August 23, 2011

California Supreme Court supplemental briefs: File early, file often?

Rule 8.520(d)(1) allows parties in Supreme Court cases to file 2,800-word supplemental briefs “limited to new authorities, new legislation, or other matters that were not available in time to be included in the party’s brief on the merits.” In the latest edition of California Litigation, former Cal Supreme Court research attorney Gary Simms says the following about those briefs filed under rule 8.520(d)(1): “[T]o make a supplemental brief count, file it as soon as you learn of the new authority. . . . [Y]ou may need to file more than one supplemental brief. For example, you may learn of a new authority three months after your original brief was filed. You can file a supplemental brief. Three months later, another new decision is filed. You can file another supplemental brief for that new authority.”

We have sometimes taken this approach, especially when a blockbuster development occurs. But at other times we’ve felt it more appropriate to collect various relevant authorities that come down between the end of briefing and oral argument, and to send in one supplemental brief covering several cases. Also, sometimes it makes sense to wait and see if modification, rehearing or review is granted after a new decision is published, rather than rushing out a supplemental brief as soon as an opinion hits the books.

Rule 8.520(d)(2) limits supplemental Supreme Court briefs to 2,800 words, so it might be asked whether filing multiple supplemental briefs collectively exceeding that limit is a violation of the spirit of that rule. As far as we know, the Supreme Court applies the word limit only to individual supplemental briefs, and would permit a party to file multiple supplemental briefs close to but not exceeding that limit. Of course, there’s not much room for gaming the system, since you can’t know when you file one whether there will be any additional new authorities requiring you to file another.

The bottom line: both approaches (filing multiple supplemental briefs or filing one brief discussing multiple authorities) are proper under the rules, and when to file a supplemental brief will depend on a number of variables. There may be reasons to hold off, rather than filing “as soon as you learn of the new authority.”

Posted for Lisa Perrochet

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