When a cadre of appellate nerds began the California Academy of Appellate Lawyers (and Eating and Drinking Association) 50 years ago, the state appellate system was not functioning well.
Ben Shatz joins Jeff Lewis and Tim Kowal to talk about the founding of CAAL, where appellate jurists and practitioners could speak frankly about the problems in the courts, and how to solve them.
And following CAAL’s founding, says Ben, the related flourishing of state and local bar sections and publications devoted to appellate practice ushered in a golden age of appellate practice in California.
Ben also shares his brief-writing process, and whether you should use the blue book or the yellow book.
Appellate Specialist Ben Shatz’s biography, LinkedIn profile, and blog, SoCal Appellate News.
Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.
Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.
Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.
Other items discussed in the episode:
The podcast is sponsored by CaseText. Podcast listeners receive a 25 percent lifetime discount if they sign up for CaseText at https://casetext.com/calp/. Casetext has search tools built on innovative AI to help you perform faster, smarter legal research and writing.
Ben Shatz 0:03
you nerds should have a nerd club, you should just have some special place where dorks like you can get together and talk about this stuff that only you care about.
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis. Welcome, everyone.
Jeff Lewis 0:26
I am Jeff Lewis.
Tim Kowal 0:28
And I am Tim Cole wall California Department of podcasting license pending review of my blockbuster rental video history. In each episode of The California appellate law podcast, we talk about trial court things and appellate court things both Jeff and I split our practices about evenly between trial and appellate courts, and we try to bring some insight from both of those venues to our listeners.
Jeff Lewis 0:48
All right, welcome to episode 36 of the podcast and a quick announcement. This podcast is sponsored by case text. Case text is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find case authority fast. I've been a subscriber since 2019, and highly endorsed the service listeners of the podcast will receive a 25% lifetime discount available to them if they sign up for case text at case text.com/scalp. That's case, Tech's dot com slash ca LLP.
Tim Kowal 1:17
All right, Jeff. And I know for a fact today that there are no important appellate seminars happening and you know how I know that it's because we have been chats with us today and no important appellate seminar has happened with our bench chats, moderating or participating on a panel. Ben Schatz is a certified specialist in appellate law. He's handled hundreds of civil appeals, writs and petitions and in courts, including the United States Supreme Court, the United States courts of appeals, California Supreme Court and the California Courts of Appeal. Ben served as a law clerk to the Honorable Robert Johnson for the District of Nevada, and as an expert X turned to the to judge Dorothy Nelson of the United States Court of Appeals for the Ninth Circuit. Ben publishes everywhere, including California litigation, California lawyer, Los Angeles lawyer and CB civil litigation reporter. He writes the exceptionally appealing column in the daily journal. He's editor in chief of California litigation, and He is the proprietor of Southern California appellate news, a key source of appellate news for this podcast, and not to mention judges and attorneys throughout the state. And as relevant to what we'll be talking about today. Ben is a member of the California Academy of appellate lawyers. So welcome to the podcast. Ben, we're so pleased to have you with us today.
Ben Shatz 2:34
Thank you, gentlemen. Happy to be here and happy to speak to whoever is in your audience who likes to talk about appellate nerdy stuff?
Tim Kowal 2:41
Well, you are a self proclaimed appellate nerd as the as our Jeff and I and so we're yeah, we're just delighted to be able to talk about some of these things and you have some insights that we certainly don't have and like to try to pick your brain about him. Shoot. Alright, well, well, first, let's get let's get some some of your vitals for our audience who might not as we mentioned, our audiences split about half between appellate attorneys and trial attorneys. Appellate attorneys certainly will know you from from appellate conferences. I owe you my I owe you a lot of credit for becoming a certified appellate specialist because I took all your Pincus seminars.
Jeff Lewis 3:16
Yeah, let me add Ben is the but for and proximate cause of my certification as appellate specialist, those recordings on Pinkus were invaluable. So thank you.
Tim Kowal 3:25
Okay. So I've been how many years you've been in practice? About 30 years? And would you rather be in state court or federal court? what's your what's your preference?
Ben Shatz 3:35
Oh, I'm happy either. I've considered myself fluent in both federal appellate practice and and state appellate practice.
Tim Kowal 3:42
What about Would you rather be the appellant or the respondent or in in federal parlance, the appellee.
Ben Shatz 3:49
I like to win. So I suppose statistically, it's better to be the respondent to APA Li. But, you know, it doesn't matter. You know, what matters is a good appeal something to really sink one's teeth into.
Tim Kowal 4:01
Yeah, yeah. What what what gets your motor running in terms of a good appeal, what the what cases are walking in the door that that you're you're knocking people down to get to and say That's mine, I claim it?
Ben Shatz 4:13
Well, it's always fun to have some kind of issue of first impression, some statutory language that's a little bit vague, sometimes even contractual language, which has been messed up and some really good arguments on on both sides. issues that have some depth, I think are enjoyable.
Tim Kowal 4:32
I had this question for you as well, because you've hosted and participated in so many appellate law conferences. Are there issues or problems that come up so often that it suggests to you that maybe California's appellate rules are maybe too complicated? We've I've talked, I've talked with appellate attorneys who also do both state and federal practice. And they've commented to me that, that the state rules may be roughly similar In the end to federal rules, but they tend to be much more complicated. Is that your experience? And are there? Are there subjects that you think the main may need to be simplified?
Ben Shatz 5:09
I'm not sure I would, I would say that it's too complicated. I would just say that it is complicated. And really what you're saying is, you know, kick in our legal system be improved? Well, of course, it could be improved. And borrower organizations play a big role in that, constantly trying to come up with with better rules, clearer rules, simpler rules, trying to attack or clarify rules or doctrines that exist that that are problematic. But you know, I don't think the biggest problem from my perspective is that appellate practice is too complicated. I think that maybe too many lawyers are too simple. In other words, it's the lawyers that are making the mistakes, the law is out there, right? Like you don't appeal from an order sustaining a demurrer. Right. And yet, lawyers constantly do that. And I don't blame the system for having rules about appealability. And lawyers, just not understanding them and getting themselves into trouble. Which isn't to say it doesn't work both way. I mean, there are definitely instances where things get a little bit too complicated. And maybe they should be be simplified. Yeah,
Jeff Lewis 6:17
the rules for calculating the time to appeal following a motion for new trial and those rules, I still get triggered about studying for the certified appellate exam with the crazy permutations there. That's an area where I would love to see it simplified.
Ben Shatz 6:32
And some of those have been extended recently, to create a little bit more time. But yeah, I mean, that well, that that intersections are always the most interesting part, right? The intersection between the trial court and the appellate court, the post trial motions, that's where things get especially tricky, and maybe that would be a good area for additional simplification. So, you know, I'm not trying to fight your question too much. But I do think that it's, it's a little bit loaded, because, you know, we have a complicated jurisprudence in the state. And you can only simplify it so much. I know that the judge Karnow in San Francisco recently wrote a daily journal piece, talking about how, you know, things are too complicated, generally, and focused on appellate practice and, in particular, so you know, that that view is out there. It may also be that having lived in in the pellet bowl pellet fishbowl for 30 years, you know, I'm not seeing the water, because I'm so used to drinking it.
Tim Kowal 7:29
Yeah, I appreciate that perspective. And something you said about some attorneys maybe not being sufficiently attuned to these important appellate procedural issues and rules was a segue to this next question I had which was, Can Can trial attorneys who are not appellate specialists, or were don't have any, any particular don't have a lot of experience in appellate law, let's say, Can they still give top quality appellate advocacy? Or do you think that that having an appellate specialist in your back pocket is a necessity?
Ben Shatz 8:02
Well, that's a loaded question. I you know, as an appellate specialist, I believe in appellate specialists, and I do think that that's very helpful. But but but can you can your average lawyer do a good job on appeal? Sure, that can happen. You know, Steve Carlton was a great pitcher for the Phillies, and he can hit. I mean, there are people who have multiple talents. There are pro purrs, that went appeals. So you know, yeah, anything can happen. Right. But you know, you've got to play the statistics. So statistically, I think you will get a better appellate project. If you use somebody who does a lot of Appeals, and the reason that the appellate specialty was created by the State Bar was to allow the public to try to choose somebody who has at least a certain amount of quantitative experience.
Tim Kowal 8:53
Well, this is a an appellate law podcast. We're all appellate specialists here. So we've got a I've got to make some opportunities for us to do some commercials here. So you may call it a loaded question. I call it an opportunity to advertise our services. So something else you mentioned about the value of Bar Association's gets on to what we had you here to talk about. And on a recent episode, we talked with another guest about the value of bar associations because they can keep us aware of what kinds of questions judges might be looking to resolve. And then you just published an article in the Daily Journal about the association that's at the top of the California appellate pyramid, and that's the California Academy of appellate lawyers. The daily journal article is happy 50th anniversary towel. And for our listeners who don't know about the Academy, a brief description from the Academy's website, the California Academy of appellate lawyers is an election only organization devoted to excellence and appellate practice. It fosters networking in the best sense meeting interesting and committed colleagues and judicial officers in congenial settings for everyone. and learns, and many developed both referrals and lifelong friends. So our listeners will certainly be familiar with their local Bar Association's appellate sections. For example, LA County, for example, has an appellate Law Section, then how is the California Academy of appellate lawyers different from your from from your local Bar Association's and appellate sections?
Ben Shatz 10:20
Well, the Cal Academy to begin is the oldest organization devoted to California appellate practice. And frankly, it's the oldest organization devoted to appellate practice in the entire country, arguably with the exception of an earlier group that was founded in Illinois, but but that was doing something a little bit different. And that was not an election only organization. So in terms of of gathering pellet nerds together, the Cal Academy was the beginning. It was before there was anything with the State Bar or with the any of the local bars. And the story recounted in my article is, you know, one day you have two guys, two guys who actually are quite famous in California legal history, Ed Lasher. And Gideon canner and Adam Gideon are sitting around and Gideons office one day, and they're doing what we're doing right now, they're going to talk about some really geeky appellate doctrines, and they're getting deep into into appellate activities, and, and getting his partner Jerry fatum. runs by because fatum is always in a in a hurry to go somewhere. And he you know, he looks at them for a second and says, you know, you nerds should have a nerd club, you should just have some special place where dorks like you can get together and talk about this stuff that only you care about. And, and took that comment to heart. You know, it was a little bit scornful, but it was also a little bit spot on, which is, well, yeah, why isn't there an organization where people who really care deeply about appeals and appellate practice and appellate process can get together and talk. And and so that started the idea of, of trying to create such an organization. And it's not easy to get something off the ground from from nothing. But ad went on a letter writing campaign. And he started writing to the lawyers around the state who he knew and who he had heard of, were appellate specialists of the sort. And remember, there was no appellate specialization, way back when so I mean, it was all sort of word of mouth and what you would read in the advance sheets in terms of who was who was doing good work, and who really was at the top of the game in the appellate world? And wouldn't it be fun for these guys to get together. And again, mostly, it was guys, there were not women involved at this time. And and there was something else going on. And that was that there wasn't very much interaction between the practicing bench and practicing bar and the and the bench. And there were especially on appeals. I mean, there just were no opportunities where appellate justices and appellate lawyers would ever get together and talk to each other about anything. So there was a tremendous disconnect there. And that was incredibly troubling to the practitioners, because they definitely had messages they wanted to get to, to the bench. But how do you do that? Right? It's hard. So you know that some polite inquiries were made to a number of the justices. And any and a cocktail party was had a State Bar convention where some of these early founders could get together. And they invited some of the justices and said, you know, what do you think about an organization where appellate lawyers can get together and include you, and you can come with and talk to us as well. And the reaction from the bench was overwhelmingly positive. They all said, that sounds like a damn good idea. Right? We would like to talk to you as much as you would like to talk to us. And we would like your help, because we have some problems that we need to address. And I'll get to that in a minute. So yes, by all means, you should plunge forward and do this. And by the way, when we say you know, get together and talk, we mean sabrosa, right? We don't mean like writing letters in the daily journal for everyone to see what we're talking about. This is more like, let me pull you aside and tell you, I think there is a problem here with this particular person or a chord or doctrine or something that really should be thought about and discussed. And again, it went both ways. And so the idea was, it would be nice to have a forum for people to have intimate conversations. And that was something that really helped the academy and persist to this day, you know, the Academy had used to meet in Ojai regularly. And the reason they picked Ojai was that it was sort of remote. And if you have the justices and the lawyers come out to meet in Ojai, they couldn't escape. They weren't gonna go run off to some other place, you know, and hang out with some other people and do things. They were there, and they were there for the duration. You know, they were there for the weekend. And the point is that they could If they could get together and be social, let their hair down, take their robes off and tell it like it was. And what happens in Ojai stays in Ojai, you know, so that the conversations that were had, were private, but effective and designed to lead to changes out in out in the, in the public world. So that's, that's really part of the genesis of the academy. And that continues to this day where judicial guests come to Academy meetings, and they know that that they are free to say whatever they want to say, and that the practitioners Also feel free to say what they want to say, and that none of that ever leaves because the confidentiality is in place, everybody can be trusted. And everybody there is there for a reason. They're there on the judicial side, because they're invited guests, because they're there appellate justices, and the lawyers who are there, our Academy members, meaning that they have been vetted, their work has been evaluated for not just quantity, like the State Bar specialization, but really quality. You know, it's not just that you know, all the rules, but are you a really outstanding appellate practitioner, that's sort of the and the point of that is, you've reached that level, where you don't need to worry about basic stuff, you know, we can talk about the most detailed, most nitty gritty, high level ideas, without, you know, worrying about any sort of background. And so it's just sort of an elevated approach. And so, you know, that history of the academy, in part answers your question about, well, how does the Academy, which is, you know, statewide, differ from your local county bar organization, you know, your local county bar organization is open to anybody who wants to come. And it's a great place for lawyers who don't have a lot of appellate experience, or who want to start building up their practice, to join and to get involved. And that's where I started my appellate career. In the in the early 90s, I joined the LA County Bar Appellate Courts Committee, and I went to meetings for 10 years, 10 years straight. And eventually, I got on the leadership rank there. But I mean, that was that was my way to meet people learn about the appellate world, see, who was you know, in and about the appellate community of Los Angeles. And the County Bar organizations, of course, have a focus on doing MC LA, because they want to provide a service to their members, not just in, in networking, but also in in educating and teaching. And they have a relationship, presumably with their local appellate bar, so that justices and judges will go to, to their events and speak. But you know, those meetings are generally sort of business and business type MC le, type focus their public meetings. And so there's always a little bit of recognition that you know, what anything I say here gets out there. So, you know, I'm going to be a little bit cautious about about what we're going to say. And also the level of discourse in meetings like that can range from the extremely basic to the extremely arcane, whereas the academy is trying to just focus on the, on the extremely arcane. So so those are, those are a couple of the, of the differences. And also, you know, depending on how a County Bar functions, there may not be the same level of social interaction. Whereas the academy was originally designed purely as a social mechanism. In fact, the the when they were trying to figure out what to call it, one of the early names was going to be the the appellate lawyers eating and drinking Association.
You know, because you need to change the name. Yeah, well, and there's still a lot of that, that takes place. But that was the idea was to have some fun event during
Jeff Lewis 18:43
a COVID. Were you able to have the functional equivalent of a, an Ojai meeting on Zoom did those meetings to lap in virtually
Ben Shatz 18:52
the academy whether the the COVID pandemic just fine in the same way that the appellate courts and most other organizations did, which is to say that they moved online. And the the, by the way, the American Academy of appellate lawyers did the same fact, the meeting meetings were held virtually, and there are advantages and disadvantages to that. We don't need to discuss it, but because of that, that's all been beaten to death. But But yes, the Cal Academy persisted in its activities, be using Zoom platforms and things like that.
Tim Kowal 19:24
What's the need for the vow of confidentiality for the for the academies meetings?
Ben Shatz 19:31
Because we want people to feel free to express themselves I mean, that again, that was the whole point of it. You know, I mean, anybody can write a letter to the to the legal newspaper and say, you know, I'm really upset about such and such but it's different when you can have a conversation and and the level of comfort and trust that that makes a big difference. I mean, that's always been part of how the how the Academy has operated and it makes a lot of sense because it provides for candor. on both sides. And by the way, I should mention, you know, I'm not an officer of the Cal Academy, I'm not here to speak in any official capacity or make any statements on behalf of the Academy. I'm just here to, to answer questions about the, you know, what the Academy does, and where the, you know, how the academy got to, to where it is. And, and frankly, the academy was something that was always on my radar screen from the time that I first started practicing. You know, Gideon canner was one of my first mentors and Reed hunter who was an early president. And and the the firm that I began with at the old Crosby Heafy firm is filled with a calot Academy members and past presidents and, and so I always knew that, you know, if I'm going to be an appellate lawyer one day, I really want to be in the academy. But my perspective is different. I think most lawyers, including appellate lawyers, they might not have ever heard of the academy, they might not know anybody who's a member, because it is a relatively small group. And it would be nice for more people to know about the academy, there is a website. And so, you know, it's not that the academy itself is meant to be secret. Quite the contrary, the academy welcomes applicants who are qualified to apply to be evaluated.
Tim Kowal 21:18
Now, Ben, you mentioned that, that when Gideon Kanner and Ed Lasher, in the other founders of the academy approached judges about maybe being a part or at least being invited to the academy meetings, they were overwhelmingly receptive and said that we want to talk with the with the bar as much as you want to talk to us. What kinds of what kinds of things did the judges want to communicate to practitioners?
Ben Shatz 21:44
Well, the you know, there are always problems everywhere, right. I mean, the one of the things that the the bench wanted it to get across early in the early days was problem number one, the level of appellate practice is pretty bad. You know, generally back in the in the 70s. And earlier, you know, most lawyers just really didn't know much about appeals didn't know what they were doing. The resources that exist today did not exist, right. I mean, there was no router guy, there was no Internet, there was no, I mean, basically, lawyers had no idea what they were doing. And so one of the things that the appellate bench wanted was for some group to get out there and teach people how to do appeals. Now, the academy did not necessarily take that on. Right, the academy was not interested in becoming the educational institution of appellate practice, because again, that wasn't its point. Now, that's more to the point of other bar organizations like the local organizations to try to up the game and educate, which isn't to say that the academy doesn't do CLE programs, because it does, it does lots of CLE programs, but they're, they're huge, but they're different than the sorts of programs that you see that are out there today. And again, there wasn't no MC le industry out there, because there wasn't no MC le requirements that existed, right. I mean, so you know, we're taking this way back. So what else were the justices concerned about? They had institutional problems. The judiciary was very small, very underfunded. And there were a lot of problems with the way that the appellate courts were being run, and going back to those decades, and they wanted help from the bar, not just to up the level of appellate practice, but to you know, maybe bang the drums and say, you know, the appellate courts need more help. They need to be structured differently. They need more funding from Sacramento, I mean, just all kinds of facts. And I'm sure there were plenty of substantive issues as well. So so there were a lot of problems with the timing of appeals. I mean, we think we have slow appeals now. I think it was particularly bad back then. And in fact, it was so bad that right around the same time, the State Bar created the its committee on appellate courts, and assess, assess. Huff Statler was the first chair of that, and I've written an article about the history of that group as well, although I did not go into the details of its genesis, but essentially, everybody in the state felt that the appellate court system simply was not functioning well. So the State Bar committee gets together, and they start coming up with proposals and they start publishing these papers. And you can you can read them of historical note, and they were proposing some very radical changes to the way that appeals would function. They were proposing another layer of appellate courts. They were proposed. I mean, they were making mega changes, at least proposing them right. And that also helps energize the practicing appellate bar, because the early founders of the academy were looking at these as they were coming out and saying, This is outrageous. There is no way that we want the appellate court system in the state to be changed. So right so drastically, and the you know, a lot of those proposals were didn't go anywhere, but I think that that was all So a factor in creating the academy getting people motivated to we need to get together and say something about these proposals that the State Bar committee is throwing out. Because there are a lot of problems with it. And also around the same time is when groups like the LA County Bar committee on appellate courts, you know, several years after that came into existence, because it was recognized that there were problems, there were things to be talked about. And we you needed to get the right people together in a room to figure out ideas and get those ideas to the right places.
Tim Kowal 25:34
So I think that gives us a sense of what you what you're saying in your article, when you say that there was something in the air at that moment in time a deep seated concern about the functioning of the appellate courts. And so after the advent of the academy, and, and other in other bar groups, both at the state level at the local level, we started to see some more participation, some more, I guess, integration or communication between the bench and the bar. And what it was was this was just the beginning of a kind of a flourishing. Did that did that usher in the golden age of appellate law in California? Well, I
Ben Shatz 26:13
suppose you have to say yes, I mean, look at where we are. Now, we have, you know, State Bar certified specialties. We have bar groups all around the state, at least locally, in many places that are focused on on appellate practice, the Academy has continued on doing what it does. And the State Bar Committee, which which was always a very small committee, you know, it started off, as you know, about 15. Lawyers sort of handpicked to address these problems. That committee extends to the divorce of between the State Bar and CLA has now become the Committee on appellate courts within the litigation Section of the California Lawyers Association. And I'm involved in that group too. And one of the things that they're working on we're working on is creating something called the appellate practice network, which we're hoping to get off the ground. And the idea for that is there still is not in California, a a home for any lawyer who wants to become involved in appellate practice, at the statewide level, you know, you can join your County Bar organization, and if your County Bar has an appellate court section, well, good for you, you have a home. But what if you're in a county that doesn't have enough appellate lawyers? You know, we've got 58 counties, and you know, the ones with the most active appellate communities la San Francisco, San Diego, Alameda, I mean, that's great for those lawyers. But what about everybody else? You know, and CLAS mission is to serve all lawyers and California. And even if you are active in your local community, what about being able to contact people in other districts where you don't practice? You know, so why shouldn't there be a group that is a statewide, publicly open organization, and that's what the CLA committee is designed now to be? It's evolving into that and when this appellate practice, network idea takes off, any lawyer can can join CLI, and then we'll be able to join this Appellate Group, and they're hoping to have a listserv so that you can ask questions, and get answers from people all over the state. Now, the academy already has that, right? The American Academy has that. And a lot of the local groups have that. But yet, as I pointed out, you're still not covering all the people who could benefit from that.
Tim Kowal 28:31
I think what I'm hearing when I hear you talk about the Academy and the flourishing of all these new bar associations is it sounds like a vindication of the Bob Putnam thesis Bowling Alone, where he talked about kind of the disintegration of a culture is when people stopped joining groups and and what I'm not hearing is that there was any particular rule or policy or program put in place, it was just let's just get attorneys talking to each other, let's get the the appellate attorneys talking with the appellate judges and, and that that fostering of communication between the bench and the bar and, and in within our practice groups, advanced the cause of of educating our bar and improving our court system without having an agenda, so to speak. Is that, is that fair? Is that a fair summation? Sure, absolutely.
Ben Shatz 29:19
I mean, and we are living in the golden age of appellate bar organizations.
Tim Kowal 29:26
Now, I want to ask you, now that I've mentioned that, that the academy is not about any particular program or policy, but today, does the academy or or members of the Academy have not to not to breach your your vow of secrecy, but there are there any issues that the Academy has its eyes on like John Eisenberg, for example. Over the last couple of years have been the effort to try to alleviate some of the congestion in the Third District Court of Appeal in particular and wonder if the if the academy had any any role in that or opinions on that? Or is there a role for the, for the Academy to play in those kinds of problems?
Ben Shatz 30:06
Well, the Academy has a website, and you can go to the website and part of the one of the links on the website will allow you to see the various letters and briefs that the Academy has written over over many decades. Any issue that affects appellate practice, civil or criminal, you know, the Academy has both are of concern to the academy. So obviously, what's happening or what, you know, what's been reported about the third district? Yeah, the academy is interested in that. They're interested in big issues. They're interested in small issues. And we write lots of letters. So you can look on the website and see, you know, what sort of issues the academy is is interested in? It's not necessarily and it's not, it's not substantive, right. The academy is not a a defense bar organization or a plaintiffs bar organization. Where is this or that? You know, it's all about the appellate process that in and of itself.
Tim Kowal 31:02
Now, Ben, what kind of attorneys make up the California Academy of appellate lawyers? Are they are they mostly big law, law firm attorneys? Are there small private practitioners involved in the academy? Well, that
Ben Shatz 31:16
again, if you go to the website, you can pull up the membership. And you can see everybody, and it's funny that you mentioned big law, I would think that, you know, the big law lawyers are a very small, very, very small part of the academy. If you think about how appellate practice developed, you know, again, going back to the beginning, it was solos and small, firm lawyers, which was, again, one of the reasons why they really wanted to get together and find each other, and talk to each other. And, you know, one of the early founders was Ellis Horvitz and Ellis, you know, he put his money where his mouth is, in the sense that he didn't just help, you know, with with the academy, but he founded an appellate boutique, right, he founded the first appellate boutique. And the current membership of the Academy, I would say is split. You know, maybe roughly into thirds. You know, there's a lot of lawyers who work in boutiques, and there are a number of boutiques, small to large for boutique size, there are still a lot of solos, and there are some big law lawyers. But you know, it's if there's a perception that the academy is all about, you know, a big law, fancy lawyers, you know, not at all that is that is wrong, that doesn't accord with the history, or the or the development or, you know, where we are today. So, you know, take a look at at who was on the on the membership, and I think you'll see there plenty of folks who are practicing out of their, their garage, so to speak, you know, that, and they're there. They're amazing appellate lawyers,
Tim Kowal 32:45
the Academy has somewhere around 100 members, is that is that about the right size? It seems fairly small for a state as large as ours with as many attorneys as we have? Is it meant to be a small a small group to maintain that collegiality, or should it be bigger is Academy looking for more members?
Ben Shatz 33:02
Well, the academy is always looking for more members, right? The Academy wants to have the very best, it's like men and black, the best of the best of the best, right? I mean, if that's you sign up and and and see if you're accepted, right. But there's nothing in the academies Constitution that says, you know, this group shall be limited to X number of lawyers. So in that sense, it was not like the old state bar committee used to be limited to 17 lawyers across the state. So it was really hard to get on to that committee, you'd have to apply year after year and hoping that one of the spots would open up. The academy is not looking for membership on that, on that basis. It is not quantitative. It's purely qualitative. Now, you question the the number of lawyers Well, I mean, how many certified appellate specialists are there in California? 600. Okay. Okay, so now if the county Yeah, if the academy, as you say, has 100 members, you know, and I don't know if that number is is right, but it's probably roughly right. You know, that doesn't strike me as as too few.
Jeff Lewis 34:04
By the way, it used to be about 300 members, and then the State Bar relaxed the experience requirements to be eligible to take the test. And then I noticed a jump from 300 to 600.
Ben Shatz 34:16
Okay, yeah, I mean, because that I was gonna say I thought it was about 300. But, you know, for the for the State Bar. Certification is a moneymaker. That program makes a million dollars a year. So they are very eager to have people pay to take the test, pass the test, and then continue to pay their annual dues. Not to Yeah, license fee to pay their license fee with the certification kicker.
Jeff Lewis 34:40
Tim Kowal 34:41
Jeff, when did you check the I just checked a couple of weeks ago, I counted 308.
Ben Shatz 34:46
Yeah, I don't that 600 number seems way too high to me. But what? Yeah, if you need to do it.
Jeff Lewis 34:52
Okay. We'll put a link in the show notes to the definitive answer who's right and who's wrong? Hey, let's switch gears for a second up and I got to know you a little bit in connection with a different organization, not the academy, but as the appellate court experience, are you? Are you still involved in that in any way? Did it survive? COVID? And can you tell the listeners a little bit about what aces?
Ben Shatz 35:12
Sure I'm happy to talk about ace, the appellate court experience was a is a joint program between the LA County Bar appellate courts section, which we've talked about the Second District Court of Appeal, and the constitutional rights foundation. And the the point of the of the ACE Program is for high school students to be able to learn about the blue, learn about the law, learn about appeals, go to the Court of Appeal, watch an appellate argument talk to lawyers who've argued and appeal talk to the justices and get a feel for a an important lesson in civics. So CRF is in charge of finding schools and teachers to pair classes with lawyer volunteers from the LA County Bar Association. And also the Cal Academy was is a partner in that okay. In in, in, in matching volunteer lawyers, with school so that the lawyers first will go to a classroom in a school and provide an overview of the court system, and what an appeal is all about. And also talk about a particular case that the class is going to watch. Then they go to the court and they watch the appeal and they can talk to the participants. And then after the decision comes down, the lawyer volunteer, it goes back to the court and explains what happens and what can happen next and, and things like that. So it's a volunteer civics program. I was involved in the in the foundational meetings for this. And I was very skeptical that we could make it work because there's a lot of moving parts there, getting a bus to transport kids from a school to go to the court to talk to the justices and getting a volunteer lawyers to devote time to do this. I mean, it was a little, you know, out there. But in fact, and this is around 2005. Everybody was uh, everybody involved really wanted to make this work. And they did, you know, CRF had wonderful people involved. The court was very much behind it that the clerk of court at that time, Joe Lane was a big supporter. And and the County Bar stepped up to provide the volunteers and even some some funding from lawyers and law firms. And so the program took off. And it functioned extremely well, with many classes over the course of a school year visiting the divisions of the Court of Appeal and watching arguments and the volunteers doing it. And it was never that hard to get volunteers because it turns out lawyers love to do this. It's actually a lot of fun to talk to kids about appeals. And then we hit a problem when there was a school strike with LAUSD and so that sort of interfered with the, you know, connecting with the school, and then shortly after that, then then COVID hit, and suddenly, you know, kids were not getting on buses to go to courts, because the courts were closed, the schools were operating differently. And so we have not had, you know, I think we had one ACE program that was maybe by video. But you know, it's so much harder to do in the video environment. So ACE has not quite bounced back yet. I think that when, when we're completely through this through the pandemic, and the courts are completely open, and the schools are completely open, and nobody has a problem, you know, sitting in a room with a bunch of strange kids that you've never met before, then then I think we'll get back on track, because the program has been a tremendous success. And it's just sort of had a little hiccup these days with with those obvious logistical concerns. And I should also mention, the program was such a big success in Los Angeles, that had spread, you know, the Orange County, I think, did that a little bit of it, or certainly some schools from Orange County were coming up to LA to do it. The InVenture division six jumped on board and they've had classes and the third district in Sacramento was was able to replicate it, you know, it was very interested in it. And so we helped set it up up there with with I think it was the Sacramento County Bar pellet group, maybe was getting the volunteers and they were working on that. So, you know, it was an idea whose time had come. And it was really wonderful.
Jeff Lewis 39:14
But I hope it comes back. I remember there was like a last minute cancellation, like we're gonna go and you kind of cornered me on email to go and I didn't really want to do it. And I really enjoyed it. I was surprised how much I enjoyed interacting with these kids. I thought I was going to be giving up PowerPoint to a group of drooling zombies. And these kids were so enthusiastic and smart. And yeah, really enjoyed it. So I'll be keeping an eye out to maybe see if it comes back. We'll certainly include a link in our show notes to the program.
Ben Shatz 39:43
Yeah, there's a website on CRF for eighth, there's a website on the second district's website as well. So you know, it's still there. You know, it hasn't died. We just need to find a way of bringing it alive again.
Jeff Lewis 39:57
Tim Kowal 39:59
It also may I wanted to make one pitch for for your blog, the Southern California appellate news blog that you've done for gosh, well over 10 years, I believe you had done. You did a podcast just a few months ago talking about the origin story of SoCal appellate news. And one of the one of the comments that you made in that, in that podcast, I'll put we'll put a link to that podcast in the show notes was that you really don't have an opinion or, or an agenda in any of your reporting. And in that, in that, is that that bears true on you are, you're truly just reporting a lot of a lot of great appellate news from across the state. And, but and it made me wonder, I mean, you gotta have some angle. What I don't mean that in a mischievous way. I mean, what is it that really gets your motor running to get you spend a lot of time reporting this news? And it's got to be a labor of love? What is it that kind of gets you out of the bed in the morning to type away at the keyboard at SoCal appellate news?
Ben Shatz 41:00
Well, I'm deeply ensconced, and what I call the appellate world. Right. And so, you know, I read the newspapers every day, many of them the legal papers and, and other blogs and all the information that's out there with an appellate angle, you know, if there's an angle, it's what's the appellate angle. And I also read the decisions that are published and unpublished, and the civil cases as they come out, and you know, what I'm really looking for are interesting, saying, See unusual facts, you know, there's plenty of appeals that, you know, every day, they're just coming out, and they're just sort of the usual scenario, but I'm looking for the the the ones that are outstanding, in some good way or bad way. You know, I'm looking for that funny footnote, where that, you know, that that lawyer who just barely didn't get sanctioned, and you know, what the what the lesson there is, you know, I mean, that the sort of train wreck stories, that journalism in a census is all about. So and, you know, remarkably, there's, there's something every day or every other day, I think of no. And, yeah, I'm doing the the compilation and looking at the news for my own benefit. I mean, that had always been part of my practice. As a young lawyer, I was told, you know, you need to read the Daily Journal every day, and you need to look at the recorder every day, you need to be part of the legal community. And you need to know what's going on. And so, you know, all I'm doing sort of as an as a service to the appellate world is plucking out the things that are of appellate note, and putting them in one place, so that people can confine them easily. You know, it's hard to do that, you know, we're all busy. And not everybody can look at everything. And so I, you know, I think that I've been providing a valuable service to, to the appellate community that apparently is out there.
Jeff Lewis 42:46
It's, it's a great sir. It's tremendous service, I benefit from it. And we just say from the podcast, on occasion, we, you know, go to your blog and look for story ideas. Can I ask them? On a personal note, you're involved in so many sections, academies programs? Pinkus, you read the Daily Journal every day? You're a member of a large law firm, I must have demanding hours, how do you manage to stay so involved in all these activities and still practice law? What's the secret?
Ben Shatz 43:15
Well, there's only 24 hours in a day. I mean, we all have the same amount of time. I don't know what that what the secret is, you know, it's not like I say, Oh, I get up at 4am. And I do this, and I do that, you know, I, I feel that I lead a fairly normal life. But I am for, you know, even even by bar junkie standards, fairly engaged, you know, at all levels, you know, local, state, national, I mean, I've got a lot going on. And yet, there's always more. I mean, there are there's always more organizations that, you know, theoretically, I could join and do things in. And the lesson I draw from that is there are a lot of opportunities out there. And so, you know, the question isn't, you know, why am I involved in so much but but why are Why are not more people involved in so much? Yeah, yeah. Fair point.
Jeff Lewis 44:02
Yeah. Especially in areas action
Tim Kowal 44:04
for today. Why aren't you?
Jeff Lewis 44:08
Yeah, we'll have a link to the application for at least the the California Academy at the end our show notes. Let me ask on a related note, you say you read the newspaper every day, I have to tell you, I've been a lawyer. 26 years, I have never subscribed to the daily journal. I get my news reports from other sources. And do you see a future where the daily journal continues to be printed on paper? It continues to stay in business when you see other newspapers and magazines kind of going out of print, or at least digital only?
Ben Shatz 44:39
And that's an interesting question. You know, when Tim was introducing me, and he said that, you know, I'd published articles and all of these various outlets. A lot of those don't exist anymore. Yeah. CTV civil litigation reporter gone. California Lawyer magazine, gone. I mean, there has been a tremendous shrinking of of print outlets. Are these sorts of things, and I appreciate your point about the, you know, reading the newspapers, I had always worked at a law firm, where we always had the newspapers, but I'm sure those subscriptions are expensive. And so it's not easy for everybody to, to get that and to access it. And I also, of course, am well familiar with the, you know, the notion of the death of print, you know, everything is going digital, and blogs and, and so forth. And, you know, I tend to think to answer your question directly. The law is a very conservative retro grade profession, you know, we're always the last to change. And so I think the, you know, what, when, when normal newspapers are gone, and everything's online, they're very well, still may be a daily journal, and I met news and a recorder, you know, in part because there are laws that say that notices there have to be printed. Right? You know, you look at the ads there. And those are the ads that are, you know, printing legal notices. I think that the newspaper, the legal legal press has done a fairly good job of transitioning to the digital world. And, you know, be as I said, I would I read the journal daily journal every day for decades, and then the pandemic hit, and suddenly, I'm not in the office. So I'm not getting the newspaper, but of course, it's online. And so, you know, that's just a new way. And honestly, and I haven't actually picked up a daily journal in several years, because I don't even know where they are. Maybe they're piling up somewhere in the office. But, you know, they're not being circulated. It's reading stack. Yeah. And the way that the that they want to us, so you know, you're right to point out that there, there is a future in the evolution of, of media. And we're doing it right here, you know, this this podcast, this zoom call that we're having, and we're talking about blogs, I mean, there's definitely a shift. But I do think that there always needs to be what I would call the paper of record, right? There needs to be one or two sources that are sort of the official, you know, the New York Times type, you know, well, if there's one paper, this is it, right? And because without that you get so fragmented. You know, you can't have blogs replacing that because there's a blog on everything out there. Yeah. So I don't know what the answer to that is, you know, now I run it. I have a column in the daily journal. So every month I submit an article, the series is called exceptionally appealing. And the focus was supposed to be on exceptions to appellate practice, because again, I'm interested in the unusual, the outliers, not the basics, and there's a lot to write there. But, you know, over over time, I've branched off into other things that I think are of note to those who themselves are exceptionally appealing. Hence, articles like the history of the state bar committee on appellate courts, or the history of the California Academy of appellate lawyers, or, you know, my next article is going to have a little bit about the the blue book and the yellow book. I mean, these are things that appellate lawyers care about, and you know, have to have some attraction to the general practicing bar. And my column I think, has been well received. I get emails fairly regularly from people who find it either helpful or amusing, or both. And for me, that's success. But at least
Tim Kowal 48:13
let me get you to weigh in on Blue Book versus yellow, yellow book, what's superior?
Ben Shatz 48:19
What's not a matter of what's superior? The none of them are superior. Right? I mean, legal citation is, it's completely ridiculous.
Tim Kowal 48:26
I gotta get your opinion on something on the record been a my opinion
Ben Shatz 48:29
on the record is, if you are drafting a brief for a California appellate court, you should be using the yellow book. You know, now that's not really a stretch. It's in the advisory committee notes to the to the rules of court, that lawyer brief writers are encouraged. That's the quote, to abide by the California style manual. So
Tim Kowal 48:49
you're illegal, what does it call it? Descriptivists. You just you say what the law? Is that what it should be?
Ben Shatz 48:56
Yes. Well, I'm not in a position to do that. Right now. I think that that it would be nice to have a new edition of the yellow book, because it hasn't been updated in forever, in 20 years. And that's, that's a problem. But, you know, I don't like seeing a blue book form in state court. I feel that, that that exactly. It's misplaced. You know what, what you're saying is, I'm a law student, and I only know blue book, or I'm a federal lawyer, and I only know a blue book, or it's saying only I only learned blue book, and I'm never going to learn another one. So that's good enough for me. So
Jeff Lewis 49:35
it's saying I never saw the movie. My cousin Vinnie. Right, yeah. You don't mind sticking out like a sore thumb. Let me let me ask you a final subject before we wrap up the interview. And that's about your brief writing process. You know, when you're not writing a monthly column and you're involved in sections when you're just writing a brief, what is your brief writing process? There's some lawyers who like to start the with the introduction. And then right from there, there's some people who Do their introductions last? Some people write out all their headings first? And then they start drafting the body? What is your How do you approach brief writing?
Ben Shatz 50:07
Every project is different. But you know, I would probably say, I gotta start with the facts. I mean, how can I write anything? How can I write an argument or an introduction? If I don't even know the story, right? I mean, so I, you know, I try to try to start with, with the factual statement, so that I at least know what I'm doing. But from from there, you know, that's gonna get revised, and the arguments get revised, and the intro and the conclusion, I mean, everything, it becomes very organic and grows in all directions. But, you know, the storytelling really is essential. And a lot of the, you know, the founders in their letters back and forth, I think there was a line and one of them were some somebody said something like, you know, I would rather let the other side you know, write my legal argument section, if I get to write the factual section, because that's what drives a case, you know, cases are about the facts. And that's the one thing that the Court of Appeal or whoever, you know, the judges don't know the facts of your case, they may know the law perfectly, or what they were, where they want to go, but they don't know the story. And so they're relying on the lawyers to present a coherent story that includes what happened in the real world and what the procedural history was in a case. And so, you know, I tend to do focus on that more at the beginning of any project than anything else.
Jeff Lewis 51:27
Interesting. Okay. I took you know, personally, I tend to write the facts section last, I do the arguments, and then I go back and kind of fill in the facts, because I know I want to emphasize certain facts. All right.
Ben Shatz 51:38
Yes, yeah. Interesting. It's not always it's always going to go back. But you have to at least have a factual Foundation. Because how can you evaluate the case law and know if a case is on point for you or not? If you don't know your own facts, right.
Jeff Lewis 51:51
Yeah. Right. Yeah, for sure. For sure. Interesting. Okay. Well, I think we're close to the end of the hour here. I don't want to take up too much more of your time. We want to thank case text for sponsoring our podcast. And each week, we include links to the cases we discussed using case case, text, and listeners of the podcast can find a 25% discount available to them, if they sign up at case text.com/ca LP.
Tim Kowal 52:17
And if you have suggestions for future episodes, please email us at cow firstname.lastname@example.org. And thanks, Ben shots for joining us.
Ben Shatz 52:26
Thank you for having me as your real pleasure. Take care.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases the news coming from the California Court of Appeal, and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao podcast.com. That's c a l podcast.com. Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again