Please AI responsibly: Attorneys at a major law firm are making use of ChatGPT. That's not a bad thing normally, but filling in legal cites is not what it's for. The unchecked ChatGPT cases were fake at a rate of 8 out of 9 total cases in a single brief. On this recent legal news episode Jeff and Tim cover:

• How to AI responsibly (and not get sanctioned).
• How to challenge arbitration responsibly (and not get sanctioned).
• How to anti-SLAPP responsibly (and not get sanctioned).
• Recent court stats and rule updates.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Other items discussed in the episode:

• AI Hallucinations May Lead to Sanctions for Big PI Law firm**.**
• Changes coming to Legal Specialization Board?
• Plantations at Haywood 1, LLC v. Plantations at Haywood, LLC
• *Wash v. Banda-Wash - 40 day period to claim costs after appeal not extended by 2 days - we are sent remands, we are not served with remands*
• Filmore Center Associates v. Lewis; San Francisco Superior Court
• Disbarred in Federal Court, But Welcome in State Court?
• Frivolous anti-SLAP

Your check for arbitration fees gets delayed in the mail. Under a particularly harsh pay-or-waive provision of the California Arbitration Act, if your fee is received on day 31, too bad—your arbitration rights go Poof! Or do they? There’s currently a big split among the appellate courts on this.

Tim goes solo while Jeff is still in trial, covering several of the recent cases on both sides of the split.

• Does your arb agreement incorporate the FAA? You might be well-poised to argue it preempts the FAA.
• Or is the arb agreement silent on FAA, or include only a qualified reference? You’re on shakier ground.

There’s also a separation of powers concern: Can the legislature declare that late arbitration fee payments automatically equal a waiver of arbitration rights, or is that a judicial function? Waiver is a common-law doctrine, and it’s discretionary. But clearly that’s not how the legislature intends it. And waiver requires fact-finding of the parties’ intentions in a particular case—obviously the Legislature doesn’t know what some future litigant in some future scenario “intends.”

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.

Other items discussed in the episode:

• Late payment does not defeat arbitration because that CAA rule is preempted by FAA—but Justice Baker dissents (May 30, 2024)
• Yet another arbitration preemption case, with 1st Dist. holding CAA’s 30-day deadline survives
• Another late arbitration payment case, again holding the FAA preempts the CAA
• Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.] (rev. granted in Hohenshelt)
• Keeton v. Tesla, Inc. (D1d1 Jun. 26, 2024 No. A166690) (mentioned here)

The San Bernardino Superior Court electronically records trial. Can Jeff use the recording as the appellate record? Short answer: no. But there’s an original writ pending in the Supreme Court on a similar issue, so watch this space.

We also cover:

• Jury Fee Hike, Paid by State Fund—but for how long?
• Shehi v. Chicago Title Insurance Co.—attorney disqualification is appealable, but expert witness exclusion isn't, even when the expert is an attorney.
• Tom Girardi saga—Wife Erica Girardi held not liable for aiding and abetting her husband's client trust fund misconduct.
• The Fifth Amendment & Privilege Logs – A Ninth Circuit case on self-incrimination and privilege log requirements.

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.

Other items discussed in the episode:

• Attorney DQ Orders Are Appealable, But Not for Attorney Expert Witnesses
• Audio recording in San Bernardino and Court Reporters
• Finn v. Girardi (2D5d. Jan. 28, 2025, No. B324878) (nonpub. opn.).
• In Re Grand Jury Subpoena (9th Cir., Jan. 28, 2025, No. 24-2506)

Jeff is in trial, so take in a few quick summaries of recent cases and get back to billing:

• Incivility cost attorney $340,000 in fee reduction. Clip-n-save the recent controlling case on this point, Karton v. Ari Design & Construction, Inc.: "Excellent lawyers deserve higher fees, and excellent lawyers are civil.”
• Don’t let the trial court deny relief before you’ve asked for it.
• Lost the CCP 998 bet? You can still get judgment-enforcement fees.
• Infamous sterlization case Buck v. Bell (”three generations of imbeciles are enough”) has never been formally overruled, and the California Court of Appeal still gives the mentally disabled mere rational basis.

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.

Other items discussed in the episode:

• Court cannot deny fees until a motion is made
• Headnotes Jan. 24, 2025: one-sentence summaries of this week’s below-the-fold cases
• Incivility Fee Reduction of $340k!
• The Court of Appeal says that rational basis review applies to mentally disabled.

There was a bit in an old radio show (Kevin-and-Bean KROQ old, not Little Orphan Annie old) had Ralph Garman review movies he’d never seen, based only on watching the trailers. In this episode, we review some cases we haven’t read. We discuss the cases below, which lead to some good tangents.

• When discovery objections have been waived, does serving responses that still contain the waived objections count as “substantial compliance”? Trial court said no, but the correct answer is Yes, says Katayama v. Cont'l Inv. Grp. (D4d3 Oct. 9, 2024 No. G063872) [published].
• Discussing the difference between waiver and forfeiture. N. Am. Title Co. v. The Superior Court. (Cal. Oct. 28, 2024 No. S280752).
• Satisfying judgment renders appeal moot: In Baker Entm't, LLC v. Emmett Furla Oasis Films, LLC . (2D7d Oct. 28, 2024. No. B323388) (nonpub. opn.)
• Failing to respond to demand for punitive damages information, defendant forfeited its challenge to $15M punitives award. (Mosley v. Pacifica Bakersfield, L.P. (D5 Sep. 19, 2024 No. F084699) (nonpub. opn.).
• To Avoid Unjust Result, Unambiguous Statute Held Ambiguous. In re Marriage of Cady and Gamick (D2d1 Sep. 25, 2024 No. B326716)

Other items discussed in the episode:

• Headnotes 11/21/24: Judge Bias Can Be Forfeited But Not Defective Service
• Late objections to RFAs do not invalidate otherwise substantive responses
• Headnotes: one-sentence summaries of this week’s below-the-fold cases

This is why your teenagers are anxious: TikTok’s fate hangs in the balance at the Supreme Court. We discuss the recent oral arguments, and Donald Trump’s amicus brief asking the Court to sit tight and he’ll make a fantastic deal that will be fantastic and make the Court very happy and everyone will be very happy. (That is the best Trump impression I can do in written form 🤷).

And what does it mean when the Court of Appeal decided an appeal based on what one attorney does—and the other attorney doesn’t do—at oral argument? We discuss *Pollock v. Kelso* where the court decides that the plaintiff is the previaling party according to a settlement….a settlement the court has never seen.

We also cover Blauser v. Dubin discussing what to do when the trial court does not issue a final appealable order.

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.

Other items discussed in the episode:

• https://www.youtube.com/watch?v=ynzTXuORJwM
• **Appellate court criticizes trial court practice of failing to enter final appealable orders Blauser v. Dubin** (4D3d Nov. 19, 2024 No. G063715).
• **No reporter’s transcript of attorneys’ fees hearing doomed this appeal Saydman v. Aegis Sec. Ins. Co.** (Cal. Ct. App. Dec. 20, 2024 No. G063209) (nonpub. opn.)

Here is our 2024 roundup, and in exchange we have a request for suggestions for 2025 content. If you are an attorney, what content do you prefer? Check out the poll.

Now here’s the roundup of updates for 2025:

📅 MSJ Deadlines Are Updated: Remember 81-20-11. With the MSJ hearing as the target, motions must be filed beforehand 81 days, oppositions 20 days, and replies 11 days.

🥈 Making a 2nd attempt at an MSJ? You’ll need leave of court.

⌨️ The court reporter shortage is before the Supreme Court. Stay tuned.

Here’s the roundup of notable cases from 2024:

• Biden admin takes aim at judges issuing sweeping nationwide injunctions. (But Tim asks: then who will take aim at federal authorities exercising sweeping nationwide powers?)
• Will anti-SLAPPs still be a thing in the Ninth Circuit by the end of 2025? Stay tuned for updates from the en banc panel in Martinez v. ZoomInfo Techs.
• The appellate courts continued to crack down on attorney incivility, with the court vowing that offending attorneys “will be called out and immortalized in the California Appellate Reports.”

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.

Other items discussed in the episode:

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

1. Amendments to California's Motion for Summary Judgment Statute:
   • Assembly Bill 2049 Text: Official legislative text detailing the changes effective January 1, 2025.
   • Client Alert: New Summary Judgment Law in California Effective January 1, 2025: An overview of the new law and its implications.
   • New Changes to California's Summary Judgment Process: What You Need to Know: Insights into how the amendments will affect litigation strategies.
2. Court Reporter Shortage and Audio Recording in Courtrooms:
   • California Courts - Newsroom: Updates and news releases from the California judicial branch.

• Supreme Court Arguments on TikTok's Foreign Ownership and Nationwide Injunctions:
  • SCOTUSblog: Comprehensive coverage of upcoming Supreme Court cases and arguments.
• Civility in Legal Practice:
  • Masimo Corporation v. The Vanderpool Law Firm Case Summary: Details of the case addressing issues of civility and discovery sanctions.
  • The Uncivil War Raging Before the Cali

Jackie Gardina shares dispatches from the Blue Ribbon Commission on reforming the Bar Exam, covering recent reforms, the ongoing debate about the exam’s effectiveness, and the rise of alternative pathways to legal licensure. Some takeaways:

• 💯 Yes, the passing score was dropped—but don’t worry, the old one was picked out of a hat (basically).
• 🗯️“End the bar exam?! But that’s how it’s always been done!” Nope. Before that there were was the “diploma privilege” model, and before that the apprenticeship model.
• 🔍 What are other states doing? The mentorship model is in use in Oregon, Washington, and Nevada, and the diploma privilege model in Wisconsin.

Jackie Gardina biography, LinkedIn profile, and Twitter feed.

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.

Other items discussed in the episode:

• NCBE Study Aids Store: Offers various resources, including practice questions and study packs for the Multistate Bar Exam (MBE), Multistate Essay Exam (MEE), and Multistate Performance Test (MPT). Visit their store here: NCBE Study Aids Store
• NextGen Bar Exam Information: Provides details on the upcoming changes to the bar exam format, including sample questions and a timeline for implementation. Explore more here: NextGen Bar Exam
• You can find more information about the commission, its objectives, and updates on its activities on the State Bar of California’s website The State Bar of California