Appellate Practice
Sep. 9, 2024
When an appellate court raises a new issue
Appellate lawyers can be caught off guard by unexpected questions from Justices, potentially leading to an affirmance based on unargued issues. To address this, Government Code § 68081 mandates supplemental briefing, allowing parties to present their views on new issues.
Myron Moskovitz
Legal Director, Moskovitz Appellate Team
90 Crocker Ave
Piedmont , CA 94611-3823
Phone: (510) 384-0354
Email: myronmoskovitz@gmail.com
UC Berkeley SOL Boalt Hal
Myron Moskovitz is author of Strategies On Appeal (CEB, 2021; digital: ceb.com; print: https://store.ceb.com/strategies-on-appeal-2) and Winning An Appeal (5th ed., Carolina Academic Press). He is Director of Moskovitz Appellate Team, a group of former appellate judges and appellate research attorneys who handle and consult on appeals and writs. See MoskovitzAppellateTeam.com. The Daily Journal designated Moskovitz Appellate Team as one of California's top boutique law firms. Myron can be contacted at myronmoskovitz@gmail.com or (510) 384-0354. Prior "Moskovitz On Appeal" columns can be found at http://moskovitzappellateteam.com/blog.
It's happened to every appellate lawyer.
At oral argument, when you get up to argue for a reversal, the Justices immediately hammer you with questions about an issue that was never argued in the trial court or in any of the appellate briefs.
The message is clear. The draft opinion sitting in front of each Justice affirms the judgment below, based on that very issue. And that's what they intend to sign - unless you come up with some...
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