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.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Videos

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.

Read More
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.

Read More
When Oral Argument Changes Minds (part 1)

Do appellate judges want to hear from you at oral argument? Contrary to many appellate practitioners' perspective in California state courts, Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that the unwritten rule among federal appellate judges is to come to conference with a tentative vote, otherwise they won't get assigned authorship.

Despite this, however, Judge Bacharach has changed his mind many times based on oral argument, and once even wrote two separate opinions, one to affirm, and the other to reverse!

Read More
The Under-Utilized Table of Contents: Judge Bacharach on Legal Writing

You are wasting your best opportunity to persuade if you are not prepare complete tables of contents in your briefs, Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me.

The table of contents shows your reader the gist and structure of your brief. Yet probably half of litigants are leaving this rich vein unmined.

Read More
"Throat-Clearing" and Soft Sentence Openers: Judge Bacharach on Legal Writing

Avoid "throat-clearing" in your writing, but have a care for when "softening" may be needed.

Judge Robert Bacharach of the 10th Circuit tells appellate attorneys Jeff Lewis and me that meaningless expressions, like, "It should be noted that," are largely overused. But they can serve a useful purpose.

I recalled this anecdote about novelist James Thurber, who was once asked: “Why did you have a comma in the sentence, ‘After dinner, the men went into the living-room’?” His answer: “This particular comma was Ross’s way of giving the men time to push back their chairs and stand up.”

Read More
Differences of Typographical Opinion

Are the briefing limits in your court based on page count? Or word count?
If page count, you still may be better off using Times New Roman, says appellate attorney Frank Lowrey in this edition of the world famous CAL Podcast's Lightning Round.

Other vexing questions discussed: One space after a comma, or two? Pled, or pleaded? And where do you stand on the use of the citation parenthetical "(cleaned up)"?

Read More
Choosing the Right Verdict Forms for Your Case

Are you using general verdict forms at your next trial? Or special? This can be a critical choice, as appellate attorney Frank Lowrey explains on the California Appellate Law Podcast.

A simple general verdict form cannot tell you whether a certain alleged error at trial influenced the verdict. On the other hand, a special verdict form with multiple interrogatories may lead to inconsistent verdicts. This balancing underscores the importance of having appellate counsel involved pretrial.

Read More
Have you Noticed a Decline in Civility?

Appellate attorney Frank Lowrey exchanges perspectives with Jeff Lewis and Tim Kowal about the recent Mahoney case in which a California Court of Appeal held an attorney in contempt for impugning the court's integrity, and discusses whether the level of civility has declined in the legal profession, and whether perhaps the Court of Appeal overreached by suggesting the integrity of the courts may never be questioned.

Read More
Pop Culture References and "Too Artful" Advocacy

Judge Robert Bacharach of the 10th Circuit is not a fan pop-culture references in legal writing. Too much levity in judicial opinions, the judge says, may tend to relax the standards of professionalism among the bar.

The parties, particularly at the appellate level, are entitled to respect, and "artful" advocacy may be seen as disrespectful. Use with extreme caution!

Read More
Why Don't Appellate Judges Ask More Questions?

Why aren’t the judges asking me any questions? Is it because I am winning? Or because I am losing? Or because the judges have gone to their happy place?

Appellate attorney Frank Lowrey exchanges experiences with Jeff Lewis and me about cold benches.

Read More
Do Curative Instructions Cure Anything?

Here is one reason why trials are so stressful:

What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?

Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."

Read More
What Science Says About Crafting Persuasive Sentences: Judge Bacharach on Legal Writing

Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly!

Read More

Tags

Podcast (81)
Videos (69)
Appealability and Appealable Orders (26)
Abuse of Discretion (23)
Legal Writing (19)
Notices of Appeal (17)
Statements of Decision (17)
Waiver and Forfeiture (16)
Unpublished Opinions (16)
Splits of Authority (15)
Stays on Appeal (15)
Mischief (15)
Arbitration (14)
Dismissals (14)
Attorney Fees (12)
Briefing (12)
Family Law (11)
Dissents (11)
New Trial Motions (11)
Anti-SLAPP (10)
Record on Appeal (10)
Mootness (10)
Timeliness (10)
Sanctions (9)
Appellate Sanctions (9)
Judgment Enforcement (9)
Oral Argument (9)
Preliminary Injunctions (9)
Evidentiary Objections (9)
Motions for Reconsideration (8)
Civility (8)
Implied Findings (8)
Collateral Orders (8)
Appealability (8)
Federal Courts (8)
Trial Strategy (8)
CCP 998 Offers (7)
Timely and Untimely Appeals (7)
Jurisdiction (7)
Summary Judgments and Summary Adjudications (7)
Respondent Arguments (7)
Ninth Circuit (7)
Dismissed Appeals (7)
Writ Petitions (7)
Disqualification (6)
Appellate Bonds (6)
Exclusion of Evidence (6)
Admission of Improper Evidence (6)
Standards of Review (6)
Discovery (6)
California Supreme Court (6)
Substantial Evidence (6)
Experts (6)
Stipulated Judgments (6)
Trial Procedure (6)
Probate Appeals (6)
Posttrial Motions (5)
Appellate Practice (5)
Default Judgments (5)
Ethical Duty of Candor (5)
Standing (5)
Settlements (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Notices of Entry (4)
Depublished Opinions (4)
Motions to Vacate and Set Aside Judgments (4)
Excessive Damages (4)
Appeals Treated as Writs (4)
Motions in Limine (4)
Disentitlement Doctrine (4)
Frivolous Motions (3)
Juror Peremptory Challenges (3)
Petitions for Review (3)
Jury Waivers (3)
Summary Judgments (3)
Expert Opinions (3)
Motions to Dismiss (3)
Summary Judgment (3)
Appealable Orders (3)
Mediation (3)
Trust and Probate (3)
Stays (3)
Demurrers (3)
Motions to Vacate (3)
Amicus Briefs (3)
Right to Jury Trial (3)
Judicial Admissions (2)
Legal Ethics and Professional Responsibility (2)
Trial by Reference and Pro Tem Judges (2)
Law and Motion (2)
Contempt (2)
Attorney Client Privilege (2)
Forfeiture and Waiver (2)
PAGA Actions (2)
Remote Arguments (2)
Litigation Tips (2)
Recovery of Costs (2)
Standards of Evidence (2)
Personal Jurisdiction (2)
ADA and Unruh Accessibility Actions (2)
Tentative Rulings (2)
Landlord Tenant (2)
Judicial Bias (2)
Prejudicial Error (2)
Appeals Dismissed (2)
Invited Error (2)
Waiver (2)
Untimeliness (2)
Legal Practice (2)
Pretrial Procedure (2)
Post Reversal Issues (2)
Pretrial Issues (2)
Class Actions (2)
Comments (2)
Trial Irregularities and Structural Errors (2)
Medical Rights (2)
Premature Appeals (2)
Civil Theft (1)
Treble Damages (1)
Frivolous Appeals (1)
Post-Appellate Issues (1)
Referral Fees (1)
PAGA Attorney Fees (1)
Issue Selection on Appeal (1)
Attorney Feese (1)
Employment Law (1)
Common Interest Doctrine (1)
Premises Liability (1)
Juror Misconduct (1)
Product Liability (1)
Clear and Convincing (1)
Clerks Service of File Stamped Judgment (1)
Designating the Record (1)
Trade Restraints (1)
Civil Code 3334 (1)
Benefits Obtained Trespass Damages (1)
Trespass (1)
Property Rights (1)
Inherent Authority (1)
Support Awards (1)
Forfeiture (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Petitions for Rehearing (1)
Judicial Notice (1)
Post Reversal (1)
Moot Appeals (1)
Appellate Briefing (1)
Pleadings (1)
Attorney Fees - CCP 1021.5 (1)
Judicial Estoppel (1)
Harmless Error (1)
Record Designation (1)
Typeface (1)
Typography (1)
Jury Instructions (1)
Precedent (1)
New Arguments (1)
Third Parties and Nonparties (1)
Ninth CircuitAbuse of Discretion (1)
Out-of-State Litigant (1)
Family Court (1)
Split Decisions (1)
Inconsistent Verdicts (1)
Punitive Damages (1)
Dicta (1)
Petitionf ro Review (1)
Finality and Final Orders (1)
DismissalsAppealability and Appealable Orders (1)
Motions to Quash (1)
Motions for Judgment on the Pleadings (1)
Federal Appeals (1)
Consenting to Judgments (1)
Alter Ego (1)
Law of the Case (1)
Record (1)
Bankruptcy (1)
Local Rules (1)
Evidentiary Presumptions (1)
New Trial (1)
Exhaustion of Remedies (1)
Waived and Forfeiture (1)
Per Se Errors (1)
Review as Writ Petition (1)
Incorrect Decisions (1)
Attorney Misconduct (1)
Restraining Orders (1)
Summary Reversal (1)
Judicial Misconduct (1)
Stipulated Reversals (1)
Constitutional Litigation (1)
Constitutional Law (1)
Mistrials (1)
Administrative Law (1)
Podcasts (1)
Writs of Mandamus (CCP 1085) (1)
Nonsuit (1)
Closing Argument (1)
Stare Decisis (1)
Settled Statements (1)
Legal Tech (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Retainer Agreements (0)
Professional Ethics (0)
Appellate (0)
Notice of Appeal (0)
Landlore Tenant (0)
Split of Authority (0)
No categories Legal Writing (0)
crossmenuchevron-down