AN APPEAL TO REASON

When you appear for oral argument, the presiding justice will probably open the session with a greeting, quickly followed by an admonition that the Court is thoroughly familiar with the facts and issues, so please don't repeat what is already in your briefs. No matter how many times this warning is given, some attorney will inevitably start of his or her presentation with something like, "This case arose out of . . . . " The Court may let you go on a bit, but usually, you will be stopped and politely informed that the Court knows the facts. But then you are in the middle of oral argument and one of the justices asks a question that you might conclude indicates the justice doesn't really know your case at all.

The truth is that probably no one knows your case as well as you do. But the courts have surprised me, finding some small detail that I missed or didn't consider to be that important. And, of course, there are levels of familiarity. For example, if you made a statement in your brief that Mr. Jones knew about the banana peel on the floor and you cite to the record, which is one page out of a 500-page transcript, does the court look just at that one page or do the members of the bench look a few pages before and after to follow the thread of testimony? I asked one justice this question and he replied that he only looked at the page cited, nothing more, nothing less, feeling it was up to the opposing attorney to point out the importance of the other pages or noting that the testimony is taken out of context. Other members of the bench might look beyond but they would not be obligated to do so. The conclusion you might draw from this is that the Court may be familiar with the record, but that doesn't mean the justices have read all 500 pages; it means they are at least familiar with the pages cited.

Now suppose you are in the midst of oral argument and one of the justices asks whether Mr. Jones had notice of the banana peel. One thought that might run through your mind is to question whether that justice knows anything about your case because you plainly made that statement on page 5 of your brief. Pointing out that the page reference can be found on page 5 makes it look like the justice isn't familiar with the case at all. Perhaps the better way to address this is to talk about the testimony regarding notice, rather than your statement on facts. If the justice asks that question, it may be for an entirely different reason. He or she may already know Mr. Jones had notice, but the justice wants the other justices to know it. And since we can assume that most justices don't ask questions for their own amusement, that means that the issue of notice is important so don't simply reply with a yes or no. Discuss the fact of notice and its legal implications. The justice may then ask where in your brief you discussed notice, and that would be the time to say the discussion could be found starting on page 5.

In Parker v. Wolters Luewer United States, Inc. (2007) 149 Cal.App.4th 285, the court explained that the rules require an original and four copies of the appellate brief. "The original brief stays with the record on appeal. Each of the three justices on the panel deciding the case receive copies of the briefs which they can use at their desks, work on at home, or take with them when traveling for an engagement outside the court." (Id. at pp. 290-291) The court noted that there is only one copy of the trial court record and "If all three justices had to share this single record in order to review, research and evaluate a party's arguments the time it would take for the court to decide the appeal would considerably increase." (Id.) But that is essentially what the courts have to do. That means that a justice might grab your brief to take home to read, but he or she wouldn't necessarily have the record. I don't think it is a leap of logic to conclude that one justice might be more familiar with the record, especially if that justice is assigned the task of writing the majority opinion.

Submitting an e-brief would help because each justice could easily transport and have access to the record, but that also means having a computer at hand. And, as we know, e-briefs haven't taken off in a big way. The justices I know love e-briefs and would love to see even more of that, but for smaller appeals, the expense is just too high. (If it's a question between paying me or paying for an e-brief, I vote for paying the attorney.) You also have the option of including 10 pages from the record in the appendix; more can be added upon application showing good cause to the presiding justice. Don't overlook that opportunity because then each justice will have his or her personal copy of an important contract or even significant testimony. (See CRC 8.204(d).) I also recommend finding a new and different way to talk about an issue so that no justice can suggest that you are simply repeating what is in your briefs. But I am always prepared to talk about the facts in the record in case I am asked about whether Mr. Jones had notice of that banana peel.