The California Appellate Law Podcast

Tim Kowal and Jeff Lewis discuss Family Violence Appellate Project v. Superior Court, the California Supreme Court's unanimous August 2026 decision holding that an indigent litigant unable to find or afford a court reporter is entitled to an electronic recording, and that the trial court has a ministerial duty to press record. The court reached that result through the common law in forma pauperis doctrine rather than constitutional grounds, which means the right runs in every civil case type.

And less than a month later, the Third District applied the same access-to-courts reasoning in Guzman v. Superior Court to cut a $31 million appeal bond to $1.25 million for a defendant worth $1.75 million, holding that "indigent" under CCP 995.240 means unable to obtain sufficient sureties, not destitute.

Tim and Jeff also cover SB 574, California's new statute requiring attorneys to disclose use of generative AI in court filings and to personally verify every citation, effective January 1, 2027.

Topics covered:

• The FVAP ministerial duty to record electronically and how to make the showing
• How to establish indigency for bond reduction under CCP 995.240 after Guzman
• Where the access-to-courts doctrine may travel next: AI interpreters? AI translations of the electronically recorded trial?
• SB 574's disclosure and citation-verification requirements for California litigators

What procedures do you think the FVAP reasoning might affect next?

Ben Feuer, chair of Complex Appellate Litigation Group, joins Tim and Jeff to discuss how CALG built a successful appellate firm by rejecting the traditional law firm pyramid entirely.

CALG hires no associates and pays attorneys a percentage of billings rather than a fixed salary. The result is a firm composed almost entirely of seasoned appellate specialists, including former career court staff attorneys, retired justices, and senior big-firm laterals. Feuer explains what draws these lawyers to the model, how the firm structures collaboration without hierarchy, and what a former chief deputy clerk of the Ninth Circuit brings to client work that even experienced appellate lawyers cannot replicate.

The conversation also covers CALG's AI policy, how the firm currently permits limited AI use, and where the floor is.

The episode closes with a discussion of legal writing standards, what CALG expects every brief to accomplish, and why the statement of facts is where appellate cases are most often won or lost.

In this episode, we discuss:

• Why CALG eliminated the associate tier and built an alternative compensation model
• How the firm recruits and integrates career court staff attorneys and retired justices
• CALG's AI policy, including what platforms were tested and where the firm drew the line
• How AI is already influencing fee motions and law-and-motion rulings at the trial court level
• What a CALG brief is designed to accomplish and why the statement of facts is central to appellate advocacy

This discussion found us asking ourselves: Why hasn't anyone tried this successful model sooner? And does it apply to other practice areas?

Retired Associate Justice Thomas L. Willhite Jr. of the California Court of Appeal, Second District, Division Four, joins Tim Kowal and Jeff Lewis to discuss nearly four decades in the legal system, from coordinating capital appeals at the California Attorney General's office to authoring roughly 2,000 appellate opinions. He serves as a mediator, arbitrator, and appellate consultant at ADR Services, Inc. since retiring from the bench in 2023.

Justice Willhite offers candid, experience-grounded guidance on appellate briefing and oral argument. And as a legal lecturer and consultant in Italy, Justice Willhite offers some striking comparative law contrasts.

• Are your introductions more than 3-4 pages? Too long. Don’t make the justices read your arguments twice.
• Prioritize conciseness, a balanced statement of facts, and the importance of confronting adverse authority—in the opening brief, rather than waiting for the reply.
• What are justices thinking during oral argument? And how should advocates deal with a cold bench?
• At oral argument, sometimes justices write notes—what are they writing?
• Did you know Italian courts don’t have juries? But the judges who decide the cases have to write detailed judgments—sometimes hundreds of pages long!

We ask Justice Willhite: Given the choice between stellar briefs and merely serviceable oral argument—or serviceable briefs but stellar oral argument—which is better?

How would you answer?

Listen to the full episode and subscribe to the California Appellate Law Podcast for more insights from the bench and bar

John Mitch Mitchell joins Tim Kowal to unpack Maniago v. Desert Cardiology Consultants’ Medical Group, a July 2026 California Supreme Court decision that shuts down a procedural shortcut California litigators have been relying on for years. Mitchell, who represented the plaintiffs on appeal, offers a candid, behind-the-scenes look at how a carefully planned litigation strategy turned into a cautionary tale.

The story starts with a surgical technologist who was exposed to HIV during a cardiac procedure and sued on several different theories. After the trial court sustained a demurrer on most of the claims, Mitchell dismissed the remaining claims with prejudice and filed a declaration explaining that he was doing so only to fast‑track an appeal. Even though this followed what had been the majority approach in the case law, both the Court of Appeal and the Supreme Court threw out the appeal for lack of jurisdiction, unanimously holding that a voluntary dismissal waives the right to appeal when the trial court has not yet finally resolved any claim.

In doing so, the Supreme Court disapproved Stewart v. Colonial Western Agency and other decisions that had blessed this workaround, leaving practitioners with a tough choice. They can either follow the Court’s new three-step procedure and permanently give up any remaining viable claims, or litigate straight through to final judgment before they can challenge a damaging interlocutory ruling on appeal.

In this episode, we discuss:

• Why voluntary dismissal no longer creates an appealable order after an adverse demurrer ruling
• The three-step procedure the Supreme Court says litigants must follow instead
• The practical and economic consequences for plaintiffs facing case-altering interlocutory orders
• The line of authority the court disapproved and what still survives

Have you tried the voluntary‑dismissal workaround in your own cases? Maniago may hit close to home.

Why do tenants' rights cases end up on appeal—and what happens when the Ellis Act gets weaponized? Tenants' rights appellate attorney Fran Campbell joins Jeff Lewis as a guest host while Tim Kowal is on vacation, sharing hard-won insight from landlord-tenant litigation, mobile home park law, and the appellate front lines of California's housing crisis.

Key points:

• The Ellis Act and Barrington Plaza: Campbell's firm challenged Douglas Emmett's attempt to invoke the Ellis Act to remove roughly 750 tenants, raising a statutory interpretation question under Gov. Code § 7060.7.
• Supersedeas strategy: Collecting rent from remaining tenants while an appeal is pending may inadvertently create new periodic tenancies — a risk Campbell says practitioners often overlook.
• Berk v. Choy: The U.S. Supreme Court's unanimous ruling could further erode California's anti-SLAPP protections in federal court, with significant implications for practitioners.
• Social media as abuse: A June 2026 Second District opinion holds that social media conduct can qualify as cognizable abuse under the Domestic Violence Prevention Act.
• Conflict waivers and fee agreements: Failing to obtain a conflict waiver can void not just a fee agreement but its arbitration clause too — per Jane Doe v. McGrath.

Tenants' rights practitioners: Have you faced an Ellis Act claim where the landlord's intent was the deciding issue? Share your experience in the comments.

One California city has been quietly collecting $5,000-per-incident fines from short-term vacation rental owners. And if the regime is struck down, the city may owe half a million dollars back.

Former constitutional law attorney David Koslow joins Tim Kowal and Jeff Lewis to break down two Appellate Division challenges that expose a structural flaw in how cities administer and collect STVR fines, and why SEC v. Jarkesy may be the tool that finally pries these cases open.

Key points:

• The $1,000 cap hiding in plain sight: Government Code §36901 sets a default $1,000 ceiling on city fines—but Cathedral City and several other Coachella Valley municipalities have been imposing $5,000 first-offense STVR penalties for years.
• Forfeiture swallowed the first case whole: In Montanaro v. City of Cathedral City, the pro per defendant said the fine was "draconian"—but never said "excessive fines clause." The Court of Appeal dismissed on forfeiture. “Draconian,” says the court, is not the same as “excessive.” 🧐
• Jarkesy goes local—maybe: SEC v. Jarkesy (2024) held that the Seventh Amendment requires a jury-trial forum when the government chooses between administrative and court proceedings for civil penalties. Cathedral City can prosecute STVR violations as misdemeanors in court or through an administrative citation—which, says Koslow, is exactly the kind of forum election Jarkesy targets.
• The vendor-as-judge problem: Data Ticket, Inc.—a private company that collects the city's fines—also supplies the hearing officers who adjudicate them. The structural conflict is not subtle, and it has already spawned its own litigation.
• Pro per litigants are walking into a trap: STVR fines are deliberately calibrated below the cost of hiring an attorney, yet high enough to hurt. The result is a steady stream of self-represented defendants making fatal procedural errors that appellate counsel cannot fix.
• The Coastal Commission wrinkle: Coastal cities face a distinct constraint—the Commission treats STVR bans as restrictions on public coastal access, effectively foreclosing outright prohibitions in the coastal zone.

If you advise cities on enforcement program design, represent property owners facing administrative fines, or litigate issues of constitutional preservation and forfeiture, this episode is required listening before your next city council meeting or appellate brief.

Why do writ petitions so often fail? Judge Tom Fay covers the technical writ rules that attorneys often overlook. In part 2 of our conversation with former lead writs attorney at the Santa Ana Court of Appeal, Judge Fay covers the CRC 8.486 and local rule requirements for your writ petition, the available remedies for a writ petition—Palma notice, alternative writ, or OSC—and the underappreciated complexity of supersedeas.

Key points:

• STAY REQUESTED must be on the cover—in bold, all caps: This single line triggers immediate routing to writ staff.
• Palma, alternative writ, OSC each signal something different: A suggestive Palma notice generally means the panel agrees with the petitioner; an OSC may mean the panel wants to write a published opinion and could lean toward the trial court.
• Alternative writs are not law of the case: Roullier v. Cannondale, 101 Cal.App.4th 1180—a trial court that complies with an alternative writ can still be reversed on appeal.
• Supersedeas is a motion for stay, not a true original proceeding: Veyna v. Orange County Nursery, Inc. (2009) 170 Cal.App.4th 146.

Appellate lawyers: what else is on your emergency writ checklist?

Tom Fay spent years as the lead civil writs attorney for California's 4th District, Division 3, processing every emergency petition that crossed the court's threshold. Effective June 29, 2026, he's now Judge Tom Fay of the Orange County Superior Court. We caught Judge Fay between appointments for an inside look at what actually happens when your writ petition hits the clerk's desk—and what separates the petitions that get a panel's attention from those that don't.

Key points:

• Help the court triage: The first question isn't the merits—it's “when is the next hearing and what happens if we don't act today?” Every writ petition is sorted the moment it arrives: same-day, next writ conference, or back of the queue. Make sure your cover page and first page of the petition allow the court to triage.
• Call the clerk before you file: For same-day stays, call the court first. The panel needs three justices, a writ attorney, and clerk staff simultaneously available. A 4:30 p.m. filing without advance notice is nearly impossible to act on.
• 59 days is not an emergency: Waiting until day 59 of a 60-day window sends a signal. Judge Fay calls it "revealed preferences"—if you treated it like a crisis, you would have filed sooner.
• Summary denials are inscrutable by design: A one-liner means the petition is denied and nothing else—not that your arguments were wrong (but that’s a possibility, too).
• “Speaking denials” are intentional: If the court adds a sentence beyond the boilerplate denial, assume it’s deliberate.

We also cover choosing the right tone, and how to frame your harm as irreparable.

Bookmark this one for next time you draft a writ petition.

What about a writ petition is most mystifying? What is your guiding light for a successful petition?

One of just 12 California lawyers dual-certified in both family and appellate law, Lisa McCall has an unusually clear view of how family trial work plays out on appeal. Lisa shares the record‑killing mistakes family lawyers often make.

And with 14 published opinions, Lisa shares about publish-worthy issues and her work on the amicus committee at the Association of Certified Family Law Specialists to clarify the law.

We also discuss recent changes to domestic violence laws, and to the statement of decision procedures.

Key points:

• Statements of decision: Request early. Starting January 2027, you must request a statement of decision before submission—make it the last line of closing—or you lose it. Objections drop to a 10‑day window, and judgments must be prepared within 30 days. (CCP §§ 632, 634).
• 3044 findings: miss them, you lose. Missing written findings on the Family Code section 3044 domestic‑violence custody presumption is treated as a structural error—one of the rare spots where a procedural miss virtually guarantees reversal.
• Offers of proof: get them on paper. When a judge excludes evidence and won’t hear oral offers of proof, preserve the issue with written offers explaining what the evidence would have shown, like in Marriage of Burmeister.
• Smart motions in limine in family court. Broad “exclude everything” motions go nowhere; targeted motions to enforce prior orders or strip out legally improper recommendations are where motions in limine earn their keep.

If your family law case has even a shot at the Court of Appeal, don’t walk into your next hearing blind—listen to this episode first.

John Snow, Director of Legal and Trial Training at the Los Angeles City Attorney's Office and author of Rules to Speak By (Carolina Academic Press, 2026), joins Tim Kowal and Jeff Lewis to discuss what it actually takes to be an effective oral advocate. Snow has tried more than 30 cases to completion in state and federal court and spent years designing trial training programs for lawyers at the LA City Attorney's Office, experience that grounds every practical lesson in the book.

Snow argues that oral advocacy is a rule-governed discipline, not a natural talent, and that the lawyers who appear effortless have simply practiced more than anyone realizes. Drawing on cognitive psychology research alongside transcripts from high-profile trials, he explains how audiences absorb spoken argument and how advocates routinely lose their audience without knowing it. He walks through specific techniques, including the one-fact-per-question rule on cross-examination, slide design that functions like a billboard rather than a script, and how to respond to hostile bench questions without hedging or losing credibility. He also addresses how trial conduct shapes the appellate record, making clear that a single, well-placed sentence at trial can preserve an issue for review.

Drawing on cognitive psychology research and transcripts from high-profile trials, he explains how audiences absorb spoken argument—and how advocates routinely lose their audience without knowing it.

We discuss:

• The one-fact-per-question rule on cross-examination—otherwise you’ll lose the witness, and the jury.
• Designing PowerPoint slides? Think billboards, not scripts
• How to respond to hostile bench questions without hedging or losing credibility.
• The cognitive psychology principles behind Snow's ten rules for oral advocacy
• Cross-examination technique and how precise phrasing controls witness responses
• Handling hostile questions from an appellate panel without losing confidence

What is the single oral advocacy habit you have found hardest to break, even after years in the courtroom?