It’s safe to say that I’ve been fortunate in my legal career. Among other blessings, I have also benefitted from representing clients who were consistently right on the law and facts and who were even justified from a moral and public-policy perspective. Yet, exasperatingly, I have not prevailed in all of the cases I have litigated. This strange disconnect between objective righteousness and subjective results can only be explained by one thing: judges sometimes make mistakes. And while our appellate-judicial system quite literally exists to catch and rectify those mistakes, even appellate judges and justices sometimes have an off day.
It is a truism in appellate practice that the respondent/appellee is in the best position; the standards of review and presumptions largely weigh in favor of affirmance, and so winning in the trial court is statistically the best way to win on appeal. In the spirit of making lemonade from lemons, however, one of the benefits and joys of being an appellant is getting to file a reply brief.
In California and federal appellate courts of appeal, reply briefs are nominally optional. In practice, all this means (or at least all it should mean) is that your appeal will not be dismissed for failing to file one. But from the perspective of good advocacy, there is really nothing optional about a reply brief. The opening and responding briefs set the field, and the reply is where the battle can be truly and most effectively joined. Indeed, some appellate judges/justices and clerks report (confess?) beginning their review of a case with the reply for just this reason.
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.