The California Appellate Law Podcast

2023’s Best Guests, Cases & Tech

January 03, 2024 Tim Kowal & Jeff Lewis Season 1 Episode 114
2023’s Best Guests, Cases & Tech
The California Appellate Law Podcast
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The California Appellate Law Podcast
2023’s Best Guests, Cases & Tech
Jan 03, 2024 Season 1 Episode 114
Tim Kowal & Jeff Lewis

Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical maverick Jack Metzler. And then there are our legal scholars and authors Stephen Vladeck, Jeff Kosseff, and Eugene Volokh.

After talking about some great guests, we talk about some bad cases. Why don’t we talk about good cases? We discuss that, too.

We also talk about some of our takeaways from our interviews about other states’ appellate rules. We grumble about some of the rules in California, but we have some things to recommend to other states. But also some things we could learn.

Then we turn to some of the legal tech we can’t do without. Topping the list: ClearBrief (via Jackie Schafer), followed by CoCounsel.

Hope to have you along in 2024!

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical maverick Jack Metzler. And then there are our legal scholars and authors Stephen Vladeck, Jeff Kosseff, and Eugene Volokh.

After talking about some great guests, we talk about some bad cases. Why don’t we talk about good cases? We discuss that, too.

We also talk about some of our takeaways from our interviews about other states’ appellate rules. We grumble about some of the rules in California, but we have some things to recommend to other states. But also some things we could learn.

Then we turn to some of the legal tech we can’t do without. Topping the list: ClearBrief (via Jackie Schafer), followed by CoCounsel.

Hope to have you along in 2024!

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, everyone.

Jeff Lewis  0:17  
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 co hosts we try to bring our audience of 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. And

Jeff Lewis  0:32  
we do want to thank casetext for sponsoring our podcast casetext is a legal technology company that has developed AI back tools to help lawyers practice more efficiently since 2013. Casetext relied on by 10,000 firms nationwide from solo practitioners to amlaw 200 firms and in house legal departments. In March 2023. Casetext's launch 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 listeners of our podcast enjoy special discount on case Tech's basic research at That's

Tim Kowal  1:11  
All right, Jeff. Well, it's now 2020 For the first episode of 2024. And, you know, I thought, you know, we just came out of the holidays, I'm feeling a little lazy. So in in TV land, I think they would call it when the writers get lazy, they do a clip show, they put on clips of past episodes, maybe maybe in the future all, when we get this lazy, we'll actually have our editors just go back in the archives and put together clips, we don't have any clips. But we did want to do a little bit of a year in review and kind of talk about some of the interesting cases that we talked about, and guests that we talked with, in 2023, some of the takeaways, but to start, Jeff, I thought we would acknowledge that we've been doing this podcast now for three and a half years we started this was a pandemic project in the middle of 2020. And you approached me this was your brainchild and said what do you think about starting an appellate law podcast? And after I asked, well, what is a sleep aid? You said, no, no, no, I think that that attorneys would find it a useful aid. Why don't you share with our audience Jeff and with me as we reorient and kind of think of what we've got coming up in 2024? What we're going to plan to provide our audience in the way of tips and use useful content in 2024. What were your goals and starting the podcast way back in June or so of 2020? Yeah, well,

Jeff Lewis  2:30  
actually, before goals, let me say this to extent we talk about anything we're thinking about doing in 2024. If our audience or Fran or my mom has an idea, or thinks our ideas are terrible, feel free to email us. And we'll we always listen to listener input in terms of goals. I mean, in terms of why we started the podcast, I envisioned something like Masterpiece Theater where we put people to sleep in terms of discussion of cases, and I never in a million years envisioned an interview format podcast, but I have to tell you, interviews are my favorite format. Now in terms of the podcast, we learned so much from retired justices and practitioners about how they represent clients in appeals. So my goal is very different than what we have. And I'm very pleased with how it's kind of evolved.

Tim Kowal  3:16  
Yeah, likewise, I think we didn't have a guest for the first at least the first six months maybe close to a year before we had MC Sungai. Lon is our first guest and now she's been a repeat guest. We've had several repeat guests on the podcast and and expect to have more repeat guests and to continue bringing on you know, we have Corey Webster, for example, as are bringing our dispatches from the Ninth Circuit. He's our ninth circuit correspondent, Ryan McCarl has appeared a couple of times there our listenership is hungry for writing tips. And he wrote the book on on elegant legal, legal writing literally, his new book is called elegant legal writing just published last year, I think, actually, the fee official published date, I think is this month in January, right? listeners should listen to that episode and pick up his book. So going forward here, we're looking I think, I think we're in agreeance here that we want to bring in more and continued varying perspectives from from judges and practitioners and others touching on on the practice of law and appellate law. And legal Tech is a big one, we're going to be talking about some of our favorite tech tools from 2023. And what we're going to continue using and what we're looking forward to using in the way of legal tech to make our practice better, be able to take on more, more service more clients and do more good work. So what else? What else Jeff, what what goes on we hit and what remains before we can stay up our microphones, something Yeah, I'm

Jeff Lewis  4:43  
not quite ready to hang it up. One of the things I'd loved I'd like to do is in terms of oral argument, figure out a way to splice into the show or review snippets of oral argument and comment it do some color commentary because I think oral argument is kind of a mystery for some lawyers on tips on how to do it. And so that's one thing I would love for us to be able to pull off is more discussion of oral argument with clips of actual or oral argument. If you're a lawyer that's engaged in a really bad or really good oral argument, you want to consent to giving your your audio clips of that argument to us, feel free to email them to us, but that's one area I'd really like to hit. That's

Tim Kowal  5:24 
that's a great idea. And that's a perennial topic on the podcast was oral argument. It's of utmost interest in the minds of clients and attorneys. It's the big show, in any case, is when you put the arguments to a live bench, and you get to try to read the read the expressions on the judge judges and justices faces when you present your flagship arguments. And if their eyes widened in surprise, or scowl in distaste for your arguments, or they they kind of relax because they have embraced your arguments and they find them pleasing. Yeah. And even better if they asked you softball questions to suss it out even more, but, but on the other hand, most practitioners and judges will acknowledge that, or a very few cases are turned on oral arguments. So we have to put that into perspective as well.

Jeff Lewis  6:16  
Yeah. In state courts. Yeah, absolutely. Yeah. All right. Well, Jeff,

Tim Kowal  6:21 
let's get right into our year in review from 2023. Let's talk about some of our our guests that we had on the podcast in 2023. And maybe some of our our takeaways are just a quick, quick summary what we talked about, back in last January, a year ago, we had been Ikuta. attorney Ben Ikuta, on to talk about the coming changes to med mal caps. We talked about medical malpractice cases. And my takeaway from that conversation was just the the broad level about, you know, the the policy for caps on medical malpractice, I understand we want to give an incentive to doctors to continue doing their important work without fear of liability. But on the other hand, our tort system is really the only system we have to have a check and balance on negligence in, in the medical profession, other than, you know, if we want to have some panel of experts who are just roaming the scene, and taking away licenses, but we don't have the transparency there. And anyway, I in a call to mind the guests we had back in 2022 Rick Jaffe talking about how a lot of a lot of medical practitioners Mavericks run afoul of, of state agencies and federal agencies who, who want to say, here's how to practice medicine, and here are the only ways to practice medicine. You know, there's only so many ways that we can police the borders here. And it's not clear to me that the tort system with all of its defects is is not is not the best that we can, that we can have. Right,

Jeff Lewis  7:56 
right. And anytime we can bring on lawyers, talking about practice areas that I don't do is I always find those interesting. I don't do a lot of PII law or appeals from PII law, and having a medical malpractice attorney on here was really eye opening.

Tim Kowal  8:12  
Yeah. All right. Another set of guests that we covered was in our state appellate court comparison project, we started inviting some inviting on some attorneys from other states. Even though this is the California appellate law podcast, we thought it'd be interesting to compare appellate procedure in California with the way they do things in other states, because, you know, Jeff, and I, Jeff, you and I talk about some of the things of our peccadilloes or some of our grievances with some of the ways we do things in the California State appellate system. We thought, you know, let's, let's count our blessings here. Let's see if things maybe maybe aren't better. Maybe Maybe things are not not as good in other states as they are in the California system. So we had on Illinois attorneys, Pat Eckler and Dan Cotter. And when we put the question to Pat, he retorted, I can't imagine that Illinois does anything that anyone else should adopt. So he's, he has his own respective grievances with his with his court system. Utah Attorney John Nielsen came on the podcast and talked about how, what are some important differences and we saw this as a as a theme throughout some of our guests that the Utah the Utah Supreme Court promulgates its own rules of civil procedure. It's not legislate legislature driven. It's, it's judiciary driven. And perhaps as a result of that the Utah court does not have a court reporter crisis like we do in California. Instead, the proceedings there are electronically recorded. And if you do if you would like a written transcript of those proceedings, then you can hire a court reporter at your leisure, but you aren't strapped into oh my gosh, I got a hearing tomorrow morning and I need to have a court reporter there otherwise I'm not going to have a oral record to present on appeal and my appeal rights are basically hosed. And that was the same thing in in some of the other jurisdictions. We talked about it We had Florida attorney Lindsay Lawton, come on the podcast and talk about remind us of, of one of the important rights that we have in California as appellate attorneys is that even when the court is going to affirm a judgment, we are still entitled to a reasoned opinion on the merits. And that's not the case in Florida, where they often hand down. What What was the acronym that Lindsey told us PCAs? I think per curiam affirmance is, basically summary. affirmance is without any reasons, and those, those can be heartbreaking to get after you put a lot of effort into the reasons why the judgment should be reversed. It's like

Jeff Lewis  10:38  
the Court of Appeal saying, Nope. And that's it. It's hard to explain to the client, hey, just spend $10,000 On appeal. And the Court of Appeal just said, Nope, we also had Todd Smith and Jody Sanders on for the greatest podcast, April Fool's joke in the history of podcast, at least appellate law podcasts, we pulled the running gag and that was fun is super interesting to hear about the Texas legal system and their adoption of a new business law court and how unpublished decisions can be cited in that kind of thing. It was a it was an interesting discussion. Yeah,

Tim Kowal  11:09 
yeah. And then we had North Carolina Attorney Troy Shelton on we talked about the broader topic of judicial pay and how it's important to pay our judges and especially our appellate justices in in line with with the market, because you if you see first year associates getting paid more or nearly as much as as appellate justices, it makes you think, well, how are we going to get the best and brightest to serve on the bench, shaping our our law. And then we also talked about some differences between North Carolina and California law. For example, the North Carolina courts use a similar review. On bonk process as the circuit courts are there is a mechanism there where past precedent can be overruled by the aanbod procedure. However, the North Carolina Carolina courts have never used it Troy tells us which I thought was was interesting a an unused benefit there. And we had a couple of guests on to talk about chat GPT how to use it responsibly. Professor Jane Woods told us how to use some some good ways to get started using chat GPT. She mentioned that you know that it's going to come in there's going to be a learning curve. But there's no getting around the fact that a chat GPT and AI based legal research is coming. So if you don't get started now even with with baby steps, you're going to find yourself falling further and further behind. One good way to adopt it is use chat GPT to give you some ideas for outlining the issues that you need to cover in any of your upcoming motions or appellate briefs. That's right in Chet GPT. his wheelhouse is how to identify issues that are related to to the to the key legal issue that you have in your case. So feed that into chat GBT and see what it comes back with. Don't copy and paste the output from chat GPT but use it as a as a sounding board.

Jeff Lewis  13:03  
Yeah, you know, I've actually used it to help me structure. I was running a moot court for a colleague who was doing an oral argument. And I needed to come up with some questions to ask and obviously chat, GBT can't really help you with the substance of questions, but I fed the appellate arguments into chat GBT. And I said, Hey, will you help me come up with some Moot Court arguments? And it generated good formulations for tough questions that justices could add where I fill in the blanks and, and help out the details. So it's fantastic. And by the way, I'll do a quick plug here for Ernie, the attorney who's a tech lawyer that I follow. He just did a course. Yeah, it's an online course for chat GBT from lawyers, which is very good.

Tim Kowal  13:41  
Ernie is excellent. When we talk about some of the other legal tech credit Ernie also for, for turning me on to some of these tools. And then going the other direction on on chat GPT. Well, maybe not the other direction. But but more in the more extreme in the same direction. We talked with Adam Yuna kowski, Supreme Court litigator about whether AI could or should replace judicial law clerks in the future. And Adam says AI will make judges release more accurate decisions more quickly. And this is good. Judges already rely on clerk summary. So if AI produces better summaries faster, then why not? Ai? But what about the objection that AI is a mysterious black box? We don't know where this stuff is coming from? Well, Adam replies law clerks are already invisible to the public, and yet they influence judicial decisions without any input from the litigants. And in even though law clerks have the benefit of being human, how much you know, to what extent do we want the law being shaped by ideological 26 year olds at a mass? Right so so there's some food for thought it was a provocative conversation, I thought, yeah, yeah. All right. Then we talked with Carl Siri. I think I'm already mispronouncing his name. But Carl talked about the freedom to take significant cases easy A constitutional litigator, appellate attorney, my take away from Carl, after that interview was that, you know, the vision statement for my own law practice has become, make my law practice, like Carl's a series law practice, you know, the ability to, you know, he, he travels to just to talk and get to know other other attorneys gets to dive into meaty issues. You know, it's he's not, he's not, it's the idea of a law firm that's not bent on, you know, upscaling and profit. Those things are good. But if you can make a nice living doing really meaningful work, you know, that's really having it all. Right. Talking more about public interest work, we had Chris Sandoval on the show, he talked about how he was able to rack up a lot of appellate experience doing public interest work. He's argued dozens of important cases and many appellate courts with an in supreme courts. And again, if you can, if you can find a way to do meaningful work and get paid for it, really, you shouldn't be looking for anything else. And then as I mentioned, we had Corey Webster back on the show with dispatches from the Ninth Circuit. One of the things that, that Corey made me think of, actually, a little bit after we had Corey on we had Stephen Vladeck. Professor Stephen Vladeck, on the show, to talk about the shadow docket. And, and I remember Professor Vladek had said that what the High Court does really is, is practice high politics or constitutional politics in a way it's not just it's not just the law, like the trial judges do, or even that appellate judges and justices do. They're doing something near duplic. They're kind of playing fourth dimensional chess, and it reminded me of something in our discussion with Corey about how Ninth Circuit judges are maneuvering precedent by a lot of indirect means, and dissents and concurrences and unbought. maneuverings. And the one that still wrinkles. My brain is when Corey shared about the Jack Daniels case, you remember this, the Jack Daniels case where the very savvy appellate litigants acknowledged that look, we got binding precedent standing right in our way we can't possibly win this appeal. But the President is wrong. But knowing that the panel is going to be bound by the precedent the savvy appellate team just moved for summary affirmance of their own appeal. Yeah. Yeah. And they won. They won by living, got their case up to the to the Supreme Court and got a unanimous decision, reversing that precedent that had stood in their way. Yeah, very bold, very bold. I mean, that's that's just that's high strategy. So I love that story. So So go back and listen to that episode we did with Corey Webster. In his ninth circuit,

Jeff Lewis  17:40  
we had a we had Jack Metzler on the program to school you on the proper use of cleaned up and to dispel all problems and concerns you have with the use of the parenthetical cleaned up that was nice.

Tim Kowal  17:53 
What further complaints could I have? After after that conversation with Jack Metzler he was a very amiable fellow almost talked me into using cleaned up Jeff That's That's how provocative our compelling his presentation of the cleaned up parenthetical was, it's okay to use the the the parenthetical cleaned up was my takeaway just don't misuse it. And, and besides no one, no one is forcing you to use cleaned up. But yeah, very important. Don't Don't misuse it. It has a narrower and narrower use and meaning was was my takeaway. And we, we got to hear the origin story of how of how he put a lot of thought into the idea. He came up with this idea, put a lot of thought and thought into it, researched it, wrote it, published it. And that whole process took about 90 seconds in the form of composing a tweet. That was the origin story of cleaned up. We also talked about the best legal movies with Gary wax. Gary attorney Gary wax is a is a former film industry professional. And my takeaway from our from our interview, one of our funnest interviews, I think, I mean, just sitting around a bunch of lawyers talking about legal movies, the best legal movies we got to talk about my cousin Vinnie and how we how it's so great because it's it's an effective comedy but also works as a legal movie. But ever since that interview I've been wanting to rewatch 12 Angry Men, it's I think it's just a really encapsulate the the the importance of the the depth of what we do as as Persuaders you know, having to persuade juries and how that process continues if you give them right, give the jury the right tools. That process of persuasion will continue when they take the case away and the arguments and go back into the jury room. But the process also takes on a life of its own. Yeah, yeah.

Jeff Lewis  19:44 
And in that vein, I think we talked about The Caine Mutiny during that conversation and Apple just put out a remake with Kiefer Sutherland of the King mutiny and I need to that's definitely on my watch list.

Tim Kowal  19:56  
Oh, I didn't know that. I was just talking with someone about The Caine Mutiny. they remade it. Hmm. Yeah, it's gotten good reviews. Would you say good reviews?

Jeff Lewis  20:05  
It's gotten good reviews. Yeah.

Tim Kowal  20:06
Okay. Okay. It's all it's always a fraught thing when they take a good movie and remake it. Usually only only one way to go with it is down. But but but as a fan of that of that novel and the movie Big I'm a big fan of Herman Wouk the author of the novel, and also read his War and Remembrance and the Winds of War and War and Remembrance, which got made into a mini series so not not illegal movie, but but a terrific historical fiction of World War Two. And we also had Ryan McCarl, another one of our repeat guests. The first time we had him on we he was talking about his his blogging on on elegant legal writing and he turned those ideas into a book called elegant legal writing the my my favorite tip take away from that discussion was was Ryan's tip to defer any editing or second guessing about your your writing until a later draft. Don't be committed to your first draft, just get into that flow state flow state, keep your cursor moving, keep the keyboard pecking away, and then later on, then then turn it put on your editor hat and start doing the second guessing but don't stymie yourself. I've felt I've fallen into that trap recently. Just looking back over our our notes from that interview. And I remembered you know what I it reminded me that I forgotten to to get into the flow state. So it's a good habit to practice. Good tip. Okay. And then last few here. We talked with a high high profile employment appeals attorney Glen Donna's I was impressed by Glen with his story about how he had turned a case around after or at oral argument after the panel had issued a tentative opinion, a 148 page, tentative opinion against his client. And yet he was able to after a massive amount of preparation and honing in on the on the errors that he noted in that tentative. Got the panel to partially come around. I was also impressed. Glenn shared about how you can take certain appeals on contingency and the right kind of case, right? Yeah. And then I love Glenn's dose of historical reality about arbitration. You know, we talked about how the the there's a legislative presumption or legislative structure and a judicial bias in favor of arbitration. But that's not the history of it. The original purpose of arbitration was for those oddball cases, like shipwrecks when you weren't quite sure who had jurisdiction where we're been you lay for those kinds of cases. And so you would have contractual agreements for arbitration. But it was never intended originally anyway, for every garden variety lawsuit to be thrust into arbitration and out of the out of the public forum. Right, right. And then we add, as I mentioned, Professor Vladeck, on the show to talk about the shadow docket and I wind up agreeing with Stephens big concern that the shadow docket rulings are made without full briefing or argument or reasoned opinions. We talked about the importance of reasoned opinions. And all this tends to undermine public confidence in those rulings.

Jeff Lewis  23:04 
Yeah, yeah. The book was super interesting. And it's not just what the court does, but the increased frequency of the use of the shadow docket. That's concerning. And he put out Stephen, you know, suggested a couple of interesting fixes for the problem, including having Congress step up and do some pruning, or some revising of the statutes giving the Supreme Court authority as to which cases they hear, etc.

Tim Kowal  23:30 
Yep. And then we had a couple of guests talk about important First Amendment issues. First, we had Jeff Kasich talking about his book lie in a crowded theater. And we talked about how Jeff was surprised at some of the critical reaction to his thesis, his thesis being that there may be a right to lie and in certain cases, you know, lies are lies may be protected, just just like everything else. That we that we say. But thankfully, the courts have mostly stood by the First Amendment's robust protections and, and Jeff gives the courts a b plus or a minus grade on on keeping up our tradition and supporting free speech. And we also had Professor Eugene Bullock, talk about restraining orders and held there are a lot of First Amendment issues in restraining orders. And we've talked about some some practical advice for attorneys. Because I think I asked Professor ball like, what is the fix here? Is it a legislative fix to what do you want to say to judges about restraining orders? And what what his response was, is, it was to our listeners to don't hang up the phone when someone calls and wants to appeal from a restraining order. You know, Jeff, I know you and I talked about, you know, those usually seem hopeless. And we say, well, I did try going back later. But, you know, take a look at least and see if there are First Amendment issues, because, you know, restraining orders are awful damn easy to get. That's one problem. And there's not too much you can do about that. But if they raise constitutional Look concerns and a lot of them raise Second Amendment concerns. And if they if they if they restrict the the restrict the defendants speech to the plaintiff? Well, that's one thing. But if it restrict restricts speech about the plaintiff, right speech to any any other person in the world about a subject matter, and that's a content based restriction on speech, speech, a prior restraint on speech, and that that should be that should you should be able to mount an effective First Amendment challenge to that kind of restraint. Yeah, you you

Jeff Lewis  25:34 
extracted from Professor Bullock a good laundry list of constitutional challenges that lawyers who practice in the restraining order area should should implement is good interview. Yeah, yeah. So

Tim Kowal  25:46 
I think Professor ball gives a good, good overview of what what we attorney should be looking for when a potential client calls with a restraining order against them. So so take a look at the show notes. Take a look at Professor bollocks articles on these topics. They're being cited more and more in court cases. All right. And then we talked about, I want to talk about some of the some of the good, bad, good, bad and ugly cases that we've covered on the podcast. Jeff, I mentioned before we hit record, that I came up with a few that I like called the worst cases that we've talked about. And then I said, Well, Jeff, I should balance this out by talking about some of the best cases. What were some of the really good cases out there? And am I too cynical, because the only ones I can think of are the bad cases.

Jeff Lewis  26:31
Yeah. And I reminded you that we've never had an episode where you brought a case up that you thought was well reasoned, well decided not to be published. Yeah.

Tim Kowal  26:42  
Well, and who would tune in to that anyway? But, but to give credit where it's due it it does get difficult to find cases that are decided, wrongly in my opinion, you know, I look at I usually look at dozens of cases every day before I find one that I say, Well, wait a minute that, you know, I scratch my head and say, I don't know if that's quite right. And that doesn't even mean if I think something is wrong with the case doesn't mean that that it ought to have changed the outcome. Often it doesn't. But there's some things that I think are a little a little strange. And that's what I write about and talk about on the podcast. But just because we talk about a lot of cases that we think are odd, or maybe wrong. The vast majority of the cases we look at are correctly decided and for the right reason, but here are a few that, that we covered that I thought were quite strange. The first one was Magyar versus Kaiser Permanente Medical Center, where a summary judgment that was not appealed, was reversed anyway, the trial court in this case and enter two separate judgments, one for each defendant, but the appellant had only appealed from the first one. And usually this would be damning to any attempt to appeal from the second one. But the Court of Appeal used the liberality doctrine to construe the notice of appeal to include a later entered judgment that was not referenced anywhere in the notice of appeal. And even though there was published authority that the liberality doctrine would not permit construing a notice of appeal to include an order entered a few weeks later here. The second judgment was entered six days later. But is there some jurisdictional significance between six days and a few weeks? I can't think of, I can't think of any. And then another one that we that we covered a little more recently, just back in October about desire versus ace parking management, where the Court of Appeal noted that there was an issue, there was a issue of forfeiture. And we see forfeiture issues all the time where the appellant fails to raise an issue in the briefs. But this time, it was the it was the respondent who was found to have forfeited an issue that supported the judgment. And I thought the analysis of appellate procedure on this point was just not sound the respondent generally may not stipulate to reverse a judgment. And and what may not be done directly can't be done indirectly. So I thought it was just wrong to suggest that a respondent can forfeit grounds supporting a judgment that the reviewing court really is supposed to infer under the rules of appellate procedure. Yeah, counter intuitive. And then finally, in a fight over short term rentals, the Court of Appeal held that the city could not challenge contempt fees either as an appeal or as a writ. And, like many cities that were trying to, to mitigate large pockets of short term rentals, the city of Rancho Mirage had imposed a ban and the trial court enjoined the band but the city citing some vagueness issues with the order have failed to comply with the injunction. And as a result, the city got hit with contempt and attorneys fees for the contempt. And the the astute appellate attorneys here noted, you know, acknowledge that you can't appeal from a contempt citation. So they filed a writ and that was summarily denied. But what about the attorneys fees? There's there's some authority that attorneys fees after a contempt are our appeal Will as a as a judgment or if not as a judgment than a order after a judgment, or if if not either of those then certainly as a collateral order. But the court didn't go for any of those and just said, Well, you can only review it by by writ, and we summarily deny your writ. You basically got nothing out of it. Right. And that gets to one of the issues that I'm going to that I have been watching ever just about ever since we started this podcast, Jeff was the collateral order doctrine. In in California State appellate procedure. It's much stingier than in the ninth circuit where, you know, a final collateral order can be appealable. But in California, there has there's this additional element that the the order, in addition to being final, and collateral has to involve an award of money. And there isn't a minority view on that, that the award of money is merely evidence that the that the award is final, or collateral, but it's not a standalone element. But after three years of looking, Jeff, I've not found one case, that one case in the last few years that has followed a minority view, and they always require a payment of money. And that was a I haven't even written up that issue. Just when I when I'm looking at all the recent cases. Jeff, I just see this time and time again that that okay, that majority is being upheld. And I wonder why is California so stingy on that? Yeah, yeah.

Jeff Lewis  31:26  
I'm too busy looking at slap cases to read collateral order cases. But in terms of looking forward and what cases I'm looking forward to looking at in the coming year, the California Supreme Court granted review, In a case between the city of LA and Price Waterhouse concerning statutory or inherent authority of a court to impose millions of dollars of discovery sanctions. I'm interested, see how the Court of Appeal reads that or deals with that. And then in addition to that, you and I over the past year covered a lot of cases involving 998 offers, and the California Supreme Court is going to cover one case in terms of what happens in a lemon law case where the party settle, and they leave it to the court to address the issue of attorneys fees and costs, can then be shifting or cost shifting provisions of 998 come into play when the case terminated as a result of a settlement. So I'm looking forward to looking at that case, suit. The California Supreme Court does that. And that's the magical case.

Tim Kowal  32:26  
Yeah, yeah. The 998 issues, make my head hurt because there's so many rules. There's so many pitfalls. And I don't know if there's a systematic way of avoiding all of the pitfalls. Yeah. All right. Jeff, let's talk about this is the part of the discussion I've been looking most forward to is favorite tech. You know, Jeff, I've gotten a lot of great tech hints from you. I think you turned me on to, to clear brief. And, and a notion certainly, that's all to start with, with my my favorite tech of 2023. It was really earlier than that, that they got their start clear brief. We had Jackie Schaefer, the founder of clear brief on the podcast, this this last year in 2023, to talk about clear brief and our vision for it. And I have taken not only using it but it's become a cornerstone in my in my cases, when I when I have my paralegal, first input the cases into our system. You know, we put the key cases in we calendar deadlines, and and then the next step is to put all of the all of the case documents into clear brief. So I can generate memos. So I can start generate generating motions. And I can instantly have all of the facts, or the cases that at my fingertips based on the clear briefs, AI generated research tools, so you can do research over your own cases. So it's just a fantastic product. And then it just impresses the socks off of people when you produce the memos out of clear brief that are fully hyperlinked to the to the cases in your case file and not to mention legal authority. So it's just a tremendous product.

Jeff Lewis  34:05 

It's not limited to appellate briefs. I do some expert opinion work, right issue opinions. And I've done reports in letter format, where there's a lot of attachments or documents referred to and I generate a hyperlinked report using clear brief, which is fantastic. And before we hit the record button on today's podcast, you were telling me about a new feature for clear brief in terms of summarizing key facts for an appellate brief.

Tim Kowal  34:32 
It's, that's that's an amazing it's an it's an amazing function that it has. So you let's say you you started a case you've you've dumped into it all of the case file all of the evidence for the case. And now you want to you want to see a chronology of facts, but you can just at the click of a button, you can have case, clear brief, take your entire case file and generate a chart of all of the facts that have come up in the case. Now because it's it's it's indiscriminate, it's just taking every single fact and putting it in there, it might not be relevant to, to what your particular project is. So if you take a little bit of time and prune that chart, so it has only the facts that are relevant to the task you're working on. There's a second functionality within clear brief now it's called think it's called the verified facts section, you can click the button to create a verified facts section of your brief. And it will take that chart and then turn it into a narrative as if a junior associate had written up a narrative summary of facts for your case, summary facts and procedural history for your case, fully hyperlinked to all of the documents that you have in your case file. And it's a complete with, with signals that talk about well, you know, two days later this happened. And then after that this happens. So it gives you a sense of flow for the brief. I think that I haven't tested it with, with Roscoe rumens. Brief catch, but I suspect that it would score fairly well, as legal pros, you know, there's nothing, not a lot of flourishes in it. But it is good workman like product,

Jeff Lewis  36:04 
better than starting staring and starting with a blank page. Yeah,

Tim Kowal  36:08 
far, far better than that. And if you're looking to, especially if you're just looking to get to have a good case memo in your file, that's a terrific way to start. And if you want to have something to send to your client, that shows that you have digested all of the information, you have a handle on where that what the facts are. So you can jump right into the issues of the case and start planning out the strategy rather than having to spend hours and hours trying to figure out what the facts are and where they are clear brief really accelerates that process. So that's, that's become an indispensable part of my, you know, part of my tech stack.

Jeff Lewis  36:44 
Think about this in 2022, clear, brief and CO counsel, we're nowhere near our workflow. And now, clear brief in terms of the timelines and CO counsel, in terms of a starting research memo, are really into integral to our workflow in the early stages of appeals.

Tim Kowal  37:06 
Yeah, that's right. And I think that when I mentioned earlier that, that part of the vision for my own practice is to be able to take on, you know, significant cases like Carl Siri, and maybe do public interest work like Christian DeVille. With these tech, you know, AI based tools, it brings me so much closer to being able to do that, without, without a big staff without having to, you know, I could still take on paid clients, and to be able to fund my work to do to do other other things that I find interesting and significant.

Jeff Lewis  37:40 
Yeah, it's a great equalizer. Now, Tim, you may not be old enough to remember that we used to have to do filings that were not PDF, you would actually have to print a file and have a court attorney service, we drive down to the courthouse and file it. And when PDF filing came along, it really was a great equalizer between big firms and solos. And this, I think, is going to have a similar if not bigger effect in terms of bringing parity for the ability of small firms to take on big firms. Absolutely.

Tim Kowal  38:12 
Well, and on that same on that same vein, there's another product called type law, that I think I've mentioned to you once or twice, this is a product that will take your take your appellate brief and and put it into all of the all the appropriate format for your court, if it needs a certificate of interested parties, if it needs a, you know, the statement of jurisdiction, if it needs the the certificate of word count and everything else, whatever is required by your jurisdiction, they have that on their database, and they will just take your word document and turn it right into a polished, ready to file brief. Now, that's and that's not the element that knocked my socks off that the element are the function that type law can perform that was a game changer for me is that it can create the appellants appendix or the excerpts of record. So no more and I know Jeff, that you just have you have your paralegal slaving away in the background on your appellate appendix but if you tell him about type law he will you think you're the greatest boss ever because type law will just take all you have to do is upload your folder you take your folder if your your curated list of documents that you want included in your appendix, but no more having to do organize them into okay, this is gonna go in volume one because it can only be 300 pages or it can only be 20 megabytes or 25 megabytes and then you have to organize them and then if you decide oh I need to add one more document then you have to reshuffle all of your carefully organized folders. No more that you just take one one list one directory have all of the documents you want you upload them to clear brief or sorry not to clear route to type law and in the following day, they will give you your fully organized fully indexed With a chronological index and Alphabetical Index, if that's needed by your court, with cover page indicating what volume and what page numbers, fully baked, stamped chronologically, or sequentially throughout all the volumes, Appendix, and then if you decide after it's all done, Oh, there's one other document I forgot. So you're gonna have to tear it all apart and start over, right? No, you just upload it, and it will re paginate everything, including your indexes, right on the fly. It's like,

Jeff Lewis  40:26  
Hey, you just said the following day, I haven't used this product. You said the following day. Is this a software service? Or is there a human element here that gets involved?

Tim Kowal  40:34  
Yeah, there must be. There must be a human element in it as well. I think it's someone there must must finalize it or spot check it. There must be doing something to get that first draft. But But my experience has been if you need to add a document later on, that can be purely software because that that appears to happen right on the fly. Oh, that's great. I've only done this with a handful of my, my briefs, or my appendices so far. So I'm not expert at it yet. But but so but so far, it's been like magic. Yeah. Okay. And then we mentioned brief catch, we've had Ross Guberman, on the show that was in 2022, I believe, to talk about his tool that plugs right into words. So it can help you write like, like Justice Kagan, or like Justice Roberts, give you on the fly tips about how you can tighten up your writing, reduce the words in in some flabby sentences, or maybe break up a sentence. That's, that's a little too long and ponderous. So it's a great tool just to quickly tighten up your your writing. If you just click the button, spend about five minutes going through your brief before you finalize it and file it. It'll make it much more readable and persuasive. Yeah.

Jeff Lewis  41:46 
And I just saw on Twitter, he he teased out some new iteration that's coming out and AI involved the tool that I'm not sure I fully understand, but it helps you in complicated Supreme Court decisions when there's concurrences and dissents and all of that to kind of analyze court opinions in a certain way and keep Keva score sheets. I'm really interested to see the next iteration. Brief catch.

Tim Kowal  42:12 
Yeah, I love that. And then another another entry on my tech stack Jeff is one that's become it's so indispensable, it's almost like a it's like the keyboard. I don't mention how important the keyboard is because it just goes without saying but Text Expander is like is it like quadruples the effective effectiveness of your own keyboard, because you can program in the macros that you use on a daily basis, or or on any kind of regular basis. I've got objections in there. If I ever use a discovery objections, I don't have to retype out a relevance objection or unduly overbroad and harassing objection. For example, I just type in the text expander macro for that and it populates whatever it is I'm trying to do. And another example for that I use it in appellate briefs is for the certificate of interested parties. I just have that as a macro, if there are no interested parties to disclose, I just typed in the macro for that. And it populates that, that one or two sentences. And I'm done. Use the same thing for if I'm going to refer to the parties by their first names with rather than their surnames, I don't have to look up a past brief or I have included that, that footnote to copy and paste it. I just typed in the macro for that and it populates and I'm back back in. It helps you stay in your flow state rather than have to do a lot of brick laying on stuff that is doesn't require any your deep thought you can you can take all that brick laying and do it in macro so that you can get on to doing the you know, putting on the Gothic ornamentation onto the edifice. Yeah, yeah, absolutely.

Jeff Lewis  43:50 
I, I'm a big fan of for declarations. There's certain repetitive tasks like a true and correct copy of the blah, blah, blah is attached here to incorporate Aaron as Exhibit blah, blah, blah, and little blank for the exhibit number. I just do TextExpander I typed the letter Z true x. And the sentence pops up a little dialog and let's be insert, you know whether it's a letter or an email, whatever it is, and then it puts into my brief. It's amazing.

Tim Kowal  44:18 
Yeah. All right, Jeff. The other ones I have are notion I know both you and I use notion. It has a little bit of a learning curve. I don't know how I can if we can explain our some ways that you can use notion in your practice it can it can do anything that you want it to do. But it just takes a little bit of time deciding what it is you want to do and then figuring out how to do it but it's a great tool. Yeah,

Jeff Lewis  44:40 

I have to tell you in the last few months, I've been playing around with a tool called obsidian in favor of obsidian rather than notion because it's got a lot of speed. It's really fast and in terms of security and future proofing all the data is saved on your computer as text files, so doesn't meet Software really to translate it so you can take the data elsewhere if you needed to. So I've been playing around a lot with obsidian and notion has been kind of gathering dust.

Tim Kowal  45:08 

Yeah, right. When you told me that, Jeff, I thought, well, I can, I never want to let Jeff get a get a lead on me. So I started playing around with obsidian to, I find it felt a little too complicated. I think the the benefit the that that negatives goes along with its benefit with its benefits, right? Because if you have to organize where you want to keep all your text files, on your own cloud storage, it doesn't provide its own cloud storage for you. It doesn't provide its own synchronization for you, you have to set up every aspect of it. And once you once you have it done, it all belongs to you. If no if obsidian were to go out of business tomorrow, it would it wouldn't affect you any other than you know you have to find some other tool to import all of your notes. But you still own all your all your notes. But I use Evernote, for example. And if Evernote decided, Oh, we're going out of business and all your stuff is gone, I would have no recourse I would be

Jeff Lewis  46:02  
up host Yeah, absolutely. Absolutely. So that's

Tim Kowal  46:06 
those are the those are the trade offs, you have to decide is it the same thing you think about with with do I put up all my stuff on on Gmail or on Google, Google is going to own all my stuff, and yet, well, but if you want all the convenience that it offers, then that's that's what you have to pony up. Another thing I started using recently Jeff's is a stream deck and I know you got one of these to a stream deck. It's hard to hard to explain I mean, I'm holding mine up to you my my stream deck I've programmed with all these buttons. It's this physical, physical console of buttons that just sits on your deck but but on your desk buttons and knobs. So for example, I programmed a button called inbox. So wherever I am, if if I want to check my email or go to my email list, press inbox and it instantly pops up my email, I don't have to dig for it on my on my taskbar. Same thing, I have a play button for music. You know, if I happen to be listening to music, and the phone rings, I need to turn it off. I just got to play pause button right on there. If I want to end this meeting, you don't have to hunt for okay in meeting and meeting for all you can just hit and meet and meeting and it's done. I don't want to hunt for buttons. So it's just another thing that that strips off some of the the extra brain cells that you have to devote to doing basic tasks, so that you can stay in your flow state.

Jeff Lewis  47:23 
Yeah, I've got one too. And I've really been enjoying it no one button pushing for bringing up a new template for a new letter, or a memo or pleading or a certain database on the on Westlaw, like the rudder group, a certain section you could do with bookmarks too. But just having that tactile button depress is helpful getting ready for this podcast. Having a Mac shortcut that turns off, my phone puts on Do Not Disturb and sizes the windows appropriately. That's very helpful too.

Tim Kowal  47:53
Yeah, that's nice. I haven't, I haven't made it to that level yet. Another thing I've used it for is for for some word macros. Like for example, one I've got a button that I call curly Q's. So if I if I copy verbiage from a case, and it's got a bunch of internal quotation marks, and then when I paste it into my Word document, they're all you know, they're all the straight the dumb quotes, they call them right, I want to turn those into into the curly quotes, I just select that paragraph hit curlicues in it. And it just changes all the straight quotes to curly quotes. Oh, that's handy. That's really handy. So those are those are some of the things on my tech stack that I've found to be indispensable. One thing I added on here, Jeff, I know that you use is not really a tech, but a service called buying time. And I know that you've used them there. It's kind of like a virtual assistant but a more specialized virtual assistant assistant instead of one person who you have to train to do. Maybe a particular thing. They have a whole bevy of people with different specialties. Like if you need a quick web page designed, they have a webpage designer there who can who can do that for you. Or if you need someone to source a mug for the mugs that we send out to the guests who appear on the California appellate law podcast. They have someone who, who can do that, and we depend on them. For those sorts of things. Can you tell us a little bit about how you've been using buying time?

Jeff Lewis  49:14 
Well, yeah, let me say if I had to do over again, I would have read the book, buy back your time by Dan Martell first. And then yeah, and then use the service. And let me say a lot of people including Ernie, the attorney are big fans of using overseas virtual assistants. I have a big fan of buying time because I know the owner, Bebe Goldstein, they're based here in Southern California. It's a team of I think about 10 or 11, folks, and not everybody is in California somewhere on the East Coast. And they've got bookkeeping folks and they have someone who's creative who could do artwork. They have somebody who can I give them some text and they throw PowerPoint together for me with interesting gifts. They could do social media posts, anything that you didn't, that you're doing as a law firm owner that's not practicing law can be delegated out to a virtual assistant. With some training and some getting up to speed. I'd say the most valuable thing that buying time is doing for me right now is there's a chapter in the book buyback, your time dealing with emails. Now I have somebody who filters and reads my email at five in the morning because they're on the east coast. So when I wake up, there's one email box I need to look at that doesn't have you know, Tim Cole's monthly discussion of appellate law or all the offers and that kind of thing. It's just the hot 10 emails I have to absolutely have to read. So I highly recommend BBs service buying time. They're fantastic.

Tim Kowal  50:38  
Do you have someone from BB service managing your inbox? Or do you have another assistant to do that? That's

Jeff Lewis  50:43  
right. I've got actually I think it's two people one in the morning, one in the afternoon on BB Goldstein staff at buying time and they filter and and take care of my email. It's great. That's interesting.

Tim Kowal  50:55 
Yeah, that is, I think that's one of the first things that Dan Martell says in his book to do is the first thing a busy, busy executive has to do in our case and busy turning your partner needs to do is to just relinquish control of your inbox and your calendar, you should not be calendaring, your own meetings, you should not be sorting through all of the, you know, the non urgent, not important emails in your inbox that needs to be delegated. So that to someone who can help you bring the most important things up to the top. Yeah,

Jeff Lewis  51:22 
I mean, think about this, I'm going to keep beating up on YouTube, your monthly email, or weekly email not to be published. It's fantastic. But the moment that I look at it, I got to think, am I gonna read this today? Am I gonna read it in a month? Or am I gonna put it in the trash? And that time that I take to look at your email and that process? You multiply that by like, 500? And you've just lost a lot of time in your day?

Tim Kowal  51:45  
No, absolutely. I think that that reminds me of I remember, President Barack Obama, I think was reported to have had all of his suits planned out each day, so that he didn't have to spend time in the morning deciding what he was going to wear it just trying to eliminate as many decisions as possible, as many important decisions as possible to avoid that decision. Fatigue.

Jeff Lewis  52:07  
Yeah, Steve Jobs, had it better. He you know, had one outfit with the turtleneck. And that was it. Right? Yeah.

Tim Kowal  52:15
Well, yeah. And since you mentioned about the inbox, if you don't want to go all the way to delegating your inbox, another tool that the attorney, the attorney mentioned to us when we had him on the podcast was Sanebox, sa N E, box SaneBox. It's kind of a set of filters, that AI based filters, they're quite good at organizing your emails between one of a few different boxes, including a later folder, it will it can intuit those emails, like the California like not to be published my, my newsletter, but it's very important email. It's not to be missed, but you probably don't need to read it right away. So put that into either a later folder, or there's a news folder, you'll intuit that, Oh, this looks like it's news that you might want to read when you're in the mood or when you have the time when you're standing in line to pick up your takeout dinner. Tonight, you can make your news folder and read all your your news email, so it's and then it has its own spam, which it calls a black hole folder. And then when you if it doesn't catch one of those and you drag it in manually, it will know okay, you know, we're gonna send we're gonna send this into the into the black hole in the future. Let

Jeff Lewis  53:30  
me before we leave the world of legal tech, let me tell you about one piece of analog tech or analog tool that I use in conjunction with Clio and all these other tools. It's been over the last few months indispensable. And that is an old school planner called the Hava Nachi or Hubba, Nietzsche planner, and I'm holding it up on the TV screen, it is this little black book that is a little larger than a pack of playing cards, it can fit in my back pocket when I'm wearing jeans, that's a big test. And it has these pages. For daily calendar, it's got a weekly calendar, etc. And the paper is super thin, almost like used to be in a in the yellow pages that really thin paper so can hold quite a bit in this book. It's got a year calendar and for getting me to focus on the two or three tasks I need to do today in my meetings today. Sometimes just looking at that planner and using it to jot down just a few notes is really indispensable. So I highly recommend it. How long have you been using that? Since September? Okay. Yeah. And the the website for this, by the way is the Hubba, Nietzsche, hobo Nietzsche, or 110 I guess it's based in Japan. So you want to by the way, you should order the English version, not the Japanese version. And every page, by the way, has a quote, an interesting inspirational quote. And I'm not sure why but at the very end of this book, there's pages and pages of information about Japanese food. I'm not sure exactly why that's in there. Yeah, fantastic little tool, I highly recommend

Tim Kowal  55:02 
it. Okay. All right, Jeff and the other entrance onto our our tech list or into our year in review list for 2023.

Jeff Lewis  55:12 
So, you know, it's interesting case, Tech's co counsel tool keeps rolling out new services. Through its AI, they've got some related to discovery that I haven't really fully played out with. And I'm looking forward to playing out and reporting on terms of it promises to help you respond to discovery, you upload some interrogatory. And that helps you draft initial responses, looking forward to seeing if that can effectively be used.

Tim Kowal  55:37  
Yeah, I think we I think we did mention case text and CO counsel as part of our favorite legal tag. It's not only a sponsor, but it is another thing that I use on a daily basis. CO counsel for, for researching for bouncing ideas off using it as a sounding board. You know, it's just something that I that I use as an indispensable tool when when drafting any brief in the trial court or in the appellate court. All right, well, that's gonna What's that, Jeff,

Jeff Lewis  56:06 
I think that wraps up this episode. Again, we want to thank casetext for sponsoring our podcast each week, we include links to the cases we discuss from casetext daily updated database of case law, statutes, regulations, codes, and more, and listeners of our podcast enjoy special discount of casetext basic research at That's

Tim Kowal  56:26 
And if you have suggestions for the types of content or guests that we should have on the show in 2024, please email us email either Jeff or me. You can email our regular email addresses that certainly you can find online or you can email info at cal And our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis  56:48  
See you next time.

Announcer  56:49 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases a news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.