The Appellate Practitioner

Please visit The UCL Practitioner

Over the past couple of months, I haven't had time to keep The Appellate Practitioner updated in the way I'd like to. Therefore, I am putting the blog on hiatus for the time being. Please visit my primary blog, The UCL Practitioner, which I keep very active with regular updates. I will continue to write occasional posts on issues of interest to appellate practitioners. They will be collected at my "appellate practice" category page. Those posts will, I hope, continue to be relatively frequent. They are why I spun off this appellate practice blog in the first place.

"A High Court Training Regimen"

Friday's Recorder had an article on a new moot program being organized at U.C. Berkeley for attorneys with California Supreme Court cases. It sounds very similar to what Professor Myron Moskovitz has been doing at Golden Gate University School of Law for many years. The article says that the Berkeley program may eventually evolve into a California Supreme Court clinic similar to the many U.S. Supreme Court clinics run by various law schools such as Stanford and Georgetown. I think that's a great idea.

"The Early Brief Gets the Worm"

Slate has an interesting jurisprudence essay on the impact of amicus filings at the U.S. Supreme Court level. Adam Chandler, "The Early Brief Gets the Worm: Liberal groups are ceding a key way to influence the Supreme Court," Slate (Dec. 5, 2008). [Via How Appealing]

"Five Oral Argument Tips — For Judges"

Howard Bashman has reprinted an interesting article from the October 2008 issue of The Federal Lawyer called "Five Oral Argument Tips — For Judges." The article provides the perspective of United States District Judge Michael W. Mosman of the District of Oregon, who sat by designation for a while on the Ninth Circuit. Judge Mosman's first tip reminds appellate judges that "respect is a two-way street" and that no one is immune to typos:

It is also fair to add that much of the disrespect that flows from judges to lawyers comes from a poor understanding of what the practice of law is like. In a real life practice, perfection can be an elusive goal and the pressure to get the job completed can be tremendous. While this is no excuse for mediocrity, it does put minor errors in context. It is probably no accident that the former practitioners on the bench tend to be those who seldom show the lawyers disrespect.

The article concludes:

As between the judge and the lawyer, oral argument is not adversarial. It can be tense; there can be a lot at stake; there are pitfalls for the lawyer that can do harm to the case. But fundamentally it is a form of partnership. This partnership works better if judges show respect to the lawyers and have enough humility to be critical of their own performance.

New opinion on undertakings pending appeal: Leung v. Verdugo Hills Hosp.

In Leung v. Verdugo Hills Hosp., ___ Cal.App.4th ___ (Nov. 14, 2008), the Court of Appeal (Second Appellate District, Division Four) discussed how to calculate the amount of the undertaking required to stay enforcement of a money judgment pending appeal under Code of Civil Procedure 917.1. 

2008 Court Statistics Report

The California Judicial Council's 2008 Court Statistics Report is available at this link. [Via Legal Pad.]

New decision on preservation of instructional error for appeal: Bourgi v. West Covina Motors, Inc.

In Bourgi v. West Covina Motors, Inc., ___ Cal.App.4th ___ (Sept. 24, 2008), the Court of Appeal (Second Appellate District, Division Eight) addressed preservation of a challenge to instructional error on appeal:

Initially, we address whether appellant has waived on appeal any claim that the jury was improperly instructed. Appellant failed to assert instructional error in its opening or reply briefs. We invited the parties to state their views on whether the trial court committed error when it instructed the jury it could consider the safe harbor provisions of the Vehicle Code only with reference to punitive damages claimed in the action and, if so, whether such error was prejudicial to appellant. We also informed the parties and amicus that we proposed to take judicial notice of the underlying superior court file in the matter. We have reviewed the supplemental briefs filed by the parties and amicus in response to our invitation.

Not surprisingly, appellant argued in its supplemental brief that the trial court committed prejudicial error in refusing to properly instruct the jury that the Vehicle Code provides a safe harbor against liability. Respondent objects that we may not construct new legal theories or arguments not raised by appellant to undermine the judgment, nor may we consider portions of the superior court file not designated by appellant. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [“It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness”].)

We take note, however, that “‘[t]he rule requiring an adequate legal argument . . . is largely for the convenience of the reviewing court. And, since the court may decide a case on any proper points or theories, whether urged by counsel or not, there is no reason why it cannot examine the record, do its own research on the law, or accept a belated presentation.’ [Citation.]” (Banco Do Brasil, S.A. v. Latian, Inc. (1991) 234 Cal.App.3d 973, 999, fn. 41; see 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 702, pp. 771-772.)

It would be unjust to close our eyes to patent error. As our former colleague in Division Seven observed, appellate courts are not “‘potted plant[s]’ unable to consider issues unless they are spoon fed by the parties.” (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1031, dis. opn. of Johnson, Acting P. J.; see also People v. Alice (2007) 41 Cal.4th 668, 679 [appellate court may decide issue not raised or briefed by parties if court affords parties opportunity to address issue in supplemental briefs].)

We hold, therefore, that the issue of instructional error has been sufficiently raised and preserved by appellant’s argument on appeal that the trial court erred in denying the motion for summary judgment.

Slip op. at 14-15.

MCLE program: "Handling Civil Appeals and Writs in California State Courts"

CEB will present a day-long seminar, "Handling Civil Appeals and Writs in California State Courts," on Friday, October 3, 2008 in Los Angeles and on Friday, October 17, 2008 in San Francisco. Click on the link for more info.

Here are the program higlights:

• How to assure a trial record that sets up an appeal

• The decision whether to appeal—gauging the costs v. benefits

• Civil writ practice

• Protecting your client's rights during the appeal

• Appellate courts processes & what they expect from you

• Perfecting the appeal and preparing the record

• Writing the most persuasive brief

• Effective oral argument

• Petition for hearing in the Supreme Court

• Recent developments in appellate practice

Thanks to Don Willenberg, chair of the Appellate Practice Section of the Bar Association of San Francisco, for emailing section members about this upcoming program.

"Winning Business Litigation Appeals in the California Courts"

On October 1, 2008, the Appellate Practice Section of the Orange County Bar Association will present "Winning Business Litigation Appeals in the California Courts," featuring Presiding Justice Norman L. Epstein of the Second District Court of Appeal, Division Two. Registration, including dinner, begins at 5:30, and the program runs from 6:00 - 8:00 p.m. The location is Whittier Law School, 3333 Harbor Blvd., Costa Mesa.

"Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel"

Greg May at the California Blog of Appeal asks the question and provides a preliminary answer.