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

 

In a recent article in The National Law Journal (reprinted in The Recorder on April 20, 2009), Michael P. Shea discussed the merits of permitting appellate review of orders denying claims of attorney-client privilege as immediately appealable collateral orders. 

Mr. Shea makes a compelling case for this change, noting that certain federal courts already permit it; alternative remedies are ineffective (or worse); and no onslaught of appeals should result from a the change.

Read more here.

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Mike McKee at the Recorder wrote an interesting article yesterday about the reply brief on appeal.  Apparently, it is a controversial document, with some judges bemoaning another fifteen pages reiterating appellant's arguments and others claiming that it is the first document they read.

The article talks briefly about Justice Scalia's thoughts, offered in response to questions on his recent book tour.  At the seminar in D.C. last week with he and legal writing guru Bryan Garner, Justice Scalia spoke at some length about the danger of not anticipating judges who are "retro-readers" -- who read the briefs in the opposite order in which they are filed.  As the Recorder article confirms, many justices and judges work from back to front when reading briefs, believing that it is not until the reply brief that the "real" issues and controversies between the parties are sufficiently pared down to warrant consideration.

In my humble opinion, the question of whether or not to file a reply brief (as opposed to its content) is really a non-issue.  We are advocates for our client, and although there are certainly times when less is more, I do not believe that letting your opponent’s analysis of your argument sit as the last word is ever good advocacy.  As Justice Stein commented, the lack of a reply brief, “gives you a clue it's not a strong case."

For me – argument over.

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Any (every?) authority on legal writing admonishes against “incorporating by reference” and encourages legal writers to quote important components of the record and include all legal arguments with the body of an appellate brief.  (Or any dispositive motion for that matter).  Inevitably, we’ve all had those moments – after pouring over a record for the twelfth time or making the same argument in the fifth demurrer to the complaint – where the temptation to reference an earlier argument or to just cite to page 1,420 of the record becomes more than mere temptation, and seems to approach actual reason.

Maybe an admonition against this practice from the Justices themselves will dispel your temptation:

While incorporation by reference might seem to make sense ecologically, by reducing the amount of paper used in appellate briefs, the actual result would be to increase the amount of papers used in an appeal.  The rules require an original and four copies of the appellate brief.  The original brief stays with the record on appeal.  Each of the three justices on the panel deciding the case receive copies of the briefs which they can use at their desks, work on at home, or take with them when traveling for an engagement outside the court.  The fourth copy remains in the clerk’s office for public inspection.  Only one copy of the trial court record is filed in the appellate court, however.  If all three justices had to share this single record in order to review, research and evaluate a party’s arguments the time it would take for the court to decide the appeal would considerably increase.  This would work a hardship on the parties to that appeal and to the parties in other appeals awaiting their turn for consideration and decision.  Alternatively, four copies of the trial court records would have to be filed with the Court of Appeal.  Because these records often consist of thousands of pages it easy to see how the amount of paper used in the appeal would increase significantly.

Parker v. Wolters Kluwer United States, Inc. et al. (2007) 149 Cal.App. 4th 285, 290-291 (certified for partial publication).

An interesting commentary on appellate procedure, to be sure:  If that hasn’t curbed your desire to type “See . . .”, keep reading:

Therefore, in deciding the issues in this appeal we have not considered Parker’s “incorporated” arguments.

Id. (Emphasis added.)

Make the arguments again.  Cut and paste if you must.  Don’t incorporate by reference!

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