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.

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).

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:

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.

Amicus briefs are often thought of as limited to appellate courts. However, they can be useful in federal district court, too. District courts have inherent authority to allow amici curiae to participate in briefing. See, e.g., NGV Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal. 2005).

Benefits to Amici in District Court

Potential amici are likely to be interested in the broader impact on the law, especially when the case involves novel legal questions or pertains to an issue of public interest. Paul M. Collins, Jr., Who Participates as Amici Curiae in the U.S. Courts of Appeals?, 94 Judicature 128, 134 (2010). Amici may provide new perspectives and educate the court about the broader consequences its ruling may have.

One of the greatest difficulties in creating good legal writing, particularly effective appellate brief writing, is taking voluminous and complex information and distilling it down to a handful of simple points. It is also one of its greatest delights. There are plenty of tools in a writer’s toolbox to achieve the ultimate goal of succinctness, one of which is use of footnotes.

As Bryan Garner puts it, footnotes are resources and stepping-stones for others who are interested in delving more deeply into a subject. (The Redbook, 2nd Ed., p. 135.) When used effectively, footnotes briefly and concisely establish the foundation on which a writer has built new ideas and qualified or replaced old ones. In simple terms, a footnote should be nothing more than a reference point.