The California Appellate Law Podcast

Our regular roundup of noteworthy appellate decisions and legal news includes these stories: ⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited. ⚠Did the failure to raise an affirmative defense in a joint pretrial or...

ADF attorney Chris Schandevel explains how he got the opportunity to orally argue dozens of cases in multiple appellate courts including state supreme courts in just a decade of practice. We also discuss: 👩‍⚖️Does oral argument make a different? Can amicus briefs make a difference? Yes, and one case proves it: Chris talk about Kligler v. Attorney General in the Massachusetts Supreme Judicial Cour...

The National Center of State Courts recently published its 2023 rankings of judicial salaries, with California and DC trading #1 and #2 spots. At a mean national judicial salary of around $174,000, by starting out in a modest condo and scrimping and saving, a judge in California might achieve the dream of homeownership just before retiring into private ADR. But Troy Shelton notes that his home sta...

Opioids, takings, terrorism—these are at the core of a few of the cases that appellate attorney Carl Cecere is handling. After deciding to leave BigLaw, Carl found that a combination of Twitter and lots of travel with the purpose of meeting interesting colleagues has fueled a pipeline of provocative cases into his solo practice. We discuss: Clerking for Mary Lou Robinson, who started her judicial...

Anti-SLAPP denials are appealable in the 9th Circuit, but Judge Bress says they shouldn’t be. Jeff proposes two SLAPP reforms: Judges should issue more sanctions against frivolous SLAPP motions. The Legislature should amend the statute so that SLAPP denials are reviewable only by way of writs. Jeff tries to stump Tim on a SLAPP appeal quandary—if the defendant won on prong one but lost on prong tw...

On this April 2023 cases & tidbits episode, we warn about several cases where an appeal is lost because of failure to appreciate the appellate deadlines—which are often tricky to determine: 📬 Zen riddle: If you never received a Notice of Entry or stamped order, then does the 60-day deadline begin to run? Answer: Upon mailing. (It is possible you will never receive it—but that doesn’t affect t...

Adam Unikowsky, an appellate litigator with nine appearance in the U.S. Supreme Court, argues that judicial law clerks could be replaced by AI. We discuss: 💻 “AI will make judges release more accurate decisions more quickly. This is good.” 💻 Judges already rely on clerk summaries, so if AI produces better summaries faster, that is good. 💻 AI is a mysterious black box, you say? Well, law clerks...

AI, they say, will revolutionize the practice of law. But can it do anything for my actual practice, as in, the case I am working on right now? Prof. Jayne Woods joins us to explain how she used ChatGPT—the question-and-answer AI interface—to draft a very passable first draft of an oral argument outline. Even better, ChatGPT could event engage (with a little coaxing) in a moot court dialogue, aski...

You have just about 15-30 seconds at oral argument before the panel is likely to interrupt you. How will you use that time? Minnesota appellate attorney Jeff Markowitz says you should be unlocking that key point that allows the rest of your case to unfold. If you haven’t discovered that point by the time of oral argument and distilled it to an elevator pitch, you’re likely squandering your opportu...

A few days ago we mentioned Tim is opening a satellite office in Texas, which means expanding the podcast’s jurisdiction. So in this episode we take care of some business with the proprietors of the Texas Appellate Law Podcast, Todd Smith and Jody Sanders. Todd and Jody had the same idea during the pandemic to start an appellate law podcast. We talk about legal podcasting, finding good content to...

To preview our special announcement to be discussed on the next episode, Tim is opening a satellite office in Texas—and the California Appellate Law Podcast will be expanding to Texas! Jeff Lewis will give me horseback riding lessons and remind me to say “y’all” a lot. Our very special episode, featuring a turf war with some Texas law podcasters, will drop on a special day next week, Thursday (rat...

As the prevailing party defending an order on appeal, you know the odds are in your favor. Statistically, 75-80% of judgments are affirmed on appeal. But 25% is still worse odds than Russian Roulette. So on this episode of the California Appellate Law Podcast, Jeff and I discuss some tips to seize maximum advantage of your superior position on appeal. The tips include: 👉 Appellants often appeal f...

Appellate practitioner and former Florida Supreme Court career staff attorney Lindsey Lawton sits down with us to talk legal writing. For Lindsey, writing is not just her day job, she draws influence for use and enjoyment of the written word from beyond legal briefs. While she maintains a grammar beat on LinkedIn, Lindsey says language ultimately is about being a communicator, not a technician. (E...

Appellate attorney John Nielsen is forever grateful to his mentors when he was a young attorney, and he pays it forward now both as a mentor himself and by offering tips on legal writing published at the Appellate Advocacy Blog. John discusses his approach to training young associates, and to legal writing. Then we turn to how Utah differs from California in civil and appellate procedure, includin...

This podcast is often a soapbox for complaining about oddities in the California court system. But then we wondered: are the courts in other states better? Maybe they’re the same—or worse. So we thought we should start a conversation with a couple of attorneys on their own soap box in Chicago, Dan Cotter and Pat Eckler, the proprietors of the Podium and Panel Podcast, and compare notes about civil...

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case. And, you had better make a record on it. On this episode of the California Appellate Law Podcast, reprising Tim’s recent CLE presentation , we cover 10 tips that appella...

For attorneys, the best referral is a referral from another attorney. But before you refer to another attorney, beware of the ethical traps. Kristi Thomas, a labor and employment attorney who also focuses on ethical issue, warns in a recent article that incautious referrals can lead to a conflict of interest, or an improper referral fee, or even liability for making a negligent referral. Kristi di...

The issue that most often drags appeals back into more litigation is attorney fee and costs. What happens when, while focusing on the appeal, the prevailing party gets a substantial award of fees and costs? Do you have to separately appeal from the fees and costs award? (Yes…usually.) How can you stay enforcement of the fees and costs award? (Fee & cost awards are stayed automatically…sometime...

On this cases-and-tidbits episode, Jeff Lewis and I discuss: Ramirez v. Avon Products : There is no “corporate representative” or PMQ exception to hearsay and foundation objections. So summary judgment had to be reversed. Flickinger v. Finwall : Do you ever worry your prelitigation demand letters may be construed as extortion? I mean, Flatley v. Mauro shows the letter has to be really bad, but som...

With his background as a brewery owner, business litigator Greg Nylen defends attorneys from “the triumvirate” of unfair-competition claims: the Unfair Competition Law, the False Advertising Law, and the Consumer Legal Remedies Act. Greg shares some trends, tips, and traps emerging in this space, including: 💡 Courts are getting a bit more stringent on the “reasonable consumer test”—the determinat...

The autism pandemic now affects between 1-in-44 and 1-in-35 children by the age of 8, according to a December 2021 Rutgers report—a rate that has climbed some 241% since 2000. And one of the big ways this affects the millions of families raising children with autism is obtaining and fulfilling IEPs—Individualized Education Programs. Special-education law attorney Tim Adams represents families to g...

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly : if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection. Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a ba...

In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022. Some of the tips and trends we cover: There is a trend toward informality in legal writing—but do pop-culture references go too far? Everyone knows oral argument usually doesn’t cha...

The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone? Ben shares some of his secrets and insights: 🗝 Winning a medical-malpractice...

What does an appeal look like after having done 2,000 of them? John Dodd is one of the few people with that vantage. A former staff attorney at the Court of Appeal who has volunteered on the juvenile-dependency panel along with his civil appeals practice, John explains how “an appeal is an appeal.” Once you have spotted some of the key differences among the various disciplines, it all comes down t...