Legal News and Appellate Tips

After interviewing dozens of guests on the California Appellate Law Podcast, Jeff Lewis and I recapped some of the best briefing tips from 2022. In this clip we cover:

😱Judges’ three key fears when deciding cases (via Ross Guberman)

🗡️Kill your darlings—find the cleverest line in your brief, and delete it (via Ross Guberman)

🏔️Litigation is an expedition—you have to bring the judge along the journey with you. You can’t magically teleport your reader to the destination by way of adverbs. (Via Justice Lambden)

📜It’s the best argument that wins—not the best citation. (Via Justice Lambden)

Consider these two alternatives for ending a brief:

“This Court MUST reverse.”

“This Court SHOULD reverse.”

Stefan Love, who reviewed John Blumberg’s book Persuasion Tips for Trial Lawyers, explains why you should consider the latter choice.

No one—judges included—like being told what they “must” do.

But what if the authorities are clear that the result is compelled as a matter of law? That makes it tempting to write “the Court MUST do what I say.” On the other hand, you ought to have made it clear in your argument already what the authorities say.

So the better choice is to tell the court that the result you want is merely correct—and don’t dare the court do disagree by insisting that it is “compelled.” As Stefan says, the Court of Appeal doesn’t want to be ordered around.

But of course, the decision is up to you.

Adam Unikowsky, an appellate litigator with nine appearance in the U.S. Supreme Court, argues that judicial law clerks could be replaced by AI. We discuss:

💻 “AI will make judges release more accurate decisions more quickly. This is good.”

💻 Judges already rely on clerk summaries, so if AI produces better summaries faster, that is good.

💻 AI is a mysterious black box, you say? Well, law clerks are already invisible to the public yet influence judicial decisions without any input from the litigants.

💻 True, law clerks are human—but they are still often wrong. “Is it really preferable that judges receive recommendations and draft opinions from ideological 26-year-olds?”

✍ A writing tip: “Unclear writing usually implies unclear thinking. If something is unclear, it’s probably because I haven’t really figured it out.”

👩‍⚖️ An an oral argument tip: Don’t read from your notes. Adam relates a story when the Supreme Court stopped an advocate by asking, “Counsel, are you reading this?”

In this roundup episode, we summarize the best tips for briefing, argument, and overall advocacy from the judges, attorneys, and specialists Jeff Lewis and I interviewed on the California Appellate Law Podcast in 2022.

Some of the tips and trends we cover:

There is a trend toward informality in legal writing—but do pop-culture references go too far?

Everyone knows oral argument usually doesn’t change the outcome, unless you have a whiz-bang answer to that all-important question from the panel. Which is why the drumbeat for “focus letters”—where the panel reveals the all-important question in time to formulate an answer to it—is getting louder.

Stop bombarding courts with evidence and arguments. Not only does it overtax juries and judges, it betrays weakness: If you’re right, why do you keep repeating yourself?

And from one of our favorite conversations, Justice James Lambden offered this metaphor for the practice of law and the importance of civility:

“Litigation is not like preparing for a battle, it’s more like going on an expedition … like taking a trip across the mountains and encountering different places where you have to do different things.”

Have you ever felt the frustration of getting a stipulation from opposing counsel, only for the court to reject it? Well, when it comes to a briefing extension, the Supreme Court just ordered the Court of Appeal to give the full 60-day stipulated extension, and vacated the appellate court’s 46-day extension.

In Aaronoff v. Olson, the Second District, Division Two, “exercises[d] its discretion under rule 8.68, California Rules of Court” to partially grant a 60-day request to file a reply brief. The court granted 46 days instead.

On the plaintiff’s original writ petition, the Supreme Court in Aaronoff v. Court of Appeal (Olson) issued an alternative writ directing Division Two “(i) to vacate its . . . order . . . and to issue a new order giving effect to the parties’ stipulated extension as filed . . . or (ii) in the alternative, to show cause before this court why it has not done so.”

The same day, the Court of Appeal changed the reply brief due date to December 16.

The Upshot

When the parties to an appeal stipulate to a briefing extension provided under California Rules of Court, rule 8.212, “[t]he reviewing court may not shorten a stipulated extension.”

Thanks to David Ettinger for reporting on this case. See his post for a more detailed legal analysis of extensions under rule 8.212.

Disclaimer: I joined an amici curiae brief filed with the Supreme Court on December 5, urging the Court to grant the requested relief.

Isn’t it frustrating to find just the right case that supports your argument, only to notice that the case is unpublished? And lawyers are forbidden from citing to unpublished cases.

Don’t despair too much. Justice James Lambden (Ret.) notes that there are a number of published cases out there that lift the language or reasoning from unpublished cases. Remember that, in California, there is no horizontal stare decisis—which means the reasoning of unpublished cases has exactly as much binding authority on appellate courts as the reasoning of published cases. That is to say, neither published nor unpublished cases are binding on appellate courts.

So don’t fret: Make the best arguments available. If they’re supported by published authority, cite them. If not, don’t. If the arguments are any good, the appellate court will probably adopt them, even if there are no published cases on point. And if the arguments stink, the court will probably reject them, regardless of the citations to sister appellate courts.

And in arbitrations, the arbitrator can look at anything, says Justice Lambden, pointing to the Moncharsh v. Heily Blase decision. You can always find a way to get the reasoning into the case.

“The right answer,” Justice Lambden says, “is where you find it.”

In one of those familiar scenarios where the costs make all the difference, the plaintiff in GI Excellence, Inc. v. Padda (D4d2 Nov. 7, 2022) No. E076843 (nonpub. opn.) won a modest $65,000 award after trial, but then sought over $755,000 in contractual attorney fees. When the trial court denied the fee motion in its entirety, the plaintiff appealed. (The record did not reflect the trial court’s for the denial.)

But in its Appellant's Opening Brief, the plaintiff failed to address all of the arguments in opposition to the fee motion.

Instead, the plaintiff-appellant addressed only one of the defendants’ arguments in its Appellant's Opening Brief, and then addressed others in its Appellant's Reply Brief. This was, the Court of Appeal held, “a day late and a dollar short.”

Before Justice David Thompson left the bench in 2021 to become a private neutral, his colleague Justice Bedsworth called him “hard-headed.” And compassionate. But hard-headed? Justice Thompsons explains what Justice Bedsworth probably meant by that: “I say what I mean,” and tends to be direct—particularly at oral argument.

Justice Thompson discusses his more stringent judicial philosophy when it comes to publishing opinions, and granting writ relief. But he does favor tentative opinions and the use of focus letters to make for more effective oral argument.

Justice Thompson also provides some hard-nosed advice to lawyers:

• On writ petitions: If you don’t convince the panel in the first paragraph, you’ve lost. (But some justices might be more lenient.)

• On briefing: Get the basics right. Follow the Rules of Court. Explain how the trial court’s error resulted in prejudice. Acknowledge the flaws in your argument. And above all, be true to the record.

• On using “signposts” in briefing: Transitions between sentences, paragraphs, and thoughts are the way good writers hold their reader’s hand through your brief. And “moreover” is a substandard signpost.

• On doomed appellate strategies: Rearguing the same theory that lost at trial.

• On settling on appeal: If the case hinges on a key legal issue, a neutral with experience on the appellate bench may soften a hard position and help bridge a previously insurmountable gap.

• On oral argument: Never waive. At least show up and offer to answer questions.

During appellate briefing in Howard Jarvis Taxpayers Ass'n v. City of San Francisco (D1d5 Jan. 27, 2021) No. A157983, a case concerning whether a recent local tax increase on a voter initiative […]