Appellate Insights

Mar 12, 2020 Laurie J. Hepler
Slay The Footnotes

Are footnotes in appellate briefs really so bad? Yes, they are. If you must use them temporarily to store ideas while drafting, be sure to remove virtually all of them before you file. Here’s why. Distraction.  Most of us have trouble following an argument if told to

Feb 12, 2020 Alana H. Rotter
Prime Real Estate

Legal writing, like any other type of writing, should strive to keep the reader’s attention.  But any reader faced with a huge stack of paper (or the digital equivalent) is likely to lose focus eventually.  That makes the first pages of any brief or other

Jan 23, 2020 Laurie J. Hepler
Ways To Blow It

If you expect to take a case to judgment, preserving the right to appeal is vital. The same may (or may not) be true if you’re settling subject to decisions yet to come from the trial court. Here are some ways that even experienced lawyers and sophisticated clients can and do forfeit the chance to appeal—along with tips to help ensure you don’t give up more than you intend.

Nov 12, 2019 Alana H. Rotter
Tough Questions

Interlocutory rulings generally are not appealable—the Court of Appeal will review them only on appeal from the final judgment.  Many litigators know they can seek immediate discretionary review via a writ petition.  But fewer know of a procedural tool that can improve the chances of

Oct 10, 2019 Laurie J. Hepler
We Didn’t Notice That!

Trial counsel often ask if judicial notice can get facts in front of the Court of Appeal that were not presented to the trial court.  The answer is:  It’s possible, but unlikely.  And even if the appellate court uses its power to judicially notice new

Sep 11, 2019 Alana H. Rotter
Hurry up!

The Code of Civil Procedure’s expedited jury trial framework can be an attractive option for resolving a case quickly and economically.  But be aware that the expedited procedure requires giving up important post-trial and appellate rights: By agreeing to expedited process, the parties forfeit motions

Aug 13, 2019 Laurie J. Hepler
Get It In Writing

From the appellate court’s perspective, “if it isn’t in the record, it didn’t happen.”  And California trial courts stopped providing reporters for most civil cases years ago.  While everyone knows that a reporter is crucial at trial to ensure an adequate appellate record, there are

Jul 16, 2019 Alana H. Rotter
Are You Satisfied?

Can a defendant who plans to appeal only part of a judgment pay the non-challenged portion of the judgment without risk of waiving its right to appeal the rest?  A newly-enacted statute (Code of Civil Procedure 695.215) clarifies the answer: “Payment in satisfaction of a

Jun 20, 2019 Laurie J. Hepler
Error Alone

Trial court error alone is almost never enough to reverse a civil judgment.  In almost all cases, a civil appellant must also show prejudice from any error, i.e. a reasonable likelihood of a more favorable result if the error hadn’t occurred. But as usual, there

May 14, 2019 Alana H. Rotter
This One Or That One?

Trial testimony may be perfectly clear to everyone in the courtroom—but appellate judges weren’t in the courtroom.  Make sure to create a record that’s intelligible to someone reading it after-the-fact: When witnesses gesture, translate their gestures into words.  (Witness:  “It was this high.”  Counsel:  “You’re

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