SCAN's OC Correspondent Yen-Shyang Tseng reports on today's OCBA Appellate Law Section program:
“Trial Judges’ Perspectives on Effective Appellate Advocacy” by Judge Dunning and Judge Griffin.
(Both judges previously worked as research attorneys on the Court of Appeal, Fourth District, Division Three and now serve as Superior Court judges. The Section’s program chair, Jimmy Azadian, moderated.)
The judges discussed preserving issues and the record for appeal, including a warning on asking for “too much” when making evidentiary objections and seeking rulings on them. The discussion then turned to writing appellate briefs. The judges seem to love introductions – as long as they are clear and tell the judges what the case is about, what relief the party seeks, and why they are entitled to that relief. Passion in briefs can be useful – in the right places. The statement of facts is not a place for argument.
Much of the remaining discussion focused on statements of decision. The judges tend to – but not always – write their own statements of decision rather than have counsel write proposed ones. They emphasized that attorneys should “follow the statute,” and that the statement of decision is not a rehash of the entire trial; instead, it’s only about the principal controverted issues, and what the court relied on. And, every once in a (long) while, a judge might change the judgment during the process of preparing a statement of decision, if they realize that their initial decision was wrong.
Neither judge tends to read briefs filed in an ongoing appeal, but might do so after the an opinion is filed. And they do not file briefs as a respondent in writ proceedings (although they noted that some judges do).
The judges noted the Brown, Winfield requirement that a trial court hold a hearing if it is considering changing an order in response to a suggestive Palma notice (or an alternative writ) by the Court of Appeal. The message seemed to be that judges might not be vested in their original rulings, so the party who won the first time may have an uphill battle trying to persuade a judge to uphold a ruling in the face of a suggestive Palma notice.
The judges do not seem to believe the Court of Appeal typically takes CCP 166.1 statements into consideration when deciding whether to issue a writ.