offer case not a single set because they want to force me to trial and and dissuade me picking the future cases highlight case 112 zero at trial. So all 12 jurors and my favorite Riverside and they gave me $500,000 And the judge it was such a gut punch Washington judge cut that verdict in half the 250.
Jeff Lewis 9:48
Hey, Ben, California is not known for being a conservative states rather blue. How is it that the legislature has left these limits in place for so long? Why hasn't there been more of a push to reform the reform And to lift
Ben Ikuta 10:00
micro insurance companies have a lot of power but also the California Medical Association the CMA has had a tremendous amount of power and again, you know, people like doctors, people, like you know, the the physicians in the health care industry, they don't like these, you know, quote, greedy travelers and quote When in reality, really the Fallen victims not practice and can't find a lawyer and when they do they lose a trial or they don't do they deserve because of that microcap. Now, that being said, the law did change, we're going to go up in the new year. So there has been some positive change here, but it's really it's a game changer.
Jeff Lewis 10:30
Well, well, that impact your decision in terms of what cases you might be willing to take enormously. Yeah. Okay. So let me ask you go ahead.
Ben Ikuta 10:37
I'm sorry. So did that same child death case. So now wrongful death case, the cats went from 250 to 500. However, there's more to that prior to the New Year does a total of 250 Regardless number of bad guys regarding number of you know, the negligent party, so the dogs or animals both grew up, the most you can get total is 250. In the new year, that's going to be two different cats, and even three in some limited circumstance. So instead of 250, now you're looking at a million dollars. And don't forget to CCP three, seven 7.34 was changed this year. Another point to which allows propias pain and suffering as well, which is an additional possible 700 Or the virus infection. So a 250 case could potentially be $1.7 million case now, is that justice the death of a young girl? No, but it's certainly a step in the right direction and make these cases at least viable.
Jeff Lewis 11:25
Do you think settlement company the insurance companies will be a little more interested in making decent settlement offers before trial to capsular? But did like that?
Ben Ikuta 11:33
Yes, I absolutely do. I think the attitude of no offers at all zero offers enforcement trial that will be less common because getting the 250 number is such a devastating number because I cannot make a profit I cannot stay in business if I took those cakes but just wouldn't you know that was a cap put in 500 for wrongful death case. Now I actually can possibly profit but when the case so is a game changer. Absolutely.
Tim Kowal 11:56
Yeah, well, yeah, cuz you have to fly your X Wing down through the little goalie of the Deathstar and file those little torpedoes into the exhaust chamber, all for not to blow up the Death Star just to get $250,000. I mean, it's just no one's gonna take that Gambit. But now if you got more people who if you start doubling, tripling quadrupling that it's still like you said, it's not going to be justice. But you may have more people more med mal plaintiffs who are willing to take the gambit. And you know, just being able to get your foot in the courtroom into the courtroom door is I mean, that's at least what we call the definition of justice, you get your day in court, whereas a lot of people may not even be getting their day in court. They're just they can't find a med mal attorney to take up six figures and costs just to get to a near guarantee loser. Exactly.
Ben Ikuta 12:38
We we at our firm, we take 2% of cases that come in the door, which actually is much higher than most mid mount firms. Wow, took less than 1%. We take about we take 2% According to our stats here, and a lot of those cases are legitimate cases that we simply cannot take due to the microcap and the cost of litigating these cases. And so what the new law change, certainly that will go up.
Jeff Lewis 12:59
Yeah. Hey, Ben, early in our conversation, you'd identified two ways that the deck was a bit stacked against you in terms of jurors belief in doctors and their feeling of not understanding or not being qualified to understand things like medical compensation and that kind of thing. What are the techniques that you used with that you've used successfully with a jury overcome those two issues, the trust issue in terms of doctors and educating a jury to understand these medical issues?
Ben Ikuta 13:25
Sure, biggest, most important thing that a child is learning to do on the plaintiff side is to dumb it down, you need to make it as simple as possible, you need to make sure that, you know, a sixth grader can understand what you're saying. And so the defense of the opposite I mean, either the best lawyer in med mal is doing the opposite, make it as complicated as possible. Make it so the judges throw up their hands in the air and I don't know who's right. It sounds like the two good experts a call and tie and then the defense wins ties, right. So you know, the key is to dumb it down make it as simple as possible. I also make a lot of comparisons to auto cases. And explain that negligence does happen in the operating room, explaining these doctors are human and make mistakes, sometimes unreasonable mistakes. So but again, I think the biggest issue is make it as simple as you possibly can so that Jared can understand it. I think it's extremely important we show demonstrative that you show the visuals, you know, you have your experts draw to show it very most churches, most people are visual learners, but also very, very important in courtroom. That's how that's how I do it at least.
Tim Kowal 14:23
How important are our experts and expert battles in med mal lawsuits.
Ben Ikuta 14:28
Enormous ly important if you don't have a case, you have an expert. And the big challenges are too, right. It's not hard for these these dependents and these insurance companies to find experts who are supportive of their colleagues. It's much more difficult to find experts who will go out on a limb and be critical. But yeah, the experts are enormous ly important is oftentimes a battle of the experts. And so getting a well qualified expert who was you know,
Tim Kowal 14:51
to do that as a defense, despite the fact side often put up a big fight to try to exclude plaintiffs experts.
Ben Ikuta 14:57
Yes, generally, yes. Not with me as much as me i I've tried to get the best experts in the field. A lot of times you don't want a general practitioner, you know, commenting on OB GYN care, whatever. So it's important to have an expert in the field, it's extremely important. I'm going to be facing a motion to exclude experts. But for me, I tend to try and get the best.
Tim Kowal 15:16
Yeah, do do the same experts make appearances. And in a lot of your cases, or if there's a lot of sub specialties, does it mean that there's always going to be a different expert?
Ben Ikuta 15:25
Yes, you need to get an expert in the specialty that you're saying. You're saying? I don't think surgeon or surgeon you certainly know Diane OB. But, you know, it's not uncommon. seasame experts, in fact, like the trial was mentioning earlier in the trial where Miss tried right at that deadlock during the expert guests meeting wasn't equidistant by the fork in the trial previous to that, so it's not uncommon to see the same base.
Tim Kowal 15:47
Yeah. Here's a hard to find someone who is an expert who has the qualifications you want who is a true expert in his or her field, but can also speak to the jury. You mentioned that as the plaintiff, you want the jury to be able to understand you if you're the defendant, you just want you know, probably the more jargon the better. You know, if you can go over the the juries head that almost guarantees defense verdict, but you want an expert to be able to make it understandable to the jury is that hard to find?
Ben Ikuta 16:10
It's tough, it is hard. It's a fine line, right? You want an expert to seem intelligent building talking about but also to dumb it down enough to understand it. It's in the show. It's not just a judgment call. I love those cases, right? Oh, judgment call or discretion. When a doctor, I need everyone in this case to get the show they truly acted on accurate polls standard care that any other reasonable doctor would not have taken that same approach. So yeah, it can be tough, but you know, they're well versed in, you know, trying cases are spiking cases. And we do parent a lot before trial. So
Tim Kowal 16:40
yeah. Now, Ben, you'd mentioned you're familiar with our episode that involve Brooke both. She was the attorney who wrote the successful motion for new trial and in what we refer to on the podcast as the victory bell case, that was the case where there was a defense verdict and a med mal case. And the trial attorney on that case by the name of Robert McKenna had gone back to his office where someone had videotaped him on an on a cell phone and put it on made it available online, where he had mentioned that we won that case by sort of making it look like someone else did it although there What did he say that it probably was negligence, but we sort of made it look like someone else did it? And we haven't said anything, you know, beyond just quoting or paraphrasing what happened in that case, but I understand you may have crossed paths with with Mr. McKenna at some point in the past. Yeah, no, I,
Ben Ikuta 17:24
you know, I like I used to work for mechanic for several years. On the defense side, I'm gonna need them. And then since then, I've had cases against him, but a few cases against him this firm. I like McKenna, I he's a he's usually a very upstanding and straightforward guy. And I was a little surprised to hear those comments, but I think it does show the difficulties we haven't been now. I mean, you had the case where the defense lawyer knows malpractice and jury came back and 26 minutes but Bobo verdict. So no, Robert feeds, the trial lawyer. He likes to boast like sobriety, he likes to tell stories, and I think he was boasting and bragging in that video. If you liked the video. It's actually a laptop in front of him. I think he's LA office in Orange County's LA office was watching while he was, you know, touting his child victories. Oh, wow. They he was definitely bragging and bragging and boasting? Look at back kids that exact case before it was filed to see without picket, and we decided to pass on that case, I thought that was malpractice. In that case, frankly, that inappropriate or improper insertion of a G two, but in case I was capped at 250, would be too difficult to try and too difficult to win. And I ended up being right, clearly. But I know what that's meant to the plaintiff's lawyer like Milan expect him quite a bit. And obviously both did a fantastic job on that motion pending trial.
Tim Kowal 18:36
Yeah, I did think that an interesting backstory, the way that Brooke was able to get that verdict reverse, because there was, as we pointed out, during that episode, there were a lot of commentary from you know, those of us in the peanut gallery, you didn't know any of the inside information about the case at all. Well, how would you know, those comments may be untoward. But how are they going to relate to a new trial motion, but apparently there had been there had been this instruction about an empty chair defense. And I guess Mr. McKenna had said there's not going to be any empty, empty chair defense, Your Honor. And so that that video indicated that maybe they had been kind of sub Rossa angling at an empty chair defense, and that was what the jury had picked up on. And so the judge did not like that. No,
Ben Ikuta 19:13
that is frustrating. Bring up a kind of a tangential point here, you know, I've been my lawyers were forced to sue more than the primary wrongdoer in a case because these defense lawyers in that mound, they really find a look for the empty chair defense at the beginning of the case, who else can we blame other than our guy, especially with the bad results? And you know, we're almost required, I mean, it's malpractice, not to arguably not include these other peripheral dependents. So they we forced them to file MFJ and then we get the protections of 437 cl we're now they can't they can't blame the empty chair. It's unfortunate that we have to drag doctors into losses that don't deserve it but in the killer case is a prime example why? Yeah.
Jeff Lewis 19:50
Hey, let me ask you what you worked for the guy what would he say or what would other defense lawyers say is unique about the way you practice law coming up against you as a You boy, what makes you different than all the guys on all the billboards up and down the 405 freeway?
Ben Ikuta 20:04
Well, I mean, frankly, those guys in the billboards don't don't do that. Now. In fact, for me those cases it's one of those cases from verticals billboards lawyers, but I'm extremely prepared. I both important thing is to get an expert before you even file that are battling the case you have an expert support, we're not just adding care but causation as well. So for example, give a college ball hit case where I don't know Max, it's not read appropriately, whether ideologists I will have both the radiologist and an expert oncologist who will be supportive of my case before I even found a case, reputable positions and they know that it needs defense lawyers know that if I file a case, I have the goods, I have the expert support the case. I'm also very, very thorough. I know that now extremely well. I know what's often not producing discovery, I will ask for you know P and Q depositions on incident reports on stuff that may or may not become better than Evans code, lengthy seven, just peer review and quality assurance. I will go above and beyond I will uncover every stone that I know about it. I didn't know.
Tim Kowal 21:04
Yeah, well, that also I
Jeff Lewis 21:05
use sounds like somebody who doesn't like to be surprised at trial.
Ben Ikuta 21:08
Exactly.
Tim Kowal 21:10
Absolutely. Correct. Yeah. Well, if you retain an expert or most multiple experts, before you've even gotten a case number, that means that you've got significant hard costs already, before we even get a case number.
Ben Ikuta 21:19
Absolutely. It's not even five figures.
Tim Kowal 21:24
Yeah, well, and is that and yet, you mentioned that in a lot of these cases where they're where you're facing the microcap and you don't have a lot of economic damages on the other side of it to get around those micro limitations, you may have just a dead bang winner, and you still might not get settlement offer before before the verdict.
Ben Ikuta 21:40
I mean, we've had to litigate cases where they pour acid instead of instead of solution in a woman's ear. I've had to litigate cases with the upper end and the wrong leg. I mean, it's don't settle easily. They they look at the record here. They don't they want to dissuade me from taking the next case. And so it's difficult. I mean, less than 5% of my cases settle pre litigation. Yeah,
Jeff Lewis 22:03
well, let me ask you, one of the things I enjoy about meeting guests on our podcast, not just learning about substantive law, but how they manage their practice, how they run the business of a law firm, and I understand you have a remote office, everybody works remote. Tell us about that. Your decision to do that, and how it is you're able to keep an eye on all the pieces and all the moving parts of litigation remotely.
Ben Ikuta 22:23
So we started a firm about less than a year ago, and I was a partner at a law firm holds Milman love those guys are fantastic trial attorneys, but a little bit older, and a little old school when they're their ways. And we had a fundamental disagreement regarding how long it should be run. And so I started this firm, we have four lawyers, we have four paralegals to intake coordinator, we're pretty large, or a plaintiff side and Melbourne. But we're completely remote, we do not have a brick and mortar office. Frankly, it's been been wonderful for a lot of different reasons. We have a huge competitive advantage when it comes to hiring staff, we hired two paralegals away from that event site, because they were they they liked the idea of working remotely, they want to get ready for work and drive to work, which could take hours out of your day. And wonder paralegals books start at 6am when she's done by 30, she loves that this really helped us get an advantage. And frankly, the pandemic has made huge, enormous strides and changes to our legal industry. I mean, could you imagine arguing MSJ pending ruling your arguments? Jane, would you ever appear my phone record call five years ago? Of course not. But now is standard to appear remotely to argue in MSDN or even or even an appeal? Right. So you know, depositions be taken remote, it's really helpful. Lutton and frankly just costs I mean, that's a quarter million dollars a year that we're saving in costs, we can now pass one bleed, so it's helped tremendously. And all the ServiceNow is by email, not by mailing. So it's it's really wonderful. We work out of a center called justice HQ, which is like a we work for plaintiffs lawyers, right. It's a wonderful organization. We can rent offices, we can write compensation depositions, if necessary.
Tim Kowal 23:51
So yeah, kind of a home base for an office center if you do need conference rooms.
Ben Ikuta 23:55
Exactly. Yeah, it's been great. It's been a game changer. For us. It's been wonderful. And frankly, we have you know, we have every day we have a zoom call, we can touch a lot of ways. Obviously we see a lot of emails, I mean, frankly, I think the Generation Z and millennial generation, they work
Tim Kowal 24:10
more efficient from Have you noticed any downside on the on the full, the firm culture aspect of things. If you're not, you're not interacting in person every day. Do you feel that you say you have daily zoom conference calls? Do you think that bridges enough of the gap? Or do you do other things to kind of to promote firm culture and interaction?
Ben Ikuta 24:26
Yeah, so once a month, we do a firm day we did last month in the escape room. This Thursday, we're going off dairy farm for the firm, we do a firm day, we take a day off and just take our staff out something nice, you know, I read a movie theater or go boating on Lake and it's different activities that we did and keep
Tim Kowal 24:42
keep morale up. But you do that on a weekday on the work that we
Ben Ikuta 24:45
do in the weekday? Yes. So they love it, obviously. Yeah. But I think it just helps morale and just you know, I think good luck to you know, we want you to deploy as well want to pay them appropriately. We want to show that we care. We want them to feel involved in the berm and so when they love working from home. It's great. It really is for everyone. Yeah.
Tim Kowal 25:03
Well, tell us a little bit. You talked a little bit about the you know, the economics of a med mal case you came from med mal defense background, which is a lot easier to pencil out. Right? If you're doing hourly, I assume that's mostly hourly work, right? When you move to to the plaintiff side, you're taking these on contingencies, you're dealing with a cap that kept him out and lower likelihood of prevailing, what was it hard to figure out how to make that pencil out? When you start a new practice your own firm? You've got to be a little bit scary, wasn't it?
Ben Ikuta 25:29
Yes, yes, very scary. And frankly, I think even compared to other personal injury firms are in med mal or income is so variable, it just it really goes up and down every case in litigation, we don't have the cases pretty when we don't have a steady stream of income, we can make a good amount of money one month and make none next month, it is very stressful, or the part of the job or the business. That is one of the barriers to entry, you need a lot of money to to fund these cases. And it makes it very difficult. So absolutely. The defense side obviously doing for our steady paycheck on the plaintiff side. Yeah, it's especially mid mountain because I'm very up and down, it can cause a lot
Jeff Lewis 26:02
of stress. Well, let me ask you this, I do a lot of defamation work on the defense side, where somebody's filed a lawsuit, usually to shut somebody up for making online statements, and in cases sometimes settle. And the other side, the person who's sued usually it sits on a confidentiality clause. I hate confidentiality clauses, I wish I could have every client just refuse it out of principle, what is your view on confidentiality clauses in medical malpractice with doctors who maybe shouldn't be practicing, and I
Ben Ikuta 26:31
hate them so much, you know, part of what I do is not just to help my clients is to try and rate change, right. And I think you want to see a change in the hospital system, especially those cases where the, you know, the breakdown the system, they don't report a critical test to a patient or the other problem they're at, you want to make it public, you want to be able to talk about it. But my obligation is to my clients, not the public at large. And so the defense firms will insist in that informal mediation or saying writing you're going to go unless you will be there probably jelly beverages out of it. So almost all of my cases, especially involving doctors, involved confidentiality provisions, it's extremely frustrating. It's unfortunate. But again, I don't see an easy way around it. Interesting. And that's different from elder abuse cases. Right? I think he had cash never gone a few months ago, where there actually is a code a CCG code that says, you know, we have a policy, there's, you know, one is some become, you know, private we don't we discourage confidentiality, that does not exist in our case. Yeah. Basically don't want to lose reputation. So oftentimes, I'll almost always be to confidentiality.
Tim Kowal 27:36
Let me ask you this question. If we talked about how used to work as on the defense side of bed, Mal cases now your your plaintiff side, if if one of your former if a hospital or insurance company came to you and said, We know your we know, you know, both sides of this, and you're you know, operating at the top of your game, would you be willing to to serve as our defense attorney for some of our upcoming med mal cases? No,
Ben Ikuta 27:56
no. I love the plaintiff side. And I think not just about any victims of malpractice. I also know the collaboration. I'm putting aside, you know, especially that balance that many of us but but you know, we're we truly are friends on the side, the human mount lawyers that we have in California, we work together we collaborate and have a rule there are unwritten rule that don't do defense work if we're doing, you know, part of these groups.
Tim Kowal 28:20
And so you don't you don't cross the aisle. I know a
Ben Ikuta 28:23
lot all across the aisle. I also, I don't want to be conflicted out in future cases as well. Yeah. Yeah. Really bad doctor leave that hospital. I don't want to be conflicted out when they do against me, but in our practice to different victims. So no, I will not work on the defense side. Yeah. Didn't want me on.
Tim Kowal 28:41
Was there a moment in your practice as a defense med mal attorney, that you felt that you're working for the wrong side? Not to be, you know, black and white about the thing? But you know, did you Was there a change in ethos in your mentality?
Ben Ikuta 28:53
Yes, absolutely. Other events? I certainly we saw frivolous cases that she didn't bail them out. Totally, totally meritless. We saw cases where my doctor made a mistake, unreasonable, they shouldn't settle the case. But you know, you still want to have mistake. There were a few, maybe 5% of our case where we tell the same doctor over and over and over again, where can they were not changing the practices. They're killing it killing killing patients, and just the total menace to our system. And they were getting on over and over over and I was helping them get off, you know, by making micro arguments and timeliness issues and technicalities and simply winning case because you know, for Dr. Frey about practice lawsuits and private practice injuries are not admissible at trial. They're not your ability at one case, one case Oh, you still win those cases in front of a jury even though no, absolutely. There is no practice there. So dealing with those two bad apples. Yeah, it was tough, but really believe hard working on the defense side with those two doctors that truly were bad doctors.
Jeff Lewis 29:48
Yeah. Hey, Ben, I'm not pushing my services on you. But I wonder in big money cases, big dollar cases without caps. Do you ever consider using an appellate attorney to fit in as an embedded appellate counsel? Hold on, watch the trial, make sure you're dotting the I's and crossing the t's and protecting your verdict.
Ben Ikuta 30:04
Respectfully. No.
Jeff Lewis 30:07
That's okay. Most dope
Ben Ikuta 30:10
practice is so I know most law firm and other thing I'm no more than than peltonen. Certainly done. Okay. But when it comes to metadata, you have to know Microsoft back of your hand, you have to know the jury instructions. If I'm available six, you need to know all the different intricacies metallbau law. And so because it's such a hyper focused technical area, I'm not sure if an appellate specialist in the next movie help.
Jeff Lewis 30:32
Are you telling me that when you lose, and I'm not saying you do lose, but on those rare occasions when you lose? It's more of a fact base than legal base, the jury just didn't believe your guides as opposed to a jury instruction or a legal error. Yes, yeah. Okay, that makes sense.
Ben Ikuta 30:46
It's not a legal error. I will say the three unfortunate two. But this is absolutely true. A lot of times in monopolies when there's no consent of events, no matter how bad law practices, if the insurance companies want to settle the case, always in the night in opera for $0. And those minimum rental costs are an enormous amount of money after at least, you know, 10s, if not $100,000, and many. And for me, I oftentimes put a position where I almost have to agree to waive my appellate rights in exchange for a waiver of their costume. So that's the reality that Madeline's very unusual where we will actually go to an appeal. And for that reason, it's just too expensive to under we have the higher appellate lawyers and everything else needed to try to piece together, it just becomes cost prohibitive in a calf case.
Jeff Lewis 31:28
Yeah, that makes sense.
Tim Kowal 31:29
All right. Jeff, did you have a case that you wanted to talk about?
Jeff Lewis 31:33
Yeah, let's shift to the tidbits part, boy, imagine you have your kids and you're going to take them to a Laker game or a football game and at the metal detectors security takes you aside and say I'm sorry, Mr. colwall, we're not going to let you come in your kids can come in, but we're not gonna let you come in. I read this story about something that happened back east involving the Rockettes. And a mom who took her kid part of a Girl Scout activity to Radio City Music Hall. And the management company had set up face recognition software, so that any lawyer affiliated with any law firm that was actively litigating against the management of the Radio City Music Hall, which is Madison Square Garden, entertainment would be automatically barred from entering the story surprised me on so many levels, the privacy issues in terms of facial recognition, a kind of a public venue and booting a lawyer who, by the way, wasn't even working on the case just happen to work for that law firm. I came across a story and I thought you bet might have some thoughts about it.
Tim Kowal 32:29
Yeah, it's this is the pan Opticon the cameras are everywhere. And you know, I remember the old signs, I don't see him that much these days anymore. We used to go into a restaurant, it says we reserve the right to refuse service to anyone. And I was wondering, you know, are they you know, I thought they were just kicking out the homeless people who had come in and they put that put up those signs, you know, just for cover, but you know, that takes it to a new extreme, just like we're gonna kick you out. Boys are
Jeff Lewis 32:51
warriors for justice. They should be given box seats. They're the heroes of our community. They shouldn't be denied entry, they should be greeted with flowers and chocolate.
Tim Kowal 32:59
I don't want special treatment. I'm asking for special treatment, just not negative treatment, either.
Jeff Lewis 33:05
Anyway, that story caught my eye and I thought I would throw it by there. Yeah.
Tim Kowal 33:09
I agree with you that this is it's you know, we talked about access to justice a lot. But somewhere downstream there's an access to justice problem isn't there? If you're depriving denying services to people who represent certain causes or persons that becomes a problem for our society? We start vilifying it's kind of Shakespeare's character dictum, the butcher who said first thing we do let's kill all the lawyers. Yeah. You know, we're not, we're not exactly killing them. We're just going to start, you know, denying them certain access to services and products and things that if we don't like the the persons and causes they're representing, it seems a problem to me.
Jeff Lewis 33:47
Yeah. Big time. Imagine that daughter and that mom and that conversation. Mommy, why won't they let you in? Well, Mama's got to make a living. I mean, it's yeah, it's a problem. Yeah. Well, tidbits today.
Tim Kowal 34:01
Yeah. Let me ask them one other one other question more. More broadly, speaking about tort reform, generally we talk specifically about Micra, you know, the tort reform on med mal cases. I wondered if you had you certainly have opinions on those. And we talked about how maybe there's some counter reforms that are going to be enacted this next year, that may relieve some of the burdens that the micro law is put on plaintiffs in your field wondering if your work and in struggle with the tort reform in med mal cases is given you any broader perspective on tort reform, generally, like you know, there's no product liability or you know, there have been people who've talked you know, endlessly about the tobacco cases and some people think that it was a black guy for the judicial system that you know, just a lot of attorneys got made rich out of the tobacco litigation, even people who don't hold any brief for the tobacco industry think that the judiciary provided a pretty good payday to a lot of well heeled firms litigating against the tobacco companies and that was kind of a there I guess every industry is a little bit different when it comes to Different kinds of tort reform. I wonder if you had any any broader takeaways on tort reform in the judicial system more generally, or if your work is more specific on med mal,
Ben Ikuta 35:08
I'll just say that have treats for me, right, Sixth Amendment Marine, and in my opinion, the best system in the world when other countries are copying on system, why would we take away the power from the jury, we let the jury there to decide whether the whether or not there was wrongdoing and the amount of damages that resulted in that wrongdoing? And to take that away from the jury? It really is, I think we can in our entire system, great John Harris system. So performance, it goes directly against our entire jury system.
Tim Kowal 35:34
Yeah, we have the jury system, and then we have the judge is can work the brakes, if the judge feels that the jury has just said that the judge is dealing with the Runaway Jury, the judge has the opportunity to pump the brakes a little bit. You think that's that's enough in the main that legislature shouldn't step in too onerous Lee to restrict that basic framework that we have,
Ben Ikuta 35:51
that 13 Jurors are for a reason as well, that's kind of a safety parachute, if you will, there's no reason to take away and as you know, and this is especially true right now, I mean, you're only seeing the outliers, you see these big, huge enormous verdicts in the papers and these facts that are you know, that always aren't always accurate. I mean, it all is complicated, for example, right? I mean, you're it's not a true representation of what's happened not seeing the $5,000 verdicts, not seeing the defense verdicts. So I mean, yeah, well, why take away the juries? Right, I think where the power from the jury finding greater entire system reformat that?
Tim Kowal 36:20
Yeah, yeah. You know, we all of us attorneys who have worked a jury or work on a jury case, you know, we go through the the exercise of explain to the jury the important role that they play, and then at the end of the process, we thank them for their service, it's one of the most important things you can do as a citizens is to sit on a jury. And you know, sometimes these reforms, you say, maybe they take too much of that roll away when the jury is in any danger of actually, you know, doing something that will help society we take away that and limit that role. Exactly. Right.
Ben Ikuta 36:47
And that's particularly fitting that in my practice, where we see the same doctor, same hospitals over and over and over again, you know, hardboard more patients and the same exact way that's there is not just compensation, there's not an incentive to change.
Tim Kowal 36:59
All right. Well, Ben, thank you again for joining us today. This has been a really fun conversation. I wish you continued success in your practice. And yet that's gonna wrap up this episode. We want to thank case techs again for sponsoring the podcast each week when we include links to the cases we discussed, we use case text and listeners to the podcast can find a 25% lifetime discount available to them if they sign up to case text at case text.com/c A LP that's case text.com/scalp.
Jeff Lewis 37:25
And if you have suggestions for future episodes, please email to info at Cal podcast.com. Or if you're a medical malpractice defense lawyer and you want to come on to talk about the benefits of Mike, Greg, give us a call. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. All right. Thanks,
Tim Kowal 37:40
everybody. Thanks again, Ben.
Announcer 37:42
Thank you so much. 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 Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
Judges just don’t get your arguments sometimes, it seems, and that can be really frustrating. But don’t lose your cool. The Court of Appeal in Shah v. Fidelity Nat’l Title Ins. Co. (D1d1 Dec. 27, 2022) 2022 WL 17959563 (nonpub. opn.) admonished counsel for impugning the trial court and opposing counsel in the appellate briefs.
The plaintiff in this real property dispute had his case dismissed on a demurrer, but got it reversed on appeal. But then the trial court dismissed his case on summary judgment. To the plaintiff, apparently, it felt like the trial court was looking to quickly dispose of the case.
And the plaintiff—represented by a 40-year attorney—let the trial court have it in his appellate briefs. He said the trial court “refuses to learn” the law, “misrepresents” the law and “knowingly errs to achieve a preconceived outcome.” Counsel also called the MSJ proceedings “a magical mystery trial” and accused the trial court of “duplicity.”
Not to be left out, defendant’s counsel was also accused of using “sophistry” to “seduce gullible courts” with a “bag of tricks, lies, and misdirection.”
The Court of Appeal admonished—though did not sanction—counsel for this diversion from the rules of civility. “Such bombastic, ad hominem attacks have no place in an appellate brief and are potentially contemptuous and sanctionable behavior. “[A]n opening brief is not an appropriate vehicle for an attorney to ‘vent his spleen’ .... This is because, once the brief is filed, both the opponent and the state must expend resources in defending against and processing the appeal. Thus, an unsupported appellate tirade is more than just words on paper; it represents a real cost to the opposing party and to the state.” (Pierotti v. Torian (2000) 81 Cal.App.4th 17, 32–33, fn. omitted [awarding sanctions for frivolous arguments unsupported by the record made in an opening appellate brief].)”
The court went on: “Further, “[d]isparaging the trial judge is a tactic that is not taken lightly by a reviewing court. Counsel better make sure he or she has the facts right before venturing into such dangerous territory because it is contemptuous for an attorney to make the unsupported assertion that the judge was ‘act[ing] out of bias toward a party.’ ” (In re S.C. (2006) 138 Cal.App.4th 396, 422.)”
Fortunately, the court noted that, while counsel’s incivility “reflect[s] poorly on the profession,” the nature of counsel’s indiscretion is not common among the bar.
The court warned counsel that future indiscretions may warrant sanctions.
While perhaps not widespread, there is a notion among many attorneys that such bombastic language is needed to “cut through the noise” and get a court to understand the severity of the problem. While I strongly disagree, my faith in civility has been shaken when judges not only fail to express umbrage at uncivil language, but even seem to take conclusory accusations at face value. For this reason, while I never use bombast in my own writing, I cannot count it out of the question: sometimes, at least in the trial courts, it does seem to work. Much to my chagrin.
But I have never seen it work in the appellate courts. You may be admonished for using bombast and adverbs to excess. But worst of all, you will have lost all hope of persuading your panel.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85 Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused to declare Shaefers a vexatious litigant because one of his lawsuits was a cross-complaint and the trial court thought that didn’t count. It does count.
But how did Blizzard convince the court to grant review of the order? An order on a motion for a vexatious-litigant determination is not an appealable order under Code of Civil Procedure section 904.1, the appealability statute. An unpublished opinion out of the First District Court of Appeal said so earlier this year.
True, but an order declaring a person to be a vexatious litigant is the equivalent of an injunction. And injunction orders are appealable under section 904.1. So the Blizzard court held the order was appealable.
Here’s the holding to clip-and-save. First, note that the statute for determining a party to be a vexatious litigant, section 391.7, subdivision (a), authorizes the court to issue an order that “prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court ….”
The court then said: ““[T]here is no question that the prefiling order contemplated by section 391.7, subdivision (a) is an injunction.” (Luckett v. Panos (2008) 161 Cal.App.4th 77, 85, 73 Cal.Rptr.3d 745.) “[A]n order granting ... or refusing to grant ... an injunction” is appealable. (§ 904.1, subd. (a)(6).) Therefore, the order denying appellant's motion is appealable as an order refusing to grant an injunction. (See In re Marriage of Rifkin & Carty (2015) 234 Cal.App.4th 1339, 1347, 184 Cal.Rptr.3d 783.)”
Although I endorsed the Luckett reasoning in an earlier post on this subject, let me now offer a dissenting view. When discussing injunctions, one usually imagines orders that affect a litigant’s activities out in the real world. Like an order to halt a development, or to remove an interference from someone’s property. Orders affecting the real world need an opportunity for review.
But the same cannot quite be said for orders that only affect court world. Orders compelling discovery, for example, are orders that enjoin certain conduct. So based on the very same rationale as in Luckett and Blizzard, most discovery orders would be directly reviewable as injunction orders. Yet there is no chance an appellate court is going to entertain any argument that would make discovery orders directly reviewable.
The court probably thought it untenable that prefiling vexatious-litigant determinations under section 391.7 should defy appellate review, and so followed the holding of Luckett. But I would not expect other courts to expand the holding beyond this application. Orders that only affect court-world are unlikely to be considered injunctions.
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at tkowal@tvalaw.com or (714) 641-1232.
Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here: https://tvalaw.com/california-appellate-newsletter.
What does an appeal look like after having done 2,000 of them? John Dodd is one of the few people with that vantage. A former staff attorney at the Court of Appeal who has volunteered on the juvenile-dependency panel along with his civil appeals practice, John explains how “an appeal is an appeal.” Once you have spotted some of the key differences among the various disciplines, it all comes down to the rudiments of appellate procedure and advocacy.
We also discuss:
🏠 Juvenile dependency appeals, and when “the overweening hand of the government” unnecessarily disrupts families.
🏛 How he won the Sanchez case (barring the expert-witness end-run around the hearsay rule for case-specific hearsay) and became one of the leading experts on Indian Child Welfare Act, now a hot issue among constitutional scholars.
🤵 Should you waive oral argument? It probably won’t make a difference but—what if it does?
John Dodd’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.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Use this link to get a 25% lifetime discount on Casetext.
John Dodd 0:03
The overweening hand of government is interfering with their family unnecessarily, basically, as far as I'm concerned and appeals
Announcer 0:11
and appeal, welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Jeff Lewis 0:25
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:27
And I'm Tim Kowal The California appellate law podcast as a resource for trial and appellate attorneys. Both Jeff and I are appellate specialists. But we split our time about evenly between trial and appellate courts. And in each episode of the podcast, we tried to give our audience trial and appellate attorneys some news and insights they can use in their practice. If you find this episode, a resource a good resource, please recommend it to your colleagues.
Jeff Lewis 0:47
And if you don't like it, send it onto your opposing counsel. And a quick thank you to our podcast sponsor case tech case Texas is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast a bit of subscribers with 2019 I highly endorse their service and listeners of our podcast or receive a 25% lifetime discount available to them if they sign up at casetext.com/calp that's casetext.com/CALP.
Tim Kowal 1:11
All right, Jeff and today we are pleased to welcome John Dodd to the show. John has been a certified appellate specialist since 1996. Love to ask them when they started issuing those certificate and it's handled over 1000 appellate matters. But let me stop and back up a minute and read that more slowly. John has handled over 1000 appellate matters. And John has been practicing for over 30 years after graduating from law school, John worked as a staff attorney with the Fifth District Court of Appeal and he practiced with private law firms before founding his own firm. He's admitted to practice in California and the Supreme Court of the United States and the United States Courts of Appeals for the seventh and ninth circuit. Originally, John's law practice combines civil litigation and appellate practice, but later he transitioned to devoting full time his practice full time to appellate matters. And he's done that for over 20 years. And a couple other nuggets from John's very long CV John has served as a member of the California Advisory Commission to the United States Commission on Civil Rights from 2007 to 2013. In 2004, John served as the chairman of the committee of Bar Examiners for the State Bar of California after completing three years as a committee member, and from 98 to 2001. He served on the Commission on Judicial Nominees Evaluation, colloquially known as the Gini commission for the State Bar of California. So without further ado, welcome John Dodd to the podcast. Thanks for being here. Thanks, Tim. And Jeff, glad to be here. All right, well, let's continue gonna do it a vitals bio lightning round here and talk a little bit more about your practice area. Now you do exclusively appellate work for the past 20 years, what kinds of appeals all types of appeals? Or do you focus on some
John Dodd 2:48
all types of appeals, we've stopped and we don't do Criminal Appeals anymore, unless it's from somebody that I've already done a case with in the past and trial attorney. I do have one capital case that's pending, but it's about pretty evenly split between appointed dependency cases and just regular retained civil cases. Today, I'm working on a probate case it can be probate, real estate, family law, you know, basically, as far as I'm concerned, and appeals and appeal, unless you're just some arcane area, like sequel or something, you know, just you have to read everything every time to do it. Right. Anyway. So I don't think it really matters what kind of case it is. Oh, interesting.
Tim Kowal 3:24
I was gonna ask you about that. So you just said and appeals and appeal. So when you when someone comes to you with a family law appeal, or a personal injury appeal or a probate appeal, do you just see it as an appeal? Obviously, there are differences. But tell us how you see those differences after 30 years and over 1000 appeals?
John Dodd 3:40
It's actually over 2000 appeals, I have to update my bio. But we're really never catch up. Well, that you know, the basic fundamentals, you have to figure out the standard review. That's always you know, a key thing you have to be able to organize and describe what happened in your Statement of case and facts that applies to any kind of case. And there are so many issues, unless you're dealing with, let's say family law, which generally have I don't know what the number is maybe 10, primary issues, move aways, business evaluations, things like that. But within a family law case, you can have a variety of evidentiary questions that aren't really family law questions, but their evidence questions. And so those cut across any kind of appeal,
Tim Kowal 4:24
right? So you've got your specialized types of questions in any particular area, but all civil appeals will involve standards of review, evidentiary evidence type questions or just a lot of bread and butter issues that any appellate attorney is going to need to learn how to deal with. Correct okay. One other one new ones that I've noticed in juvenile cases now I when I review recent opinions to find interesting things to write about and talk about, I usually zoom right past those juvenile dependency cases they're too much for me, but I do notice because I have a Westlaw alert set for CCP 909 findings. That's where the Court of Appeal can make findings on its own in the first inning. stents in the Court of Appeal always says that we very rarely extra exercise this discretion. And I've actually only ever seen it done in these juvenile dependency cases. So is that a consideration that you have to be aware of, you know, be top of mind when you do these juvenile dependency cases is, Should I ask the court to find out?
John Dodd 5:18
And generally, you know, the courts will only do that in order to affirm the case. Oops, something popped up on my screen here. Sorry about that. Okay, we probably continue to see me, but I didn't see you. So they only do that in order to affirm the case. But in very rare instances, will they take additional evidence to reverse and they're generally very loath to do that, but it's very active in the dependency cases these days. Others is hot issue of the Indian Child Welfare Act. And it's basically a not an Indian Child Welfare Act question. It's the standard review question or standard prejudice questions. My office, we actually my wife and myself were appointed on this case, we just filed an opening brief on the merits last week, and other courts of appeal around the state had no less than seven different analyses on the proper standard of evaluating prejudice, whether that's reverse or per se, or or never, you know, what hell freezes over? Type standard of evaluating prejudice. So in these cases, where the county maybe didn't properly notice the Indian tribes, then the county will run around and do it after you file your brief and then file a 909 motion and say, well, we've fixed it now. And a lot of times, the court says to add, you didn't fix it earlier. And sometimes they take it. So yeah, but I don't I motions, and that's another hot topic, actually, in these dependency cases, because in a dependency case, you're marching along, you have initial hearing, and then hearings all the way along for about two years. And so stuff can happen, you know, folks can die, folks can get their kids back, all sorts of things can happen. So taking additional evidence on appeal is something which is often centered in dependency cases.
Tim Kowal 7:02
Yeah. And you mentioned, I've seen this law on that as well. But those 909 motions, asking the court of appeal to take evidence and make a finding, in the first instance, without having to wait for the time and expense of sending it back to the trial court to do it. The Court of Appeal rarely does it and usually will, if it's going to do it, it will tend to do it more often, if it's going to result in an affirmance of the order. And I wonder, I don't recall that being part of the 909 statute that the court shall, you know, do this rarely, and only in favor of affirming that seems like a judicial gloss on the rule that we're gonna do more in favor of affirming that I remember reading a justice Riley's damn column a couple of months ago responding to the objection that well, don't the don't the courts have their thumb on the favor of the respondent isn't in any affirming business. And in his responses? Well, the court isn't in the affirming business, it is in the affirming business, but only because the statutes and rules are written that way. But section 909 isn't written that way yet that there's a judicial gloss on it that suggests that the courts has put itself in the affirming business.
John Dodd 8:02
Right, that's true. It says that s case is the case that they don't take additional evidence for work on reversals just on affirming. Yeah, just thinking,
Jeff Lewis 8:10
Hey, John, on the subject of dependency work, I've never done it. I've done appointed work in the criminal context, can you talk a little bit about dependency cases and why you do them and why you accept appointed work, when you could probably command a high hourly rate and to have your plate full of civil litigation for the rest of your career? Why do you bother with dependency work?
John Dodd 8:29
Well, a couple of reasons. One, when I left the court 30 years ago, and came back, I was in Fresno came back down here to open my practice I was with and then so I applied to the panel, you gotta have some work to do. And so I handled those type of cases. So I checked that box. And I've been doing them and I've been doing them ever since. And so it's sort of an unending flow of work, which is probably a sad commentary on our society. But we're speaking before we started during COVID, when they shut down the courts, you know, there weren't a lot of civil appeals, because there weren't a lot of judgments. But there continued to be dependency cases was there is some satisfaction in you have to put your client in the box that the overweening hand of government is interfering with their family unnecessarily. And and sometimes you get those cases. And so I remember you're talking about you're wondering about war stories. So one of my war stories, we had a case and the child was mentally challenged, and the parents were a little slow themselves and there was basically a dirty house case
Tim Kowal 9:36
and a dirty house case. What do you mean by that? Like literally
John Dodd 9:40
dirty? Yes. I guess in the jargon. A dirty house cases is the parents do not keep the house fit enough to live in. Yeah, no, it's full of trash. There's debris, they don't put the kitchens filthy, everything's filthy. And it's just it can be diseased resident and a hazard for the kid. So these folks cleaned up their house, but the county wouldn't give them their kid back. And then So that was the appeal and eventually we won. But you know, they had the social worker would go out there and describe, you know, conditions as I think it was a Justice Sills opinion that are would be common on any farm in this country, you know, there was an outboard motor sitting there, you know, there was a wading pool with water in it, you know, and this sort. Yeah, and then so are
Tim Kowal 10:21
this there's a Simpsons episode with the social worker coming to the house and pointed out that the toilet paper roll was installed in the improper underhand fashion.
John Dodd 10:29
That's right. And so they we got that reversed. And to make sure we got to reverse my son who's an attorney now in his high school, he got his high school Key Club and got, they got out there, and we cleaned up these people's house, we, we cleaned it all, we got donations from IKEA and Home Depot, and, and all this stuff to make sure these people weren't gonna, you know, take this people's kid again. Yeah. And so you know, and he, this is one of the ones that just kind of limped into, you know, interview land. And so there was on the radio, and we were on John and Ken, and he says, one time that social worker came out and said, there are too many wasps. What am I supposed to do about wasps? You know, so every once in a while, you get those kinds of cases that you are preserving families that didn't need a little leg up, and other and then the rest of the ones, you know, you want to make sure it's just like a regular public defender, you know, we have something called due process. And I've won multiple cases where they didn't give the proper notice, or they just kind of made something up as they went along. And, and you gotta have due process. And so
Tim Kowal 11:32
how long have you been doing these cases jarred me? How long have you been doing these juvenile dependency cases?
John Dodd 11:37
Oh, 30. I've been practicing for 3536 years, and probably the whole 30 to 33 that I came back after the court I've been doing Oh,
Tim Kowal 11:45
yeah. So you find it rewarding for those reasons? Or is it? Does it get depressing, sometimes?
John Dodd 11:49
Well, it gets, it's not really depressing. Sometimes it's just kind of the same thing over and over. But it's not the same thing over and over to those people. Sure. As far as the impact on their life, it's a new thing. And so and then it the law was changing quite a bit in any time, when you get the law changing quite a bit, you know, well intentioned, judges make mistakes. So you get a bunch of reverses, and they're just doing the best they can with, you know, not enough resources and too many customers. And so, you know, when you get to a judge gets reversed. I think a lot of them don't take it personally, especially when you get in an area of in the laws and flex, like this Indian Child Welfare stuff.
Tim Kowal 12:30
And what stage of the proceedings? Are you coming in as the appeal already been filed? Or do you consult and whether to take the appeal,
John Dodd 12:37
right, the what the the appointment system works, just as the criminal system work that Jeff worked in a trial attorney will file a notice of appeal. And then it goes off to one of the appointing agencies, you know, for the different districts, and then they just kind of parcel them out and just call you or they just send you an email these days, if you want a case you want a case you want.
Tim Kowal 12:56
So is there a similar procedure as in criminal where if the appellate attorney finds no substantial issues, if you find no substantial issue in one of these juvenile dependency cases, can you back off the case?
John Dodd 13:06
Well, you know, you can't back it off, you got to file a brief, but it's a Phoenix brief as opposed to a when debrief. And the procedure differs by district, you know, some of the districts you just file a letter and they immediately dismiss the thing. And then other districts give the client 30 days to file something.
Tim Kowal 13:23
Got it, you know, you're working over 2000 appeals. Do you like being the appellant the underdog, or do you like winning being the respondent?
John Dodd 13:31
I was thinking about that, I suppose I'd rather be the respondent but you know, when you're the respondent, you're not coming up with cutting edge new legal theories, you know, you're not changing the law, you're the whole purpose of being the respondents is to say, every, you know, nothing to see here, keep moving, nothing to see here. And so, to that extent, you like being the appellant because, you know, when sometimes when you win, it's it can really change can be a game changer.
Tim Kowal 13:56
I wonder if when you're the respondent, if you're like me, and you like try it, like finding those appellants who are not represented by an appellate specialist or a listener to the California appellate law podcast, and you pull out your rules of court and all of your respondents trap Oh, you forgot to cite all the evidence that is substantial evidence issue or, you know, fee cited the wrong standard of review, or you may, you know, you didn't pull all your key arguments under their own separate headings. Right. Whammy.
John Dodd 14:20
That's right. Unless you you know, the courts look to a firm they really do.
Tim Kowal 14:26
Yeah. What was it like being a research attorney at the District Court of Appeal?
John Dodd 14:30
Oh, it was a it was a very good experience. You know, I guess every court is different and I was only there I wasn't at the others but you know, you get to hang out with people that know a lot more than you do. About and every justice is different. Some justice were you know, micromanage the whole thing and other justice still looks good to me. You know, when you give them their memo and some send it back do it again. I don't like that. So but it's you get exposed to a wide variety of topics. You know, we did you know, it wasn't a dedicated staff. So I did criminal cases. And he's dependency cases and the termination of parental rights cases, which is sort of not really dependency, but it's the private, like contested adoption cases. And that ended up being sort of my specialty in the civil world, as well as just regular civil cases. But we did a little bit of everything.
Tim Kowal 15:14
Did you take any tips like brief writing tips with you, from your time on the Court of Appeal?
John Dodd 15:20
Yeah, just I would say it just all the regular things you usually hear be short, you know, I mean, if you can you go, you know, especially now they're really overworked. So they really stick to these 14,000 word limits. I mean, it's amazing how we used to be able to have a 19,000, you know, say, Well, I got a 3000 page record, and there's 10 issues, and that did and they'd say, Okay, now they just say no. So you have to go through and shorten every single sentence. And you have to, and to do that after you've done that, then you sort of ingrain that habit, you know, use active verbs and use two words instead of three throughout the whole thing. And that makes your brief, easier to read and clips right along. And as you mentioned, sort of before, it's sort of a rule, you know, have all C sub headings make it easy on the court, you know, and that's the thing, the court they all say how they're overworked, as if we're not, but make it easy on them to decide in your favor, no matter which side you're on. You know, I always think that, you know, you should be able to read an introduction say, well, that person might win. And then you read the table of contents and say, oh, yeah, that person might win. And then you read the brief and say, that person's gonna win. But so it's you make it easy on him. And you know, don't hide the ball. Don't be cryptic, you know, you want to you don't want to be boring. It doesn't have to be dragnet style. But it doesn't have to be too flowery, either, you know, you want you know, I'm sure they appreciate a good turn of phrase here and there. But I think too much of that distracts from your legal argument, just so that's it, make it as straightforward as you can and make it easy for the court.
Tim Kowal 16:52
Yeah. And when you started your practice, you were doing both litigation and appeals. And then after some years progressed to doing exclusively appeals, you tell us about that progression?
John Dodd 17:01
Yeah. So we, you know, it's kind of hard. You guys do a little both. So you probably know, but you know, when you gotta go do a deposition. You know, when you get exported into something, you know, it's kind of hard to, you know, if you have, you know, a smaller appeals one thing, but if you've got a, you know, 4000 Page record that you've got to get through and a due date, and all of a sudden, somebody dumps a motion on your desk to answer if you're not the person in charge. Or if you are the person in charge, the other side sends you an ex parte something that you've got to answer that just drops your whole flow. And so it just became increasingly difficult to do both. And it's so that's why, you know, I don't take anything I don't gainsay trial counsel, you know, I used to be a trial attorney. But I probably haven't been in a trial court for 20 years, I couldn't, you know, lay a foundation for an expert if you paid me, you know, but I can read the record and figure out how they didn't do it. Yeah. But you know, I have to, but so that's the thing that you know, everybody you know, I tell people, I don't do plumbing either, you know, they're really different skill sets, I
Tim Kowal 18:05
think, right? What are some tips that maybe you might have for trial attorneys? Maybe they're not at the appeal stage yet? Maybe they are, you know, they're pre trial? Do you have any tips for them? You know, I always get frustrated when I've got a client who comes to me with an appeal. And I say, Well, you would have had do good issues here. But you know, the proper groundwork wasn't laid for them at the trial. And I would prefer to be able to help them do the right thing, rather than tell them what they should have done. You have ways of conveying that to trial attorneys.
John Dodd 18:29
Probably the most most important is no secret is to make sure you have a record, you know, a lot of people they I asked Well, there was a reporter and they say they don't know, you know, why don't you know, I don't even know if there's a reporter Right? Or if there is an electronic monitor these days, you know, I don't know, well, it's on the minute order, you know, and I guess la you can order them online, but to me, you know, if you have some kind of a dispositive motion, or even something that might go south, you know, have a reporter because otherwise you've got to do a settled statement, you're not dead in the water. But you know, you lost that's why you're coming to me. So you're gonna write up what happened and the other side is going to write up something totally different. And say, that's not what happened. They didn't say that they didn't make that objection. And the judge, you know, assuming we're all assuming all proud judges are men and women of goodwill, but they want to protect their rule. They're not going to say, oh, yeah, I called this guy a dirty sob in the middle of the hearing, you know, they're not going to do that. So And along the same way, if you know you are in a court, like a lot of times in family law, they do all this stuff off the record, they go back and chambers and just do it off the record. Well, when you're done you just say your honor like to place on the record bid bid bid bid bid. And a lot of times the judge may get a little irked, but you know, that's too bad.
Tim Kowal 19:48
Get it on the record, any way you can get it
John Dodd 19:50
on the record anyway, you can and then you know, take your lumps and it's he I know it's easy to you know, for me to say that because I'm not the one taking lumps and having you and stared down by some judge that I can have to appear for before next week, but you've got to do it. Because if it's not there, yeah,
Tim Kowal 20:07
yeah, I've sometimes suggested to to trial attorneys. You know, if they don't if their client is not well heeled enough to hire a separate appellate attorney to serve as embedded appellate counsel, at trial, at least have an appellate attorney, you know, on consultation retainer and call them up at the end of every day of trial and see, here's what happened. Here's the key evidence that we were able to get in, here's what we weren't able to get in appellate attorney maybe could advise, Okay, tomorrow, you need to put something on the record, you need to do an offer approved for whatever it is to help try to patch the holes,
John Dodd 20:36
right. And not only do an offer proof, do an offer proof in writing, or even a piece of paper, because that that, that that's gonna get stuck in the file and, you know, fall on your sword, you know, like the court to reconsider. I know, you said this, and that the other but I really think you know, all he's gonna do he or she is going to do is yell at you, you know, they're not going to sue you for malpractice judges. So
Tim Kowal 20:55
are there any common mistakes that you see trial attorneys make anything from poring over the record and over 2000 appeals that issues that I have mentioned that, gosh, this, this would have been a great issue, but no, there wasn't enough of a foundation laid for it, the attorney this would have been great evidence that was excluded. But the attorney didn't try hard enough to put it into evidence, what kinds of trial attorneys do you see come up again, and again? Well,
John Dodd 21:16
those are probably the main ones. But other than that is getting too emotional. You know, I mean, if you've got to be able to remote and convince a judge or jury, but you've got to keep tethered to reality also. And to really not getting blindsided by what's going on on the other side of the table, because you're you know, you think your clients been wronged horrendously, and you're gonna write this wrong? And isn't this horrible, and you can't see the other side? You've got to be able to see the other side, and then make your record about it.
Tim Kowal 21:46
Yeah. Hey, John,
Jeff Lewis 21:47
is there anything they just shot him this question? I'll ask you. First, is there anything unique about the way you handle appeals that your opponents would say about you, or maybe appellate justice, say about how you or your firm approach or handle appeals?
John Dodd 21:59
Well, I was looking at that question on your list. You know, I think that as far as from the client standpoint, you know, I'll tell them if they don't have a decent case. You know, I know there are people out there because people have gone from here and gone to them. And then they get this scathing opinion when it because I'll sign up for, you know, email notification on cases that people talk to me. And what I do is I as I review it, I do like an initial review and a reduced rate and or half a day or a day, depending on if it's a motion or a short trial, it's gonna take longer than that for a longer trial to see if it looks like we have what we call an arguable legal issue. And then I'll tell them, I'll just say, as I mentioned earlier, I'm fighting off this cold, you know, you have an issue, but it's just not going to happen. There's no way and in many cases, I just say I won't even brief it. I'm gonna do it.
Jeff Lewis 22:46
Let me ask you a related point. So you're talking about viability or frivolousness. Are there any pieces or arguments that you won't make arguments you won't make or cases you won't take? Not because they're frivolous? But just because of the ick factor you just don't want to handle?
John Dodd 23:00
Well, no, because I don't do Criminal Appeals anymore. I've had two capital cases, and those have significant serious things going on in but you know, it depends the you know, most of these most of the appointed cases, you technically get a choice, but you don't get much of a choice. And there's either a legal issue or there's not and you don't meet the person, you know, anyway. And as far as the private cases, if they have a legal issue, they have a legal issue, as far as I'm concerned. I mean, I suppose you could look at let's consider a restraining order cases. You know, a lot of people think they give restraining orders away a little too easily. And it's good reason to err on the side of caution. But, you know, maybe the person, you know, is not the best person that you want to invite over for dinner Sunday night, but if in fact, they've been wronged, you know, I think they deserve an appeal.
Jeff Lewis 23:51
Right. Interesting. Hey, in criminal law on appointed work, you know, often ineffective assistance of counsel is a is a thing for dependency work is ineffective assistance of counsel or commenting on the quality of the trial work, is that something you get into?
John Dodd 24:04
Well, they all think that all the clients but it's usually not proper counsel do sometimes make mistakes because dependency trial counselor very overworked lot more, of course, than criminal law, crowd counsel, but they're all generally panel people or agencies, you know, these kind of like public defender's office and 1234 in LA. And then that's all they do all day, every day. So they're usually not effective to that level. But and but when a private person comes to me in family law or something, I just say, I don't pine on that, you know, my job is to look and see if there's a legal error that appears to be prejudicial. And if you tell me your attorney didn't do this, and didn't do that, and didn't do the other thing, then you need to go talk on malpractice lawyer because I don't get into that. And practically speaking, I don't know what discussions occurred between that client and that client comes in and says ABC, and then you go to the attorney Ernie and he else he or she'll say, you know, def it just didn't happen that way. And then so I just don't get involved in that at all. And I explained that there is no effect in civil cases, there's no ineffective systems. You know, you can talk to if it's if it's soon enough, you may be able to do some kind of reconsideration motion or whatnot, or new trial motion, if you could pin it on accident and surprise. I mean, there's there's arcane writs, quorum, bulbous and novice but that has to be information that's not did not only you didn't have, but you couldn't have at the time. So basically, again, I tell people, I don't do plumbing. And I don't do in effects of this sentence of counsel cases.
Jeff Lewis 25:39
That's with your years of work in this field. I know you don't comment on malpractice. But do you ever serve as an expert witness or standard of care or legal malpractice cases?
John Dodd 25:49
No, I almost had one a year or so ago, but they got someone else was a major law firm that had allegedly missed something in an appellate brief that they should have raised. And I was going to work on that. But I didn't. It's just I'm happy doing what I'm doing. I don't need to branch out. Well, let
Jeff Lewis 26:05
me ask you this then other than writing appellate briefs, what is your favorite part of your practice today? What do you enjoy doing the most when you come into the office? Well, I
John Dodd 26:12
suppose I've spoken about that. It's two main different prongs. One is coming up with cutting edge legal arguments that maybe you just come up with. And for the appointed case, is that just something that you stumble on? You have no really luck of the draw? It's like you may know that I did the Sanchez case in the Supreme Court, the hearsay exceptions, the case specific hearsay and
Jeff Lewis 26:33
no, I didn't know that was you
John Dodd 26:34
as my case? That's your fault. Yep. You're okay. You know, that's totally luck of the draw. Yeah, you know, and I have another one pending right. Now, speaking of restraining orders, now, the Supreme Court's issued US Supreme Court issued Bruin, there's a very good argument that the firearm restriction in all these restraining orders is unconstitutional. Really, I'm arguing that in one case right now. So you know, you just do doing worker's comp defense all day, you just don't get to get those meaty arguments. You know, the other case that the US Supreme Court has right now is a constitutionally of the constitutionality of the Indian Child Welfare Act. And they just argued, and I think last month, well, I developed all those arguments in 96. And in 2000, in pujara, Santos why, I mean, I read every single Indian case that the US Supreme Court had ever written, I read the entire Felix Cohen handbook on Indian law. And I built these arguments about the 10th amendment and racial discrimination and this and that, and then so that sort of went by the wayside, but then somebody else came up with it, I think it was out of the Fifth Circuit, but that's pending in the US Supreme Court right now, of course, nobody called me but whatever it wants to, you get to the meat of it. And that just doesn't happen at all. And I guess the other half is that, you know, I've got a dress shirt on right now. But it's not I usually wear a polo shirt and shorts, and no tie. And it does give me some flexibility. Now I have a lot to do. So I have stuff to do all day, every day. But I'm active in some very specific organizations. And if I have to go travel and do something, you know that it may mean that I have to work more the week before in the work week afterwards. But it gives me the flexibility to go do that. Because you know, you just when there's an argument date or a due date or emergency read or something, then you know, you don't really have much flexibility. But other than that you've got a little more flexibility. Yeah.
Tim Kowal 28:25
So it sounds like a moment ago when you were talking about you know, in some legal issues, important legal issues. You've been at the front lines, like the you know, you're the attorney on the on the Sanchez case concerning the what's the rule about the hearsay, non non case specific hearsay, you did all the legwork on the Indian Child Welfare Act way back in 1996. And now it's being brought up in what do you say 10th amendment constitutional litigation concerning states rights issues. And so is there a secret to that? Or is it just being around and just rolling up your sleeves when you find the interesting meaty issues? And you know what one of these days like you said luck of the draw it was is what you attributed to and Sanchez, you just wind up on the frontlines of some of these issues.
John Dodd 29:01
It really is luck of the draw. I was thinking I have a related case on construction, licensing and that kind of thing. I did the Jeff Tracy case, which I don't know if you do any construction law, but it's, you know, some of those things are private cases that are just luck of the draw to you just have to kind of be open. You know, unfortunately, most things need to be preserved in the trial court. Again, not only your facts, but your legal arguments, because, you know, there's case law out there that says that, you know, the trial judge can't be you know, be held, I've made a mistake if he was never asked basically. So most issues need to be raised in the Prop court, but not all, it just depends what the Court of Appeal wants to set its teeth into and you never know if some question is some pet peeve of some justice from 20 years ago when they were a trial attorney. You just never know what's gonna really pique their interest because they have so many cases that are mundane, but if you can make your case, something that piques their Your interest and can justify going, you know where no man has gone before they'll do it if they want to. But if they don't want to, you're done.
Tim Kowal 30:08
Yeah. Well, is there a secret to that you say it's important to find an issue that piques the justices interest. So it's got it, there's got to be some value in going to a lot of local bar events featuring these justices and following what kinds of issues they're interested in what kind of arguments in cases they're interested in? Is that something that's been of value to you, when you served as a research attorney at the fifth district, you must have gotten to know what kinds of cases piqued the interest of the various justices there.
John Dodd 30:32
Back then. Yeah. But and so I, I've just I've been doing some other things. You know, as you may recall, I was very active in the bar here as on the bar board and right, that sort of thing. And did went to a lot of events. And you know, a lot of justices are very upfront about where they stand on certain issues, the way justice riders dam for one way, Justice Sills for another, we'll talk about any living justices, but but if you can figure out their judicial philosophy and put yourself in that box, it sure doesn't hurt, you know, probably I don't know, whether it's 90% or 95%, or, you know, 85% of the cases, they're gonna come out one way, you know, it's you have to see if your case, isn't that miniscule swing district of cases, that you know, you can change somebody's mind about something and take it in some other direction.
Jeff Lewis 31:22
Hey, John, you've been doing this long enough to remember what it was like to litigate and handle appeals for the anti slap law. And you know, a lot of people think anti slap law has logged up our courts because of the limited right to immediate appeal, and other people think well, but they get rid of frivolous cases, sadly, clear up the docket that way, what is your take on California's anti slap laws? And a net is a net plus?
John Dodd 31:42
I think so I've only had a couple anti slap cases. And none recently, because I find that I don't know whether you guys have those. But once you start doing them, people come to you. And so I haven't been doing them lately. But it seems to me it makes sense. But it's sort of its own cottage industry, as you're sort of alluding to. And so it seems to me that it's better to get rid of these cases, you know, litigation is so expensive these days. But if you can weed something out earlier, you ought to do it.
Jeff Lewis 32:08
You know, I gotta say, I do a lot of anti slap work at both levels trial and appellate. And I would like to see the sanctions part have more teeth for when a frivolous anti slap motion is filed, because when an anti slap motion is frivolous, and a case is put the brakes are put on the case for two years, no discovery, etc. It could be devastating to a legitimate plaintiff with legitimate claims. So I'm a big fan of the anti slap law, I think 90% of the time, anti slap motion or rightness, but sometimes it's abused. Interesting. Hey, you know, we talked a little bit earlier about court reporters. And when you start practicing law, you know, we had a court reporter in every courtroom, family law, probate harassment, restraining orders, etc. And now, you know, la just announced they're not going to have court reporters family law for a restraining order hearings, and you got to bring your own. And it seems like court reporters are not available because they're not available. It's not a matter of throwing money at them. It's just not available. Where do you see with your years of experience? Where do you see the court reporter shortage ending in terms of preparation of records and transcripts and how it impacts appeals?
John Dodd 33:07
Well, I haven't really thought of that. I think as they go more towards, you know, if electronic monitoring seems to make sense to me, because then if you need a transcript, you can get the recording transcribed. And that would deviate it, but for some reason, they're not even electronic monitoring, and a lot of these things, and I don't understand that. And I guess the courtrooms just don't have the technology. Like I said, I haven't been in a courtroom for a long time. So yeah,
Tim Kowal 33:30
you had mentioned about the electronic recording system that I think is still active and available in some of the limited civil departments. And I wonder if you've ever handled handle any appeals that deal with those chronically recorded records
John Dodd 33:43
I've had, I probably get one every year or two limited civil, and some of them have electronic monitoring. And you can I guess, I forget whether it's in Orange County or LA or both, but you can have the audio just sent right to the Appellate Division, or you can have it transcribed. So I did have one last year that we did that we just had
Tim Kowal 34:02
to transcribe. You have a transcribed as the transcription gets sent up to the Court of Appeal as well. Right. Right. Right. Yeah. Okay. And did that work out fairly well, or were there a lot of garbled audio? Oh, it's, it sounded pretty fine. Okay, I'm doing some research for a piece on the court reporter shortage and looking at the legislative record for all of the, you know, the alleged deficiencies of the electronic recording system, and this was back in the 90s. So they had, you know, physical tapes, and someone would have to be there to change the tapes out every 45 minutes, or whatever it was, I think we've been able to surpass a lot of those problems. Here we are 30 years later, and we're doing everything via zoom. And, you know, no one most new attorneys probably never even heard of a cassette tape.
John Dodd 34:40
And of course, the court reporters union who wouldn't be favor of more electronic monitoring?
Tim Kowal 34:45
No, probably not. Although there's no you think that there'd be less of less invective because there's simply a lack of human resources, just not as many people becoming court reporters anymore. So it sounds like a job security issue. It was 30 years ago.
John Dodd 34:59
Well, it is a pretty big Acting tasks. I mean, I couldn't do that.
Jeff Lewis 35:02
So, yeah, yeah, yeah. You don't do plumbing. You don't do cord recording. Make a note of that. Hey, John, I was wondering on the issue of oral argument, putting aside compensation issues, whether or not the projects compensate you for going to an argument or not putting that issue aside? What is your general philosophy? I'd go into argument waving argument insisting on it. If you're the appellant or the respondent, what are your thoughts about the utility of oral argument?
John Dodd 35:25
Well, I think Justice beds worth once said that you should always ask for argument unless your client can't pay for it. And you don't want to do it for free or something like that. Usually, it's a waste of time. But the problem is, you don't know you don't know if your case is in that 10% of cases, that it's not a waste of time. And so you in civil cases, I think always I won't say always because I'm sure I'd have, you know, 1000 retain cases. I've not asked for argument a couple times, sometimes as a respondent, if the appellant let's say they do the appeal brief, and you do the responding brief. And their brief, their case is just garbage. And they don't even file a reply. I don't ask for argument, right, as that gives them an opportunity to say something about your respondents brief. Whereas if that had been the normal sequence of events, you get the reply brief, and this and then you decide as a respondent whether you think you better ask for argument or just skip it. So in even in a retirement, so as I would say, in that instance, in a retain case, where the appellant is horrible, and they don't file a reply, I don't ask for but other than that, I do ask for argument, but I try and keep it short. You know, my time estimates are usually seven minutes, 10 minutes, 12 minutes, you know,
Jeff Lewis 36:41
I usually ask for nine because I can district they do the shortest arguments,
John Dodd 36:45
you can get in front of the 10 people
Tim Kowal 36:47
getting the prices, right, yeah.
John Dodd 36:51
You know, and it's just kind of hitting the high points. And that's how you can tell the guys that are the trial, people doing their own appeals from the appeal people, you know, I walk in with a little red robe holder and some yellow pads, and they come in with a wheelie cart, or three boxes, you know, what the heck are they gonna do with that? So, yeah,
Tim Kowal 37:09
I think Justice railers, there's someone on the fourth third here used to say, when do they got a 15 minute oral argument estimate? 15 minutes. Counsel where your briefs that bad?
John Dodd 37:18
Yeah, you know, you just want to hit the high points. And just sometimes something you said wasn't clear, you know, and or wrote wasn't clear, and you should be there to clarify it. And sometimes you never know, something pops up in between the reply brief. So my general preparation is if you ask for argument, then a couple of weeks before shepardize, everything to see if there's any new authority. And then so you know, some districts are a lot tougher on this. Now, they don't want any new authority, they don't care if it's a new case, they don't want it. And you can bring it along with you and talk about it. But usually, depending on the district, then if you if something new came up, or if some review was granted, in some case, you'd want to submit an additional authority and in sufficient time for the other side, read it not the night before and sufficient time for the court to look at it. And then a couple days before the argument, I just go over over everything and try and memorize as much as physically possible. But you're just you just have a few brief points and see if they just sit there, you know, like this, or they're asking a couple questions. You got to be able to answer them. But big long talks are a total waste of time.
Tim Kowal 38:28
Yeah, yeah. I had an oral argument recently where my opposing counsel started to started to mention a case. And almost before she could get it out of her mouth. The Justice said, counsel, I don't recall reading that about that case in your briefs. So how can I how can I consider and I thought, holy smokes. I mean, they really know what cases are in there. There must have been, you know, 75 100 cases cited and all the different briefs and they can you know, you could spot it out that quickly. Have you ever had an oral argument where you came out and you thought I'm glad I requested oral argument. This one really seems like it may have turned the tide? Yeah, a
John Dodd 38:58
few times. I'll tell you though, I had an argument a long time ago, where I was literally yelled at for half an hour and one.
Tim Kowal 39:06
I got to hear more about that one.
John Dodd 39:09
That was one of the earlier parental rights cases. I found out he wasn't the father.
Tim Kowal 39:14
But you were yelled at by a justice.
John Dodd 39:16
Yeah. And he was we were suing the mother. And, you know, he was trying to get into adjudication that the kids weren't his kids and because he wanted to nail the other guy who was the biological father and it turned out that I mean that they've changed the law since then that we went we got into Juji Houston he's not the father. And so but they lived as his kids for a couple of years. They thought he was dad so we were just trying to nail the other guy we weren't trying to you know, have him not know the children anymore. But this was out in Riverside may even been was in San Bernardino before he even got to Riverside. But they were pretty incensed. And you know, my guy did not wear the white hat. He wasn't in the morally superior position, but he the law as I saw it, anyway was on on his side, you're much better off going in with somebody in the morally superior position. But things happen.
Tim Kowal 40:07
And last question on oral arguments. Do you have any tips or insights? How to anticipate the courts questions? If you've been living with the case? You've wrote the briefs, obviously, how do you get yourself out of the box to think questions that the Justice might have on their mind?
John Dodd 40:20
Well, if you have time and staff and your client has money, then you can, you can moot court it but in reality, small and mid level clients, not small clients, but small budget items and small budget cases. And you know, we rarely have anything over a couple of million dollars, five $8 million, you know, those kinds of cases, if you want to move on from there, fine. But dealing with middle class people and middle class businesses, they don't have the time. They don't have the funds for two or three attorneys to sit around and bat something around. But if you have the time and have the budget, then it's good to moot moot court. Yeah. And, you know, obviously, you're just sort of kind of due diligence and doing the research. If there's any dissents that are anywhere near your case. You want to be familiar with those dissents? Because those sets might turn out to be majority opinions in somebody else's.
Tim Kowal 41:05
Yeah. Yeah. Yeah, my the best I've come up with is when I get if I'm an appellant and I get the respondents brief, you know, I write down my extemporaneous notes. You know, my first reaction is because I haven't read my appellant's brief and maybe a few months, so maybe I'll read the respondents brief thing in a that's that's pretty good argument. And then obviously, I'll lay them all to waste in my devastating reply brief, but by the time I get ready for oral argument, maybe I want that hot take, but I think their best arguments were when I first read their brief.
John Dodd 41:29
Right, you should be able to respond. That's correct. What do you think their best argument is?
Tim Kowal 41:34
Yeah. All right. Well, let's run a little bit a little bit long. But we would like to subject you to the gauntlet of our lightning round where we asked you, Jeff, I'll let you take over and run the lightning round here. All right.
Jeff Lewis 41:45
This is the time for our patented copyrighted segment of the show that answers the most pressing questions that Vex appellate nerds around the world short responses, one sentence where you can the most vexing questions that concern appellate nerds are number one, what is your font preference for brief century school book? garmont, or something else
John Dodd 42:02
than free school book? 13? That's what they all say.
Jeff Lewis 42:06
That is the only correct answer. Two spaces are one after a period
John Dodd 42:09
two. I'm old school.
Tim Kowal 42:11
Oh, I think we're split about 6040. On that one. I think we got 60% say in one space, if we get about 30 or 40%. Say in one. All right.
Jeff Lewis 42:20
It briefs in the California Court of Appeal your headings your argument headings, not table of contents and statement jurisdiction, but your major argument headings, all caps, initial caps sentence case or something else.
John Dodd 42:31
I don't like all caps, not even for the main heading. I said I think it's yelling. I don't like it.
Jeff Lewis 42:36
Okay, all right. So you're not terribly old school. That's very progressive thinking. All right. And on a similar note, left, justify or Full Justify just left. Alright. And final question of lightning ran round after major headings in a brief when you're going to a new section, do you start the next section on a new page? Or do you continue immediately
John Dodd 42:56
below? My sort of rule of thumb, if it's in the bottom third, I go to a new page.
Jeff Lewis 43:03
Okay. All right. Nicely done. very concise. I think that you get the award for the most concise answers to a lightning round ever. So thank you for that. Back to you, Tim.
Tim Kowal 43:12
All right. Well, here's my one addendum, I want to know the answer this question when you refer to the Superior Court, is it is the uppercase Superior Court or lowercase? Or do you just say trial court?
John Dodd 43:22
No, it's slow. It's supposed to be lowercase, lowercase, Superior Court s, lowercase c. And same with Australia. Yeah, that's Orange County Superior Court, you know, Superior Court of Orange County, it's s but if you're just saying the trial judge, the superior court or the trial court, that's all lowercase.
Tim Kowal 43:39
That's how it's defined in the rules of court I've noticed is lowercase. Okay, all right. Well, John, thanks for being here. That's gonna wrap up this episode. Again, we want to thank case tags for sponsoring the podcast each week, we include links to any cases that we might discuss, we use case text for those links, and listeners of the podcast can find a 25% lifetime discount available to them if they sign up at casetext.com/cap. that's casetext.com/calp.
Jeff Lewis 44:05
If you have suggestions for future episodes, or guests, please email us at info at cow 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 44:15
Thanks. See you next time.
John Dodd 44:16
Thanks for having me.
Announcer 44:17
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 Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes 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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