An appellate law podcast for trial lawyers. Appellate specialists Jeff Lewis and Tim Kowal discuss timely trial tips and the latest cases and news coming from the California Court of Appeal and California Supreme Court.
…
continue reading
Adam Feldman watches Supreme Court trends: voting blocs both usual and unusual, numbers of concurring and dissenting opinions, and other analytical ways of predicting outcomes. In our discussion, we cover: Recent polls disapprove of how the Supreme Court “is handling its job.” What does “handling its job” mean? Does it mean outcomes, or the decisio…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
“Disgrantles,” peaceful carjackings, for-profit prisons: July 9th Cir. cases
26:08
26:08
Play later
Play later
Lists
Like
Liked
26:08
While the Supreme Court wrapped up its term, the Ninth Circuit had some interesting cases of its own. Carjacking is “nonviolent,” for-profit prisons are constitutional, and Covid vaccine religious exemptions are on the table. Practitioners might also look forward to focus letters and earlier panel notifications. All this and other recent cases and …
…
continue reading
![Artwork](/static/images/128pixel.png)
1
E-filing outage cause a late filing? & other cases
25:41
25:41
Play later
Play later
Lists
Like
Liked
25:41
A ransomware attack hit the Los Angeles County Superior Court in July 2024, affecting e-filing services. Did you miss a filing deadline because of this? We discuss two Rules of Court that could help. We also cover: Are anti-SLAPP orders “judgments”? Court of Appeal to litigants: Your adverbs are unwelcome here. Ok to say “The order is erroneous.” B…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
What next after Rahimi? with Criminal Defense Hero Don Hammond, part 2
25:08
25:08
Play later
Play later
Lists
Like
Liked
25:08
Previously in part one, criminal-defense attorney Don Hammond explained why, post-Bruen, states may no longer impose discretionary constraints in concealed-carry permitting regimes. But will that change after the Supreme Court’s recent 8-1 decision in Rahimi, holding that a restraining order prohibiting a particularly violent actor from possessing …
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Justice Anita Earls Part 2: The investigation into her statements on diversity
25:27
25:27
Play later
Play later
Lists
Like
Liked
25:27
Justice Anita Earls of the North Carolina Supreme Court knows about some reforms that will improve our justice system. But she also knows about some that will provoke an unhappy response—including an investigation against her personally. In this second half of our interview, Justice Earls talks about how she found herself under investigation for ca…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
CCW Permits with Criminal Defense Hero Don Hammond, part 1
37:25
37:25
Play later
Play later
Lists
Like
Liked
37:25
Just because you’re law-abiding doesn’t mean you won’t need a criminal-defense attorney. There are more criminal laws in federal and California state law books than you could read in a decade. (I asked ChatGPT: if you printed them all out, they would be taller than the 24-story AT&T building in San Diego.) Enter Criminal Defense Hero Don Hammond. I…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Justice Anita Earls and the Court as an Institution: Part 1
34:17
34:17
Play later
Play later
Lists
Like
Liked
34:17
Justice Anita Earls of the North Carolina Supreme Court knows about some reforms that will improve our justice system. But she also knows about some that will provoke an unhappy response—including an investigation against her personally. In this first part of our interview, we discuss Justice Earls’ path from a 30-year civil rights attorney to supr…
…
continue reading
We have a few big cases to cover: The Supreme Court, 9-0, guaranteed continued access to abortion pills. A 9th Circuit split panel, meanwhile, allows a challenge to a Covid-19 vaccine mandate to proceed, challenging Buck v. Bell forced sterilization-era public health precedent. And a get-out-of-arbitration-free card case get reversed on FAA grounds…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
The appellate court that overruled a supreme court: Part 2 with John Sylvester
28:06
28:06
Play later
Play later
Lists
Like
Liked
28:06
John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. In the previous episode we discussed why it was controversial. (Short version: because the Court of Appeal, sub silentio, thumbed its nose at the Supreme Court and concluded that a missing finding required by statute gives you a an automatic get-a…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
The appellate court that overruled a supreme court: Part 1 with John Sylvester
32:24
32:24
Play later
Play later
Lists
Like
Liked
32:24
John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. Why was it controversial? Because the Court of Appeal thumbed its nose at the Supreme Court, which had held in F.P. v. Monier that just because the trial judge forgets to make a required written finding you don’t get an automatic get-a-new-trial-f…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Top 10 Tips to Avoid Fee Disputes, with Carl Mueller
35:12
35:12
Play later
Play later
Lists
Like
Liked
35:12
Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. In the continuation of our discussion in the last episode, Carl Mueller shares his top 10 tips to avoid them and win them. The tips include: See a “red flag”? Trust your gut, and run. Check your retainer agreements for compliance with Business …
…
continue reading
![Artwork](/static/images/128pixel.png)
1
How to Avoid Fee Disputes, with Carl Mueller
29:41
29:41
Play later
Play later
Lists
Like
Liked
29:41
Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. Carl Mueller litigates these billing disputes and explains what attorneys should know to avoid them and to win them: All the billing disputes are basically the same, so… Spot the “red flags.” (You know what they are.) If you do get into a dispu…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Top 10 Tips from Court of Appeal Research Attorneys
36:44
36:44
Play later
Play later
Lists
Like
Liked
36:44
Appellate justices’ research attorneys are the ones advising the justices about your arguments and writing the opinions. We discuss 10 tips offered at a recent Orange County Bar Association event. Here is a taste: 😮 Biggest surprise: The Court of Appeal wants hyperlinked briefs. They want to be able to click on your record cites to confirm your fac…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 2)
33:44
33:44
Play later
Play later
Lists
Like
Liked
33:44
Last time, we set the table with special-education attorney Tim Adams to discuss the big 9th Circuit win for parents of kids with IEPs (individualized education protocols). Now we dig in to Irvine Unified School District v. Landers and Gagliano. After covering the fact that the school district, to get out of helping a dyslexic student get the help …
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 1)
30:29
30:29
Play later
Play later
Lists
Like
Liked
30:29
A big 9th Circuit win for parents of kids with IEPs (individualized education protocols) came down recently, and the prevailing attorney is podcast alum Tim Adams. In the first of this two-part discussion, we set the table to discuss Irvine Unified School District v. Landers and Gagliano. For example, to understand why parents trying to help their …
…
continue reading
![Artwork](/static/images/128pixel.png)
1
What to know about “snap” and “super snap” removals
13:04
13:04
Play later
Play later
Lists
Like
Liked
13:04
Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants. But don’t commit a “super snap” removal. That’s when you rem…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Is the Racial Justice Act Unconstitutional?
23:35
23:35
Play later
Play later
Lists
Like
Liked
23:35
Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if that happen…
…
continue reading
Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include: 👉 Know your appealable issues—appeal now, or lose it forever! 👉 Request a statement of decision. Don’t need to, you say? Judge already gave a tentati…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Social Media and Jury Waiver High Court Cases, and Other Appellate News
36:22
36:22
Play later
Play later
Lists
Like
Liked
36:22
The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss: 📰Free Speech on Government Social Media: Lindke v. Freed (Mar. 15, 2024, No. 22-611), notable for being short and unanimous, holds that, when…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Five Hard Truths About an Appellate Practice, with Raffi Melkonian
52:53
52:53
Play later
Play later
Lists
Like
Liked
52:53
Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is very har…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases
45:21
45:21
Play later
Play later
Lists
Like
Liked
45:21
We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration: $50k sanctions against appellant for blowing appellate procedure. Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal’s hint, so writ issued. (But the trial judge was right to let the writ issue.) Ant…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Judge Nazarian to Judges: Take the Accountability Pledge
1:02:59
1:02:59
Play later
Play later
Lists
Like
Liked
1:02:59
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Sleep Well to Crush Your Enemies, with Leslie Porter
52:11
52:11
Play later
Play later
Lists
Like
Liked
52:11
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
So You Think You Understand the Snitch Rule?
56:27
56:27
Play later
Play later
Lists
Like
Liked
56:27
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 …
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Kyle O’Malley, the Attorney Who Won the Raines’ Supreme Court Employee-Screening Case
51:00
51:00
Play later
Play later
Lists
Like
Liked
51:00
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
No More Anti-SLAPPs in Fed Court? With Cory Webster
1:02:25
1:02:25
Play later
Play later
Lists
Like
Liked
1:02:25
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Cert on Homeless Encampments and En Banc on SLAPPs
38:03
38:03
Play later
Play later
Lists
Like
Liked
38:03
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 …
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Cal’s initial disclosures, minimum discovery sanctions, & some ¯\(ツ)/¯ cases
36:40
36:40
Play later
Play later
Lists
Like
Liked
36:40
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
How appellate attorneys beat summary judgments, with Yisrael Gelb
41:24
41:24
Play later
Play later
Lists
Like
Liked
41:24
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…
…
continue reading
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Eugene Volokh on Restraining Orders and the First Amendment
58:36
58:36
Play later
Play later
Lists
Like
Liked
58:36
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
High-Profile Employment Appeals with Glenn Danas
1:05:45
1:05:45
Play later
Play later
Lists
Like
Liked
1:05:45
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Liar in a Crowded Theater, with Jeff Kosseff
50:54
50:54
Play later
Play later
Lists
Like
Liked
50:54
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 (…
…
continue reading
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Appellate Bonds: What You Client Needs to Know, with Dan Huckabay
47:29
47:29
Play later
Play later
Lists
Like
Liked
47:29
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Elegant Legal Writing, with author Ryan McCarl
1:03:52
1:03:52
Play later
Play later
Lists
Like
Liked
1:03:52
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Reversals on Technicalities: 4 Recent Examples
40:13
40:13
Play later
Play later
Lists
Like
Liked
40:13
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
How Appellate Lawyers Debate Gun Control and Abortion
57:30
57:30
Play later
Play later
Lists
Like
Liked
57:30
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:…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
CM/ECF Is Outdated So Get Ready for the 9th Circuit’s ACMS, with Susan Gelmis
47:24
47:24
Play later
Play later
Lists
Like
Liked
47:24
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
The 9th Cir. “Reimagines” Diversity Jurisdiction
45:20
45:20
Play later
Play later
Lists
Like
Liked
45:20
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 …
…
continue reading
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
The Power of Anti-SLAPP Motions: Sept. 2023 Cases
35:16
35:16
Play later
Play later
Lists
Like
Liked
35:16
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Judges Use Clearbrief & So Should You, with Jackie Schafer
55:23
55:23
Play later
Play later
Lists
Like
Liked
55:23
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…
…
continue reading
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…
…
continue reading
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Investigating Judge Newman, with Aliza Shatzman
50:24
50:24
Play later
Play later
Lists
Like
Liked
50:24
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…
…
continue reading
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…
…
continue reading
![Artwork](/static/images/128pixel.png)
1
Two-Party Consent Privacy Laws Might Be Unconstitutional, and Other Recent Cases
43:24
43:24
Play later
Play later
Lists
Like
Liked
43:24
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…
…
continue reading
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 …
…
continue reading
![Artwork](/static/images/128pixel.png)
1
The Best Legal Movies Ranked, with Gary Wax
49:43
49:43
Play later
Play later
Lists
Like
Liked
49:43
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…
…
continue reading