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.

We also discuss:

• Have a short trial? Volunteer to be timekeeper. Otherwise, your request for a statement of decision may be deemed untimely under the strict rules for trials under 8 hours.
• Suing for unfair business practices? Double check standing based on “injury in fact,” and consider the conflicting arguments in the majority and dissent in Lagrisola v. North American.
• Opposing counsel stepping over the line of “zealous advocacy”? Court of Appeal calls out counsel in a recent case, but no sanctions—perhaps because respondent did not file a motion?
• A strange example of a moot appeal leading to a summary REVERSAL.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• **Can a respondent forfeit issues by failing to brief them? A bizarre opinion says yes. Baltazar v. ACE Parking Mgmt. (D4d1 Oct. 26, 2023 No. D081483) [nonpub. opn.]
• **Failing to log the length of trial leads to appellate loss. Lewis v. Reptile Factory, LLC (D2d3 Oct. 12, 2023 No. B324197) [nonpub. opn.]
• Dissent would invalidate loan where lender is unlicensed. Lagrisola v. North American (D4d1 Nov. 3, 2023 No. D080758)
• **“Bulldozer” advocacy moves dirt but not minds. Tedesco v. White (D4d3 Oct. 27, 2023 No. G061197) [nonpub. opn.]
• **Where a moot appeal means summary REVERSAL. People v. Pickens (D2d7 Nov. 9, 2023 No. B320704) [nonpub. opn.]
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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 appellate bonds, such as:

• Plan ahead: Before judgment is entered, give the client time to set aside collateral for the bond.
• Manage expectations: Judgment interest in California is a hefty 10%, and the bond premium ranges from a quarter percent to 4%, with most premiums being about 1%.
• Consider a letter of credit: If the client has a strong relationship, the bank may issue a letter of credit—which avoids the need to tie up collateral.
• Was the judgment amended to add fees and costs? Instead of getting a new bond, consider a rider or a separate bond.
• Don’t wait! There’s no deadline to post a bond, but waiting can lead to assets getting seized or liened on.

Dan Huckabay’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Ep. 46: Time to Collect: Joseph Chora on the Most Important but Least Understood Area of Law
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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 committed to your first draft. Just get into a flow state—keep the cursor moving!

🧠 Your reader allots you a very limited attention span or “working memory.” Budget wisely by cutting “research dumps,” and by using direct, familiar language.

📗 Don’t cite every authority. “The quality of your citations matters more than their quantity.”

👨‍💻 Make tech support your writing. Use keyboard shortcuts. Use text expansion. Get efficient. What would you think of a tradesperson who doesn’t understand the tools of the trade?

What is Ryan’s stance on the “cleaned up” parenthetical? You will have to listen to find out!

Ryan McCarl’s bio, Elegant Legal Writing product page, Elegant Legal Writing blog, Twitter, and LinkedIn.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Purchase Elegant Legal Writing.
• Episode 24 with Ryan McCarl.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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 opening to get a reversal.

😎 If the court judges a party’s credibility based on whether they use an interpreter, that’s reversible error.

😎 If the court issues a restraining order based on a single act, that’s reversible error.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Refusing an evidentiary hearing on contested probate matter is error, and possibly structural error: Barbey v. Pnc Bank, N.A. (D2d6 Oct. 10, 2023) No. B325472 (nonpub. opn.)
• Lack of statement of decision leads to reversal: Casa Verde Landscaping Maint. Corp. v. Lennary Cmtys. (D4d1 Oct. 24, 2023 D081550) [nonpub. opn.]
• Arbitrator reversed for basing credibility on use of interpreter: FCM Invs. v. Grove Pham, LLC (D4d1 Oct. 17, 2023) No. D080801.
• Restraining order against an attorney must be based on multiple instances of non-litigation conduct: Hansen v. Volkov (D2d7 Sep. 18, 2023) No. B311524 (cert. for pub.)
• You still need a reporter's transcript even if nothing happened at the hearing: Olague v. United Care Facilities, LLC (D2d5 Sep. 29. 2023) No. B323075 (nonpub. opn.).
• After Adolph v. Uber, parties “accept the inevitable” and stipulate to reverse: Stiger v. Providence St. Joseph Health, No. B326999 (Cal. Ct. App. Oct. 20, 2023)
• Ross v. Seyfarth Shaw LLP (Sep. 29, 2023, B312337) [pp. 26-27]
• Landlord’s counsel sanctioned for brief with made up cases
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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: The 9th Circuit used a “comeback” procedure to send a case back to the same en banc panel that heard the case before the Supreme Court’s new Bruen test. The Procedural Trick: Judge Nelson says this “disenfranchises” other circuit judges who will be cut out of any say on how the old panel approaches the new Bruen test.
• Abortion Rights: After a 3-judge panel granted a stay motion, thus staying a district court injunction of Idaho’s abortion ban, the 9th Circuit voted to rehear the matter en banc, and thus re-implemented the district court’s injunction (meaning abortions may go forward despite the law). The Procedural Trick: Now that the en banc has taken up the motion, it will likely hold on to the case on the merits, too. That means expedited briefing and decision, and no possibility of further en banc review.
• En banc review granted where the 3-judge panel vacated a sentence because a prosecutor breached a plea a greement.
• En banc review denied, despite 11 judges (very close to a majority) who would have granted.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Gun Rights: Duncan v. Bonta, No. 23-55805, at *6 (9th Cir. Oct. 10, 2023)
• Judge Van Dyke’s cheeky “concurrence” to his own majority decision last year in McDougall v. County of Ventura. (Ep. 26.)
• Suspended Judge Newman Discusses Her 'Proclivity of Dissenting' at ABA Event
• United States v. Idaho, No. 23-35440 (9th Cir. Sep. 28, 2023)
• United States v. State, No. 23-35440 (9th Cir. Oct. 10, 2023)
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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 leaving the CM/ECF system, in favor of a new, more secure, and fully web-based (not plugin-reliant) system called the Appellant Case Management System, or ACMS.

The 9th Circuit is also saying goodbye to remote oral arguments. Starting January 2024, all oral arguments will be in-person, unless you make a showing of hardship.

Want meaningful work and oral argument experience? Apply to the 9th Circuit Pro Bono Program.

We discuss other 9th Circuit inside baseball, like hyperlinked briefs.

Susan Gelmis’s LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Here is the link to the efiling in ACMS page that has information and instructions and training videos about the new system https://www.ca9.uscourts.gov/efiling/acms/
• Administrative Order Regarding ACMS: https://cdn.ca9.uscourts.gov/datastore/general/2023/06/16/Admin-order-final-June-2023.pdf
• ACMS Portal: https://ca9-portal.powerappsportals.us/
• Oral Argument Protocols here.
• Here is a link to information about the pro bono program: https://www.ca9.uscourts.gov/probono/
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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 based on general historical contacts, even though not connected to the claims in the case. Judge Van Dyke dissented, calling the majority’s holding “potentially the most radical reimagining and expansion of specific jurisdiction in decades.”

We also discuss:

• Impeachment evidence improperly excluded at trial? Published authority says this is per se reversible, but a new case calls it harmless error. It’s not published, but its reasoning is sound.
• Seeking costs-of-proof attorney fees because your adversary denied your RFAs? Some cases grant these fee motions liberally, but two recent cases caution that more precision is needed.
• Appealing on a pure issue of law? You still need an oral record on appeal. Denial of petition to compel arbitration affirmed because of the lack of a reporter's transcript.
• Startling: Ex-husband took out a life insurance policy on wife, naming himself beneficiary. Also startling: Court ordered him to change the beneficiary to wife’s favorite charity, and keep the policy current.
• Uncivil attorney got a 40% fee cut. “Incivility between counsel is sand in the gears. … Excellent lawyers deserve higher fees, and excellent lawyers are civil.”

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Specific Jurisdiction May Be Based on Past Contacts with Forum, Says 9th Circuit Panel over Judge VanDyke Dissent. Impossible Foods Inc. v. Impossible X LLC, No. 21-16977 (9th Cir. Sep. 12, 2023).
• Exclusion of critical impeachment evidence held harmless error because the totality of evidence supported the judgment. People v. Bingham (D1d5 Sep. 26, 2023) No. A163112 (nonpub. opn.).
• Uncivil attorneys get a 40% fee haircut: Snoeck v. ExakTime Innovations, Inc., (D2d3 Oct. 2, 2023) No. B321566 (nonpub. opn.), discussing Karton v. Ari Design & Construction, Inc. (2021) 61 Cal.App.5th 734.
• Olague v. United Care Facilities, LLC, No. B323075 | Casetext
• Parris J. v. Christopher U. (Oct. 4, 2023, B313470)
• Videos will be posted at Tim Kowal’s YouTube channel.

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 legal question.

🗣️ Give direct answers to the panel’s questions.

🗣️ Don’t read your argument. The judges have enough of what you’ve written. Now they want to hear what you say.

🗣️ Give a different spin—don’t just repeat what you said in briefing.

🗣️ Concede weak arguments.

🗣️ Just be a friend of the court: be polite, don’t interrupt, and try to help the court do its job solving the problems in your case.

Kyla Dayton’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Tim’s LinkedIn post “crowd-sourcing” oral argument tips.
• The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion, with MC Sungaila.
• Concede Weak Arguments, Gain Credibility, Says Justice Lambden
• Justice Thompson on Effective Oral Arguments: Give a “Different Spin”—And Answer Questions.
• Don’t read from your notes, via Adam Unikowsky relating a story when the Supreme Court stopped an advocate by asking, “Counsel, are you reading this?”
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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 Podcast, we discuss a recent 9th Circuit decision holding that denials of anti-SLAPP motions are immediately appealable as collateral orders. We also discuss:

• Judge Bress’s criticism of the cases treating anti-SLAPP denials as collateral.
• Anti-SLAPP motions were designed for the powerless, but the City of Inglewood successful used it to strike an employee’s retaliation complaint.
• How you can lose your arbitration if you don’t pay the arbitrator fees in 30 days—and “the check is in the mail” doesn’t cut it.
• A judgment issued in a sum not previously noticed is void and may be set aside at any time, but a sanctions order issued without notice is merely voidable, and may be set aside only within 6 months.
• Filing a notice of appeal in Los Angeles County Superior Court? Now you can pay your fees online. (Finally!)

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Doe v. The Superior Court (D1d3 Sep. 8, 2023) No. A167105 (Tim’s writeup).
• Martinez v. ZoomInfo Tech. Inc., No. 22-35305 (9th Cir. Sep. 21, 2023) (Tim’s writeup).
• In re the Marriage of Jensen (D2d2 Sep. 5, 2023) No. B320565 (nonpub. opn.) (Tim’s writeup).
• United States v. Sapalasan, No. 21-30251, 2023 U.S. App. LEXIS 23820 (9th Cir. Sep. 7, 2023) (Tim’s writeup).
• New payment option for paying $775 appellate fee
• How 'Purely Legal' Issues Ruling Applies To Rule 12 Motions
• Brown v. City of Inglewood, No. B320658 (Cal. Ct. App. May 31, 2023)
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

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 to it so you can ask it questions: “When did the defendant first get notice of plaintiff’s claim?” “Where is the evidence of defendant’s bad faith?” “What are the plaintiff’s expert’s opinions?” Clearbrief will take you directly to the page and line of the document that supports your facts.

And its new timeline feature is a game-changer: feed Clearbrief a pile of documents with unorganized facts, and it will give you a chart showing the timeline of relevant events, complete with hyperlinks showing the page and line for each.

Judges are now using Clearbrief to write their opinions.

And did you know? Legal-writing guru Bryan Garner was Clearbrief’s first angel investor.

Jackie Schafer’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Clearbrief.com
• Bob Ambrogi: New AI Features In Clearbrief Create Hyperlinked Timelines And Allow Users To Query Their Documents
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.