Parhaat Appellate Podcastit (2024)

1
Justice Anita Earls and the Court as an Institution: Part 1 34:17

18h ago34:17

34:17

Justice Anita Earls of the North Carolina Supreme Court knows about some reforms that will improve our justice system. But she also knows about some that will provoke an unhappy response—including an investigation against her personally. In this first part of our interview, we discuss Justice Earls’ path from a 30-year civil rights attorney to supr…

1
Prelude to the Business Court and 15th Court of Appeals: More Questions Than Answers | Tyler Talbert 54:16

13d ago54:16

54:16

The Texas legal landscape will change significantly on September 1, 2024, with the launch of the Business Court and the 15th Court of Appeals. While the start date is set, many details are still uncertain. In this episode, Tyler Talbert, a board-certified civil appellate lawyer from Waco, joins hosts Todd Smith and Jody Sanders to delve into these …

1
Abortion Pills and Vaccine Mandates 27:52

8d ago27:52

27:52

We have a few big cases to cover: The Supreme Court, 9-0, guaranteed continued access to abortion pills. A 9th Circuit split panel, meanwhile, allows a challenge to a Covid-19 vaccine mandate to proceed, challenging Buck v. Bell forced sterilization-era public health precedent. And a get-out-of-arbitration-free card case get reversed on FAA grounds…

1
The appellate court that overruled a supreme court: Part 2 with John Sylvester 28:06

15d ago28:06

28:06

John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. In the previous episode we discussed why it was controversial. (Short version: because the Court of Appeal, sub silentio, thumbed its nose at the Supreme Court and concluded that a missing finding required by statute gives you a an automatic get-a…

1
The appellate court that overruled a supreme court: Part 1 with John Sylvester 32:24

22d ago32:24

32:24

John Sylvester was the counsel of record in the controversial Abdelqader v. Abraham published opinion. Why was it controversial? Because the Court of Appeal thumbed its nose at the Supreme Court, which had held in F.P. v. Monier that just because the trial judge forgets to make a required written finding you don’t get an automatic get-a-new-trial-f…

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Exploring Procedural Justice | Judge Steve Leben 53:19

27d ago53:19

53:19

Judges represent not only their judicial office, but also the legitimacy of the judicial branch as a whole. For many Americans, their only interaction with the legal system may come from a single trip to the courthouse. This makes it imperative for judges to leave participants in the system feeling that they have been treated fairly and respectfull…

1
Top 10 Tips to Avoid Fee Disputes, with Carl Mueller 35:12

29d ago35:12

35:12

Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. In the continuation of our discussion in the last episode, Carl Mueller shares his top 10 tips to avoid them and win them. The tips include: See a “red flag”? Trust your gut, and run. Check your retainer agreements for compliance with Business …

1
How to Avoid Fee Disputes, with Carl Mueller 29:41

1M ago29:41

29:41

Every attorney has felt the concern over a growing receivable, and the frustration of a nonpaying client. Carl Mueller litigates these billing disputes and explains what attorneys should know to avoid them and to win them: All the billing disputes are basically the same, so… Spot the “red flags.” (You know what they are.) If you do get into a dispu…

1
Focus Groups as a Trial-Preparation Tool | Elizabeth Larrick 49:19

1M ago49:19

49:19

Preparation is the key to winning at trial, and focus groups are a powerful tool for ensuring that a case is trial-ready. In this episode of the Texas Appellate Law Podcast, hosts Todd Smith and Jody Sanders visit with Austin-based trial lawyer and consultant Elizabeth Larrick of the Larrick Law Firm. Elizabeth shares her passion for helping lawyer…

1
Top 10 Tips from Court of Appeal Research Attorneys 36:44

1M ago36:44

36:44

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 fac…

1
Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 2) 33:44

2M ago33:44

33:44

Last time, we set the table with special-education attorney Tim Adams to discuss the big 9th Circuit win for parents of kids with IEPs (individualized education protocols). Now we dig in to Irvine Unified School District v. Landers and Gagliano. After covering the fact that the school district, to get out of helping a dyslexic student get the help …

1
Tips for Persuasive Legal Writing | Luther Munford 52:19

2M ago52:19

52:19

Lawyers are professional writers, and the ability to write persuasively is more important than ever. In this episode, Luther Munford, an appellate expert and former law professor, joins Todd Smith and Jody Sanders for an insightful discussion on the principles of persuasive legal writing. Luther emphasizes the importance of ethos, logos, and pathos…

1
Why One School District Spent $1 Million Fighting Special-Education Attorney Tim Adams’ Client (Part 1) 30:29

2M ago30:29

30:29

A big 9th Circuit win for parents of kids with IEPs (individualized education protocols) came down recently, and the prevailing attorney is podcast alum Tim Adams. In the first of this two-part discussion, we set the table to discuss Irvine Unified School District v. Landers and Gagliano. For example, to understand why parents trying to help their …

1
What to know about “snap” and “super snap” removals 13:04

2M ago13:04

13:04

Are you expecting a lawsuit? And do you want to get that lawsuit into federal court? If your client is domiciled in California, you need to know about “snap removals.” If you get wind of the lawsuit before it is served, you might be able to defeat the removal-bar on home-state defendants. But don’t commit a “super snap” removal. That’s when you rem…

1
Winning Cases on Legal Issues Before and During Trial 1:04:32

2M ago1:04:32

1:04:32

As civil trials become more expensive and less frequent, proactive attorneys should look for ways to streamline or end their cases before trial. Luckily, both Texas statutes and court rules provide some helpful tools. In this episode Todd Smith and Jody Sanders discuss ways parties can address legal issues before, during, and after trial that can s…

1
Is the Racial Justice Act Unconstitutional? 23:35

2M ago23:35

23:35

Racial minorities are sometimes removed from prospective juries—just like everybody else. But the Legislature is so concerned that this could happen on the (obviously improper) basis of race that the Racial Justice Act prohibits a challenge to a racial minority even on the basis of proper factors, such as lack of life experience. And if that happen…

1
Top 10 Tips for Family Law Appeals 25:52

3M ago25:52

25:52

Every day as an appeals lawyer brings new puzzles. But some puzzles repeat. So in this episode, we compile the top 10 tips dispensed regularly to trial attorneys working in family court. They include: 👉 Know your appealable issues—appeal now, or lose it forever! 👉 Request a statement of decision. Don’t need to, you say? Judge already gave a tentati…

1
Social Media and Jury Waiver High Court Cases, and Other Appellate News 36:22

3M ago36:22

36:22

The U.S. Supreme Court provides awaited guidance on public officials’ use of social media, and the California Supreme Court gives a cautionary tale about waiving the right to a jury trial. Jeff and I discuss: 📰Free Speech on Government Social Media: Lindke v. Freed (Mar. 15, 2024, No. 22-611), notable for being short and unanimous, holds that, when…

1
Five Hard Truths About an Appellate Practice, with Raffi Melkonian 52:53

3M ago52:53

52:53

Raffi Melkonian has argued and won in the U.S. Supreme Court, and started the #AppellateTwitter community of appellate attorneys on Twitter/X, where he has over 65,000 followers, and speaks and writes on appeals across the country. And Raffi is here to tell you that building a business on an appellate practice—even a very successful one—is very har…

1
Navigating Federal Tort Claims on a National Scale | Tom Jacob 49:31

3M ago49:31

49:31

Suing the federal government can be a daunting task. In this episode, Todd Smith and Jody Sanders sit down with Tom Jacob, a partner at National Trial Law in Austin, Texas, to discuss the intricacies of litigating cases under the Federal Tort Claims Act. Tom highlights the groundbreaking Sutherland Springs mass-shooting case, in which his firm secu…

1
Sanctions, Successful Reconsideration, and Other Feb. 2024 Cases 45:21

4M ago45:21

45:21

We discuss how to avoid appellate sanctions, and an unusually successful motion for reconsideration: $50k sanctions against appellant for blowing appellate procedure. Motion for reconsideration was untimely, but righteous. Trial judge did not take the Court of Appeal’s hint, so writ issued. (But the trial judge was right to let the writ issue.) Ant…

1
Why Judges Should Take the Legal Accountability Project Pledge | Judge Doug Nazarian & Aliza Shatzman 1:06:47

4M ago1:06:47

1:06:47

Judicial clerkships can provide unparalleled access and prestige to young lawyers just entering practice. But because the judiciary requires confidentiality and secrecy to operate properly, often law students don’t know what to expect. The Legal Accountability Project is working to change that by making the system more transparent for law schools a…

1
Judge Nazarian to Judges: Take the Accountability Pledge 1:02:59

4M ago1:02:59

1:02:59

There are 30,000 law clerks in the U.S., and we have no good way to know to judge their experiences. So Judge Douglas Nazarian of the Appellate Court of Maryland—and board member of the Legal Accountability Project—asks judges everywhere to take the LAP Pledge. The Project hosts a growing database of survey responses from judicial clerks, but it ne…

1
Sleep Well to Crush Your Enemies, with Leslie Porter 52:11

4M ago52:11

52:11

You thought health and wellness was just for hippies, losers and weirdos. But you were wrong. Leslie Porter explains that if you are waiting for your health issues to become acute enough for a prescription, you are not at your best. Not only are you laying the groundwork for possible big problems down the road, you have lower energy, weakened drive…

1
So You Think You Understand the Snitch Rule? 56:27

4M ago56:27

56:27

Next time your opposing counsel takes issue with something you say, don’t be surprised to find a complaint in the next filing citing to rule 8.3 of the Rules of Professional Conduct—the new “snitch rule.” There are about a dozen terms of legal art in the snitch rule, so we asked Judge Meredith Jury (Ret.) and Certified Bankruptcy Specialist Stella …

1
Kyle O’Malley, the Attorney Who Won the Raines’ Supreme Court Employee-Screening Case 51:00

5M ago51:00

51:00

Just a few years out of law school, Kyle O’Malley won a landmark case in the Supreme Court of California. The employer’s screening service in *Raines v. US Healthworks Medical Group*, 15 Cal.5th 268 (2023) used a generic questionnaire asking about menstrual cycles, hemorrhoids, hair loss, and all sorts of fool questions not tailored to the specific…

1
No More Anti-SLAPPs in Fed Court? With Cory Webster 1:02:25

5M ago1:02:25

1:02:25

The 9th Circuit is taking up the ostensible narrow issue of appealability of anti-SLAPP orders. But it could be broader. Much broader. If the court decides anti-SLAPPs are procedural rather than substantive, says Cory Webster, that would mean no more anti-SLAPP motions in federal court. We also discuss that recent panel that departed from an earlie…

1
Cert on Homeless Encampments and En Banc on SLAPPs 38:03

5M ago38:03

38:03

The Supreme Court has granted cert on whether prosecuting a homeless sidewalk-camper is cruel and unusual punishment. And the 9th Circuit has granted en banc review whether anti-SLAPP denials are appealable. Also: You are doing MSJ separate statements wrong (maybe). There are two schools of thought, and the Court of Appeal in a partially published …

1
Tackling Bullying in the Legal Profession | Scott Stolley 57:31

5M ago57:31

57:31

In this episode, seasoned appellate practitioner Scott Stolley sits down with Todd Smith and Jody Sanders to confront the issue of bullying in the legal profession. Scott explores the multifaceted nature of bullying, from interactions with opposing counsel and judges to the challenges of managing clients and relationships with lawyers in the same f…

1
Cal’s initial disclosures, minimum discovery sanctions, & some ¯\(ツ)/¯ cases 36:40

5M ago36:40

36:40

California law now provides for initial discovery disclosures. Get a template handy for your upcoming cases. And watch out for the new minimum $1,000 sanction for discovery misconduct. And some recent cases: The definitive answer whether orders on motion to enforce settlements are appealable is: Nobody has any friggin’ idea. And the answer on how t…

1
How appellate attorneys beat summary judgments, with Yisrael Gelb 41:24

6M ago41:24

41:24

Yisrael Gelb focuses his appellate practice on helping plaintiff lawyers beat summary judgment. We talk about some of his approaches to successfully opposing summary judgment motions, including: 🔧 Look for common defects in the moving party’s separate statement 🤜 Push back on the moving party’s showing. It is often not up to snuff. Drive that point…

1
How Lawyers Should Approach Implementing AI into Their Practices | Tim Armstrong 59:00

6M ago59:00

59:00

Artificial intelligence is a technological evolution that’s reshaping the future of law. But its rapid ascent contains both benefits and potential pitfalls for the unwary. In this episode, former Vinson & Elkins executive Tim Armstrong visits with Todd Smith and Jody Sanders about the evolving landscape of AI and its potential impact on the legal p…

1
2023’s Best Guests, Cases & Tech 57:46

6M ago57:46

57:46

Looking back on the year’s 50 episodes, we discuss some of our best guests, including our 9th Circuit correspondent, Cory Webster, our legal-writing correspondent, Ryan McCarl, our legal-movie correspondent, Gary Wax, and our inspirational public-interest appellate lawyers Chris Schandevel and Carl Cecere. There’s our legal-citation-parenthetical m…

1
Happy Holidays and Parting Thoughts for 2023 7:39

6M ago7:39

7:39

In this special year-end episode of the Texas Appellate Law Podcast, hosts Jody Sanders and Todd Smith reflect on the year, express gratitude to their audience and sponsors, and revisit past episodes relevant to coping with the holidays. They also touch on recent developments in Texas appellate law, including new rules from the Texas Supreme Court.…

1
Eugene Volokh on Restraining Orders and the First Amendment 58:36

6M ago58:36

58:36

Prof. Eugene Volokh joined us to discuss restraining orders, how many of them violate the First Amendment as unlawful prior restraints, and how you can spot the First Amendment problems. The purpose of a restraining orders is to get a person to stop harassing you, but “harassment” can be a pretty vague term—and the same goes for “bullying,” “cyberb…

1
Handling Post-Conviction Death Penalty Cases Pro Bono | McKenzie Edwards 47:09

7M ago47:09

47:09

Finding a career in the law and finding something you’re passionate about don’t always intersect. But McKenzie Edwards, a trial lawyer with Cleveland | Krist PLLC in Austin, has managed to do both. Starting in law school, she saw the inconsistent and nebulous rules concerning how and when a state seeks the death penalty. This inspired her to repres…

1
High-Profile Employment Appeals with Glenn Danas 1:05:45

7M ago1:05:45

1:05:45

Employment and class-action attorney Glenn Danas has argued 49 appeals in state and federal appellate courts throughout the country, including a current streak of eight consecutive reversals. Glenn talks with us about litigating the landmark Iskanian case, and how he turned the panel that initially issued a 148-page tentative against his client. Gl…

1
Addiction and the Recovery Journey for Lawyers | Brian Cuban 1:03:09

7M ago1:03:09

1:03:09

Mental health struggles and addiction are more common than we realize, especially among attorneys. In this episode, Brian Cuban, author of The Addicted Lawyer: Tales of the Bar, Booze, Blow, and Redemption, delves into addiction and the recovery journey for lawyers. As an advocate for mental health awareness and recovery, Brian shares his personal …

1
Liar in a Crowded Theater, with Jeff Kosseff 50:54

7M ago50:54

50:54

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 (…

1
Thankful for Unpublished Opinions 36:20

7M ago36:20

36:20

In a recent opinion, the Court of Appeal reversed by noting that one of the grounds supporting the judgment was forfeited…by the respondent. Wait. By the respondent? An appellant must be careful not to forfeit argument, but not the respondent. We discuss, and express gratitude that this one was not published—and thus cannot be cited as precedent. W…

1
Emerging Ethical Issues for Lawyers Using AI | Derek Bauman 1:10:58

7M ago1:10:58

1:10:58

Artificial intelligence is rapidly evolving and is beginning to impact almost every aspect of our lives. The legal industry is no exception, and numerous ethical issues have emerged as a result. In this episode, Todd Smith and Jody Sanders explore the ups and downs of lawyers using generative AI with Derek Bauman of Feldman and Feldman in Houston. …

1
Appellate Bonds: What You Client Needs to Know, with Dan Huckabay 47:29

7M ago47:29

47:29

Trial resulted in a sizable judgment against your client. You know to stay judgment enforcement you have to post a bond, but what, exactly, does that mean? And how do you do it? Enter Dan Huckabay from Court Surety Bond Agency. We sit down with Dan and ask him how we attorneys can be a hero for our clients by knowing a few key things about appellat…

1
Elegant Legal Writing, with author Ryan McCarl 1:03:52

8M ago1:03:52

1:03:52

Ryan McCarl, author of the latest book on legal writing, Elegant Legal Writing, sits down with us to discuss why now, more than ever, attorneys need to elevate beyond ChatGPT and distractions to rise to our role as teachers of the law. Ryan offers these actionable tips: 🖋️ “Defer editing” and “second-guessing” until a later draft. Don’t be committe…

1
A Longtime Trial Judge's View from the Appellate Bench | Justice Gisela Triana 55:06

8M ago55:06

55:06

Few Texas judges have seen the courtroom from as many perspectives as Third Court of Appeals Justice Gisela Triana. From a practitioner, to a municipal judge, to a trial court judge on various benches, Justice Triana has served the State in a variety of roles. She joins Todd Smith and Jody Sanders in this episode to discuss the insights she has gai…

1
Reversals on Technicalities: 4 Recent Examples 40:13

8M ago40:13

40:13

Appellate courts are in the affirming business. But be ready to take advantage of easy reversals, like in these examples: 😎 If the court refuses to hold an evidentiary hearing in a contested probate matter, that is (probably) structural error and reversible. 😎 If the court refuses to provide a statement of decision on key issues, that is a good ope…

1
How Appellate Lawyers Debate Gun Control and Abortion 57:30

8M ago57:30

57:30

Ninth Circuit correspondent Cory Webster joins us to discuss the court’s unusually busy en banc docket and its own species of “shadow docket.” We discuss how parties and judges are moving a few hot-button cases into procedural positions that may suggest what the merits decision will be—but without really touching the merits. We discuss: Gun Rights:…

1
Inside the Fourth Court of Appeals' Clerk's Office | Michael Cruz 50:10

8M ago50:10

50:10

In a world of electronic filing, fewer attorneys see appellate court clerks in person. It’s easy to forget how critical their role is to keeping the courts open, efficient, and accessible. In this episode, Michael Cruz, clerk of the Fourth Court of Appeals in San Antonio, joins Todd Smith and Jody Sanders to talk about how he and his staff make tha…

1
CM/ECF Is Outdated So Get Ready for the 9th Circuit’s ACMS, with Susan Gelmis 47:24

8M ago47:24

47:24

Have you ever had trouble e-file something and had someone tell you to try a different web browser? When it comes to the CM/ECF system used by federal courts, that problem has to do with aging technology reliant on “java” plugins, which have security problems. Susan Gelmis, the Chief Deputy Clerk for Operations, explains why the 9th Circuit is leav…

1
The 9th Cir. “Reimagines” Diversity Jurisdiction 45:20

9M ago45:20

45:20

The one sure thing your law-school loans purchased is instant recall of the fact that “federal courts are courts of limited jurisdiction.” But not as limited today as when you signed your promissory note. We discuss Impossible Foods Inc. v. Impossible X LLC, the recent 9th Circuit decision holding that specific jurisdiction over a defendant may be …

1
How to Prepare for Oral Argument 47:03

9M ago47:03

47:03

Have an appellate oral argument coming up? We discuss tips shared by top appellate attorneys how to prepare for and give oral arguments. Some tips include: 🗣️ Anticipate the panel’s questions when you can, but… 🗣️ …be prepared to respond when you don’t know the answer. 🗣️ Be prepared to answer: “What is your rule” for answering the key statutory or…

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