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There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial clerks, but it ne…
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You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road, you have lower energy, weakened drive…
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Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.” There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.) and Certified Bankruptcy Specialist Stella …
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Just a few years out of law school, Kyle O’Malley won a landmark case in the Supreme Court of California. The employer’s screening service in *Raines v. US Healthworks Medical Group*, 15 Cal.5th 268 (2023) used a generic questionnaire asking about menstrual cycles, hemorrhoids, hair loss, and all sorts of fool questions not tailored to the specific…
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The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court. We also discuss that recent panel that departed from an earlie…
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The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable. Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published …
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California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct. And some recent cases: The definitive answer whether orders on motion to enforce settlements are appealable is: Nobody has any friggin’ idea. And the answer on how t…
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Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including: 🔧 Look for common defects in the moving party’s separate statement 🤜 Push back on the moving party’s showing. It is often not up to snuff. Drive that point…
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Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical m…
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Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same goes for “bullying,” “cyberb…
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Employment and class-action attorney Glenn Danas has argued 49 appeals in state and federal appellate courts throughout the country, including a current streak of eight consecutive reversals. Glenn talks with us about litigating the landmark Iskanian case, and how he turned the panel that initially issued a 148-page tentative against his client. Gl…
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Turns out you CAN shout “fire” in a crowded theater, and lots of other lies besides—unless the government meets a heavy burden, that is. The author of four books and more than 20 academic articles, First Amendment scholar and Naval Academy associate professor Jeff Kosseff makes the case for the freedom to speak freely, and even to tell lies, free (…
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In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent. Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited as precedent. W…
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Trial resulted in a sizable judgment against your client. You know to stay judgment enforcement you have to post a bond, but what, exactly, does that mean? And how do you do it? Enter Dan Huckabay from Court Surety Bond Agency. We sit down with Dan and ask him how we attorneys can be a hero for our clients by knowing a few key things about appellat…
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Ryan McCarl, author of the latest book on legal writing, Elegant Legal Writing, sits down with us to discuss why now, more than ever, attorneys need to elevate beyond ChatGPT and distractions to rise to our role as teachers of the law. Ryan offers these actionable tips: 🖋️ “Defer editing” and “second-guessing” until a later draft. Don’t be committe…
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Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples: 😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible. 😎 If the court refuses to provide a statement of decision on key issues, that is a good ope…
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Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits. We discuss: Gun Rights:…
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Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why the 9th Circuit is leav…
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The one sure thing your law-school loans purchased is instant recall of the fact that “federal courts are courts of limited jurisdiction.” But not as limited today as when you signed your promissory note. We discuss Impossible Foods Inc. v. Impossible X LLC, the recent 9th Circuit decision holding that specific jurisdiction over a defendant may be …
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Have an appellate oral argument coming up? We discuss tips shared by top appellate attorneys how to prepare for and give oral arguments. Some tips include: 🗣️ Anticipate the panel’s questions when you can, but… 🗣️ …be prepared to respond when you don’t know the answer. 🗣️ Be prepared to answer: “What is your rule” for answering the key statutory or…
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Anti-SLAPP motions are sometimes called early summary judgment motions. But the fact that they are “early” is why they are so powerful: not only do they provide defendants a quick way to defend against claims that involve speech, they force the plaintiff to prove its case without any discovery. On this episode of the California Appellate Law Podcas…
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Among the hundreds of great new legal tech available in recent years, Clearbrief stands near the top. Jackie Schafer, a former big-law and state attorney general who had a vision of attorneys and their staff working more effectively and efficiently, designed an app that lives right in your Microsoft Word. Clearbrief lets you upload your case file t…
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We discuss some interesting recent cases out of the California Court of Appeal: Arbitration clauses may include an agreement to make the award reviewable on appeal. We discuss a recent case that shows how. Can a judge just stay a money judgment? What to do if the appellate court issues a tentative opinion. When an amended order suspends the right t…
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Your next trial could succeed or fail based on whether the expert’s opinion gets admitted or excluded. Based on their recent presentation to financial experts, we cover three key cases—Kelly, Sargon, and Sanchez—that govern expert opinions. We also cover some fundamentals and tips to protect expert work product. Some things experts should remind th…
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The Judge Pauline Newman saga reached a tentative end—or a respite—when the Federal Circuit imposed a year-long probation on the 96-year-old federal appellate judge. Aliza Shatzman of the Legal Accountability Project discusses the allegations of cognitive decline and workplace misconduct against her, and how the investigation and report may be a mo…
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Tim announces his new firm, Kowal Law Group, APC, and discusses some legal tech with Jeff before moving on to recent cases, including: Collateral orders: Longobardo v. AVCO Corp. confirms that California’s collateral order doctrine is narrower than in other jurisdictions. Anti-SLAPP: Park v. Nazari advises outlining the specific allegations you wan…
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One of the most biggest recent case is the split decision out of the 9th Circuit holding that a prohibition on secretly recording communications between two people violates the First Amendment. Project Veritas v. Schmidt, No. 22-35271 (9th Cir. July 3, 2023). The statute at issue here was an Oregon statute. But it suggests that two-party consent st…
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Most cases that reach the Supreme Court live and die on the “shadow docket.” That is the name given to the docket where everything other than full merits decisions happens. Most prominently, that is where the Supreme Court decides whether to grant stays of orders pending appeal, such as abortion-rights cases, voter redistricting cases, immigration …
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A good trial involves heroes and villains, themes of good and evil, tense conflicts, and, at the end, a difficult moral choice. All stuff that could make a few good movies. Gary Wax is a filmmaker-turned-appellate lawyer, and he brings his insider’s eye and his top-500 list to help us analyze some of the best law movies of all time. We discuss: Why…
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9th Circuit expert Cory Webster joins us to discuss several recent decisions out of the 9th Circuit. On this episode, we discuss: The Jack Daniels case: when binding precedent barred relief, Jack Daniels (and its savvy appellate team) moved for summary affirmance (you read that right) to get to the Supreme Court, which reversed in a unanimous decis…
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WARNING: This episode contains opinions of a law-nerd nature. Discretion is advised. Have you ever encountered the parenthetical “(cleaned up)” at the end of a case citation? By now over 5,000 judicial opinions in nearly ever jurisdiction have used it, including the U.S. Supreme Court. So it’s time you got acquainted with it. The credit (or blame) …
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As a former Deputy Attorney General with the California Department of Justice, Jennifer Novak now serves as a “Rosetta Stone” in her private practice translating complicated environmental rules to businesses and individuals in environmental disputes. Jennifer tells us her secrets how to convey complicated issues as a subject-matter specialist to ge…
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Improper conduct by a trial judge is one thing. But where do you take complaints against an appellate court? Supreme Court Associate Justice Martin Jenkins heads up a new Bias Prevention Committee, and committee member Ben Shatz joins us to talk about its mission: to promote an appellate court environment free of bias and the appearance of bias. Wh…
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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 r…
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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 G…
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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 pri…
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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: Clerkin…
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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 t…
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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 wi…
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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 m…
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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 (wit…
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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 elev…
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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 tal…
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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, w…
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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 appe…
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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 i…
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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 Cal…
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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 Podiu…
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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 recen…
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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 li…
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