CALIFORNIA APPEAL

Put Procrastination In Its Place

Frequently, I hear from appellate practitioners how they get bit by the procrastination bug when several projects are looming on the horizon.  When you are feeling overwhelmed by projects or lacking focus, here are some tips to get you on task:

1. Set aside the first 10 minutes of your day to to set up a schedule for the day, complete any personal tasks, and get a cup of coffee.
2. When creating your daily schedule, allocate time segments for each project on your list. 
3. Schedule your time segments for optimal focus.  Each time segment should be no longer than 90 minutes.  If you have a big project to complete, break the project into small parts that will each last, no more than 90 minutes.
4. Have a list of five minute mini-tasks. Use these to break up larger projects. Complete these when you find yourself with a few minutes to spare.
5. Put your daily schedule in a prominent spot on your desk so you can easily "check in" throughout the day. Take regular breaks.  Breaks re-charge your mind and concentration

At the end of a productive day, give yourself a head start on tomorrow by following these three tips: 

1. Clean off your desk so an orderly desk will greet you the next morning.
2. Review Tomorrow’s Agenda before leaving the office
3. Organize the next day’s tasks on your desk in order of priority.

Now, get to work!

Save Time - Phone Management

The telephone is a great business tool.  The telephone connects you to your clients, opposing counsel, and the courts.  However, just like any other piece of technology, the telephone must be managed.  Here are some tips on effective ways to manage your telephone.

1. Head Set Use:  Headsets are great for when you will be on the phone for long periods of time and will free up your hands.
2. Batch outgoing calls:  At regular interverals during the day, make all of your return calls and direct calls in one batch.  Make a list and check them off.
3. Make sure needed files at your fingertips when making calls.
4. Make pre-call notes to keep the conversation focused.
5. For difficult to reach people - schedule a time for the phone call.
6. Effective Use of Voice Mail:  Make sure you leave detailed messages and then ask for a detailed response.  With the use of detalied messaging, even if you are never able to actually "connect" with the caller, important information can be conveyed and elimiate the need for continued callbacks.

Resources To Improve Writing Skills

Effective legal writing can make the difference between a good and a great result for our clients. As appellate attorneys, strong legal writing skills are essential to serving the needs of our clients.  Here are some great sites for improving all aspects of your writing:

Grammar & Style

• The Elements of Style, by William Strunk, is a classic.  You can find the whole text of this manual on the Bartleby website.
• The Guide to Grammar and Writing, by Capitol Community College in Hartford, Connecticut offers help with Words and Sentences, Paragraphs, Essays and Research Papers, with quizzes and games to improve your writing style.
• Purdue's Online Writing Lab (OWL) has a complete set of resources on grammar, punctuation, and spelling.

Legal Writing

• Bryan Garner provides some great exercises from his book Legal Writing in Plain English at the University of Chicago Press site.
• Legal Writing Institute, a non-profit organization dedicated to improving legal writing by providing a forum for discussion and scholarship about legal writing, analysis, and research. LWI seems directed more towards legal writing instructors; there are some impressive resources.
• Barger on Legal Writing: Coleen Barger is a professor at the University of Arkansas-Little Rock William H. Bowen School of law, She has links to appellate resources, courses in legal writing, legal research links, and writing resources.
• LegalWriting.net by Wayne Schiess is a great blog dedicated to advancing quality legal writing.  Wayne is the director of legal writing at UT law school.

Sharpen Your Writing Skills

My friend at "The Legal Writer" spotted a great article in the Los Angeles Lawyer - Sharpening Your Legal Writing Skills, by Scott Wood is a short, pointed article.  While the article was written for the newly admitted, the tips are great for vetran legal writers also.  My three favorite tips in his article are:

• If you don’t keep it awfully simple, it will become simply awful.
• Avoid left-handed sentences.
• Constantly consider the reader.

CA Rule Changes

The "Rules" have changed.  The California Judicial Council recently reorganized and renumbered the  California Rules of Court.  Ideally, the changes will make the rules easier to use and understand.  However, the reorganization created a headache for many practitioners who must now amend pleadings, briefs, and motions to reflect the recent changes.  In an effort to make the transition to the new Rules of Court a bit easier the Judicial Council published two easy to use conversion charts to match the old rules to the new rules.    One CHART matches the new rule numbers to the old rule numbers.  The other CHART matches the old rule numbers to the new rule numbers. 

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. 

Home Office vs. Traditional Office

Which Office Is Right For You?

When setting up an appellate practice, many attorneys are faced with the daunting question of whether to have a typical "law office" with all of the required overhead expenses, or to maintain a home office.  For many, the stigma of having a P.O. Box as an office address coupled with worries about security, mail collection, and lack of available support have scared people away from the home office alternative. 

Enter the Virtual Office.  A virtual office provides a wide range of services for home based attorneys.  While still working at home, you can have your mail sent to the virtual office.  They can sign for packages, allow use of conference rooms, and even provide some light administrative support.  Carolyn Elefant (Myshingle.com) provides a great link to an article from the Chicago Business Leader (11/20/06) that gives an overview of the costs and services of HQ Global, one of the larger competitors in the virtual office space arena.

So, if you were struggling between home office vs traditional office, there may be an alternative out there for you. 

Managing the Paper Piles

Paper Paper Paper - Tame That Paper Tiger

Ross Kodner and Dale Cottam produced a great article on how to tackle those piles of paper in your office.  With a few simple tools, Ross shows you how easy it is to free yourself of volumous paper trial transcripts, review briefs electronically, and orgainze your files.  The purchase of my Xerox ScanSnap was one of the best purchases I made last year.  Everything that comes into my office is scanned.  Having transcripts and case files stored electronically makes working on the road a snap and has eliminated storage problems at my office.

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.

Appellate CLE In SF

Appellate Law & Practice CLE - San Francisco - 12/8/2006

This program is designed for Appellate specialists, In-house counsel who supervise appeals, Civil trial lawyers and counseling attorneys.  Both defense and plaintiff perspective will be explored.  The faculty will discuss what works and doesn’t work from both sides of the bench. The program includes breakfasts, handouts and access to leaders in this rapidly growing area of law. Topics include:

• Preserving the Record for Appeal and Staying Enforcement of the Judgment
• Appellate Ethics
• Practical Tips from the Clerk’s Office
• Brief writing: What works and what doesn’t
• Effective Appellate Advocacy using Electronic Briefs
• Oral Arguments

Faculty: Elliot Bien of Bien & Summers, Amy Margolin of Howard Rice, Steven Hirsch of Kecker Van Nest, Karin Kramer of Howrey, Dan Bromberg of Quinn Emannual,  Dennis Haserot, National Data Support and more.

Credit: MCLE: This course will qualify for 6 hours of CLE credits

Seminar Details: For additional seminar information: http://reconferences.com/appellate.htm
Location: JW Marriott Hotel located at  500 Post Street (new location)

Time:  9:00 a.m. to 4:00 p.m
To Register: http://www.reconferences.com

How Do I Find An Attorney?

How Do I Find An Appellate Lawyer?

It is important to be represented by an attorney with appellate experience and the skills to properly present arguments to the Court of Appeal.  Unfortunately, finding a good appellate attorney is not always easy. Here are some suggestions:

Referrals - Because the skills needed for trial work are very different from the skills needed for appellate work, your trial counsel will generally not handled your appeal; however, they may be able to suggest a competent appellate attorney.

Local Bar Association:  Many county bar associations operate lawyer referral services.  These services help connect people with attorneys qualified to handle their legal matter.   Check out the programs offered by the San Diego County Bar Association, Los Angeles County Bar Association, San Francisco County Bar Association. 

Certified Legal Specialists — The State Bar maintains a list of attorneys who are certified specialists in particular areas of law. A list of Certified Legal Specialists can be found on the State Bar's Web site

When To File?

When Should I file An Appeal?
There are strict time limits for filing a notice of appeal. After a felony criminal conviction, a notice of appeal must be filed within 60 days from the judgment date.  Appeals in civil matters must be filed between 30 and 60 days from the judgment depending upon the type of civil matter.

Generally, once the time to file an appeal has passed, the Court will not permit a defendant to file a late notice of appeal. An exception to this general rule can exist in criminal cases where the time to file a notice of appeal passed despite te defendant's best efforts to file his/her appeal in a timely manner. 

If you or a loved one want to appeal a superior court judgment (criminal or civil), it is essential to act immediately to protect your appellate rights.  Consult with either your trial attorney or an appellate attorney to make sure that your notice of appeal is timely filed.

Good LPM Sites

Searching for a Law Practice Management site? Here are three great LPM blogs that will help you get your practice humming.

• Jim Calloway's Law Practice Tips (http://jimcalloway.typepad.com)
• Reid My Blog (http://reidtrautz.typepad.com/reidmyblog)
• Law Tech Guru (http://www.lawtechguru.com/) 

Ten Time Management Tips

Overwhelmed with all that needs to be done? I recently read a time management 10-step list that makes it sound so easy to get a handle on everything that life throws you. These 10-steps were prepared by Krissi Danielsson.

Step 1 - Get started
Step 2 - Set clear goals and objectives
Step 3 - Keep an activity log
Step 4 - Handle E-mail and phone calls in batches
Step 5 - Divide larger tasks into groups of smaller ones
Step 6 - Prioritize tasks
Step 7 - Set aside chunks of time to do nothing
Step 8 - Don't overwork yourself
Step 9 - Learn when to say no
Step 10 - Know when you need time management help!

During the next few weeks, I will explore each step. Give me your thoughts.

Prison Resources

Ken Strutin (JD, MLS), the author of The Insider's Guide: Criminal Justice Resources on the Internet, posted an incredible listing of resources about prisons, the people who occupy them, legal and social services for inmates and their families, issues related to incarceration and reentry, and human rights behind bars. The focus of his listing is on selected web resources and online publications.

LLRX.com - Criminal Justice Resources: Prisoners' Rights and Resources on the Web