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

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 hard to stay sharp and also, practice what I preach.  Avoidance of the expression, "do as I say, not as I do" comes to mind.  It's with no small trepidation that you look upon the sea of faces waiting for you to impart wisdom.  Or something.

As lawyers, a frequent lament is about the poor quality of written briefs (never our own, of course).  We sometimes see them in our own cases, filed by our opponents.  And ask any trial or appellate judge at the next MCLE seminar you attend, you'll hear the frustration of a difficult job for shorthanded and overworked courts, exacerbated by poorly written briefs.

Let's face it, between discovery squabbles, pre/post-trial motions, mediation and trial briefs, 90% of what we do is write.  And we must do it (collectively speaking) fairly poorly.  Otherwise, how do you explain the popularity and success of brief writing gurus like Bryan Garner?  His MCLEs are not cheap.  They are also very popular.

In law school, we are taught to IRAC during our first semester and to think about legal writing from that framework.  But when it comes to writing the legal argument sections of briefs, doing CRAC is even better.  So whether you are trying to stay one step ahead of your opponents (or those hungry lawyers below you on the firm totem pole) or just been meaning to take a hard look at your own briefs, doing CRAC is a habit that is actually good for you.

Conclusion; Rule; Application; Conclusion.  Appellate briefs are a good forum for demonstrating proper use of CRAC to draft legal arguments.

Conclusion:  The "Conclusion" that forms the first "C" in CRAC is a heading.  This includes subheadings too.  Make sure your headings are in fact conclusions and not just generic categories.  Compare: "The Issue Is A Latin Cross" with "The Latin Cross on Sunrise Rock Has Secular Context as a War Memorial Sufficient to Constitute Ceremonial Deism."  It's easy to tell the generic, directionless heading from the conclusion.  Make sure your headings and subheadings are affirmative conclusions.  Each should translate as "We win because . . ."

Rule:  To write legal argument is to (hopefully) create a paradigm of proof.  So for each discrete legal issue, the critical thing is to fully "Set the Table" before doing application.  I use that phrase, "Set the Table" for good reason.  It's because later, when you think you have finished the "Application," a good way to check before moving on is to see if you "Cleared the Table." 

So when doing Rule, set the table.  First the positive, then last, the negative distinguished.  It looks and sounds like this (in shorthand form, each of the following sentences could be the start of a paragraph or paragraphs): 

In Marsh v. Chambers, this Court held that a chaplain paid with public funds did not violate the Establishment Clause.  [Explain]

And in Van Orden v. Perry, this Court held that display of a six-foot high, three-foot wide, Ten Commandments monument in a large park did not violate the Establishment Clause.  [Explain]

In contrast, in City of Eugene, the Ninth Circuit held that a Latin cross violated the Establishment Clause.  However . . . [Explain while distinguishing the ruling from the authorities above]

Application:  Have you set the Rule table?  Then it's time for application.  Give it a strong signal and stick with the simple signals: "Here . . ."  "In this case . . ."  "Turning to the Sunrise Rock cross . . ."  Application is light and breezy writing because if you have properly "set the table" in the Rule section above, application is the hot-knife-through-butter moment with little need for case citations, just deployment of cases to your fact pattern:

"Here, as in Marsh, the practice of using Latin crosses to memorialize the sacrifices of our fallen soldiers is just as much a part of the fabric of society as . . .  Moreover, as in Van Orden, the context of the physical surroundings . . . And unlike City of Eugene, the Sunrise Rock cross features . . ."

Good application has that crisp, easy flow.  It applies the Rule cases to the facts of the current case. 

Conclusion:  End your Application section's last paragraph with another, paraphrased sentence that matches your heading above, that is the final "C" in CRAC.  "Therefore, the Sunrise Rock cross is ceremonial deism." 

Now before you write that next heading or subheading, ask, "Did I clear the table?"  Go back through your Application section, comparing authority used with authority discussed in your Rule section.  In other words, in your Application section, did you use all the authority you set out in your Rule paragraph(s) immediately above?  If you didn't, is it because you left something important out of your Application section?  Or is it because, you actually don't need that authority up above in your Rule section?  And if you have authority in your Application section that you did not "set the table" with in your Rule section, you have an assertion of proof lacking force and flow.  Either way, the edits you make in response create a better brief.

Once you've cleared the table, congratulations.  You are on CRAC!

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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. Google Inc. 2010 Cal. LEXIS 7544, the Supreme Court held that as long as evidence objections are made in writing or orally at the hearing, trial court failure to rule on them does not result in waiver on appeal. Amen.

In Biljac, plaintiffs filed voluminous evidence objections opposing summary judgment. The trial court refused to make formal rulings, calling such work “a horrendous, incredibly time-consuming task.” The First District held that express evidentiary rulings aren’t necessary because review is de novo, and “the parties remain free to press their admissibility arguments on appeal.” Since then, trial courts often refused to make express rulings, instead citing Biljac and stating that only competent and admissible evidence was considered.

But the real menace was waiver of the objections on appeal. For Biljac was soon shackled sub silentio by the Supreme Court in Ann M. There, ruling without any discussion of Biljac, the high court held that “because counsel failed to obtain rulings, the objections are waived and are not preserved for appeal.” Sharon P. followed, confirming the waiver principle.  But going forward, some appellate courts strictly adhered to the waiver rule, some did not.

Reid holds that "the trial court’s failure to rule expressly on any of Google’s evidentiary objections did not waive them on appeal." Reid concludes that “written evidentiary objections made [before] the hearing, as well as oral objections made at the hearing are deemed made ‘at the hearing’ [for purposes of CCP section 437c (b) (5)] …so that either method of objection avoids waiver.” And, Reid emphasized, “trial court[s] must rule expressly on those objections.”

What about the lawyers? As one appellate court put it, all too often, “litigants file blunderbuss objections to virtually every item of evidence submitted.” (Demps v. San Francisco Housing Authority (1st Dist. 2007) 149 Cal.App.4th 564, fn. 6.) As another put it, filing “innumerable objections…as part of the all-out artillery exchange that summary judgment has become” should be avoided. (Mamou v. Trendwest Resorts Inc. (6th Dist. 2008) 165 Cal.App.4th 686, 711-712.) Instead, as amicus curiae California Academy of Appellate Lawyers put it in Reid, “facilitate [meaningful rulings] by choosing [your] battles wisely and only objecting to evidence when it matters.”

Reid eradicates a waiver penalty that was particularly unfair given that, “the objector must yell and scream and stamp his feet…to [try to] force the trial court to rule on those objections.” (Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 714 (Vogel J., dissenting).) Choose evidence objections carefully, submit them in proper written form and focus the trial court on them during the hearing. If counsel takes this approach, no kicking and screaming in the courtroom should be necessary. And perhaps, no hair pulling, in chambers.

 

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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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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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