Announcer  0:00 
Music. 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, well

Tim Kowal  0:17 
and Jeff is absent today. I'm Tim Kowal, AS certified appellate specialists. Both Jeff and I face a lot of unusual problems that come up at trial and on appeal, and in this podcast, bringing you recent cases and guests, we expose you to the unusual. If you find this podcast helpful, please recommend it to a colleague. And as I mentioned, Jeff is tied up today in a settlement conference. Judge would not let him out, so I am left here solo to to abuse our guest today, who is Aaron Smith, with the formerly the Executive Director and CEO of the family violence appellate project. We're going to be talking about that the work of the family violence appellate project, and then in the second part of our conversation, we're going to move on to the court reporter shortage and the use of electronic recordings, which the LA Superior Court has recently blessed. But first, a little bit more about the family violence appellate project. It's the only nonprofit in California dedicated to providing legal assistance in appeals for free to survivors of domestic violence and gender based abuse. The family violent violence appellate project helps overturn court decisions that leaves survivors of their children at risk of further abuse. And in Erin's 11 years leading the family violence appellate project, she led the legal team to obtaining more than 50 published appellate decisions on domestic violence law that are now binding precedent statewide. And that's a topic I'm anxious to explore with you, Aaron, about how so many of these cases involving indigent, low income litigants are in such a shambles by the time they get to the appeal posture that I'm impressed that you're able to get so many of these not only turned around, but turned around in published decisions. So welcome to the podcast. Erin, thank you for joining us.

Erin Smith  2:05 
Hi, Tim, thanks so much for having me. I'm really happy to be here well, and

Tim Kowal  2:08 
before we get into to the nuts and bolts of your work with the family violence appellate project and what you're doing now, can you tell us a little bit about your path to the law? Did you have lawyers in your family, or did you have some other path and and then also some sometimes I combine that question with what TV or movie lawyer do you most identify with? So tell me a little bit about your path to the law. Yeah,

Erin Smith  2:32 
sure. My grandfather, on my mom's side was a lawyer, so I had a little bit of an exposure growing up to just seeing him at work and how passionate he was about it. He worked until the day he died at age 80. Never retired, just he loved it so much. But, you know, going through college, I wasn't entirely sure if that's what I wanted to do, but there was kind of an introduction to the law class the my very last semester of college that really just fired me up and made me really interested in the law. So, so after that, I decided to, you know, get a job in in a firm and see what it's all about. So I had was a paralegal in a law firm in Washington, DC, for a couple years, and then decided, yep, think I'm going to do it, and decided to apply to law school. Yeah, well,

Tim Kowal  3:21  
and from there, what took you to to family law, and then specifically, to to helping, to helping family law litigants in appeals and victims of abuse in appeals. And then finally, to, just to add a further complication to the mix indigent and low income appellate litigants? Yeah,

Erin Smith  3:42 
well, I always had a real interest in just public service in general. I was a public policy major. I knew that I would kind of give back to the community in some way. And then I also had a very strong interest in women's rights, children's rights, and so in law school, I really found a great way to combine those interests in domestic violence law. So when I took that course at Berkeley Law taught by Nancy lemon, again, it was kind of similar. It was it all just kind of came together and chilled for me, and I realized this is really what I want to do, and this is the perfect path to combine all my interests. Yeah,

Tim Kowal  4:16  
do you recall? Were there any formative cases for you that you know that that really helped, helped you solidify your decision to go into this area of law, or a particular fact pattern, that that propelled you in this direction? I

Erin Smith  4:31 
mean, I think just kind of the in the domestic violence world, it's really a typical case. It's someone who unfortunately has experienced abuse, who has a child, either with the abuser or not, and who really just needs protection and needs an avenue to safety and to peace. And so yeah, my some of my earlier days working through private law, I did a lot of pro bono cases, and it was. One of the first chances as a real junior lawyer to get into court and try a case too, which was a great opportunity, but I represented a survivor whose abuser was quite scary and was able to prevent present evidence and got her the maximum restraining order duration of a five year restraining order. And it was, it's just life changing for her and for many survivors who are able to finally get the protection that they need. Yeah,

Tim Kowal  5:28  
and why appeals? Did you start out doing work directly in the in the family courts, and then decide that there was a an unmet need and the appeals, or do you have a special passion for appeals? What led you to appeals specifically?

Erin Smith  5:40 
Well, both I think, I think that the trial lawyer life was not the best fit for just my personal preference, so I kind of wanted something that wouldn't hold me up in settlement conferences, like Jeff today. You know, you just have absolutely no control over your schedule, and it's a very important but very kind of intense style of practice. So it turned out not to be the best fit for me. So I was looking for another way to use my law degree at that time, and then realized, along with my co founders of family violence appellate project, that there was this huge gap that needed to be filled in the legal services industry, which I think we're going to talk about later, no one was doing appeals of of family law domestic violence cases. And so, you know, to your your question too about why low income full you know, those are the folks who can't hire private family law lawyers to handle their case or to appeal their case. So if you're, you know, forget about indigent like even just middle class folks can't possibly afford private attorneys at every stage in the process. So there were just tons and tons of people who really needed safety support, like I was talking about earlier, who did not, could not afford a lawyer in the trial court, which makes it much more likely you're going to lose at trial and then need to appeal. And then they had no way to appeal because they couldn't afford a lawyer there either. And the legal services, you know, the legal services providers in the state, at the time, there was nowhere to go. There's no organization that you could go to to represent you for free with a free lawyer to appeal your case. So we just realized that was a huge gap in the legal services field, and we just decided to fill it. And so we started a brand new 501, c3, nonprofit from scratch, and built it up over, you know, a decade, and it's now been open over 12 years, and yeah, really proud of the work we've been able to do. Yeah,

Tim Kowal  7:43  
and how do you and this is going to be self interested as an appellate attorney, but how did the family violence appellate project sell its services to people who thought that? Well, I mean, if these people are getting, you know, they have access to some kind of representation in the family court, and they got their one shot, they got their day in court, and if it didn't go so well, then why don't we just leave it there? What? How do you sell the need for pursuing their rights on appeal? How many of these cases are really so how many of the results in the family court are so unjust that they really compel a need to take it up on appeal? It's

Erin Smith  8:20 
not a hard sell at all. I think people really understand it. There are, unfortunately, especially this area of family law and domestic violence, where there's so many self represented litigants, there are a lot of unjust outcomes. And there was not, and it still is not hard to convince people at all that there is a need to appeal these cases the minute, the second that we kind of conceived of this idea and started pitching it to people, everyone just got it instantaneously. They said, Oh my gosh. Why hasn't anyone done that before? Of course, that needs to be done. Please go do it.

Tim Kowal  8:56 
Can you? I'm putting you on the spot here, but, but maybe we talked about you've got some 50 published opinions under the Family Violence appellate projects belt. Can you maybe rattle off a few of them that that have really changed how these family violence cases are going to go forward? What are some of the common errors that these family judges were making that these published decisions now are going to help correct in the future, not only for Family Violence appellate project clients, but for all Californians. Yeah,

Erin Smith  9:27 
there are, I mean, too many to cover, even in our in our one hour together, or whatever we have together. But I think two of the biggest areas are child custody. So the legislature has set up the domestic violence custody statute to say that if there is a finding of domestic violence that the judge is supposed to apply a rebuttable presumption that the person who committed the abuse does not get any form of custody, legal custody or physical custody. And then the person who committed the abuse can rebut the presumption by showing, well, I've taken a batteries intervention course, and circumstances have changed, and here's why it's not going to happen in the future. And then the judge is supposed to weigh all of these things we just found, especially in the beginning when when there was basically no published case law on that statute at all. It's Family Code Section 3044, that the judges just weren't applying the presumption. They just weren't skipping that step entirely and kind of defaulting to what we see as a very common kind of misconception that it's actually good for kids to spend time with both parents, which on some level, I can kind of understand as a parent myself, that kind of human inclination. But that is not true in a domestic violence situation. It is not in a child's best interest to spend time with an abusive parent. In fact, it's very detrimental to the child's best interest. So I think, yeah, the judges were just skipping over that. And that continues, even with all the published case law that we have gotten on that point, continues to be an area, a real struggle. I think that that is hard for judges to apply faithfully to the way the legislature intended it. Yeah, and I think a second area that I'd point out is just the nature of domestic violence itself. I think before there was a lot of published case law, a lot of folks might have thought only physical abuse is domestic violence, but actually it's a lot more than that. It's really about power and control over someone, and there can be a lot of different tools that can be used to commit domestic violence and exert power and control over someone. So a lot of our cases flush that out. And again, the legislature is right on point, on on this. On this one, the definition of abuse in the family code is very broad. It includes lots of things, harassment and disturbing the peace and threats and all sorts of things that are not physical. It's in in the code, you know, but we just found again, the judges not applying it faithfully to the legislature's intent. Yeah, and

Tim Kowal  12:11  
our What about the other cases where the maybe the law was unclear, or just the just most judges were maybe unfamiliar. There was just kind of a momentum of misunderstanding or misapplication of the law. What about cases where judges are just their their findings on the evidence or credibility determinations that are you able to take up? Many of those? Because there are a lot of people. I mean, every every attorney gets those kinds of potential client calls, especially appellate attorneys get those calls where the judge was just really biased, and even though there was overwhelming evidence in favor of of the person, the judge just ruled against them, I assume you have a screening mechanism that probably turns away those just the way, the same way that most upheld attorneys have to do.

Erin Smith  13:02 
Yeah, I mean, I do think that it's actually, I think, the rare case where you can't find something in the record, if you have a record, which I know we're going to be taught, if we're going to be talking about, where you can't find some place that the judge actually revealed where they went astray, aside from a credibility you know, straight up, credibility determination, many, many times you can find the place where the judge, you know, went down the wrong path, didn't apply a presumption right, you know, looked at the issues in the wrong order, or required you know something that an additional element that the statute doesn't require, like Some judges, is a pretty common mistake to require either explicitly or implicitly in the reasoning again, where you need to see the record and see what the judge what the judge is saying out loud, can reveal a lot about their reasoning. That requiring the survivor of domestic violence to essentially prove that it's going to happen again, like you know, which you can't it's impossible to prove the future, so that, that's another common mistake that you can kind of unearth from the record. I mean, you're right if, if the judge doesn't reveal on the record the oral record or the written record, you know, any error in the in the law that was applied and says, I am making a credibility determination that I believe Person A over Person B. There's not a lot that you can do as an appellate lawyer to try to overturn that, but that's actually the rare case. We found a lot of legal errors, unfortunately in those records when we had them. And

Tim Kowal  14:41 
do you ask your potential clients who the judge was. And sometimes, when you learn who the judge was, you say, Ah, I get it. Now,

Erin Smith  14:49 
I have to admit, yes, there are a few that are sort of repeat offenders. Yeah,

Tim Kowal  14:57  
they're getting frequent flyer miles. Yeah. Of appeal. And how do you, I mean, you talked about this touch on this briefly, when there's, you know, there's a lack of a record, or you're dealing with indigent clients, or you mentioned that, that even if they're not indigent, even middle class people have a hard time getting good, you know, paying for good representation by the time these cases come up on appeal, the success or failure of an appeal relies a lot on how well the case was put together in the in the trial court and the state of the record. How are you able to get so many successful appeals and published decisions when you know, given the nature of your clientele who are coming to you probably, I assume you're dealing with a lot of cases where the record and the proceedings below are just a mess.

Erin Smith  15:46  
Yeah. I mean, that is, that is true. It's also a reason why the reporter's transcript or the verbatim record of what happened in court is absolutely essential, because these do not tend to be document heavy cases. So sometimes there might be, you know, a document, a potential client might come to us and say, this document proves whatever, but I didn't introduce it in trial. And, of course, as an appellate lawyer, you know, if it wasn't in evidence or in the in the record before the trial judge, you can't introduce it on the appeal. So sometimes there's a thing, like an incident like that, where there's nothing you can do, but more often than not, you know, it's it's really oral testimony. It's the written petition where the for a restraining order, for example, where the survivor of abuse will explain in writing the incidents that led them to seek the make the request for protection, and so there aren't as many places where the record can go totally awry as you might think, except for the ones where there's no verbatim record. I mean, then it's just because, like I said, these cases don't have a lot of documents. Typically, sometimes the judges aren't even writing opinions. You just get a minute order the or the verbatim record is absolutely essential,

Tim Kowal  17:02 
is a settled statement ever a possible substitute in

Erin Smith  17:06 
a word? No, we tried. We tried that once, and it's just it doesn't work. And as an appellate lawyer, I'm sure I don't need to, you know, tell you all the all the reasons why. But no,

Tim Kowal  17:21  
yeah, yeah. I mean, if it's if it's if the outcome is heavily determinative based on the content of the testimony, then all you can put in the in the settled statement is that, you know, witness a testified about these topics, but you really can't get argumentative about it, and you can't talk about, you know, tone and inflections and they were rolling their eyes, or they were being shifty in their demeanor, and so the credibility determinations are going to be invulnerable anyway. So yeah.

Erin Smith  17:50 
And the other, the other structural problem in family law and domestic violence and other areas of law where you have a lot of self represented litigants is that it's you can't try your own case without a lawyer, as a non lawyer, and try to memorize everything or take notes somehow of what's happening, because you know that in the future, you might need to do a settled statement. What's that? No one's even knows what that is. I mean. And even if you did, it's not humanly possible to do all of these functions at once, even for a trained lawyer, let alone someone who is representing themselves with no legal training. So it, it's completely impossible for self, self represented litigants, yeah,

Tim Kowal  18:33  
if you I sometimes wondered if, if you were able to take your, you know, take your phone into court and have one of these, you know, the AI note taking apps that could generate a bullet list of everything that happened during your meeting or during a trial proceeding, and maybe use that to supplement the ability to to prepare a more comprehensive settled statement, if that might change the analysis somewhat. I mean, it's got, it's got to get a little bit closer. I think there's a, there's a huge there's a, there's a huge gap, obviously, in between a settled statement and a verbatim record. But I wonder if, with the use of technology, and we'll talk about that in the in a later part of our discussion that we'll publish in the next episode. But, but I wonder just your preliminary thoughts on whether AI note taking and electronic recordings that could be turned into a more comprehensive settled statement could close the gap a bit.

Erin Smith  19:26  
Well, if you're going to electronically record, then you should just turn that into the transcript. I mean, there's absolutely no reason to then use a settled statement, because I think everyone, including the California Supreme Court, has recognized that settled statements are inferior to a verbatim transcript. So if you're electronically recording, I don't know why you would ever do a settled statement, but there are still structural problems even in this scenario. And by the way, you're assuming a self represented litigant who has access to technology, familiarity with AI, enough to know how to do this. Permission. Question from whatever courthouse that they're going to to bring a recording device in to the courtroom, which I don't think is universal, the foresight to know that they're going to need to maybe appeal, and know what a settled statement. I mean, there's a lot of assumption. I appreciate your question, and like, there's a lot of you know, assumptions that go into assuming that that could could ever work for most people, and I think it still couldn't. But even if it could right, if you and I were representing our ourselves and knew we were going to need to have a settled statement, because there wasn't going to be a court reporter, we might try to seek permission to bring in our phone and record it. I don't know if that would be granted, but I mean, there are still structural problems in domestic violence where you have a power differential agreeing, you know, the agreed statement approach is completely absurd, and you can't agree with, you know, your abuser who has power over you, and the settled statement approach has the structural problem of, I mean, the judge's incentive, the judge is ultimately the one who settles the statement. Judge's memory is faulty. The judges aren't allowed to make recordings to refresh their recollection of what happened. So you have faulty memory. And also, you know, I always assume the best intentions of judges, but the incentive I would have to think at least deep in the back of their mind would be to sort of insulate the decision from reversible error. What's in it for the judge? She'd be like, oh, yeah, you're right. I really did apply that law wrong. Please send it up and get a published reversal on my name. I mean, no judge wants that. Yeah, yeah,

Tim Kowal  21:40 
yeah. And to that point I have, I have heard from a fellow appellate attorney who prepared a settled statement, you know, checked all the boxes, did all the right things, and the judge just refused to to sign off on it, even though the judge has a duty to sign off on something of a settled statement. And then, but, but still, because of the judge's refusal, the appellant had nothing to go off of. That's interesting. And so, I mean, you could file a writ petition, but now you know, if you're already, you know, a normal litigant who probably couldn't have, couldn't afford the reporter's transcript in the first place. They're, they're getting up into the Court of Appeal on fumes anyway, and now they also have to file a writ petition in order just to get the distant second best form of the oral record in the form of a settled statement. You know, we're talking about just it's practically impossible. But the reason we're talking about the settled statement, of course, is because, in anticipation of the next part of our discussion, where we talk about the LA Superior Court's recent general order that's going to allow electronic recordings. And we want to explore a little bit more how those can be used, if they can be used, actually, to create a verbatim record in the form of a of a certified reporter's transcript, or whether there is, there's some other statutes and rules that might prevent that, and maybe we would be left having to consider using that electronic recording for purposes of creating the settled statement, and what the limitations would be there, because I've dealt with another, with other people who have said, Oh, I did submit a settled statement. It's like 100 pages long. I put everything in there. We can't do that. You can have a verbatim record, or you can have a settled statement, but you can't put the verbatim into the settled statement. Yeah,

Erin Smith  23:26  
that seems again, I mean that the way this ends up playing out in practice is is truly absurd in in many instances, and examples like that that just show how wacky, frankly, this system is. Yeah,

Tim Kowal  23:40  
well, so, so back to the work of the family violence appellate project, who helps people without the economic means to otherwise finance their own appeals. How do we other normal private practice attorneys help these types of clients? Should we just be forwarding them off to the family violence appellate project or there, what would you recommend? What do you want the rest of us attorneys to know about fielding calls from the type of people that the that the project helps?

Erin Smith  24:11  
Yeah, thanks for asking that. I mean, if, if any of your listeners do get a call from a survivor of domestic violence or gender based abuse who needs an appeal, definitely refer them to family violence appellate project, if their case was in California, if it wasn't, there's DV leap as an organization based in Washington, DC that sometimes takes cases in other states. You can volunteer. Fvaps, family violence appellate projects. Business model is built with pro bono volunteers. We really are able to take and litigate so many more cases. I don't know what the number many, many, many more cases using pro bono volunteers than we could using staff, staff resources alone. There also is, I'm on California lawyers associations committee on appellate courts have been on for a number. Years and a year or two ago, they put together a list of pro bono opportunities for appellate lawyers, recognizing that there is an interest of appellate lawyers to do more pro bono work and give back, but a lack of information of where to go or how to do that. So I believe on the California Lawyers Association website, there should be a link to appellate pro bono opportunities, and what kind

Tim Kowal  25:23  
of, what kind of skills and experiences will, will the attorneys who, who do volunteer and do pro bono work with the family violence appellate Project Learn and take away is the is the project doing work adjusting the Court of Appeal, or are they also helping in develop the record in the family court really

Erin Smith  25:40  
right now, I think based on just the capacity that the organization has, it's just helping at the appellate level, not doing kind of advice and counsel work. Of you know how to lay your record at trial, although I will say they do do a lot of that with with legal aid providers. So the attorneys at kind of the the trial level, legal aid providers up here in the Bay Area, that might be Bay Area Legal Aid down near you, it might be Harriet view, high Center for Family Law. You know a number of different organizations spread throughout the state. So they do support those trial lawyers to do that, but not clients directly. So if you have, you know, an individual who's a who's the client, the litigant, they can help at the appellate stage, and the skills that the pro bono lawyers will get are, you know, bread and butter appellate skills, research, writing, being able to think strategically and at a high level about the legal errors and work with the staff At family violence appellate project to understand the policy implications. They're really expert at all legislative history, all the public policies that the legislature has articulated behind the statutes that exist. And being able to present each case in that context, I think, is often really, really helpful. And then oral argument. Who doesn't love to go to oral argument, you know? So we always give our pro bono lawyers the opportunity to present that argument well. And Aaron,

Tim Kowal  27:09 
now you are you have moved on to the California judge's bench. Book on civil proceedings. Your editor there. Tell me about that switch and what that work is like.

Erin Smith  27:18  
Yeah. So as much as I absolutely loved, as you can tell, I feel so passionately about the mission of family violence appellate project. After 11 years doing it, I just kind of got to the point where I realized I was ready for something new. I wanted to take on a new challenge. Honestly, running a nonprofit is very intense, and so I also kind of wanted to dial it down a notch or two or three. And so I this opportunity came up, and I thought it would be a really good fit for me. It's research and writing, which is what I love to do. As an appellate lawyer, I work with a panel of judicial consultants who work with me a few times for each volume, to give advice on the changes in the law or the way I'm writing things up in the book, and also to contribute practice tips for other judges based on their everyday, real world experience on the bench. So that's a lot of fun. It's, you know, it's like me and my computer most days. And, you know, frankly, it's, I kind of love it. It's just, it's a very big change, which I was just ready for a change. And so I'm, I'm loving it's really interesting. I'm learning all sorts of nooks and crannies of civil procedure that I never even knew, and I'm really having a lot of fun. Yeah, well,

Tim Kowal  28:39  
and that's, that is more than half of what appellate attorneys do is research and writing. But do you do you miss going to court? Not really.

Erin Smith  28:48  
I mean, as you know, appellate lawyers don't go to court very much, not a lot. Yeah. I mean, I did enjoy our oral argument was, frankly, always my favorite part of the appellate process, and I loved going and cheering on our pro bono counsel and working with them to prepare doing the we did moot court for them to prepare for oral argument. That was always my favorite thing to do. So I, if I'm honest, I do, I do miss that. Yeah,

Tim Kowal  29:12 
okay, well, I'm gonna, we're gonna pause our discussion here. I'm gonna entice our listeners to tune in to the next episode, because we're going to dive more into the to the topic that we briefly discussed earlier, which is the electronic recording order from the LA Superior Court and and how that affects the court reporter shortage, and whether that LA Superior Court order is going to solve the problem, or whether there are more wrinkles left to be ironed out. So stay tuned for that. Tune in next week for our the second part of our conversation with Aaron Smith about that. Until then, if you have other suggestions for episodes or guests that we should bring on to the podcast, please email us at info, at Cal podcast.com, and we will see you next time

Announcer  29:54  
you have just listened to the California appellate podcast, a discussion of timely trial. And the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at c a l podcast.com that's c a l podcast.com thanks to Jonathan Caro for our intro. Music, thank you for listening and please join us again.