Appellate Insights

Sep 09, 2021 Laurie J. Hepler
Is This Injunction Stayed?

The general rule of thumb is that an appeal automatically stays a “mandatory” injunction, but not a “prohibitory” injunction. But the distinction between mandatory and prohibitory injunctions isn’t always clear.  What makes an injunction “mandatory,” and thus stayed?  Here are three core principles from our

Jul 13, 2021 Alana H. Rotter
Back to Basics

Lawyers who’ve been living with a case, especially in an area of their specialty, are deeply immersed in the relevant law.  But don’t assume that’s true of the court—judges tend to be generalists, given the wide array of cases on their dockets.  To maximize persuasiveness,

Jun 10, 2021 Laurie J. Hepler
Batting Practice

Oral argument brings some predictable questions—and some that the briefing lawyer wouldn’t easily think of.  Diligent solo preparation can cover most of the predictable ground.  But arguing counsel needs the insights of lawyers or client representatives who didn’t work on the briefs, to prepare for

May 17, 2021 Alana H. Rotter
A Picture Is Worth A Thousand Words

Legal briefs make for dense reading.  Images, charts, and other visual displays can help alleviate that density, conveying key information succinctly and effectively.  Some things to consider: Images or charts can be inserted directly into the body of a brief, in place of – or

Apr 13, 2021 Laurie J. Hepler
You Gotta Have Standards

Appellate courts examine every issue through a lens—the “standard of review”—that deeply affects the analysis of whether prejudicial error occurred. Briefs must do so too. The most lenient standard, “substantial evidence” review, applies to claims of error in fact-finding, because judges and juries are closest

Mar 11, 2021 Alana H. Rotter
Should I Answer That?

Upon receiving a writ petition seeking interlocutory appellate review, the real party in interest must make a strategic decision: whether to file a preliminary opposition, or wait to see if the Court of Appeal will summarily deny the petition on its own.  Here are some

Feb 11, 2021 Laurie J. Hepler
A Paradigm Shift

Moving from trial court litigation to appeal, especially after a loss, requires a serious mental shift.  To evaluate prospects for success, clients and trial counsel should focus on how appeals differ from the crucible they’ve just been through. First, appellate courts assume the trial court

Jan 13, 2021 Alana H. Rotter
What Are Friends For?

Amicus curiae (“friend of the court”) briefs are an ever-expanding dimension of appellate practice. Here are some pointers to consider in soliciting or writing them: Amicus briefs can serve various functions, from providing factual/industry context to raising legal arguments that the parties missed. They should

Nov 12, 2020 Laurie J. Hepler
The Whole Map

California’s appellate courts influence the law elsewhere.  Our courts often develop precedent on issues before other states do, and other states may consider those precedents persuasive.  So for corporate clients, appellate strategy should consider long-term interests in all states where the client operates. Does the

Oct 14, 2020 Alana H. Rotter
Hot Off The Press

Appellate courts often will refuse to consider an authority mentioned for the first time at oral argument.  But there is generally a gap of 3-18 months between the close of appellate briefing and argument.  If a relevant new decision is issued during that gap, consider

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