Many attorneys are missing their best opportunity to persuade the appellate court. Appellant expert Myron Moskovitz talks with Tim Kowal and Jeff Lewis about the importance of the introduction in appellate briefs. The introduction should summarize your arguments and not belabor detail. And it should be a roadmap to the all-important statement of facts.
In a terse opinion, the Court of Appeal recently rejected an appeal on the basis that, other than referencing the appealability of the judgment, “[n]o other legal citations appear in [the appellant’s] brief.” The Second District in *[Singman v. IMDb.com, Inc.](https://casetext.com/case/singman-v-imdbcom?resultsNav=false&jxs=ca&tab=keyword)* (D2d8, Dec. 20, 2021, No. B307783) 2021 WL 5997923 (pub. opn.) The court noted the only entry in the table of contents was Code of Civil Procedure section 904.1, an appealability statute that obviously does not impeach the judgment.
That’s not surprising. I wasn’t even going to mention the similar case in *[Freitas v. Clear Recon Corp](https://casetext.com/case/freitas-v-clear-recon-corp-2?resultsNav=false&jxs=ca&tab=keyword)* (D1d1, Dec. 8, 2021, No. A160762) 2021 WL 5822382, where an appeal of a dismissal following a demurrer failed because of lack of citations to the record.
But the First District did not publish *Freitas*, probably because that proposition is already settled, and this was a pro per litigant.
So why did the *Singman* court decide to publish? The faux pas there in failing to cite legal authority also was committed by a pro per litigant. The opinion is only two pages long. There is no analysis of the merits. There is no discussion what the case is about. The court notes the appellant’s legal arguments are not supported by legal citations, but does not say what those arguments are. The court concludes its published opinion with this line: “An absence of legal authority forfeits an appellant's cause.”
As I explain in the post, because there is so little context surrounding the holding in *Singman*, I suspect it will be abused. Going forward, even self-evident propositions in a legal brief may be met with a small-minded refutation citing *Singman* if the proposition does not include a citation.
Appellate attorney Anne Grignon offers three brief-writing tips. First is former Justice Margaret Grignon’s advice about telling a clear story. Second, tell the court what rule it should adopt. Third, don’t be afraid to use pictures or visuals in your brief (if they are in the record).
Appellate attorney and author [Myron Moskovitz](http://moskovitzappellateteam.com/team/myron-moskovitz) joins Jeff Lewis and me on episode 20 of the California Appellate Law Podcast. Myron has been practicing appellate law since the '60s, and has curated an impressive collection of effective strategies to win appeals. Some of the topics we discuss include:
- Why appellate courts should provide brief explanations when denying writ petitions.
- Criticisms of Rule of Court 8.1115 prohibiting the citation of unpublished opinions.
- Statements of Decision
- Why the Appellant's Reply Brief may be the most important brief.
- Why you should moot your oral argument before writing your Appellant's Reply Brief.
We also discuss Myron's new book, *[Winning an Appeal](https://store.ceb.com/strategies-on-appeal-2)*. Myron explains this is not a practice guide that just tells you the nuts and bolts of how to appeal, but an actual readable volume with strategies for winning an appeal.
They can't be serious about that. That is what you probably think when you read rule 8.204(a) of the California Rules of Court. It sets forth a lot of pretty commonplace requirements for appellate briefs. It requires tables of contents and authorities, headings and subheadings, that kind of thing. It also says parties must "support each point by argument and, if possible, by citation of authority."
Sure, it is poor form not to include all that. But really, what's the worst that can happen if you slip up a bit on these particulars?
You will find out in The Villas v. Westpark Corte Bella Comm. Assoc. (D4d3 Aug. 12, 2021) no. G059577 (nonpub. opn.).
In sum, for failing to comply with Rules of Court rule 8.204(a) and other briefing defects:
•The court disregarded the parts of the brief that lacked record citations in violation of rule 8.204(a)(1)(C).
•The new arguments in the reply brief not raised in the opening brief were forfeited and not considered.
•All the rest of the arguments made in the appellant's reply brief were forfeited, and not considered.
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Specifically, most of the appellants' arguments here were rejected as forfeited. The court also disregarded challenges because the appellants' briefing improperly cited to postjudgment matter in the appellate record in their challenge of the judgment.
The upshot is that great care must be given to the selection of issues on appeal, and whether they are property supported and preserved. Consulting an appellate attorney prior to trial and on appeal may prevent against findings of waiver and forfeiture on appeal.
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MS Word by default inserts "passim" in your Table of Authorities. The 9th Circuit discourages it -- the court wants to see every page where the authority is cited (unless the authority appears on nearly every page). See https://cdn.ca9.uscourts.gov/ datastore/uploads/guides/Shell_Brief.pdf.
Bryan Garner's LawProse.org has this entry on passim, suggesting it may be rather archaic by now:
passim (lit., “throughout”) is used in citing an authority in a general way and indicates that the point at hand is treated throughout the work. It’s a fairly erudite citation signal—e.g.: “There is a curious reluctance on the author’s part to let go of linear frameworks—from ‘differentiation to integration’ (p. 13), ‘dependence to interdependence’ (p. 19), ‘childhood to maturity’ (p. 25), and on to ever-higher ‘states of consciousness’ (passim).” Michael Edwards, “Popular Development: Rethinking the Theory and Practice of Development,” J. Dev. Studies, Apr. 1997, at 581.
If you still use it, is there a reason? "MS Word put it there" might not be good enough anymore.
The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions.
The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's estate. (Anyone bothering to put their assets in a trust ought to give a thought to appointing an independent fiduciary as successor trustee. Otherwise, the trust might as well name the attorneys as beneficiaries.)
The Fourth District Court of Appeal concluded the appellants had forfeited all their arguments by failing to raise them in the trial court and by failing to include a proper statement of facts, supported by record citations, in their appellate brief. What sealed the deal for sanctions: in their opposition to the motion for sanctions, the appellants made their own (untimely) request for $4 million sanctions (based on a precluded issue). That did not sit well with the court.
If you were to read the eight-page factual summary of the abusive juvenile in People v. S.O. (D3d2 May 7, 2021) no. E075778, you would be disappointed by the payoff in terms of application of those troubling facts to law. That is because there is none.
Justice Raphael thinks this effort a waste, and dissents to say the appeal should have been dismissed as abandoned. Justice Raphael provides this pithy synopsis:
"Minor's counsel raises no issues. Today's opinion discusses no issues. The opinion is eight pages without a reason to exist. One can say nothing much more succinctly."
The Upshot: Justices do not appreciate impositions on their time. Fully develop the issues in your appeal with factual analysis, record citation, legal analysis, and legal citation. Do not expect the Court of Appeal to find reversible error on its own.
Last week, Bryan Garner's LawProse lesson was on succinctness, noting that the late Justice Ruth Bader Ginsburg once told him that "Eye fatigue sets in well before page 50." The […]