Appellate Success In California

Nov 16, 2017 Alana H. Rotter
No Harm, No Foul

Showing trial court error is critical in any appeal, but it’s usually not enough.  Only a few types of errors trigger an automatic reversal.  For all other types of errors, the appellant must also show prejudice—that is, a reasonable probability that the error affected the

Oct 12, 2017 Laurie J. Hepler
Is This Appealable?

California appellate courts lose jurisdiction once the deadline passes to notice an appeal.  Truly and forever.  So it’s time again for ASIC’s semi-annual selection of orders that just might be appealable (or not … we try to keep it interesting).  As always: these answers apply

Sep 12, 2017 Alana H. Rotter
Heads Up

Descriptive headings make briefs more clear, and result in a table of contents that provides a helpful roadmap of your position.  But on-point headings are more than just good practice—they are required, and failing to use them comes at a high cost: Each point in

Aug 10, 2017 Laurie J. Hepler
Lurching Toward E-Filing

Federal appellate courts mastered e-filing many years ago, and it’s the norm nationwide.   But state appellate courts in California still have not fully implemented it.  Here’s a summary of where things stand: The state Supreme Court forbids e-filing for merits briefs, but as of September

Jul 12, 2017 Alana H. Rotter
Writ Petition Deadlines

After suffering an adverse trial court ruling that isn’t immediately appealable, litigators often wonder whether they should seek discretionary review in the Court of Appeal via a writ petition.  The answer is case-specific because it depends on many factors.  But there is one overarching theme

Jun 15, 2017 Laurie J. Hepler
Get To The Point

What if no email you received had a Subject line?  What if writers only told you what they needed somewhere in the middle?  And how about a news article that goes on too long, sprinkled with “color words” that make you question its reliability? This

May 11, 2017 Alana H. Rotter
Avoiding Record Holes On Appeal

Videotaped deposition excerpts can be helpful or even essential at trial.  But because court reporters are not legally required to transcribe them, they can leave holes in the appellate record and a video clip won’t count as “substantial evidence” on appeal if the appellate court

Apr 26, 2017 Laurie J. Hepler
Is This Appealable?

It’s April, and time for ASIC’s semi-annual installment of “Is This Appealable?” — a selection of adverse orders that arise frequently for trial counsel and litigants. As usual, these answers apply 95% of the time in California state courts; there are sometimes exceptions. 5. Is

Mar 09, 2017 Alana H. Rotter
Dismissing Claims To Hasten An Appeal

A trial court ruling that resolves some causes of action but not others is not immediately appealable.  Parties sometimes try to hasten appellate review of a key ruling by dismissing the remaining, unadjudicated claims and asking the trial court enter a final judgment.  But the

Feb 14, 2017 Laurie J. Hepler
Don’t Dive In—Wade

Appellate justices are generalists.  Last week on a single Court of Appeal calendar, I listened to arguments that debated whether the justices should: Require a retroactive increase in child support; Reverse a personal injury judgment for re-trial, due to the improper discharge of a juror;

Jan 12, 2017 Alana H. Rotter
Another Bite At The 170.6 Apple?

Most California litigators know Code of Civil Procedure section 170.6 gives each side one opportunity at the outset of a case to have the case reassigned to a different judge.  But fewer know that section 170.6 also permits a peremptory challenge after some appellate reversals

Dec 16, 2016 Laurie J. Hepler
A Holiday Poem

Hone your prose and keep it short As you approach appellate court Prune the verbiage, Pitch your story! Yacking earns you zero glory   Hook ’em soon with why you win Own the high road, limit spin Lead with strength and deal with snags Inspire

Nov 15, 2016 Alana H. Rotter
Be Careful What You Agree To

Stipulations and other agreements can be an efficient and even helpful way to move a case along in the trial court.  But be wary of being too agreeable:  Under the invited error doctrine, a party that stipulates to a piece of evidence coming in or

Oct 18, 2016 Laurie J. Hepler
Is This Appealable?

It’s time again for that high-stakes question: is this appealable?  As longtime readers know, failure to timely notice an appeal means permanent and usually irreparable loss of the appeal right.  So twice a year, I run through some examples to illustrate the many ways this

Sep 13, 2016 Alana H. Rotter
What Do You Want?

Every appellate brief urges the court to rule in the briefing party’s favor.  But far fewer briefs say exactly how the court should do so, and why.  That lack of specificity is a mistake.  A party’s job on appeal is to make it as easy

Aug 15, 2016 Laurie J. Hepler
Two Cliffs

Very few deadlines in civil practice are “jurisdictional,” i.e. if you miss it, the right is irretrievably lost. Many California lawyers know that the deadline to notice an appeal is one of them.  It comes 60 days after service of a notice of entry of

Jul 14, 2016 Alana H. Rotter
Appealing Anti-Slapp Rulings in the Ninth Circuit

In the California state courts, every order granting or denying an anti-SLAPP motion is immediately appealable. But anti-SLAPP appealability is more of a minefield in the Ninth Circuit. There, an anti-SLAPP ruling is appealable only if it satisfies the requirements of the “collateral order doctrine”

Jun 10, 2016 Laurie J. Hepler
An End to Automatic Depublication

Under current rules, the California Supreme Court’s decision to review a published appellate opinion automatically “depublishes” that opinion while review is pending — making it non-citable. This approach causes problems.  It eliminates useful discussions of un-reviewed issues.  And when the reviewable conflict among districts arises

May 13, 2016 Alana H. Rotter
Handling Bad Law

When drafting an opening brief on appeal, it can be tempting to avoid adverse authority — and on a first read, the brief might appear stronger that way. That’s wishful thinking. As Seventh Circuit Judge Richard Posner has observed, “The ostrich is a noble animal,

Apr 21, 2016 Laurie J. Hepler
Is This Appealable?

Each April and October, ASIC brings you a selection of the orders that litigants may win or lose – requiring both sides to know each other’s options for review. These answers apply 95% of the time in California state courts, but every major interlocutory order

Apr 05, 2016 Laurie J. Hepler
Resolve to Say Less

Commit to succinctness. Swear off at least the top 10% of any court’s word-limit for a brief – and more would be better. Remember, that limit is the maximum the court will accept; not the length the court wants to see. Here’s a chorus to

Mar 17, 2016 Laurie J. Hepler
A Grand Transition

Can anyone remember a time when an appellate judgeship has so dominated the news? It’s easy to see why: the stakes are nothing less than the ideological balance of the highest American court for at least the next generation. In an election year, no less.

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