Objective analysis of advocacy preferences and prevalent mythologies in one California Appellate Court.

• Author: Bird, Charles A.
• Position: Fourth Appellate District of the California Court of Appeal, Division 1

1. INTRODUCTION

   Advice about appellate advocacy abounds. (1) How accurately does it teach lawyers the best ways to persuade appellate courts?

   Since 1985, we have supported an appellate practice seminar sponsored every three years by Division One of the Fourth Appellate District of the California Court of Appeal and the San Diego County Bar Association. All justices of the court have participated in each seminar, presenting the usual topics of brief writing and oral argument, along with current and specialized matters. Over the years, justices have differed in their advice on subtle and technical points of advocacy.

   Preparing for the 2001 seminar, we proposed, and the court accepted, an eighty-three-question survey of the entire professional staff--nine judges and twenty-nine staff attorneys. The main body of the survey asked for the responders' preferences on points of writing and advocacy that are frequently discussed in books and seminars. All nine judges and twenty-five staff attorneys responded. The results were published as bar-graph data in the book produced with the seminar, the California Appellate Practice Handbook. (2)

   This article reports the results of the survey in an analytical and narrative form, from which advocates can draw inferences about effective presentation of appellate cases. In gathering and reporting the data, we also became immersed in questioning what appellate advocacy really is, given two conflicting mythologies by which many appellate judges and appellate advocates integrate their professional lives. This article describes those mythologies, comments on what the survey results taught about them, and suggests some fundamental principles of advocacy that should make this survey's results useful in courts that are very different from California's Fourth Appellate District.

   We begin by describing the court and California appellate practice, so the reader can orient the survey results with practice in other courts. We then describe the survey process and our methodology for reporting the results. We briefly discuss professional mythology and then report the survey results. We conclude with further impressions of mythology and the principles we distilled from the survey process.

2. THE COURT

   With 105 authorized positions, (3) the California Court of Appeal is the largest state intermediate appellate court in the nation. It always decides cases by a panel of three judges, and it has no en banc process. (4) It sits in six geographical districts, (5) but a published decision by any panel is a statewide precedent. (6) Three districts are subdivided into divisions. The Fourth Appellate District's divisions are geographical. (7) Division One, the subject of this article, has its chambers in San Diego and hears appeals from San Diego and Imperial Counties. (8) Its jurisdiction includes felony criminal cases in which the death penalty has not been imposed, juvenile delinquency and dependency, and civil cases except those defined as "limited civil cases," which are generally those in which the plaintiff demanded less than $25,000. (9)

   When this survey was taken, Division One had nine authorized and funded judicial positions. All positions were filled, all justices were heating full calendars, and all justices responded to the survey. Division One employs twenty-nine staff attorneys to support the justices. Each justice personally supervises two staff attorneys, whose sole responsibility is to support their supervising justice. The remaining attorneys comprise "central staff," which includes a writ department. Central staff attorneys serve at the pleasure of the court. Chambers attorneys serve at the pleasure of their justices, but the turnover rate is low. The court uses some externs, but does not hire short-tenure law clerks unless specially funded. Twenty-five staff attorneys responded to the survey. No externs were asked to respond.

   The court's processing of appeals depends somewhat on its estimated work demands. (10) After the court receives the respondent's brief, the managing staff attorney reviews the case to classify it according to the amount of time needed to prepare the matter. The least demanding criminal cases (11) are assigned to central staff to prepare a bench memorandum in the form of a draft opinion. Other cases receive a rating--three for the easiest to eight for the most burdensome--and are assigned to a lead chambers two months before the calendar on which the clerk has tentatively placed them. Chambers' loads are balanced by the weight factor, not by the raw number of cases. Within each chambers, the assignment of the bench memorandum to a staff attorney or the justice is the prerogative of the justice.

   Writ petitions follow a unique path. Each month, three justices are assigned to the writ panel. The assignments rotate so that each justice over time bears an equal load of writ work. When a petition arrives at the court, the lead writ attorney assigns herself or another writ attorney to prepare a summary of the case and a recommendation as to whether to deny the petition summarily or accept it as a "cause" to be decided on the merits. If the panel decides to accept the case, the draft opinion may be prepared by a writ attorney or in the chambers of a member of the writ panel.

   When parties submit cases without oral argument, the draft opinion circulates for vote and comment. Usually the assigned justices do not have a formal conference.

   Division One hears argument one week each month. On the Monday of the week before argument week, court staff provides each justice with a binder containing the bench memoranda for each case to which the justice is assigned. Each justice has copies of all briefs, and all justices and staff attorneys have access to the record. The panels usually do not confer on cases before argument. In this respect, Division One's practice differs from virtually all other venues of the Court of Appeal and more closely resembles traditional federal practice.

   The court typically permits up to fifteen minutes per side for oral argument. For good cause, the court will allow up to thirty minutes per side. Panels may not enforce time limits strictly if important points are being discussed.

   Immediately after a session of arguments, the panels confer to decide the cases. If the bench memorandum reflects agreement on disposition, the lead chambers retains responsibility to edit and modify it to the satisfaction of the panel. If the writer of the lead chambers' bench memorandum does not command a majority and is not persuaded to change position, one of the other chambers prepares the majority opinion. The court publishes as precedent approximately ten percent of its civil-case decisions and four percent of its criminal-case decisions.

3. CALIFORNIA APPELLATE PRACTICE

   California appellate practice differs in some notable ways from practice in other jurisdictions. This section will highlight the differences pertinent to the survey. In California, the party defending against an appeal is called the respondent.

   In criminal cases, the mechanics of moving a case from sentencing judgment to appellate decision are not unusual. The contents of the record are fixed by court rule. (12) Although augmentation of the record is sometimes needed, appellant's counsel's primary responsibilities are to file the opening and reply briefs, request oral argument if appropriate, and argue the case. The California Attorney General always represents the state as respondent in criminal appeals. A non-profit agency manages indigent criminal appellate representation. (13) The agency assigns each case either to its staff or to a member of a large panel of private attorneys that it oversees. Therefore, in criminal cases, both sides typically have either knowledgeable and experienced counsel or lawyers guided and supervised by seasoned practitioners.

   In civil cases, the primary difference between California and other jurisdictions is in an option for assembly of the record. California appellate rules require the parties to designate papers from the superior court's files as a "clerk's transcript." (14) As an alternative, any party to a civil appeal can elect to have the entire appeal governed by Rule 5 of the California Rules of Court. In a Rule 5.1 appeal, the clerk of the superior court prepares no appellate record. Instead, the parties jointly or separately prepare an "appendix" containing papers received by the trial court. Usually this method saves the parties money, but it can sometimes cause trouble if an inexperienced practitioner produces an inadequate or confusing record, or a sloppy lawyer provides drafts of papers that differ from the true record or copies with notes or other marks on them. Another benefit of the Rule 5.1 appendix is its inclusion of exhibits offered or received in evidence. In practice, a clerk's transcript does not include the evidence, despite contrary implications in the rules. (15) Because the San Diego County Superior Court always returns exhibits to the parties in civil cases, problems with exhibits occur in clerk's transcript cases. Rule 5.1 elections can make it easier for counsel to provide exhibits to Division One in a timely and efficient manner.

   Aside from record assembly, briefing and argument in California civil cases flow in traditional streams. Metropolitan California, including Division One, has a well-developed appellate specialty bar. Nevertheless, many lawyers who handle civil appeals in Division One have little appellate experience.

   California briefing rules are much more flexible than the Federal Rules of Appellate Procedure. The rules provide no fixed order of the sections of a brief and require only four sections. A brief must have a statement of the facts, a statement of proceedings in the trial court, a statement of appellate jurisdiction, and a legal argument with each distinct argument made under a separate caption. (16)...