The California Appellate Law Podcast

How appellate attorneys beat summary judgments, with Yisrael Gelb

January 09, 2024 Tim Kowal & Jeff Lewis Season 1 Episode 115
How appellate attorneys beat summary judgments, with Yisrael Gelb
The California Appellate Law Podcast
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The California Appellate Law Podcast
How appellate attorneys beat summary judgments, with Yisrael Gelb
Jan 09, 2024 Season 1 Episode 115
Tim Kowal & Jeff Lewis

Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including:

  • 🔧 Look for common defects in the moving party’s separate statement
  • 🤜 Push back on the moving party’s showing. It is often not up to snuff. Drive that point home before turning to the opposing party’s burden.
  • ✒️ Elevate your writing—an MSJ is a trial on paper, but great trial skills often do not translate.

We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.”

Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including:

  • 🔧 Look for common defects in the moving party’s separate statement
  • 🤜 Push back on the moving party’s showing. It is often not up to snuff. Drive that point home before turning to the opposing party’s burden.
  • ✒️ Elevate your writing—an MSJ is a trial on paper, but great trial skills often do not translate.

We also discuss Yisrael’s new podcast for plaintiffs’ attorneys, going by the provocative title, “The Ambulance Chasers.”

Yisrael Gelb’s biography, LinkedIn profile, and Twitter feed.

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. 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.

Jeff Lewis  0:33
Right before we jump into our interview this week, we 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. Case Texas relied upon by 10,000 firms nationwide from solo practitioners to M law 200 firms and in house legal departments. In 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 listeners of our podcast enjoy special discount on case Tech's basic research at That's

Tim Kowal  1:16 
All right, Jeff, and today for our first guest of 2024. We're pleased to welcome appellate attorney and plaintiff's attorney Israel Gail to the show you Israel or is he Gelbe is the founding attorney of Gelbe law, a boutique appellate and civil litigation law firm. Israel is also an ordained rabbi and qualified as a judge for any court of Jewish law. A father of three is he opened his own practice to have the flexibility of spending time with his children and runs a fully remote practice. He is a contributing writer for the Los Angeles Daily Journal. He's a committee member for LA CBAS Amicus and armed forces committees he volunteers with lf a advocacy group for Jewish service members is his practice focuses on appeals and helping plaintiff's lawyers beat summary judgment. I'm interested in talking about how just how we can we can beat summary judgments. And his his LinkedIn feed is a must read for those looking for recent cases of note, so make sure to subscribe to and follow Izzy on LinkedIn. So as he welcome to the podcast. Thanks for joining us.

Yisrael Gelb  2:23 
Thanks so much. Thanks for having me. I have to say I was listening to your introduction. And I've heard this introduction. Literally. I know how many times I've listened to your podcast in previous episodes, but like hearing you introduce the podcast live was just like, so cool. I got a whole nother level.

Jeff Lewis  2:39 
We got a fanboy here, Tim we got.

Tim Kowal  2:43 
Yeah, yeah. Usually I recite the introduction as a party trick at cocktail parties. And well, so easy. Let's get right into it. And I want to know a little bit about some of some of your pro bono work. Usually that that tends to tell tell people a little bit more about about you is what you do when you're not on the clock, so to speak. So tell us about your work with armed force Armed Forces servicemembers?

Yisrael Gelb  3:09 
Sure. So I went to Southwestern law school, I had a professor Rachel Vanlandingham. She was a retired colonel from the United States Air Force. So I took military law with her, and I kind of was inspired onto this path to go ahead and join the JAG corps in the United States Air Force. And I applied no less than four times and got rejected no less than three times. The fourth, the fourth time, I never even got a response. So I'm still waiting for that one. But considering it was from 2020, I don't think I'm getting it. So I ended up getting involved because I wanted to do appellate work, I ended up you know, applying to the to the Court of Appeals for the United States Armed Forces. And I got connected with Aleph Institute, which is a Jewish nonprofit that helps both service members different, you know, whether it's legal needs or comfort, or, you know, whatever it is that they that they may need. And then they also do a lot of work with Jewish prisoners and defend state and federal prisons across the, across the country. So I got involved with them. And right now we're working on a case that involves a sexual assault in the United States Air Force. Well,

Tim Kowal  4:26  
that's terrific. And what are the what types of what types of service members are, you know, in dire need of Legal Aid these days? And what kind of cases do they do they get into decide from the one you mentioned? Well, it

Yisrael Gelb  4:44 
could be really anything it can be something as simple as just they need help with you know, divorce or they need help with their getting served papers back home, and they need someone to you know, accept service on their behalf and there are federal laws that you know, will stay pretty much all proceedings while a service member is on duty, so can be something as simple as that it can be, they're having trouble with their unit, you know, whether they want kosher, or whether they're trying to keep Shabbat or some other religious observance.

Tim Kowal  5:17  
They need are, are specific to their to their work and participation in the armed forces. And some of them are just dealing with legal issues that come up back home. Yeah, yeah, absolutely.

Yisrael Gelb  5:25 
Maybe their family needs something, you know, it could be a whole wide variety. So when I volunteered for the organization, so I let them know, I was a lawyer, they wanted to get involved in litigation specifically and let them know if they had anything on the appellate docket. And they come back to me, Oh, well, someone called us about a sexual assault. Can you help them out? Like it's not exactly appellate work, but I'll take it so.

Tim Kowal  5:50 

Jeff Lewis  5:51 
Got it. Hey, yeah, we don't do politics here on the show. But let me ask you this. Has October 7 impacted the demand for work for, you know, folks in America who have gone over there to go fight or anything like that? I

Yisrael Gelb  6:06 
don't know. I'm not involved that deeply to, to know the answer to that. But I, you know, I would, I would, I would expect so. So, tell us tell us about the legal

Jeff Lewis  6:16  
path that got you from Southwestern law school to an appellate attorney targeting motions for summary judgment?

Yisrael Gelb  6:24
Yeah. So actually, I think we have to start maybe a little before that. Okay. So I went to, after graduating high school, if we could start there, I went off to a religious institution of higher learning, called yeshiva, and basically spent the next 1011 years studying Talmudic law, and that kind of honed my skills and both in terms of advocacy in terms of being able to think critically. And it kind of put me onto this path where I, in the back of my mind, I wanted to be a Jewish judge in a court of law for for Jews, more of a religious, you know, religious cord, that didn't end up happening. But then I ended up getting involved in other fundraising and politics and kind of lobbying for a couple of Jewish nonprofit organizations, which then eventually led me into getting into law school. So by the time I finished law school, I was already 35. Oh, Ma. So I was kind of at the point, and I already had three kids. Okay. So, you know, the traditional corporate law, you know, 80 Hour Workweek was really not something that I was able to do. And at that point, even clerking for a judge, you know, it's making, you know, $70,000 or $80,000 a year was just not something that was feasible financially. So I ended up taking my first job, as an attorney, I ended up taking a defense litigation associate row with a firm called boarded summer, and then worked there for a year realized that it was basically 80 hours a week, you know, of nonstop litigation and writing letters to insurance companies and all the, you know, the real grind work, and decided at that point that my kids need me more of their lives than I need to be in the office. So I decided to quit that job. I ended up writing a article about it in the daily journal about mental health in general. And then how it applies to, you know, that's, that's that scenario. And then I decided to open my own law firm. And when I was in law school, I didn't get a chance to compete a moot court if they wants to, because all of their all the competitions were always on Shabbat. So I was never able to actually compete. So I ended up doing I did, they had an intramural competition, which I was able to compete in place pretty highly. But I always want since I was in law school, I wanted to be involved in actual appellate work. So I was like, once I'm opening up my own law firm, this is the type of thing that I want to do and make sense from, you know, from from an hour's perspective, you have to write their briefs, it's, it's kind of flexible in terms of your timing, right, we can always get an extension on on the briefing schedule if we need to,

Jeff Lewis  9:25 
unless you're in the ninth circuit,

Yisrael Gelb  9:28 
the Ninth Circuit, but thankfully, it was the type of scenario where I was able to work from wherever and at my own pace, and be still be involved in my kids lives. So that was kind of where I went, but I had one big problem. And that was trust. I was fresh out of law school, even though I knew I had the, you know, the tools to get over and I had my own life experiences but didn't translate into, you know, into, into the real world of of Law, right? No firm is going to hire, you know, a first year out of law school doesn't matter who he is. So that's where I turned into LinkedIn. And LinkedIn became my voice of being able to just constantly, you know, add value to, to attorneys. And to, you know, whether it's updates in the law or whether it's just little snippets of, you know, motion practice, whatever it is, I was able to, you know, perhaps over amplify my voice through LinkedIn to be able to create my own little image. And interesting, yeah,

Jeff Lewis  10:34  
that's how we know you. That's how you put it on our radar. It's LinkedIn. Let me ask you this. Let's roll back a little bit to some of your earlier statements. Religious courts, I'm Jewish, I'm totally ignorant on this. Why did Jews need a special court? Why can't they just go to small claims court or the Superior Court? Yes.

Yisrael Gelb  10:50  
So obviously, for, you know, there are tons of as lawyers, we know, that there's like, you know, minute details into every single little thing in the court, right, the format, and especially as appellate lawyers, I mean, you know, the rules of court, you know, 13 points, or, you know, one and a half inch on this side, two and a half inches on the third side, you know, and if it's off by a quarter of inch, you know, you're getting rejected by the clerk, right. So as long as we understand that all these minutia make for a difference. And Jewish law has not just minutiae has, you know, grand laws also. And, you know, I guess you could sort of see that some of the books up there. But one of the one of the rules in Jewish law is that to Jews should not take their disputes to a secular court, rather, they should take it before a Jewish court and educate it in, in the spirit of Jewish law. So there are Jewish courts throughout the country, Israel, you know, pretty much around the world that will sit and judge financial disputes between between the Jewish parties. Now,

Jeff Lewis  12:00 
is it is it kinda like arbitration? Oh, sorry. Go ahead.

Tim Kowal  12:03 
Is it equivalent to like an arbitration? Is it binding on the parties?

Yisrael Gelb  12:06  
Yeah, you guys are like, it's like you almost like you're like speaking out of one voice over there. So yes, it's like arbitration. The at least in America, it's it's like arbitration, you signed a binding arbitration agreement. In fact, that binding arbitration agreement is always the first thing that parties will attack when they don't like the ruling, right. So they'll they'll take that binding arbitration agreement, then they'll take it into secular court, and they're like, Okay, forget all about this Jewish stuff. We're going with the secular people. We're going to appeal this decision to have it set aside because the arbitration agreement wasn't XYZ.

Jeff Lewis  12:45  
Yeah, if that argument came up in a Scientology dispute over some rape victims and Danny Masterson, there's a big lawsuit against Scientology that they wanted to push into the SEC. Scientology courts and yeah,

Yisrael Gelb  12:56
yeah, I was actually when I was working. In my last job as a lobbyist, we were closely following that case, to see if it would make it through the court system and ended up I think it ended up getting unpublished. Oh, really interesting. Yeah, I have to I have to. I was talking to an old colleague, the other day, and we were, you know, we were reminiscing about that case. And I told him, I'd look it up. I haven't done it yet. So thank you for the reminder. And

Jeff Lewis  13:21
let me ask you, I mean, I don't want to dwell too long on these courts. But it most of the disputes that go to these religious courts, are they are they get there because of a pre dispute pre existing arbitration agreement, or they get there? When there's two Jews, and they have a dispute? They decide after the dispute? Hey, let's go to this court.

Yisrael Gelb  13:38 
So it usually gets there because they're having, you know, they're having the dispute, and otherwise they will. So, one will send what's it's funny, because I was reading a case today, at of funny that you mentioned that it's out of the nightside Southern District of New York. 2016 and it's titled based in of Mahoma Hurayrah V. CONGREGATION Americas you're safe. If you wanted the site, that's 2016 US District Luxus 132402 It's a fascinating read only for the that the whole concept of the jurisdictional issues that come up. But yeah, basically, one party will usually want to go before the courts before religious purposes in order to satisfy their religious obligations. That court will issue what's called a C roof it's basically like a judicial summons to the other party. Now there's then you know disputes about which based in they should then go to there's a whole you know, we can maybe in a future podcast get get into that. Yeah, because they were then summoned to the to the to the Jewish court. They then appear either willingly or by force. And if they're not happy With what comes out, then they'll end up, you know, trying to appeal it to the secular courts. Yeah.

Tim Kowal  15:04 
Yeah, I think that that is an interesting topic. That may be something Jeff that we want to delve into in a future episode. We were just talking about one of our past guests who mentioned that arbitration historically was for those rare oddball cases where you didn't know who had jurisdiction or where venue lay. And so the parties would just agree beforehand to arbitrate a dispute. So you didn't have to get into those sticky wicket questions. But now it's, you know, it's just used for everything, even garden variety disputes. And when you get into an arbitrator, you're, you're hoping that the that the arbitrator will interpret the law, like a real judge would interpret the law, where they find yourself thinking, Well, why don't we just in front of a real judge, then, and

Yisrael Gelb  15:48 
that means that the real judges are pushing the arbitration? Right, yeah, standing order in Los Angeles Superior that, you know, you have to show that you have to give them the arbitration documents. And so it's actually something that's really gone to the other metric. Yeah,

Tim Kowal  16:01 
it just seems like a more genuine choice that parties would want to get into a Jewish court or, or a court, you know, whether it's, or it's a Sharia court, or maybe Christians have their own court, you know, that we want to interpret their disputes according to their own laws, and mores and codes. And you're not, you know, that that codes that a real judge, so to speak, a civil judge is not bound by it, and would never interpret anyway. So it's not like you're you're wanting for a real judge, because this is the judge interpreting the laws that really matter to the parties in the first place. Yeah,

Yisrael Gelb  16:37 
and, you know, does raise tons of, you know, constitutional issues that between the First Amendment and if they're by if the whole thing is binding in the first place. When I was in law school, I did a I did a paper, the law review article on the intersection between family law divorce, and and based on whether or not there's a constitutional basis for it, and there's like tons of case law out there and out of the DC district, and, you know, other other circuits that will that have addressed this these issues, or whether or not based in is considered to be binding on the parties or not?

Tim Kowal  17:12
Yeah, all right. Well, easy. Let's get into your practice, which focuses on appeals and helping plaintiff lawyers beat summary judgment, and I want to know how to beat summary judgments. So tell us, you know, what are the what are the tricks? What are you looking for, especially, or, specifically, when you were trying to beat summary judgment? They always seem to me like, you know, it's just an issue of law. And you have to get to get the issue of law, right. And then Jeff, and I talked about a couple other issues, like if you're opposing summary judgment, then you want to, you want to look for where you've been denied discovery as some other kind of collateral way to defeat summary judgment. But what are you what are the tricks and traps you're looking out for when you're trying to beat summary judgment as a plaintiff's law attorney?

Yisrael Gelb  17:56 
Oh, I think the first thing that we have to look at is more global, because most plaintiff lawyers, from my experience, and I see this with all love to all my clients who are gonna end up listening to this. They're horrendous writers.

Jeff Lewis  18:11  
You need to say, they're very strong in the courtroom. That's what they're very strong. All your friends are very strong

Yisrael Gelb  18:17  
in the business world. Yeah. I mean, that article from the economist I posted the other day about, you know, why legal writing is so awful. I think, you know, most lawyers coming out of law school have awful writing skills, if something that I happen to enjoy. But that's really, number one is just having, having a clear message to the court about what the issues are, is so helpful. Like, I'm, I'm a middle of appealing case right now. Where the main the main case, the main precedential, case, on on this, that should be binding really wasn't even cited. wasn't brought up. It was it was like totally missed. Oh, wow. And now I have to go to the court and say, hey, look, nobody briefed you on this on this case before, but here here it is. And this is the reason why this this specific case should be binding.

Tim Kowal  19:13 
Yeah. It is. It is a culture thing. Well, I was reminded of this. When once I wrote I wrote a brief or I rewrote a brief for a trial attorney. I was not counseled record I was just a consultant so I offered my my revisions or rewrite to a brief and they took it and said okay, well thanks and wouldn't rewrote it their own way or kept it the way that they had done it do if trial attorneys were were bad writers so to speak companies scare quotes around that then they would they would realize that oh, this is much improved, but they I think they're just seeing things a different way that no I need to I need to be I need there needs more adjectives. You know, it needs more. cowbell? Yeah. Really needs to hear his cowbell. Yeah,

Yisrael Gelb  20:00 
I have a similar, similar case right now where I did a summary judgment, opposition for somebody. And from what I keep hearing, he keeps pushing off the hearing on summary judgment, because he just totally didn't like what I did. And now he's just trying to settle the case. So he just keeps on pushing off pushing off, you know, the land continuance contains continuance. eventually he'll run out of rope, and He'll either have to file what I gave him or rented himself. But this is a great new product talk. I know we were talking in the greenroom before about AI. But there's a great new product out there rhetoric.

Tim Kowal  20:37 
I saw you mentioned that on a recent LinkedIn post, about how you were preparing for oral argument, and thank you rhetoric, and I thought I had not heard of rhetoric, I have to ask you the about what is rhetoric? And so

Yisrael Gelb  20:47  
the rhetoric is great. It's amazing. So rhetoric, basically, you'll upload your brief, and it will and you upload, which court you're submitting your brief to. And it will take all the decisions previously written by that court and match it to your brief for tone for like things like precedent like, like, is this the type of judge that hears? Is he an originalist? Do they? Do they care about precedent? Do they care about policy? What are the things that these judges care about? And how does your brief come, you know, fit into their worldview, in both in terms of like, the legal style in terms of writing, so I knew I was in the I knew I was in the second district, and in front of division two, so I knew there was a chance of pulling judge Lou and I, and I had met him once at a lakpa event. And he struck me as such for an interesting character, especially struck me as somebody who's like, kind of very old school differential and with like, very, someone who would who would really bow to to precedents. And I said, and I wrote a brief with him in mind. I said, I told rhetoric, upload, I don't know who I'm pulling. Right, and I have to submit my brief before I before I pull the judges, right? So I tell rhetoric, you know, let's assume that we're gonna get because if we do get him, because he's so venerable, it's such a such an influential member of the court, he would probably have a lot of influence in how that case is gonna go. So they uploaded his documents into the system. They predicted him exactly the way I I felt, he's a very deferential person, somebody who, you know, cares deeply about precedent. What just wants the facts, you know, straight as is there's, you know, there's no playing around with, you know, with them, just give it to him straight and tell him, you know, why there's binding precedent?

Tim Kowal  22:52  
And these are if you're talking about state court, appellate judges,

Yisrael Gelb  22:56 
I'm talking about but they have federal to, yeah. Okay. And

Tim Kowal  23:00  
they can, and it's drawing this, it's the body of evidence, and it's drawing from his was putting there publicly available public available opinions.

Yisrael Gelb  23:08 
And they do it either by individual judge, or they do it by courts, you'll see these three judges as a as a panel, right? And you'll upload all of their published opinions or unpublished opinions, but things are publicly available into the system, and then we'll just do a comparison between your brief and and their writing. Okay,

Tim Kowal  23:27  
that's fantastic. Jeff, we're gonna have to bring the makers of rhetoric and see if we can drag them on to the show. That's that's a question I get asked, you know, one of the most often questions I get from from clients and other attorneys is, you know, this is the panel I drew, what do you know about them? And you're left trying to just go off anecdotal evidence. So when you've appeared before them or heard about or, you know, opinions, you've read by them, but it's, yeah, if you won

Jeff Lewis  23:51  
before them, they're amazing. If you lost before that I'm

Yisrael Gelb  23:54  
doing right. That's pretty much that's pretty much it.

Tim Kowal  23:58 
Yeah. So that's, that's terrific. That's like data driven, informed AI. And so I take it, they just develop some algorithms that along the lines of drawing out the factors that that would be relevant to you for for oral argument, like you said, they're, they're deferential, they're kind of radically conservative in the way they interpret things or, or whether they're, they're more creative or willing to take a leap of leap of faith in having a liberal interpretation to something else,

Yisrael Gelb  24:23 
or they're able to filter out by, by topic, right? So you can do all of their publish opinions, or you can do it just by let's say personal injury, or by corporate law or banking. Right. And so, whereas when I the first time that I did, I did this with rhetoric, I got to see

Tim Kowal  24:43  
okay, in their writing, what your oral argument outline or your burrito,

Yisrael Gelb  24:48  
agree, no, they're getting my brief. Okay. So I give them I give them by the time I found them, I had already submitted my opening brief. So I gave them my my reply brief. To You know, I was about to submit it. So I give it to them I got to see. And then I had them filter down to, to personal injury. And then I got to be plus,

Tim Kowal  25:07  
so Oh, okay. Let's see. Oh, interesting. Yeah. And of course, the the downfall in the state court system is you don't know your panel until right before oral argument, sometimes oral argument. Yeah.

Yisrael Gelb  25:19 
So that's why I had to take a gamble. And, you know, I figured if Lou is on the panel, he'll be, you know, pretty influential. So I took that gamble, and I think it paid off. All

Tim Kowal  25:30  
right, so you're you're, you're on board with Jeff and me about leveraging AI to improve your chances of prevailing? What else? How else? What other tricks do you have up your sleeve to beat summary judgment for plaintiff's attorneys?

Yisrael Gelb  25:44
So the so the first thing I would say, besides for legal writing, it came actually from a judge in San Bernardino County. Judge Schneider gave me one of the greatest pieces of advice, when he, I didn't even raise the issue on art on the argument. But you gave me a perspective that was invaluable. So we know that summary judgment, right has two components. First, the movement has to prove their case. And then if they have proven their case, or at least, you know, negated one of the elements, then you're on deck to, you know, to submit your evidence and to show how you can, how you can prove that element. And up until I met judge Schneider, I was always more focused on the first on the first part, on the second part of, you know, proving my case, I had all the evidence that the plaintiff attorneys would give me I, you know, I, I do my, my separate statement, and, you know, write a really compelling brief and explaining why our position is so great. And then he's like, I don't even need any of this. They just simply haven't submitted enough. And that kind of changed my focus where now the first thing that I'll do is simply attack everything, that they've got a breakdown the the causes, by element, line up their evidence, show why this evidence that they're submitting is simply not enough for them to bear their burden,

Tim Kowal  27:14 

who you're saying rather than then just assume that the burden has shifted to the opposing party, and then proceed to make your make your burden? You you keep it on on on the first stage and say, No, they haven't made their burden to shift the burden over to the opposing party. Yeah,

Jeff Lewis  27:31
that's very similar to the analysis and attacks, they're done on anti slap motions, you know, you attack prong one. And you don't even get to prong two.

Yisrael Gelb  27:41 
Yeah. So that's, I think that's like, you know, if I have to say my trick, but is

Tim Kowal  27:49 
to just emphasize that first, the first phase. Now, do you do then go on to say, even if they have made their first phase? Here's the evidence on

Yisrael Gelb  27:58  
Yeah, obviously. Yeah, obviously, I have to do probably malpractice if I did it, but yeah. But at the 20 pages that I'm allotted, I would say, you know, probably seven to 10, on the factual summary. And then I prefer to spend, you know, the majority of the remaining on the on the first problem, and then then the rest on the second.

Tim Kowal  28:29 
And in your in your practice, are you are you writing the briefs directly? Are you working as a consulting basis? Do you become Counsel of record? No, you, Counsel,

Yisrael Gelb  28:40 
Shadow counsel. So my name won't appear on any superior court documents. The understanding is that if I fail, I'll take the, I'll take the case to on appeal. And then work off on a contingency so that for the first for just the summary judgment stage, I work only on a fee basis, something that they have to do anyways, they don't have a choice in that. I mean, they could decline to oppose the motion, and then just you know, get, you know, they just get the fence, but they have to file some sort of opposition. So that I only do that part on the on a flat fee basis. Yeah. And then I get to the if we ever get if we get to appeal, then I'll take that on.

Jeff Lewis  29:29  
And are you counseled record in the Court of Appeal? Are you shadow counsel?

Yisrael Gelb  29:32 

Counsel of record?

Yisrael Gelb  29:33  
Yeah. Okay.

Yisrael Gelb  29:33  
I need to get my specialization. So I'm counsel right.

Tim Kowal  29:38  
That's right. Now when you're when you're when you're working up the briefs, and you are you're you're analyzing a lot of motions for summary judgment that defense counsel file. Do you notice similar kinds of problems with with motions are you kind of, do they all suffer from from similar parts? comps or is every one of them different?

Yisrael Gelb  30:01  
Um, I would say the vast majority of separate statements are not to code. In my opinion.

Tim Kowal  30:08  
Did you say that? I don't think that is that in the separate statements, separate statements

Yisrael Gelb  30:13 
specifically, they're usually not to code? I don't think the trial judge does care about it, though.

Tim Kowal  30:20 
Sometimes they do. It will be depends on how well you know, your, your judge, I think some of them will will seize on a technicality. But you in your, in your experience, they don't they don't often seize on that technical technical noncompliance?

Yisrael Gelb  30:33  
No, I mean, I always throw it in as a footnote, only because I don't want to waste too much time on it. And I'll just, you know, half a footnote, whatever. But yeah, I think most of most separate statements are, are not to code. And then usually the, there's almost always a kind of pace, which just annoys just annoys me as a writer, just and obviously, you can spot them, right. They're huge block quotations, or they've got three different reporters, you know, cited at the end, at the end of the sentence, and there's a weird bracket or, you know, quotation marks that's totally out of place. And you're just like, come on, if you don't care about enough about your own case to, you know, to do this properly. And a it speaks poorly about you professionally, right. And it just tells me that you're not really invested in the case. That's not something that that you really care about. So I'll put in the extra effort. I'll care about it. Then. End of the day, I think that shows Yeah. Now

Tim Kowal  31:38  
tell us about your new podcast, the ambulance chasers provocative title. Now this is you're going to be talking more about how to beat summary judgment and other issues facing plaintiffs attorneys. Tell us a little bit more about about the podcast. What gave you the idea to start a podcast and what listeners can expect?

Yisrael Gelb  31:59 
So it's funny because I represent plaintiffs, right. So it was like, What are you doing? Why are you name in your pockets ambulance chaser, you're you're gonna lose business. Right? So for me personally, it was it's kind of like a redemption story in the sense where I've always grown up on the ground. I grew up in New York, right. And New York, the PA world is pretty cutthroat. And it's like very, I mean, it's very ambulance Chasey if I can, if I can make up a word over there. And we I grew up with that negative image of you know, that cutthroat ambulance chaser attorney who's just going to see you just because he can get 510 $1,000 out of you, you know, all these nuisance payouts. And for me, it was always kind of hard to like, put that image aside. And I, I guess I wanted to create something where I can say, look, plaintiff attorneys there, Rachel, a lot of them are righteous, a lot of them, you know, they really care deeply about their clients. Yes, there are crazy plaintiff attorneys out there. And they're either or even crazier attorneys who will take a bad case with bad facts and take not only to trial or lose, but they will take it up on appeal and lose again. Right. And not only are they hurting their client, they're hurting really the rest of the plaintiffs bar because there are now there's no bad law out there. Because you brought a case that had terrible facts to it. Yeah. So, you know, that's just a very selfish thing to do. So I think my goal at the end of the day will be to try to limit you know, I mean, obviously, there will always be greedy ambulance chasers. And if they do that, at the settlement, the prelit level, go ahead, do your thing here. You know, you can do that anyways. But do me a favor, do us all a favor. If you have a bad case, just cut your losses after trial and leave it there. Yeah, yeah. Every

Jeff Lewis  33:56 
once in a while, Tim, and I read a crazy case involving sanctions, and the trial lawyer appeals it and there's more sanctions and the sanctions are exposed for the whole world to see. I think to myself, how did this ever go up on appeal? Well,

Yisrael Gelb  34:09  
it's funny, you should mention that I'm taking a sanctions case up on a pillow right now. Oh, okay.

Jeff Lewis  34:13  
Well, hopefully you want us to feature it on your podcast. Let me ask you this. Your inaugural episode features a case about discrimination and golf carts. Why did you pick that case? For your first episode? Tell us a little bit about it. Well,

Yisrael Gelb  34:26  
I picked it as my first episode, because it's fairly recent. And it was a case where I just read it. And I'm like, this is absolutely ridiculous. So the basic after way too much, but the basic case is that a disabled man was a member of a of an exclusive golf club down in Orange County. And he wanted to have the right to drive his golf cart onto the green. So two things. You're a member of the golf have a golf club, you're as rich as As you know, as golf club members have to be, I don't know what audience level we have over here. But we have, right. So you're you're obviously a rich person. And you're want to take your disability of not being able to drive your golf cart onto the green in front of a jury. Yeah. And not only that, then you decide to take that case up on appeal, and they got smacked down. The jury didn't buy it. You know, the Court of Appeals didn't buy it.

Tim Kowal  35:33 
It didn't buy the I missed the the injury is, is not being able to

Yisrael Gelb  35:39 
there was an accommodation on the Congress for to be allowed, you know, some sort of golf club golf car to drive on to the green. Yeah,

Tim Kowal  35:50  
there was a there was this reminds me of a Supreme Court case, a US Supreme Court case years ago, where I think Justice Scalia had a pen of a very much, you know, one of his very comical dissents, because the whole issue of the case was, was whether whether driving a golf course, I think maybe this case involves a golf course that didn't allow golf carts, because they were golf purists or something. And, and I think it's disabled plaintiff sued, because they needed to use golf carts. And so the question was over the meaning of golf, and Justice Scalia said, you know, we're not here to dissolve the metaphysical question of what is golf and ask what you know what, what Plato would have thought with with a golf is becomes polluted by the idea of driving a golf cart around and you have to, you know, walk after the ball from from swing to swing?

Yisrael Gelb  36:47 
Yeah. And then as, as a golfer myself, it just the whole thing just struck me wrong. So I was like, this is like the perfect case to just launch this podcast with?

Tim Kowal  36:57 
Well, I think Jeff and I are biased, of course, but we think that that more appellate attorneys in a particular practice area makes the practice better. So I applaud your your clients or your the attorneys who hire you, is for for upping their game in their practice. Because when when appellate attorneys are on the case, it makes the whole practice better. Yeah. But it's he has

Jeff Lewis  37:21 
the one luxury that you and I never have, because he handles his own Ms. Jays. He never has to say, hey, trial lawyer or lawyer, why didn't you do ABC and D and opposing that MSJ? Yeah, he makes his own bed.

Yisrael Gelb  37:32  
That's absolutely true. I just took on the case where I was working with the as working with the plaintiff's counsel from before the MSJ. And I was able to get the expert opinion, you know exactly what I needed to say. And it just worked out perfectly. All

Tim Kowal  37:51
right, well, we're going to be looking forward to listening to the first episode of the ambulance chasers. And we're going to be I, I especially am going to be looking for looking forward to the cases that you discuss there. And I reserve the right to pilfer from whatever cases you discuss and talk about them also on the on this podcast. But is he thank you so much for joining us today. Congratulations on on the new podcast. Congratulations on the fully remote practice that I'm going to have to compare notes with you since I've also started my own fully remote practice last year, how's that going? It's going great so far, although there's there's an old saying that someone mentioned me that, that the person, the man who, who works for himself has a slave driver for a boss. And so that's, you know, I also want to make more time for my kids. So it seems intuitive that I would have more time for my kids when I'm at home all the time working from the home office, but it's not not always the case. So one of my new year's new year's resolutions is to stop working past 7pm You know, I need to need to have some sort of structure around my day. Otherwise, my kids are just I'm as absent to my kids when I'm locked in my office is I in the home office is when I was in the office 10 minutes from my house. Yeah,

Yisrael Gelb  39:05  
do you think it doesn't make a difference that you're actually present and even if you're working and they come in to come out, you know, help with homework and you know, you stop here you stopped? You know, I do think it does help to be home and present. You know, generally but yeah,

Tim Kowal  39:20 
yeah. Two different things to, to, to be present. You know, to be to be available to be present is different from just being just being around because sometimes I feel like even though I emerge from the office to go get a glass of water or go get a meal. I'm not available.

Yisrael Gelb  39:36 
Yeah, but don't be too hard on yourself. It's it's, yeah, you know, even those little encounters are appreciated. Yeah, yeah, I

Tim Kowal  39:45  
think so. All right. Well, I

Yisrael Gelb  39:46  
appreciate that. Appreciate the time Yeah,

Tim Kowal  39:48 
yeah, thank you. That's gonna wrap up this episode. Again. Want to thank casetext for sponsoring the podcast each week when we we include links to the cases we discussed, 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 go to That's And if you have suggestions

Jeff Lewis  40:17 
for future episodes, please email us at info at Cal And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.

Announcer  40:27  
You have just listened 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. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cal That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again.