Introduction and Listener Feedback

Lisa McCall 0:00

I'm always thinking about the appeal. And I think that is not something that most trial lawyers are doing. I think the really good ones are, but I think as they're getting closer to the end of a trial and it's not going well, that's when they're gonna call me panicked, going, I don't think this is going the right way.

Announcer 0:16

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

Tim Kowal 0:30

Welcome everyone. I am Jeff Lewis, and I'm Tim Cowell. 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 0:44

Yeah, if you find it unhelpful, go ahead and send it to your opposing counsel.

Tim Kowal 0:48

Jeff, before we get started, we had a note from one of our listeners. I think we had expressed back in March that uh we didn't know what a judgment role was. And as a shout-out reward to our listeners, we wanted to uh voice that comment. Maybe we'd get some insight on what a judgment roll is.

Jeff Lewis 1:03

Yeah, sure. So Megan Taylor wrote in after our March 3rd episode, and in that episode, we talked about the term judgment rule. I think it was in the context of someone designated the record instead of a clerk's transcript, instead of an appendix. I think they had tried to designate a judgment rule, and neither of us knew what that meant. And Megan knew exactly what it meant because she uh wrote in, she lived it, she had a family law case before Judge Carmen Luehe in Orange County, and the judge used that very term when questioning the validity of her judgment. Megan did her own research at the law library and learned that a court reviewing a judgment on the quote, judgment rule is limited to the documents in the official court record, not the behind-the-scenes communications. So, Megan, thank you for writing in and uh letting us know it's exactly kind of feedback we love. And if you have a question, a story, or even a correction, if I got something wrong, Tim never gets it wrong. But if I get something wrong, go ahead and drop us a line at infocalpodcast.com, and we might just mention you and embarrass you in a future episode.

Tim Kowal 1:58

Okay, and with that, we want to uh welcome our guest today, Lisa McCall. Lisa is a salt practitioner practicing in Orange County. She's a dual certified appellate law specialist and family law specialist, one of a small group of approximately 12 in the entire state of California. Lisa is also a fellow of the American Academy of Metrimonial Lawyers. Lisa's 18-year practice has consisted of a combination of family law litigation and civil appeals and writs, primarily in the area of family law. She previously served as the chair of both the appellate law and family law sections of the Orange County Bar Association. Lisa is a member of ACFLS, the Association of Certified Family Law Specialists, where she previously served as the associate chair of the Orange County Chapter and on the editorial committee. She's currently a member of the Amicus Committee of the ACFLS, which we'll be talking about because we're very interested in how to get uh more opinions published. And the Amicus Committee reviews unpublished cases and drafts, letters requesting publication. They probably also know

Understanding Judgment Rolls

Tim Kowal 3:02

how to pronounce the word amicus, something that we we do need to recognize authority on. So, Lisa, welcome to the podcast. Thanks for joining us.

Lisa McCall 3:09

Thank you. Thank you for having me.

Tim Kowal 3:10

Okay, now right out of the gate, do you have any further perspective on what a judgment role is? Jeff and I had thought that it just uh pretty much just means the record. Uh and and this this comment said that it is limited to the documents and the official court record. Does that mean, do you think, and this is open to Jeff too, does it mean that it doesn't include like what happens on the oral record? Is that the difference?

Lisa McCall 3:31

I don't know if there's a difference between what happens on the oral record versus the the actual minutes of the court. My understanding of the judgment role has always been that it's basically the docket and the orders that are contained in the court file. It comes up the most when we're talking about motions to vacate, avoid judgment. The error has to be apparent on the face of the judgment roll. I always understood that to meant the actual orders in the court file, something that any judge could look at and immediately verify without maybe having to go get a reporter's transcript. So I would agree with your assessment.

Tim Kowal 4:01

Yeah, it's kind of like Jeff, do you think that it's just basically stand in for the written record, not the oral record?

Jeff Lewis 4:07

Yeah, I suppose. Yeah. I've never actually had to deal with it in an appellate or or trial context. But yeah.

Tim Kowal 4:13

Would it include trial exhibits if this is a case after a trial?

Lisa McCall 4:17

Well, if it has to be apparent from the face of the judgment rule, I'm assuming that that means there's a judge who's sitting in their chambers looking at the online file and they're saying, what's in there? Is it is the error apparent from the face of what I'm looking at, right? Without getting any further into it. So I would assume that doesn't have anything to do with exhibits and transcripts, but I haven't researched it thoroughly enough to opine definitively or authoritatively on it.

Tim Kowal 4:42

Yeah, and this is after uh I I promised you I was not going and try to catch you off guard on some unknown topic. So we we started this conversation at uh a pellet nerd level 10. So let's try to back it up to maybe a seven or eight. So let's talk about what it's uh what it's like just from your perspective as a dual specialist. Jeff and I browse every uh every time our our group comes up to do our CLE compliance. We have not only have to do our general CLEs, but also pellet specialty CLEs, which are a little bit more difficult to come by. Uh, and you have to do two sets of pellet specialist CLEs every time your group comes up. Tell us what that is like. And how difficult is it to maintain two separate sets of specializations? And you've taken that that exam two different times in in two different specialties. Uh, give us a little perspective on what it's like to hold two specializations.

Lisa McCall 5:30

Well, as far as the MCLE is concerned, the family law stuff is very easy for me because I'm heavily involved in all of the family law organizations, the ACFLS, the OCBA, the AAML. So just this year, I just started my new MCLE compliance period,

Dual Specialization in Law

Lisa McCall 5:47

and I'm already over 60 hours just for the first six months of this year. So family law has never been difficult for me to get. The appellate law one is a little more challenging. We have our monthly appellate law meeting that we do for the appellate section of the Orange County Bar Association. And so you can get usually get most of what you need from that. But I like to supplement using the the Pincus educational program recordings. Those have been great. So between the two of those, I usually can do that. But that one takes a little more effort because there aren't quite as many. I'll go to a family law weekend and get 12, 14 hours in one weekend. So it's it's not quite as easy to come by for appellate law.

Tim Kowal 6:26

Yeah. Yeah. Was it a difficult decision? It sounds like you got your family law certification first.

Lisa McCall 6:32

Yes.

Tim Kowal 6:33

And then later on added the appellate certification. Was that a difficult decision to uh decide I'm gonna have to study up and take another one of those full-day uh mini bar examinations?

Lisa McCall 6:44

Not at all. In fact, I started out doing appellate law. I kind of did it backwards from how most people get into appellate work. So I started doing appellate law and then went to trial work. And so I had always wanted to be an appellate law specialist, but it took me a while to get enough oral arguments at the beginning to be able to have the point structure that was necessary to take the exam. And then at some point, my point structure was off the chart and I probably had enough to satisfy it twice over. So it was just a matter of waiting it out until I was qualified, but I always wanted it.

Tim Kowal 7:16

That seems rare. Do you know of many family law attorneys who not only early on but ever uh angled at being an appellate specialist?

Lisa McCall 7:23

Aaron Powell Not from the very beginning, not usually. I don't think most lawyers know of it as a real option at the beginning. I think it's something they learn about through practice. But I started out working for Marge Fuller, who was one of the most well-known and respected family law appellate attorneys in Orange County, at least, if not if the whole state of California. And she trained me from the time I was a little baby lawyer, 25 years old, taught me everything she could teach me about doing appeals primarily in family law. And so at some point she said, you're really gonna need to get some trial experience if you're really gonna be good at this, if you really want to know the ins and outs of getting these issues right on appeal. And so I went and worked for a trial attorney for about six and a half years and in family law, and then opened my own practice in 2018, and and it's been a combo practice of litigation and appeals, but I've been shifting more in the direction of appellate work in the last few years.

Tim Kowal 8:16

Yeah. So so you really did start as an appellate attorney and realized that you needed to, as uh Marge Fuller told you, to get nuts and bolts experience in the trial court. What kinds of approaches or perspectives have you developed as an attorney with a kind of an appellate first mindset practicing handling trials? Do you feel like that you take a different approach to family law trials than other family law attorneys?

Lisa McCall 8:39

I think I do, just that I'm thinking about the record the whole time. I think a normal trial lawyer, yes, we're of course trying to make our record. We're getting exhibits in and we're making our arguments, but I'm always thinking about what happens if this isn't what I want, or what

Appellate Mindset in Family Law Trials

Lisa McCall 8:55

happens if this is what I want, uh, how do I protect it? So I'm constantly thinking about how to protect the record as I'm doing a trial. And I think that I'm thinking about if evidence is excluded, I'm making my offers of proof, letting the court know what that evidence would have shown had they not excluded it. I am making sure that everything gets in evidence that needs to be in evidence, making sure I'm requesting a statement of decision where needed. I'm always thinking about the appeal. And I think that is not something that most trial lawyers are doing. I think the really good ones are, but I think as they're getting closer to the end of a trial and it's not going well, that's when they're gonna call me panicked, going, I don't think this is going the right way. I'm thinking about that from the beginning.

Tim Kowal 9:34

I did some quick Googling before we started recording. And uh I saw that tell me if if this is true from your experience or if you've looked it up. Uh statistically, there are fewer, fewer uh family law appellate decisions published pro rata than than uh civil generally. And uh I suspect that has to do with the fact that so many family law orders and judgments are so fact-bound and discretionary that uh that that becomes a prohibitive to uh to publishing many of them. Is that true in your experience? And if so, does is that a is that uh a hindrance to pursuing uh appeals through through family law? Doesn't it make it uh a more frustrating endeavor if you're coming out and they're they're fact-bound, they're discretionary, and you're not gonna get a published decision, and yet you've gotten, I think, uh 12 published decisions to your name. So that's a huge credit to you.

Lisa McCall 10:26

But uh but yeah, in the last few years, I think since 2017, it's like eight, something like that. But it's not a huge number. The ones that are published usually are focusing on development of some area of the law, and they establish something new or they explain some area of the law in a better way, or they clarify, or if two cases have different approaches, they kind of clarify where the distinction is. And so the ones that are just complaining because the the judge was biased against me, or the judge didn't listen to my evidence, or the judge was really wrong in finding me not credible, those ones don't go anywhere. And I think there are a lot of those appeals in family law, and I think those are rightfully not published. The ones that are published are the ones that continue to develop the law. And I think having fewer cases that are focused appropriately on developing the law is a better approach, which is the one that is utilized.

Tim Kowal 11:21

When you take on a case that's still in the family court, you must be, I mean, are you taking cases that have publishworthy issues possibly lurking at the end of them?

Lisa McCall 11:30

Yes. Not always.

Tim Kowal 11:32

Not always, but that's that that factor enters your enters your thinking.

Lisa McCall 11:36

Well, I will say generally, if I'm doing a trial, I don't think it's a good idea for the same lawyer to do the trial and the appeal. Because when you are the trial lawyer, you have bought your own story. You have convinced yourself by the end of it, and you are no longer objective. And so it's nice to have a separate appellate attorney who can be objective and look at the issues and say,

Challenges in Family Law Appeals

Lisa McCall 11:58

I don't see an appealable issue here. So I try not to be the same lawyer for both a trial and an appeal. The only time I find myself being the same lawyer, usually, is when I'm doing some kind of a post-judgment cleanup motion of some kind, like maybe a motion to set aside, and that's unsuccessful, and then we end up on appeal. So I'll find myself in both the trial court and the court of appeal, but not usually. It's rare.

Tim Kowal 12:21

Let's talk about some other nuts and bolts, the trial tips that you have in family court from the perspective of dual specialists in family law and appeals. And maybe we'll start with uh statements of decision, since that procedure has changed a little bit or will be changing effective, I believe, uh January of 2027. Let's talk first generally about the statements of decision as an appellate tool. And I'd be curious, Lisa, to get your perspective or if you would share how you explain the process to litigants and to trial attorneys. Uh Jeff and I have talked about how, yes, on the one hand, it's it's super important to understand why to make a request for statement of decision and why to object to any omissions in the statement of decision, because then you're in if you don't, then you're in implied findings territory. But on the other hand, even if you do check all the boxes and you get it reversed, just get sent back to the same judge to make the missing findings and then you're you're back. You might as well just challenge it on on lack of substantial evidence to begin with. Uh so I wonder if you share that cynical perspective or if if you explain it to uh to your people differently than Jeff and I do.

Lisa McCall 13:29

Well, I'll start out with I'm trying to avoid substantial evidence type of appeals in the first place. So if I'm getting down to the evidence, I'm probably in losing territory on appeal to begin. So I'm usually focused on getting the record correct so that I can take whatever legal issue I have with how it was analyzed or ruled upon, or failure to consider, or improper burden of proof, that kind of thing. So I'm trying to get a clean record so that I can take those legal issues up. So that's usually kind of my focus on that. On the statement of decision process, so we've always had to, up until now, oh, up until January of 2027, we always needed a tentative decision. And then we had to do the request for statement of decision. And the tentative decision was something that was a required piece. And under this new iteration of Code of Civil Procedure sections 6, 32, and 34, it's now not going to be required. The court can just order a party, one side, to prepare the proposed statement of decision. And so I think there was some confusion. One of the things that I found myself explaining to trial counsel often was well, the court did a 10-page decision. So why do we need a statement of decision? All of the reasoning is right here. And I would tell them, well, because it's not a statement of decision. It's the

Statements of Decision: Importance and Changes

Lisa McCall 14:44

required tentative decision. And then you have to request the statement of decision, and then you have to get the proposed statement of decision, and then you have to do objections, and then you get a final statement of decision. So I think there's a lot that has been kind of confusing to people about well, why do we need this? And so I think the new law is going to clear that up a little bit and and help people focus. But I the purpose of the objections to it is to, like you said, avoid the doctrine of implied findings. And the current version of 634 says if you don't bring in omission or ambiguity to the court's attention, the doctrine of implied findings controls. So that's what we're always trying to avoid.

Tim Kowal 15:23

I like your perspective about how confusing and misleading it can be when when clients and even trial attorneys see that tentative decision. It doesn't they they just skip right past the label as as you as typically you would do. Typically the label does not control. If the court is making all of its findings in a document, why does it matter what the label is? But this is the one of the exceptions where the label does control.

Lisa McCall 15:45

Well, and and then that adds another layer of complication, which sometimes the court will call its tentative decision, the statement of decision. And so then they say, well, look, it's the court's statement of decision. And I'll say, well, did anyone request a statement of decision? Did the court say it was ordering a statement of decision and allow a period for objections? So the process was confusing to all. And I think the new iteration of the statutes is going to clear it up. We're supposed to be getting a new California Rules of Court 3.1590 as well. So hopefully it'll streamline the process and everyone will understand it a little better.

Tim Kowal 16:18

You're right. If things may may change slightly in the new rule 3.1590. But let's let's cover for our listeners what we expect the new statement of decision procedure to look like. So instead of waiting around for the uh for the tentative decision before we decide whether to request a statement of decision, what do litigants need to do now, Lisa?

Lisa McCall 16:38

So first of all, we have to request the statement of decision still. But we used to be able to request it within 10 days after the tentative decision on a hearing over eight hours. Now it always, in all cases, has to be requested before a submission. So I tell people, make it the last line of your closing argument. And I respectfully request the court issue a statement of decision for on the factual and legal basis for its determination on child support, right? And sometimes I'll even go a little more detailed, like including the guideline and any basis for deviations from guideline, that kind of thing. And that being the child support guideline that controls in family law proceedings. So now it has to be done before. That was something that I could usually help trial counsel with. I would, the first question I ask is, did you request a statement of decision? If they say no, I say, how long was your hearing? And then often we're getting into a fight over, was it actually eight hours? Because family law proceedings are often heard in little pieces. And so they'll say, well, it was three days. It was obviously over eight hours. And so I'll help them prepare the request and I'll get something back from the court saying, sorry,

New Procedures for Statements of Decision

Lisa McCall 17:43

the hearing was seven hours and 48 minutes, and you're not entitled to a statement of decision denied. So we're gonna eliminate that problem, but we're also going to add in a new area where I can't help trial counsel if they don't request the statement of decision before submission. So these rules are going to be very important to trial counsel to know. The second thing is the objections, the time to object to the proposed statement of decision is now 10 days instead of 15 days. And there's a rule on submission of judgments as well that it has to be prepared within 30 days of the decision or 30 days of the final statement of decision. And then also the request used to be able to be made orally, like I just mentioned. Now, under the new rules, it's going to have to be made in writing. But writing includes orally on the record if there's a reporter present. So in at least in Orange County family court, I point because it's like right over there. At least in the Orange County family court, we can request it orally most of the time because there are almost always reporters. But in a lot of the other counties, it's not a given.

Tim Kowal 18:45

Yeah, that's important. That's actually, I think, part of the new rule that it can be requested orally, but only if there is a court reporter.

Jeff Lewis 18:52

At least the Orange County family law courts provide reporters like the good old days? They do.

Lisa McCall 18:56

They do. Pretty much always. The only one that really doesn't is the Department of Child Support Services, but all all the other regular family law assigned departments do. Trevor Burrus, Jr.

Jeff Lewis 19:05

That makes appellate law much easier uh down there. Sure does. There's no challenge.

Lisa McCall 19:10

It also we have to remember when we're going out of county to make sure there is a reporter because the unknowing Orange County family law attorney finds himself in a courtroom and goes, I forgot. We needed a court reporter here. And then they have very special elaborate procedures to get a court reporter into the department.

Tim Kowal 19:28

So back to my cynical question, Lisa. Have you ever had an appeal challenging an omission from a statement of decision where that finding was appropriately requested and the omission was appropriately objected to, and it was still omitted from the final statement of decision? Do you have any any war stories where that wound up being a successful ground of attack on appeal? Because I'll just tell you what, while you're thinking about it, the only example I can think of, right, we did get it reversed on the basis of a lack of uh of required finding in the statement of decision, but it just went back to the judge to to make that finding. And even in that case, after at one point I I started kicking myself wondering, maybe we should have just attacked on the ground that there was no substantial evidence because there truly was no evidence at all. Because when it got sent back, the court just held another trial to allow the other side to put on evidence for the first time. And I thought, well, gosh, maybe that wouldn't have happened if I just went squarely at the lack of substantial evidence in the first place.

Lisa McCall 20:29

I will tell you, maybe not from a statement of decision perspective, but Family Code Section 2030 and 2032 have required findings for a request for need-based attorney's fees and costs. And they did have, I was the respondent on appeal where the appellant challenged an order that didn't make the required, the mandatory findings under Family Code Section 2030 about ability to pay and need and disparity of income. And it was sent back for that exact purpose to the same trial judge to just make the findings. And she made the exact same order. So

War Stories from Appeals

Lisa McCall 21:01

they went through this exercise of taking this case up on appeal two years down the road, lots of money just to get the exact same order with some findings. So I'm not sure it's all that useful. You have to be really careful on when you're challenging findings. The only time I really see findings being a big issue are uh rebutting the presumption against custody under Family Code Section 3044. Though it will a case will generally be reversed for not making those findings because they're so serious. But but then again, I mean it was reversed on the attorney's fees one too. It just didn't really matter.

Tim Kowal 21:34

Yeah, and I think we've talked a little bit about how you know there is that statutory requirement of findings on where there is a finding of domestic violence and there's going to be a custody award to that party, to that parent with a domestic viol violence order, then that presumption has to be rebutted in uh in written findings. And that is treated a little bit differently than normal statement of decision rule. Whereas if you if the court fails to make findings on uh what is that statute i think you just mentioned it so 3044 3044 yeah the 3044 presumption and that is deemed or has been deemed a structural error which uh meaning automatically reversible which I thought was uh was interesting because obviously omitted findings that that are otherwise required on a statement of decision is not per se reversible but omitted findings on 3044 uh presumption issues are automatically reversible.

Lisa McCall 22:27

I suppose generally it would make a difference whether it was uh prejudicial to the outcome, right? Generally.

Tim Kowal 22:32

Trevor Burrus Yeah. Although I mean the fact that it's uh it the 3044 missing findings have been deemed to be per se reversible it means that there's no I guess the the court has made a d determination that that is automatically that it's it's in all cases prejudicial. Probably because because of legislative fine uh declaration that that it's not generally not in the best interest of the children.

Lisa McCall 22:53

Aaron Powell Well the whole point of Family Code Section 3044 was to pr protect domestic violence victims. And so the idea of 3044 was the legislature made comments that and findings that domestic violence concerns were often overlooked in family law cases. And so to avoid that problem, they implemented this presumption against custody that had to be rebutted with express findings. And so to allow the court to get around that would sort of defeat the whole legislative purpose in the first place.

Tim Kowal 23:22

Trevor Burrus It's uh I just find it interesting that there's uh there's slightly different uh or very different treatment of those two and it could just uh go to what the court deems to be the legislative intent or purpose behind the section and uh obviously the courts have found or at least the one court that has reached that issue and found it per se reversible finds that the uh the legislative declaration uh of harm in the absence of findings is more I guess is more urgent than the normal inference that the lack of findings in other cases uh are harmful. Let's talk about some other huts and bolts tips that you would have for family law practitioners. Like for example motions and lemonade or other types of trial procedures how do you use uh motions and lemine to preserve the family law record for appeal so motions and lemonee can be used pretty creatively in family law cases.

Lisa McCall 24:09

They're not used as often as they could be I think sometimes when when they're used for the broader attempt to just exclude all evidence, I think they're generally less successful in family court. The courts typically will say I'm denying your motion in limini but I want to go through as the trial goes you can make that objection to each piece of evidence. So

Understanding Family Code Section 3044

Lisa McCall 24:27

I think that maybe has discouraged some trial counsel from using them to the extent that they could. I I still find them useful on if for example I think there's an order or a stipulation that controls on an issue and I want to exclude the other side from putting on evidence on the issue because I think it's already there's a dispositive ruling on the issue. That's a good use of it. One creative way I saw it used by Dory Rogers who I used to work with she we we got a on a move away case you have to assume that the moving parent is moving, right? There's no the court doesn't have any control over telling them to move or not move. The only control that the court has is over the child. And so we had a an evaluation done and the recommendation was that the mom shouldn't move but everything else in the report was favorable to our client but that was legally improper. So on a motion in limini we had that stricken so it so now all that was in the report was legally permissible. So I think that that is an interesting use of just sort of cleansing potentially out any improper evidence or findings. Motions and limini, I think the the biggest one is obviously you want to keep out anything that's that's going to open the door on something that the judge shouldn't hear. But I think it's less of an issue in a bench trial than it is in a jury trial because in a jury trial you can't unring the bell with the jury but presumably a a judicial officer a sitting judicial officer should be able to filter out something that it's heard that it's not allowed to consider. So I think that's why we see it a little bit less in a family court setting than in a general civil.

Tim Kowal 26:02

Yeah I I would have I would have guessed that there there might be more need for them just because of the the uh the amount of heat in the room in family law proceedings. One side would want to keep out scurrilous accusations from the other side. Does that uh is that normally uh mitigated by a disciplined counsel and trial judges?

Lisa McCall 26:20

I think I think I would have to say yes.

Tim Kowal 26:22

Yeah.

Lisa McCall 26:23

Yeah.

Tim Kowal 26:23

Well that's good because otherwise I mean uh those kinds of motions in LiminA obviously would drive up the cost where the economics are already very challenged in those kinds of cases. Are there any other tips that you have for family law trial attorneys? When you're meeting as prospective appellate counsel if uh an appeal has to be filed after the trial what are some of the uh the ways that you're trying to help trial attorneys lay the groundwork to have a good appellate record?

Lisa McCall 26:47

So the biggest one is offers of proof timely objections and offers of proof those are the biggest ones and we I recently had a a successful win on a case it was an unpublished case called Marriage of Burmeister which was a fun one but the court had excluded because of untimely filing of trial documents the court had excluded my client from putting on any evidence

Motions in Limine: Strategies for Family Law Practitioners

Lisa McCall 27:10

of of any documentary evidence of any issues not raised by the other side that he could only use the documents that were put in by the other side for his case and he couldn't bring any witnesses on his case in chief only on rebuttal. And it was a pretty strong sanction for a one-time miss of trial documents. And the court of appeal agreed and said we need a more incremental sanction. But one of the things that I specifically remember is that frantic call from trial counsel. What am I doing? The judge won't let any of my evidence in how do I preserve this? How do I preserve this? And my answer was of course offers of proof and then it was well the judge won't let me make offers of proof. Well then do it in writing. And so luckily he had done in writing all of the offers of proof showing what all of the evidence would have shown had he been able to put on his side of the case and it was enough to preserve the issue for a successful reversal. So I would say that's the most the most important is being able to show what that evidence would have demonstrated had you been able to put it in because otherwise I mean you just have oh he excluded the officer from testifying. Well okay well how would that have helped your case? We don't know. And so there's that constitutional requirement of a miscarriage of justice that has to be demonstrated.

Tim Kowal 28:19

Yeah that's great presence of mind on the part of your your trial counsel and you in advising them to put in that offer of proof in writing if necessary because you're right if uh because otherwise how do you establish the error if you've got nothing to point to right unless it's structural of course which I did argue in this case it was the court took the the other route of abusive discretion but I I think it could have been arguably structural or as well. Yeah well and did the do you recall if the uh the the court in its I guess you said it's unpublished opinion did it cite to the offer of proof from the record? It did. Yeah. Yeah so if you give the the court the yeah if you give the court the easier way out obviously that's going to increase your chances. Of course then again maybe if you had forced the court to make a decision on the structural issue it could have resulted in a published decision you're you're 15th but uh then again it's less of discretion. That's right. Well that I think that's speculative Tim without an offer of proof that that would have happened. That's right. Well let's talk about uh you know on on the subject of appellate strategy and uh published versus unpublished decisions let's talk about your work on the ACFLS amicus committee and let's just get this out of the way how do you pronounce that word amicus I pronounce it amicus okay but probably half the committee pronounces it amicus so I don't know if there's a correct way.

Lisa McCall 29:34

I think both are acceptable.

Tim Kowal 29:36

Okay okay that's that's the most important thing we I I just want to make sure I don't look stupid in front of people. So so on the uh amicus committee which advocates to the court of appeal for publication or depublication of family law opinions walk us through what the process looks like what uh what criteria drive the recommendation uh on the part of the of the committee to uh to file a request to publish an unpublished decision so generally we're controlled by the California rules of court there are specific guidelines for publication but mostly what we're looking for is if there's something new, a new interpretation of law, a new analysis of something that isn't in a prior case, as the law changes obviously there is new case law to address situations.

Lisa McCall 30:23

So like for example I just saw a case and I was doing my review of a case that dealt with a litigant's right to a remote appearance on a case, right? We didn't used to have Zoom appearances so then now we have cases addressing Zoom appearances. So the cases come as the law comes but so on the amicus committee we have a group that has almost every dual specialist in the state of California on the committee which is which we're proud of and we have Rick Cohen is the director of the amicus committee and he reports directly to the board of the ACFLS

Preserving the Appellate Record: Offers of Proof

Lisa McCall 30:56

the state board and so our committee each of us take a role in reading the unpublished cases for that particular day and making a recommendation to Rick and Leslie Shear also participates in that and we bring it to them and say what do you think? We think this is a good issue we do summaries of each of the cases and tell them which ones we don't think are appropriate for publication and why and then if they agree it goes to the rest of our committee and if everybody votes on it then it goes to the the higher ACFLS board and we write letters requesting publication or depublication of cases. And so it's it's actually pretty fun because it keeps you really right there in the development of the law. I'm doing this every month so and I've been on this committee for I think about 10 years now. So yeah.

Tim Kowal 31:42

Can you tell us a little bit like what the guiding lights are for ACFLS and the Amicus committee specifically in seeking to get certain decisions published? Is it advancing certain important rights? Is it clarity of the law? I mean I'm sure it's all the above but can you tell us a little bit more about what are the guiding lights?

Lisa McCall 32:00

I think it's all of the above. The thing that I'm usually looking for is is this something new that we don't already have a case on? Is there something that's going to help trial lawyers when they're taking their cases to court? Is this something that's going to help the judicial officers understand the law and have something to fall back on when it's making a decision on a certain topic. So we have there are some areas of law like spousal support where we have so many cases that because different issues come up all the time. But we're we're really looking for that next case that deals with something that none of the prior cases dealt with or if they did it in a less articulate and clear way. So we're trying to guide the trial courts and the trial lawyers going forward and giving them that roadmap.

Tim Kowal 32:44

Are there any examples where maybe the amicus committee declined to to request publication but I don't know at Lisa have you ever personally or on behalf of your firm filed a request for publication in a case?

Lisa McCall 32:58

I did it was maybe once it's not often I'm not trying that's not really what I'm trying to do on behalf of my clients on behalf of my clients I'm just trying to get the win right and once I have the win it's always fun if it's published but I don't need it to be published and I'm not sure that's necessarily how people want to become sort of famous. So I don't really request that on behalf of my clients most of the time. But in and in fact in family law often they're trying to ask me to anonymize the decision and and do it in initials and try to try to keep it away from them. So it's sort of not where I'm trying to make fame for myself,

The Role of the ACFLS Amicus Committee

Lisa McCall 33:35

I guess. But in my work on the amicus committee if there is a case that one of us inevitably has worked on we stay off of the decision on whether to request publication or not. We are excluded from the discussion. So that kind of keeps it a little more sterile.

Tim Kowal 33:51

Are there are there unpublished decisions that maybe the committee thinks on the merits, it's probably it's probably better that it's unpublished, but for the sake of clarity of the law, this really should be published.

Lisa McCall 34:04

Does that issue come up yes that issue comes up I think if it's better for the development of family law as a whole, we I've seen both happen. I've seen us say, well this really needs to be clarified and if this is what the law is then this is what the law is and it needs to be published. But I think there definitely is always a discussion of is this what's best for the development of family law? And that's always going to be part of the discussion on something like that. So I I've kind of seen it go both ways.

Tim Kowal 34:31

And are there some uh areas of family law in particular that that you're watching or that the Amikas committee is watching?

Lisa McCall 34:38

Well I would say the the fastest developing area of law and family law right now that I that we're all seeing is in domestic violence. And I think it's largely because the Family Violence Appellate project has been very interested in helping shape the development of law. And so even in cases where the ACFLS Amicus committee is not requesting publication, FVAP is requesting publication. And so that's how Marriage of Hoke which was a recent one of my cases got published the ACFLS did not request publication on that one but FVAP stepped in and did that. So we're seeing a lot of specification and very specific development of the domestic violence body of case law. Yeah speaking of uh family violence appellate panel is there overlap between ACFLS and FVAP in terms of uh membership or goals alignment I think goals alignment yes I I don't know about membership not that I'm aware of but it could be on the goals alignment I think all of us are trying to to narrow down what should be considered and what shouldn't be considered and how these cases should be approached. And so certainly there would be times that the ACFLS and FVAP would both request publication of a case that that would happen. But we're it's not necessarily a collaborative effort.

Tim Kowal 35:55

And lastly on the subject of unpublished opinions do you have any uh opinions or insights on why more appellate decisions are originally unpublished even if they if they satisfy the criteria for publication I wonder if you think that uh that sometimes if they're on the margin they're just waiting for for the amicus panel to weigh in on it or some other uh some either a litigant or or an on-party to uh to weigh in and nudge them in the direction of publication.

Lisa McCall 36:22

I think it's hard to decide sometimes because uh when an appellate court is rendering its opinion, it's relying on all of the cases that came before it so the idea would be that there isn't anything that's groundbreakingly new because it's stu it's relying on the stepping stools of all the cases that came before it. And so the idea the question is is this particular case which relies on all that historical case law something that really changes the analysis? And just because there's a new factual situation doesn't necessarily mean it's changed the law or changed what we have to consider. So I think if an organization like the ACFLS or FBAP says, no actually we think this particular factual situation is very important and here's why, then they'll consider that but I think probably they're just thinking well we're just following the law.

Tim Kowal 37:12

With that in mind, is that a is that a perspective that you keep in mind in drafting your own appeals and thinking about look here's an interesting legal issue and actually this really warrants a published decision. You mentioned that that can be that that can run across purposes sometimes you want it to be anonymized. You sometimes want the court of appeal to choose the narrowest

Criteria for Publication of Family Law Cases

Tim Kowal 37:32

grounds and keep it unpublished and inconspicuous so it won't get challenged on on review perhaps but is that something that factors into your analysis when you're doing the merits briefing typically sometimes if there's an issue where I'm thinking I really could use better guidance on this, I will tell the court this is all I've got and that's sort of my way of saying give me something. Yeah. Do you do that in the briefs or at oral argument or both?

Lisa McCall 37:57

Usually just in the briefs the only time I ever did it at oral argument was when a justice specifically asked me if I thought there was any reason to publish the case. And I I gave the court the reason that I thought it would be useful to have it published which was I thought it would be interesting to clarify how minors counsel is used in a family law case and what their role is. And it came out unpublished. So I guess they didn't agree with me. And it would had nothing to do with the role of minors counsel, how they wrote the opinions. So I've also had the situation where I've gotten a published opinion my the most memorable one was LaSalle versus Vogle. It was a case about a court denying set aside of a default judgment against a family law attorney and I had taken it up on appeal and I wrote all these brilliant arguments about why the court should reverse the judgment and Justice Bedsworth did this beautiful decision about civility in in trial court and how we should all be treating each other. And it's a great published opinion on civility and everyone would say good job on that case Lisa and I'd say well yeah okay but I didn't really do anything but thank you. I guess I'll take the win but it was so what they're interested in, what the Court of Appeal is interested in is not always what we are interested in when we're briefing.

Tim Kowal 39:13

We'll have to leave the uh the the one last topic for for another time and maybe that'll be the hook to uh the excuse to invite Lisa back in the not too distant future here. Lisa thank you so much for taking time to join us today. Is there is there anything other than the topic that that we'll have to leave aside is there anything else uh that you want to share I don't think so I don't nothing that comes to mind in my I just don't like to cut anyone off.

Lisa McCall 39:34

No, I just wanted to say thank you for having me. I appreciate it. It was fun.

Tim Kowal 39:38

All right. Well thank you Lisa it's a very helpful discussion on family law appeals and reminds me why I try not to get involved in family law appeals. Anyone who asks for one, I send them right over to Lisa because I get scared of what is appealable and what's not appealable. It's another topic that uh that we could have we could have covered today although that would probably take in a half hour to get through those. Jeff and I tried to do that on an episode before and I was sweating bullets the entire time thinking that I was probably helping someone commit malpractice.

Lisa McCall 40:05

It's a really good topic and a really interesting topic. I have a whole hour on that.

Tim Kowal 40:10

Okay so we've got but we got two issues already for uh for another episode so we're gonna have to get that on the book soon. All right well Jeff that's gonna

Developments in Domestic Violence Law

Tim Kowal 40:17

wrap up this episode with Lisa McCall. If you have suggestions for future episodes 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 see you next time you have just listened to the California Appellate Podcast a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court.

Announcer 41:00

For more information about the cases discussed in today's episode our hosts and other episodes visit the California Appellate Law Podcast website at CAL Podcast dot com. That's C A L Podcast dot com. Thanks to Jonathan Caro for our intro music thank you for listening and please join us again