The California Appellate Law Podcast

State vs. Federal Appeals with Appellate Attorney Cory Webster

March 31, 2021 Tim Kowal & Jeff Lewis Season 1 Episode 9
The California Appellate Law Podcast
State vs. Federal Appeals with Appellate Attorney Cory Webster
Chapters
The California Appellate Law Podcast
State vs. Federal Appeals with Appellate Attorney Cory Webster
Mar 31, 2021 Season 1 Episode 9
Tim Kowal & Jeff Lewis

Episode 9:  Cory Webster joins Tim and Jeff to discuss the differences in state and federal appellate procedure. The  three appellate attorneys discuss postjudgment motion tips, oral argument, and the growing influence of appellate decisions. 

Jeff and Tim then discuss recent appellate news, including a recent decision that suggests civility may be a grounds for increasing a lodestar fee award. 

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography
Sign up for Tim Kowal’s Weekly Legal Update
Cory Webster’s biography.

Cases and Laws mentioned in this episode

Karton v. Ari Design & Construction (March 9, 2021 B298003) 

 Estate of Foster through Foster v. American Marine SVS Group Benefit Plan (9th Cir., Mar. 11, 2021, No. 20-35023) 2021 WL 930257

 Lubke v. Automobile Club of S. Cal. (Jan 6, 2021 B302782)

 Ventura Cnty. Deputy Sheriffs' Ass'n v. Cnty. of Ventura (Mar. 3, 2021 B300006)

 Langere v. Verizon Wireless Services, No. 19-55747 (9th Cir. Dec. 29, 2020)

Show Notes Transcript

Episode 9:  Cory Webster joins Tim and Jeff to discuss the differences in state and federal appellate procedure. The  three appellate attorneys discuss postjudgment motion tips, oral argument, and the growing influence of appellate decisions. 

Jeff and Tim then discuss recent appellate news, including a recent decision that suggests civility may be a grounds for increasing a lodestar fee award. 

Appellate Specialist Jeff Lewis' biography and Twitter Account
Appellate Specialist Tim Kowal's biography
Sign up for Tim Kowal’s Weekly Legal Update
Cory Webster’s biography.

Cases and Laws mentioned in this episode

Karton v. Ari Design & Construction (March 9, 2021 B298003) 

 Estate of Foster through Foster v. American Marine SVS Group Benefit Plan (9th Cir., Mar. 11, 2021, No. 20-35023) 2021 WL 930257

 Lubke v. Automobile Club of S. Cal. (Jan 6, 2021 B302782)

 Ventura Cnty. Deputy Sheriffs' Ass'n v. Cnty. of Ventura (Mar. 3, 2021 B300006)

 Langere v. Verizon Wireless Services, No. 19-55747 (9th Cir. Dec. 29, 2020)

Jeff Lewis:

Excellent lawyers deserve higher fees. And excellent lawyers are civil.

Announcer:

Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis:

Welcome, everyone. I am Jeff Lewis.

Tim Kowal:

And I'm Tim Kowal California Department of podcasting license number 25470 Niner. In each episode of The California Appellate Law Podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both worked directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.

Jeff Lewis:

All right, welcome to episode nine of the podcast today we are pleased to host as our guest, appellant attorney Corey Webster.

Tim Kowal:

That's right. Corey is senior counsel in Dykema's Los Angeles office and a member of the firm's appellate and litigation groups. Before his private appellate practice Cory, served as a judicial law clerk for the honorable Consuelo M. Callahan of the United States Court of Appeals for the Ninth Circuit and also served as a judicial law clerk for several judges of the United States District Court for the Central District of California. While at Pepperdine. While at Pepperdine law, Cory was an associate editor of the Pepperdine Law Review, and Cory that should serve you well during our lightning round later on in the show. So welcome to the show. Cory.oryThanks so much for having me, guys. I'm excited. I think this is gonna be fun. Yeah, we've we've talked shop a little bit about our LinkedIn activity and trying to reach out to other trial attorneys and offer them some some appellate advice. Does your does your firm encourage activity on social media platforms like LinkedIn?

Cory:

Yeah, they encourage us to be out there. And now out there can be on LinkedIn, it could be other other formats. I like LinkedIn. So I'm, that's where I choose to be out there. And it especially during the pandemic, I found that it's been a nice way to connect with people in ways that you know, haven't really been able to Bar Association events. I remember, you go go into those really for the opportunity to mingle. Now, the bar associate events or webinars where you don't interact with a single soul, you just sign on, you get your CLE, but you don't get to interact. And LinkedIn is not the same as mingling with someone in person. But it it's you know, it's kind of served that role a little bit.

Tim Kowal:

Yeah, yeah. It's a little bit closer to what the alternatives are. What about what about clubhouse? I keep hearing Jeff rave about clubhouse and I'm not able to get on because I'm not an iPhone user. But I wonder if you've partaken in clubhouse?

Cory:

I have not partaken. I have. I thought I wondered. And I think I'll eventually probably get there. But I have not yet done it.

Jeff Lewis:

Yeah, Cory, let me just say this. It's live, not recorded. And it's not something that sticks on your LinkedIn page. So people don't see it later. There's something interesting about first of all, hearing the voice of people you've only met online, just hearing their voice. And there's something kind of liberating about being able to speak on social media and not not worry about every every on every year, serial comma highly recommended.And we'll check it out.

Tim Kowal:

You'll you'll be you'll be asked about serial commas later on in the show.

Jeff Lewis:

All right. Shall we actually jump right into the interview? Tim?

Tim Kowal:

Yeah, yeah, let's get to it. One of the topic or the general overarching topic, Corey that I think we we agreed to talk about what were some of the differences between state and federal appellate practice, as most listeners to this podcast already know. And appeal is not just a law in motion with generous page limits. There are many procedural pitfalls that can end an appeal without reaching the merits. I think just about all of the procedural pitfalls we've covered so far on the podcast, Jeff, have been a California centric, and but Cory, I know that you've had extensive experience in the federal appellate system. So tell us what stands out to you as some of the more important procedural differences in the Ninth Circuit as as compared to the state appellate system? Well,

Cory:

first of all, I'd say there really are plenty of differences. There's there's a lot in fact, my appellate mentor likes to say, if you want to have a good idea of how to do it in the state court system, think how to do how, what's the way you do it in the Ninth Circuit, and it's the opposite. Now, that's not always true. But it's not a bad rule of thumb, for purposes of making sure you're not assuming that hey, this is how we do it in this court. So that's how we're going to do it in that court.

Tim Kowal:

Yeah, but that's kind of counterintuitive when you when you mentioned it's the opposite what's what's something that they might offer it as example something that's the opposite?

Cory:

Well, it seems like the how the record is done. Right you prepare... your the appellant, you have the duty to prepare that the appellate record in the state court system. In the federal system, the record is already prepared. And anything you submit to the, to the court of appeals is by way of providing an aid to them, like, you know, in the Ninth Circuit, they do excerpts of record. Right. And those are required to be done, but they're done. Not as a formality. If you're not preparing the record, the record is the district courts docket. It's everything that's on there. That's one thing. That's that's kind of not really

Tim Kowal:

Yeah, opposite. But, but very different. And then there's some logistical things that relate to that, that that you have a lot of steps, a lot of opportunities for pitfalls in the state court system related to the record, hat you don't really have the ame things going on in the ederal appeal. Another ifference that, by way of don't ssume it's the same is is the eadline to appeal, you have a horter deadline in the ninth ircuit in federal court. And so f you know, don't want to get tuck with just assuming, okay, know that I know this these eadlines. I do these state ourt appeals all the time. ell, don't don't get stuck, ssuming there. You got a 30 day eadline in the federal court. Right. Right. I just I well, another difference in the within the state system is the limited civil appeal system. I don't do very many limited civil appeals, but I happened upon one where the the notice of appeal deadlines are cut in half. So I noticed that serving as the appellate attorney for responded in the case noted that the the appellant had assumed that the normal unlimited civil deadlines applied and so their appeals on timely. So yeah, so those those differences in that in based on what court you're in make can make a huge and deadly difference.

Cory:

And I'd say if you are really comfortable with all the rules for this state court system, it can be you can sort of think, oh, wow, I've got to learn a whole new set of rules for the federal court system. And, and a lot of ways they really are different. But I think the one thing that's encouraging is that the federal system, I find to be much more simple. I think there are many fewer pitfall opportunities. If you were to take the the CCP and the rules of court that deal with appeals and put them in a book. And you put take the federal rules, and you put them in a book. The state court rules are just so much thicker, there's just so many more of them, which I think kind of translates to more opportunities to do something wrong.

Tim Kowal:

I think that's I think that's true. And and I want to hold that thought for a moment because one thing that is a bigger procedural pitfall I think in federal court is the Rule 50 and rule 59 motions, the motions for directed verdict, judgment as a matter of law that must be made before a jury is charged and after and and after the verdict in order to preserve them for appeal. Are there those rules are not as stringent in the state court system, obviously on a new trial motion that has to be filed in order to preserve certain issues like juror misconduct, excessive damages, but in the in the federal system, it's basically any any issue of law, legal issue has to be submitted to the jury first and to the judge after that, after the trial in order to preserve that for appeal. So I think a

Jeff Lewis:

Huge, huge trap for the unwary, that I mean, that's those kinds of federal rules are why in federal trials, they need to bring in appellate counsel like Cory to come in and dot the i's and cross the t's because huge traps there.

Tim Kowal:

Yeah. And sometimes

Cory:

I agree with that. I mean, in any sorry, in any situation where there's something that might lead to an appeal. I'm all for that. There's never the it's never too early to get an appellate counsel and Paul, but I will say that federal practitioners that go to do trial court litigation, they know the rules pretty well and be like, you say that because of how hard and fast this rule is, you adjust right and you becomes part of what you do. And so I I've found that this isn't a pitfall that's often fallen into, you know, I think that trial litigators are the federal trial litigators are well attuned to those rules. And and rarely do they do an appeal by not following them. And I think same would be the case in state court. If you had a hard and fast rule, maybe for some period of time, you would have a lot of people tripping over that spike, because you have to adjust from what it is now. But you know, if you had that rule in place, 15 years down the road, I think it'd be the exact same as it would be in federal court where you don't see people slip up on that one all that often. But like you say, if you don't if you know what system and you just can't assume it's the same and the other because you will fall into that pitfall.

Tim Kowal:

Yeah, yeah, that's right. I've seen appeals where on appeal, the appellate attorney will come up with some some new spin An argument or a whole new argument that's still consistent with the with the presentation that was made at trial. So it was not deemed waived, but that that kind of issue would be waived in the federal system. There was there was another issue that that you had mentioned about horos. Horizontal starry decisis. And so let's talk about story decisis for a minute and how it applies differently in state and federal court and and first for our non Latin listeners. What is stare decisis?

Cory:

Well, I'll only speak to stare decisis in the sense of like an appellate court when we're not talking about the United States Supreme Court here and it has a specific meaning, and maybe a better term or maybe more accurate terms. It's talking about precedent, and and what's binding on a given court. And and I think that's what I am meaning when I say stare decisis here, and the big difference between the California system and the federal court system is, is that there isn't what I call horizontal stare decisis in that there...No, California Court of Appeal opinion, is binding on any other California Court of Appeal panel in any future case. And that's different than if you want to try to, you know, think of the Ninth Circuit as being akin to the California Court of Appeal. Every published decision by a three judge panel, the ninth circuit is binding on every future panel save for if there's an en banc panel convened to revisit that issue, overturn that issue. That's an easy thing to just get. grasp that the concept of that, but it has some pretty big, I think, practical implications, and maybe we'll get into some of those.

Tim Kowal:

Yeah, well, well, let's let's get into that. What are what are some practical implications of how how an attorney should think about that when they're arguing their cases on appeal?

Cory:

Well, when I'm in the state court, you know, as you know, we disappear court has when it's got a public decision, it that's binding on the state court. And when you appeal quite often, some some attorneys who are maybe trial litigators, they like to venture over into appeals, their brief might look identical to how they argued it below, will how I would argue a case in a trial court and the summary judgment or whatever the motion might be, I'm going to make no bones about a certain case being the binding precedent here before this matter and published appellate decisions. But I don't think Court of Appeal justices take kindly to them being told that they're bound to follow some other you know, precedent, when, when really, they're not for one and two, maybe they would follow that precedent. But there's a little bit of, you know, rubbing the wrong way, if you're trying to present it as if, Hey, sorry, this decision, you don't, there's nothing for you to decide here, because this has already been decided in this prior case. Now, that's something that I don't think that they would like to hear. But that's the exact kind of thing you would say in a ninth circuit brief. Rather, there is a prior Ninth Circuit decision, the three judge panel is bound by that and and they don't forget that they know what they're the rules are there. And as a law clerk at the Ninth Circuit, I often saw attorneys who would ask the court to revisit prior decision and, and it can be a tough spot to be in if you have an issue where there is a prior case that you think is was really poorly decided battery, whatever it might be, if it hasn't been overturned, it's binding on that panel. And for you to come out in your brief and be saying like, this was a middle conceived decision, that's just going to get the panel more motivated to be like you this perceive our role here. We're bound by that. And, and so instead of taking that kind of approach, you may be stuck with trying to set up for an arm bog type request. But that's not we do in your opening brief. You open brief, you tried as hard as you can to distinguish that case. And you you might make a put a footnote in saying that, to the extent it applies, you think that that it should be revisited en banc and that you'll be making such a request or whatever. But But these differences in the rules of precedent call for differences in how you argue prior decisions.

Tim Kowal:

Yeah, that's a good point. So a couple of a couple of things about that for one on it's a just a an issue of briefing, right that when you're when you're suggesting to the court, look, there's this other there's other precedent, if you're in state court, and you're you're in the the fourth district, let's say that's that's where I am. And there's a second district in LA A Court of Appeal decision that says something that you like, you wouldn't say you must follow this or the court must reverse because of this, this precedent, you'd have to get to argue it and get the fourth district to adopt the the rationale on the holding espoused in the second district opinion is that that what you're saying?

Cory:

Yeah, totally. And and as simple as that sounds, this is something that I see come up quite frequently. Like, for instance, I recently was assisting with a a writ petition after a summary judgment denial. And, you know, this this repetition came after clear advice that I thought, you know, the odds are definitely stacked against you as they are on any repetition. But this is what I often see from trial counsel is the initial draft, which trial counsel wanted to drive to be the one to do it. I'd statements to the effect of the soup the trial court erred by not following x case. And no, that's that's not like the worst thing in the world to say. But you're trying to convince a court of appeal that there was legal error done. And so I added a kind of glossed along the lines of what we're talking about here, where I'm saying, it's not about not following that it's about what the court ruled that was erroneous. And how this prior decision, which was, we contend was contrary to what the trial court had done, is the right call if it was it was properly decided under the statute. And I think you have to at least add that sort of layer two of showing if you're going to relent, you prove you include enough in there for the court to see that. That's actually that's good precedent, sound precedent, and it's one that you can be confident that the court that is can be confident following or adopting the same reasoning.

Tim Kowal:

Jeff, did you have something to add?

Jeff Lewis:

You know, I don't I don't argue that much in the Ninth Circuit so, I have something to add. But I do have a question, Cory, because I don't really have this in my practice. I do mostly in the state court here, and they're in the ninth circuit. And there's this interaction between the state and federal systems, where the Ninth Circuit can make a request to the California Supreme Court to certify or get a question answered. And have you been involved in that process and can you speak to our listeners about that process?

Cory:

Yeah, so it is a rule that's been around for quite a while now. But a rule that allows for a court outside of California, and it's usually referring to, you know, federal courts that will do this, but allows for a request to be made of the California Supreme Court to answer an open questions of state law. And procedurally how this comes up in the ninth circuit is you might have a party, who, recognizing that there's, it's a kind of dicey area of state law, dicey in the sense of there's maybe conflicting precedent on it, or maybe there's a lack of precedent on it. And it's a really significant issue that you could have broad impact. And a party might say, Hey, here's what we think is the answer. But if you're not with us, then really, this is an important thing that maybe this Supreme Court oughta be the one to answer. Quite often, though, a party is not going to it's sort of an odd way to frame your position, right? And if you're not, you want to decide it. You're the party, we just think, oh, here's the right answer, to take this. So. So I think more often, it's this is something that comes up if the panel thinks that there may be some value to taking this route. And I have seen this anecdotal, I haven't looked at the data on this. But I've seen an uptick in recent years of I don't know about requests made, but requests granted meaning to the California Supreme Court is taking cases from the Ninth Circuit. And I don't know, maybe it's, you can chalk that up to the Supreme Court being the court that it is where it's purely discretionary review. Maybe they're it's, they're more convinced by other judges than they are of attorneys for taking up a case. But there's a lot and if you look at their docket in the last few years, there's a pretty sizable chunk that's, that's come from the Ninth Circuit.

Tim Kowal:

Do they not have enough work to do with all of the workload coming up from the California system?

Cory:

You know, I was told that by a career law clerk who's at the Ninth Circuit has been for a very, very long time, that are like that more than a decade ago. requests were made on me somewhat often, but the California Supreme Court rarely took up these requests. Almost as if, you know, yeah, we've got plenty of other stuff to do here. But lately, it's rare to find one, they're not taking up.

Tim Kowal:

Well, speaking of the California Supreme Court, let me ask you this provocative question. But there's there's a little bit of a setup as California Attorneys No, who have tried to get review of a bad Court of Appeal ruling. The California Supreme Court is not concerned about error. It's not concerned about the injustice that resulted in a particular case. He's not concerned about the parties in a particular case, the California Supreme Court is concerned about setting policy. It's more concerned about lawmaking. So this seems to me at odds with the essence of judicial power, which is the power to pass judgment between the parties before the court. Although a judgment only indirectly, the the judgment only directly binds the parties, the courts reasoning is binding throughout the court's jurisdiction. And in this way, we say that the courts judgments have the effect of law. But this lawmaking effect is only indirect. It's a byproduct of the judgment. And we presume the chord is concerned with the justice of the case and the litigants before it, not the justice of the whole world. No one made them galactic arbiters after all, is I think Justice Scalia had called Justice Kennedy at one point, but it seems our High Courts for some time now have curated their cases that they hear purely for reason of imposing its collateral power far and wide. So the question is, is our state's high court or the United States Supreme Court in some way abusing their judicial power? Or if not abuse? Exactly is something amiss here?

Cory:

You know, I'm not sure that I do see, for one, I wouldn't call any anything that you just described, I wouldn't characterize it as abuse, and it is now as something amiss. I think the arguably not that either. I think, if anything, the way I see all that is reflection of the fact that that State High Court, and you can say the same thing, I think of the United States Supreme Court, that their role really is to settle important questions, and not, as you know, appeal of last resort in any given case. And so if anything's amiss, maybe it's a lack of resources to take on as many cases as may warrant that type of review. Because certainly, one thing that you can clearly point out, is happening over the last number of years, both in the California Supreme Court and the United States Supreme Court, the number of cases being taken, are declining. That's not for lack of cases that exist in the court systems in general declining but those they are declining in those courts and Okay, was there something I missed there? In my view, all I would chalk that up to is probably a lack of resources.

Tim Kowal:

Like here's, here's an example of something that might might drive home a little bit my point. So here's an example ripped from the headlines as in early March 2021. Wall Street Journal article blare this headline, Abacus briefs inundate Supreme Court, this is referring to the United States Supreme Court. But here's a quote from the Wall Street Journal. The volume of Abacus briefs today is breaking records. The courts last full term 2019 to 2020. Saw 911 Abacus briefs filed for an average of 16 per case, according to a study published in the National Law Journal last November, that's up from 715 or an average of nine per case in 2010 and 11. The longer term growth is even greater. Such a briefs were filed in 96% of argued cases before the Supreme Court over the past decade, but in just 23% of cases in the decade ended in 1955. So there's been a huge surge in the last half century of these non parties who just have kind of an interest in the overarching legal effect of these cases that are decided by the Supreme Court. So what I'd like to know is how many of these ameesha Miki cared about the case before it got to SCOTUS? I mean, really, they don't they don't care about the justice of that case. They're looking for the collateral effects.

Cory:

Yeah, but I think that that's a fair reflection of the fact that the way that the Supreme Court is looking at it is the collateral, it's it's stating what the law of the land is. And I think if you're one of those Viki that are have an interest in the collateral effects. I think that's probably the right time to get involved in. And certainly there's no opportunity to do so in lower appellate courts. But those those courts have more the role that you're talking about of doing justice in that any given case that that's before them.

Tim Kowal:

Well, let me ask you about that something you mentioned about the collateral effects. And that's something I think it's a good point. And and I was thinking about this recently in the context of dissents, because I think I think Jeff, you shared with me something that I was talking about, about two cents or maybe I was listening to a podcast At any rate, someone was was Pooh poohing, the sky is falling, actually knows Cory this was this was your your recommendation to that. Great podcast called dissed, put out by the Pacific legal foundation. So I was listening to that podcast. And one of the one of the commentators who is quoted in that podcast mentioned that the sky is falling dissents, the ones that show. Oh, you know, what a terrible result the majority has come to because it's going to lead to this parade of horribles. And some commentators think that's that's counterproductive, because it just becomes self fulfilling prophecy and winds up just serving the the principle that the dissenter is is putting forth But to your point, I think those those kind of watershed sky is falling dissents do serve a purpose in furthering the rule of law, because it says, Hey, the majority opinion here as a spouse, this rule that's going to lead to these calamitous effects, don't believe it when they tell you that no, no, it's not going to lead to these effects. It's very narrow, really, no, don't believe what they say, you know, in the in the when they editorialize it believe the holding and the logical extension of those What? No question. They're just and what's your take on that?

Cory:

Yeah, you know, I know remember that exact episode, we're talking about that comment coming from. And it was fascinating, by the way that the exploring all sorts of types of dissent. And this, you know, the sky is falling, one being one example. And I kind of think that there would be more sky is falling dissents out there. If it weren't for the sort of sleep on it kind of a mentality that is probably wise to take as a dissenting judge where your knee jerk draft of a dissent is more likely to be a skies falling type of a one, then then maybe your second or third draft. And I think that that's probably good. I think if it was all you you went with the knee jerk approach, maybe there would be too many skies, falling ones that are maybe an overstatement of the concern. But if you know, you go through, you sleep on it, and you still feel the same way, then yeah, I think there can there can be value to that. And especially, I mean, which quarter we talking about here. If I'm thinking from the perspective of the Ninth Circuit panel, that's, that may be a good time for that kind of a thing, because who are you speaking to? Now you could stay. This is for, you know, the world that just don't see what my position is. But if the sky is falling one, you know that there's other chances for, for redemption, so to speak, on this particular point. And one may be in within a few weeks of if, if an on bonk call is made. And if you're if there's a dissent and a public decision, and the Ninth Circuit case, you're already got one sort of benchmark for making a good on bonk case. And that may be that your audience is, in part, the other party, the blues party, hey, you should bring a petition here. And if you do, you've got at least one person who's going to go to battle for you on this. But I think there's value. I think there's value to that kind of a dissent. But I don't think it just for doing it for for doing it sake.

Jeff Lewis:

Yeah. You know, in my practice, mostly in the intermediate reviewing courts and state court to censor this foreign concept. We don't see them. So I would, I sure would love to take a peek at some of the thinking and the reason that happens before a majority opinion or the official opinion comes out. Hey, Cory, let's switch gears here to some easier questions and less controversial topics. Before we started rolling on the podcast, we were chatting about the pandemic, we're one year in, how does the pandemic impacted the appellate practice at your firm for you personally, and how cases are progressing?

Cory:

You know, what I would say is probably not as much as many other professionals, many other lawyers, litigators and trial courts. You know, as you guys both know, I mean, appellate practice is 90% at your computer, and that can be done anywhere, right? So for most of the day to day, there really isn't been a big effect. I mean, there's there was the effect of when there was a lot of pauses or extensions of time on a briefing and things like that. But, but those are just kind of relatively minor. I think, you know, the big change, I think, for appellate practice, that sort of obvious one is the way oral argument is done now, but sticking with this sort of Ninth Circuit thing here and one thing about the Night Circus, they've been doing live streaming of their oral arguments for several years now. And so there was they were pretty well prepared. The only thing new that they had to do was how to do dealing with the remote argument part of it and we still had, even when they're live streaming, the attorneys are live giving a live but but quiet Not, not infrequently, you would have one panel member before the pandemic, there'll be a panel member who's there on a screen, because for whatever reason, they couldn't make it but they're there. Being patched in. And so that's your kind of like, already had at workings of a remote system kind of in place. And that's changed a little bit in terms of now oral argument is being done remotely.

Jeff Lewis:

Yeah. How about your firm in terms of how you interact with your firm other folks at your firm and clients and the pandemic? Is that...Has the pandemic impacted that? Absolutely, I mean, most of my interactions are like this one, you know, zoom. And, and that's, that's obviously different, right, particularly for interacting with colleagues. And that's been something that I don't love about the difference. I like to be in person with people. But in terms of like being a real barrier, interference to the quality of work and what you get accomplished. I mean, those have been practical things that I don't think they interfere in that sort of way. But honestly, I mean, many of the clients that I have worked for, or not, right, in a way, they're not ones that I would be seeing in person anyway, because they're not in LA, or whatever. And so, you know, the zoom that appeared on all of our doorsteps, conveniently a year ago, has kind of, I think, enabled those relationships in a way that maybe would just be phone calls before now they can be zoom calls, which is maybe a step up Right.

Tim Kowal:

Right? I think I think a couple episodes ago, we talked about some some potential long term indefinite changes that would might arise out of this, this pandemic way of doing appellate work and legal work in general, and that a lot of attorneys actually like giving giving their their presentations via video. And in might, might be fine. Just continuing doing that indefinitely, as long as their opposing counsel agreed to do it. They don't want to be the only one who's appearing via satellite link. But But what about law practice? do you envision any indefinite changes, long term changes to the way your firm does? Does, you know, carries out its practice, even after all of the COVID restrictions are lifted, and we can go back to life as normal if we want it.

Cory:

I don't know, I think there will probably be some, but I think that a little I think we're on the the eager side of getting back to normal, you know, craving the right kind of how it was before and not not rigidly so were, you know, rejecting every kind of difference or whatever. But I think there's my sense is that those within the firm, particularly the LA office here, are kind of at a point of craving, how it was craving being in the office craving live in person work. And I think when it comes to argument and go intent going to court, I think that there's still a sentiment that they live in a person is better now, whether there will be options. And in the light of that I think those can all be good things. But you know, if there's a ninth circuit argument being conducted in Pasadena and my offices in LA, and there's an option to do it live or remote, it's going to be live every time. Now, there might be some I can imagine a scenario where you have then I searched the big circuit covers a lot of ground, you have an appeal from a case in the Alaska district of Alaska. But that's being argued in Pasadena. Do you know what that's all I can definitely see the value of saying, we're gonna do that one remotely. But you know, I still favor the old ways. Maybe Maybe I'll be slower than many others to really stick with how it's been last year.

Jeff Lewis:

Yeah, well, you know, my offices and Palos Verdes, which is a little kind of out of the way and hard to get to any freeway. I for one, don't miss my commute to get to anywhere. And I've enjoyed oral argument by video. So far, I haven't shown up as a cat haven't had any glitches. So I hope I hope some of these innovations will be retained.

Tim Kowal:

Well, and before we move on, and as we were talking about oral argument, that's one of the other important differences between state and federal practice. Cory, what do you you have any differences in approaches in oral argument, when you're when you're appealing in the Ninth Circuit versus California State Court of Appeal? Yeah, I think the big difference is to kind of keep in mind that I think should inform how you prepare, is that you know, California appellate court, you have oral argument as a matter of right. Whereas in the Ninth Circuit, you only get our oral argument if at least one member of the panel wants to have it sees some value in it and so if you have argument that I circuit that should convey some meaning there that at least one maybe all of the panel members wants to get something out of this now you can't always say that with confidence in the state court appeal. And then maybe sometimes you get the sense of like, you know, I'm here because you're making me be here when I say that I the Justice I'm here because because you guys said you wanted argument, but we've got our opinion, drafted and right and let's get over with I saw a statistic recently that excuse me 47% of civil cases in the Ninth Circuit request oral argument. And I was I was surprised. I didn't, I didn't know it would be that high. If it was a State Court of Appeal judges, I think it would be I think you'd have to put a decimal point in front of that.

Cory:

I definitely agree with that. And I think this is probably only part of that. But But I think a part of it is that the Ninth Circuit has the panel has not conferenced before oral argument, right. And if you have a panel who's deciding a case, who only knows what they think about the case, that's how they, that is a huge difference. And now, that's not literally true all the time, they might have some indication of how another panel member thinks of it. But what happens is, you have typically unless you have a judge who just doesn't subscribe to this philosophy, and there's a there's a hand a small handful of them, but one judge is assigned with primary responsibility and their chambers drafts, bench memo for that case, and it's circulated to all the panel members. But most of the time, it is circulated as this is a bench memo prepared by my law clerk. And it's circulated in a way that doesn't say I, the judge agree with it, I disagree with it. It's just sort of here's a bench memo for the purpose of being helpful, right. And, you know, in the process of doing that, you might sometimes get an idea of what another judge is thinking. But quite often, you have no idea, you, the judge, have no idea what your colleagues are thinking. And I think that can play into this whole oral argument thing when it's valuable, what you might want to get out of it as the judge. But I think that there's way more opportunity as an attorney for in oral argument in the Ninth Circuit, because you know, at a minimum, you know, that someone sees that there's value here. So I think you want to go into that with the idea in mind of not the questions that are being asked or not just being asked to fill the time, but that they there's some value seen there. And so approach it with with that in mind.

Jeff Lewis:

Yeah, let me say, from the state court perspective, usually have one of the three justices who look at you like a hawk. They're the person who has authored the bench memo, or their staff has. And the other two justices, let's just say, typically, in my experience, are not as interested in the argument. And so I kind of wish that there was no right to oral argument in the state system. And there was this filtering effect so that when I go argue a case, I know at least one of the justices thinks that there's a question that needs to be answered, or there's some gray area that needs to be worked through. Because oftentimes, I find, I argue to a cold bench, there's no questions or the questions are obviously asked to support a already-written-in-stone opinion.

Tim Kowal:

Well, let me ask you, Jeff, well, I already already asked you this this week, I'll ask Cory, have you heard of a routine disposition in California State Court of Appeal, because this was something new by me that a client had sent me something from the fifth fifth district are not a client, but a colleague sent me from the fifth district saying that we have determined this, this appeal is a routine disposition. So it's going to be handed off to our routine disposition panel. And we don't think oral argument is required. But if you insist, we'll go ahead and hold the oral argument.

Cory:

Wow, I can't say that I've ever heard of that is that it sounds a little bit like the court, the state court system, wanting to kind of maybe adopt the Ninth Circuit approach a little bit as if they, as much as the rules could allow them to do so that, hey, you might ask for oral argument, but really, it's not needed here.

Tim Kowal:

Exactly. Yeah. It struck me as a kind of an internal procedure. They have to do just that. And I thought it was a little bit a little bit crappy. But it did call it up. You know, it brought the image to mind of, you know, one justice or maybe in some instances, not even a justice, but just a research attorney drafting the opinion, and getting more or less rubber stamped by the justices. Because someone has determined that this is really, it presents no close calls.

Cory:

Yeah, that's really fascinating. I have not heard that. And it's very interesting to me.

Tim Kowal:

Yeah, so that was from the fifth Appellate District. And I found found something they have online that they talk a little bit about it, but but just a little bit, you kind of have to guess what, they're what they're doing. And I I think you stumbled right on it, Cory? All right, Jeff. I think it's time for the lightning round.

Jeff Lewis:

Okay. All right, Cory, this is a trademarked patented portion of our podcast with some of the most controversial questions vexxibg nerd appellate attorneys around the globe.

Tim Kowal:

I think I have to get a really obnoxious sound sound intro made for looks like like a Daily Double on Jeopardy.

Jeff Lewis:

Try to keep your responses to one word or one sentence if you can and see how far we get the lightning round. Are you ready? Corey Webster.

Cory:

I am ready.

Jeff Lewis:

Font preference century schoolbook, garamond or something else?

Cory:

century schoolbook.

Jeff Lewis:

two spaces are one after a period?

Cory:

One, but I'm comfortable with either.

Jeff Lewis:

Oh, interesting. Go ahead Tim.

Tim Kowal:

Good. No, Corey, and I agree on that. Jeff is the dogmatic one. We're all one space. But But I won't bite the head off of someone else who uses two. Jeff's the head biter?

Jeff Lewis:

Yeah, for sure. All right, citations? Do they belong in footnotes or in line in the brief? In line in the brief, right.

Tim Kowal:

Correct.

Jeff Lewis:

Attorneys fees is attorney's fees with an apostrophe, then an S or attorney's fees with an S that apostrophe?

Tim Kowal:

that goes a little bit of a leading question, Jeff.

Cory: Here's my lawyerly answer:

Which quarter we in state court or federal court?

Jeff Lewis:

Oh, let's go with federal because you're a federal guy.

Cory:

s apostrophe.

Jeff Lewis:

All right.

Tim Kowal:

Well, what what's the I had noted the difference in standard, what's the state court answer?

Cory:

Say apostrphone s. And it's purely a function of convention of, of what I notice. But if you look in statutes, they're not even consistent and how they do state.

Tim Kowal:

What do you use? Jeff?

Jeff Lewis:

It depends. What I do is whatever court I'm in and if it's second district, whatever division I'm in, I research what the judges use who are going to be deciding my case, the justices, and then I use I adopt their, their practice.

Tim Kowal:

Interesting, okay. I don't use the apostrophe or the S i just say attorney fees. There's the disfavored approach, I take it

Jeff Lewis:

All right dashes, this one Tim added to the to the lightning round em dashes with a space on each side or em dashes with no spaces or en dashes with spaces.

Cory:

Em dash no space. Alright.

Tim Kowal:

Yeah, that's that's the correct approach under both, I think, Blue Book and Chicago style manual. Corey and I both being former law review, know that but when I when I externed at the Court of Appeal. My the senior research attorney there said said "No, it's too fussy," we just use the N dash with a space on each side. So that's what I've used ever since.

Cory:

Okay, do you know what that translates to? In my mind? I can't figure out how to insert the M dash conveniently. So I that's what I'm not going to do. I have it as a shortcut on my thing. It's, it's a quick keystroke. So I don't need to fuss about it. And I can insert it without

Tim Kowal:

Yes. Well, it's the hotkey is Ctrl, Alt minus sign on the number pad, if you want, if you want the M dash and the N dash is just control minus sign.

Cory:

I've done it my own. And now this and I'll get on my high horse about this one, it's really easy because if you create your own, I do it as the end I do Ctrl Shift m and n for the N dash and I use N dash instead of a regular hyphen for page region ranges.

Jeff Lewis:

All right, you have successfully bogged down my lightning round into a slow morass of nerd appellate trivia. So let's keep moving at lightning speed. Well, this is an unfair question, but we'll ask it: blue book or yellow book.

Cory:

Blue Book.

Jeff Lewis:

Yeah. Okay. Serial comma, yes or no?

Cory:

Yes.

Tim Kowal:

All right. That's the most important one. And you got it right.

Jeff Lewis:

No, this is the most important one. The final question of the lightning round. Cleaned up. Do you use the parenthical "cleaned up" when you cite to appellate decisions?

Cory:

I do not. I am not against it. But I do not.

Jeff Lewis:

That's a big divide between me and Tim.

Tim Kowal:

But luckily....

Cory:

If I were a judge writing an opinion, I would have no issues using it. Writing a brief. It's a different matter. Yeah.

Tim Kowal:

Yeah. Yeah. I agree with you, Cory.

Jeff Lewis:

All right. Well, listen, you survived our lightning round. I want to thank you for sharing your thoughts on appellate practice our audience, do you have any final parting thoughts? No, just want to say thanks for having me. This was a lot of fun. It's a great as a law nerd. It's great to talk with other law nerds. Right. So right, this is a lot of fun. You have a great podcast, and I'm really happy to have been on.

Tim Kowal:

I appreciate it. Hope we didn't . We didn't ruin your reputation too much by asking these these controversial radical questions that I like to I like to ask.

Cory:

Not at all

Tim Kowal:

it's a lot of fun. All right, Cory, we appreciate it. Thanks,

Cory:

Tim. Thanks, Jeff.

Tim Kowal:

See you next time. All right, Jeff. Let's move on to some recent cases and news. Okay,

Jeff Lewis:

Let's discuss a case that caught my eye Karton v. Ari Design & Construction. It's a published decision coming out of the second district division eight by Justice Wiley. And let me let me start with the with a quote from the case and then I'll talk about why it kind of caught my eye. The quote the money quote from the case is this "Excellent lawyers deserve higher fees. And excellent lawyers are civil"

Tim Kowal:

I love that.

Jeff Lewis:

I love that too, because I consider myself civil. Most of the appellate lawyers I deal with are civil. This case caught my eye because it proves that sometimes being uncivil sometimes when lawyers over litigate cases and they're unprofessional, they call each other names. There's a real cost to that not only in terms of extra fees, their clients get billed, but ultimately a fee award can be reduced based on incivility. So here, we had a property owner who happened to be an attorney, he got in a dispute with a contractor doing work on his home. And at issue was $22,000: between the homeowner and the contractor. A lawsuit was filed over this 22,000, a three day bench trial was held. And the court ultimately ruled in favor the homeowner, ordered the contractor had to disgorge all of his fees because he was he was unlicensed, and imposed a $10,000 penalty against the unlicensed contractor, the the owner then moved for attorneys fees, and sought nearly a quarter million dollars in attorneys fees

Tim Kowal:

And which is a real insult to injury there.

Jeff Lewis:

Yeah. And the trial court said hang on over 600 hours of work for this case, over $22,000 was too much to suppor a quarter of a million dollars in attorneys fees, he reduced it to $90,000. 1/3 of the original request at the trial court noted that the incivility of the prevailing party towards the losing party, the use of inflammatory attacks and that kind of thing. And the homeowner appealed. And so it's not surprising to me that the Court of Appeal affirmed you've seen enough of these cases, Tim, where under abuse of discretion, the amount of attorneys fees is really hard to overturn on appeal. Right.

Tim Kowal:

Yeah. And I would I'd love to see more trial courts pump the brake on some of these exorbitant fee awards. So I'm glad that the Court of Appeal extended the rule of deference.

Jeff Lewis:

Yeah, yeah. But what caught my eye on this case is the court went through the traditional lodestar analysis of what factors the trial court can look at, in terms of adjusting a fee upwards or downwards with a multiplier. And it's no surprise that fee awards can be adjusted downwards in certain cases, but really caught my eye was this discussion about civility and how being uncivil and unprofessional can really slow litigation down, make litigation inefficient, and rightly said that civility demonstrates professionalism. And the courts ought to incentivize and reward parties and their lawyers for being professional and efficiently litigating cases. This is an interesting case, we'll include include a cite to in our show notes.

Tim Kowal:

Yeah, yeah. And I think that's an excellent point that that incivility slows down litigation on civil lawyers should not be rewarded for that behavior, because that they're, they're costing their clients, and they're costing the court resources.

Jeff Lewis:

You know, and before we leave this case, let me just say this. So a little debate at my law firm right now is whether the reverse is true and could be used in connection with fee motions, that if you could somehow demonstrate to the court that you were extraordinarily civil and kind and efficient in the beginning a case ought that be a factor in enhancing a fee request and getting a multiplier open question.

Tim Kowal:

Yeah, I think that's I think that's fascinating, that opening quote that you opened with that excellent lawyers deserve higher fees, and excellent lawyers are civil lawyers. I mean, that would be that'd be the opening quote, in your motion filed by a an exceptionally civil attorney asking for a lodestar multiplier. But But to your point, how it would be a tricky thing to demonstrate civility, it's it's one thing, you know, you can always point to those inflammatory attacks as evidence of incivility. But you know, that the default mode is is civil, or at least not uncivil. And how do you how do you underscore how what a civil an excellent civil attorney you are?

Jeff Lewis:

So from now on, I'll be sending birthday cards to all my opponents demonstrating my civility that way.

Tim Kowal:

That's, that's a start. Okay, so here's a tip if you are defending a judgment, if appellants fail to raise an issue, don't raise it for them. That's what happened in foster versus American marine Services Group group plan. It is a ninth circuit case, March 2021. That case involved whether an employer's uresa plan failed to give notice of a lapse in benefits. And plaintiff had failed to raise this issue in her appellate brief, but I'm not sure what distracted her from raising it because it was the key issue that earned her a reversal. The court noted that the appellee did raise it in the appellees brief. And as a result, the court determined that it was able to raise the issue even though it had not been properly raised in the opening brief. So the result is the Ninth Circuit reversed the summary judgment. So the the tip is if you are going to argue waiver and raise an issue that the appellant failed to raise, make sure to establish prejudice establish how if you feel you need to argue the issue that the appellant didn't raise, be sure to argue that you've been prejudiced somehow by that failure. Yeah,

Jeff Lewis:

that's a great, that's a great tip. I got to tell you that, as we talked about before the show, sometimes as the respondent, you'll spot an issue that hasn't been raised by the appellant. And, you know, the research attorneys assisting the justices are really sharp, and they might spot it, you know, where are the ethical boundaries that when you're supposed to raise an obvious issue or an obvious authority that might harm your clients case?

Tim Kowal:

Yeah, that's right. Don't you have you have a recent example of that, don't you, Jeff?

Jeff Lewis:

Yeah, I you know, from time to time, I do get cases where let's say an opening brief has been filed. There's an obvious issue or an obvious case that might be detrimental to my clients position. And it's always a struggle of, at what point is the issue substantial enough and connected to the issues before the court that you are under an ethical obligation to cite to it, distinguish it and hope for the best?

Tim Kowal:

Well, and Jeff, you're an excellent attorney and can spot issues that might be a little bit more in the weeds. Do other attorneys? Do you have a you know, it seems a little bit unfair that you because of your shrewdness, and be able to be able to spot these these issues that are kind of hiding? if you're if you're another attorney who doesn't address these issues, as often as you do you have more of a burden more of a duty than these other attorneys because you're spotting them.

Jeff Lewis:

I feel the burden. I don't know if I have a burden, but I feel the burden. And I feel the pressure of knowing that some appellate justice or their staff is gonna be looking over my shoulder, they're likely to see the same issue that I do.

Tim Kowal:

Yeah. Yeah, I'm I tend to think if it's if it's not a black letter issue, that that there's a key case right on point and that you might have some wiggle room. What about whether you have to raise it? If it's going to take you a paragraph to explain the issue, then I think maybe you don't have to raise it. But, you know, I think every case has to be judged on its own merits. Here's another recent case involving reversal of a summary judgment. This case is Lubke versus Automobile Club of Southern California. In this case, sensing the court was not going its way the respondent engaged in some desperate arguments. The court took the respondent to task for its less than candid argument attempting to rehabilitate a moribund judgment. The court faulted respondent for faulted the respondent for, quote, wholly mischaracterizing the court's ruling and quote, and making quote, an equally specious assertion and quote about appellants argument. Alright, Jeff, here it is our obscure appellate procedure point of the day. So here's the scenario, I've got to set it up a bit. Imagine you've got a case that involves a disputed question of law, and the court is going in your favor, and you obtain a preliminary injunction for your client and then you then proceed to trial. But before the court issues, its judgment in your favor. Another County Superior Court, faced with the same legal question, issues of preliminary injunction going against your position. And then worse, the losing party in that case, who's carrying the water for your legal position, takes up a writ petition and that court of appeal for that other district, and that other Court of Appeal summarily denies the writ petition, thus affirming the problematic ruling against you.

Jeff Lewis:

So just to make sure I understand your point of law is going great in your case, but now it's your point A lot has been decided against you in another district, and capsulated in a summary denial of a writ petition.

Tim Kowal:

Right. So the question is, what does that terse summary denial of the repetition and the other district mean for your case? Now, you know, that under auto equity sales, Inc, versus Superior Court, the Supreme Court has held that, quote, decisions of every division of the District Courts of Appeal are binding on all the Superior Courts of this state.

Jeff Lewis:

But is a summary denial of a repetition really a quote, decision, close quote.

Tim Kowal:

Exactly. And that's the question that was decided in Ventura County Deputy Sheriffs Association versus county of Ventura in all citations to the case discussed on the podcast or in the show notes. The Ventura County Court answered this question. in the affirmative. Yes, a summary denial of a repetition is a binding decision on all lower courts throughout the state. But the court held that although the quote the decision is procedurally a typical, the other District Court of Appeals did analyze and decide the same issue presented here. The court gave no further analysis. So it's kind of an unsatisfactory unsatisfying analysis. And the court did go on to concur with the other District Court of Appeal on the merits. But the court clearly believes that summary decisions are still decisions and binding as such. What do you think, Jeff? Is? Is that that basic rule of law? Correct? Are some summary denials of repetitions be binding precedent throughout the state?

Jeff Lewis:

Yikes, you know, I don't wear the black robe. But if I did black be comfortable with that rule, because, you know, I do repetitions, they are drafted, briefed and decided on a rushed and hurried basis and without sometimes the thoughtful briefing that happens in any normal appeal. And giving preclusive or dispositive effect to a summary decision does not excite me. How about YouTube?

Tim Kowal:

Yeah, I tend to agree. And in the show notes, I'll I'll have you put a link to a write up that I that I posted a couple of weeks ago that listed some authorities that seemed to cut against the Matura county decision. So that will that will give listeners arguments in cases on both sides of that question. If you have a summary denial that that cuts in your favor, then you can cite the Ventura County decision. If you don't like that result, then I think there are actually plenty of authorities that that will help you as well. Now, when we were talking with Tori, Cory, about the the topic of state and federal court differences in appellate procedure, here's another deadly issue that arises not often but occasionally when a devastating but non appealable pre judgment order is handed down. One strategy is to simply dismiss the case in order to facilitate the appeal in California state court. Although note that the dismissal has to be with prejudice. Otherwise, you get into the snafu that occurred in the courroie versus Kiplinger case, this kind of result comes up sometimes in orders denying class certification, where the case still goes forward. But really, it's a death knell in the case. And so you'd be tempted to just dismiss the other claims so that you could expedite the appeal of the denial of the class cert. But if you're in federal court beware. A recent Ninth Circuit decision in Lang Gary vs. Verizon Wireless services. This was issued in December of 2020. That case warns that federal courts of appeals may reject any such appeals as an attempt to manufacture appellate jurisdiction. Attorneys Adam Hoffman and Josephine Petric right in a recent law.com piece, manufacturing appellate jurisdiction a dangerous Gambit that dismissing claims to secure an appealable judgment is, quote, a risky maneuver at best.

Jeff Lewis:

Well, let me ask you, Tim, is it really a gambit if this scenario you painted is a death knell or close to death now ruling where the case is essentially or practically dead? What do you got to lose?

Tim Kowal:

If, if that's truly the case, then then then perhaps Well, I think what you've got to lose is your your appeal could be dismissed, you could be sent back What if let me put it this to you this way. What if in in the interim, you have appealed this order that the Court of Appeals is ultimately going to find is non appealable. And in the interim, I've seen a situation where the issue that made the appeal not appealable is that there was a cross claim pending, and the other side dismisses that cross claim in the interim, resulting in a dismissal order. and months and months go by the Court of Appeal finally decides your appeals untimely and therefore dismissed, you have to take the appeal from the dismissal, but that dismissal now is more than 180 days in the past, so that order is not appealable as well as untimely. So it's taking appeals too early might sound like Well, what's the worst that can happen? It gets dismissed and I had to take an appeal from a later order, but it can get you into trouble in unexpected ways.

Jeff Lewis:

Hmm, interesting. Okay, go ahead.

Tim Kowal:

So as as Hoffman and petrick. Note in their case, a misstep can cause disaster. For example, while it may be possible to appeal a court dismissed claim after voluntarily dismissing other claims, and appeal may not lie from voluntary dismissal of all claims following a major procedural loss. And the case to look at here is the Microsoft case out of the US Supreme Court, which suggests that a party who voluntarily dismisses claims lacks standing to seek relief on appeal. In the lane Gary versus Verizon case after the district court granted the providers motion to compel arbitration, the consumer voluntarily dismissed his suit with prejudice and then appealed. Hoffman and petrick. Note that under prior Ninth Circuit precedent, this would have been permissible but in light of the Supreme Court's Microsoft decision, the Ninth Circuit concluded that the consumers Gambit to manufacture appellate jurisdiction failed, and the court dismissed the appeal for lack of jurisdiction. So if you're developing an appellate strategy, Jeff, I think that's and it's following a devastating interlocutory order. That's an excellent time to consult appellate counsel.

Jeff Lewis:

Yeah, if I can. asked a question on this particular procedural type of point. I think I would punt to you my friend.

Tim Kowal:

All right, I'll take that referral. Okay. Okay. There was there was one other one other bit of news, Jeff that I thought I'd share with you. I thought this was interesting appellate attorney and researcher Kurt Jenkins, who writes blogs over at California Supreme Court review calm, had a really interesting piece on applying data analytics to court decisions. I want to read you a couple of paragraphs from Jenkins piece here. Here it goes. One of the primary reasons why a pellet lowering lawyer is a specialty is because appellate lawyers must contend with persuading a collective institutional decision maker and appellate panel isn't like a jury. The members of a jury come together for the first time on a particular case and part forever when it's over. Members of an appellate panel have generally been on the court for months, if not yours, and we'll be there for years after the particular case is over. Members of a jury don't share anything akin to the law of the circuit or the law of the court, as a collective enterprise built over a span of years. decision making by appellate panel, rather than individual judges has all kinds of potential effects on an outcome and therefore on appellate lawyers tasks of persuasion, for making judges more reluctant to dissent from a decision they disagree with, to causing judges to vote in a more or less liberal or conservative direction than they otherwise would, because of the panel's deliberations. And then Jacob Jenkins goes on to set up his question why data analytics are so important in understanding the judiciary and to persuading judges. And so he asks, Why is it important, simple litigators, no matter whether they're usually in the appellate or trial, courts frequently find themselves predicting the future, this jurisdiction, this jurisdiction or this judge tends to be pro plaintiff or pro defendant. juries in this county tend to return excessive verdicts or they don't trial or appellate litigation in this jurisdiction, jurisdiction takes this long. What does it mean that the state Supreme Court just granted review? or What does it mean that the Supreme Court asked me way more questions at oral argument than did my opponent? Every one of these questions has a data driven answer, not just in California and Illinois, where Jenkins also covers the courts. But in every jurisdiction in the country? Sometimes the data confirms the traditional wisdom and sometimes it proves that traditional wisdom is dead wrong. So one a one a more high flown answer. Jenkins concludes, try this one from Posner and Epstein and Landis is the behavior of federal judges, quote, the better that judges are understood, the more effective lawyers will be in litigating cases. And as important in predicting the outcome of cases, thus enabling litigation to be avoided or cases settled at an early stage. Okay, so with all that setup, this is this is the thought that that is prompted for me, Jeff, there's something I don't like about all this. The reason we make judges wear black robes is because what is underneath the rows is supposed not to matter. Of course, it does matter, but it's not supposed to. And this project of data analytics is a way I think of disrobing, our judiciary. I recall reading a work by historian G. Edward white, where he suggested that the nature of our judiciary began to change somehow, when the New York Times began doing biographies of supreme court justices in the early 20th century. And eventually, we progressed to doing bobble heads of justices, we have the notorious RBG t shirts, data analytics is another step in this direction. That gives me a lot of pause.

Jeff Lewis:

Yeah. Are you suggesting that the data for Ginsburg's decisions or the trends might have changed before and after introduction of bobbleheads?

Tim Kowal:

That would be an interesting question, you know, she became a cultural icon. And, and I think her opinions became became scrutinized what what was what was expected for change now, whether that changed her her opinion of her of herself and what our responsibilities are, I can't I can't say but those pressures are there. And it sometimes maybe too much to expect that when you put a lot of social and cultural pressures on adjusted judges and justices that it won't have any effect.

Jeff Lewis:

I'll tell you one thing that came to my mind when I heard you read that passage, Tim, and that is, you know, AI is encroaching on the practice of law. And with the prices coming down, and the availability of resources on Westlaw, etc, to see information about judges and opponents and case loads. I think it's within the standard of care for lawyers these days to do the research particular cases in particular counties and particular judges. And then if you don't, and you don't advise your client about these outcomes, maybe you've let your client down and maybe you're outside the standard of care in terms of taking advantage of information that's available.

Tim Kowal:

Well yeah that's that's interesting. You might not like the information but you have a duty to to amass all the information you can get your grubby fingers on in order to win your case.

Jeff Lewis:

Yeah. Hey, let's talk about I shift gears here and talk about something. We've talked about our last episode which appellant attorney John Eisenberg and former Court of Appeal presiding justice Gary Strankman, asked the Supreme ourt to transfer 57 long ending appeals from the third istrict court of appeal to ther California appellate ourts because of long delays eciding those cases. And a few ays ago, Eisenberg and trankman revised that number to 41 cases on March 17, the Su reme Court unanimously denied th transfer request in its en irety, with kind of a di appointing summary decision. I ad hoped for something more, bu it was just denied.

Tim Kowal:

I was a little disappointed in that, too. I and I would have hoped that that Mr. Eisenberg would have gotten something a little a little more for his efforts. I think is I think, as you pointed out, maybe the maybe the Supreme Court thought that if there are courts of District Courts of Appeal that are processing their cases, normally they should not be punished by having to take on additional workload from the districts that aren't.

Jeff Lewis:

Right. But those poor litigants and you know, seven, you know, the parties, maybe lawyers are waiting at the end of the case they can move on to other cases or waiting compensation, what, what's quite a burden they have to undergo. Yeah,

Tim Kowal:

yeah. And they're, I think they deserve more consideration. You're then in the particular workloads of the judges.

Jeff Lewis:

All right. Well, I think that wraps up this episode.

Tim Kowal:

If you have suggestions for future episodes, please email us at Cal podcast@gmail.com. That's ca l podcast@gmail.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal and preparing for trial.

Announcer:

You have just listened to the California Appellate Law podcast, a discussion of timely trial tips and the latest cases on yours 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, not CIO podcast.com. That's ca l podcast.com. Thanks to Jonathan Cora for Intro music. Thank you for listening and please join us again