The California Appellate Law Podcast

Thankful for Unpublished Opinions

November 21, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 110
Thankful for Unpublished Opinions
The California Appellate Law Podcast
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The California Appellate Law Podcast
Thankful for Unpublished Opinions
Nov 21, 2023 Season 1 Episode 110
Tim Kowal & Jeff Lewis

In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent.

Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited as precedent.

We also discuss:

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

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

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

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

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

Other items discussed in the episode:

Show Notes Transcript

In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent.

Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited as precedent.

We also discuss:

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

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

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

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

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

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 both Jeff and I are certified appellate specialists and as uncertified podcast hosts we try to bring our audience at trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you find this podcast useful, please recommend it to a colleague.

Jeff Lewis  0:32  
Right before we jump into this week's discussion, we want to thank casetext for sponsoring our podcast casetext is a legal technology company that's developed AI back tools to help lawyers practice more efficiently since 2013. Casetext relied upon by 10,000 firms nationwide from solo practitioners to amla 200 firms and in house legal departments and march 2023 casetext's launched co counsel, the world's first AI legal assistant, co counsel produces results lawyers can rely on for professional use, all while maintaining security and privacy. This is the podcast enjoy a special discount on That's

Tim Kowal  1:11 
All right, Jeff. We've got a handful of cases we want to talk about today, followed by some legal tidbits, some legal news. So let's jump right into the cases. I've got five of them to discuss today. First one, Jeff, I think is just kind of got my dander up. The question in this case is can a respondent forfeit issues by failing to brief them? Now? I didn't know note can respond. And we always talked about appellants who've waived or forfeited issues, and I'm still I'm still queasy about the difference between waiver and forfeiture. But can a respondent, the party who's just who's happily sitting there has the judgment. Just test to make sure not to commit any egregious errors on the appeal. Can the respondent forfeit issues that underlie the judgment by failing to brief them this bizarre opinion? I think it's a bizarre opinion says yes, this is belt Azhar vs. Ace parking management. It's out of the fourth district first division. It's an unpublished opinion as these bizarre cases tend to be, but they'll tee it up this way, Jeff, one of the bedrock rules of appellate practice is that the appellant who fails to brief an issue will forfeit that issue. But again, that rule applies to appellant. So you know, the person challenging the judgment, it doesn't apply to the respondent, because a bedrock principle of appellate review is that all in 10 minutes and presumptions are given to support the judgment,

Jeff Lewis  2:31 
right. Respondents typically just lean into that deferential standard of review and kind of coast. They

Tim Kowal  2:37 
just sit back there. You know, I tell clients sometimes that well, you're the respondent. So you, you should avail yourself of the opportunity to file a respondents brief and explain to the Court of Appeal why it's meritorious, but if you don't file a respondents brief, it's not like a It's not like a defendant who fails to answer a complaint. There's not like a a default reversal that applies when a respondent doesn't file a brief or address an issue. But that wasn't really the case here and balances are versus ace parking management. The court they're held that the respondent had forfeited. One of the bases for upholding the judgment. The respondent was the employee plaintiff, who had opposed the employers petition to compel arbitration. So this is an arbitration case involving an order to compel arbitration, the the employee plaintiff was successful. But one of the defenses that the employee asserted was that the contract was unconscionable, and the trial court refused to compel certain aspects of the arbitration. The employer appealed. And responding to the employers brief. The respondent employee mentioned that her unconscionability argument only very briefly in a footnote, and the opinion doesn't indicate whether the appellant spent much time on the issue. But the court issued an opinion authored by Justice doe faulted the respondent for failing to develop the unconscionability defense beyond that single footnote in the respondents brief. And here's here's, you know, to get just into the into the weeds and the specifics about how the court criticized the respondent for giving only a cursory reference to the unconscionability argument, because what happened, Jeff, is that the the main issue that the court court reversed on the main issue raised by the employer, but there was that other issue of well, the the arbitration provision was was unconscionable, so the employee was entitled to to litigate the issue and not be forced into arbitration. But the trial court apparently either didn't really take up the unconscionability issue wasn't developed too much on the record, but still, the employee argued that that was a separate basis for affirming the order denying arbitration. But the Court of Appeal said, quote, We do not regard this footnoted assertion the employee's assertion about the unconscionability argument, we do not regard this footnoted assertion as a re invocation Have her unconscionability defense. But I know Jeff that responded doesn't need to re invoke a ground supporting a judgment. Yeah.

Jeff Lewis  5:07  
When I read the rudder group on civil appeals, I don't remember the chapter on advising respondents to re invoke every defense relied on below. No,

Tim Kowal  5:16 

no, there there re invoked impliedly. But anyway, the court goes on to note, the court does acknowledge that all intents and presumptions are indulged to support it on matters as to which the record is silent and error must be affirmatively shown. But the court goes on to distinguish the rule in this case, the court says this is not only let's see that the the court then states that an appellant cannot bury a substantive legal argument in a footnote and hope to avoid waiver of that argument. And quote, but the the beginning the first two words of that, quote, Jeff, where an appellant cannot bury an argument. And then the court goes on to say that the acknowledged the rule that it must infer the grounds to support the judgment, but the court says that it may disregard conclusory arguments. But again, if you look at the citations supporting that rule, Jeff, that applies to appellants not to respondents.

Jeff Lewis  6:13  
You know, I'm not a big fan of petitions for rehearing. But this might be one I'd be curious if the parties here sought a petition for rehearing or the respondent on this kind of out of the blue argument. Yeah,

Tim Kowal  6:26  
the only thing that, that I could think that that maybe makes sense, or at least made the court a little, you know, unwilling to indulge the normal rules that assume all of the arguments and facts that support the judgment is that the unconscionability argument may be as as a little bit more extrinsic to the papers, or at least to the arbitration agreement, and thought that that maybe if there was if if there's a finding if there was to be a finding that the agreement was unconscionable, the Court needed to see more. Maybe the court was not satisfied that that that Oh, yes. And by the way, the arbitration agreement was unconscionable. That's usually not a finding made implicitly, that's usually an issue that's front and center. Right. So maybe this is one of those bad facts make bad holdings on on appellate procedure, and we can be grateful that this is an unpublished opinion.

Jeff Lewis  7:18  
I have how far you've come down in terms of your disdain of unpublished opinions.

Tim Kowal  7:27 
Well, I can this is our Thanksgiving episode, Jeff. So I'm thankful that this one is is unpublished. Let's see. I think I had another just one other comment on this one, that this opinion involves a lot of analysis about, you know, principles of arbitration law. And the the analysis, you know, again, just just seemed not sound and a respondent. This was another point that we talked about recently, Jeff about stipulations, the parties can stipulate to reverse an opinion, to reverse a judgment rather on appeal. But that prerogative that's still in the prerogative of the Court of Appeal, and it's a closely guarded prerogative, parties can't just stipulate to reverse a righteous judgment, the court still has to be convinced that that it is it's worthy of being reserved, reversed because judgments of the court are contributions to the common law. And those contributions are not made just by stipulations of the parties. They're made by by duly sworn judges and justices of the Court of Appeal. So I thought that if if parties can't stipulate to reverse the judgment, then they shouldn't, then respondent can't just stipulate to an issue by failing to raise it. And then that so that that becomes grounds to reverse the judgment. Yeah. Interesting. But but then back to I think this might be unique because of the the type of issue that the court found to have been forfeited by the appellant being an unconscionability issue. Okay, so let's leave that one behind that That case was belt Azhar versus ace parking management. The next case, Jeff, is Louis versus reptile factory LLC. The The upshot of this case is failing to log the length of a trial leads to a loss on appeal. And we've covered this issue before Jeff, this has to do with the statement of decision timely invoking the right to a statement of decision by requesting it within 10 days after the end of a trial or, or if the trial is under eight hours. If it's under one day, or under eight hours spread over multiple days, then you have to request it before you submit at the end of the of the trial. And that was the issue that came up here is how but who is the timekeeper? How do you know when eight hours has elapsed? So the employee appellant in Lewis versus reptile factory. This is an unpublished opinion out of the second district or division. The the employee challenged the trial court's refusal to issue the statement of decision. As we said the losing party has the right to statement of dissent. issue but only if it's timely requested. And so here because it was under, it was a it was a short trial. That's the issue that came up here that the trial was two days the appellant made the request, within 10 days, the appellant assume that well, this is a multi day trial, I have 10 days to request the statement of decision. But that was not quite right. The trial was was done over two partial days. So the court appropriately asked, Well, was it under eight hours and the transcript for one of the partial days did disclose that the proceedings began at 10:04am. Okay, so we're off to an auspicious start, we got the start time. Now. It's just fine, what time it ended. And hopefully it adds up to less than eight hours, it concluded at 3:50pm. So okay, so we're not quite at six hours, if the next next day's proceedings were very short under two hours, then the appellant is out of luck. But if it was longer than two hours, then you have the 10 day deadline. But what happened is that the transcript did not reflect the length of the lunch recess, the first one gave nice, you know, nice firm start and end time. But recesses also were not recorded. And so the court said, well, we don't know how long the recesses were. And the second transcript, as I said, didn't record the times at all. And then here were the words of doom error is never presumed. So you don't get to resort to guesswork to say that well, the first day was, you know, practically, you know, 75% of the eight hours, the second day, surely went over the eight hours to give me the benefit of the 10 day period to request a statement of decision, but no error is never presumed. So the court had to presume that that the that the second proceeding, as well as any lunches and other recesses all added up to less than eight hours. And it was the request for statement of decision needed to be made before the batter was submitted.

Jeff Lewis  11:53  
I wonder if the result had been different. Let's say the court reporter did not note times on the transcripts. But every time the lawyers came back, you know, appellant's counsel said, Oh, it's 1130. It's time to cut out and hey, let's come back at 145. And, you know, after lunch, Hey, it's 145. I wonder if attorneys putting the time on the record, if it's not noted by the court reporter would have been enough to meet the appellant burden here?

Tim Kowal  12:18  
Yeah, I think it would, you know, I don't think the attorneys, the attorneys, I don't really know who is who's deputized to be an official timekeeper. Other than that the court itself would make that decision and probably ask the clerk to do it. But if an attorney just announced it at the, you know, when, when the proceedings began, and right at the, you know, right after, right, as the Court was announcing recesses, I think that would be enough to make a record of the start and end times of each session.

Jeff Lewis  12:47  
Yeah. So I guess the teaching of this case, even though it's unpublished is if you're in trial, that might be less than a eight hour day trial. And you've never met this court reporter before you don't trust the court reporter. Maybe make a record of the time on and off. Yeah, yeah, I

Tim Kowal  13:03  
think you should or, or consider filing that request for statement of decision in writing. Just before your trial begins. Of course, you you run up against the the anecdote that you'd like to tell Jeff about, you know, you don't know whether you're likely to whether you're looking in good shape at the end of the trial, in which case, you don't want the statement of decision. Right. Right. I guess you get the I guess you could file it at the beginning. And then if things are looking pretty ship shaped by the end, can you withdraw your request?

Jeff Lewis  13:31 
I don't know. I'm not sure I've ever read a case on that point.

Tim Kowal  13:34 
I don't think I have either. I don't know if it's Trump. Jeff. I don't know if it's like

Jeff Lewis  13:39 
like, Fran, if you're listening to this podcast, or anybody else, send an email to info at Cal If you've heard of a case where Stephen decision being withdrawn was at issue in

Tim Kowal  13:48  
Well, in, in your story, Jeff, where the court would the court called you a fool for requesting a statement of decision? Was the court hoping that you would withdraw your request?

Jeff Lewis  13:58 
Well, let's just say he kind of stormed off the bench and didn't really give me that window of opportunity. Okay,

Tim Kowal  14:04 
so it was not constructive criticism. It's just plain old criticism. Yeah. All right. All right. Next case, it says laboratory Lego sola versus North American. In this case, there was a dissent that would have invalidated a loan where the lender was unlicensed. So I just thought this, these facts. Were kind of interesting here. Let me set up the case for you, Jeff. North American made more than 300 home loans without a license. And this is how justice dado basically started his dissent in the lacquer sola case, the plaintiffs there were among the borrowers who had who had taken loans from North American who didn't have a license to make loans. And the plaintiffs sued to recover all of the quote, illegal interest and the finance charges that North American had charged on that loan. The trial court disagreed with the borrowers and sustained the lenders de mer and the majority of the appellate panel affirmed true making a loan without a proper license is an unlawful business practice under Business Professions Code 17 200. But standing to sue for an unfair business practice requires an injury in fact, and the Court ruled that the loss of money or property, there was no loss of money or property alleged here because they got the they got as good a loan as they would have gotten from a licensed lender. So just because the loan was unlicensed, yes, it was, you know, the North American didn't dot all their i's and cross their T's. But it didn't cause any injury. And so there was a standing problem in this case, but just as dado disagreed, he would have found the requisite injury. In fact, in the borrowers allegation that they would not have entered into the loan. had they known the lender was unlicensed. Justice dado argued that this was supported by the Supreme Court's holding in Quickset. Corporation versus Superior Court from back in 2011, where the defendant had falsely advertised that its locks were made in America. And the plaintiff alleged that well, no, they're not. That was a misrepresentation. I wouldn't have bought your locks, if I had known that they actually were not made in America, but the majority in in the lagger sola case here, distinguished Quickset by noting that the plaintiff in Quickset, had specifically alleged reliance on an affirmative misrepresentation. And in this case, this was not an affirmative misrepresentation, but more of an omission. That is no one no one asked the lenders, the borrower's didn't ask a North American Are you sure you're licensed as a lender? So it was just a material omission? Just dado said this The that's a distinction without a difference here. These are these are material facts that that again, the Reliance turned on and that was properly lead show does justice data would have found standing in this case? I thought this was a close call, Jeff.

Jeff Lewis  16:54  
Yeah, if these guys didn't have standing, who does? Yeah,

Tim Kowal  16:58 
I mean, I think after reading this, you know, it's one of those good ones where you read the majority majority, and you say, well, the majority has a good textual argument here. The statute requires an injury. In fact, and I can't see quite what the injury was, the plaintiffs didn't point to well, because they're unlicensed, they charged me they screwed up the loans or something like that there wasn't a any problem with the quality of the loan, or or the terms they couldn't point to any loan by a licensed lender, that would have been better for the plaintiffs. So that's, so the majority had a good textual argument. But I thought justice dado had a point that the majority has to read the Supreme Court's Quickset holding pretty narrowly to stick with the textual interpretation when a plaintiff relies on the tech on the defendants material misrepresentation that sets up a UCL claim and and gives the plaintiff standing. So I thought that that the parsing between a an affirmative Mr. misrepresentation and an omission was was was pretty fine parsing. But then again, I think you could you could also make the argument that well, the Supreme Court itself was parsing the text pretty fine. And so if there's going to be anything that's not perfectly on all all, all fours with Quickset, just we're going to let the Supreme Court make any further alterations to the plain text of the statute. Okay. Next one is a fairly quick one, just about the the the Court of Appeal here has some pretty colorful language in response to to some advocacy that that it was not excited about as, as you might put a Jeff at the court of the fourth district third division into desko vs. White starts its opinion this way, a bulldozer can move piles of dirt from one place to another. But when the goal is to move mines rather than dirt employing a bulldozer may be counterproductive. The bulldozer in this case is a pellets, counsel and quote. Well, that's not what you want to see if you're the appellants, counsel at the beginning. Now,

Jeff Lewis  19:05 
when I first read this, I thought there was a typo because I thought this must be justice beds worth writing. But no justice Goethals justice go surprise. Yeah, he's

Tim Kowal  19:14 
getting into the AEC bags worth territorian this time. Yeah. So this one was about some aggressive tactics that were a continuation from an earlier appeal. When the court had previously said of counsels, accusations of pervasive falsification of the record and disgraceful misconduct. The court noted that that kind of those kinds of accusations that we do not confuse aggressive argument with persuasive ag advocacy. And the The court also noted that it was not happy that those accusations and criticisms were directed to the the justices colleagues at another appellate court court called them called those criticisms potentially contemptuous and this this whole case was an appeal from a discovery sanctions order of 6000. ollars But it was kind of used to shoehorn a challenge to the merits of the case. And so the court didn't like that. It also noted that the that the appellants appendix here over this, ostensibly over a mere $6,000 discovery sanction was 9000 pages, or that kind of keeps you out that there's something more lurking under the surface. And then one other appellate appellate misstep here, appellant briefs a challenge to the merits of a non appealable distribution order, even after the court had granted a motion to dismiss as part of as that part of the appeal. So the court granted the respondents motion to strike those portions of the brief. The court, the court did not here's here's the the interesting portion that, you know, tuck this away in your own Appellate Practice Files. The court, despite all of its unhappiness with appellants, counsels advocacy, the court didn't award any appellate sanctions. But the respondent, on the other hand, did not make a motion for sanctions. The tenor of the opinion suggests that had the respondent made such a motion, the court likely would have issued sanctions. So if you think that the other side is stepping over the line with its advocacy, consider filing a motion for sanctions give the court a hook to hang such an order on.

Jeff Lewis  21:16  
Yeah. Now I want to make sure I understand something you know, in the old days before PDFs, etc, we would do an appendix, you're you're limited to 300 page volumes. 300 pages, the maximum size for each volume of your appendix. So 9000 pages math is not my friend, Tim, but 9000 pages. That is 30 volumes of an appendix 30 Little bound booklets. I can't imagine creating a record like that for a sanctions subpoena issue. That's crazy. Yeah,

Tim Kowal  21:48  
I think that's gonna be somewhere like, you know, between 20 as well, probably nine or 10 banker's boxes of just the appellants appendix. Yeah. Yeah, I would

Jeff Lewis  22:00 
venture dollars dollars to doughnuts they cited to maybe, you know, 100 pages out of that. 9000.

Tim Kowal  22:06 
Oh, yeah. Yeah. I had to do that in an appeal before where? I don't it wasn't it wasn't quite that many pages when 30,000. Would we say it was 9000 pages? No, I know that actually. 10 Baker's boxes would be more like 27,000 pages. But yeah, I've I've had a case before where I had made a several 1000 pages appellants appendix. And then at the end, we we whittled down the issues in the appeal to a single issue. And it Yeah, we probably decided to only to fewer than 100 of the pages of of a, let's say 10,000 Page appendix. And I put a I put a footnote in the brief apologizing for such a prolix. Appendix and explaining that the appendix was prepared at a time when we thought we were making more far reaching challenges. And by the time you the deadline approach, there was not time to streamline the appendix further. And, you know, hopefully, that's that seems to to satisfy the court. I think some explanation is needed, if you're going to make their eyes widen with the size of your appendix. Okay, last case, Jeff, this is, uh, I thought this was an interesting one. It's about mootness. Every now and then we talked about a case, an appellate case, that becomes moot or whether there's a good mootness argument, but the court finds it's not moot. In this case, there's a moot appeal, but instead of mootness usually means that the appeal has to be dismissed, but in this case, the mootness lead to a summary reversal. So let's talk about how this happened. And people vs. Pickens every so often a mootness means the appeal results in a summary reversal. The trial court in People vs. Pickens ordered the defendant committed to a mental institution. So the defendant appealed. But during the appeal, the trial court ordered what's a diversion, which is basically a postponement, postponement of the prosecution to allow the defendant to undergo mental health treatment. And the diversion meant that the appeal of the commitment order was moot. That's because even if the trial court terminated the diversion and reinstated the proceedings, the court would have to conduct the determination of mental competency all over again. So the previous order for the for the commitment became moot. It was no longer effective, regardless of anything that the Court of Appeal might do on the appeal from that order. So the court could not reach the merits of the mood order. But the court ultimately reversed and here's why the appellant correctly argued that it would be unfair to dismiss her appeal as moot because it would serve as an affirmance of the underlying commitment order. And there is there a Supreme Court authority for this it's Paul versus melt depot's a 1964 California Supreme Court case and We'll put a link to this to the write up of this case in the show notes. Because this comes up every so often in this case, the court agreed that and concluded because our dismissal would constitute an affirmance of the commitment order, which which was moot and no longer effective. And because we have not addressed it on the merits, we reversed the order with directions for the trial court to vacate the order as moot. So in other words, Jeff, the court thought it would be problematic to leave this commitment order lying around and as though it were affirmed on the merits, which might give the trial judge the wrong idea that if the issue ever came back to it, it can go ahead and just rubber stamp another commitment order, because they the The Court of Appeal has already affirmed it on the merits. So So what could go wrong if I just issue the same one over again? Yeah,

Jeff Lewis  25:45 
interesting. And this is a unpublished decision. But so it just kind of surprised me went to the lengths of distinguishing between dismissals and summary reversals, but I guess I get

Tim Kowal  25:56 
it. Yeah, I had I had an issue come up with this before where I asked the court to dismiss dismiss an appeal as moot. But to but to summarily reverse the, the orders and the orders I, I was challenging that case was an order. It was a collateral order, refusing to allow a client to one of the parties to hire her own counsel, instead of this was a conservatorship action, and the court wanted her to to have counsel of its own choosing. Well, there was never a conservatorship. So we argued that, that that she should have be entitled to hire her own counsel, and then she passed away during the appeal. And if it was dismissed, then then the the earlier orders would have just been affirmed on the merits. And then the attorneys would have happily used that as a basis for their attorneys fees. But, you know, we we didn't want that kicking around as as though the Court of Appeal had endorsed that order, because it never reached on the merits. And it was moved anyway, so was just summarily reverse it rather than summarily affirm it. And that was basically the same kind of argument here. The court didn't go for it and my case, though, okay. Okay. All right. Let's do some tidbits. Jeff. Okay. A couple of this. This has been a year, you know, we talked about doing doing a recap coming up next month of some cases, and legal trends and AI and legal Tech had been a big one. This was a an article from the economist that I clipped some months ago, but it talks about AI. And this was around the time when, when those stories were coming out of attorneys, relying too heavily on chat GPT for for their briefing, and maybe just copy and pasting without actually checking the work. But anyway, according to Goldman Sachs, 44% of legal tasks could be performed by AI, more than any other occupation surveyed except for clerical and administrative report. So you know, and not all lawyers are convinced. A recent another recent survey found that 82% of lawyers believe that general generative AI, such as chat GPT, can be used for legal work, but only 51% thought that it should be used for legal work. So there's, that's a that's a big interesting gap between the number of people who acknowledge that, yes, it's certainly available. And it could, it could create a lot of efficiencies, but much less of those respondents thought that it actually should be used for that purpose.

Jeff Lewis  28:21 
Yeah, those surveyed have a little bit of a bias there in terms of the billable hour. I think over time, you see the results of that survey change as AI gets more refined as legal technology, using AI gets a little more secure and matures. Legal Research world is changing, you know, we're not going back to the days of checking the the shepherd books, instead of looking at the yellow and red flags on Westlaw. So too with AI, we're, we're going forward.

Tim Kowal  28:49  
I wonder if we if the same debates were had when, when legal research went online, you could just look up cases, type in a few keywords, you get a case you get a snippet, it looks like it's looks like the holdings right on all fours. You just copy and paste it straight into the brief without even looking to see that it's been overruled, or you've you've taken the case badly out of context. Diligence is always required in our profession, and chat. GPT just provides another opportunity for the for the inelegant attorney to embarrass himself and his profession. But those opportunities, the different opportunities have always been available. Yeah, yeah,

Jeff Lewis  29:27 
absolutely. Absolutely.

Tim Kowal  29:29 
All right. Here's another tidbit. Burton's legal thesaurus is a resource I just learned about Jeff it identifies new words and expressions and publishes an annual list of terms gaining popularity in the profession. So here are a couple a couple of new entries into the into Burton's legal. The Soros have entered into our vernacular in the past year complicit bias. This is this applies when an institution or community is complicit complicity in sis staining discrimination and harassment that's what complicit bias refers to. Next one law fair is what I've heard for several years, Jeff, but it's just making its first entry into Burton's legal at the source law fair is the use of legal proceedings and systems to damage an opponent. And this was a new one by me but very apropos returned to office or acronym version of it are to return to Office refers to issue issues and policies concerning employees returning to work in their employers workspaces after working remotely during the pandemic. Yeah,

Jeff Lewis  30:32  
I hadn't heard of that one. Okay. Yeah, not?

Tim Kowal  30:35 
I think I can I can imagine many different types of applications for for RTX. Oh, I think a lot of a lot of courts are, are implementing RTO measures, get people get attorneys back to appearing in person wearing their their formal attire again? Yeah, I

Jeff Lewis  30:53 
think doughnuts would help if the courts offered free doughnuts in the courthouse. I mean, that's how I get my people to come to my office. I give them free food. That's

Tim Kowal  31:01  
how I RTO with doughnuts. Okay. Here's a there's a new study out of the California Constitution Center. It's recent recent study released the results of its research into the 6040 rule. Jeff, I'll be honest, I hadn't I wasn't aware of this bedrock rule of thumb among appellate attorneys, and found that the 6040 rule actually is pretty accurate. The 6040 rule pertains to when the Supreme Court grants review. And the California Supreme Court does in fact reverse in whole or in part about 60% of the cases on which it grants review and affirms as to the other 40. So if the court if you file a petition for review in the Supreme Court, and it's granted, well, then you're already more than halfway home, Jeff.

Jeff Lewis  31:49  
I don't know why that strikes me is low. I guess it may my gut would tell me that I would think the Supreme Court if it's interested enough, in a case to pluck it from obscurity and put it on the docket that that the reversal rate would be higher. But I guess, I guess if the Supreme Court is picking issues rather than outcomes, maybe it does make sense to have a more a lower number of

Tim Kowal  32:09 
reversals. But here's the here's another stat that may relate to that. Part of the Supreme Court of California has a year in review for 2022. So here are a couple of tidbits from that report. The court the Supreme Court of California issued 55 written majority opinions, and it also D published 18 Court of Appeal opinions. The that tells me that 1/3 of the court's contribution to the California Common Law is D publishing Court of Appeal decisions. Right. Interesting. All right. And then and then the my last tidbit, Jeff, on the same vein, the Ninth Circuit's 2022 annual report, this came out last month, I believe in October, some key numbers from that report. The median time for appeals beginning from the notice of appeal to final disposition is 13.2 months. So a little over a year from the time you file your notice of appeal, that's up just vary slightly from 2021, which was 13.1 months and which was up from 12.5 months in 2020. And then for context, the national median is 9.8 months. So the Ninth Circuit is a little bit slower than the other circuits. Ben Schatz highlights a few other nuggets from the Ninth Circuit annual report from 2022. The ninth circuit is the nation's busiest circuit accounting for 20.5% of all new appeals nationally. Even though the circuit's total number of Appeals is down nearly 10% from last year. The ninth circuit also welcomed four new judges in 2022. Judges, Gabriel Sanchez, Holly Thomas, Rupali, Desai, and Salvador Mendoza, and 2022 was the first full calendar year for the Ninth Circuit's new fairness Committee, which focuses on increasing diversity among law clerks and magistrate judges. Interesting. Interesting. All right, and then we'll leave. You found an interesting case about that we'll leave for next time, Jeff, unless you want to let you want to cover it. How long is six months, something only only appellate attorneys could find ways to debate over? I'll

Jeff Lewis  34:16 
tease the audience. But we'll cover it next time. The court was faced with the question of whether a petition or a motion for relief from default that was filed more than 180 days could ever be less than six months. And yeah, it was interesting decision here. So cover that next time.

Tim Kowal  34:37 
Yeah, yeah, that's a good one. Yeah, the statute says at 473 Six months, so what is six months? Okay. Well, that's gonna wrap us up for this episode. Jeff. Let's thank casetext again for sponsoring the podcast each week when we include links to the many cases we discuss on episodes like this one, we use casetext daily updated database of case law, statutes, regulations, codes, and more. listeners of the podcast enjoy a special discount on casetext's basic research when they visit that's Yeah,

Jeff Lewis  35:10 
if you have suggestions for future episodes or suggestions for cooking and Thanksgiving turkey, please email us at info at Cal And in our upcoming episodes, look for tips on how to lay the groundwork for appeal when preparing for trial.

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