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.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Posttrial Motions

Appellate Court Acknowledges "The Rules Governing the Timeliness of an Appeal Are Complex"​; Appeal Dismissed

Filing a notice of appeal is deceptively simple. There is a Judicial Council form you can use. Everyone knows there is a 60-day deadline to file the notice of appeal (though when it starts running can be a little mysterious). There is no reason to consult an appellate attorney for something so simple as filing a notice of appeal.

Is there?

Think again. There are endless confounders in deciding when and what to appeal. A few of them arose in CL Brookshire v. Albers YZI LLC (D2d5 Jul. 14) no. B306001 (nonpub. opn.). Specifically, the case reminds litigants that:

1. No, a defective post-order or post-judgment motion is "invalid" and so will not extend the time to appeal.

2. Yes, even if you have blown the time to appeal, you might still move to vacate the judgment or order. And yes, you might be able to appeal the denial of the motion to vacate. But no, you cannot challenge the merits of the underlying order or judgment. Instead, you have to establish the trial court abused its discretion in denying your motion.

The Upshot: Originally, the plaintiff had a very sound appellate challenge. But instead of just getting on with the appeal, the plaintiff lost by making post-order motions in the trial court.

If you are considering pursuing post-order or post-judgment motions, this is an excellent time to consult appellate counsel.

Read More
Appellate Tips Involving Waiver, Arbitration, and Satan: California Appellate Law Podcast Episode 11

In episode 11 of the California Appellate Law Podcast, TVA appellate attorney Tim Kowal discusses some recent cases with co-host Jeff Lewis in which state and federal appellate courts have found waivers and other errors made by attorneys and parties in the trial court. Like reading a high school yearbook, appellate decisions often capture attorneys making themselves unintentionally conspicuous.
Some of the cases discussed involving "bad yearbook photos" include waiving the right to arbitration by failing to reference it in CMC statements; waiving issues by failing to include them in pretrial statements, trial motions, and posttrial motions; and failing to preserve evidentiary objections.

Read More
Important Differences in Federal and State Appeals, with Cory Webster

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals, including: pitfalls in failing to make crucial posttrial motions (FRCP 50); the vastly different approaches to oral arguments in federal court; and the impact of amicus briefing on the practice of appellate law.

Read More
9th Cir. Holds Appellate Issues Waived for Failure to Raise Them Both Before and After Submission to Jury

On the latest episode of the California Appellate Law Podcast (available Tuesday, Mar. 30 at www.CALPodcast.com), co-hosts Jeff Lewis and I discuss with guest Cory Webster the importance of Federal Rule of Civil Procedure 50, governing motions for judgment as a matter of law, which must be made both before submission to the jury and after judgment. If appellant could have raised an issue in a motion for judgment as a matter of law but failed to do so, that issue is waived on appeal.

The Ninth Circuit helpfully furnishes a recent example in Brown v. County of San Bernardino, 2021 WL 1054561 (9th Cir. Mar. 19, 2021). Brown appealed after her civil rights claim failed on grounds of qualified immunity. On appeal, she ran into several waiver and forfeiture issues.

While Brown was pro se, trial attorneys' job of persuading juries often leaves good appellate arguments underdeveloped until it is too late. In federal trial practice it is especially important to consult appellate counsel before and during trial.

Read More
Clerk's Notice Did Not Trigger Shorter Deadline to File Posttrial Motion, Second District Holds

Posttrial motions are a procedural minefield. Today's example: whether you have 180 days to file your posttrial motion, or a mere 15 days, depends on the fine print in the […]

Read More

Tags

Podcast (46)
Videos (31)
Abuse of Discretion (15)
Waiver and Forfeiture (15)
Notices of Appeal (13)
Legal Writing (12)
Appealability and Appealable Orders (12)
Splits of Authority (9)
Stays on Appeal (9)
Dismissals (9)
Sanctions (8)
Motions for Reconsideration (8)
Oral Argument (8)
Appealability (8)
Attorney Fees (7)
New Trial Motions (7)
Federal Courts (7)
Arbitration (6)
Anti-SLAPP (6)
Civility (6)
Unpublished Opinions (6)
Statements of Decision (6)
Record on Appeal (6)
Respondent Arguments (6)
Briefing (6)
Ninth Circuit (6)
Timeliness (6)
Appellate Sanctions (5)
Disqualification (5)
Family Law (5)
CCP 998 Offers (5)
Posttrial Motions (5)
Dissents (5)
Judgment Enforcement (5)
Preliminary Injunctions (5)
Evidentiary Objections (5)
Substantial Evidence (5)
Implied Findings (5)
Trial Procedure (5)
Appellate Bonds (4)
Admission of Improper Evidence (4)
Standards of Review (4)
Discovery (4)
Jurisdiction (4)
California Supreme Court (4)
Default Judgments (4)
Experts (4)
Writ Petitions (4)
Stipulated Judgments (4)
Motions in Limine (4)
Frivolous Motions (3)
Juror Peremptory Challenges (3)
Exclusion of Evidence (3)
Notices of Entry (3)
Timely and Untimely Appeals (3)
Appellate Practice (3)
Depublished Opinions (3)
Summary Judgments and Summary Adjudications (3)
Motions to Vacate and Set Aside Judgments (3)
Summary Judgments (3)
Mootness (3)
Summary Judgment (3)
Dismissed Appeals (3)
Ethical Duty of Candor (3)
Appealable Orders (3)
Trial Strategy (3)
Excessive Damages (3)
Standing (3)
Trust and Probate (3)
Stays (3)
Probate Appeals (3)
Judicial Admissions (2)
Legal Ethics and Professional Responsibility (2)
Petitions for Review (2)
Contempt (2)
Attorney Client Privilege (2)
Forfeiture and Waiver (2)
PAGA Actions (2)
Litigation Tips (2)
Recovery of Costs (2)
Standards of Evidence (2)
Jury Waivers (2)
Personal Jurisdiction (2)
Expert Opinions (2)
Tentative Rulings (2)
Motions to Dismiss (2)
Landlord Tenant (2)
Collateral Orders (2)
Judicial Bias (2)
Appeals Dismissed (2)
Invited Error (2)
Settlements (2)
Waiver (2)
Untimeliness (2)
Appeals Treated as Writs (2)
Pretrial Procedure (2)
Pretrial Issues (2)
Disentitlement Doctrine (2)
Class Actions (2)
Demurrers (2)
Motions to Vacate (2)
Mischief (2)
Civil Theft (1)
Treble Damages (1)
Premises Liability (1)
Frivolous Appeals (1)
Post-Appellate Issues (1)
Referral Fees (1)
Trial by Reference and Pro Tem Judges (1)
PAGA Attorney Fees (1)
Law and Motion (1)
Issue Selection on Appeal (1)
Remote Arguments (1)
Attorney Feese (1)
Employment Law (1)
Common Interest Doctrine (1)
Juror Misconduct (1)
Product Liability (1)
Clear and Convincing (1)
ADA and Unruh Accessibility Actions (1)
Clerks Service of File Stamped Judgment (1)
Designating the Record (1)
Trade Restraints (1)
Civil Code 3334 (1)
Benefits Obtained Trespass Damages (1)
Trespass (1)
Property Rights (1)
Inherent Authority (1)
Support Awards (1)
Forfeiture (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Petitions for Rehearing (1)
Judicial Notice (1)
Post Reversal (1)
Attorney Fees - CCP 1021.5 (1)
Moot Appeals (1)
Appellate Briefing (1)
Pleadings (1)
Judicial Estoppel (1)
Harmless Error (1)
Prejudicial Error (1)
Record Designation (1)
Typeface (1)
Typography (1)
Jury Instructions (1)
Precedent (1)
New Arguments (1)
Third Parties and Nonparties (1)
Ninth CircuitAbuse of Discretion (1)
Out-of-State Litigant (1)
Family Court (1)
Mediation (1)
Split Decisions (1)
Inconsistent Verdicts (1)
Punitive Damages (1)
Dicta (1)
Petitionf ro Review (1)
Legal Practice (1)
Finality and Final Orders (1)
DismissalsAppealability and Appealable Orders (1)
Motions to Quash (1)
Motions for Judgment on the Pleadings (1)
Federal Appeals (1)
Consenting to Judgments (1)
Alter Ego (1)
Post Reversal Issues (1)
Law of the Case (1)
Record (1)
Bankruptcy (1)
Local Rules (1)
Evidentiary Presumptions (1)
New Trial (1)
Exhaustion of Remedies (1)
Waived and Forfeiture (1)
Per Se Errors (1)
Review as Writ Petition (1)
Amicus Briefs (1)
Incorrect Decisions (1)
Attorney Misconduct (1)
Comments (1)
Restraining Orders (1)
Summary Reversal (1)
Retainer Agreements (0)
Professional Ethics (0)
Appellate (0)
Notice of Appeal (0)
Landlore Tenant (0)
Split of Authority (0)
No categories Legal Writing (0)
crossmenuchevron-down