Teaching Judges: Appellate Expert Cherise Bacalski on Brief Writing and the Human Side of Law

Appellate specialist Cherise Bacalski teaches appellate writing at NYU Law's New Appellate Judges Program, and in this interview we discuss her insights from both sides of the bench and how her background in rhetoric shapes her approach to appellate advocacy.

• Training new judges: At NYU, Cherise teaches newly appointed appellate judges how to make their opinions more readable through proper structure, headings, and organization—skills that help both judges and practitioners.
• The rule is king: What is the rule in your case? Cherise explains that, whatever it is, that rule should inform every part of your brief.
• Write for a “hostile reader”: Reading your brief—your trenchant, brilliant, erudite, sparkling brief—is the last thing any judge wants to do. Forget being brilliant. Just be clear, concise, skimmable, and easy to digest.
• Lead with old information: One of the most effective writing principles is beginning each new point with familiar information to propel readers forward at the speed of thought, reducing the need for excessive explanation.
• The human element: Cherise views the law as fundamentally human. Understand you are talking to humans, not picking a lock.
• AI is an amazing tool, but not a replacement: Use AI to test arguments and identify weaknesses in briefs. But AI sometimes misses critical "smoking gun" evidence in case analysis.

Tune in for a masterclass in appellate advocacy that bridges the gap between academic rhetoric and practical legal persuasion from an attorney who's seen the system from multiple perspectives.

Appealing in the 9th Circuit? Your deadline is 30 days. Don’t let Rule 58’s “separate document” extension lead you astray. Appellate specialists Tim Kowal and Jeff Lewis also discuss ChatGPT 5 (a “market disruptor”), and sanctions strategies in federal court.

• Appeal Deadline Alert: The 9th Circuit in McNeil v. Guitare held that Rule 58's 150-day extension for appeal deadlines applies only to final judgments, not collateral orders like qualified immunity denials.
• Anti-SLAPP Motion Timing: Mora v. Menjivar confirms that filing just a notice of anti-SLAPP motion within the 60-day deadline is insufficient—supporting documents must be filed concurrently.
• Out: Res Judicata. In: Claim Preclusion.
• Sanctions Strategy: 28 U.S.C. § 1927 can be used for sanctions without Rule 11's cumbersome 21-day safe harbor.
• AI Ethics: California courts confirmed in Nolan v. Land of the Free that attorneys must personally read all cited authorities, regardless of whether AI tools were used in brief preparation.

And more practical insights on navigating procedural pitfalls, avoiding sanctions, and ethically incorporating AI tools into your appellate practice.

Failing to cite your secondary sources in briefs is poor form. But is it plagiarism? Jeff and Tim debate. And when the Supreme Court The publishes a case, should it explain itself? PJ Gilbert and Tim say yes, Supreme Court and Jeff disagree.

Also in this episode:

• Can copying from a CLE article really get you sanctioned? Kelly v. Tao suggests… maybe.
• Presiding Justice Gilbert rails (again) against the Court's silent de-publishing practices.
• Deny a request for admission in a one-way fee-shifting case? You might still owe fees—Gammo v. Morrell.
• $105k in sanctions after failing to abandon claims disproven in discovery—Atlantic v. Baroness.
• The perils of citing the wrong fee statute—Martin v. Hogue.
• Gibson Dunn bills $1.8M for May alone in public interest litigation over LA homelessness.
• Can ChatGPT testify against you? OpenAI’s CEO says maybe.
• How AI tools are reshaping billing, ethics, and expectations for appellate lawyers.

Tune in for AI ethics, briefing blunders, and why even your RFA denials could cost you.

Patrick Hagen is a man of the people—he still proudly uses Times New Roman! But he also has the ear of LinkedIn’s legal-writing elite, with over 36,000 followers as of August 2025.

Patrick sits down with Jeff and Tim to share the source and method behind his viral legal-writing tips, how his judicial clerkships shaped his voice, how to hone good writing even when writing “by committee” under senior associates and partners, and why good writing—even in a losing case—is always worth the effort.

We discuss:

• Why it is axiomatic that you should pause and think before using the word “axiomatic.”
• How AI tools like ChatGPT, ClearBrief, and CoCounsel can be the road to sharpened prose—or the road to ruin.
• Can a legal writing critic still be gracious?
• And the lightning round: TNR, Arial, two spaces, Oxford commas, and “Comes now….”

Stay for the writing tips, return for the wit, and if you don’t want Patrick’s 36,000 followers laughing at your writing foibles behind your back, follow him on LinkedIn.

Unlike any other state, California effectively deputizes employees to act as “Private Attorney Generals” to sue employers for PAGA claims—both for themselves, and for their co-workers. But since the individual claims can get compelled to arbitration, employees started to file claims only on behalf of the “body” of co-workers, asserting no claim on behalf of themselves as the “head” of the case.

Employer litigator Monte Grix explains how PAGA evolved into their “headless” form. Monte, Tim, and Jeff discuss the four cases currently on review before the California Supreme Court, including Leeper v. Shipt. Monte offers an inside view from the defense side, explaining why employers see these actions as a threat to arbitration agreements and the subject of growing appellate friction.

Also in this episode:

• How Viking River Cruises and Adolph v. Uber set the stage for today’s headless-PAGA storm.
• Strategic pleading: why some plaintiffs drop their individual claims to avoid arbitration.
• The standing trap: can a plaintiff assert representative PAGA claims without showing personal harm?
• The stakes in the four pending California Supreme Court cases: if a plaintiff can skip arbitration by asserting only representative claims, is PAGA immunity from arbitration complete?
• Turrieta v. Lyft: why copycat plaintiffs can’t intervene in pending PAGA settlements.
• Rodriguez v. Packer Sanitation and the Fifth District’s lesson in reading "and" as "and/or".

Plus: a side quest into unconscious bias, tenure-track discrimination, and why arbitration clauses remain a sore spot for appellate lawyers.

Then: the California Supreme Court's recent ruling in Hohenshelt eases the "30-day rule" for arbitration payments. Employers who pay a day late haven’t necessarily waived their rights—and Monte predicts the U.S. Supreme Court may eventually weigh in.

Tune in for appellate nuance, strategic pleading, and the headless claims keeping California employers (and the courts) up at night.

Summarizing the extraordinary events surrounding the 2020 election, the California State Bar Court’s review decision issued a decision in June 2025 recommending that President Trump’s election attorney, John Eastman, be disbarred. Tim and Jeff unpack.

• Was Eastman merely theorizing, or actively advocating for a constitutional end-run?
• What is the difference, anyway, whether Eastman represented the President—an office that plays no constitutional role in the VP’s role regarding the electoral votes?
• Eastman’s interpretation of the 12th Amendment was not supported by scholars—but also not judicial foreclosed. Does advocating it warrant disbarment? (The equal-protection argument in Bush v. Gore was similarly off-the-wall, yet successful!)
• Eastman’s factual claims were not well-supported. But on the other hand, did the unique circumstances and recent election-law innovations promote a flurry of suspicion—with too little time to vet before challenges would be moot?
• The bar court says Eastman should have relied on "true experts"—what is that?

SCOTUSblog contributor and EmpiricalSCOTUS analyst Adam Feldman joins us for a recap of the 2024–25 Supreme Court term. We dive into the end-of-term Stat Pack, ideological surprises, dissent patterns, and whether the Court is still a 6–3 conservative lock—or something more nuanced.

We discuss:

• Headlines make an opinion a “blockbuster,” but what really makes it significant?
• How Justice Kagan ended up in the majority more than some of the conservatives.
• Why Justice Kavanaugh writes so many concurrences.
• Does the emergency docket (aka “shadow docket”) confound the predictability of legal outcomes?
• Gorsuch’s libertarian streak, Barrett’s evolving voice, and Thomas’s prolific pen.
• Is the Court 3–3–3? Or just a 6-3 with what Adam calls a “soft middle”?
• SCOTUS opinion length, voting blocs, and coalition patterns—and why they matter to your next cert petition.

Tune in to learn how to read between the majority lines—and what might be coming in the 2025–26 term.

Mere days after SCOTUS enjoins universal injunctions, judges find other way to afford “complete relief.” A big one: The Administrative Procedure Act allows courts to enjoin agency actions.

Also:

• What if a defendant does not want a co-defendant dismissed and relieved of liability? The California Supreme Court says co-defendants can oppose each other’s MSJs in R&D Contractors v. Superior Court.
• The Climategate saga continues: when 12-years of anti-SLAPP litigation does not end Dr. Michael Mann’s lawsuit defending his “hockey stick” temperature graph, the D.C. court reverses on punitive damages: with a mere $1 nominal damages award, $1M in punitives is too high. Dr. Mann’s total result after a dozen years of litigation: $6,002 (and a bill for $9,000 in discovery sanctions).
• You snooze, you pay: Employer gets sanctioned $183k for late arbitration fee payment in Guffey v. Bokeet.
• Family law FC 2030 fee denial reversed for considering improper, extra-statutory equitable factors in Marriage of Sadie v. Cativar.
• Georgia appellate court sanctions lawyer for ChatGPT-cited fake cases, citing study showing AI makes mistakes 75% of the time.
• Can you hand up exhibits during appellate argument? Maybe in Texas.
• The Third District new program delays record deadlines pending mediation.

Tune in for insights on trial prep, appeals strategy, and the increasingly blurred lines between branches of government.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

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Other items discussed in the episode:

• Climate Change Trial Update: Jury awards $1 plus $1M punitives for hockey-stick criticism
• Alex Anteau 'Don't Be Dumb': Ga. Court of Appeals Sanction Gives Insight...
• Law360 The Funniest Moments of The Supreme Court's Term - Law360