California Appellate Law Blog

California Appellate Law Blog

News and Insights about Appellate Law

Category Archives: Appellate Procedure

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Legal Writing: Speak Freely (But Plainly, Please!)

Posted in Appellate Practice, Appellate Procedure, On Being a Lawyer
“This petition . . . ask[s] this Court to unmistakably clarify, to the whole patent community, that its Mayo/Biosig/Alice decisions (“3 decisions”) ended the claim construction anomaly hampering especially ET CIs – but meet, by their ‘ET proof’ refined claim construction, all ET CIs needs.” So begins the petition for review filed by a respected law firm in… Continue Reading


Posted in Appellate Practice, Appellate Procedure, Civil Procedure, Recent Decisions
The verdict is in.  AEG Live is not liable in the Michael Jackson wrongful death suit.  An appeal is a foregone conclusion.  But will an appeal be a "Thriller?"  The standards of review tend to reduce the possibility of drama, and also deflate the charged emotions attendant during trial.  For example, the pivotal factual dispute–was AEG Live negligent in its retention… Continue Reading

Sign Here

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer, Recent Decisions
In 2006 the Legislature amended Code of Civil Procedure section 998 to state that "The written offer shall include . . . a provision that allows the accepting party to indicate acceptance of the offer by signing a statement that the offer is accepted."  In 2013, we are still seeing cases in which failure to include the acceptance provision… Continue Reading

Flag on the Play

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer
Archer Norris welcomes Tiffany J. Gates to the appellate practice team and is pleased to present her first blog entry: Flag on the Play Football coach Vince Lombardi famously opined that, “Winning isn’t everything; it’s the only thing.”  This mantra captured the public’s imagination during Lombardi’s reign as coach of the Green Bay Packers in… Continue Reading

Prevailing Party Attorney Fee Awards

Posted in Appellate Procedure, Civil Procedure
This Friday, November 16th, I will be joined by the Honorable Justice Mark Simons (First Appellate District, Division 5) and Don Willenburg of Gordon & Rees, for a discussion on contractual attorney fee awards.  The panel presentation will take place during the Contra Costa County Bar Association’s annual "MCLE Spectacular" in Walnut Creek.  Topics include fee awards as… Continue Reading

Ninth Circuit “Veterans”

Posted in Appellate Practice, Appellate Procedure, On Being a Lawyer
As director and supervising attorney for the Hastings Appellate Project, I work with some terrific young legal talent and this year was no exception.  We invited six Hastings students to join the program this past academic year and handled three Ninth Circuit Appeals pro bono.  In one appeal, 3Ls Mara Boundy and Kelly Matayoshi represented a client facing deportation.  Despite an… Continue Reading

Goin Round in Circles

Posted in Appellate Practice, Appellate Procedure, Civil Procedure, On Being a Lawyer
A recurring theme is that collectively speaking, lawyers often make and evaluate Code of Civil Procedure section 998 offers without a complete understanding of how the statute operates.  That knowledge gap is a little scary.  But before you conclude I am talking down to trial lawyers (and many have heard me admire how trial lawyers react in… Continue Reading


Posted in Appellate Practice, Appellate Procedure, On Being a Lawyer
What’s that old saying that a good lawyer can argue just about anything?  While that may be true, a recent decision by the Sixth District Court of Appeal demonstrates that some arguments are better left not taken.  Sometimes it’s probably better to walk away.  But if taken, a proper record should be designated, or what follows could be quite, well, unpalatable.  For failure to properly perfect… Continue Reading

In Search Of

Posted in Appellate Practice, Appellate Procedure, On Being a Lawyer
Here’s a reminder about the appellate lawyer’s obligation to tie legal arguments to the record.  In addition, every now and then you run across what appears to be a little judicial jab in an appellate opinion: "Under the circumstances, [Plaintiff] has not met his burden of showing abuse of discretion.  Each appellate brief must ‘support any reference… Continue Reading


Posted in Appellate Procedure, Civil Procedure, Recent Decisions
Code of Civil Procedure section 998 offers rest upon a simple concept.  As one Court of Appeal put it, 998 offers "encourage settlement by providing a strong financial disincentive to a party–whether it be a plaintiff or a defendant–who fails to achieve a better result than that party could have achieved by accepting [a 998] settlement offer. (This is… Continue Reading

Charting the (Stormy) Public Works Water

Posted in Appellate Practice, Appellate Procedure, Recent Decisions
California’s economic downturn means that public works projects are fewer in number and smaller in scale as local and state agencies grapple with reduced funding. As a result, public works bidding is more fiercely contested than ever. A recent decision provides a good example. (Schram Construction Inc. v. The Regents of the University of California… Continue Reading

The Ticking Clock

Posted in Appellate Practice, Appellate Procedure
Failure to timely file a notice of appeal is fatal.  There is no relief.  Sixty days is a long time.  But is the clock ticking?  When did it start to run?  When does it run out?  Are you sure? Under California Rules of Court,rule 8.104, the clock starts ticking when either of two things happens:… Continue Reading

Where to Start

Posted in Appellate Practice, Appellate Procedure
So you are thinking of appealing.  In California’s state courts, initiating an appeal requires a final judgment or an appealable order.  An order is appealable if either a statute expressly says so or it carries the same effect as a final judgment.  Hmnn, getting complicated already.  A good place to start is Code of Civil… Continue Reading

Windmill Tilting?

Posted in Appellate Procedure, On Being a Lawyer
To the uninitiated, oral argument is the denouement of every appeal; the moment when the great appellate orators clash and the appellate court considers how to rule.  But for those that have been around the appellate block more than once or twice, loss of innocence is discovering that the appellate court has a draft opinion already written… Continue Reading

Doing CRAC

Posted in Appellate Procedure, On Being a Lawyer
As an adjunct professor, I tend to remember that old saw about those that can, those that can’t, and which of the two are teachers.  It’s a little scary.  Between avoiding being in the wrong half of that equation, and wondering what the students might ask me next, there is plenty of incentive to try… Continue Reading

No More Kicking and Screaming

Posted in Appellate Procedure
Mercifully, the Supreme Court has ended the summary judgment evidence ruling waiver debate. The waiver issue arose out of Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, Ann M. v. Pacific Plaza Shopping Center] (1993) 6 Cal.4th 666 and Sharon P. v. Arman Ltd. (1999) 21 Cal.4th 1181. Last week, in Reid v.… Continue Reading