Santa Barbara Lawyer - Santa Barbara County Bar Association

The Practice of Law
How to Annoy the
Court of Appeal in 4
Easy steps
By Jo h n de r r i C k
S
tep 1: The guru of legal writing is someone called
Bryan Garner. He edits Black’s Law Dictionary. He
also presents legal writing seminars nationwide.
(www.lawprose.org.)
I’ve never been to one, although I’ve heard great things
about them. But Garner gives out one piece of advice that’s
really bad. It’s number-one on my list of how
to annoy the Court of Appeal.
The advice: “Put your case citations in
footnotes.” According to Garner, citations
mid-paragraph disturb the flow of prose and
distract the reader.
The flaw in Garner’s advice is that some
people actually want to read the citations.
The source and nature of authority may be of
more than mere passing interest. And there’s
nothing more giddy-making to the legal reader than making
one’s eyes go up and down the page between text and footnotes,
like someone watching a tennis game on paper.
No doubt there may be some Justice or research attorney
buried in the California appellate system who favors this.
But I have heard scathing comments on the Garner footnote
idea from members of the appellate bench at MCLE
events.
Step 2: How about refusing to stipulate to extensions
of up to 60 days for principal briefs? As a practical matter,
the Court of Appeal virtually always grants applications for
such extensions — usually in two lots of 30 — if there is a
vaguely plausible request. But stipulations save the Clerk’s
Office time. Ones of up to 60 days are effective on filing
and don’t require a Court order. (I’m talking about state
court. The Feds do things differently.)
Lawyers who don’t stipulate to extensions are making
work for every one. And they’re probably making life difficult
for themselves, because the chances are they, too,
will need an extension.
I know that clients sometimes don’t like it if their lawyer
agrees to extensions. But this is an instance of where the
lawyer should call the shots. I make it clear in my fee agree-
And this guy droned
on, seemingly oblivious
to the irritation he was
causing. Eventually, he
was cut off.
ments that I may enter into
60-day stipulations.
Step 3: Oral argument
presents plenty of opportunities
to annoy. Both
sides are entitled to up to
30 minutes. But except
in rare cases, you’ll make
yourself very unpopular
if you insist on your full
allocation. Fifteen minutes
is generally a reasonable
maximum — 5-12 minutes
usually suffice.
Probably the worst oral
argument I’ve ever seen
was at Division Six in
12 Santa Barbara Lawyer
John Derrick
Ventura about a year ago. I was defending
an appeal. It wasn’t a complex case. The appellant
was funded by an insurance carrier,
and the law firm seemed determined to milk
the file.
For a start, it sent two lawyers to oral argument.
Both sat at the counsel table — and, no
doubt, billed — although only one argued.
He had put in a 30-minute estimate. And he
literally started to read out long paragraphs
from cases.
Since arguments are called in order of time estimates, with
the shortest first, we were stuck at the end of the morning
calendar (resulting in both of those lawyers being able to bill
to the max). It had actually gone past the noon hour. People
wanted to go to lunch. And this guy droned on, seemingly
oblivious to the irritation he was causing. Eventually, he was
cut off. Surprisingly, he was a certified appellate specialist
(not, I hasten to add, from Santa Barbara).
Step 4: One often sees lawyers arriving for oral argument
lugging piles of banker’s boxes containing the record. As
though they’ll have an opportunity to do anything with it
in the short span of their argument.
But that’s their problem. What is annoying is when the
record ends up much bulkier than it need be. All too often,
lawyers put virtually the whole Superior Court file into
a multi-volume Appendix or Clerk’s Transcript, but then
cite to only a fraction of what’s there. Don’t bloat records
(unless you want to annoy). Someone at the receiving end
has to handle all that stuff.
John Derrick is certified by The State Bar of California Board of
Legal Specialization as a Specialist in Appellate Law.