Tips for Happy Judicial Attorneys in the Third & the Fifth District Court of Appeal

Third District Court of Appeal

Big Picture Items

Focus arguments on the strongest points only. Raising weak points detracts the reader from the stronger ones, diminishes the author's credibility, and diverts the advocate's resources from a more efficient allocation.
If counsel believes the Chapman standard of prejudice applies, please fully explain why. Use more than just a string cite or a simple assertion that the alleged error violates appellant's constitutional right to present a defense.
For insufficiency of evidence arguments, present all the evidence in the light most favorable to the verdict. Never misstate the facts or the record or omit facts.
Spend time making a strong prejudice arguments. Marshall all the facts in support of reversal as this is what the outcome of the appeal may well turn on.
Read the applicable statute. The plain meaning rule is a unifying force on the court.
Hidden and undeveloped issues will be deemed forfeited. Do not lump several arguments together under one heading. Not only does this violate the rules of court and of appellate practice, but it also leads to appellant's counsel not fleshing out each distinct argument.
Make use of the power of primacy. Place your strongest arguments first.

Procedural Issues

An introductory paragraph at the beginning of the brief laying out your arguments can be helpful.
When presenting the facts of the case, there should be a cite to the record after every sentence, rather than a single, multi-page citation at the end of a paragraph.
Omit excess facts unrelated to the issues raised, especially in dependency cases.
Subtitles in arguments are often helpful to guide the reader through the argument.
Provide page point citations to legal cases.
If citing to U.S. Supreme Court cases, include the Lawyer's Edition parallel cite because that is the report they have on the shelves.
When citing to instructions, cite to the RT as well as the CT. Judicial attorneys rely on the RT because that is how the court actually instructed the jury on the law.
Use spell check and proof read for grammar.
Use plain English.
Every reply brief filed really is read and considered.
Don't put down opposing counsel.

Big Picture Items

Read the pertinent statutory provisions that define the elements of the offense before reviewing the record, and keep them in mind when looking for issues.
Do not ignore authority contrary to your position. Acknowledge it and explain why it's wrong.
If making an argument simply to preserve it for federal review, say so up front.
When analyzing a statute's provisions, counsel should discuss any recent California Supreme Court decisions on point. Don't ignore controlling authority and instead rely on old, depublished Court of Appeal decisions.
Use the reply brief to truly respond to the respondent's brief. Unless respondent has misread your argument, counsel does not need to begin by saying, "In the AOB, appellant argued…" Judicial attorneys have read the AOB and know what you have argued. They want to hear why the AG was wrong.

Procedural Issues

Avoid "soap opera briefing." The court is burdened with a great deal of unnecessary verbiage in its daily work. Trim down the factual presentation when the issues raised are modest and can be resolved without a detailed factual recitation. Save the lengthy and elaborate statements of facts when they will be used as spring boards for the legal issues, and when they suggest a miscarriage of justice in the trial court.
Always provide a page point reference and make sure the citation is correct. Judicial attorneys will rarely take the time to try to find a case via case name, etc. If you want the court to read the case, provide the right citation.
Proofread.
Avoid repetition.