California Court of Appeal Justice Armen Tamzarian has noticed a trend: more trial attorneys are handling their own appeals. He says that these appeals can be easy to decide against trial counsel, if they simply rehash their prior disputes without recognizing the critical appellate decision points. Fortunately, trial counsel can improve their chances on appeal with the practical, non-technical tips in this eAlert. These tips, ranging from before trial through appellate oral argument, are based on recent conversations with six newer California Court of Appeal Justices.1
Why These Tips?
The overarching theme of these tips is always be orienting. In other words, always consider how to favorably situate a particular point in its context. In fact, nearly every justice stressed the importance of techniques for orienting the court in briefing and argument. Orienting is particularly important on appeal for two main reasons.
First, an appellate court’s misunderstandings are especially difficult for counsel to manage. As Justice Scott explained, appellate courts normally have the resources and time to decide a case without any extra input from counsel. Unlike busy trial judges, an appellate judge’s chambers can scour the cold record and exhaust lines of authority. But, because there are so few opportunities for dialogue between appellate court and counsel, it can be hard for counsel even to realize that a misunderstanding exists, let alone convince a court to reconsider its careful workup. These misunderstandings are more likely to be factual or procedural than legal. A complicated chronology or procedural history is a prime area for confusion.
Second, appellate judges constantly encounter unfamiliar issues and areas of law. Unlike trial judges, appellate judges have no special assignments such as family law or criminal law. And appellate appointments are diversifying from the typical progression of civil litigator to civil trial judge. For example, Justice Scott practiced mainly as an appellate research attorney; Justices Kim and Hanasono practiced exclusively in indigent criminal defense; and Justice Feinberg went straight from attorney to appellate judge. Do not assume that the court will already know the relevant context or be able to read between the lines of the parties’ strategies.
The Tips
Given this risk of disorientation, counsel on appeal must consciously and wisely use their limited opportunities to orient and reorient the court. The process can and should begin before trial even starts. The following tips focus on the record, then the briefing and finally oral argument.
First, start by putting the necessary context in the right part of the trial-court record. Even though trial court and counsel all might have learned the necessary context from other discussions or briefing, that context is useless to the appellate court unless it appears as admissible evidence for the ruling being appealed (for example, summary judgment). This material can serve two main purposes.
Initially, this context can help orient the appellate court in the first place. As Justice Scott mentioned, an organization chart or a similar exhibit can help the appellate court understand the dispute. Similarly, a qualified witness can explain any relevant jargon or background, for example an overview of a business relationship.
And if needed, this material can helpre-orient a confused or skeptical court. On appeal, an opponent can easily mischaracterize facts or issues in unexpected ways, but some basic background and context in the record makes it much easier to correct unexpected mischaracterizations. This context can be especially critical for the determinative issue of prejudice—i.e., whether the alleged error mattered to the end result.
Second, use the briefing to marshal that context. This process starts with the table of contents, which Justice Scott advises to “hone” as if it were “the first and last word on your case.” Similarly, excerpting a context-setting document directly in the brief will ensure that the court sees it.
However, more information doesn’t always add clarity. Attention is limited, so it is important to omit unnecessary details, which draw the reader’s mental energy away from the real focus. One simple step that Justice Richardson repeatedly stressed is to avoid confusing acronyms. Instead, use a descriptive nickname. For example, a hypothetical County Fire Protection District should be called The District, not CFPD.
And looking forward, use strategicrecord citations in the briefing to increase flexibility later at oral argument. Nobody wants to come up blank when the court asks where to find a particular detail in the record. For issues with significant procedural or factual background, it can be helpful to use a few overinclusive string citations to the record, made navigable with parenthetical explanations. Then, if an unanticipated point on that issue becomes relevant at argument, a reference to a labeled portion of a string citation is better than nothing. For example, when arguing that evidence was erroneously admitted, the prejudice analysis could include a footnote with string citations separately identifying every time the issue was discussed in closing argument by each party. Similarly, if a procedural issue was discussed across numerous pretrial conferences, counsel may want to cite all instances—for example, grouped with parentheticals noting the discussions that happened before versus after a critical development. At oral argument, counsel can answer a question by mentioning the relevant, labeled portion of the record citation.
Third, when preparing for oral argument, specifically practice orienting and re-orienting. To be sure, it’s worth honing the ideal phrasing for the most important points. But an advocate can’t make those points unless the listener is oriented to receive them. Two techniques help.
Begin by explaining the whole appeal, conversationally, to people who know nothing about it. Explain procedure, evidence, arguments—whatever matters. It’s always surprising to learn what confuses people. In this exercise, the key is that the listener is always right. If something confuses the listener, then the explanation needs to be clearer. This exercise helps prepare the advocate to avoid, anticipate and manage misunderstandings.
Then, prepare how to explain positions on key points withdifferent levels of specificity. Since an appellate court might focus on only a limited portion of a case, but have significant resources to work it up before argument, it’s difficult to know whether the court will have the key issue down cold, or completely wrong. Oral argument will be far more productive when the advocate can seamlessly transition between granular and high-level discussion, depending on the court’s needs in the moment.
In sum, appeals present special risks for misunderstanding by the court, but counsel can help limit those risks with these orientation and re-orientation techniques.
Footnote
1 Michelle Kim (Second District, Division One), Anne Richardson (Second District, Division Two), Mark Hanasono (Second District, Division Three), Armen Tamzarian (Second District, Division Four), Aimee Feinberg (Third District) and Nathan Scott (Fourth District, Division Three).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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