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 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.

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."

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. 

10 Tips For Oral Argument

"[Y]our oral argument on appeal is perhaps the most effective weapon you have got."  - Justice Harlan of the Second Circuit Court of Appeal.  The following 10 Tips for effective oral arguments have been attributed to John W. Davis, an attorney who argued more than 140 cases before the U.S. Supreme Court.

1. Change places with the judge.
2. Make yourself heard.
3. State the history of the case.
4. State the facts with candor.
5. Go for the jugular.
6. Rejoice when the Court asks questions.
7. Read sparingly and only from necessity.
8. Avoid personalities.
9. Know your record from cover to cover.
10. Sit down.