Appellate Insights

Although California case law has resolved many recurring legal issues, plenty remain to be decided.  Here are some strategies for effectively briefing those “issues of first impression”:

• Be honest about the lack of on-point precedent – don’t portray existing decisions as resolving issues they did not directly consider.

• If the unsettled issue is statutory, demonstrate that your proposed interpretation is the most reasonable one in light of the plain text, statutory construction principles, and indicators of legislative intent.

• If California courts have decided analogous issues, or other jurisdictions have decided the same issue, articulate why their reasoning is persuasive.

• Describe why your proposed rule makes sense, including from a public policy perspective.

▶ The practical message:  Lawyers not only apply the law—they have a hand in shaping it.  When in uncharted legal territory, embrace the opportunity to explain what the law should be and why.