While oral argument gets all the public attention, appellate practitioners know that their cases are almost always won or lost on the briefs. As a result, in a profession that already places heavy emphasis on good writing, lawyers focusing on appeals are known for honing their written craft to a fine edge. Yet, while it is often said by writing gurus that the key to good writing is good editing, few lawyers devote as much time and energy to learning good editing techniques as they do to developing their writing. The following will preview tips and tricks for editing appellate briefs, both your own work and the work of others.
A motion to challenge a judge under Code of Civil Procedure section 170.6 has been called a “silver bullet” because it does not require proof of good cause; it only has to be timely filed. In Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, the Court of Appeal for the Fourth Appellate District resolved what it deemed an issue of first impression: when does the 15-day clock begin ticking to use the silver bullet in cases involving potential consolidation and coordination? The Court of Appeal held that the 15-day period to make a peremptory challenge to a judge assigned to a case for all purposes was triggered when defendants opposed consolidation of their action with other cases arising from the same fraudulent conduct. (See Code of Civil Procedure section 403 and California Rules of Court, rule 3.500(b), (c) & (d).) As a result, their peremptory challenge was untimely.
Losing a federal appeal raises various options, some more appealing than others. These include filing a petition for panel rehearing, a petition for rehearing en banc, or a petition for writ of certiorari. Before deciding which petition makes sense, consider the following:
According to the Federal Rules of Appellate Procedure (FRAP), a petition for panel rehearing is used to call to the court’s attention any material errors of law or fact resulting in a denial of justice. FRAP 40(a)(2). These include: irregularities in the trial; serious evidentiary flaws; the discovery of important new evidence which was previously unavailable; accident; unpredictable surprise; or unavoidable mistake. But, mere technical errors are not proper grounds for a panel rehearing.
If you’ve ever read a California Court of Appeal opinion closing out with “each side to bear its own costs on appeal,” you might have presumed that such wording forecloses an award of attorney fees on appeal. It’s okay, you’re probably not alone. And if you have thought that, and still do, now would be a good time to read a recent Court of Appeal decision which holds otherwise.
Federal Class Action Appeals – What’s the Deadline to Petition to Appeal When a Motion for Reconsideration Is Filed?
If you’re litigating a putative class action in federal court and get a class certification order that is adverse to your client (whether plaintiff or defense), you may petition to take an immediate appeal of that order. Fed. R. Civ. P. 23(f). The petition to appeal must be filed quickly—within 14 days. Id. The short turnaround time “is designed to reduce the risk that attempted appeals will disrupt continuing proceedings.” Fed. R. Civ. P. 23(f), Adv. Comm. Note (1998).
It would be nice if all appealable orders were listed under Code of Civil Procedure section 904.1. After all, the statute purports to govern the issue. But any search that ends there on the assumption that if it’s not listed, it’s not appealable, is headed for disaster. As seasoned appellate practitioners know, 904.1 can be just the starting point on the long and winding road of appealability. Failure can mean that the right to appeal is lost—forever. (Van Beurden Ins. Service, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.)
Section 904.1 even uses a somewhat deceptive structure. For example, informing the reader that “an appeal may be taken from any of the following.” (Emphasis added.) Maybe that’s just legislative wit, recognizing that although an appeal can be taken, not all appeals should be taken. Ask any Court of Appeal justice, right?
A recent California Supreme Court decision resolved the issue of what claims can be subject to a Code of Civil Procedure section 425.16 special motion to strike attacking an amended complaint. (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637.) Specifically, the issue was whether an anti-SLAPP motion attacking an amended complaint could challenge claims already present in earlier versions of the complaint. The Court answered “no.”