Top 10 Tips from Court of Appeal Research Attorneys

Appellate justices’ research attorneys are the ones advising the justices about your arguments and writing the opinions. We discuss 10 tips offered at a recent Orange County Bar Association event. Here is a taste:

😮 Biggest surprise: The Court of Appeal wants hyperlinked briefs. They want to be able to click on your record cites to confirm your fact statements. If you wondered how to get the partners at your firm to get you a Clearbrief subscription, tune in.

😡 Start your brief by identifying the judgment or order you’re challenging. This is a court of review, after all—so tell them up front what you want them to review.

📃 Read your Table of Contents. The justices do. So make it persuasive.

🥴 We also discuss the recent Masimo v. Vanderpool Law Firm case, as the Court of Appeal continues to make examples of uncivil lawyers.

The recurring theme is: build trust. Good cites, organization, and civility build trust. Bad cites, poor organization, and incivility can get you sanctioned.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

• Videos from this episode will be posted at Tim Kowal’s YouTube channel.

Transcript

Announcer  0:00  
Jeff, welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases in news coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis,

Jeff Lewis  0:17 
welcome everyone. I am Jeff Lewis

Tim Kowal  0:19 
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. Please recommend this to a colleague if you find it useful,

Jeff Lewis  0:32  
yeah, and if you don't like it, please forward the podcast to your opposing counsel. All right,

Tim Kowal  0:35  
Jeff, you've been telling me to get a new gag, but you need a new gag and follow up today, Jeff, you know, we got the chance to see each other last week in person when we visited the Orange County Bar Association's appellate section annual meeting. Ask Us Anything where they bring in several research attorneys from the courts of appeal, and we get to ask them almost anything about, what kind of pet peeves do you have when reading briefs, what are some of the most common trap doors that attorneys fall into? What are some of the biggest briefing mistakes? How do we make our briefs more successful and persuasive on appeal? And we got some great tips. Jeff, I saw, you know, writing down furiously, I took some notes myself and and you came up with a with a top 10 list that that I thought would be good that we covered today,

Jeff Lewis  1:24  
yeah, and by the way, this is not the official position of the court. It's not even the official position of any particular division. Sometimes different opinions can differ. But what I gathered was from when these judicial lawyers, or just judicial attorneys, were willing to offer these tips, this is generally the consensus of most justices and most judicial attorneys in the two courts we were dealing with in, you know, the Orange County, fourth Appellate District, including Riverside and San Diego, and the second district up in LA so and let me also say, kind of a theme of all these top 10 tips that I gathered is When you give a brief to an appellate justice or an appellate attorney, you're building trust or losing trust with doing certain things. And every time you do things, let's say following the tips on this list, you build trust, and every time you depart from this list or do bad things, you can lose trust. And they use that phrase over and over and over again in terms of credibility, whether they just put your brief down and read the other side's brief when they want to learn something, if you lose credibility, or if they trust that when you cite to a case, it says, what you think, what you say, it says, Yeah,

Tim Kowal  2:32  
I noted that theme as well. Building trust. Keep making deposits in the in the trustworthiness bank and make as few withdrawals as possible. It's kind of like having a good investment strategy. Always keep moving forward, always be depositing more than your withdrawing. So let's get right into the tips. Jeff, here are some of the the helpful tips that were offered by various research attorneys from all three divisions of the fourth district and in one of the divisions of the second district. So tip number one briefs that include hyperlinks to the record are permissible, and they're encouraged, even though they're relatively rare. This is the one tip Jeff, that that I found surprising, pleasantly surprising because you and I are big advocates of clear brief we use clear briefs for preparing our briefs with the hyperlink citations to the record. And the last time I had asked a research attorney about whether they are opening links in hyperlinks in briefs, they said, No, it's a security issue. And that was, I think maybe it was two, one or two years ago, but that that's a shift now, because all of the research attorneys we asked are now supportive of hyperlinks to the site to record citations.

Jeff Lewis  3:42 
Yeah, yeah, absolutely. And they did. They didn't mention it. But I'll just the just the appellate attorneys did not mention this at the presentation. But I'm just gonna do another quick plug for our friends at Clear brief. That's, that's the product I use to hyperlink the record and in case citations. It's fantastic. Yeah, I

Tim Kowal  3:59 
use it for everything. I use it, not only for briefs, but for memos internally, for documents that I send to the client. So they can see what I'm talking about when I say that. Here's your great evidence. Here's the evidence. It's not so good for you, and they can see it without having to, you know, include a bunch of messy attachments and things like that, directing the page and line numbers, clear. Brief does that instantly, and it it really, it validates or furthers the principle of Show, don't tell, in that we always talk about when you're when you're drafting your appellate briefs. You want to show what you're talking about. Not, not give your conclusions, not use adjectives, just say what the facts are, and then if you included hyperlink that sends the reader directly there. That is what they're used for. That's what clearbrief is used for. So one of the quotes that I wrote down about using those hyperlinks is that they're incredibly effective, but very rarely used. Yeah,

Jeff Lewis  4:57 
for more than just one of the attorneys there was, there's kind. A shaking of a head, like, yeah, they're great, but we don't really see them,

Tim Kowal  5:02 
yeah, yeah. And again. Another comment was that they help build trust, because they'll, again, they'll, they'll read attorneys, you know, sometimes they'll say any old thing, and if there's not a citation to it, it's not worth anything. Even if there is a citation to it, if it's, you know, you don't always want to stop what you're doing and and open another document and go pull it up. Kind of reminds me. It reminds me of the priceless marketing advice I got from my coach, Gary Johnson, that you should never put your links in LinkedIn posts. Did you know this, Jeff, that if you put a hyperlink in your LinkedIn post, it encourages the reader to click away and go to a different website, and then you've lost your attention and you've lost LinkedIn has lost a visitor to its site, and it wants to keep eyeballs in your site. And as the attorney, you want to keep your eyeballs in your brief. You don't want them opening up other briefs and checking out your your sources. You want them opening your link in clear brief, so it's side by side. You've got the source side by side with your brief, talking about the source, so it keeps visitors in your train of thought and in your brief. Okay. Tip number two, the first paragraph of the introduction should describe the order or judgment being appealed and include an accurate citation to the record. This one was, it seemed obvious, Jeff, but all of the research attorneys chimed in on this and said, and said, said, Yeah, you know, we are a Court of Review. We want to know right up front, what the heck are we reviewing? We don't have to wait until you know the statement of appeal ability to do to find out what order or judgment we're supposed to be looking at.

Jeff Lewis  6:44 
Yeah, I think my opening sentence in the opening paragraph of just about every brief I do on appeal is this is an appeal from an order denying an anti slapp Or this is an appeal from a support order in a family law case, something like that, so that the justices in the first five minutes can decide which clerk date should go to, or how urgent it is, etc,

Tim Kowal  7:03  
yeah, yeah. And that's that also has the benefit of getting you over your writer's writer's block, you know, if you don't know how to open a brief, you know, you should probably always just start with this is an appeal from indict, you know, cite the name and the date of the order or judgment you're appealing from, and then you're done. You've got your opening for your opening brief.

Jeff Lewis  7:24  
Yeah, let me on a side point, and I'm going to diverge from our top 10 list here for a second. I was surprised that the representative from the fourth Appellate District, division two, which is out in Riverside San Bernardino, was asked a question, do you put citations in your introduction? And all of them said, For this purpose, citing to the order that's under review. It's super important to have a citation early on so the justices or the attorneys can quickly find the order being reviewed. But most of them said, in terms of citations in that introductory paragraph, you don't really need citations unless there's a big, big case, there's one dispositive case, maybe cite that, but you don't really need citations. And I found that surprising, because once in my career, once I had one of my briefs stricken. It was a Respondent's brief, and it was stricken by the fourth Appellate District, Division Two, and the reason it was stricken is my improper opponent pointed out that my introductory paragraph, my summary of argument did not contain citations to the record. So I was, ever since then, I've always been leery of not including citations to the record in that opening paragraph, even though all the attorneys there said, Yeah, you don't have

Tim Kowal  8:32  
to. That's a that's a shocking result. I had heard the same, the same comment that this research attorney gave by Justice bedsworth himself, years ago, at another another bar event, someone asked him the same question, do we need to put citations in the in the introduction? He said, No, no, it's just to give us a flavor for what the case is about. It doesn't need to be, you know, a statement of facts or a legal brief, but citations to legal authority. So no, that's the exception from the rest of the brief where you should have citations. That's and that's shocking, that not only that, they would strike a brief that failed to have citations in the introduction, but they strike a respondents brief, which is supposed to be a helper brief anyway. You can't there's no benefit to the court from striking the respondents brief, other than it deprives them of a resource that they can use to evaluate the legitimate, legitimacy of the claims, and, you know, the legal and factual claims in the opening brief.

Jeff Lewis  9:26 
But by the way, for the record, I won that appeal.

Tim Kowal  9:29  
They didn't. They didn't need it. They were, they're already confident in your arguments. Well, so what is your takeaway, even so after you had all the research attorneys there last week telling you, now you don't need sites in your in your introduction. If

Jeff Lewis  9:43  
it's a broad kind of summary of argument, like the anti slot motion should have been denied because, you know, fact a, fact B, fact C, that kind of broad ish argument. I don't include citations, but if there's a very specific thing, or if I'm quoting I I'm a little gun shy now, and I put in the citations, which I hate, because it. It breaks up the reading. They're like little speed bumps for your eyeballs, but I tend to include them now I'm gun shy. Yeah,

Tim Kowal  10:06 
I well. And one tip along that line that they gave is, if you are it would be helpful to cite the judgment or order that you're appealing from so that the reader can get to that instantly. Because, again, they want, they're very interested to know what am I reviewing. So if you can send them right to that and maybe that, that helps. If that's the, the one and only thing that you're including a citation to in your introduction, it underscores the importance that here's the document that this whole appeal is about.

Jeff Lewis  10:34 
Yeah, or maybe the pessimist in Me thinks they they want the quick site to that so they can pull it up and see, is this a an appealable, reviewable order, or can they quickly assess if it's a timely notice of appeal and that kind of thing? But yeah, that's pessimist to me. Yeah.

Tim Kowal  10:48 
Okay, number three tip, number three from the research attorneys from the Court of Appeal, a table of contents is often the first thing that a justice or judicial attorney looks at, and it should tell the story. That means use complete sentences in your headers. Yeah,

Jeff Lewis  11:04 
compelling sentences, right? So when you read the Table Table of Contents, I tell associates and staff at my firm, pretend like the justices are not going to read your brief, and on the day of oral argument, they're going to pick up the brief and just look at the table of contents. When they walk into oral argument, they should be able to know what every argument is and why we should win. So you shouldn't have the anti slap order should be reversed. It should be the order denying the anti slap motion should be reversed because this was not a case of public interest. Yeah,

Tim Kowal  11:32 
yeah, that's, that's a good that's a good way of thinking about it. You could also think about it in terms of, pretend that you're going into oral argument, and you want an outline, and that table of contents could be your outline for oral argument. Yeah,

Jeff Lewis  11:46  
yeah, absolutely. And, you know, let me say this on a related point, a related question. You know, we were ending the time The lunch was over, people were getting ready to leave. I don't want to be that guy that raises their hand to ask another question when everybody wanted to hit the road. But another question I had was so if you're the appellant, you've got your your headings, and then the respondent does their brief, and sometimes the headings don't match yours when you do the reply brief, Tim, do you have your headings kind of match what you did in your original opening brief? Or do you have your hat headings kind of track the arguments presented in the respondents brief?

Tim Kowal  12:17 
I don't necessarily track the same the same structure from my opening brief. I like to, I like to hone in on, on the key points, maybe depending on what what was addressed in the respondents brief, if something comes out as whatever I think at that point is going to be highest on the on the justices minds, I want to, I want to address those in that order.

Jeff Lewis  12:39  
I I've tell you sometimes I forget, and I think it's worthwhile to point out when the other side fails to respond to an argument. So if you have an opening brief with an argument that says, you know, prong one was not met because of reason a and the response brief just blows past it doesn't respond to it. When you're drafting a reply because they haven't responded to it. You might not mention that failure to respond, and it's possible justice might not pick up on it. So for that reason alone, I think it's helpful to have at least a reference to the original heading in your opening brief, and just a short argument saying in the opening brief, we raised this issue. Other side did not address it and cite the case that says sometimes failing to address an issue as a concession of its merits. Yeah, yeah.

Tim Kowal  13:24 
I agree with that approach. Yeah. If you've got a key argument that you raised in your opening brief and that was not meaningfully addressed or not addressed at all in the respondents brief, then yeah, I want to bring that up front and center, that here's the core issue in this appeal, and respondents have nothing to say to it. And then maybe, you know, say something more, a little something more, if you that maybe you know another gloss on it that you hadn't put in your opening brief, and then just leave it. Leave well enough alone. Let their silence be deafening. Yeah, another. Another point about the table of contents is that the one of the comments that we got from the research attorneys is that the justices often, you know, they're, they're just like any other reader. They're going to make an assessment fairly quickly about your case. They're not going to make up their mind completely, but they're going to get a sense of which way they're headed, and it's going to be fairly quickly. So mine, you know, a mind can reserve judgment for only so long, and the longer it takes you to bring the goods, the more likely it is that the reader is going to, you know, start concluding that you ain't got them. So, you know, get to the point quickly. Don't hem and haw and do a lot of throat clearing. You know, don't wait till the legal discussion section of your brief to get to the to the meet. Put that right in the introduction and put a nice roadmap in your table of contents by using good organized headings. Yeah. Complete sentences, yeah. Okay. Number four, Jeff, this is a perennial tip that we talk about on this on this podcast, avoid acronyms and jargon. Pretty much unanimous among the research attorneys that they all hate acronyms.

Jeff Lewis  14:57  
Yeah. So you know all. Use terms like the bank or the distributor or the manufacturer, as opposed to, you know, crazy abbreviations or shorthand references. I do that. And another thing I learned, not from this presentation, but a second district presentation, sometimes it drives the court's bananas when you define terms that don't need defining. So if you're suing Apple computer, and you know, you use the term Apple, everybody knows who you're talking about. You don't have to do, you know, open parens here, and after quote, Apple, close, quote, close, parens. That's just unnecessary stupidity.

Tim Kowal  15:35 
Yeah, I don't know about you, Jeff, but ever since I think Justice Kagan kind of showed the way on that a couple of years ago, there was an opinion involving Ford Motor Company, and she didn't define Ford. She just went ahead saying the word Ford afterward, as if we all knew what she was talking about. And everyone said, no one has any doubt what she's talking about. And ever since then, I thought, yeah, I'm gonna drop those paren quotation mark with the definition in there, unless, unless, there's some really compelling reason to do so I've just dropped them.

Jeff Lewis  16:06  
Yeah, I'll say this though, Tim, I've always struggled with at the trial court level, in your notice of motion, if you define terms, there's certain terms that are not commonly known, and you define parties in certain ways, and then you have your you do your notice, and then you have your table of contents and your table of authorities, and then you jump into your motion. And I wonder at that point, do you have to redefine a second time those terms that you defined in the notice? Is it possible that the judge has skipped over your notice and went right to your brief? I never know what to do there. What do you do?

Tim Kowal  16:39 
That's a good question. I I've struggled with the same thing about defining the terms in the in the notice. I thought about maybe, maybe I won't define them in the notice. I'll just repeat them again when I get to the brief and then define them for the first time there. Or, I think usually, I probably will just rely on the definitions that I've given in the notice, and hopefully they're clear enough that's and that's a good reason not to use acronyms. Some, you know, anything that is readily intelligible, I think you won't get in trouble with, yeah,

Jeff Lewis  17:12 
yeah, yeah. I think that's a good point. And

Tim Kowal  17:15 
so if you can use it doesn't have to be shortened, you know, completely. You know, I think that's why people like acronyms. Is that, oh, now it's only three letters, so it's so much more efficient, but if you use a meaningful name, yes, it has a few more syllables, but it has more meaning for the reader.

Jeff Lewis  17:32  
Yeah, look, my rule of thumb is I try to use terms that, if I were at oral argument, whether it's trial level or a Court of Appeal, that will easily come out of my lips that I won't stumble over, if I was telling the story or describing to a family member. Yeah, I filed a lawsuit against the manufacturer because of problems.

Tim Kowal  17:50  
Yeah, you know, say, yeah. So I involved in this lawsuit, and JCW interviewed xy, you know, you know, deposed XYZ, and you get wouldn't believe what XYZ said. Like, what are you talking about? Can you speak English? It reminds me that that language, the written language, came after the spoken language. So to your point about, think about how you would say it out loud and then write like that. So so maybe think about how you're going to talk about these parties, that oral argument and use the same language in your brief that way you're not having to make translations that when you're at oral argument. Now, Your Honor, I'm gonna, I'm gonna be representing the party that I referred to in the briefs as JCW, but I'm gonna refer to him now as John. Yeah, right, right. Okay. Next. Tip number five, if you have bad facts, just disclose them. Be upfront with them. Deal with them like, like a big, like an adult, don't try to hide it, because they will find it anyway. And hiding or ignoring bad facts, to get back to the theme, the recurring theme, it depletes trust in your arguments and in your presentation. So be upfront, because they're going to find them

Jeff Lewis  19:01  
anyway. Yeah. And on the subject of trust, you know, these attorneys, they mentioned trust in terms of one singular brief, one singular case, but they didn't say this. But I suspect these attorneys and justices, you know, remember names of lawyers that commonly appear in their court, and I bet losing trust can carry over from one case to the other, and so can building trust, I suspect,

Tim Kowal  19:21  
yeah, yeah, that's right. So, so be upfront with the bad facts. Same thing with with the other side's good arguments. If the other side has a good argument, consider maybe addressing that, addressing it before they even get around to it. You know, there's, there's not a rule. You have to use discretion on these things. But let's see. Number Six Tip number six, every section of your appellate brief should have a purpose. What did the what did the research attorneys? Attorneys mean by that, Jeff, that every section should have its own purpose.

Jeff Lewis  19:48  
You know, this is something I learned new. For the first time. I hadn't really thought of this issue this way, but they basically said, you know, an introduction should be an introduction that concisely. Summarizes all the issues, but you don't put your entire legal argument in the in the introduction. With every case. You save that for the argument. And similarly, the statements of fact should neutrally state all the facts and all the relevant facts, and try to avoid argument and when, because the purpose of the facts that section is to present facts. And similarly, when you get to the argument section, you shouldn't use that as an opportunity to introduce new or new facts that weren't discussed in the statement of facts. If it's an important enough fact to include in your argument section, it should appear in the statement of facts. So it was a good lesson to kind of focus in when you're writing a brief, what section am I working on? Is it the argument? Is it the statement of facts, or is it the the introduction and and remember its purpose?

Tim Kowal  20:49  
Yeah, yeah, that's right, your statement of facts should, should be putting gas in the tank for all of your arguments. So you know, all the all the facts, all the evidence that you're going to be relying on to make your arguments. You should be teeing those up in your statement of facts. I think one of the research attorneys mentioned that if you have one kind of tangential argument whose underlying facts don't really fit into the rest of the case narrative, that could be an exception. So it's not completely black and white, but the good rule of thumb is to put all of your facts into the statement of facts and you know, treat each section as its own in its own purpose. And and again, that that purpose of the statement of facts is, is not to be, you're always an advocate. You're always advocating and pressing your case, but you're doing it in a different way. You're not doing it in an argumentative style in your statement of facts, but you are, you know, putting emphasis on, if you're making a procedural issue that you know, raising a procedural issue that the judge you know failed to should have bifurcated issues, or something like that, then you you get really fact heavy with all the the facts that show the importance of of having this issue tried first, and how lumping it in with the other arguments would lead to a to a distorted view of The of the case. You know, whatever it is you want to you want to lean that way, but you do it all with factual statements, not not advocate statements.

Jeff Lewis  22:10 
Yeah, look, if you're desperate to insert a zinger, if you really want to raise attention to a certain fact and how it relates to an argument, you could drop a footnote and put the argument in a footnote in the statement of facts section. But yeah, and out

Tim Kowal  22:24  
that way the RE you know, the reader free to ignore it. Yeah, okay. Uh, tip number seven for emergency writs, while establishing error is important, the judicial attorneys and the justices also look for sufficient development of the argument about exigency or public policy, so don't overdo the former, and don't ignore the latter. What, what did? What did the research attorneys mean by that? Jeff, I

Jeff Lewis  22:47 
was surprised to hear them say that most attorneys do a pretty good job of establishing the error, but then they kind of skip over the the emergency. Why should this similar to ex parte is at the trial court level? Why should this Emergency, emergency writ at the appellate level, skip the line and be decided before all the other cases on the docket. What? Where's the fire? Yeah,

Tim Kowal  23:08  
yeah, that's right. I think a lot of the The Court of Appeal is looking at your writ petitions and saying thing, yeah, yeah. It seems like you have a pretty good argument for your appeal. Why do we have to hear this as a writ, right, right? So don't just stop at the judge did a very bad thing. You have to explain how it's going to cause a very bad result before you get a chance to get a result on a on an appeal. Alright. Number eight, here's another perennial tip, avoid the passive voice. Be direct, be authentic in how you present things. Don't try to, I don't know how we we learn, but we all learn how to, how to write in the passive voice. Maybe it, maybe it sounds less like you can get less trouble somehow. Or it's sounds

Jeff Lewis  23:55 
it could be. You know, as young lawyers, you read other lawyers briefs, and other people write in the passive voice, and you just in your head, you think about what what sounds lawyerly, and what sounds like things you've read. And I think it's a self perpetuating problem with other people in the profession. My number one tool for destroying passive voice is brief catch. I use brief catch on my briefs, and it usually catches all of my passive voice issues. Yeah,

Tim Kowal  24:21  
yeah, that's that's a good tool to use. I also use brief catch. Maybe another. Another temptation for using passive voice is that it is there's less information in a passive sentence because it describes the action, but it omits the actor. And maybe you're not sure who the actor was, or you're not you haven't thought through whether, whether it's relevant. Sometimes it's not relevant. And so sometimes, you know, that's why passive voice is not always the wrong choice, but usually you do want the actor in there, and if you have to talk about the action, and then later on, at some point, you're going to talk about who the actor was, why don't you put it in one sentence? That's a way to be more effective and direct in your writing. Yeah. Okay. Number nine, we're getting. To the end here, Jeff, check your citations for accuracy. Seems obvious, but the attorneys really seem to be bothered by by the inaccurate citations. Yeah, and

Jeff Lewis  25:10 
this was more than just the case says what you say it says, or the record says what you say it is, it is you click on the link, or you go to that page and it's the wrong page. And they say they understand that typos happen, but when a brief is replete with citations that don't match the actual record, it's a headache.

Tim Kowal  25:27  
Yeah, and again, it's it depletes your trust, because if they want to check out what you said in your in your brief, and it's not, it's not supported at the site that you gave, then all of a sudden they start to wonder, what about all their other statements in the brief or do any of Are any of them supported? So yeah, it's hard to get 100% accuracy, but you know, again, using using a tool like like brief catch can help you do that, because as you're briefing, you can see your citation right there, and you can always go right back and check very easily, without taking your taking you out of your flow. All right. Tip number 10, if you have an index, such as an index in the appendix, consider hyperlinking the name of the document to the relevant page. What does this mean? Jeff,

Jeff Lewis  26:16 
well, look, most of the time, 99% of the appeals I handle, I do an appellates appendix, rather than a clerk's transcript. And you know, these are in PDF format, and if it's a multi volume appeal with different files, it can be a bit of a headache to go back and forth trying to figure out where in the record this particular page is. So this was one of the attorneys present for this panel who said, If you hyperlink the name of the document in the index, it takes you right to the relevant document. It saves the attorney time when they're looking for a document, so not when they're in your brief, checking your citation, but when the attorney is thinking to themselves, self, I want to see the closing brief on this issue. They can go to the index, look up closing brief, and click on that, on the name, and it'll take them right to the right page in the record.

Tim Kowal  27:02  
Yeah, yeah. And then reminds me of another, another tip that you told me about years ago, about that, that if there is a key document that you really want the court to look at, you can put that you can attach it to the end of your brief. And it's a, it's a little known and little used tip, but in the right case, it can be very effective. I

Jeff Lewis  27:21 
think it can be really effective, and it's rarely used. And I gotta tell you, I was surprised by the yawns and the looks of the indifference that I got from these attorneys when I raised this, you know, is this practice of attaching 10 pages? Is it helpful? Is it useful? And I got it? Yeah, you can do it. Kind of a response,

Tim Kowal  27:39  
yeah. Yeah. Well, you know if, if you're using clear brief like, like you and I do, and if the and now that I know that the that the justices and research attorneys are, in fact, clicking on them, it that may be less needed or less useful than it used to be, because you can send them right to any, any portion of the record. But if you're, especially if you're not using the hyperlinks in your brief and you want the judge to see the order that you're appealing from, or your smoking gun document, you can just attach that right to the back of your brief, and they don't have to go hunting around for it. Yeah,

Jeff Lewis  28:14 
or an unusual case or regulation or maybe an out of state case, it doesn't always have to be evidence. It could be helpful authority,

Tim Kowal  28:23 
yeah. And to underscore how, how rarely it is used. Remember one the first time I tried to do it, it was kicked by the by the filing clerk and said, What is this at the back of your brief? And I had to email their clerk back and cite the rule that says I can do this. And the clerk went back and checked with the head clerk and said, Okay, I guess you can do it.

Jeff Lewis  28:46 
Let me guess Orange County. Orange County, yeah, yeah,

Tim Kowal  28:51  
yeah, okay, well, yeah, hopefully these tips were effective, but are useful to our listeners. But again, I think your, your takeaway of the recurring theme, Jeff, is, is, is accurate that it's all about building trust. You want to be as the as the appellate attorney. You want to be a helper to the court. You can't knock them over the head. You know, to to make an accept your argument, you have to lead them there. And to do that, they have to find you trustworthy if they're going to follow you. Yeah, yeah. And

Jeff Lewis  29:22  
on that theme, one more bonus tip that was not presented at this presentation, wasn't discussed by these attorneys. But on the subject of gaining or losing credibility with the court, I think we mentioned on an earlier episode that justice bedsworth is retiring from the fourth Appellate District, Division three. He's not retiring quietly. He is speaking his mind. And on May 2, decision was published by the fourth Appellate Division Three, Massimo Corporation versus the Vanderpool law firm. And this was an issue involving discovery sanctions. $10,000 in discovery sanctions was issued. And one of the arguments raised on appeal was maybe there hadn't been an adequate meet and confer below, and so sanctions were not appropriate. And Justice beds worth took that opportunity to say, well, maybe some of the things that were said by trial counsel were not appropriate in terms of the meet and confer. And he went on to say, look, appellate attorneys, we've tried to warn you. We've tried to be subtle from this point forward, if we see bad actions, incivility, unprofessionalism, below in the record below, we may take the opportunity to point it out and quote from it liberally and put it on the pages of a published decision, so mind your manners, and I'm going to read one of the money quotes here by by Justice bedsworth. He says, civility is not about etiquette. This is not a matter of bad manners. Incivility slows things down. It costs people money, money they were counting on their lawyers to help them save. And it contravenes legislature's directive that all parties cooperate bringing the action to trial. Incivility is the adult equivalent of schoolyard bullying, and we will not keep looking the other way. When attorneys practice like this, they will be called out and immortalized in the California appellate reports.

Tim Kowal  31:18  
Well, so not all, yeah, not only sanctions, but but immortality, ignominy in the in these decisions, was this a published decision?

Jeff Lewis  31:26 
It was published and, yeah, let me the one email, or the one email that stands out that was published in terms of this decision was one lawyer said to another lawyer, the email began with the subject line, you are joking, right? And the body of the email continued in 30 years of practice, they may be, this may be the stupidest thing I've ever seen, Robert. Is this really why you went to law school and then it goes on justice beds? Seems to think that might be in civil,

Tim Kowal  31:55  
yeah, yeah. It's obviously, obviously in civil. You would like to think that that most of us don't practice that way, but, but tempers get hot in litigation, and especially in discovery and and when

Jeff Lewis  32:09  
you're dealing with sanctions and sanctioning a lawyer, as opposed to a party, yeah, things get things get heated. And that's why you know you could draft an email, an angry, angry email, and save it and don't hit send, and then the next morning, maybe after you feel better having written it, you can revise it, tone it down, and then send it. Yeah,

Tim Kowal  32:26 
yeah. I wonder, if, I wonder if there, there needs to be a I know. I know that in my day in law school, I remember hearing about there, there had been a steady drum beat that have been repelled for a lot of years about isn't the third year of law school kind of just fluff. You don't really need the courses in the in the third year. It's just kind of pre Bar Prep. As long as we're we're keeping the that third year with a lot of elective type classes, maybe we should add one more mandatory class about civility in the profession, kind of a professional responsibility part two, and include this Massimo case, and there was another case like it a couple of years ago that talked about how incivility cost the client it and it cost the courts, because we have all these additional discovery motions and discovery that should be wrapped up fairly quickly. It drags on and on because of the incivility and the foot dragging. Yeah, yeah.

Jeff Lewis  33:25  
In fact, the bedsores cited that case. It was the carton case, ka r t o n from 2021 and has one of my favorite quotes, saying, excellent lawyers deserve higher fees, and excellent lawyers are civil and then it used that as a way of upholding a severe reduction in an attorney fee award, because the lawyer in that case was not excellent and was not civil.

Tim Kowal  33:52 
Yeah, yeah, but this is the right approach. I mean that the carton case tethered the attorney's recovery to that to the attorney's ability to be civil throughout the case and, and if that, that positive economic incentive is not enough, then, then now your your name is going to be put in bright lights in published decisions about how incivil you are. Yeah, it's

Jeff Lewis  34:17  
like from Game of Thrones shame, you know, being shamed in the public square.

Tim Kowal  34:21 
Yeah, all right, so this is the bonus tip, be civil. I guess it's the bill intense tip, be excellent to each other, but it's not only, not only good practice of law, not only will it get you greater attorneys fees awards, but it'll keep your name out of the spotlight, from being shamed in the Court of Appeal, which the which, at least justice beds worth has indicated is going to happen, and they're going to continue shining that spotlight whenever they see these acts of incivility and at at a minimum, Jeff, if, if you're, if you're going to be in civil don't do it in. Email, right? Yeah, yeah, pick up the phone, even if you intend to be in civil when you pick up the phone, hopefully just the fact of speaking with another human being, rather than just being in your own isolated echo chamber pecking out an email with with no filter. You know, picking that phone will will create its own filter.

Jeff Lewis  35:20  
Yeah, I'll go one step further. You know, set up a zoom, because when you're looking at your opponent in the eye and you can see they're a living, breathing human being, yeah, might have their own issues and their own concerns. It's good way to de escalate. Yeah,

Tim Kowal  35:32 
okay, well, that's that wraps us up today. If you have suggestions for future episodes, please email us at info, at Cal podcast.com, in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal when preparing for trial. See

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