“Hear ye! Hear ye! Hear ye!”
First District justices convene with attorneys to dispense useful advice.
The discussions at the Appellate Law Section’s May 8 luncheon with justices from the First District Court of Appeal—the first since the COVID-19 pandemic—generated valuable advice for practitioners, including tips applicable when writing to any court, as well as guidance specific to litigating at the First District.
Do not cite an unpublished opinion to support your argument.
Even though California Rule of Court 8.1115 prohibits doing just that, a citation to an unpublished opinion is apparently not unusual in briefs submitted to the First District. One justice said she recently reviewed a brief filed by an attorney from a large, reputable firm rife with citations to unpublished opinions. She said citing an unpublished decision is acceptable only if there is no published law on the matter, the unpublished decision is on point, and the attorney explains so in the brief. But another justice said that even in that situation, citing an unpublished opinion would be a risky and ill-advised move.
Do not make ad hominem attacks on the opposing party, their counsel, or the lower court judge.
Disparaging the other side or the lower court undermines your credibility and is a common pet peeve of judges throughout the nation. One justice said the First District’s research attorneys feel “personally affronted” by such attacks. Do not engage in them.
Your Statement of Facts section should reflect the nature of your argument.
If you are making a substantial evidence argument on appeal, meaning you are contending that the evidence at trial was insufficient to justify the factual findings made by the court or the jury, then your Statement of Facts section should be “beefy,” as one justice put it, and your citations to the record considerable. Remember that in reviewing for substantial evidence, an appellate court must defer to the trial court’s resolution of credibility issues and resolve all conflicts in favor of the successful party; it has no province to search the record looking for evidence to support the appellant’s position. In that situation (and frankly, in any), it is imperative that you do not ignore the unfavorable facts.
On the other hand, if you are merely making a legal argument and do not consider the facts to be at issue, then your Statement of Facts section may be relatively short. Still, be sure to cite the record to support whatever facts you do include.
When responding to the brief opposing your appeal, do not raise a new issue.
This is a well-established rule in appellate practice. Even so, attorneys apparently frequently violate it. Joining their ranks reflects poorly on you and is pointless, since the appellate court cannot consider an issue raised for the first time in a Reply brief.
Write shorter briefs that are focused and well-structured.
Josephine Petrick, an appellate specialist who attended the luncheon, said this plea was made by justices seated at her table. That is hardly surprising, and it constitutes advice frequently dispensed in this column that is also the most basic instruction provided by legal writing experts. According to Petrick, the justices said that if the brief is short enough that they can read it one sitting, “they are able to absorb the argument as a complete, uninterrupted arc—with context, logic, and tone all landing in the way you intended.” Thus, “the narrative holds together.” On the other hand, if the brief is too long, then “it often gets read in fragments—interrupted by hearings, other cases, or chambers work.
“That often leads to a more disjointed reading experience, where momentum gets lost and key points may not land as clearly or cohesively.”
As Petrick put it, “Keep it tight. A well-structured, focused brief isn’t just easier to read—it’s more likely to persuade.”
When facing off against a pro per party, try to glean their substantive arguments and address them in your brief.
Given that this is what the First District is likely going to do, you would be well advised to do the same.
At oral argument, immediately address any issues raised by the appellate court in a focus letter or any weaknesses in your argument noted in a tentative ruling.
After all the briefing has been submitted, you may receive a letter asking you to tackle or further delineate a specific issue that the district justices are concerned about. Apparently, all too often, attorneys at oral argument ignore the matter raised in the focus letter or delay dealing with it until the end of their comments. You would be wise to begin your remarks by addressing that issue first. Otherwise, the justices will be distracted wondering why you are not doing so and likely will be annoyed.
Likewise, if the justices issue a tentative ruling that identifies weaknesses in your arguments, be sure to shore those up first.
If the tentative ruling is not in your favor do not give up; in that circumstance, it is best not to waive oral argument.
Some divisions of the District frequently issue tentative rulings. Others do so most of the time. But at least one issues a tentative only if the case is particularly complicated. Justices who serve in the divisions that often issue tentative rulings said that while the practice requires more work on the court’s part, it tends to refine the discussions at oral argument and result in opinions that are more clearly reasoned and better written.
Sometimes justices change their minds after hearing oral argument. For that reason, if you have lost the tentative ruling, be sure not to pass up the opportunity to speak directly to the court. But know also when to keep quiet. The justices at Petrick’s table said that if you are representing the respondent, the tentative ruling is in your favor, and the justices on the panel do not ask your opponent any questions, it is best not to stand up, argue your side, and risk talking your way out of a win. “Here’s your script instead,” Petrick wrote in a posting on LinkedIn. “Thank you, your Honors, for the thoughtful and correct tentative opinion. If the Court has no questions for me, I’m happy to submit.” And the justices will be glad to hear you say so.
Do not hesitate to take advantage of the District’s settlement program.
If all parties are open to resolving the case and avoiding the uncertainty and expense involved in briefing and argument, you may want to consider this option. Under local Rule 9, the court will schedule a settlement conference if counsel for any party so requests at any time before the close of briefing, so long as all parties join in. The court will then assign a justice from a division other than the one the appeal is assigned to preside over the conference, discuss the merits, and act as mediator. The program provides an excellent opportunity that apparently is underused. Be aware, also, that at any time when an appeal is pending, the panel to which the appeal is assigned may order a settlement conference, even though none was requested.
In preparing the record, there may be a shortcut.
If it is taking a long time to get the completed, certified trial court transcripts reformatted for use by the District and you can get opposing counsel to agree, file a motion asking the court to allow the use of the transcripts in their current state. Some justices said that if you can show that granting the motion will expedite processing the case, the court will be open to it.
If you have a very good reason for not being able to meet a filing deadline, justices will be open to your request for more time.
As one explained, they do understand “how challenging and difficult the business of life can be” and are reasonable about the need for an extension. Just do not abuse the privilege.
Be patient; the District is understaffed.
Due to a long-standing hiring freeze, most chambers are down multiple staff attorneys. Even so, the District is doing its best to process appeals at a fair clip.
If the District does not publish its decision in your case, and you believe it is precedential, do not be shy about submitting a request for publication.
If the opinion establishes a new rule of law or meets the criteria for publication under California Rule of Court 8.1105 in some other manner, do not hesitate to file a request for publication. But be aware that if the opinion contains sensitive or private information, even if not sealed, that may weigh against publication.
Finally, even if you do not win, the justices hope you will feel like you and your client were heard and treated fairly.
As one justice put it, she “never wants anyone walking out of the courtroom feeling worse than they did when they walked in.”
Attorney Savannah Blackwell is a former news reporter who covered government and politics for more than a decade, mostly in San Francisco. She can be reached at savannah.blackwell@gmail.com.