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Monday
Jan072008

As I was saying . . . avoid recycled briefs.


Happy New Year! It's hard to believe the Holidays are over and we have to get back to work. Back to my last subject, using recycled briefs.


Because courts of appeal are not bound by the decisions of other appellate courts, “appellate court precedent is open for reexamination and critical analysis. Along the same lines, appellate counsel must necessarily be more acutely aware of how a given case fits within the overall framework of a given area of law, so as to be able to anticipate whether any resulting opinion will be published, and what effect counsel’s position will have on the common law as it is continuously developed.” (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409.)



The court in In re Marriage of Shaban, supra, concluded:



“The upshot of these considerations is that appellate practice entails rigorous original work in its own right. The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.”



(Id. at p. 410.)


Apparently, some attorneys do not even take that additional step of "shoveling." In Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, the appellant referred to documents he filed with the trial court below and incorporated them by reference into his appellate brief. Now that takes a lot of chutzpah to be so confident of your position that you don't even have to lay it out for the court. If the justices are interested, let them go find the documents in the record! Not only did the Court of Appeal find this to be a violation of California Rules of Court, rule 8.204(a)(1)(B), but it annoyed them enough to make a published comment and then reject his "incorporated" arguments. I'll bet his client was pleased with saving the printing expense as a result of the attorney's abbreviated arguments.

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