Legal News and Appellate Tips

Attorney and author Ryan McCarl joins Jeff and me to discuss his forthcoming book, *Elegant Legal Writing*, and his career through academia into private practice. Ryan tells Tim and Jeff the most common mistakes in attorneys’ briefs, which include legalese (why are you still using legalese?), and providing too little white space on the page — white space bucks up your reader to plod on.

Ryan also offers a thoughtful caveat to my proposal to abolish Rule of Court 8.1115, the “no citation” rule concerning unpublished opinions.

Jeff Lewis and Tim Kowal round up some recent California appellate cases of note:

➢ Singman v. IMDB.com, bookmark this published opinion holding that legal propositions in a brief without a citation will be ignored.

➢ Center Street v. Superior Court involving a rare summary affirmance.

➢ Alexi & Ani LLC v. Warren, allowing an attorney sanctions appeal to proceed though the attorney was not listed on the notice of appeal.

➢ Weischadle v. Vo, involving a dissent over whether a court reporter is really needed at oral argument.

➢ In re Purdue Pharma, an OxyContin case in which a bankruptcy settlement was overturned on appeal.

➢ State of California v. So. Cal. Edison, taking the majority view in the split over what kind of collateral orders are appealable.

Attorneys David Ettinger and Dean Bochner join hosts Tim Kowal and Jeff Lewis to explain their proposal to amend California Rules of Court 8.1115, the rule that prohibits the citation to unpublished opinions. David and Dean note that, despite rule 8.1115 near-categorical ban, the courts in practice already condone such citations in some contexts, most notably petitions for review.

David also discusses the California Supreme Court’s “shadow docket” — precedential opinions that are issued without full merits briefing or oral argument.

Appellate attorney and author [Myron Moskovitz](http://moskovitzappellateteam.com/team/myron-moskovitz) joins Jeff Lewis and me on episode 20 of the California Appellate Law Podcast. Myron has been practicing appellate law since the '60s, and has curated an impressive collection of effective strategies to win appeals. Some of the topics we discuss include:

- Why appellate courts should provide brief explanations when denying writ petitions.
- Criticisms of Rule of Court 8.1115 prohibiting the citation of unpublished opinions.
- Statements of Decision
- Why the Appellant's Reply Brief may be the most important brief.
- Why you should moot your oral argument before writing your Appellant's Reply Brief.

We also discuss Myron's new book, *[Winning an Appeal](https://store.ceb.com/strategies-on-appeal-2)*. Myron explains this is not a practice guide that just tells you the nuts and bolts of how to appeal, but an actual readable volume with strategies for winning an appeal.

Appellate attorney Anne Grignon joins Jeff Lewis and me to discuss her recent win in Banc of California v. Superior Court, a writ petition from an order compelling arbitration. Anne discusses when and why to take a writ from nonappealable orders. The attorneys then turn to private judging generally, discussing Justice Segal's recent caution about the industry's potential overuse of that privately compensated judges, and Presiding Justice Kline's similar sentiment that "private judging is an oxymoron" and is "undermining public justice.” Anne then shares three tips for your next appellate brief, before the three discuss some recent cases, including strategies to consider in approaching statements of decision.

There have been many breathless reports of a coming "eviction tsunami" in the wake of Covid. But tenants' rights attorney and appellate specialist Frances Campbell says: take a deep breath. Fran tells Jeff Lewis and me why she thinks there is no eviction tsunami in the offing.

Did you know California landlord/tenant law is not clear on the basic question who has standing to bring eviction claims? Must the owner bring them, or may a property manager? Tenant-rights and appellate specialist Fran Campbell tells Jeff Lewis and Tim Kowal about a consequence of California's narrow standard governing what appellate opinions may be published. The cases deciding this question cannot be cited because they are technically "unpublished." California Rules of Court 8.1105 and 8.1115 create a "speakeasy" body of law: specialists know what the rule is, but they can't talk about.

US Solicitor General agrees Cal. Supremes misread HUD rules & cut aid to Section 8 recipients. Still, SG says SCOTUS should deny review because HUD about to issue new rules.

Cold comfort to the Section 8 folks whose funding the California high court would have reduced (and might reduce again).

The rules of appellate procedure are curious already, but what about appeals in limited civil cases? Curiouser and curiouser. Tenants' rights attorney and appellate specialist Frances Campbell discusses the important differences in appeals in the Appellate Division of the California Superior Court with appellate attorneys Jeff Lewis and Tim Kowal.

Tenants' rights attorney and appellate specialist Frances Campbell gives appellate attorneys Jeff Lewis and Tim Kowal a lesson in "HateWriting": harnessing that exquisite state of agitated frisson to produce a legal brief that will leave a mark without, after a final edit for overheated adverbs, drawing admonitions.

Frances Campbell of Campbell & Farahani, LLP joins Jeff Lewis and me for a discussion about housing law, eviction defense, appeals, and practicing in limited jurisdiction courts. Fran explains some of the common pitfalls in limited civil appeals, and discusses whether the Appellate Division seems sometimes to be shielded from meaningful review. (These courts handle eviction appeals, and because they are usually unpublished the bar still has no clear answer on who has standing to bring UD actions.)

Fran also shares her views on the coming eviction tsunami (spoiler, she says it's a myth) , the term "HateWrite" (verb: the act of drafting, in a single pass, in a state of agitated elan, an entire appellate brief, the editing of which requires only the removal of vituperative adverbs), and the font Cochin for brief writing.

Businesses in litigation want to "win the battle" but also need to "win the war." Outside general counsel @Lee Goldberg tells @Jeff Lewis and me when and why businesses sometimes take the long view on litigation, even willingly taking short-term losses to get long-term gains.