Appellate Insights

Free reporting services have flooded the Internet with trial court orders, and Westlaw has also provided much easier access to them in recent years.  This has led lawyers to cite them in briefs far more often.  But in California appeals, that’s usually a mistake.

• Orders issued by California trial courts are not citable, even for supposed “persuasive value.”

• And apart from the rule violation, citing a trial court order signals that you lack proper authority for your position: California Supreme Court or Court of Appeal precedents on point, or close to the point.

• Federal trial court decisions are citable, but be cautious about when and how heavily you rely on them.  If there are few or no decisions addressing the point from California appellate courts or the Ninth Circuit, then it can help to discuss persuasive U.S. District Court decisions.  This can happen where, for example, the issue has more often been litigated in federal court.

► The practical message.  There’s a hierarchy of precedent in California, and trial courts are nowhere on it.  Do not cite state trial court decisions, and minimize reliance on federal district court decisions.