The Best Advocacy Tips of 2022

Announcer  0:03 
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.

Jeff Lewis  0:17 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:19 
And I'm Tim Kowal both Jeff and I are certified appellate specialists and uncertified podcast co hosts we split our time about evenly between trial and appellate courts. My wife says that makes us attack librarians. So we attack librarians try to bring our audience of trial and appellate attorney some news and insights they can use in their practice. If you find this podcast helpful, please recommend it to a colleague and if not, please recommend it to opposing counsel, and a

Jeff Lewis  0:42 
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Tim Kowal  1:05  
Okay, Jeff, and we're continuing our recap of 2022, some of the best and worst practice tips and Follies of 2022. And in Episode 64, we brought you our picks for the most important cases of 22. Today, we're going to review the cases from 22 that we thought had the best tips for advocacy, both briefing and oral argument and civility, avoiding sanctions, we run the gamut so and also what to do and not to do when it comes to briefing and oral argument. So Jeff, you want to kick us off on the category of briefing and writing what to do what not to do and briefing and writing some of our best and worst from 2022?

Jeff Lewis  1:44 
Yeah, I'll kick us off. And thank you so much for starting starting this list, he did a great job with this list. We're gonna start with Sigmon versus imdb.com, from Episode 23. And this is a published decision. And the opinions only four paragraphs long, a lawyer who represent himself at trial and again on appeal is an opening brief had a table of authorities with only one entry. And from this, the court found that legal propositions in a brief without a citation to back it up will be ignored. It's a great as Tim would say, a great tool to add to your toolkit for briefing rules.

Tim Kowal  2:18 
That's right. Yeah. And I thought that this case, Jeff was was not really that surprising, because we all should know those of us appellate practitioners who've read the rules of court that if you don't include citations to your arguments that they may be ignored. I thought this was interesting, because why did the court publish it? Because that was the sad thing is that this case was published and was very, very short. So you can't just say that? Well, it's held to its facts. It's because of these unique circumstances. There were no circumstances provided. In this opinion. I thought that maybe this published opinion that holds that uncited legal propositions may be ignored could be abused in the future just for citing routine, black letter law, if you don't include a citation for it. Is that going to be ignored? You think, Jeff?

Jeff Lewis  2:59 
I don't think it's gonna be ignored. Look, I think it's obvious the law clerks at the air that research attorneys of the Court of Appeal decided this would be a published decision, obviously, so to be mentioned on this podcast to improve the quality of appellate briefs.

Tim Kowal  3:12 
Both right. Okay, let's go to our next one.

Jeff Lewis  3:15 
All right. The next one is unpublished decision and Quach versus California commercial Commerce Club from April 2022. Again, it's unpublished.

Tim Kowal  3:23 
I think this one later did become published. I think I put in Okay, Acacia so it was later published. Nice. Okay. Breaking news.

Jeff Lewis  3:30 
This is one of these rare cases where I agree with you, Tim, this case suggested is unethical to copy arguments from court opinions without attribution. And I agree it's not a good practice. But the Court of Appeal in a footnote said it'd be unethical for a appellate attorney to cut and paste an argument from an opinion without giving any attribution. I think you had a write up on this.

Tim Kowal  3:52 
Yeah, I did have a write up on this. I wondered why you would want to copy and paste language from a from an opinion without citing to it, if I recall correctly, this was I guess it's possible that it was copied and pasted from an unpublished opinion. And maybe that's the reason for not citing to it. Yeah, yeah. Yeah, that could be and I had heard from a legal conference somewhere that a research attorney had said, you know, when you copy and paste from unpublished opinions, just to get around that non citation rule, we know about it, we don't like it. I thought, why would you care? If it's a good argument, then you then follow the argument? If it's not a good argument, then go find a persuasive than fine, but don't dig me for borrowing. There's no copyright protection and legal opinions. All right, one of our most fun episodes, Jeff, I thought was our interview with Ross Guberman and episode 33. Ross is a treasure trove of briefing advice, and that was an episode 33. So refer back to the full episode here. But here are some of the highlights that I recall from our conversation with Ross Guberman. We talked about how all judges have three key fears we should try as advocates to try to tap into those fears that judges have. They are the fear of misconstruing a doctrine or statute the fear of creating new duties, rules or defenses and their judicial opinions and the fear of reaching an unfair result or causing harm to a litigant. So try to tap into these fears when you're writing your next appeal, see if you can tap into them and either spark or allay those fears as the needs of your case dictate. Another tip from Ross Guberman is about discussing bad facts with confidence, not out of defensiveness. Judges and coyotes both can smell fear. But unlike with coyotes, you don't want to try to haze a judge, but you definitely don't want to act like you are fearful of certain facts or and you certainly don't want to just plain ignore bad facts or downplay them. That all looks defensive, take the bad facts head on and explain why you win. Anyway, another tip from our conversation with Ross Guberman. Remember, the purpose of legal writing is to help judges organize their thoughts. briefs are a tool but aspire to make them tools that are a pleasure to use. So try to give them the information they need. But sometimes, you know, this isn't just a toolkit. It's not just hammers and nails, tried to make it a pleasure, use a good turn of phrase, try to avoid jokes. Humor is sometimes not well taken in in legal writing. But there are still ways that you can make your writing pleasurable to read. We did talk about using clever quotes and flourishes remember Business before pleasure nail the organization and analysis first, mastery of style comes later. And with great care. That's why Ross reminds writers of the old advice to kill your darlings. Find the line in your brief that gives you the greatest satisfaction when reading it back and then delete it.

Jeff Lewis  6:41 
You need your brief to stand out you know get attention especially if it's a repetition. You want to get attention. But I guess you don't want the writer to get the attention. Jenny want the legal issues and arguments to get the attention? It's a fine line.

Tim Kowal  6:53 
It is it is a fine line. What do you think about the kill your darling rule? Jeff, do you use that you ever write anything when you get when you read it back and say I really liked that line?

Jeff Lewis  7:02 
You know, I'm hard to satisfy when I get to the final final brief that I'm ready to submit. I still think there's areas that can be fine tuned. It's the rare day where I look at that, Scott, I really enjoyed reading that back. I have a very critical eye and so I don't find many darlings. This is not an issue that I typically have in my briefs.

Tim Kowal  7:19 
Yeah, I do like writing I like aphorisms, putting aphorisms, pithy remarks in my writing, and I try to put my, I guess, sharper edged aphorisms in my non legal writings. So if I'm writing essays or book reports or something, I'll put that up on a blog or on LinkedIn or something and try to scratch that itch there and leave them out of my briefs. Right. Okay. And then on Episode 51, we had another one of our great conversations with Justice James Landon, a retired Court of Appeal justice from the first district I just really love this line to that Justice Landon had describing litigation. He said, litigation is not like preparing for a battle. It's more like going on an expedition like taking a trip across the mountains and encountering different places where you have to do different things. And the reason I put that in the outline here, Jeff, under briefing and advocacy tips, I thought it was just kind of a great high level type of way of thinking about your advocacy in general, that everything about what we do in persuasion, is like taking a journey. It's like trying to take the judge that you're trying to convince on this journey with you through the facts. It's kind of a metaphor for showing and not telling, you know, you don't need if you're trying to use adjectives in order to bring your judge to your conclusion, you're doing it wrong, you need to take them on the journey with you. You don't get to magically teleport them to the conclusion by way of adjectives and adverbs. Right, right. Another one of justice Landon's tips was have an elevator pitch for your case, if you only have arguments, but no theme, you're not ready to sell your case. That was another great tip for advocacy in briefing in general, if you're going into your brief, without really knowing what your case is about. Maybe you're not ready to put pen to paper yet. You should know the theme of your case before you try to craft your arguments

Jeff Lewis  9:09 
and maybe abandon themes that were adopted at the trial level and tune them better if and switch them if they didn't work at the trial level.

Tim Kowal  9:16 
That's right. That's right. That was the tip that Justice Thompson had for us. We'll we'll come to a recap of his tips as well. And then justice Landon had this bit of wisdom about the vexing problem of what to do about unpublished opinions. We talk you know, this is one of my hobby horses. Jeff, what do you do when you find that great case on all fours? All the facts are there the law is there but it's unpublished, just as Landon Landon says, Who cares? The California Court of Appeal is not bound even by published decision. So even if it was published, it's not like it's going to save the day for you. There's no horizontal sorry decisis in the California appellate system. If you find good legal reasoning, whether it's in a published or unpublished opinion, use it. If the good argument comes from a published case, then make the art even cite it if the good argument comes from an unpublished case, make the argument but don't cite it. In either event, it's not the best citation but the best argument that wins. And Jeff This reminded me of one of my favorite quotes kind of in my I tried to memorize this. I haven't been complete a memory memory yet, but it's Johann SCOTUS authority sometimes precedes from reason, but reason never from authority. We should not opinion and this was one of the early church fathers, we should not allege the opinions of the Holy Fathers unless it be necessary thereby to strengthen arguments in the eyes of men who unskillful and reasoning yield rather to authority than to reason. I thought that just reminded me justice Landon's comment reminded me about this because he says, you know, it's not about the authority, you're not trying to you're not trying to arm wrestle the judge into believing your arguments, you want to persuade them into believing your arguments,

Jeff Lewis  10:52 
yeah. Or at least give them comfort in terms of laying their fears that at least other people have either had published or unpublished decisions come to the same line of thinking. So the decision maker here would be in good company, right?

Tim Kowal  11:05 
Yeah. Okay. And then we also talked with MC Sangala, our first podcast guest, and also who also made another appearance on episode 60 of the podcast, MC has interviewed over 100, judges and attorneys now on the Porsche project, maybe even more by now, it's been a couple of months. She's distilled the wisdom and experience of women, judges, justices and top attorneys in the nation. And the big idea that MC Sungai, Allah came to, after all these interviews is that when writing for a judge, be mindful of the disconnect between lawyers and judges, advocates are looking for an outcome. But appellate judges are looking for an opinion, you're looking for a way to write that opinion, consistent with the law that makes us few innovations as possible. They're not like us advocates trying to bury opposing counsel, they are trying to do so write their opinions in a graceful manner. So try to help the judges get to a conclusion that fits comfortably within settled law. And obviously, in a way that helps your client as well. Yeah, yeah.

Jeff Lewis  12:07 
And then next up from Episode fifth. Before we had our interview with Justice Thompson, I retired justice Thompson, who I give some advice on rip petitions. If you don't convince the panel in the first paragraph, you've lost, but some justices might be more lenient. That's a practice we follow at this firm. And we've applied it to good results here on briefing, Justice Thompson. advisors get the basics right. Follow the rules of court explain the trial court's air and how it resulted in prejudice. Acknowledge the flaws in your argument. And above all, be true to the record. I remember justice Thompson I asked him point blank here, two justices and the research attend our attorneys ever remember attorneys from this case to the next case who are not true to the record? He said, Yep.

Tim Kowal  12:50  
You do not want to be memorable in that fashion. Yeah.

Jeff Lewis  12:54 
And then using signposts and briefing transitions between sentences, paragraphs, and thoughts are the way good writers hold their readers hand throughout the brief. And the word Moreover, is a substandard signpost. Yeah. So that was Justice Thompson.

Tim Kowal  13:09 
Yeah, that's right. Yeah. Moreover, is just another way of saying, I'm still talking. Not help.

Jeff Lewis  13:16 
From episode 58. We talked about using pictures, even memes and briefing, we discussed the prayer at football games case in front of the US Supreme Court where one justice rebutted in an argument of another that prayer was quiet and short, private with that Justice use several powerful photos of a group of players congregating at the 50 yard line. So yeah, sometimes pictures and memes can be provocative.

Tim Kowal  13:38 
Yeah, right. I know, this is a favorite tip of yours. Jeff, do you have any other elaborate just a little bit more on your practice of using pictures from the record in your briefs?

Jeff Lewis  13:47 
I do like to do it. I like to take snippets of either it's a photograph or a key chart or exhibit and just cut and paste it right in the middle of a brief. It breaks up long arguments and long narratives and it catches the eye for better or worse. Do you like to do it on a related point

Tim Kowal  14:03 
in the discussion section or the introduction of a preference? No, I don't typically do in

Jeff Lewis  14:07 
the introduction. I'll do it normally, in the statement of facts statement, a case or argument, as you say, on a related point, you know, a lot of appellate lawyers don't take advantage, the fact that California Rules of Court let you attach any 10 pages you want to the end of a brief, and what are the 10 pages that you would most want the Court of Appeal to focus on whether it's from the record or from an important case, I find it really surprising that most appellate lawyers don't take advantage those 10 pages and find some picture or excerpt or deposition transcript or something and make it easier for the Court of Appeal justices to see what's important.

Tim Kowal  14:40 
Yeah, that is a great tip. And I've been thinking more than it might be good just almost as a rule unless you have some better idea to use that 10 pages at the back of your brief to just maybe include the if you're well, I guess you're the appellant including the amended order or the ruling that you're challenging that has the trial court's reasoning that you're challenging on up Oh, that's the first thing that the that the research attorneys and justices are going to want to grab for.

Jeff Lewis  15:05 
Yeah, yeah, I just filed an opening brief where we're challenging the jurisdiction of the court of appeal because the other side didn't file a Notice of Appeal properly. And we use those 10 pages to file to attach a judgment, an earlier judgment and a notice of appeal. Those are 10 pages. So the justices can very easily see those jurisdictional foundational documents.

Tim Kowal  15:25 
Yeah, yeah, that's perfect. All right. In Episode 32, we talked with John Derrick and appellate specialist and appellate mediator, who as a former publisher offered this advice to attorneys in their briefs to when they're crafting their outline, that all important outline for structuring your brief use a decimal outline format for headings, like instead of Roman numeral one, and then big A, and then Arabic one, and then small a, use one and then 1.1, and then 1.2, and so on. What about you, Jeff, have you tried that yet? I know there is a I think it's a minority view that uses the decimal format, it's a little bit easier to put things in context, when you just happen to open the brief to a page and you see a number and you're being unfamiliar with the rest of the outline format. You don't have any idea where you are. What do you think, do you like the traditional way or this decimal format?

Jeff Lewis  16:13 
I can't say I've used it, I would say if you've got nested arguments where you're at the 1.3 point 7.9 place, you got bigger problems in your brief and how to number in terms of complexity of arguments, but now I'm more old school use them?

Tim Kowal  16:30 
Yeah, yeah, I think that's a good idea. Also, I know research attorneys and justices seem to be insisting that the courts are insisting that you bookmark your full briefs so that they can find all of your arguments and headings by using the bookmarks panel on the left hand side of Adobe Acrobat. So maybe that makes it less important to have that kind of absolute type of reference that the decimal outline form outline format would provide. And then another piece of daring advice in formatting your briefs came from Ryan McArdle in Episode 24, he had a lot of great writing and briefing advice, but the one I thought was the most daring was to kill those vertical lines on your pleading paper. Now, this is a trial court tip, not appellate court. If you're using pleading paper and appellate court, then you need to really rethink your life choices. But you can in the trial court, Ryan McCarl says, there's no reason to have those vertical lines on the left and right hand side of your paper, you do have to have the numbers that pleading paper format does require that you have the numbers so that the judges can cite the page in line numbers. But those extra vertical lines and especially even if you're including your firm name and address and email address and phone number on in the margins of your paper, that's just creating a lot of visual clutter that makes your your reader anxious. So kill all that stuff. Ryan McCarl says, I tried that on a couple of my briefs. I kind of like it. I haven't adopted it as my official pleading paper format, but I have tried it and I like it.

Jeff Lewis  17:56 
I got a little anxious just hearing you talk about that the thought of removing those lines and sticking out like that. So no, thank you. But let me know how it goes for you.

Tim Kowal  18:06 
You know, you and I both really adopting legal tech but sometimes you have a real Who Moved My Cheese disposition on certain. That's true. We also had had a really fun conversation with Stephen love. On episode 43 Devin love had reviewed a recent book on persuasion trial tips based on science on scientific studies. And Stefan's conclusion is that the tips were in greater abundance than the science. It's true that there is much interesting science on the limits of human attention. For example, you can get a person to remember a few things but one too many, and they forget it all. So this was in our review of John Blumberg book persuasion science for trial attorneys. And when Stefan love and then you and I Jeff went back and forth with him. During that conversation, the foil for the conversation was trying to decide whether all these great trial persuasion tips were scientifically based or just plain good advice based on common sense. It was all good advice regardless, but some of the tips we discussed were excessive information can lead to worse not better decisions. Juries learn better with pictures. He could have guessed that, but avoid competition for resources. So don't use written words spoken word and images all at the same time. It just creates overload and confusion. Not that was a good advice because I think we see this a lot Jeff Justin, even non legal presentations, PowerPoint presentations where people just put up on the screen what they're going to say and they also say it to you. Yeah, yeah. Along similar lines, you should not present all your evidence at trial because it overloads the jury's cognitive capacity. This is a tough bit of advice to put into practice, Jeff because it means you've got 20 pieces of great evidence, but this advice would say you know, cut out half of them or how do you know what to cut out? out if you got great evidence, don't you want to put it all in? When the appellate attorney coming in later say, why didn't you put it all in? Now, I don't have this available in my appellate record.

Jeff Lewis  20:08 
Indeed, it requires a certain trust in the decision making process, a trust in the jury or the judge. And I suppose the enough experience a good read of the jury, you could do that. But you know, and on the point of excessive information, leading to worse, not better decisions and limiting this evidence, I wonder from a plaintiff's perspective versus a defensive perspective, if some defense strategies might be to have an access of information and presenting all evidence at trial, so the jury just kind of throws their hands up.

Tim Kowal  20:37 
That's exactly right. We that reminds me of something that Ben Ikuta said during our conversation with him a couple of weeks ago that if if you're the defendant Hospital, in a med mal case, then confusion and complexity is on your side, you want to bring a lot of experts to talk a lot of jargon and a lot of confusing things. So the jury just throws up their hands and says, I'm sure the doctors have this all in hand. They know this better than I do. So yeah. So know when when simplicity plays to your hand. And when complexity plays to your hand that will help you decide whether to put in a lot of evidence or try to focus in narrow your case. Another bit of advice that we've talked about what Stephen love, judges who strive to run, ruthlessly efficient trials should reconsider. Eliminating downtime actually undermines jurors ability to process the information. So I've seen this a lot in trials, Jeff, where the judge is mindful of sucking up all the jury's time and doesn't want to use a lot of more breaks than necessary and wants to keep you know, done with your witness. Okay, get the next one in here, pronto. And let's get started ASAP. But if you're the pre trial attorney, try to build in a little bit of downtime in between your the different segments of your presentation that will help the jury process the information they just been given.

Jeff Lewis  21:50 
Well, and there's a timing issue, a timing issue there. If you have a big point that's going to be made by a witness, maybe timing it right before the lunch break, or when you know, the morning break will happen. So that even though you have one of these judges, that is ruthlessly runs a schedule, you have a built in breaks, the jury has time to take in this big aha Perry Mason moment you've had on the stand.

Tim Kowal  22:11 
Yeah, that's right. That's right. And if you do have a good checkpoint type of information, something you want to anchor in the jury's mind. Maybe you put that up on an easel board, but butcher paper, you know, write down the information and then leave it up there where the jury can see it the rest of the trial. Yeah, as long as your opponent doesn't jump up and down screaming, yeah, or they or they turn it around away from the jury. And then for the same reason, trial attorneys should slow down in their presentations, don't talk so fast, use repetition, and even stop talking every now and then again, let the jury digest the information you're giving them. All right, so next topic in our interviews this past year, Jeff, we've covered some issues regarding legal judicial writing. And again, we talked about this subject with Ross Guberman. When we talked about tweet worthy writing and judicial opinions, the trend in judicial opinion writing is toward informal writing. But Ross mentioned a Ninth Circuit opinion, we talked about this opinion by Judge Lee who had a couple of Hamilton references and a reference to the bachelor. And I think a Matthew McConaughey line. There was also some Star Wars commentator taking some some shots at Star Wars in the opinion. And this was all in a case about class actions. So maybe maybe the judge felt that there was a little bit of dry going Material that he would spice it up a little bit. And that prompted the question that that we talked about with Ross. What does informality mean? In legal writing? Does informality mean dropping a lot of pop culture references and tweet worthy, memorable aphorisms should? And if it does, should attorneys imitate this trend toward pop culture references and tweet worthy writing that we see in judicial opinions? This is kind of a monkey see monkey do phenomenon we have if we see incivility and informality and judicial writing, we're going to see it in attorney writing eventually, right

Jeff Lewis  24:01 
now, right. And when justices does the loser of the case, think well, the case wasn't taken seriously. This was just a writing exercise. And that justices didn't appreciate that real people and real monetary issues were at stake. And same, I guess could be said of lawyers who adopt that informal style.

Tim Kowal  24:18  
Yeah, yeah. And I think the takeaway there is that there is a difference between formality in terms of conversational legal writing, I think that's the good kind of informality that we can all adopt safely and that most judges enjoy more informal legal writing less stuffy legal writing, we can drop needless jargon and Latin. We don't need to overflow the banks of the English language and start trying out other other languages in order to make our points. We can stick with just conversational tone in our legal writing, but we can stop short of cracking jokes and that would be more appropriate for social media. And then also on the subject, Jeff, we covered a second amendment amendment decision in McDougal versus his county of Ventura This was back in episode 26. I think that's the episode we talked with Sean Brady. And, you know, Jeff, you and I kind of agreed at the time about Judge van dykes tone, we'll call it or his the tacky took in his majority and concurring opinion, I think it was where he anticipated there would be an on bonk review. So he wrote his own dissent in his concurring opinion. And after we talk with Sean Brady, who had mentioned that there's some weird things going on with some of our Second Amendment jurisprudence, and you feel that, as Judge Van Dyck obviously did, that there was something amiss going on and needs more attention than maybe the way he went about it was certainly sure, it was certainly successful at garnering attention into this kind of deviation of precedent on Second Amendment. So both you and I kind of thought, well, maybe there's something to it, if it's getting results in terms of garnering attention to an important issue. Maybe we have to call that a success. Do we still agree with Judge van dykes tack in the McDougal versus Ventura decision?

Jeff Lewis  26:03 
Well, let me say more broadly, that I think the ability of a appellate justice or federal appellate judge to issue a dissent is one of the most important things that a judge can do. And it gets attention on issues that need attention. And so yeah, yeah, I still agree.

Tim Kowal  26:19 
Yeah, I guess I do, too. I guess I do, too. It was we were just recapping our conversation with Ross Guberman about the kind of this monkey see monkey do problem. I I wouldn't want there to be too much imitation of Judge van dykes, we'll call it a derisive tone toward his colleagues. I think most attorneys would know that that's not the appropriate tone to take toward judges, even if judges sometimes will take shots at each other. Let's move on to tips about oral argument, effective advocacy in oral argument on appeal. We talked with Myron Moskovitz. I don't remember if this came up during our conversation with Myron, we just shared this during one of the tidbits of our episode, but Meyer Moskovitz talked about the futility of oral arguments on appeal. Myron observes how seldom oral argument affects the ultimate outcome and how tentatives are focused letters can improve the system. He also talks about how the refusal to give tentative or focused letters has become inexplicable. Myron says, Come on how many of us are quick enough on our feet to come up with a persuasive rebuttal to a new twist we've never seen before, right on the spot and no prior thought about it with three robes staring at you waiting to see if you can talk them out of a position they've already decided to take in their written opinion. And quote, I think that's a pretty strong case to be made for focus letters.

Jeff Lewis  27:36 
Yeah, you know, I gotta say the most surprising thing about doing this podcast with you and interviewing retired justices is what a wide variety of opinions there are out there about the utility of oral argument. We've heard some appellate justices say, Yeah, it really doesn't make that big a difference. And most of the cases we've heard some say, yep, every one's important. You just never know when that's the that's the argument. That's gonna matter. It's been surprising.

Tim Kowal  27:59 
Yeah, I have myself flip flopped on that. I've gone from from waving a couple of oral arguments after getting instruction from my client to after talking with Justice Thompson. We'll cover this in just a moment. Who says never waive oral argument because it makes us judges on the panels think you must not really believe in your case. Yeah. Yeah. And related to this point about oral argument, MC singalila. had this great advice. Justices want to know how to write the opinion. So take a breath and stop trying to win for just a minute and help the judge see how it can be written in an actual appellate opinion. That was from our discussion in Episode 60. And then the prior point about the futility of oral argument unless you have a focus letter that came from Episode 34. Okay, Jeff, you want to share justice Thompson's tips about oral argument and rent relief, these points about oral argument? Yeah, you

Jeff Lewis  28:51 
know, he's he, he said, Never wave. I don't know, I would put an asterisk next to that strategy. But he says never waive oral argument, at least show up and offer to answer questions. I have to say, at least when I was paid appointed counsel of criminal cases, there will be times where I would waive or when I have an elderly client, and I want to move things along. So there are exceptions to that rule. But I will say this, as a respondent, I never want to waive oral argument because the appellant always got the final word in the reply brief. And I really want to have the final final final word. And as the appellate even if everything has been briefed already, the ability to tell the justices why to make policy arguments, not just that there was a mistake, and that there was prejudice, but why the court should care. So I tend to agree, never wave in general, with some exceptions. And he also offered up on appellate strategies that re arguing the same theory that lost a trial might be a doomed strategy and early on, identify what that theme was and maybe making adjustments on the fly.

Tim Kowal  29:47 
I think that was a very strong takeaway. Very strong sales pitch for us appellate attorneys for why the trial attorney maybe should consider handing off the reins to an appellate attorney or at least getting a second set of eyes on their case. Yeah,

Jeff Lewis  29:59 
you also You know, set up our oral argument catch 22. If the argument wasn't in your brief, why wasn't in your brief? Why are you going to argue it for the first time in oral argument? And if the argument was in your brief? Well, why are you simply repeating yourself? And this is that the heart of what Justice Thompson called the perennial question about, give me an effective oral argument. And Justice Thompson provides a solution, identify the real crux of the case, try to present it as in a slightly different way, putting a slightly different spin, perhaps to disarm the panel. You know, again, I would say getting into the policy arguments, or maybe as Ross Guberman talks about tapping into those three fears, either putting the fear in or allaying the appellate justices fears depending on where you are in the case. Yeah.

Tim Kowal  30:40 
And what do you think, Jeff, about during oral argument going ahead and just taking on your opponent's strongest arguments or strongest facts? Yeah, I mean, you've presumably, you've already done that in the briefs. But if you think you can do it with confidence at the oral argument that might be even more powerful. It's not something I've ever done.

Jeff Lewis  30:57 
But boy, maybe that's a fish to add to my head in terms of prepare for oral argument. Yeah. And finally, just as Thompson said, Don't regurgitate and don't take the other extreme and come up with a brand new theory of the case. Don't simply repeat what's in your briefs and don't come up with a brand new theory of the case on the fly in the middle of the year. oral argument doesn't work out. Well.

Tim Kowal  31:16 
Yeah, that's that's a good book. And his two comments about a theory of the case don't use the same failed theory of the case that used a trial. And that didn't work. And also don't come up with a brand new theory of case at oral argument make sure to do expound on that new theory in your briefing. All right. Yeah. Meyer Moskovitz had one other oral argument tip. He's a font of wisdom for appellate advocacy. But here's another bit of oral argument advice from Meyer Moskovitz. There's Moskovitz. His theory about when you should start preparing for oral argument is that after your reply brief, is it a week before oral argument, Myron says you should know what your oral argument theme is, before you even draft your reply brief. Not after your reply brief after it's too late. The reply brief, Myron says is so crucial, because it's the last thing the justices will read. And even for some jurists, it might even be the first thing they read. But he thinks it's it's probably the most important part of your briefing. So you should be able to anticipate what the panel is thinking before you go into that reply brief. And craft your oral argument is kind of a book end to what you're putting in that all important reply brief. So if you haven't been able to guess what the justices are thinking, by the time you write your reply brief, then you're certainly going to be too late by the time you sit down and start writing out your notes for oral argument. Right?

Jeff Lewis  32:30 
Yeah, MC Scalia, with our second visit with her talked about how appellate judges look at oral argument as another part of their process in preparing to make the decision. And we shouldn't look at oral argument as just an isolated 30 or 60 minutes. That's not how the panel sees it. It's really the final stage in the drafting of the opinion. I thought it was a helpful way of looking at it and just slammed in give us advice about

Tim Kowal  32:53 
Yeah, Jeff went MC and gala related that I don't remember it was before or after I read something similar that Justice beds worth wrote in his column about how important oral argument is for his his preparation of the case. He was actually making this point in his pitch that attorneys waive more oral arguments, but But it had the opposite effect for me because he related how much time and concentration he spends in advance of oral arguments. So we can think what questions do I need to write? What are the key questions I need to ask and what are the key issues that are going to drive the opinion here? So that oral argument is important for the justices. They're preparing for it just as you are, in a lot of ways, they're preparing for it even more in a focused way because they're writing getting ready to write their opinion at the same time. Yeah.

Jeff Lewis  33:36 
And then returning to some of the points raised by Justice Landon in our interview with him, he said even more than being buried alive, just landed said attorneys are terrified of missing an argument and that is why attorneys tend to indulge temptation to be over inclusive in their arguments. But he says making too many arguments comes at the cost of credibility. If the attorneys just run in a loop again, the bench is more likely to tune out we always notice justice London recalled from his time on the Court of Appeal when an attorney told the court which argument to focus focus on but making too many arguments comes at the cost of credibility. If the attorney is just running the loop again, the bench is more likely to tune out we always noticed justice lamb recalled from his time on the Court of Appeal, when an attorney told the court which argument to focus on you'll show courage if you can all adjust certain argument is not your strongest and you'll earn credibility when you pivot to the argument that is your strongest.

Tim Kowal  34:29 
Yeah, this really speaks to the need for experience and confidence both. You know, earlier, we talked about how important it is if you're the trial attorney, not to bombard your jury with every scrap of evidence that you may have and that's going to take skill and experience and competence on the trial attorneys part to know you know, I think I've already gotten well over the line. I don't need to keep going because then I'll just start over taxing the jury's ability to process this if same thing happens on appeal think if you start repeating yourself or saying the same argument in different ways or making too many arguments. It undermines your confidence in your main arguments. So I think it takes takes skill and experience and confidence on the part of the appellate attorney to know when enough is enough. Yeah, yeah. All right. And turning to our final topic, civility and sanctions in appellate practice. First case that we wanted to recap was clarity. Ko consulting versus Gabriel. That was an April 2022 decision that we talked about back the episode handy here. But we covered this case dealing with $25,000 in sanctions, which was talked about quite a bit earlier in 2022. We talked about this in Episode 31. The clarity court offered this public service announcement on behalf of appellate attorneys everywhere, quote, trial attorneys who prosecute their own appeals may have tunnel vision. Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar schooled in appellate practice. And that's quoting from another case. But clarity code consulting is a published decision well worth bookmarking for the issue sanctions that can occur on appeal and the wisdom and consulting appellate counsel before going forward another case involving an admonition of counsel for making uncivil accusations in his appellate briefs, sometimes with judges don't get your arguments and that can be frustrating but don't lose your cool. The Court of Appeal in Shaw versus Fidelity National Title Insurance from December of 2022 admonished counsel for impugning the trial court and opposing counsel in the appellate briefs. The appellate attorney had said that the trial court refuses to learn the law. The trial court misrepresents the law and knowingly airs to achieve a pre conceived outcome. Perhaps the most colorful turn of phrase the MSJ proceedings tele counsel said was a magical mystery trial. And finally the council accused the trial court of duplicity and not to be left out. opposing counsel, as

Jeff Lewis  37:01 
I just said, was that a darling? The trial judge should have taken out of his writing that reference the musical Mystery Tour.

Tim Kowal  37:08 
Yeah, yeah, that is a maybe a fun turn of phrase and another context but it was simply off putting in this in this one in a legal brief. I think this was a darling that to have been killed before getting the file button. Not see. The Court of Appeal admonished, though did not sanction counsel for the diversion from the Rules of Civility, quote, such bombastic ad hominem attacks have no place in an appellate brief and are potentially contemptuous and sanctionable behavior and quote, I've never seen this tack work in appellate courts, Jeff, counsel may be admonished for using bombast and adverbs to access but worst of all, you have lost all hope of persuading your panel. Shah was unpublished but relied on published authority. So if you're looking for a citation, check out the shot case for that authority. And then finally, I wanted to cover the McQueen vs. Wong case from back in March 2022. This case was interesting because appellate sanctions were imposed, but not necessarily because of any improper activity that occurred in the appellate court. The appellate court in that case, if you recall, Jeff pointed to gamesmanship, that appellate that the appellant had perpetrated in the trial court. So the appellate sanctions were for trial court misconduct. The appellate arguments here were not sanctionable by themselves. And I thought this was interesting. So be mindful of your conduct, because it can come back to haunt you, even if not in trial court sanctions later on. It can haunt you on the appeal. Right, right.

Jeff Lewis  38:38 
You want to take a stab at covering some recent tidbits. Tim, should I start, see how it goes? Yeah, give it a shot. All right. So Tim, imagine you have the privilege of arguing before the US supreme court one day, and instead of making the arguments and saying the things that come to your mind, you simply repeat the words and phrases whispered into your air ear through AI technology. That is the improbable and provocative proposition made by a company called Do Not Pay. It's offered to pay $1 million to an attorney willing to sneak an airport air pod through court security and parent AI arguments to the United States Supreme Court. Did you see that tweet today?

Tim Kowal  39:18 
I did see that when you shared it with me, Jeff and I saw someone's response. How do you propose getting your iPhone and your air pods through the Supreme Court checkpoint? They don't allow you to take your cell phones into the courtroom there.

Jeff Lewis  39:31 
Yeah, yeah, we have to be very creative that you're hiding. That was what an interesting story. You know, it's a little bit of clickbait because that same company is in the news or having a AI powered advice in a actual trial proceeding, not to the US Supreme Court, but a trial proceeding that had made some headlines. So that was one news story I want to share with our audience. Second new story I want to share is that a judge in San Francisco denied an injunction from some folks who are alumni and descendants Mr. Hastings I used to be the names sake of the law school up there Berkeley, I had no idea there are legal proceedings to stop the name change from happening. I guess there's legislation that has renamed the school to the University of California College of the Law, San Francisco. And the injunction was denied by a judge up there, but I suspect an appeal will follow.

Tim Kowal  40:17 
Yeah, that's, that's an interesting development there. I wonder how long before Yale has to change its name. And after a lie who Yale a very prominent slave holder back in the day, I wouldn't hold your breath on that. Because it's not an Ivy League school only only the non Ivy Leaguers need to change their names. Yeah. Yeah. Nice. All right. All right. Well, that's gonna wrap up this episode. Again, we want to thank casetext for sponsoring the podcast each week when we include links, we use casetext for those links and listeners of the podcast can find a 25% lifetime discount available to them if they sign up at casetext.com/CALP that's casetext.com/calp. And if you have suggestions for future episodes, please email us at info at cow podcast.com. And as we go forward in 2023, look for more tips on how to lay the groundwork for an appeal and get more trial and appellate insight.

Jeff Lewis  41:09 
Right. See you next time.

Announcer  41:11 
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