Legal News and Appellate Tips

Adam Unikowsky, an appellate litigator with nine appearance in the U.S. Supreme Court, argues that judicial law clerks could be replaced by AI. We discuss:

💻 “AI will make judges release more accurate decisions more quickly. This is good.”

💻 Judges already rely on clerk summaries, so if AI produces better summaries faster, that is good.

💻 AI is a mysterious black box, you say? Well, law clerks are already invisible to the public yet influence judicial decisions without any input from the litigants.

💻 True, law clerks are human—but they are still often wrong. “Is it really preferable that judges receive recommendations and draft opinions from ideological 26-year-olds?”

✍ A writing tip: “Unclear writing usually implies unclear thinking. If something is unclear, it’s probably because I haven’t really figured it out.”

👩‍⚖️ An an oral argument tip: Don’t read from your notes. Adam relates a story when the Supreme Court stopped an advocate by asking, “Counsel, are you reading this?”

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

In this episode of the California Appellate Law Podcast, Ben Shatz talks about the founding of CAAL, which finally provided a place for appellate jurists and practitioners to speak frankly about the problems in the courts, and how to solve them.

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

Appellate attorney Anne Grignon joins Jeff Lewis and me to discuss her recent win in Banc of California v. Superior Court, a writ petition from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorneys then turn to private judging generally, discussing Justice Segal's recent caution about the industry's potential overuse of that privately compensated judges, and Presiding Justice Kline's similar sentiment that "private judging is an oxymoron" and is "undermining public justice.” Anne then shares three tips for your next appellate brief, before the three discuss some recent cases, including strategies to consider in approaching statements of decision.

Lee Goldberg joins Jeff Lewis and me for a discussion about his perspective on litigation as outside general counsel for his business clients. Lee shares his three decades of experience using litigators to solve business problems, and offers advice for trial attorneys serving corporate clients. We talk about Lee’s recent video series on LinkedIn (available at his website CalLawyers.com), and what a general counsel looks for when hiring trial and appellate counsel.

Some of Lee's lessons:
•On litigation objectives: " My client is never principle over business. Ever."
•On the most common mistake litigators make: " [When] they think that they have the only answers. Sit back, listen to your client. That is the biggest error that I see."
•On hiring the right litigation team: "Local, smaller, dedicated, smart counsel is what I look for."
•On trial counsel handling appeals: "I will never have my trial lawyers handle my appeals. Ever."
•On success: "The thing that people keep coming back to is success. Understand something, success is perception. Success is not a piece of paper. Success is an emotional feeling that you give to the client that they did the best they could in the situation that they had."

Would love to hear your perspectives.

Listen to the episode here: https://lnkd.in/gsteHnG8

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I have a new short video up explaining what an appellate attorney is, and why you should bring an appellate attorney on to your litigation team.

-- The rate of reversal in 2019 was up to 18% in civil cases, from 16% in 2018. -- About 4% of appeals are dismissed. (This should make you think […]

At the OCBA's Appellate Section event last week, the Presiding Justices from each of the three divisions of the Fourth Appellate District provided some inside baseball on their respective divisions: […]