| Preparing your first civil appeal in the California Court of Appeal may appear to be an overwhelming undertaking. Break down the appeal process into sensible, discrete tasks, and voila, the endeavor becomes manageable even for a beginning appellate practitioner. In general, you should think of the appeal process as consisting of four major components:
Courthouse Door Issues
Oral Argument Issues
COURTHOUSE DOOR ISSUES:
In general these are matters you must immediately address in the first day or couple of days after you learn that your client has decided to pursue an appeal. You must address these issues prior to coming to the courthouse to file your appellate brief or risk having the courthouse door forever closed to the client’s case. Hence the name “courthouse door.”
1. Learn the Relevant Court Rules:
Your first task in preparing an appeal must be to review the appellate rules of court for your jurisdiction. These rules will dictate nearly all of the procedures for filing, writing and arguing your appeal. You will need to consult these rules through out the process of preparing your appeal, so keep them nearby.
At the courthouse door stage, you need to consult the rules of court to resolve several threshold matters:
1) Whether the appellate court has jurisdiction to hear the appeal; and relatedly
2) The amount of time you have to file your notice of appeal, and what that notice must contain to be accepted by the clerk of the appellate court
For example, California Rules of Court (CRC), Rule 8.104 relates the time limits for filing the notice of appeal. In sum, CRC Rule 8.104 (a) provides that the notice of appeal must be filed on or before the earliest of :
1) 60 days after the clerk of the superior court mails (or a party serves) a “Notice of Entry” of the judgment (or the appealable order) or a file-stamped copy of the judgment showing the date of mailing (or proof of service)
2) 180 days after entry of judgment (or an appealable order)
CRC Rule 8.104 also describes what constitutes “entry” of judgment.
CRC Rule 8.108 contains the rules governing the limited circumstances when the time to appeal is extended.
You should note that California Code of Civil Procedure (CCP) section 1013, which normally extends the time to do any act when notice is served by mail or fax does not extend the time for filing a notice of appeal.
Once your notice of appeal is filed, turn your attention to the rules governing ordering and or preparing the record on appeal. These rules are found in CRC Rule 8.130-8.160.
Timely and careful observance of these and other appellate court rules are absolutely crucial to your appeal being heard and decided on its merits. Indeed, CRC Rule 8.104, directs the court of appeal must dismiss an appeal where the notice of appeal is filed late.
2. Check Appellate Court Jurisdiction:
Appellate jurisdiction refers to the reviewing court’s power to review and correct errors committed in the trial court. The court’s jurisdiction is derived from the California Constitution, while a party’s right to appeal stems, in large part, from statute.
As indicated above, the deadlines for filing the notice of appeal are mandatory and jurisdictional. If you do not timely file a notice of appeal, the court has no jurisdiction to consider your claims.
In addition, there are other important components to appellate jurisdiction. Chief among these is whether you have an appealable order or judgment. Broadly stated, three categories of orders and judgments are appealable:
1) “Final” judgments
2) Orders and interlocutory judgments appealable under CCP section 904.1, or other statutes
3) Recognized exceptions to the final judgments
Only “final” orders and judgments are appealable. This is referred to as the “one final judgment rule.” In general a “final” order or judgment is one that entirely ends the case in the trial court. A case ends where no issue is left for future consideration in the lower court. In each action there can only be one final judgment. In contrast, a judgment is “interlocutory” (and usually not appealable unless made appealable by statute) where it is not final, i.e., where further judicial action in the lower court is necessary to a final determination of the parties’ rights.
“Final” judgments include most judgments entered, for example, after a trial, upon an order granting summary judgment, or an order of dismissal of the entire action upon sustaining a demurrer with prejudice.
CCP Section 904.1 provides a non-exhaustive list of appealable orders and judgments. The list includes:
1) An order granting a motion to quash service or granting a motion to stay or dismiss based on forum non convenience
2) An order granting a new trial or denying a motion for a JNOV
3) Most orders relating to attachments and injunctions
4) An order appointing a receiver
5) Orders or judgments relating to accountings, partitions or redemption actions
6) Orders or judgments made appealable by the Probate or Family Code
7) Orders directing the payment of monetary sanctions of more than $5,000
8) Orders granting or denying a special motion to strike under CCP Section 425.16
9) An order made after an appealable judgment (e.g., orders awarding or denying costs or attorney fees
Other appealable orders include:
1) Written orders of dismissal (non-voluntary) or non-suit signed by the court and filed in the action (CCP Section 581d.)
2) An order on a claim of exemption of property subject to a levy (CCP Section 703.600)
3) Certain orders concerning arbitration (CCP Section 1294)
4) Certain child dependency orders (Welf. & Inst. Code 395: CRC Rule 5.585(b))
5) An order granting civil habeas corpus relief (Pen. Code Section 1507; CRC Rules 8.304-8.450, 50)
6) Orders under Corporations Code 308
7) An order concerning liability on an appeal bond
Two exceptions to the final judgment rule exist:
1) Appeal from a collateral final judgment or order
2) A judgment final as to a party
An order or judgment is collateral in this context where:
1) The judgment or order is final as to the collateral matter
2) The subject of the judgment or order is in fact collateral to the general subject of the litigation
3) The judgment or order directs payment of money by the appellant or performance of an act by or against the appellant
An order or judgment is final as to a party means a judgment or order that entirely disposes of a case and leaves no issue to be determined against a party in a multiparty action.
Finally, CCP Section 904.1 also indicates certain types of “judgments” which are non-appealable . These include almost all interlocutory judgments; contempt judgments under CCP Section 1222; judgments in limited civil cases; and judgments on writ petitions in limited civil cases.
Some of the other types of orders which are not immediately, or directly appealable include:
1) Most rulings sustaining or overruling a demurrer
2) Rulings on a motion for a judgment on the pleadings
3) Order granting or denying a motion for summary judgment or summary adjudication
4) Most orders on motions attacking the pleadings (i.e., motion to strike or leave to amend)
5) Discovery orders, unless allowed by statute
6) Most orders during trial relating to evidentiary rulings, or denying a motion for a non-suit or granting or denying a mistrial
Except where an extraordinary writ will lie, appellate review of the foregoing matters lies only on appeal from a subsequent appealable order or judgment.
3. Determine Standing:
Another component of appellate court jurisdiction, which warrants special attention, is the issue of standing. Even if you have an appealable order or judgment, before you file an appeal you must determine whether your client has “standing” to appeal.
Pursuant to CCP Section 902, only aggrieved parties have standing to file an appeal. Thus to have standing, the appellant must: (a) be a party of record in the trial court action and (b) be aggrieved. An aggrieved party is one whose rights and interests are directly injured by the order or judgment. The injury must be immediate, pecuniary and substantial, rather than nominal or remote.
Moreover, subject to limited exceptions, one has no standing to appeal an order or judgment in ones favor. In other words, no one can appeal a total, actual and complete victory in the trial court. In general, the limited exceptions to this rule are: (1) where the amount of the judgment is less than the amount demanded; and/or (2) where a partial new trial is ordered where the appellant sought a new trial on all issues.
4. File a Notice of Appeal:
Once you have ascertained that your client has standing and the court of appeal has jurisdiction, then you should waste no time in preparing and filing your notice of appeal. As noted above, an untimely notice of appeal will result in the dismissal of your appeal regardless of its merit.
Filing the notice of appeal initiates the appeal process in the court and serves to invoke the appellate court’s jurisdiction.
CRC Rule 8.100, inter alia, sets forth the requirements for the contents of the notice of appeal and describes the methods for its service, lists the amount of the filing fee and describes the requirements for completion of the Civil Case Information Statement.
The notice is simple to prepare. The notice must identify the particular order or judgment appealed from and it must be signed by the appellant or his or her attorney (CRC Rule 8.100). It must be filed and served in the superior court.
5. Order the Record from the Lower Court:
Simultaneously with, or shortly after filing the notice of appeal you must order the record from the lower court. As noted above, CRC Rules 8.130-8.160 govern the preparation and transmittal of the record on appeal. As you should throughout the appellate process, be mindful of the timing when preparing the appellate record.
In general, the record on appeal consists of the reporter’s transcript and the clerk’s transcript. To obtain a record of the oral proceedings in the trial court you must timely (within 10 days after the notice of appeal is filed) request the preparation of the reporter’s transcript of the trial court proceedings pursuant to CRC Rule 8.130. To obtain a record of the documents on file or lodged in the case in the superior court, you must timely (again you have only 10 days after the notice of appeal) specifically identify which documents you want included in the clerk’s transcript at the time you file your request (CRC Rule 8.120).
As an alternative to requesting the superior court clerk compile and prepare the clerk’s transcript, you may elect to prepare your own record (called an “appendix”) of the documents on file in the trial court. (See CRC Rule 8.124). To do so you need only advise the court of your election to proceed by appendix at the outset of the appeal. Preparing and submitting an appendix may be preferred as it will generally expedite the appellate process and may be less costly. Another advantage to preparing an appendix is that because the appendix need not be filed until the briefing stage, you can select your documents for the appendix as you are briefing the appeal.
An appendix prepared solely by the appellant is called an “Appellant’s Appendix.” The respondent is also entitled under the rules of court to prepare a “Respondent’s Appendix.” You may, however, decide to coordinate with the respondent in preparing a “Joint Appendix.”
Whichever method you choose to obtain the record for the appeal, great care must be taken to furnish a complete and adequate record. You must insure that you have designated the appropriate documents. CRC Rule 8.124(b) provides: that your appendix must contain any item “that is necessary for proper consideration of the issues, including, for an appellant’s appendix, any item that the appellant should reasonably assume the respondent will rely on.. .[and the appendix] must not contain documents of portions of documents . . . that are unnecessary for proper consideration of the issues.” (CRC Rule 8.124(b)(1) & (2)). Consequently, you should include all documents the court of appeal needs to decide the case. For example, if the appeal concerns a summary judgment motion, you should include not only the motion, separate statement of facts and the supporting evidence, but also you should include the papers and evidence in opposition to the motion. No advantage is gained by including only those documents that appear to favor your position. Failure to prepare a proper appendix could result in the court imposing monetary or other sanctions against the offending party. (CRC Rule 8.124(g).) Moreover, among other things, the credibility of your arguments may be called into question if you decide to prepare a one-sided record. Finally, an incomplete record or omission of relevant documents could result in a waiver of certain issues on appeal, while you risk sanctions for preparing a record full of irrelevant documents.
1. Review Relevant Court Rules:
After you have resolved the courthouse door issues, including filing a timely notice of appeal, ordering the record and satisfying the jurisdictional requirements of the appellate court, turn you attention to becoming familiar with the case you intend to pursue on appeal.
Preliminarily, you should review the relevant appellate court rules to discover what happens (on the court end of the case) once you have filed your notice and ordered the record. Again it is important to keep your attention on the time. CRC Rule 8.150 advises that once the record is complete, the superior court clerk will promptly send the original record to the reviewing court and send a copy to the appellant. Thereafter, the appellant has only 30 days after the record (i.e., the reporter’s transcript and clerk’s transcript if proceeding under CRC Rule 8.120, or the reporter’s transcript, after an CRC Rule 8.124 election, or 70 days after filing a CRC Rule 8.124 election if proceeding without a reporter’s transcript) is filed in the reviewing court to serve and file an opening brief. (CRC Rule 8.212(a).)
While certain limited extensions of time to file a brief may be available under CRC Rule 8.212(b), do not count on receiving one. Instead you should waste no time in completing your investigation and writing your brief.
Finally, be advised that failure to file a timely opening brief (after a 15-day notice of default from the reviewing court under CRC Rule 8.220(a)), will result in the court dismissing your appeal (CRC Rule 8.220(a)).
2. Learn the Record and Conduct an “Open-Mind” Review:
After you have obtained a copy of the record, read it. Your issues on appeal will be found in the record of the oral and written proceedings in the lower court. Review and digest every page of your record. You should be thoroughly familiar with the record as it will dictate how you conduct your legal research and your writing.
You should also read the record from an objective point of view as though you know nothing of the case. It would be unwise to just review the record for those issues or factual matters that favor your position. Moreover, do not rely solely on your memory of what occurred below or the hand written notes you took during the lower court proceedings because you might miss something. Even if you were trial counsel in the lower court and think you know your case inside and out, you should nonetheless attempt to review the record from a fresh perspective with an open mind, as an appellate court would do (remember the appellate court reviews the record with no information about the facts, history of the parties or litigation background, and with no predispositions about the outcome). An “open-minded” review will not only put you in the proper mindset for appeal, it will also assist you in deciding which issues to pursue and perhaps reveal additional or new issues you did not see before.
3. Make a List of Potential Issues and Check for Issue Preservation:
As you review the record you should keep a list of all potential issues disclosed in the record. Be creative and think broadly about the facts and proceedings in the record and include in your list all possible issues and errors committed in the lower court. Be exhaustive. At this stage do not be overly concerned about whether you will ultimately prevail on the issues, you are merely hunting for errors. Moreover, at this point do not waste time figuring out how you will phrase your issues for the brief. You can do that once you start writing.
This notwithstanding, as you make a list of issues, you must determine whether the issues have been preserved for appeal. You cannot simply review the transcript and documents filed below and blindly pick and choose whatever you want to assert on appeal. Only those issues that were raised and considered below are subject to appellate review. The court of appeal will only review the lower court proceedings and correct reversible errors committed there. The appellate court will not review any issue that the parties failed to bring to the lower court’s attention in a timely and proper manner. Issues and claims, which were not raised in the trial court, will generally be deemed waived on appeal.
Issues are preserved for the purposes of appeal: (1) where a timely objection is asserted concerning the matter in the lower court or where the issue is addressed in a pre-trial or post-trial motion; (2) the record reflects the objection or motion was made; (3) the court (explicitly or implicitly) ruled upon the motion or objection and the ruling is reflected in the record; and lastly (4) the ruling was adverse to you (as discussed elsewhere here you have no standing to appeal issues upon which you prevailed).
As a corollary to issue preservation you should keep in mind those matters, which the appellate court will generally not review. These include: (a) facts not in record; (b) events occurring after judgment; (c) error against non-appealing party; (d) matters unnecessary to the lower court’s decision; (e) moot appeals; and (f) waived issues.
4. Legal Research and Standards of Review:
Once you have identified all of your potential appellate issues and lower court errors, have determined they have been preserved for appeal and have learned your record, begin your legal research of the substance of your claims.
Your legal research should also include a review of and thorough understanding of the standards of review, which will guide the appellate court in deciding the issues on appeal. Be aware that an appeal is not a retrial of the case. The function of the court of appeal is to correct prejudicial trial court error and to ensure uniform application of the law. In general the appellate court will accord the lower court proceedings great deference, especially when it comes to the resolution of contested factual issues. This makes sense because a trial court as the trier of fact has an intimate knowledge of the procedural history of the case, the lawyers, and the parties and has had an opportunity to observe first-hand the witnesses and the evidence. Thus, the appellate court’s review of your appeal will be guided by whether your appeal turns on purely legal issues or issues of fact. Ordinarily appellate court’s are only comfortable deciding (on their own) questions of law and will defer the resolution of factual matters to the trial court.
In sum, standards of review are a set of rules that the appellate courts apply to determine whether reversible error occurred in the trial court. The standards differ according to the procedural context in which the matter was resolved in the lower court (i.e., jury verdict, dispositive motion, post-trial motion) and according to the substantive or factual matter involved in the issue. The standards of review also usually include a presumption that the trial court’s conclusion is correct. Moreover, an additional aspect of all standards of review to remember is that even if the appellate court finds error, it will not reverse unless the error is prejudicial.
The three most common standards of review are: (1) sufficiency/substantial evidence; (2) abuse of discretion; and (3) de novo.
(1) Sufficiency/Substantial Evidence: This is by far the most deferential to the trial court.
It usually applies where the issue on appeal turns on disputed issues of fact.
Appellate review under the substantial evidence standard requires all reasonable inferences are given in favor of the prevailing party and the record is viewed in the light most favorable to the judgment. An appellate court will not disturb the judgment if it is supported by substantial evidence that is reasonable in nature, credible and of solid value. Substantial evidence does not mean a lot of evidence. It means evidence, which is of ponderable legal significance. It must be more than a scintilla of evidence. The focus is on the quality, not the quantity of the evidence. Moreover, it is not a question of whether there is a “substantial conflict” in the evidence but, rather, whether the record as a whole demonstrates substantial evidence in support of the appealed judgment or order. So long as there is “substantial evidence,” the appellate court must affirm even if the reviewing justices would have ruled differently had they presided over the proceedings below. See e.g.: Bowers v. Bernards (1984) 150 Cal.App.3d 870; Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634.
(2) Abuse Of Discretion: This standard applies to discretionary trial court rulings.
An abuse of discretion is shown where the court’s action exceeds the bounds of reason or contravenes uncontroverted evidence (Mustachio v. Great Western Bank (1996) 48 Cal.App.4th 1145, 1151). It implies arbitrary, capricious or whimsical thinking. An appellate court will not find an abuse of discretion, where two or more inferences can reasonably be deduced from the facts. The abuse of discretion standard measures whether, given the established evidence, the lower court’s determination falls with a permissible range of options set by legal criteria. See e.g.: In re Gilkison (1998) 65 Cal.App.4th 1443; Blank v. Kirwan (1985) 39 Cal.3d 311.
(3) De Novo: This standard usually applies where the appeal involves pure questions of law and no factual disputes exist.
When an appeal presents purely a question of law, the appellate court is not bound by the trial court’s interpretation of the agreement; this issue is subject to de novo review. See e.g.: County of Contra Costa v. Kaiser Foundation Health Plan Inc., (1996) 47 Cal.App.4th 237, 241.
The opening brief should apply the standards of review that govern each issue on appeal. Consequently, you need to have a clear understanding of how the standards of review operate.
5. Do Your Weeding:
Once you have conducted your legal research, understand the applicable standards of review and have a command of the facts and evidence, revisit your exhaustive list of potential issues. You can now weed out those issues you have no chance of winning on appeal. Assert only those alleged errors that the facts, law and good faith give you a realistic chance to prevail upon.
Unless your case is extremely complex, you would be wise to assert no more than three to four issues in total in your brief. In the long run, the more issues you assert the less persuasive your brief becomes.
Organize your issues to begin your brief with the strongest (and/or dispositive) issue. You should always lead with your strength even if that means your brief begins with what happened at the end of the trial. Put your weaker or less strong issues towards the back of the brief.
Brief writing is the most important component of preparing your appeal. You cannot count on winning your case based solely on your oral argument. Know that before the appeal even reaches the oral argument stage, the appellate court has thoroughly reviewed, researched and considered the issues raised in the briefs and often has already reached some tentative conclusions about the outcome. Thus, the significance of putting your best position forward and holding nothing back at the briefing stage cannot be overemphasized.
As a result, you need time to think about how to persuasively present your issues and arguments and time to write them. Also factor in time in the event the unexpected happens (i.e., your legal assistant resigns, your computer or printer crashes or you have a family emergency) while preparing the brief. You will not do your best work by waiting until the last minute.
1. Review Relevant Court Rules:
Before you start writing your brief you should turn once again to the applicable rules of the appellate court. The rules will provide the requirements for the form and structure of your brief. For example, CRC Rule 8.204(a)(1) states that each brief must (1) begin with a table of contents, authorities; (2) state each point/issue under a separate heading summarizing the point; and (3) support each point with argument and citation to relevant legal authority.
Specifically with respect to the appellant’s brief, CRC Rule 8.204 notes that it must: (1) describe the nature of the action, the relief sought below and the judgment and order appealed from; (2) state the judgment appealed from is final or explain why the order appealed from is appealable; and (3) provide a summary of the relevant facts as disclosed by the record, (CRC Rule 8.204(a)(2)).
In addition to describing content of the brief, CRC Rule 8.204(b) also relates the requirements for the font, line spacing, type of paper, margins, page numbering and all other formatting matters. CRC Rule 8.204(c) provides that a brief produced on a computer may not exceed 14,000 words, including footnotes (but exclusive of the tables of contents and authority) and that the length must be certified by appellate counsel. Non-compliance with CRC Rule 8.204 could result in the clerk’s refusal to file the brief or the brief being returned by the court for corrections.
2. Outline the Brief and the Arguments:
Make a thorough and detailed outline of your arguments based on the issues you have decided to argue and your legal research. Your outline should serve as a framework for your writing. Using an outline helps organize your arguments and sub-issues in a logical manner. You want to outline your issues and arguments in a way that is reader friendly and makes sense. Outlining is also helpful because it serves as a checklist to enable you to make sure that you have not neglected any relevant point or authority.
Also, at the outline stage you should determine which, if any, issue is dispositive. In other words, determine whether the outcome and resolution on any one issue determine the outcome of the entire appeal. Begin your brief with the dispositive issue and be sure to include in your outline a note to identify and highlight the dispositive issue for the reader.
3. Write the Sections of the Brief:
As you draft your appellate brief keep in mind that the purpose of brief writing is, at bottom, to persuade the court of the merits of your position. If your brief is not persuasive, it will fail. Remember also that your audiences for an appellate brief are judges and other lawyers conversant in the law.
Most appellate briefs should contain the following sections: (1) an introduction/statement of the case; (2) a statement of appealability; (3) statement of facts; (4) a discussion section; and (5) a conclusion.
1) Introduction: A concise explanation (usually no more than a page or two in length) at the beginning of the brief that tells the reader how the case got to the appeal stage and why you have filed the appeal. It should provide a very brief summary of the relevant procedural and factual history prior to appeal, describe how the case was resolved below, and explain why the court should reverse the judgment/order on appeal.
2) Statement of Appealability: As required by CRC Rule 8.204(a)(2)(B) this section should (in a couple of sentences) inform the court of the order or judgment appealed from; explain why the order or judgment is appealable; and identify the date the order or judgment was entered in the trial court as well as the date the notice of appeal was filed. (This allows the reader to quickly ascertain whether the appeal is timely under CRC Rule 8.204.)
3) Statement of Facts: Your statement of facts tells the reader the story about the case, both factually and procedurally before it was appealed. You should include two types of facts: (a) the material/relevant facts that either you or your opponent will use in your argument sections; and (b) facts which you may not use in your argument but that are nonetheless important because they fill out the story. Your fact statement should be succinct, clear and accurate. Do not misstate the facts. Nonetheless, state your facts in a manner that will persuade the reader to obtain a positive opinion of your position on appeal. Do not reserve key facts for your argument section. Cite to the record after every factual assertion in your statement of facts.
4) Discussion: This section of your brief contains your issues statements and the analysis and argument of the matters on appeal. This is where you discuss the law, apply the facts to the relevant law and convince the court of the merits of your position. Your discussion section should be organized according to each issue or claim of error. Each claim of error should begin with one sentence statement of the issue on appeal. Your issue statement (unless the rules of court direct otherwise) should be a declarative statement of the contention on appeal. It should contain enough references to the facts and law so the reader understands your claim of error. (For example: “The trial court erred in failing to grant a new trial on the basis of excessive damages because the evidence presented at trial demonstrated the breach of contract resulted in only $1000 in damage rather than the $100,000 the jury awarded.”) Each issue statement should be followed by the legal analysis and argument to establish the contention in the issue statement. If you have prepared an outline of your arguments use it as a guide to present a systematic and logical discussion of the issue. Do not be afraid to use subheadings to divide your analysis. In your analysis section explain why, where and in what respect the trier of fact below erred and why your conclusion is better under the controlling legal authority.
5) Conclusion: This should be no more than a sentence or two at the end of the brief reminding the court of the relief you seek.
4. Edit, Revise, Re-Write and Cite Check:
Plan to finish the brief a week early (e.g., before you send it to the client and before you file it). It is crucial to save time to edit, revise, re-write and cite check your work. Revision involves more than simply running the spell and grammar check and reading for typographical errors. Proper editing also concerns reviewing the organization of the entire brief and the individual argument sections to ensure that your arguments are logical and adequately support your conclusions. You should also review and double-check your citations to the record and legal authority.
Put your brief aside for a few days, so you can review it with fresh eyes. Look closely at your language and remove excess and redundant words, phrases or paragraphs. You want your sentences to be simple, coherent and persuasive. Read your brief aloud to detect odd phrases or awkward sentence structure.
Give your brief to a colleague unfamiliar with the case to read for content and comprehension. Also make sure your brief conforms to the length requirements in CRC Rule 8.204(c). Finally, the law may have changed since you began your legal research so be sure to cite check your legal authorities to ensure they are still valid.
5. Prepare Window Dressings and Filing and Service Matters:
Only after you have completed the editing and revision process and finalized the brief should you prepare your table of contents and authorities. Your table of authorities should list all case citations in alphabetical order. The list of cases should be followed with an alphabetized list of all statutes and regulations cited in the brief. Finally, a separate section in your table should identify all secondary authorities cited, including legal encyclopedias, law reviews and legal treatises. The table of authorities should list the page number of every page in the brief where a particular cite appears. Hence, do not prepare your tables until you have finalized the pagination in your brief.
At this point, prepare your cover page for your brief. The rules of court will dictate the content of the cover page, the color of the brief and the requirements for binding the pages. (See CRC Rule 8.204(b)(b); CRC Rule 8.204).
Finally, turn your attention to the requirements for filing and service. You must file the original and four copies of the brief with the appellate court and serve a copy on the parties in the action (CRC Rule 8.44). In addition, CRC Rule 8.212 requires that you serve one copy of the brief on the superior court clerk (for delivery to the trial judge), five copies on the Supreme Court, and one copy on the public officer or agency when required by CRC Rule 8.29.
1. Review Relevant Court Rules:
CRC Rule 8.256 describes the procedures for the oral argument on appeal. Subdivision (b) notes that the appellate court clerk will send a notice of the time and place of oral argument to all of the parties at least 20 days before the argument date.
CRC Rule 8.256(c) explains the manner in which oral argument is conducted. It relates that the appellant has the right to argue first and may reserve time for rebuttal. Each side is allotted a maximum of 30 minutes to present an argument (CRC Rule 8.256(c)(2)). It further notes that only one counsel may argue for each represented party. Though the rules of court allow 30 minutes for argument, be aware that many appellate courts expect, encourage and even request counsel to designate and use less than full time allowed under the rules. Thus, unless your case is extremely complex, do not plan to present a 30 minute argument to the court.
CRC Rule 8.256 also describes the manner in which the appeal is submitted for decision.
2. Reread Everything and Update Research Briefs, and the Record and Key Cases:
It may be some time between when you draft your brief and when it is schedule for oral argument. Thus when you are informed the court has scheduled your appeal for oral argument, you should re-read the entire record including the lower court’s opinion, all of the briefs, and key cases. Make notes about the key points in the records, briefs and cases which you want to highlight in the oral argument.
Update your legal research. A few days before the argument shepardize, auto-cite and insta-cite the authorities cited in your brief. Also check for new authorities.
3. Figure Out What You Are Going to Say:
Make an outline of your brief. You are not presenting a speech to silent, captive audience. Your overarching mission at oral argument is to answer the court’s questions. Realize that you may not have 30 minutes to argue your case in front of the appellate court and that even if allotted 30 minutes questions from the bench may use up most of your time. Know that for the most part you will be relying on your brief to make most of your arguments. Anticipate that at oral argument you may not have the opportunity to revisit all of the points made in your brief. Consequently your outline (which should be no more than a page of notes) should include only those 2-3 “must win” points. Nonetheless you must also be prepared to address other points raised in your (or your opponent’s brief) if asked by the court.
Expect the unexpected. It is possible the panel of justices will have no questions for your. In that event, be prepared to briefly make your “must win” points and conclude. Do not feel compelled to use all of the time allotted. In alternative, consider informing the justices your appearance is simply to answer any questions they may have about your position or that of your opponent. If the justices do not have any questions, then very briefly remind the court of the relief you seek and sit down.
Also realize that questions have various purposes. Sometimes questions are directed to counsel and are intended to clarify the law, facts or an advocate’s position on an issue. Other times, while the question is directed to counsel, it is really intended to persuade another justice of the merits (or lack of merit) of a particular argument.
Finally, carefully review the key arguments in your opponent’s brief and be prepared to address them. Anticipate questions that the court may ask. Your opponent’s brief can usually inform you about areas where you will be questioned.
Rehearse the oral argument. Do not forgo the opportunity to polish and practice your oral argument skills. Enlist colleagues (who can be objective and detached) to read the briefs and serve as judges to “moot” you. Practice your argument in front of those colleagues and have them bombard you with questions. Rehearse your oral argument on videotape and review it to check for any distracting mannerisms or verbal tics. Practice listening to the questions and responding directly to them and then moving on to the points you want to assert.
5. Arrive Early and Learn Who Will Hear the Appeal:
Learn who will hear and decide your appeal. Review available judicial profiles of the justices on your panel and any relevant opinions they have authored. Speak to colleagues who have appeared before the justices. Colleagues may have valuable insight into how the panel interacts with each other and the advocates.
Before the day of your scheduled argument go to the courtroom and observe the layout of the room (location of counsel table and podium) and the procedures at the courthouse. Pay attention to where the lawyer’s check-in before the arguments and the manner in which the court calls the calendar. Figure out how long it takes you to get from your office to the courtroom and where to park when you arrive at the courthouse, so that when the day of the argument arrives you know exactly where to go and how long it will take you to get there. When it comes to the logistics of how to get to the courthouse and where to go once you arrive, leave nothing to chance.
If time allows, attend a session of oral arguments before your panel so that you get a feel for the amount of questioning you may face and to see the justices in action. Observing a session of arguments will also give you a feel for the acoustics in the courtroom.
Finally, on the day of the argument, make sure you bring the briefs, a copy of the record and key cases. Make sure you have something to eat before the argument and dress in business attire. Arrive at the courtroom early--at least one-half of an hour before the calendar is called-- so you have an opportunity to review the outline of your oral argument.
For additional and comprehensive discussions of appellate issues, law, and strategy, consider these sources:
California Civil Appellate Practice (Cont.Ed.Bar 3d ed. 2002)
Eisenberg, Horvitz & Wiener: Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2001)
Kline & Richland, West’s California Litigation Forms—Civil Appeals and Writs (1997)
9 Witkin, Cal. Procedure (4th ed. 1997) Appeal
California Appellate Practice Handbook, published by the San Diego County Bar Association
General information, local rules and forms at the Court of Appeal website: http://www.courtinfo.ca.gov/courts/.
The Court also maintains a website with information for each case, including a complete copy of the docket at: http://appellatecases.courtinfo.ca.gov.
1 This article is limited to matters arising in appeals filed in the California Court of Appeal. Issues, rules and procedures arising in federal appeals or criminal appeals in state of federal court are beyond the scope of this article. Likewise, while some of the ideas herein might also apply in the context of an appeal filed in the California Supreme Court, an appeal to the California Supreme Court involves additional considerations and appellate rules which are not addressed here. Moreover, this article is not an official legal reference nor may it be cited as legal authority. The ideas expressed in this article are merely suggestions, are not offered as legal advice and may not apply to every appeal. You must conduct your own legal research and evaluation of your case. Finally, although this article refers to various statutes, procedural rules and case, before relying on them you must make sure they apply to your case and have not been superseded.
2 Professor Rebecca Delfino teaches Appellate Advocacy at Loyola Law School and serves as the faculty advisor for Loyola's moot court program. Professor Delfino also works as a Senior Appellate Attorney for the California Court of Appeal.