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.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Oral Argument

Oral Argument Lost Because Counsel Failed to Call Clerk Within an Hour of Posting the Tentative Ruling

You are ready for oral argument. You have checked the tentative and you are ready to explain why the judge got it wrong. But unfortunately, the Superior Court for this particular county does not hold oral argument unless, after the court posts the tentative ruling, you give notice to the court and opposing counsel that you still plan to argue. And that window of time can be as little as an hour.

That was the case in Tearse v. Tearse (Jun. 9, 2021) no. A157576 (non-pub.). The appellant's attorney showed up at the hearing without giving notice of intent to appear by 4:00 p.m. the day before.

But counsel had looked at the court's website at 3:00, she argued, and there was no tentative. Counsel counsel checked with the department at 4:20 and still did not learn of any tentative having been posted.

Well, the court explained, it is true the court posted the tentative a little bit late at 3:10 p.m. So I would have given you until 4:10 p.m. You didn't get here till 4:20. Sorry.

Read More
A Four-Letter Word You Must Not Say at Oral Argument

A caution against using acronyms or jargon. If there is anything in your oral argument that you would write in all caps, cut it out.

Read More
Evidence on Appeal: Just Because It Is in the Appellate Record Does Not Mean It Is in the Evidentiary Record

One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right?

Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial court dismissed the plaintiff's complaint on an anti-SLAPP motion under Code of Civil Procedure section 425.16. The trial court also refused to admit the plaintiff's evidence in opposition to the motion.

But the plaintiff failed to challenge the trial court's evidentiary rulings refusing to admit his evidence. "As a result," the court held, "we can consider only the admitted evidence, and plaintiffs have forfeited any argument that the evidence they unsuccessfully sought to introduce established a probability that their claims would succeed.

Also, arguments raised at oral argument don't count.

Read More
Genetic Testing, Charles Manson, Appellate Oral Argument, and Tentative Opinions on Appeal: An Interview with Alan Yockelson

On our latest podcast, appellate attorneys Tim Kowal and Jeff Lewis interview Alan Yockelson about genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud.

Also discussed:
• The value of tentative opinions
• How oral argument can change an outcome
• Asserting objections at trial even when the judge’s mind is made up
• Why justices don't dissent or grant writ review more often

Listen to the podcast here or subscribe to the California Appellate Law Podcast on your favorite podcast player.

Read More
Important Differences in Federal and State Appeals, with Cory Webster

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals, including: pitfalls in failing to make crucial posttrial motions (FRCP 50); the vastly different approaches to oral arguments in federal court; and the impact of amicus briefing on the practice of appellate law.

Read More
Interview with MC Sungaila on the California Appellate Law Podcast Ep. 8

Esteemed appellate specialist M.C. Sungaila joins TVA appellate attorney Tim Kowal and co-host Jeff Lewis on episode 8 of the California Appellate Law Podcast for a wide-ranging discussion on appellate apprenticeship, preparing cases for appeal, and whether to consider waiving oral argument (M.C.'s answer: Never.).

Read More
What Oral Argument on Appeals Tells You About Your Chances of Prevailing

Oral argument on appeal is often seen as the main event, especially through the client's eyes. But when you get a cold bench with few questions asked by the appellate […]

Read More

Tags

Podcast (30)
Videos (18)
Waiver and Forfeiture (15)
Notices of Appeal (13)
Abuse of Discretion (12)
Legal Writing (12)
Appealability and Appealable Orders (9)
Sanctions (8)
Splits of Authority (8)
Appealability (8)
Attorney Fees (7)
Motions for Reconsideration (7)
Oral Argument (7)
Dismissals (7)
Federal Courts (7)
Arbitration (6)
Civility (6)
Statements of Decision (6)
Record on Appeal (6)
Ninth Circuit (6)
Stays on Appeal (6)
Timeliness (6)
Anti-SLAPP (5)
CCP 998 Offers (5)
Posttrial Motions (5)
Dissents (5)
Unpublished Opinions (5)
Evidentiary Objections (5)
Substantial Evidence (5)
Implied Findings (5)
Respondent Arguments (5)
Briefing (5)
Trial Procedure (5)
Appellate Sanctions (4)
Disqualification (4)
Family Law (4)
Appellate Bonds (4)
Admission of Improper Evidence (4)
Judgment Enforcement (4)
Standards of Review (4)
Preliminary Injunctions (4)
Default Judgments (4)
Motions in Limine (4)
Frivolous Motions (3)
Juror Peremptory Challenges (3)
Notices of Entry (3)
Timely and Untimely Appeals (3)
Appellate Practice (3)
Discovery (3)
Jurisdiction (3)
Depublished Opinions (3)
California Supreme Court (3)
Mootness (3)
Summary Judgment (3)
Dismissed Appeals (3)
New Trial Motions (3)
Ethical Duty of Candor (3)
Appealable Orders (3)
Experts (3)
Stipulated Judgments (3)
Standing (3)
Trust and Probate (3)
Probate Appeals (3)
Judicial Admissions (2)
Legal Ethics and Professional Responsibility (2)
Exclusion of Evidence (2)
Attorney Client Privilege (2)
Forfeiture and Waiver (2)
PAGA Actions (2)
Litigation Tips (2)
Recovery of Costs (2)
Standards of Evidence (2)
Jury Waivers (2)
Personal Jurisdiction (2)
Summary Judgments and Summary Adjudications (2)
Motions to Vacate and Set Aside Judgments (2)
Summary Judgments (2)
Tentative Rulings (2)
Landlord Tenant (2)
Collateral Orders (2)
Excessive Damages (2)
Appeals Dismissed (2)
Invited Error (2)
Writ Petitions (2)
Waiver (2)
Untimeliness (2)
Stays (2)
Pretrial Procedure (2)
Pretrial Issues (2)
Disentitlement Doctrine (2)
Class Actions (2)
Civil Theft (1)
Treble Damages (1)
Premises Liability (1)
Frivolous Appeals (1)
Post-Appellate Issues (1)
Referral Fees (1)
Trial by Reference and Pro Tem Judges (1)
PAGA Attorney Fees (1)
Law and Motion (1)
Petitions for Review (1)
Issue Selection on Appeal (1)
Contempt (1)
Remote Arguments (1)
Attorney Feese (1)
Employment Law (1)
Common Interest Doctrine (1)
Juror Misconduct (1)
Product Liability (1)
Clear and Convincing (1)
ADA and Unruh Accessibility Actions (1)
Clerks Service of File Stamped Judgment (1)
Designating the Record (1)
Trade Restraints (1)
Civil Code 3334 (1)
Benefits Obtained Trespass Damages (1)
Trespass (1)
Property Rights (1)
Expert Opinions (1)
Inherent Authority (1)
Support Awards (1)
Forfeiture (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Motions to Dismiss (1)
Petitions for Rehearing (1)
Judicial Notice (1)
Post Reversal (1)
Attorney Fees - CCP 1021.5 (1)
Moot Appeals (1)
Judicial Bias (1)
Appellate Briefing (1)
Pleadings (1)
Judicial Estoppel (1)
Harmless Error (1)
Prejudicial Error (1)
Record Designation (1)
Typeface (1)
Typography (1)
Trial Strategy (1)
Jury Instructions (1)
Precedent (1)
New Arguments (1)
Third Parties and Nonparties (1)
Ninth CircuitAbuse of Discretion (1)
Out-of-State Litigant (1)
Family Court (1)
Mediation (1)
Settlements (1)
Split Decisions (1)
Appeals Treated as Writs (1)
Inconsistent Verdicts (1)
Punitive Damages (1)
Dicta (1)
Petitionf ro Review (1)
Legal Practice (1)
Finality and Final Orders (1)
DismissalsAppealability and Appealable Orders (1)
Motions to Quash (1)
Motions for Judgment on the Pleadings (1)
Federal Appeals (1)
Consenting to Judgments (1)
Alter Ego (1)
Post Reversal Issues (1)
Law of the Case (1)
Record (1)
Bankruptcy (1)
Local Rules (1)
Evidentiary Presumptions (1)
New Trial (1)
Demurrers (1)
Motions to Vacate (1)
Mischief (1)
Exhaustion of Remedies (1)
Waived and Forfeiture (1)
Per Se Errors (1)
Review as Writ Petition (1)
Retainer Agreements (0)
Professional Ethics (0)
Appellate (0)
Notice of Appeal (0)
Landlore Tenant (0)
Split of Authority (0)
No categories Legal Writing (0)
crossmenuchevron-down