What Can Oral Argument Preparation Teach Us About Effective Briefing?

Josephine Mason PetrickPosted by on Apr 21, 2021 in Appellate Practice

While attorneys advocate, judges search for the right result.  Here are three techniques for persuading judges by aiding them in their truth-seeking mission.

First, channel your audience’s inner “scientist.”  Organizational psychologists refer to four archetypes:  The preacher invokes fundamental values.  The prosecutor tries to win an argument.  The politician seeks to gain approval.  And the skeptical scientist searches for the truth.

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Appealing Motions to Compel Arbitration in Federal Court

Patrick BurnsPosted by on Mar 5, 2021 in 9th Circuit, Appellate Practice

Can an order ruling on a motion or petition to compel arbitration in federal court be appealed? While federal appellate jurisdiction is generally limited to “final decisions” of the district courts (28 U.S.C. § 1291), the Federal Arbitration Act (“FAA”) authorizes interlocutory appeals from orders denying arbitration. But the ability to appeal an order that compels arbitration depends on whether the district court dismisses the civil action. Before appealing an order on a motion or petition to compel arbitration, consider the following principles and pitfalls:

FAA appellate jurisdiction extends to orders “refusing a stay of any action under section 3” and orders “denying a petition under section 4 … to order arbitration to proceed.” 9 U.S.C. § 16(a)(1)(A)-(B). Section 16 promotes appeals from orders denying arbitration and limits appeals directing arbitration, consistent with Congress’s intent to have arbitrable disputes proceed quickly to arbitration. Bushley v. Credit Suisse First Bos., 360 F.3d 1149, 1153 (9th Cir. 2004). Thus, a district court’s denial of a motion or petition to compel arbitration will generally give a party the right to appeal.

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Notice of Appeal: Back to Basics to Avoid Disaster

Gary A. WattPosted by on Jan 29, 2021 in Appellate Practice

Protecting the record for appeal is always a popular topic for legal education programs. After all, securing the hard-fought trial victory or turning around the case that went off the rails can depend on making sure a proper record is made for appellate review. But the most perfectly protected record is meaningless if the notice of appeal is untimely. Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56 (absent timely filed notice of appeal, appellate courts lack jurisdiction). This is a tragedy that should never happen, but it does.

For state court appeals, the place to begin is California Rules of Court, rule 8.104. The “normal time” to appeal is 60 days. Two months to file the notice seems generous. But 60 days from when? And is it always 60 days? A careless examination of rule 8.104 can lead to problems. Fatal problems.

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Sanctions for Partially Frivolous Appeals in California

Patrick BurnsPosted by on Nov 2, 2020 in Appellate Practice, California Supreme Court, Good Writing

Sometimes in an appeal, the appellant takes a “kitchen sink” approach to briefing by advancing a number of baseless claims. Appellant has the burden of showing the lower court erred and may believe if it hurls enough contentions, maybe one will stick. Even though some of appellant’s arguments may have merit, that type of shotgun approach to appellate litigation can be frustrating and costly for a respondent tasked with investigating and responding to all of the arguments.

But, in California, a respondent facing such a scenario may—in the right kind of case—be able to recover a portion of its attorney fees for a “partially frivolous” appeal.

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LAW OF THE CASE: Application in California Courts

David CasarrubiasPosted by on Aug 25, 2020 in Appellate Practice, California Supreme Court

There are a handful of legal doctrines that can be difficult to comprehend, but the law of the case doctrine shouldn’t be one of them. Yet, time and again, the doctrine seems to perplex litigants, especially when deciding whether it is binding or discretionary, and whether it has any application to a trial court’s own prior rulings. The answers to both of these questions are important to understand before asking a court to revisit a prior ruling.

The basic rule is this: a ruling or holding stated in an appellate court opinion is binding on all inferior courts in all subsequent proceedings related to the same parties in the same action. (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491.)

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Attorneys, Clients, Constructive Knowledge, and Malicious Prosecution

Neil BardackPosted by on Jul 20, 2020 in Anti-SLAPP, Appellate Practice, California Supreme Court

The recent Court of Appeal decision in Roche v. Hyde, Nos. A150459, A1500462 (filed 6/30/20), though unpublished, presents a cautionary tale for lawyers and clients. The case arises out of sale of a winery in Sonoma County by Roche (“Seller”) to Ram’s Gate, LLC (“Buyer”). The focus of the fraud and misrepresentation claims by the Buyer was Seller’s failure to disclose a seismic report that showed an active fault line under a building pad. Seller maintained the report had been delivered to the attorney for a predecessor entity of Buyer (these entities had common ownership and the same attorney, Hyde), in a previous attempt to buy the winery.

After discovering the seismic issues impacting Buyer’s construction plans, Buyer sued for breach of contract, fraud and negligence, alleging the non-disclosure of the seismic fault. After protracted discovery to obtain Buyer’s files and those of its attorney Hyde to prove prior knowledge of the seismic facts, resulting in multiple court orders to produce requested documents, Buyer dismissed its case without prejudice to avoid court ordered discovery sanctions and also agreed to pay Seller’s attorney’s fees and costs.  End of story? 

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Amicus Briefs: The Difficulties in Navigating the Party Presentation Rule

Patrick BurnsPosted by on Jun 10, 2020 in 9th Circuit, Amicus Briefs, Appellate Practice, Good Writing, U.S. Supreme Court

Amici curiae often walk a tightrope between offering argument that is supplemental, but also sufficiently within the issues framed by the parties. That tightrope may be even narrower after the Supreme Court issued its decision in United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020), which vacated an order by the Ninth Circuit for violating the party presentation rule.

Under the “party presentation rule,” federal courts are discouraged from considering legal arguments and issues not raised by the parties. Federal courts “rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”  Greenlaw v. United States, 554 U.S. 237, 243 (2008).

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