Common Issues, Case Development and Theories

California Bar Exam Results

“Common Issues, Case Development and Theories” are tips previously provided to our seminar attendees by Virginia Milstead, Esq., a partner at Skadden, Arps, Slate, Meagher & Flom LLP.

Since 2012, Virginia Milstead has been a panelist for our annual Federal Court Boot Camps and Superior Court Boot Camps, at which she has instructed on all facets of civil procedure in federal and state courts. She is a fantastic speaker an an incredible resource. Virginia has provided our attendees with a number of resources and advice to improve their litigation skills.

Below we have summarized just a few of her many tips regarding how you can develop a strong case right from the start.

  • Develop a Case Theme and Strategy From Day One
    • One of the first steps is to understand the needs of your client and what he or she hopes to accomplish through the litigation.
      • A quick, inexpensive resolution to preserve an ongoing relationship?
      • To receive or avoid paying a large monetary award?
      • To require the other party to act in a certain way or to ensure your client can continue acting in a certain way?
      • If your client is a business, what business concerns may drive the outcome of the litigation?
    • Understanding what your client ultimately needs will help you develop the best long-term litigation strategy for that client. Rather than go through litigation mechanically and reactively, always ask yourself whether and how the step you are taking advances your client’s goals. Keep the big picture in mind.
    • Regardless of the ultimate goal, however, the possibility always remains that the case will go to trial (even if remote). Thus, do not take settlement for granted and prepare the case from day one as though you were certain you were going to trial.
      • Such preparation can provide leverage in settlement discussions if the other side knows you are prepared to try the case if necessary.
      • You will be prepared to win in the event that the case does not settle. If you have not been thinking about trial, you may find, after the close of discovery, that key pieces of evidence are missing or not admissible.
      • However, don’t allow your trial preparation to interfere with your client’s goals or the possibility of settlement, if settlement is what is in your client’s best interests.
  • Practical Steps For Developing A Case Theme And Strategy
    • Understanding the elements of the claims and defenses
      • Consult the jury instructions for each claim or defense to understand what each side must prove – right from the start
      • Review practice guides and key cases
    • What are the non-legal, non-factual aspects of the case – the emotional aspects – that might influence a fact-finder? What are the “optics” of the case?
      • Likeability of client? Severity of alleged injury? Social issues?
      • How can you diffuse or make use of these aspects?
    • Work on developing a narrative, which you refine throughout the discovery and fact-finding process.
      • What are the most compelling aspects of your narrative?
      • What are its greatest weaknesses, and how will you address them?
      • Consider creating a “chronology” as discovery proceeds, with all key documents and events in chronological order.
    • Anticipate the other side’s narrative and think of how you will respond.

Of course there are many more things you can do to develop your case, but we wanted to provide you with a short list of some of the advice Virginia and others have provided to our attendees over the years. Stay tuned, more to come!


You can find some of our programs at which Virginia’s has taught here:

CA Superior Court Boot Camp (12th Annual)

CA Superior Court Boot Camp (13th Annual)

Superior Court Boot Camp (9th Annual): Discovery, Depos and Motions – Get it Right

Fed Court Boot Camp Conference (13th Annual): How to Practice in Federal Court

Or you can just go to our audio pages and search “Superior Court” or “Federal Court” as the keywords and California as the location.

Jury Selection Techniques – Your Go To Guide

Every couple of years we hold Jury Selection seminars throughout the country. And every time we do, our speakers provide us with fantastic tips and advice to help attorneys select better juries. Below is a terrific article about Jury Selection, written by Wade Chow, a 25+ year prosector in California.

Wade has spoken at our previous seminars about Jury Selection, as well as our Criminal Defense Boot Camp for Civil Lawyers and Newer Criminal Lawyers, where he received excellent evaluations. We loved working with Wade and we know you’ll find his suggestions invaluable.

Jury Selection – Your Go To Guide:

1.  The Problem

Many practitioners conduct ineffective voir dire. One cause is a misplaced fear of eliciting opinions that are harmful to one’s case. A second is an incorrect understanding of the purpose of voir dire. Third, practitioners fear to lose control of the venire, and as a result ask bland, meaningless questions in a manner that is unlikely to yield any helpful information. Finally, practitioners often leave cause challenges on the table because they fail to lock down the expressed bias of a prospective juror.

a.  The fear of juror taint

When a prospective juror offers an answer that is harmful to our case, e.g., if we are defending a medical malpractice case, a prospective juror relays a horrible experience with an inept doctor that has significant parallels to the plaintiff’s case, we fear that this information will taint our jury pool or expose weaknesses in our case. As a result, our inclination is to avoid asking questions that might elicit this kind of “harmful” information. We resort to safe, bland questions. When “harmful” answers arise, we are tempted to stifle that juror and stop him or her from elaborating, or we argue with the juror, attempting to educate him or convince him to be fair.

As will be discussed below, this is exactly the opposite of what we should be doing, and we should welcome any opportunity for a bad juror to identify him or herself. The fear of juror taint is overblown. There is no empirical evidence that a prospective juror is likely to change his underlying belief because he or she hears an anecdotal story. For example, if a prospective juror believes that police officers generally try to do their jobs correctly, another juror’s story about being the victim of police brutality is not going to suddenly make the first juror think that a claim of officer misconduct is more likely to be true.

b.  The purpose of voir dire

Many attorneys believe that the purpose of voir dire is one or more of the following: 1) to establish rapport; 2) to find out if we like the juror or if the juror likes us; 3) to pre-­‐condition the jury. While it may be nice if we accomplish the first two tasks in the course of jury selection, these are not particularly useful goals. First, overtly identifying good jurors for our case only makes the opposing party learn who to eliminate. Second, preconditioning a jury is improper.

c.  Control

Most attorneys fear the loss of control that asking an open ended question to a prospective juror can cause. This fear is one of the reasons why the “lecturer method” is so prevalent (i.e., leading questions intended to indoctrinate the jury about the law or facts of the case and establish the attorney’s authority or credibility with the jury). Under this method, the lawyer does 90% of the talking. Unfortunately, lecturing prospective jurors with questions like “can everyone set aside what personal feelings you have about gender discrimination and be a fair and impartial juror?” teaches us very little about the juror’s actual views and possible bias. We want safe and “good” answers, and so we ask bland, meaningless questions that are likely to result in false or aspirational answers.

d.  Technical shortcomings

Oftentimes, a trial attorney uncovers the basis for a cause challenge but fails to lock down the record. As a result, the juror will be “rehabilitated” by the judge or opposing counsel. This results in the expenditure of precious peremptory challenges and can make the difference between a good verdict and a bad.

2.  The solution

We suggest that there is one true purpose to jury selection, which is to identify jurors who will harm our case and get rid of them. This may be conceptualized as “jury de-­‐selection.” The fundamental premise behind this notion is that it is impossible to educate a juror out of a deeply held belief in the time we have available for voir dire.* It follows from this that it is also impossible to rehabilitate a juror who has expressed a bias harmful to our case. Conversely, we have no reason to fear juror taint for the very same reason.

If we accept these premises, we should do our level best to get the prospective jurors talking, and to particularly elicit the most relevant information (“harmful” though it be) from jurors who are bad for our case.

a.  The listener approach

From a social theory standpoint, it is important to understand that the approach we take toward a prospective juror materially impacts that juror’s willingness to offer information, particularly when such information may be socially unacceptable (e.g., racial bias) or embarassing.

As noted above, many trial attorneys stand in front of the panel and lecture the jurors (e.g., asking the group “does everyone understand that the plaintiff has the burden of proof at all times, and that I don’t have to put on a case, and that if they fail to meet their burden of proof, you have to vote for my client?”). Most often, the attorney does 90% of the talking. Lecturing usually results in silence and perhaps a few nods. At best, you will get meaningless answers that do not reveal anything about the jurors. If the question has a socially acceptable response, you will often get either a false or aspirational answer because it is awkward and uncomfortable for a biased juror to offer a true answer.

What we advocate is the listener approach. We want to use plain language and ask simple questions. We should never argue with a juror. We should never cut off a juror’s response. The prospective jurors should be doing 90% of the talking, and the attorney should be carefully listening to the answers.

b.  Politeness technique

“Politeness theory,” in other words, how we frame our question, is relevant to how willing the juror will be to answer the question. For example, there are many ways to ask a person to shut a window from less to more polite:

Hey, shut the window!

Can you shut the window?

Would you mind shutting the window?

Could you please shut the window?

Jurors feel social pressure to say they can be fair (this is known in social science as Social Desirability Bias). Our task of course is to get the juror to say he or she cannot be fair. Exploiting politeness theory can help us accomplish this.

i.  Strategies for overcoming Social Desirability Bias:

– Be aware of the power dynamic (the juror will perceive a power imbalance between us)

– Avoid expressions of disapproval

– Normalize juror perspectives

– Reflect outward (i.e., juror offers answer that is “bad,” we want to ask “Who else feels like juror x?”)

ii.  How to “be polite”

We should frame questions in the format “some people think…”

Compare the following:

Who here thinks police officers often use excessive force?

Some people think police officers often use excessive force. Juror X, how do you feel about that? [Follow with: “How many of us agree with Juror X?”]

c.  Command Superlative Analogue Technique

This technique may be used to initiate a conversation with a juror that is likely to produce helpful information about whether believes what we need him or her to believe to win the case. It is time consuming and therefore it should be used sparingly.

We want to know how the juror will behave if certain situations arise during the trial or during deliberations. For this reason, we might ask a juror whether he would change his mind just because the majority of jurors were voting the other way is not likely to yield anything more than an aspirational (i.e., how he or she wishes he or she would behave in that situation) or a false answer. We get false or aspirational answers because the juror has not been in that situation before and we are asking him or her to speculate how he or she would act.

Instead, we want to mine the juror for analogous experiences from his or her life that will shed light on what we want to know. This is the best predictor for juror behavior. If the juror tells us about an analogous incident, we will be able to gauge his or her answer and decide how this might affect the juror’s view of the case.

The steps to the Command Superlative Analogue technique:

i.  Command (“Tell us”)

ii.  Superlative (“about the most serious”)

iii.  Analogue (non-­‐legal situation)


Tell us about the most serious situation you have seen where someone was treated badly because of his race.

Tell me about the person closest to you who has been affected by gender discrimination.

Share with us the most serious time when you or someone close to you was accused of doing something bad that you did not do.

d.  How to get a cause challenge: “Run to the bummer” technique

As we discussed above, if we accept that the true and only purpose of voir dire is eliminating bad jurors, we should welcome it when a juror offers an answer that displays actual bias against our cause. When a juror suggests that he has a bias, it is critical to lock down your cause challenge and immunize the juror from rehabilitation. This is true because jurors cannot be rehabilitated (see above: you cannot change a juror’s deeply held belief in the time available for voir dire). If the court rehabilitates your juror, you will have to exercise a peremptory challenge.

One method of locking down a cause challenge is the “run to the bummer” technique developed by public defenders in Colorado.


1.  Mirror juror’s answer:

So you believe that…

– Use juror’s exact language

– Do not paraphrase

– Do not argue

2.  Ask an open ended question inviting juror to explain

3.  Normalize the idea

Reflect outward to other jurors to get them to acknowledge same idea (“who else among us feels like juror x?”)

Do not be judgmental

4.  Leading questions to lock in challenge for cause

a.  Reaffirm juror’s position

b.  If juror tries to qualify his bias, strip away qualifications and force him into admitting preconceived notion

c.  Reaffirm where the juror is not

d.  Suggest how bias might provide basis for cause challenge

e.  Get juror to agree that his bias will affect ability to serve

f.  Immunize from rehabilitation

a.  Lock juror in on strength of his views

b.  Reassure juror that there is nothing wrong about having views that differ from lawyers, judge, or rules of jury service

* Social science studies tell us that people come to jury duty with strong biases, and that these biases affect how they decide cases even if they honestly believe they will be fair and even if they honestly believe they can set those biases aside. Rehabilitation and curative instructions are therefore meaningless.


Motions for Summary Judgment: A Few Simple Tips to Improve Immediately

Karen Kimmey, Esq., a Partner at Farella Braun + Martel LLP, frequently speaks at our annual Superior Court Boot Camps. She is a favorite of attendees and always gives terrific advice and instruction. We’ve taken just a few of her basic tips from one of her presentations on Motions for Summary Judgment, and listed them below for your quick reference.

Our blog readers can take 50% off our Superior Court and Federal Court Boot Camp audio packages with the coupon code 50MSJ

Karen gets into much more detail at our programs, with a lot more advice, but we just wanted to list a few things for you to think about and do when writing your Motions for Summary Judgment.

  • Think strategically about whether to file for summary judgment regardless of odds of winning.
    • Educate the judge.
    • Preview your opponent’s evidence.
    • Consider the cost and effort required.
  • Spend more time on your Separate Statement.
    • Often an afterthought for counsel.
    • Document most relied-upon by many judges and clerks.
  • Include only those facts in your Separate Statement that are truly “material.”
    • The Court may assume it is material if it is in your Separate Statement.
    • Each fact should be discrete and independent.
  • Focus on your introduction and headings.
    • Explain in a couple sentences what relief you are seeking and why you are entitled to it.
    • Use argumentative headings to guide the argument.
  • Do not bother with a long recitation of summary judgment standards.
  • Simplify if you are seeking summary judgment; complicate if you are opposing.
  • Start the process early; it takes time to prepare the papers.

Karen is a favorite with our seminar attendees, and has spoken at almost every Superior Court Boot Camp held in San Francisco since 2011.

You can find some of our programs at which Karen has taught here:

9th Annual Superior Court Boot Camp
11th Annual Superior Court Boot Camp

Statements of Decision: The Ideal and the Reality

by T. Peter Pierce, Esq., of Richards, Watson & Gershon

In 2018, we held our annual 3rd Advanced Appellate Conference program. One of our speakers, T. Peter Pierce, spoke about Statements of Decision: The Ideal and the Reality at that program, along with the Hon. Kathleen Banke, Associate Justice, CA Court of Appeal, 1st Appellate District, Division One. Peter has spoken at all of our appellate programs, including our 1st and 2nd Annual Advanced Appellate Conferences. And Peter came back for our 4th Annual Advanced Appellate Conference as well. Justice Banke spoke at our 3rd Annual and 4th Annual program in San Francisco and this year’s 5th Annual Appellate Seminar.

Limited time offer for our blog readers: Take 50% off any of the above conference recordings (with code SOD50) or 20% off of our Statements of Decision audio package (20SOD). Bundles excluded.

Both Peter and Justice Banke are fantastic speakers, as our attendees note every time they see Peter and Justice Banke speak.

We wanted to share with you some of their discussion, rules and cases they mentioned that you need to know about, and tips regarding Statements of Decision. And be sure to read all the way to the bottom to get to their list of strategies to employ.

A.     Applicable Circumstances for a Statement of Decision
– Trial court MUST issue a tentative decision on “the trial of a question of fact by the court.” (Cal. Rule Court (CRC) 3.1590.)
– Trial court MAY issue Statement of Decision on “the trial of a question of fact by the court.”  (CCP section 632.)  Must issue under certain circumstances (see below).
– Scope of “trial of a question of fact by the court.”  Does it apply to law and motion or other matters?

B.      Timing and Procedure Intertwined
1.  If trial is concluded within one calendar day or less than eight hours spread over more than one day, a party must request a Statement of Decision before the case is submitted for decision. Failure to do so means the loss of any right to a Statement of Decision, although a court may still issue one at its discretion. (CCP 632.)
2.  Regardless of length of trial, the trial court is required to issue a tentative decision. 
a.      If the trial court opts to announce a tentative decision orally, it must announce it in open court in the presence of all parties appearing at trial (CRC 3.1590(a)).  If the trial is concluded within one calendar day, or lasted less than eight hours, a party is not entitled to a written Statement of Decision.  Under CCP section 632, the trial court may issue an oral Statement of Decision.
b.      If the trial court does not announce its tentative decision in open court with all parties present, it must serve all parties with a minute order or written tentative decision.
         3.      Four specified options for a tentative decision are:
  Option 1- Court states that tentative decision is its proposed Statement of Decision (CRC 3.1590(c)(1)).
Issue: Does a party have 10 days after announcement or service of tentative decision to request that the Statement of Decision be modified to include certain issues (CRC 3.1590(d)), or does a party have 15 days under CRC 3.1590(g) to serve and file objections? Probably the latter because CRC 3.1590(c)(1) expressly refers to subdivision (g).
  Option 2- Court states it will prepare a Statement of Decision  (CRC 3.1590(c)(2)).  A party may request within 10 days of announcement or service of the tentative decision that the Statement of Decision include certain issues. (CRC 3.1590(d)).  The request should specify the controverted issues which the Statement of Decision should address.  (CCP section 632.)  Court must then prepare and serve a proposed Statement of Decision within 30 days of the announcement or service of its tentative decision.
   Option 3- Court orders a party to prepare a Statement of Decision (CRC 3.1590(c)(3)).  A party not ordered to prepare a Statement of Decision may request within 10 days of announcement or service of the tentative decision that the Statement of Decision include certain issues.  (CRC 3.1590(d).)  The request should specify the controverted issues which the Statement of Decision should address.  (CCP section 632.)
Option 4- Court directs that the tentative decision will become the Statement of Decision unless within 10 days a party (1) specifies the issues it requests be included in the Statement of Decision, or (2) “makes proposals” not included in the tentative decision (CRC 3.1590(c)(4)).  If a party does so, the court must then prepare and serve a proposed Statement of Decision within 30 days of the announcement or service of its tentative decision.
         4. The four options in the rule are not exclusive; the rule is phrased in the permissive “may.”  The court could do something else, like send out a written tentative decision without any further direction to the parties.
         Permissive language is consistent with the rule that a Statement of Decision is not required unless the parties request it.  If a Statement of Decision is timely requested and not waived, the trial court must render a Statement of Decision (Karlsen v. Superior Court(2006) 139 Cal.App.4th 1526, 1530-1531).  CCP section 632 requires the trial court to issue a Statement of Decision upon the request of any party if made within 10 days after the court announces a tentative decision (with exception of shorter trial where request must be made before submission of case).
Where the court did not designate either party to prepare a Statement of Decision, by default, and by analogy to California Rules of Court, rule 232(c) [predecessor to Rule 3.1590(c)], the court is required to prepare it.  (In re Marriage of Sellers(2003) 110 Cal.App.4th 1007, 1010–1011.)
        5.     Failure to issue a Statement of Decision in response to a timely request is not per se reversible error.  Instead, the failure is subject to harmless error review.  (F.P. v. Monier (November 27, 2017).)

C.      Elements of Statement of Decision
“A statement of decision explains the factual and legal bases for the trial court’s decision in a nonjury trial.” (Uzyel v. Kadisha(2010) 188 Cal.App.4th 866, 896.)

To comply with a request for a Statement of Decision, a court need only fairly disclose its determinations as to the ultimate facts and material issues in the case. (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) When this rule is applied, the term ‘ultimate fact’ generally refers to a core fact, such as an essential element of a claim. Ultimate facts are distinguished from evidentiary factsand from legal conclusions. (Metis Development LLC v. Bohacek(2011) 199 Cal.App.4th 748, 758.)

The trial court is not required to respond point by point to the issues posed in a request for Statement of Decision. The court’s Statement of Decisionis sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.  (Ermoian v. Desert Hospital(2007) 152 Cal.App.4th 475, 494-495, 497-500; Golden Eagle Ins. Co. v. Foremost Ins. Co.(1993) 20 Cal.App.4th 1372, 1379–1380.)

A Statement of Decisionneed not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.  (Muzquiz v. City of Emeryville(2000) 79 Cal.App.4th 1106, 1124.)

D.     Omissions or Ambiguities in the Proposed Statement of Decision
If a party fails to bring omissions or ambiguities in the proposed Statement of Decision’sfactual findings to the trial court’s attention, that party waives the right to assert on appeal that the Statement of Decision is deficient. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59.)  The doctrine of implied findings would then apply if the statement truly contained ambiguities or omissions.

Ordinarily, when the court’s Statement of Decision is ambiguous or omits material factual findings, a reviewing court is required to infer any factual findings necessary to support the judgment. (Ermoian v. Desert Hospital(2007) 152 Cal. App. 4th 475, 494-495.)

If the Statement of Decision fails to decide a controverted issue or is ambiguous, any party may bring the omission or ambiguity to the trial court’s attention either before the entry of judgmentor in conjunction with a new trial motion or a motion to vacate the judgment under Code of Civil Procedure section 663. (CCP § 634.)  If an omission or ambiguity is brought to the trial court’s attention, the reviewing court will not infer findings or resolve an ambiguity in favor of the prevailing party on that issue. (CCP § 634.)

If an omission is not brought to the trial court’s attention as provided under the statute, however, the reviewing court will resolve the omission by inferring findings in favor of the prevailing party on that issue.If an ambiguity is not brought to the trial court’s attention as provided under the statute, the reviewing court will resolve the ambiguity by inferring that the trial court decided in favor of the prevailing party on that issue. (Code Civ. Proc., § 634.) To bring an omission or ambiguity to the trial court’s attention for purposes of Code of Civil Procedure section 634, a party must identify the defect with sufficient particularity to allow the court to correct the defect.  (Uzyel v. Kadisha(2010) 188 Cal. App. 4th 866, 896-897; Bay World Trading, Ltd. v. Nebraska Beef, Inc.(2002) 101 Cal.App.4th 135,139 [objections must be filed 15 days after proposed decision].)

In rendering a Statement of Decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts.  The trial court need not discuss each issue listed in a party’s request for a Statement of Decision; all that is required is an explanation of the factual and legal basis for the court’s decision regarding the principal controverted issues at trial. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1530; Hellman v. La Cumbre Golf & Country Club(1992) 6 Cal.App.4th 1224, 1230; Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th 814, 824–827.)  Only when the trial court fails to make findings on a material issue which would fairly disclose the trial court’s determination would reversible error result.  If the judgment is otherwise supported, the omission of findings is harmless error unless the evidence is sufficient to sustain a finding in the losing party’s favor which finding would completely undermine findings supporting the judgment. A failure to make findings on an immaterial issue is not reversible error.

E.      Objections to a Proposed Statement of Decision
Any defects in the trial court’s Statement of Decisionmust be brought to the court’s attention through specific objectionsto the statement itself – not through a proposed alternative Statement of Decision. By filing specific objections to the court’s Statement of Decisiona party pinpoints alleged deficiencies in the statement and allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous. A proposed alternative Statement of Decisiondoes not serve these functions and does not satisfy the requirements of Code of Civil Procedure section 634 and Rule 3.1590. (Golden Eagle Ins. Co. v. Foremost Ins. Co.(1993) 20 Cal.App.4th 1372, 1380; Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135,139–140; Ermoian v. Desert Hospital(2007) 152 Cal.App.4th 475, 497-500;Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-61.)

F.      Interplay Between Statement of Decision and Judgment
A court may amend its Statement of Decisionafter it receives objections from affected parties. If judgment has not yet been entered, the trial court has inherent power to amend its Statement of Decision to award prejudgment interest. Even after a court has issued a written decision, the court retains authority to change its findings of fact or conclusions of law until judgment is entered. Until a judgment is entered, a Statement of Decision is not effectual for any purpose (Code Civ. Proc., § 664).  A court sitting as a trier of fact may at any time before entry of judgment amend or change its findings of fact.  (Bay World Trading, Ltd. v. Nebraska Beef, Inc.(2002) 101 Cal.App.4th 135, 141.)

A Statement or Decision or memorandum of decision is not appealable. Courts embody their final rulings not in Statements of Decision but in orders or judgments. Reviewing courts have discretion to treat Statements of Decision as appealable when they must, as when a Statement of Decision is signed and filed and does, in fact, constitute the court’s final decision on the merits. But a Statement of Decision is not treated as appealable when a formal order or judgment follows. (Pangilinan v. Palisoc(2014) 227 Cal.App.4th 765, 769; Alan v. American Honda Motor Co., Inc.(2007) 40 Cal.4th 894, 901.)

G.     Strategies Involving Statement of Decision
–        If the tentative decision is in your favor, do not request a Statement of Decision.
–        If the tentative decision is against you, timely request a Statement of Decision.  Possible exception when de novo standard of review.
–        If you lose on the tentative, identify alternative theories that the trial court did not decide, and request an express statement that the trial court did not reach the issues encompassed within those theories.
–        Be judicious in objecting to Statement of Decision.  Focus on broader issues and not on every minor point.
–        If you are the prevailing party, and the losing party objects to the Statement of Decision, think carefully about whether the objections will allow the trial court to clear up ambiguities and omissions, thereby bolstering the judgment in your favor.
–        If you are required to request a Statement of Decision before the case is submitted, make an educated guess as to whether you will be the prevailing party.



Oral Argument: Practice Tips by Karen Kimmey of Farella Braun + Martell

by Karen Kimmey from Farella Braun + Martell in San Francisco

Karen Kimmey has spoken at our annual Superior Court Boot Camps in San Francisco for more than ten years. Over that time she has provided a number of excellent resources for our attendees. Below is a short list of tips Karen wrote on Oral Argument.


  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.

If you’d like to hear more from Karen, and listen to a program dedicated to motions, discovery and depos, you might be interested in this prior seminar at which she spoke:

9th Annual Superior Court Boot Camp: Discovery, Depos and Motions – Get it Right

You might also be interested in our upcoming 13th Annual CA Superior Court Boot Camp on October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco. You can register there, or if you are reading this past those dates, purchase the audio package.

Top Tips For Demurrers

Steven Ragland, a partner at Keker, Van Nest and Peters has spoken at our annual California Superior Court Boot Camps almost every year since 2010.

At one of our prior Superior Court Boot Camps, Steven provided this terrific tip sheet for handling Demurrers. It contains suggestions regarding what you need to think about when filing a Demurrer, when writing the brief, and other things you must consider, including arranging for the court reporter, checking the tentative ruling, and preparing the order.

If you’d like to attend our 13th Annual Superior Court Boot Camp, coming up on November 8th in San Francisco, please go here. You can also pre-order the audio package for the San Francisco program, or purchase the audio package for the program just held in Los Angeles on October 12th, at the link provided.

But register quickly (if you see this post before November 8th, 2018) because we’re almost sold out in San Francisco.


Tips for Demurrers:

I.  Initial Considerations – consider whether you should file a demurrer

A.  Defects in plaintiff’s legal theory must appear on the face of the complaint itself, or through judicially noticeable matters

B.  Only file if it serves a litigation purpose

1.  Expensive for client

2.  Plaintiff will almost certainly get leave to amend

3.  Demurrer will educate adversary

4.  Might result in a stronger complaint

C.  Read (or re-read) Weil & Brown, CCP, and local rules before drafting

D.  Get more time from Plaintiff if you need it (check rules for when stipulation is enough and when you need ex parte application/court order)

II.  Brief-writing considerations

A.  Have a Theme. Really, have a theme.

1.  After striking out before another tribunal, plaintiff tries its hand here

2.  No good deed goes unpunished

3.  A deal is a deal

4.  Here we go all over again (especially for successive demurrer)

B.  Make the Intro count

1.  The Introduction should tell the whole story in summary form

2.  It should tell the Court why you should win—both under the law and as a matter of justice/fairness

3.  After reading Introduction, Judge/law clerk should be convinced you win

C.  Organization matters

1.  Use headings/sub-headings

2.  Headings should be declarative sentences

a.  “This Demurrer should be sustained because the Complaint neither sets forth the material terms of the contract nor attaches the purported contract.”

b.  “The Complaint fails to join indispensable parties.”

c.  “This Court lacks subject matter jurisdiction because Federal Courts have exclusive jurisdiction over cases requiring resolution of patent law issues.”

3.  Headings should tell your entire story

a.  The Judge should be able to scan the table of contents and remember exactly what you are arguing

b.  If fact section is long, break it up

(i)  Your fact section headings can preview your arguments

4.  Spend the time needed to organize arguments

a.  If brief is not easy to follow, you’re more like to lose

D.  Reveal and deal with contrary authority

1.  Always address and distinguish all of your opponent’s primary cases (and secondary to, if possible)

2.  Don’t assume opponent won’t find the cases that go against you

3.  Candor is crucial

a.  Be honest about the hurdles you face, then explain how you clear them

b.  Evasiveness and misstatements of the law erode your credibility, and can lose your motion (never jeopardize your reputation)

E.  Lead with your strength

1.  If you have four arguments for demurrer, address strongest one first, then go down in descending order of strength

2.  If you have one really solid basis, don’t waste space/credibility with marginal arguments

3.  If opposing, take on defendant’s strongest argument first and eviscerate it

4.  On Reply, you don’t have to follow opposition’s organization

F.  Every brief should be a stand-alone document

1.  Write the Reply/Opposition so it makes sense even without reading any other brief (or the Complaint)

G.  Miscellaneous

1.  Don’t be nasty

a.  Opponent is wrong, not “lying” or “conniving” or “slimy”

2.  If you see an adjective or adverb, delete it (most of the time)

3.  Short, declarative sentences; eliminate passive voice

III.  Arrange for a Court Reporter

A.  Coordinate logistics with your adversary and agree to share costs

B.  Even if you lose, what’s said at the hearing may be useful to your client (e.g., successive demurrers, limiting / narrowing discovery, holding plaintiff to its theory, crystallizing issues for summary judgment)

IV.  Check the tentative ruling

A.  Check it as soon as it comes out (check local practice)

B.  Don’t forget—set an Outlook reminder

C.  Notify opponent if you intend to contest—check rules for deadlines and requirements for notice

D.  If you win tentative, sit on your hands

1.  Do not contact opposing counsel to notify (or gloat)

2.  Tentative will be adopted if no one contests

3.  Do not appear at hearing unless other side tells you it will contest—If opponent shows up at hearing without giving you notice, the court will not permit argument and tentative will be adopted…unless you show up

E.  If you lose, go argue like hell (but expect to lose)

1.  Always be respectful, but tell the Court why the tentative is wrong.

2.  Don’t just repeat what you said in your briefs

3.  Limited to issues raised in papers, but bring a fresh perspective and nuance

V.  Prevailing party prepares order

A.  Check rules for timing, details

B.  Be sure to set deadlines for Answer/Amended Complaint in the order if you want to deviate from standard timing provisions

C.  Might be able to get opponent’s sign-off of proposed order at hearing

Justice Entrepreneurs Project’s Pricing Toolkit

At Pincus Professional Education, we are committed to helping educate attorneys who work for legal aid firms and serve low-income populations. One of our partners in this effort is the Chicago Bar Association’s Foundation (Chicago Bar Foundation). Their Justice Entrepreneurs Project (JEP), is a small business incubator that helps newer lawyers start innovative, socially conscious law practices serving low and middle income Chicagoans. We wanted to share their Pricing Toolkit with you as they are continually providing good resources for attorneys.

From the Chicago Bar Association’s Foundation website: One of the core principles for the JEP program and JEP lawyers is to make legal assistance more affordable and transparent to low and moderate income people by offering fixed fees and flexible representation options to potential clients. The toolkit came about after the CBF discovered in the early stages of the JEP program there was a dearth of practical resources for lawyers serving the consumer market who seek to price their services by using arrangements other than the billable hour.

Thanks to a dedicated team effort of partners, volunteers, and staff, this toolkit is “Version 1.0” to help JEP lawyers and other lawyers who are interested in pricing their services to be more affordable and transparent. The toolkit also contains a two page summary matrix that provides a brief overview of various alternative pricing options that can be effective in the consumer market.

A more advanced version of the toolkit will include an appendix with sample forms and templates.

Defeating Motions for Summary Judgment: The Reply Brief

Below is a list of suggestions for drafting your Motion for Summary Judgement Reply Brief. It was written by James Allen, Retired Assistant County Attorney of Miami Dade County, and James Robinson of White & Case LLP who have both taught at several of our prior programs!

Our blog readers can take 50% off our Circuit Court and Federal Court Boot Camp audio packages with the coupon code 50MSJ

Remember – standards and burdens of proof.

  • The non-moving party is required to designate facts which demonstrate a genuine issue for trial and must avoid conclusory allegations unsupported by factual material.
  • The non-moving party need only prove a material factual dispute.
  • All reasonable inferences must be drawn in favor of the non-moving party.

Structure of brief.

  • Introduction – what is your theme?
  • Factual background
  • Argument
  • Sections (and section headings)
  • Conclusion

What are common defenses/themes when opposing motions for summary judgment?

  • Attack the facts.
  • Attack the law.
  • DO NOT focus an inordinate amount of space (or case citations) on the standard of proof or that reasonable inferences are drawn in your favor.

Strategies for contesting/disputing facts.

  • Choose your battles – do not contest EVERYTHING! This is a matter of credibility.
  • You must be specific in contesting/disputing facts – cite to specific language (with page numbers) and testimony. Include quotes. Emphasize important pieces of evidence.
  • If there are no disputed material facts on any issue and you agree that the issue is a matter of law, consider filing a cross-motion and a stipulated set of facts.

Addressing legal arguments made by moving party.

  • Don’t be bound to the organizational structure of the moving party. Example: If they have hidden a glaring weakness in the middle or end of their brief, bring that issue to the forefront in your opposition.
  • But don’t ignore the motion altogether – a good response brief must “respond” to the moving papers.
  • Address all arguments – failure to address can be viewed as a concession.
  • Distinguish all cases cited in the motion.   Where there are many cases, distinguish the cases in large groups.
  • Don’t submit boilerplate objections—tailor your arguments to your facts.

Using legal authority (applies also to motions).

  • The preferred priority of cases in support of our arguments:
    • First priority –cases in which trial court did what our opponent is requesting, and the appellate court reverses.
    • Second priority (OK, but not as good) – cases in which the trial court did what we request, and the appellate court affirms.
    • Third priority (not good; but we are a bit desperate) – only if none of the first two categories are available, cases in which the court cites a correct legal principle, but the court rules against our position.

A word about reply briefs.

  • Structure:
    • We demonstrate/established X.
    • They did not controvert/challenge/dispute, but only argued Y.
    • This is incorrect because …
    • Their cases do not change the result (and distinguish).
  • As a general rule, DO NOT cite the same cases from your motion – a reply brief should “reply” to the response

Introduction to Oral Argument


We wanted to share with you some tips and advice from speakers at prior programs that we know you will find helpful! Check out this list of Oral Argument tips, created by Andrew Livingston, who has spoken at many of our Superior Court Boot Camps (and is speaking at our upcoming one this fall, 2018).

Let us know what you think!


  • Learn how to prepare written materials for oral argument
  • Learn how to prepare for the spoken part of oral argument
  • Learn orienting devices to help your audience understand where you’re going.
    Learn how to deal with questions:

    • Cold benches, i.e., no questions
    • Hot benches, i.e., lots of questions
    • Answering questions
    • Moving on after a question
    • When to concede a point versus standing your ground
    • What to do when you don’t know the answer
  • Learn effective rebuttal

Preparing for the Argument

  • You should be developing your outline as you develop your knowledge of the facts and the law.
  • Your outline will probably start off very long; use the outlining process to refine your points over the course of multiple drafts.
  • Your goal should be to get your outline down to a single page, with single-sentence bullet points which you can reference during argument.
  • Consider coming to argument with a folder with:
    • your one-pager on one side; and
    • more detailed notes on the other side
  • Your folder is your security blanket; if you’re prepared, you might not need it at all.
  • The order of your argument can be just as important as the substance.
  • Think about placement, i.e., where within the argument you want to emphasize good facts and law, and where you want to [bury] bad facts and law.
  • Is there a bad fact or a bad case you want to get out in your opening so you can distinguish or neutralize?
  • Set aside dedicated time to practice your argument by yourself.
  • The goal is to get to the point where you won’t need to read from your outline.
  • Depending on time, resources, and the argument, you may wish to have a moot court session
  • If you do a moot argument, make sure the participants are:
    • familiar enough with the case to ask the right questions; and
    • can offer constructive feedback on your argument style
  • If this is your first argument—ever, or before this court—try to visit the court beforehand and watch another argument
  • Learn the layout, e.g., will you use a lectern or a table? Where is the countdown clock? Can you raise or lower the lectern? Where’s the water?
  • What are the judges’ names and where will they be seated?
  • How has the judge(s) ruled on this issue before?

The Argument

  • The first thing you need to know about speaking is that listening is at least as important.
  • The court will let you know what it’s interested in hearing, which often is not what you’re interested in saying.
  • If you’re prepared, you’ll be ready to listen to the court and adjust your argument accordingly.
  • Starting off with a concise, precise roadmap will help set up the audience’s expectations
  • Quickly state the relief and the reasons why the relief should be granted.
  • Use signposts in your argument to orient the audience
  • Let the court know when you’re moving to another point, and use that opportunity to once again map out your argument for the court.
  • Regarding plaintiff’s request for injunctive relief, the court should deny the motion because….
  • Make sure you understand questions asked, and clarify if necessary
  • TAKE YOUR TIME before
    • This is one of the hardest skills to learn in oral argument
    • Pause and think before answering
  • Resist the urge to fill the silence by saying the first (possibly incorrect) thing that pops into your head

Oral Argument Tips by Karen Kimmey


Here’s another “How to” list of tips, from the dos to the don’ts, from one of our favorite (and most loved by attendees) speakers at prior CA Superior Court Boot Camps –  we know you will find these helpful! Let us know what you think!

And don’t miss our upcoming 13th Annual Superior Court Boot Camp set for October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco.

Oral Argument Tips, by Karen Kimmey of Farella Braun + Martel, and one of our favorite Superior Court Judges in Los Angeles.

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.