• Briefing,  Publication/Depublication

    Should a respondent always move to strike a defective appellant’s opening brief?

    A brief must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) A party may move to strike the adverse party’s brief if it fails to comply with this or other requirements of rule 8.204. (Rule 8.204(e)(2).) A leading practice guide advocates that a respondent should immediately file a motion to strike an appellant’s opening brief, that is “so defective that it appears likely the appellate court will order it stricken in whole or in part [.]” (Eisenberg, Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group…

  • Briefing,  California Courts,  Legal Research,  Legal Writing

    It is important to keep up with the law while your appeal is pending

    Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up. For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that…

  • Appeals,  Briefing,  Strategy

    The kitchen sink has no place on appeal

    We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior? Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink.) featured a federal district court decision adopting the recommendations of the magistrate judge to order sanctions all around in a sexual harassment lawsuit — i.e., all of the attorneys on both sides had monetary sanctions imposed against them. On the plaintiff’s side, the attorneys were sanctioned for what Lawyerist called “evidence-free sexual harassment and retaliation allegations.” On the defense side, the attorneys representing the…

  • Appellate Advocacy,  Briefing

    Doesn’t anybody read the rules?

    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…

  • Appellate Advocacy,  Briefing,  Preclusion,  Stare Decisis

    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…

  • Appellate Advocacy,  Briefing,  Ethics,  Legal Writing

    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…

  • Appellate Jurisdiction,  Briefing,  Waiver of Issues

    Just what are you appealing from, anyway?

    Over at The Ninth Circuit Blog of Appeals, I posted today about an appellant who tried to use a federal appeal from a post-judgment order as a vehicle to attack the underlying judgment, which had been entered five years earlier. On the very same day, the Sixth District published Marriage of Sameer, case no. H035957 (6th Dist., June 19, 2012), in which the appellant tried a similar tactic in California state court. You won’t be shocked to learn it doesn’t work there, either. In February 2008, the court entered a judgment on the stipulation of the parties, in which wife would receive spousal support with scheduled steps down in amount,…

  • Appellate Procedure,  Briefing

    Some basics about briefing

    Yesterday’s decision in Provost v. Regents of the University of California, et al., case no. G043523, offers some reminders on briefing. For those of you completely new to this, consider the sequence of briefing before you read any further: the appealing party (“appellant”) files his opening brief, the party defending against the appeal (the “respondent”) files his respondent’s brief, and then the appellant, at his option, files a reply brief. Let’s start with the appellant’s opening brief, which the court criticized for at least two deficiencies. The first was the appellant’s failure to present his arguments correctly: [S]ome of plaintiff?s arguments are not confined to the point raised in the…

  • Briefing,  Civil Rights,  Constitutional Law,  First Amendment

    The Results of the Shootout at the Amicus Corral

    In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ. Code, § 51).  The doctor defendants had refused artificial insemination services to a lesbian and contended that they did so for religious reasons.  The Supremes find no such exception under the federal or state constitutions.  The court finds that because the Act is a facially neutral and valid law of general applicability, the incidental infringement on religious liberty that compliance requires cannot sustain a constitutional defense…

  • Briefing,  Legal Writing

    The Value of a Good Reply Brief

    As much as I keep up with appellate issues, some things catch me by surprise. According to this article: “There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them.” Really? I’ve never doubted the value of a well-written reply brief, nor have I heard others question their value. Though reply briefs are optional, I can’t imagine I’d ever decide against filing one. If you’d like to read what some appellate justices have to say about them, check out Are Reply Briefs Really Necessary? The Recorder e-mailed all 103 appellate justices in California for their views on reply briefs…

  • Appellate Procedure,  Briefing,  Ethics,  Legal Writing

    It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen

    “Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.”  That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion.  His post also has additional links regarding the story. Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress).  But the larger point remains: proof your appendix as carefully as you do your brief.

  • Briefing,  Legal Writing

    Tips from Appellate Court Research Attorneys

    Donna Bader at Appeal to Reason shares some briefing pointers offered by a couple of attorneys from her local appellate court.  I was glad to see a practice of mine validated: “Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do.”  There’s plenty more.

  • Briefing,  Legal Writing

    An Easy Cure for Citation Anxiety

    Legal Writing Prof Blog links to a paper called Reducing Citation Anxiety, which is presumably intended to put one’s mind at ease regarding citation format in their legal writing. I won’t have time to look at it, but I already have a way of overcoming that anxiety: I keep a copy of The California Style Manual close by as I draft.

  • Appellate Procedure,  Briefing,  California Procedure,  Standard of Review,  Waiver of Issues

    The Limits of Wende

    Anyone who does criminal appellate work by appointment for indigent defendants is familiar with People v. Wende (1979) 25 Cal.3d 436. Wende requires the court of appeal to conduct an independent review of the record for error when appointed counsel files a brief representing that he or she has reviewed the record and found no arguable issues. At least, this review is required on the defendant’s first appeal as of right. People v. Dobson, case no. F053531 (5th Dist. Apr. 16, 2008) teaches the limits of Wende. Dobson was found not guilty by reason of insanity and committed to a state mental hospital. Six years later, he was released to…

  • Appellate Procedure,  Briefing,  California Supreme Court,  Legal Technology

    E-Filing Briefs in the Supreme Court

    Rule 8.212, California Rules of Court was amended effective January 1, 2008 to allow parties to serve the Supreme Court electronically in lieu of physical service of four hard copies of briefs filed in the court of appeal, but the Supreme Court website did not appear to provide the promised information for doing so. That’s changed. You can now go here to start the electronic filing process for your brief. I haven’t tried it out with an actual brief yet, but it looks pretty straightforward. I’ll be able to try it out in a week or two and will report on it then. Hat Tip: Jeffrey Lewis at Nota Bene.

  • Appellate Procedure,  Briefing,  Record on Appeal

    The Record is Everything

    Tom Caso has this post at The Opening Brief regarding a Ninth Circuit case last week in which Judge Kleinfeld laments his inability to follow his intuition and hold in favor of the government in an environmental case because of the government’s inability to actually support its case from the record.  Its hard to tell from Judge Kleinfeld’s comments whether the government was hamstrung by its failure to preserve an adequate record or it merely failed to direct the court to those portions of the record that supported its position. Either way, it’s an embarrassment to have this type of deficiency pointed out by the court, and Tom uses the…

  • Appellate Procedure,  Briefing,  Standard of Review,  Waiver of Issues

    Things You Don’t Want to Read about Your Work

    I’ve been working almost non-stop for the last 18 hours, and its 3 a.m. (so pardon any typo’s), so I’m not about to plow through the 82-pages of opinions in Schmidlin v. City of Palo Alto, case no. H026841 (6th Dist. Dec. 4, 2007).  But I’m not too sleepy to browse through it, and I happened upon the “bloggable” portion.  Or at least one of them. Its a case brought by a plaintiff who alleges various constitutional violations against city cops.  The jury finds that the cops used excessive force, but did not unlawfully arrest the plaintiff or fabricate police reports.  Both sides appealed. Issue 1: Sufficent evidence of excessive…

  • Appellate Procedure,  Briefing,  Federal Procedure,  Sanctions

    Follow the Rules – A Lesson from the Ninth

    Today’s decision in Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) is a reminder that the dismissal sanction is lurking out there for any parties to an appeal that fail to follow the rules. The Ninth finds the appellant’s opening brief so deficient that it is “compelled to strike it in its entirety and dismiss the appeal.” The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all. The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to…

  • Appellate Procedure,  Briefing,  California Procedure,  Family Law,  Standard of Review

    Failure to Brief and the Bounds of Discretion

    Two interesting, though not new, appellate angles in Nakamura v. Parker, case no. A115626 (1st Dist. Oct. 22, 2007). It’s an appeal from the summary denial of a temporary restraining order sought under the Domestic Violence Prevention Act (Fam. Code, § 6200 et seq.), which had the effect of dismissing the appellant’s entire action. First Issue: Respondent did not file a brief in the appeal. Automatic reversal, right? Wrong. While many people — at least among those who don’t practice in appeals — assume that failure to file a respondent’s brief will mean an automatic win for the appellant, that’s not the case. Appeals are all about reviewing for error.…

  • Appellate Procedure,  Briefing,  Legal Writing

    Skilling’s 58,922-Word Brief Accepted by Fifth Circuit

    The WSJ.com Law Blog reports that the Fifth Circuit has granted former CEO executive Jeff Skilling’s request to file an overlength brief.  WSJ.com has posted the Fifth Circuit’s order, which allows Skilling to file his brief of 58,922 words — 44, 922 words over the normal limit, or more than 4 times the maximum length provided by the rules — and grants permission for the government to do the same. My round-up of coverage on Skilling’s request several weeks ago, including links to substantive analyses of his arguments, appears here. 

  • Briefing,  Ethics

    Failure to Address Contrary Authority Again Draws Fire

    Last week, we saw a government lawyer scolded by the Ninth Circuit for making an argument directly contrary to controlling authority without even trying to argue around that authority and without even citing it.  This week, it’s the California Court of Appeal’s turn, in a slightly different context.  Yesterday, Tom Caso at The Opening Brief posted about Batt v. City and County of San Francisco, case no. A114633 (1st Dist. Sept. 12, 2007), in which he says the court “suggested it was unethical for an attorney to fail to address in your brief cases that, even if not directly on point, ‘clearly are pertinent to any meaningful discussion of the…

  • Appellate Procedure,  Briefing,  Legal Writing

    Roundup: Skilling’s Brief

    Former Enron executive Jeffrey Skilling’s brief in the appeal of his criminal conviction states in support of his request for oral argument that his prosecution was “perhaps the most prominent and publicized white-collar case ever prosecuted.”  One might guess he felt that way from the length of his opening brief: 237 pages and roughly 60,000 words. The blog posts I’ve seen on this credit WSJ.com’s Law Blog post as the first.  It includes a link to the brief and credit’s Skilling’s lawyers for “some nice rhetorical touches,” two of which it quotes.  While that post offers some bullet-point analysis of the arguments made in the brief, those truly interested (but…

  • Appellate Procedure,  Briefing,  California Supreme Court


    This article at Law.com discusses the unusually heavy participation of amici curiae in the pending Supreme Court case of North Coast Women’s Care Medical Group v. Superior Court (Benitez), case no. S142892.  Forty organizations have filed amicus briefs, either individually or jointly.  As one might expect, the issue is hot-button: were doctors within their rights to deny, on the basis of their religious beliefs, artificial insemination to a lesbian? Anyway, this got me to thinking . . . what is the record for the number of amicus briefs (or the number of amicus curiae, regardless of the number of actual briefs) in a California Supreme Court case?  This case has…

  • Appellate Procedure,  Briefing,  California Procedure,  California Supreme Court,  Rehearing

    California Supremes on the Right to Rehearing on Unbriefed Issues

    When is a party entitled to a rehearing from the Court of Appeal?  One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081: Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. …

  • Appeals,  Appellate Procedure,  Briefing,  Federal Courts,  Federal Procedure,  Legal Writing

    Is it Futile to Cite Federal District Court Opinions? (Updated)

    At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion. Bashman appears to doubt lawyers will heed this advice: The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited. I think he’s right. And…