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.

Few lawyers and LRW instructors write and think more about AI than Professor Jane Woods of Mizzou Law, who offers this most important AI advice: If you haven’t read the case, don’t cite the case.

• The Boies Schiller Cautionary Tale: That would have saved Boies Schiller’s bacon. We discuss the high-profile Scientology/Masterson appeal, and whether the Court of Appeal is going to strike plaintiff’s respondent’s brief because of the Boies Schiller attorneys hallucinated cases and otherwise wrong legal citations.
• AI's Ideal Applications: Most effective AI uses include drafting standard legal sections, style polishing, fact organization, and processing large records.
• How to AI in Legal Practice: Avoid garbage-in-garbage-out by feeding case opinion PDFs from authoritative legal databases directly into AI projects—don’t let AI search the internet on its own.
• Don’t hate the "Em Dash"! Some firms have reportedly banned em dashes in legal writing because they're seen as indicators of AI-generated text, highlighting how AI's stylistic preferences (even good ones!) may be reshaping legal writing conventions.
• Should lawyers disclose AI use? It depends. But if you’re thinking about charging $900/hour and to outsource to a robot, maybe don’t do that.

Jeff thinks our business and even this podcast will be aped by robots by this time next year. Until then, tune in for tips on how best to resist or suck up to the robot overlords.

Just a couple years ago when we talked with Ernie Svenson, the attorney who talks tech fluently, AI was not even a thing. Now in late 2025, it’s the only thing. Ernie joins Tim and Jeff to discuss the rapidly evolving landscape of AI in legal practice, why AI gives small firms an advantage, and how attorneys can safely leverage these tools without falling victim to “hallucinations.”

We discuss how to embrace AI tools without anxiety (or with the appropriate amount of anxiety), starting with inconsequential applications before moving to more consequential legal work.

• Pattern Recognition on Steroids: AI excels at pattern recognition and language expression, ideal for first drafts and oral argument prep.
• Not an AI Problem: Recent sanctions for citing hallucinated cases reflect a longstanding due diligence issue. AI just exposes attorneys who don't verify sources.
• Small Firm Advantage: AI works best as a force multiplier for individual cognitive ability, giving solo practitioners and small firms who master these tools an edge over larger organizations.
• Agentic AI on the Horizon: While fully autonomous AI agents need careful supervision, basic applications like data entry are already available, with complex applications developing rapidly for case prioritization and KPI extraction.

Teaching Judges: Appellate Expert Cherise Bacalski on Brief Writing and the Human Side of Law

Appellate specialist Cherise Bacalski teaches appellate writing at NYU Law's New Appellate Judges Program, and in this interview we discuss her insights from both sides of the bench and how her background in rhetoric shapes her approach to appellate advocacy.

• Training new judges: At NYU, Cherise teaches newly appointed appellate judges how to make their opinions more readable through proper structure, headings, and organization—skills that help both judges and practitioners.
• The rule is king: What is the rule in your case? Cherise explains that, whatever it is, that rule should inform every part of your brief.
• Write for a “hostile reader”: Reading your brief—your trenchant, brilliant, erudite, sparkling brief—is the last thing any judge wants to do. Forget being brilliant. Just be clear, concise, skimmable, and easy to digest.
• Lead with old information: One of the most effective writing principles is beginning each new point with familiar information to propel readers forward at the speed of thought, reducing the need for excessive explanation.
• The human element: Cherise views the law as fundamentally human. Understand you are talking to humans, not picking a lock.
• AI is an amazing tool, but not a replacement: Use AI to test arguments and identify weaknesses in briefs. But AI sometimes misses critical "smoking gun" evidence in case analysis.

Tune in for a masterclass in appellate advocacy that bridges the gap between academic rhetoric and practical legal persuasion from an attorney who's seen the system from multiple perspectives.

Appealing in the 9th Circuit? Your deadline is 30 days. Don’t let Rule 58’s “separate document” extension lead you astray. Appellate specialists Tim Kowal and Jeff Lewis also discuss ChatGPT 5 (a “market disruptor”), and sanctions strategies in federal court.

• Appeal Deadline Alert: The 9th Circuit in McNeil v. Guitare held that Rule 58's 150-day extension for appeal deadlines applies only to final judgments, not collateral orders like qualified immunity denials.
• Anti-SLAPP Motion Timing: Mora v. Menjivar confirms that filing just a notice of anti-SLAPP motion within the 60-day deadline is insufficient—supporting documents must be filed concurrently.
• Out: Res Judicata. In: Claim Preclusion.
• Sanctions Strategy: 28 U.S.C. § 1927 can be used for sanctions without Rule 11's cumbersome 21-day safe harbor.
• AI Ethics: California courts confirmed in Nolan v. Land of the Free that attorneys must personally read all cited authorities, regardless of whether AI tools were used in brief preparation.

And more practical insights on navigating procedural pitfalls, avoiding sanctions, and ethically incorporating AI tools into your appellate practice.

Failing to cite your secondary sources in briefs is poor form. But is it plagiarism? Jeff and Tim debate. And when the Supreme Court The publishes a case, should it explain itself? PJ Gilbert and Tim say yes, Supreme Court and Jeff disagree.

Also in this episode:

• Can copying from a CLE article really get you sanctioned? Kelly v. Tao suggests… maybe.
• Presiding Justice Gilbert rails (again) against the Court's silent de-publishing practices.
• Deny a request for admission in a one-way fee-shifting case? You might still owe fees—Gammo v. Morrell.
• $105k in sanctions after failing to abandon claims disproven in discovery—Atlantic v. Baroness.
• The perils of citing the wrong fee statute—Martin v. Hogue.
• Gibson Dunn bills $1.8M for May alone in public interest litigation over LA homelessness.
• Can ChatGPT testify against you? OpenAI’s CEO says maybe.
• How AI tools are reshaping billing, ethics, and expectations for appellate lawyers.

Tune in for AI ethics, briefing blunders, and why even your RFA denials could cost you.