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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Legal Ethics: Candor to the Courts & Adverse Authority

David CasarrubiasPosted by on Dec 31, 2019 in Appellate Practice, Good Writing

The line between zealous advocacy and ethical conduct can sometimes become blurry to the advocate seeking to vindicate the client’s cause. And this includes appellate advocacy, not just trial work. Fortunately, the Rules of Professional Conduct inform counsel that ethical duties actually demarcate the boundaries that might otherwise be overlooked. And one of those duties is to disclose adverse authority to the courts, not simply to ignore it.

It’s been a little over a year since attorneys practicing in California were introduced to Rules of Professional Conduct, rule 3.3 “Candor Toward the Tribunal.” In simple terms, the rule requires lawyers to be truthful when addressing a court. But beyond that, subdivision (a)(2) imposes an affirmative duty on lawyers to disclose any law that is “directly adverse” to their client’s position:

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Settlements, Consent, and Final Settlement Agreements

Neil BardackPosted by on Nov 21, 2019 in Appellate Practice

There is a common belief among some lawyers that a settlement is not complete until there is a formal written agreement signed by the parties that has all the “bells and whistles” typical of a settlement agreement. Not always so. In J.B.B. Investment  Partners LTD v. Fair (2019) 37 Cal.App.5th 1, Division 2 of the First Appellate District enforced a settlement based upon emails: one from Plaintiffs’ counsel stating a “last and final offer” setting out the terms; and one from Defendants, albeit somewhat ambiguous but which included the magic words “So I agree.” The Court of Appeal found that the plain outward manifestation of these emails (along with several others subsequently sent by Defendants), reflected that an agreement was reached on the terms set out in Plaintiffs’ counsel’s earlier email; and that the lack of a formal settlement agreement which the parties clearly had intended to sign, did not detract from the enforceability of the settlement. The emails satisfied the need for a “writing” to meet the requirements of the Statute of Frauds. For these reasons, the trial court granted summary adjudication on the breach of contract claim brought by Plaintiffs to enforce the settlement, which was upheld on appeal as there was no material dispute of fact over the settlement terms that had been stated in the email exchange; and the failure of Defendants to sign the formal written version of the settlement, did not render the settlement terms reflected in the underlying emails a nullity. The emails contained sufficient manifestations of the parties’ respective consent to settle on those terms.   

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Making the Most of Your Reply Brief

Adam HofmannPosted by on Oct 30, 2019 in Appellate Practice, Good Writing

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.

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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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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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