Appeals/Post-Trial Matters Litigation Strategy

Appellate Justices Offer These Tips to Attorneys

In May 2018, the Bar Association of San Francisco (BASF) invited the Justices of the First District Court of Appeal to meet informally with local appellate attorneys so both sides could discuss the court rules and practices they like and dislike. These tips and observations may help you, even if you practice in other districts.

Some of the Justices’ general dislikes:

  • Unbalanced statement of facts;
  • Disingenuous or dishonest briefs;
  • Long, repetitive briefs;
  • Incivility in briefs;
  • Bringing in collateral issues at oral argument that are absent from the briefs.

Some challenges the Justices face and how to address them:

  • Workload. More than 50% of the Justices’ case load is occupied by criminal and juvenile dependency cases. Other cases (e.g., CEQA) will also have priority over your civil appeal. Make the Justices want to read your case and resolve your civil appeal on the merits by
    • Making your appeal a one-or two-issue case to make it faster and easier to resolve;
    • Choosing only good arguments instead of “throwing spaghetti at the wall;” and
    • Ensuring that waiver can’t be used to resolve your appeal.
  • Delays. The time for filing a notice of appeal to decision depends on the backlog of the particular Division, and the Justices won’t take kindly to additional unnecessary delays. Keep this in mind when applying for extensions. Also,
    • Remember that the limit on stipulated extensions to file briefs is strict: You can’t stipulate to an extension past the 60-day time limit if you’ve already applied to the court for one.  See Cal Rules of Ct 8.212(b).
    • Don’t expect to put off oral argument very long for scheduling reasons. Unwarranted continuances can be sanctionable later if they were used as a delaying tactic. See Central Valley Hospitalists v Dignity Health (2018) 19 CA5th 203, 221, in which the Second Division called out the lawyers for abusing extensions and continuances in an interlocutory appeal from denial of an anti-SLAPP motion.

More good practices for briefing and oral argument:

  • Specific citations to the record. The Justices like when counsel cite to the reporter’s transcript by page and line (even though there’s no rule that requires the line).
  • Hyperlinks. Justices like hyperlinks to the record in briefs. Although it can’t be required unless the California Supreme Court changes the rules, the Justices prefer this because it makes it easy to review a brief.  Some briefs can even link to other media, like a video in a product defect case.
  • Oral argument and focus letters. When responding to focus letters, start with the issue that the Justices want to hear about. Don’t avoid the issues you’re most worried about—go into them and help the Justices get to your result.

For more insightful judicial perspectives and strategic practice tips from appellate specialists, turn to CEB’s California Civil Appellate Practice. And get step-by-step guidance in CEB’s Handling Civil Appeals (Action Guide).

Learn the best strategies on appeal in CEB’s Ten Things You Should Know About Civil Appeals and how to craft legal arguments in Moskovitz on Writing Winning Appeals and Writs. Both programs are available On Demand.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2019. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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