Judicial notice is a powerful tool for litigants to get factual matter in front of a court without a sponsoring witness or all the other burdensome requirements under the rules of evidence. If used properly, facts that are beyond dispute and other universally known facts can be firmly established in the case so that the parties can focus on triable issues that must be resolved by a judge or a jury.

For example, in a burglary case, a trial court may take judicial notice of when the sun set on a certain date in order to conclude whether or not a burglary was committed in the nighttime. (E.g. People v. Helm (1957) 156 Cal.App.2d 343, 344 [analyzing prior Penal Code § 460].) The court can judicially notice that the burglary was committed in the nighttime based on the indisputable fact that the sun set before the burglary—thereby allowing the parties to focus on other disputed facts at trial.

Sometimes, due to inadvertence, eagerness to move the case along, or strategic considerations, litigants will jump the gun and file a notice of appeal while post-trial motions are pending.  What are the consequences of this strategy in California?

It depends.  For certain post-trial motions, a superior court retains jurisdiction to rule on them even though a notice of appeal is filed—but that is not true for all such motions.  And in some cases, the law is not yet settled.

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.

In a prior post, we discussed avoiding the death knell of an untimely notice of appeal in California’s state courts (see Jan. 29, 2021). But what else can go wrong with a notice of appeal? A lot.

Even though the notice of appeal is a decidedly simple filing, it should come as no surprise that there are plenty of mistakes that have been, and can be made. Fortunately, only a small subset of mistakes have been deemed un-correctable if the deadline to appeal has passed. See CRC 8.100(a)(2) (“The notice of appeal must be liberally construed.”); see also K.J. v. Los Angeles Unified School Dist. (2020), 8 Cal.5th 875, 884 (“Once a notice of appeal is timely filed, the liberal construction requirement compels a reviewing court to evaluate whether the notice, despite any technical defect, nonetheless served its basic function—to provide notice of who is seeking review of what order or judgment—so as to properly invoke appellate jurisdiction.”).

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.

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.