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 “Cleaned Up” Movement in Legal Citations

If you have not seen a case citation with a parenthetical (”cleaned up”) yet, you will eventually. Writers use it when altering—ever so slightly—quotes from legal authorities. Legal writing pro Ross Guberman explains why some attorneys love it, and others hate it.

Ross also addressed my view: that I trust judges to “clean up” quotations, but I don’t know if judges and law clerks would trust us attorneys’ trying our hand at it. Ross is not enthusiastic about double standards in legal writing: if judges adopt a practice, it is too much to expect lawyers not to follow suit.

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“Kill Your Darlings”: Ross Guberman on Rising Above the Fray in Legal Writing

Do quips and “Twitter-ready” lines make for good legal writing? Legal writing pro Ross Guberman says the better approach is “quieter,” less conspicuous writing that “rises above the fray” by being clear, flowing, and concise.

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Does the Probate System “Care A Lot”?

The 2020 film I Care A Lot is premised on the possibility of predator conservators using the conservatorship system to loot the estates of the elderly. Could it actually happen?

Probate attorney David Greco says that, while the film makes some leaps, conservatorship abuse does happen. Improper uses of conservatorship include children seeking conservatorships over parents for writing them out of their estates, or even for refusing to take their children’s phone calls.

David also relates a story of a conservator who locked her ward in the house and isolated him from examiners. Thwarting her efforts cost multiple millions in attorney fees.

David explains why the #FreeBritney movement is a long-time coming, and has produced at least one favorable change that allows conservatees to hire their own counsel. (Query why that basic right had been denied until 2021.)

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Greedy fee motions may be denied in their entirety

Even when a prevailing party is entitled to recover attorney fees, the court may deny fees in extraordinary circumstances. The authors of the California Attorneys Fees Blog, William (Mike) Hensley and Marc Alexander, talk about a few of the cases where excessive and unreasonable fee requests have been denied in their entirety. Also, do not call the trial judge a “succubus.”

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The Probate “Stay-Killer”

Probate litigator and appellate attorney David Greco tells why the probate “stay killer” is his “favorite provision in the Probate Code.” Probate Code section 1310(b) allows a probate judge to override the automatic appellate stay, which can, in many cases, render the appeal moot.

David explains why this is an important tool in many probate cases.

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What Family Law Attorneys Can Miss on Appeals

Victoria Fuller, a certified appellate specialist focusing on family law, explains what family law attorneys most often misunderstand about the appellate process.

Her answer: “substantial evidence” review. Appellate review of a factual finding doesn’t just mean deference to the trial court. It means the appellate court considers only—only—the other side’s evidence, and completely disregards your evidence.

This means that, to have a shot on appeal, you have to look at your case a whole new way.

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Why Family Law Writ Petitions Are So Hard

We asked Victoria Fuller, a certified appellate specialist focusing on family law, about getting the appellate court’s attention in family law writ petitions. Showing extraordinary harm in money cases is a tough sell, but it should work in family cases, right?

Victoria explains that it is just just very hard, even when there is genuine irreparable harm like in move-away orders.

In another moment during our discussion, Victoria told us that even family law justices, upon being elevated to an appellate justiceship, have commented they had no idea just how vast is a family law judge’s discretion.

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The Doomsday Provision and the Natural Right to Self Defense

Who needs the Second Amendment? Judge Kozinski once called the constitutional right to bear arms as the “doomsday provision”: that right to which a free citizens resorts when all other rights have failed. But what role does that right have left to play in a hyper power like the U.S.?

Second Amendment attorney Sean Brady, Jeff Lewis, and I discuss some modern examples when other rights have failed, at least temporarily: such as in the wake of Katrina, the L.A. riots, and the George Floyd riots.

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The 9th Circuit’s Skewed 2nd Amendment Scorecard

Judge VanDyke recently criticized the 9th Circuit’s practice of granting en banc review in every recent pro-2nd Amendment decision—and denying review of every pro-gun control decision. And he’s right, says 2nd Amendment litigator Sean Brady. Sean talks with Jeff Lewis and me about his recent amicus brief on that very phenomenon, cataloguing 9th Cir. cases that:
🤔 Rely on the Heller dissent rather than the SCOTUS majority’s holding.
🤔 Hold there is no right to concealed carry even when there is no right to open carry, either.
🤔 Effectively hold there is no right to bear arms, only to keep them.

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The most frequently committed legal writing mistakes

Attorney Ryan McCarl, author of Elegant Legal Writing, tells Jeff Lewis and me the top three things lawyers do wrong in their briefs:
(1) Legalese (are you really still using legalese?)
(2) Long sentences with no clear structure or emphasis
(3) Failing to mind the “cognitive load” of your reader.

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Published Opinions Are Well-Thought-Out: Shouldn't They All Be?

In their article calling for relaxation of the no-citation rule, appellate attorneys David Ettinger and Dean Bochner point to this interesting quote explaining how much effort goes into a published appellate opinion: it “is an exacting and extremely time-consuming task” and “few, if any, appellate courts have the resources to write precedential opinions in every case that comes before them.” (Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1177.)

But doesn’t every case deserve the same quality of consideration?

How would the reasoning be different if Congress were to say, “you know, this bicameralism and presentment business is an exacting and extremely time-consuming task, and really, what legislature has the resources to go through all that for every important policy matter that comes before it?”

(Of course, a federal court would respond: “No one is saying you cannot cite to unpublished cases. We just don’t like it very much, is all.” But California Rules of Court rule 8.1115 absolutely prohibits any citation to unpublished opinions.)

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Proper and improper ways to get around the no-citation rule

Here are two ideas for getting round the “no-citation rule” that prohibits California attorneys from citing unpublished cases. But careful! Only one of them is actually a good idea.

First, I ask appellate attorneys David Ettinger and Dean Bochner if attorneys may reference an unpublished case the same way a recent published case did: by naming the appellate district that issued the on-point unpublished case. (Bad idea, don’t try it it. I realized it was probably too mischievous when I couldn’t even say it with a straight face.)

Second, simply crib the persuasive reasoning of the unpublished case. (This gets a thumbs-up from both David and Dean and co-host Jeff Lewis.)

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