May 21, 2007

Sean SeLegue co-authors article "Case Closed"

Arnold & Porter Article

By: Ethan P. Schulman and Sean M. SeLegue

The Recorder
May 21, 2007

As appellate lawyers, we have seen every mistake in the book. Here's our list of the 10 worst ways to lose your appeal.

1. Miss an appealable order.
Everyone knows that it's critical to file an appeal on time. And most lawyers know the "final judgment rule" — generally speaking, you cannot file an appeal until final judgment has been entered at the very end of your case (Code of Civil Procedure § 904.1(a)). But fewer lawyers realize that you can waive an appeal by failing to take prompt action in the middle of the case or after it appears to be all over.

Certain orders are immediately appealable. Such orders are generally considered collateral to the merits of the case and, thus, there is no reason to require the appellant to wait until the end of the case to appeal. For example, orders granting or denying provisional relief, such as an injunction, a right to attach order or appointment of a receiver, are all immediately appealable. So are orders granting monetary sanctions in excess of $5,000 and granting or denying an anti-SLAPP motion. Other orders, such as the denial of a motion to certify a class, are appealable for policy or other reasons. (See Linder v. Thrifty Oil Co., 23 Cal.4th 429 (2000).) Such appealable orders can be a trap because, if you fail to appeal at the first opportunity, you've waived the appeal.

There's a similar trap at the end of the case. Orders made after the entry of an appealable judgment or order are separately appealable. (See Lakin v. Watkins Associated Industries, 6 Cal.4th 644 (1993).) The most common example is an order denying or awarding contractual or statutory attorneys' fees and costs to the prevailing party after judgment. If the losing party fails to file a second notice of appeal, it waives its appeal from the fees order — even if the judgment on the merits is reversed on appeal!

2. Don't bother to file a writ petition.
Certainly it is tough to convince the Court of Appeal to consider most interlocutory orders through a writ petition. But beware that some interlocutory orders are reviewable only by writ or appealable at the end of the case only if the appellant has made a timely attempt to obtain writ review. These include orders on motions to disqualify a judge and for a good faith settlement determination. Therefore, if you don't file a writ petition when it's required — or advise your client of the opportunity — you will have a problem.

3. Don't waste time worrying about the record on appeal.
As mundane a task as a record preparation may seem, it is critical to everything that follows. As the appellant, if you leave out evidence necessary to establish error by the trial court, you risk waiving the argument altogether. Take time early on, as you begin formulating the issues on appeal, to identify all of the key pleadings, exhibits and proceedings and to order the necessary transcripts. If you're representing the respondent, keep your opponent honest by carefully double-checking his or her record designations to ensure that portions of the record that will help you have been included.

4. Throw in every issue you can think of.
The scatter-shot approach just doesn't work in appellate courts. You really have to pick your battles. This can be hard to do after going through a brutal trial. It is easy to become obsessed with a pet issue or with trying to resolve a grudge that stems from the trial proceedings. Resist this temptation, step back and look at the case in the way the Court of Appeal will: on a cold record. Along the same lines, limit the number of issues you raise on appeal to a manageable number — usually three or four at the most. If you can't get the court interested in your case on the first or second issue you raise, the eighth or ninth is hardly likely to prevail. Instead, it may distract from your best points.

5. Ignore the applicable standard of review.
The single most significant difference between the way trial and appellate lawyers and judges think about cases is the standard of review. This is the prism through which the appellate courts view issues presented on appeal. Which standard of review governs a given issue can have a dramatic, and often dispositive, effect on an appellate court's consideration.

In formulating your issues as an appellant, try to identify and formulate issues — such as instructional error or issues of statutory or contract interpretation — that are subject to independent or de novo review by the appellate court. In contrast, issues that are subject to the substantial evidence or abuse of discretion standards are far harder to attack on appeal. Creative framing of the issues, on either side, can sometimes affect the applicable standard of review and, thereby, the outcome.

6. Slant the facts in your favor.
It's true that you should tell a compelling story in your statement of facts. The appellate court should want to rule for you by the time it finishes reading the introduction and statement of facts. But there are some major pitfalls that good lawyers can face. First, you must adhere strictly to the record and provide a citation to the record for every quote or factual assertion. Some courts have gone so far as to say that everything in your argument section must be supported by a record citation, even if you've already supplied the citations in your statement of facts. (See City of Lincoln v. Barringer, 102 Cal. App. 4th 1211 (2002).)

In addition, the approach to writing a statement of facts varies dramatically depending on whether you represent the appellant or the respondent. If you represent the appellant on a substantial evidence challenge or to a judgment notwithstanding the verdict, you must state the facts favorably to your opponent. (Foreman & Clark Corp. v. Fallon, 3 Cal.3d 875 (1971).) If you fail to do so, the court may disregard your statement of facts, treat the claim as waived or even strike your brief. The respondent on a substantial evidence appeal has more leeway because the appellate court generally will presume that the trial court made all findings of fact necessary to support the judgment and draw inferences in respondent's favor. (See BII Finance Co. v. U-States Forwarding Services Corp., 95 Cal.App.4th 111 (2002).)

7. Tell the appellate court what you really think of your opponents.
By now, it's common knowledge, or should be, that trial judges have very little patience with lawyers who spend their briefs and their arguments calling their opponents names rather than dealing constructively and forthrightly with the merits. The same is true in spades in the appellate courts. Ad hominem personal attacks are unprofessional and debase everyone's daily practice, including those of appellate judges. Even if your opponent stoops to this kind of rhetoric, don't give in to the temptation to jump in the gutter with them. Taking the high road will almost never lead you into trouble.

8. Cut and paste from trial court briefs.
Admittedly, we use this shortcut when appropriate but very rarely in wholesale fashion. It is unusual that events have remained so static that trial court briefs can simply be rehashed on appeal. Usually, actions and statements by the trial court and the opposing party require significant re-thinking and restructuring of the arguments — if you want to win the appeal. Framing and ordering the issues in light of the applicable standards of review, and being selective about the issues you raise on appeal, almost always will require substantial rewriting.

9. Don't cite legal authorities that support your opponent's position.
Don't think that you can (or should) get away with failing to cite an adverse precedent to an appellate court or providing a misleadingly incomplete quotation or an inaccurate statement of the holding of a case. Appellate courts, unlike many busy trial judges, have staff attorneys who conduct independent research and will find the applicable authority even if your opponent doesn't. If the appellate court looks up a case you have cited and finds it doesn't say what you claim it does — or, worse, finds a case that you should have cited but haven't — you will have irretrievably lost your credibility.

10. Don't worry about how the resolution of your case affects the structure of the law.
An appellate court is concerned not only about your case but also the precedent it will set. In fact, a court of last resort will generally be more concerned about the precedent your case will establish than the outcome between the parties. In writing your brief and presenting argument, consider how the outcome you want will affect other cases. At argument, be sure you know what rule of law you want the court to apply and to establish as a precedent. You should also anticipate hypotheticals that the court may throw at you to test how that rule would apply in other, harder cases.

Ethan P. Schulman and Sean M. SeLegue, directors at San Francisco's Howard, Rice, Nemerovski, Canady, Falk & Rabkin, specialize in appellate litigation.

This article is reprinted with permission from the May 21, 2007 issue of The Recorder. (c) 2007 ALM Properties Inc. Further duplication without permission is prohibited. All rights reserved.

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