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by The Daily Journal Network
Stories in this week's episode: Avoiding two common errors on post-trial motions A favorable verdict can still unravel if post-trial motions go wrong -- and one misstep can be fatal before an appeal even starts. Rex S. Heinke of California Appellate Law Group breaks down the Rule 50(a) trap in federal court and the 75-day JNOV deadline in California state court that catches even experienced litigators. Courts should stop rescuing unlawful arbitration agreements Bad-faith arbitration clauses used to get a pass through severance -- courts increasingly aren't buying it. Calahan and Blaine attorney Scott D. Nelson traces a quarter-century of Armendariz case law to argue employers can no longer claim ignorance when their agreements fall short of its fairness minimums. California courts needed a statewide case management system A recent critique of California's failed case management system missed the stakes for vulnerable families, according to retired Judge Terry B. Friedman. Drawing on his time presiding over the Los Angeles Juvenile Court, Friedman argues the real cost of 58 disconnected county systems was measured in restraining and visitation orders courts elsewhere couldn't see.
Stories in this week's episode: California's court recording mandate leaves questions unanswered The California Supreme Court settled one access-to-justice question in Family Violence Appellate Project — and opened several more. Megan A. Moghtaderi of Offit Kurman examines what the electronic recording mandate means for hearing-impaired litigants, conservatees, and those who fall between indigence and affluence. AI chatbots are showing up in discovery: Courts can't agree on what to do about it Work product or fair game? Federal and state courts are splitting on whether AI-generated litigation materials are protected — and California practitioners are operating without controlling authority. Fisher and Phillips partner Usama Kahf maps the emerging circuit of decisions and what they mean for discovery strategy now. A lis pendens is only as good as the pleading behind it Boilerplate dissolution allegations won't save a lis pendens when a motion to expunge lands. Friedman and Friedman partner Ira M. Friedman and law clerk Alyson Atencio walk through Kirkeby and Gale to show why family law practitioners need to plead the property claim before they record — not after.
Stories in this week's episode: The radicalism of Clarence Thomas UC Berkeley Law Dean Erwin Chemerinsky examines Thomas concurrences from last term arguing equal protection doesn't bind the federal government, Congress's commerce power is limited to cross-state transactions, and the Sixth Amendment provides no right to appointed counsel — positions that would overturn decades of settled constitutional law. A jury is only as fair as who gets to sit Retired Santa Clara Superior Court Judge Philip Pennypacker responds to coverage of Justice Goodwin Liu's jury bias jurisprudence, arguing perceived bias cannot justify excluding a juror without compromising the verdict — and that recent legislation will demand more vigilance from trial judges throughout selection. Variety Media: The appeal that could decide whether CIPA applies to website technologies With oral argument set for August 25th, Variety Media v. Superior Court may produce the first published California appellate decision on whether the state's 1967 pen register statute reaches IP addresses and metadata collected by routine website technologies. Wilson Elser's Jana Slavina Farmer and Lioba Bakker break down what's at stake.
Stories in this week's episode: Fixing our broken civil discovery culture: The problem of 'any and all writings evidencing or related to' Los Angeles Superior Court Judge Lawrence P. Riff argues that boilerplate "any and all" document requests do more harm than good — and lays out how narrower, business-language requests get lawyers the discovery they actually need, faster. The safety valves are failing as ordinary cases produce extraordinary verdicts Two verdicts three days apart this summer — including a reinstated $13.1 million FEHA award — are upending long-held assumptions about venue, plaintiff sympathy and damages caps, Leonid M. Zilberman, a partner at Wilson Turner Kosmo, writes. Four steps for lawyers to harness AI without the risks Wisner Baum partner Crawford Appleby offers a four-step framework for adopting generative AI under the duty of competence, without ending up as the next hallucinated-citation headline.
Stories in this week's episode: Why? Retired Second District Court of Appeal Justice Arthur Gilbert spends this week's column asking why — from bicyclists riding without helmets to judicial opinions that run past 50 pages, largely ghostwritten by staff attorneys and rarely trimmed. The public defender crisis Clara Foltz tried to prevent As Los Angeles marks 25 years since renaming its courthouse for Clara Shortridge Foltz, William M. Paparian argues the public defender system she invented still hasn't caught up to the balance she demanded between prosecution and defense. Are AI-generated briefs persuasive? Appellate lawyer Myron Moskovitz set ChatGPT and Claude loose on a case he'd already won, and found the AI-written briefs logical and well-researched — but blind to the strategic instinct that may have decided the appeal.
Stories in this week's episode: California's new jury selection law changes the rules of the voir dire game Felahy Trial Lawyers principal Allen Felahy breaks down Code of Civil Procedure section 231.7, which replaces the Batson/Wheeler test with a "substantial likelihood" standard and makes a wrongly denied objection automatically reversible. The Inland Empire's court congestion crisis With judicial vacancies continuing to strain Riverside and San Bernardino county courts, Justin H. King examines the growing backlog, the dismissed criminal cases that have followed, and practical strategies for litigators navigating crowded calendars. Defending the judiciary's core function: J.O. v. Superior Court and our court's response J.O. v. Superior Court marks a significant shift in the use of blanket judicial challenges. Presiding Judge Sergio C. Tapia II explains how the decision—and Los Angeles County's new general order—promote transparency while preserving the legitimate use of Code of Civil Procedure section 170.6.
Stories in this week's episode: Patchwork Resentencing Michael J. Raphael, Associate Justice, California Court of AppealImagine a law that granted resentencing only to defendants whose last names fell in the first half of the alphabet. Justice Michael J. Raphael argues that's effectively what California has done under Penal Code section 1172.75 — bestowing sweeping sentencing benefits on some prisoners based on an unrelated technicality, while others are left out entirely. How One Vowel Beat a $6.5 Million Judgment Appellate specialist Timothy M. Kowal, founder of Kowal Law Group, dissects the ruling that erased a $6.5 million default judgment over a single missing vowel in a defendant's legally changed name — and the strict rules of service by publication that made it happen. 10 Steps to Prepare a Witness for Deposition He couldn't remember his own birthdate. After three days of mock depositions, a witness had been coached into blankness. Michael S. Kun opens with that cautionary tale in a ten-step guide to preparing witnesses who are neither under- nor over-rehearsed.
Stories in this week's episode: The troubling implications of the Supreme Court's transgender athlete decision Erwin Chemerinsky, dean of UC Berkeley School of Law, argues the Supreme Court's ruling in West Virginia v. B.P.J. weakens intermediate scrutiny by accepting broad generalizations rather than requiring an individualized showing of harm. Chemerinsky ties the 6-3 decision to a broader pattern in which the Court has repeatedly declined to protect transgender individuals from discrimination. The limits of inadvertent disclosure Sanford Jay Rosen and Ernest Galvan, of Rosen Bien Galvan and Grunfeld LLP, break down the Fourth District's ruling in Popa v. Simpson, arguing that stretching Rico v. Mitsubishi Motors Corp. to disqualify counsel over discoverable material undermines a trial's basic function as a search for the truth. They also lay out guidance on responding to inadvertent disclosures. Remote workers, noncompetes and the new choice-of-law battlefield David S. Cunningham III, a retired judge and neutral at JAMS, examines how remote work has turned noncompete enforcement into a choice-of-law problem, since an employee's residence, work location and customer base can each point to a different state's rules. Cunningham proposes early mediation and arbitration to resolve these disputes — without a multi-jurisdictional legal battle.
Cite Out at the Big Nerd Corral Benjamin G. Shatz stages The Bluebook and the California Style Manual as gunslingers fighting for supremacy under Rule 1.200, with practitioner survey data giving the Yellowbook a real edge. Licensed in Illinois, untouchable in California: The extraordinary career of Sidney Korshak William M. Paparian traces how an unlicensed Chicago lawyer ran labor deals and Hollywood contracts from a Beverly Hills corner table without ever facing indictment, and asks what that model would face today. I lied Arthur Gilbert confesses to letting ChatGPT soften his headline, then questions whether AI can ever capture the irony of good legal writing as California's courts move to regulate its use.
Columns in this episode: After J.O., when should attorneys expect a CCP 170.6 challenge? J.O. v. Superior Court stripped blanket CCP 170.6 challenges of their immunity from attack. Trial and litigation attorney James G. Perry asks the harder question: when unrelated attorneys all paper the same judge, how does anyone prove the coordinated "policy" Batson burden-shifting demands? An extraordinary right, narrowed by an extraordinary abuse The CCP 170.6 affidavit that once ended all inquiry can now begin one. Okorie Okorocha of Toxicolawgy.com argues J.O. narrowed the right for every litigant — hitting hardest the lawyer who challenges a judge he genuinely believes is biased. Capital punishment's forgotten Barbara Graham Likely guilty, almost certainly denied a fair trial. Los Angeles lawyer John S. Caragozian revisits Barbara Graham's 1955 execution — a buried witness statement, a staged alibi, a hanging judge — and the death-penalty debate it briefly forced open.