Motions matter in the court of appeal too, so here are 10 tips

Appeals are decided almost entirely on the written briefs, there's no doubt about that. But California appellate courts will also entertain 20-30 different types of motions, many of which can make a dramatic difference in how an appeal proceeds - and, potentially, how it comes out. 

Motions in the Court of Appeal are governed by California Rule of Court, rule 8.54. That rule requires motions to be in writing and supported by declarations if they rely on outside facts. It allows an opposition to be filed within 15 days - and failure to oppose may be deemed a consent to the granting of the motion. The court can hold a hearing on a motion, but as a practical matter, that rarely happens.

Some motions are procedural, like motions seeking to file an overlong brief, obtain an extension of time or stay of an appeal, request calendar preference, seal or unseal documents, or consolidate appeals. Others have to do with the record, such as motions to augment, take judicial notice, or make independent factual determinations. Yet others are outcome determinative, including motions to dismiss for legal or discretionary reasons, strike a defective brief, or obtain summary determination.

Different Districts and Divisions of the Court of Appeal will process motions a bit differently, but as a general matter, motions filed before briefing is complete will usually be routed to the Division or District's Presiding Justice, sometimes along with a recommendation or proposed order prepared by the Divisional or District clerks (staff who work in the Clerk's Office and are not assigned to individual chambers). Simple procedural motions such as an unopposed request for extension of time may be decided by the Presiding Justice right away, while complex or substantive motions, or any other motions filed after briefing is complete, will often be routed to a merits panel. If that happens, the merits panel may assign one of the justices to analyze the motion immediately, which he or she will do with the help of in-chambers research attorneys, or it may defer consideration until it considers the rest of the briefing, in which case the motion will be analyzed by the justice taking the lead in drafting the disposition.

No matter what type of motion you plan to bring, here are 10 Do's and Don'ts to help you convince the appellate court to see it your way:

1. Do make it easy for the clerks. Think about how the clerks, who deal with hundreds of filings, in-person visits, and emails each day, will deal with your motion. Try to make it as easy for them as you can. If you're moving to augment the record or for judicial notice, for example, include a bullet-point list of everything you want to add - the clerks can use that as a checklist to make sure the justices don't miss anything. Similarly, if you're filing a second version of a motion because you made a mistake, file it with "Amended" or "Errata" in the title so the clerks can easily tell which is which.

2. Don't bury the lede. Tell the reader exactly what you want the court to do within the first two paragraphs... and if your motion is more than a few pages long, reiterate that request at the end of the motion.

3. Do give the court a proposed order. It can't hurt, and especially if you're asking for more than one form of relief, it can ensure the clerks and justices don't miss anything.

4. Don't let your own litigation behavior undermine your request. If you want to ask for calendar preference, don't first obtain multiple extensions of time to file your brief. If you might want to ask for an extension yourself, don't oppose the other side's request.

5. Do tell the court your opponent's position. If you can't reach opposing counsel, let the court know you tried. And if you're on the other side of a motion and the movant didn't give your position and you plan to oppose, email or call the clerk to let the court know to expect an opposition. If a motion seems routine (like an extension request), the court won't always wait the full 15 days to see if an opposition comes in. 

6. Don't file a reply without seeking leave of court. Rule 8.54 permits only a motion and an opposition - no reply. Some Court of Appeal divisions will automatically reject replies unless they are accompanied by a request for leave to file.

7. Do make sure you're filing in the right court. Certain motions, such as motions to abandon an appeal before the record is filed, are filed in the superior court, not the Court of Appeal.

8. Don't ignore local rules. The 1st District, for example, has several local rules affecting specific types of motions, including Rule 7 (motions to consolidate) and 10 (options for stipulated reversal). So too the 2nd District, which has Rule 2 (motions to augment) and 4 (mandating proposed orders); the 3rd District, which has Rule 4 (judicial notice); and most of the others.

9. Do keep electronic filings organized. When filing through TrueFiling, send all the parts of the motion (motion, memorandum, declarations, etc.) as one single filing, not as separate filings.

10. Don't call or email the Clerk's Office a few minutes after filing to ask if the filing is ok. If TrueFiling tells you your motion was filed, the court got it. It will let you know if there's a problem.

It should go without saying that motions are taken seriously and filing misleading or very weak motions is a bad idea. Not only will you lose credibility for your merits briefs, but frivolous motions are subject to sanctions.

In the end, appellate motions can make a big difference in an appeal's outcome, and are worth thinking about carefully.