Not To Be Published (3/07/23)

tl;dr:

-- A tentative opinion might not be as helpful as you think.

-- Supreme Court refuses to depublish opinion affirming injunction of San Diego school district Covid vaccine mandate.

-- On a new podcast series exploring differences in state rules of civil procedure, IL attorney Pat Eckler says: “There’s nothing about Illinois law that anyone should adopt.”

-- M.C. Sungaila shares insights from 100 episodes of the Portia Project podcast.

Dear Colleagues:

Each week, I look for cases presenting a likelihood to shock, surprise, puzzle, inform, anger, or elate. The summaries are mine, the reactions are yours. If you would like to share your reactions, or provide a tip, email me at?[email protected].

And I am always happy to talk about these kinds of issues in your cases.

–Tim Kowal

A tentative opinion makes unlikely those “unexpected” arguments that turn a case

I haven’t met an attorney who wouldn’t love a tentative opinion or a “focus letter” on their appeal. But have you ever tried to articulate how, exactly, it would help to know what the panel is thinking? It seems intuitive, but really, what would you do if you knew the panel disagreed with you on a certain argument? Repeat your argument—loudly, with gesticulations?

One of the reasons oral argument is helpful, suggests Justice Laurie Zelon—now retired and working as an arbitrator—is because it gives counsel an opportunity to give a “surprising” and unexpected take on the case as a whole. “If you give a tentative ruling, you may not hear those things,“ and “there is less opportunity to see that turning that you didn’t see.”

Think of it this way: Every attorney knows that the most important part of the brief is not Roman numeral III, Part D, subpart 4, romanette iii. Even if that is where your key legal argument lives, the prime real estate in your brief is your introduction. Why? Because that’s where you introduce your sympathetic client, set the tone of your brief, and make your common-sense pitch for your proposed outcome. If you haven’t made your successful elevator pitch, a laser-focused re-examination of your legal argument from romanette iii of subpart D.4 of your brief is not likely to save you.

Take the opportunity of oral argument instead to refocus your elevator pitch.

Watch the clip here:?https://lnkd.in/gk66fMvS

This is a clip from episode 48 of the California Appellate Law Podcast. Listen to the full episode here:?https://lnkd.in/gYC6Cm4J

Congratulations to M.C. Sungaila’s on the 100th Episode of the Portia Project Podcast

The 100th episode of the Portia Project?? airs today, March 2, 2023, kicking off Women’s History Month. The Portia Project Podcast features women judges, attorneys, and other legal professionals, chronicling their unique paths in the law.

Subscribe in your podcast player, or listen and learn more here.

In anticipation of this achievement, we interviewed M.C. Sungaila, the host and creator of the Portia Project Podcast, in November on the California Appellate Law Podcast. Listen here.

M.C. was also the Cal.App.Law.Pod’s first guest. You can listen to that episode here.

You can support the Portia Project Podcast by purchasing one of the guests’ books, or books by or about other women lawyers here.

This is a summary. Read the full article at the?tvalaw.com?blog here.?

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

Supreme Court Rules Affirmance of Injunction of Vaccine Mandate Will Remain Published

In November 2022, the Court of Appeal affirmed an injunction of the San Diego Unified School District’s Covid-19 vaccine mandate in Let Them Choose v. San Diego Unified Sch. Dist. (D4d1 Nov. 22, 2022 No. D079906). The court held that a school district could not require students over 15 years old to receive Covid vaccinations because that is the prerogative of the the Legislature, who has not enacted such a mandate. The court reasoned that the Superior Court was correct when it ruled that “there was a ‘statewide standard for school vaccination,’ leaving ‘no room for each of the over 1,000 individual school districts to impose a patchwork of additional vaccine mandates.’ ”

Two charter schools and a former state senator, Richard Pan, who authored SB 277 out of a need for a “statewide standard,” filed a petition to depublish the opinion. Senator Pan argued that individual schools need to be able to set their own vaccination policies. He said that when he had urged, while a senator, a “statewide standard,” he meant only “a minimum standard.” Schools should not be able to ignore or relax state vaccine mandates, according to Pan, but schools should be able to impose new and stricter mandates.

The plaintiff, the parent of a child fully vaccinated except for the Covid vaccine, responded by noting that Education Code section 49405 states that “ on the subject of vaccination shall be adopted by school or local health authorities.” The plaintiff also noted that the opinion meets the requirements for publication under California Rules of Court rule 8.1105 because, among other things, it establishes a new rule of law or applies a new interpretation of existing law, and involves a legal issue of ongoing public interest.

On February 22, 2023, the Supreme Court denied the depublication request, and denied review.

This is a summary. Read the full article at the?tvalaw.com?blog here.?

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y.

Laboratory of Judiciaries: Comparing CA and IL Courts

This podcast is often a soapbox for complaining about oddities in the California court system. But then we wondered: are the courts in other states better? Maybe they’re the same—or worse. So we thought we should start a conversation with a couple of attorneys on their own soap box in Chicago, Dan Cotter and Pat Eckler, the proprietors of the Podium and Panel Podcast, and compare notes about civil and appellate practice in our respective jurisdictions.

Says Pat: “I can’t imagine Illinois does anything that anyone else should adopt.”

Here is what you’ll learn in this episode:

?? Jury trials: You can only get a general verdict in IL—no special verdicts!

?? Unlike CA, the IL Supreme Court promulgates its own rules that govern the courts.

?? But also unlike CA, IL court rules often conflict with the Code of Civil Procedure—and the conflicts are tricky to resolve.

?? Like CA, IL also has no horizontal stare decisis (appellate court decisions are not binding on other districts).

?? Like CA, IL issues a large body of uncitable unpublished opinions.

Listen to the podcast here.

Video clips from the podcast are available here.

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

_______________________

I am always happy to talk with you about these kinds of issues in your cases.

-Tim

Tim Kowal?helps trial attorneys and clients win their cases and?avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at?www.CALPodcast.com, and posts regular updates of appellate news and tips for trial attorneys at?www.tvalaw.com/articles. Contact Tim at?[email protected]?or (714) 641-1232.

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