Attorney Tips

Tips for Happy Clerks in the Third & the Fifth District Court of Appeal

Third District Court of Appeal

Big Picture Items

• Focus arguments on the strongest points only. Raising weak points detracts the reader from the stronger ones, diminishes the author’s credibility, and diverts the advocate’s resources from a more efficient allocation.
• If counsel believes the Chapman standard of prejudice applies, please fully explain why. Use more than just a string citation or a simple assertion that the alleged error violates appellant’s constitutional right to present a defense.
• For insufficiency of evidence arguments, present all the evidence in the light most favorable to the verdict. Never misstate the facts or the record or omit facts.
• Spend time making a strong prejudice arguments. Marshal all the facts in support of reversal as this is what the outcome of the appeal may well turn on.
• Read the applicable statute. The plain meaning rule is a unifying force on the court.
• Hidden and undeveloped issues will be deemed forfeited. Do not lump several arguments together under one heading. Not only does this violate the rules of court and of appellate practice, but it also leads to counsel not fleshing out each distinct argument.
• Make use of the power of primacy. Place your strongest arguments first.
• Facts must be accurate. Misstating the facts can impact your credibility.
• Trim the factual statements when the issues raised are modest and can be resolved without a detailed factual recitation. Plan how you are going to present the facts. Witness by witness is the biggest mistake. Try to tell a developing story to both support and entice your reader to agree with your points. Include from the clerk’s transcript only what is needed for the issues; likely not all of the procedural steps in the trial court pertain to the issues you will focus on for appeal.
• Be professional in your presentation. Use civility in your arguments. Do not disparge the lower court or opposing counsel. Overzealousness in this regard can have the opposite reaction you wanted from the reader, and undercuts your arguments.
• Overstatements are not your friend. Phrases such as, “This is the worse case ever
  seen . . . ,” challenges the reader to disagree (because they’ve seen a lot more).

Procedural Issues

• An introductory paragraph at the beginning of the brief laying out your arguments can be helpful. It should be a “road map” to where you are going. But keep it clear with reasoned points, not full arguments here.
• Double check the accuracy of the tables. It can be frustrating to the reader to hunt through the brief for the correct page(s).
• When presenting the facts of the case, there should be a citation to the record after every sentence, rather than a single, multi-page citation at the end of a paragraph.
• Omit excess facts unrelated to the issues raised, especially in dependency cases.
• Subtitles in arguments are often helpful to guide the reader through the argument.
• Provide page point citations to legal cases.
• If citing to U.S. Supreme Court cases, include the Lawyer’s Edition parallel citation because that is the report they have on the shelves.
• When citing to instructions, citation to the RT as well as the CT. Judicial attorneys rely on the RT because that is how the court actually instructed the jury on the law.
• Use spell check and proofread for grammar.
• Use plain English.
• Every reply brief filed really is read and considered.
• Footnotes should not distract the reader. Place them where they should go, but better placement is at the end of the paragraph rather than mid-paragraph or mid-sentence. Do not put an issue, an alternative issue, or a critical point in a footnote! One approach is to ask yourself, “if the reader did not read the footnote, would anything be missing from the argument?”
• This court does not accept the footnote-citation format for briefs as suggested by Brian Garner. (The justices tried this and found that bouncing in and out of the text to read the footnote citation was too disruptive.)
• Citation hierarchy: list them in order of highest to lowest. A U.S. Supreme Court case citation always comes first, etc.
• Use of black letter law: precisely state it or summarize it. It is not necessary to repeat it with multiple phrasing from several sources on the same point.
• Use of “appellant,” “Mr. Smith,” or “witness”? Choose one and then stick with it.

Oral Argument

• Oral argument may be the first opportunity that the three justices for your panel can focus on your case all at the same time. It may be helpful to start with a roadmap or introduction of the arguments you intend to cover. The court will redirect you if they want you to cover something else.
• Have prepared remarks but also let go of them if the questions begin. The whole point of oral argument is have a discussion with the justices, so go with the flow. Don’t put them off with, “I’ll get to that in a minute.” If the court is wrestling with something, they will ask a question about it; be sure to answer it. When answering, don’t start with the caveats first; frequently people never get back to their main point.
• Don’t switch tactics at oral argument from your briefing.
• Don’t re-state the facts at oral argument. The court will know the facts. Go straight to the issues to open a discussion with the court.
• Use minimal notes and papers at the podium. A huge pile is distracting to you and the court.
• Address the justices formally at oral argument. No “you folks” or “you guys.”
• Never demonize the lower court at oral argument. You will lose all three justices on the spot. If you need to emphasize a particular comment or ruling, quote it directly from the transcript rather than adding a “spin” to it. The facts can speak for themselves.
• If this is your first oral argument, allow yourself some personal professional development time by watching other oral arguments. Observe the different styles.
• In oral argument rebuttal, make only relevant points and then sit down. Don’t repeat yourself.
• Oral arguments are taped at the Third District so be sure to stay at the podium and don’t wander off. The court does use the tapes.
• If your time is used up by questions from the panel, this is likely more important than your rebuttal time, but often the presiding justice will still give you the rebuttal time you reserved at the start. Just ask, “May I . . . ?”

Fifth District Court of Appeal

Big Picture Items

• Read the pertinent statutory provisions that define the elements of the offense before reviewing the record, and keep them in mind when looking for issues.
• Do not ignore authority contrary to your position. Acknowledge it and explain why it’s wrong.
• If making an argument simply to preserve it for federal review, say so up front.
• When analyzing a statute’s provisions, counsel should discuss any recent California Supreme Court decisions on point. Don’t ignore controlling authority, relying instead on old, overruled Court of Appeal decisions.
• Use the reply brief to truly respond to the respondent’s brief. Unless respondent has misread your argument, counsel does not need to begin by saying, “In the AOB, appellant argued…” Judicial attorneys have read the AOB and know what you have argued. They want to hear why the AG was wrong.

Procedural Issues

• Avoid “soap opera briefing.” The court is burdened with a great deal of unnecessary verbiage in its daily work. Trim down the factual presentation when the issues raised are modest and can be resolved without a detailed factual recitation. Save the lengthy and elaborate statements of facts when they will be used as spring boards for the legal issues, and when they suggest a miscarriage of justice in the trial court.
• Always provide a page point reference and make sure the citation is correct. Judicial attorneys will rarely take the time to try to find a case via case name, etc. If you want the court to read the case, provide the right citation.
• Proofread.
• Avoid repetition.