The California Appellate Law Podcast

Hosted by Tim Kowal & Jeff Lewis

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210

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Jun 2026

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EN-US

About the show

An appellate law podcast for trial lawyers. Appellate specialists Jeff Lewis and Tim Kowal discuss timely trial tips and the latest cases and news coming from the California Court of Appeal and California Supreme Court.

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60 recent

June 16, 20261 hr 0 min

From the Bench to the Table: Judge Stuart Rice on Civility, Complex Litigation, and Life at JAMS

Drawing on 20 years observing attorney behavior, Hon. Stuart M. Rice (ret.) now at JAMS, speaks freely. This episode is a rare candid debrief from the other side of the bench.Key topics:What incivility actually costs you in court: Judge Rice served on the statewide civility task force and watched uncivil conduct for two decades. His diagnosis: it's not the screamer at deposition—it's the subtler patterns that quietly erode a lawyer's credibility with the bench.The task force secured a new oath provision requiring lawyers admitted since 2014 to attest to treating others with "dignity, respect, and courtesy"—but how much does an oath really change behavior?Show up in person—especially when you can lose: Remote appearances transformed California courtrooms post-COVID, and not for the better. Judge Rice's rule from the bench: if you can win or lose at a hearing, you will do better work in the room.And that's true in mediation, too.Complex mediation is a strategy problem, not just a settlement problem: As the judge who presided over all of the 2025 Palisades Fire consolidated cases and California's Johnson & Johnson ovarian cancer litigation, Judge Rice brings a systems view to large multi-plaintiff matters. He recently wrote in the Daily Journal on what it takes to succeed in complex mediations—and his JAMS practice is built around exactly these cases.Pupillage groups and the civility dividend: As president of the Benjamin Aranda III Inn of Court, Judge Rice restructured pupillage groups to require two new members per group who were law students or lawyers within five years of practice—successfully shifting the Inn's demographics and, he argues, its culture.The Adam Z. Rice Memorial Scholarship: Judge Rice is in his fourth consecutive year as president of the California Judges Foundation, which funds needs-based scholarships for law students from disadvantaged backgrounds. The scholarship is named for his late son. This year's award included an offer of free mentoring until the recipient's first legal job. Find it by searching "Adam Rice Memorial Scholarship" or visiting caljudges.org.Your next status conference is closer than you think. Hit play before it gets here—this episode will change how you read the room.

June 3, 202631 min

Papering Judges After J.O.: Update your 170.6 software

Does your office have a blank 170.6 form ready to go for a certain judge? Stop doing that. A 170.6 peremptory challenge is no longer automatic: the California Supreme Court now authorizes courts to look behind your 170.6. The touchstone is whether your 170.6 is based on a genuine belief of prejudice—or mere grievance.But first, a $3 million sanctions order against Quinn Emanuel in a big‑pharma advertising case, where an expert obtained key clinical data before it was disclosed and the firm failed to correct the record. The Northern District of California called out firm culture, and ordering the attorneys to prepare and lead an eight‑hour ethics MCLE.How a three‑million‑dollar sanctions order against Quinn Emanuel grew out of failures to correct prior statements about expert discovery.The court’s criticism of a “culture of bad ethics decisions” and the requirement for a bespoke eight‑hour ethics course.The facts in J.O. v. Superior Court, including 325 peremptory challenges aimed at removing a single judge from conservatorship matters.The new three‑step framework for challenging bad‑faith, blanket 170.6 practices and what counts as a prima facie showing.Strategic implications for lawyers who rely on peremptory challenges in small counties and specialized calendars.What is your firm’s 170.6 practice like? Expect any changes after J.O.?

May 26, 202654 min

Copyright Troll Slayer: How Morgan Pietz Exposed the Prenda Law Fraud Machine

The fall of copyright troll Prenda Law is, according to the ABA Journal, "part of legal folklore." We talk with the attorney who kicked over the first domino, Morgan Pietz.Prenda Law was the copyright trolling operation that filed approximately 20,000 abusive BitTorrent lawsuits targeting anonymous defendants for alleged pornography downloads. Morgan's work on that case resulted in criminal prosecutions and a now-famous sanctions order by Judge Otis Wright, called the Star Trek order (e.g., though the plaintiffs "boldly probe the outskirts of law, the only enterprise they resemble is RICO").Morgan discusses how the Prenda Law scheme worked, what made it cross the line from aggressive litigation into fraud, and how he uncovered the deception through creative investigation and a willingness to question claims that didn't sound right.The conversation also covers Morgan's work on anonymous speech litigation.

May 19, 202659 min

Humans Get Humans (Better Than Electronic Recordings): Stephanie Leslie

Everyone is watching Family Violence Appellate Project v. Superior Court (S288176) to see if the California Supreme Court is going to strike down the ban on electronic recording of court proceedings. There is a steady drumbeat in favor, including the Los Angeles County Superior Court and other courts.But are we missing a perspective?Stephanie Leslie is the immediate past president of the California Deposition Reporters Association and co-founder of Regal Court Reporting. She explains why certified shorthand reporters remain the gold standard for the verbatim record—and why replacing them with electronic recording could be a mistake.Yes, we all want to solve the court-reporter shortage.But the short-term gain of using electronic recordings could reverse a recent uptick of new CSR entrants.The way forward, Stephanie argues, is continuing to invest in recruitment and training.And recent AI pressures are sparking new interest in court-reporting.Also, AI and electronic recording still struggle with minority accents, overlapping speakers, and courtroom noise. Even federal courts with state-of-the-art equipment produce transcripts filled with "inaudibles" and misattributed speakers because no human was present to stop the proceeding and clarify the record.In this episode, we discuss:Why the court reporter shortage was caused by budget cuts, not by the professionHow voice writers are replenishing the pipeline faster than traditional stenographersWhy AI transcription still fails in real courtrooms with accents, noise, and overlapping speakersResource misallocation: multiple reporters sitting idle in the same courtroomBest practices for attorneys to secure reporters and get clean transcriptsWhat experiences can you share about using an electronic recording to create a transcript?

May 12, 202654 min

Rescue Missions & Reality Checks: Fmr. CJ Cantil-Sakauye on What Makes the Supreme Court Take Your Case

The Honorable Tani Cantil-Sakauye led the state judiciary through the Great Recession's budget crisis, bail reform advocacy, and the COVID-19 pandemic. Now she has three new roles: President and CEO of the Public Policy Institute of California, a neutral at ADR Services, and a founding voice of the Alliance of Former Chief Justices.CJ Cantil-Sakauye talks with Tim Kowal and Jeff Lewis about what actually gets petitions for review granted. If the Supreme Court’s job is not to correct errors, then what is it?The justices look for issues that surface conflict, systemic mischief, or other need to weigh in to avoid broader problems.So how do you find those issues? Each justice has a mental list—sometimes those are visible in their concurrences and dissents.Other places to look: amicus briefs from government entities.CJ Cantil-Sakauye also addresses why her Court viewed depublication as heavy-handed and preferred granting review to provide legal explanationAnd why grant-and-transfer requires diplomatic restraint to avoid appearing to rebuke Court of Appeal colleagues.We also discuss:Why rescue missions almost always failWhy Chief Justice Cantil-Sakauye's court limited depublication to the rarest circumstances and changed the rules to keep granted cases citableThe mediation stumbling blocks she encounters when trial counsel defends the trial record instead of negotiating settlementHow COVID permanently transformed access to justice through electronic filing and remote appearancesThe structural tension created by California's legislative control over civil procedure, unlike most states where supreme courts govern procedural rulesWhat’s the biggest factor you think makes the California Supreme Court take a case?

May 5, 202648 min

Jeremy Rosen on Building Horvitz & Levy's San Francisco Office and the Art of Appellate Brief Writing

In addition to having more than 100 published opinions and close to 100 oral arguments to his name, Jeremy B. Rosen is the managing partner of the Horvitz & Levy LLP San Francisco office. Jeremy is also nationally recognized for his First Amendment and anti-SLAPP work. Jeremy joins Jeff and Tim on the California Appellate Law Podcast to discuss:How does Horvitz & Levy sustain a practice that produces hundreds of high-quality appellate briefs annually while maintaining a clear institutional philosophy on drafting, editing, and oral advocacy?Part of the answer: Jeremy explains the firm's two-person brief model: one lead lawyer reads the full record and does the primary drafting, while a supervising lawyer provides strategy and heavy editing.Another part of the answer: Avoid committee-style drafting, common at large firms. This often produces briefs that lack a coherent voice.Who argues the case? Jeremy shares the firm's strong preference that the lawyer who drafted the brief should argue the case—not a senior partner brought in for name recognition.How to prepare for oral argument? Jeremy shares how he prepares “modules” for each topic so he is ready for wherever the panel wants to go.Oral argument strategy: If the bench is cold and asks no questions, speak for two or three minutes and sit down.Jeremy also discusses the responsible use of AI in appellate practice, noting that he now uses it to generate oral argument questions and sharpen briefs, but warns that he has already handled two appeals involving AI-generated false citations filed by opposing counsel.How to prepare for an oral argument when you inherit someone else's brief.The responsible use of AI in editing briefs and the dangers of relying on it without verification.Why a federal anti-SLAPP statute has stalled despite bipartisan support.How do you collaborate on appellate briefs and oral argument prep in your shop?

April 28, 202658 min

The Workhorse Justice: Ming Chin on Prolific Opinion Writing, DNA Evidence, and the Art of Mediation

Justice Ming Chin wrote more majority opinions in his first decade on the California Supreme Court than any colleague—then retired to discover that mediation feels a lot like his first judicial assignment in family law, where the goal was bringing people together rather than telling them what to do.Justice Ming’s biggest pet peeve as a mediator: attorneys who won’t share their briefs.Justice Ming also shares:What makes a good petition for review? Hint: think about Justice Broussard saying "if I get one more piece of paper, I'm going to scream."Why robust internal debate produces better opinions than rubber-stamping.How his experience trying construction arbitrations with expert panels—not lawyers—informs his view that California Supreme Court justices sometimes get arbitration law wrong.Other highlights:The petition reality check—your first paragraph is your only shot: Kitchen-sink petitions go nowhere.Why your petition for review was denied: Lacking in merit? Maybe. But sometimes the Court wants the conflict to "percolate." Or it needs a better vehicle.And don’t overlook that a low-quality petition foreshadows the quality of your merits brief—which could depress chances of review.Federal certification beats petition denial odds: While the Court denies hundreds of petitions for review weekly, Justice Chin "cannot think of any" certified questions from federal courts that were denied during his tenure—making certification an underused path to California Supreme Court review that practitioners should consider more often.Justice Chin's senior partner returned his first brief "with blood all over it" and taught him to "take out all the excess words"—a lesson he carried through 450+ Supreme Court opinions.Unlike other branches of government, appellate courts must explain their reasoning in detail, but that doesn't mean 150-page opinions.Listen to the episode to learn what former Supreme Court justices see that no one else can, why depublication tapered down as a lawmaking tool during his tenure, and how Sargon's expert gatekeeping role—authored by Justice Chin—threaded the needle between passive acceptance and becoming "a thirteenth juror."What question would you ask Justice Chin or one of his colleagues?

April 8, 202659 min

The End of Hallucinated Cases: Ross Guberman's RealityCheck Arrives

Legal writing authority Ross Guberman has been busy absorbing AI tools into his popular BriefCatch and now-related suite of writing tools. Ross returns to discuss how BriefCatch cousin app RealityCheck uses a traditional authority base plus AI power to ruthlessly search and destroy hallucinations in your briefs.Who else is using RealityCheck? Courts. So let RealityCheck find hallucinations for you before it does for the court.Ross also talks about the exciting and perilous AI age. Will AI make lawyering less human? Only if, says Ross, you equate “human” with rescheduling meetings over email.To the contrary, AI used right makes lawyering more human. Not less.Key points:RealityCheck goes beyond hallucinations by catching misquoted language, misstated holdings, and subtle mischaracterizations of case law, as shown by testing on 1990s-era briefs.Courts are already using AI-powered tools for records, dockets, and analytics and are likely to adopt RealityCheck more openly within months, with many courts having contacted BriefCatch after Above The Law’s coverage.RealityCheck uses deterministic checks against court databases plus AI analysis of quotes and propositions, avoiding reliance on LLM-ingested content and consumer sources like Westlaw, Lexis, or FindLaw.BriefChat, trained only on Guberman’s curated materials and the WordRake acquisition (with 12 editing patents), powers BriefChat’s writing guidance and automated editing, with new context-aware tools in development to adapt to jurisdiction, style, judge, and court rules.Changing judicial reading habits (screens, short attention spans, footnote issues) and concerns over AI bias in binding adjudication mean specialized tools should aim to make lawyers more like themselves, not “Sherlocked,” while supporting uses like mediation and pre-filing verification.Seen AI hallucinations or bad cites in your cases? Tell us what happened, or how you’re guarding against it.

April 1, 202632 min

April Fool's Legal Myths: From "One Phone Call" to Dual-Citizenship

The law is riddled with things "everybody knows" that aren't actually true. In this April Fool's-themed episode, Tim Kowal and Jeff Lewis discuss several legal myths, half-truths, and courtroom fictions—from rules of evidence to constitutional assumptions to a Scopes Monkey Trial mythology that is more Hollywood script than record.Key points:Miranda warnings aren't in the Constitution—but they're constitutionally required anyway: The specific warnings don't appear in constitutional text; they're a prophylactic rule. Yet they're binding—even Congress can’t touch them.Dual citizenship was never authorized—it emerged by accident: No Congress ever passed a statute permitting dual citizenship. Great Britain and German have asserted jurisdiction via conscription of the children of their subjects—even though born in the U.S. This is context directly relevant to Trump v. Barbara arguments this week."One phone call" is Hollywood fiction: California Penal Code § 851.5 grants at least three completed calls within three hours of booking, plus additional calls for custodial parents.Circumstantial evidence carries the same weight as direct evidence: DNA and fingerprints are circumstantial; CALCRIM 223 instructs juries to treat both types equally.The Scopes Trial was staged, and the textbook taught eugenics: Think this was religious fundamentalism vs. science? Think again. The evolution text in question, George William Hunter's Civic Biology, ranked races hierarchically and endorsed selective breeding. William Jennings Bryan is regarded a buffoon, but his actual argument was more about local curriculum control than creationism.Buck v. Bell has never been overruled: Remember the monstrous 1927 opinion upholding compulsory sterilization? Still good law. Technically.What legal tropes get irk you?

March 25, 202655 min

From BigLaw to Boutiques: David Lat on Trump, VanDyke, and the Art of Oral Argument

David Lat—founder of Above the Law and author and host of Original Jurisdiction blog and podcast—explains what these stories reveal about a legal profession navigating ideological warfare, economic disruption, and the enduring craft of persuasion.Paul Clement delivered what SCOTUSblog called "a master class in oral argument" in Trump v. Cook. Lat dissects what made it a master class—by listening for the bench's emotional temperature, pivoting through backup arguments without undercutting his primary position, and admitting to Justice Alito that his framing was "heads I win, tails you lose."Key points:VanDyke's dissental as a direct call to the public? Lat describes the theory that VanDyke is practicing "postmodern jurisprudence," calling out what he views as liberal colleagues imposing policy preferences while cloaking them in legal doctrine.For California practitioners, ask yourself: are you appearing before a lightning-rod judge on your panel? Your case might become less about the merits and more about signaling beyond your case.The BigLaw executive orders worked—not through litigation, but through capitulation: Four firms fought Trump's security clearance revocations in court and won. But nine firms settled, committing to political non-discrimination and nearly $1 billion in administration-favored pro bono work.A Washington Post study confirms the chilling effect: large firms have dramatically curtailed challenges to Trump policies compared to the first administration. Smaller boutiques are picking up the slack, but they lack BigLaw's resources. Lat predicts the government will lose in the D.C. Circuit and SCOTUS won't take the case—but the damage is already done.Jack Smith's boutique launched with a Costco run for paper towels—and it's part of a broader trend: AI and co-counseling arrangements now enable small firms to handle discovery-heavy work previously requiring armies of associates. But success still depends on established reputations; fresh graduates need BigLaw's name recognition.Clement's oral argument techniques translate to any appellate court: Listen not just for questions but for the bench's emotional temperature—”the vibes.” Stay nimble with backup arguments framed as "We stand by X, but if you're not persuaded..." Keep it conversational and candid—breaking the fourth wall builds credibility.