Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Law and Motion

Only in a distant parallel universe” would court strike a 15-minute late brief

Ordinarily, it would not be newsworthy that a U.S. District Court allowed a brief that was filed 15 minutes late. But Judge R. David Proctor not only refused to strike the late-filed brief: he ruled that striking a brief just because it was filed 15 minutes late would be absurd.

In the District Court ruling in Whitworth v. Mezrano, 2:20-cv00756 (S.D. Ala. Jan. 13, 2023), available at Above the Law, Judge Proctor noted that “There are no doubt many other instances when 15 minutes could make a world of difference,” such as 15 minutes extra time presenting oral argument, or running a marathon, or making a departing flight. “But, the electronic filing of an opposition brief in this court on a late Thursday afternoon is not one of them.”

Judge Proctor then sketched out a parody chambers scene in a “parallel universe” in which idle court clerks expectantly scan the wires in the waning minutes approaching 5:00 p.m., breathlessly awaiting a litigant’s brief, whereupon they commit and resolve to devote their evening to “reading — no, consuming and cherishing — every syllable of this filing.”

“Only in such a distant, parallel universe,” Judge Proctor concludes, would striking the late-filed brief “make any sense.”

Upshot: Next time you need to seek leave to file a late brief, consider referencing Judge Proctor’s observation that filing a brief late by a matter of minutes could only make a difference in “a distant, parallel universe.”

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Employee Challenging Defense Verdict on Appeal Could Not Overcome the Difficult "Finding Compelled as a Matter of Law" Standard of Review

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in *Snoeck v. ExakTime Innovations, Inc.* (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

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Trial court abused its discretion in striking evidence offered in anti-SLAPP reply brief

If new evidence is truly in reply to an argument raised for the first time in an opposition, the trial court abuses its discretion in excluding it. New evidence may […]

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