Tag: Practice tips

The Supreme Court occasionally includes practice tips in its opinions. It did so in today’s Golden State Water Company v. Public Utilities Commission decision (see here). The tip is about incorporating by reference earlier briefing, and the tip is: don’t. Actually, it’s more a directive than a tip.

After declining the PUC’s request to dismiss the petitions in the case as moot, the court in the Water Company case turned “to the substance of the . . . challenge to the Commission’s decision.” It then dropped this footnote:

“Unfortunately, to address that substance, the Commission’s merits brief purports to incorporate by reference portions of the Commission’s earlier briefing, which makes the merits briefing less helpful to the court than it might have been. We caution litigants to avoid this practice in the future.” (Emphasis added.)

The “earlier briefing” mentioned is apparently what the court described as “the Commission[’s] mo[tion] for dismissal on grounds of mootness or else reconsideration of our initial issuance of the writs of review,” which the court said it “denied . . . without prejudice to the Commission ‘raising arguments concerning mootness in its answer brief.’ ”

That incorporating prior briefing by reference is “less helpful to the court” is reason enough not to do it. But it could also be viewed as an attempt to evade the limitation on the length of Supreme Court briefs (rule 8.520(c)) when the incorporating brief is close to the prescribed word or page limit.

A while back, we wrote: “It is often said that the Supreme Court is not an error-correction court, meaning the court’s policy is to not use its discretionary review authority simply to fix a mistaken Court of Appeal decision. Instead, the court will normally opt to hear a case only ‘[w]hen necessary to secure uniformity of decision or to settle an important question of law.’ (Rule 8.500(b)(1).)” “Normally” is a key word there.

Sometimes there are cases the court hears that don’t fall into any of the rule 8.500(b) categories for when “[t]he Supreme Court may order review of a Court of Appeal decision.” Former Chief Justice Tani Cantil-Sakauye, speaking to a bar group (see here and here), discussed one such type of case that will occasionally get the court’s attention and send the justices on “rescue missions.”

Here’s what she said (video here):

“While we certainly will grant review on cases where there are serious conflicts in the law or something is of such substantial state interest that we need to jump in now, the Supreme Court has from time to time been known to get involved in what we call ‘rescue missions.’ [I]t just looks like something went wrong and one of the justices around the table would like to try [to] take a crack at it. The chief justice assigns cases and, so, when a justice raises his or her hand for a rescue mission, they get it. Sometimes the result doesn’t change, but at least we can change the language and at least we can do a little bit more explanation to help understand what might seem to be an unjust result.”

I’ve heard them called “save cases,” but I like the term “rescue missions” better.

What’s an example of a rescue mission? If I had to guess, I’d say the pending In re Hernandez case could be one. And it is a guess because Hernandez involves an issue of law I’m not an expert on.

In Hernandez, the court granted review of an opinion that seems very fact-specific and that doesn’t appear to involve the resolution of any new legal issue, which is probably why the opinion is unpublished (see rule 8.1105(c) for publication standards). Moreover, this is the third time the court has granted review in the case; the earlier two times were grant-and-hold orders, followed by remands for reconsideration in light of, first, a 2021 Supreme Court decision and, then, in light of a 2023 decision. It’s almost as if the Supreme Court is saying to the Court of Appeal, “we gave you two chances to reach the right result after your initial opinion and now, even though our two earlier opinions stated all the law we thought necessary for us to state in this area [although it’s possible the second decision — People v. Espinoza (2023) 14 Cal.5th 311 (see here) — was itself a rescue mission], we’re out of grant-and-hold options, so we’re going to rescue the defendant ourselves.” More about the Hernandez case here.

“Rescue missions” are an unwritten addition to the rule specifying when the court “may order review.” The court has observed other unwritten rule supplements, too. (See: Another example of an unwritten exception to the rule against citing unpublished opinions, and why the rule should be revised.)

As mentioned last month, former Chief Justice Tani Cantil-Sakauye recently said that her “biggest rule” about oral argument is “do not split time,” meaning don’t take advantage of the opportunity afforded by rule 8.524(f) to have more than one attorney argue for the same side in the Supreme Court. There might be some exceptions to that blanket advice, however.

One exception is for amicus counsel, writes AJ Kutchins in an email.

Kutchins, a Supervising Deputy State Public Defender, says about his appearance as amicus counsel in two relatively recent Supreme Court criminal cases, “I really believe . . . the argument[s] we presented made a difference.” He adds, “I am aware of a number of other cases in which the arguments of amicus played a key role and others in which counsel was simply not up to presenting all the needed angles of the case.”

In one of the two Kutchins cases, he says “counsel split time with me because his co-counsel (who was supposed to do the whole argument) was suddenly hospitalized; I recall answering a key question . . . that my colleague could not.” In the other case, where Hutchins needed the court’s permission to argue because defense counsel opposed the Public Defender’s appearance (see: Arguing with friends), “we were arguing a theory that counsel abjured but that the Court ended up adopting.”

An amicus exception to the don’t-split rule seems reasonable in certain situations. I’ve participated in four Supreme Court arguments in which I was ceded time as amicus counsel or did the ceding to amicus counsel. My guess is the amicus arguments in those cases didn’t affect the court’s opinions, but neither did they hurt the oral presentations.

In 2010, we wrote, “splitting an argument is often a mistake because it dilutes the parties’ ability to answer the Court’s questions meaningfully and the justices don’t particularly like it.” But we also then followed that up with this: “That said, in some cases it may be worth it to allocate ten minutes to counsel for amici to allow them to address a case’s broader policy implications.”

Former Chief Justice Tani Cantil-Sakauye recently spoke at a bar association program. (See here.) Her wide-ranging talk included tips for Supreme Court practitioners. One of her primary points was not to cede part of your oral argument time.

Splitting one side’s 30 minutes of argument time is allowed. Rule 8.524(f) provides for “[r]equests to divide oral argument among multiple counsel,” but the division has limits: “Multiple counsel must not divide their argument into segments of less than 10 minutes per person, except that one counsel for the opening side — or more, if authorized by the Chief Justice on request — may reserve any portion of that counsel’s time for rebuttal.”

However, just because you can split your time doesn’t mean you should. And Cantil-Sakauye’s advice is clear — don’t. (Video here.)

“My biggest rule is: please do not split time,” the former Chief Justice said. She explained that “the justices don’t ask questions in a lineal fashion” and you can’t be certain “when [particular questions] will come.” The court “is not going to categorize its questions according to how you would like to present [the argument]” and “it’s very confusing and a waste of time” when one attorney is in court to talk only about a particular issue but all that the justices want to hear about is a different issue. “I’ve never seen it be successful,” she concluded about the tactic of dividing time.

Years ago, we advised, “splitting an argument is often a mistake because it dilutes the parties’ ability to answer the Court’s questions meaningfully and the justices don’t particularly like it.”

[March 14 update: Don’t split your oral argument time — a caveat.]

Former Chief Justice Tani Cantil-Sakauye recently spoke at a Contra Costa County Bar Association program called “Behind the Judicial Curtain and in the Robing Room.” Video of the event is here.

She began her talk with a discussion of the judiciary’s relationship with the executive and legislative branches. Saying “it’s always a separation of powers challenge,” Cantil-Sakauye claimed that, despite being “incredibly well intended,” the other branches often “get out of their lane.” Later, remembering some skirmishes with legislators about the State Bar dues bill, she deadpanned, “thank goodness for term limits.”

Most of the former Chief’s lecture, however, dealt with the superior courts, Courts of Appeal, and the Supreme Court, and tips for practicing in each. She discussed things such as the importance of making a good record in the trial court and how to make the most of your oral argument time in the Supreme Court.

Cantil-Sakauye also discussed judicial ethics (including about the Commission on Judicial Performance and the Supreme Court’s Committee on Judicial Ethics Opinions, but nothing about the U.S. Supreme Court’s problems) and the State Bar. About the latter, she said “the Legislature needs to leave the State Bar alone for at least two to three years and let it get its business in order.” The former Chief Justice additionally asserted that the State Bar “needs to raise dues” to cover the costs of a new computer system and to hire additional staff.

We were recently asked to slightly revise the caption on a petition for review we filed in the Supreme Court. This led us to check in with the court’s Clerk/Executive Officer Jorge Navarrete on captioning details. Here’s what we learned.

Rule 8.504(a) requires petitions for review, answers, and replies to comply with rule 8.204 (concerning Court of Appeal briefs; see particularly subdivision (b)(10)), except as rule 8.504 otherwise provides. Rule 8.520(b)(1) does the same for Supreme Court briefs.

As far as captions on document covers are concerned, C/EO Navarrete advises that these be included to comply with those rules:

• The superior court and its case number.
• The name of the superior court judge who made the ruling at issue in the Supreme Court.
• The Court of Appeal case number. (Optional is identifying the Court of Appeal that made the underlying decision.)

Also relevant is one provision in rule 8.504 — subdivision (b)(6) — that supplements rule 8.204: “The title of the case and designation of the parties on the cover of the petition must be identical to the title and designation in the Court of Appeal opinion or order that is the subject of the petition.”

Additionally, for amicus briefs, rule 8.520(f)(6) provides that “[t]he covers of the application [to file an amicus brief] and proposed [amicus] brief must identify the party the applicant supports, if any.”

Court rules provide several limits on what the Supreme Court will consider in cases it has chosen to decide. However, those constraints don’t handcuff the court. They’re general limits that the court can and will sometimes choose not to follow. As it did in July’s County of Santa Clara v. Superior Court (2023) 14 Cal.5th 1034 opinion.

Rule 8.500(c)(1) provides, “As a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal.” In County of Santa Clara, the court turned down a request to invoke the policy of ignoring certain arguments not raised below by hospitals who lost in the Court of Appeal.

First, the court said the arguments were raised in the petition for review and it cited rule 8.516(b)(1), which says the court “may decide any issues that are raised or fairly included in the petition.” (14 Cal.5th at p. 1046, fn. 5.) The court continued, “Moreover, ‘[i]n a number of cases, this court has decided issues raised for the first time before us, where those issues were pure questions of law, not turning upon disputed facts, and were pertinent to a proper disposition of the cause or involved matters of particular public importance.’ [Citations.] Assuming that the Hospitals did not specifically raise these arguments in the courts below, we exercise our discretion to address them.” (Ibid.)

Horvitz & Levy represented the hospitals in the Supreme Court, but didn’t become counsel until it filed the petition of review.

There are other policies that might — but need not — limit the scope of Supreme Court review.  Rule 8.500(c)(2) provides that “as a policy matter the Supreme Court normally will accept the Court of Appeal opinion’s statement of the issues and facts unless the party has called the Court of Appeal’s attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing.” (See: Just the facts in the Supreme Court, again.) Also, the court normally will avoid issues not raised in a case’s petition for review (see: The delicate balance of choosing how many issues to raise in a petition for review) or in the answer to a petition (see: Taking issue with your answer to petition for review).

Practice tip: It’s preferable to be able to stay within the bounds of the court’s “normal[ ]” policies when seeking review. However, if counsel sees a possible review-worthy issue (especially one that is a “ ‘pure question[ ] of law’ ” ) that wasn’t timely raised in the Court of Appeal, the better practice could be to include the issue in the petition for review, knowing that the court certainly can and does deviate from those policies.

Other-side-of-the-coin practice tip: If the opponent’s petition for review raises a new issue, point that out in an answer to the petition as a reason for the court to not hear the case. Tell the court that an issue on which the Court of Appeal has not weighed in is not a good vehicle for deciding the issue, even if the issue is review worthy. (See — Wait for it: issue percolation, right vehicles, and legislative inaction.) In Santa Clara, the party that had its Court of Appeal victory overturned opted to not file any answer to the petition and didn’t object to the newly raised issue until its answer brief on the merits, after the court had already granted review and after its opponent had fully briefed the new issue.

Leah Spero — Director of the California Appellate Advocacy Program at the newly renamed UC Law San Francisco — has told us about moot courts available through the Program to help practitioners prepare for their California Supreme Court arguments in civil cases.

According to a FAQs page, a moot court panel “typically includes a UC Law SF professor with subject-matter expertise and two to three experienced appellate attorneys.” Once the court sends its oral argument letter in a case, the school invites both sides of a case to participate in a moot court and the first to accept “is given the moot.” The moot courts are free, but “donations to [the Program] are strongly encouraged.”

Horvitz & Levy attorneys have recently taken advantage of the moot court program.

Other law schools also have moot court programs for attorneys. I’ve found very helpful being mooted at Loyola Law School several times. Also, the California Constitution Center at Berkeley Law sometimes does moot courts for cases with California constitutional law issues. There might be other similar California law school programs of which I’m unaware.

A petition for review to the Supreme Court must start “with a concise, nonargumentative statement of the issues presented for review.” (Rule 8.504(b)(1).) Standard advice to practitioners is to not overload a petition with too many issues. (E.g., Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2022) Ch. 13-B ¶ 13:59 [“Be selective about the issues. It is rarely helpful to raise more than two issues. . . . A petition with too many issues is likely to suggest to the court that none of them are very compelling.”].)

On the other hand, there’s what happened in last week’s People v. Ramirez opinion. (See here.)

The court rejected the claim that a defendant was deprived of his right to be present for part of his trial, holding substantial evidence supported the superior court’s finding that the defendant voluntarily absented himself when he sought treatment for a drug overdose. The defendant argued in the alternative that, if there was a voluntary absence, “then the trial court’s refusal to grant a one-day continuance was an abuse of discretion.” (Brief here.)

The court refused to decide the alternative argument, however, because, the opinion said in footnote, “Defendant’s petition for review did not adequately raise the additional question of whether the trial court abused its discretion when it denied defense counsel’s motion for a continuance.” Although two justices dissented, saying they wanted to reach — and rule in the defendant’s favor on — the continuance issue, the defendant was out of luck.

The Ramirez majority was following the rule that the court “may decide any issues that are raised or fairly included in the petition or answer.” (Rule 8.516(b)(1).) Thus, the corollary to the advice about not raising too many issues is that you need to raise enough issues. (See Cal. Practice Guide: Civil Appeals & Writs, Ch. 13-B ¶ 13:59 [“in exceptional cases, several major issues may have to be raised so as not to risk a waiver on review”].)

It’s a Goldilocks conundrum — don’t raise too many issues, but don’t raise too few, either.

Of course, there are also caveats to the corollary.

Even if an issue is listed in a petition for review that is granted, the court is not obligated to decide it. (Rule 8.516(b)(3) [“The court need not decide every issue the parties raise”].) And, in fact, in Ramirez, the court said, “Even if the secondary issue were adequately raised, we are not compelled to address it and decline to do so here.”

Another caveat is that an issue can still be reached even if not raised in a petition for review. (Rule 8.516(b)(2) [“The court may decide an issue that is neither raised nor fairly included in the petition or answer if the case presents the issue and the court has given the parties reasonable notice and opportunity to brief and argue it”].)

The court has maximum flexibility in, and retains ultimate control over, what issues it will decide (other than in automatic death penalty appeals), but counsel should nonetheless strive to hit the sweet spot in a petition for review, so that the statement of issues presented — à la Goldilocks — is “just right.”

The Supreme Court yesterday issued an alternative writ. That doesn’t happen too often, but it wouldn’t be particularly newsworthy . . . except the alternative writ’s recipient is a Court of Appeal. That is in the man-bites-dog category.

The subject of the proceeding is one that is near and dear to the hearts of California’s appellate practitioners — whether parties to an appeal have the unfettered right to stipulate to a 60-day extension of a briefing deadline. The Supreme Court’s alternative writ implies what a Rule of Court expressly provides — the parties do have that right.

In Aaronoff v. Olson, briefing in the Second District, Division Two, Court of Appeal had been substantially delayed by a number of stipulated and/or court-granted extensions, as well as use of rule 8.220 grace periods. The respondent’s brief was filed 11 months after the (relatively small) record on appeal.

So, when the parties presented Division Two with a stipulation to extend by 60 days the time to file the appellant’s reply brief, the Court of Appeal’s patience had worn thin. It ruled, “Given the numerous extensions previously requested and granted, the parties request for consolidation of these cases, the limited scope of a reply brief, and the Court’s need to manage its calendar, the court exercises its discretion under rule 8.68, California Rules of Court, and the stipulation for extension is partially granted.” Division Two ordered the reply brief to be filed by December 2 instead of the stipulated December 16 due date.

The plaintiff responded by filing an original writ petition in the Supreme Court — Aaronoff v. Court of Appeal (Olson). After requesting and receiving an informal response to the petition from the Court of Appeal, the Supreme Court yesterday issued an alternative writ directing Division Two “(i) to vacate its . . . order, which partially granted the parties’ stipulated extension for petitioner to file a reply brief, and to issue a new order giving effect to the parties’ stipulated extension as filed, under California Rules of Court, rule 8.212(b)(2), providing petitioner until December 16, 2022 to file an amended reply brief, or (ii) in the alternative, to show cause before this court why it has not done so.” The same day, the Court of Appeal changed the reply brief due date to December 16.

The Supreme Court did the right thing.

Rule 8.68, which Division Two cited in not fully accepting the stipulated extension, provides, “For good cause and except as these rules provide otherwise, the Chief Justice or presiding justice may shorten the time to do any act required or permitted under these rules.” However, when it comes to shortening stipulated extensions, rule 8.212(b)(1)&(2) does “provide otherwise.” It says that, “[e]xcept as otherwise provided by statute . . . , the parties may extend each [briefing deadline] by up to 60 days by filing one or more stipulations in the reviewing court before the brief is due,” that a “stipulation . . . is effective on filing,” and that “[t]he reviewing court may not shorten a stipulated extension.”

When the rule 8.212 language was adopted, a 2004 Advisory Committee Comment explained:

“[The former rule] specified the periods within which the parties were required to file their briefs, but then provided that ‘By stipulation filed with the reviewing court the parties may extend each of such periods for not more than 60 days, and thereafter the time may be extended only by the Chief Justice or Presiding Justice, for good cause shown.’ The plain implication of the quoted provision, recognized in widespread practice, was that the parties had the right to effectuate such extensions for up to 60 days on their own accord by filing such a stipulation in the reviewing court, and that the stipulation required no action by the reviewing court to be effective. In addition, the former rule did not contemplate the reviewing court’s exercising discretion over the length of a stipulated extension for the first 60 days; on the contrary, any inference of such a discretion was negated by the wording of the provision itself, which declared that ‘the parties may extend each of such periods’ for up to 60 days and that it was only ‘thereafter’ that a further extension would require action by the reviewing court. [The] [r]evised rule . . . continues these provisions in effect but clarifies their wording. It is therefore not a substantive change.”

The right to stipulate to a 60-day extension is not on a par with the “unalienable Rights [of] Life, Liberty and the pursuit of Happiness,” but, to appellate lawyers, it is considered pretty darn important.

And it must have been the principle of the thing for plaintiff to seek Supreme Court relief. Nine days elapsed between the Court of Appeal’s order — shortening the stipulated extension by 14 days — and the filing of the writ petition. With the stipulated extension, plaintiff would have had 80 days to file her reply brief. It’s unclear how spending nine days to file a Supreme Court writ petition instead of using that time to draft the reply brief, thereby in effect gaining only an additional five days, was necessary.

Interesting side note: In a declaration supporting her writ petition, the plaintiff identified herself as the “Doe” in Olson v. Doe (2022) 12 Cal.5th 669, where the Supreme Court held two parties’ agreement “not to disparage one another,” made in settling a restraining order proceeding, did not prevent one party from later suing the other for sexual assault and harassment (see here).