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

     I am a big fan of SPOGG, mostly because I teach legal research and writing courses to paralegal students on Wednesday nights, but also because I’m a little bit of a grammar nerd. If you are the red-pen-wielding type, you will be a fan of SPOGG, too.

     Each quarter that I teach, I (vainly) try to impress upon my students the importance of understanding and following the rules of grammar in their legal writing by illustrating the consequences of not doing so. Generally, this lecture is received by a fair amount of whining, eye-rolling and an I-already-know-this exasperation. The complaining is then followed by papers plagued with sentence fragments and comma splices, a failure of subject-verb agreement, an obvious attempt to spell-check followed by an equally obvious failure to proofread, and a sometimes hilarious attempt to “over-write” that ends in the misuse of words the student cannot possibly have consulted a dictionary for definition before using.

 

     So, I decided I needed some back-up. If my students did not believe me, perhaps they would believe the learned justices in the appellate courts who had taken an attorney or two to task for sloppy brief writing. 

                       

 

     In my quest for assistance, I have collected some terrific appellate opinions that illustrate the point. My favorite of these opinions is a district court’s order on summary judgment found in Bradshaw v. Unity Marine Corp., Inc. (S.D. Tex. 2001) 147 F.Supp.2d 668.

       

     In the midst of addressing the merits of the defendant’s motion for summary judgment, the Court engages in the following evaluation of counsels’ briefing:

 

Before proceeding further, the Court notes that this case involves two extremely likeable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact – complete with hats, handshakes and cryptic words – to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that the utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor’s edge sense of exhilaration, the Court begins.

            The district court’s commentary goes on, but you get the idea. My students seem to understand the significance of the fact that counsels’ names are forever attached to this unflattering opinion, and at least the next papers my students submit tend to reveal a more purposeful effort at proofreading and quality writing.

            Sometimes, the consequence is a bit harsher than simply being mocked by the court in writing. I recently stumbled upon a decision out of the Court of Appeals of Wisconsin, Johnson v. Roma II – Waterford, LLC (2009) 2009 WL 929049 (Wis.App.). Johnson memorializes the travails of the hapless Mr. Hudec, who inadvertently filed a “draft” answer to a complaint, rather than the final version. Opposing counsel obtained a default judgment against Mr. Hudec’s client, based on the client’s failure to answer certain portions of the complaint, and Mr. Hudec sought to have it set aside. The trial court refused, finding that Mr. Hudec’s “mistake” was not excusable neglect.

            Mr. Hudec made matters worse for himself on appeal. His brief was in such shambles, the Court of Appeal direct Mr. Hudec, in footnote 8, to “[t]ips for proofreading [] found online at the University of Wisconsin-Madison’s “The Writing Center”. See http://writing.wisc.edu/Handbook/Proofreading.html”. The Court of Appeal then reported Mr. Hudec to the Office of Lawyer Regulation.

            What are your thoughts about the importance of grammar, proofreading and quality legal writing in general? Feel free to share your stories here. I could use them on Wednesday nights.

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Last week a friend at work asked me to sit as a judge for a class he teaches in appellate advocacy at JFK Law School.  After a certain amount of polite grumbling (it required driving into SF in rush hour traffic) I agreed.  As I was subsequently sitting in that traffic, I began pondering what ultimate wisdom I could impart to these students about oral advocacy.  The entire drive over (which was long to say the least) I considered the pearls of wisdom Ric had imparted to me before my first oral argument, comments by Justice Scalia and Bryan Garner from their amazing seminar I attended last summer . . . By the time I reached the 9th Circuit's courthouse in SF, I was feeling very blessed to have such amazing mentors in my own career.

By the time I left, I had to chuckle.  I walked into the 9th Circuit that evening thinking I was doing a favor for a friend and a service for some law students.  After I got over the initial uncomfortableness with donning an actual robe and sitting at the bench (it felt somehow sacrilegious . . . like dressing as a priest while attending the church Halloween party) I realized that watching a serious of students argue from the judge's perspective was probably one of the most valuable learning experiences I've ever had in oral advocacy.  No amount of seminars, CLE classes, or even actual arguments, can truly give you a chance to view an argument from that perspective. 

The students did a great job.  But, listening to how they formed their arguments and the syllogisms they used was so important.  It was easy, at times, to lose track of where they were going with their reasoning when it was not extremely clear, succinct, and laid out at the beginning of their arguments.  Using indicators to tell us that they were now moving to a different area of their arguments was extremely helpful.  And most interesting was my almost visceral reaction when one student claimed he was citing the statute and ended up quoting a portion of the legislative history.  It was not intentional -- and he was nervous -- but the misquote jumped out at me and made it very hard for me to follow the remainder of his argument.  Moreover, I found myself becoming very suspicious of his other arguments and wanting to turn to the record after each statement he made in order to check its veracity.

Not that any of these are new tips on oral argument, but I don't know that anything can compare to actually experiencing how helpful and important these things are to the justices sitting in front of you.

Long story short:  If you get an opportunity to participate in such an exercise, I highly recommend it.  It is a great public service, and you may learn more than you anticipate.

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Greg May, over at the California Blog of Appeal, is starting a new series on the reasons why attorneys, and more importantly their clients, are sometimes reluctant to hire appellate counsel.  Sure to spark an interesting conversation . . . check it out here.

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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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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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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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