Legal News and Appellate Tips

The National Center of State Courts recently published its 2023 rankings of judicial salaries, with California and DC trading #1 and #2 spots. At a mean national judicial salary of around $174,000, by starting out in a modest condo and scrimping and saving, a judge in California might achieve the dream of homeownership just before retiring into private ADR.

But Troy Shelton notes that his home state of North Carolina ranks 45th with the mean judicial salary around $152,000. Meanwhile, North Carolina is flanked by states each averaging greater salaries by $40-50k.

Some interesting facts about judicial salaries:

💲 Very few Big Law attorneys, where pay greatly exceeds judicial pay, become judges.

💲 Cost of living is tricky to account for—should metro-area judges be paid more then rural-area judges just because of where they live?

💲 In 2021 the national median 1st-year associate salary was $165,000, rivaling judicial salaries—something seems wrong here.

Opioids, takings, terrorism—these are at the core of a few of the cases that appellate attorney Carl Cecere is handling. After deciding to leave BigLaw, Carl found that a combination of Twitter and lots of travel with the purpose of meeting interesting colleagues has fueled a pipeline of provocative cases into his solo practice.

We discuss:

• Clerking for Mary Lou Robinson, who started her judicial career when women still were not allowed to vote or own property

• The Purdue opioid case, and the trend of using bankruptcy to shield liability. Reading the BK code textually may reign this in—one good thing about the judicial approach of the current SCOTUS composition.

• The Sokalow case in which Congress extended the courts’ jurisdiction over terrorism cases by creating a presumption of consent to jurisdiction—a presumption now being taken up by the 2nd Circuit.

On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine:

📬 Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing. (It is possible you will never receive it—but that doesn’t affect the deadline to appeal!)

⌚ An appeal can be filed up to midnight on the 60th day. But not a second after! Appeal filed at exactly 12:00 a.m. is the 60th day. One minute late might as well be a year late.

📝 A file-stamped order is a “triggering document” that starts the 60-day clock. But what if only the certificate of mailing is stamped? No good—the 60-day clock isn’t triggered.

📝 What if the order is stamped, but the stamp isn’t signed? There’s no such requirement—your 60 days still runs.

Also: Justice Yegan will follow precedent on resentencing “lemming-like,” but is going to “kick and scream on my way down to the rocks below”; CA Ct. App. overrules SCOTUS, arb denials might no longer be stayed pending appeal.

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?”

AI, they say, will revolutionize the practice of law. But can it do anything for my actual practice, as in, the case I am working on right now? Prof. Jayne Woods joins us to explain how she used ChatGPT—the question-and-answer AI interface—to draft a very passable first draft of an oral argument outline.

Even better, ChatGPT could event engage (with a little coaxing) in a moot court dialogue, asking questions and follow-ups about legal issues.

Some of Prof. Woods’ takeaways:

• Producing legal outlines are right in ChatGPT’s wheelhouse.

• ChatGPT can be valuable in building confidence answering questions about your case.

• There is a learning curve to ChatGPT, but anyone can begin without training. The sooner you start, the sooner you will find uses for your practice.

You have just about 15-30 seconds at oral argument before the panel is likely to interrupt you. How will you use that time? Minnesota appellate attorney Jeff Markowitz says you should be unlocking that key point that allows the rest of your case to unfold. If you haven’t discovered that point by the time of oral argument and distilled it to an elevator pitch, you’re likely squandering your opportunity.

Jeff also explains why you’re likely squandering prime real estate in your brief by roadmapping your arguments. Your headings should be doing that already. Instead, use the introduction to develop your case theme.

Then we compare Minnesota and California appellate procedure:

👉 Unlike in CA, in MN the Supreme Court sets the rules of civil procedure.

👉 Unlike in CA, MN courts always have a court reporter available.

👉 Unlike in CA, MN doesn’t have a “we don’t talk about Bruno” approach to unpublished opinions. They’re not binding, but you can cite them.

👉 Unlike in CA, MN gives a 30-day initial stay of judgment enforcement.

A few days ago we mentioned a possible expansion of the podcast’s jurisdiction to Texas. So in this episode, we take care of some business with the proprietors of the Texas Appellate Law Podcast, Todd Smith and Jody Sanders.

Then when we finish with the April Fool’s gag, we talk legal podcasting, finding good content to provide trial attorneys, and our state courts’ responses to the pandemic.

Then we turn to our continuing state appellate procedure comparison. Some interesting facts about Texas appellate law:

• The Supreme Court sets most of the rules of civil procedure.

• Court reporters are still found in most courts—the court reporter shortage seems to be found mostly in California.

• Stare decisis works like federal courts: the district appellate courts need to heed each other’s holdings, unless reviewed en banc. Unlike in California, where each panel starts from a blank slate, free to ignore every Cal.App. decision ever written.

• Unpublished opinions are still citable for precedential value. You can’t be sanctioned for citing theme like here in CA.

• Judgments are not enforceable for 30 days, giving debtors a bit of time before enforcement.

Finally, Todd and Jody turn the tables and subject us to a Lightning Round.

As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette.

So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of your superior position on appeal. The tips include:

👉 Appellants often appeal from non-appealable orders. Or they file their notice of appeal untimely. Check for these grounds for a motion to dismiss.

👉 Enforce the judgment, unless it is clearly stayed. Enforcement can put a lot of pressure on an appellant.

👉 Are there record defects? Jeff and I debate the different approaches. You can either counter-designate to add missing items, or you can argue that the appellant failed its burden to furnish a complete record.

👉 Help out the trial court’s reasoning. A judgment is appealed for its result, not its reasoning. If there are reasons the trial court didn’t think of, raise them in your respondent's brief.

👉 Did the appellant fail to cite authority? Was the opening brief scattershot without clear organization or well-developed arguments? You might argue that these poorly identified issues and arguments are forfeited.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

👉 Unlike CA, all UT appellate opinions are published.

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

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

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

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

Here is what you’ll learn in this episode:

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

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

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

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

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

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

Subscribe in your podcast player, or listen and learn more at https://lnkd.in/gaUyYi2m
.

In anticipation of this achievement, we interviewed M.C. Sungaila, the host and creator of the Portia Project Podcast, in November on the California Appellate Law Podcast. Listen here: https://lnkd.in/gp7SS4zj
.

M.C. was also the Cal.App.Law.Pod’s first guest. You can listen to that episode here: https://lnkd.in/gnnNyDaQ
.

You can support the Portia Project Podcast by purchasing one of the guests’ books, or books by or about other women lawyers here: https://lnkd.in/gqYEffBC