To help trial attorneys, I am always looking for new legal trends, war stories, tips, and trap doors to share with you, my colleagues. If you have reactions to these tips, or tips of your own, drop me a line at [email protected].
And I am always happy to talk about these kinds of issues in your cases.
–Tim
Anti-SLAPP denials are no longer immediately appealable in the Ninth Circuit.
That’s the en banc holding in Gopher Media LLC v. Melone (9th Cir. Oct. 9, 2025), which overruled Batzel v. Smith. The court held that denials of anti-SLAPP motions aren’t “collateral orders,” so defendants must wait until final judgment to appeal.
But the real fireworks come from Judge Bress’s concurrence. He calls the Ninth Circuit’s anti-SLAPP experiment a “misguided” and “hybrid mess,” saying the court has “stripped away every major procedural aspect” of California’s law—no discovery stay, no amendment bar, no early appeals—yet somehow kept fee-shifting. The result, he warns, is “a bespoke, exotic version” of anti-SLAPP that “bears no resemblance to the real thing.”
For trial lawyers, the takeaway is practical: anti-SLAPP motions in federal court just got slower, but plaintiffs who defeat them still face expanding one-way fee exposure if the defense ultimately prevails.
This is a summary. Read the full article here.
The Law360 article on the Ninth Circuit’s en banc decision in Gopher Media LLC v. Melone features quotes California Appellate Law Podcast co-hosts Jeff Lewis and me on the significant shift in how anti-SLAPP motions are handled in federal courts, overturning more than two decades of Ninth Circuit precedent.
The Ninth Circuit held that denials of California anti-SLAPP motions can no longer be appealed mid-litigation, overruling its 2003 decision in Batzel v. Smith. The majority concluded that such denials are too “inextricably intertwined with the merits” of the case to fall under the collateral order doctrine, which allows certain interlocutory appeals.
As I told Law360, even under California’s own collateral order doctrine, anti-SLAPP denials wouldn’t qualify for immediate appeal because they go to the merits—which is why the Legislature created specific statutes making them appealable in state court. Federal courts, however, still lack any similar statutory path for early review.
Jeff Lewis added that the ruling “dilutes California’s anti-SLAPP law” and will likely lead to more forum shopping as defamation and speech-related plaintiffs choose federal court, where the protections are less robust. He also emphasized that the better solution would be a federal anti-SLAPP statute to bring consistency across jurisdictions.
This is a summary. Read the full article here.
Here are a few cases I did not have time to write up but seemed either important or irritating enough to mention:
Seeking Family Code 2020/2032 need-based fees? Don't forget to establish the incurred fees as reasonable. Fees reversed because they were for discovery motions not even ruled on yet. (But on remand expect the same result.) Tragni v. Tragni (Cal. Ct. App., Aug. 12, 2025, No. A169130) (non-pub. opn.)
Have an arbitration with a right to fees? Don't forget to put it in your answering statement. Right to fees held waived. Techna Land Co. v. 2733 SFLA, LLC (D2d4, Aug. 19, 2025, No. B343099) (non-pub. opn.)
AI Hallucinations = $10k sanctions. If you use AI for your briefs, check that the cases exist. Noland v. Land of the Free, L.P. (D2d3, Sept. 12, 2025, No. B331918)
This is a summary. Read the full article here.
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.
This is a summary. Read the full article here.
Teaching Judges: Appellate Expert Cherise Bacalski on Brief Writing and the Human Side of Law
In this compelling episode, Tim Kowal interviews Cherise Bacalski, a Western United States appellate specialist and writing coach at NYU Law's New Appellate Judges Program, about her insights from both sides of the bench and how her background in rhetoric shapes her approach to appellate advocacy.
This is a summary. Read the full article here.