Sanctions for Partially Frivolous Appeals in California

Patrick BurnsPosted by on Nov 2, 2020 in Appellate Practice

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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Amicus Briefs: The Difficulties in Navigating the Party Presentation Rule

Patrick BurnsPosted by on Jun 10, 2020 in Appellate Practice

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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