Posts by Myron Moskovitz

Lawyers often find judges’ quirks annoying.  And losing is no fun.  Plus, it’s human nature to talk yourself into the justice of your cause, and bristle when someone donning a robe doesn’t buy it.   So we all get frustrated at the bench once in a while.  How should we vent this steam?  Mostly we just…

A collection of short articles on various aspects of appellate practice (brief-writing, oral argument, etc.)

The Problem If you lost in the Court of Appeal, you can then ask the California Supreme Court to hear your case, via a “petition for review”. The Supreme Court denies over 95% of these petitions. And, of course, even if the Court grants your petition for review, you might still lose when the Court…

In recent columns, I’ve discussed how trial lawyers might help appellate lawyers overturn defeats (or preserve victories) by doing certain things in the trial court — like setting up a good record for appeal. But there’s one more task — the most important one: properly filing the notice of appeal. If you screw up this…

I’m a pretty good appellate attorney, but I’m not good enough to win an appeal with a lousy trial court record. And I’m stuck with what the trial lawyer gives me. I’m not allowed to add any evidence or documents to it. It’s up to you, the trial attorney, to make sure that your appellate…

Here is how a trial lawyer might set up the statement of decision to give her appellate lawyer the best chance of winning on appeal. The Request If you lose a bench trial, you are entitled to have the judge sign “a statement of decision explaining the factual and legal basis for its decision as…

A few years ago, Boalt Hall Professor David Carillo hosted a marvelous conference on the California Supreme Court. More than 200 lawyers heard Chief Justice Tani Cantil-Sakuaye, Justices Goodwin Liu, Carol Corrigan, Leondra Kruger and former Justice Joe Grodin explain how they decide cases. The attending lawyers also had to suffer through the pontifications of…

Let’s think outside the box of American appellate procedure. Let’s consider the British box. We inherited our common law system from the Brits – both substance and procedure. This included appellate practice, when our country was young. But we’ve since parted company – by a lot. I’m no expert in British appeals, as I’ve never…

You’ve heard the term “comparative law.” What does it mean? Essentially, you take a body of law or procedure of one country (or tribe), lay it down next to that of another country, and explore the similarities and differences. It can be quite fascinating – especially when you delve into the cultural causes that underlie…

The latest fad in the business world — especially hi-tech — is to encourage people to “think outside the box.” This works only if you first have some notion of what “the box” is. “The box” is the way people usually think about a situation, a problem, or an industry. Thinking outside that box is harder and…