The California Appellate Law Podcast

Ten Trial Tips That Appellate Specialists Want You to Know

February 28, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 74
The California Appellate Law Podcast
Ten Trial Tips That Appellate Specialists Want You to Know
Show Notes Transcript

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case.

And, you had better make a record on it.

On this episode of the California Appellate Law Podcast, reprising Tim’s recent CLE presentation, we cover 10 tips that appellate attorneys want every trial attorney to know:

The rule that contains all appellate rules: Make the Record.

#1 Make sure your theories of the case are captured in your pleadings

#2 Was key evidence excluded? Preserve the issue by making a proffer.

#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

#4 Object to Jury Instructions

#5 Review the Verdict for Inconsistences

#6 Request and Object to the Statement of Decision

#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

#8 Calculate Appellate Deadlines Correctly

#9 Avoid Common Appellate Briefing Mistakes

#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

Evergreen Tip: Get a Court Reporter!

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

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

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

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. Welcome,

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

Tim Kowal  0:19  
and I'm Tim Kowal. In California appellate law podcast is a resource for trial and appellate attorneys and each episode we try to bring our audience some legal news they can use in their practice. And a quick announcement

Jeff Lewis  0:30  
our podcast is sponsored by casetext. casetext is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find peace authority fast. I've been a subscriber of case tech since 2019. And I highly endorse their service listeners to the podcast will receive a 25% lifetime discount available to them if they sign up at That's a l p, and that is all that you and I can say about case Tech's amazing current and future products.

Tim Kowal  1:01  
That's true, although I can't say a word about lightning fast interface. Jeff, when we were preparing the outline for today's episode, you asked me a question in the outline, and I just zipped right over to parallel search and got the answer immediately, without any fuss so can vouch for It's lightning fast abilities to get the answers to your legal queries fast. Jeff, today, we thought we'd talk about this was requests from a listener that we offer our top 10 appellate tips for trial attorneys. That is what I think according to this listener, a lot of our trial attorney listeners are looking for ways they can avoid missteps so that when the appellate attorney finally gets their fingers on the file, they don't look at it and say that the trial attorney should have done X or Y or Z. And so today we're going to cover X, Y or Z the the common things that trial attorneys sometimes miss when they are still in the trial court. So I thought first by way of prologue is talking about what are we appellate attorneys looking for? When we win that case finally comes to us. What are we looking for Jeff? questions of law,

Jeff Lewis  2:04  
low hanging fruit?

Tim Kowal  2:05  
Well, that's right. Yeah, we're looking at standards of review legal errors that the judge made. Which brings us to the first point, we're trying to look for something that went wrong. Obviously, if we're representing the appellant, we're looking for what went wrong. Actually, the first question, Jeff, is, should our client have one, right? If our client if the court got the right outcome, then we've got nothing to do the ethical attorney should say, Yeah, you know that you got the right result here. So we're going to take a pass on it. But if our clients should have one, then we want to answer why didn't our client when he was he was someone's fault. If it was a trial attorneys fault. You know, that's bad news. But we want to find the trial judge has done something wrong. And then the next thing we want to find is that there is some evidence in the record of the trial judge doing something wrong, which brings us to the point, we need to have a good record, because if the record doesn't show where the trial judge went wrong, then that brings us right back to the bad news, which is that's the trial attorneys fault for not making a good record of it being the trial judges fault.

Jeff Lewis  2:59  
Right, right. Not only the air, but also possible prejudice from the air both have to be demonstrated in the record.

Tim Kowal  3:07  
That's right, yeah, the two steps to winning an appeal, show error and show that the air prejudiced the client. So we're gonna go through my top 10 Tips from an appellate attorney to a trial attorney. But really, in a sense, all of these top 10 tips are just footnotes to one tip, which is make a good record. So that's why my top 10 list with a cheat. First rule is rule zero, which is make the record and I took a poll on this, Jeff, I went to LinkedIn some weeks back and I asked other appellate LinkedIn attorneys, what are your top 10 tips and most of them came back with some variation of making a good record. We talked in Episode 40. About sidebars if there are critical colloquy is happening between the trial attorneys and the judge that or soda vote che sidebars, make sure that you drag that court reporter within earshot of that colloquy so that can be reported. We talked about that with Jimmy as Adian. In episode 40 of the podcast, another one of the respondents to my poll on LinkedIn, Jeff gave this nice little roadmap to making the record. So he said generally speaking, a put the objection or motion in writing, if possible, that's the easiest way to get it in the record is to file it be support that objection or motion with some facts and with some law and get a ruling on it. Can't just let the judge pocket veto it and say, I'm going to rule on this later. I'll consider it at some point you got to get that judge to put the ruling on the record. Sometimes not a comfortable task, but you've got to do it. Yeah. And finally, do all this at a time when it can make a difference. So there is such a thing as doing it too early. We'll talk about motions and laminae when sometimes the judge feels it's too early, and doing it too late. When the time for the objection is already past. The moment you have to strike while the iron is hot, so to speak, do it at a time it can make a difference.

Jeff Lewis  5:04  
Yeah, you know, I pardon me for going out of order. But I saw you know, you did a wonderful MCE presentation recently and there was a PowerPoint, where you said the way you and I as appellate lawyers feel about the record, is how trial lawyers feel about depositions and leaving no stone unturned. And trial lawyers can view the appellate record a little bit like a deposition and need to get everything out there. Our lives would be a lot easier.

Tim Kowal  5:26  
Yeah, yeah, that's right. I'm sorry, I can't give credit to who came up with that clip. But that was one of the other respondents of my poll on LinkedIn. They said that appellate attorneys look at making the record the same way as a trial attorney looks at a deposition. You need clean impeachment appellate attorney needs clean impeachment just as much as the trial attorney does. Yeah, yeah. All right. So let's go to tip number one. My tip number one, Jeff, is make sure your theories of the case are captured in your pleadings. I say that you'll go to trial with one key theory of the case, but you want to preserve as many as you can, you don't want to confuse the trier of fact at the trial. But on appeal, you want to find as many arrows in that quiver as possible. So ask yourself, have the theories of the case changed since the pleading stage if there are new theories, are all the parties aware of what those theories are now? Right. And a couple methods of maybe getting any newly developed theories into the record is a min the pleadings, or try to cover all your theories in a pre trial brief if it's a bench trial, or perhaps even in motions and limiting and serving supplemental discovery responses,

Jeff Lewis  6:31  
if need be to address any evolving theories? And let me say, You know what, there's trial lawyers do a pretty good job of doing good trial briefs, and there's a bench trial, and sometimes not as a good job on the trial brief when there's a jury trial. And I have to say trial brief is a great way to give the judge a heads up on issues of law regarding jury instructions or questions of law for the court or bifurcation issues. And so don't underestimate the value of good trial brief. And also having pocket briefs ready to go as issues evolve during trial. Yeah,

Tim Kowal  7:02  
yeah. Jeff, I mentioned that that a trial brief might be a good tool for discussing what may have been a newly developed theory of the case. I had noticed that's only the case. If it's a bench trial, can a trial brief preserve newly developed theories? If it is a jury trial, the jury is not going to see that trial brief, obviously.

Jeff Lewis  7:19  
No, no, I was just speaking to the broader point of using a trial brief in a jury trial on thorny questions of law may not require amendment of the pleadings, but that the judge is going to need to hear frequently and often before he actually rules on your on your issue.

Tim Kowal  7:35  
Yeah. Yeah. And obviously it is a jury trial, put that new theory front and center in your opening statement. Yeah. Okay. Tip number two was key evidence excluded at trial, if your key evidence has been excluded by the trial judge preserve that issue by making a proffer the case on this that I found quickly using case text was Austin V vs. Escondido Union School District, a 2007. Court of Appeal decision that says the failure to make a specific offer of proof constitutes waiver of the contention that the court erroneously excluded evidence and quote, so remember to succeed on appeal, you have to show two things, Jeff, as you mentioned, error and prejudice. And the proper goes to that step to establishing prejudice, you have to make the record about how juicy and dispositive that evidence was that the trial court kept out of the eyes of the jury. If you don't make a proffer. That's basically a concession that you didn't really care about that evidence, and which is in turn a concession that is not prejudicial to have kept it out.

Jeff Lewis  8:38  
And I wonder how much of a proper has to be made to preserve an issue for appeals and enough just to give a verbal description? If this witness were called, he would testify as to yada yada, or is it always a better practice to have a pocket brief on the issue, summarizing in more detail what a witness might say?

Tim Kowal  8:54  
Yeah, you know, Jeff, you noted that question down just before we went on the air, and so I typed that in to parallel search. And here's what it came back. It was one of the first results, it took me about 10 seconds to do it. Here's the result in order to preserve an evidentiary objection on appeal, a party must make a timely objection in the trial court. So stated as to make clear the specific ground of the objection or motion that evidence code 353. And then it goes on to say the purpose of this rule is to give the trial court a concrete legal proposition to pass on to give the opponent an opportunity to cure the defect and to prevent abuse. And it has completely legal citations. There are people versus partita. And, Jeff, I think that means that the proffer has to be made contemporaneously and that may be a later filing of a proffer. Maybe that can help if the judge had disallowed you for making a contemporaneous proffer, but I don't think it's a substitute for a contemporaneous proper What do you think? Yeah,

Jeff Lewis  9:50  
obviously want to make a verbal record. And I guess the question is, could you get the judge to leave the door open on edge a crack by saying Your Honor, Can I submit a bench brief on this issue? describing the specific testimony and if the judge closes the door on you there, I hardly think a court of appeal would find a waiver occurred.

Tim Kowal  10:07  
Yeah, I was at an appellate conference years ago. And I remember someone, one of the panelists mentioning that if you ask the judge to allow you to make a proffer, and the judge refuses to allow you to make a proffer, that is per se reversible error, I've researched to find legal authority for that. I haven't found it. But I think that's I buy it as per se reversible, because it's a structural error that prevented you from establishing prong two, that the error resulted in prejudice. And if the court prevents you from establishing prejudice, I think the Court of Appeal has got to assume that you would have been able to establish prejudice, had you been given the opportunity?

Jeff Lewis  10:44  
Yeah, I'd be interested to see what the case law says on that. Certainly the slope of the prejudicial Hill is much less steep in that circumstance.

Tim Kowal  10:53  
Yeah. Okay. Tip number three, keep objecting to evidence if the judge defers ruling on your motion in lemonade. So you've filed a motion eliminate. And let's say the court denies your motion eliminate, okay, you wish the court would have granted it but at least if it's a good unequivocal denial, you're evidentiary objections are preserved via your motion, you don't have to keep annoying the judge by objecting every time it comes up. Although make sure that your motion eliminate complies with evidence code 353, which requires that it state a specific legal ground for the exclusion, that you direct that motion to particular identifiable evidence. You can't just say exclude all evidence that's harmful to my case.

Jeff Lewis  11:34  
Yeah. Let me ask you this. Tim, how many times have you been involved in a trial, where the other side makes a motion limit a to exclude all evidence of settlement offers? Yeah, yeah, that happens, rather than the January 7 offer by Tim's client to make me whole or the January 5 offer? Yeah, I see this violated time and time again, and motions eliminate?

Tim Kowal  11:54  
Yeah, yeah. Well, in some cases, that you do need to identify the specific, you know, January 7 email, in other cases, all settlement communications, yeah, depends on how amorphous that description is, or how many, if there is settlement communication, where pervasive in the record, you may need to give the judge a little bit more delineation of what you're talking about. Yeah, that can be a problem there and complying with 353. Making a motion eliminate that specifically delineates the identifies the evidence you want to exclude, because if you haven't done that, then you need to keep objecting every time that evidence comes up. And also, if the judge does not give you an unequivocal denial, and says instead, well, let's take it let's take it on a case by case basis, we'll make a ruling when the evidence comes up. You have to keep annoying the judge with your objections every time. Probably a best practice, Jeff, is to just keep objecting. Every time the evidence comes up and tell the judge tells you to sit down and shut up. Yes,

Jeff Lewis  12:49  
absolutely. Yeah, absolutely.

Tim Kowal  12:51  
Okay, tip number four, object to jury instructions. This is very common, very fruitful potential issue for appellate appeals. But you might retort, why bother, because by law, all jury instructions are deemed accepted to that's the language in Code of Civil Procedure, section 647, that automatically, all jury instructions proposed by the other side are deemed accepted to by your side. But in practice, Jeff, that statute is a lie. Objections typically are deemed waived, even if they are not on the if your objections are not on the record, then they're just deemed waived. And the reason for that practical outcome is that what we talked about before, is the pervasiveness of Off The Record hearings. So you just Court of Appeal knows that the jury instruction discussions are often held off the record in camera discussions or in sidebars and appellate maximum is that we must presume that what occurred at unreported hearings supports the judgment. Yeah. Tim,

Jeff Lewis  13:54  
how often have you showed up for trial, when a judge requires parties to submit jury instructions in three stacks and agreed pile? And then the plaintiffs request instruction and the defendants request instruction? Right, right. And oftentimes, just a little bit of horse trading going on with the plaintiff and defense counsel, I'll give you this one. If you give me that one. By the time it gets to the judges, very few for the judge to rule on. If you think it's a close issue that you're going to want to appeal later on. When your horse trading, realize if you give up on an issue and you move it from the disputed pile to the undisputed pile, you're not going to be able to raise that issue on appeal, because you put it in the agreed pile.

Tim Kowal  14:30  
Yeah. Yep. That's just how the sausage is made, as they say that's, yeah, that you've definitely waived your objections if you've negotiated them away. Yeah, agree there. If you don't think it's a close question, or you don't think it's an important enough question, then yeah, sure, you got to do but it may be worth getting an independent set of eyes to look at those jury instructions and help you decide you know, this may be a really good appellate issue to raise if that becomes necessary, so don't cave on this one. Okay, tip number five. Review the verdict for inconsistencies. I've argued this in a couple of different cases, Jeff, where I've looked at jury verdicts, and let's say that there's there were two theories alleged there was a breach of contract theory. And then there was a theory based on the implied covenant of good faith and fair dealing. They're both basically the same factual theory was the same breach alleged and the jury returned Yes, on the breach of contract, but no on the implied covenant of good faith and fair dealing, when it was really the same breach courts have held that is an inconsistent verdict. And it has to be thrown out and taken back for a new trial that Shaw versus Hughes Aircraft Company will include a site to that in the show notes. So always, if you are the prevailing party, if you're happy with that verdict, make sure you look at it and ensure that there are no grounds for your opponent to come back and argue that the verdict is inconsistent. Yeah, good point. Tip number six request a statement of decision. And if you're still unhappy with the statement of decision object to the statement of decision. Now, Jeff, this is probably a subject worthy of its own episode. There are a lot of angles to explore here. But probably the biggest takeaway is Don't be tricked into thinking that a tentative decision is the same thing as a statement of decision. You ever had that ambiguity? Come up, Jeff,

Jeff Lewis  16:13  
have an appeal. Right now. It's a family law appeal, where not only were the party restricted to that, but the judge was tricked into that meaning the judge thought his tentative decision was sufficient. He was asked by the losing party to issue a statement decision. He said, I don't need to do it. Here's my tentative. We're having a chat about that in the Court of Appeal right now.

Tim Kowal  16:30  
Oh, yeah, I was at a panel once I remember a judge talking about one of her colleagues had a habit of issuing tentative decisions, but doing it in writing in a document titled statement of decision with the intention being that if the judge called it a statement of decision, maybe the parties would be tricked into thinking it was what it says it is a statement of decision rather than a tentative and they would not issue the formal request for a statement of decision and go through the objection process and thereby waive their right to a statement of decision. And why is a statement of decision important is because if you correctly request the statement of decision and object to any deficiencies or omissions in the statement of decision, then you get to defeat the doctrine of implied findings. And as a very powerful doctrine for any respondent on appeal, because you can point to the trial judge's decision and say, Look, if there are any findings that were missing, then the court of appeal has to infer that they were there anyway, they were just that they were implied by the trial court. And as long as they're supported by substantial evidence, which almost everything was is then you have to affirm the judgment. So it's very important, if you want any hope of reversal to request the statement of decision that the trial court's judgment is limited to the four corners of whatever is in that statement of decision. Okay. All

Jeff Lewis  17:48  
right. Here's an interesting take on this issue. Suppose you have either bifurcated trial or a family law case with issues where there's reserved jurisdiction. And there the trial judge announces his ruling on some of the issues and says, But you know, on the balance of these issues, the will rule on that later, does that announcing of that decision on some but not all of the issues to be resolved? Does that trigger the timeline or deadline to request a statement of decision?

Tim Kowal  18:18  
Yeah, I had not seen that come up, Jeff, my hunch would have been to go ahead and just assume that a tentative and go ahead and treat that as starting the 10 day deadline to request a formal statement of decision.

Jeff Lewis  18:29  
Well, let me give you two answers. One, no trial lawyer ever lost an appeal for requesting a statement decision too often or too many times. But the actual rule is that the time to request a statement decision only gets to run once all issues are announced and ruled on. So if there's some sort of statement that there's issues to be reserved in the future, you don't need to request a statement decision at cases Wallace V. Ahl Associates Inc from 2013, we'll put that in the show notes.

Tim Kowal  18:56  
Okay, that's good to know. Okay, let's just deem that the tentative is to be continued.

Jeff Lewis  19:01  
Yeah, I guess, I'm not sure we might have glossed over this, that if you want to request the statement of decision, if the trial is less than eight hours, you got to do it before you submit on the evidence. And if it's more than eight hours, then you got to request that within 10 days of the tentative. Correct. And let me offer my favorite Orange County Superior Court story on this subject. I had a case that I thought really poorly for me, it was a bench decision. We were the defendant, I thought it went really badly. And as we walked out as a one day trial, I said, Oh, Your Honor, we're going to request a statement of decision. And the judge said, Mr. Lewis, is the judge no longer on the bench? Mr. Lewis, you're a fool said that in front of my client had led to a very awkward discussion in the hallway with my client about why I did that one. But I always think about that when I'm standing up and requesting a statement of decision. Am I making the right move that judges voice has left an imprint on my brain?

Tim Kowal  19:51  
Well, and if you're the losing party, if you're the aggrieved party, I'd say always make a request or statement of decision if you're the prevailing party, then quite poor. possibly you do not want to request the statement of decision. Can you think of cases where you would want to request it? Even if you're the prevailing party?

Jeff Lewis  20:07  
No question is, how do you know? I mean, I left that trial that day think I'd lost. It was only when I received the tentative later on that I realized

Tim Kowal  20:16  
at one. Yeah, that was trial under a day long. Yes.

Jeff Lewis  20:19  
There's a short cause very short one day Trump.

Tim Kowal  20:21  
Yeah. So you don't know, I guess, by the judge calling you a fool. Was that was he trying to hint that you should withdraw your request?

Jeff Lewis  20:28  
I think so. I think he was saying you've won. Mr. Lewis. You're making more work for yourself. But I guess I'm bad at reading tea leaves.

Tim Kowal  20:35  
Yeah. Well, on the flip side of that I had a trial once under a day long, it was a petition for writ of mandamus. The hearing was an hour, hour and a half long. So it was under a day if any party wanted to request the statement of decision. They had to do it before they submitted. But the judge was now no longer on the bench went to each side of the table. It said do you submit? Yes, Your Honor. Do you submit? Yes, Your Honor. Okay, both sides have submitted and no one asked for a statement of decision so I don't have to give one and then proceeded to grant our petition for writ of mandamus whenever we happy that the other side did not request the statement of decision, but neither side had any information. Interesting. Okay, tip number seven, file a motion for new trial if you need to preserve challenges to the damages amount, because if a party fails to raise the issue of the adequacy of damages award in the award, or that the award is too little or too much, then that issue that party is precluded from raising the issue for the first time on appeal that Schroeder versus auto drive away company 1974, California Supreme Court decision, that same rule goes for jury misconduct and the idea is that a record needs to be made on those issues. I'm not sure if that's quite the issue for adequacy of the damages. I'm not sure why that why the legislature is required that to be raised in a motion for new trial nor in order to preserve it, but that is the rule.

Jeff Lewis  21:54  
Yeah, I don't know. Sometimes I think these rules are policy based to give that the trial judge a hypothetical last chance to reverse course and correct or wrong. The trial judge is closer to the facts and the testimony on an issue like how much damages is enough or is excessive. I could see a policy based reason for requiring a motion for new trial on that point.

Tim Kowal  22:13  
Yeah. Or if there is maybe in some cases juries are it said that juries are innumerate that not good at calculating damages amounts. And so maybe the legislature wants to give the trial judge an opportunity to correct the amount there. Right. Okay. Tip number eight, calculate your appellate deadlines correctly. So now you got the judgment, you definitely are minded to appeal. Now, if the judgment didn't go your way, and you have to calculate the deadline to appeal from that judgment. This can be trickier than it looks, Jeff, as you and I know, you have to look out for the triggering documents the default rule, the default deadline for filing your notice of appeal is 180 days. But most attorneys have in mind that the deadline is 60 days because that 60 day deadline can be initiated if there is a triggering document, either a Notice of Entry, or a file stamped copy of the judgment or appealable order that shows the date on which it was served. And that can be the tricky one Notice of Entry everyone knows what a Notice of Entry is, although don't confuse it with the notice of ruling. Notice a ruling does nothing in terms of triggering the shorter time to appeal. It has to be titled Notice of Entry and be served on the appealing party or by the appealing party for that matter. But the tricky one is this file endorsed copy of the appealed order. The case to look out for that is Alan versus American Honda Motor Company, a 2007 California Supreme Court case, which holds that that triggering document has to be comprised of one single document. In that case, there was a file stamp statement of decision. But with no proof of service. There was also a non filed stamped minute order that did have a proof of service. And the responding party tried to say well look, combine the two and that you can kind of create Frankenstein like a triggering document and the Supreme Court said no, we're not going to require appellants to guess at what documents suffice to trigger the shorter 60 day deadline. Tip number nine, avoid common appellate briefing mistakes. So if you're going to go it alone and handle the briefing in your own appeal, here are some tips that I've assembled Jeff and you may want to add some of your own favorites, failing to include the entire record. This is a big one. This is why it's important at the very early stage of the appeal when you are designating the record. Within 10 days of that Notice of Appeal, you have to file the notice designating the record on appeal. Make sure you designate everything you need for that appeal. Yeah,

Jeff Lewis  24:49  
this is why I like doing an appendix rather than a clerk's transcript because sometimes at the moment of filing a notice of appeal or 10 days thereafter, you you're not really sure what the record needs. So an appendix buys you a lot. don't have time to think.

Tim Kowal  25:00  
Yeah, yeah, I agree. Yeah, two basic forms of sending up the written record to the Court of Appeal. It's either a clerk's transcript or an appellant's appendix. The nice thing about the clerk's transcript is you don't have to do anything to assemble it. But you do have to identify all the documents from the docket that the clerk needs to assemble and include in the clerk's transcript. And as you say, at that early stage, especially if this is after a long case, long trial, and especially if you're bringing in an appellate attorney who doesn't have a sense of all the issues yet, you want to have an opportunity to roll up your sleeves and go through the record yourself before limiting yourself to certain documents and excluding others, unless you're just going to include the entire docket that can get expensive can make the Court of Appeal mad if you are identifying superfluous documents that are not truly needed for the record. Another common briefing mistake, failing to put each argument under its own heading. This seems like library and this type of objection to make but that is part of the rules of court. And we from time to time see Court of Appeal opinions that Diem arguments forfeited because they're not made under their own unique headings in the briefs. Courts don't like to see arguments going pages and pages and pages without any differentiation.

Jeff Lewis  26:14  
Yeah, for the judges or justices who have to read these briefs and also for your opponents sake, knowing what is the real argument and what is just blathering on when I've dealt with impro PERS. Sometimes I'll get page after page after page of argument with no real heading and you don't really know how to organize your opposition. It's an important rule.

Tim Kowal  26:30  
It is another important rule, especially if you're the appellant is to cite to every fact statement include record citations, all your facts statements, especially if you are challenging any of the findings of fact,

Jeff Lewis  26:43  
I once had a brief stricken. This was in the four to the fourth Appellate District Division Two were my introduction contained a few pithy, factual statements. There were no citations to the record in the introduction, and it was stricken. I found that very unusual for a motion to be filed and for the court granted, I had to refile.

Tim Kowal  27:01  
Is that right? I once attended an appellate section meeting in Orange County here where justice bedworth was speaking and someone asked him that question, in the introduction, are citations to the factual record required? And he said, No, not in the introduction. So that's interesting that that was the third division of the fourth district. So you're talking about the Second Division? Interesting, big difference?

Jeff Lewis  27:23  
Yeah. And now it may be in the fourth three, that when they read the introduction, they view it just that as introduction and not as established fact. And they don't maybe give it a little less weight than the statement of facts section of your brief.

Tim Kowal  27:34  
Yeah, I think if it is an important factual or disputed factual contention, then you might want to consider putting a citation to it even in the introduction, you know,

Jeff Lewis  27:43  
I gotta say, it's a matter of writing, you know, narrative citation just getting away in terms of the flow of the word. So my compromise is ever since that motion to strike was granted is I will either do footnotes, or I'll do the parenthetical is if I have to, sometimes we'll do Footnotes Citations in the introduction, just make the introduction more readable.

Tim Kowal  28:02  
Yeah, yeah, that's a good alternative. Here's another briefing tip, avoid fighting the trial court's factual findings, unless you're challenging the factual findings in a substantial evidence appeal, which is inadvisable in most cases. But unless you are doing that, then you need to accept and embrace the trial court's factual findings and just explain to the Court of Appeal why you win anyway. Don't challenge them. Don't ignore them. Just go right headfirst, add them and explain why you win. Anyway. Here's my next tip. And this is something that was confirmed by Ross Guberman delete all your adverbs court is going to ignore them anyway. But the only difference that the court will not only be unpersuaded, but also annoyed with you.

Jeff Lewis  28:45  
Yeah, that's a good one. And let me just add to a very good list, identifying and applying the correct standard of review. If it's abuse of discretion, standard of review, you better demonstrate how 100 judges looking at this case, none of them would have come to this result. And a lot of lawyers make the mistake of having a separate standard review section. But then the words abuse of discretion or substantial evidence never appear again, later on in the brief, you got to actually apply the standard view.

Tim Kowal  29:11  
That's a great tip I once asked at an appellate section meeting with different I think it was a meeting that involves several of the research attorneys of some of the districts here in in the fourth district and also in the second district. And I asked should the standard of review section come before the statement of facts or after the statement of facts? Because traditionally, I've always seen them and I always put them after the statement of facts right before the discussion, but really, it should help you need to have it in mind as you're drafting the statement of facts and procedural history. Absolutely. Got to put your appealability section and your standard or review. Well before the statement of facts and the statement of the case. You put it before hmm, absolutely. 100% Okay, I've just always seen it done and myself always done it after the statement of facts and statement of the case, but I think conceptually logically it does doesn't make sense to have that come first. Yeah, but yeah, but certainly wherever you put it, by the way, the consensus, I think the unanimity of all those research attorneys are about five or six of them on that Zoom call, as I recall, they all thought that it should go, or they're at least accustomed to seeing the standard of review after the statement of the case. But they all agreed that yes, it does define how you should draft the statement of facts and statement of the case. And it defines how the attorneys, the research attorneys, and the justices are going to read and absorb those facts. Okay, tip number 10. advise your client about important post judgment issues. And we're talking here about attorney fees and costs, including slap fees, bonds, and stays of judgment enforcement, and post judgment interest. And these issues could merit their own episode of the podcast, Jeff, and we devoted a whole episode of the podcast look at Episode 72, where we address these issues, and also Episode 28, where we discuss with Mark Alexander and Mike Hanley, the proprietors of the California Attorney blog, on all things attorneys fees related one tip that I like to cover Jeff about attorney costs rather, is Think twice before using that Judicial Council form Memorandum of costs for seeking your costs after prevailing at trial because it does not include the penalty of perjury language. And you might find a crafty opposing counsel who will raise that in a challenge on appeal. So you might consider just writing in the word signed under penalty of perjury under the laws of the state of California. And don't wait around to appeal from the judgment until after the cost or fee award is entered. Don't assume that that's going to restart or delays the time for you to appeal. Those are separate collateral orders take on the appeal of your underlying judgment head on, don't wait around for cost and fee issues to resolve and bonds and states of judgment enforcement, you know, make sure you are talking with your client, that even if you have a righteous appeal, and you're gonna get that thing reversed, it's going to still get to take two years during which time if there's a money judgment against your client, they're going to be facing very likely they're going to be facing judgment enforcement activities. So consider with them the options of getting a discretionary stay under Section 918. But it's only a temporary stay. Also talk with them about the possibility of posting a surety bond has to be 150% of the amount of the judgment. And in most cases, they're required to be fully collateralized. Unless you can get a letter of credit from a bank. Take a look at episode 72. On that, those and other ways of getting Day of Judgment enforcement. And most attorneys know this. But it's always important to remind your client early and often that post judgment interest is accruing on your money judgment against your client at the rate of 10% per year. So after the typical two year period of between filing the appeal and remittitur of that appeal, you're looking at 20% of that judgment amount is going to be increased by 20%. And it's 1/5. The amount of the judgement, that's a bitter pill to swallow. So do you have to know statistically only 20 to 25% of appeals result in a victory. So the likely result is going to be the status quo, except 20% is going to be added to that judgment. Yep. Yep. Great tips. Okay. All right. And here's a bonus tip, get a court reporter. Never forget to get a court reporter. Oftentimes, Jeff, when I tell attorneys this tip, if it's a probate attorney, probate litigator or family litigator, they scoff at me and say, Oh, those are already provided for me. The court order you already provides those not any longer, at least not in Los Angeles. Over the past five years, Los Angeles Superior Court, the court reporter workforce has dropped almost a quarter 25%. Court Reporter retirements can have outpaced their replacements over the last 30 years, that's been a consistent decline. That's now escalated to a crisis level. And not just in California. It's a national problem. It's not a budget issue. It's just not enough uptake in that profession. And as of November of 2022, Los Angeles County Superior Court no longer provides reporters in probate or family law departments. So we're all in the same boat. We all have to make sure to remember to order a court reporter and hopefully there's going to be one available. Yeah,

Jeff Lewis  34:23  
I recently had somebody approached me about an appeal on a restraining order case. domestic violence restraining order were a six figure fee award was given that's pretty big for a domestic violence restraining order case, usually one hearing. They want to talk to me about appeal, no court reporter. So I kind of outlined the settled statement process and how the same trial judge who awarded the six figure attorneys fee award may not give you the best record on appeal in terms of a settled statement. It was a short console.

Tim Kowal  34:52  
Yeah. Well, I wondered about I mean, this wouldn't help this client. But let's say that you are having trouble finding a court reporter for a particular Hearing one problem with the fact that the courts no longer provide a court reporter is that multiple attorneys will be hiring their own court reporter so you can show up to a hearing and there will be half a dozen court reporters sitting around waiting to each transcribe their own number. When it gets called, you might consider calling the department and ask, is the court reporter going to appearing on any other matter? And can I have his or her number? Yeah, you know, that's great point, you know, and also having, you know, 10 court where show up one morning, probably compounds the shortage problem with inefficient allocation of resources. Absolutely. Yeah. become much less efficient. Yeah, that's one of the way the problem has metastasized on itself. Disorders creates one problem, and then then that problem compounds to create another problem. Okay, those are my tips. Jeff.

Jeff Lewis  35:46  
Those are great tips. Those are great. I learned a lot reading your PowerPoint shows a great MCL the presentation. So thanks for for sharing that.

Tim Kowal  35:52  
Yeah, thank you. Okay. Yeah, but had better to you want to share? I have a tidbit

Jeff Lewis  35:56  
not to a California Assemblyman phil ting. I don't know what part of California he's from, has introduced Assembly Bill 881, which would be a pilot program to give some jurors not the normal $15 a day, but $100 a day for certain low income or unemployed jurors as an incentive for them to show up to jury duty. Yeah, that's kind of interesting. I will see what happens with that bill that might impact the ability of courts to actually get jurors to show up for jury duty.

Tim Kowal  36:27  
And that's only for low income jurors. So they have to file some sort of affidavit of indigency.

Jeff Lewis  36:32  
I assume it's similar to a court fee waiver application. Yeah.

Tim Kowal  36:37  
Yeah. Well, that's just a bill,

Jeff Lewis  36:39  
not a law. Nobody signed it yet.

Tim Kowal  36:41  
Is that going to affect the self selection among our jury pools?

Jeff Lewis  36:46  
Yeah, you could totally see the characteristics of a jury pool change if this were the case, if they could get $100 a day.

Tim Kowal  36:54  
Yeah. I'll be interested to see if there's any commentary on this bill. Is that discussion continues?

Jeff Lewis  36:59  
Yeah. I'd be very curious to see the various Trial Lawyer groups come up with in terms of who gets behind this and who doesn't?

Tim Kowal  37:05  
Yeah, yeah, that's right. Interesting. Okay, that one watch one to watch. Yeah. All right. I

Jeff Lewis  37:10  
think that wraps up this episode. Again, we want to thank keys text for sponsoring our podcast each week, we include links the cases we discuss using casetexts and listeners of the podcast can find a 25% discount available to them if they sign up at That's

Tim Kowal  37:27  
All right. The idea for this episode was inspired by one of our listeners. So please, if you have your own idea for a tip for an episode or a guest who should appear on our episode, please send us an email at info at cow or send it directly to either Jeff or me if you have our email addresses. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal and preparing for trial. See you next time.

Announcer  37:51  
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