Your legal brief should not only be engaging but should also be painless for judges and their clerks to digest. Here are some practical tips to make the court’s job easier. Brevity and word choice matter. If you can convey your point in fewer words,
Although California case law has resolved many recurring legal issues, plenty remain to be decided. Here are some strategies for effectively briefing those “issues of first impression”: Be honest about the lack of on-point precedent – don’t portray existing decisions as resolving issues they did
It can be tempting to write that the other side’s brief “conveniently ignores” a point, or “tries to distract the court,” or “engages in sleight of hand, hoping the court will ignore ….” Resist the impulse. Judges have been saying for years that such accusations
Winning on appeal under the abuse of discretion standard is a tough climb, with reversal rates in the single digits. To improve your odds, consider whether and how you can reframe the trial court’s decision as a legal error: Failing to exercise discretion is a
Amicus curiae briefs are powerful tools in the appellate world. But like every tool, the key is knowing when and how to use them: Be different. Amici shouldn’t join or remake a party’s arguments. Give real-world insights from industry players; policy perspectives from legal practitioners;
After receiving an adverse verdict, clients inevitably ask, “What’s our next step?” In some situations, the answer may be going straight to the Court of Appeal. But other situations warrant a round of post-judgment motions in the trial court first. Determining which path to follow
The California Bar recently added “Civility” as a required continuing education topic for lawyers. In appellate work as elsewhere, behaving with the maximum courtesy that circumstances allow will advance your client’s long-term interests. California appellate courts expect counsel to stipulate to requests for briefing extensions
Your opponent may try to marginalize favorable language in a court decision that you rely on by calling it “dicta.” That begs the question: what is the dividing line between a case’s holding and dicta? A few rules can guide your analysis: Dicta consists of
The justices often begin argument by instructing counsel not to repeat what is in their briefs. On the other hand, you can’t raise anything new. But if you can’t say anything old or new, what can you say? This is your opportunity to re-think how
One key to success on appeal is creating a clear and complete record. Here are ways to create such a record that are often overlooked in the heat of trial: Ask the court reporter to transcribe sidebars and in-chambers conferences. If that’s not possible, summarize
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