Articles

08.06.19

Columns: Stray Dancing

“The narrowing of issues and limitation to original theories and arguments as a case ascends the appellate ladder would seem to be a bedrock principle. And yet … We wouldn’t be raising this general proposition at all unless there were exceptions.”  


05.07.19

Abbreviated Justice

“California courts generally decide appeals with written decisions, but memorandum opinions do exist under California law. The big payoff in an appeal is the court’s opinion.”  


03.06.19

Invisible Justice

“The ordinary appellate path is well-worn: First comes paper pushing (i.e., filing the notice of appeal, record designations, and otherwise ‘perfecting’ the appeal), followed by paper production (i.e., brief writing), then oral argument, and finally the big payoff, the written ...


02.12.19

Holy, Holey Rules!

“The primal myth runs thusly: In the beginning, chaos blanketed the universe of California appeals. Papers were filed whenever, in whatever format, and the whims of lawyers and caprices of judges reigned. Then came the revered savior Bernie (that’s Witkin, not Sanders) to impose order ...


01.02.19

Walking Dead Appeals

“Happy New Year! As our annual circle restarts, your billable hours or collections figures have reset to zero, and we begin anew. Like people, litigation and appeals have lifecycles too. They are born with complaints—or notices of appeal—and die with final judgments—or ...


12.04.18

Free Money!

“Preface. It’s the time of year when we would all enjoy just a little bit of extra moolah to spread end-of-the-year holiday cheer. And so this month’s column is no joke or hyperbole: Following the steps outlined in this article is likely to actually put money—honest to ...


11.06.18

How Golden Is Silence?

“A concept learned early in law school is that silence is not acquiescence. This idea appears in California’s jury instructions, CACI 310, which says that if a party does not respond to an offer, then that inaction is not deemed an acceptance, unless the parties understood silence to be ...


10.03.18

Slumming It With Facts on Appeal, Part 2—Going to the 909

"As we have seen, sometimes appellate courts do get their hands dirty with facts and will entertain a new fact for the first time on appeal. Judicial notice on appeal is one prosaic example. A more intriguing example is the use of Code of Civil Procedure Section 909."Read the ...


09.04.18

Did You Notice That This Fact Was Not in the Record on Appeal?

"Did you notice that this fact was not in the record on appeal? Lawyering requires two key ingredients, facts and law. And the world of litigation starkly delineates the realms where each predominates. The shorthand phrasing of this general rule is that trials focus on the facts whereas ...


08.07.18

Poco Loco Rules

"In last year's hit movie 'Coco,' a young guitar-hero journeys to the land of the dead where he finds things (and performs a ditty titled) un poco loco (a little crazy). While not quite a trip to Hades, litigators sometimes find themselves handling appeals in unfamiliar courts, and ...