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.

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Tag: Podcast

The Under-Utilized Table of Contents: Judge Bacharach on Legal Writing

You are wasting your best opportunity to persuade if you are not prepare complete tables of contents in your briefs, Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me.

The table of contents shows your reader the gist and structure of your brief. Yet probably half of litigants are leaving this rich vein unmined.

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"Throat-Clearing" and Soft Sentence Openers: Judge Bacharach on Legal Writing

Avoid "throat-clearing" in your writing, but have a care for when "softening" may be needed.

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that meaningless expressions, like, "It should be noted that," are largely overused. But they can serve a useful purpose.

I recalled this anecdote about novelist James Thurber, who was once asked: “Why did you have a comma in the sentence, ‘After dinner, the men went into the living-room’?” His answer: “This particular comma was Ross’s way of giving the men time to push back their chairs and stand up.”

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Differences of Typographical Opinion

Are the briefing limits in your court based on page count? Or word count?
If page count, you still may be better off using Times New Roman, says appellate attorney Frank Lowrey in this edition of the world famous CAL Podcast's Lightning Round.

Other vexing questions discussed: One space after a comma, or two? Pled, or pleaded? And where do you stand on the use of the citation parenthetical "(cleaned up)"?

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Choosing the Right Verdict Forms for Your Case

Are you using general verdict forms at your next trial? Or special? This can be a critical choice, as appellate attorney Frank Lowrey explains on the California Appellate Law Podcast.

A simple general verdict form cannot tell you whether a certain alleged error at trial influenced the verdict. On the other hand, a special verdict form with multiple interrogatories may lead to inconsistent verdicts. This balancing underscores the importance of having appellate counsel involved pretrial.

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Have you Noticed a Decline in Civility?

Appellate attorney Frank Lowrey exchanges perspectives with Jeff Lewis and Tim Kowal about the recent Mahoney case in which a California Court of Appeal held an attorney in contempt for impugning the court's integrity, and discusses whether the level of civility has declined in the legal profession, and whether perhaps the Court of Appeal overreached by suggesting the integrity of the courts may never be questioned.

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Pop Culture References and "Too Artful" Advocacy

Judge Robert Bacharach of the 10th Circuit is not a fan pop-culture references in legal writing. Too much levity in judicial opinions, the judge says, may tend to relax the standards of professionalism among the bar.

The parties, particularly at the appellate level, are entitled to respect, and "artful" advocacy may be seen as disrespectful. Use with extreme caution!

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Why Don't Appellate Judges Ask More Questions?

Why aren’t the judges asking me any questions? Is it because I am winning? Or because I am losing? Or because the judges have gone to their happy place?

Appellate attorney Frank Lowrey exchanges experiences with Jeff Lewis and me about cold benches.

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Do Curative Instructions Cure Anything?

Here is one reason why trials are so stressful:

What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?

Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."

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What Science Says About Crafting Persuasive Sentences: Judge Bacharach on Legal Writing

Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly!

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Stupid Motions in Limine

Filing a critical motion in limine could be key to your trial.
What about 40 motions in limine?

Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine."

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Losing Your Reader with Acronyms: Judge Bacharach on Legal Writing

How do you use acronyms in your briefs?

Judge Robert Bacharach of the 10th Circuit told Jeff Lewis and me that he wishes that whoever invented acronyms hadn’t: "If you can avoid acronyms, do it." When you make the judge flip back in your brief to look up what an acronym means, or who a party is, you ruin the momentum of your argument.

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When Does a Motion in Limine Preserve Trial Objections?

Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing.

Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection.

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