NLD Event Recap: Court Practice Series on Appellate Law

As part of this year’s Court Practice Series, the New Lawyer Division hosted an appellate law seminar last month presented by Justice Judith McConnell and Arezoo Jamshidi.  Justice McConnell is the Administrative Presiding Justice of the California Court of Appeal, Fourth District, Division One.  Jamshidi is chair of the SDCBA’s Appellate Practice Section and leader of the Appellate Practice Group at Haight Brown & Bonesteel. 

There are profound differences between practicing in the trial court versus the appellate court. Trial courts resolve factual and legal disputes, and there are exhibits, witnesses, and evidence. The appellate court reviews the trial court’s rulings for error, but there is no weighing of evidence or assessment of witness credibility.  The appellate court also does not receive any new evidence.  Instead, the appellate court is limited to the appellate record, so it is important to make a good record and ensure that the necessary documents that were filed in the trial court and the reporter’s transcripts of the relevant hearings are included in the appellate record. 

In trial proceedings, good oral advocacy is key.  On the other hand, the briefing is the most important aspect of the appellate process. In fact, the appellate court will prepare a draft opinion based on the briefing, before oral argument even occurs. Additionally, the brief is the first time that the justices will learn about a case. Typically, there are three appellate briefs: the opening brief, the respondent’s brief, and the appellant’s reply brief.  

When writing an appellate brief, Jamshidi typically looks at the trial court documents and trial court transcripts first in order to identify and analyze any issues.  She then creates an outline because organization is the most important part of brief writing.  The headings should tell a story.   

Jamshidi advises lawyers to always do their own legal research and not solely rely on what the trial court and trial counsel relied on. In addition, it is important to understand what standard of review will apply to the issues. The standard of review determines how much deference the appellate court must give to the trial court ruling, ranging from no deference (de novo) to a high level of deference (abuse of discretion). The applicable standard of review will help you determine what issues to pursue and how to approach the issues.  

In addition to thoroughly addressing the issues, Justice McConnell warned that citations to the record are critical.  Block citations, however, are not helpful. You should cite to a specific page that supports the fact you are stating in your brief.  You must also cite legal support; however, do not cite to 10 cases that say the same thing and do not cite to 10 pages of hornbook law.  

Finally, edit with the goal of filing a concise brief.  Jamshidi recommended stepping away from the brief for a few days in your editing process and having someone else double check all record and case citations for accuracy. 

After briefing is complete, the parties have a right to an oral argument. Oral argument does not often change the disposition, but it can happen. Justice McConnell reported that in the past month, the oral arguments have made a great difference.  

When preparing for oral argument, review the appellate record and briefs again. It is imperative that you know the record because the justices certainly will. Think about the tough questions that the justices may ask, and practice saying your answer (and your entire oral argument) out loud. Justice McConnell highly recommended watching other oral arguments to see both good and bad arguments and to observe how the bench deals with lawyers. All of the oral arguments in the Fourth Appellate District, Division One are live-streamed.  

When arguing in the Court of Appeal, answer the justices’ questions directly — do not say you will get to it, or that it is irrelevant. If a justice is asking, then it is relevant. Additionally, do not be afraid to say that you do not know and offer supplemental briefing. Lastly, the tone of your argument should be respectful and civilized. Do not insult opposing counsel, the trial judge (be mindful of this even when you are appealing his or her ruling), or the justices. Remember that you are addressing professionals who care deeply about their work and serving the public. 

On a related note, the speakers both emphasized a most-welcome aspect of appellate practice — appellate attorneys are very civilized, cordial, respectful to each other. The appellate bar is an even smaller community of attorneys. Therefore it is even more important to maintain professionalism, as you will likely work with the same attorneys. 

If you are interested in meeting appellate attorneys and learning more about appellate practice, you can get involved with the SDCBA Appellate Practice Section or volunteer for the Civil Appellate Self-Help Workshop.