CALIFORNIA APPEAL

Work-Life Balance

It seems as if lawyers are always searching for a balance between the demands of a law practice and the need to have a healthy life "outside" of work.  Appellate attorneys are no exception to this constant struggle.  I recently discovered a great blog designed to help attorneys obtain that ever-elusive work-life balance.  JDBliss provides articles, tools, and success stories for attorneys looking to obtain a better balance between work and play.  Recently, there was a great article that offered an exercise for gaging your degree of balance.  After the stress of the holidays, I think this exercise is something I need to slow down and take.

The Gift of Writing

Neet a last minute holiday gift?  Look no further - give your appellate practitioner a copy of the book "Writing Tools" by Roy Peter Clark.  (Available here at Amazon.com)   The Boston Golbe counts "Writing Tools" as among their list of books to buy this year. 

Clark stated publicly on his web site that he would be happy to inscribe copies of the book. If you buy the book as a gift, send him an E-mail message at rclark@poynter.org, and he will write a message in return to the recipient.

Calling All Trial Lawyers - Hire Your Appellate Attorney Now

Leane Capps Medford of Rose•Walker, LLP wrote an excellent article for the ABA Council Of Appellate Lawyers monthly E-zine, Appellate Issues on when trial counsel should hire an appellate attorney. 

In her article, Preventive Medicine for Your Case: See Your Appellate Lawyer Long Before Trial, Ms. Capps argues that all too often, trial lawyers bring their cases to appellate lawyers late in the litigation process.  Unfortunately, by then, it may be too late for appellate counsel to "save" the case.  After the litigation process is over, pleadings and positions have been set in stone and legal issues may have been waived.  For those reasons, getting appellate attorneys involved from the beginning of the case can help trial counsel preserve issues, frame better arguments, and help trial counsel better develop the case.  So, how does a trial lawyer effectively use an appellate attorney during the litigation process. In, her article, Ms. Medford suggests the following:

• Use an appellate lawyer to analyze your claims and damages.
• Use an appellate lawyer to identify legal trends that could impact the case.
• Use an appellate lawyer to help focus your discovery efforts.
• Use an appellate lawyer to create better trial motions and briefs.
• Bring an appellate lawyer to critical hearings before trial to build credibility and assist the court.

New Publication Rules

On December 12, 2006, the California Supreme Court announced new rules concerning the publication of opinions.  Previously, California Rules of Court, rule 976, dictated a presumption against the publication of Court of Appeal opinions.  The revised rules have changed this presumption to "encourage the publication of all appellate opinions."  The Supreme Court adopted these amendments based on the final report and recommendations of its Advisory Committee on Rules for Publication of Court of Appeal opinions.  The goal by changing rule 976 is that the amendment will

"will clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process."

The new publication rules go into effect April 1, 2007. 

Tips For Better Oral Arguments

Oral Argument Tips - A View From the Bench

At a recent seminar led by a panel of justices from the California Fourth District Court of Appeal, the justices provided a "view from the bench" on what attorneys can do to improve their effectiveness at oral argument.

1. Watch Oral Arguments - go to the Court of Appeal and watch other attorneys present oral argument.  Learn from observing what works and what does not work at the Court of Appeal.
2. Remember Where You Are - appearing before the Court of Appeal differs greatly from oral advocacy at the trial court level.  Adjust your presentation and demeanor accordingly.
3. Don't Argue - Your arguments were made in the appeallate briefs.  The purpose of oral argument at the Court of Appeal is to assist the Court. 
4. Answer The Court's Questions:  Questions from the bench are a good sign.  Directly answer their questions and/or address their stated or implied concerns.  Don't stick to any "script".
5. Monitor Your Tone of Voice - Keep the anger and/or sarcasim out of your arguments.  Getting emotional or sarcastic at oral argument does not assist your client and only distracts the Court from the substance of your arguement.
6. Prepare, Prepare, Prepare - Be prepared when you arrive at oral argument.
7. Stay Calm - Oral argument is fun and intellectually stimulating.  Rember to breathe, slow down your rate of speech, and don't grip onto the podium.  The Justices understand attorneys get nervous appearing before the court.  Just relax and remember, you are there to help the court better understand the nuances of your arguments.

Gifts For Appellate Practitioners

Looking for a useful gift for the budding appellate practitioner, look no more.  Here is a book that will help your protege (or you) on the path to great appellate advocacy.  Winning on Appeal, by Hon. Ruggero J. Aldisert, is one of the best texts available on the practical aspects of presenting an appeal.

Throughout Winning on Appeal, nineteen current chief justices of state courts, nine chief judges of U.S. Courts of Appeals, more than twenty U.S. Circuit judges, and state appellate judges contribute their thoughts on how to write a brief and how to argue a case-information that is not available in any other publication or resource. There is even a 3-page list of the common errors made in briefs that should be torn out and mounted to your computer as you are writing.

50 Writing Tools

Roy Peter Clark, is a writing coach at the Poynter Institute and the author of "Writing Tools: 50 Essential Strategies for Every Writer.  On his blog he provides a "quick list" of those 50 tools.  Many of these tools & tips are extremely applicable for appellate writing.  Here are just a couple of tips from Clark's list:

• Order words for emphasis. Place strong words at the beginning and at the end
• Take it easy on the -ings. Prefer the simple present or past
• Prefer the simple over the technical.  Use shorter words, sentences and paragraphs at points of complexity.
• Tune your voice. Read drafts aloud.
• Put odd and interesting things next to each other. Help the reader learn from contrast.
• Turn procrastination into rehearsal. Plan and write it first in your head.
• Break long projects into parts. Then assemble the pieces into something whole.

Finding References To Define Legal Phrases

An often pivital point in an appellate arguement is the knoweldge of how a specific term, like "due diligence", has been previously interpreted.  Unfortunately, because phrases are so frequently used and so rarely defined, finding quality references that define a term can be a time consuming and frustrating task.  Recently, the folks at LexisNexis offered a great tip on how to make this search much easier.  "When you search for references that define a term, include words that often surround definitions. These are some of the more common terms that surround definitions:

• construe, construes, construing
• define, defined, definition
• deem, deemed
• explain, explanation, explaining
• interpret, interpretation, interpreted, interpreting
• mean, meaning, meant 

For example, to find definitions of due diligence construct a boolean search like this:  "defin! or interpret! or constru*** or mean! or expla! or deem! or consider*** or requir! or includ! w/10 due diligence and atleast5 (due diligence)".   This tip should work in any search engine that utilizes boolean search terms.  Try it out and let me know how it goes.

Calulating Dates

Dates, Dates, Dates. . . . it seems as if we are always calculating dates.  From determining due dates for briefs & motions to determining release dates for our incarcerated clients.  Fortunately there are some good on-line resources for calculating dates.

Raymond Ward at the (new) legal writer provides a link to CalendarHome.com which provides several date calulating tools.  The Central California Appellate Project web site also offers some great date calculators.

Getting Going

Writing appellate briefs on a daily basis is never an easy task.  With a substantial legal project on the horizon, how do give yourself a kickstart to get going?  Start the day in a productive way. 

Start Each Day Productively by following these tips:

1. Start your day 10 minutes earlier. Use those 10 minutes to set your schedule for the day, complete any personal tasks, get a cup of coffee, say hello to co-workers.  This way, you will actually start working at the normal time.
2. Write out a schedule for the day.  List the top 5 tasks/projects you want to accomplish that day. 
3. After drafting your schedule - institute "quite time".  During your morning "quite time" you focus on starting the first task on you project list.  This is your "get going" time.  The one set time of the day for focused, uninterrupted work, no telephone calls, E-mails, visitors, or distractions.

Working on intituting the first three steps at the start of every work day will help you have a productive, focused day.

Check Your Ego

Appellate attorneys have a dual role - they must advocate for their clients AND educate the Court of Appeal about how the law permits the Court to provide justice for our aggreved clients.  To effecticvely fulfill both roles, there is simply no room for egos.  While reviewing the North Dakota Court web site, I discovered some great reminders about checking that ego --

Appellate Advocates Should Remember to:

• "Seek to persuade, not to show how much you know"
• "Be a resource to the Court to help it understand the law and the facts"
• "Not every lawyer excess is justified by the mantra of zealous representation."

Border Searches - You and Your Clients

Grant Griffiths runs a great blog called The Home Office Lawyer.  This week, in response to a discussion about laptop searches at airports, he invited Bonnie Stern Wasser (an immigration and lawyer in Seattle) to provide a guest post about airport searches.  The post went beyond airport searches and provides a complete look at the subject of border searches.  It's a good read for appellate pratitioners facing 4th Amendment issues at our borders. 

Home Office Lawyer: Travelers Beware: Border Searches of Laptops and Other Electronic Gear.

How To Write An Appellate Brief

Writing an appellate brief for the first time can be a daunting task.  Raymond Ward, who blogs at Appellate Law and Practice, an excellent article on How to Write an Appellate Arief.  This article is great for newbies and experienced appellate practitioners. 

Do You Request Oral Argument?

Do You Argue?

As appellate practitioners, our advocacy is primarily in written form.  Good appellate advocates must possess strong research, writing, and analytical skills.  Does that mean that our job as appellate advocates is complete with the filing of the final brief?  Well, that depends upon who you ask.  Some appellate practitioners rarely request oral argument at the Court of Appeal.  While others feel compelled to request argument in every case. So - who is right? 

In my opinion, there is no hard and fast rule.  The decision on whether or not counsel should request oral argument should be made on a case-by-case basis.  Here are the factors I use in my practice when deciding whether or not to request oral argument. 

1. Strength of The Issues:  The relative strength or weakness of the arguments raised in the brief.  Sometimes, an argument will be presented in the state appellate courts, to preserve the issue for consideration in the federal courts.  If I am merely presenting an argument to assist my client in exhausting his state remedies, then I will not request oral argument.  On the flip-side, if the issue briefed is particularly strong, then oral argument will likely be requested.
2. Complexity of the Issues:  The more complex the issues are, the more likely I am to request oral argument.  A case with complex issues is the ideal case to request oral argument.  Remember, the purpose of oral argument is to clarify your argument, engage in a dissuasion with the court, and answer their questions.
3. Novelty of the Argument:  If you are presenting a relatively novel argument, or perhaps you are approaching a often-argued issue in a unique way, oral argument can help you further guide the court along the path you laid out in your briefing.
4. Unique Facts:  Does your case have unique facts?  Perhaps a few small facts are pivotal for your case, oral argument will help to ensure that the court did not miss those unique, yet pivotal, facts when they reviewed the briefing.
5. Advocate for a change in the treatment of the issue.  In California, we are fortunate enough to have unpublished opinions available to us for free on the Court's web site.  This allows us to see how our court has ruled on similar issues.  From those unpublished (and published) opinions, you can see where the Court may have questions or concerns with the issue raised.  With this information in hand, oral argument provides you the opportunity to advocate to the Court that they should depart from their current trend of rulings. 
6. Client's Wishes: What does your client want?  In some cases, you may have clients that are insistent, or expect, that you will orally argue their case.  I give my client's wishes great weight in my decision of whether or not to present oral argument.  This is, after all, their case. 

In my practice, when I am in doubt about whether or not argument will help my client's case, I argue.  Oral argument is an exhilarating opportunity to engage in a discussion with the Court and one final opportunity to attempt to persuade them to view my arguments favorably.