A View from Inside the Appellate Court

I recently attended a seminar presented by two attorneys from our local Court of Appeal. So, here's the inside scoop:

  • Statement of Issues: The attorneys said that in over half the briefs they received, it wasn't clear what the appellant was appealing. They asked, "Are you appealing or just complaining?"

  • Introductions: Only a page or two. Give them a clue and remember they don't know the facts.

  • Edit, edit, edit.

  • Citing cases that are against your position can enhance your credibility.

  • They really do check our citations.

  • Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do.

  • Let a non-attorney read your draft. If he or he can't understand it, then edit some more.

  • Avoid words such as "clearly," "uncontroverted," and "certainly."

  • Don't bunch up your cites to the record at the end of the paragraph; add them in sentence by sentence.

  • Don't bury one point in another.

  • Credibility above all else.

  • The attorneys don't have a computer record to conduct searches so make it easy for them to find the citations.

  • Thinking of filing an e-brief? The court will love you. It's hard to miscite the record when it is available at the click of a button.

  • Don't argue in your Statement of Facts.

  • Support your points and make sure they match your Table of Contents.

  • Don't sandbag your opponent by bringing up new matter in your Closing Brief, so they can't respond to those points.

  • Prioritize issues according to strength and based on the stronger standard of review.

  • Pick your issues carefully and eliminate unnecessary facts.


Is it too difficult to return a phone call?

By the time I get involved in a case, the client has been through at least one, if not more, attorneys. Not only do I learn about the case, but I also hear about the relationship between the client and his or her attorney. Sometimes I feel like a janitor coming in after a big party and I have the task of cleaning up after the festivities are over. Or perhaps not quite over.

It wasn't too long ago that plaintiff's attorneys were concerned about their negative image with the public. The public perception of trial lawyers is generally not positive. Most of the people I talk to are angry and have lost confidence in their attorneys. It would be easy to say that they are just sore losers but I am not so convinced.

If trial lawyers are interested in improving the image of their profession, they can start with the simple things. Such as returning a phone call. That is the number one complaint that I hear. Average joes simply cannot reach their lawyers. It doesn't matter that they leave voice mail messages, fax notes, or send emails. Their lawyers are too busy.

The second major complaint is that their lawyers just don't care. That indifference can be demonstrated by a lack of preparation or by ignoring the client's efforts to provide information or evidence. Clients understand they are engaging in a business transaction but they just don't want to feel like a product.

Our image with the public could improve a couple of notches just by doing a few simple things. Return the phone call within 24-48 hours. If you can't, have your staff do it. When you talk to your client, show some concern. You might learn a few facts about the client and his or her family. Just because we are in business doesn't mean we shouldn't show a little compassion. Listen to what your client has to say. Sometimes their explanation will fill in the blanks or shed light on areas that cause us concern. After all, they lived the case.

Failing to create and present a meaningful record on appeal.

Presenting a sufficient record that demonstrates error overcomes the presumption that the judgment is correct. As noted in Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760, if the record is silent, the presumption of correctness will control, but where the record demonstrates what the trial court did and error below, the presumption is overcome. “When the record clearly demonstrates what the trial court did, we will not presume it did something different.” (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384.)

So, how can an attorney fail to create a meaningful record? You might have a sidebar discussion, which may include a ruling, or an in-chambers conference, that is not reported. You might withdraw certain jury instructions and fail to make those withdrawn instructions part of the record. You might give the court reporter a break and waive reporting certain aspects of the trial, such as voir dire or closing arguments.

Failing to present a meaningful record may be more of a matter of choice. A “meaningful” record does not mean including only the items that favor your position. For instance, if you are appealing from the granting of a summary judgment, denial or granting of a post-trial motion, or an anti-SLAPP motion, you should designate all documents that were considered at the hearing. That shows you are fair and credible, and you believe your position is strong enough that you don't need to hide documents and you will win on the merits.

That doesn’t mean intentionally omitting the opposing attorney’s filings. While this omission could be cured by a counter-designation or a later motion to augment, it does not reflect an objective presentation of the facts and could harm your credibility. In the worst case scenario, the reviewing court may conclude that it does not have an adequate record to make a determination that an error has occurred.

If the appellants fails to present a meaningful record, that puts the respondent in a quandary. Should he or she do nothing and let the reviewing court conclude the record is insufficient? Or should the respondent’s attorney provide the missing parts of the record, especially if the omitted portions will support respondent’s position? That, of course, will depend on the facts of the case.


The importance of a meaningful record on appeal.



The “record” consists of the Clerk’s Transcript or an appendix prepared by one or more of the parties of documents filed with the lower court, the Reporter’s Transcript of the oral proceedings, and the exhibits.

If you are the appellant, you have the burden of showing error on an adequate record. (Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1209.) That means two things:

  • You must have created a record that shows the error, and

  • You must produce enough of the record for the reviewing court to show that the error occurred.

“‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

In Denham v. Superior Court (1970) 2 Cal.3d 557, the court stated:

“‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’”

(Id. at p. 564.)

Failing to create a meaningful record can occur in many ways. In my next post, I will provide a few examples and note some pitfalls in selecting the record.


Just answer the question!

Despite my best intentions, I haven't been able to blog for a few weeks. Not only was I trying to keep up with my work but I suffered an awful attack of bronchitis that left me with a few bruised ribs from coughing. I just didn't have any wisdom to share!

I am almost fully recovered and my powers of observation are sharpening. Just the other day, I attended an oral argument. One justice asked a question and the attorney quickly launched into what he wanted to say. Perhaps he intended to answer the question at some point, but the justice was noticeably irritated when a direct answer was not the first response out of the attorney's mouth. A few minutes passed and another justice reminded the attorney that he still hadn't answered the question. The second justice encouraged him to answer the question. Realizing the importance of this omission, the attorney then said, "Can you repeat your question?"

There is a simple point to all of this: make answering a justice's question your first priority. When we approach oral argument, we all try to plan our presentations. Sometimes we get so wedded to the presentation, we don't want anyone to stop the flow of words. Keep in mind that your presentation consists of information that you want to give.

Asking a question is a direct path to getting information that the justices want to hear. After all, they have briefed the case and may have some idea of how they feel it should be resolved. A question might be an attempt to fill in a missing piece to the puzzle.

Ignoring a question signals that the justice's question is less important than your magnificent speech. Would you ignore a doctor who asked for more information about your symptoms or the waitress who only wanted to clarify if your steak was to be delivered to the table rare and well done? Think of yourself as part of a problem-solving team.

To make it easier: you might try to practice your oral argument in segments. Mix it up and argue out of order. Write a few questions on slips of paper and respond randomly. More importantly, recognize that answering a question is a great opportunity to deliver the information that might make the difference in how the case is decided.