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

Do Appellate Justices Ever Unpublish Opinions Strategically?

Have you ever read an unpublished opinion and thought the reasoning a little mischievous, a little outcome-driven? Long-time court-watcher Howard Bashman has reported appellate justices have admitted this may be the case sometimes. (See here: https://lnkd.in/gdB-arbK.) But Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that it never happened that he saw during his three decades at the Court of Appeal at the Fourth District, Division Three (Santa Ana).

What do you think?

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Why Do California Appellate Judges Go Easier on Trial Courts?

Did you know that California appellate justices are elevated from the trial courts more often than are federal appellate judges? Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), tells Jeff Lewis and me on the California Appellate Law Podcast that this may be why our state appellate courts tend to be more deferential than is the 9th Circuit.

What do you think?

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Does the Court of Appeal Take Note of How Many Extensions Your Opponent Has Sought?

Just because I get this question a lot from clients and other trial attorneys, I put it to Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), who sat down to talk with Jeff Lewis and me on the California Appellate Law Podcast. Does the court give any consideration to the number and length of extensions the parties request?

Answer: an emphatic No. Nope. Never. Not even a little.

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Cultural Differences in the Courts of Appeal

Jeff Calkins, recently-retired senior research attorney with the Fourth District Court of Appeal (Santa Ana), talks to Jeff Lewis and me about the cultural differences among some of the districts. Do the research attorneys talk amongst themselves about the case they are working up? What about the justices? The answer may depend not only on policy but on the architecture of the courthouse: are all the justices and staff attorneys on the same floor, or scattered about?

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Why Not to Wait to File an Appellate Writ

Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, talks to appellate attorneys Jeff Lewis and me about the inner workings of the writ panel at the court. While technically you may have 60 days to file your writ, Jeff explains why your writ is more likely to be denied if it is filed close to the deadline.

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The Court of Appeal Is "A Think A Tank with Consequences"

Jeff Calkins, recently-retired senior research attorney with the Court of Appeal, tells Jeff Lewis and me what it is like working at an appellate court ("like a monastery," in a good way). In this clip from the show, Jeff describes the court as "a think tank with consequences."

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What's the Difference Between a Trial Attorney and an Appellate Attorney?

Appellate attorney John Reeves offers his pithy summation of the difference between trial attorneys and appellate attorneys.

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Do Appellate Judges Prefer Amicus Briefs for Policy Arguments?

After discussing the significant increase of amicus briefs filed in the California Supreme Court (and other state high courts and federal courts,), appellate attorney John Reeves discusses with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast what kinds of arguments in an amicus brief appellate judges might be most interested to read. Legal arguments? Or policy arguments?

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Amicus Briefs Are Being Filed in More Types of Cases Than Ever Before

Policy groups are more prevalent in our court system than ever, filing amicus briefs in record numbers. In California, amicus briefs are filed in over 37% of Supreme Court cases.

Appellate attorney John Reeves tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that this is a good thing, ensuring court opinions are informed by a wide array of perspectives. Traditionally only constitutionally significant cases drew interest from policy groups, but now almost every type of case garners interest from these nonparties.

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There Are Few Things That Annoy Appellate Judges More Than Repetitive Amicus Briefs

Amicus briefs filed in an appeal by nonparties can be influential in the outcome of a case, but appellate attorney John Reeves, who has authored a number of amicus briefs, tells Tim Kowal and Jeff Lewis on the California Appellate Law Podcast that amicus briefs should not be saying the same things the parties have already said.

Offer a new perspective, or a policy argument, or even a "Brandeis brief" stocked with citations to social science papers. But whatever you do, do not be repetitive.

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Judge Bacharach on Remote Proceedings as Access to Justice

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and Tim Kowal that remote court proceedings using video technology may be a way to address an deficiency in access to justice in our judicial system.

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When Oral Argument Changes Minds (part 2)

What makes appellate judges change their minds at oral argument? Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that judges can hear the same arguments with fresh ears.

For example, arguments may have been unclear, and oral argument is an opportunity to make it clearer.

Or your brief raised too many arguments and confused the reader, and oral argument may allow you to focus on your best argument.

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