September 10, 2015

Howard Bashman offers some practice tips for appellate lawyers

Pennsylvania appellate lawyer and nationally known appellate blogger Howard Bashman recently offered some sage advice on brief writing and oral argument in The Legal Intelligencer [subscription required]. Bashman writes that now, more than ever, the briefs are key to success on appeal. Oral argument is secondary because, even when it is available, “[y]ou cannot expect […]


March 12, 2014

Sage advice for effective brief writing from appellate judges and U.S. Supreme Court practitioners

Since we all know that effective brief writing is what defines a good appellate lawyer, we recommend that you review this post from the Inverse Condemnation blog.  The post summarizes several tips for effective writing gleaned from the panel presentation, “Preparing an Effective Appellate Brief: The Judicial Advocate Perspective.”  The program, sponsored by the ABA […]

March 11, 2014

The “A” list: It’s not just for celebrities

Perhaps the greatest challenge facing an appellate attorney in the California Supreme Court is to persuade the Court to grant a petition for review.  The first step on that path is to convince the Court’s central staff attorney (who is tasked with reviewing the petition and preparing a conference memo) to place the petition on […]

January 17, 2014

Check out this online, searchable version of the Yellow Book

As in all California courts, attorneys practicing before the Supreme Court should adhere to the California Style Manual, aka the Yellow Book (though Bluebook citation format is also acceptable).  (Cal. Rules of Court, rule 1.200.)  So here is a practical tip from our friend Ben Shatz at Southern California Appellate News: the Sixth District Appellate […]

July 18, 2013

A reason to read the separate opinions

There are various reasons for an appellate judge to write a separate opinion, whether it be a dissent or a concurrence. (See Judge Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings (1995) 62 U. Chi. L. Rev. 1371, 1412-1415.) Justice Corrigan’s concurrence in today’s People v. Smith decision illustrates […]

September 11, 2012

The Recorder’s California Supreme Court Service – a neat resource

This is an unsolicited plug for The Recorder’s “California Supreme Court Service” (CSCS). Many of you may already know about this publication, which has been around for ages, but just in case some folks haven’t yet stumbled upon this, here’s the deal. The publication consists of “Comprehensive Weekly Reports” summarizing petitions for review recently filed […]

September 10, 2012

What to do when it absolutely, positively has to be there overnight.

Rule 8.25(b)(3)(B) of the California Rules of Court provides that several categories of documents, including a brief, a petition for review, an answer to a petition for review, and a reply to an answer to a petition for review, are timely “if the time to file has not expired on the date of” their “delivery […]

January 31, 2012

Spumoni ice cream and sua sponte review

Presumably everyone reading this blog knows that the Supreme Court has the power to grant review on its own motion even when no petition for review has been filed. But did you know that the court can exercise that same power even when a petition for review has been filed? California Rules of Court, rule […]

October 21, 2011

What is a grant-and-transfer and when would you want one?

The Supreme Court can grant review “[f]or the purpose of transferring the matter to the Court of Appeal for such proceedings as the Supreme Court may order.” (Cal. Rules of Court, rule 8.500(b)(4).) This procedure is commonly called a “grant-and-transfer.” To the extent confusion surrounds the procedure, it stems from the fact that it is […]

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 […]

June 30, 2011

The California Supreme Court regularly cites dictionaries but does so far less often than the U.S. Supreme Court

In this recent New York Times article, Adam Liptak discusses the U.S. Supreme Court’s increasing citation to dictionaries in its opinions. Liptak notes that, in recent years, the Court has turned more and more to dictionaries to define not only technical terms but also everyday terms. He observes that the Court has “used dictionaries to […]

June 7, 2011

Will the California Supreme Court permit advocates to use iPads at oral argument?

As we noted here, appellate justices around the country are swiftly coming to rely on iPads and other tablet computers when reviewing briefs and draft opinions. The justices of the California Supreme Court appear to be no exception. But this is not the only way that iPads are likely to impact practice before the Court. […]

May 27, 2011

Should parties be required to file Certificates of Interested Entities or Persons when seeking or opposing review in the California Supreme Court?

Rule 8.208 of the California Rules of Court provides that a party must file a “Certificate of Interested Entities or Persons” in the Court of Appeal with its first motion, application, opposition or principal brief. (Cal. Rules of Court, rule 8.208(d)(1).) The purpose of the rule “is to provide justices of the Courts of Appeal […]

May 24, 2011

What does it mean when the California Supreme Court denies a depublication request?

The Supreme Court has the power to order a Court of Appeal opinion depublished. (Cal. Rules of Court, rule 8.1105(e)(2) [“The Supreme Court may order that an opinion certified for publication is not to be published . . .”].) It is clear that a depublished appellate decision cannot be cited as precedent. (Cal. Rules of […]

May 18, 2011

If the parties were to settle after a decision is rendered, would the California Supreme Court vacate its decision and dismiss review?

A recent article by Sheri Qualters in The Recorder discusses Tivo Inc. v. EchoStar Corp., Slip Op., 2011 WL 1767314 (C.A.Fed. (Tex.)) in which the Federal Circuit issued an en banc order denying the parties’ joint motion to dismiss the appeal after the parties reached a settlement. The Federal Circuit noted that the parties made […]

May 12, 2011

How might the popularity of tablet computers affect practice before the California Supreme Court?

iPads and other tablet computers are all the rage, and not only for surfing the ‘net on weekends and keeping up with your friends on Facebook. As this article in the St. Louis Post-Dispatch discusses, iPads are becoming increasingly popular with judges and lawyers. Key advantages cited are that they are lightweight (they can store […]

May 3, 2011

Amicus letters supporting review typically do not appear on the California Supreme Court’s on-line docket

If you’re counsel for an amicus in the Supreme Court, you may be confused or troubled when perusing the Court’s on-line docket. You may be wondering what happened to the amicus letter you filed in support of a petition for review. Sure, you could call the clerk’s office to make sure the letter made it […]

April 20, 2011

E-briefs in the California Supreme Court?

An e-brief disc is a CD-ROM that contains the record on appeal in searchable form as well as all of the appellate briefs in the case, with hyperlinked citations to authorities and the record. They are one of the best tools we know for handling the large record case. They make it a cinch to […]

April 11, 2011

Does it matter that the California Supreme Court has extended the time in which to rule on your petition for review?

Rule 8.512 of the California Rules of Court concerns the procedures for the California Supreme Court to follow when ruling on a petition for review. No portion of the rule causes us to receive more questions than rule 8.512(b)(1), which provides: “The court may order review within 60 days after the last petition for review […]

March 11, 2011

The California Supreme Court’s orders granting review vary significantly by appellate division, but those variations are likely attributable to differences in the number of civil opinions issued and published

Further to this post, in which we evaluated the different rates at which the Supreme Court grants review depending on the appellate district issuing the decision, we thought it would be interesting to determine whether there are discernible differences in the rate at which the Court grants review in civil cases depending on the Court […]