Legal News and Appellate Tips

As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should direct their briefs to the justice “in the catbird seat,” and what it was like sitting in the catbird seat.

Justice Lambden also talks about his single unpublished dissent.

Justice Lambden also talks about his time as a judge on the Alameda County Superior Court, the great outdoors, finding and wearing a good hat, and what it’s like for judges to transition to private judging: “Going back out among the bar without wearing the robe is kind of intimidating. Like they say, they don’t laugh at my jokes anymore.”

Justice Lambden serves up a lot of sage advice:

• “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.”

• Hire your appellate attorney before the verdict!

• Have an elevator-pitch for your case. If you only have arguments but no theme, you’re not ready.

• On unpublished opinions: Who cares? The California Court of Appeal is not bound even by published decisions, as there is no horizontal stare decisis in our system. If you find good reasoning, use it: if the good argument comes from a published case, make the argument, and cite it. If the good argument comes from an unpublished case, make the argument, but don’t cite it. In either event, it’s not the best citation but the best argument that wins. (This reminds me of Johannes Scotus: “Authority sometimes proceeds from reason, but reason never from authority….We should not allege the opinions of the holy Fathers ... unless it be necessary thereby to strengthen arguments in the eyes of men who, unskillful in reasoning, yield rather to authority than to reason.”)

• On the importance of focus letters and oral argument.

• On access to justice, quoting Chief Justice Ronald George: “Without access, there is no justice.”

Justice Laurie Zelon spent 19 years on the Court of Appeal for the Second District before retiring in 2020 to work on cases as a mediator, arbitrator, and private judge. Justice Zelon talks with Tim Kowal and Jeff Lewis about:

• her commitment to serving the community, and why we can’t throw up our hands because our problems are hard;
• the difference between “litigation attorneys” and “trial attorneys”;
• the difference between trial-court judging and appellate-court judging (you get time to “put your feet on your desk” and think about the case);
• the decline of civility (not good for the system, the attorneys, or the clients);
• using a neutral to evaluate your appeal or writ petition;
• the secret to a successful writ petition (show why it matters, and why it can’t wait);
• why remote oral arguments are not as good as in-person.

So you won a huge court case? Big deal — can you collect? Judgment enforcement, and defense against judgment enforcement, are critically important to litigants. But enforcement sits in that twilight region in between the trial and the appeal, so most trial and appellate attorneys do not know a lot about it. But Joseph Chora, Esq. Chora does. Judgment enforcement is all he does.

We ask Joseph to share some of his best enforcement tips (a teaser: don’t file fraudulent-transfer actions; file a lien instead—it’s faster, cheaper, and it flips the burden of proof). And some of the biggest pitfalls (e.g., failing to make an enforcement plan early).

We also discuss:

• How to cut off the plaintiff’s right to judgment-enforcement fees — and if you’re the plaintiff, how to avoid this
• Increasing an appellate bond
• Enforce judgments against a trustee
• Pursuing alter egos
• Using evasions of judgment enforcement to get an appeal dismissed under the disentitlement doctrine
• How plaintiffs should safeguard against restitution awards if a satisfied judgment is reversed on appeal

The incentives are out of whack,” says Eric Post, a tenant’s rights attorney with BASTA, Inc. The past two years have seen a dramatic increase in evictions, he says. Why? Because that is the simplest way to raise the rent.

Eric talks with Jeff Lewis and Tim Kowal about the flaws in California’s landlord-tenant legal system, the near-impossibility of staying eviction judgments pending appeal, and the important differences between appeals in the appellate division and the Court of Appeal.

Eric also explains why it can be fairly easy to forum shop a case up to unlimited civil.

Finally, the discussion turns to Judge Carter’s bold effort to solve a piece of the Los Angeles homeless problem via injunction, though ultimately reversed by the 9th Circuit last year.

Reviewing a recent book on persuasion trial trips based in science, Stefan Love’s conclusion is that the tips are in greater abundance than the science. True, there is much interesting science on the limits of human attention: for example, you can get a person to remember a few things, but one too many and they forget it all. But does this mean you should ditch a particular piece of secondary evidence at trial? That, as ever, still comes down to discretion and common sense.

Stefan talks with Jeff Lewis and Tim Kowal about some of the other helpful trial advice in John Blumberg’s *Persuasion Science for Trial Lawyers*, and whether it is scientific, or just common sense. Advice like:

• Excessive information can lead to worse, not better, decisions.
• Juries learn better with pictures. But avoid competition for resources: do not use written word, spoken word, and images all at the same time. It creates overload.
• You should not present all your evidence at trial, because it overloads the jury’s cognitive capacity.
• Judges who strive to run ruthlessly efficient trials should reconsider: eliminating downtime actually undermines jurors’ ability to process the information.
• For the same reason, trial lawyers should slow down, use repetition, and even stop talking every now and then.

When you look up an answer whether an order is appealable, the cases are supposed to give you straight answers. But here are three cases that give surprising answers. (Ok, really just two — if you are surprised by the second one, you were mistaken.)

Summary judgment orders are not appealable. It says so right in the statute. But it was held appealable in Reed v. Aviva USA Corp.

Minute orders have to be signed to be appealable. (Ok, not really: only minute orders dismissing a case must be signed, per CCP 581d.) Liang v. Shi held minute orders are appealable, with or without a signature.

A vexatious litigant denied permission to file a new lawsuit may appeal the denial order as an injunction order. There is precedent for that point. But Marriage of Deal was not having it: appeal dismissed.

Also: Counsel horse-traded verdict forms in a recent med-mal case in Silvester v. Niparko for limitations on judgment-enforcement.

Matthew Strugar knows something about defending protesters threatened with legal action, even jail — because he used to be one of them. Drawing from his activist background, including defending animal rights, Matt talks about how civil-harassment restraining orders are abused to squash speech rights, though the anti-SLAPP law can still come to the rescue. Matt also talks about why protests outside private homes are still protected, even though judges don’t like it.

Matt then mediates a fight between Jeff and Tim about whether anti-SLAPP fee awards are automatically stayed on appeal.

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and me about how he has addressed these kinds of problems while serving as embedded appellate counsel.

What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.

Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.

Being a victim of discrimination and harassment at the hands of an employer is hard enough, but what happens when your employer is a judge? On episode 39 of the California Appellate Law Podcast, Aliza Shatzman discusses her personal experience and why it was not only personally horrifying, but damaging to her career.

Aliza also shares how the experience motivated her to create the first-of-its-kind Legal Accountability Project, a resource for aspiring law clerks and other judicial employees.

We also cover with Aliza:

- Why the Judicial Conduct & Disability Act (28 USC § 358) is not working;
- Why judges tend to be unwilling to police the misconduct of their colleagues;
- Courts seem different from normal workplaces, and clerkships seem different from normal jobs. Should they be treated differently?
- In the U.S. Supreme Court’s investigation of a recent draft opinion leak, clerks are being asked to turn over the cell phones and call data. Is this over the line?

H.L. Mencken had it that “democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

In two recent opinions, California courts gave the people what they voted for by enforcing two California voter initiatives: one that is tough on criminal defendants, and another that is favorable to criminal defendants.

• Enforcing the tough-on-crime Three Strikes law, the Los Angeles appellate court handed DA George Gascon a loss on his assertion of prosecutorial discretion to refuse to enforce Three Strikes.

• But the court also enforced the softer-edged Prop 57, the law that requires all criminal charges against minors be tried in juvenile courts. The Supreme Court held Prop 57 was retroactive, with the rather unsettling result that a now-40-year-old who murdered his mother at 16 (he stabbed her 45 times) may soon be released.

Then we turn to some anti-SLAPP news: Another dissent in the 9th circuit arguing that Anti-SLAPP denials should not be immediately appealable.

Then on the expert witness front: A state appellate court holds exclusion of expert opinion is structural error on appeal requiring automatic reversal.

The Co-Founder of Casetext, Pablo Arredondo, explains how legal technology that is available today will allow solos and small firms to compete against Big Law. Tim and Jeff talk with Pablo about:

• Why Artificial Intelligence—which didn’t work well for a long time—now makes it much, much easier to find the legal authority you’re looking for.

• The searches you are used to making is just “casual Friday in the keyword prison.” But now, you can put real English sentences into Casetext’s Parallel Search and it works.

• Casetext’s A.I. isn’t limited to legal authority: you’ll be able to put your entire case file into a database and search for the evidence that supports the key facts in your case.

• This gives small firms an alternative to deploying armies of staff to find evidence in a voluminous file.

• Using Casetext’s Compose to create a first draft of a brief in a few minutes.

• A.I. might be able to replicate “murder boards” in the future for attorneys preparing for oral argument.

• In fact, the way “neural net” A.I. works is so impressive, Pablo describes it as a “black box,” and sometimes it is hard to describe what it does without using words like “thinking.”

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.