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: Pretrial Issues

Ten Trial Tips That Appellate Specialists Want You to Know

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case.

And, you had better make a record on it.

On this episode of the California Appellate Law Podcast, reprising Tim’s recent CLE presentation, we cover 10 tips that appellate attorneys want every trial attorney to know:

πŸ’‘ The rule that contains all appellate rules: Make the Record.

πŸ‘‰#1 Make sure your theories of the case are captured in your pleadings

πŸ‘‰#2 Was key evidence excluded? Preserve the issue by making a proffer.

πŸ‘‰#3 Keep objecting to evidence if the judge β€œdefers” ruling on your MIL.

πŸ‘‰#4 Object to Jury Instructions

πŸ‘‰#5 Review the Verdict for Inconsistences

πŸ‘‰#6 Request and Object to the Statement of Decision

πŸ‘‰#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

πŸ‘‰#8 Calculate Appellate Deadlines Correctly

πŸ‘‰#9 Avoid Common Appellate Briefing Mistakes

πŸ‘‰#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

πŸ’‘ Evergreen Tip: Get a Court Reporter!

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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.

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Even the Devil Gets Ensnared in Appellate Procedure: Satanic Temple's Arguments Held Waived on Appeal

The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. The plaintiffs tried the case on an as-applied discrimination theory, and when they lost, moved for new findings under a facial discrimination theory.

Held: The new theory was waived because it was not raised in the pretrial statement. And it was not raised in the opening brief, either. The reviewing court will not be the Devil's advocate, either figuratively or literally.
The Satanic Temple's excerpts of record were also stricken because they failed to comply with the rules.

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