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Appellate Law

The California Blog of Appeal

Substantive legal developments in the California Courts of Appeal, California Supreme Court, and the Ninth Circuit Court of Appeals; Procedural law relating to the prosecution of appeals, writ petitions, and post-trial motions in state and federal courts in California; and practical skills essential to appellate practice.
By Greg May

Post Frequency: 1.4/day

Last Entry: February 11, 2020 at 16:16:49

My blog post on reading briefs from a screen is now an article (and welcome, Citations readers!)

Posted on June 04, 2015
A special welcome to anyone arriving here after reading my article in the June issue of Citations, the Ventura County Bar Association’s monthly publication. Maybe “iPad Judges” are Not Such a Good Idea is my adaptation of my post last month of the same name, citing studies showing that readers tend to comprehend and retain material better when reading from paper than from a screen...

The blog will be down for maintenance starting later today

Posted on May 29, 2015
I’ll be taking the blog offline some time this afternoon or this evening to update some of the software on the back end. I don’t know if it will be down for a few hours or a few days — it all depends on how smoothly things go. Wish me luck and pray that I don’t hopelessly screw everything up.

Does classroom laptop use inhibit law school learning?

Posted on May 26, 2015
A few weeks ago, I wrote about whether it was a good idea for judges to read appellate briefs on iPads or other screens, pointing out studies regarding decreased comprehension and retention reading from a screen compared to reading from paper. Thus, it does not surprise me at all that use of laptops in classrooms (especially law school classrooms) has some serious implications for learning...

DigitalDemocracy.org: an experiment in legislative transparency

Posted on May 13, 2015
Imagine if you could go to a website, type in a term, and find every mention of that term in hearings in the California legislature . . . and not only that, but have the site take you directly to video of the hearing with a rolling transcript and information on legislators and lobbyists...

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Maybe ?iPad Judges? aren?t such a good idea?

Posted on May 07, 2015
I’m no Luddite. I own a PC, a Macbook, an iPad, an iPhone, and a Kindle. (I’m not in the market for an Apple Watch, though.) Yet, I’m not thrilled that more and more judges (supposedly) are reading briefs and reviewing appellate records on iPads and other electronic devices...

A break for some shipmates and a lesson on drilling down on the standard of review

Posted on March 17, 2015
As a graduate of the “Boat School” (or “Canoe U”), I went on alert as soon as I spotted a case in yesterday’s advance sheets regarding whether some local county employees’ time as U.S. Naval Academy Midshipmen (don’t call them “middies”) could enhance their county retirement credits...

Do longer briefs correlate to success for Appellants?

Posted on March 10, 2015
I cannot think of a single writing seminar I have attended or book I have read that did not emphasize succinctness. Now comes a paper published at the Social Science Research Network, “Too Many Notes?? An Empirical Study of Advocacy in Federal Appeals (download link),which, if this excerpt from the abstract is any indication, appears to raise a statistical challenge to that line of thinking, at least in the Ninth Circuit: Given the central role of written briefs in the process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power...

Can your trial judge give you a boost toward getting appellate review of a non-appealable order?

Posted on January 23, 2015
In theory, at least, the answer is yes, in some circumstances, by certifying the non-appealable order pursuant to Code of Civil Procedure section 166.1. Yesterday’s opinion in Audio Visual Services Group, Inc. v. Superior Court, case no. B256266 (2d Dist...

Don?t lightly assume that you?ve extended your time to appeal with a post-trial motion

Posted on November 25, 2014
The parties in your case have stipulated to have their case tried before a temporary judge (pursuant to Cal. Const., art. VI, § 21) and filed all trial-related papers (trial briefs, closing briefs, and requests for statement of decision) directly with the temporary judge at his alternative dispute resolution service...

New blog to cover California Supreme Court

Posted on November 18, 2014
I received an invitation yesterday afternoon to attend a reception to celebrate the launch of a new blog “focused on providing substantive coverage of issues concerning the Supreme Court of California,” and billed as a joint project of the California Constitution Center at Berkeley Law and the Hastings Law Journal: SCOCAblog...

What can Ernest Hemingway teach you about legal writing?

Posted on November 03, 2014
In a Wall Street Journal article last month, “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” Ernest Hemingway is cited twice as an example of an effective writer who eschewed adverbs. This colorful start to the article expresses the view of many lawyers: No part of speech has had to put up with so much adversity as the adverb...

How to make your mediation brief effective

Posted on August 27, 2014
There are some big differences between appellate mediation and mediation while your case is still pending in the trial court. But appellate and trial lawyers can both benefit from reading mediator Rande Sotomayor’s excellent article, “Effective Mediation Briefs,” in this month’s California Lawyer...

Opposing the pro se appellant

Posted on July 28, 2014
I think a lot of people might think that any time the appellant is a lay person representing himself (i.e., appearing “pro se”), the respondent has a pretty easy time of it. Is that the case? I was reminded of this issue by an article on pro se plaintiffs in the Daily Recorder (subscription only link) titled “Pro Se Suits No Picnic for Defense Lawyers,” which described the difficulties of litigating against pro se plaintiffs at the trial court level...

Doesn?t anybody read the rules?

Posted on July 02, 2014
When is a brief written by a lay person likely to be of comparable quality to a brief written by lawyer for the other side in the same case? When both briefs stink: Brooks’s opening brief on appeal includes a statement of facts without any citation to the record...

When winning is risky

Posted on July 02, 2014
Sometimes, an appeal doesn’t make sense to me. This can be true even if there are better-than-average odds of winning. When an appeal doesn’t make sense to me, I ask why the party wants to appeal. I’m sure that most of the time, the reaction is to think, “Isn’t it obvious? Because I lost!” But to my mind, that’s not always a good enough reason...

A different kind of ?three strikes and you?re out?

Posted on May 27, 2010
A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point. [Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation [...

Real legal research on your iPhone

Posted on February 03, 2010
Image via CrunchBase If you are an iPhone-using lawyer, you really should subscribe to the iPhoneJD blog, where New Orleans attorney Jeff Richardson keeps you updated not only on specific legal uses for the iPhone, but on all things iPhone. Yesterday, he reviewed Fastcase, an iPhone app for legal research, and the opening paragraph could hardly have [...

The ?underground body of law? ? the influence of unpublished opinions

Posted on January 26, 2010
There’s nothing quite so frustrating as finding the perfect case ? factually and legally on “all fours” with yours, with a “slam dunk” holding ? that has been depublished (or was never published). California Rules of Court, rule 8...

Supreme Court denies review in Burlage v. Superior Court

Posted on January 21, 2010
Image via Wikipedia The Supreme Court denied review today in Burlage v. Superior Court, leaving intact the decision that, by speculation of some (including yours truly), will increase the number of legal challenges to arbitration decisions. I won’t go so far as to say that it will “open the floodgates,” but it certainly opens an avenue [...

Judicial Council meeting this week to discuss impact of court closures

Posted on January 18, 2010
A Friday afternoon press release (PDF) from the Administrative Office of the Courts announced that this Wednesday’s meeting of the Judicial Council will include a review of the impact of the court closure policy instituted last September. From the agenda: Based on survey responses from the Supreme Court, Courts of Appeal, 54 superior courts, and 275 justice [...

Citations of the future

Posted on January 15, 2010
Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority: No more paper: just electronic journals with links to sources...

Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel

Posted on January 13, 2010
When a plea agreement includes a waiver of rights to appeal, claim ineffective assistance of counsel, and to move to withdraw the plea, can it logically be enforced to preclude a claim of ineffective assistance of counsel in the advice to enter into the agreement? Last week, in People v...

?Octa-Mom? wins one in court

Posted on January 12, 2010
“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v...

New, and hopefully improved, design

Posted on January 11, 2010
Regular readers will note the blog’s new design, which debuts today. When I started my new blog, The Ninth Circuit Blog of Appeals, I utilized a customizable theme that emphasizes search engine optimization. I’ve switched over to the same theme here for the SEO benefits and in order to make the designs of the two [...

Video coverage of Prop 8 trial enjoined, at least temporarily

Posted on January 11, 2010
I have a post up at The Ninth Circuit Blog of Appeals on the latest development in the ongoing battle over video coverage of the Prop 8 trial.

Don?t jump to conclusions on the standard of review

Posted on January 07, 2010
“This is one of those cases where some exposition on the topic of the standard of review is necessary to sort out the case.” When a court begins its analysis with that sentence, as the court in Le v. Pham, case no. G041473 (4th Dist. Jan. 6, 2010) did yesterday, you know the opinion is [...

Now in session: The Ninth Circuit Blog of Appeals!

Posted on January 05, 2010
Just before Christmas, I announced that this blog would be spinning off a new blog, The Ninth Circuit Blog of Appeals, with the start of the new year. I’m pleased to announce that The Ninth Circuit Blog of Appeals is now in session. This is the follow-up post I promised about how I reached the decision [...

Felony-misdemeanor preemption analysis yields odd result

Posted on January 04, 2010
Most of the time, lawyers encounter preemption issues in the context of conflicts between federal and state law or between local and state law. But horizontal preemption is also possible. Even different criminal statutes in the same state can trigger preemption issues, as in People v...

When the Attorney General agrees with you

Posted on January 04, 2010
Respondents sometimes must concede minor points along the way while arguing that such points do not require reversal. But seldom does one see the respondent agree that a judgment is even partially reversible. One is more likely to see it in a criminal appeal than in a civil appeal, especially when the criminal appeal involves errors [...

Reminder: Supreme Court?s Los Angeles office closes for good today

Posted on December 31, 2009
Today is the last day of operation for The California Supreme Court’s Los Angeles clerk’s office, which is closing for budgetary reasons. The press release announcing the closure states that the Supreme Court will continue to schedule oral arguments in Los Angeles, but litigants must now file all documents at the court’s San Francisco clerk’s office.

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