Legal News and Appellate Tips

M.C. Sungaila has advocated at some of the highest levels of appellate law, and last year took her experience and her heart for mentoring and public interest work to the Portia Project podcast, where she distills the wisdom and experience of women judges, justices, and top attorneys in the nation.

M.C. sits down with Tim Kowal and Jeff Lewis on the California Appellate Law Podcast to discuss some of the insights and recurring themes and advice she’s gleaned from having interviewed now over 100 of the most successful women in the legal profession today:

• The “watershed moment” in the 1980s when Sandra Day O’Connor became the first woman on the Supreme Court, opening the floodgates for women in law.

• The varied paths to the bench, taken by lawyers who never thought it possible.

• A law degree doesn’t just mean one thing, and success sometimes mean failing at your first try, second try, etc., until you find the right fit.

• The disconnect between lawyers and judges: Advocates are looking for an outcome, but appellate judges are looking for an opinion.

• Appellate judges look at oral argument as another part of their process in preparing to make their decision. Don’t look at oral argument as just an isolated 30-60 minutes—that’s not how the panel sees it.

Even more than being buried alive, Justice Lambden says attorneys are terrified of missing an argument. This is why attorneys tend to indulge the temptation to be overinclusive in their arguments.

But making too many arguments comes at the cost of credibility. If the attorney is just “running the loop again,” the bench is more likely to tune out. “We always notice,” Justice Lambden recalled from his time on the Court of Appeal, when an attorney told the court which argument to focus on. You will show courage if you acknowledge a certain argument is not your strongest, and you will earn credibility when you pivot to the argument that is your strongest.

Justice David Thompson sets up the oral argument Catch-22:

If the argument wasn’t in your brief, why wasn’t it in your brief?!

If the argument was in your brief, then why are you repeating yourself?!

This is at the heart of what Justice Thompson calls the perennial question about giving an effective oral argument.

In this discussion about oral arguments on appeal, Justic
e Thompson provides the solution: Identify the crux of the case. Try to present it in a slightly different way, putting a slightly different spin, perhaps to disarm the panel.

And be ready to answer any questions.

But don’t regurgitate. And don’t come up with a brand new theory of the case.

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.

One of the challenges for us appellate attorneys arguing posttrial motions is that the trial judge tends to look upon us as johnny-come-latelies. “That’s how things look to you reading the dry transcripts, Mr. Kowal, but you weren’t here when it happened.”

That may be so. But there is someone else who wasn’t there, Three someone elses, in fact: the jurists on the appellate panel. All they will have is the same dry transcript that I have.

While appellate courts tend to defer to a trial judge’s sense of the case, this tends to run up against the great appellate maxim of “record cites or it didn’t happen.” Just saying “you had to be there” doesn’t quite cut it.

If you have finished briefing your appeal, you have already missed the best opportunity to prepare for oral argument. Appellate expert Myron Moskovitz tells Jeff Lewis and me why the time to begin preparing for oral argument is while drafting your reply brief.

You might know that petitions for writs of mandate filed in the California Courts of Appeal are rarely granted. And that petitions for review in the Supreme Court are granted even more rarely. But a recent case gives an idea what it looks like when they are granted.

Promptly after the assignment of a judge who was potentially biased against him, the petitioner in Ionescu v. Superior Court (Contra Costa) (D1d3 Aug. 26, 2021) 2021 WL 3782724 (nonpub. opn.) made a challenge for cause under Code of Civil Procedure section 170.1. The judge rejected the petitioner's challenge out of hand as untimely, but on grounds that were pretty clearly faulty.

A writ petition in the Court of Appeal was summarily denied. But the Supreme Court granted a petition for review, and transferred the matter back to the Court of Appeal with directions to vacate its summary denial and to issue an order to show cause why relief should not be granted. The Court of Appeal ultimately issued the writ in favor of the petitioner.

Writ petitions are processed very quickly, which can increase the chances the Court of Appeal could get it wrong. If you have a righteous writ petition, be prepared to seek review in the Supreme Court immediately. As this case illustrates, these things can get turned around.

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You are ready for oral argument. You have checked the tentative and you are ready to explain why the judge got it wrong. But unfortunately, the Superior Court for this particular county does not hold oral argument unless, after the court posts the tentative ruling, you give notice to the court and opposing counsel that you still plan to argue. And that window of time can be as little as an hour.

That was the case in Tearse v. Tearse (Jun. 9, 2021) no. A157576 (non-pub.). The appellant's attorney showed up at the hearing without giving notice of intent to appear by 4:00 p.m. the day before.

But counsel had looked at the court's website at 3:00, she argued, and there was no tentative. Counsel counsel checked with the department at 4:20 and still did not learn of any tentative having been posted.

Well, the court explained, it is true the court posted the tentative a little bit late at 3:10 p.m. So I would have given you until 4:10 p.m. You didn't get here till 4:20. Sorry.

A caution against using acronyms or jargon. If there is anything in your oral argument that you would write in all caps, cut it out.

One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right?

Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial court dismissed the plaintiff's complaint on an anti-SLAPP motion under Code of Civil Procedure section 425.16. The trial court also refused to admit the plaintiff's evidence in opposition to the motion.

But the plaintiff failed to challenge the trial court's evidentiary rulings refusing to admit his evidence. "As a result," the court held, "we can consider only the admitted evidence, and plaintiffs have forfeited any argument that the evidence they unsuccessfully sought to introduce established a probability that their claims would succeed.

Also, arguments raised at oral argument don't count.

On our latest podcast, appellate attorneys Tim Kowal and Jeff Lewis interview Alan Yockelson about genetic testing, Charles Manson, and whether the Cal. Supreme Court is beginning to doubt whether juries are still capable of sniffing out fraud.

Also discussed:
• The value of tentative opinions
• How oral argument can change an outcome
• Asserting objections at trial even when the judge’s mind is made up
• Why justices don't dissent or grant writ review more often

Listen to the podcast here or subscribe to the California Appellate Law Podcast on your favorite podcast player.

Appellate attorney Cory Webster joins Jeff Lewis and Tim Kowal on episode 9 of the California Appellate Law Podcast to discuss the differences in handling state and federal appeals, including: pitfalls in failing to make crucial posttrial motions (FRCP 50); the vastly different approaches to oral arguments in federal court; and the impact of amicus briefing on the practice of appellate law.