November 15, Moderator: Julie Gromer Director of Webinars, LJN s Web Audio Conference Division

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1 Appellate Practice Essentials November 15, 2011 Moderator: Julie Gromer Director of Webinars, LJN s Web Audio Conference Division jgromer@alm.com

2 David Axelrad David Axelrad is a partner with the civil appellate law firm of Horvitz & Levy LLP. He is a California State Bar Certified Appellate Specialist, and has handled hundreds of civil appeals in state and federal courts in his nearly thirty years of appellate practice. Prior to joining Horvitz & Levy, Mr. Axelrad was an Assistant to the Director of the Federal Trade Commission's Bureau of Consumer Protection, and a Staff Attorney for the U.S. Court of Appeals for the Ninth Circuit. Mr. Axelrad has authored articles for legal publications, co-authored appellate practice guides for Matthew Bender and the California Continuing Education of the Bar, and lectures frequently on the appellate process. He is currently an Adjunct Professor at Loyola Law School in Los Angeles.

3 Richard Faulk Richard Faulk is a partner in Gardere Wynne Sewell LLP with offices in Houston, Dallas and Austin, Texas and Mexico City.. He chairs the firm s Litigation Department and Environmental Practice Group. Mr. Faulk was one of the first Texas lawyers certified as a specialist in federal and state appellate practice in His trial and appellate practice includes work in Texas, the Fifth and Ninth Circuits, and before the United States Supreme Court. Mr. Faulk received the 2009 and 2003 Burton Awards for Legal Achievement at the Library of Congress in Recognition of Exceptional Legal Writing. In 2011 he was recognized as one of the Top 100 lawyers in Houston. He is the author of the Writing Appellate Briefs chapter in Law Journal Press s book Appellate Practice in Federal and State Courts.

4 Overview of the Appellate Process The civil appellate process is conservative and restrictive and involves: Limited review of a fixed record Searching for prejudicial error In order to prevent a miscarriage of justice No reweighing of evidence or retrial of case Presumption in favor of the prevailing party Presumption in favor of the trial court s order

5 Appellate Court Structure Supreme Court Intermediate Appellate Courts Trial Courts

6 Appellate Court Structure Trial courts fact finding Intermediate appellate courts error correcting

7 Appellate Court Structure Supreme Court policy-making Public policy issues Institutional issues Unresolved issues of law Conflicts among intermediate appellate courts

8 Preserving the Record Record = the known universe for the appellate court No consideration of: Evidence not introduced Words not recorded

9 Key Record Preservation Techniques Offers of proof Jury instructions Motions in limine Complete transcription of proceedings Complete objections Asserting all applicable legal theories

10 Interlocutory Review- Writ Proceedings Discretionary review Requirements: Clear error Irreparable harm Inadequate alternative remedy Strict adherence to technical rules

11 Key Record Preservation Techniques Post-trial motions Essential to preservation of certain issues Example: Sufficiency of the evidence in the Ninth Circuit

12 Key Procedural Milestones Stay of enforcement There is no constitutional right to appeal and consequently no impediment to conditioning the right of appeal on the provision of security to protect the judgment creditor.

13 Key Procedural Milestones Notice of appeal The simplest yet most important document in the appellate process.

14 Key Procedural Milestones Designation of the record When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two. Protect Our Water v. County of Merced (Calaveras Materials Inc.) (2003) 110 Cal. App.4 th 362,364.

15 Evaluating an Appeal- Strategic Considerations What are the economics? Do the issues transcend the facts of the case? Is this the best case? Will the decision set precedent?

16 The Role of Appellate Counsel In addition to the traditional briefing and argument of an appeal, appellate counsel can provide: Trial Court Consultation Issue Identification Issue Preservation Issue Strategy

17 The Role of Appellate Counsel Evaluation of Potential outcomes Settlement options

18 Brief Writing In the appellate courts of the twenty-first century, the written brief is the key to success on appeal. The days in which oral argument determined the outcome are disappearing. Briefs have two principal purposes: to persuade to help the court prepare a decision favorable to your client

19 Brief Writing ABCs of good legal writing: Accuracy Ethical requirement: A lawyer shall not knowingly... make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.... ABA Model Rule 3.3(a)(1); see Cal. Rules of Professional Conduct 5-200(B). Good practice: establishes your credibility with the court Brevity Clarity

20 Brief Writing The lawyer s task on appeal includes: Careful analysis of considerations not applicable in trial court, particularly standard of review and prejudicial error. Careful selection of issues. Factual, evidentiary and other issues that may have been very important in the trial court may no longer be viable on appeal. Explanation of how the case fits within existing precedent and the larger implications for the next case down the road.

21 Brief Writing Techniques for good brief writing: Outline arguments in advance. Write major headings in advance. Revise outline during the writing process. Draft, set aside, then self-edit. Seek editorial comments. Self-edit again.

22 Components of briefs Question Presented Frame question evenhandedly in terms of the facts of the case but in a way that compels a favorable answer. Incorporate the standard of review into the question, if possible. ( Whether the trial court abused its discretion.... ) Keep the question as short as possible.

23 Components of briefs Introduction Summarize and preview the legal arguments. Begin the process of persuading the court. Succinctly frame the issue(s). Explain how the case got to the Court of Appeal. Include sufficient, but not too much, detail. Preview every major point in the brief.

24 Components of briefs Statement of Facts Often more important than legal argument. The appellate court should want to rule for you after reading the facts. Facts should reveal equities and point the way to proper disposition. Facts must comply with applicable standard of review.

25 Components of briefs For a substantial evidence attack, include all material evidence on point. For an attack on judgment of nonsuit, focus on evidence most favorable to appellant. For a summary judgment appeal, acknowledge factual inferences favor non-moving party. For an instructional error appeal, recite the facts favorable to appellant. To determine prejudice in light of entire record, recite all pertinent facts.

26 Components of briefs Support every factual assertion by citation to the record. (See Mitchel v. General Electric Co. (9th Cir. 1982) 689 F.2d 877 [dismissing appeal for failure to cite record]; Cal. R. Ct (a)(1)(C)). Ensure scrupulous accuracy in citing to the Ensure scrupulous accuracy in citing to the record.

27 Components of briefs Don t misstate or omit material adverse facts. First, it s unethical. See Model Rule 3.3(a)(1) [ A lawyer shall not knowingly... make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.... ] Second, it s a bad tactic. It s better to confront bad facts so you can present them in best light, defuse the ability of your opponent to exploit them, and establish your credibility with the court.

28 Components of briefs Tell a story with a beginning, middle and end. Don t argue in the Statement of Facts. Omit hyperbole, adverbs, and adjectives. Let facts speak for themselves through organization and juxtaposition. Use subheadings to guide the reader.

29 Components of briefs Headings Should provide an outline of the brief. Should be framed in terms specific to the case, not as abstract propositions of law. Avoid: THE UNDERLYING DEFAULT JUDGMENT AGAINST AN UNDERINSURED MOTORIST DOES NOT BIND AN UNDERINSURED MOTORIST INSURER. Better: THE UNDERLYING DEFAULT JUDGMENT AGAINST JONES DID NOT BIND ABC INSURANCE COMPANY.

30 Components of briefs Pay attention to the order of the issues. Lead from strength. Within each issue, discuss the law, then the facts, then the prejudicial effect of the lower court rulings. Address authority sufficiently and accurately.

31 Components of briefs Address adverse authority. Model Rule 3.3(a)(2): A lawyer shall not knowingly... fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel....

32 Components of briefs Do not mischaracterize the law, e.g., by misquoting, taking statements out of context, selectively using ellipses, deleting emphasis. (See, e.g., Precision Specialty Metals, Inc. v. U.S. (Fed. Cir. 2003) 315 F.3d 1346, [reprimand of attorney affirmed where her omissions from and excisions of judicial authority mischaracterized what those courts had stated ].

33 Components of briefs Conclusion Tell the court precisely what relief you are seeking. A few sentences are usually sufficient. Do not repeat arguments in the Conclusion.

34 Additional considerations for respondent s briefs Write an assertive, affirmative brief, independent of the opening brief. Avoid a defensive tone. Do not feel compelled to follow appellant s order of the issues set by appellant. Emphasize favorable standard of review. Emphasize alternative bases for affirmance. Demonstrate why trial court reached right result.

35 Additional considerations for reply briefs Don t rehash the opening brief. Emphasize key concessions or admissions by the respondent. Reply to respondent s key points, and reinforce your principal points.

36 Amicus Curiae Briefs An amicus brief is one submitted by a person or entity who is not a party to the appeal but has an interest in the issues presented and their proper resolution. An amicus brief may be solicited by the court or by a party, or may be initiated by the amicus itself.

37 Amicus Curiae Briefs With rare exceptions, no court is required to accept an amicus brief. Amicus briefs are most commonly filed in the appellate courts, because the decisions of those courts can establish legal precedent that affect nonparties.

38 Amicus Curiae Briefs At the certiorari or review stage (state or federal court of last resort), the purpose of an amicus brief is to demonstrate the importance of the case and thereby help persuade the court to hear the case.

39 Amicus Curiae Briefs At the merits stage, the purpose of an amicus brief is: To promote the outcome favored by the amicus while helping the court to avoid error. To present the court with information or arguments not developed by the parties. To educate the court concerning the interests of a particular industry or group. To discuss legislative history or to place the issue in historical context.

40 Do amicus briefs make a difference? Are they worth the cost and effort? The majority opinion in Roe v. Wade, 410 U.S. 113 (1973) referred to positions urged by amicus groups and relied heavily on historical, social, and medical data presented by amici. In Grutter v. Bollinger, 539 U.S. 306 (2003), the Court upheld the race-based admissions policy of the University of Michigan Law School; at oral argument and in the Court s decision, the justices referred to and relied on the amicus brief of retired military officers.

41 Do amicus briefs make a difference? Are they worth the cost and effort? In re Marriage Cases, 43 Cal. 4th 757, 791 n.10 (2008): Amicus curiae presentations assist the court by broadening its perspective on the issues raised by the parties. Among other services, they facilitate informed judicial consideration of a wide variety of information and points of view that may bear on important legal questions.... The court has benefited from the considerable assistance provided by these amicus curiae briefs in analyzing the significant issues presented by this case.

42 What should a party consider when recruiting amici or when approached by a potential amicus? Is the potential amicus knowledgeable on the subject? Is the potential amicus respected, well-liked? Will its mere identity likely advance or hinder the cause? Analogous to an endorsing group in a political campaign. Will the court view the amicus as credible? Professor Paul Collins has opined that litigation experience of the attorneys filing the brief and the prestige of amicus participants may be vital to success in the [U.S. Supreme] Court

43 What should a party consider when recruiting amici or when approached by a potential amicus? Edwards v. Aguillard, 482 U.S. 578 (1987) [Constitutional challenge to a Louisiana statute that required teaching creationism in public schools]. Amici supporting the challengers were 72 Nobel-prize-winning scientists, 17 state academies of science, and 7 other scientific organizations.

44 What should a party consider when recruiting amici or when approached by a potential amicus? If Nobel laureates are not available, professional or trade associations may be the next best alternative. Associations may have more credibility than individual members.

45 Oral Argument

46 How to Lose An Oral Argument 1. You know what you said in your briefs, so no preparation is necessary just wing it. 2. If you can t wing it, write your argument out word for word and read it to the court, preferably in a monotone. 3. During the argument, overstate the strength of your case, explaining how any dolt can see your client s case is ironclad.

47 How to Lose An Oral Argument 4. When a judge takes the bait and starts asking questions about the weakest part of your case, respond, I have just a few more sentences to complete my summation, and then I ll be happy to answer your question. 5. Then, never get back to the judge s question. 6. If the judge is persistent, stonewall. Tease the judge, equivocate, make him rephrase his question. 7. Then, ridicule the court s questions: I was afraid the court would get sidetracked down a blind alley by this red herring.

48 How to Lose An Oral Argument 8. Cut off the judge s question, giving yourself an opportunity to answer the wrong question. 9. When the judge points out you haven t answered his question, respond, Well, if that s not the question you were asking, it should be. 10. If all else fails, start making a jury argument based on facts that don t appear in the record. Oral argument can be tiring and the judges need a little comic relief once in a while.

49 The Primary Goals Of Oral Argument Identify and address the court s concerns Answer the court s questions Focus on the decisive points Present the big picture Discuss post-briefing developments (factual or legal)

50 What Oral Argument is Not For Repetition of the briefs or rehashing the facts Raising new issues Speech reading

51 Preparing For Oral Argument Update cases and statutes Read briefs and prepare complete summary of argument Re-learn facts and the law and annotate outline Know your panel Moot court learning to handle questions from the bench

52 Petitions for Rehearing When a distinguished federal appellate judge was asked by an eager, young attorney what advice the judge would give to a lawyer considering a petition for rehearing, the jurist responded, Don t.

53 Review By Courts of Last Resort What interests the courts of last resort? Cases of broad precedential significance Splits of authority Singularly important questions

54 Review By Courts of Last Resort Conflicts with decisions of the court of last resort Cases implicating the supervisory power of the court of last resort

55 Q&A

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