David M. Axelrad
Partner Horvitz & Levy LLP
Email: daxelrad@horvitzlevy.com
UC Hastings COL; San Francisco CA
On appeal, no less so than in any other legal discipline, "credibility is everything." Klein, "The Evolved Appellate Brief," vol. 37, No. 1, Litigation 38, 39 (Fall 2010). The path to credibility on appeal is well-known but often not taken.
1 . Write accurately, cite ccurately.
Every factual assertion, reference to the record on appeal, recitation of the law, and citation to a case, must be unfailingly accurate. See Clary v. City of Crescent City, 11 Cal. App. 5th 274, 287 (2017) ("'[m]isstatements, misrepresentations and/or material omissions of the relevant facts or law can instantly 'undo' an otherwise effective brief, waiving issues and arguments; it will certainly cast doubt on your credibility, may draw sanctions [citation], and may well cause you to lose the case!'"); Pierotti v. Torian, 81 Cal. App. 4th 17, 32 (2000) (criticizing recitation of facts "without any support in the record" and "utter disregard for the rules that an appellant must support all statements of fact in his briefs with citations to the record").
2 . Follow the rules closely.
There are many rules governing what you say in an appellate brief and how you say it. The list of formatting and content requirements for an appellate brief is long and requires close attention. Cal. Rules of Court, rule 8.204. The appellate courts take these rules seriously and are annoyed by efforts to evade them.
The word-count requirement is a good example. Principal briefs on appeal are limited to 14,000 words. Cal. Rules of Court, rule 8.204(c)(1). However, appellate litigants have developed a variety of strategies for jamming extra material into the word limit. This does not sit well with the appellate courts. See, e.g., Swigart v. Bruno, 13 Cal. App. 5th 529, 533 n.2 (2017) ("We further disapprove of ... counsel's blatant violation of California Rules of Court ... . [T]hroughout the [brief], counsel intentionally omitted spaces and inserted slashes (/) in case and record citations, apparently so that the word processing program would consider each multi-word citation as one word. [By doing so,] counsel has misrepresented that these case citations are each one word rather than five.").
3. Confront contrary authority.
Acknowledge and deal with adverse authority honestly and straightforwardly. See Alicia T. v. County of Los Angeles, 222 Cal. App. 3d 869, 886 (1990) (imposing sanctions for, among other things, "failure to address controlling published [adverse] authority [on the] merits"); Eisenberg, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2020) ¶ 9:58 ["failure to confront unfavorable relevant holdings will be regarded as an attempt to deceive and mislead the court"). You never want your opponent or the appellate court to be the first to bring up a problem case.
4. Show courtesy and respect.
There are no points given on appeal for a lack of civility or professional courtesy. So, for example, agree to requests for reasonable extensions of time to complete briefs, and don't oppose measures that will streamline the appellate proceedings or make things easier for the court (e.g., consolidation of related appeals). And always refer respectfully to the trial court judge, the parties and opposing counsel. See, e.g., In re S.C., 138 Cal. App. 4th 396, 412 (2006) ("unwarranted personal attacks on the character or motives of the opposing party, counsel, or witnesses are inappropriate"); id. at p. 422 ("Disparaging the trial judge is a tactic that is not taken lightly by a reviewing court. Counsel better make sure he or she has the facts right before venturing into such dangerous territory"); Briganti v. Chow, 42 Cal. App. 5th 504, 510-12, (2019) (criticizing "highly inappropriate assessment of certain personal characteristics of the trial judge, including her appearance, in the opening paragraph of [the] reply brief... . [¶] ... [¶] ... Calling a woman judge -- now an Associate Justice of this court -- 'attractive,' as [appellant] does ... is inappropriate because it is both irrelevant and sexist.").
5. Be candid with your client. You are a counselor as well as an advocate on appeal.
Give realistic assessments of the chances for success on appeal. Appeals are expensive and the client needs a careful, well-rounded and honest appraisal. See Hungar & Jindal, "Observations on the Rise of the Appellate Litigator," vol. 29:3, The Review of Litigation 511, 531-32, fns. omitted (2010) ("One of the most important functions that a skilled appellate litigator serves is to provide an independent perspective on the relative merits of the case and the potential issues for appeal... . An effective appellate advocate is one whose judgment, expertise, and experience permit him or her to provide wise, accurate advice to clients regarding these crucial decisions in the life of an appeal.").
6. Strive to achieve clarity, brevity and simplicity.
This is easier said than done and requires extensive editing. See Briganti, 42 Cal. App. 5th at 512 ("Good brief-writing requires hard work, rigorous analysis, and careful attention to detail"); Eisenberg, Cal. Practice Guide: Civil Appeals and Writs, supra, ¶¶ 9:25 ("Busy appellate justices place a very high premium on succinctly written, well-organized briefs. 'Longer' is not 'better' and, indeed, is likely to be counterproductive."), 9:31 ("Edit, edit and re-edit: Good briefs are not 'written'; they are rewritten").
7. Ensure a clear, complete and accessible record on appeal.
If you make it easier for the appellate court judges to find what you want them to see and read, you are more likely to persuade them. See Protect Our Water v. County of Merced, 110 Cal. App. 4th 362, 364 (2003) ("When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two").
8. Adhere faithfully to the applicable standard of review.
Preparing a brief that does not adhere to the applicable standard of review is a sure way to lose credibility. See, e.g., People v. Jackson, 128 Cal. App. 4th 1009, 1018 (2005) ("the standard of review is the compass that guides the appellate court to its decision. It defines and limits the course the court follows in arriving at its destination. Deviations from the path ... leave writer and reader lost in the wilderness."); James B. v. Superior Court, 35 Cal. App. 4th 1014, 1021 (1995) ("counsel's failure to acknowledge the proper standard of review might, in and of itself, be considered a concession of lack of merit"). So, for example, when challenging a disputed issue of fact as lacking substantial evidence, the facts must be recited in the light most favorable to the judgment in order to enable the appellate court to determine whether the record discloses sufficient supporting evidence. E.g., People v. Hatch, 22 Cal. 4th 260, 272 (2000); see Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728, 738 (2007) (where "a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived'").
Following the principles summarized here establishes credibility and therefore increases the likelihood of success on appeal.