Announcer: 0:02

After all, the trial attorney still wants to persuade the trial court and doesn't need us appellate attorneys throwing spaghetti all over the place hoping something will stick on appeal. Welcome to the California Appellate Law 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 host, Tim Poole and Jeff Lewis.

Jeff Lewis: 0:26

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:28

And I'm Tim Kowal wall California Department of podcasting license number 254709. 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 work 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: 0:56

Welcome to Episode 10 of the podcast. We've reached double digits Tim. Today we are pleased to have

Tim Kowal: 1:05

we've we fought the odds. Today we are pleased to host as our guest appellate attorney Alan Yockelson, Al is a certified appellate specialist and represents apellants and respondents in appeals, writs and complex trial motions and civil criminal and family law cases. Alice had a couple of high profile appeals recently that we'll talk about in a few minutes. So welcome to the podcast Al.

Al: 1:28

Your afternoon. Nice to be here.

Tim Kowal: 1:31

Well, we appreciate you joining us and if you would give us a little bit of a roadmap to your to your career and how you got into appellate law.

Al: 1:39

So I became a lawyer because my wife and mother in law did not want me to continue on to be an archaeologist and go to Sri Lanka to teach first year archaeology. So that's how I made it to law school. And while I was in law school decided that I really needed to get a job clerking to see what it was all about and got my start in the district attorneys of Los Angeles, his office appellate law, worked with one of the real luminaries in appellate law by the name of Perry Psalm time, who headed that department for aeons, but I always knew that that my heart was really on the other side of the issue on criminal defense, and was fortunate enough in interesting it was in a remedies class one night that one of my fellow students was working at the time, clerking for Leslie Abramson, who was involved. I believe it was the Menendez case at that time. And she had mentioned that that attorney by name, and Dennis Fisher was looking for a law clerk. And I had heard of him because he was the only criminal defense attorney that the Deputy District Attorneys held in high regard because he was just so good. And I called him up out of the blue and said, I hear it on good authority, you're hiring. And we had an bout a four hour interview, which he never lets me forget that I left my overdue pregnant wife in the car for those four hours in the parking lot, and went to work for him as a law clerk and stayed on as an attorney with them for about a dozen years.

Tim Kowal: 3:32

Well, you went right at it then from Sri Lankan archaeologists to clerking and you knew right what you write what you wanted to do. Once you decided not to be a Sri Lankan archaeologists. That is exactly well out. One of the reasons I reached out to you to join us on the podcast, as I saw that you were the appellate attorney for Jason Freeman, who is the grandson of Charles Manson. And yes, that Charles Manson. Just last month in April 2021, the second District Court of Appeal reversed an order that would have required genetic testing before your client could dispose of Manson's remains who passed away, I believe in 2017. And that that case is Freeman versus channels, and we'll we'll post the link to that in the show notes. But that would you tell us a little bit more about that case? It's fascinating.

Al: 4:24

It was a fascinating case. And so what was interesting about the case and the reason litigation arose in that case, is that there is a gentleman by the name of channels, who claims to have been a friend of of Charlie Sr. and is the beneficiary or beneficiary of his Well,

Tim Kowal: 4:51

yeah, he was he was like a prison pen pal, I

Al: 4:54

think is how the court opinion described him exactly and, and so guess maybe as part of their legal strategy, the team that is representing Mr. Channels convince a judge in Los Angeles to order DNA testing of Mr. Freeman. Now, the problem as the Court of Appeal recognize was that there was no authority for testing a grandchild, it would have been a different story of Charles Jr. was still alive that could have done that, or order that but simply there was there was no no basis upon which the court could could order that

Tim Kowal: 5:41

right. This the statute, as I recall, the case that had to do with establishing parentage for like a minor, I guess, is the more typical case, but this was not establishing parentage, but airship was, which was a slightly different issue.

Al: 5:55

Yeah, exactly. And, and that was, you know, I'm not sure why that wasn't so readily apparent in the trial court, because it had been briefed that way. And there was another issue in the case that the courts did not address, which was that there was actually an Ohio judgment. That was it. 17 years old, that had established that Mr. Freeman was the biologic son of Charles Manson Jr. and nobody contested that Charles Manson, Jr. was the son of Charles Manson senior. But the court never reached that issue, because it didn't have to. And we know courts tried to avoid hitting advisory opinions.

Jeff Lewis: 6:42

So interesting. So Tim, this will be our first podcast episode with a crossover between cult leaders and collateral estoppel. unrest judicata make a note of that.

Tim Kowal: 6:51

Yeah. But Ohio connection.

Jeff Lewis: 6:54

When I read the court opinion, I noted that the court ruled that the genetic testing order was not an appealable order. But the court reviewed it or treated it as a writ petition. And I'm, I'm always curious and fascinated when the court goes out of its way to hear cases. Did the court invite briefing on this issue of whether or not it was an appealable order and whether or not a writ petition it should be construed as a writ petition? Not only did they not ask for briefing on that issue, they didn't even raise the issue at oral argument. And of course, the other side, never contested appeal ability. And to be honest,

Al: 7:37

I was on the fence initially, but had found authority that I had cited in the brief that led me to believe it was definitely appealable. And you know, I'd rather take my chances and file my notice of appeal because there's no saving that 60 days when it runs where the 60 day rule for writs of choruses, you know, premise, there's flexibility there, let's say as long as there's no prejudice,

Tim Kowal: 8:06

right? Yeah, I think the I think the probate code section you're referencing was 1303 F, which is a mix makes appealable orders when determining heirship succession entitlement or the persons to whom distribution should be made, which seems right on point here.

Al: 8:22

It did, and it still does. But you know, when you when you shut up?

Tim Kowal: 8:29

That's right. But I also note that the the court even cited state of Stoddard, which says that an order is appealable, even if not mentioned in the probate court court, if it has the same effect as an order that the probate code has expressed, expressly made appealable. So again, it seems it seems like it's an appealable order to me both explicitly under the probate code and under a state of Stoddard.

Al: 8:54

Yeah, and it's probably a mystery that will remain a mystery they did they chose not to publish it. And, you know, I'm not seeking publication. So it'll be just an anomaly out there.

Tim Kowal: 9:09

Is there ever a circumstance where you're the prevailing party a on a on an appeal, in an unpublished opinion? Is there ever a circumstance where you, you petition for publication?

Al: 9:20

Oh, sure. Sure. And I think the reason that when you say I'm the prevailing party, yeah. Oh, no, no, when I'm the prevailing party. No, I want to leave Well, enough alone. I don't want to invite any further scrutiny on the client.

Tim Kowal: 9:36

Keep it in conspicuous. Exactly. Yeah. Well, so you've had a lot of experience doing this. And, and I think we all agree, this seems like a surprising appellate procedural turn. In this case, by the way that by the way, the court treated this as a repetition rather than a direct appeal. So it's a surprising that's a surprising procedural point. All around is Any lesson that you take away from this and that you think the other trial and appellate attorney should take away?

Al: 10:05

Well, you know, I would like to say your do your research and look for case law to I mean, I never in my statement appealability I never just rely on the statute, I always try and cite cases that that support that notion. But, you know, honestly, I don't know that there was a lesson I was really to be honest. I surprised because, again, they didn't raise the issue of appealability at any point during the process.

Tim Kowal: 10:36

Right, maybe you just make sure if if there is any question about you make sure to hit all of the factors that would that the court would use to render it as a repetition if that became necessary.

Unknown: 10:47

Yeah, I mean, it's good. You know, I

Jeff Lewis: 10:51

was just gonna say, we talked back a couple episodes back about how nice it would be if state courts would give tentative rulings or tentative opinions in the state court of appeals that we had a guest with that talked about that in the federal system. And and, you know, when appellate justices voted to allow oral argument, that's an addition that well, they have some interest in the case. And, boy, this is the kind of issue that you kind of wish there'd been a 10 of ruling in the Court of Appeal so that the attorneys could hammer it out a little bit, at least in oral argument, if not by letter briefing.

Al: 11:21

Yeah, no question. And I practice quite frequently in the fourth district Division Two, which does in fact, issue tentative decisions. And And so yeah, you could have been sure that I would have been prepared to discuss that even even though they didn't make an issue of it in the case.

Tim Kowal: 11:44

Well, speaking of that, do you have any you have any opinion on tentative opinions? And very few districts do it? What do you like them or

Al: 11:53

not? I love the tentative decisions that come out of or two, I don't like their decisions, but I like the process. They're very difficult division if you're doing Criminal Appeals for sure. But, you know, my first cases were in the appellate department of Los Angeles Superior Court, which always issued short, but but to the point tentative decisions the day before oral argument. And I just think it sharpens your focus as to why you seek oral argument. And, you know, one of one of the things that that I lesson that I learned very, very early on was from a case in the Appellate Division, where I read the tentative, and it was really clear that the court had not read the reply brief, or at least, incorporated the reply brief. And so when I argued that case, I argued the reply brief, and got a reversal. I mean, they reverse their tentative now, I will tell you, I've been doing this about 31 years, and it was the first time that I know that oral argument actually changed the outcome of the case. But if there had not been attended in that case, I don't know that I would have focused and hit that reply brief, as hard as I did. So I find value and tremendous value. And

Tim Kowal: 13:27

now that's a that's a great anecdote, both both for the value of oral argument and the value of the tentative opinions. I think I have heard an appellate justice explain, I think out of the 4/3 year in Santa Ana, explain why they don't do tentative opinions. But they must not have made very good sense to me, because I can't remember what those reasons are.

Jeff Lewis: 13:46

Well, I've heard them say things like, well, people become entrenched in the positions in terms of the justices and they want to be free and oral argument to change their mind and issuing a tentative ruling reduces the ability of oral argument to allow justices to switch which way they're leaning.

Al: 14:05

I personally don't buy that answer. It seems to me that that the value of focusing counsels argument on the issues that the court has found important aids, the court and aids the litigants, you know, that would all be there need to remind us each and every time that we don't need to repeat the briefs and that they're familiar with the issues.

Jeff Lewis: 14:30

Interesting. All right. In case that last sound bite is taken out of context, let me just say, I have a definitive opinion that tentative opinions should be the rule. I'm just voicing the courts. What I've heard from the courts. All right, let's shift gears here and talk about another case just last year. You want a case before the California Supreme Court in nationwide bi weekly administration versus Superior Court, a case involving the right to a jury trial and the unfair competition law and false advertising. Law, can you tell us a little bit about that case.

Al: 15:02

So that this case is a is a really good example of being persistent in pursuing a case. And it's also a really good lesson in a trial attorney who engages appellate counsel at a very early stage. And and and in this case, it had both of those elements, I was engaged at the stage of briefing the demand for jury trial. And and it was rejected by the judge up in Alameda County. And I took a writ to the first District Court of Appeal, which was summarily denied, and convinced the client that this is a great issue, and one that we should really take to the California Supreme Court. And in doing so, I used a provision that not a lot of non appellate people really utilize as much as they should especially and read cases. And that is seeking a grant of a review and transfer. It gives the supreme court the ability to say, you know, this is a really interesting and timely issue. But we don't want to operate on a blank slate, we really want to hear what the Court of Appeal will come up with, because we may never have to touch this case, again, depending on what the Court of Appeal does. And so they indeed issued a grant and transfer back to the first District Court of Appeal with direction that they issue in order to show cause. So that, of course, triggered formal briefing and formal answer and a traverse and by by the petitioner and oral argument. And it was very interesting, because in their in their transfer order. The Supreme Court was was clear that they wanted the Court of Appeal to address a US Supreme Court case called Paul and and an oral argument. You know, I figured well, I'm walking into a hospital court right, no tentative ruling, this court had summarily denied the writ. And all I got were friendly questions, even by the justice, whose decision in that very division, she was overruling her own decision, but thought that she was compelled to do so by the language of the remand order by the California Supreme Court. And and so I went away very happy, needless to say, as did my client. But the district attorneys on the case had a different thought about the case. And they actually filed their own petition for review. And, again, the Supreme Court this time granted review and kept the case. And with full briefing actually reversed my win in the court of appeal. And and it was one of those decisions where there was not a total consensus of unanimity amongst the seven justices, several thought that right to jury trial should go forward on one cause of action but not on the other. And and, you know, the case had a really interesting history because the client at the last minute brought in another attorney who had clerked for Justice Alito, and was working for Jones day. And so we were working together on the case. And they were really hoping to set this case up, because an issue that was not addressed by the court of appeal was full incorporation of the bill of rights to the states and application to the States. And it was sidestepped by the court of appeal and thus not addressed initially by the Supreme Court.

Tim Kowal: 19:23

Okay. Well, I want to back up to the to the just to make sure I understand the procedural history of this case, national bi weekly, because it involved unfair competition law claims and false advertising law claims. And so on behalf of your client, you requested a jury trial, which was denied by the trial court, and then you took it up on took that up on a writ and the Court of Appeal denied the writ. Right. And the court, the Supreme Court, granted review and transferred it back down to the court of appeal, who then reversed itself but then it went back Up to the Supreme Court again. And the Supreme Court of Appeal reversed the Court of Appeal again. Yeah. So did it. Does it seem like the Supreme Court changed? It's made an early determination that it later reversed?

Al: 20:17

You know, I honestly have no clue because everybody who was following the case, thought that when they granted the district attorney's petition for review, that they were simply going to refine the decision, nobody, but nobody thought that they were going to reverse, because the, the transfer order seems so clear as to what they were, you know, asking the court of appeal to do.

Tim Kowal: 20:50

Yeah. And I admit to being somewhat concerned by some aspects of the Supreme Court's decision. Here's one one line from the case that made me worry a little bit about maybe the court is setting up two different classes of factfinding. One, one class for factfinding for ordinary people, and another class of factfinding. Only for special people, ie judges. Concerning the both the unfair competition law and the false advertising law, the court said, quote, The crucial issue does not typically involve the type of ordinary fact finding assigned to a jury, but rather calls for an equitable judgment to determine whether an often undisputed advertising or promotional practice presents a sufficient tendency to deceive or confuse the public so as to support invocation of the laws, remedies. And so to me, that the court seemed to me concern that that there are some kinds of false or misleading advertising that can that might go undetected by juries. But it just wasn't clear to me why why is that beyond the ability of juries?

Al: 21:54

I don't think it is. And I think that it was probably in artful language, because if you looked at the the legal analysis, whether it was based on state law, or whether it was based on Seventh Amendment jurisprudence, the the hallmark of determining whether you had a right to jury trial was going back and looking at whether the underlying cause of action was one at law, one of law or equity at the time the constitution was adopted. And and so under both the state and federal constitution, you had to determine what the gist of the action was. And that and and so, to me, it really just really mattered, what you were looking for. And here, what what we believed and what we had initially convinced the Court of Appeal on their second opportunity is that when the state is seeking civil penalties, which was fine payable to the crown at common law, that was not an equitable consideration, that was a legal remedy, and thus, you are entitled to a trial by jury. And and and what is even more baffling to me still, is that there was no question that under the Seventh Amendment, which has not been applied to the states that the US Supreme Court Intel said, Yeah, you get, you get a jury trial. And the toll case was a Clean Water Act case. I mean, it was very, very much akin to false advertising and unfair competition in in both the structure of the statute, and and the analysis that is applied one under, you know, the US Supreme Court, the other under under the state constitution number 119 41. Chevrolet. You know, what,

Tim Kowal: 24:05

what has always made sense, in my mind to distinguish equitable from legal claims was the nature of the remedy. You know, if it's a rescission action, or if there are multiple parties to whom relief needs to be afforded, you know, those are in the nature of equitable claims. But if you're just talking about money, then it's a legal claim, and the court seems to be changing the the focus of the equitable versus legal analysis to the difficulty of the fact finding function of it, which, which seems unusual to me.

Al: 24:37

Yeah, I would agree. And and I, you know, again, I'm not sure if it was if they intentionally laid that out there or if it was just an artfully worded language, because it was in and around at least the equitable versus at law, dichotomy, that that one or an analysis that one would used to determine the right.

Tim Kowal: 25:02

Well, so here I need you to weigh in on this question now because the national bi weekly case brought up brought this anecdote to my mind. This anecdote about winemakers during Prohibition who had been forced to sell harmless grape juice until one day, somebody in the wine making industry got the bright idea to paste a prominent label on each bottle announcing boldly warning will ferment and turn into wine. And then followed by a step by step list of instructions on how a careless consumer might hypothetically go about doing so. So what do you think al? Is that a, is that a jury question? Or is that need to be decided by a judge as an equitable fact finding determination?

Al: 25:40

It sounds sounds very much like a jury question.

Unknown: 25:44

And

Tim Kowal: 25:45

jury, whatever convict and your

Al: 25:47

anecdote reminds me of a family story my wife tells because during Prohibition, her grandfather owned a liquor store and he sold cordials, which were the only form of alcohol that were still legal under prohibition.

Tim Kowal: 26:07

That's a you have to get a lot of cordials I guess,

Al: 26:10

GAVI a lot of cordials. And a lot of chocolate.

Tim Kowal: 26:13

Yeah, maybe maybe you could look around by their by their obesity rather than their demeanor.

Al: 26:20

Diabetes be a key tracer?

Tim Kowal: 26:23

Yeah. All right. Well, I have a couple of odds and ends questions if I might ask you. Now you work with a lot of trial attorneys. And one things I've noticed one thing I've noticed that trial attorneys hate is, is appellate attorneys like us telling them all the issues they need to put into the record, even though it's so patently obvious to the trial attorney, that the trial court is going to reject all these arguments and objections and just get annoyed. After all, the trial attorney still wants to persuade the trial court and doesn't need us appellate attorneys throwing spaghetti all over the place hoping something will stick on appeal. So how do you go about responding to these kinds of concerns on the part of trial attorneys?

Al: 27:04

Well, I'm I'm generally pretty blunt and say, Look, you are going to be far better off at the end of this case having preserved an issue than having waived it because there is no there is no worse feeling for an appellate attorney to get a new case in hand and see a wonderful issue and find out that there was no objection, or somehow the issue was waived. And there must be no worse feeling to a trial attorney to be told that because I'm not hired by the trial attorney, I'm hired by the client, which means I have to inform the client that but for this procedural mistake, they may have preserved a winnable claim. And we know where that goes. So it's uncomfortable, but the loyalty of the appellate attorney is always to the client, not to the trial attorney who refers okay. And I'm blunt about that, too, with the trial attorney, you know, if you if you don't preserve the issue, we're putting a claim at risk for yourself as well.

Jeff Lewis: 28:21

Yeah, good point. Good point. All right. Let's switch gears here for a second. How has the pandemic impacted your firm's practice and how you're handling appeals.

Al: 28:35

So I am probably one of the rare birds that it has not affected my practice at all. At least not in the day to day operation. I have been a solo and sometimes use contract attorneys, but principally a solo since 1994. And I've worked at home since 1994. So my day to day work. Habits haven't changed one bit. The two areas where COVID affected me we're Of course, without trials. You don't have appeals without cases going forward. You don't have ribs, although there were a sprinkling of rats because there was some, you know, law in motion that was moving forward during the pandemic. trying to think of this The second way that effect affected me Oh was oral argument. I am one of those people. I have done telephonic oral arguments and going back to the years that I lived in Oregon when it was available because telephonic oral argument had been available in several different District Courts of Appeal well before COVID fourth district Division Three always had the deputy The Attorney General's in criminal cases appear via video. They prefer that they would make the trek up to Santa Ana from San Diego, but few of them opted to do that. And then the sixth District Court of Appeal in San Jose, and I also I believe the fifth district in Fresno also had telephonic oral argument. And so for a good portion of my career, I lived in Eugene, Oregon, but practice exclusively in California. And sometimes I chose to have oral argument telephonically rather than travel. But I have found a qualitative difference in engagement by some of the justices via video platform as opposed, right.

Tim Kowal: 30:48

Right, do you think that will be a mainstay or that that'll continue indefinitely, then attorneys opting to appear telephonically or via video, whereas before, you know, before the pandemic, before people were habituated to, to the zoom world, they probably would have would have thought that it was just too unusual. And they would be they will be prejudiced. But now I think the stigma may be largely gone from all that.

Al: 31:13

I don't think it will. I don't think it will continue, I think once the courts are comfortable with with counsel appearing in person that the the sense that I'm getting, and I've been on a couple of different panels, because I'm a member of the appellate Inns of Court here in San Diego, and this issue has been addressed by the presiding judges, a judge Justices of all three divisions of the fourth district is that the desire is to get everybody back in, or who may enjoy that that face to face exchange.

Jeff Lewis: 31:54

That's interesting. You know, when briefing is done in the state system, we usually get a form to request oral argument or to meet confer with your opponent about waiving, I sure would like to see that form modified to Adeline saying meet, confer with your opponent about whether video argument might be appropriate because there's some cases where maybe you want to waive or maybe you don't in terms of economics, but an video oral argument of the other side of greed might be appropriate?

Al: 32:20

Well, it certainly keeps costs down for the client. And if you dovetail that with the earlier discussion of tentative decisions, again, it further refines those cases where you would maybe argue if you didn't have to spend four or five hours just traveling back and forth between San Diego and Santa Ana, or out to Riverside or up to LA.

Tim Kowal: 32:46

Yeah, on a related question art, have you had cases where you have waived oral argument? and under what circumstances might you waive oral argument?

Al: 32:55

Yeah, so so I have a case right now, that is a criminal case. The issues in that case are sitting in front of the California Supreme Court in the case called people vs. Louis. And every case that has been decided adversely to the defendant gets a grant and hold behind Louis, and I could see no value to my client, for me to go to oral argument, knowing that auto equity sales, you know, prevents the court from doing anything other than affirming the denial of relief, because we're going to the Supreme Court, and we'll sit there and the Supreme Court will well ultimately decide Louis, so I just thought it was of no benefit to a client and no benefit to the court. They knew they knew what they were doing.

Tim Kowal: 33:52

So is the in the Louis case you say? Is that is that under review?

Al: 33:57

It's under review? Yeah.

Tim Kowal: 33:59

Is that there's a there's a new modification to what is the rule is at a point 1115 I believe that has to do with citing decidability of cases while they're under review. And now now there's a new Advisory Commission report that or opinion that says yeah, it changes the rule on it.

Al: 34:17

Yeah, it's clear as mud is.

Tim Kowal: 34:20

Yeah, yeah. So so that that may or may not be the case now that whether auto equity sales commands the lower court to to follow the case that's under review.

Al: 34:30

Yeah. Generally speaking, though, they will do it. They will. If it's under reviewed, they figure there's no harm to the defendant, because the supreme court's going to issue a grant and hold and they're either going to, you know, affirm, in which case cases done or they're going to reverse on the lead case, and then everything will get sent back in reverse miniatures. The issue in lewis is pretty clear cut in terms of you know, For the council,

Jeff Lewis: 35:02

and no relation, right, just to be clear now,

Al: 35:05

really now that I know.

Jeff Lewis: 35:09

Hey, let me ask you this. Switching gears one more time, I probably practice primarily in state courts, I don't do a whole lot of federal work. And in the state Courts of Appeal, you don't see many dissenting opinions. And I wonder if you have any thoughts about why you don't see more? And should there be more? So I,

Al: 35:28

I think, yeah, definitely, I think there should be more. What I have heard and come to believe, is that a lot of it has to do with the way the different courts take the batch in in state court, they pre conference and circulate draft decisions before oral argument. And so if there is a contrary point of view, it'll be fleshed out at oral argument. But there's, you know, there's just as consensus building before the case is ever set for oral argument. So I think a lot of the concerns that may be one justice might have are alleviated by draft opinions that that go back and forth between chambers. Whereas in the Ninth Circuit, there's no single bench memoranda for the judges taking the bench each of the judge's chambers, produce their own memoranda. And so you can get, you know, maybe at the end of the day, you don't get more widely differing opinions, but oral argument can certainly be wider ranging than in the state court. if for no other reason, then you have three judges in the Ninth Circuit, who all have their own opinion and may not be consistent with the other two colleagues on the court.

Tim Kowal: 37:05

Right. There might be, there might be somewhat less work product developed by each of the state court appellate justices for each individual case.

Al: 37:14

Yeah, I mean, it. It's reminiscent of a story I was told very, very early on, you, too, may be a little too young to know who Bernard Jefferson is. Does that name mean anything to either of you? So So Bernard Jett, and wrote the famous bench book, that was the Bible, in in LA superior courts, especially criminal courts, and laid in is a kind of snippets of it in my desk somewhere here. Yeah, late, late in his career, he was elevated to the court of appeal. And, and at one point, all of these writs were coming in to the court, and he was the lone justice wanting to hear a writ. And so his one vote didn't get it. And he went to the presiding justice. And he said, I don't get it. I don't understand. You know, these are some really good issues. Why is everybody passing on it? And he said, Well, I tell you what, Bernie, here's the deal. I'll vote with you. If you keep the case, in chambers and your chambers. It's added work.

Tim Kowal: 38:26

Yeah, so it's a it's a negative incentive.

Al: 38:28

Yeah. So So I think in that vein, you know, not each each chambers, not working up their own bench memoranda on a case in state court. It's got a little bit of that involved there. They're already burdened tremendously. And, you know, to to greater or lesser extent, I don't know, if you read the recent article out of Sacramento on the backlog of cases, our third district, it's getting very, very ugly.

Jeff Lewis: 39:03

So that's an issue we've been following covering on our podcast, both in terms of the requests made by two prominent lawyers to the Supreme Court to take this list of cases and transfer and the Supreme Court's summary decision not to want to Yeah, yeah.

Al: 39:20

And I've known de Eisenberg for a long time. So yeah. Yeah. As we would say, in Hebrew, it's a by Ah,

Jeff Lewis: 39:31

yeah. And, you know, I read over the weekend, a earlier this week, a op ed in the Sacramento Bee by the Sacramento bees editorial board suggesting Well, the Supreme Court's not going to fix the problem by by transferring the cases maybe it's time for Sacramento to add more justices. I've also been a party to a listserv talking about, you know, there's this 90 day rule about justice is not supposed to be paid. If they have a decision under consideration for more than 90 days. Maybe there needs to be similar rule on the briefing. End. I feel a little conflicted on that, because I don't know about you. But on occasion, I will request more time for a brief. And I feel like the lawyers might pay the price if there was such a rule in terms of the liberality of granting such such extensions.

Al: 40:14

Yeah. And and my fear would be that even if such a rule were implemented, you know, the 90 day rule to decision has a major loophole in it right, which is they could resubmit the case

Tim Kowal: 40:29

to vacate submission. Right. So yeah,

Jeff Lewis: 40:32

I had a case where for three years, it was resubmitted. Yeah, it was crazy that the justices made it very clear in oral argument is the fourth Appellate District Division Three, he made it very clear in oral argument that they wanted the parties to talk settlement, and it was vacant and resubmitted for three years.

Tim Kowal: 40:50

Wow. That I've never heard of something that long

Al: 40:53

for three. But but wow.

Tim Kowal: 40:57

say, well, that yeah, that's well, that's the that's the one to beat, then you've got the record, Jeff?

Al: 41:03

Well, I think there's one in Sacramento that's been seven years post briefing that they have not decided

Tim Kowal: 41:09

You're kidding. smokes. Oh, I'm not I'm not kidding. Well, what if someone anonymously filed the government code section form to the Judicial Council? Well,

Al: 41:21

I think if you did the Council on judicial performance, already involved in what's going on in Sacramento, so

Tim Kowal: 41:32

all right, well, Jeff, I think it's that special time and in the episode when we get to the lightning round. Oh, boy. I don't want to steal your I was gonna say steal your thunder. But that would be a terrible, terrible pun.

Jeff Lewis: 41:44

You've been asked me to work on a sound there it is. All right. Now, if you haven't heard our lightning round before on our podcast, we we now ask a series of questions, the most vexing questions that concern and and annoy appellate nerds around the world. And we ask for your shortest answer possible to see if we can get through. And let's see how far we can we can go. So here we go. We've got we've switched them up for listeners. So we've got some new ones. When you do headings in a brief, Roman numeral one, etc. Use all capitals, initial capitals, or do you prefer sentence case? capitalization? Roman

Unknown: 42:21

numeral all caps.

Jeff Lewis: 42:23

Tim, where are you on that?

Tim Kowal: 42:25

I use all caps for the for the Roman for the big Roman numerals. You know, I'll use all caps, but I usually they're usually just one word, one or two, you know, introduction, procedural history. Discussion? Yeah.

Jeff Lewis: 42:37

Okay. All right. I very rarely use the all caps. I tend to like it's easier on the eyes just to do initial caps or sentence caps. Okay. Next vexing question. Do you underline or italicize your citation to case names?

Unknown: 42:52

palletize. Underline

Al: 42:57

once I got here, there's italicize

Tim Kowal: 43:00

that Tim that's the correct answer. Yes.

Jeff Lewis: 43:02

Yeah. We have no dissenting opinion here. All right, defining names and acronyms. For example, Supreme Court, referring to Ford Motor Company as just Ford, what's your practice in terms of defining names and acronyms?

Al: 43:19

Only if the case is so seminal to the argument that I'm going to repeatedly refer to it, I will go ahead and give a short case by case and then in brackets. Got it in Tim?

Tim Kowal: 43:35

Yeah, that's been my practice. Although I like this precedent set by the Ford Motor Company case, without having to put in parentheses that you're going to be referring to Ford Motor Company, as Ford, I think any person following along with would be able to read the brief without becoming confused.

Jeff Lewis: 43:52

Yeah, I gotta tell you, sometimes I'll take it a step further and super complicated cases, I'll go to generic words. So like Ford Motor Company would be the dealer or the manufacturer instead of a long bank name of the lender, because in complicated cases, it makes it a little easier on all minds. I

Tim Kowal: 44:09

think. I like that.

Al: 44:12

Anything I write that easier for the court is I

Tim Kowal: 44:16

yeah, I was talking with an attorney today who does some some EPA litigation and the terms that they have to use. They're just I mean, that max out my IQ points, just listening to him at lunch. And I can't imagine getting through a brief with more than two or three of those. So yeah, I would find ways to use labors and language. You need

Jeff Lewis: 44:34

to find a more interesting lunch crowd if we're talking about that at lunch. All right. Next issue. We're gonna have a big division between me and Tim on this one. We've run across this before pled p led or pleaded p l e. a. d d.

Tim Kowal: 44:52

That's the wrong sir. Right. dissenting opinion filed by Jeff Lewis.

Jeff Lewis: 44:59

All right. We'll do a couple more and then we'll move on the most important and most vexing question facing appellate nerds such as us, century schoolbook garamond or something else that comes up thoughts?

Al: 45:13

Well, after almost what feels like a lifetime of Times New Roman, I have been forced into century school.

Tim Kowal: 45:23

Yeah, records unanimously. Right.

Jeff Lewis: 45:25

Okay, fantastic. All right. And all right, final final final entry in our lightning round on a related point to spaces or one after a period.

Al: 45:38

So that is an evolving aspect of writing I had always done to now I go, I've been net one for the last five years or so. Old dogs can learn new tricks.

Tim Kowal: 45:55

Yeah, I had to really train myself out of that one as well. And I hadn't it hadn't been entrenched as long with me, but it was it was painful.

Jeff Lewis: 46:04

The correct answer is one space. And I'm working on Tim maybe by Episode 20. He will he will adopt

Tim Kowal: 46:10

it doesn't like me equivocating on that one doesn't like the suggestion that two spaces could be acceptable.

Jeff Lewis: 46:17

All right, well, you survived or lightning round. I do have one final question I'm gonna ask before we wrap up the interview, and I'm gonna put you on the spot. I hope you don't mind. When I sat for the certified appellate specialization exam, I sat in a room with all the other hopeful specialists, and all the other categories of law brought little books with them with tags on them. Not me. I couldn't bring the code of civil procedure tab because the appellate specialization exam was closed book while the other practice areas was open. But you served on the commission or the committee that that drops the questions any insight as to why the committee likes to torture appellate lawyers more than other lawyers?

Al: 47:00

Yeah. Yeah. It's, it's, it's the answer is yes. I understand why we do it. Because most of the questions are rule based questions. There's very little substantive law on either the criminal or the civil appellate specialty exam. And, and so we're always the questions always seem designed to probe the rules of court. And if you could bring them in with you, then you probably had the answer to, you know, 90% of the multiple choice questions.

Tim Kowal: 47:40

Go ahead. I tell people that among the I think there's 11 areas of Legal Specialization, that among those 11 I think a pellet is a is almost alone among them, that doesn't have a single substantive law to it. It's pure procedure. So I usually when I introduce myself to people usually have to apologize to them that they're going to learn that there's one more type of attorney that they're going to learn about.

Al: 48:03

I analogize our role, way, way back almost 30 years ago, to to really baseball teams when they travel, right, you need to know the ground rules of the stadium you're playing. And the Court of Appeal has different ground rules than the trial courts have. Yeah, yeah.

Jeff Lewis: 48:29

I think that's fair. I think that's fair. Okay. I forgive you for that vaccine feeling I had sitting in the exam, while these other lawyers were flipping madly through a book and

Al: 48:38

it wasn't personal. It wasn't. Okay.

Jeff Lewis: 48:42

All right. Well, listen, we want to thank you for sharing your thoughts on appellate practice with our audience. Do you have any final parting words you want to share with our podcast audience?

Al: 48:50

Well, no, I thank you for the opportunity. And I will say I am going to be filing a cert petition in the ron jeremy Hiatt case. So if that gets granted, that might be a good one to come back and visit me again.

Tim Kowal: 49:05

We'll look forward to it. Well, thanks for coming on. Alan. Yeah, keep us posted on that case.

Al: 49:09

We'll do Thank you, gentlemen.

Tim Kowal: 49:11

Thanks. Bye.

Jeff Lewis: 49:12

Oh, well, that wraps up this episode.

Tim Kowal: 49:15

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 when preparing for trial.

Jeff Lewis: 49:30

See you next time.

Announcer: 49:32

You have just listened to the California Health podcast, a discussion of timely trial tips and the latest cases in years 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 ca o podcast.com. That's ca l podcast.com. Thanks to Jonathan Caro for Intro music, thank you for listening and please join us again