Jeff Lewis 
Welcome everyone, I am Jeff Lewis.

Tim Kowal
And I'm Tim Kowal. Both Jeff and I are certified appellate specialists and as uncertified podcast hosts, we try to bring our audience of trial and appellate attorneys some legal news and perspectives they can use in their practice. As always, if you like this podcast and find it useful, please recommend it to a colleague.

Jeff Lewis 
Yeah, if you don't like it try it again on double speed and see if you like it better

Tim Kowal 
All right, Jeff, we've got some news and tidbits this week to report. The California Supreme Court taking offense opinion. We'll talk about that on gender pronouns in adult elder care facilities. I have a report from the Federal Society National Conference from D.C. that I attended last week. There's a big ⁓ appellate attorney's fees case that was published just a couple of days ago, just yesterday in fact.

And then a couple other tidbits that we'll talk about, including ⁓ maybe, Jeff, you can fill us in on what you learned about Notion AI in your August Bradley course with the top 1 % of tech users. But let's start with this, the Taking Offense case. This is Taking Offense versus the State of California. It was issued November 6, 2025.

We had talked about this before Jeff, back I think back earlier this year, around May, in May maybe it was after the oral arguments. So we've been waiting that long, it about six months since the oral arguments for the Supreme Court to issue its decision. What had happened in this case is that an advocacy group called Taking Offense Challenge California's 2017

⁓ law called the LGBT Long-Term Care Residence Bill of Rights. And specifically, they challenge the clause that bars long-term care staff from willfully and repeatedly refusing a resident's preferred name or pronouns because of the resident's sexual orientation, gender identity or expression, or HIV status, which I'm still little fuzzy on how that works in the HIV status part of it.

Anyway, the parties in that case are taking offense and the state of California, and that's relevant to when we get to the standing question, the trial court, Sacramento Superior Court, denied the petition, treated the rule as a valid speech regulation of a workplace and rejecting the First Amendment claims. The Court of Appeal for the Third District reversed in part holding that the pronoun clause was content-based and therefore triggered strict scrutiny and was facially

unconstitutional as over-inclusive. But the Supreme Court reversed the third district. The holding of the case is that taking offense, the advocacy group did not have standing. The standing was under Code of Civil Procedure, Section 526A. Now note that this is an advocacy group. They didn't have actually any members who were affected. Instead, under Section 526A,

That provides a broad standing statute, but as we find out in this case, not broad enough. It's a standing statute that allows standing against an officer by anyone that has paid a tax that funds the defendant local agency. But in this case, we learned that the term local agency is the salient portion. It doesn't affect a state officer, only officers of a local agency. That's what the Supreme Court held here that

the officers of the state who were sued in this case were not officers of a local agency. the otherwise broad standing statute under CCP 526A did not apply. So therefore, taking offense, the plaintiff did not have standing to challenge this statute. But then the court goes on for another 100 pages or so on the merits, stating that even though there's no 526A standing, the court...

⁓ said that under the unusual posture of the case, it would still reach the merits to remove the cloud cast by the published Court of Appeal decision as it went on to reverse the Court of Appeal opinion. So I thought that part was interesting, Jeff, that it would reverse on standing, finding that there was no case or controversy, and yet still go on at rather some length on the merits.

Does that mean that there's some hundred pages of dicta in this case, Jeff?

Jeff Lewis
Not only dicta, but dicta that applies in such an extraordinarily narrow set of circumstance, a law limiting speech in order to audience members that are targets of the speech that are described as captive, meaning people who are restricted in terms of movement. And I just can't imagine this scenario ever repeating itself. And so I don't know.

when the Supreme Court talks about the uncertainty that looms over the state of California regarding this, I just can't imagine this coming up again. I don't know why they took this case up after reading this decision.

Tim Kowal 
Well, maybe you were talking about in another context, Jeff, that you are the, who is the Henny Penny, you know, the sky is falling, you when it comes to AI, the practice of law is coming to an end as we know it. I tend to be a little bit, maybe a little bit more, well, I don't know if it's optimistic or pessimistic. I tend to have a greater imagination maybe than you do in this particular case. And I sense or I predict maybe some mission creep.

in the terms of the merits of this case, or at least what the court called guidance for the lower courts in this case. the Supreme Court's take on this case and why the ⁓ gender, the pronoun statute did not offend the First Amendment is because it said that the First Amendment is not implicated at all because, as you put it, Jeff, in the...

The narrow circumstances here where these elders are in an elder care facility, it's basically they are a captive audience. That's the rubric that the court uses. It's a captive audience. It's effectively their home where they get intimate services. And so because they are a captive audience, the First Amendment does not apply because instead it's more like just a statute to regulate and prevent against harassment. But then I wondered, know, Jeff, know, captive audience is, I don't know that it's a

That's a constitutional framework exactly. You know, there's a US Supreme Court case that involves polling places. I think there was a Minnesota statute that regulated and prohibited political slogans from being displayed on t-shirts at polling places. And the US Supreme Court said, no, that's overbroad and vague and offense. It triggers First Amendment scrutiny.

If you're at a polling place, you are a captive audience, at least if you are one of those people who want to, you know, want to avail yourself of your constitutional right to vote, then you would be a captive audience at the polling place and subject to subjected to all of these offensive messages that you don't want to hear or see. And so why doesn't the captive audience rubric reach the polling place?

Jeff Lewis 
Yeah, well, I know in the most recent election here in California, the lines were long and it felt like you were a captive because you couldn't escape these long lines. I know people are in there for hours, but I don't really think the analogy holds. know, someone could move to a different polling place and put in a provisional ballot. They could choose to come back later in the day and vote. I don't think it's really apples to apples with someone who's in a wheelchair and can't move. They're not ambulatory or stuck in a bed.

Tim Kowal 
Well, but then we're just in world of judicial exception making and judicial balancing. What constitutes a captive audience? Well, yes, you could go to, maybe you can go to a different polling place or you can go at a different time of day. But then again, you could say the same thing for these residents of the care facilities. There are other resident care facilities that are more sensitive to ⁓ your pronoun needs. So you're not captive at that one. I don't think the court's rubric depends on you being a literal captive.

It just means that is a place where you regard your home and that's the place that this is your polling place. I voted there every year, you know, every election for the last 20 years or however many years. That's my polling place. I shouldn't be be forced to move to another one just because someone else wants to wear their highly offensive t-shirts.

Jeff Lewis 
I don't think you're in any danger of the captive audience rubric being applied in any future scenario because of the extremely narrow facts of this case.

Tim Kowal
Well, it might be narrow facts, but we already have the US Supreme Court decision on the case. just, I don't know, it just seems relevant enough and close enough that, now maybe I didn't read the taking offense case closely enough. Maybe they did address the Supreme Court case and the, what did I say? It was Minnesota case. Anyway.

But the court did go on to read this through a hostile environment lens, read the statute to reach only willful and repeated knowing misgendering because of a protected trait that creates a hostile environment borrowing from Title VII and FHA standards. And as we talked about, it used the captive audience lens stating that long-term care residents are functionally in their home and receiving intimate care.

and that strengthens the state interest. And the majority says that no heightened First Amendment test at all is required. That was the move that I thought was interesting and eyebrow raising, Jeff.

Jeff Lewis 
Yeah, although they went on to say in a couple of sentences later, if intermediate scrutiny applied, it would meet it. And I think because these people who are in these homes are vulnerable, not ambulatory, and they don't have a choice in terms of interacting with staff. All of those issues taken together was enough to satisfy the heightened intermediate scrutiny if it even applied.

Tim Kowal 
Yeah, and it was the case that I talked about, the polling place was the 2018 case, Minnesota Voters Alliance versus Mansky. That's where I thought, you know, I think the captive audience logic could extend there. I think that the polling place could be a captive audience just by another name. And I just wonder if we're going to see some mission creep. You know, I could imagine that courthouses could be a captive audience if you want to avail your right to

to the courts, then you're a captive audience when you're in those courts, shelters, or really any government office, inpatient units, dorms, DMV lines, or other quasi-compelled venues. Even if arguably they're not as strict, you're not as confined as in the elder care facilities. Again, this is not statutory line drawing. This is judicial line drawing.

Is it so categorical that the line can't be drawn anywhere else? That line can't creep and move and slip and slide?

Jeff Lewis 
I'm not smelling what you're stepping in.

Tim Kowal 
All right, Jeff, I told you I would give you a short report from my three days at the Federal Society National Lawyers Conference last week. It was Thursday, Friday, and Saturday. We're recording this on November 11th. And so this was early November. The introductory remarks to kick off the conference were issued by our own Ninth Circuit Judge Patrick Boumete.

who talked about bloodthirsty originalism. And what he means by bloodthirsty originalism is that we shouldn't worry so much about the length of the precedent, how old the precedent is. We should just look to see whether the precedent conforms to the constitution and not get so hung up on the starry decisis. Of course, there's still the vertical starry decisis. We have that, but the Supreme Court

And maybe, and then even the circuit courts of appeal when they are sitting en banc you know, should not get too hung up on stare decisis and the length of their past precedents. should just owe their fidelity to the Constitution. Justices Amy Coney Barrett and Brett Kavanaugh were the surprise guests at the annual Scalia dinner, the first night of the conference. They spoke to a crowd of

I think I heard, I think the crowd is about 2,400 attorneys there. They spoke to the crowd about courage and civility. They talked about conservative law students. talked about, Justice Barrett highlighted that she admired the strength and civility and the strength with grace, she called it, of Erica Kirk as she forgave her husband, Charlie Kirk's assassin.

Jeff Lewis 
wow.

Tim Kowal
Just days after that horrible act happened At the memorial Barbara K Olson lecture Fifth Circuit judge Andrew Oldham Delivered an address. I I missed that address, but I believe it was it was on point with his other recent speech talking about jettisoning horizontal starry decisive we talked about that a couple of times on the podcast Jeff, I think with our friend Corey Webster

I think Corey is a fan of horizontal stare decisis, but not Judge Oldham. He says that in the courts of appeals, ⁓ Judge Oldham's case is to let appellate judges correct course case by case rather than freeze doctrine just because a particular three-judge panel got there first.

Jeff Lewis 
Hey, was AI discussed at all on any these panels or any discussion?

Tim Kowal 
There was a panel, the title of the conference was New Legal Frontiers. So there's a lot talk about ⁓ agency law. There was talk about science in the courtrooms. There was a lot of IP oriented panels. And there was a panel on AI for the law and the law for AI where there were panelists talking about how AI was already affecting the law.

And now we'll continue to do so. my takeaway is that if you're a listener of the California Appellate Law Podcast, a lot of that ground has already been covered. You are already in the top 1 % of lawyers who know what's coming and know what's here when it comes to AI and the law. And then there were a couple of good oral argument tips from some of the panelists, including Paul Clement. He shared an anecdote about how he had heard a story from an attorney who had

done what you're supposed to do when you prepare for oral argument, especially in the Supreme Court, is you've read and mastered all your primary sources of authority, you've read and mastered all the secondary sources of authority, you know the facts of your case, you know the procedural history, and now you've still got a couple days left to prepare, so then you just start reading news articles and law review articles and tertiary sources and then highly creative theories that are only tangentially relevant to your case.

and it can overtake your imagination and think that maybe you're missing something. This is really what the court is going to be interested in. And then you go in and you set out at your oral argument talking about something completely tangential to your case and you confuse and annoy the panel. So that is a tip. ⁓ In those last couple of days, do not take the bait in going off into tertiary sources.

Jeff Lewis 
You

Stick to the basis and reread your briefs. Okay.

Tim Kowal 
That's it. A ⁓

couple other, one other good tip was to, if you're going to do moot courts, make your last moot a friendly one. You don't want the last moot before you show up to be one where you've got ⁓ unfriendly questioners tearing you apart, you know, from different directions so that you walk into your oral argument, caught off guard and on your back foot. You want to go in confident. You want to go in feeling good.

They don't say to avoid the tough questions, just if you're gonna do one that's gonna be really tough, follow it up with one that takes you out of it feeling confident.

Jeff Lewis 
Alright.

Tim Kowal 
Okay, and then one other case I wanted to cover, Jeff. ⁓ This comes ⁓ from friend of the podcast, CalP alum, John Sylvester, sent a case. was actually one of the attorneys was our good friend, Ben Pugh. It's the Bear versus Teder case. I think this case is probably the oldest case number, the lowest case number still existing in Orange County Superior Court.

but it's still going on. The upshot of this published decision is that it was over a $10,000 discovery sanction, and that was affirmed. Not only was that affirmed, but the court held that the successful respondents' appellate fees were awardable in defending that discovery sanction. And those appellate fees...

racked up to over $113,000 for defending a $10,000 discovery sanction. So that's kind of like the same ⁓ economics that go into an anti-SLAPP appeal, that if you are the plaintiff and you're going to challenge a grant of an anti-SLAPP and you're already facing those SLAPP awards and you're also going to be facing appellate fees if you lose that appeal.

Jeff Lewis 
Wow.

Yeah, you better get a opinion of an appellate specialist before you pull the trigger on that appeal.

Tim Kowal
Yeah, yeah, that's right. want to make sure. I mean, in this one, know, $10,000 in fees, you're better off, obviously better off just paying it. And obviously if there is a, ⁓ if there was, and if there was a discovery order that went along with it that you wanted to challenge, that's not even appealable. If you're appealing that under 904.1 as a sanction, discovery sanction over $5,000, that part of it's appealable, but the actual discovery order itself, you either compelling.

Jeff Lewis 
Yeah.

Yeah.

Tim Kowal 
a deposition or compelling production of documents, whatever it is, that's not appealable. If you want to challenge that, you've to wait for the final judgment or else take a writ.

Jeff Lewis 
Yeah, I didn't read this appellate decision involving these fees. What was the issue ⁓ that caused the Court of Appeal to publish it, you think? What was the new thing or the interesting thing that caught the appellate justice's eye?

Tim Kowal
Well, the court

held that sections 2023.030 and 2031.320 serve as fee shifting statutes that do authorize a trial court to award appellate attorneys fees to a successful respondent. So I think that issue had just not come up before. So if you get a discovery sanction, good for you, but if the other side challenges it, then you are stuck having to

Jeff Lewis 
Okay.

Tim Kowal 
⁓ You know spend the the clients money to defend it and there's no real upside other than just Defending the original sanction award, but it's all going to get burned up in fees So this this award sends the message that if you get those if you get discovery If you get a discovery sanction awarded to your client Then it is the economics of that's going to be protected on appeal if the other side decides to challenge it

Jeff Lewis 
Yeah.

Yeah. Okay.

Tim Kowal 
I think there's a

⁓ lot of other good stuff in there, but frankly, it just came out yesterday. I didn't have time to read the full thing, but that was the takeaway.

Jeff Lewis 
All right, well, congrats to Ben. Nice result. ⁓ Hey, before we pivot away, I got a junk mail from the American Arbitration Association. Do we have time to talk about that? Can we talk about that real quick? So I was cleaning out my email box and there was a junk email from the American Arbitration Association announcing a new pilot program, a brand new program, only for construction law disputes where the AAA is offering an

Tim Kowal 
Yeah.

Hell yeah!

Jeff Lewis 
AI resolution of construction law disputes with human oversight. Presumably at the end of the process, presumably a human being looks it over and says, that's about right. And I was thinking to myself, you know, in the future, if parties want to avoid paying hefty attorney's fees on both sides, and if they're comfortable enough for rough justice to agree to arbitration in the first place,

and waive all their appellate rights in the first place. It's not a huge leap to think of people paying a nominal sum to the AAA, avoiding paying all the fees you'd pay a trial lawyer to present a case, and you get a resolution to move on to the next battle. What do you think, Tim?

Tim Kowal 
Yeah,

yeah. Well, I told you that we've talked about the possibility that the party certainly can agree to arbitration. They can also agree to have their arbitration awards reviewable on appeal. And so as this is as an appellate podcast put on by appellate attorneys, we're always interested in expanding our market. So we would encourage anyone who's listening to consider putting a provision in your arbitration.

Jeff Lewis
Yeah.

Tim Kowal 
⁓ contracts that allow for appellate review of those arbitration awards. If you're not going to do that, then frankly, I question whether you care all that much. Maybe the prime directive of having an arbitration award is so that you can have a final decision of any dispute quickly and relatively inexpensively. It almost doesn't matter what it is. Maybe it could be a coin toss.

Jeff Lewis 
Here's why I care, because people laugh at me when I say AI is coming, that Skynet is coming for our jobs, because people think it's 10, 15, 20 years away. And when I get an email like this from the AAA, I think maybe it's not 20 years away, maybe it's a couple of years away. That's why I care.

Tim Kowal 
Well, I welcome it because ⁓ if for no other reason, it's going to be our first foray into having AI adjudications. maybe we'll get a, I don't know how many of them will be bound by confidentiality. I think if there's an industrious law student or scholar who would be willing to go make the rounds and try to ⁓ get their hands on as many of these AI.

arbitration awards as possible, well as the briefing and as much as a record as possible to try to, I don't know how you would make a comparison. Maybe if you, you maybe have to hire an actual arbitrator to read everything and come out with, how would they have decided the case to see if the AI adjudications are right or wrong?

Jeff Lewis 
Yeah.

Yeah.

Yeah, well, I'll take that one step further. I'm going to predict in our lifetimes that you know how Code of Civil Procedure Section 998 penalizes somebody who fails to beat a 998 offer. I'm going to predict in our lifetimes that in court proceedings, not arbitration, AI will be used to predict an outcome. And litigants who continue to prosecute their case and don't settle and fail to beat that AI outcome will also be penalized in terms of fee shifting and expert fees.

That day I think is coming, given that courtrooms are scarce, lawyers are expensive, and there's going to be immense pressure to pressure litigants to settle.

Tim Kowal 
Hmm. Yeah. I guess it would also be interesting to see how many litigants are satisfied with the results of their AI arbitrations versus how many are satisfied with the results of their live arbitrator results. I'm not sure. Maybe it's always only 50%. Losers are always dissatisfied. Winners are always satisfied.

Jeff Lewis 
Yeah.

Yeah. Yeah.

Tim Kowal 
And then, do you know the answer to this, Jeff? Are those AI arbitration awards subject to the same, they'd be subject to the same petitions to confirm or petition to vacate arbitration award as a live arbitration award, yes?

Jeff Lewis
I imagine they would, although you know, one of the biggest grounds for attacking arbitration award is failure to consider relevant evidence. Given the kind of black box that AI lives in and the inability of AI programmers to even understand why AI does what it does, I think arguments could be made that AI didn't consider fact A or evidence B. Yeah, it'll be interesting to see.

Tim Kowal 
Yeah, that's a good point. I've had instances where I have fed AI a case file and having it give me an analysis and then I read it and I think, I don't think that it read this key declaration or this key document. And then I'll feed it back into it and ask it, did you consider this? And they'll say, you're right. This really changes the analysis. So just because it's in the case file, no one knows it. You're right, it is a black box.

Jeff Lewis
haha

Tim Kowal
How would you safeguard against that? That's a good point. Do you think there's any grounds for challenging bias or conflict of interest? Probably not, right? You have to get real creative. Just thinking of any other grounds for challenging.

Jeff Lewis 
Yeah.

Sure bias,

absolutely bias. Who and what is being programmed into the prompt for resolving these disputes? And are those prompts sited towards the construction side or the contractor side or the owner side? Yeah, there's bias.

Tim Kowal 
Do you think there will be transparency over how the AI adjudicator is prompted?

Jeff Lewis 
Well, here's the thing, know, the AAA presumably doesn't want to hand over its secret sauce to jams, right? In terms of its AI prompts, be an interesting tightrope they have to walk on.

Tim Kowal 
They probably just

get a waiver of that, do you think? Although, again, can you wave conflict? Well, I don't know. Can there be conflict of interest in the prompts themselves?

Jeff Lewis 
Yeah.

No, probably not conflicts of interest, but bias, you know? What if it turns out that like 80 % of all these AI resolutions of construction disputes, all are in favor of the owner and against contractors, let's say. There's a suggestion that perhaps it's bias, unless, you know, there's some sort of a selection bias in terms of who ops for these kinds of resolutions. But by the way, if there's any representative from the AAA that wants to come on our podcast and explain.

⁓ how this isn't gonna come from my job. I'd be interested to hear from you.

Tim Kowal 
Yeah,

yeah, that's fascinating. Okay, well, here's a I've got a couple of tidbits, Jeff, unless you've got something else pressing. Okay, well, the first one, it may be moot now that I think I heard the news that the government shutdown is now over and everyone's back to back to work happily. there was an interesting memo that came out of the US Attorney's Office in Los Angeles.

Jeff Lewis 
Okay. Go for it.

Tim Kowal 
that advise that federal judges may compel lawyers to represent indigent defendants without pay during a shutdown ⁓ where the Criminal Justice Act funding lapses. Critics argue that the state bar has no rule authorizing compelled representation and that unpaid work violates the CJA's payment requirements and that multi-defendant representation creates immediate conflicts of interest.

Government lacks standing to advise on defense counsel appointments in an adversarial system. Supporters note that the professionals in other fields have worked unpaid during the shutdown and that attorneys have been historically appointed without immediate compensation with retroactive payment following funding restoration. So kind of an interesting arguments on both sides of that, but I guess we won't see that tested now that the spigots back on.

Jeff Lewis
Yeah, ⁓ I think there's lots of precedent in terms of allowing forcing lawyers to work unpaid. At the beginning of my appellate career, I worked ⁓ on indigent criminal appeals and there was a couple of state budget freezes where we weren't getting paid but we're still expected to do the work. The more interesting issue is not can a judge order a lawyer to work on a case, it's more about

If the lawyer refuses, can the judge then throw that lawyer in jail? How much can a judge pressure and compel? Or in terms of overworked lawyers, forcing a lawyer take on more than they can handle competently. Maybe we'll never know because this government shutdown is over, but that's the more interesting issue to me.

Tim Kowal
Hmm.

Yeah. Okay, and then here's a few more oral argument tips and insights from some Federal Circuit judges. When you narrow the issues that are in dispute, talking about oral argument.

You become infinitely more credible than the person that is arguing every single thing. That's Chief U.S. Circuit Judge Kimberly Moore. This was said during a fireside chat. ⁓ It makes us want to fight for you because you're being honest. So this militates in favor of trying to narrow your case and not coming into oral argument, prepared to throw everything against the wall.

Narrow your outline down to one or two pages at most. Don't plan to argue everything. It makes the judges like you more. US Circuit Judge Todd Hughes stressed the benefit of direct briefing on judges when they're doing an incredible amount of reading per week. He says that the point of the brief is to help us and tell us what we need to know to decide the case in your client's favor. Saying I wanna be able to sit down and read it and understand it from page one.

I liked this one from US Circuit Judge Leonard Stark. He said that oral arguments are not for prepared speeches, but to answer questions. It's important to understand that oral argument time is the court's time. You want us to interrupt you. You want to have that hope for some insight into what it is about your case that's bothering us and what it is we need to be persuaded to come to your side. Don't fight the questions, he continued.

Don't act as if you're bothered with us interrupting you. Jeff, I've seen this more, it's not just a joke. mean, attorneys sometimes will get bothered that, let me just finish reading to you my five pages of notes here. And then maybe if I have any time for you, then judge, you can ask me some questions. But they say, don't act as if you're bothered with us interrupting you and try your best to be in a conversation with us.

that together we have a problem we're trying to solve. That again is Judge Moore.

Jeff Lewis 
Okay.

Tim Kowal 
What do think, Jeff, you agree with those those tips?

Jeff Lewis
Yeah, I guess I don't share your experience. I don't think I've ever seen lawyers bothered. I have seen lawyers tone deaf to questions and not reading the room and jumping back into their outline that they're holding on for dear life. ⁓ But I guess that's good advice in terms of not appearing bothered and ⁓ to view questions as an opportunity, your last best opportunity to turn a justice in your favor.

Tim Kowal 
Yeah. Yeah. Don't, don't come in there grasping your notes or your outline as if it's a life raft. you got to be prepared to swim and to just ditch your, ditch your outline. If it's not supplying the points that the panel wants to hear.

Jeff Lewis 
Yeah.

Tim Kowal 
Alright Jeff, that's it for my own outline for my life raft. got anything else?

Jeff Lewis 
I got one other issue. I'm going throw in a call an audible here. You and I have talked in the past about the Scientology case involving Danny Masterson, and there's a motion pending by some lawyers who used AI to draft a brief to do a mulligan and and be able to substitute a new brief in place of the AI written brief. And there's been no ruling yet by the Second District Court of Appeal, but I did notice this past week that

There are now amicus parties, at least one amicus party, looking to weigh in on one side or the other. The Association of Southern California Defense Council filed an amicus brief opposing the motion to allow a mulligan and a replacement brief. It'll be interesting to see how quickly the second district rules on this mess and how many more amicus briefs they're gonna get before they can rule.

Tim Kowal
Okay, well that's interesting, Jeff. Let me ask you, hypothetically, if you were going to file an amicus brief, who would it be for? Would it be for allowing a mulligan, allowing the respondents to file an amended respondents brief? would it be, ⁓ no, you made your bed and now you have to sleep in it?

Jeff Lewis 
Neither. I don't think a client should ever be punished in this sense or this severely by having its brief completely stricken or arguments not considered on their merits because of a lawyer mistake. And I don't think there's any suggestion here that there's anything other than a lawyer mistake. And so I think the correct approach is recuse the lawyers. So yeah, we'll let you do a mulligan upon the client getting a new set of lawyers within 30 days.

Tim Kowal 
Well, you've hinted at that before. I completely agreed with you up until recusing the lawyers. Why do you think the lawyer should be recused? Doesn't that also ⁓ punish ⁓ the client? Or I guess, well, I was thinking that the client's gonna have to pay a new set of lawyers, but maybe in that situation, the lawyers would not be able to, the recused lawyers would not be able to demand payment for those services.

Jeff Lewis 
And there's a universe where I can imagine the recused lawyers writing a check and or paying for the new lawyers or insurance malpractice insurance carriers doing that. So I wouldn't worry too much about the legal bills. It's more about the delay and getting a second buy at the Apple because having seen the briefing pretty much concluded the party that gets a do over. Yeah, it gets a do over. It gets to redo.

make arguments maybe they wouldn't have made before apart from the AI issue.

Tim Kowal 
Yeah. Well, I mean, my take on it is that if I were the Court of Appeal, I would grant the motion and allow the amended respondents brief to be filed. I think it was filed before. I mean, the reply brief has not been filed yet, if I recall correctly. ⁓ And so there would be no prejudice to the appellant by allowing the respondent to file an amended respondents brief.

I'm just not sure I see the utility in recusing the attorneys. think that especially this firm, maybe if it was another firm who routinely committed errors like this, but I just don't see the Boies Schiller attorneys as being likely repeat offenders in this particular case. I think that they are chastened. I think they have already made changes institutionally to make sure this never happens again. I think that...

Jeff Lewis 
Yeah.

Tim Kowal 
that recusing them and or imposing other sanctions on them would, I think it would just be chilling to lawyers who are thinking about trying to adopt AI responsibly because there are gonna be some mistakes. It's gonna be messy for a little while trying to adopt these new tools. They're too powerful and too useful not to adopt. And there's just gonna be some missteps. And Boies Schiller has ⁓ already

I think made their apologies and made their amends. I think it would just be punitive and chilling to greatly sanction them.

Jeff Lewis
Let's be clear, that's the remedy in the world of Jeff. I don't think any of the parties or courts have even hinted to this, but I will say this, it is fully briefed in the sense that there was an opening brief. The AI written brief was the respondents brief. There was a reply brief that pointed out all these AI issues. And then the motion came to say, can we please, now that the reply brief pointed out the response brief had some AI issues, let us do a mulligan and redo at least the respondents brief and then presumably a new reply brief. ⁓

Tim Kowal 
Okay,

well that changes things a little bit. ⁓ You have to let the appellant have the last word. And so if you let the respondent come in after the reply brief and file a new respondent brief, then that offends the appellant's rights to have the last word.

Jeff Lewis 
But yeah, yeah, yeah.

Yeah, exactly. Exactly.

Tim Kowal 
Yeah, so that's a difficult, makes it little bit more difficult of situation, but yeah, we'll have to, we'll be waiting with bated breath to see what the court does with that motion.

Jeff Lewis 
Yep. Maybe you and I need to submit opposing amicus letters on this issue. All right. Stay tuned.

Tim Kowal 
Yeah, well, I'm game. Okay, well, that'll wrap us up this episode.

If you have suggestions for future episodes, topics, and guests, please email us at info@calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.

Jeff Lewis 
See you next time.