CALIFORNIA APPEAL

Appointed Appellate Counsel To Receive IOUs

Despite long hours of negotiation over the weekend, it appears that California court-appointed appellate attorneys will start getting paid in IOUs starting on Thursday. 

When the state last issued IOUs, also known as registered warrants, in the early 1990's, many banks honored them and allowed recipients to exchange them for cash. But they’re under no obligation to do so this time around. And this time the IOU recipients will include public agencies, not individual employees.  So far, there is no list of banks who have committed to accepting the IOU's leaving many appellate attorneys concerned about their immediate financial future.

If the State's cash deficit/budget impasse continues, court appointed appellate counsel may have to seek out non-traditional loans.  Daniels Capital Corporation and Esquire Advance both offer funding to court appointed attorneys waiting to receive funding from the State or Federal government.  While neither company is offering to advance funding for free, the companies provide a lifesaver to dedicated court appointed appellate attorneys who cannot wait for our State to stop playing political games.

Why Hire An Appellate Attorney Pre-Trial?

Should you hire an appellate attorney before trial even begins?  The short answer is - yes!  An appellate attorney can provide litigators with valuable services pre-trial, during trial, and post-trial.  Scott Smith,in his article "When An Appellate Lawyer Joins The Litigation Team," details the various benefits a litigator will receive by bringing an appellate attorney into the litigation team.

Pre-trial, an appellate attorney can assist trial counsel by preparing the motions in limine.  Well researched and drafted pre-trial motions, not only greatly increase the chances of success, but also the motions will help set up the issue for appeal - should counsel be unsuccessful at trial.

During the trial, the appellate attorney can work on drafting jury instructions and verdict forms.  Post-trial, appellate counsel can draft necessary post-trial motions.

If an appeal is necessary, with an appellate counsel as part of the litigation team, appellate counsel will be immediately ready to offer a reasoned opinion as to potential appellate issues and can immediately get the appeal underway.  

While Scott Smith's article was written from a defense point of view, the article is a must read for both plaintiff's attorneys and defense attorneys facing an upcoming trial.

Necessity Of Record Citations

Counsel works hard to perfect the record for the appeal.  They ensure that the appellate court receives the reporter's transcripts from the proceedings where the legal error occurred as well as the necessary trial motions and trial court orders. Now, with the record before the Court, counsel endeavors to craft an appellate brief.  So focused on the legal argument, counsel fails to provide citations to the record counsel so craftily prepared. 

Many attorneys believe, "What's the harm, the appellate court has the record, the Court can read the record for itself."  However, any attorney holding such a belief runs the risk of waiving their client's appellate argument in its entirety and/or the imposition of sanctions.  (Cal. Rules of Court, rule 8.204(d); Century Surety Co. v. Polisso(2006) 139 Cal.App.4th 922, 956, citing Miller v. Superior Court(2002) 101 Cal.App.4th 728, 743.)

While counsel may have provided the Court of Appeal with the relevant portions of the record, "it is counsel's duty to point out portions of the record to support the position taken on appeal."  The appellate court does not have the time, nor the duty, to search the record on its own seeking error.  (Kinney v. Overton (2007) 153 Cal.App.4th 482, 497.)  The reason behind this rule is clear, the California Court of Appeal receives nearly 25,000 filings each year.  With 25,000 case filings each year, the appellate court is without the time or resources to read through the entire record on appeal in each and every matter before the Court. 

In order to protect the client's interests, and to best advocate for relief on appeal, appellate counsel needs to take care to guide the Court with clear citations to the record for each and every factual matter relevant to the legal issue argued by counsel.  Without clear and proper citations to the record, counsel greatly reduces his/her success on appeal and enhances the chance for a very disappointed client.
 

Who's In Charge?

Who decides what issues to present on appeal? The client or the attorney?  When the client and the attorney disagree regarding what arguments to present (if any) on appeal, some attorneys may be inclined to present an argument in a brief to appease a client.  If you are in this situation, be very careful before you submit that appellate brief.

Appellate counsel must act as an uncompromisingly vigorous advocate. (ABA Model Rules of Prof. Conduct (ABA Model Rules), Canon 7, EC 7-1 [“the duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law”].)

However,counsel has a duty as an officer of the court not to pursue frivolous issues. (CA. Bus. & Prof. Code, § 6068, subd. (c); ABA Model Rules, Canon 7, DR 7-10 [in representing client, a lawyer may not “[k]nowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law”].)

Therefore, appellate counsel’s ethical and professional responsibilities require counsel to utilize his or her trained judgment to review the record, determine the strategy for the case, and select the issues to be raised on the appeal. While counsel has a duty to consult with his client, appellate counsel is not required to raise every issue suggested by the client. (Jones v. Barnes (1983) 463 U.S. 745,751.) This is because it is counsel’s duty, not the client’s, to make the ultimate decision as to which issues will be raised.(People v. Davis (1987) 189 Cal.App.3d 1177, 1188.) In fact, it is unethical for counsel to act as a mere “‘mouthpiece’ for the client, . . .” (ABA Standards for Criminal Justice (2nd ed. 1986 Supplement) Comment to Standard 4‑1.1, p. 4‑ 9.)

With these principles in mind,what happens if an attorney disregards his/her duty to the court in an effort to please the client.  Since 1851, California appellate courts have been statutorily authorized to impose sanctions for the prosecution of frivolous civil appeals. (See Stats. 1850–1853, ch. 123, § 133, p. 542.) Pursuant to CA Code. Civ. Pro., § 907, if a reviewing court finds an appeal “was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.”

An attorney who presents an argument on appeal simply to appease the client, actually provides the client a disservice.  The frivilous appeal subjects the client to having to pay not only the opposing party's attorney fees and costs, but also to additional sanctions ordered by the court.  In light of the financial implications to your client, as well as the ethical implications as an officer of the court, it is the appellate attorney's responsibility to carefully determine which issues, if any, to present on appeal.

Advising Your Client - Pursuing An Appeal

Your client is unhappy with the Superior Court ruling.  Is their ego hurt? Do they really believe that there was a legal error in their case?  These two questions must be presented to your client before they undertake the decision of whether or not to pursue an appeal.  Statewide, statistics show that 85% of all appeals result in an affirmance - i.e., your client gains nothing by appealing his/her case.

Civil appeals, as compared to criminal appeals, have a better shot at success with a 20% reversal rate as compare to a 6% reversal rate for criminal appeals.  Regardless of whether your client wants to appeal a civil judgment or a criminal judgment, your client should be apprised of the relative risks benefits of pursuing an appeal.

In civil matters, if your client is unsuccessful at the Court of Appeal, the client could not only be liable for his/her attorney's fees in pursuing the appeal, but he/she could also be ordered to pay the costs of the opposing party's attorney's fees in defending the appeal. With civil appellate attorneys charging between $10,000 - $100,000 to defend an appeal, your client should be apprised of the potential downside of pursing an appeal.

In criminal matters, a criminal defendant as a matter of right is entitled to have his/her felony conviction reviewed by the Court of Appeal.  However, as stated above, criminal appeals only have about a %6 reversal rate.  Many criminal appellate attorneys require at least a $25,000 retainer fee to commence work on an appeal following a criminal jury trial.  Because of the high costs of pursuing a direct criminal appeal, yourclient is indigent, you may want to advise your client about the high quality representation your client can receive through the appointed appellate counsel program.  The attorney eligible to receive appointed criminal appellate cases are highly qualified an monitored by one of the six Appellate Projects.  For more information on the appointed counsel program for indigent criminal defendants, check out www.appellatedefenders.com. 

I represent clients on both civil and criminal appeals in California.  Some of my cases are appointed criminal appellate matters, while others are privately retained appeals.  The goal for both is the same - ensuring that my clients received a fair trial and that the Superior Court's applied the law equally without regard to a person's financial status.

New Appellate Judicial Council Forms - Effective 1/1/2009

Time to Update your Form Library!

Effective January 1, 2009, a slew of new and updated California Judicial Council court forms go into effect.  Among the new and updated court forms are a batch of forms relevant to the appellate practitioner.  Most of the appellate form changes effect appeals from limited civil cases.  If you will be representing someone on a appeal from a limited civil case, be sure to check out the new forms for filing the notice of appeal, designating the record, and for filing the Proposed Statement on Appeal.  

Another new form which may be helpful to the attorney who does not regularly assist clients with appeals from limited civil cases is a new 13-page information packet regarding appellate procedures for appeals from limited civil cases.  

A complete list of new, revised, and renamed Judicial Council forms, including conversion information (from old form names to new form names, where applicable) is available on the "Latest Changes" page at the Judicial Council website.

Holiday Gifts - Part II

Brian Garner, a well known author of books and essays on legal writing, just released his latest compilation on Writing, Language and Style. 

In Garner on Langage and Writing, Bryan Garner compiled over a hundred of his finest essays on writing, language, and style.  The book includes sections on legal language and lexicography, how to write successfully as a professional, and concludes with recommendations for making oneself a great writer, grammarian, and stylist. 

The book is currently released in hardcover through the American Bar Association book store.  ABA members can purchase the book for $54.95.  The book will also be available on Amazon.com on January 7, 2009. 

A Holiday Gift For The Appellate Attorney

A great gift for the "legal writer" is The Modern Rules of Style, by Paul Marx.  

According to the American Bar Association, "The Modern Rules of Style is a brief, elegant primer on how to write vivid, interesting sentences. You'll discover how to spice up prose, building great paragraphs, and use compelling sentences. This book provides hundreds of examples of how to apply these lessons,  as well as many examples of how NOT to write."  The book is just $29.95 from the ABA bookstore.

Did You Resolve To "Get Organized"?

Have you been keeping up with your organizational goals for the New Year?  Many attorneys vow to "Get Organized."  However, what many people forget is that "Getting Organized" is not is not a goal but a continual process.  Here are ten tips to help you along the path towards perpetual organization.

1. Purge your files
Look around your workspace.  Do you see piles of paper?  Those piles are slowing you down!!!  Even the piles of paper "neatly" handing in file folders clog your productivity.  Set aside 15 minutes every week to go though your paper files/folders (even the digital files), elminate the surplus, consolidate sticky notes and paper scraps on your master todo list (see below), and recycle the paper that you no longer need.

2. Create A Master Action List
Sticky notes, paper scraps, business cards, phone memos.....get rid of it!  Whether you use paper or a computerized action list, create a master "action" list to record all of the phone calls, and projects that you need to work on.  A master action list will eliminate the clutter from your desk and your mind.

3. Clean Out Your Inbox
Don't let your inbox become a glorified "paper holder".  Each day, go through your inbox, complete the items that can be done quickly, recycle the items not needing your attention, and schedule the items on your master list that need to be addressed at a later time.  The important thing is to make a decision on each item and then file the document away.

4. Read Your E-Mail One Time - And Only One Time
Treat your E-mail in-box just like your paper in-box.  Read it & act on it.  Action means either deleting it or assigning the E-mail to your action list.

5. Don't Over-Schedule
Type-A personality types tend to overestimate how much they can get done in a given day.  When you schedule your tasks/appointments for the day, be careful to be realistic on how long it will take you to perform each task and the time necessary to transition between tasks.  Use your calendar to schedule like items together to maximize efficiency and to block out periods of uninturrupted time for tasks requiring indepth thought.

The time to organize starts today.  Purge, recycle, make lists and plan.  But remember -- the true goal is not to "get organized" but is to live your life in an organized manner.  Use today to start running your life rather than letting your life run you.

Rules for Writers

I was recently referred to the works of a great writer and columnsit, William Safire.  He is opinions on writing style are quoted on websites across a range of genra.  He is well known for his list of "rules for writers".  Here are a few of his rules as posted by the Network of Women in Media

1. Remember to never split an infinitive.
2. The passive voice should never be used.
3. Do not put statements in the negative form.
4. Proofread carefully to see if you words out.
5. If you reread your work, you can find on rereading a great deal of
6. repetition can be avoided by rereading and editing.
7. A writer must not shift your point of view.
8. And don't start a sentence with a conjunction.
9. Don't overuse exclamation marks!!
10. Place pronouns as close as possible, especially in long sentences, as of 10 or more words, to their antecedents.
11. Writing carefully, dangling participles must be avoided.
12. If any word is improper at the end of a sentence, a linking verb is.
13. Take the bull by the hand and avoid mixing metaphors.
14. Avoid trendy locutions that sound flaky.
15. Everyone should be careful to use a singular pronoun with singular nouns in their writing.
16. Always pick on the correct idiom.
17. The adverb always follows the verb.
18. Last but not least, avoid cliches like the plague; seek viable
19. alternatives.
20. Never use a preposition to end a sentence with.
21. Avoid anoying alliteration.
22. Don't verb nouns.
23. Don't use no double negatives.
24. Make each pronoun agree with their antecedent.
25. When dangling, watch your participles.
26. Don't use commas, which aren't necessary.
27. Verbs has to agree with their subjects.
28. About those sentence fragments.
29. Try to not ever split infinitives.
30. Its important to use apostrophe's correctly.
31. Always read what you have written to see if you've any words out.
32. Correct spelling is essential.
33. Proofread you writing.
34. Between you and I, case is important.
35. Verbs has to agree with their antecedents.