After a notice of appeal is filed with the trial court and the record on appeal is filed with the Court of Appeal, the parties submit briefs to the Court of Appeal and participate in oral argument. This post is the third in a series on explaining the process of a civil appeal.
Appellate Briefs. In most civil appeals in California, there are three briefs: an appellant’s opening brief, the respondent’s brief and the appellant’s reply brief. No other briefs are allowed absent court order. The purpose of the opening brief is to demonstrate how the trial court erred and why the court of appeal should reverse. The purpose of the respondent’s brief is to demonstrate how the order below was correct. The reply brief focuses on any arguments raised in the respondent’s brief. Successful appellate briefs differ in significant respects from briefs filed in the trial court. Appellate briefs primarily focus on legal issues and consider the relevant standard of review on appeal. While trial level briefs may include credibility issues and weighing of evidence, appellate briefs normally should not address such issues. A common error made by attorneys not well versed in appellate law is to simply cut and paste trial level arguments into their appellate court briefs. This can be disastrous.
Oral Argument is Interactive, not a Speech. After the briefing is complete, the Court of Appeal will schedule oral argument. In one appellate court, the Fourth District, Division Two, in Riverside, the court may issue a written tentative decision in advance of oral argument. In Division Eight of the Second District, in Los Angeles, the court may issue an oral tentative summary ruling a few minutes before oral argument. Appellate attorneys general enjoy having advance knowledge of the court’s thinking. In the remaining appellate courts in California, oral argument is held without the benefit of tentative rulings. The justices may ask questions of the attorneys or they may simply listen to counsel’s argument. A big mistake that some lawyers make is drafting a long speech, instead of argument, and sticking with that speech rather than adapting your points in response to your opponent or comments from the bench. The better practice is to prepare oral argument in small, topical segments. Be prepared to address each segment if there are no questions, but also be prepared to re-order or delete certain topics based on the direction of the justices or points raised by your opponent. In one memorable oral argument I had, I stood up, greeted the justices and before I could get two words out the presiding justice said “Sit down. We agree with you. We want to hear from the respondent.” Based on that, I offered no additional argument and won the appeal.