q/a archive
Q1: What procedure does the court use to review extension of time requests?
A: The court clerks open the requests and prepare a short attachment that sets forth:
- Number of extension requests to date (1st, 2nd, 3rd, etc.)
- Number of days requested
- Size of the record
- Whether a late letter has issued
- Conviction offense
- Sentence imposed
The materials are set aside for the presiding justice's review each afternoon. For most criminal appeals, the first and second requests are routinely granted but, depending on the circumstances [appeal involving a juvenile or a short sentence], may be stamped, "No further time will be granted."
For third and subsequent requests, the managing attorney reviews the attorney declaration and summarizes for the presiding justice the Rule 8.63(b) factors set forth to show good cause for the extension. Factors that may support a 3rd extension include a long material record and a complex or novel issue, significant illness or unanticipated event that interferes with work productivity, awaiting a response from a specific individual or entity (appellant, trial counsel, CCAP) before filing the finished brief. Statements as to how counsel intends to use the extended time to complete the brief can be helpful.
Subsequent extension requests will generally not be granted absent a detailed showing of good cause. The length and complexity of the appeal are considered.
| Guidelines for EOT's in Juvenile Dependency Appeals | |||
|---|---|---|---|
|
J366.26 |
J300 |
J7825 |
Record (ROA) |
10 days |
20 days |
10 days |
Appellant's Opening Brief (AOB) |
15 days |
30 days |
15 days |
Respondent's Brief (RB) |
15 days |
30 days |
15 days |
Reply Brief (ARB) |
10 days |
10 days |
10 days |
As a general rule, no 2nd EOT.
Considerations in granting a 2nd EOT or a lengthier 1st EOT:
Exceptional circumstances? Death in family, serious illness &/or hospitalization, computer crash and lost everything, preplanned prepaid vacation. Otherwise, some event will eat or has eaten up essentially all of the time the person would get under the guidelines.
Q2: If the attorney knows she will need more than 30 days to file the brief because of the length of the record, would the court prefer to receive successive 30-day EOTs or would it prefer to receive one request for the full additional period needed?
A: The court considers the length of the record and the gravity of the matter in deciding whether good cause exists for an extension of time. If counsel knows she will need more than 30 days to file the brief because of the length of the record, she may request a longer period. The court does not “prefer” such requests but recognizes them as reasonable in certain cases.
"What I normally look at is the number of days of trial as well as the nature of the offense. A longer trial (over 4-5 days) is usually going to raise more issues and a trial with very severe consequences is going to take more time to evaluate. What I really don't like in these requests is hearing about all the cases in other courts that they are working on or that they have matters pending before this circuit or that circuit. Why is it that an attorney would think that the obvious implication that other court's cases are more important than the Fifth's is going to be persuasive? On the other hand, I realize that a proficient attorney is going to have more than one on-going case and that it takes time to read a record, etc. Telling me that you have twelve cases and you need a third extension on this case because you have so much to do simply tells me that you have taken on more work than you can handle.
"I consider a several thousand page record as 'long.' Experience tells me those cases are going to probably need a second extension. But counsel needs to remember that if you ask for sixty, I may grant it but I may very well not grant an additional extension unless I get a very good reason. I do enjoy the personal notes regarding family situations and personal issues because it tells me something about the people and I understand there is a personal life to consider. It might surprise some attorneys to know that I remember who is sick and who has serious family issues and I do empathize, believe it or not. My favorite was, 'the dog ate the CD that my work was on.' I also tend to remember who always asks and who seldom asks, but I don't keep a list."
Q3: On Feb. 11, 2010, the Court issued a standing order addressing 4019 supplemental briefing. At the time the court deemed the issue raised for "pending appeals in which an appellant is entitled to additional presentence custody credits under . . . 4019 . . . without additional briefing." The order also states, "This order applies to all appeals." If an appeal was not pending as of Feb. 11, 2010, and/or the AOB had not be filed, does the standing order still affect briefing? In other words, did the court intend for that standing order to affect only cases where supplemental briefing would have been needed to raise the issue? Will the court deem the issue raised in a new AOB if appointed counsel points to the order and does not otherwise fully brief the issue for the court other than by reference to the court's February order?
A: The February 11, 2010 order was directed at cases in which briefing was complete, so counsel may now raise and brief the issue as he/she deems appropriate. However, Justice Ardaiz will accept counsel’s request, within the brief, that the court deem the issue raised pursuant to the standing order.
Q4: If counsel wants to waive oral argument, does the Court want counsel to return the form marked conditionally waived, or is it okay to simply not return the form? And if counsel does not return the form marked conditionally waived, will counsel still be allowed to argue the case if opposing counsel subsequently requests oral argument?
A: Please return the form to submit the conditional waiver because the oral argument notice states, “If you do not respond in writing, your right to oral argument will be deemed waived.” However, if one side requests oral argument, the court will reconsider the opponent’s deemed waiver. It is the policy of the court to permit oral argument in such cases.
Q5: Once a case is fully briefed and awaiting oral argument, will the Court accept a letter from counsel informing the Court of an upcoming vacation, and will the Court consider it when scheduling the argument date?
A: Before a case is calendared for oral argument, the Court will accept a letter regarding counsel’s availability and, within reason, will try to accommodate. Once a case is calendared, it is much more difficult to change. While exceptions are made, changing a calendar date is generally disapproved.
Q6: Is there a procedure that a panel follows in determining whether a case will be certified for publication? Will a case be published if the panel does not unanimously agree that publication is appropriate?
A: California Rules of Court, rule 8.1105 sets forth the standards for certification for publication. When the attorney prepares the legal memorandum for the authoring justice, he or she recommends whether the opinion should be published. The recommendation follows rule 8.1105. If the authoring justice and one panel member agree, the opinion will be published.
Pursuant to rule 8.1110, a majority of the rendering court may certify for publication any part of the opinion meeting the standard for publication under rule 8.1105.
Q7: What is the procedure for transmitting exhibits for appointed counsel to review?
A: There are two options available: 1) File a motion to augment the record with a clerk's transcript(s) of the exhibits, or if the exhibits cannot be made into a clerk's transcript; 2) File a motion with our court to have the exhibits transferred to another DCA and we will prepare an order allowing this and give a limited amount of time to view them.