Presenter: 0:00

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

Jeff Lewis: 0:29

Welcome, everyone. I am Jeff Lewis.

Tim Kowal: 0:31

And I'm Tim Kowal. Both Jeff and I are certified appellate specialists. And as uncertified podcast hosts, we try to find that sweet spot in between esoteric, nerdy legal issues and practical legal issues that will make both our appellate listeners and our trial attorney listeners happy. If you find this podcast helpful, please recommend it to a colleague.

Jeff Lewis: 0:52

Yeah, if you find it helpful, also give us a high rating on Apple Podcasts, please.

Tim Kowal: 0:57

All right, Jeff, continue to try and find that sweet spot in U.S. Supreme Court. news. I saw this interesting headline from Politico concerning the fallout or the consequences of the recent injunction on nationwide injunctions. We'll talk about that, I thought. And then there's some news out of the California Supreme Court and R&D contractors about whether a co-defendant can oppose their other co-defendants' motion for summary judgment, with the answer being yes, kind of surprisingly. I had some opinions on the ongoing litigation in the man versus Stein litigation. It's not a California case. It's a DC Superior Court and now Court of Appeals case, but it's on a very public issue. And I wanted to get your take, Jeff, on why the anti-SLAPP statute did not filter that one out, because it seemed like if there was ever a public issue, it would be that case as an outgrowth of the ClimateGate emails from some 10, 15 years ago. And then we'll have a few other tidbits, but let's get right into the Politico piece talking about the Trump versus Casa ban on nationwide injunctions. Politico's reporting that following that case, which abolished nationwide injunctions, judges are already exploring workarounds. So if you're wondering, well, if district judges cannot issue nationwide injunctions, then how can they possibly afford complete relief? Well, there are already some possibilities on the table here. There are numerous judges already that have found an exception in the APA, the Administrative Procedures Act, that allows, arguably allows, courts to enjoin agency actions. U.S. District Judge Randolph Moss issued a rejection of the president's effort to ban asylum for both southern border crossers with nationwide effect. Judge Moss emphasized that his decision was not a verboten nationwide injunction. Instead, it was authorized under the Administrative Procedure Act, which permits courts to set aside federal agency actions that violate the law. And that includes rules regulations, and memos laying out new procedures. Under the APA, that may be a loophole when the executive is acting through one of its many alphabet soup agencies. Similarly, U.S. District Judge John Bates ordered federal health officials to restore hundreds of webpages containing gender-related data that agency officials had taken down pursuant to a Trump executive order cracking down on gender ideology. Judge Bates emphasized, again, that the APA allows courts to effectively undo unjustified agency action. And in another case, also deploying that APA rule to effectively get a... It's at least an agency-wide or an executive branch-wide injunction in a case... involving an expansive ruling restoring health research grants. Again, the judge wrote, public officials in their haste to appease the executive simply moved too fast and broke things, said U.S. District Judge William Young. What do you think, Jeff? Do you have an opinion on the use of the APA to issue, at least agency-wide, executive branch-wide injunctions?

Jeff Lewis: 4:16

Yeah, I don't have a substantive thought. I have a meta-ironical thought in the sense that the right continually used the APA to thwart Biden and health restrictions during the COVID lockdown. The APA was cited with... some success to strike down lockdown procedures and that kind of thing. So it's just ironic that now the left can turn to the APA as a way to thwart President Trump. As long as there are expansive executive orders, there's going to be efforts by creative lawyers to file lawsuits to challenge these orders. So I'm not surprised that the APA is being used in this manner.

Tim Kowal: 4:57

Yeah, it doesn't really surprise me either. I think that these injunctions are just on the president and on the executive branch of which these agencies are a part. So that doesn't strike me. That's why I kind of halted when I at the term nationwide injunction. It didn't feel to me like quite a nationwide injunction. It's just an injunction against the executive branch.

Jeff Lewis: 5:19

Yeah, yeah. It doesn't seem apt there. You know, and in the Supreme Court decision, discarded the usage of the word nationwide injunctions in favor of the phrase universal injunctions to refer not so much to geography and more to the parties or scope of the order.

Tim Kowal: 5:37

Yeah, what did you say, Jeff? Who coined... That turn, changing it from nationwide injunctions to universal injunctions? Well, it was the

Jeff Lewis: 5:48

majority opinion. I think it was Barrett that wrote the majority opinion, if I recall correctly.

Tim Kowal: 5:52

I see. Okay. I guess that is technically more inclusive because... The injunctions may include executive acts outside the sphere of the nation and into international affairs, and even the beyond to the extent of NASA and other. So I guess it could literally be nationwide injunctions.

Jeff Lewis: 6:13

Yeah.

Tim Kowal: 6:13

And then, of course, another category of actions that can be used to procedure that can be used to rein in government action would be class actions, which was explicitly discussed in the Trump versus Casa majority opinion that was That is the official preferred method of getting a universal injunction, if such is to be had, is through the normal class action procedure. So in the birthright citizenship cases, for example, other plaintiffs have begun to refashion their complaints as class action cases. And then There's just another, I don't have a label for these other types because I think the federal courts are casting about a bit and even asking for guidance in how to fashion their relief. For example, the Ninth Circuit is re-examining a nationwide ruling requiring the administration to continue processing refugee admissions. So the court wonders, can the court provide meaningful relief with a remedy that applies less than nationally? The Ninth Circuit is also evaluating a nationwide ruling stopping the president's ban on transgender people serving in the military. The administration, on the one hand, says it has to be significantly narrowed under the Trump versus Casa holding, but plaintiffs say that, quote, the effectiveness of their military service would be undermined if they are, quote, forced to serve only as exceptions to a policy that officially declares them categorically unfit, end quote. So, We're not quite sure how the court is going to deal with that situation. And then in another case, Judge Brian Murphy wants advice on how to apply the Supreme Court's injunction ruling to a pending case relating to the Pentagon slashing of funding for research. So still a lot of question marks, but the Administrative Procedures Act seems like an interesting way, or I guess it's Administrative Procedure Act, even though it's a It's a whole nest of procedures, plural. It's just called the Administrative Procedure Act, singular. But the APA and class actions and then maybe some other procedures will be innovated in the near future. Who knows? We'll bookmark that space.

Jeff Lewis: 8:27

Yeah, and I'm still waiting to see as a result of this new class action process to get around this ruling by Justice Barrett. whether or not we'll start seeing orders certifying or orders denying class certification start creeping up on the shadow docket.

Tim Kowal: 8:46

Okay, let's move to our own state Supreme Court, Jeff. There's kind of an interesting ruling in R&D Contractors v. Superior Court. This case involved a wrongful death, construction death and injuries case involving multiple defendant contractors. One of the defendant contractors filed an MSJ to foreclose their liability. And for whatever reason, it's not clear in the opinion, the plaintiff didn't oppose that particular defendant's motion for summary judgment. But the other defendant said, whoa, whoa, whoa, we can't let you get out of the case because you are definitely more liable than us. So they decided to oppose their co-defendants, MSJ. And the question before the California Supreme Court is, And they do that. They're not technically, they're certainly not the plaintiff, but they do seem to have some sort of interest. And that's what the Supreme Court concluded as well. The answer is yes, co-defendants can oppose a motion for summary judgment. brought by a co-defendant. So if the plaintiff truly, plaintiff here even filed a notice of non-opposition. But if there is a, I forget what the standard was, but it was the co-defendants have a material interest in opposing the motion for summary judgment, then they may oppose. But left unanswered were related questions that if the plaintiff truly is uninterested in keeping that defendant in the case, Then what's, if not a summary judgment motion, then by some other means, like if the defendant serves request for admission, admit that I'm not liable. You know, did the co-defendants have some interest in opposing or preventing the plaintiff from answering, from admitting that RFA? Or if the plaintiff decides not to pursue their claims or not to rebut the defenses of that particular defendant, how... but what is the extent to which the other co-defendants can continue asserting the plaintiff's case against that other co-defendant?

Jeff Lewis: 10:52

Yeah, or by extension of this logic, maybe one defendant could prevent a plaintiff from entering in a request for dismissal of another party, I mean, of a claim as to another party. It seems to me there's some indemnity issues that could have reached the same result here, meaning the defendant who truly didn't want this MSJ granted could have achieved the same result by asserting via cross-complaint a claim for indemnity against the party who was going to get out on MSJ. But it is kind of a counterintuitive result, and it was interesting the court took us up on a petition for a mandate as opposed to an appeal at the end of the case.

Tim Kowal: 11:37

Yeah, it does seem like there ought to be other– another procedural vehicle to get there. Does a motion for good faith settlement come in there? But I guess if the plaintiff and the defendant are not actually settling, I don't know if there's just a strategically, a strategic, is there an arm's length relationship or a less than arm's length relationship that says, well, I'm going to sue you because you're needed for a complete, you know, to complete joinder of all the defendants. But I'm not really interested in going against you. So why don't you just file an MSJ and I won't oppose. And that way I've done my duty as a plaintiff to name all of the necessary and indispensable parties. But then you can quietly sneak out through the vehicle of an MSJ that's unopposed. So I guess this holding of the Supreme Court prevents that method, if that was in fact going on, which I have no basis to believe. It's just a hypothetical, but it's interesting. If there's some of our listeners who want to elucidate our other listeners about what might be going on in these types of situations, and if they are more common than I was previously aware, then please email us. Yeah. Okay, Jeff, I wanted to talk about this post-trial diagnosis. decision in the Mann v. National Review and Mark Stein case. It's been going on for over a dozen years, Jeff, and I had been writing about this, but I missed the order, the post-judgment order that came down back in March, 2025. What happened in the trial in this case, it's a defamation lawsuit brought by Michael Mann. Dr. Michael Mann is a client scientist. A lot of his emails were implicated in the ClimateGate scandal out of University of East Anglia Climate Research Unit. Many years ago, what is it, about 15 years ago, he came up with what is called the... the quote unquote trick to hide the decline. There's been kind of an open secret among climate scientists that despite all the other evidence of carbon emissions that create global climate change, there has been a 10 or 15 year global climate temperature decline. And that's created kind of a problem for messaging for the climate change agenda, so to speak. And Michael Mann came up with what was called a trick, as referred to as a trick in some of the ClimateGate emails that showed a way to interpret some of the global client climate data, temperature data to show a spike in the 20th century. And that's been used in a lot of materials. And after the fallout from ClimateGate, there were a lot of people who started calling that a fraud and manipulation. And there was an investigation done by Dr. Mann's university, the Penn State University, which also had a previous investigation scandal with a with its coach, Coach Sandusky, who was previously cleared through the Penn State investigation of any molestation of kids in its sports program. And then later he was tried and convicted of molestation. And so there was... A lot of speculation that the subsequent Penn State investigation of Dr. Mann that cleared him of any allegations of data manipulation was likewise not to be trusted. And Dr. Mann sued National Review and Mark Stein and a science blogger Rand Simberg for making those allegations against him and calling his hockey stick graph a fraud. I was surprised, first of all, that Those claims did not go away under the anti-SLAPP statute. District of Columbia has an anti-SLAPP statute similar to California's anti-SLAPP statute. It doesn't have quite the robust protections as California's. It doesn't have an automatic right to sue, denials of anti-SLAPP motions, even though the case did go up on appeal anyway. But after many years of and appeals on the anti-SLAPP issue. It did go forward to trial. And the jury came back with a finding of the allegations of fraud against Dr. Mann were defamation. They resulted in nominal damages of $1. And they assessed punitive damages against Mark Stein of $1 million. And I believe punitive damages against Rand Simberg of... I think it was $5,000 or maybe it was $10,000. At the post trial, post judgment motions, the trial court denied most of the motions, except it agreed that the damages were excessive because under the BMW versus Gore case, it exceeded the nine times multiplier. There is an exception in the case of nominal damages, but it can't get up as high as a million to one. So the million to one punitive damages award had to come down. It brought down to $5,000. And then I think the Simberg punitive damages was brought down to something like $1,000. So altogether, Dr. Mann achieved a result of total damages of $6,002. After all the litigation expenses, he got hit with a discovery sanction of $9,000. So not a win, not a monetary win, certainly for Dr. Mann. But I had a couple of takeaways here, Jeff. that anti-SLAPP obviously is, the purpose of the anti-SLAPP statute is to protect speech on public issues. And ClimateGate was among the most far reaching and consequential scandals of the past 20 years. If the anti-SLAPP statutes do not protect commentary on ClimateGate, then what good is it? I wondered if courts are, they might be treating anti-SLAPP very seriously as a very serious protection for, for kind of routine, inconsequential issues. They're quote-unquote public issues, but no one really cares which way they come out. But on climate science and orthodoxy concerning what to do about global warming or climate change, we take those too deadly serious and we don't want to give free speech too much of a free pass there. And I wonder if the courts treat it a little bit differently. And that's how we go. Because I just don't imagine any result any defamation case coming out like this, where the evidence was quite thin, actually. The defendants had expert witnesses saying that, yeah, it's pretty well known that there's a lot of suspicion about the kind of conclusions and the kind of tricks and techniques that are being used to create the graphs that are at issue in these statements. And how can you find that there is recklessness and malice when the conclusions are backed by both court approved scientists who opined as experts at trial and by other reputable experts whose emails were part of the proceedings. I just don't reimagine any defamation case being successful except when it is to defend something like orthodox climate science in the Superior Court of District of Columbia.

Jeff Lewis: 19:33

Well, first of all, I'm going to object. That question's leading, Tim. And I'll sustain my own objection. But it sounds like the gist of what you're saying is maybe the anti-SLAPP law failed Dr. Mann.

Tim Kowal: 19:42

And I'm going to

Jeff Lewis: 19:43

say that—

Tim Kowal: 19:44

Failed Dr. Mann? Or the

Jeff Lewis: 19:46

defendants? The defendants, excuse me. The defendants. I'm going to say that the purpose of the anti-SLAPP law is not to get cases dismissed quickly, but to get cases elevated to a judge's attention early and have an early testing of the evidence and only allow the case to proceed past that early testing if there's a prima facie case of, in this case, malice. When I'm litigating defamation cases, when I win anti-slap motions, it's because plaintiff has zero evidence of malice, as opposed to a smidgen. And that seems like kind of an unfair distinction, but I think it's an important distinction to allow. Some defamation cases should be allowed to proceed if there is evidence. fact question or a reasonable question when you get to the prong two analysis. So, so long as the defendants here got their day in court, got to cut the line, got to put a freeze on discovery, got an early testing of the evidence, I'm going to say the First Amendment won and the anti-SLAPP law's purposes were achieved by allowing that early testing of evidence.

Tim Kowal: 20:56

And if there's only nominal damages here, such that the jury could not find that the plaintiff was harmed in any way other than, well, you can get nominal damages in defamation. Are nominal damages in a defamation, is that enough in a showing on prong two of the anti-SLAPP? Well, I can't prove damages, but they're really bad. The defendants are really bad guys, so I should get at least nominal damages and then be able to proceed to punitives.

Jeff Lewis: 21:25

Yeah. I mean, let me say this. I hope this doesn't get me or you sued. I'm going to talk about a case I had involving a notorious horse trainer, Bob Baffert. who is alleged in the media in the past to have used drugs that led to the death of horses raced in the Kentucky Derby. He is one of the most successful horse trainers of all time. He's made a lot of money from training horses. I had litigation involving defamation where he brought a defamation claim, and all he had were nominal damages. He didn't have any actual damages because he made so much money, and he tried to sue one of my clients who had sent some mean tweets about him. So I have real-life experience with cases squeaking by the anti-SLAPP law on the thread of defamation per se, nominal damages, even not only are there no actual damages, but you can show if somebody's financial position has improved post-defamation. It's a frustrating position to be in when you're the defendant facing such a plaintiff.

Tim Kowal: 22:26

Yeah. Apparently, the presentation of damages in the Dr. Mann case involved defamation. An attempt at showing that he lost grants, but it turned out that his grant funding continued to go up despite the alleged defamatory statements. And his only other evidence of being damaged was emotional distress, literally because at an outing to a neighborhood grocery store, an older man looked at him and gave him a mean look. And he ascribed that to the defamatory statements. Yeah. Apparently the jury didn't buy that. Okay, well, we'll keep posting on that. I remain, my prediction in this case is that the defamation finding will be reverse because I just don't see recklessness or malice given that these statements are corroborated by other experts, including an expert witness who was qualified to testify at trial. And if you're an expert, testified to qualify is, qualified to testify at trial, that means the judge has found you to be reputable enough and your statement's credible enough for the jury to believe. And if the judge has found that a reasonable juror can believe it, why can't the defendant believe it too?

Jeff Lewis: 23:46

Yeah, but the evidence on that point, I'm certain, I don't know, but I am certain was not uncontradicted at the slap stage, similar to an MSJ stage. Just because one side has admitted admissible evidence on a point, you can't make credibility determinations that determine an outcome of a case and deprive a plaintiff of their cause of action at that early juncture. I mean, those are cases where the right to access to the court should give way or should take precedent over the right of free speech. I really think so.

Tim Kowal: 24:21

Well, I'm not even talking about the anti-SLAPP stage. I'm talking about at the trial itself, The defendants offered an expert witness to testify that, yes, Dr. Mann's techniques in presenting his data were suspicious and lacked credibility and could be deemed manipulative. And if the judge found that that expert's opinion was qualified to go to the jury and that a jury would be allowed to believe that, opinion, then why couldn't the defendants reasonably believe that opinion when they made the statements? And therefore, those statements are not reckless.

Jeff Lewis: 25:03

Yeah. Yeah. I would love to see the jury instructions in that case.

Tim Kowal: 25:08

Yeah. Okay. Well, let's move on to a couple of other California Court of Appeal decisions that should hopefully have some practical value for our listeners here. The next one is under the title, sanctions are awardable where the fees are expended in terminating arbitration proceedings. In other words, Jeff, we talk about a lot, all these cases that have been wending to the California Supreme Court on arbitration cases where the defendant fails to timely pay the arbitration fees within 30 days of getting the invoice. And then poof, there goes your right to arbitrate. You're deemed to have waived that right to arbitrate. But I wasn't aware, Jeff, that also as part of the California Arbitration Act, at CCP 1281.97 to 0.99. The other penalty is that you, the employer, a defendant having waived your right to arbitration can also be liable to the plaintiff for all of the arbitration fees and litigation costs. So in this case, the employer, failed to timely meet the deadline to pay the arbitration fees, and then got hit with $183,000 in attorney's fees, which had been incurred through an extensive discovery in the arbitration. which itself is a little bit of a misnomer. You don't usually hear about extensive discovery in an arbitration, but if that does happen and that there's extensive litigation and discovery in an arbitration, and then the defendant fails to pay the arbitration fees and it makes all of that litigation and expended attorney's fees a waste, then it's within the trial court's discretion to award the plaintiff all of those attorney's fees. And that's what happened in Guffey v. Boket, Inc. That's a June 2025 Court of Appeal decision out of the 2nd District Court of Appeal. And the statute is Section 1281.98. And that award was held not to be an abuse of discretion.

Jeff Lewis: 27:14

Yeah, super interesting, but I can't imagine that fact pattern pops up all that too often.

Tim Kowal: 27:20

I mean, the amount of the award is eye-popping, but I just wasn't aware that you could also, in addition to vacating the order-compelling arbitration and getting your case back in trial court, you can also move for your attorney's fees that were expended in arbitration and that were made a waste because of the defendant's failure to timely pay those fees. Okay, and then another... Another case with some practical value to family law attorneys who are trying to get attorney's fees under Section 2030. Under recent amendments to Section 2030, the lower court in marriage of Sadie v. Kadivar, it's another 2nd District June 2025 case, the lower court failed to make findings about the ability to pay. So Jeff, as you know, in family law matters, the court has an obligation in ruling on Section 2030 motions to make sure that each party has an equal ability to access to attorneys. And under these amendments of Section 2030, a family law judge must make findings on disparity in access and ability to pay. And the failure to make those findings can be reversible error if the error is prejudicial. And it was in this case. The interesting part in Marriage of Sadie is that Other equitable factors came into play here, but the court found that these other equitable factors are not allowed to be considered. The judge may only consider the factors listed in Section 2030. The panel said that, quote, the statute's requirement of a finding that a fee award is appropriate is therefore limited to factors relating to disparity to access and ability to pay for legal representation. that interpretation comports with the purpose to ensure equal access to legal representation and to preserve each party's rights. So, quote, if a court could consider equitable factors unrelated to the party's disparity in access and ability to pay, this would contravene the statute's express purpose, end quote. I thought this was an interesting one. Whenever we find cases where Otherwise, equitable and discretionary determinations like awards of attorney's fees can be reversed for considering the wrong things or for factors that are not expressly enumerated in a statute and that can turn into an automatic violation. abuse of discretion. That's something worth bookmarking. So any of our listeners who litigate these Section 2030 attorney's fees motions in family court, make sure to bookmark Marriage of Sadie v. Kadivar. It's an important issue. You still have to overcome that second prong and show that the error is prejudicial. It seems like it's doable in cases like this. If you can show that the court really didn't focus on the issues of disparity in access and ability to pay and instead Elevated other equitable factors.

Jeff Lewis: 30:31

Yeah. For me, the most interesting part of this decision is later on, even though it's unpublished, it's not precedential. Anytime there's an attorney's fee appeal and there's no court reporter and no record of the proceedings, it's always a red flag. Because I know a lot of times courts of appeal won't. pass on the merits of an attorney's fee dispute if there's no court reporter because it's an abuse of discretion standard. But here, the court forgave the appellant for not having a record on appeal in terms of the reporter saying that the error was apparent on the face of the order denying fees.

Tim Kowal: 31:07

That's very unusual. Can't count on that happening in your case.

Jeff Lewis: 31:10

No.

Tim Kowal: 31:12

Okay, and then here's a quick tidbit and reminder not to forget to consider cross-appealing in your fee disputes. Here's what happened in Capragorgas versus Dana Point Harbor Partners, a fourth district division three case. It's not published, but it's a good, It's a good illustration, Jeff. Sometimes we talk about, I think even during our recent top 10 tips for trial attorneys when preparing for an appeal was don't forget to consider a cross appeal, but sometimes trying to find examples of where that can really come back to bite you are a little bit few and far between. So here's one that surfaced to my attention. The bad guy appealed the fee award here, but the good guy forgot to cross appeal. So the court not only affirmed the respondent's fees, but concluded that the trial court should have awarded more fees. But the court went on to say that, well, even though we're ruling that the court erred in not awarding you enough fees, you didn't file a cross appeal, so you're not going to get more fees, even though we decided that you should have been entitled to them. So if the bad guy has appealed the award giving you fees, and you might arguably be entitled to more fees than were actually awarded, consider filing a cross appeal because if the court of appeal does agree with you that you were entitled to the fees you got, who knows, maybe the court will agree that you should have been awarded even more and that the court slashed your fees too much. You can't do any better than what the trial court gave you unless you cross appeal. It doesn't come up all that often because it Again, attorney's fees awards are subject to abuse of discretion, which is very hard to overcome. But this is an example where the respondent could have overcome it, but didn't make themselves a cross-appellant, so nothing came of it. Okay, Jeff, and then there's an interesting, another travail of the use of ChatGPT, In court, do you want to cover this one? This was out of the Georgia Court of Appeals.

Jeff Lewis: 33:11

Yes. So we've heard a story or two or three or four about attorneys being sanctioned for citing fake cases, hallucinated cases in their briefs. This is an interesting twist on this. Although the headlines on this case were very misleading because the headlines I saw all over social media were judge was caught red-handed with a fake case in its order. And that's not exactly what happened. An attorney... prepared an order with bogus cases, and the judge blindly signed the order without double-checking it, and then up on appeal in defending Bogus, the trial court's order. It's in a family law proceeding. The same attorney who had prepared the bogus order with the two bogus cases included briefing in the Court of Appeals in Georgia with bogus cases. And the Court of Appeals wasn't having any of this. It said, without casting dispersions on the trial judge, because the Court of Appeal wasn't clear exactly how those cases got into the trial judge's order, reversed and sanctioned the ChatGBT enhanced lawyer for filing a firmless brief in the court of appeal. You know, I've often thought how lawyers really need to be careful about running their briefs through ClearBrief or another product to make sure they're citing real cases. It never occurred to me that you need to cite yours or your opponent's Orders to clear to make sure any fake cases are flagged. But I guess when I get a proposed order from the other side, there's cases in it. I need to add that to my to my systems work, my work process.

Tim Kowal: 34:45

Yeah, well, and I also mind that judges usually don't want legal authority in their court. their rulings. The rulings should just say what the ruling is, not include a lot of analysis and reasoning. It's kind of the reason why you don't give rationale to your children when you give them answers. Because I'm the dad. Yeah, yeah. And that's what a court order is. If the answer to the question, why should I do this? Refer to page one where it says the name of the court, because I'm the court. When you start including a bunch of authorities in there, it just invites more litigation. And in this case, it invites the possibility for damage to the court's reputation, which is something that the Court of Appeal mentioned here in Georgia, that there's potential harm to the reputation of judges and courts whose names are falsely invoked as authors of the bogus opinion and to the reputation of a party attributed with fictional conduct. Something else mentioned in the opinion that I was not aware of, it cited an interesting study by John G. Browning titled, Robot Lawyers Don't Have Disciplinary Hearings, Real Lawyers Do. The quote is that researchers found that these large language models like ChatGPT hallucinate at least 75% of the time. when answering questions about a court's core ruling. Wow. I'm incredulous. That's not been my experience, but this study says it, so now it's got me interested. And there seems to be no shortage of these cases of lawyers using ChatGPT and other AI tools to their downfall.

Jeff Lewis: 36:21

Yeah, I'm an extensive user of ChatGPT for years. personal projects and whatnot, but I can't say I use it for legal research. So I don't know. I don't know if that figure feels right to me. But Part of me wonders, you know, garbage in, garbage out. And I wonder how much of this could be manipulated in terms of accuracy, in terms of the right prompt. I wonder if you said to chat GBT, hey, under California law, what is the law for blah, blah, blah? By the way, give me only real cases. Don't fill in with made up cases. If that would solve the problem.

Tim Kowal: 36:52

Yeah, I have a hard time. I'm not sure how it comes up with the hallucinated cases, but I have a feeling that's Maybe prompting would help. I have had experiences where I've corrected ChatGPT and told it that, well, this case doesn't exist or what you just told me is wrong. And it says, oh, you're absolutely right. Thank you for bringing that to my attention. So it's very appreciative of being set right, but I don't know how to keep it from making the errors in the first place.

Jeff Lewis: 37:16

Yeah. Use co-counsel. That's how you, or, you know, Westlaw products as opposed to ChatGPT. That's how you prevent it from using, having hallucinated cases.

Tim Kowal: 37:29

I wonder if you can use a ChatGPT output and then plug it into another AI, like Perplexity or something, or Grok or something, and have it check its work. AI check AI. Tell us about this Oral Argument Exhibits. case,

Jeff Lewis: 37:46

yeah. Oh, this is a tweet by our friend Rafi Melkonian from Twitter that just reminded me people in California and people outside of California maybe practice law differently. He mentioned a tweet of where he says, I'm not going to specify the case, but while in Texas, appellate courts In Texas appellate courts, it is generally okay to hand up a bench exhibit during appellate oral argument. And I'm thinking to myself, never ever have I ever tried to get within 10 feet of the bench in any appellate argument I've ever handled in California. This concept of handing exhibits or bringing demonstrative exhibits or other exhibits into an appellate courtroom, I think security would not let me in the building if I tried to bring in a tripod and a blow-up or something. Just a foreign way to me of doing appellate law. with interaction with the bench like that.

Tim Kowal: 38:40

No, completely foreign. Yeah, there are rules of court that specify in very limited ways that you can get extra. It's not even extra. It's still got to be in the record. So I don't know if this bench or if this is a demonstrative exhibit. I assume it's part of the record. It must be part of the record. But still, trying to use a demonstrative on appeal, I wonder if that's got to be a trial attorney doing that, using the tools of the trial courtroom and the appellate court and thinking that they translate.

Jeff Lewis: 39:11

Yeah, but no, Rafi here says it says in Texas appellate courts, it is generally OK to hand up a bench exhibit during appellate oral argument, which is, yeah, you know, in trial courts, you know, you and I were trained as young lawyers in the trial court to say, Your Honor, may I approach the witness or may I approach the bench? And it happens all the time. But never have I ever heard those words uttered in a court of appeal.

Tim Kowal: 39:33

Well, right. Yeah. Yeah. Generally, as in it happens not infrequently is a very strange concept to

Jeff Lewis: 39:42

me. Yeah. The other thing I wanted to, on a similar vein, in terms of people doing things differently, most of my appeals are in the 2nd Appellate District and the 4th Appellate District. I rarely go outside those, but I just picked up an appeal in the 3rd District, which is like... Sacramento and that part of the state. And in the third district, they do things a little differently when it comes to designation of the record. Because down in LA, the minute you file a notice of appeal, that starts deadlines for designating the record and paying fees and depositing the reporter's transcript costs and all of that. In the third district with this appeal, I got this crazy notice from the court of appeals saying, hey, just as a reminder under our local rules, we're suspending the deadlines to designate the record and to pay your reporter's fees and all of that while we have evaluate your case for mediation. So third district takes a little different approach to designation of the record, which seems to make sense to me, I suppose. It's just different.

Tim Kowal: 40:38

Yeah. Yeah. We'll see how that, that seems like a, like an experiment. I'm curious to see how the experiment works out.

Jeff Lewis: 40:45

Yeah.

Tim Kowal: 40:45

Okay. I think that's all we have time for today, Jeff. What do you think? We were going to talk about this. Do you want to just tease the audience with this TikTok issue?

Jeff Lewis: 40:53

Sure. I'll tease the audience because whenever we take up this issue, the situation will still be the same in that there's been a law in place on the books in the United States to ban TikTok. And the president has not enforced that ban. And you and I were going to talk about that and how prior presidents may have taken similar liberties with the Dreamers Act. And what do we do when a president doesn't enforce the law?

Tim Kowal: 41:18

Yeah, let's tease that up for next time. That's going to wrap up this episode. If you have suggestions for future episodes or guests or topics to include, please email us at info at calpodcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See you next time.

Presenter: 41:37

You have just listened to the California Appellate Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again.