The California Supreme Court’s long-awaited "Taking Offense" decision on gender pronouns in elder care facilities introduces a new “captive audience” exception to the First Amendment. Tim worries this new judicial carve out may creep to other forums; Jeff is unperturbed. Tim also shares insights from the Federalist Society National Conference, before examining a significant appellate-fee ruling.

• Taking Offense v. State (Cal., Nov. 6, 2025, No. S270535) **holds that advocacy groups lack taxpayer standing under CCP §526a to challenge state laws, but still issued 100+ pages addressing the merits through a "captive audience" framework.
• Captive audience concerns: Tim highlights potential "mission creep" with a “captive audience” rationale, potentially extending beyond elder care facilities to courthouses, government offices, and other venues where First Amendment protections could be weakened.
• “Bloodthirsty originalism”: From the Federalist Society conference, Judge Bumatay advocated less deference to stare decisis in favor of constitutional fidelity, while Justices Barrett and Kavanaugh addressed courage and civility in legal practice.
• Discovery fee windfall: In Baer v. Tedder, the court authorized recovery of $113,000 in appellate attorney fees for successfully defending a $10,000 discovery sanction, creating economics similar to anti-SLAPP appeals.
• AI arbitration arrives: The American Arbitration Association announced a pilot program offering AI resolution of construction disputes with human oversight, signaling that AI's impact on legal practice may be just "a couple of years away" rather than decades.
• Oral argument mastery: Federal Circuit judges advised narrowing issues to increase credibility, welcoming judicial interruptions as opportunities, and viewing argument time as the court's time for conversation rather than presentation.

Tune in for practical insights on appellate strategy, the evolving legal landscape, and how to prepare for significant changes in legal practice in the coming years.

Jimmy Azadian is often in the room when federal judges get together to share their personal concerns about the job. When judges are asked to come speak to a group, Jimmy reports that top of mind are the recent threats to judges and the courts—whether from armed vigilantes, protesters, students, or senators.

Jimmy, Tim, and Jeff then turn to some recent SCOTUS and 9th Circuit trends:

• Standing Doctrine Evolution: Courts are scrutinizing what constitutes concrete injury, particularly since Justices Gorsuch and Barrett joined the Supreme Court, with increased scrutiny of statutory damages and class action requirements.
• Birthright Citizenship Battle: In Washington v. Trump, the 9th Circuit held that the 2025 executive order attempting to end birthright citizenship was unconstitutional. But Judge Bumatay's partial dissent questioned states' standing, based on “fiscal” concerns, as too tenuous.
• Anti-SLAPP Shake-up: The en banc 9th Circuit in Gopher Media unanimously held that denials of California anti-SLAPP motions in federal court are no longer immediately appealable, reversing 22-23 years of precedent and potentially driving forum shopping.
• California Laws Preview: New 2026 laws include immigration enforcement limits at schools, required social media account deletion options, restrictions on facial coverings for immigration agents, direct Cal State University admission standards, and regulation of commercial audio volume.

Tune in for essential perspectives on judicial independence, constitutional interpretation, and strategic considerations that could impact your federal practice in the coming year.

AI Reshapes Legal Practice: ClioCon 2025 Delivers a Wake-Up Call

Jeff Lewis reports from the 2025 Clio Cloud Conference in Boston. Day 1 was encouraging, but Jeff reports feeling Day 2 as a “gut punch”: within about 5-10 years, many fundamentals of legal practice will be unrecognizable.

Here are a few ways legal industry leaders suggest you can skate to where the puck is going—rather than finding yourself behind by skating to where it is now.

• The $5 Billion Opportunity: Clio CEO Jack Newton says there are billions in untapped legal services—and AI tools can help lawyers tap it.
• 74% of Billable Tasks Automatable: Clio's research suggests nearly three-quarters of current billable work could be automated. The game: find the redundancy, or else be the redundancy.
• AI Becoming Standard: 79% of legal professionals are now using AI tools (up from just 19% two years ago).
• Time-Tracking Revolution: Before AI replaces your billables, let it enhance them: AI-powered tools like Point One and Tempello automatically capture and enter your time—you might be surprised how much money you’re leaving on the table.
• Context-Aware Legal Research: Clio's new "Vincent" platform combines practice management data with comprehensive legal research to produce AI responses grounded in both case facts and applicable law, reducing hallucinations and providing verifiable citations.
• The Neurosurgeon Analogy: Susskind's provocative comparison suggests that just as AI might make brain surgery obsolete through prevention and precision, traditional legal services may be replaced by more efficient, AI-driven alternatives that clients prefer.

True, there are shiny objects out there, and as Tim says many will get “Sherlocked”—become obsolete as the underlying AI tech improves. But getting in the game is key—the sidelines are going to be a very unhappy place very soon.