Make Those Arguments: Don't "Incorporate By Reference."

Posted on April 17, 2008 by Kimberly Amick

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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They Don't Need An Appellate Attorney on Boston Legal, So Why Do I?

Posted on December 1, 2007 by Kimberly Amick

I am used to blank stares when -- in response to the typical question of “What kind of law do you practice?” -- I tell people that I am an appellate lawyer.

There are no “appellate lawyers” on Boston Legal or Law and Order. Its been awhile since I’ve seen an episode of Ally McBeal, but I don’t recall any there either. Its disconcerting, however, when I get that same stare from my colleagues.


Specialization in appellate law is a fairly recent trend in legal practice. Cases have become more complex (and appellate court justices more impatient) with briefs that merely recite what was originally presented to the trial court or that do not follow the appellate rules of procedure.

Yes. There is are appellate rules of procedure. There is even motion practice in appellate court. 

The biggest difference, however, between advocating for a client in trial court versus appellate court, is your audience.

The jury (or the trial court) is focused on the facts of your case. You, as a litigator, are focused on your story. Once you reach the appellate level, however, the justices are not concerned with either the facts necessarily, or your story. They are there to make sure the law is being followed – that the trial court applied the law to the facts of your case properly.

This distinction marks a difference between arguments to an appellate court, versus the arguments you may make as trial counsel to the superior court judge – And, this is where an appellate practitioner can come in handy.
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Why another blog about appellate law?

Posted on December 1, 2007 by Kimberly Amick

There are few resources -- either online or in our rapidly diminishing libraries --that offer guidance on protecting your client’s case on appeal while you develop your case at the trial court level. Most practitioners wait until after the trial court has already ruled on a particular issue before evaluating the potential outcome of appellate review of the issue. How the issue is presented to the trial court before it is ruled upon significantly impacts the manner in which the issue is considered by the appellate court. This blog is intended to offer some insight as how to best present such issues at the trial level so that their merits are given maximum consideration at the appellate level.    

When I first began handling appeals, most of the work came from my colleagues at my firm.   I would love to claim that people sought my advice before structuring their litigation, but that rarely happened. Instead, I was the last stop -- often visited by attorneys who weeks before had been riding the high of winning that big verdict only to receive a notice of appeal in their inbox. The reality that the jury verdict or trial court’s decision in their favor was not the end of the dispute would bring them to my door.

Any appellate practitioner will tell you that waiting until after the verdict should not be the first time a litigator considers the potentially appealable issues in a case. By the time the jury renders its verdict, the record and arguments relevant to the issues have been made and your client is bound by both on appeal.

Now at Archer Norris we have an extremely effective collaboration between the trial attorneys and our appellate team. We work together before and during litigation at the trial court level to insure our client’s case is ready for a potential appeal before a notice of appeal is filed. We collaborate on trial strategy at the outset of a case, before summary judgment motions, and in preparing the evidence for trial. Do we write appellate briefs, writ petitions and responses thereto, and appear for oral argument before the various appellate courts? Of course. But the collaboration between our trial counsel and our appellate department protects our clients’ potential for success on appeal. Trial strategy is thorough and well planned, thus eliminating the possibility that an inadequate record or the waiver of a legal argument will diminish our chances on appeal.

What does this have to do with the California Appellate Blog? My colleague, Kim Amick, and I are taking this collaboration “online” as they say. If you are looking for daily case summaries or in-depth analyses of opinions issued on a specific practice area, we will offer that occasionally, but our goal is to highlight those opinions that affect the day-to-day practice of litigators and appellate lawyers. Most importantly, we strive to be a resource for trial and appellate counsel and to foster awareness that the decisions you make from day one affect a potential appeal.

Welcome and enjoy! If you have any questions or comments, Kim and I would be happy to hear from you at rblumhardt@archernorris.com or kamick@archernorris.com.  

Best Regards,

Ric Blumhardt
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