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.

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.

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.

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.

Losing a federal appeal raises various options, some more appealing than others. These include filing a petition for panel rehearing, a petition for rehearing en banc, or a petition for writ of certiorari. Before deciding which petition makes sense, consider the following:

According to the Federal Rules of Appellate Procedure (FRAP), a petition for panel rehearing is used to call to the court’s attention any material errors of law or fact resulting in a denial of justice. FRAP 40(a)(2). These include: irregularities in the trial; serious evidentiary flaws; the discovery of important new evidence which was previously unavailable; accident; unpredictable surprise; or unavoidable mistake. But, mere technical errors are not proper grounds for a panel rehearing.