Winning an Appeal: Our Interview with Author and Attorney Myron Moskovitz

Myron Moskovitz: 0:00

A lot of people assume if you actually work in the appellate courts, you're going to be a good appellate litigator, and I've found that doesn't follow.

Announcer: 0:16

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 hosts, Tim Kowal and Jeff Lewis.

Jeff Lewis: 0:30

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:32

And I'm Tim Kowal. California Department of Podcasting License number pending determination of moral character. 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: 1:02

Hi, everyone, welcome to episode 20 of the podcast.

Tim Kowal: 1:06

Yes, welcome. And today, we welcome appellate attorney Myron Moskovitz. To the show, Myron served as law clerk to Justice Raymond Peters of the California Supreme Court. He is the author of Winning An appeal. Now in its fifth edition, and Moskovitz on Appeals published by Lexis, he has handled and consulted on hundreds of appeals both in state and federal courts. Byron's appellate tips can also be found in the Daily Journal where he authors the Moskovitz on appeal column. So welcome to the podcast. Myron, thanks for joining us today.

Myron Moskovitz: 1:38

I'm glad to be here guys. Thanks for having me.

Announcer: 1:41

Well, thank you. And just in case I didn't didn't cover everything in your sounds like at least four or five decades of practice. Tell us a little bit about your appellate practice and, and maybe encapsulate your your many decades of practice in a paragraph.

Myron Moskovitz: 1:55

Well, I clerked for justice Peters and the California Supreme Court right out of law school. And I really liked it kind of a cold bath going in on that because the law school you know, you got the subjects you study contracts towards the Supreme Court, you got everything. I mean, my first case was on the harbors and navigations code, which I I didn't even know what a harbor was. And then it was like that throughout the whole clerkship, we get these petitions who are reviewable, annual two of them a week and learn something new each time. And then after that, I went and did antipoverty over the Legal Services Program. Try trln in Marysville set up and ran her office. And then I moved here electable, I was chief attorney, the National Housing Law Project, which helped other legal services attorneys on housing law problems. But the whole time I was involved in appeals in housing law, I handled cases in the California Supreme Court, US Supreme Court. And I always had an interest in that. And then I started teaching last for Golden Gate. And while there, I handled appeals part time, and I taught appellate practice. And I also set up a program where lawyers bring their cases to me, and have a moot court at Golden Gate, but just one side, and I bring in lawyers and retired judges to serve on the panel. And students who come and watch. Real waters are very helpful to the students and legal community, and I really enjoy it.

Announcer: 3:45

Do many law schools have a course and appellate practice.

Myron Moskovitz: 3:50

Yeah, I taught the course in appellate practice, but this just made it a little more real likely to see real lawyers doing it. And getting a critique, a very honest critique from the bench, the lawyers and judges I brought in. And after doing that, for several years, I got to know some of these retired judges, including allergens. And then I retired from teaching about six years ago, and got together to some of those judges and set up my law firm Moscow disability. So it consists of myself, three retired appellate judges and several former law clerks. And we provide evaluations of cases provide moot courts for attorneys who want to do instead a lot of but mostly we just handle civil appeals and rich and it's been very enjoyable a lot of practicing maybe be more of a fighter than a scholar and and I associate with very intelligent people trial and error is to deal with and or shouldn't test for it is, it's very good. I think the average reversal rate in the state is around 80%. And in cases where we represent the appellant well above 60% bond is two. And we go federal and state cases, mostly in California. But we have one question, why have one for you a little bit out of state two? And it's fun. What can I say?

Announcer: 5:28

Yeah, it is fun. And I like what you said about, you know, there's, there's a little bit of a scholar in appellate attorneys, but that scholars who are not ready to, to just go join the ivory tower, they they're not ready to hang up the the fight of the litigation? Well,

Myron Moskovitz: 5:45

you know, it's really interesting, setting up the firm, I was looking for former judges and law clerks, and a lot of people assume if you've actually worked in appellate courts, you're going to be a good appellate litigator. And I've found that that doesn't follow. They know the process. But you got to have that, that instinct to litigate and fight to do and a lot of them, don't they just your calls, and they like to cogitate and ride, but they don't have the instinct to fight. So I've been fairly selective and who I allowed to join my team, I want people who are out to win.

Announcer: 6:28

Well, speaking of your team, you did mention that the attorneys associated with with the Moskovitz law firm are all either former appellate judges, Justices, or law clerks or research attorneys. And I hear a lot of judges in panels and things talk about how they miss litigation, they miss, you know, the freezone of going into court and trying a case. But usually, when they retire, you hear they announced they're gonna go off into private arbitration, they don't they don't take up the opportunity to actually go back and join the fight again.

Myron Moskovitz: 7:03

I've been very fortunate to be able to watch one of my retired judges on my team. He was the presiding judge in one of the districts. He loves to try cases. He just loves it. And he gets out there and fights and he complains about the judges more than I do. So if he's great fun to work with, and, and you know, he has the insight, they all do, because they've been there. They've been in the drug courts, they've been appellate courts. So I've had big law firms come to us for valuation, these guys can provide it, they can say, you know, you're going to win, you're going to lose, here's the problem. Here's where you can fix it. The best time for people to come in is when they have a draft reply. Ready? Not after they file it, but people want to court before the oral argument. It's usually too late to really have any effect. You want to do the moot court or the consultation before you follow that final work library. Because that's, that's the last chance you have to really get the court. Oral arguments. usually too late.

Announcer: 8:15

Interesting. I hadn't heard that. So you do the you do the moot court before the reply brief?

Myron Moskovitz: 8:21

Yeah, the reply brief is crucial. Absolutely crucial. It's the last thing they suggest the Scalia was reputed to say that's the first thing he read. Well, I'm not sure that works if you're there without understanding the case. But the point is, it's so important, because that's when the issue you want. That's when you really know what the question is about. Show I put a lot of energy into reply briefs.

Announcer: 8:48

But and it's it's ironic, because the reply brief is the only brief that's optional. As far as the rules are concerned,

Myron Moskovitz: 8:55

Only one that's optional and its the only where they don't give you any grace period.

Tim Kowal: 9:00

Right.

Myron Moskovitz: 9:00

You don't submit it on time. You don't get to do so. Yeah, it's funny, but my experience, that's the brief that counts if you represent the appellant.

Tim Kowal: 9:14

Yeah, I find that's the most fun brief to draft because the opening brief is all blocking and tackling. You have to be very, very honest and forthright with all the facts. You don't want to get out over your skis on anything but on the reply brief, you can kind of kind of let loose a little bit,

Myron Moskovitz: 9:30

and they can't come back here toward the last word.

Announcer: 9:37

That's right. CB just published your practice guide strategies on appeal and it's a it looks like a thick tome. I'm sure it's it's chock full of great appellate tips. So we'll put a link to that in the shownotes. What went into creating strategies on appeal and what can Attorneys expect to find in it?

Myron Moskovitz: 9:55

Well, let me be real put out practice guides on appeals telling you what kind of paper to use, how big the font is the rules on filing notice all that stuff, this book doesn't deal with any of that. It's strategies on how to win appeal, it's about substance rather than form, and goes through cont from beginning to end. You know, starting with the introduction, statement of facts argument, the whole thing, and, and how to use each piece of it to win. It's all about winning. And it's not a long book, it's not really a reference book, you don't look up, Bert doesn't have a big index, we're under Tony, I don't know, 200 or 250 pages, something like that. You could read it right through. And it's based on a method, a way of thinking that I've developed over the years and looking at these things. And a key insight is to put yourself in the shoes of testers and try to figure out what motivates that person who will one way or another, and then use it, use it in by a couple of examples, stating the facts is crucial. I want to win the case on statement of facts, statement of facts has to comply with the standard or view. A lot of attorneys do they put the standard or review and read. And then they forget about it. They don't realize it affects everything you put in the brief. So the trial court may write a statement of facts. That's all your way. That's typical, because there's been no trial appeal, you've already heard whatever hearing resulted in the judgment you're appealing from. And the facts are set, depending on the standard of review. I mean, for example, summary judgment if you're appealing, I've had this happen. I'm representing summary, summary judgment, I write the statement of facts, then I see the respondents brief. And it's a different statement of facts. It's his perspective on it. And I write a reply brief. And my first line is disregard everything in my opponent's statement on complying with your appellate court standard review, and he's not set on review on summary judgment. If if we lost some in summary judgment, all the facts are my way, all view and a lot, a lot of the loser, even reasonable inferences. And all contrary evidence is ignored. Right. All right. If the respondent in ignores that rule in writing a statement of facts, it's all irrelevant. All we've disregard. Yeah. So people don't don't really get that. Another example is the introduction. The rules don't mention you're not required. You don't have to have one. And years ago, nobody called Women now everybody puts one in. But they don't know how to do it. They use the introduction to argue they start right off reverse for that reverse form for this or for that. And if it's the appellants opening brief, and the judge picks that up, the judge thinks I don't know what the hell you're talking about. Because I don't know what happened. I don't know the facts of the case. Right. And until you explain, at least briefly, what the hell happened. He can't understand your argument. We see that the introduction. Just kept going bother reading. Yeah, I like to look at it all the time. Right. But the introduction is a wonderful opportunity to win. It's got to be sure if you can figure out a way to write three, maximum four pages. That includes the essential facts. And the basic argument. He communicates right there. As long as you're accurate. All right. Now, lots of times, that's impossible. The facts are too complex. To summarize that quickly. And that case, the introduction should be short and just briefly summarize the issue. So when the judge reads the statement of facts, he has some idea what to look for. Right? Right. But the facts are complex. You can't argue and put the facts in your introduction without making a 10 pages long. And then it's not an introduction anymore. So people don't think about that a lot of people are breached this by going on the final picking up in the same way. Yeah, we should different. You gotta adapt to what you got in front of you.

Tim Kowal: 14:56

Yeah, the statement of facts is the most important part. The opening brief the introduction introduces the reader to the statement of facts so they know why they're reading it and what to look for. And that statement,

Myron Moskovitz: 15:09

Excactly, and I always told the reader right at the beginning of the statement of facts, were a summary judgment. Here's the standard view on summary judgment on complying with it, you're trying to get perfect comes up on demurrer. Like, even if you're the respondent, you have to do that. I'd say exam review for both parties. So but let the judges know. I mean, the most important thing is Clary, don't make more. Make it easy for him. Spell it out.

Tim Kowal: 15:44

No reader likes to work ever. That includes our juris. So, that's great advice that that's that's what what you give out for free. I can only imagine what's in the what's in the book strategies on appeal. Alright. So Myron, the reason that I contacted you to invite you on to the podcast is because I got word that one of your recent daily journal articles talked about summary denials of writ petitions and the Court of Appeal, and repetitions are already a vaguely mysterious type of appellate relief. And the one sure thing that attorneys know about repetitions of that is that they're extremely hard to get granted, even in worthy cases, the odds are slim. And you had something to say about the way some of these writ petitions are decided. Can you tell your audience about that?

Myron Moskovitz: 16:28

Well, you call on my role wrote about this begins with a story about a case I handled years ago, where I worked very hard for these Mexican farmworkers to try to sue the local welfare department of the senator county to comply with the law by allowing them to fill out an application for welfare benefits to their children. And welfare director wouldn't allow it. I took it to court. But I do burn political and through court judge denied my petition took an appeal. But the problem was an appeal takes quite a while. And these guys needed help. Now, because it was wintertime they couldn't work in the fields. And you know, the kitchen didn't have enough quality appeal was pending. I lived for rent, I scoped out the story. And I told you I got them all on it. And I in those days send out a postcard, again, a postcard petition denied. No reason. Nothing. And being hearing Young. Phone I call the Presiding Justice who would sign the postcard. And I sat in, he answered the phone. And I said, Well, what's this about? I got a postcard with no explanation. Efficient, denied. And once you realize what I was doing, he said you can't do that. You can't call me like that. Bang slams the phone. So ever since then I and then later, when the appeal finally came up, you know, a little bit too late to help these guys. I won three rounds, including him, he voted my favor. So why don't you know that protection? So over the years, I've handled a number of repetitions. And this often happens, you get petitioned denied, you have no idea why. What do you tell your client? You don't know, if they're deciding on marriage, your argument is wrong, or neutral one size paper, it could have been something like that. It's easily fixable. But they don't tell you and just came to the view that that's totally wrong. And I've had situations where the appellate court didn't do, we're going to write you a short paragraph and say you're wrong for this reason or that reason, which, you know, we don't like to lose, but at least it's understandable what their position is. So in this column, I said, come on. I mean, a little common courtesy, you know, drill sergeants do what you're doing. Right? They tell you to do something, and you're saying was charging should I do that? And I don't know you an explanation. I'm here to order your order. Is that what you guys want to be saying that this drill sergeants, now your public servants use you to define cases based on reason. Tell us your reason. Doesn't have to be a lengthy opinion, can be just a paragraph or two. That's all just tell us and you know, the reason we're, you know, deciding petition. So, you know, I think sometimes not often, I think for the most part, appellate justices are very considerate, and very courteous, and they realize that lawyers have a tough job. They're representing clients who spend a lot of money on these And I tried to do the right thing. But some of them just seem to overlook that. Yeah. calling your attention to it.

Tim Kowal: 20:10

Well, I love the idea because I've I share that frustration of getting those summary denials and you think you had a righteous read, and you think that you at least deserve some kind of explanation why it was denied. So despite the fact that I that I love it, and I want to see it come to fruition, I have to ask a question about in your case where you your your writ was summarily denied, but then you went on to win the appeal. Certainly the if the if the Court were to have given a brief synopsis of its reasons for denying the writ, they would have Wouldn't they would have to they would have to be non substantive, I would imagine because otherwise wouldn't have been somehow compromised the panel when it gets to the to the actual deciding the appeal on the merits, if it were to disclose its thinking on the merits, and in giving reasons for denying your repetition? No, I would think that would complicate things when it comes to the appeal on the merits itself. So would the would the reasons have to be limited to non substantive issues? Like, like you mentioned, you know, wrong, you know, wrong size margins or wrong font type or you didn't add adequately explain the urgency or the irreparable harm?

Myron Moskovitz: 21:16

No, I don't think it has to be limited to technical reasons for denial could be subsidy. But the what I'm proposing is just tell recordings, why we're doing it. Alright. So what they send out does not have to restate the facts at all the parties know the facts. This is not for public consumption, it wouldn't be used as precedent, because people who aren't involved in the case wouldn't know what happened, you wouldn't know how to use it at the party. So it just, you know, we think of appellate courts as deciding these big issues of public importance, and that's why they publish. Well, they do some of that. But the great majority of their work is just for the parties to provide justice, in a dispute that people haven't been able to spending a lot of money on attorneys fees and a trial court and appellate court to try to get a resolve. And if the appellate court resolves a key issue some way, just tell them why you're doing it, that's all. So no, I don't see this as limited to procedural matters, I don't see these things as processing. And once in a while a court will grant a recruiter to read put it on the calendar like a regular reading or appeal. And then the issue of elders convenient, because it does affect more than the parties. But on occasion

Tim Kowal: 22:47

I have heard ever to happen that that sometimes there can be a writ petition filed followed by probably something like apama Notice, which then prompts full briefing. So you have a situation where the issues are fully briefed. But there's not technically a cause yet a constitutional cause that that requires oral argument and in a reasoned opinion. And so and yet after that full briefing on the merits, it can still result in a summary denial. And I have to imagine that's got to be the height of frustration that after you go through the full blown exercise, everything you would normally do on an appeal and still just come out with a with a one word denied.

Myron Moskovitz: 23:27

Never happened to me, fortunately, I guess. You know, a lot of appeal writ petitions today are resolved by what are called Palma notices where after receiving a petition, the court just issued a notice for the trial court, you're going to change this, or else we are going to have a full hearing on this thing. And that usually does the trick. So because I mean, that's it, that's a cheap, inexpensive way of resolving it. And it does give both parties reasons.

Announcer: 24:02

Yeah. So you mentioned that if the court were if a Court were to take your suggestion and offer just a paragraph explaining why the court were was denying a repetition, it wouldn't necessarily have precedential effect. And I guess that's because it's it's not a constitutional cause. Would that be it just reminds me of this phenomenon that people have been calling the shadow docket of the United States Supreme Court where these things are happening off of the the more heavily watched docket just on on emotions and things like that. This would this would tend to create something like a shadow docket in our own California Appellate system, would it not?

Myron Moskovitz: 24:41

Well recall on last year, about the distinction between published and unpublished decisions, which didn't exist when I started practicing, they're all published, and sometime in Don't 1970s the courts decided that there were too many models that were weighing down the hills, judges, the law firms, and it costs a lot of money, just before computers and the Internet, and limit the number of decisions that are a precedent show. We don't have to clutter up offices, these books, everything's online. Everything everything's published, right, or published online. And the other way of using the word published an actual book form, nothing's published. Right. So the firm's are totally archaic. If instead you do something more accurate, like precedent and non precedent. It's semantically correct. But it's a bad idea. I think they got them all online. They all should be usable as precedent. Because what is law? Is law with the court say it is? Or isn't what they do? Well, they say they're doing one thing, so called published decision, new to look at 20 unpublished decisions and find out they're doing something different. What would you advise your client? What is law? What was what they do? let the public see what they do? Let them use it as precedent. It may impress the court and affect their decision or not. Or they can say all those so called unpublished decisions or wrong, touch, okay. But we use the term shadow, Shadow law. It's really long. But it's not only in the shadows, it's totally in the dark. And, to me, purchase doesn't make sense, right? Now, some of the appellate choices will come back and say, Oh, if we're going to use it as precedent, we have to put more work into it. We got to make it better. What a bad idea. I don't think it is, you know, the link circuit has a gimmick called memorandum. Decisions, please. Post in California. We don't have it yet. I don't like them. I don't like memorandum three, which I've seen. Some of them patient I've been involved here. And they're lousy opinions. You know, they're they're brushed off opinions. They don't thoroughly examine it, and they come to the wrong result. Sometimes, you know, what, our courts therefore, to provide justice to parties, and granted to provide more resources in court. But

Tim Kowal: 27:46

yeah, no, I agree with you completely. That's a good that's a good observation. That law is what the what the courts do, not just what they say, when they you know, someone I've heard commentators mentioned, the courts can cite to a law review article, they can they can cite to a law student spouting off his or her opinions in a law review article, they can cite to a blog post, but they cannot cite to what that very panel did a week ago and an unpublished opinion. And that just I agree with you on that man makes no sense to me. And

Myron Moskovitz: 28:21

think about example, where the court comes down some test for breach of contract tort or something. And it's it's a vague test, it's not a limit. Something you consider a number of factors, blah, blah, blah. So I was just like, Alright, what do you do? How do you use that to predict what the courts going to do next? The only way is to see what they do. Now, if you got a number of unpublished decisions where they apply that test, consistently one way or the other law that tells the public what they should be doing, and what you can't shake. That doesn't make sense to me.

Tim Kowal: 29:05

Right. The the topic of stare decisis and horizontal stare decisis is somewhat related to this, and we've talked about on this podcast and Myron, I'm sure you know about how in federal court you have horizontal starry decisis a panel is bound by what what other panels have done what it cannot do. Once a decision is made in the Ninth Circuit, it cannot be gainsaid until it's taken me whether until it's taken up either on bonk or by the United States Supreme Court. That's not the case. In the California appellate system, one District Court of Appeal is not bound by what another District Court of Appeal does. One panel is not even bound by what the panel did yesterday in a different opinion it can it can go completely 180 degrees from itself or from any other district court. And I wondered, you know, that suggests that it's that that the our District Courts of Appeal only care about the reasoning It will, like I mentioned before it, they can look to blog posts, they can look to law review articles, they only care about the reasoning. And if it only cares about the reasoning, then why does rule 8.1115 exists, you can cite the rantings of a law student law review article, or even a blogger. But you can't cite what that very panel did last week. If it wasn't an unpublished decision. I just think I guess it's just another way of saying I completely agree with you. It doesn't it doesn't make sense to me.

Myron Moskovitz: 30:29

You can cite some other state.

Tim Kowal: 30:34

Right, right. You know, I've I've asked this of Jeff a couple times now, but I wanted to ask this of you as well, it's this has been on my mind lately, statements of decision. Okay. I've seen multiple cases. And I'm not sure if this is the norm, but I have seen it happen more than a couple of times where an appellant will do everything right. On the statement of decision. Okay, they request the statement of decision, they object to omissions in the statement of decision. Trial Court still doesn't correct the omissions. the appellant takes it up on appeal, and the appeal says you're right. These were necessary findings. And the trial court forgot to make them. So we're going to reverse and give the trial court one more chance to make the omitted findings. And then once the court inevitably makes the findings that Doom, the appellant, the appellant can then take it up on appeal, and then we'll do the substantial evidence review. My thinking on this. I don't if this if your tracking with this so far is I'm wondering should I change my advice to clients and trial attorneys? Don't bother with the statement of decision, just assume all of the findings that are going to doom you are already implied in the court's judgment. And just get on with the substantial evidence review challenge the the findings on the on the record on the you know, on the deferential substantial evidence basis, because you're going to get there eventually statement of decision challenges. They might give you a Pyrrhic victory, but it's just going to lead to a second round of appeal.

Myron Moskovitz: 32:04

Well, I would never make the argument on appeal, that the statement of decision is defective in some technical way, because that just invites the appellate court to reverse and tell him fix it. You know, the trial judge already here doesn't like your client or your case. And what you said would happen to him is going to happen. I would never take that approach. I would attack the statement of decision subsequently. But no, I wouldn't do what used to be just simply not asked for it, because then the appellate court review is if there's any way to sustain what the trial court did at all, we're going to refer even if it's the way the trial court didn't know the purpose of this legislature telling the trial court say why you did it in a bench trial. The European inquisitorial system that's automatic. They do it every time. And the appellate court goes over that opinion carefully. And they can reverse there even credibility issues that align with the progestin. So I think that's a good idea. But trial lawyers, Holman, always urge them during the end of the case, if they're going to bring me into the room and as early as possible, well, I can have some effect on how the record set up and more and more later, as you're doing that, especially in substantial cases where there's a lot of money at stake, it's worthwhile for the client to bring me in. But I tell them that statement of decision, that's against them. Be very careful how you remember the goal, if it's a lousy statement of decision, if it's not well reasoned, it's got something's wrong. Ideally, you don't want to touch it, you want to stay that way. Because that gives me the best target to get reversed. I want to go up on the pill on a lousy trough within another boom. And if you write objections that tell him all the problems with it, if the lawyer on the other side, he writes, usually I'll do this instead of arguing about it. So I'm going to do one that deals with both these two actions, not to the point that you change the budget, fix it right. Now, the only caveat on that is there are certain objections if you don't make them your way. Right. So if the trial court left out and entire issue some defense, you got to tell them, You got to go. But if you made some other mistakes and the facts are off, leave him alone. Unless you think you can talk them out of it and change his mind. Now on the whole thing, which almost never happened, yeah, these losing trial lawyers think you're so good. I'm going to turn this guy around after mistake. I've never seen that out. Alright, so forget about fact, if it's a bad statement of association, that's good for me. All right.

Tim Kowal: 35:22

Got it. All right. Well, the last thing I wanted to ask you was that was about John Eisenberg. I assume you. You know, John, he recently announced his retirement following a long effort to get the courts to address a backlog of cases. And I wondered if you had any swan song that you plan for in the event that you might retire, whereas retirement not in the cards for you, you're gonna keep slugging away.

Myron Moskovitz: 35:46

I love you know, everybody has a different personality. I taught law for a long time. And I did my duty as a scholar, I wrote Lord, where articles and, and books, one of my articles was cited by the Supreme Court, I did all that, and I guess I'm pretty good at. But my heart was just stuff my heart sank. I just really enjoy dealing with appellate judges, trial lawyers, my colleagues, even opposing counsel to great variety of people, and said before I got somewhat of a fighter indicate. And this book I recently wrote strategies on appeal is it's very revealing about maybe, because it is the way I think about these things. It's literally about Friday sheets for wanting to feel all ethical, you know, I don't pull any stunts that are that are not allowed by the rules or anything like that. But there's a lot you can do. I mean, I guess I'm unusual in the sense that I've given a lot of thoughts on this and the appellate practice, but you know, how many lawyers that are listening trial, right? How to pick the jury how to cross examine the witness, all aspects of trial practice, there's very little of that appeals, mostly technical stuff, that there's some books written by judges that are really not that great, because books written by retired appellate judges mostly tell you how to make the copy. You know, don't don't worry, too much. Sorry, everything correctly, kind of thing. That's not what I'm into. I'm into how to win, how to how to make it happen. Just like all these trial words are, but I've been, that's why I love writing these columns. You know, the Daily Journal last, I wrote a few articles randomly called me retired from teaching, once you write a regular column, and I say how much you said, well, twice a month, and doing some quick arithmetic, you know, it's pretty for a year to come up with 24 columns. Now, I realize one of my books was about 20 chapters, I say, Well, yeah. Through a column, I can boil that down. And I think that'll work. But wait a minute, what do I do at the end of the year? And my editor says, Well, don't worry about it. Nobody lasts more than a year on this. Anyway, I've been down to six years. I keep coming up with new ideas. Now, granted, some of them are strictly about appeals. And my editor is in quite liberal and allowing me to stray from just appeals. You know, I wrote one article about my, my son's home schooling, tie that into teaching law, but it's really fun. You know, I used to write origin articles. So you know, 3040 pages with umpteen footnotes and took months, these columns I arrived in, you know, a few days, you know, a couple 1000 words, no footnotes, so I can say what

Tim Kowal: 39:02

are you gonna keep on winning ?

Myron Moskovitz: 39:04

I I really enjoyed exchange with lawyers around the state who happen to read my stuff.

Tim Kowal: 39:13

Yeah, well, I I've enjoyed this and I'm sure the other attorneys that you converse with enjoy it as well. So you're gonna your plan is to keep on winning by working on the statement of decision or rather the the statement of facts with an introduction that T's up the reader to what to look for in the statement of facts.

Myron Moskovitz: 39:30

I'm sorry, the other thing that goes with that, I'm still learning. Yeah, constantly learning things. Because, you know, that type of thing that you do, Jeff does and I do it's, it's dealing with uncertainty constantly. These appellate judges are human beings that have all human foibles and virtues, and in and I take only difficult cases, I don't take the easy ones. Rachele is predictable. And you don't know what the hell is gonna happen. Right? You do the best you can. And judges will come up with things you didn't think about. I like to think I've been around so long, I've seen everything. And I can think of everything. It's not true. I can't come up with angles on things that surprised me constantly. But I remember next time and try to anticipate, but that's part of what makes this fun and keeps me young, you know, gives me ideas for columns

Announcer: 40:35

After I think you said, is it 60 years you've been doing this, that

Myron Moskovitz: 40:41

it's been? Maybe

Announcer: 40:45

however long, it's been you said, You, you, you keep getting, you know, you're always surprised. So what's the most recent thing that happened? That said, said by God, I didn't think this could happen after all these years? And yet, here it is.

Myron Moskovitz: 40:59

Was it

Announcer: 41:02

or something or a lesson that you've learned in recent years that you would go back and tell yourself if you had a time machine?

Myron Moskovitz: 41:10

Well, example I did. I was consulting on a case for a big law firm, I won't mention the name and huge amount of money to borrow money suddenly big publication, my circuit, and the opposing counsel and very smart guy were very good, great. Now, my son is brief, was all about the law, how the trial judge or miss apply the law. And the opponent's group did that too, did a good job. They also called the CEO of the planet, the appellants company, I think, several groups. Right. And pick up I think they made the mistake of calling median and some other people when, after all agree, shred, big mistake, coalition before the reply brief. Alright. So the only thing was or anyone read the briefs, and the appellants, lawyers, this law firm called man says nothing about that accusation this guy was. And I told them, we had a moot court. First mark, order, did the moot court. He didn't mention it. And then afterwards, we had a feedback session. I said, I see you're being trolled. The other side calls your co thief. And you don't answer. And well, we're right on the wall. So well, you did a good job. asserted that former solicitor general individual bundle to that appellate court, and to sell it for one year without looking stupid. Alright. The real question is, which one? Do they want to maybe favor? The innocent 111? You better do something about this and roll and roll up condition. All right. You're gonna say first, the first thing you say out there is not a thief. And you guys have evidence to back it up. I just thought it was. And he did it. He didn't do it with economists. And he was part of the appeal. But I see that all the time. I see it all the time. But when I was younger, I represented far more work or poor people. And I was on the side of the agents. Alright. And I usually one, partly because of that. That's not true anymore. I take work crew, and I've had clients who are good guys. And I've had clients who are backups. Alright, if they're so bad, I don't take them because we're going to lose, but I always take that into account. And if I take a client who's a bad guy, I better have a pretty good argument for a lot of sets out. Yeah, yeah, bad guys are entitled to compliance with the law by the judge by the trial judge and things like that. I don't do criminal cases. But I sometimes use the analogy. Some guy was just committed, just convicted or first degree murder. Does that mean the judge can now throw out the sentencing guidelines and do whatever else he wants? No, no, this can kind of disguise entitled to due process sentencing. So thanks. add something else. If at all possible, you take it head on, you don't care. You don't pretend it's not there. If your client did something bad, or generally a bad guy, take it head on, and write no. Some some bad things. But he's entitled to the justice.

Tim Kowal: 45:28

Well, you mentioned earlier that one of the mistakes that attorneys make is that they failed to consider their audience and they failed to put themselves in the shoes of an appellate justice and how an appellate justice is going to absorb their case as different from a jury or a trial judge. And I was thinking about that when you told that story about the attorney who decided, well, I'm not going to raise this issue. I'm going to let this accusation go unanswered, because I'm just going to focus on the law. And they might be taken taking that idea to extremes of thinking that that appellate justices are like scholars who, who don't care about accusations, they only want to look at the law. No, they're they've they worked in trial courts to they have, they might have some fights still left in them. And then when they see an accusation, they expect there to be some answer to it. And if there's no answer, something's not sitting right with them, I suspect. So I think that's really what you're aiming

Myron Moskovitz: 46:19

for. Sometimes you go to work, or I know I do a lot of arguments. And I get to watch a lot too. Because sometimes at the bottom of the bottom of the calendar, you got to wait more. It's always fascinating. I see appellate judges sometimes get furious at the client to the lawyer. They're emotional. They pretend they're not, you know, they say, Oh, we don't want to hear Gary organized. That's not totally true. It's not totally true. I get affected by this stuff, too.

Announcer: 46:56

Well, my right, Moskovitz, I want to thank you for your time today, you've spent near an hour with us. And there's a lot of a lot of experience that you shared with us. And I know that there's a lot more on your publications, including strategies on appeal. And we'll put the link to that in the show notes. So our audience can take a look at that and maybe pick that up and get some of the insights that you've gleaned over your many, many decades working with with the former appellate justices and and in the task of persuading the appellate justices who are still sitting on our benches. So I want to thank you for sharing your insight with us today.

Myron Moskovitz: 47:29

Thanks, Tim. I really enjoyed it. You got a good program.

Announcer: 47:33

I appreciate it. All right, Jeff. Well, that's gonna wrap it up today.

Jeff Lewis: 47:38

Right. If you have suggestions for future episodes, please email us at Cal podcast@gmail.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal with preparing for trial.

Tim Kowal: 47:48

Alright, see you next time.

Announcer: 47:50

You have just listened to the California Appellate 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 at ca l podcast.com. That's a c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again