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.
While most attorneys strive to write well-argued briefs on substantially justified legal theories (yes, I am an optimist), I don’t believe even the most conscientious of us realized that years ago, the Ninth Circuit created the “Slubby Mass” rule regarding the filings of appellate briefs:
"In order to give fair consideration to those who call upon us for justice, we must insist that parties do not clog the system by presenting us with a slubby mass of words rather than a true brief." N/S Corp v. Liberty Mutual Ins. Co. (9th. Cir 1997) 127 F.3d 1145, 1146. (Emphasis added.)
Have Opinion Will Travel does a great job of summarizing this esteemed line of jurisprudence here, and bears no repeating. However, the First District has apparently adopted the Ninth Circuit’s impatience with frivolous appeals.
On Friday, the First District ruled that appellant’s arguments in Gong v. Kwong (2007) were in bad-faith and frivolous.(.pdf) The court dismissed the appeal outright and ordered sanctions in favor of both the respondent and the clerk of the court to the tune of $21,000 to be paid jointly by both the appellant and his attorneys. The court was not pleased by appellant’s “creative” arguments to avoid his child support award:
"[They] have taken a phrase or two and have fashioned from them an argument that attempts to subvert the trial court’s intent in order to deny support to Kwong’s children and interest on his obligation his former wife for a nine-month period."
These cases actually highlight an oft overlooked area of appellate practice – the filing of motions at the appellate level. While it in no way compares with motion practice at the trial court level, the procedural rules at the appellate level do offer some opportunities for arguing that a case should be dismissed, or sanctions issued, without necessarily waiting for the entire briefing process to be completed. In certain instances (e.g. when you are facing a “slubby mass”) these motions can be an opportunity to save a client some money, and time, before jumping into the often long briefing process in appellate court.
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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