Appellate gotchas

The DJ has Myron Moskovitz's "Appellate gotcha" columns (Nov. 3 & 17) -- Appellate work involves diving into the record, crafting strategies and briefs, and arguing tough cases, all in the pursuit of justice for clients, while navigating "gotchas" that can unfairly block valid arguments.

Gotcha #1 -- The most common gotcha is "That wasn't raised in the trial court, so it's forfeited." "Forfeited" (not "waived," which is tougher to show). It's understandable -- but frequently misunderstood.

Gotcha #2 -- "You didn't make that argument in your opening brief, so you can't make it for the first time in your reply brief." Why not? Because it would be "unfair" to the respondent.

Gotcha #3 -- At oral argument, the presiding justice intones: "You can't argue that now, counsel. It wasn't in your briefs."

this gotcha seems strange, because I often hear appellate justices themselves come up with new ideas at oral argument that were discussed in none of the briefs. The justices are trying hard to reach a just result, and the parties' briefs didn't take them there. So, the court goes off on its own and they use that argument in their opinion.

There's nothing illegal or wrong about this. It's exactly what appellate justices should be doing. With one caveat: when the justices themselves are about to decide the appeal on an unbriefed issue, it's only fair that they ask counsel for supplemental briefing on it, or at least issue a tentative opinion or focus letter giving counsel a chance to deal with it at oral argument.

Myron's view is: "gotchas should not be employed unless the injustice inflicted on a party by refusing to consider the argument is outweighed by some serious burden on the opposing party or the court." "Gotchas are roadblocks on the path to justice. They should be erected sparingly -- only where a no less draconian remedy is available."

Goldstein article

Washingtonian magazine has an article on Tom Goldstein: How a Top DC Lawyer and High-Stakes Poker Player Risks Losing It All -- Star Supreme Court lawyer and commentator Tom Goldstein lived a double life as a ultra-high-stakes poker player—and is now fighting federal charges for alleged financial crimes. Why did one of Washington’s most successful attorneys risk it all to play cards?

Goldstein seemed to have it all. He was married to his college sweetheart, lawyer Amy Howe, with whom he shared two young children and a $2 million home in Chevy Chase. Not yet 40, he already had argued 19 Supreme Court cases and was regarded as an influential legal mind, with law professorships at Stanford and Harvard. A sought-after commentator, he would soon also become acclaimed for SCOTUSblog, the scrappy news website that he and Howe built into a media phenomenon. Eventually, he’d go on to argue 45 cases before the high court, among the most of any contemporary private lawyer.

Goldstein accomplished all this despite being cut from a different cloth than most of Washington’s legal elite. He never attended an Ivy League school, clerked for a Supreme Court justice, or spent years climbing the ladder at a high-powered firm. Instead, he carved his own path, cold-calling early clients and working for next to nothing as he built his practice. Away from courtrooms, he posted self-­deprecating YouTube videos, drove sports cars, and relished his status as a colorful Washington personality.

Today, Goldstein is in trouble. Following a lengthy federal investigation, a grand jury in January indicted the 55-year-old lawyer on 22 counts for tax evasion and other financial crimes, charges that largely stemmed from his alleged concealment of millions of dollars in poker winnings. Documents from the case also reveal the extent to which Goldstein was living a double life as an ultra-high-stakes player—allegedly taking on millions in gambling loans as he pursued multiple extra­marital affairs, spent lavishly, and jet-setted around the world.

Learn the new SOD process

Alameda County Bar Assn Appellate Section presents Kelly Woodruff and Claudia Ribet's zoom program:
Navigating the Complex Statement of Decision Process in the Trial and Appellate Courts
Wednesday, November 19, 12:00 PM - 01:00 PM

When a case tried as a bench trial is on appeal, the most important document to the court of appeal is the trial court’s statement of decision. Yet as anyone who has ever dealt with the rules governing statements of decision knows, the process is exacting and the rules are confusing and in some ways contradictory. The panelists will walk you through each subdivision of California Rule of Court 3.1590 and provide a roadmap of how best to navigate the rule to best protect your client’s interests. They will also talk about appellate consequences when a party fails to comply with the rule.

Call for Appellate Attorneys to handle Capital Appeals

The California Supreme Court is seeking qualified attorneys to accept appointment in capital appeals. These cases represent some of the most complex, consequential, and intellectually demanding work in the criminal legal system—and offer a chance to make a meaningful contribution to justice in California. This work is compensated at pre-set hourly rates. For more information and to apply, please check out CAP-SF’s website: https://www.capsf.org/public/Announcements/2025/recruitment.aspx

9th Cir. post-shutdown calendaring for federally funded attys

Order Resetting Deadlines Stayed by Order of October 1, 2025

On November 12, 2025, the President signed H.R. 5371, a Continuing Resolution that funds the federal government through January 30, 2026. Accordingly, the court resets, as follows, the nonjurisdictional filing deadlines for federally funded attorneys (including FPDs and CJA counsel), in cases not currently calendared before a panel:

•  Any filing due on or after November 24, 2025, remains as currently scheduled.

•  Any filing that was due between October 1 and October 10, 2025, is now due December 3, 2025.

•  Any filing that was due between October 11 and October 20, 2025, is now due December 10, 2025.

•  Any filing that was due between October 21 and November 1, 2025, is now due December 17, 2025.

•  Any filing that was due between November 2 and November 12, 2025, is now due December 23, 2025.

•  Any filing that was due between November 13 and November 21, 2025, is now due January 2, 2026.

After a federally funded attorney files a brief by the extended deadline set by this order, the deadlines for subsequent briefs in that case are governed by the Federal Rules of Appellate Procedure, as modified by the local rules of the Ninth Circuit Court of Appeals. Any pending motions to stay or extend the deadlines that have been reset by this order are moot.

Appellate sanctions imposed

4/3 awards appellate sanctions in this unpub for unreasonably violating the rules of court:

• counsel’s extensive reliance on unpublished opinions, inaccurate quotations from the cases cited, and failure to properly cite supporting evidence in the record justifies the imposition of sanctions. ARC’s opening brief cites three unpublished cases, and its reply brief cites an additional three. Absent specific circumstances not applicable here, a party may not cite an unpublished opinion.
• Multiple citations to the appellate record are improper.
• Further, most if not all record citations in ARC’s brief were to incorrect pages from the appellate record.

1st DCA pro tem update

Judge Ann Moorman of the Mendocino County Superior Court will be sitting pro tempore in Division Four until December 31, 2025. 

December early closure notices

The 3d District announces: Early Closure of Clerk's Office on December 11, 2025

This is public notice that the Clerk’s Office for the California Court of Appeal, Third Appellate District, will close at 3:30 p.m., Thursday, December 11, 2025. This includes both telephone and the filing window located on Fourth Floor of the Stanley Mosk Library and Courts Building. Normal hours, 8:30 a.m. to 4:30 p.m. daily, for both telephone and filing window will resume on Friday, December 12, 2025.

The 6th District posts: Court Closure Announcement

The Clerk’s Office window will be closed on Wednesday, December 10, 2025, from 11:00 AM PST to 3:00 PM PST. The drop box on the 10th floor, next to the Clerk’s Office at 333 West Santa Clara Street, San Jose, CA, will be available for the public to drop off documents.

Veterans Day

Today's DJ has a dozen veterans-related articles, including some of appellate interest:

Judges reflect on the harrowing experiences of women who served in war -- Fifty years after the Vietnam War, Justice Eileen C. Moore and Judge David O. Carter shared personal accounts of combat, courage, and the long-overlooked role of women at a World Affairs Council event in Newport Harbor -- revealing memories of trauma, resilience, and honor that still shape their lives and service on the bench.

At a recent World Affairs Council program held at the American Legion Post 291 in Newport Harbor, 4th District Court of Appeal Associate Justice Eileen C. Moore and U.S. District Judge David O. Carter stood before a silent audience and told stories one listener called "the most appalling presentation" he had ever heard -- not for what they did, but for what the nation didn't.

The DJ also has Justice Moore's article From Normandy to the bench: Justice Buck Compton's life of service

On Veterans Day, the California Courts of Appeal have reason to feel a personal connection. Among their ranks is a true hero: Justice Buck Compton. As a young man, Compton was one of the Band of Brothers in E Company, aka Easy Company, part of the 101st Airborne Division, heralded by historian Stephen Ambrose. For his heroic actions on June 6, 1944, D-Day, Compton received the Silver Star. ....

In 1970, Reagan appointed Compton directly to the Second District Court of Appeal, where he served until 1990.

Nonexistent cases? Appeal dismissed.

See the unpub'd decision here, where 2/5 dismisses the appeal of a pro per who: "After citing nonexistent cases in opposition to the demurrer in the trial court, which were brought to his attention, he cited nonexistent cases again in his briefs on appeal."

And see this published opinion from 4/3 about joint and several liability for sanctions and who has to appeal or not.

And here's a unpub from 2/1 dismissing an appeal because: "An order denying permission to substitute a defendant’s name for the Doe designation under section 340.1 is not listed among the appealable orders under section 904.1, nor does plaintiff identify any other statute rendering the order appealable."

CJP Dec. 1 hearing

Today's DJ has Hearing set for retired justice accused of delaying 100s of cases -- A Commission on Judicial Performance hearing begins Dec. 1 in Sacramento for retired 3rd District Court of Appeal Justice William J. Murray Jr., accused of willful misconduct for long delays in issuing decisions over a decade.

• The commission said in a notice in June that over a 10-year period, 355 cases were delayed one to nine years after being fully briefed or assigned to Murray.
• The hearing at the Sacramento County Superior Court will be conducted by special masters Justice Maurice Sanchez of the 4th District Court of Appeal, Division 3; retired Los Angeles County judge Anthony J. Mohr and retired Orange County judge B. Tam Nomoto Schumann.

The DJ also has Former Justice Cuéllar reflects on court tenure, diplomacy, and 'Kabuki' confirmations --Speaking before his former colleagues, Mariano-Florentino Cuéllar said the skills of judging and diplomacy share an "unmistakable crossover" and criticized federal confirmation hearings as overly performative.

Law360 has Joshua Sohn's Why Appellees Should Write Their Answering Brief First

• The most important reason for writing your answering brief first is that your opponent's opening brief will structure the facts and legal arguments in a way that most benefits their side. If you read their brief before drafting your own, it's easy to subconsciously adopt their structure and find yourself playing defense against each of their points.
• By contrast, if you draft your answering brief first, you can present the facts and law in a way that most benefits your side, without being distracted by the appellant's presentation of the case.
• Give it a try: You'll be pleasantly surprised by how well it works, and how little you end up having to change your draft answering brief after you see what the appellant actually filed.
• writing your answering brief first means crafting a brief that makes an affirmative, stand-alone case for why the judgment below was correct and should be affirmed. Once you have that affirmative structure and text in place, you can think about what arguments the appellant is likely to make, and you can write in rebuttals to those arguments, generally placing the rebuttals after each of your affirmative points.
• there are other benefits to writing your answering brief first. One benefit involves timing — when you write your answering brief first, you can begin working on it as soon as the appeal commences.

Bloomberg Law has Trump Changes How Judicial Nominees Get Publicly Revealed

The Trump administration has narrowed the window between when judicial nominees get publicly announced and when they appear at their confirmation hearings, cutting short the time outside groups have to vet these lifetime appointments.
As little as two days has elapsed between announcement and Senate Judiciary Committee hearings for some of President Donald Trump’s nominees this year, compared to the typical 28 days that elapsed in prior administrations.

The CA Judicial Council has posted the 2026 California Courts Calendar -- Keep track of court holidays, council meetings, and Supreme Court oral argument dates by downloading the 2026 Calendar.

Externships in 4/1

Law students interested in an externship in 4/1 should visit this page here.
Applying for Judicial Externships

The Court of Appeal, Fourth Appellate District, Division One offers an extern program for law students. Externs are selected by the individual justices with whom they then work for 20 to 40 hours per week during a school semester/trimester. The program, including an orientation and periodic group meetings, is administered by the Lead Appellate Court Attorney or designee acting as the Extern Coordinator. Students who participate as part of their school's extern program may earn course credit. The court's extern program is conducted during three sessions each year: Spring (January-May), Summer (June-August) and Fall (September-December).

The extern program provides law students with a clinical educational experience at the intermediate appellate level. Each student works in chambers, under supervision, in a role similar to that of a judicial staff attorney. The program offers judicial and staff accessibility and the opportunity to hone research and writing skills. To complement the practical experience, lectures are given on opinion writing and various substantive topics.

The court welcomes students from law schools around the San Diego Area and the country who choose to complement their law school coursework with judicial externships. Applications may be submitted online through the portal below, or candidates may submit a cover letter, resume, official transcript, and writing sample by mail or email. Email applications should be addressed to James Dalessio, Extern Coordinator, at 4dca1externcoordinator@jud.ca.gov Mail applications should be directed to Mr. Dalessio at Court of Appeal, Fourth District, Division One, 750 B Street, Suite 300, San Diego, California 92101.

Qualified candidates will be chosen to participate in the interview phase and selections will then be made. Letters of recommendation are not required but will be accepted.

Chat w/Carter Phllips

Law.com has A Conversation With NLJ Lifetime Achievement Award Winner Carter Phillips -- In a wide-ranging conversation with the NLJ, Sidley Austin’s veteran Supreme Court lawyer describes the lunch that birthed the modern Supreme Court bar, why he long avoided moot courts and which justice has had the biggest impact on the institution.

• After launching one of the nation’s first private Supreme Court practices at the law firm Sidley Austin in 1985, Phillips has gone on to argue 82 cases before the justices over the past four decades, making him the most prolific Supreme Court lawyer in private practice. His total tally from the last four-plus decades, including that stint in government, stands at a whopping 91 oral arguments.
• in the summer of 1985, Rex Lee, who had been the solicitor general in the Reagan administration and my boss in the office, joined Sidley and we decided to see if we couldn't create a Supreme Court practice.
• The person who actually put the idea in Rex's head was [Supreme Court Justice] Lewis Powell. Justice Powell had lunch with Rex before he left as the solicitor general, and Justice Powell told him that he thought that the business community really needed access to the kind of expertise that the United States has in the solicitor general's office and the Justice Department. He thought that if Rex could find the right law firm, he could play that role and help the business community significantly. So I suppose getting, I don't know, a pat on the back from Justice Powell helps some.
• Before Justice Scalia, you could realistically expect to get somewhere in the neighborhood of 10 to 15 questions in a 30-minute oral argument. After Justice Scalia, you would get 10 to 15 questions from him in about 5 minutes, and that had the effect of energizing everybody on the court.

DJ profiles CALG

 Today's DJ insert on Top Boutiques profiles the Complex Appellate Litigation Group, LLP -- Founded in 2012 as the first significant San Francisco-based appellate boutique, the Complex Appellate Litigation Group has experienced major successes and dramatic growth. ... The firm was called the California Appellate Law Group, or CALG, when it was first profiled as a Top Boutique in 2016.

Tung confirmed for 9th Circuit

The DJ reports: Jones Day partner Eric C. Tung wins 9th Circuit confirmation, 52-45 -- Tung, a former clerk to Justices Antonin Scalia and Neil Gorsuch, succeeds Judge Sandra S. Ikuta; his addition does not change the court's partisan makeup.

• Tung will be the 11th judge on the 9th Circuit, which has 29 active judges, chosen by President Donald Trump.
• A 2010 graduate of the University of Chicago Law School, Tung has no judicial experience. But he served as a clerk for both U.S. Supreme Court Justices Antonin Scalia and Neil M. Gorsuch, both of whom he described as role models.

Law.com has Jones Day Partner Eric Tung Confirmed to 9th Circuit

Law360's latest Wheeling & Appealing is out. The appellate trivia question this time is: "Only one U.S. president has served as a federal circuit judge — who was it? And for extra credit, on which circuit did that president serve?" (This one is a pretty easy guess, since the answer is also the only U.S. president to have served on SCOTUS too.)

Appellate MCLE programs

CLA Litigation Section Committee on Appellate Courts presents What Every Solo and Small Firm Lawyer Needs to Know About Appeals a 1-hour webinar on December 5 at noon:

Appellate specialists and appellate court staff attorneys offer essential information that solo and small firm trial attorneys should know about appeals. Topics include briefing and argument tips, record preservation, standards of review, and other crucial points that can be implemented both in the trial and appellate courts.
• Brandon Hamparzoomian, Appellate Court Attorney (5th District)
• Ariel J. Stiller-Shulman, Certified Appellate Specialist
• Allison Ehlert, Supervising Deputy City Attorney

Also, BHBA presents Before the Appeal: A California Litigator's Pre-Appeal Checklist on November 13 at 11 a.m. (1-hour webinar) by Laura Lim and Kent Toland of Greines, Martin, Stein & Richland LLP. They will discuss critical pre-appeal steps for trial lawyers and their clients in the California Court of Appeal.

6th District pro tem update

In the 6th Disrict, Judge Sunil R. Kulkarni of the Santa Clara County Superior Court will be sitting Pro Tem until December 31, 2025.

5th District pro tem update

These judges are sitting pro tem in the 5th District:

• Judge Gregory T. Fain of the Fresno County Superior Court will be sitting pro tempore until November 30, 2025. 

• Judge Amy K. Guerra of the Fresno County Superior Court will be sitting pro tempore until December 14, 2025. 

2d District pro tem update

The following are sitting by designation in the 2d District:

• Justice Peter J. Siggins (Retired) of the First District Court of Appeal will be sitting Pro Tem in Division Two until December 31, 2025 

• Judge Craig B. Van Rooyen of the San Luis Obispo County Superior Court will be sitting Pro Tem in Division Four until November 24, 2025 

• Judge Sunjay Kumar (Retired) of the Los Angeles County Superior Court will be sitting Pro Tem in Division Five until December 16, 2025 

• Judge Denise Hippach of the Santa Barbara County Superior Court will be sitting Pro Tem in Division Six until December 31, 2025 

• Judge Jessica Uzcategui of the Los Angeles County Superior Court will be sitting Pro Tem in Division Eight until November 30, 2025 

Appellate AI Guidance

The Courts of Appeal have posted this AI advice:

Using AI for Your Court Case? Read This First

If you're considering using AI tools like ChatGPT to help with your court case, please visit our "Using AI?" page to help you use these tools safely and effectively.

Generative AI is a tool that can help you write or explain things, but it can make mistakes. Use it carefully—especially for legal issues.
AI may be able to help you:

☑ Write drafts of letters, forms, or court papers;
☑ Fix grammar and improve your writing;
☑ Explain legal words in plain language;
☑ Understand steps in a court case;
☑ Find legal information from trusted websites; and
☑ Organize your thoughts before talking to a lawyer.
Follow these guidelines to use AI safely:

☑ Make sure the court allows you to use AI.
☑ Double-check anything AI gives you.
☑ Ask AI to give sources, and check them yourself.
☑ Check that websites or forms are from California and from a trusted source, like a court.
☑ You must make sure all court papers are correct, even if AI helped.
☑ Talk to a lawyer for legal help.

AI is not a lawyer.
It may give wrong answers, even if it claims to be accurate.
It may give advice that does not fit your case.
Don’t share personal or private information.

Self Help
If you need help with your court case or have questions about the law in California, go to selfhelp.courts.ca.gov or contact your court’s self-help center.