California Appellate Law Blog : California Appellate Lawyer & Attorney: Archer Norris Law Firm: Trial, Business, Torts: Sacramento, Bay Area, Los Angeles, California

One of the jests that appellate lawyers often hear is that they are nothing more than Monday morning quarterbacks. After all, once the case is on appeal, the record is set and what could be called legal archaeology begins. Appellate lawyers sift the record for prejudicial error, erroneous legal interpretation, abuse of discretion, invited error, waiver, the absence of reversible error and so on. But forward thinking trial lawyers consult with appellate counsel during litigation. There are several reasons why this is good strategy.

Early consultation with appellate counsel can result in identification of alternative theories for prosecution or defense of the case. It can sharpen the focus on key factual issues needed at the summary judgment stage. Having appellate counsel assist early on can mean a more well rounded evaluation of the chances of success. It can also mean the application of specialized focus in mediation briefs, summary judgment and in limine motions, jury instructions. That's because appellate lawyers are often steeped in extremely nuanced areas of law and the latest high court pronouncements re the same. Incorporating such expertise into key briefs makes them much more effective. In a very real way, appellate counsel make an effective trial weapon.

And if there was ever a minefield for potential reversible error, waiver and other disasters, it's the 90 days after trial. Here, appellate counsel add signficant value to the prosecution or defense of key post trial motions. Whether bench trial or jury verdict, post-trial procedure is deep water. Better to have a seasoned navigator on board.

Some trial counsel are understandably reluctant to involve appellate counsel for the same reason they are reluctant to have co-counsel; exposure to second-guessing and criticism. But the effective appellate advocate is a team player, ready to consult on an as-needed basis and working to support, not supplant, trial counsel. Together, trial and appellate counsel form a formidable team. And after the trial dust settles, the archaeology is bound to turn up more treasure.

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If we needed a sobering reminder of how fragile law firms are, the current edition is McDonough Holland & Allen. McDonough is soon to be no more. And unless you had inside information, its demise comes as (yet another) shock. After all, McDonough is (or was) a great law firm, a place teeming with fine lawyers and great people, top to bottom. But a 55 year history, roots in Sacramento and a renowned public law practice were not enough to make McDonough immune from collapse. Another victim of the economic downturn, no doubt, and large scale lateral defections. What if anything will remain is uncertain. Not good. 

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At one time or another, all lawyers run into somebody questioning the value of the services the profession provides. And some measure of that is probably healthy. A wrinkle that appellate lawyers get goes like this: "Well, you won't have to do much. All the work has already been done by the trial lawyers."

Tell me if you've heard that one before. I have. And so too, have justices of the courts of appeal. One of the best answers to that contention was made by Fourth District Presiding Justice, David Sills. Here is his response:

"Appellate work is most assuredly not the recycling of trial level points and authorities." (In re the Marriage of Shaban (2001) 88 Cal.App.4th 398, 408.)

I like that. But in case a client needs further convincing, Justice Sills discusses how appellate briefs receive greater judicial scrutiny by multiple justices with more time to devote to briefs than their trial court brethren. The absence of horizontal stare decisis among the intermediate appellate courts of the state is another critical difference. As Justice Sills explains, precedent among California's courts of appeal is open for reexamination and further analysis by panels of those courts. And appellate lawyers must consider the impacts the appellate decision could have going forward.

Perhaps this quote says it best:

"The upshot . . . is that appellate practice entails rigorous original work in its own right." (In re the Marriage of Shaban, supra, 88 Cal.App.4th at p. 410.)

Couldn't have said it better.

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Here's the first post written by the new addition to Archer Norris' appellate team, Gary A. Watt.

As you have probably heard by now, Chief Justice Ronald George made a surprise announcement last week; he is retiring. And now Governor Schwarzenegger has nominated Third District Justice Tani Cantil-Sakauye for chief justice. Cantil-Sakauye, 50 years old and wife of a police officer, has been a justice on the Court of Appeal for the past 5 years. If confirmed, she would give the Supreme Court some firsts. She would be the first Asian-American chief justice (Cantil-Sakauye is of Filipino descent) and the court would have its first ever female majority.

Since the announcement, Cantil-Sakauye has gained the public support of Chief Justice Ronald George as well as Third District Presiding Justice, Arthur Scotland. Known as a moderate republican or a law and order republican, Cantil-Sakauye's resume includes stints as a prosecutor, municipal/superior court judge (14 years), and deputy legal affairs secretary and deputy legislative secretary under Governor George Deukmejian. The daughter of farm workers, Schwarzenegger called Cantil-Sakauye "a living example of the American Dream."

Of course, intense scrutiny will follow the nomination. For those of you interested in her judicial opinions, you might start with the following from among her nearly 75 published opinions: People v. Memory (2010) 182 Cal.App.4th 835 (reversing murder convictions due to admission of irrelevant, improper character, and prejudicial evidence of defendants' relationship to notorious motorcycle gang); Bledsoe v. Biggs (2008) 170 Cal.App.4th 127 (upholding teacher layoffs despite less-qualified teachers remaining on the job as permitted by the Education Code); and Shaw v. People ex rel Chiang (2009) 175 Cal.App.4th 577 (striking down Legislature's appropriation of $1.2 billion from California's gas tax in attempt to service bond debts).

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