Tips from Appellate Research Attorneys at the Court of Appeal in Santa Ana

Today I attended a luncheon for the Orange County Bar Association's Appellate Law Section.  Three research attorneys from the Court of Appeal, Fourth Appellate District, Division Three attended.  We listened as Julie Bisceglia, David Hesseltine, and Kevin Phillips gave us some insights into what they have encountered while working at the Court.  These attorneys are relatively new to their positions, but talked about many of the same problems that we have encountered for years.

Kevin Phillips has been with the Court for over a year and works for Justice Eileen Moore.  He comes from a predominately criminal background but his work now includes the civil arena.  He talked about "dumbing down" your arguments, because he found that many attorneys wrote as if the justices or research attorneys were already familiar with the law and the facts.  While I might not have used that terminology, I certainly understood what he meant.  He was asking the appellate attorneys to consider their audience.  At the point that you write an appellate brief, you probably know your case better than anyone else.  After all, you have lived with it for months or even years and you've spent many hours learning the law in a particular area.

Don't assume that the justices or research attorneys have that same level of experience in a specific area.  Don't write the brief as if the justice stepped in at the middle of the case or as if you are addressing someone who knows the law and you can jump right to the finer points of an argument.  When you are discussing the law, start off with the basics and then get to the fine points.  If you are discussing the facts, lay them out in a way that tells a complete story from beginning to end.  While you might want to weed out facts that have no relevance to the appeal, that doesn't mean you should jump in at the second act.

Kevin also advised us to be careful with our citations.  A missing pinpoint or erroneous citation requires that the research attorney search the record.  He also cautioned about overstating your case, finding some attorneys really made some outrageous claims.  Better to be realistic.  He was also surprised by the amount of personal attacks on opposing counsel.   Coming from a criminal background, he found some of the criminal lawyers to be more civil than what he encountered in appeals written by civil attorneys.  Finally, he advised attorneys to rely on the California Style Manual, which is followed by the California courts of appeal.

Julie Bisceglia works for Justice William Bedsworth and appears to come from a civil background.  She described the research attorneys as "gatekeepers" or the first ones to see the briefs.  They are also responsible for preparing draft opinions, but she dismissed any thought that the justices merely rubber stamped their work.  Unlike some (and maybe this will change in time) Julie reads every single page of the record, rather than just the cited portions.  "I just want to get it right," she explains.

And when it comes to citations or quotations, "Don't lie to me.  If you lie to me once, your credibility is done, and I will check every citation myself.  Since I don't usually meet the attorneys, I develop a sense of who you are by reading your briefs."   This is yet another reminder of how important credibility is.  She also recommends that the appellate attorney know what is significant for the appeal and stick to about 2-4 issues.  Adding unimportant issues will weaken your appeal.

David Hesseltine works for Justice Richard Aronson.  He was previously in civil litigation and worked as a research attorney in law and motion at the superior court level.   He encouraged the attorneys to think about how to present the case, including being more creative in making the brief as "user-friendly" as possible.  He cautioned against too many acronyms because a brief could end up looking like "alphabet soup."  He added that attorneys are responsible for getting the exhibits to the court and - oh, yes - don't forget those pinpoint citations.

The research attorneys reminded us of the extra material we can add as an appendix to the actual brief.  They even seemed to like the idea of visual aids that might include charts or important exhibits.  Good thinking!  I can remember many times when I had to prepare a chart just to figure out who were the parties.  A chart or other device also breaks up a page filled with words and sometimes is more useful in illustrating certain points.  But - with a nod to Gerry Spence - I think I will avoid writing my briefs as comic strips.