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.
California Supreme Court: Trial Courts Must Provide Court Reporters for Indigent Litigants to Protect Their Right to Meaningful Appeal
Ever since the Great Recession ushered in drastic cuts to state-court budgets, litigators have grown accustomed to the absence of court reporters in California courts. For trials and potentially dispositive motion hearings (and for all court hearings in unusually significant matters) lawyers have learned to arrange for their own court reporters, in order to make a complete record for appeals. This is an inconvenience for practicing lawyers and a regrettable expense for their clients. For indigent litigants, however, it can effectively imperil the right to appeal, as the California Supreme Court recently held.
As the California Supreme Court has recognized, amici curiae can play a “valuable role” in litigation. (Connerly v. State Personnel Board (2006) 37 Cal.4th 1169, 1177.) “[B]ecause they are nonparties who often have a different perspective from the principal litigants[,]” their arguments “enrich[ ] the judicial decision-making process.” (Ibid.) Amicus filings are on the rise, and not just in the U.S. Supreme Court. However, with this increased volume has come an increased number of unhelpful and poorly written briefs. Governing court rules reflect this concern. For example, the U.S. Supreme Court advises:
An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.
(S. Ct. Rule 37.1.) Likewise, in California, amicus briefs must “assist the court in deciding the matter.” (Cal. Rules of Court, rules 8.200(c)(2) & 8.520(f)(3).) So, the question becomes how, in more practical terms, amici can help shape important decisions, aiding courts, rather than burdening them.
On Monday, December 4, 2017, the California Supreme Court issued its decision in City of San Buenaventura v. United Water Conservation District. The case partially resolved a long-running dispute regarding the validity of fees the United Water Conservation District charges all groundwater pumpers in its jurisdiction. While this case has been followed most closely in the community of water-rate nerds (myself included), there are broader impacts on government revenue and constitutional interpretation in general.
Eventually, it happens to us all. Somehow or other, we end up in court facing a vexatious litigant—a person who, acting in pro per, repeatedly pursues meritless law suits or frivolous pleadings, motions, and discovery. Ordinarily, this happens when a vexatious litigant sues, and we attorneys spend incredible (if unavoidable) amounts of time and money trying to extricate our clients from the fray.
California’s statutes, however, exist to reduce this risk to the unwary public, creating procedural obstacles to the filing of meritless litigation by individuals found to be vexatious litigants. (See Code Civ. Proc., §§ 391-391.7.) Once a person has been declared a vexatious litigant, he or she cannot file a new lawsuit in pro per in a California court without getting prior approval from the presiding judge or justice. (See Shalant v. Girardi (2011) 51 Cal.4th 1164, 1169-1170.) The same pre-filing requirements apply when a vexatious litigant attempts to appeal in pro per from an adverse judgment in a case in which he or she was the plaintiff. (See Mahdavi v. Superior Court (2008) 166 Cal.App.4th 32, 41.)