The Lawyer Who Reversed the “Victory Bell” Case, with Brooke Bove

Brooke Bove  0:03  
the decedent was probably negligently killed. But we made it look like other people did it, which to the Court confirmed that he was trying to make an empty chair argument.

Announcer  0:13 
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  Kowal and Jeff Lewis. Welcome, everyone.

Jeff Lewis  0:27 
I am Jeff Lewis.

Tim Kowal  0:29 
And I'm Tim Kowal all the California appellate law podcast is a resource for trial and appellate attorneys. Both Jeff and I are appellate specialist, but we split our practices about evenly between trial and appellate courts. And in each episode, we try to give our listeners trial and appellate attorneys some legal news and insights they can use in their practice.

Jeff Lewis  0:47 
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Tim Kowal  1:14 
Now, Jeff, way back in episode 42 of the podcast, I don't know even know what episode we're on now who can who can count so many episodes so little time. Back in episode 42. We reported on the victory bell case it was Garcia versus Qureshi, in which a successful defense counsel Robert McKenna bragged about his defense in a medical malpractice case. You remember this Jeff and the video depicted McKenna addressing his colleagues and staff saying that the case involved quote, a guy that was probably negligently killed, but we kind of made it look like other people did it in quote, right, right. And after that story came out, Jeff, I saw some commentators suggesting that the victory bell video, as it became known was grounds for a new trial. And I kind of scoffed at that, and I saw some other appellate attorneys scoffing at that as well. But today's guests prove the naysayers wrong. Today, we welcome Brooke Bove, the appellate attorney who wrote the successful motion for a new trial. In the Garcia victory bell case, Brooke focuses her practice her appellate practice and catastrophic injury and mass torts cases. before law school, Brooke served in the Army as a specialist translating and analyzing intelligence information. And she's fluent in both Arabic and French. Brooke took her Juris Doctorate degree magna cum laude from Whittier law school in 2011, where she was a fellow at the Center for international and comparative law and a member of the Law Review. Welcome to the podcast. Brooke, thanks for joining us.

Brooke Bove  2:42 
That is probably the most amazing introduction I've ever been given. Thank you so much for having me.

Tim Kowal  2:49 
So, so you now that you're part of this big case and the public spotlight, you know, obviously we had to reach out to you and and I can say I knew you when I knew you before. You're the big successful attorney on the victory case. But before we explore that case further, I want to back up and talk a little bit about how you got into the spotlight. Tell us Brooke a little bit more about your your practice. You're I think you're focusing in appellate law. Did you always focus on appellate appellate practice?

Brooke Bove  3:16 
No, I was a litigator for quite some time, six or seven years, probably full time, mostly in the personal injury realm, some elder abuse kind of cases, but always on the plaintiff side. And so I did that, and but I was not satisfied. And my personality is not well suited to things like cross examination, and, you know, fighting with opposing counsel over discovery deadlines and meeting conferring stuff. I could do it in writing, but in in person like that confrontation stuff is not my favorite part of litigation. And I honestly get sometimes a little tired of the game that you have to play. And so I was feeling a little dissatisfied. Meanwhile, it was while I was at DeMarco Rafo. in Montevideo, one of my colleagues tried a case and one and the defense appealed it. And my boss was about to hire outside appellate counsel. And I said, Hey, give me a shot. Let me do it. And he did. And it was great. And I had I really enjoyed it. And I was kind of bit but from there on. And that's, that was kind of the seed of appellate law. That was probably 2000. When was that? That was probably 2016 or something like that, that I did that. And then, you know, now I have my own practice where I do focus on appeals. But so I do appeals and that's where I represent clients. Is that the the appellate level, but I also consult with trial attorneys regularly where I get to where I do some like ghost brief writing, and consulting about appellate issues and things like that with trial attorneys. So those are kind of the two things I do.

Tim Kowal  4:53 
And was your litigation practice focused in on personal injury cases?

Brooke Bove  4:57 
Yes. And some elder abuse which is a you know, of an offshoot of personal injury as well.

Tim Kowal  5:03  
Right. And so, in your appellate practice, is it mostly in the personal injury realm? Or do you branch out from there?

Brooke Bove  5:11 
I branch out. It's probably it's predominantly personal injury. I also do some employment law stuff. I've been getting more employment law appeals lately. And I've also done, you know, some business litigation because the Civil Code of Civil Procedure is applicable to everybody. So are they're doing some of that,

Tim Kowal  5:29 
too? What are the what are the common issues that come up in a lot of your personal injury appeal cases?

Brooke Bove  5:35  
Well, I guess probably have two answers to that. One is, lately, it's been mostly summary judgment losses, where plaintiffs lose a summary judgment motion. And that has been really happening a lot lately. And anecdotally, I just think courts are just getting more and more comfortable with granting summary judgment. And so that's bringing up a lot more of those appeals. And we'll see if the Court of Appeals likes that trend, or not that I think that kind of started during the pandemic, the COVID pandemic. And now I'm starting to have the oral argument for those appeals on summary judgment, that's really starting to kind of happen. So that procedure of summary judgment and evidence that you put out and in support of your motion or opposition, and like all those kind of procedural issues related to summary judgment, that comes up a lot. And then if I'm speaking topic wise, I get a lot of prevent cases where, you know, the prevent, and Toland line of cases where it's, if you're the general contractor, and you hire subcontractors to manage things going on, you don't, you're not considered the employer of the employees of your sub subcontractors. It's not like a chain of command, where you get sorry, I'm not explaining it, let me let me back up prevent is where if an employee is injured, his remedy is workers comp, not by suing the general contractor of a of a worksite, or the home owner of a home of a person who hired a, you know, somebody to fix the roof or something like that. And it's a very, it's a very detailed in a long line of cases about it. And I have quite a bit of experience in the prevent line of cases. So I kind of get those motions a lot. And so then that is what we talk that happens to be the subject of a lot of appeals.

Jeff Lewis  7:28 
Interesting. Hey, can I ask you from a business point of view? And don't tell me anything confidential about the victory bell case. But if you're doing a pie case, on appeal, most pie cases are handled on a contingency basis by the trial lawyer? How do you end up getting paid as an appellate lawyer for pie cases?

Brooke Bove  7:44 
It depends. That's a good lawyer answer. But sometimes the plaintiff will pay out of pocket. All right. Sometimes, the sometimes the plaintiff attorney will just compensate me in the hopes that we win and that he gets paid back when and if the case goes to trial, and he gets a settlement. But generally, yeah, so it's one of those two sources, either the trial attorney pays me or the client pays me depends on their retainer agreement. Most of the time, it's the trial attorney for the plaintiff who, who asks me for help, and depending on how they feel about their chances, or, or their how their retainer agreement is set up, or sometimes it's a hybrid. And I've also done I've also been asked, and I've done this only once or twice, but if I will do the appeal, and then take a percent, you know, become a partial represent, you know, like a fee sharing agreement, where I begin, then get a portion of the settlement when and if the case ever settles in the future.

Tim Kowal  8:44 
Right. Interesting. Okay. Now, Brooke, you were you're in the army, your communication specialists tell us a little bit about how your path led down down that road. And then how from there you came out on the other side as a as an attorney, and individually as an appellate lawyer?

Brooke Bove  9:02 
Well, I grew up in a small town in Wyoming. It's actually not super small. It's one of the biggest towns in Wyoming, but it's still pretty small town. It's only maybe 18 to 20,000 people. And, you know, there's one university in the whole state, and I was 18. And I was restless, I was like, there's a whole world out there. And I was in that sweet spot between where my parents were, they were not going to be able to pay for my college. And they made too much money for me to get like a bunch of financial aid so I didn't really know what I wanted to do. So I don't know I just it was the mid 90s And it was a lot different decision but I just said screw it. I'm gonna I'm gonna join the army. I get to probably travel and the army recruiter wouldn't stop calling me and generally I'm just a joiner it by nature. So I was like, Okay, fine. I'll try it out. What's the worst that could happen? And what was the worst? Nothing, nothing bad happened to me. I was in between 1996 and 2000. I was out before 911 happened before there was any war. It was the time of my life. I met a million great people. I got to travel I lived in. I lived in Jordan for a summer, the army taught me how to speak Arabic. They taught me. They gave me cultural training, they gave me all kinds of great training and interesting, I just met so many people, it was the greatest thing I could have ever done. I first went to Monterey, I was stationed in Texas for a little while, and I lived in Georgia. And it was just a great way to get around to the country, and then also out of the country, and it was the best. So I'm so glad I did it. Then I got out and I decided I Well, when I was working in the Army as a, as a linguist, and a translator in a no, no part of my job that I was assigned to, by luck of the draw was to work with the NSA on some projects. So I thought, Hey, that sounds fun. When I got out, I tried to apply for the NSA and for the FBI in a few different places. And they were just like, go get a degree, we don't want you. So I said, Okay, I'll go to college. And then I went to college, and my interests changed. And

Tim Kowal  11:05 
they don't have to do that. Did you have a law school and being an attorney in the back of your mind, it's somewhere,

Brooke Bove  11:11 
never, I never thought I would be an attorney. I didn't know any attorneys growing up. I didn't. I took like this criminal justice class in high school. And like, as part of it, we went to me to the judge, we went to like, check out the courtroom. And we watched a couple of hearings, and the judge came out and like, took off his robe. And he was wearing jeans and a flannel shirt, because it's Wyoming. And I just thought, hey, that's cool. But that's a world I'll never live in, and never be involved in. That's for that's for other kinds of people. That's for a different caliber of person than me. I thought,

Tim Kowal  11:41  
yeah, well, so you took cultural training from the army, you were living in Jordan. And then a few years later, down the line you you went to law school, became an attorney and learned a different kind of got different kinds of cultural training, writing nasty meet and confer letters, taking hardline positions. And then by the time you pick up the phone, you're already entrenched in your position, what are some you have any cultural connections between what you learned in the army and in the legal culture that I know a lot of judges would would like to change at least in terms of civil discovery and how it's become uncivil discovery?

Brooke Bove  12:16 
Well, everything is combat, you know, you have to wear you have to be prepared. Well, first of all, the army taught me how to deal with every kind of personality there is. So any kind of opposing counsel that you get, whether it's a, you know, a polite one, or one that's fun to work with, or one that's, you know, a bit more work, you can you could navigate it. And so that is the probably the biggest gift to the Army gave me. But there's all the combat stuff, there's the you know, like, know your enemy. And know what if you're going to flank them, like you got to know like, what their plan is, and what they're how they're going to do it. So how they're going to do mount their attack. So you got to know how they work and how they think. And so the best way is just to get to know as many people as possible, and the legal landscape as it is and what firms do what and how they, how those firms are, and then you can then you can make your battle plan.

Tim Kowal  13:11 
Now, what's a what's a common mistake? Do you see any, any attorneys making mistakes that you think these are common? They shouldn't be making these kinds of mistakes. And you you kind of if you had one thing to tell attorneys that had you know what things they ought to stop doing or what things they ought to do instead? Well,

Brooke Bove  13:29 
so I deal in a lot of briefs, right. So I'm reading a lot of I read a lot of briefs, and I write as many as I read sometimes. But I say the probably the biggest mistake is that people don't lay a factual foundation very well. They don't. Attorneys really don't somehow get that part of it. And every time I've asked talked to a judge about what for advice on what they would like to see, in briefs, they're always like, I don't know why what you want is so important. I don't understand the facts of the case you think I do because you are so entrenched in it as an attorney, and you know it and you haven't taken the time to really lay that out for me and tell me why it's so important that I give you what you're asking for. And ever since the first judge told me that I have really noticed that in briefs, there's a lot of conclusory statements of fact, and not a lot of detail about why about why what you're asking for is important. And I really, that sticks out to me a lot. Yeah,

Tim Kowal  14:27 
well, even though every second time not every second I spend on talking about facts is a second that takes away from my argument.

Brooke Bove  14:37 
Well, yeah, but you can't have your argument without the facts. And you don't need 25 statements of law. And you don't need 25 cases to support your argument. You need one or two cases. And then you need a lot of facts. And people think that briefs are about the law about arguing the law, but they're really about arguing the facts and why They applied why the law should be applicable in the way you say, based on these facts?

Tim Kowal  15:04 
Yeah, no, I think yeah, I think that's good. I think it's like, being faithful to the fact to the facts. And giving comprehensive statement of facts is kind of like, it's like, you got to pay your dues. It's like paying the meter. It's like putting coins in the, in the slot machine. You know, if you only put a put one nickel in, what's the most you can win by the time you pull your argument by pulling that lever, you know, you have to put a lot of money in, in hopes of getting a big jackpot.

Brooke Bove  15:27 
I like that analogy. That's funny.

Tim Kowal  15:30  
The other favorite part of your practice, other than, you know, we appellate attorneys always say writing the briefs, but locking the doors,

Jeff Lewis  15:36  
locking the doors and working on the brief,

Brooke Bove  15:40 
the turning off the phone, you know, what I like the most is, I sure I'd love the writing. Nothing makes me feel more like a lawyer than those that that time in the brief when it hasn't quite come together yet. But you know, it's going to, you could see how the outline is shaped up. And you could see how the arguments going to flow. And that moment where it hasn't quite happened yet. And you still get the joy of being able to do that. That's one of my favorite times as a lawyer. But honestly, probably my favorite thing is that the way with all the consulting I do and the and the ghost writing that I do for attorneys, I really get to meet and work with a lot of interesting people, and to see how different firms practice and the way that they the way that they function differently. And then I can take or leave whatever I think is good or applicable to the way I want to write or do things and just that insight into how other attorneys work and write and think is really invaluable. And it's really fun to collaborate with other people. It's not so fun when they're critiquing your brief, but Sure, but it is really fun to it. It's a good service to the client, and to get different minds going out and to be collaborating in those different types of ways. So I think that's really fun.

Tim Kowal  16:50 
You mentioned ghost writing briefs, what kind of briefs do other attorneys hire you? Or you to ghost? Right? And and why did they decide to hire some hire you to ghost write their briefs, rather than just write it themselves?

Brooke Bove  17:02 
Well, if you're a busy trial attorney, and you're managing a calendar between depositions and court appearances, and mediations, and arguments with adjusters So and, you know, whatever you've got to do, that doesn't leave you time to sit down for 30 to 40 hours and write a summary judgment opposition. And even though you have a long time for summary, judgment, opposition, you know, from the time you get it, you got to spend a lot of that time doing the discovery that you need to to oppose it or gathering the documents or you know, it just there's not a lot of time for sitting down to write lengthy briefs. And so the main thing I get asked to write is summary judgment opposition's or summary adjudication motions. That's probably my number one. That's 70% of what I do it probably and I do, you know, other stuff like dimmers, in anticipation of, well, if they're delivering on this topic now, then that's going to be a summary judgment in the future, anyway, probably. And then also the post trial motions and appellate briefs. So those are the main things I do

Jeff Lewis  18:07 
with all that writing you do? What do you think your clients or the trial lawyers you work with? Or your opponents would say, is unique about your writing or about your legal practice?

Brooke Bove  18:16 
Well, I'm not sure that there, there are contract writers out there that do writing or research projects for attorneys, I don't know that there are very many practices out there that do the level, the end the volume of ghost writing that we do. And so I think that's unique. I have a team of Clerks and contract attorneys. Also that helped me with my volume of of projects. I'm always the finisher, the one who comes in and puts my personality and my stamp on it. But yeah, so that's a little bit unique. I don't really think that there's that many firms out there that do that. And you know, I have a fairly distinct narrative voice. It's a little conversational. It's a little, you know, referensi. Yeah. And so that's probably what people know about the briefs that I write for them sometimes. And sometimes people want a much more formal brief than I normally write, and some people are great with it, you know, I've got the blue hair, I'm a little bit funky. I'm a little quirky. And that that personality kind of comes through in my writing. But, you know, the people that hire me over and over again, seem to be be fine with it. So and I also I often get compliments on the briefs from from judges or from courts, too. So or somebody will come back from the hearing and say, the judge made a comment about about your brief, like, if I could I would put like memes or gifts and briefs sometimes, you know, just like it sometimes you could just make a really good point with it. And I don't think that the practice of law is quite evolved to that. But

Tim Kowal  19:42  
yeah, well speaking of briefs and post trial briefs, let's talk about the brief that that we're here to talk about today. The one you you drafted in the victory bail case, Garcia versus Qureshi, as we talked about at the at the top. This is the case where the defense attorney had made some comments that were captured on this Do that perhaps he was not aware of at the time indicating that the reason he thought that he won the case is because he was able to convince the jury that other people that there there maybe was some negligence but that other people were responsible for it. And in Brooke, I mentioned that that's there were some attorneys who are kind of scoffing at the idea that, that that could be grounds for for granting a new trial motion, because you know, this didn't happen in court. It didn't happen. It wasn't it wasn't perpetrated by any of the parties wasn't purposely committed in the presence of the jurors. So how could it be an irregularity at trial? So tell us a little bit about that motion that you that you drafted? What was it? What were the arguments that persuaded the judge that yeah, this, this warrants a new trial?

Brooke Bove  20:44  
Well, there are a few of them. And that language that you quoted is going to be really important. So I'll I'll explain, it's true that a lawyer bragging about a victory at court is not new evidence, it's not something that really is gonna generally have an impact on something at trial that are the outcome of a trial. It's true. And if we chastise every attorney trial attorney that like bragged about a victory he had, or she had, like, we would be chastising a lot of attorneys, right, everybody gets to brag. And I think there are ways to do it and other in ways that are less appropriate, of course, but the bragging is not the problem. The The problem is more the language he used and and how it affected issues at trial. So we made several arguments about the irregularities at trial. The first was that, and this is the most important one, I think, and it actually has not much to do at all with the video, the victory bell video video, but that defense attorney asked at the beginning of trial, he said, I have this prepaid arbitration coming up in a few weeks, and I can't cancel it. If I cancel it, I lose a huge deposit, like a $30,000 deposit or something. So I need to be able to be done for that arbitration. And the court words like Well, I'm not going to continue the trial. So let's try to get this done. But we'll figure that out. We'll cross that bridge when we get to it, basically. And the plaintiff's counsel was like, Your Honor, I hopefully be done. But like we, you know, whatever, I don't want to have a big break in the middle of trial or something for somebody else's arbitration. And so he voiced his objection. And then of course, it came time for the MIDI for the arbitration to happen, and trial was not done. So they took a 19 day break in trial. So he could go do an arbitration and other case, they came back for one day of testimony of two witnesses, and then closing arguments. And so the, that was an irregularity that we thought was really significant, because by that time, even if they get the evidence, binders and everything, and the jury has forgotten the demeanor of witnesses, they've forgotten exactly whether or not they liked certain experts, they've forgotten exactly what those experts testified to. And and, you know, it's a medical malpractice case. So the expert testimony is really important. And so that was a big irregularity of proceedings that I thought on its own without anything else, almost warrants a new trial in itself. The other small irregularity was that the one of the jurors had a history of working in the insurance industry that was not disclosed at the at the outset of trial, despite questions that that called for that disclosure. And that's a big deal in in that juror became the foreperson, as well. So that kind of was something that maybe on its own is not quite enough, but when you start to bundle everything together, it all kind of adds up. And then the big thing was, the other big thing was that the plaintiffs did a motion and limiting to prevent an empty chair kind of argument or evidence from the defendant. And the defendant testified or said to the judge in the hearing, I'm not putting on evidence of an empty chair, I'm not going to be blaming anybody else for this. I'm simply my case is that what my client did is not is not medical negligence, that's my case. And then several times during trial, he brought up an argument in closing, he brought up an argument in questioning witnesses like, well, at the time of his death, the decedent was under the care of a lot of different doctors. But the plaintiff only brought in my client, which was untrue, because there were multiple doctors originally sued, that were led out on summary judgment or different things happen along the way. And so he, in essence, did make an empty chair argument, and then that language that you quoted in his video at the end, he said, well, our guy that this doctor was probably or the plaintiff the decedent was probably negligently killed. But we made it look like other people did it, which to the Court confirmed that he was trying to make an empty chair argument. Yeah, which affects the arguments he made, which was supported by the arguments he made at trial and His in violation of his promise to the court not to make such an argument. So that was the I think that was really the court's biggest bone to pick with everything was that that was not an ideal way to act. And then finally, there, he made some comments in the closing arguments that were super inflammatory about the plaintiffs, the plaintiff decedent and the, you know, his family, they are Hispanic. And the plaintiff's attorney is Hispanic. And like the whole, the whole plaintiff's counsel, the team, they were all Hispanic. And he made some arguments in trial about which he says we're about the personal injury. And he called it the personal injury industrial machine. He called it in trial. And then he said, Welcome to America while pointing to the has to Latino plaintiffs table and we made some arguments that that was really inflammatory and not not great. And then we also found out that we knew going in that there was a very short deliberation by the jurors that it was less than a half hour of deliberations. So that on its own tells the court that they were not really considering evidence, they were going on emotion and write off the tail of that really inflammatory emotional closing statement, the court said, it's possible or, you know, that that influenced the jury as well. So like that was just kind of kind of a list of things that made it an irregular trial. But that

Jeff Lewis  26:29 
interesting, you know, the headline doesn't tell it all that, right, just the victory bell or the bragging or the postgame, and on social media and all that. But there was a lot of things that led up to that admission of that statement that he had pulled a fast one on the jury.

Brooke Bove  26:44  
But I will also say that the influence that that video had on on the judges decision is that this case was in the media this case was getting scrutiny. There are reporters at this hearing, there was this his his ruling was going to be analyzed. And so I think that regardless, I think this judge is a great judge anyways, and he's you no more open than sum to considering that he might have made a mistake in ruling or that he might have allowed irregularities in his courtroom during the trial, I think he's more open than some would be, but that outside media scrutiny is going to make a judge pay a little bit more attention, or more carefully consider how it's going to look if he doesn't if he doesn't grant a new trial or what you know what the law is. So I think that it did help in that regard. It did have an effect in that regard, as well. No,

Tim Kowal  27:35 
I do think that's interesting that how it linked up the statement by by the defense attorney at the victory bill, that a guy was probably negligently killed, but we kind of made it look like other people did it. So that really circled back to this motion and limit a ruling or was it? Let's see. So what was the trial judge's ruling on the on the motion eliminate so the motion eliminate was was by the plaintiff to prevent the defense from putting on an empty chair argument. Now, just for listeners who don't practice in personal injury law, an empty chair argument is where the defense will defend against a personal injury claim by making it look like some third party did it the defense wasn't responsible for it. It was some third party it was it was the person in the empty chair. He's not here today to defend himself. And so what so the Makenna, the the attorney said, no, no, no, we're not. Don't worry, Your Honor. We're not making an empty chair argument. But then, lo and behold, after the verdict comes in this video surfaces where and we did we won the case by making this excellent empty chair argument. And so did it take a lot of take some reminding on your part to remind the judge about remember this motion eliminate? Or was the judge already keenly aware that what had been pulled in this case?

Brooke Bove  28:46 
Well, I don't know the answer to that. I don't know what he knew. But I certainly did that. That was part of my paying the factual dues. You know, that I had to say, look, here, this motion unlimited was filed on this date, this motion, argued this XY and Z. And then if we go to the trial transcript from that hearing, here's what words were said. And here's the, you know, quote from McKenna at that time, and at that time, the Court declined to make a ruling one way or the other on that motion, because based on the promise from McKenna, he didn't think it was going to be an issue. But if something came up in trial, he reserved the right kind of like, if something comes up in trial, the plaintiff is free to object and we can redress this later if that does become a factor and then pointing to the point, the trial transcript, places where it did come up later and there was an objection and so you've got that's the laying the factual Foundation, you've got to go all the way back and show every document and every quote from the trial transcript that that tells that story.

Tim Kowal  29:45 
Yeah. And well, that's that's interesting that that does. That does make a different make a difference. As I mentioned, I was one of the scoffers at the beginning when I thought, you know, at this was, this is just a video. It's a You know, he's just just stomping his chest, it doesn't really make a difference in what actually happened at trial. It doesn't show an irregularity at trial. But with that context. Yeah, I think that that may be persuasive.

Brooke Bove  30:11 
Yeah. I mean, the video was very, it was unprofessional. It was, you know, I got to sock three lawyers in the face, he says, and, you know, and then he issued an apology video afterwards, which was a non apology apology. Oh, I didn't know that. Yeah. And it was basically like, I'm sorry, you. I'm sorry that I got recorded. And I didn't know I was being recorded. And I'm sorry that any I'm sorry. If I hurt anybody kind of apology. It's like Homer

Tim Kowal  30:39 
Simpson apology. I'm truly sorry. I genuinely thought you would never find out.

Brooke Bove  30:44 
Yeah, and, you know, we've all speculated like, I wonder what happened to the person that recorded and posted that video. And who knows. But the so that, yeah, there is some stuff going on now that the judge granted the new trial, and that ruling has now been appealed. And that's an appealable order. So a direct appeal order. So we get to go through the it's not just a writ, we got to wait through the entire appeals process now, to make sure that the Court of Appeals agrees that that ruling by the trial court was, you know, not an abuse of discretion. And once that happens, which I fully expect it to happen, then we can have a new trial. And they've brought in now the because the fate the attention this case got they've got in trial attorneys that are like really experienced in med mal cases, and they're going to come in and try the case, there's going to be you know, it's going to be a lot more people on deck for the for the new trial when when it happens. Oh, sure. And

Tim Kowal  31:41 
hopefully no 19 Day pauses in the middle of trial this time. Yeah, that will

Brooke Bove  31:44 
not happen. I'm sure nobody's gonna let that happen. And I

Jeff Lewis  31:47 
suspect plaintiff's counsel, have you there as embedded counsel to watch just to make sure there's no appellate issues for this appeal?

Brooke Bove  31:53 
That'd be great. Yeah.

Jeff Lewis  31:54 
Interesting. I didn't know that an order granting a new trial is directly a directly appealable order interesting. Or maybe I knew that a million years ago for the certification exam.

Brooke Bove  32:04 
That's also a thing I learned with this. I was like, what do you what do you mean, they filed a full appeal on that one ruling, but they did. And I looked it up. And it's true. Yeah.

Jeff Lewis  32:14 
So Brooke, you need to send us a link to that apology video, because we do show notes. And we put links to all our articles and things. And for our listeners to be able to see that video,

Brooke Bove  32:24 
I will try. I know it was posted as just an Instagram story. So it was available, but I have a transcript of it. So I can send the transcript to you if you'd like.

Tim Kowal  32:35 
Based on this experience and your other experience, ghostwriting post trial motions, do you have any other post trial motion and new trial motions, strategies or tips for our listeners any common mistakes or pitfalls or, or positive tips or things that you should do to get better results in a post trial motion?

Brooke Bove  32:54 
Well, I think your biggest pitfall is make sure that the hearing date for your new trial motion is within 60 days of the courts of the verdict of entry of judgment or I think it's Entry of Judgment, you've got to have that hearing within 60 days, and there are very specific filing deadlines associated with it. And if you mess up any of them, you it's fatal to your motion. And in some cases, if you're trying to get a new trial based on things like the jury didn't award enough money, or a couple other things, you have to do a motion for new trial if you want to do an appeal on it. So most most things you argue on appeal, you don't necessarily need a motion for new trial. But some things you absolutely do. So those timing issues are really important. The other thing I'd say is motions for a new trial, that though they're not often granted, they're a great way to attach things to the record that might not have otherwise gotten on the record, Attorney declarations and documents that may not be lodged at court, you can now get them there. But here's my here's my big tip for when I'm starting out and I don't really know, we've got what a 15 day trial that's 15 days of transcripts to go through all the evidence, all the whatever all the testimony, all the documents, how are you going to make sense of what's in irregularity and what's not. And I always start with the minute orders from court on those trial days, those minute orders, they lay out what happened on every single day, which witnesses were there, what hearings were held for which motions or which you know, if there was a thing that happened outside the presence of the jury, or those are going to be the flags that take you to the like, highlight portions of the trial and get you to where you might start finding those irregularities quicker. I mean, always when I get it I asked the trial attorney what happened you know, like what do you think went wrong? Or what do you think the grounds are but as the person writing the motion for new trial, you've got to go through it yourself and put on your own thinking cap and find it and I think those minute orders are gold for for giving you an outline of the trial and where to look for what information you might need.

Jeff Lewis  35:00  
Because the first thing the trial lawyer usually tells you is the judge is dumb, or to the witnesses all lie. So you got to get past the first two issues

Brooke Bove  35:08 
or the jury scrutiny over right.

Tim Kowal  35:12 
And sometimes the cold dry record doesn't read as scandalously as you, as you were originally led to lead by the trial counsel who you know who, who talked, who will talk in very vibrant tones about the gross and obvious irregularity that occurred and when you read the minute order, and you read the transcript, you think, Oh, I see what he's talking about here. But it really doesn't leap off the page, I'm going to need a little bit more to really frame this or or maybe, maybe we drop it as an irregularity, right? No, that rises to the level. So those those can be tough, you know, to the through the losers, eyes, everything looks like an irregularity.

Brooke Bove  35:46 
Well, trial is a performance, right? If you're a trial attorney, it's a performance of sort, you're, you're projecting and you're putting you have your personality out there before the trial. And personality is not a thing that comes through on the page very often. And things that sound great when you say them out loud, you read them on the paper, and they don't sound as great. And some of the arguments in this particular trial, the Garcia trial, I had a hard time following logic, just reading what was said, or in the, in the closing arguments from both sides, kind of, but I imagine that if you heard it in person, it would have been a lot more dynamic and a lot more interesting to listen to, and might have been easier to follow. So yeah, that is that is a big challenge.

Tim Kowal  36:28 
Yeah, no, that's that's true. But as the appellate attorney who's coming in after the trial, you didn't have the advantage of the front row seat and in hearing the modulation and tone and everything during the trial, and the other person who's not going to have had that front row experience is the appellate bench, you know, the appellate panel. So you're gonna have to make your arguments about irregularity from the cold dry record and not net reports of what happened as it looked and sounded like from the front row,

Brooke Bove  36:54 
that's a really good reason why it's good to have somebody else write the motion for new trial, somebody other than the trial team or the trial attorney, because they're gonna have their own, their passions are also inflamed, right? They were there at trial, they were entrenched in it, it became their life for several weeks while the trial was happening, and they feel strongly about everything. And it's harder to be objective, when you feel really slighted or really like you were treated unfairly. And if you are someone that's coming in from out, you could be a little more analytical and a little less inflamed, even if you're biased, like mine is to always root for the plaintiff for you know, like you have a particular thing that you generally go towards, it's easier to be analytical when it wasn't something that was part of my life for a long time. And I don't, I don't personally know those plaintiffs. And so I don't, I can sympathize, but I don't feel that pain in the same way. And so it is a good reason for and that you're right, the appellate justices, they don't know that either. They don't see it or feel it. And it's a it's an abstract thing to them. And so it's, it is a good reason to have someone else come in and at least look at or give advice on or, you know, write the whole motion.

Tim Kowal  38:05 
Well, thank you for sharing about the Garcia case. I think it's before we get to one one other topic. I want to ask you if there any other juicy details from that case that we haven't covered?

Brooke Bove  38:14  
Well, the juicy stuff is so that's that appeal is happening on the ruling for the motion for new trial. In the meantime, Dr. Crush Qureshi, he has new counsel, and there is a legal malpractice lawsuit as well as a defamation lawsuit based on that video as well.

Jeff Lewis  38:33 
A defamation lawsuit. What are the odds if you don't mind? What are the allegations in that defamation lawsuit? And when when when will the anti slap motion be person

Tim Kowal  38:41 
in the empty chair come forward?

Brooke Bove  38:43 
Know that the defamation is my client is a negligent doctor. That's what he's saying. He's saying his attorney called him negligent and told the world that he is a negligent doctor. Interesting. Okay. So I Who knows if that's a viable claim or not, but it's doozy. Yeah, I don't know the exact allegations are like the you know how it's all playing out. Exactly. But that's that's the juice, the the

Jeff Lewis  39:09 
grace, your motion came about around the same time that my office was moving, and we're going into new office with space with tenant improvements. We're trying to decide whether we should install a victory bell or not in the new office. And we decided maybe we should for those instances were in the Orange County, the appellate courts in the fourth Appellate District in Orange County when we got a brief filed successfully, proper bookmarking and all that. We thought about having a bell to celebrate whenever we got it filed on the first time.

Brooke Bove  39:37  
I'm so glad that I'm not the only person that always gets their documents rejected. It happens.

Tim Kowal  39:44 
I've had attorneys come to me in desperation and says I've prepared the brief. It's finalized. I did the proof of service and everything but I can't get it filed. I tried three times. Yeah. Oh, the worst

Brooke Bove  39:53 
is when that appendix is over 25 megabytes, right. It's like Hmm, filing time is right now.

Tim Kowal  40:01 
Yeah, other than that, all right.

Brooke Bove  40:05 
So I will say I don't think that the victory bell is a bad thing. I think it's great. I know, I know of a few different plaintiff law firms that have it. And it's great to win a victory bell, but maybe just consider whether you post that on social media and whether rating bringing the victory bell is going to be perceived as celebrating the death of somebody. So

Jeff Lewis  40:24 
yeah, that's a fair point.

Tim Kowal  40:26 
Yeah, that's a fair. Yeah, we gotta we got to retain our humanity here, despite We love getting to win. But sometimes our profession involves some morbid subjects. And we have to show some do gravity for the human element involved.

Brooke Bove  40:38 
And I also just want to say like, I don't, I'm not here to completely to just bash on this defense attorney, like he made a mistake. I know, like, he's a successful like, well loved trial attorney that's been practicing for a lot of years. And I don't think this one thing should define him. I think it is a mistake. I think it would be nice if he owned up to it a little bit more. But I also understand there are lawsuits and situations that that that would have an effect on. So I think it's good for us all to take stock, and like you said, retain our humanity. So

Tim Kowal  41:09 
with that, Brooke, let's have a mini book club. Here. You are the host of a podcast involving attorneys talking about books and movies, the podcast is called a lot richer, a play on the word literature. Brooke, tell us what you've learned from from hosting the literature podcast talking with attorneys about books and movies. What what are some some nuggets you've learned from from talking with, with attorneys about literature?

Brooke Bove  41:32  
Well, the thing, my whole thesis for the podcast is that no matter what book, you're reading, laws involved, whether the subject of the book is criminal case, or a trial situation or not. There's law involved and law touches every part of everybody's lives. As attorneys, we're storytellers. And the better we can get acquainted with it know about stories and how other stories are told the better storytellers we become. So that's my link between literature and lawyering. But, you know, you just get to know a lot about a person by the book that they choose, or the story that they choose to discuss, because a modern richer book is defined as anything that tells a story, right? It's gotta be a story. It could be even a nonfiction book. It doesn't have to be fiction, but it could be nonfiction. It could be fiction, it could be a movie, it could be, I did have one guest who chose a song. And it's a storytelling song, like a song that told the story. So we were able to, to apply the law to that story. But wherever you look, there's there's law, there's legal issues. And so we I like to highlight the attorney for part of the episode, like you've done with me today tell their story about their lives and their practice and things like that. And then we do a book review. We go through the facts of the story, we have the statement of facts is our plot. Right? And then the book. Yeah. And then yeah, exactly. That's what we do. And we treat it as if it's a law school exam, we issue spot it? Are there criminal issues? Are there estate planning issues? Are there torts are there, you know, you could find anything in almost every book. So I'm dying for somebody to nobody will take me up on this. But I'm dying for somebody to do the 50 Shades of Grey book with me and analyze that, you know, they have a contract in that book. Like that's like, here's what's allowed in our in this relationship that we're setting up and I

Jeff Lewis  43:25 
I nominate Tim, I think Tim would be perfect for that.

Tim Kowal  43:28 
So if word safe word. Yeah.

Brooke Bove  43:31 
So I you know, I think that it's it's mostly just fun and a way to get to know more attorneys and be forced to read things that I went that I might not otherwise read. So

Tim Kowal  43:41  
well, what are what, what's an example of a book or movie that you you read or watched because you are hosting literature that maybe you wouldn't otherwise have read or watched?

Brooke Bove  43:50  
Well, the first one that comes to mind is peace, like a river. And that's a book I'd heard of, but I was searched. I never, I never would have thought to read it. And it had an enormous impact on me emotionally. And I never would have found that book if it hadn't been for that podcast. And the other one that comes to mind is I had my brother in law on and he's not a lawyer, but he had me read a book that was it was a it was a teen drama, like a teen high school drama kind of book, but it was a romance. And it was a gay couple of homosexual male couple, and it was not a thing that I would have normally read. Not it's just not like what I'm interested in, like, you know, like, That's not the thing that is gonna be my first thing but it also had a really big impact on me that book and a YA novel is not something that I'm normally going to feel like it's going to have a big impact on me. But those those two novels are probably the most impactful but I mean, we've done everything from To Kill a Mockingbird to the song that we did was the gold digger song. I did it with a family law attorney talked about prenups and everybody's got some sort of sort of take on things that's really interesting. So

Tim Kowal  44:59 
and I saw it Of course, you've covered my cousin Vinnie, one of the greats.

Brooke Bove  45:03 
Yeah, we did. Crime and Punishment. And, you know,

Jeff Lewis  45:08 
have you covered the have you covered the Dresden Files yet?

Brooke Bove  45:12 
No, no, that's a great one.

Jeff Lewis  45:14 
I'm ready. I'm ready to come on when you're ready to talk about the Dresden Files. That's my favorite series.

Brooke Bove  45:18 
I'm making a note of that. My friend. Yes, my friend is and me are gonna do The People vs. Larry Flynt soon. Okay, great. So there's always there's the court case ones are obvious, but I like the idea of pulling out one that's that's not obvious. And finding finding some fun law to discuss.

Tim Kowal  45:35 
Yeah. Well, just to tie your your podcast about books and movies back to brief writing. You mentioned you like to you make your writing reference. See, do you does that include references to pop culture books, movies and things? Yeah.

Brooke Bove  45:49 
Yeah, I tried to do that. If, if, if it can be done in an impactful way, I'm not doing it just for the sake of doing it. But, you know, in a foreseeability argument, one site, I really strongly wanted to put the meme of from Dumb and Dumber, where he's like, you're saying there's a chance? You know, I? So instead, I just said, Lloyd Christmas would agree with me. So I just I just made a quick reference to it. But you know, I do that occasionally. Just lucky. Writing is sometimes very tedious. And sometimes, if especially if I'm up against a deadline, and I'm like, trying to stay up late, I will do I will say, okay, my, my job for the next two hours is to throw as many Harry Potter references or as many Back to the Future references as possible into this brief. And that will keep me engaged in engaged with what I'm doing. And then you know, you go back and take it all out or most of it out later, but just to keep, just to keep it fun.

Tim Kowal  46:43 
Yeah. All right, Jeff, I think it's that time in the episode.

Jeff Lewis  46:47 
All right. It is the time for our patented copyrighted segment of our show that answers the most pressing questions that Vex appellate nerds around the world, the dreaded lightning round, are looking for short responses, one sentence or less, and Tim is the number one violator of that rule when he pipes in. Here we go question number one font preference century school book garmont, or something else?

Brooke Bove  47:12 
Oh, Tim's gonna be so mad. But I am a times new roman girl.

Tim Kowal  47:15 
Oh, I'm so disappointed. We gotta

Jeff Lewis  47:18 
celebrate. We got to pre screen our guests a little better than this. Times New Roman. Okay. All right, the first two spaces or one after a period

Brooke Bove  47:27 
one?

Jeff Lewis  47:29 
Correct. Superior Court capitalized or not capitalized when you're writing an appellate brief the word the phrase Superior Court capitalized? All right.

Tim Kowal  47:38 
Literally superior. If it was literally superior, you use lowercase? Well, you can't

Brooke Bove  47:43  
say inferior. So you just got to you got to show a little difference, especially if you got to be in front of that Judge some other time? That's right. Answer.

Jeff Lewis  47:52 
In the appellate court. We're talking about appellate briefs here. Your major argument headings. All caps, initial caps or sentence case.

Brooke Bove  47:59 
Oh, the big headings are all caps.

Jeff Lewis  48:02 
Yeah. Okay. And left justify or Full Justify for your text. Bold, justify. Alright, cool. Justify. Wow. All right. And we already got the answer to this before the podcast started. but I'll ask anyway, after major headings and a brief Do you start the next section on a new page or just continue immediately? Immediately below?

Brooke Bove  48:21 
lawyer answer? It depends. Okay, if you're halfway through the page, start the new section on a new page. But if you've got, you know, if you're early on in the page, like start it, do a couple spaces, line spaces and then start it there. All right, other than your

Jeff Lewis  48:37 
questionable font choices, you have survived the dreaded lightning round. Congratulations. Yeah. Back to you, Tim. All right,

Tim Kowal  48:45 
Brooke, thank you so much, again for joining us. And that's going to wrap up this episode, we want to thank our sponsor once more casetext each week, we include links to the cases that we discussed and we use casetext listeners of the podcast can find a 25% lifetime discount available to them if they sign up at casetext.com/CALP

Jeff Lewis  49:05 
If you have suggestions for future episodes, please email us at info at Cal podcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Tim Kowal  49:15 
Thanks and see you next time.

Brooke Bove  49:16  
Thanks, you guys.

Announcer  49:17  
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a 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 ca l 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