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 find this podcast helpful, please recommend it to a colleague.

Jeff Lewis
Yeah, if you find it unhelpful, listen again at double speed.

Tim Kowal
Well, Jeff, we've been off for a couple of weeks for the holidays and such. You had an oral argument recently. I had a couple of oral arguments recently, but we're back in the recording studio, such as it is. And we've got a few more cases to talk about. Some of these ⁓ AI hallucination cases, they just keep coming up. But there's one of these that I thought was interesting enough. I had another twist on it that I thought we should mention to our audience. And ⁓ I kind of wanted to talk a little bit about an amicus brief that

My firm filed in the California Supreme Court. It's about the Maniago case that we talked about on this podcast about a year ago, I think, about an interesting issue on appealability. That should be of note to our listeners. And maybe we'll talk a little bit about the Texas redistricting case and the scathing dissent that Judge Smith issued in that recent case. But first,

At least at the top of my notes, I we talk about this AI hallucination case in Shayan versus Shakib This one and another recent AI hallucination case were both out of the 2nd District Division 1. So I don't know how that division drew the short straw to get all of these AI hallucination cases. But in this case, the Court of Appeals sanctioned attorney Fahim Farivar for filing a brief with numerous fabricated quotations falsely attributed to

published decisions. The twist in this case is that unlike a lot of the cases, including the Boies Schiller one, maybe we'll talk about to see if this, Jeff, if you think this one foreshadows anything that might come out of Boies Schiller. But the different thing in this case is whereas Boies Schiller and many other attorneys fall on their sword and say, yeah, you know, I did, I made a mistake. We do use AI, but we always check the sites. Just this one happened to go out of the shop without having a second set of eyes on it. This one,

the attorney did not fall on his sword. He said, no, no, no. When I drafted this thing, I didn't use AI. All of the sites came off of reputable Westlaw ⁓ research requests. It's just when I handed it off to my staff, it's my staff's fault. I put placeholders in there and told my staff to go find the ⁓ citations for legal authorities. And then my staff must have gone about and found AI-generated

support and that was the origin of the problem. Court didn't like that at all and didn't like what it perceived as a lack of either lack of candor or just no one likes blaming the secretary or blaming the staff. The court imposed $7,500 in sanctions. What I thought was a little bit unusual is that the court didn't strike. This is the opening brief, the appellant's opening brief that had the problems in it. The court didn't strike the brief.

actually required and allowed the attorney to file a corrected brief limited only to fixing the AI hallucinations and miss citations and not making any other substantive changes to the brief and referred the matter to the state bar. I think the outcome is going to be doomed anyway. Again, the changes required in the refiled brief are going to be non-substantive and the sanctions staying and the reference to the state bar is going to stay.

I think why the court decided to publish this one is ⁓ that it went out of its way to note that, look, the hallucinations didn't actually help the appellant. These are not hallucinations that, you sometimes you ask AI a question and it'll tell you any old thing to make you happy. It might give you a false case with a proposition that's not supported anywhere else. It didn't seem to be what happened here.

miss citations and hallucinated citations or miss quotes didn't really move the ball forward from the standpoint of the appellant. But the court said, nonetheless, we must consider broader concerns about the integrity of the courts and the legal profession. And the court goes on to explain that inaccurate citations in briefing, whether the result of technological hallucinations or a human failure to verify, may be relied on in court decisions

circulated, believed, and become fact and law in some minds. We must all guard against those instances. There is no room in our court system for the submission of fake, hallucinated case citations, facts, or law." So I think the court is ⁓ putting itself in a guardian of the institution role. This wasn't necessarily just error correction and protecting the parties in this case. It's protecting the judicial system as a whole and making sure that you know, California

reporters of published decisions don't wind up stuffed chock full of fake AI-hallucinated quotations and fake cases.

Jeff Lewis
Tim, before the invention of AI, can you recall a case where a lawyer successfully pointed to his staff and said, hey, I signed this brief, but my staff did a terrible job. So blame my staff. Don't blame me. I don't recall that argument ever working in a published decision.

Tim Kowal
No, that was in fact one of the earliest bits of mentorship I ever got is do not blame your paralegal or your secretary or your staff. You always take the blame. The buck stops with you as the attorney. You're the one who signs the paper, so you take responsibility for everything in it.

Jeff Lewis
Yeah. And let me say a second issue comes to mind with these cases. You know, we're seeing a lot of these sanctioned cases involving AI briefs. And they all cite the duty of candor. You can't misrepresent things to the court. It is a continuing duty. Professional rules talk about it being continuing duty. So the moment you discover on your own or otherwise a fabricated brief, you immediately have to draw it to the court's attention, not wait for your opponent. And in this particular case,

there was a motion for sanctions and to strike and there was an opposition filed by the AI brief writer. He opposed sanctions. And in that opposition,

He contained inaccurate AI-generated statements of the law. Rule of thumb, if you're going to file an AI-generated brief and you're called on the carpet and you're going to be sanctioned for it, when you're opposing that sanctions request, don't also cite AI-generated cases.

Tim Kowal
Yeah, do not double down on your AI sins.

Jeff Lewis
Maybe we should put that on our next mug, our next California appellate law podcast mug.

Tim Kowal
Yeah, yeah, and we'll put a, we can put a footnote. This mug not generated with, by using AI.

Jeff Lewis
But it is interesting that the lawyer here was allowed to file a corrected brief and the lawyer's corrected brief characterized whether certain cases were made up or whether they just misquoted cases, et cetera. And the court further disagreed with how this AI brief writer had characterized his screw up. You know, at this point in time, when you've been caught with a bad brief, whether it's AI generated or first year law student generated, there's a good argument you should

back out of the case, I think, and bring in replacement counsel or at least co-counsel, because you should not be representing yourself in opposing sanctions requests. You're not doing a client any service. I think a lot of these sanctions could have been avoided if new counsel came on board, first counsel fell on his sword, and the issue was nipped in the bud. And we don't see that happening, at least in these published decisions.

Tim Kowal
No, we haven't. And I know that's one of the issues that's been raised. I know you've asked the question in the Boies Schiller Scientology case. Should the law firm be recused? Should new counsel have to come in? What do we do with the client and their right to choose counsel? What do we do with having to pay a new firm to come up to speed in the case? That is a thorny issue.

I'm not sure. I understand your point about, you know, once the attorney's name is in the doc at that point and exposed to sanctions, now he's wearing two different hats. He's representing his client and he's got to save his own skin.

Jeff Lewis
Yeah. Yeah. Yeah. I mean, it's like a law school exam question on ethics and professional responsibility in terms of the conflicts that arise after you failed your duty of candor and the continuing duty of candor. It's a huge mess. And by the way, get pivoting back to a Scientology mess since the last time you and I had a podcast, there were two developments. One argument was scheduled oral argument on the merits was scheduled and then taken down.

cancelled. There was a pending motion to file a corrected brief to replace the AI brief with a new brief. That motion was denied. So the court's going to decide the case based on the AI brief. And an amicus party, I can't recall who, filed a request for an amicus brief on the issue of the AI generated brief and whether it should be corrected or not. And that amicus request was denied. And now we're all just waiting to see, is the court going to schedule oral argument on the merits or is it going issue some kind of order?

dealing with the briefing issue. Might this be a case where the AI generated brief lawyer has to get new counsel or that client has to get new counsel? We're all kind of waiting on pins and needles. Let's see what happens.

Tim Kowal
Yeah, I'm having a hard time imagining what might happen here because again, this is the respondents council who committed the AI sin in this case. So it's not going to be as simple even if it's the appellant's attorney who is doing it, one straightforward resolution, which might be draconian, is to strike the opening brief, dismiss the appeal, and then let the client go after the attorney for malpractice.

That's one available option. You don't have that option. The court doesn't have that option when it's the respondent's attorney who committed the AISIN. If you strike the respondent's brief, then what? mean, there's no such thing as winning an appeal by default or for the appellant winning the appeal by default. It just is going to impose more burden on the court staff to do all that research. And why wouldn't the staff, even if it's a stricken brief, you might reach for it anyway. It's still, even if some of the...

Now you know what citations are AI generated and not to be relied on because you have that proposed amended respondents brief in the system. Even though it's technically stricken, why wouldn't, if you're the research attorney, you tell me you wouldn't reach for that as a crib sheet to kind of help direct your research and analysis?

Jeff Lewis
Right, right. Yeah, who knows?

Tim Kowal
Yeah, so the fact that they have taken the oral argument off calendar, they have denied the motion for leave to file a corrected brief, remind me, Jeff, they have not stricken the respondents brief.

Jeff Lewis
Correct. Correct.

Tim Kowal
Well, I don't know. I guess maybe my if I if I had hazard a guess, maybe they just leave that brief on the record. I mean, it's it's it's not publicly available other than, through a like a Public Records Act request, you can get it, but it's not available for downloading on the on the docket. Right. So it's not.

Jeff Lewis
I might be mistaken, but I think there is a journalist who runs a sub stack called Underground Bunker who covers Scientology stories. He's got a lot of the briefing verbatim, not the PDF, but the text of the briefing. If you want to follow him, you get a lot of the inside scoop. You know, the other thing that comes to mind is this is division five of the second district that's dealing with this Bixler case, the Scientology case. Some of these other...

Tim Kowal
Yeah. I guess, yeah.

Jeff Lewis
sanctions cases we've talked about our other divisions and you know I guess each division of the second district can decide how they're going to deal with these issues separately.

Tim Kowal
Here's one other juxtaposition between this Shayan case and the Boies Schiller Scientology case. So the appellant's attorney in Shayan was not penitent, did not own the problem, and got dinged $7,500 and reported to the state bar. The Boies Schiller attorneys did fall on their sword. They were penitent. As soon as they were alerted to the fact that there were AI hallucinated and

and incorrect citations in their brief, they sprung into action and did everything they could have done. Are they going to get sanctioned the same as this attorney in Shayan who was not penitent and didn't do any of the things he was supposed to do?

Jeff Lewis
And by the way, as far as we know, they didn't ⁓ use AI to generate an opposition or the briefing on the issue of the replacement brief. ⁓ Yeah, I don't know how much penance comes into play, but I don't know. It'll be interesting to see what happens.

Tim Kowal
Right. Yeah. Okay. One other thought I wanted to share for you and our audience. I had a thought on what constitutes an unreasonable violation of the rule. So there's the ethical rule that we attorneys have is not to misstate legal authorities to the court. And it's not just to misstate, it's to engage in an unreasonable act of misstating the law. And it occurred to me that

You know, the courts have been swift and in many cases quite severe in enforcing against Unreasonable violations of the rule when they are generated through AI but AI is new but attorneys Stating Balderdash legal propositions in briefs is not new. That's a venerable old tradition and yet I don't know of a you know of very many instances where

attorneys just kind of running off the cuff and stating what they think the law is in their briefs and thereby often misstating what the law is. I don't see them very often getting sanctioned as engaging in an unreasonable violation of the rule against misstating the law. So it seems like misstating the law, if you're just reciting it from memory or you're kind of mischaracterizing it, you know, characterizing it in a sloppy fashion,

That doesn't count as an unreasonable by violation, but if you follow it by a citation to an authority that doesn't match or is a hallucinated case then you then you're in trouble. That's a Maybe that gets back to the the gatekeeping function that the court talked about that inaccurate citations in briefing are it may be a different problem than just stating then an attorney stating legal balderdash in a brief because if it's if it's followed by a citation

Tim Kowal
that heightens the risk that it's going to get picked up and dropped into a published opinion somewhere.

Jeff Lewis
There's no Safe Harbor-Balderdash rule for the rules of professional conduct. There's no duty of candor exception for Balderdash. I think, you know, in oral arguments, sometimes you and I would get asked questions by the justices that we're not prepared for. We might say, I think the Kowal case says blah, blah, blah. And you'll never in a hundred years be sanctioned for that. But if you're winging it in a brief, misstating the law,

That's a violation of the duty of candor. And even if you didn't know it was wrong initially when your opponent points it out, you're now having a continuing duty to correct it in terms of your duty of candor. So I don't know I'm with you.

Tim Kowal
I agree with you. I agree with you. I just don't think that it's enforced most of the time. I think it's largely just accepted as well. Gosh, that's just what happens all the time. know, lawyers just put things in brief, especially in trial courts where things are busy. You don't always have the time to research all of your legal propositions.

Jeff Lewis
Yeah. I will say fake cases or uses of AI where you're including the chat GPT prompt in your brief really makes it easy to enforce the rule. ⁓

Tim Kowal
Yeah, it's especially easier when you are purporting to quote from a case and that quote does not actually appear in the case. Here's actually a good example. I'll just mention this because I flagged this when I was reading the case, the Shayan versus the Shakib case. The example that the opinion flags is that the appellant cited or quoted this purported quote. Now, this is the fake quote. It's about the sham pleading doctrine.

Jeff Lewis
Mm-hmm.

Tim Kowal
in the quote that purports to come from the Berman versus Bromberg case, which is a real case, but it's a fake quote. And the quote, the fake quote is, the sham pleading doctrine is not intended to prevent honest clarifications or refinements based on subsequent discovery or reflection. End quote. Now, Jeff, I don't know.

You know what the sham pleading doctrine is. I mean you can make certain kinds of changes, but this isn't quite it. Now the language that actually appears in the case is quite longer, but the nub of it that gets closest to what that fake quote says is this. It is not a rule, however, talking about the sham pleading doctrine.

It's not a rule which is intended to prevent honest complainants from correcting erroneous allegations of generic terms which may have legal implications but which are also loosely used by laymen or to prevent the correction of ambiguous statements of fact." So those two things are kind of similar but they have important differences. And here's my proposition. The reason I went through that exercise is I think if the

attorney had taken that same sentence but not quoted it as coming as being an actual quote from Berman. I think a careful reader would have looked at that, gone back to the Berman case, and concluded, I don't think you intentionally mischaracterized it, but you overstated it. So I don't think that would be an unreasonable misstatement. I don't think that would be an ethical violation. But putting it in quotations is what goes over the line and commits the sin.

Jeff Lewis
Well, let me go a step further. You get your opponent or the court or the research attorney's attention by having fake cases. If there wasn't a fake case issue, if all you did was quote things inaccurately, I don't know if this is a sanctions case. Maybe it's a footnote in an admonishment case. It's really the fake cases that are getting everybody riled up and those lawyers who double down with throwing their staff under the bus or

doing anything other than falling on their own sword.

Tim Kowal
Yeah. Well, let's go on to one other AI hallucination case. It's a published opinion, I think, but the AI hallucination discussion is not published. And that's the part we're going to talk about. This is the same district and division, second district, first division, court of appeal in County of Los Angeles versus Niblett. There the attorney used AI to prepare the opening brief in the appeal.

citing non-existent cases and misrepresenting holdings of real ones. The interesting one, misrepresentation, this is a ⁓ DVRO case and it misstated the Supreme Court Rahimi case, which is quite a famous case, talked about quite a lot and misstated it as saying that, as concluding that the Supreme Court overruled and invalidated a Texas law, which is the opposite of what it did. It reversed the

the Fifth Circuit, which had done so and instead upheld the Texas law. And so that was an important AI hallucination or misstatement ⁓ of a real case in that case. But again, of note in this case, counsel ⁓ failed to correct the miscitation of the cases appearing in the opening brief, despite the fact that the county had pointed out those errors.

So the appellant's attorney's behavior is troubling and presents potential ethical issues that we cannot ignore. ⁓ I flagged this sentence that the court said it is also presumptuous to assume that he, the attorney, would not be quote unquote caught. Attorney Lucas apparently believes that we do not read cases cited in briefs.

And more disturbing is his apparent disregard of his duties as an officer of the court. Our legal system, this again echoes the gatekeeping function recited in the Shayan case. Our legal system depends on the integrity of counsel and the bench, citing nonexistent authority or missing holdings of cases tarnishes the integrity of the process." End quote.

But again, this was another case where it didn't seem like the ⁓ citations or misstatements really came to anything, but the court is still making an example.

of the fact and upholding its gatekeeping function.

Jeff Lewis
Yeah, you know, this one's not published because I don't think it really ⁓ plowed any kind of new ground in terms of the holding. I mean, I will say I did take a look at the online docket and the court did end up right before Thanksgiving filing or filing an order that this attorney paid $5,000 in sanctions.

and that he'd be reported to the state bar.

Tim Kowal
Yeah, yeah, that's the sting is getting the sanction and getting reported to the state bar. Of course, then again, I don't know what's if those things are if I could have the choice of writing a check but not having my name blazoned on an opinion as another AI cautionary tale. I think I would write the check.

Jeff Lewis
Yeah. Yeah. Yeah.

Tim Kowal
Okay, let's move on from the AI hallucinated cases and I wanted to brag a little bit about an amicus brief that my firm filed a couple weeks ago in the Maniago case. We had talked about this on the podcast about a year ago or so when it came out. Jeff, this was a case where it involved it involves the interesting issue of appellate procedure whether a voluntary dismissal is an appealable order.

And what happened in this case is the plaintiffs had their main legal theory gutted. This was a, it looks like a medical malpractice and negligence tort case involving being exposed to HIV blood during a visit to a medical facility. but their main cause of action or their main theory was gutted in a demur. And there was not.

enough left of the case to justify, you know, burning all of the fuel ⁓ in litigation and going through the trial when it wasn't going to involve their flagship theory. So they voluntarily dismissed the rest of their case with prejudice to, you know, expedite the appeal. But the 4th District Division 1 said, no dice, a voluntary dismissal is not an appealable order because it's a ministerial act entered by a clerk and ministerial acts are not are not appealable.

and the Supreme Court of California has taken that up on review and I decided, our firm decided to file an amicus brief in support of the appellants in this one in favor of the position that a voluntary dismissal is an appealable order. We take the position that it ends the case, it's full and final, no less than a judge signed order and that's really the hallmark for appealability is that it brings the case to an end. Otherwise you could have many cases sitting around on the docket whose appealability could be revived if a judge just decides that, this was voluntarily dismissed years ago. There was never a judicial act that ended it. But if I just go ahead and enter and sign a dismissal, suddenly it is now an appealable order.

And could, the judge could manufacture appellate jurisdiction. That seems like an interesting wrinkle to me. And besides 581D, Code of Civil Procedure Section 581D, which does require that judge-ordered dismissals be done in a signed document, that was relied on by the the venerable California Academy of Appellate Lawyers who filed an amicus brief in support of the respondent in defending the 4th District Division 1

decision and holding that voluntary dismissals are not appealable because they are ministerial acts and also relied on ⁓ 581D which requires that dismissals ordered by a judge be in a signed document and there was no signed document here therefore no appealability. The reason I think that doesn't track in my if I may respectfully dissent from the academy

I don't see 581D being an appealability statute or as expressing any legislative intent or in order to address an issue of appealability. I think that was only to make sure that when a judge orders a case dismissed for clarification and transparency purposes, it needs to be done in a signed order and be entered. But it doesn't mean that

the legislature was drawing a distinction in terms of finality and incorporation of all prior orders between judge-signed dismissals and voluntary dismissals or otherwise clerk-signed dismissals.

Jeff Lewis
Tim, I think it's a good thing you're an appellate lawyer, because only someone like you could find that issue scintillating.

Tim Kowal
All right, well, I guess buyer beware when you tune into the California Appellate Law podcast. Sometimes we do make good on appellate law.

Jeff Lewis
Yeah. Yeah.

Yeah, let me before we sign off, let me share one quick tidbit. I came across something new in my practice. First time in 30 years, I've seen one of these. Tim, you've seen an appellate brief right before the court accepts it for filing with a little stamp on the top that says received. You've seen those briefs, right? It says received by the court of appeal. And you've gotten that good feeling when you got a brief from the court of appeal and says filed a relief. Right. And you've also gotten the dread when a certain clerk in Orange County who will go nameless rejects your brief.

Tim Kowal
Yeah.

Jeff Lewis
and you get the true filing rejection notice. You've seen that, Have you ever seen, this is a first for me, a brief that has the filed stamp on it and then in big giant red letters, canceled? Have you ever seen a canceled brief?

Tim Kowal
Yes.

Whoa, it's what the the filing the act of filing was canceled.

Jeff Lewis
Yeah, and to signify that, they return the brief to you with big red letters saying canceled.

Tim Kowal
I have never seen that. I assume that has to happen fairly contemporaneous with the filing itself, like same day or next day.

Jeff Lewis
Yeah. Yeah. So I have a case. It's a little bit complicated, but to make it more simple, the appellant, who's not me, filed his opening brief. I filed my response and the appellant got sick or busy or something, never bothered to file the appellant's reply brief. And the court deemed the case fully briefed. He tried to file a application for extension of time, like three months later, the court said, no, briefing's complete.

He then filed a reply brief in a related case and tried to simultaneously file in my case. And the court initially accepted it for filing. And I was surprised. I was getting ready to file a motion to strike. And the court, a couple hours later, returned a document saying, canceled, in bright red letters. The brief he had filed, he kind of tried to sneak it in there, was canceled. A first for me. Yeah. Yeah.

Tim Kowal
Hmm. Hmm.

Well, good for you to, yeah,

so it was filed late and initially you thought he got snuck in there.

Jeff Lewis
good lesson that the clerks are paying attention. Even if they don't catch it first time, they will catch it second time.

Tim Kowal
Yeah, yeah. Have you noticed just as a matter of custom, it seems like if you've got a brief with either a soft deadline or a hard deadline, in our shop we call the soft deadline the deadline for an opening brief or a respondents brief before a rule 8.220 notice of default has been issued. So we call that the soft deadline. And whether it's a soft or a hard deadline, the clerk will not

Issue a notice of default or if it's a hard deadline the court will not dismiss your appeal for failure to file a brief as long as you've got an application for a briefing extension pending. Yeah, okay. I'm not sure if I have the confidence yet to elevate that to like an absolute universal rule in California appellate courts, but that's been my experience as well.

Jeff Lewis
Yeah, I think that's true. Yeah.

Yeah. Yeah.

Tim Kowal
Okay, well, Jeff, did you want to talk briefly about the Texas redistricting case and the rather heated dissent by Judge Smith in that split decision that came down just ⁓ in the past week?

Jeff Lewis
Well, sure, yeah. I saw this brief come down in the news or the injunction come down in the news. The thing that struck my eye, because I'm an appellate lawyer and find some of these nerdy issues interesting, is that at the trial level, this court was heard by three judges, two district level judges and an appellate justice. And in the first instance, decided by three judges, there's no intermediate review.

of this injunction that was issued by these three. Instead, the next option or the next stop is a discretionary review in the Supreme Court. So I found that structure kind of interesting, but it is an election law case, so maybe some urgency is required to skip intermediate review. So that was one thing. And the second thing is, yeah, there was a dissenting opinion where this judge who did not agree that the injunction should issue on the redistricting in Texas, boy, did he call out the author

of the majority opinion ⁓ issuing this injunction, take some personal pot shots and ⁓ one of more emotional ⁓ dissents I've ever read.

Tim Kowal
Yeah, I read the I've listened to some of the commentary on it and I've not read the the dissent itself, but Yeah, I do get the impression that it was it was quite heated I'm not I'm not sure and until I dig into the actual opinions whether I quite understand Why it's so heated other than you know elections are heated things and so election decisions are gonna be heated things it reminds me of

What was the name of the case? The Second Amendment case that we talked about a couple of years ago, where there was some interesting maneuvering by Judge Van Dyke, writing the majority opinion and then also concurring to his own majority opinion, you know, writing the... ⁓

Jeff Lewis
Yeah, but even though I didn't agree with what he did there, didn't. He didn't. I mean, was cute. It was interesting, but he didn't personally attack the justices. I mean, he attacked arguments, not judges. That's the difference here.

Tim Kowal
maybe there's some line drawing of what constitutes a personal attack. My recollection of Judge Van Dyke's opinion in that case was that there was, he didn't call anyone out by name, but he was accusing generally his colleagues in the Ninth Circuit of trying to have it both ways on when it comes to Second Amendment jurisprudence and kind of quietly either.

Disregarding some of some high court precedent and ⁓ so it was Now maybe maybe that's maybe that's when within the lines, but I guess in my mind it just comes within the same piece of No pulling punches anymore with these appellate judges when it comes to high you know high leverage issues like elections like You know

First Amendment issues, Second Amendment issues, some of these high profile culture war issues. There's no punches to be pulled. We're going to go right for the jugular. We're going to call things as we see it, so to speak.

Jeff Lewis
Well, let me read from the dissent in this Texas redistricting case. I know we're running long here, but let me just read a little bit. In the dissent, he says, this is how he starts. The main winners from Judge Brown's opinion, Judge Brown wrote the majority on the injunction. The main winners from Judge Brown's opinion are George Soros and Gavin Newsom. The obvious losers are the people of Texas and the rule of law. I dissent. And then he goes on to say, in 37 years as a federal judge, I've served on hundreds of three judge panels,

This is the most blatant exercise of judicial activism that I have ever witnessed. boy he's emotionally invested in this case.

Tim Kowal
Yeah, well,

again, it's a it's a piece of these high leverage disputes when they don't go the way that you think they ought to go. And they're going to have impact on on on significant issues of national import, in this case, an election that could turn the tide of, you know, the the the next term in in Congress.

Jeff Lewis
Tim, I've never worn the black robe, so maybe I'll never know, but isn't it moments like this when the stakes are so high and so many eyes are on the issue and so much is riding when you really need to attack arguments and principles and not people? Because everybody's taken a lesson from that about, you know, lawyers look at how judges write and sometimes emulate judges for better or worse. I don't know. I expect more.

Tim Kowal
yeah, I may agree with you. Without having read the opinion, I don't want to say more, but I agree with that sentiment that when you do wear the black robe, you do have a duty to protect the institution, and you don't want to start calling it out as personal or partisan unless you're truly at the end of your rope.

Jeff Lewis
Yeah. Yeah.

Tim Kowal
Well, okay, we better break it there. So that'll ⁓ do it for us this week. If you have any suggestions for topics or guests to bring on the podcast, please let us know at info@calpodcast.com. As always, If you need tips on how to lay the groundwork for an appeal when preparing for trial, tune us in next time.