Why Appellate Briefing Rules Matter
This post is the third in an ongoing series about maximizing a party’s chances of prevailing on appeal. California appellate courts impose specific requirements on how arguments are to be presented on appeal. A party cannot simply incorporate by reference trial arguments. Nor can a party simply cut and paste arguments made in trial briefs without the relevant discussion of the standard of review and citations to the record. Parties who proceed with an appeal without following appellate briefing rules run the risk of, at best, having an argument deemed forfeited on appeal, and at worst, being removed from a case and referred to the state bar. Consider the unfortunate outcomes following four California cases:
In Whalley v. The Wet Seal, Inc. (Nov. 15, 2013 G047406), the Fourth District Court of Appeal considered an order compelling arbitration of a class action wage dispute. The appellant wanted the Court of Appeal to consider the right of the plaintiffs to conduct discovery concerning the arbitration agreement. In an unpublished decision authored by Associate Justice David A. Thompson, the court found that issue was forfeited on appeal because it was only raised in a summary of issues but not raised under a “discrete heading” nor supported by “reasoned legal argument and supporting authority.”
In Zochlinski v. Regents of the University of California (Jan. 10, 2013), the Third District Court of Appeal reviewed trial court orders denying petitions for writ of mandate arising from the failure of UC Davis to grant a Ph.D. to the appellant. The appellant was deemed to have forfeited several arguments simply by not adhering to the requirements for presenting argument on appeal:
In a challenge to a judgment, it is the appellant’s burden to establish error by presenting legal authority on each point made and factual analysis supported by appropriate citations to the material facts in the appellate record. If the appellant fails to do so, the claim of error is forfeited. (Citations) It is the appellant’s responsibility to support claims of error with citation and authority; this court is not obligated to perform that function on the appellant’s behalf. (Citation.)
The appellant must present each point separately in the opening brief under an appropriate heading, showing the nature of the question to be presented and the point to be made. (Citations].) This is not a mere technical requirement; it is essential to the appellate process. Appellants must “present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised . . . of the exact question under consideration, instead of being compelled to extricate it from the mass.” (Citations.)
Appellants may not simply incorporate by reference arguments made in papers filed in the trial court rather than brief the arguments on appeal. (Citation). In addition, they may not attempt to rectify their omissions and oversights for the first time in their reply briefs because it deprives the respondent of an opportunity to respond. (Citation.)
In People v. Freeman (October 15, 2013 B237613), a criminal defendant retained a private attorney to represent him on appeal. The private attorney filed four successive briefs that failed to “set forth comprehensible statements of the facts, issues presented, and the applicable law.” In a published decision, the Second District Court of Appeal found that the briefing constituted ineffective assistance of counsel for the appellant and “unreasonably interfered with and disrupted the orderly process” of the appeal. The Court thereafter ordered the fourth opening brief stricken, ordered the private attorney removed from the case and sent a copy of the order to the State Bar.
In Hernandez v. County of Yolo (Aug. 20, 2013, C067631), the Third District Court of Appeal considered an appeal from summary judgment in a sexual harassment matter. The Court affirmed summary judgment but did not stop there. The Court identified three incidents where the opening brief made assertions of fact not supported by citation to the record. The Court also found contradictions between deposition testimony and arguments made on appeal. The Court concluded:
This pattern leads us to believe the misrepresentations of the record are intentional. And even if they are simply negligent, they are nevertheless inexcusable and compel us to provide a copy of this opinion to the State Bar of California to address the issue.
These cases highlight the importance of having an attorney who is knowledgeable and experienced in presenting arguments on appeal. Don’t wing it, win it. Next time you have an appeal, consider retaining a certified appellate specialist to assist you.