Persuasive Writing & Footnote Folly

David CasarrubiasPosted by on Aug 9, 2019 in Appellate Practice

One of the greatest difficulties in creating good legal writing, particularly effective appellate brief writing, is taking voluminous and complex information and distilling it down to a handful of simple points. It is also one of its greatest delights. There are plenty of tools in a writer’s toolbox to achieve the ultimate goal of succinctness, one of which is use of footnotes.

As Bryan Garner puts it, footnotes are resources and stepping-stones for others who are interested in delving more deeply into a subject. (The Redbook, 2nd Ed., p. 135.) When used effectively, footnotes briefly and concisely establish the foundation on which a writer has built new ideas and qualified or replaced old ones. In simple terms, a footnote should be nothing more than a reference point.

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A Respondent’s Obligation on Appeal: Burden, or Opportunity?

Gary A. WattPosted by on Jul 9, 2019 in Appellate Practice

Every now and then an appeal gets taken that, frankly speaking, shouldn’t be filed. When on the receiving end it’s possible—depending on the extreme lack of merit in the opening brief—to contemplate saving the client the time, effort, and $$$$ involved in preparing a responsive brief. The thinking would be something along the lines of “this stinker has absolutely zero chance of success” (and other more colorful thoughts).  But should the respondent forgo filing a brief and just wait for the Court of Appeal to proclaim the inevitable?

Such a drastic course of action should be avoided.

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Tips and Tricks for Editing Appellate Briefs (and a Shameless Plug)

Adam HofmannPosted by on May 23, 2019 in Appellate Practice

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.

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Peremptory Challenges to a Judge: Use It Or Lose It

Neil BardackPosted by on Apr 23, 2019 in Appellate Practice

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.

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Federal Appeals: What To Know About Panel Rehearings and Rehearings En Banc

David CasarrubiasPosted by on Mar 28, 2019 in Appellate Practice

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.

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Costs and Attorney Fees on Appeal

Gary A. WattPosted by on Feb 13, 2019 in Appellate Practice

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.

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Federal Class Action Appeals – What’s the Deadline to Petition to Appeal When a Motion for Reconsideration Is Filed?

Josephine Mason PetrickPosted by on Dec 28, 2018 in Appellate Practice

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).

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