Jeffrey 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 insights they can use in their practice. As always, if you find this podcast helpful, please recommend it to a colleague.

Jeffrey Lewis
And please leave us a positive review on Apple Podcasts or wherever you listen to this podcast.

Tim Kowal
All right, Jeff, we have a few cases and tidbits to report to our audience, including the Mirabelli versus Bonta Supreme Court emergency docket decision, or, more catchy, the shadow docket, about the transgender injunction being put back in effect in California. A couple of other recent cases, but first, we want to close the loop on the AI sanctions case that has been much talked about in this podcast and abroad. So Jeff, would you fill us in on what happened in the Scientology case, where we expected to see fireworks on, was it Tuesday morning?

Jeffrey Lewis
Yeah, we're recording this on Thursday, March 5th, and you and I were watching online on Tuesday, March 3rd, and the most notable thing about this argument is what didn't happen. There was no discussion about essentially an OSC re sanctions regarding one firm's filing of an AI-generated brief. A lawyer had fallen on his sword, taken full responsibility, said it happened, and had asked for leave to file a corrected brief. The other side said, Nope, you shouldn't be able to file a corrected brief, and the court should impose sanctions. And the court denied leave to file the corrected brief. So the briefing stood as is, and the oral argument was on Tuesday. Everyone who watches this case, people I've talked to, all expected to have a big conversation with the justices about sanctions. Instead, what happened is the lawyer who was facing a threat of sanctions showed up ready to answer any questions. Another lawyer stood there to argue the merits, and that's what the court did. The court received argument about the merits of the case exclusively, and the issue of sanctions never came up.

Tim Kowal
Now, in other cases like this, Jeff, where the court is minded to talk about attorney misconduct or potential sanctions, the panel will explicitly raise the issue, whether or not the parties or the attorneys actually raise it. And we expected, or I expected, the panel to be interested in that issue. There was an OSC issued. The respondents' counsel did file a response to the OSC on the last day, the day before the oral argument. But there was no question from the panel, and neither side nor their attorneys raised the issue besides what you mentioned. Jeff, the plaintiffs had counsel there, separate counsel from Boies Schiller, who were the attorneys of record, but they had a former Boies Schiller attorney, Simon Leen, argue the merits. The attorney who fell on his sword, John Kucera, was there present in the courtroom and prepared to answer any questions. But like you said, Jeff, neither side raised any issues directly about the sanctions issue and the AI hallucinations that occurred in the respondents' brief. And I wondered if I was surprised by that. Were you surprised by that, Jeff?

Jeffrey Lewis
I was surprised on a lot of levels. First of all, after announcing that sanctions might issue, the lawyer that was facing sanctions had up to 10 days to file a responsive brief addressing the issue and waited till the 11th hour, 11th minute, to file it. I would have given the court more time, I suppose, to read and consider the brief rather than the afternoon before the argument. But we don't know what was in that brief. It could have been a full concession, yeah, I deserve sanctions, so maybe there was not much to talk about. But I thought that was an odd strategic choice to file that brief so late. I mean, it was a timely filing, but late strategically.

That was one thing. Then, if I could share an observation about the argument, Jeremy Rosen did a masterful job on behalf of Scientology in terms of he obviously had a prepared outline. He announced he had a prepared outline, and the justices announced about 30 seconds into his outline that they were going to veer away. And he pivoted. He went with the justices and then returned back to his outline. I think he said, you know, your honor, I have a roadmap, and the justices said, well, we're going to just demolish your roadmap and ask our own questions. So kudos to Jeremy Rosen for doing a fantastic job with that argument.

Tim Kowal
Now, Jeff, you had mentioned that before this oral argument, you had raised an interesting potential ethical issue from the standpoint of the respondents. After you have been issued an OSC to respond to potential sanctions for attorney misconduct and citing hallucinated AI cases in your brief, is there an ethical quandary on the part of these attorneys when they are responding? They filed the brief in response to that issue, but as we talked about, they expected there to be some oral argument on that issue. Now, if the panel doesn't specifically raise questions about it, and you've only got a limited amount of time to argue on your client's behalf—now, in this case, both sides reserved 30 minutes, so they had the maximum 30 minutes time—but there were a lot of questions from the panel to both sides, a lot of interesting issues in this case. What would the ethical considerations be if the respondents' counsel said, you know what, we really want to spend at least a few minutes of our time arguing that the court should not impose sanctions on us, but that's going to cut into the client's time in arguing the merits? What do you predict that conversation looked like behind the scenes?

Jeffrey Lewis
Yeah, it's really an awkward situation, and to be clear, the OSC was for sanctions against the lawyer, not the lawyer and the clients, just the lawyer. So there's this gap in positions there. Some lawyers listening to this podcast would say it doesn't matter because oral argument, 99.9 percent of the time, doesn't matter, so what's the big deal if you yield a minute or two, it just doesn't matter. But for those about 1 percent of cases where oral argument does change the outcome, it does matter. And let me just, in terms of the stakes, let's talk about going to the state bar with this. If there's a sanctions order, there's a very high likelihood it'll either be in an amount or, regardless of amount, there'll be a directive that the clerk send this to the state bar. The stakes are very high for this lawyer. And so you have a lawyer and a client who are at odds in terms of their interests. The lawyer has an interest in getting out of there with the least amount of sanctions possible, maybe under a thousand, and the client has an interest in just having the discussion focused on the merits.

So what does that conversation look like? You could email over to the client a conflict waiver saying, hey, here's a conflict. I'm supposed to have your permission before I go show my face up in court and participate in these proceedings. I'm not even sure this is a waivable conflict that a lawyer could waive. I got to tell you, I've said this from the beginning: this lawyer did the right thing by falling on a sword and admitting to the AI error and not throwing his staff under the bus. I always thought this lawyer should back out of the case, pay for and hire new lawyers to come in and take his place, and just be done and end the bleeding and end his involvement with the case the minute that AI-generated brief was discovered. That was my opinion. So he would never have to have that awkward conversation with the client, other than I'm so sorry and let me pay for your new lawyer.

Tim Kowal
Well, maybe that's a version of what actually did happen. Simon Lee did come into the case after this sanctions issue surfaced sometime before, right before the parties reserved oral argument. So it seems likely that he came into the case as a response to this situation. Now, could John Kucera have backed out of the case formally? Maybe. Does that make things better or worse? He still is going to have to report back for that OSC if the court issues the OSC, which it did. So maybe doing more than that is not going to aid things, trying to create a formal separation between the attorney and client. So maybe the attorney and the client followed your advice, Jeff.

Jeffrey Lewis
Could be, could be, who knows? I'll tell you on the substance, getting beyond sanctions, there was one thing that caught my eye or my ears when I was listening to this argument. You know, I do a lot of SLAPP work, and this case is primarily about review of a SLAPP order. And a lot of the SLAPP work I do has to do with online statements, sometimes online reviews like Yelp reviews. And one of the questions or one of the discussion points raised by one of the justices was a question to Jeremy Rosen of whether or not all online reviews are worthy of prong one protection as a discussion of something in the public interest. Boy, did that get my attention, because there's a lot of controversy right now about whether or not everything you spew on the internet is entitled to constitutional protection or not. And I don't know if that question forecasted a change or tightening up of how the court might view the protections of the anti-SLAPP law as it relates to online statements or online reviews, or maybe it was just a question.

Tim Kowal
Yeah, that one stuck out to me as interesting: do discussions about popular restaurants deserve more protection than discussions about unpopular hole-in-the-wall restaurants?

Jeffrey Lewis
Right. Right, do you get into the content of the review, the identity of the review, the subject of the review, before you apply prong one? And Jeremy Rosen said, when asked, look, if Yelp has made the decision that this business is worthy of having a Yelp account or subject to Yelp reviews, then it's hard to imagine a business like that not being worthy of prong one protection under the anti-SLAPP law if there's a negative review. That was his take on it.

Tim Kowal
Well, we'll watch for the decision on that one. And there may be something beyond the AI and sanctions issue to report about that case, because it could be a significant substantive SLAPP decision in its own right.

Jeffrey Lewis
Yeah, and with these parties, I suspect there might also be petitions for review in the future, one or more.

Tim Kowal
Okay, well with that, let's move on to our next case. The US Supreme Court has issued a case of some import in California in Mirabelli versus Bonta. This was an order from the emergency docket early in March 2026, March 2nd. A school district imposed a policy that prohibited teachers from disclosing students' gender transitioning to their parents. The school alleged that this policy was required by state law as enforced by state officials. So with that, it became a statewide case and teacher plaintiffs were joined by parent plaintiffs. So you have both teachers and parents on the plaintiff side.

This raises an interesting kind of collateral issue about Trump v. Casa and the ban on nationwide injunctions. And this is going to turn into basically a statewide injunction. How does that happen consistent with Trump v. Casa? So there was a class certified in this case. There were in fact two different classes, each with a subclass, where there are parents in one class and teachers in another class, with one subclass being parents who objected to the policies on a broad substantive due process claim and another subclass who objected for religious reasons, and they would have been entitled to the Mahmoud v. Taylor Supreme Court protections. So that's how it proceeded procedurally on a class basis or quasi-class basis, with the district court granting an injunction in favor of the plaintiffs and then the Ninth Circuit on appeal issuing a stay of that injunction. And while the parents sought en banc relief in the Ninth Circuit, they also simultaneously sought relief in the U.S. Supreme Court without waiting for the en banc review, and the Supreme Court went ahead and stepped in and reversed the Ninth Circuit's stay of the injunction. So it reimposed the injunction.

Justice Kagan had a dissent, as she has frequently done on these emergency docket decisions. So first, let's see what the nub of the majority's decision was that reversed the stay and left the injunction in place while the rest of the case winds its way through the Ninth Circuit and then potentially up to the US Supreme Court on a merits docket on a cert petition, maybe. Here's the nub of the decision: the parents, not the state, have primary authority with respect to the upbringing and education of children—that's Pierce v. Society of Sisters—and the right protected by these precedents includes the right not to be shut out of participation in decisions regarding their children's mental health.

So that is the decision on the substantive due process part of the claim. The other part of the claim, the religious free exercise or equal protection claim, is Mahmoud v. Taylor, so that question is a little bit easier. But on the substantive due process, Justice Kagan had some valid points. So first, she had some procedural objection to the fact that this was decided on the emergency docket rather than waiting for the Ninth Circuit en banc. Justice Kagan said, quote, the court is impatient, it already knows what it thinks and insists on getting everything over quickly, end quote. She notes that there are multiple other cases, including Foote versus Ludlow School out of the First Circuit, and in those cases, the court could have granted cert, but it did not. Why not then just grant certiorari in Foote, Justice Kagan asks, and decide it this coming fall? It's a rhetorical question, obviously, Jeff, you're not expected to answer, you know the answer.

She notes that the Ninth Circuit en banc was looking at this and should have been deferred to, but that didn't happen either. Justice Kagan again: quote, the court jumps the line, preempting the Ninth Circuit's normal and notably reflective en banc process. Why wait for appellate procedures to play out when the court already knows what it wants, end quote. Again, a rhetorical question. And even if Mahmoud answers the free exercise question, what's with making substantive due process a so-called easy question, Justice Kagan wants to know. I thought this was the most interesting part of her decision and most pointed, so here I'm going to read a couple more quotes from Justice Kagan.

So the district court also ruled on substantive due process grounds, finding a parental right to direct the upbringing and medical care of their children. And indeed, in doing so, the court made its free exercise ruling superfluous, because the due process ground protects every parent, whether or not religious. But substantive due process has not been of late in the good graces of this court, and especially of the members of today's majority. The due process clause, needless to say, does not expressly grant parental rights of any kind. The relevant text bars a state only from depriving a person of liberty without due process of law. And here's the, I thought, the stinging bit: members of the majority often have expressed skepticism, sometimes outright hostility, to understanding the capacious term liberty to enshrine specific rights, citing Dobbs v. Jackson Women's Health, where the court famously cut way back on substantive due process and said these are matters left to the state.

And then here's from Justice Kagan's closing salvo: a mere decade ago, this court would never have granted relief in this posture. Indeed, I am confident that the plaintiffs would never have even thought to ask at this stage for the court's involvement, end quote. I thought that was a pretty good dissent. There still wasn't any reference to the class action bit, which I thought was independently interesting. Was this an appropriate, normal, regular use of Rule 23 class certification? It just seemed kind of willy-nilly put together, but there wasn't a lot of discussion about that; it was just kind of given a pass. Did you have any reactions to this one, Jeff?

Jeffrey Lewis
I'm still reacting to you opening this with saying you agree with Kagan. I'm not sure you've said that on this program before.

Tim Kowal
Well, I never said I agreed one way or the other. I think I agree with the Mahmoud part on the free exercise question. The substantive due process does seem to be given a little bit of a short shrift.

Jeffrey Lewis
Look, it's not surprising to me that parties are attempting to utilize the shadow docket in this way, with applications for stay that never would have been presented 20 years ago or shortcutting intermediate reviewing courts' processes before they're completed. It doesn't surprise me that parties are flirting with the Supreme Court to feel out how far the Supreme Court has gone or is willing to go in anticipation of what arguments might, when it gets to the merits briefing, be the most well-received. And so on the surface, of course, this is just a stay application. There's no ruling on the merits. And yet, you have a lengthy opinion accompanying the stay and a lengthy dissent, which does forecast some views that the justices have about this case. So I'm not surprised. Go ahead.

Tim Kowal
Well, is it lengthy? It's not exactly lengthy. It does forecast some views. But of course, that's true of any—

Jeffrey Lewis
It's not lengthy, Tim, hang on a second. I can't say I'm a Supreme Court scholar, but aren't most applications for stay, when they're granted, just the court hereby grants the application, the district court's order is stayed, not a five-page opinion?

Tim Kowal
You're saying you think relative to other stay orders—

Jeffrey Lewis
Correct, for actions on the shadow docket. Usually, it's application granted, application denied, administrative stay granted, or denied. You've got an opinion here and a lengthy dissent.

Tim Kowal
Well, it may or may not be lengthy. I'll agree for the sake of argument. I don't know. I'm not versed enough to say whether it is outlandishly lengthy or significantly more lengthy than the usual. But as I pointed out, I thought that the rationale was a little too succinct. It was a little cursory, especially on the substantive due process aspect. But on any kind of these injunction or stay applications, there's got to be at least a preliminary determination of the likelihood of prevailing on the merits. So in that sense, any time the court passes on one of these, they've got to make that preliminary determination. So do you say that in all of these instances, well, the court's already telegraphed what it believes about it, so therefore it's all a moot point?

Jeffrey Lewis
No, absolutely not. What I am saying is, and by the way, the activity of the shadow docket, I think, speaks more about the thought process of the Supreme Court bar, the lawyers who frequently practice in that court, than it does, say, about the justices. Applications are being made more often than they would in the past or more aggressively. And I'm not saying that any of the justices have strong views of the merits that they're trying to convey in this order. I'm just saying these are seismic times in terms of the changes on the court, and I think we're going to start seeing more and more activity in the shadow docket, meaning more frequent applications, more frequent shortcutting of the intermediate courts, and jousting, if you will, with these decisions that accompany the stay orders, because it's a way for the justices to convey information to the practitioners before the bar, and it's a way for the practitioners to feel out whether future applications like this in a totally unrelated case, but relying on substantive due process or religious freedom, will be welcome. That's all I'm saying.

Tim Kowal
That's part of why I read that last bit from Justice Kagan's dissent and thought it was interesting and made a good point, where she says, indeed, I'm confident that the plaintiffs would never have thought to ask at this stage for the court's involvement, compared to 10 years ago. That's a fair point. As you call it, these are seismic times. There certainly are shifts. Of course, you can always say that there are shifts, and the shifts are good or the shifts are bad, depending on if you like the direction the shifts are moving in.

Jeffrey Lewis
Yeah, I don't like the direction the shifts are moving in. I'm not putting a value judgment here. If the next president were to stack the court and put on six more justices and it had a left-leaning bent, you would see lots of shadow docket activity there, too. It's a view-neutral way of getting everybody to a point of equilibrium in terms of the normal processes of the court, in my view.

Tim Kowal
Yeah. I am curious why the court did not wait at least for the Ninth Circuit en banc. I'd like to be a fly on the wall in that discussion. I wonder if there must be some Supreme Court scholars who have some hypotheses about why that happens and when that has happened in the past. But as Justice Kagan pointed out, there have been some other cases, even cases that the court had not deemed to take up on cert, where it could have reached the merits of this issue. So maybe it goes to a question of vehicle, cert worthiness, whether for one reason or the other, the court didn't deem the other cases to be a good vehicle. Maybe it sees this case as being potentially a really good vehicle, and it wants to protect the jurisdiction or something to keep it a good vehicle so it can take it up eventually. Lots of other subterranean considerations that may go into the jockeying on the emergency docket.

Jeffrey Lewis
Yeah, and we'll never know. We'll never know until somebody writes a book about it in 20 years.

Tim Kowal
Yeah, if they don't burn the papers. Okay, next case. LA International Court versus Prestige Brands Holding. I think our listeners will like this one, Jeff. Attorney fees are not determined by the number of attorneys at the firm. It should be music to your ears as it is to my ears, Jeff. This is the Ninth Circuit decision from February 2026. Hat tip to podcast alum Raffi Melkonian for this one; he shared this one on LinkedIn. Raffi draws our attention to the attorney's fees discussion in this case. Raffi says that the district court had cut the rates for a small plaintiff's firm, reasoning that it was simply unreasonable to award big law rates to a four-person firm representing mom-and-pop warehouses. And right off the bat, that makes me bristle with indignation, Jeff. The Ninth Circuit vacated that. A firm's size doesn't determine the market rate for a lodestar calculation. What matters is the lawyer's skill, experience, and reputation, not their headcount. As the court reminds us, brilliance at the bar is not measured by the number of associates a lawyer commands. And as Raffi notes, some of the best appellate lawyers I know work in small partnerships or as solo practitioners. Paul Clement himself has moved from big law to small platforms and back again. They chose that structure deliberately, not because they couldn't hack it elsewhere, but because it suits how they want to practice. And the flip is true too. There are both exceptional and plain old bad lawyers at the biggest and most prestigious of firms. And Raffi again with the takeaway: first-rate lawyers deserve first-rate compensation regardless of how many names are on their letterhead. What do you think, Jeff?

Jeffrey Lewis
Well, you know, I'm biased. I view this through the lens of a SLAPP lawyer who brings a lot of lodestar attorney's fee motions. But, you know, if you look at state law lodestar cases, none of them refer to the size of the firm. The number one issue is skill, and also you look at the relevant market in terms of geography. So I obviously will add this case to my list of cases to cite when there's a challenge to the amount of fees or the rates.

Tim Kowal
Yeah, as will I, and as should all of our listeners who are at small or mid-sized firms.

Jeffrey Lewis
Are you listening, Fran? Go ahead.

Tim Kowal
That's right. Okay, next one. I think this is the last one in my quiver for this outing, Jeff. Kioller versus Superior Court from January 2026. This is the California Supreme Court in just a summary grant and transfer in another AI sanction case, where now the state Supreme Court is getting in the mix. The Court of Appeal had summarily denied a motion for sanctions against the Nevada County District Attorney, but the California Supreme Court stepped in, granted review, and transferred the case back with directions to issue an order to show cause. The underlying issue appears to involve AI-generated citations, fabricated authority, and the prosecution's appellate briefing. We don't have the briefing on this one, and this is just a summary grant and transfer, but helpfully, the attorneys Todd Terrell, Logan Bach, and Sadie Soholt put an article up at Jenner Block detailing some of what happened here.

Here's from their article: a Nevada County District Attorney submitted a response brief citing eight cases. Three of those eight cases didn't exist at all. Three more existed but said nothing resembling what the DA claimed. They even cited a constitutional provision that was irrelevant to the point being argued. When opposing counsel discovered the fabrication and filed for sanctions, the DA's response made matters worse. First came a phone call claiming she was just going too fast in her research. Then came a brief characterization of wholesale fabrication as scrivener's errors, the legal equivalent of claiming the dog ate your homework. The Court of Appeal twice denied sanctions motions without explanation. The Supreme Court, in a unanimous order, directed the Court of Appeal to issue an order to show cause why sanctions should not be imposed.

Perhaps more significantly, the court gestured to the civil referee process under Code of Civil Procedure sections 638 through 640 as a mechanism for the trial court to investigate and resolve the matter, essentially green-lighting a formal inquiry into whether the DA had relied on AI hallucinations. And the attorneys Terrell, Bach, and Soholt surmised that the court was probably influenced by United States versus Hayes, where the Eastern District of California sanctioned an attorney who also blamed hasty drafting for the AI hallucinations there. The court didn't just impose monetary penalties in that case. It ordered the sanctions notice be sent to every state bar where the attorney was licensed and to every judge in the district, creating a permanent public record of professional failure. So Kioller follows the same trajectory. By denying responsibility and offering implausible explanations, the DA transformed a correctable mistake into an ethics investigation that could result in career-altering consequences. So Jeff, find your sword and fall on it promptly and thoroughly. Do not let it go further. The lesson: attorneys who immediately acknowledge AI errors and take corrective action face manageable consequences, but those who deflect, deny, or minimize will face investigations, public embarrassment, and escalating sanctions. Reactions to this one, Jeff?

Jeffrey Lewis
Yeah, I was kind of surprised to read the Supreme Court had taken this up, perhaps because a public agency is involved. I will say, on a semi-related note, you forwarded me an article discussing this case, that the Senate bill regulating the use of AI, imposing duties of care on lawyers and forbidding, in some circumstances, arbitrator use of AI, is making its way through the State Senate. And as far as I can tell, reading the reports about this bill, there have been no groups coming out against it, but a couple in favor of it. So if the trajectory continues, I think we're going to have this law passed, and maybe the Supreme Court will have to act in fewer circumstances because there will be a law in place that trial courts can rely on.

Tim Kowal
Yeah. Well, my takeaway was that I don't know how attorneys just don't take responsibility for their screw-ups. I mean, it's never fun to find that you've messed something up, but the cover-up is always worse than the crime, Jeff. When you try to dissemble and deflect, the first lesson I learned was to take responsibility, just man up. You try to blame your staff, it's not going to work out well for you. No one likes a blamer. They want to see you take responsibility, because if you can't find the person who is responsible for the error, how can the court ever be assured that it's not going to happen again?

Jeffrey Lewis
Yeah, for sure, for sure.

Tim Kowal
And as we've seen, the court is very concerned about all of the case law and the legal work product coming out of the mid-2020s as having an asterisk next to it because we all lost our minds and forgot how to practice law and delegated it all to the machines.

Jeffrey Lewis
Right.

Tim Kowal
Okay, that's going to cover it for my cases today, Jeff. Got anything else?

Jeffrey Lewis
There's been a resounding silence from our audience regarding the topic of original Superior Court file use as the appellate record. Nobody's emailed me, so I've therefore concluded it's never been used.

Tim Kowal
I've never seen it, Jeff, nor have I ever seen the judgment roll. So I'll continue to be on the lookout. But that's going to wrap up this episode. If you have suggestions for future episodes, guests, or topics, please email us at info@calpodcast.com. In our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial.

Jeffrey Lewis
See you next time.