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(323) 652-9451Because I pay attention to analytics, I know that my most popular posts are those in which I have passed on advice or comments from a judge or judge’s clerk. People apparently find and read my blog because they want to get some inside scoop from the bench, as opposed to my witty, original repartee. Best not quit my day job, I guess.
At any rate, a talented Michigan appellate specialist I know attended a recent appellate bench-bar conference and brought back some wise comments from the judges and court staff, “of which,” as Bob Marley sings, “I’ll share with you.”
1. When Briefing the Facts.
When briefing the facts, don’t misrepresent the facts or get too argumentative. Eliminate most adjectives in the statement of facts section. Also be wary of including too many facts and dates. Dates that aren’t relevant to the issues to be decided by the appellate court are distracting and tiresome. Also bear in mind that the appellate court rarely needs to know the entire procedural history.
2. When Briefing the Law.
Briefing the law requires honesty. Do not mischaracterize the law generally or the holding or import of a particular case. Strive for economy; view the page limit as an outer limit, not a goal to reach. Another problem specific to appellate briefing is the tendency to raise too many issues. Judges complain that lawyers often fail to recognize and identify the appropriate standard of review. Judges should be treated as “generalists” who may need a primer on the law in the area and a tutorial on the industry involved. Bear in mind the “ABCs” of good brief writing: Accuracy, Brevity and Clarity. Do not attack opposing counsel in the brief.
3. When Arguing Before An Appellate Court.
The judges cited “reading from a prepared text” as among the most common errors in oral argument. Treat the argument as an opportunity for both the lawyers and the judge(s) to be educated. Do not fail to answer the questions the judge(s) actually asked. Be sensitive to “cues” from the bench as to what a judge believes the real or dispositive issue to be. Do not attack opposing counsel in oral argument. If you are lucky enough to be arguing before a state or the US Supreme Court, be prepared to answer the question, “What rule are you asking us to establish?”
There. Now go kick some appellate ass.
Anyone who has argued a complicated summary judgment motion knows the challenges of making sure the record is robust to provide for appellate review, if necessary. This is particularly true given increasingly “jammed” law and motion calendars, which sometimes cause judges to encourage counsel to make oral argument brief.
Against this background, the Second District California Court of Appeal issued an opinion last week which highlights an important rule when briefing or arguing summary judgment motions. In Tarle v. Kaiser Found. Health Plan, Inc. (2012 WL1850926), an employment discrimination case, the employer moved for summary judgment. The employee opposed the motion, including submissions of 750 pages of evidence. In reply, the employer submitted 335 separate objections to the plaintiff’s evidence. Despite a second hearing and briefing opportunity, the plaintiff did not specifically oppose, in writing or during oral argument, the objections to the plaintiff’s evidence.
The trial court sustained nearly all of the objections to plaintiff’s evidence and granted summary judgment. The plaintiff appealed and tried to raise the issue of the court’s sustaining of defendant’s numerous evidentiary objections. Although the Second District Court of Appeal reversed the summary judgment (on separate grounds), the appellate court barred the plaintiff from arguing the objections, based on her failure to argue orally or in writing against the objections at the trial court. It said. “We conclude that a party who fails to provide some oral or written opposition to objections, in the context of a summary judgment motion, is barred from challenging the adverse rulings on those objections on appeal.”
This opinion reinforces the importance of presenting an organized oral argument on summary judgment motions. Where a judge is “rushing” counsel to make their argument unduly brief, it may even become necessary to take steps to assure that the record reflects this fact (which, itself, could raise an impatient judge’s ire). Tread carefully!
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