Objective Analysis of Advocacy Preferences and Prevalent Mythologies in One California Appellate Court

Article excerpt

I. INTRODUCTION

Advice about appellate advocacy abounds. (1) How accurately does it teach lawyers the best ways to persuade appellate courts?

Since 1985, we have supported an appellate practice seminar sponsored every three years by Division One of the Fourth Appellate District of the California Court of Appeal and the San Diego County Bar Association. All justices of the court have participated in each seminar, presenting the usual topics of brief writing and oral argument, along with current and specialized matters. Over the years, justices have differed in their advice on subtle and technical points of advocacy.

Preparing for the 2001 seminar, we proposed, and the court accepted, an eighty-three-question survey of the entire professional staff--nine judges and twenty-nine staff attorneys. The main body of the survey asked for the responders' preferences on points of writing and advocacy that are frequently discussed in books and seminars. All nine judges and twenty-five staff attorneys responded. The results were published as bar-graph data in the book produced with the seminar, the California Appellate Practice Handbook. (2)

This article reports the results of the survey in an analytical and narrative form, from which advocates can draw inferences about effective presentation of appellate cases. In gathering and reporting the data, we also became immersed in questioning what appellate advocacy really is, given two conflicting mythologies by which many appellate judges and appellate advocates integrate their professional lives. This article describes those mythologies, comments on what the survey results taught about them, and suggests some fundamental principles of advocacy that should make this survey's results useful in courts that are very different from California's Fourth Appellate District.

We begin by describing the court and California appellate practice, so the reader can orient the survey results with practice in other courts. We then describe the survey process and our methodology for reporting the results. We briefly discuss professional mythology and then report the survey results. We conclude with further impressions of mythology and the principles we distilled from the survey process.

II. THE COURT

With 105 authorized positions, (3) the California Court of Appeal is the largest state intermediate appellate court in the nation. It always decides cases by a panel of three judges, and it has no en banc process. (4) It sits in six geographical districts, (5) but a published decision by any panel is a statewide precedent. (6) Three districts are subdivided into divisions. The Fourth Appellate District's divisions are geographical. (7) Division One, the subject of this article, has its chambers in San Diego and hears appeals from San Diego and Imperial Counties. (8) Its jurisdiction includes felony criminal cases in which the death penalty has not been imposed, juvenile delinquency and dependency, and civil cases except those defined as "limited civil cases," which are generally those in which the plaintiff demanded less than $25,000. (9)

When this survey was taken, Division One had nine authorized and funded judicial positions. All positions were filled, all justices were heating full calendars, and all justices responded to the survey. Division One employs twenty-nine staff attorneys to support the justices. Each justice personally supervises two staff attorneys, whose sole responsibility is to support their supervising justice. The remaining attorneys comprise "central staff," which includes a writ department. Central staff attorneys serve at the pleasure of the court. Chambers attorneys serve at the pleasure of their justices, but the turnover rate is low. The court uses some externs, but does not hire short-tenure law clerks unless specially funded. Twenty-five staff attorneys responded to the survey. No externs were asked to respond. …