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. If you find this podcast useful, please recommend it to a colleague.

Jeff Lewis
and give us a positive rating on Apple podcasts or wherever you listen to the show.

Tim Kowal
Today we're pleased to welcome Jeremy Rosen to the show. We've talked about many of Jeremy's cases in past podcast episodes. Jeremy is one of California's most distinguished appellate attorneys and a nationally recognized authority on First Amendment and anti-SLAPP law. He is a partner at Horvitz & Levy, LLP, widely known as the state's leading civil appellate firm where he manages the San Francisco office and has handled hundreds of appeals and state and federal courts with his name on more than 100 published decisions and over 50 oral arguments. A Cornell and Duke law graduate, Jeremy Clerk, for both the Ninth Circuit and the Central District of California before building a national appellate practice and earning honors that include two Clay Awards, recognition among California's top 100 lawyers and public counsel's pro bono attorney of the year. Jeremy is also committed to public service, having launched Pepperdine's Ninth Circuit Clinic, and he has testified before Congress in support of a federal anti-SLAPP statute. something that is very near and dear to Jeff's heart. And Jeremy brings a deep conviction that appellate advocacy should serve both individual clients and the broader legal system. Jeremy, thanks so much for coming on.

Jeremy Rosen
Well, thanks for having me. I guess long time listener and big fan.

Tim Kowal
Well, Jeremy, as I mentioned, we have talked about some of your recent cases, such as the One Taste versus Netflix decision. And we talked about the Scientology case, including what we both agreed was excellent oral advocacy on your part. But before we jump into that, I want to talk a little bit about nuts and bolts of your practice. A few years ago, back in 2022, I guess not quite open the Horvitz & Levy San Francisco office, but invigorate it with some leadership and marketing efforts. And so now you're three years in plus in that endeavor. And how did it start and how is it going?

Jeremy Rosen
Well, I think, it's one of those things that I never planned on, life to sort of take you in interesting directions. My wife and I had never expected we'd leave Los Angeles. we were, we just started our empty nest period. And my wife, who's a law librarian and was very happy as the head of reference at UCLA Law Library, never thought she would go to another job, but then the opening came up to be the chief librarian for the Ninth Circuit. And if you're in the law library field, other than, chief librarian of the U.S. Supreme Court, perhaps, there is no greater, higher position that you could get. And so in that position, her predecessor had been in it for over 30 years. So it's not like a job that comes on the market every day. So I remember we were both working at home that day in our respective home offices and She came down and asked me while I was in the middle of something, if I got a job in San Francisco, would you move? And I just said yes. And then about a half hour later, I finished whatever I was doing. And then I walked upstairs to where her office was. And I'm like, I'm not going to change my answer, but what is the job?

Tim Kowal
You didn't object to incomplete hypothetical?

Jeremy Rosen
And then she told me and she said, oh, but don't worry about it. I'm not going to get it. And I said, no, think if you apply, you'll get it. And of course she did get it. And we moved to San Francisco and the firm, we had opened the small San Francisco office just in 2019, just before the pandemic. And it was, we still hadn't sort of, it hadn't quite hit its stride. We had some great lawyers there, but not a huge plan or direction and our management committee at the firm was just starting to think is coming out of the pandemic, what are we going to do with the office? And then I mentioned to them that I was going to be moving to San Francisco. Could I work out of our San Francisco office? And they're like, how quickly can you be there? And we need you to run it. So I'm like, okay. So

Tim Kowal
Okay, fortuitous timing then.

Jeremy Rosen
So when we moved here in 2022, I was the fifth lawyer in the office and we had one staff person. now have, and my math is terrible, but I think we now have 14 lawyers and two staff just in a little over three years. And I'm now in my third separate commercial lease negotiation with our landlord to get more space. Because first thing I did was, We were on the third floor of our building and I got us moved up to the 15th floor with much better views and more space. And then about a year and a half ago, we needed more space. we expanded, we took now, we had had a quarter of a floor and now we have half of the floor. Now we're negotiating to start moving on to the other side of the floor to, know, one day slowly maybe get to a full floor, but it's happening I think faster than. we plan, but I think there's a lot of, it's both a credit to the firm is doing very well and there's a lot of demand for our both trial consulting and appellate services. And I think having a San Francisco office is very attractive to increasing the pool of candidates of outstanding associates that we can attract to come here.

Tim Kowal
I was struck by the proportion. You said you'd currently have about 14 attorneys and two staff. Is that about the same proportion of attorneys to staff as reflected in the LA office? I wondered if they run as lean in terms of the staff side.

Jeremy Rosen
No, not taxidermy. Well, that's a good question. like, for instance, my primary legal assistant is in our LA office. Most all of our staff functions, we operate as one firm. We're slightly, we're a little, think, in the low 40s now of total lawyers. And at the moment, most of our staff is in LA and everything is online. It works out well. I think as we're getting bigger here, that's one of the conversations we're going to have to have. whether we want to ramp up and part of our space planning is we now, especially we get the additional space we're looking at now, we'll have a lot more staff carrels and workstations. So we'll be able to, I think, add more staff, but that is part of the management questions like TBD as we're getting bigger.

Tim Kowal
I see. So you're able to work almost as an integrated firm across the LA and the San Francisco offices and share resources somewhat. I take it that's probably a benefit of the post-COVID world where everything is online. You're able to get on Zoom meetings.

Jeremy Rosen
Yeah, at the moment, I think I'm I'm working with all but, almost every associate in the in the firm, both in our San Francisco and L.A. offices and working with many of our partners in both offices. Since I came here, I was the for a while I was the only partner here. And last year, my partner, Brad Polly, who was former president of the L.A. County Bar, he moved up here. So now we have He and I are both here and hopefully we'll be adding to the partner ranks here over time as well.

Tim Kowal
And you're not just doing management work. You clocked in a lot of appellate briefs last year. I think you mentioned on LinkedIn something around close to 40 appellate briefs and also managing a law firm. And that's tough to do. There's a lot of work that goes into managing a law office, especially a growing one like the Horvitz & Levy San Francisco office. And yet you're still able to dive in and do the laboring or on a lot of substantive appellate briefing work.

Jeremy Rosen
Well, my entire life, I'm a firm believer in delegate to really smart people, both in terms of management and case related work. mean, one of the reasons I love Horvitz & Levy is I get to work with 40 plus of the smartest group of appellate lawyers that I know of. And certainly, you're not going to find that many who are that good that you can draw upon on a day-to-day basis. So I get to work with really smart people. I used to write a lot of appellate briefs and dig into record. Now I don't write. I write hardly at all. I edit and strategize. In fact, my son was describing to a friend of his what what I do and he said, well, my dad spends all day on zoom meetings and in between he responds to a lot of emails and at night he edits briefs. at first I was offended. I'm like, well, that's, that sort of sounds dismissive, but then it's sort of actually true. And even on like management decisions, there isn't a whole lot. mean, knock on wood, like we have good people like the thing and we have a wonderful sort of admin who basically really runs the office by making sure that we have supplies and snacks and the conference rooms are scheduled correctly and all those things. But even on some of the bigger decisions like design was a big one as we were sort of expanding on. And I don't have that much talent or any talent in. design, we hired a designer and, we have one of our lawyers here is very interested in design. And I'm like, okay, you're like on our design committee and like, figure out like where we need plants and where we need artwork and, what our conference room table should look like. yeah. So again, again, like I was involved in the decisions, but like having people who are really smart and able to jump in and, and whether it's on a case or managing the office, it's it just makes my life manageable.

Tim Kowal
Yeah, and being able to shift gears from doing high level appellate strategy to, what kind of plant goes in the conference room, is a lot of friction and can create a lot of mental disturbances throughout your day. And you mentioned not being able to get to editing briefs until nighttime. That's a difficult thing to do.

Jeremy Rosen
Well, what I learned that, yeah. Yeah, what I learned is like literally, I think the most expensive furniture that you can offer, or at least office furniture that you could ever want to purchase is a large conference room table. Like I was absolutely stunned when our designer was giving us different options. I would have thought that like the really large desks we have in our attorney offices, especially the ones that like go from, can do a sit stand that with, know, that, the push of a button, which is pretty cool for people who like standing desks. I would have thought those would have been like the most expensive things that no, it's the stupid conference room table, like the price point on them. I couldn't believe, which is why, you sometimes all in meetings, I'll glare at people to use coasters, Do you know how much money he spent on that stupid table?

Tim Kowal
That's where coasters come from is when you're in the feeling the pain of having just shelled out a lot of money for that table. Yeah. well, let's talk about what an appellate boutique like Horvitz & Levy actually does for trial lawyers in our audience who have heard the Horvitz name, but haven't worked with Horvitz & Levy. What does it look like to be the client of a pure appellate boutique? You mentioned

Jeremy Rosen
Ha Yes.

Tim Kowal
not only appellate services, but trial consulting services. At what moment in the line of a case do you typically get the call from either the client or the trial attorney?

Jeremy Rosen
there's no typical time. year and a half ago, we were hired by a client, right after this massive class action was filed in the central district of California to come in right away as actually co-counsel record with their main trial team to work on what turned out to be the winning motion of a motion to compel arbitration. But We were also, know, thought was if it got to a class certification motion, they wanted us to be there to actively work on the opposition because as you know, if a class is certified, you only have 14 days to file your discretionary petition with the Ninth Circuit. So I've got three other class actions, two in the Central District now, one in the Northern District that I'm working on for the same reason that, we're... working closely on opposing class certification and if class is certified then we're in place to be able to take it to the 9th Circuit. So that is, one entry point, a very common entry point is right before trial. So I think a week or so ago we won unpublished deferments in the second district on behalf of Walmart after a defense verdict in a lengthy sort of employment and sort hostile environment case. And we were hired just before trial in that case. And we worked closely with the trial team on motions and limine, jury instructions, the verdict form. My colleagues and I, at least one of us was in trial every day to help advise the trial lawyers about preserving issues for potential appeal, addressing some of the legal questions that came up during trial. As I recall, we drafted a couple of pocket briefs during trial and then we worked, it was a defense verdict, so then we worked on opposing the post trial motions and then think one of my colleagues actually argued the post trial motions and then plaintiff appealed and then we handled, we did the respondents brief and one of my colleagues just did the oral argument and then we just got the opinion affirming it. So that was, I think. very, we worked very closely with the trial team during trial. And then when it went on appeal, like we took more of a leading role obviously on the appeal, but with the input of the trial lawyers as well. another case that I'm just working on now, we got hired after the bad verdict in Santa Monica Superior Court. came in, we drafted and argued the post trial motions. We got some relief on the post trial motions, but not nearly enough. So we'll soon be filing our notice of appeal and trying to get additional relief on appeal. So that's another common entry point. And sometimes we just get hired when the case is already in the appellate courts, and that's fine too. So there's sort of all sorts of possible entry points and, I think that's the biggest difference. I've been doing this this week, later this year, I'll be at the firm 25 years. So I said, yes, about 25 years of doing, pretty exclusively appellate work. The biggest change from when I started till now is when I started, was pretty much 95 % of our work was appeals with the occasional post trial motion. Now I'd say 40 % of my practice is some form of trial court work, state and federal, and then 60 % more pure appeal. And that's not an important change.

Jeff Lewis
Wow. Hey, Jeremy, when you get involved, if I saw your name on my opposing brief, my anxiety would double in terms of my chance of winning the case. At the trial level, do you hide or fly under the radar or do you kind of telegraph your firm's involvement at the trial court level to kind of telegraph and convey the seriousness of your client in terms of arming up?

Jeremy Rosen
So that's an interesting question and it really varies. that's one, I don't purport to, I'm not a trial lawyer. I don't understand trial tactics. I think I'm a very good appellate strategist. So we always take the lead from the lead trial counsel and the client. And there are some... cases where the firm is asked, actually don't even dress in suits when you like just dress down and sit in the back of the courtroom. Don't even come up to us when anyone can see us, just meet up with us at lunch or send us an email because they really don't people to know that we're there. And sometimes they want us sitting at counsel table and arguing some of the legal matters and sometimes we'll even associate in. And sometimes it's in between that. I mean, honestly, some of the leading plaintiffs' lawyers, know what we look like. Even though we're the largest appellate critique, we're still not that many lawyers. So they sort of know what we look like. So if they see us in the back of a courtroom, they know why we're there. We're not there just for our health. We're there because they have a seven to nine figure judgment that they're trying to get. And they know that the client is concerned about that. I tend to think that people overthink these type of things. Honestly, I think sometimes it's the trial judges, some of them who get irked. I'm not gonna mention any names, but there have been some trial judges who are like, the appellate lawyer is here. So sometimes it's bad for a reason to sort of try to lay low a little bit.

Tim Kowal
I wonder if the thinking another factor in asking appellate counsel, not to reveal themselves and, know, stay plain clothes and you're on undercover undercover duty, so to speak, is I wonder if they want the trial judge not on, their guard. Maybe they'll be more likely to be a little bit more casual and flip about their rulings and create some appealable issues for them. Whereas if they're on their guard.

Jeremy Rosen
Mean, again, it really varies. Most trial judges, in my experience, are happy we're there, because they know that if nothing else, know we know how to research it right. so whether they agree with us or not, we'll provide helpful briefing. sometimes, I think most trial judges want to get it right. So I think when they have us, if we're arguing, in limine motions or jury instructions or the verdict form, I think they do listen. carefully because they also I think know that if they do get it wrong, like we're more likely to get them reversed than the average person. I think people tend to overthink whether we should be disclosed or not. I don't know that it's a great state secret.

Tim Kowal
Do you, I wondered if you had a strategy or a set approach when it comes to either post trial motions or appellate work where your trial counsel colleague might've left a preservation issue where you have maybe a good issue, but there's some question about whether it was 100 % preserved and you worry that if you push on it too hard, you might get a formal ruling that sorry, your trial counsel waived this issue. And does that factor your- factor into your decision on what issues to raise either in post trial motions or on appeal. And how do you have that conversation with trial counsel?

Jeremy Rosen
Well, that is I think, I think that writ large is why not just us, I think, many appellate lawyers now are sort of the model of sort of the embedded appellate lawyer in the trial team is becoming, I think very common over the last, five, 10 years. And I think one of the reasons is, is that sophisticated clients were sick of people like me coming in, after the trial and started to read the record and say, well, like you might have had these two issues except they were waived and like we could try to make them on appeal and say it's a pure matter of law and you have discretion, but it's not as strong. And so I think part of the reason that clients and good trial lawyers want their appellate lawyers sort of embedded in the trial team is to try to spot those issues and make sure that all the important legal issues are preserved. Because I think, you the skills of a good trial lawyer are different than the skills of a good appellate lawyer. No one would ever want me to cross examine a witness or to like take a deposition. I can assure you of that. But on the other hand, we're very good at, we're sort of appellate nerds and we read all the cases. And so we know what issues are percolating in the appellate courts. And we know, and we understand complex legal issues in ways I think better than many. And so we can see a trial through the lens of like legal issues that should be preserved and the good trial lawyers They're trying to like win the trial in front of the jury, which means like, get their evidence in correctly cross-examine the bad guys witness as well and try to convince the jury. So like we're trying to do different things and we work complimentary because You generally need like the good legal issues if things go south on the verdict and so But you can win the trial without doing a deep dive into the legal questions. And so having both is important. Now in situations, it does come up where we weren't involved early enough and issues are waived. And our view is we're not here to cover up for mistakes that were made, but we're also not the police on mistakes. So we just sort of go about our business and we identify the issues. And if there's a problematic issue, we'll lay it out and sort of explain why it's problematic. And here's what we're thinking. We're not looking to point blame. All sorts of things can happen in trial. There's all sorts of reasons to not raise something. trial lawyers have a very difficult job of having to make split second decisions. So it's easy for me. where I get to sit in my office for two months and think about something to say, aha, they should have done this in the spur of the moment. So we will identify issues that might be potentially strong ones, but for the fact that they may not have been preserved as well. we'll try to lay it out. depending what the other issues are, if we have a lot of good other issues, then we won't raise those. If we have a lot of other bad issues, then we're going to go for the good issue that might have some procedural problems. And I've won appeals on waived arguments before. I've certainly lost on them too. So you just never know. But you just have to make a judgment of, on all the other issues, is it worth pushing this particular issue that has a waiver issue?

Tim Kowal
We are definitely in a Monday morning quarterbacking profession as appellate attorneys. And Jeff reminds me about every episode that he would never hire me as a trial attorney because I draw way too many objections on all my questions as compound and vague and leading and the rest.

Jeff Lewis
Yeah. Sustained.

Tim Kowal
But speaking of, mean, the trial attorney, trial attorney team is the one who is initially architecting the theory of the case. And, sometimes there's a way to pivot and to reframe on appeal. I wanted to ask you about your approach and maybe is there a, is it a Jeremy Rosen approach or is it a Horvitz & Levy approach to drafting appellate briefs? You mentioned that a lot of your work is is architecting the theories of the case and editing and otherwise delegating to very able attorneys. What is that approach like? How many attorneys are often involved or typically involved in drafting a brief in your shop?

Jeremy Rosen
So for the standard appeal and our standard model that Ellis Horvitz sort of pioneered years ago, and I did have the privilege of working with him a little bit when I was a very junior associate, was to have sort of two-person teams as sort of the standard model where one is sort of our lead lawyer, typically is going to read the full record However long it is, know do all the research do the initial drafting of the briefs now in consultation with what we call sort of the supervising Lawyer, well before the drafting starts, they'll start going back and forth on what's the strategy the oftentimes there'll be an outline that they'll be comments back and forth on and then a lot of heavy editing we are people ask me like who are the people who don't like and haven't sort of made it at the firm because they don't like it. It's people who don't like to be edited. We are the firm belief that any brief, no matter how well done, can be improved by multiple rounds of editing. And it's true, whoever does it, as I think I said earlier, I don't write very many briefs. I will occasionally be called upon to write something and then it gets viciously edited and improved. just like anybody else. Well, they know I don't know how to write anymore. I'm an editor, not a writer. So our standard is now as appeals have gotten more complicated and bigger, sometimes we'll have three person teams or even four person teams, but our core belief in this, I think did come down from Ellis and passed through some of the partners who,

Tim Kowal
Yeah, once you become supervisor, then all you have is high-level advice.

Jeremy Rosen
who are the senior partners when I started, and some of them are still here, is that brief writing by committee leads is not a very persuasive way to, and I don't want to call out, but I think a lot of large firms have more of a committee approach. And I think you can tell when a brief has been written by six different people and it's been put together by another person and then edited by a lot of people like, I think you have a much better voice if you have one person primarily who has sort read through everything, understands the whole picture of the entire record and then the legal landscape and has sort of woven together a coherent draft. That doesn't mean it can't be edited by multiple people and improved, but it is much better to have, I think, sort of one primary architect of the drafting. think you end up with a much better. work product and that is certainly our model that has been in place since I've been at the firm and I know from before I was at the firm because that's how it was taught to me when I joined.

Tim Kowal
So it's a kind of a two drafter model or one primary drafter who actually knows the case cold and then one supervisor or kind of an architect.

Jeremy Rosen
Yeah, so our basic model is like one primary drafter and one editor. Sometimes, as I said, with bigger cases, we might have two editors. And we will occasionally, if there truly are discrete parts of things, for a very large case, and if there's a time crunch, although we don't like to it, there might be occasions where it works to have. someone do a discrete part, like if there's really truly a separate cross appeal that is completely separate from the main appeal, have someone do, you can sometimes split it up that way. Although our baseline presumption and what we normally do is have one person who is sort of the lead drafter of the entire brief. that, think, over 50 plus years at the firm has been at the forefront of appellate law, I think our briefs are very good and I think that system works.

Tim Kowal
Well, and how does that flow into oral argument? Who makes the decision on who argues the case when there, if there's one primary drafter who knows the record cold, is that person weighted heavily to do the oral argument or do you want the strategist who knows the high level aspect of the case better to go in oral argument?

Jeremy Rosen
So our definitive strong preference that we advise clients on that has been true for going way back at the firm is that the person who read the record and did the primary drafting should do the oral argument. So like, for instance, like when I was an associate at the firm longer ago than I care to admit, I had like five arguments in the California Supreme Court as an associate, which. I don't know that that could have happened any other firm, including my first argument in the Supreme Court was Varian versus Delfino, which I know Jeff does a lot of anti-SLAPP. I gave you the automatic stay. You're welcome. But it's true, as the appeals get bigger, especially for more corporate institutional clients, there is a...

Jeff Lewis
That's my favorite case.

Jeremy Rosen
a stronger preference sometimes to have, they used to say like, it's the gray hair. Like with me, I have no gray hair, I just don't have hair. So it's very frustrating. But so, even though like our general advice is to have the person who read the record do it, some of our senior partners do get asked to argue from time to time and sometimes more than time to time. Although I will tell you that, Now, like I used to love oral argument and now, it's more of a chore because it's much more work actually for me to prepare for argument when I haven't been the primary drafter because I remember when I was a young lawyer and occasionally snarky, I would see some of the senior partners who were getting up there and floundering because they had not read a case or the record and didn't know what they were doing. They were just there because of their name. would always snicker and make fun of them. And now I'm that person and I'm like, I will not be, I'm just motivated by not letting the younger, snarkier people out there to make fun of me in that same way. And so it's just a lot, but if you haven't read, like I end up, I'm preparing for oral argument in the Ninth Circuit right now in a few weeks. And I've been reading through the record, which I hadn't read before. I'd read enough of it to like, I read the key parts of it so I could strategize on the briefs and edit them effectively. now I'm reading through most of the rest of it. And I read some of the key cases that we need. But now I'm pulling, I just sent a list to my assistant of all the cases to pull that I need to read because I know that they can be important and that you can get questions on them. And so it's just a lot of Whereas if I had done the drafting like I used to, I would have already read them. It doesn't mean you still have to prepare, because argument is oftentimes a long time after the last brief. But I would have at least been in a position where I had read them once. Now, preparing for argument, I had not read them. And so you have to read them and then start thinking, OK, whatever the themes I want for argument. So it's like double the work. having to read everything and then still do the mental process of preparing for argument that anyone would do in terms of coming up with the themes that you want for argument, coming up with answers to the tough expected questions, figuring out what you're willing to concede or not concede, where you would pivot, all the different strategic questions that you have to have to do an effective argument. So it's a lot of work.

Tim Kowal
It sounds like maybe the way you prepare for oral argument now maybe is different than the way you prepared as a junior associate, it may be different than the way you prepared in the middle of your career. Are there different modes of preparation for oral argument depending on your skill level or experience level as a appellate advocate?

Jeremy Rosen
Well, for me, the basic part has stayed the same. I don't know how far in the weeds you want to go, but some people I know like to have outlines, some people like note cards. I view oral argument as a series of modules because you never know what order they're going to come in. So I like to take every issue or sub-issue that I think could be a question and prepare notes. to myself on that particular module. And then I go through it that way. I don't think of them in any particular order, because I don't know the order that they might come up at the argument. And then I come up with, if I have a few minutes of unquite, where they're not interrupting, what would be the first three things that I would say? So I do think of that as well. But then I also think of all the tough questions and we always do at least one if not multiple internal moot courts which are tend to be very very rough and the goal is for the moot court to be far more miserable than the actual argument. You really want to put someone through their paces. Unfortunately now like people who are mooting me like I think take too much glee and internally it making me squirm and look stupid. But it's all helpful in the preparation because I'd rather screw up internally and then be ready for the actual argument. And I always come home after moot court and tell my wife, I went through the wringer today. It was ugly. And she has a saying that she keeps reminding me, like, bad moot court means good argument. that knock on wood has generally been the case.

Tim Kowal
I just listened to it. I just listened to the advisory opinions podcast. had Lisa Blatt on who was talking about her oral argument preparation. And when she does a moot court before oral argument, she likes to get out all of her aggressive arguments and her barbs and everything so that she can get shut down and learn, okay, that's why I don't say that, and then she'll be more conservative at the actual oral argument. So sounds like maybe you do something similar.

Jeremy Rosen
Yeah. Yeah, I find, it's part of the process. a lot of the preparation, I do by myself, reading the cases, reading parts of the record, making myself notes on points I make. Then I tend to bother the people who actually like read the record and wrote the brief, with incessantly, a number of emails, all the stream of consciousness, the questions I have, and then they're very kind. about answering them. And then I find the moot court to be like a very helpful, like trying to put it all together. And then generally it doesn't, there are some things that are good in the moot court and some things that are not good. then, I usually like to make sure there's at least a few days after the moot court to sort of put it all together and, and really fine tune and then go into the argument. And then you just never know. what's going to happen at argument. Like I've been doing this a long time. I've had a lot of arguments. Some of them go according to script and some of them will go off script. And mean, that's the difficulty. You just have to be able to go with the flow and sort of figure out what to say given the shift that may or may not be happening.

Tim Kowal
Do you feel now that after having done over 50 oral arguments that you have a better sense of what questions are likely to come up? Do you get thrown off guard less often after you do several dozen oral arguments than when you're doing your first oral arguments?

Jeremy Rosen
certainly I think with experience and I think I haven't done a recent count from probably, you know, probably getting closer to 100. I don't know. I guess I should figure that out at some point. But yeah, I think with experience you get better. But as I said, also when you have more experience but you're not taking the lead on it, there's also the danger that you also don't know as much. And so that's what I'm always fighting against of over-preparing, because I didn't do all this work in drafting the briefs that I used to do before oral argument that would help in the oral argument preparation. so you have to make sure. that's why I like, and this is also to encourage clients to go with the lead lawyer when we'll. quote, budgets or flat, we do a lot of flat fees too for oral argument. I'll give, it's going to be a much higher number if they want me to do it than the lead lawyer. And it's not just because my rate's higher, but it's also because it's going to be more hours of time just because I haven't done all of the sort of initial preparation that the lead lawyer would have done.

Tim Kowal
That's right. I also wonder if you notice a connection between the type of questions that you get, an oral argument, or maybe just the overall quality or experience of the oral argument, a connection between that and the level of briefing. Now, obviously, I assume that most of your oral arguments are you're arguing your own briefs, but I don't know if there are occasions when you're asked to come in and just argue someone else's briefs. And I always get nervous doing that because...

Jeremy Rosen
I've done that a handful of times and that I really have not enjoyed because, the briefs inevitably have problem. there's generally a reason that, a client is coming in and saying, we want someone else to do the oral argument that had written the briefs. And it's generally because they realize perhaps too late, maybe should have had someone else do the briefing. so the... So I've had some awkward experiences and I've even had to say things like, look, I didn't write the, which is a terrible answer to have to give like, at an argument. So I'm not sure I would ever want to do that again. I guess never say never, but I've had a couple of just not great experiences in that context. So I'm not sure I would do that again. I think in terms of the. questions generally, you I think as a whole, the, like the ninth circuit, California's from court, California court of appeal, like have some very, very engaged judges who ask a lot of questions. And so, I'd say most of my arguments, are the type of conversation you like. sometimes it's a conversation you don't like, cause they're basically telling me everything they disagree with, but you just have to. plow through and do your best. What I really don't like are sort of cold benches that don't ask questions because I don't, and this is where I always tell clients and everything, if it's a cold bench, I'm only going to talk for like two or three minutes because I think if you talk much more than that, if they don't have any questions and nothing you say at oral argument, I think is really going to help. think oral argument only impacts things to the extent that the judges are looking for oral argument to help it influence things. And so if they don't have any questions, I'll talk for maybe two minutes and try to just make the clearest possible way, like why we're right, especially for appellant, the clearest, most succinct way of explaining the error to hope that it resonates. it would be pointless to stand up there for 15 minutes and go through all these things with if they have no questions. So I just I just I won't do that.

Tim Kowal
And you don't necessarily want them to have questions for you. You don't want to make an intentionally jarring or over broad statement just to elicit a question that's going to be critical of your argument. So yeah, think you're right. better to just make your point quickly and sit down if the court doesn't have any questions.

Jeremy Rosen
Well, honestly, if they're going to be critical, I'd rather they ask a harsh question than not to say anything. Because if you're going to have any chance of persuading them to change their mind, you have to hear from them what their actual concern is. So actually, mean, saying something provocative to get them to say, why they don't agree with you is actually not a bad tactic depending on the case in the situation because if you're if you're winning then then that great then they can be as silent as they want but if you're losing then you really want them to to ask questions because that's the only way you're going to be able to perhaps have a chance to change their mind.

Jeff Lewis
Hey, Jeremy, with the vigorous mooting that goes on in advance of oral argument, have you folks started to engage at all with AI in terms of preparing for oral argument?

Jeremy Rosen
So just doing it, as with most things, we're sort of cautious, late adopters of things, but we've recently gone through sort of internal tests of Harvey AI, which we found to be actually quite excellent and useful for certain things. And I'm now using it to... do some initial generation of, oral argument questions that could come up and possible oral argument themes. I think, the thing with AI is I think it, and I'm not a tech person, but from what I've started to see in it, like it can save time on certain things and it can give some actually some very useful feedback. But of course, as you know, from following my big slur case, like It can also make horrible mistakes if you're not double checking everything. So I'd be loathe to have it do a ton of drafting, but it can be a powerful editing tool, especially to shorten briefs and to sharpen them, and to synthesize a list of issues and questions. It can be very powerful. So I think a lot of our Clients are now saying that they are expecting lawyers to do use AI in responsible ways as a way to be more efficient. And so I think we do need to use it, but we also need to be careful with it.

Tim Kowal
Yeah, maybe that suggests you still want your editing, your writing attorney, the one who knows the record cold to be doing that the old fashioned way. But maybe the strategist and the architect could be bouncing some ideas back and forth with ChatGPT or Claude or something to get some high level ideas and then ask your editing attorney if it matches up with the record.

Jeremy Rosen
Yeah, as we've been going through it, I have two different appeals where the other side filed briefs with sort of false citations. So I've sort of become an expert at dealing with that now. But I have, like half ingest, told people over lunch that if I'm ever put in the position of having to file the letter, which I would, taking responsibility as the senior person on a case for filing false allegations, I will be very angry. And the wrath will be real.

Tim Kowal
So Jeremy, I just wanted to cover a little bit. I had a lot of questions talking to probe your ideas on First Amendment law and the importance of free speech. But we're kind of running a little short on time. But I wonder if you would share with us your opinions or prognostications on whether we're ever going to get a federal anti-SLAPP law. You had testified in Congress in support of it. on the Speak Free Act. You served as the VP of the Public Participation Project and supported Representative Raskin's Slap Protection Act of 2022. What whatever happened to that and is there any future for it?

Jeremy Rosen
I tend to think that Washington DC is a sewer and nothing good is ever going to come out of there again. Maybe I'm too cynical. I had high hopes when, that sort of process began and, staffers were asking intelligent questions and I helped edit some different drafts of the proposed legislation. submitted, parent testimony. But the day that I knew that this was never going to happen is I was on a conference call with I think all these staff, I think on the Democratic side, because think they were in the majority in the House at the time. So it was the House Judiciary Committee staffers. And they were calling. They had asked for this call with some of the outside groups. you sort of working on the bill because they were, they didn't know what to do because like the ACLU was supporting the bill, but like the public employee and other unions were against the bill and they just didn't know what to do. And I naively said, well, why don't you just do what's in the best interest of the country? And there was like stunned silence, like that I had said like the... Just silence.

Jeff Lewis
Not laugh, not laughter though, just silence. Okay.

Jeremy Rosen
Like like like I had said the dumbest thing like anyone had ever heard. Um, and that's what I knew like this is never Like I just don't see a path forward. There's just too many People against it although maybe the what may happen. i'm actually in the ninth circuit now, I have an en banc, actually an initial en banc petition pending to um Get the nine circuit to finally recognize that the state anti-SLAPP statute does not apply in federal court, which I think, even though I'm a big fan of anti-SLAPP jurisprudence, I don't think that California's statute, especially as it has now been radically changed by decades of Ninth Circuit precedent where there's now no interlocutory appeal, there's no discovery stay, there's no prevention of leave to amend. making all these changes. then, but so basically the only thing that's left is if you call it an anti-SLAPP motion, you get attorney's fees. But like that's not the state's, like the state statute has all these careful, it's supposed to be a quick, efficient process. And then you get attorney fees if you prevail. It's not supposed to be this long drawn out process with no appeal that you can get like crippling attorney's fees awarded. So. So maybe if the Ninth Circuit and all the circuits sort of finally say that we're not going to import state, and I slap, maybe that will reinvigorate it at the federal level by statute. I just don't know. I sort of lost hope on that one. Although there should be. I think it's important to have a way to protect. mean, I think First Amendment rights are really important, obviously. And I think there should be a way for know, ways to protect that in the federal courts.

Tim Kowal
Would the California Anti-SLAPP Statute be a model in your view for a federal statute? Or do you think that it does it go too far? there other measures that you would implement if you had your druthers in a federal statute?

Jeremy Rosen
I think the California anti-SLAPP statute, like if I were writing it from scratch, I would change some things in it, but I think it works pretty well. I think it's a good statute. Could it be improved? Sure. But I think there are worse things to... I don't always say use California as a model for anything, but I would use California's anti-SLAPP statute as a model. And certainly, there are reasonable ways to tweak it in different ways to improve it, but I think it's basically a very good statute.

Tim Kowal
Have you ever taken cases on behalf of the plaintiff pushing back against what you thought to be an over-read of the California Anti-SLAPP Statute or are you uniformly in favor of the moving party, moving defendant?

Jeremy Rosen
well, I'm not, mean, just my general philosophy as a, as a lawyer is I, don't, I don't pick cases based on what I believe, or I take the cases that come to me. And that's true. Even to some extent, all the pro bono work I do, it's generally it's, it's worked, a lot of times it's from courts looking to the ninth circuit or otherwise to appoint pro bono counsel or, there are a lot of groups I've worked with who will just come and say, can you do this case for that case? And if I can, I will, whether or not I agree with the particular. facts of a case. I think that's important for lawyers. mean, I think there's just been a lot of, I think it's just really vicious on both sides, attacking lawyers for representing clients and ascribing clients positions to lawyers. I just think that's wrong. And John Adams represented, the Boston massacre soldiers. so I've taken both plaintiff and defendants and I thought in fact, I have a very prominent plaintiff side anti-SLAPP appeal right now representing Jay Z and his defamation and extortion lawsuit against Tony Busby. And obviously the trial court granted the anti-SLAPP motion and we're trying to get it reversed. I've taken, I take each case as it comes and do my best to win for my client ethically consistent with the law. But if you're asking like in the abstract, do think the anti-SLAPP statute serves an important purpose.

Tim Kowal
So what is your, do you have a through line on your first amendment cases? I guess that your last answer partially answers that. You kind of take all comers if you believe that there's merit to the case, but you do seem to be a fan of the first amendment. I, so I wonder if that puts your thumb on the scale on, maybe I'll, maybe I prefer to take this case that would set a pro free speech precedent rather than this other case, which would dampen free speech rights.

Jeremy Rosen
as an individual, I try to separate what my personal, both political and legal jurisprudential views are from my clients. And so, I probably do have a red line. Like it hasn't happened yet. guess I was thinking of one, I was also recently finished a term, a two year term as president of my. like synagogue, one of the largest in the country. And I do a lot of work, pro bono work fighting anti-Semitism. I probably would have a difficult, like, this letter that was in the news where, know, student, the student group, think at UCLA, the student council, objected to having a former hostage who was, tortured and, kept for over a year. by Hamas come speak on campus at, for the Holocaust Remembrance Day, you know, I'd be hard pressed, guess, to defend those students. But, you maybe that's my red line.

Tim Kowal
Yeah. Well, Jeremy, thank you so much for spending some time with us. Jeff?

Jeff Lewis
I have one last question. Will you put in a good word for us with the chief librarian for the Ninth Circuit to come on the show?

Jeremy Rosen
I can certainly ask. Although we're going to be celebrating our 29th wedding anniversary this summer and she hasn't listened to me yet, so I don't know. But I'll do my best.

Tim Kowal
Okay. All right. Well, that'll wrap up this episode. If you have suggestions for future episodes, topics, and guests, please email us at info at calpodcast.com. In our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial. Thanks so much, Jeremy Rosen.

Jeff Lewis
See you next time. Thank you.

Jeremy Rosen
Thank you.