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: Videos

The Tension Between Medicine and Public Health

Recent months and years have seen a surge in medical-board investigations of doctors whose individual medical advice strays from public health policies. Health care litigator Rick Jaffe discusses the tension these medical board interventions create by promoting public health policy, on the one hand, and chilling the practice of individual medicine, on the other hand.

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The Best Time to Prepare for Oral Argument

Many attorneys are missing their best opportunity to persuade the appellate court. Appellant expert Myron Moskovitz talks with Tim Kowal and Jeff Lewis about the importance of the introduction in appellate briefs. The introduction should summarize your arguments and not belabor detail. And it should be a roadmap to the all-important statement of facts.

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Overview of the Two Major Types of Vaccine Mandate Challenges

Confused by all the challenges to the vaccine mandates? Health care litigator Rick Jaffe sets them out in two main types: (1) challenges to the state police power; and (2) challenges to the federal agency and police power. (And then a third: religious conscience challenges.)

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The Best Time to Prepare for Oral Argument

If you have finished briefing your appeal, you have already missed the best opportunity to prepare for oral argument. Appellate expert Myron Moskovitz tells Jeff Lewis and me why the time to begin preparing for oral argument is while drafting your reply brief.

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Where the Statement of Decision Procedure Can Fail You

To appeal a judgment after a bench trial, you have to follow a complicated procedure to prepare a statement of decision. And even if you do it all correctly, it can still backfire. Appellate attorneys Frances Campbell, Jeff Lewis, and Tim Kowal discuss.

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Appellate Attorneys As Warrior Scholars

One of California’s foremost appellate experts, Myron Moskovitz, talks with Tim Kowal and Jeff Lewis about the personality type of the appellate attorney as part scholar, but with some fight left. Many judges tend toward the scholastic, Myron says, but some still enjoy the electricity of litigation.

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So You Reversed a Statement of Decision – Now What?

When the appellate court agrees the statement of decision is defective, what happens? Appellate attorneys Jeff Lewis, Anne Grignon, and I discuss a recent case (covered here) that simply gave the trial court another chance to fix the defective statement of decision. I complain this makes waste of the entire appeal and will force a second appeal just to get to the merits. Jeff thinks this result is an outlier. But I have seen it happen before.

One case to consider if you are in this situation is Calloway v. Downie (1961) 195 Cal.App.2d 348, 351-53. There, a husband claimed an agreement to give him certain community property. But in three rounds of requests, his wife, who did not bear the burden of proof, sought findings of a transmutation agreement that would support the husband’s judgment. But the trial court never made the finding. (Id. at pp. 351–52.) Reversing, the court held that “[t]he repeated objections from appellants show that the transformations in the findings indicate a determination by the trial judge that there was in fact no agreement, express or implied.” (Id. at p. 353.)

Thus, Calloway may support an argument that the failure to make a finding should be deemed a finding that the record does not support it.

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Keep These Three Tips in Mind for Your Next Appellate Brief

Appellate attorney Anne Grignon offers three brief-writing tips. First is former Justice Margaret Grignon’s advice about telling a clear story. Second, tell the court what rule it should adopt. Third, don’t be afraid to use pictures or visuals in your brief (if they are in the record).

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The Trend Toward Reviewability of Arbitration Awards

Appellate attorney Anne Grignon suggests the California appellate courts seem to be more willing to review arbitration awards lately. Anne discusses with Tim Kowal and Jeff Lewis how questions concerning whether the case should be arbitrated, and questions involving important policy interests, may be more likely to receive appellate review. If you are in arbitration, these are important things to consider, whether you are looking to get appellate review or avoid it.

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Dear Federal Judges Please Discuss More Unpublished CA Cases

The frustrating rule against citing unpublished appellate opinions in California courts, Rule of Court 8.1115, has an important exception: if a federal case has cited the unpublished California opinion, then you can cite to it by way of the federal case. Appellate attorneys Frances Campbell, Jeff Lewis, and I discuss.

Any federal judges looking for a way to perform a public service – and earn a lot of gratitude from California attorneys – should cite liberally to unpublished California appellate opinions.

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Evolving Law on Arbitrability in CA

Who decides whether a dispute must be arbitrated? The court, or the arbitrator?

By a vote of 3 appellate attorneys, the court should decide.

Appellate attorney Anne Grignon explains the takeaway from Banc of California v. Superior Court when attorney see an arbitration agreement incorporating the AAA rules – which purport to empower the arbitrator to determine the question of arbitrability. Anne explains to appellate specialists Tim Kowal and Jeff Lewis the arguments that led the Court of Appeal to hold arbitrability must be decided by the trial court, not the arbitrator.

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Increase Your Chances of Success on a Writ

Appellate attorney Anne Grignon explains how difficult it is to decide to take the risk of filing a writ petition...even a writ petition that proved meritorious. Banc of California v. Superior Court resulted in a published opinion reversing an order sending a case to arbitration, and continuing a trend of opinions skeptical of private judging. But there are always reservations in taking a writ. Anne shares some of those reservations with Jeff Lewis and me.

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