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 […]

February 17, 2011

The California Supreme Court’s orders granting review in civil cases generally track the number of civil opinions issued by each appellate district, except . . .

As this graph shows, we’ve reviewed all civil cases in which review was granted during the three years between January 2008 and the end of December 2010 to determine if the Supreme Court is more or less likely to grant review depending on which appellate district issues the opinion. Assuming a relatively even rate of […]

January 21, 2011

When will the California Supreme Court deny review despite a conflict in the published appellate decisions?

This month’s Los Angeles Lawyer contains an article reviewing the California Supreme Court’s several recent decisions interpreting the California Environmental Quality Act (CEQA). What we found interesting from a practice perspective is the article’s quotation of Justice Kathryn Werdegar’s Remarks at the State Bar’s 2010 Environmental Law Conference. There, Justice Werdegar identified the circumstances that […]

December 17, 2010

When seeking review, whether the Court of Appeal opinion is published might matter even more than you think

If you’ve practiced before the California Supreme Court for long, you know that the publication status of a Court of Appeal opinion substantially affects your chances of obtaining review. This makes sense because the Supreme Court is tasked with “secur[ing] uniformity” in California law (Cal. Rules of Court, rule 8.500(b)), and no conflict can exist […]

December 3, 2010

Don’t forget your pro hac vice application

We’re aware of a recent situation where out-of-state counsel was granted pro hac vice status to appear in the trial court, but when that counsel’s name appeared as co-counsel on the cover of an appellate brief in the same case, the brief was bounced because a separate pro hac vice application was not filed in […]

December 1, 2010

Is it worthwhile to file a reply in support of a petition for review?

When seeking review from the California Supreme Court, should you go to the time and expense of filing a reply in support of your petition? The answer is not entirely obvious, especially given the expressed view of some Supreme Court research attorneys that they don’t understand why so many answers to petitions for review are […]

November 29, 2010

When requesting an immediate stay from the Supreme Court, call ahead

There are times when seeking review in the Supreme Court that it is also necessary to ask for an immediate stay of trial court proceedings. For example, if your client has been ordered to produce privileged documents immediately and the Court of Appeal has summarily denied your writ petition challenging that order, you may want […]

November 5, 2010

Just hold everything

Rule 8.512(d)(2) of the California Rules of Court provides that “[o]n or after granting review, the court may order action in the matter deferred until the court disposes of another matter or pending further order of the court.” This rule permits the California Supreme Court to exercise one of its often used, but rarely discussed, […]

November 2, 2010

Style matters

There is an aspect of practice before the California Supreme Court that is often overlooked, especially by the occasional appellate practitioner. That is the simple or complicated, fascinating or mind-numbing (depending on your perspective) matter of citation form. By itself, it won’t win your case. But it can help set the right tone. Let us […]

October 26, 2010

Friends, what’s in a name? The FedEx Rule in the California Supreme Court

Rule 8.25(b)(3) of the California Rules of Court provides that “[a] brief, a petition for rehearing, an answer to a petition for rehearing, a petition for review, an answer to a petition for review, or a reply to an answer to a petition for review is timely if the time to file it has not […]

September 29, 2010

The Court’s archive of recordings of oral arguments is a useful tool for appellate advocates

A useful resource for those preparing to argue before the California Supreme Court—and for appellate advocates generally—is the Court’s collection of archived broadcasts of selected oral arguments. The collection consists mostly of audio recordings, with a few videos thrown in, including this video of the argument in the Proposition 8 Cases, courtesy of the California […]

August 31, 2010

California Supreme Court clerk Fritz Ohlrich profiled

Maura Dolan’s profile of California Supreme Court Clerk Fritz Ohlrich in the Los Angeles Times today is worth a read for anyone litigating a case before the high court. Fleshing out our own nod to the clerk in a recent post, the profile aptly illustrates Ohlrich’s caring and earnest approach to his job. Unlike some […]

August 30, 2010

Rossa illustrates the role of amicus letters in support of review

A few weeks ago, on August 11, 2010, the California Supreme Court granted review 7-0 in a case involving a rather obscure issue of appellate procedure. The court granted review in Rossa v. D. L. Falk Co. (No. S183523) to decide: ““Does California Rules of Court, rule 8.278(d)(1)(F), which permits a successful appellant to recover […]

August 23, 2010

Oral argument in the California Supreme Court: reserving time for rebuttal

An occasional tactic by an appellant’s attorney is to reserve all his or her time for the rebuttal argument, making no opening argument at all. The supposed intent is to prevent the respondent’s counsel from knowing exactly what to focus on, and then having all one’s time to get in the last word. A savvy […]

August 17, 2010

Why should you check out our weekly conference reports?

Our weekly conference reports help attorneys stay right on top of the issues pending before the California Supreme Court. This isn’t a subject of interest just to folks handling Supreme Court cases. At numerous points in the life of litigation, an attorney may be interested to know what issues are in play. When drafting a […]

August 13, 2010

When arguing in the California Supreme Court, arrive early (and take the stairs)

When presenting an appellate argument, it is always a good idea to plan to arrive early. If presenting argument in a strange court for the first time, it may even be worthwhile to scout the terrain a day in advance or, if you have an afternoon argument, attend the morning calendar and watch the court […]

August 4, 2010

Oral argument time: To split or not to split?

The California Supreme Court gives each side 30 minutes to present oral argument regardless of the number of parties on that side, allows the parties to request to divide oral argument among multiple counsel, and generally forbids argument segments of less than ten minutes per advocate. (Cal. Rules of Court, rule 8.524(e) and (f).) This […]

July 29, 2010

Associations of counsel in the Supreme Court

Imagine you have been contacted by a client who has lost in the California Court of Appeal and wants to hire you to file a petition for review in the California Supreme Court. How do you become official “counsel of record” for the Supreme Court proceedings? The answer is more complicated than you might think. […]

July 29, 2010

Getting review with a little help from your friends

In the last few years, the U.S. Supreme Court has seen a remarkable increase in the number of amicus briefs filed in support of petitions for certiorari, an increase that mirrors a similar rise in merits stage amicus briefing. As noted in this article, “[i]n the 73 cases that were granted and decided last term […]