Legal News and Appellate Tips

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 […]