When is a brief written by a lay person likely to be of comparable quality to a brief written by lawyer for the other side in the same case? When both briefs stink: Brooks’s opening brief on appeal includes a statement of facts without any citation to the record. In the argument portion of the brief, references to facts are occasionally, but not consistently, supported by citations to the record. ECG’s respondent’s brief, which relies extensively upon facts developed at trial, does not include a single citation to the record. The failure to include citations to the record violates rule 8.204(a)(1)(C) of the California Rules of Court: Briefs must “[s]upport…
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The “outsider’s perspective” theory illustrated in the extreme
I’ve mentioned before that one of the valuable things an appellate lawyer can bring to your case is the “outsider’s perspective” — the ability to give the case an objective look that trial counsel is often unable to see because of close involvement in the case. What the appellate lawyer might see as the best grounds for appeal may differ wildly from what the trial lawyer thinks is a good basis for appeal. A trial lawyer that develops tunnel vision on a case usually does so because of his deep involvement with the case over a long period of time, resulting in a personal emotional and intellectual investment in the…
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Make the argument yours, not someone else’s
You represent an appellant in a state court action who claims the action is precluded by a prior federal court action because the plaintiff split his cause of action between the two lawsuits. Your first argument is under the longstanding “primary rights” standard applied by the California courts. Your second is that the court should apply the federal “transaction” standard, which is far more favorable to your position. Only one standard can apply, and you are asking the appellate court to apply a federal standard not previously applied by the California courts. Throw into the mix the fact that the continuing vitality of the California “primary rights” standard was recently…
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The secrets to using humor in the courtroom
There aren’t any. Well, maybe one: don’t do it. (Though, as you’ll see below, not everyone agrees.) On the “don’t do it” side is Litigator Rex. Via a post at Southern California Appellate News, I ran across Litigator Rex’s post counting down “Argument Misdemeanors – Five Ways to ruin your oral argument.” The countdown starts with this no-no: 5. Familiarity or humor. The judges are not your friends, they are an institution. While judges have their own personalities, foibles and attitudes on the bench, the role they play in the system demands a certain level of decorum. Charm, humor, or insouciance rarely work and often irritate the judges. This informality not only comes…
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Don’t get snide on appeal
Snideness is never an attractive trait, but it is distressingly common in trial court. No offense to you trial lawyers out there, but I find snideness far less prevalent in appellate practice, and, on those occasions where it does raise its ugly head, the justices seem far more hostile to it than most trial judges are. Which brings me to a 2009 case that I ran across today, Nazir v. United Airlines (2009) 178 Cal.App.4th 243, in which plaintiff’s counsel, apparently from a solo or small office, squared up against an employment law powerhouse and not only won, but got to see the powerhouse firm spanked by the Court of…