Cliff Gardner

Appellate Law's Tips, Tricks and Traps
Panel Explores Ins and Outs of Appeal Process

The Recorder
February 22, 2001

On Jan. 8 The Recorder sponsored a roundtable discussion on basic principles of appellate law. Three prominent appellate specialists and two justices of the California Court of Appeal offered practical tips for the litigator who is called on occasionally to challenge or defend a trial court judgment. Following are excerpts from the discussion, which will be presented in two parts. Today's installment covers what you need to do at trial to help yourself on appeal, and when and when not to take a writ.

William Bedsworth is an associate justice on the Fourth District Court of Appeal in Santa Ana. A former prosecutor in Orange County, he served as a Superior Court judge there for 10 years prior to his elevation to the appellate bench in 1997.

Jon Eisenberg is of counsel in the Oakland office of Horvitz & Levy, an Encino-based firm that specializes in civil appellate and writ matters. He is a former staff attorney with the First District Court of Appeal.

Kevin Fong is a partner in the San Francisco office of Pillsbury Winthrop. An appellate specialist, he has argued five cases before the California Supreme Court and has made appearances in more than 60 published decisions.

Cliff Gardner, a solo practitioner in San Francisco, has practiced criminal law for nearly 20 years. During that time he has developed extensive experience representing clients in post-conviction proceedings, including appellate and habeas corpus matters.

Joanne Parrilli has served as an associate justice on the First District Court of Appeal in San Francisco since 1995. She previously sat on the municipal and superior court benches in Alameda County. She began her legal career as a deputy district attorney.

Scott Graham (moderator) is editor in chief of The Recorder.

Preserving the Appeal

SCOTT GRAHAM: I want to start by talking about the mistakes at trial that sometimes come back to haunt appellate lawyers. What are the kinds of things that attorneys need to do in trial to make sure that they'll have an effective appeal or an effective response to an appeal?

JON EISENBERG: The greatest nightmare for the appellate specialist is the objection that was never made. As an appellate lawyer, you could be perusing a record, reading through a trial transcript, and all of a sudden, you realize, that can't be right. This is wrong. There's my error, there's my reversal. But there was no objection. Nothing was said. Or maybe there was an objection but it was for the wrong reason stated or no ground at all.

GRAHAM: So if someone objects based on relevance, and on appeal you want to argue that it was a hearsay problem, you're out of luck?

EISENBERG: You're out of luck. You can't.

WILLIAM BEDSWORTH: Or you object on the right grounds and don't press for a ruling. I'm sure everyone has encountered the judge who when you make your objection says, "Well, I think we can deal with this another way. Let's go on and see if we can't resolve this, or we'll take a recess and you and Mr. So-and-so see if you can't resolve this," and you never get a ruling on your objection.

EISENBERG: Or perhaps you get the ruling in chambers.

BEDSWORTH: And in chambers the next morning everybody is chatting a little over coffee and the judge says, by the way, I'm going to overrule your objection. OK, off we go and it's not on the record.

GRAHAM: So what should you do in that case?

CLIFF GARDNER: I see that a lot in the criminal context, and I agree that the most serious error is the objection [never] made. The objection that's made in chambers is a problem for you, but it can be dealt with, because there are mechanisms where you can settle the record.

One of the things that an appellate lawyer has to do is talk to trial counsel and say, look, I see this as a problem, didn't you? And the trial lawyer often will say, absolutely and I objected. That's great, where? In chambers. You didn't put it on the record. So, then you use the process of the court to settle the record and you get that objection on because otherwise, as you say, it's waived and you're out of luck.

JOANNE PARRILLI: I wouldn't rely on the court or the memory of the participants to make the record months later because it would not shock me to learn that some of those participants didn't remember.

GRAHAM: So you want to put it on the record right after the meeting.

PARRILLI: As soon as possible.

BEDSWORTH: The sooner the better. If you remember it three days later, you can always put it on the record. It may be too late to make an objection, but if you've made the objection, you can always put it on the record that you made that objection three days ago in chambers.

KEVIN FONG: This may be obvious, but one of the most common mistakes is losing a trial in the first place, because losing at trial makes it harder to win in the court of appeal. Most cases ultimately are affirmed. The party that won at trial is usually the party that wins in the court of appeal. So one of the best ways to set up your case for appeal is to win in the first place in the trial court.

GRAHAM: How about in the pretrial period, when you are doing motions in limine? Can you waive issues then that would be likely to come up at the trial?

EISENBERG: The most obvious problem would be making an argument that seemed like a really good argument at the time but turned out not to be such a great argument from the perspective of an appeal. If it's written down in a motion in limine, it might as well be etched in stone and you're pretty much wedded to the position [on appeal].

On the other hand, maybe you didn't argue enough. Maybe it was a throwaway line -- by the way, the evidence is not only irrelevant and immaterial, etc., etc., last line, it was also hearsay. Is that enough to preserve an objection? Maybe I can put that question to the two judges.

If the evidence was hearsay, should have been excluded on that ground, but there is no explanation as to why, is that enough of the error to be preserved for appeal?

BEDSWORTH: The cynic will tell you it depends on where the panel wants to go. I will tell that we all just get a sense of the case. Whether we think a judge should have recognized what was said as an objection is largely a matter of individual sense and the facts of that case.

PARRILLI: My view is that it would be preserved, if it were in there, but that's another area where you have to make sure your court rules on the objection at the trial level. Because oftentimes the trial judge will say, faced with a stack of in limine motions, we'll deal with these as they come up during the trial. So be sure you get your ruling at the trial court level to preserve that.

GARDNER: If you're doing criminal work, especially in your in limine motions, I think it's important not only to state a ground for objection, but a federal ground as well. Because one of the most important things a criminal post-conviction lawyer can do is preserve someone's federal rights.

So, if someone were to argue it's hearsay, make a brilliant argument that's ultimately overruled by the judge, arguably at least, you haven't preserved the Sixth Amendment right to confrontation. So to the extent that you want to preserve your client's right to go to federal court, you haven't done so. An in limine motion is a good place to do that, to throw in references to the Sixth Amendment, whatever other federal rights you want to preserve.

BEDSWORTH: In a similar vein, if you're in-house appellate, remind your trial counsel not to make bad arguments. One of the big revelations of my legal career as a trial judge was changing from criminal to civil for a year and a half and doing my first medical negligence case. The first medical negligence case I ever saw, I was the judge in. One of the wonders of our system.

And counsel made a motion, an in limine motion, and I granted it, and the next day, counsel came in and withdrew it. I realized that what had happened was that he made an argument that he fully expected to have rejected, and the dummy from the criminal side had granted it, and now they were really in a bind. Because unlike the criminal side, the client was going to have to pay for this appeal if it went up.

And so, point out to your people that the mere fact that they can take advantage of the trial judge doesn't mean that they want to.

Holy Writ!

GRAHAM: Let's suppose we're at the trial court level and we're very, very unhappy with some ruling or some procedural matter that's gone against us. There is the opportunity to file for a writ to the court of appeal. I know some of the practitioners feel that it's almost a sure lost cause. On the statistics, I think fewer than 10 percent of writs get taken up by the court of appeal.

Why are so many writs denied? What's the mistake that practitioners are making when they're going to the court of appeal?

BEDSWORTH: The mistake is going to the court of appeal. I'll quote from Omaha Indemnity. If you get nothing else of what I have to say, which is distinctly likely, get Omaha Indemnity [v. Superior Court, 209 Cal.App.3d 1266]. Omaha Indemnity is the bible to writ practice in this state. And it's [Second District Justice] Arthur Gilbert's statement that error by the trial judge does not, of itself, ensure that a writ petition will be granted.

The appellate culture in our state, as I perceive it, is that if you are asking for the writ, you are essentially asking for your case to jump ahead in line of all the other appellate cases that we have, of which we have too many. Before the courts of appeal are going to allow you to do that, you have to convince us that something horrible will happen -- not just that the judge is going to be wrong and you're going to be put through what Omaha Indemnity refers to as "irreparable inconvenience," but that you are going to be irreparably harmed.

In our court, because we have such a terrible backlog, if you cannot show irreparable harm, you just will not get your writ granted.

If you're [taking a writ from] a summary judgment denial, don't hold your breath. I have a colleague who only half jokingly says, I stop reading when I get to the phrase "summary judgment denial." To his mind, that is pretty much the epitome of irreparable inconvenience. What you're complaining about is you're going to have a trial now.

GRAHAM: Let's suppose I'm your client and this wrong ruling by this trial judge is going to cost hundreds of thousands of dollars in litigation expenses. Wouldn't it make sense to go to the court of appeal and have them correct the judge?

EISENBERG: Five years ago, when I left the court and went into practice, the first two calls I got were from someone wanting to file a writ. I thought, oh boy, this is great, I get to do a writ. It's exciting, it's important, it's crucial. The client's business is hanging in the balance. Now, five years later, I get a call like that and I go, oh no. Oh, please no.

Because I have to explain to the client, yes I understand. Just because you have to go through a trial, pay your trial attorney another couple of hundred thousand dollars, pay me tens of thousands to keep track of things while it's all going on, [that's not sufficient].

Yeah, I know that's a real hassle for you, but the court of appeal really doesn't care. Because that's not their idea of irreparable injury. That's something that everybody has to go through.

What irreparable injury is, if I don't get [the writ granted], I'm out of business, and I have gone to the court of appeal with that line, and had a writ denied, and a week later, they were out of business. It's a tough grind.

BEDSWORTH: The court of appeal does care.

We have sat there and agonized over some of these things and what we can do about them. Some years ago, the courts of appeal invented something we call in our court the turbo writ, which is an order to show cause, which tells the [trial] judge, this really looks wrong. This certainly looks like error under the following eight cases. Please correct that error or show cause in this court on such and such a date. On the theory that sometimes, when you send that back to the trial court judge and you give him or her a page and a half of your own points and authorities, showing why he or she is wrong, that you will get some kind of action. Because we are desperately looking for some way to correct some of these things without having to put them on our calendars.

PARRILLI: This is why I love coming to these things, because I always learn something. In the First District, we call that a strongly worded alternative, but turbo writ is much snappier.

I think the bottom line to all of this is that you have to be selective about the writs that you file. The appellate court is going to get involved, but it's more likely to get involved in certain areas. For example, in discovery. Typically, unless it's a brand new issue under the discovery act, the court is not going to get involved. But if there is a question of privilege, it's more likely to get involved because once privileged documents or items are divulged, you can't put that cat back in the bag.

Similarly, on cases where a summary adjudication is granted, let's say, and the court should have granted summary judgment perhaps. The [appellate] court will look at that more closely perhaps, with a view towards disposing of the whole case so it won't come up in separate appeals later on.

The flip side of that can also be true. If the court incorrectly grants summary adjudication as to a few causes of action in a multi-count complaint, the appellate court may choose to intervene -- so that there won't have to be two trials, one now and a second one after the appeal. So you just have to be selective and be thick skinned.

FONG: And sometimes, you really do have to file a writ. Certain statutes make a writ petition the only way of getting appellate review.

GRAHAM: On the subject of writs, on the criminal side, there's the great writ, habeas corpus. How do you decide when and where you're going to take a habeas writ?

GARDNER: Under California law, you can file a writ in any court. You can file it in the superior court, the court of appeal or the Supreme Court, so you have a tactical decision as to where you want to go. You're only going to raise a writ when you need to introduce evidence that isn't in the appellate record. So, that's why you do it. You have a new witness who's come forward to say that in fact, your client was in the meeting with the pope in the Vatican City at the time of the crime, and you want to present that evidence or the pope himself has come forward. That's the type of thing you'd use and I do that all the time.

Where depends a lot on where you eventually hope to win the case. If you think you can win the case in state court, you may want to give yourself as many shots in state court as you can, by going through all three levels. If you are in federal court with a writ and your federal proceeding is being held for you to go back to state court and you have a good federal judge, you may just want to go to the state Supreme Court to exhaust your remedies, which you have to do before you can take a claim to federal court.

GRAHAM: Sometimes I'll see a habeas petition and appeal being consolidated. Is that something favorable from the practitioner's point of view?

GARDNER: From the practitioner's point of view, it's great. If you're arguing an appeal and you have some good issues, maybe not great issues, and you can bring new evidence to bear that raises a doubt as to innocence or is relevant to some of the issues you're raising in your appeal, then it's a one-two punch. It's that much stronger. Whenever you can go outside the record, it's better, because let's face it, from the criminal perspective, the story that was told at trial is the reason your client's in jail. You want to try to tell a different story. It's easier to tell a different story if you have some different evidence.

Developing Appeal

GRAHAM: Let's talk about appealability and filing or responding to a notice of appeal. Kevin, how important are the deadlines here?

FONG: Very important. But the first question is, is it appealable in the first place, and the starting point in the California state system is CCP Section 904.1, which essentially just lists the major appealable orders and judgments.

GRAHAM: How about on the federal side? It strikes me on the federal side that trial judges have a lot of discretion as to whether to allow an appeal to go forward.

FONG: On the federal side, the key provisions are rule 54b of the Federal Rules of Civil Procedure, which allows certification of a partial judgment when there are multiple claims, and also 28 U.S.C. 1292(b), which allows a district court to certify an order for appeal if it involves a controlling question of law, along with meeting several other requirements.

The original question was timing. In federal court, timing is very important. Because in federal court, the standard time to appeal is 30 days after entry of judgment, not notice. The mere entry of judgment on the docket sheet starts your 30 days running in federal court. In state court, you have generally 60 days from notice of entry, so you have a little bit more time on the state side.

EISENBERG: I think this is a very good time to be suffering from obsessive compulsive personality disorder. These deadlines are drop dead deadlines. If you miss one, call your insurance carrier, because you have committed malpractice. And I think it's best to think of them as 59-day deadlines, not 60-day deadlines. Because you don't want the motorcycle messenger service to be on the Bay Bridge at 4:45 in a traffic jam, because if you miss that deadline, you are dead. That's it.

GRAHAM: And if Jon or Kevin has some terrific appellate issue and they file their notice of appeal on the 61st day, they don't get a break? I don't have terrific appellate issues?

[laughter]

GRAHAM: I want to ask the justices, what are some of the other problems you've seen in this area?

BEDSWORTH: Let me try to address one of my personal hobby horses that drives us crazy. I don't know whether it is a strange quirk of our local bar, but judgments granting demurrers are not appealable. You need a judgment dismissing your case. We get these all the time. As soon as the court grants the demurrer, an appeal comes up and there is no judgment dismissing the case. You cannot appeal from a demurrer.

I found this out years ago when I was a prosecutor. A court granted a demurrer to one of our cases and I could not get the judge to dismiss the case. He knew I was going to appeal. He didn't want that to happen. It was a political prosecution, and so he just refused to dismiss the case, and I think I may be the only prosecutor in the history of the state who ever had to go to an appellate court to get his case dismissed.

EISENBERG: Was the writ granted?

BEDSWORTH: Yes. I got my case dismissed. I was very proud.

[laughter]

PARRILLI: In the old days, I think courts were more ready to look at cases where some final act [still] had to be taken by the trial court. It was obvious it should be taken, legally would flow from the action the court had taken thus far, and they would jump ahead. Not anymore. It may be a consequence of that backlog Justice Bedsworth was referring to before. It's also just more an era of following the rules as they are written, and so, we will require that dismissal judgment be entered before action is taken.

The article republished with permission from law.com. Copyright © 2001 NOP IP Company. All rights reserved.