Legal News and Appellate Tips

The autism pandemic now affects between 1-in-44 and 1-in-35 children by the age of 8, according to a December 2021 Rutgers report—a rate that has climbed some 241% since 2000.

And one of the big ways this affects the millions of families raising children with autism is obtaining and fulfilling IEPs—Individualized Education Programs.

Special-education law attorney Tim Adams represents families to get their children the educational support they need. And because districts often have more legal support than financial support, these issues often wind up in court.

And while petitioners may be entitled to recover their attorney fees, surprisingly they are not entitled to their expert costs. This rule (an oversight?) tips the scales sharply against families, and could be easily fixed by Congress.

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.

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:

There is a trend toward informality in legal writing—but do pop-culture references go too far?

Everyone knows oral argument usually doesn’t change the outcome, unless you have a whiz-bang answer to that all-important question from the panel. Which is why the drumbeat for “focus letters”—where the panel reveals the all-important question in time to formulate an answer to it—is getting louder.

Stop bombarding courts with evidence and arguments. Not only does it overtax juries and judges, it betrays weakness: If you’re right, why do you keep repeating yourself?

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.”

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.

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?

Need to catch up on important cases you missed in 2022? This end-of-year episode has you covered. Listen or click through for the complete list. But our “Most Important Case for Money Litigators” was Siry Investment, L.P. v. Farkhondehpour (Cal. Jul. 21, 2022 No. S262081), holding treble damages and attorney fees under section 496 may be supported in your next fraud, conversion, breach of fiduciary duty, or even breach of contract case. (Covered in Ep. 45.)

We’ve got dozens more.

Coming soon: Our top briefing and advocacy tips from 2022.

Evidentiary rulings on MSJ are reviewed under the same deferential standard as given evidentiary rulings at trial—i.e., for abuse of discretion—but the Supreme Court cracked the door open on the possibility of de novo review in its 2010 Reid v. Google decision. Those hopeful for more the rigorous standard will be disappointed by a new recent published case.

We also discuss a recent case involving attachment orders in elder abuse suits. Namely, can you get an attachment in an elder abuse case? Maybe, but not based on statutory penalties, so the attachment order had to be reversed.

If you have a judgment against a debtor and you want to do some judgment collection in another state, is personal jurisdiction an obstacle? Do you have to show the debtor has minimum contacts with the other state? No, says a new published case. We’ll consider the possible effects of this — they are surprising.

On the perennial topic of deadlines for posttrial motions and appeals, we found yet another exception — if you file a DQ motion, that tolls the posttrial deadlines. Jurisdictional my left foot.

And finally, a new anti-SLAPP case with an expansive application of the litigation privilege.

After amassing $100 million for his personal-injury clients, Gerry Spence Trial Lawyer’s College alumnus Kyle Schneberg started Bedsore Law, a national law firm protecting the rights of elders in nursing homes. Kyle sits down with California Appellate Law Podcast co-hosts Jeff Lewis and Tim Kowal to discuss:

• The different approaches taken by personal injury attorneys, from “billboard attorneys” to settlement mills to big-dollar jury trials, and in between.

• How has California’s MICRA cap on medical-injury cases affected victims’ ability to get justice?

• What is the Gerry Spence College like?

• Nursing-home injuries and the changing needs in that space.

M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation.

M.C. sits down with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast to discuss some of the insights and recurring themes and advice she’s gleaned from having interviewed now over 100 of the most successful women in the legal profession today:

• The “watershed moment” in the 1980s when Sandra Day O’Connor became the first woman on the Supreme Court, opening the floodgates for women in law.

• The varied paths to the bench, taken by lawyers who never thought it possible.

• A law degree doesn’t just mean one thing, and success sometimes mean failing at your first try, second try, etc., until you find the right fit.

• The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion.

• Appellate judges look at oral argument as another part of their process in preparing to make their decision. Don’t look at oral argument as just an isolated 30-60 minutes—that’s not how the panel sees it.

When the Supreme Court applied lis pendens law inconsistent with the lis pendens statute, Justice Zebrowski wrote a letter that got the attention of the State Bar. That got him on a lis pendens “task force,” which in turn was responsible for convincing the Legislature to amend the lis pendens statutes.

On this episode of the California Appellate Law Podcast, Justice Zebrowski tells co-hosts Jeff and Tim about his work on the Law Revision Commission, and the BAJI Committee writing and amending civil jury instructions. But given the low-absorbency rate with jurors, is the practice of jury instructions at trial merely ceremonial? And what is the difference between BAJI and CACI?

Mediating or arbitrating a case? Justice Zebrowski also offers some advice from 23 years as a neutral.

We attorneys are trained to spot patterns, but many of us are poor at spotting patterns of inefficiency in the way we practice. Ernie “The Attorney” Svenson joins this episode of the California Appellate Law Podcast to explain how lawyers can adopt “systems thinking” to make their practice more effective, efficient, and even more fun.

Ernie shares how he learned about efficiency from his judge during his clerkship who, to shave time off the “Oyez, Oyez, Oyez” ceremony, cut the last “Oyez.” And how his judge delegated the task of explaining to new clerks about the edited “Oyez.” Now THAT is systems thinking!

Too abstract? How about a taste? Here are Ernie’s “gateway drugs” to get you hooked on legal tech:

• SaneBox — Most lawyers use some filtering to reduce email load, but SaneBox has really advanced filters that will find you spending less time in your inbox.

• TextExpander — Everyone sends out routine emails (think: retainer agreements). TextExpander populates an complete email with a macro. (And it will getting your gears turning about other ways to automate your day-to-day.)

• Automated Calendaring (e.g., Acuity, Calendly) — No attorney should be booking their own appointments.

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

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