Appellate Briefing

When I wrote about Wong v. Lee (D2d1 Jul. 15, 201) no. B293892 (nonpub. opn.) last month, I noted its analysis and holding of the limits of the appellate stay doctrine. But after the opinion was modified (nonsubstantively) after petitions for rehearing, I noticed the case raises several other common appellate missteps that trial attorneys may find instructive....Read More >>

Judge Robert Bacharach of the 10th Circuit is not a fan pop-culture references in legal writing. Too much levity in judicial opinions, the judge says, may tend to relax the standards of professionalism among the bar. The parties, particularly at the appellate level, are entitled to respect, and "artful" advocacy may be seen as disrespectful....Read More >>

Family court appeals are difficult because they delay an already bitter experience. The Court of Appeal is aware of this when it admonishes the family court that a recent appeal "might never have arisen had the trial court exercised its authority to make a capacity determination." Despite repeated objections by the wife that the husband's recent life-threatening...Read More >>

Legal Writing Tip for the Day: Your readers pay most attention to the end of a sentence. Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that, according to many psycholinguists, readers' comprehension and focus is at its height at the end of a sentence. Craft your sentences accordingly! Watch the clip here. This...Read More >>

Awards for emotional distress can add tens or hundreds of thousands of dollars to a workplace-retaliation claim. But there are limits. And in this recent case, the court pointed to counsel's personal attack during closing argument as evidence the verdict was based on improper factors. In Briley v. City of West Covina (D2d4 Jul. 1, 2021) no....Read More >>

How do you use acronyms in your briefs? Judge Robert Bacharach of the 10th Circuit told Jeff Lewis and me that he wishes that whoever invented acronyms hadn’t: "If you can avoid acronyms, do it." When you make the judge flip back in your brief to look up what an acronym means, or who a party is,...Read More >>

Legal writing expert Laura Genovich wrote recently that writers should begin their sentences with real things rather than concepts – concretes over abstracts. Judge Robert Bacharach of the 10th Circuit said the same when he joined Jeff Lewis and me on the California Appellate Law Podcast in June 2021. “Shareholders who are anxious,” not, “Anxiety among shareholders.” That brought to...Read More >>

Judge Robert Bacharach of the 10th Circuit says the science of linguistics demonstrates short sentences tend to be more effective. But take care not to cross the line into writing sentences that are strident or glib. Do not dare your reader to prove you wrong! When Judge Bacharach visited Jeff Lewis and me on the California...Read More >>

The Court of Appeal awarded over $25,000 in appellate attorney fees as sanctions against the unsuccessful appellants in Trumble v. Kerns (D4d1 Jun. 28, 2021) no. D076490 (nonpub. opn.), and an additional $8,500 in court costs as further sanctions. The appellants are sisters, and one side of a "dysfunctional family" engaged in a ten-year dispute over their mother's...Read More >>

MS Word by default inserts "passim" in your Table of Authorities. The 9th Circuit discourages it -- the court wants to see every page where the authority is cited (unless the authority appears on nearly every page). See https://cdn.ca9.uscourts.gov/datastore/uploads/guides/Shell_Brief.pdf. Bryan Garner's LawProse.org has this entry on passim, suggesting it may be rather archaic by now: passim...Read More >>

You cannot persuade your reader if you tire out your reader. This was the overarching lesson I took from 10th Circuit Judge Robert Bacharach's new book, Legal Writing: A Judge's Perspective. Page 1: "Legal writing is typically read out of obligation." Judge Bacharach joined Jeff Lewis and me on the California Appellate Law Podcast to talk...Read More >>

Judges are paid to read your briefs, but not paid to understand them! Judge Robert Bacharach of the 10th Circuit tells Jeff Lewis and me that poorly-crafted sentences are "poisonous to persuasion" because they "destroy the momentum of your argument." Watch the video here. Listen to the full June 2021 interview from episode 12 of...Read More >>

Judge Robert Bacharach of the 10th Circuit tells TVA appellate attorney Tim Kowal he likes the new citation parenthetical "(cleaned up)", seen in some appellate opinions and briefs (recently in a SCOTUS decision), because excessive ellipses and internal quotation marks can be distracting to the reader. But take care not to abuse it by omitting...Read More >>

I do not know who needs to hear this, but the Court of Appeal does not want to take any chances: While there are many tools of persuasion in the advocate's toolkit, accusing the court of being on the take from the Irvine Company, and being as corrupt as Tom Girardi, are not among them....Read More >>

So you think you understand legal presumptions? Well, do you know the difference between a presumption that affects the burden of production, and one the affects the burden of proof? If not, do not feel too bad. The trial judge in Felix v. People of California (D5 Jun. 8, 2021) no. F080255 (non-pub.) didn't understand the difference,...Read More >>

Ever wondered what a federal appellate judge thinks of your legal writing? Judge Robert Bacharach of the Tenth Circuit Court of Appeals told Jeff Lewis and me on the California Appellate Law Podcast. Judge Bacharach just published a book titled, Legal Writing: A Judge's Perspective. Judge Bacharach would like you to know: ✎ Writing clearly keeps your...Read More >>

Family court orders, such as domestic violence restraining orders, are often difficult to reverse because they are subject to a very deferential standard on appeal. A Court of Appeal will only reverse if it concludes the family court abused its discretion. But the abuse-of-discretion standard has limits. And when the family court misapplies the legal...Read More >>

If you were to read the eight-page factual summary of the abusive juvenile in People v. S.O. (D3d2 May 7, 2021) no. E075778, you would be disappointed by the payoff in terms of application of those troubling facts to law. That is because the legal application consists entirely of just two sentences: "We offered minor an opportunity...Read More >>

When a party lacks standing – a legal interest in a case – that is a jurisdictional defect. Jurisdictional defects are fatal, and cannot be waived, or stipulated to. But not in Silva v. Humboldt Cnty. (D1d1 Mar. 11, 2021) no. A160161. Humboldt County voters passed a tax measure on marijuana cultivators back in 2016. The measure...Read More >>

Waiver or forfeiture of arguments is a big concern for appellants on an appeal. But rarely do courts find that a respondent had waived or forfeited an argument. In Travis v. Brand (D2d8 Mar. 19, 2021) 2021 WL 1049863 (published), various citizens, political action committees, and elected officials, and other political operatives litigated over whether to redevelop the Redondo Beach waterfront....Read More >>

Here is a tip if you are defending a judgment: If appellants fail to raise an issue, do not raise it for them. That is what happened in Foster v. American Marine Svs Group Benefit Plan, 2021 WL 930257 (9th Cir. Mar. 11, 2021). As a result of respondent/appellee's helpful assist in raising the dispositive issue...Read More >>

In a hyper-formalistic holding in Mostafavi Law Group, APC v. Larry Rabineau, APC (D2d4 Mar. 3, 2021) No. B302344 (published), a judgment entered on an agreement under Code of Civil Procedure section 998 was vacated. The defendant's 998 offer did not include a signature line for the plaintiff to sign, though the plaintiff signed it anyway, and...Read More >>

This unpublished decision reviews a trial court's reliance on improper evidence. The case, In re Marriage of Patterson (D5 Feb. 9, 2021) No. F076753, is a good illustration of a key points of trial practice: The trial court may not rely on evidence that was not properly admitting into the record. And judicial notice will not get...Read More >>

During appellate briefing in Howard Jarvis Taxpayers Ass'n v. City of San Francisco (D1d5 Jan. 27, 2021) No. A157983, a case concerning whether a recent local tax increase on a voter initiative needed a two-thirds majority vote rather than a bare majority, another case on the same question was answered in a different case (that case is City...Read More >>

I have written before about California state court cases holding that failing to exercise discretion is an abuse of discretion. The same rule applies in federal courts, as the recent case of Rembert v. A Plus Home Health Care Agency, LLC (6th Cir. Jan. 25, 2021) No. 20-3454 out of the Sixth Circuit illustrates in the context of attorney...Read More >>

Last week, Bryan Garner's LawProse lesson was on succinctness, noting that the late Justice Ruth Bader Ginsburg once told him that "Eye fatigue sets in well before page 50." The appellant in Semmerling v. Bormann, No. 19-3211 (7th Cir. Jan. 5, 2021) was not in danger of reaching page 50. Instead, he kind of went a...Read More >>

...But that's nitpicking, innit? In the lease dispute in KJ Investment Group v. American Heritage College, (D4d3 Oct. 1, 2020) No. G058270 (unpublished), defendant, fresh off a loss on its challenge to the judgment against it, filed a second appeal, this time to the award of about $80,000 in fees. (At under six figures, I'd say...Read More >>

When the trial court issues a tentative ruling, counsel often will "submit" on the tentative and give no further argument. On occasion I have noticed counsel saying they "stipulate" to the tentative. I have always taken this as a slip of tongue of no real consequence. Do not be misled: there is a consequence. "Stipulating"...Read More >>

You may be surprised to learn that an attorney's 25% referral arrangement discussed orally with the client, and reduced to a writing signed by the client, is not enough to satisfy rule 1.5.1 of the State Bar Rules of Professional Conduct requiring the client's "consent" to any fee division. So held the Third District in Reeve...Read More >>

You have a deep bag of tricks as a respondent on appeal to win affirmance of your judgment. One of those tricks is forfeiture: if appellant did not raise an argument below, it is forfeit on appeal. Done. Dead. Your judgment is affirmed. But in United States v. Ngumezi, No. 19-10243 (9th Cir. Nov. 20, 2020),...Read More >>