Appellate Practice for Trial Lawyers

   My purpose in this article is to demystify practice before the Court of Appeal. In sum, my advice is: Have a clear idea of why you are before the Court of Appeal. Learn the working methods and rules of the court, and have a firm grasp of the craft that will help you achieve your goal.
   The concept of knowing why you are in an appellate court requires that you have thought it through and concluded the possible benefits outweigh the cost in time, effort and money. If appellant, ask first whether the issue you wish to present is appealable. Not all orders of a trial court are appealable; indeed most are not. Second, ask whether there is any realistic possibility of success. The fact that you, or more likely your client, think the decision below was "wrong" in a factual sense is virtually never a good reason to appeal, because the Court of Appeal cannot redetermine factual questions. If you are respondent, you are along for the ride.
   But even then, there are motions to dismiss as well as settlement options in appellate court.
   The first rule of recognizing where you are is to realize the Court of Appeal is an intermediate court, situated between the trial courts and Supreme Court An intermediate court is bound by findings of fact in the court below and by determinations of law from the courts above. In other words, do not expect an intermediate appellate court to function either as a trial court or a Supreme Court. It is not institutionally cut out for either task.
   A second element of knowledge of place is knowledge of the working methods of the court and the implications that has for your case. The court's working methods and internal procedures are eminently discoverable. The Court of Appeal clerk's office has two documents describing them: an appellate fact sheet, and a manual describing the court's internal operating procedures and policies. Both are worth obtaining and reading. It is also important to have a sense of the sheer size of the caseload of the court and its implications for your case. When I came to the court, I quickly learned that each member of the court was expected to and did author some 90 written opinions a year. That number has inexorably increased - to 100, 110, 120 and now to more than 150 per justice. In each case, before the court's opinion is filed, the briefs and record must be read, research done, colleges consulted, oral argument held and the opinion written. Those 150 opinions are multiplied by three since for every case a justice authors, he or she participates in two others with very nearly the same level of attention required. Add that to the 300 or so writ applications that any one justice is likely to consider yearly and it is apparent that each justice participates in more than 1,000 adjudications per year. If one happens to be the presiding justice, another 25 to 30 motions are considered daily in addition to a variety of administrative work. The lesson is that there is not an abundance of time available to consider your presentation. If it is to be effective, it must be forceful and to the point. Next, an appellate attorney must know the rules of court, both local and statewide. The consequences of not doing so can include sanctions, having one's brief stricken or, perhaps worse, discounted. The rules of court control form and, to a significant degree, content. Attorneys should pay special attention to rules 13 and 15. Rule 13 requires a "statement of the case," setting forth the nature of the action, the relief sought, a summary of the facts and the judgment of the court below. The statement must be accurate and confined to matters in the record. Rule 15 controls the presentation of argument in the briefs, requiring each point to be separately headed and requiring citations to the record for any fact. The topical headings should be written to form an outline of the case. Probably the central and most overlooked aspect of briefing is application of the standard of review - that is, the point of view from which the Court of Appeal considers your case. There are essentially three standards of review: substantial evidence (review of a factual determination of a trial court with deference to that finding), de novo (review of an issue on which there is not conflicting evidence and which the Court of Appeal is in as good a position to decide as the trial court), and abuse of discretion (review of a determination that the trial court is free to make within certain limits). Knowing which of these applies will focus the brief's presentation.
   The initial and very often the only impression of your case comes from the briefs. The principles of effective briefing are straightforward: Be clear, concise and candid. Communication is an attorney's first duty. Points should be clear to an intelligent layperson on a first reading. If not, redraft. Second, a brief should be concise. While the rules allow up to 50-page briefs, it is mistake to use them without cause because the justice in most cases simply hasn't the time to read lengthy briefing and few cases merit it. The vice of an overlong brief is that it encourages skimming by the reader with the danger that a buried valid point may be missed. Finally, a writer should be utterly candid, stating the worst with the best as this the most effective form of advocacy and anything else will surely be discovered, and will destroy credibility perhaps with effects beyond the particular case.
   Write effectively. Be brief and well organized. Keep the essential points in mind. Frame the issue to be decided, summarize the relevant facts and rulings, state the applicable law, and argue it.
   All too often these few precepts are not followed. Appellate justices shudder at these common examples of ineffective briefing:
The Perry Mason brief: This is a brief that reargues the case as if the author were before a new jury and there had never been a trial or decision. This brief confuses the role of the trial and appellate courts to the writer's (and client's) disadvantage.
The Rosenkranz and Guildenstern are Dead brief: As in the Tom Stoppard play presenting Hamlet from the point of view of two minor characters, this brief sets the unfortunate reader down in the midst of a complex, ongoing drama without a hint as to what has gone on before. This brief is the product of a practitioner who has been living with the case for years and assumes everyone else has been as well. The danger is that the reader is driven to the opponent's brief in the hope it will afford a clue as to what the case is about.
The Book of Job brief: This brief argues that absolutely nothing in the case proceeded properly and that error occurred at every turn from the call of the case to the motion to tax costs. This brief appears to be the recycled contents of the various trial briefs. The vice of a brief that fails to emphasize the strong points of a case is that it wearies the reader who may miss a valid point buried among the chaff.
   Finally, the principles of oral argument are the same as for briefing: Know where you are and why, and go about your craft carefully with an eye on the goal. Know the working methods of the court. Does it conference? When? How long does the court allow for oral argument? In my view, the Court of Appeal, Fourth Appellate District, Division One's method of conferencing emphasizes the value of oral argument. Our method is to ask one justice to prepare a draft opinion that is distributed to a three-justice panel one week before oral argument. There is no pre-argument conference so there is no pre-argument tentative agreement to the draft. A post-argument conference is held immediately following oral argument, with the effect that the attorneys are essentially participants in the decisionmaking process and are involved in forming the court's opinion rather than simply trying to change it.
   Ask yourself whether a case should be argued, because oral argument has a cost to the attorney, to the court and, not least, to the client. If the case is clearly either "a winner" or "a loser," there is not much to be gained by oral argument. If, on the other hand, the case is "close" or there is new authority, oral argument is appropriate.
   Appellate attorneys facing oral argument should prepare carefully, and should know the both the law and the record. Attorneys should welcome questions by the panel, which highlight the points of the case that concern the court. An appellate advocate is well advised to read the bench. If an attorney is ahead on points, he or she can only lose them by continuing to talk. Instead, the attorney should accept victory graciously and be seated.

Justice Daniel J. Kremer is Presiding Justice, Fourth Appellate District, Division One, in San Diego

Trying (and Winning) the Big Case

   As business trial lawyers, we usually wear our "litigator" hats, engaging in difficult discovery battles, protracted depositions, and extensive motion practice. Once in a while, however, the client will direct you to try the Big Case you've been working on for the last two years. Sometimes, the client will actually mean it. When you're about to pick a jury in a major case, get ready for substantial personal sacrifices, but also be ready for one of the most rewarding and challenging experiences of your professional career. Trying the Big Case is why many of us became trial lawyers in the first place. And whether it's your first or tenth big trial, following some basic rules will go a long way towards victory.
   We recently had the occasion to try a securities class action case brought under Sections 11 and 12 of the Securities Act of 1933. The case arose out of a merger between a large Silicon Valley technology company and a small designer of X86 microprocessors. The named plaintiffs, representing a class of approximately 25,000 shareholders, asserted that statements made in the prospectus misrepresented our client's ability to manufacture the microprocessors following the merger. Plaintiffs had originally sought damages of more than $240 million. They demanded settlement payments of $60 million or more. Defendants made no settlement offer.
   The case was tried for six weeks in the Santa Clara Superior Court with over three weeks of testimony and thirty witnesses. The jury deliberated less than three hours before returning a special verdict in favor of our client and rejecting plaintiffs' claims. Based on this and other trials, here are my suggestions for trying and winning the Big Case, along with specific ideas applicable to securities class actions.

Jury Selection

As early as possible, think about your jury. Will the case be tried in federal or state court? Will you need a unanimous jury or just nine of twelve? In our case, we were lucky to try the action in Santa Clara County Superior Court, probably the most "tech" savvy jurisdiction in the United States. Of the 15 jurors and alternates, 6 had engineering backgrounds, and 9 of the 15 jurors had at least four years of college. All of the jurors had invested in the stock market and understood that the value of stocks went up and down.
   In my experience, even with long trials, the Bay Area counties and federal courts offer many sophisticated, well-educated jurors. These jurors - especially those with engineering or other tech backgrounds - will understand the essence of complex concepts and facts. They normally won't be swayed or convinced by overly emotional appeals by the plaintiffs that are not founded upon hard evidence. They will be attentive to, and appreciate hearing from, detailed witnesses, even in highly technical areas. While your presentation must always be clear, the jurors will not require over-simplification and they won't appreciate needless repetition. Treat jurors with the same respect you would treat any other professional colleague, recognizing that they need some time to come up to speed in the new area that you are presenting.
   In a Big Case that you believe is going to trial, it is normally advisable to retain a jury consultant. While jury selection ultimately comes down to the trial lawyer's gut judgment, a consultant will give you additional data points to consider. Given the cost of trying the Big Case, the additional expense of a jury consultant is well worth the price. And while you're at it, consider holding a mock jury presentation organized by your consultant. While not predictive of the results of your trial, these exercises force the trial lawyers to prepare their openings and closings weeks before the start of the trial, and allow you to test reactions to particular witnesses and themes of the case. Depending on the result, you will still have sufficient time to modify the focus of your case if warranted by the mock juries' reactions. These mock jury exercises, while expensive, will probably cost less than 2 to 3 days of trial in a large case and provide meaningful data for preparing and presenting your case.
   Have the jury consultant prepare a jury questionnaire for you and submit it with your pre-trial papers. In our case, the plaintiffs' estimate for the length of the trial (grossly overestimated in our view) was eight weeks. Given this estimate, the judge had to question over 200 jurors for hardship to obtain the 45 jurors needed for the voir dire process. The judge agreed that a questionnaire would be helpful; any juror who wasn't excused for hardship was asked to fill out the questionnaire and return the next day. In this way, we had one evening to review the questionnaires and tailor our voir dire questions. The responses to the questionnaire were invaluable in ferreting out areas of possible bias toward the client - areas that might not have been uncovered in two to three minutes of voir dire.
   Perhaps the most important point to remember is that - after all the input from the consultant, the questionnaire, and the trial team - the trial lawyer should decide whether to strike a juror based on his or her reaction to the specific juror. Personal reaction to a juror will normally be a better predictor than standard assumptions based on profession, education, income, or background. Jury selection is really "jury de-selection," so always consider whether any particular juror has any personal agenda or personality quirks that may cause him or her to react badly to your client or witnesses or not get along with other jurors. Weigh each juror against the jurors or pool of jurors who could be seated next. While trial lawyers must always be wary of the lawyer-juror or technical-juror with "too much" expertise in the area presented by the case, normally the greater concern should be jurors who appear to be loners, complainers, or just plain unhappy with life. More times than not, even if they possess many of the qualities you may be looking for in a juror, these jurors will find some reason to buck the opinions of the rest of the jury and create problems for your client in deliberations.

Organization

   I recently tried a one day court trial in Chicago federal court where five minutes before the trial was to commence, opposing counsel arrived at court with 6 boxes of documents, 1 paralegal and 1 associate. I was accompanied by my local counsel, my trial book, and one small binder of exhibits that we had already provided to counsel and the court. While I certainly didn't relax, I had a good idea that opposing counsel was not fully prepared and would not use his limited time wisely.
   In trial, you must appear ready and on top of the tasks confronting you. This requires tremendous organization and constant re-organization. Even in the largest case, I always prepare (and have with me at all times) only three binders. The first binder contains the key pre-trial pleadings: the relevant complaint, answer, summary judgment memorandum, expert disclosures, and crucial discovery responses. The second binder contains the motions in limine. And the third binder contains the trial pleadings: witness contact information, exhibit lists, trial briefs, voir dire and jury questionnaire, special verdict, evidentiary motions, jury instructions, and a section for trial notes. If you cannot fit these materials into three neat binders, you're carrying too much.
   In the Big Case, create a witness binder for each witness, including sections for your examination outline, notes, deposition summary, condensed deposition transcript, and possible exhibits for the examination.
   You should be careful to keep your counsel table clean and organized at all times. This not only allows you to find things more quickly, it sends the message to the jury that you're on top of the case and not wasting their time. At the end of every trial day, clean up the court room and your counsel table before leaving. The clerk will appreciate this, and you'll avoid leaving in the courtroom that crucial piece of paper you need at 11 p.m. that night. Finally, do your filing in your trial binders every evening after trial, and discard unnecessary drafts.
   Strong organizational skills promote excellence in advocacy. If you don't have everything you need at your fingertips (discarding materials that have been superceded), you damage your credibility and effectiveness with the court and the jury.

Technology and Demonstrative Evidence

   Use technology and demonstrative evidence at every opportunity. As in most Big Cases, all the exhibits in our trial were stored on computer. A technical consultant retained by both sides operated the system and was able to instantly call up any document, zoom in on key sentences, and highlight them as appropriate. The consultant also provided us with the capability to pull up documents by bar codes, but I found it easier to have the consultant handle the computer while I concentrated on my examinations. Impeachment can now easily be done with video clips from the deposition, but make sure your impeaching testimony is immediately available or you risk losing the jury. I've found it as, or perhaps more, effective to read the impeaching testimony to the jury.
   Develop charts or computer animations to explain difficult concepts, especially with experts. Power Point is the program of choice, but other programs and old fashioned blown-up charts can be equally effective, especially when used in combination. Pay particular attention to demonstrative evidence during your opening statement and closing argument. In our case, plaintiffs' counsel prepared a seamless Power Point slide show to accompany their 3-hour closing argument. Demonstrative slides of the verdict form were intermixed with key documents, video deposition testimony, and quotes from trial transcripts. Also consider showing pictures of each key witness as you explain the importance and credibility of his or her testimony. In a multi-week trial, jurors will be hard pressed to remember the testimony of each witness. Showing the witness' picture during your summation greatly reinforces the testimony.
   But don't get carried away by technology. In our case, plaintiffs' Power Point closing was so pervasive and polished that it overshadowed the lawyer's argument. You should be front and center, making eye contact with the jury and persuading them with your analysis. The demonstrative presentation reinforces your argument, it should not direct it.

Securities Damages Analysis

   In preparing for and trying our case, we learned a powerful argument for attacking the plaintiffs' "stock drop" damages in a securities case. The plaintiffs identified an expert who developed a damages model positing that most of the class members sold their stock when the stock price was at its lowest.
   We moved in limine to exclude plaintiffs' expert and limit the trial to liability and causation. We argued that if plaintiffs prevailed at trial on liability, the court could then hold a proof of claim proceeding in which damages could be easily calculated based upon the sell price of each claimant. We first contended that the expert's damage analysis was pure speculation and not based on fact. Similar analyses had been excluded by other courts. Our second - and more powerful argument - was that, even if plaintiffs' prevailed and established damages at trial, they would still need to obtain proofs of claim from the class members in order to distribute the money. And what was to happen to any portion of the damage award that exceeded the claims made by class members? Given the speculative nature of the expert's damage study and the need in any event to hold a proof of claim proceeding, we argued that the jury should only consider liability and causation.
   After a long argument, the plaintiffs conceded our point and withdrew their damages expert; the judge ruled that the jury would not consider damages. In so doing, we believed that our clients' potential exposure was cut by more than one-half, given our belief that most of the class members did not simply sell when the stock went down. Since so few of these stock drop cases are actually tried, it may not be immediately apparent to either plaintiff or defense counsel that there is no real justification for allowing the jury to decide damages. Try pushing the point that a post-verdict proof of claim proceeding must follow any verdict of liability and thus damages should be excluded from the jury's charge, and your position at the settlement table and at trial may be greatly enhanced.

Burden of Proof Under Sections 11 and 12

   The other substantive securities lesson we learned in the trial was the bizarre proof standard under Sections 11 and 12 of the Securities Act of 1933. The falsity portion of the statutes appear very strict and straightforward: any false or misleading statement made in connection with the sale of stock is actionable. If the plaintiffs can meet this standard, they then must prove the materiality of the misrepresentation or omission. Causation arises next. Under the case law and the ABA model jury instructions, it appears that plaintiffs have little obligation to prove a connection between the allegedly false statement and the stock drop. Instead, the statutes appear to place the burden of "negative causation" on the defendants who must try to prove that the stock drop resulted from causes other than the alleged misrepresentation or omission. In our case, incorrectly from our view, the judge simply required the plaintiffs to prove that they incurred a loss when the stock price dropped - a fairly incontrovertible fact.
   The strange result of these rulings was that the jury never heard anything about damages or causation in plaintiffs' case. Causation was only raised with the defense and rebuttal cases and, given the exclusion of plaintiffs' damages claim, there never was any testimony on the amount of damages. To avoid jury confusion, we emphasized in closing argument that although the jury would not be asked to determine damages, the damages that plaintiffs were seeking were quite large and thus the jury had to carefully consider its liability and causation findings. The practice point is that, when trying a Section 11 or 12 case, be prepared for a strange allocation of the burden of proof where the defendants must disprove causation.

Experts

   Experts are always one of the biggest minefields you face in trial - even apart from the invariable surprises arising during testimony. The first, and perhaps most precarious step, is expert disclosure. In state court, your disclosures under Section 2034 must be broad enough to encompass various areas of possible testimony, but still be as specific as possible. In federal court, the expert reports should fully summarize each area of opinion. At deposition, your expert needs to mention every area on which he or she intends to opine. You'll want to box in the opposing expert in deposition to establish that he has not prepared opinions in certain key areas.
   Despite counsel's best efforts, virtually every expert is challenged at trial as trying to offer opinions beyond the scope of his designation. Expect opposing counsel to bring a motion to exclude certain testimony or to interrupt your direct examination to voir dire your expert on the disputed areas. Be ready to cite where (or where not) the opinion is covered in the designation and the deposition. Argue that the supposedly "new" testimony is simply the result of continued analysis after the deposition that the expert testified she would do, or is simply an additional basis for the same opinion expressed in the disclosure and deposition. Finally, if there is a new area of testimony your expert intends to offer, advise opposing counsel and the court as soon as possible, and make a full disclosure of the new area and the need for expressing it.

Teamwork

   One of the most enjoyable parts of trial is the camaraderie developed and experienced by the trial team. When you spend 15 hours or more with your team 6 days per week for 6 weeks, you need to get things organized quickly and well. Frankly, you need to develop a sense of family. There's little in our career as trial lawyers quite as exhilarating (especially after the fact) as rushing off to 9:00 a.m. court with three evidentiary briefs, two new jury instructions, and direct examination outlines for the day's two witnesses, while pulling the witnesses in tow. Obviously, you did only a fraction of the work required to compile and prepare this information. Talented paralegals were up most of the night analyzing and pulling the documents. Support personnel handled the rush copying. And dedicated attorneys did the research and drafting and helped prepare the witnesses.
   Make sure you do everything possible to foster the team approach. Have fun. Include everyone in meals, and have frequent team meetings to get input from the entire team. Allow junior associates to examine witnesses. Try to have the team take as much of the weekend off as possible. A team that works well together and enjoys the process will probably litigate the case best, and will greatly assist in obtaining the desired result.
   Building your team also means involving your witnesses and clients. In the Big Case, in addition to the 10 to 15 lawyers, paralegals and support staff involved in trying the case, you may have 30 or more witnesses who will either testify or are vitally interested in the outcome. I have found that e-mail distribution lists work well for keeping a large group well informed. Prior to trial, I load all interested persons' e-mail addresses into my notebook, and then send out brief status reports every 3 or 4 days. In this way, witnesses are immediately apprised when they might testify or how fast the trial is moving, and everyone quickly learns of key rulings or testimony. Initially, most busy engineers and business people believe they have far more important things to do than drop everything and run to court at your call. If you constantly involve them with the case and show them how important they are to the process, they are much more likely to meet your scheduling needs and be strong witnesses.

Client Information

   A simple and related point is keeping your client constantly informed. Trial is full of crucial decisions, surprise testimony, and confounding trial rulings that knock out your brilliantly planned examination. No matter how well you plan and present the case, you don't make or control the basic facts or law. Twelve jurors or the judge will decide the matter, not you. And if you actually try cases frequently, you're not going to win them all.
   The client's key officers need to be part of every step of the process so they can share insight and understand the difficulties and vagaries of jury trial. Before any trial, send the client a privileged case assessment that frankly discusses the strengths and weaknesses of the case. If at all possible, have the general counsel or other key officer of the client present during the trial. A strong client representative is essential because it lets the jury know how important the case is, humanizes a large company or partnership, and brings one of the client's key decision makers into the team.

Trial Advocacy

   There are some simple advocacy guidelines I have found helpful in trying the Big Case. The first point is that, even if you are preparing for your first trial or don't frequently get to trial, your training in civil litigation has given you most of the skills you need to succeed. Like most of what we do, the keys to winning at trial are hard work, diligence, and strong organizational skills. The lawyer who knows the facts and law best, timely follows up on important points, and keeps everything flowing logically and efficiently, will likely be the person the jury will ultimately rely upon. Following the careful and diligent procedures you use everyday to stay on top of your cases will take you a long way towards matching any adversary.
   Of course, the best trial lawyers do more than work hard. Experience before juries in multi-week trials brings confidence and the skill to discern important issues from minor ones and to focus your case strategically to best present the key points. However, perhaps the most important point I have learned from trying cases with superb trial lawyers like Paul Renne and Joe Russoniello is the importance of adhering to the truth. No case or client is worth sacrificing your principles or career. Juries sense when witnesses are lying or hiding key information. Tell your client that the best way to lose a case - whether at trial or at deposition - is to lie or obfuscate. Similarly, if your client answers untruthfully or incompletely at deposition, or constantly says she doesn't know, she either will be seriously compromised on cross-examination at trial or at the very least will not be of much use to you as a witness. Don't be afraid of letting your witness tell her story if asked the appropriate questions at deposition or at trial. There are many different honest perspectives and ways to present the "truth," but the bottom line facts remain. You must present and deal with the facts - good and bad - straightforwardly during discovery so that you can use them to persuade at trial.
     The best trial lawyers are gracious and even-handed, even under the intense pressure of the Big Case. The rancor we often encounter in civil depositions has no place at trial. If you have major difficulties dealing with opposing counsel during discovery, it will spill over to trial and the jury and judge will know it. My sense is that the attorney who can't get along with opposing counsel cannot fully serve his or her client. Hard-ball litigation will lead to major disputes on minor issues at trial and hurt your credibility before the judge or jury. Antipathy or worse may well affect your impartial analysis. While our adversary system invariably leads to confrontation, counsel should do his or her best to get beyond disputes with opposing counsel, and should treat adversaries with professional respect. A good working relationship with opposing counsel starts with meeting your discovery obligations and avoiding pointless motions to compel. In part, the confidence to avoid and solve discovery issues comes from trial experience that teaches you how to gauge what is really important to a case and what is not.
   In sum, have the confidence to follow your gut and let the witnesses tell their story, and you will go a long way to becoming a credible and persuasive advocate for your client the next time you get up in front of the jury in that Big Case.

Mr. Riley is a partner in the San Francisco office of Cooley Godward LLP.