Legal News and Appellate Tips

WARNING: This episode contains opinions of a law-nerd nature. Discretion is advised.

Have you ever encountered the parenthetical “(cleaned up)” at the end of a case citation? By now over 5,000 judicial opinions in nearly ever jurisdiction have used it, including the U.S. Supreme Court. So it’s time you got acquainted with it.

The credit (or blame) for introducing this new device goes to Jack Metzler. Jack shares how he came up with the innovation over several long moments of deliberation on Twitter (specifically: about 90 seconds). But unlike most tweets, Jack’s idea flourished into a law review article that now stands as the 2nd most-often cited article in judicial opinions of all time (and only 40 citations behind Justice Louis Brandeis’s 1st place paper).

Jack subjects himself to the following questioning:

❔What does (cleaned up) even mean? Answer: It means you can start a quote with a capital letter without using those stupid ugly square brackets, without having to explain it. And other stuff like that.

❔Ok, so judges are using it. But will judges trust lawyers to use it faithfully? Answer: Judges already don’t trust lawyers, so I don’t even understand your question.

❔I think the judges want to see the quote exactly as it appeared. Answer: That’s not even a question. And no one is forcing you to use (cleaned up).

Improper conduct by a trial judge is one thing. But where do you take complaints against an appellate court? Supreme Court Associate Justice Martin Jenkins heads up a new Bias Prevention Committee, and committee member Ben Shatz joins us to talk about its mission: to promote an appellate court environment free of bias and the appearance of bias.

What is the best way to do that? That’s where you come in. As attorneys, litigants, or amici curiae, your suggestions are needed on how to support the integrity and impartiality in our appellate courts. Some ideas:

• The #1 form of judicial misconduct: breaches of demeanor and decorum.

• #2 on the list? Bias for or against a litigant—but not with respect to any suspect classifications (which is #10 on the list).

• The 35-year-long campaign to address judicial misconduct started by addressing the long history in the courts of diminutive language and attitudes toward women. In what ways do these patterns persist, and what are good ways to report them?

• Spanish and Asian names in court opinions are inconsistently used, perhaps out of ignorance. How can the courts do better?

• Addressing misconduct before it becomes long-standing (e.g., the Justice Johnson trial involved 100 witnesses testifying over 17 days).

All members of the public are welcomed and encouraged to contact any of the 11 members of the Bias Prevention Committee: Chair J. Martin Jenkins; J. Helen Bendix; J. Stacie Bouleware Eurie; J. Do; J. Carin Fujisaki; J. Cynthia Lie; J. Rosendo Pena; 2d DCA XO Eva McClintock; DAG Amit Kurlekar; DAG Charles Ragland; Central CAP Exec Director Laurel Thorpe; Private Attorneys: Charles Sevilla, Ben Shatz, Rasha Gerges Shields, Rupa Singh.

Our regular roundup of noteworthy appellate decisions and legal news includes these stories:

⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited.

⚠Did the failure to raise an affirmative defense in a joint pretrial order forfeit that defense? The 9th Circuit held it did, but Judge Bumatay thought it was raised indirectly and the lack of a more explicit assertion did not prejudice the plaintiff.

🤚Suit against Maxine Waters for falsely saying her opponent was “dishonorably discharged” may go forward: evidence that Waters was shown a military document refuting her charge, and Waters’ failure to conduct any other investigation, supported plaintiff’s showing of actual malice for purposes of defeating the anti-SLAPP motion.

📃Record defect resulted in California Court of Appeal resulted in affirmative via a rare “memorandum decision.”

✉60-day deadline to appeal is not triggered by file-stamped order unless it attaches a proof of service.

🗣New snitch rule would impose a mandatory duty to report violations of other lawyers.

👩‍⚖️Oral arguments at U.S. Supreme Court run long by average of 30 minutes.

💼Supreme Court makes it easier to preserve issues raised in summary judgment motions in Dupree v. Younger.

🛑Federal courts to wind down remote access as US COVID emergency ends.

🕔3d. Circuit to impose 5:00 p.m. filing deadline.

ADF attorney Chris Schandevel explains how he got the opportunity to orally argue dozens of cases in multiple appellate courts including state supreme courts in just a decade of practice. We also discuss:

👩‍⚖️Does oral argument make a different? Can amicus briefs make a difference? Yes, and one case proves it: Chris talk about Kligler v. Attorney General in the Massachusetts Supreme Judicial Court, where Chris’s amicus brief and oral argument made the difference.

📃Even a failed petition for certiorari makes a difference: ADF’s petition in Hoggard v. Rhodes asked SCOTUS to review the extension of qualified-immunity even to campus police officers’ non-urgent action restricting free speech. SCOTUS declined, but Justice Thomas wrote a statement agreeing with ADF’s argument, and that statement has been cited in nearly 100 decisions since then.

✍Top 10 Briefing Myths! Get ready to be offended if you still use Times New Roman and two spaces after a period! Please send complaints (in Century Schoolbook font) to Chris Schandevel.

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.