Wiggling out of appellate bonding

Appellate Specialist Dan Barer points out today's published opinion on avoiding bonding:

In Guzman v. Superior Court (Wigle), published today, the 3d DCA affirms an order granting relief under CCP § 995.240—giving courts discretion to waive a bond provision if the court determines the principal is unable to give the bond because the principal is “indigent and unable to obtain sufficient sureties”—to a judgment debtor with $1.75 million in assets who is appealing a $20 million personal injury judgment. The appellate court rejects the argument that the term “indigent” means “extreme poverty,” and concludes that “indigent” means any person who is unable to obtain sufficient sureties, whether or not the person is destitute.  “Instead, trial courts retain discretion to evaluate each request for relief under the statute and against the traditional understanding of indigency that is tied to equal access to justice.”

Post-trial dangers

The DJ has Rex Heinke's Avoiding two common errors on post-trial motions:

• The most common error I see in federal court is a failure to comply with Federal Rule of Civil Procedure 50(a). Rule 50(a) requires a party to make a JMOL motion before a case is sent to the jury if the motion claims there is insufficient evidence to justify a verdict for the opposing party (previously known as a motion for a directed verdict). If this motion is not made, the party cannot make a JMOL motion under Rule 50(b) after there is a verdict and claim there was insufficient evidence to support the verdict. 

• The most common error I see in post-trial motions in California state court is the failure to ensure the trial court knows its power to rule on a motion for a JNOV or new trial expires 60 days after the clerk or a party mails the notice of entry of judgment. If the court does not rule within this time, the motion is automatically denied by operation of law.

The End of 'Dismiss and Appeal'

In Law360, Josh Patashnik of Ashurst Perkins has Calif. Justices' Ruling Reshapes Midcase Appeal Strategy -- The California Supreme Court's unanimous July 16 decision in Maniago v. Desert Cardiology Consultants' Medical Group Inc. resolves a long-running split among intermediate appellate courts in the state and delivers a clear message to civil litigators: A voluntary dismissal cannot be used as a shortcut to appellate review of interlocutory orders.

In the DJ, Myron Moskovitz has Working, Part 3: Reviewing the reporter's transcripts -- Winning appellate arguments often hide in the reporter's transcripts, where a judge's revealing remark, a damaging concession or a witness's memorable testimony can become the brief's most persuasive line.

FVAP opinion is out!

The Supreme Court's opinion in FVAP v. Superior Court has issued here, and the disposition is:

Let a writ of mandate issue directing the respondent superior courts to provide indigent litigants, upon request, with meaningful access in all cases to an official verbatim record of proceedings, including by means of electronic recording if an official reporter or official reporter pro tempore is unavailable.

"courts can and should imply an exception to section 69957 where reasonably necessary to provide indigent civil litigants with meaningful access to justice and an official verbatim record." (Opn. at 5.)

[The DJ has California Supreme Court orders electronic recording when court reporters unavailable -- Writing for a unanimous court, Chief Justice Patricia Guerrero said California's chronic shortage of court reporters cannot leave litigants who cannot afford private reporters without a meaningful record for appeal.

Bloomberg Law has California High Court Eases Courtroom Recording Restrictions, noting "Roughly 70% of family law, probate, and unlimited civil hearings were being held in California without any verbatim record as of 2025, the AG’s office said in a brief opposing the anti-recording law in a separate high court case."

The Metnews has Electronic Recording May Be Ordered in Any Civil Proceeding -- Opinion Says Courts Are to Imply Exception to Government Code Section Limiting Use of Digital Capture, When Reporter Is Unavailable, to Certain Types of Cases if Indigent Party, Broadly Defined, So Requests]

Also, today's DJ has an article about the Maniago opinion (by Reed Smith's Kasey Curtis, Charles Hyun, and Andrew Workman), using a golf theme to explain the case: Laying up or going for the green? Maniago and the risks of aggressive appellate strategy.

Bonding article

Who can resist reading an article titled Hybrid Collateral Approaches to Obtaining an Appeal Bond? Thanks to CSBA for sharing their wisdom!

Oral arg tips

David Lat's Original Jurisdiction has 3 Tips For Appellate Advocates—From Paul Clement:

1. Listen, listen, listen.

2. Stay nimble

3. Keep it conversational--and candid

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."

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.

Myron on Moots

The last two DJ columns by Myron Moskvitz has focused on moot courts (Sep. 22, 2025 -- Setting up a moot court: Common pitfalls and how to avoid them - Moot courts can sharpen appellate skills, but only when designed to measure persuasion rather than polish & Oct. 13, 2025 -- How to set up a useful moot court: Part 2 - Traditional moot courts, whether for students or practicing lawyers, often fall short of preparing attorneys to win real appeals, but a more candid, private, and strategically timed approach can turn them into powerful tools for success.)

• An effective oral argument is not one that looks good, but one that changes the judges' minds -- from "leaning against you" to "leaning towards you." Very difficult to accomplish, but occasionally it happens.
• do the moot court in private
• "Assume that you have drafted an opinion against the attorney we're helping. Grill the attorney on the reasons you did so. During the feedback session, be prepared to advise the attorney on how she might overcome your reasons."
• try to hold the moot court after [counsel has] prepared a draft of their final brief (appellant's reply brief or respondent's brief) -- but before they file it. This might require some planning to squeeze the moot court into a narrow time window. But it allows the lawyer to use the moot court feedback to improve that final brief before filing. That's when it counts most, and it might well turn a loser into a winner.

For a lesson on "plain error," see J.Graber's dissent here:

In short, in assessing whether an error is “plain,” we must consider the views of other circuits even if no binding precedent is on point. Our objective is to determine whether the issue at hand is “subject to reasonable dispute,” Puckett, 556 U.S. at 135, not to determine simply whether the issue is controlled by binding precedent. And, as the cases above illustrate, how other circuits have decided the issue can inform our analysis as to the existence—or not—of a reasonable dispute. ....

This approach to plain-error review also comports with how at least seven other circuits analyze the question of plain error. ....

Our old formulation of the test, as well as its variants, is thus doubly wrong: asking a question about the wrong time (at the time of trial rather than at the time of appeal) and about the wrong subject matter (the district judge’s perspicacity rather than the obviousness of the error). .... The proper inquiry is simply whether, at the time of appeal, an error is “clear” or instead is “subject to reasonable dispute.”

Advice from Fed. Cir. judges

Law360 has Fed. Circ. Talks Judge Denzel Washington, AI Susan Sarandon -- More than half of the Federal Circuit's judges were in Boston on Tuesday conducting out-of-town oral arguments, and afterward they discussed the most concerning and most promising elements of artificial intelligence, how to write a good brief, why en banc hearings are rare and which celebrities they'd love to see on a panel.

The Federal Circuit judges each stressed the need for briefing and oral arguments to be used as a way to help them, rather than to just put everything and anything out there.

• "When you narrow the issues that are in dispute, you're infinitely more credible than the person that is arguing every single thing," Chief U.S. Circuit Judge Kimberly Moore said in the fireside chat. "It makes us want to fight for you because you're being honest."
• During the full court panel, U.S. Circuit Judge Kara Stoll suggested limiting appeals to three issues.
• U.S. Circuit Judge Todd Hughes stressed the benefit of direct briefing on judges when they're doing an incredible amount of reading each week.
• "The point of the brief is to help us and tell us what we need to know to decide the case in your client's favor," he said, adding soon after that "I want to be able to sit down and read it and understand it from page one."
• U.S. Circuit Judge Leonard Stark similarly said oral arguments are not for prepared speeches, but to answer questions.
• "It's important to understand that oral argument time is the court's time," Judge Stark said. "You want us to interrupt you. You want to have that hope for some insight into what it is about your case that's bothering us and what it is we need to be persuaded to come to your side."
• "Don't fight the questions," he continued. "Don't act as if you're bothered with us interrupting you. And try your best to be in a conversation with us that together we have a problem we're trying to solve."
• Judge Moore, in her later discussion, said attorneys need to actually answer hypotheticals, even if they don't exactly align with the facts of the case.

Bloomberg Law has Willkie Taps Ex-DOJ Appellate Lawyer Ross for DC Litigation Team; Law360 has

Willkie Adds Ex-Asst. Solicitor General As Group Head

Law360 also has Calif. Court Has Change Of Heart On Juror Challenge Question -- A California state appeals court has changed its mind on its own precedent governing when prosecutors can use a peremptory challenge to dismiss a non-white juror from a case, finding a "lack of life experience" can be good reason to dismiss a juror and affirming a man's life sentence.

And NBC national news covered an AI-assisted self-represented appellate victory; story here.

“I can’t overemphasize the usefulness of AI in my case,” White said. “I never, ever, ever, ever could have won this appeal without AI.”

Katyal on building an appellate practice

ATL has The Rainmaker: What 20 Years In Supreme Court Practice Have Taught Me -- Neal Katyal looks back on his career, sharing how collaboration, improv, and listening reshaped his approach to leadership and advocacy.

The legal market is full of brilliant lawyers. What’s scarce is brilliant lawyers who other brilliant lawyers want to work with.

Fed justices/judges must list value of travel-related gifts

Bloomberg Law has Judiciary Adopts New Financial Disclosure Rules for Free Trips

• Justices and judges must now disclose the value of free trips like those taken by Justice Clarence Thomas at the expense of a billionaire benefactor.
• The federal judiciary updated its financial disclosure rules to “require filers to disclose travel-related gifts and their values—rather than reporting such gifts as reimbursements—consistent with the Act’s requirements,” the Administrative Offices of the US Court said in an email March 15.

Law360 has RBG Award Gala Axed After Objections To Musk, Murdoch Nods

Following objections by family members of the late U.S. Supreme Court Justice Ruth Bader Ginsburg, the foundation presenting her namesake leadership award has canceled the ceremony, saying it meant no offense in naming Elon Musk, Rupert Murdoch, Sylvester Stallone, Martha Stewart and Michael Milken as the 2024 honorees.

Yesterday's DJ had Myron Moskovitz's Forfeitures’ on appeal: Part 2 – ensuring fairness to the parties -- The appellate court’s job is to apply the correct law and provide justice for the parties, regardless of the lawyers’ mistakes or arguments. Trial attorneys should consult with appellate counsel to avoid making mistakes or missing important arguments.

• Following Ward v. Taggert, several opinions hold that where the new argument on appeal involves solely a legal issue (such as interpretation of a statute or contract), a new argument is not forfeited by failure to raise it in the trial court.
• case law makes it quite clear that there is no bar to mentioning new authority on appeal. Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1505, fn. 11; Giraldo v. California Dept. of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 251.

CCP 170.6(a)(2)

The Recorder has CALG's Robert Roth's Your Appellate Get Out of Jail Free Card -- Attorneys might not realize the second paragraph section 170.6(a)(2) provides that either party can exercise an additional peremptory challenge against the trial judge. (On this same topic see I Want a New Judge (DJ April2021).)

The Recorder also has Bedsworth: Antarctic Assault and Evolution
 -- "Judging humankind’s evolution by men is like judging humankind’s music by listening to Nickelback," says Justice William Bedsworth.

Preserving issues in federal court

Law360 has Blaine Evanson and Jeremy Christiansen's article on Dupree v. Younger, How 'Purely Legal' Issues Ruling Applies To Rule 12 Motions

Which begins:

This past term, the U.S. Supreme Court resolved a decadeslong circuit conflict in Dupree v. Younger, holding that purely legal issues resolved on summary judgment need not be reraised in post-trial motions under Federal Rules of Civil Procedure 50(a) and (b) in order to preserve those issues for appellate review.

And concludes:

Dupree has provided much needed uniformity regarding preservation of issues resolved on summary judgment, and its ruling should extend easily to the Rule 12 context. That means that a purely legal argument raised and rejected on the pleadings need not be reraised throughout the case simply to preserve appellate review. But the precise line between "purely legal" and mixed questions of fact and law is — as in the summary judgment context — not crystal clear, and counsel should carefully err on the side of asserting the argument before, during and after trial, so it is properly preserved for appeal.

Fed App Proc - No need to repeat

Today SCOTUS rules that "litigants can appeal purely legal issues they lost at the summary judgment stage without going through the technicality of raising them again after trial" per Law 360's 

BREAKING: Justices Open Door To Appeals Of 'Purely Legal' Issues

In a unanimous decision [Dupree v. Younger] written by Justice Amy Coney Barrett, the court overturned precedent from a minority of circuits that required litigants to raise legal issues in a motion for judgment as a matter of law after trial, through Federal Rule of Civil Procedure 50. When a "purely legal" issue is resolved at the summary judgment stage, it is preserved for appellate review without a Rule 50 motion, the court said.

See Law.com's ‘Empty Exercise’: Justices Back Appellate Review of Legal Issues Not Relitigated Post Trial -- Just going through the (Post-Trial) motions would be a waste of time, the Supreme Court says.

In other FedApp news, see Appeals Court Gives Clarity on Voluntary Dismissals, but Inconsistency Among Judges Remains -- Eleventh Circuit clarifies that plaintiffs can voluntarily dismiss entire lawsuits under Rule 41, but not individual claims.

4/1 at high school

 Court of Appeal Holds Special Session for Imperial County High School Students -- More than 500 students from six Imperial County high schools attended oral argument hosted by the Fourth District Court of Appeal, Division One. The court heard two cases before the student audience at Southwest High School in El Centro.

Today's DJ has Myron Moskovtiz's Motions for summary judgment: Beware of "The UMF Trap!" which concludes:

Before including any “fact” in your UMF [statement of undisputed material fact], ask yourself two questions: (1) is there any possible way my opponent might produce evidence raising a triable issue of fact on this? And, (2) is it really material to one of my causes of action or defenses? If your answer is “yes” to #1 and “no” to #2, leave it out.

And CLA's May 2023 Litigation Update is available here.

Embedded appellate counsel article

Today's DJ has Wilmer's Thomas Sprankling's The appeal of putting an appellate lawyer on a trial team:

• an appellate attorney can add significant value to a case long before it is time to appeal and, potentially, head off the need for an appeal at all.
• Perhaps the most natural place for an appellate lawyer to slot into a trial team is when it comes time to brief dispositive motions
• an appellate lawyer can play an active role even if he or she joins the team in the middle of the case – for example, by leading the non-dispositive briefing and assisting with some of the tough strategy calls that arise in any litigation.
• 
  it is becoming increasingly common for appellate attorneys to embed themselves in a trial team just weeks or months before the trial begins. An appellate attorney can play an important role in three ways: preservation, perspective, and presentation of the law.
  
• First, an appellate attorney can keep a close eye on the key legal issues during trial, making sure they are appropriately preserved for appellate review.
• Second, because an appellate lawyer is used to appearing before judges rather than juries, an appellate specialist can provide a real-time perspective into what arguments and decisions are more likely to catch the eye of the court of appeal.
• Third, an appellate attorney will feel at home in drafting the jury instructions, which – like dispositive motions – provide another opportunity to shape the purely legal questions that will be in front of an appellate court.

Abandonment of an appeal v. Dismissal of an appeal -- It makes a big difference, as seen in this unpub from 1/5 today.

"While the mistake may seem like a technicality, the courts rely on parties to file the correct forms in the correct courts, according to the rules."

Appellate round up

Law360 has Alito Has 'Pretty Good Idea' Who Leaked Dobbs Opinion

U.S. Supreme Court Justice Samuel Alito said he has a "pretty good idea" of who leaked his controversial Dobbs opinion last year that overturned federal abortion rights, even though he said he doesn't have enough evidence to name the leaker publicly.  

Bloomberg Law has Alito Says Draft Abortion Decision Leaked to Stop Ruling

On the appellate sanctions front, Prof. Martin points out a rare 9th Circuit opinion here.

the panel held that despite being warned in the prior decision that its prior litigation maneuvers had gone too far, Optional filed this utterly meritless appeal and filed a frivolous motion contesting DAS’s right even to be heard in this appeal. The panel filed a contemporaneous unpublished order directing Optional’s counsel to show cause why they should not be sanctioned under 28 U.S.C. §§ 1912, 1927 and/or Fed. R. App. P. 38.

Today's DJ has William Domnarski's Looking Askance at the law and the jurisprudence of anger, in which he writes:

The nature, custom, and practice of opinion writing at the Supreme Court (and all other appellate courts as well) tells us how much trouble we’re in. In Dobbs, the other like-minded justices in the majority signed on to not just the opinion’s holding but to its tone and attitude as well. Only Chief Justice Roberts would have no part of it and concurred only in the judgment.

The DJ also has PJ Gilbert's Frankenstein's Monster*, in which he concludes:

Familiarity with literature and the humanities as a human, as opposed to an unthinking machine searching for words, is our triumph over A.I. It may not come to an end like Frankenstein’s Monster, but we can and must keep it under control.

And the DJ has Myron Moskovitz's Judging Bad Guys Part VI: How Litigators might deal with it.

Bloomberg Law has: Why the Country Needs a More Political US Supreme Court

 

In time for Easter...

In time for Easter, 1/2 issues an unpub decision here about appellate resurrection regarding an important appellate procedure issue pending at the Supreme Court, which begins:

Plaintiffs and appellants [] appeal from a trial court order determining a settlement was in good faith. We shall dismiss the appeal, applying a line of authority, holding that the only review available to appellants is a timely petition for writ of mandate—a line of authority, not incidentally, supported with cases from this Appellate District: In re Pacific Fertility Cases (2022) 78 Cal.App.5th 568, 573, review granted August 17, 2022, S275134, and Housing Group v. Superior Court (1994) 24 Cal.App.4th 549, 552.

Doing so, we recognize that the issue is currently before our Supreme Court; that if appellants are so inclined, they can seek review of our decision in that court; and that the ultimate holding in that court may differ from that we make here, perhaps resurrecting appellants’ appeal. We thus accompany our dismissal with several observations about appellants’ briefing and advocacy here—observations that are not complimentary—indicating that if this is the best appellants can do, review should not be sought, as any such appeal may not be worthy of resurrection.

The decision also asserts: "Good appellate advocacy does not just regurgitate losing arguments made below."

Receipt not necessary

We know that the time to appeal can be (and usually is) triggered by service of notice of entry. But what if appellant claims he never actually received the notice? Uh, it's long been the law that that doesn't matter! As an unpub from 4/3 puts it:

Receipt of a mailed notice of entry of judgment is not required to trigger the 60-day window to appeal. “[S]ervice is complete at the time the document is deposited in the mail. [Citation.] . . . [T]he sender does not have the burden of showing the notice was actually received by the addressee.” (Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360; see also Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58-59 [upholding validity of notice of entry of default judgment despite failure to include floor or suite number of addressee located in “one of the largest buildings in Los Angeles”].) “[T]he risk of failure of the mail is on the addressee[.]” (Meskell v. Culver City Unified School Dist. (1970) 12 Cal.App.3d 815, 824.)