Trump’s executive order targeting Perkins Coie gets bench-slapped. Jeff recites the decision’s paean to the plight of lawyers. Tim wonders if Big Law was really hanging by such a slender thread. But on the law, neither is surprised by the result in Perkins Coie v. DOJ.

Also this week:

• A motion to seal to protect privacy goes full Streisand Effect in Marin v. Rayant—filed, denied, appealed... and now, at the request of First Amendment scholar Eugene Volokh, a full published opinion.
• In Chang v. Brooks, a man loses his Wyoming guns after heatedly accusing his California neighbor of killing his cat and then getting hit with a restraining order. His SLAPP motion? Denied—without a hearing needed. Held: You’re entitled to a hearing, but it would have made no difference. Jeff & Tim ask: if Abrego-Garcia were to get a hearing, would it make a difference?
• A $10M harassment verdict is tossed after a trial judge goes off-script with bizarre commentary and irrelevant evidence in Odom v. LACCD.
• Should courts require lawyers to swear they didn’t use AI? Jeff and Tim say: bad research predates robots.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.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

• You have a right to a hearing only if you have something worthwhile to say
• http://socal-appellate.blogspot.com/2025/04/ai-for-appellate-motions-and-more.html
• https://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lmfmkodpks2z
• https://bsky.app/profile/roland.cros.by/post/3lmjyk7wejc2o

A civil litigant, hit with $200,000 sanctions for plotting the kidnapping and murder of the defendant, gets the sanctions reversed.

Next week the California Supreme Court will hear oral argument on whether the state can mandate long-term care facility employees to use residents’ preferred pronouns. If this is consistent with the First Amendment, could conservative states mandate hospitals refer to fetuses as “unborn children”?

The State Bar used AI to create bar exam questions.

An attorney used a cartoon dragon watermark in his federal filing.

And Jeff reports some tips from the recent San Francisco CLA/OCBA appellate conference.

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.

Apple said no jab, no job. The actor sued. The Court of Appeal holds the jab policy is expressive conduct, and thus the suit was a SLAPP.

Apple Studios dropped an actor from its Manhunt miniseries over a COVID vaccine mandate. The actor sued. Apple filed an anti-SLAPP motion—and won. Jeff and Tim break down Sexton v. Apple Studios and ask:

• Is a vaccine mandate a creative decision?
• Do logistical decisions become “expressive” just because they are part of making a film?
• The court held that following “contemporary conventional wisdom” was reasonable, but what happens when that wisdom was arrived at suddenly in a matter of a few months—and then is abandoned just as suddenly?
• And recall past “contemporary conventional wisdom” that is now abandoned: smoking was safe (even good for you!); thalidomide was good for pregnant women; Fen-Phen and Vioxx were promoted. Tim notes that much medical orthodoxy has a short shelf life and the law needs to allow room for individual choice. Jeff notes that in emergency situations the law needs to defer to coalescing expert opinion and best practices. We discuss, you decide.

Also:

• A pro se litigant tricks a New York court into letting his AI avatar argue for him. (Spoiler: it did not go well.)
• Plus, updates on shadow docket misadventures and deportation do-overs.

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:

• Apple’s mandatory vaccine is “creative” expression—employee’s lawsuit held a SLAPP

Alan Dershowitz signed a complaint containing frivolous allegations in Kerri Lake v. Gates. But he’s only “of counsel” who reviewed one paragraph, containing nothing frivolous. So the panel reversed the Rule 11 sanctions—but warns that, going forward, “of counsel” is not a valid defense. Judge Bumatay writes separately to say it should be. Jeff agrees with the majority, but Tim raises a possible chilling effect for trial consultants and appellate counsel—does one bad banana expose the entire trial team to sanctions?

Also:

• Is judicial impeachment a real threat or just cable-news cosplay?
• Discovery fee awards aren’t sanctions unless the judge calls it a sanction.
• A SLAPP fee order isn't separately appealable—even if it feels like it should be.
• Teaser for next week: Sexton v. Apple Studios—where vaccine mandates, historical drama, and anti-SLAPP collide.

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:

• You can appeal discovery sanctions, but not a mere cost allocation
• Can an attorney sign as to only part of a pleading?
• Are articles of impeachment "attacks" on judicial independence?
• Appealability of SLAPP Fee Orders

Judge VanDyke made a YouTube video to accompany his dissent in Duncan v. Bonta, the Second Amendment case in which a Ninth Circuit en banc panel upheld California’s ban on handgun magazines over 10 bullets. Judge VanDyke’s video shows him disassembling a gun, comparing accessories, and using a portion of oral argument to claim his point wasn’t being heard. The issue: If a magazine is just an accessory not entitled to Second Amendment protection, then basically the entire gun is just a bunch of unprotected accessories.

Jeff and Tim react:

• Can a federal judge issue a TikTok-style dissent? If so, can lawyers start footnoting their briefs with YouTube links?
• Does a video “illustration” that relies on props cross the line into new fact-finding? Or is it just illustrative of a legal point about distinguish an “arm” from its “accessories”?
• Are judges likely to do more of these dissents? Maybe explainer videos would be useful in patent cases (comparing iPhone and Samsung phone designs), or product defects, or police excessive-force cases?
• And practical questions: Will the video—and transcript—show up in Westlaw searches? How do you cite to something side during a dissent video?

We also discuss a California Supreme Court ruling clarifying that malicious prosecution claims, even against lawyers, get the full two-year statute of limitations. Not the shorter one-year.

And finally, an update from the J&J v. Trump litigation saga: a judge opens with a warning about the “priceless” nature of attorney integrity. The administration then invoked state secrets. Contempt proceedings now loom. Stay tuned.

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:

• Video Dissent: https://bsky.app/profile/rmfifthcircuit.bsky.social/post/3lkt7yftgqc2g

A federal judge ordered the Trump administration not to deport five plaintiffs, alleged MS-13 and Tren de Aragua Venezuelan gang members. The administration complied, but then the judge verbally ordered the administration to turn around a plane and return 261 non-party alleged gang members. The administration didn’t do so, and appealed. Meanwhile, the President tweeted that the judge should be impeached. In response, the Chief Justice said that’s not how we do things.

Jeff and Tim react:

• Is the President’s determination that the deportees are part of an “invasion or predatory incursion” affiliated with a foreign nation a political question, and thus nonjusticiable? If so, can the President just ship off Rachel Maddow without judicial review?
• Was it irregular for 261 non-party alleged gang members to get added to a TRO after an oral motion and no opportunity for briefing?
• Was it wise for the court to create a contest between the court and the presidency by verbally demanding planes turn around? Was it wise for the President to tweet in protest against the judge? (To the former: it’s arguable. To the latter: certainly not.)

We then discuss how you can lose your right to appellate fees for being uncivil. And if you are uncivil, does the court expect you to apologize?

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.

Even if you technically can’t use an electronic recording to create the appellate record, trial courts do provide them for us in your closing argument PowerPoint. Jeff shares his experience.

And after spending most of a morning watching oral arguments waiting for his case, Jeff offers these tips:

• It took 20 minutes of argument time just for the panel to get its head around who was who in a case full of alphabet-soup entities. If you’re spending a third of oral argument time in front of a confused panel, you’re doing it wrong.
• Try this:
• If your case has lots of “ABC LLCs” and “ABC Holdings LLCs,” try using functional names instead—like “the management company,” and “the holding company,” "investor", "bank", "assignee," etc.
• Anticipate this confusion in your briefs. Include a clear chart in the brief that helps track the parties, preferably directly in the brief or as a supplemental exhibit.

The goal is to reduce "friction." If you’ve used up all panel’s brain synapses just to understand the players, you’re going to have a poor time once you get to the merits.

We also get to a couple cases, including a trap on appellate briefing extensions.

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:

Are employees immune from paying discovery fees?

A stipulated dismissal is appealable, but not a voluntary dismissal?

Here’s a trap door to avoid: if you are trying to expedite an appeal by dismissing remaining claims, do not use the Judicial Council dismissal form. Instead, you need a judge-signed dismissal. While Jeff is still in trial, Tim covers Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972. The plaintiff dismissed his remaining claims after his core theory was gutted on demurrer, but the Court of Appeal held that a voluntary dismissal using the Judicial Council form is not an appealable order.

If you are an appellate specialist and trial counsel asks how to expedite an appeal after a devastating interlocutory ruling, you’ll need to know about this trap door in Maniago, as well as the right way forward in Tos v. State (2021) 72 Cal.App.5th 184.

And if you understand why a voluntary dismissal using the Judicial Council form is not appealable, but a voluntary dismissal using pleading paper is, then please volunteer to come on the podcast to explain it to the rest of us!

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:

• Maniago v. Desert Cardiology Consultants' Medical Group, Inc. (Jan. 30, 2025, No. D085025) 2025 WL 617972
• Tos v. State (2021) 72 Cal.App.5th 184
• Kurwa v. Kislinger (2017) 4 Cal.5th 109 (writeup here)