The California Appellate Law Podcast

Our regular roundup of noteworthy appellate decisions and legal news includes these stories:

⚠Did a Covid-era jury cut short its deliberations (to just one hour) because it wanted to get out of the cramped jury room? Plaintiff thought so, but did not make a record of having raised a timely objection. Held: Objection forfeited.

⚠Did the failure to raise an affirmative defense in a joint pretrial order forfeit that defense? The 9th Circuit held it did, but Judge Bumatay thought it was raised indirectly and the lack of a more explicit assertion did not prejudice the plaintiff.

🤚Suit against Maxine Waters for falsely saying her opponent was “dishonorably discharged” may go forward: evidence that Waters was shown a military document refuting her charge, and Waters’ failure to conduct any other investigation, supported plaintiff’s showing of actual malice for purposes of defeating the anti-SLAPP motion.

📃Record defect resulted in California Court of Appeal resulted in affirmative via a rare “memorandum decision.”

✉60-day deadline to appeal is not triggered by file-stamped order unless it attaches a proof of service.

🗣New snitch rule would impose a mandatory duty to report violations of other lawyers.

👩‍⚖️Oral arguments at U.S. Supreme Court run long by average of 30 minutes.

💼Supreme Court makes it easier to preserve issues raised in summary judgment motions in Dupree v. Younger.

🛑Federal courts to wind down remote access as US COVID emergency ends.

🕔3d. Circuit to impose 5:00 p.m. filing deadline.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Perry v. Kia Motors
• Defense not asserted in a pretrial order deemed forfeited in split 9th Cir. decision ( Ivie v. Astrazenica Pharmaceuticals LP)
• What is actual malice? Maxine Waters SLAPP case
• Lack of record leads affirmance by memorandum decision
• Order was file-stamped, but did not attach the POS, so it did not trigger the 60-day deadline to appeal
• New snitch rule proposal as the state bar. Cal Bar<

Turns out you CAN shout “fire” in a crowded theater, and lots of other lies besides—unless the government meets a heavy burden, that is. The author of four books and more than 20 academic articles, First Amendment scholar and Naval Academy associate professor Jeff Kosseff makes the case for the freedom to speak freely, and even to tell lies, free (mostly) from threat of state sanction. Our discussion covers:

• The “marketplace of ideas” is better than the government at separating truth from lies.
• Why every other state and Congress should just copy-and-paste California’s anti-SLAPP statute into their code books.
• Is there a free-speech right to ChatGPT, if there’s no human speaker? Yes—there is not just a right to make statements, but also to receive them.
• Jeff was surprised at the critical reaction to his thesis that there may be a right to lie. But thankfully the courts have mostly stood by the First Amendment’s robust protections, receiving an B+/A- grade from Prof. Kosseff.

Jeff Kosseff’s biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Jeff Kosseff’s book is Liar in a Crowded Theater.
• The California statute prohibiting doctors from expressing opinions contrary to official medical policy as concerning vaccines and perhaps other topics was enjoined by the district court in early 2023: https://www.reuters.com/business/healthcare-pharmaceuticals/california-law-aiming-curb-covid-misinformation-blocked-by-judge-2023-01-26/.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

If you were a lawyer drawing breath in summer 2022, you heard about the “victory bell” case. A prominent defense attorney, returning to base camp with a stunning victory after defensing a medical malpractice case, rang his firm’s victory bell and announced, the victim “was probably negligently killed, but we kind of made it look like other people did it.” The comment was captured on video, and the internet did its thing.

A common hot-take was that the video would undo the verdict. But many appellate attorneys scoffed: an attorney’s puff talk after trial, the cooler heads responded, is not a trial irregularity.

Enter Brooke Bove, who wrote the successful new-trial motion in Garcia v. Quraishi that got the judgment vacated. Brooke gives an insider look at trial, and why the defense attorneys reference to an empty chair particularly galled the trial judge.

Bove, an Army communications specialist before becoming an appellate attorney, shares her insights into the case and what is coming next, as well as top legal tips and strategies.

Brooke Bove’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

• Episode 42 discussing the “victory bell” case, Garcia v. Quraishi.
• The LA Times article on the “victory bell “case.
• The Lawterature Podcast
• Peace Like a River by Leif Enger.

As a consensus-maker, Justice James Lambden never published a dissent in his 17 years on the Court of Appeal for the First District, despite sitting between two indomitable personalities in Justice J. Anthony Kline (Gov. Jerry Brown’s legal affairs secretary) and Justice Paul Hearle (Gov. Ronald Reagan’s appointments secretary). Justice Lambden explains why attorneys should direct their briefs to the justice “in the catbird seat,” and what it was like sitting in the catbird seat.

Justice Lambden also talks about his single unpublished dissent.

Justice Lambden also talks about his time as a judge on the Alameda County Superior Court, the great outdoors, finding and wearing a good hat, and what it’s like for judges to transition to private judging: “Going back out among the bar without wearing the robe is kind of intimidating. Like they say, they don’t laugh at my jokes anymore.”

Justice Lambden serves up a lot of sage advice:

• “Litigation is not like preparing for a battle, it’s more like going on an expedition ... like taking a trip across the mountains and encountering different places where you have to do different things.”
• Hire your appellate attorney before the verdict!
• Have an elevator-pitch for your case. If you only have arguments but no theme, you’re not ready.
• On unpublished opinions: Who cares? The California Court of Appeal is not bound even by published decisions, as there is no horizontal stare decisis in our system. If you find good reasoning, use it: if the good argument comes from a published case, make the argument, and cite it. If the good argument comes from an unpublished case, make the argument, but don’t cite it. In either event, it’s not the best citation but the best argument that wins. (This reminds me of Johannes Scotus: “Authority sometimes proceeds from reason, but reason never from authority....We should not allege the opinions of the holy Fathers ... unless it be necessary thereby to strengthen arguments in the eyes of men who, unskillful in reasoning, yield rather to authority than to reason.”)
• On the importance of focus letters and oral argument.
• On access to justice, quoting Chief Justice Ronald George: “Without access, there is no justice.”

Justice James Lambden’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Jackie Gardina shares dispatches from the Blue Ribbon Commission on reforming the Bar Exam, covering recent reforms, the ongoing debate about the exam’s effectiveness, and the rise of alternative pathways to legal licensure. Some takeaways:

• 💯 Yes, the passing score was dropped—but don’t worry, the old one was picked out of a hat (basically).
• 🗯️“End the bar exam?! But that’s how it’s always been done!” Nope. Before that there were was the “diploma privilege” model, and before that the apprenticeship model.
• 🔍 What are other states doing? The mentorship model is in use in Oregon, Washington, and Nevada, and the diploma privilege model in Wisconsin.

Jackie Gardina biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• NCBE Study Aids Store: Offers various resources, including practice questions and study packs for the Multistate Bar Exam (MBE), Multistate Essay Exam (MEE), and Multistate Performance Test (MPT). Visit their store here: NCBE Study Aids Store
• NextGen Bar Exam Information: Provides details on the upcoming changes to the bar exam format, including sample questions and a timeline for implementation. Explore more here: NextGen Bar Exam
• You can find more information about the commission, its objectives, and updates on its activities on the State Bar of California’s website The State Bar of California