Appellate Insights

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 whether you should bring it to the court’s attention—if so, the best practice is to do it before argument:

  1. The California Court of Appeal permits letters identifying new authority “that was not available to be included in the last brief that the party filed or could have filed.”  Letters are limited to citing the authority and identifying what issue it relates to – no discussion or argument.
  2. The California Supreme Court allows a short supplemental brief addressing new authorities that were likewise “not available.”
  3. The Ninth Circuit permits letters about an authority that “come[s] to a party’s attention after the party’s brief has been filed.”  The letter can discuss the new authority and its applicability, in 350 words or less.

►  The practical message:  Monitor new authorities with your pending appeals in mind, and take prompt action on any authority that you would have included in your briefs.