Legal News and Appellate Tips

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.

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.