The California Appellate Law Podcast

Laboratory of Judiciaries: Comparing CA and IL Courts

March 07, 2023 Tim Kowal & Jeff Lewis Season 1 Episode 75
Laboratory of Judiciaries: Comparing CA and IL Courts
The California Appellate Law Podcast
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The California Appellate Law Podcast
Laboratory of Judiciaries: Comparing CA and IL Courts
Mar 07, 2023 Season 1 Episode 75
Tim Kowal & Jeff Lewis

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, in IL you have to have a court reporter to make an appellate record.

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👉 Like CA, IL issues a large body of uncitable unpublished opinions.

Dan Cotter’s biography and LinkedIn profile.

Pat Eckler’s biography and LinkedIn profile.

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Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Show Notes Transcript

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, in IL you have to have a court reporter to make an appellate record.

👉 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.

Dan Cotter’s biography and LinkedIn profile.

Pat Eckler’s biography and LinkedIn profile.

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.

Use this link to get a 25% lifetime discount on Casetext.

Other items discussed in the episode:

Patrick Eckler  0:03  
I can't imagine Illinois does anything that anyone else should adopt.

Announcer  0:07 
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff Lewis  0:20 
Welcome, everyone. I am Jeff Lutz.

Tim Kowal  0:22 
And I'm Tim co all both Jeff and I are certified appellate specialists and as uncertified podcast co hosts we try to bring our audience of trial and appellate attorneys some news and insights they can use in their practice. But Jeff and I split our time we both do some trial court stuff and appellate court stuff. If you find this podcast helpful, please recommend it to a colleague.

Jeff Lewis  0:41 
And quick announcement. Thank you. Our podcast is sponsored by case text case text is a legal research tool that harnesses AI and a lightning fast interface to help lawyers by disability fats. I've been a subscriber since 2019. I highly endorse case text, listeners of the podcast receive a 25% lifetime discount available to them if they sign up a case. That's Keith's text comm slash c a l d.

Tim Kowal  1:05 
Now, Jeff, I wanted to share a personal experience from having done this podcast with you for the last couple of years. You joke with me, Jeff, that you had to work hard to get me to relax enough to do this podcast in the first place. And you'd like to remind me how heavily scripted were our first few episodes, which we now refer to as the rudder guide in podcast form. And now I wonder if I've gone too far in the other direction freely offering my unvarnished criticisms of our state's no citation rule, for example, and how the jurisdictional and I put jurisdictional in scare quotes the jurisdictional appellate rules sometimes seem to be relaxed when the court is minded to reach the merits and the unpredictable results that occur because of our Judiciary's lack of horizontal starry decisis. And the unexpected side effect of getting up on a soapbox on this podcast is that it puts us in a club of other soapbox attorneys and other jurisdictions, for example, when I complain that our appellate courts sometimes summarily affirm, did you know that in Florida for example, appellants have no right to a written opinion at all on an affirmance and in jurisdictions that nominally are Americans. And even in jurisdictions that nominally allow you to cite unpublished opinions, the panel will often treat you a bit rough if you try it. So maybe it's better just to have a rule, not decided at all don't even try. So we thought that we would start a conversation with a couple of attorneys on their own soapbox in Chicago, Illinois and compare notes about civil and appellate practice in our respective jurisdictions. Today, we welcome to the show the proprietors of the podium and panel podcast in Chicago, Dan Kotter and Pat Eckler. Dan Carter is counsel to insurance companies and other financial institutions it and consulting companies and nonprofits. He's been the chief privacy officer of several companies and law firms, and he has extensive experience as an in house counsel, Dan has handled many complex insurance, regulatory issues and transactions as well as reorganizations of holding company systems. He's also worked on privacy and cybersecurity issues for over 25 years. Donald Patrick Eckler focuses his civil practice on defending lawyers, accountants, insurance brokers and other professionals in civil disputes in state and federal courts across Illinois and Indiana. His practice ranges from representing insurers and coverage disputes to defending professionals, businesses and tort defendants and complex litigation pads commercial litigation experience involves complex contract disputes and class action lawsuits. In his experience as a college basketball coach Pat has also represented a coach before the NCAA committee on infractions. Pat is also a committee chair, columnist and board member with both the Illinois Defense Council and the professional liability defense Federation, for which he serves as a current president. He publishes extensively in professional journals on a wide range of topics, including legal ethics, attorney client privilege, and Illinois and federal civil procedure. Dan and Pat, welcome to the podcast. Thanks for joining us. Thank you.

Patrick Eckler  4:04  
Thank you for having us. I'm not the president of the PLDs anymore. I by term ended, but that's okay. Okay, currently, I apparently I need to update my bio.

Tim Kowal  4:12 
There you go. Now, Dan, and Pat, you both practice in the Chicago area. And we've gotten connected on LinkedIn where a lot of lawyers from a lot of different jurisdictions talk about law. How much is social media such as LinkedIn and blogs and podcasts shaping the law and legal culture? Is it supplementing traditional institutions like law reviews? Are they complementary? What do you think as both of you do a lot of publishing and traditional media?

Dan Cotter  4:39 
I think it's more complimentary. I just I think, though, that one of the things that I think is been a silver lining, I guess, COVID has really been the substantive and kind of more actual activity on LinkedIn, like so we met on LinkedIn. I see a lot more lawyers a lot more in the insurance space a lot more than the appellate space a lot more in all kinds of areas of law. Put it out Good content and have a good discussions. I don't know how much it's really impacting law in Illinois or Indiana or California, and more or less just because I don't think many of the judges, you know, kind of like Sotomayor said the other day or was a Kagan for nine lawyers, we were probably not the best people to be doing tech stuff.

Tim Kowal  5:20 
generalists, like all attorneys.

Dan Cotter  5:23 
Yeah. We have a generalist here, by the way, that patent I talk about frequently judge Easterbrook on the Seventh Circuit, if you ever get a chance to listen to an argument, whether it's the acronym listener, he just writes the council repeatedly for use of acronyms. And he's always says that we're generalist, maybe you know what you're talking about. But yeah, please do that site.

Tim Kowal  5:43 
Break. Those acronyms are hammered. Masham.

Patrick Eckler  5:47 
He says they he calls them initialisms. And he refer and he says, Please use English words. So someone will say an acronym. He doesn't know what it is, or it claims not to I doubted it. There's no way he doesn't know when many of these cases and he says what was that? English words, please, counsel? We're generalists. And off he goes, and then they can't stop doing it. And he just throws his hands. I mean, you can use to eat he gets utterly frustrated with because they can't stop doing it. And it's pretty funny. Just call it the act. We know what you're talking about.

Tim Kowal  6:16 
Yeah, there you go into your water so ugly, ugly,

Patrick Eckler  6:21 
they are to answer your question I grew up down there. It's complimentary. It really gives you an opportunity, though, to to ferret out an idea to get input from people who wouldn't otherwise be able to chime in on it, you're having the opportunity to discuss an issue, whether they're in your state or across the country like you I mean, sometimes I'll post something on an issue of appellate procedure or procedure we do here in Indiana, or Illinois. And I'll say, hey, what do they do in your state? Because it's interesting to compare and contrast, because most states have got similar procedures in one way or another. But it's where those fine lines are. And that can teach you about your procedure. Oh, that's interesting. Maybe we can do that in some different way. Or you never know how it's going to shake out, I do a fair amount of insurance coverage. And I clients will say, What do you think, is this covered? I say, I don't know, I don't get the policy. I don't know, I gotta look at the rule. And you read the rule, and you read the rule in light of the facts are in front of you. And you end up with an entirely different reading that you didn't have before. Because you took these facts and applied it to these words and went okay, maybe we can do something like that.

Tim Kowal  7:22 
Yeah. Now you're both active in publishing legal commentary. So in addition to your your work, and doing the podium and panel podcast, which you started back in January 2021, is the podium and panel podcast an extension of the conversations that you're having in your published writing, or you're talking about different things.

Patrick Eckler  7:39 
Many times it's there's overlap Dan's column in the Chicago School of Law, but we both have weekly columns in the Chicago Daily law bulletin, which is a venerable publication that is read by all Chicago lawyers worth their salt. Dan and I are both lucky enough to have spaces there. Dan publishes on Mondays and writes a lot about the Supreme Court in particular, and then I write a column that's now on Thursdays, and I focus on civil practice issues from a defense perspective. And so many times we will refer to cases that we talked about on the show, if it's double billing. It's called being efficient. And then we have a segment of our show called the Rule of a week, which may be a topic in one of our columns, depending upon the issue. I think our rule of the week, this past week was my column that got published yesterday on peer review. And so you know, it's, it gives us an opportunity to cross market. It's not only double billing, it's cross marketing. So in the LinkedIn post, it says, Hey, if you want to learn more about this, you know, see this podcast where he and I talked about it, or will say that you're going to talk about this more on the episode upcoming, and it allows us to tell get people to listen to back episodes and increase the views of the listener count.

Jeff Lewis  8:48  
Yeah, that's a great idea. Wow, we should steal that they can do steal that. You can steal it

Patrick Eckler  8:55 
don't have any protection we do. We do have a trademark on prediction sure to go wrong. We do. Not on rule of the week,

Dan Cotter  9:03 
and a patent algorithm system. That's impeccable. Blackbox, that favors wins. But we've got enough to floss this.

Patrick Eckler  9:11 
It's not It was developed by the same sign German scientist that developed the black box that gives higher bonuses and raises to the equity partners, as opposed to the income partners. They it's that same, it's amazing. We got to take advantage of it this time the German scientist helped us as opposed to helping the other guys so it was good.

Jeff Lewis  9:30 
So let me ask you, in addition to LinkedIn, and the podcast and YouTube played around at all with either Twitter spaces or clubhouse, you know that kind of live audio format. Have you guys played around with that at all?

Dan Cotter  9:41 
We have not in terms of the show itself. I'm on Twitter, but I'm not really used live feature and clubhouse is interesting because it seemed to spike for a while and second half of 2022. And then I don't see anybody clip housing or whatever it would be called. Or not much. They're still out there. I listened to some stuff on clubhouse and to me it was kind of Oh, was like just go into a campus of a college people, different lounges, different fraternities, sororities or, you know, dorms and just chat about whatever. And you know, some of the speakers sometimes were, you know, actually prepared and said something and other times, I'm like, what? Why the hell did I waste 20 minutes listen to somebody talk.

Patrick Eckler  10:21  
Yeah, I haven't done it. I think I've listened to one thing on clubhouse. I didn't do it for be Twitter I was on years ago, and it was bad for my mental health. So I haven't been on it. And it was just, yeah, it's very effective of sucking you in and getting you to say things you regret. And what's it? This is what it was 140 to 280 characters and I was just like, you don't want I'm done. So no, yeah, well, if

Dan Cotter  10:44  
you come back, you'll recognize it is under Elon Musk, not much has really changed in terms of it still. But y'all that people that we're gonna go to Mastodon, or other platforms for me, you know, none of it panned out, because they found I think that those were even harder to navigate or get connections on, it's still

Tim Kowal  11:04  
cool. Well, in a minute, we're gonna compare notes and talk about differences between Illinois State court and California State court. But since you are both in Illinois, which is in the seventh Federal Circuit, let me ask you both. Would you rather be in state court in Illinois or in the Seventh Circuit? I know, Pat, you do a lot of litigation. Dan, you counsel a lot of companies. And so you may be called upon to have a preference for one or the other. Do you Do either of you have a preference? And why?

Patrick Eckler  11:27 
Can I give the lawyer answer? No, no. It depends.

Tim Kowal  11:32 
There's a real answer. The answer is it depends.

Patrick Eckler  11:34 
You tell me where what kind of case it is where in Illinois State Court I'm going to be and that'll tell me which appellate court I'm going to get unless what happened a couple of weeks ago happens to you. And the Supreme Court of Illinois transferred a tranche of cases out of the fourth district, which is a insurer and defense friendly appellate court and transferred them out to districts unknown. For reasons not published for not a number of cases not made public, at least that I have seen. And this follows on we used to have a very easy way to figure out which counties were in which pelleted districts. They gerrymandered the districts in Illinois in order to ensure a Democrat supermajority on the Illinois Supreme Court, which they got and they re jiggered these districts such that they one looks like a see, the fifth district now looks all kinds of goofy and encompasses nearly half the counties in the state. And it completely scrambled all of the districts except for Cook County, which is its own Appellate District.

Tim Kowal  12:45 
This is and this has to do with the appellate districts in Illinois had to do with the composition of the Supreme Court.

Patrick Eckler  12:50 
So in Illinois, there are five appellate districts. We have one appellate court, but five districts, the first district which is Cook County has three members of the Supreme Court, each of the other districts have one member of the appellate court. So the cook so Cook County has, it represents about 40% of the population of the state. So it gets about 40% of the population of the Supreme Court. And then the other districts are spread and they each so they the members, the people who live in those districts elect a member of the Supreme Court, and then that person is subject to retention. And if they aren't retained, which happened for the first time in decades and 2020, then the supreme court appoints someone to fill the term until the next election could be held two years hence. And then there was an open seat election for that seat in that newly constituted district.

Tim Kowal  13:41 

That's interesting. I had not even thought of that, because that's not the case in California, the governor can nominate California Supreme Court seats from anywhere in the state, not limited to any district. And so frankly, I don't even know where any given one of our Supreme Court justices hail from, you

Jeff Lewis  13:57
know, you know, I've heard of gerrymandering in the political context, but never heard a story about it in the context of judges and

Dan Cotter  14:03  
justice. Yeah. It's pretty crazy, even

Jeff Lewis  14:05 
to Chicago.

Patrick Eckler  14:07
I will say this is that the Supreme Court of Illinois under the Constitution is, except for the composition of the districts is essentially entirely independent of the other political branches, I say other political branches, as you can hardly call them non political considering they're elected, but they don't have to go they've got supreme power over anything that occurs with regards to the courts, for example, lawyers are regulated by an agency of the Supreme Court, not by the Illinois Department of Financial Professional Regulation, like nearly every other professional in the state.

Jeff Lewis  14:41 
So when it came time for the COVID shut down and everything that was dictated by the Supreme Court, not the legislature

Patrick Eckler  14:47 
with regards to COURT Yes. And but everything else was was run by the governor through our list the name of the app, the emergencies act or something that he has invested with Raphael power, but no with regards to Two court closures and the Supreme Court has issued rules. They issued emergency rules for depositions. They issued rules with regards to they said no remote jury trials of any kind, even if the parties agreed and in the criminal context, you weren't allowed to have them. Right.

Tim Kowal  15:17  
In Illinois, do you still have remote jury trials? Or is it back to in person,

Patrick Eckler  15:20 
though we were in person, there have not been the court? Well, there was one I've aware of one remote jury trial was tried up in Lake County by a friend of ours, Tony Alden, and a lawyer from all state they tried it, and that I want aware of any other one where that's occurred.

Tim Kowal  15:37 
And that is decided by the Illinois Supreme Court, whether the jury trials are gonna be remote or in person. Yeah. Okay, because we have complete authority over that. We've talked about that here. Jeff. And I talked about a case that mentioned that the statutory authorization to hold remote jury trials is set to sunset, I think on July 1 of this year, so unless the legislature acts, then the courts have no say in it, they'll have to go back to in person jury trials, even if it's more convenient, or whatever reason, or even if there's another flare up COVID cases. And that gets to an another interesting question that I stumbled upon, I never realized this that California is in a minority of jurisdictions where the rules of civil procedure are dictated by the legislature rather than the court. Can we follow the federal model where the Congress go wrong? Congress and accept federal rules of civil procedure?

Patrick Eckler  16:27
You have no idea. Dan, please explain what we do in Illinois, because you're gonna love this.

So yes, we have a Code of Civil Procedure. We also have Supreme Court rules. Those procedures enacted by

they both have the same they both have the force of law, things sometimes conflict there is. So for example, there's a current bill in this in this so the supreme court rule, it's the IMA rule prequel rule. 215 governs independent medical exams. It says the court has discretion to set the conditions for an independent medical exam fine. They want to Code of Civil Procedure section 735 ALCS five slash two dash 1003. Right orders that a person can be present for the IMA. And now the plaintiffs bar has has sponsored a bill that allows it to be recorded video taped, digit Supreme Court says the trial judge gets to decide this in their discretion. And so you have a conflict between the two. And I mentioned the separation of powers issue at the beginning. I think that between the two, the Supreme Court rule controls because it's an issue of justice. So it's wrong branch. But we have two sources of law. So for example, venue is in the Code of Civil Procedure, orange enacted by the legislature by the legislature for nine convenience is in the Supreme Court rules. appeal of a denial or grants of one of those is in the Supreme Court rules under the the appellate rules.

Tim Kowal  18:01 

And what are you to assume that they occupy the same stature when they're in conflict? Is one override the other consistently or is there

Dan Cotter  18:09 
a penalty? As Pat said, the Supreme Court will suit Governor because it's specific to justice. But there's, there's disputes and people challenge season core, and it's a massive, one of the things that's bad, and Belen life, probably in many states is patent I've talked about on the show. In some cases, there's all kinds of rules and don't lie about readings of the law. But what happens in Illinois, so the unique thing in Illinois couldn't was civil procedure, things that happen. And prejudgment interest that happened year or two ago in the 11th hour, is a lot of times what legislators do in Springfield is they introduce a shell bill, and it's got it maybe in the health code or something else education. And then what happens is they read that bill, and then they strip it at the end. And then they fill it with something different. It could be insurance law, could be civil procedure could be anything. And then the legislature argues that they did the three readings and that thing was debated. And then it goes up to the Supreme Court because again, it's in our Constitution, that process. It's a real mess. And like I mentioned, one of the things that happened a year or so ago, was prejudgment interest that the legislature put into being and again, it gets challenged right away. We just by referendum or by by ballot initiative did the safety act with cash bail, that's being challenged and the Supreme Court's agreed there that case in terms of whether there's gonna be cash bail in our criminal justice system. So it gets to be a mess because like Pat said, some stuff house and civil procedure, sometimes there's an equivalent thing in the Supreme Court rules, sometimes they conflict. Sometimes it's not clear what either one is really saying And so yeah, so yeah, one of the

Patrick Eckler  19:47 
let me put some meat on the bone with with the unmentioned was shell bills. There is a shell bill for every section of the Illinois combined statutes. So then at any time, the leaders can pull a bill because it has to be Due to germaneness requirements, under the Constitution under Article are under Article Two, Section Eight of the Constitution, it has to be to germaneness requirements. So they have every section of the code has a shell bill in my shell bill, it takes a definite article and makes it an indefinite article. And that's a bill. Okay, so we can change any section of the code we need to change at any time.

Tim Kowal  20:23 

This is kind of how the house will send up a tax and spend bill to the Senate and they'll just put it on the shelf until they they want to start their own bill, because the Senate doesn't have taxing authority. But if they got a taxing bill from the house, and they can

Patrick Eckler  20:35 
they can say that the bill began in the in the house. Yes, believe it, even though it began in the Senate. Right. It's the same kind of shenanigans. And what there is, is the Senate President and the Speaker of the House have to certify that they follow the rules. And Illinois has adopted what's called the Enrolled Bill doctrine, which means different things at different states I've learned. But in Illinois, it means that so long as the Senate President and Speaker of the House have signed off, but they follow the procedure. They follow the procedure, and the Supreme Court isn't going to challenge it. Now. There have been multiple challenges to this as Dan elucidates on a variety of issues, and the Supreme Court has its most recent opportunity to the case settled right before it was going to get decided. But they have two cases, they've got the prejudgment interest case making its way up, they've got the Safety Act, and they've got the new assault weapon ban case, it's gonna go up, it's got the same issue. Every one of these steps. The prejudgment interest bill in the Senate and the first bill on the Safety Act passed at the same time at 3am. In the morning, at the very end of a lame duck session, January 13 2021, is gonna go down in may go down in the annals of history is a very bad hour for the Illinois General Assembly of those two bills get struck down because they didn't follow the Constitution.

Dan Cotter  21:45
And one other thing you should know about right now in Illinois, is not only the Supreme Court has a supermajority, but both the House and Senate are super majority Democrat. And it's been that way for a couple of years. Now, at one point, they were kind of split and there was they were closer, but over and over again, through gerrymandering and other efforts, it's become more and more democratic. We have majority body. And so you mentioned things that Pat talks about the sign offs. Again, you can't question them, but a lot of times, you'll look at the kind of legislative history and the record, and it's likely this will be inadequate. But

Tim Kowal  22:22 
so you mentioned that in Illinois, there's Code of Civil Procedure, and then there's what is it called the Supreme Court rules, rules of court, it's similar to in California, we have California Code of Civil Procedure. And then we also have the California Rules of Court which is promulgated by the Judicial Council. But there's definite hierarchy there that the rules of court are not allowed to conflict, they can only supplement or fill gaps in the Code of Civil Procedure and a famous contest that is still relevant today between the Code of Civil Procedure and the rules of court concern the use of court reporters, or alternatives to court reporters rather electronic recording system back in the 90s. They rolled out this pilot program installed equipment in a few different county Superior Courts to test out whether we can electronically record the proceedings and have them transcribed later on for use as an appellate record. And it seemed to work out okay, maybe even arguably a cost savings. But the court reporter lobby has amazing influence in Sacramento and they quash bill after bill after bill. And so today, you cannot use any method for creating an appellate transcript except the court reporter. There's two other methods that Jeff and I kind of joke about because they are so rarely successfully implemented. The settled statement and agreed statements basically have to come up with a summary of what happened at the proceedings. Supreme Court rule 23 is what we call bystanders report. Yeah, yeah. Sounds like the same kind of thing. Yeah. And yeah, so the the legislature there was a bill proposed in the 90s to allow electronic recording got quashed. And so now here we are, there's a national court reporter shortage. And there's not a lot anyone can do about it. Unless someone can stand up to the special influence and get some kind of alternative method implemented, we'd now have all this all the courts have zoom technology or some equivalent recording technology for broadcasting its proceedings, all they would have to do is hit the record button. But there is a Code of Civil Procedure right on point that says you may not hit the record button even for judicial note taking purposes and certainly not for creating an official or unofficial appellate record. Can we rule in a rule of court just just to close the circle on this one, there was a rule of court that allowed the courts to raise funds and to spend funds on electronic recording system and this Court of Appeal found it invalid because it conflicted with the Code of Civil Procedure.

Dan Cotter  24:34  
You know, it's interesting if you within the last month Pat night as a rule of the week, we talked about an Indiana proposed change that had to do with electronic recording of hearings and getting rid of court reporters and it's we don't know where it's it's still in its infancy, but it's interesting and Pat and I when we talked on the podcast, as I mentioned before, he was able to join us. You know, when we record our weekly podcast, we often have audio issues and So we just marveled at some of that, you know, the minute and a half of excess, that air, things cut off, we have to get back in and back out. We have to do some surgery to the thing. So just interesting that, you know, maybe that's what Indiana gotten from because it's not really clear. Yeah,

Tim Kowal  25:15 
I want the simultaneous court reporter transcript is the gold standard. There's there's not going to be anything that's better than that. But there are a lot of litigants, particularly indigent litigants. A lot of family law practitioners and probate practitioners have been kind of spoiled because they were the last holdouts that those departments in California were still provided with court reporters as a matter of course, for years. Jeff and I are in our civil matters where you had to bring our own court reporters, but now because of the shortage, even family law and probate law attorneys need to bring their own court reporters in Illinois. Do you have to bring court reporters are they provided for are there alternatives to court reporters to creating an appellate record?

Patrick Eckler  25:54 
So a couple things, if you're in one of the 16 calendars of the Chancery Division of the circuit court of Cook County, the chief judge, that judge has a court report. That is the only civil judge that I am aware of that has an assigned court reporter, obviously a 2016. Cow that is the primary criminal courthouse in Cook County, there are court reporters in the criminal courthouse, but no other civil court Am I aware of in Illinois, of any variety has court reporting now, there is recording in many of the smaller jurisdictions and certainly in DuPage County, which is the second largest county and cook area in Illinois, just the county just to the east of or just to the west of Cook County in Kane County, which is just to the west of that they have reporting. But the principal civil courthouse in Cook County, you could not wire for recording, they can't even wire it for internet, the daily center, they can't wire for internet, because if they did, they would have to shut the building down because of all the asbestos. Oh, you're kidding. So they can't disturb it. So they can't wire the thing for internet, so they surely can't wire it for recording. So that's off the menu. The problem with the recording situation is in not having a court report I wrote about this in my column all of the problems of how a trial would be different. If you don't have a court reporter that can go into chambers that can go to the sidebar that can go and allow for the individual voir, dear of an IRA person who needs to who has got some sensitive issues they need to talk about, let's suppose they've got a personal reason why they can't be at the trial or they have a health issue or that protect perhaps there's you know, the nature of the case requires an inquiry into sexual abuse or things and it makes who knows what it's going to what kind of questioning you can't do that without having the entire jury to do calisthenics up and down out the jury remitted to the courtroom? Because you've only got recording in one place. You've got to be in how do you how do you do a reback with a recording device? You asked the perfect question. The witness goes, Can you repeat that? How do you do a read back? What happens if the recording device doesn't record?

Tim Kowal  28:02 

Now? Yeah, that was one of the big problems. One of the complaints that were common when they had the pilot program in California in the 90s is a lot of judges wrote in to the legislature and said I don't like these recording system, because every time an attorney asks, can you read that back? They didn't have a special people. They're monitoring and running the recording system. And it was all on tape. So the judge had to reach over, hit the stop button rewind, find the place and the tape hit record. Again, when it was done. How do

Patrick Eckler  28:26  
you do? How do you do daily copy. You can't do daily copy without having a team of two court reporters one of the morning one of the afternoon. So you get the morning report by four or five in the afternoon and you get the evening one the afternoon by seven or eight at night.

Tim Kowal  28:39 
You have to treat the proceedings as generally as though there is no court reporter there. Just you just have the peace of mind that well, if I do need to appeal, then I can turn that recording into a transcript somehow. Yeah,

Patrick Eckler  28:51
court reporters are not only invaluable for the preservation of the record, but they are invaluable for the trial, the function of the trial itself. And in the absence of them, you have got a real problem. The answer to the shortage that I know is acute in California and certainly exists here as well is not to get rid of court reporters, it's to train more of them. And we have to find a way as a profession to do that.

Tim Kowal  29:17 
Well, that's been the problem. And for 30 years, they've been losing uptake in that profession. Hard to imagine why it's a not a well remunerated profession or interesting profession. It is a difficult profession. I've looked at the stats for the number of people who test I know they had to take a dexterity exam and a certain number of words a minute, and a very small percentage. I think it was like less than a third of the people who test for this exam, pass it in California expensive. nationwide.

Patrick Eckler  29:44 

It's expensive to test for it to the equipment costs. I've been told upwards of $20,000 along with the education and the time it takes but they are very well paid. So you want to talk about flexible job work when you want to for a working mother. What a great job. You can work anytime.

Dan Cotter  30:01 

It's the same with shorthand, and that's part of the skills. And my mother wanted shorthand back in the day. And that's a lost art as well.

Tim Kowal  30:08 
Yeah. So it sounds like we have similar struggles on the court reporter front, let's get some other procedural issues I wanted to ask you about. Sorry, we go

Patrick Eckler  30:16 
we go back real quick on more crazy civil procedure stuff. So who writes your pattern jury instructions in California?

Tim Kowal  30:24 
We have two of them. We have Casey caaci. And Baji. Ba J. I don't know the institutions are who?

Jeff Lewis  30:31 
The Judicial Council and so that's

Patrick Eckler  30:34 
the other one, do they represent the law of California,

Tim Kowal  30:37 
the Judicial Council writes the rules of court and arm I think the head of the Judicial Council is the Chief Justice of the Supreme Court.

Patrick Eckler  30:45 
So in Illinois, the Illinois pattern jury instructions are written by the IPI committee. It's a committee appointed by the Supreme Court, unlike the Supreme Court rules, the IPIs do not have to be approved by the Supreme Court. And it is not infrequent that the IPIs gets struck down. Yet, under supreme court rule 239, you must use the IPIs, even if you don't think that they represent the law. So what you end up having to do, you have to tender an alternative instruction, the judge will give it because they can't.

And you preserve the issue. And then if you write and the instruction gets struck down, then you get the privilege of trying the case again, and that's going to become a big issue, because we recently had the IPI committee which is controlled by the plaintiffs bar eliminate a version of our proximate cause instruction that clearly represented the law of Illinois, as stated by the Illinois Supreme Court. They got rid of it. And so that's a coming issue in the future. So yeah, it's a it's a mess that there used to be special instructions, and those are eliminated as well. And so yeah, it's constant. And I don't try a lot of cases, but the one that was the last time I did, it takes days because we go through all these instructions, even though like Pat said, You got to use them. Because you're arguing over there's an alternative language, sometimes bracket a language, that sometimes you're arguing that it's just wrong, like that said, because it doesn't, it's not consistent with what actual lines whether the courts have actually

Jeff Lewis  32:16  
here and suddenly, California we have form instructions, and we have special instructions you can propose, are you telling me that your state no longer has special instructions,

Patrick Eckler  32:25 
so special in a rogatory ease, so you can have a non pattern IPI, the judge can either take it or leave it, they have to give it IPI. If it's the case, if the facts and often they have to give the IPI. If you have a non standard instruction, they can take it or leave it special interrogatory is were used as to test an element of the claim because under Illinois law, and they get restricted under the Code of Civil Procedure, we only give general verdicts, we don't give special works. So if you want to add so and by that I mean our issues instruction folds all of the elements into one instruction, they don't get asked duty breach causation damage, they get asked do you find in favor of whom and for how much? Right yeah,

Tim Kowal  33:12  
one for a general verdict, you saying you cannot or the judge cannot give a jury a special verdict form.

Patrick Eckler  33:19  
Forms are not special verdict forms are not allowed. So you get a so you can get special, we used to be able to get special interrogatory ease, and I testify. So this actually is a creature. So go to civil procedure, section 1008 of the Federal Code of Civil Procedure. And the what it said is, is that under the old rule, the instruction, if it was offered had to be given and if it contradicted the general verdict get controlled. So you had multiple circumstances where the jury that happened, a lot of police shooting cases, they found in favor of the plaintiff. And then they asked the question, was the police officer at the time of the shooting, acting in defense of himself or others reasonably in fear for the light his life for that? And they would answer the question, yes. No verdict zero after giving a million dollar verdict, and the jurors are like, well, we didn't understand the levees, you didn't understand the issues instruction, because there was obviously an affirmative defense of self defense or defense of others. Your plane, we didn't understand the causation instruction. You didn't understand that the issues instruction, but you understood the very simple question. So the person who was I was testifying against as a fellow day who's now he's on the Supreme Court rules committee at that time, he was President of the Illinois Trial Lawyers Association, Larry Rogers, Jr. And Larry had had one of these, or at least one of these cases, maybe two, and Larry and I testified against each other both in the House and the Senate on this topic. And we now have this goofy rule where they don't have to give the instruction. And if they do give the instruction, it doesn't control. So basically, it's useless.

Tim Kowal  34:53 
Most of the exercise of reading jury instructions is useless. Anyway, we've talked about this serves mostly a ceremonial fun motion, so that we can tell ourselves in good faith that the jury was instructed on what the correct law was sure it went, you know, 100 feet over their heads, but fault interrupted.

Patrick Eckler  35:10 
So, ya know, it's a very goofy situation we have. And I was deeply involved in the special interrogatory fight several years ago. And we actually have had Larry on the show about a shooting case. And that he handled that he has over eat with argued in the Seventh Circuit. And it funny the first time, you're going to have him on the show, the opinion came down as we were beginning to record. Right. We're going to talk about the oral argument, and it came down. So we had this reschedule once the opinion came down. And but yeah, he was came on the show about a case of tragic situation and what's suburban county, and he's great, but it's an issue we don't agree on.

Tim Kowal  35:46 
I'm still

Dan Cotter  35:47 
here's a bit suspicious as well, I think I would say about coming on the show, because he thought that we were going to take some angle, but again, we're the third podcast, an angle, it's really to kind of get off cases of interest to the public. So

Tim Kowal  36:00  
well, I'm still reeling at the prospect of not being able to have a special verdict form. My first instinct I don't know about you, Jeff, is I would want to go in on a motion for new trial and at least try to get something on the record about where the fulcrum point was in the trial, because if you just get a verdict form that says, you know, thumbs up or thumbs down, you have no indication of

Patrick Eckler  36:19 
welcome. Yeah, the last case I tried was a shooting case, under the old rules, and it was a third party criminal act case, I represented a bar and the we offer 12, special interrogatory she rejected every one of them. The judge did, we offered multiple pattern, alternative pattern and revised instructions of non pattern instructions, trying to get something in front of the jury about the criminal is the guy who shot the plaintiff. Fortunately, plaintiff didn't die. But of course, he did it a cop bar and the cop. So the shooter, the guy who shot the plaintiff, he gets killed by the cops who were in the bar, because there were six cops in the bar.

Tim Kowal  36:58 
Okay, well, I wanted to get to some other procedural curiosities here to try to compare and contrast here. Let's talk about starry decisis. I mentioned earlier than that. In California, we have no horizontal starry decisis. So we have six districts District Court of Appeal in California and opinion of any one of them is not binding on any of the others. In fact, the opinion of the Fourth District Court of Appeal is not binding on what it's going to do today. So it's kind of Olly olly oxen free, there's no precedential value basically wouldn't burn very, very similar

Patrick Eckler  37:30 
to what happened with Justice statement the other day in the fourth district. Then we talked about it where the guy said was the case it started out in the second district, right? So temple justice diamond had to say this is one of the ones that the Supreme Court, no, this was part of the gerrymander. This was part of the gerrymander.

Dan Cotter  37:46 
This is part of gerrymander. Yeah. not bound by fourth or second. So it's just a mess. And, as we mentioned earlier, the the first district has, I think, five or six, panels, six, six, and so even there, and they rotate every so often, so that there's not the same for three or on any panel and given time. And so in the first district, again, because there's six divisions, because even you can be in the same division on the same issue, but because it's three different panelists, and because they rotate, there's no binding effect at all, even though as Pat said, we have this theory in the thing that we have one appellate court, but unlike Indiana, which only has one Indiana appellate court isn't the size of the state. Here we have very different monster.

Tim Kowal  38:32 
Yeah, in Illinois, is one districts opinions. Do they follow their own opinions? As a matter? Of course, maybe they do or better practice? Maybe they do. But they're not bound to know well, they're not boundary was found to follow its own opinions or any other districts opinions?

Patrick Eckler  38:45 
That's right. So give me an example. Another one that's close to my heart, because I wanted to appeal. So the statute of limitations for spoliation claims. So the first district was split on what the statute of limitations was set. It was five years, the second district Senate was two years. And I'm sorry, the third district said it was two years. So that meant the court I was in was in the second district, which means he gets to choose if the second district had spoken on the issue that he was bound by what the second district said, if the district if he's in the second district, and only the first district has spoken to it. He's bound by as a trial judge. But if he's in the second district, the first district said A and the third district said B, he gets to choose which one he likes. Okay, oh, we can choose C, I have C's on the menu. So but that's the

Tim Kowal  39:29  
trial judge bound by the judicial opinions in his or her own district,

Patrick Eckler  39:34 
if they've spoken to it, or they're and they're bound by any of the appellate courts? Have they spoken to it? But if there's a conflict, they're bound by the one in which they sit. And if there's a conflict, and it's not one of the courts of the district in which they sit, they get to choose? Yeah,

Tim Kowal  39:50 
that's something that's different here in California. Because you are not bound. A trial judge is not bound by the appellate decisions of its own district. You can follow any other district Oh, okay, that's it. That's interesting. Do you think there'll be some sort of loyalty to your own district? But no, it's not. So that's,

Patrick Eckler  40:08 
I mean, your system is not unlike the fact that the appellate court is not bound by its own decision is no different than the federal system, May a federal district judges and bound by his own rulings, he's bound by the Supreme Court. He's bound by the circuit court in which he sits, but he can do pretty much what he wants otherwise in the circuit court isn't bound by anything, but the Supreme Court, they can do whatever they want. They don't have to pay attention to what some other Circuit Court did.

Tim Kowal  40:31 
The panels of the Ninth Circuit are bound by Ninth Circuit precedent. They do have horizontal starry decisis so

Patrick Eckler  40:37  
that they have that in the Seventh Circuit in their own of course, but they can only be overturned by a non bog panel if we're gonna change our mind, which they did in the ivy decision, which dealt with discrimination based on sexual orientation.

Tim Kowal  40:49 

Okay. Okay. So we have a similar situation in terms of no horizontal starry decisis in Illinois or in California. Let's talk about unpublished opinions. So in California, we cannot cite to an unpublished opinion in our state court system, not just that they have no precedential value, you may not even mention them, technically, not even to show technically, even if you're filing a petition for review in the Supreme Court, you're not even allowed to show that there is a split of opinions that split a decision when one side of that split is made up of unpublished opinions. But it's routinely done anyway. And the Supreme Court has never admonished anyone. It's apparently a tacit blessing on that practice. Is it? How does it work in the Illinois State system?

Jeff Lewis  41:29 
Not that simple.

Tim Kowal  41:32 
That's simple. No.

Patrick Eckler  41:34  
So in Illinois, we had unpublished opinions were created. Because in the middle, there were too many cases. And so they cost too much to bind all the cases. So what they did is they gave the Supreme Court had an order that gave a certain allotment of published opinions to each of the appellate districts. And that went on for about 10 years. So the appellate side, what's that? A lot meant they had it a lot for about

Tim Kowal  42:01 
10 years. There's a number of opinions or number of pages, no the number of opinions that

Patrick Eckler  42:05 
they were allowed to publish. And that was, like the early 90s to the mid aughts. And then they kept the rule even after in the late aughts when we adopted an entirely electronic system and stopped binding them. We still kept unpublished opinions and basically unpublished opinions turned into the flotsam and jetsam of Illinois jurisprudence. And you know what says we're going to put all this stuff. And so there's been a one and you can't and at that time, you could not cite them for any purpose for any reason. Nobody's allowed to use them. There were stories of justices and oral argument ripping up the briefs of an advocate who had cited at appellant they're the stories of this, this reveal.

Dan Cotter  42:45 
Right admonished in front of you for doing that.

Patrick Eckler  42:50 
ripping out Yeah, yeah. Open. So yeah, yeah. So don't do it. So then there was a long and so I had been a very loud advocate of getting rid of this rule, but only because of the flotsam and jetsam only prospectively not retrospectively, the Supreme Court Rules Committee wrote it to be able to use all the unpublished opinions and to do justice to their argument. The argument was that a judge is a judge can cite to music, lyrics, poetry, you know, books, but he can't cite to an unpublished opinion. Like it's like this podcast, but to this podcast, we'd like to I don't know why you would do that. But and then so that was direct with the Supreme Court changed it. Instead, it was only opinions that were issued after January 120 21, are allowed to be cited for persuasive authority only they are not binding, we still have a process of a lack of getting opinions published. So the opinion is unpublished. You can file a motion asking for it to be published. And generally, that's granted. So we still have that process of pinning of opinions that Do you have a process of allowing unpublished opinions to get published upon request of one of the parties? Yeah, within 15 for for a non party such and I've heard that too. Yeah, a non party could ask for it. Yeah. And now in Illinois, what happens is when you do that, you that extend the time to file a petition for leave to appeal to the Supreme Court. So if an opinion is published, then the 35 days to file your PLA restarts. So there's that?

Tim Kowal  44:25 
Yeah, that happens here as well. Yeah. 15 days of filed that request to get it to make it published.

Patrick Eckler  44:31 
So does it restart the time to file the PLA or whatever? Supreme Court?

Jeff Lewis  44:36
Petition for review? It does restart the time here.

Tim Kowal  44:38  
Yeah, yeah, it's 30 days before it becomes final in the Court of Appeal, and then the baton gets handed up to the California Supreme Court. All right. Now let's talk about written opinions. Now I was recently talking with Lindsey Lawton, another LinkedIn appellate attorney. And she pointed out to me that in Florida, they have no right to a written opinion, when the Court of Appeal is affirming. So I get a lot, a lot of the differences. Our summary affirmance is just one page judgment is affirmed. Have a nice day. In California, we have a constitutional right to a written opinion on appeal. And after talking with Lindsay, I was very grateful for that constitutional provision. Do you have that in Illinois, you have a right to a written opinion.

Patrick Eckler  45:20
I think you get it. I've never seen it not done. What you what you have in Illinois, is supreme court rule 352. That the you're entitled to oral argument Unless the Court says it doesn't need it. And then it then has to explain why. Now, the appellate court almost as a rule doesn't do that. There's only one panel of the first district on opinions that are issued without oral argument, that'll drop a footnote and say, under supreme court rule 352. We say we don't need oral argument to decide this case. We don't have oral argument. There's only one panel that seems to do that with any regularity in the entirety of the of the state. But they're the Supreme Court, I can't remember which Chief Justice it was really wanted more oral argument, and really got on some of the districts for not having it, in particular, the second district for a while, very rarely would grant oral argument. And then they got the beat down. And then they started doing it more often as my understanding grudgingly as I understand it, but yeah.

Dan Cotter  46:15 
But then what happened with the second district now is certain a rocket docket. So whenever we see a case of interest, Pat night for the podcast, we do it that Sunday, because it's oftentimes Monday or Tuesday, they miss you. And sometimes it along opinions. It's almost like they're pre written. They're 2030 pages of detailed stuff that would be impossible for any clerk or justice to pop out within two days of oral argument. But

Patrick Eckler  46:40 
yeah, my last appeal in the second district that did not go as I would have liked, I knew what was going to happen. And I knew they had already written it. And sure enough, seven, less than seven days after the oral argument, there was a 30 page opinion. So they didn't play. We didn't write that in the week in between the date of the oral argument and the date that they issue the opinion. So, so

Jeff Lewis  47:02 
tentative rulings, many of your students are focused.

Patrick Eckler  47:05 
No, that's very I have, I have a case out in California with one of my partners, and they've got this tentative rule. It's like, what the hell is this? It's about that. That's wild.

Tim Kowal  47:17 

All right. Well, I've got a ton of other topics that we could touch on. But we're running short on time. So let me just ask you, Pat and Dan, are there any procedural quirks anomalies, curiosities that you wanted to talk about that you think are really unusual in Illinois, or that work really well in Illinois and ought to be adopted elsewhere? Before we move on? And I thought I wondered if maybe it would apply in the summary judgment context. I know that's an area where you need the best trial attorney minds and appellate attorney minds kind of coming together, making sure you're preserving all issues for post trial motions, things like that waivers. Sometimes, Jeff and I talk about the rigidity of federal rule of civil procedure 50, A and B, which require judgment as a Motion for Judgment as a matter of law to be made before the jury is charged. And after in order to preserve it for appeal, or else it's just forfeited. Any other issues we should talk about for the good of the record.

Patrick Eckler  48:09 
I can't imagine Illinois does anything that anyone else should adopt? I can't imagine there's such a thing. I will say that the state, the courts have pretty well enforced section 1202, which deals with post trial motions. And if you don't raise it, your goose is following a jury trial. If you don't raise it in your post trial motion, your goose is cooked on that issue. And there was a case that came down. Not so long ago, I wrote an amicus brief on it for the Illinois defense counsel with a colleague, former colleague of mine rich Berglund on this very issue. And it's that that's one area where I think they really have done a we've got a good rule and they've actually applied.

Tim Kowal  48:50 
Yeah, that sounds similar to rule 58. Yes. Yeah. Give the trial judge an opportunity to fix the error if there was one. Yeah, right. Yeah. They're not that they're not that rigid here. There are only a couple of different kinds of issues that you have to raise in a motion for new trial. But otherwise, you're free to let all your legal issues, you're good legal issues, put those in your back pocket for appeal and not give the trial judge and opportunity to fix it. Okay, what about just quickly touching on oral argument on appeal? Do the Illinois State Court Courts of Appeal ever give tentative opinions or focus letters they ever tip off the attorneys what they should be ready to talk about?

Patrick Eckler  49:27 

They don't call them that they may send on rare occasion they may send be prepared to talk about X, Y or Z.

Tim Kowal  49:33 
Yeah, that's this letter we have here. That's very, very rare.

Dan Cotter  49:37 
Yeah. And occasionally they'll ask for something be brief. But again, it's very rare as well. Yeah. something peculiar to the case. It's far

Patrick Eckler  49:45
more common in the Seventh Circuit, we'll write a letter to the or give supplemental briefing if they raise an issue, especially in the Seventh Circuit on jurisdiction, subject matter jurisdiction if they are always questioning jurisdiction in the Seventh Circuit. So you'll oftentimes have How the hell are we hear in this case,

Tim Kowal  50:00 
they're just dipping their toe in the water. They're in Illinois State courts on these, what we call focus letters. There's only a couple of districts that do it here in California, but the reception among attorneys is universally positive. And then whenever a justice is asked during some conference on a panel or something, they're usually for it, if they have an opinion on it, and they'd say, it's just a matter of getting a new generation of justices on the bench who will adopt the practice, because otherwise, it's just not something that they're used to. And so they don't do it. I kind of

Dan Cotter  50:29 
like it because it focuses the parties on the topics that the justices are interested in rather than sometimes where they just kind of, you know, so free for all and not very helpful, potentially.

Tim Kowal  50:41 
Yeah. All right. Well, thanks, Pat and Dan, for joining us and talking about some of these curiosity, appellate and procedural issues. Jeff, let's do a quick lightning round with Dan and Pat here.

Jeff Lewis  50:53 
Lightning round. Okay. This is our patented copyrighted a segment of the show and answers the most pressing questions that Vex appellate nerds around the world. short responses, one sentences if you can one word if you can. I know it's hard before yours to do that. Question number one thought preference century school book your mind or something else? Times New Roman?

Dan Cotter  51:13
Yep. Come on.

Tim Kowal  51:15 
We're recording we are looking at why just is God?

Patrick Eckler  51:19 
Yeah, I will

say that it is. I rarely see. I mean, there are some people that use Garema. On some that use. Bookman was the one that my 13 point Bookman was one that my former colleague of mine who has 700 published opinions, that's what he would use. And that's what I use on a lot of appellate briefs because if it was good enough for Robert Chemours, it was good enough for me. But generally, my grant regular briefs are probably Times New Roman, which is probably sacrilege

Jeff Lewis  51:46 
to we got to have a litmus test for future guests. Question one. All right. Second question.

Patrick Eckler  51:53 
I'm bracing myself Lisa did say Ariel.

Jeff Lewis  51:55 

Tim Kowal  51:56  

Jeff Lewis  51:59 
Second question. Following up period, one space or two, one but I often

Dan Cotter  52:04 
straight just by by my 56 year old brain.

Patrick Eckler  52:11 
To one less I'm writing for the Illinois Defense Council quarterly, which requires only one. Wow. Okay. Yeah, I'm failing all of this miserably.

Tim Kowal  52:22 
You don't take a hint from that?

Patrick Eckler  52:24  
I've answered honestly. That's the truth. Yeah. Know what I'm supposed to say. Right?

Jeff Lewis  52:31 
I think I know the answer is third question, but I'm gonna ask it anyway. meat of your brief when you have headings, argument headings, now Roman numeral one, etc. Use all caps, sentence caps or initial count.

Dan Cotter  52:43  
So it depends. So

Patrick Eckler  52:46  
in the Roman numerals, I typically have a brief I have five trial corpora. That will be five parts, introduction, facts standard, you know, those are all caps. The second level the eighth, so those are Roman numerals. The next ones, the A's, are just regular sentence and bold. They're not first letter caps. It's a sentence. That's bolded with a period as a complete sentence,

Tim Kowal  53:09 
there you go, correct answer.

Jeff Lewis  53:11 
I could live with that. I can absolutely put that you've redeemed yourself.

Patrick Eckler  53:15  
Okay. Well, yeah, we haven't got to the Oxford comma yet.

Jeff Lewis  53:19 
I don't have a question for that. I think the final question I'll ask is Tim's question that he likes to ask which is pled P OLED or pleated Lea de vie, what's your preference?

Dan Cotter  53:29 
The correct one is the latter. I read that somewhere. That's the correct one. Yeah, it's

Patrick Eckler  53:34 
plaid. Definitely not pleated. That sounds terrible. I don't care about right. It sounds terrible.

Dan Cotter  53:40 
Right, though that's the correct answer. If you look at the there's actually a white paper or something out of that.

Tim Kowal  53:48 
The official institution act to that

Patrick Eckler  53:50 
70 song of love and he was right. I don't want to I have love and he was wrong. I don't want to be right. You know, that's

Tim Kowal  53:58  
the official institution that designates new irregular verbs has not made pleated into an irregular verb. So plaid is just a made up irregularity.

Patrick Eckler  54:07  
It's one that sounds good, though. All right.

Very important. On the years,

Jeff Lewis  54:14 
both survived our dreaded lightning round, and we'll be sending you our patented copyrighted coffee mug as a thank you for surviving the lightning round,

Tim Kowal  54:22 

appropriately edited space not to win between sentences. Okay, well, that's gonna wrap up this episode. And we want to thank our sponsor case techs once again for sponsoring the podcast. When we include links each week in the show notes to our podcast, we use case text listeners of the podcast will find a 25% discount available to them if they sign up at case That's case A L P.

Jeff Lewis  54:51 
And if you have suggestions for future episodes, please email us at info at Calpine And in our upcoming episodes there are tips on how to lay the groundwork for an appeal would prepare On retrial.

Tim Kowal  55:01
Thanks again, Dan and Pat,

Announcer  55:03  
thank you. You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases, the news coming from the California Court of Appeal, and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening. And please join us again