BRIEFING

A. ISSUE SPOTTING, EVALUATION AND PRESENTATION
An appellate advocate's most important skill is the ability to spot viable claims of error in a cold record. No matter how great the attorney is at research, writing, or oral advocacy, there is simply no way to make up for missing a winning issue.

Some issues are apparent on the face of the record because trial counsel expressly raised them by motion, by objection, by request for instruction, etc. If spotting issues involved nothing more than noting when defense counsel objected on the record, issue spotting would be easy. Appellate practice has evolved beyond that, however.

Many issues are like truffles: they are subterranean and must be sniffed out by a trained snout. These are the ones not expressly flagged in the record as issues; instead they exist as issues only if appellate counsel has the nose for them. Examples of such issues are a trial court's failure to give a sua sponte instruction, or its failure to initiate competency proceedings sua sponte, etc. These are obviously the more difficult issues to spot.

How do we spot the hidden issues in a record? Most of us do it instinctively. It is nevertheless possible to describe what our mental processes must be when we uncover an issue. When we read a record, we are in search of reversible error. We have acquired, through legal education and experience, an idea of how the legal system is supposed to work; when we review an appellate record we are checking for ways in which the proceedings differ from that idea.

By the time you graduated from law school, you probably had the "big picture" of how criminal cases are supposed to proceed: the accused is given fair notice of his alleged misconduct and is afforded the effective assistance of counsel (as well as other constitutional and statutory protections) in an adversary proceeding in which the People are represented by a dedicated but fair-minded advocate and the case is adjudicated before a neutral magistrate. Although beautifully simple in general outline, the details of this picture become exceedingly complex. A competent criminal lawyer needs to know more than the general outline of our adversary system: he or she needs to know the minutiae as well. In short, to develop a facility for spotting issues, you must have a sufficient understanding of how the system is supposed to work if operating according to the law.

Spotting issues is a preliminary step toward writing a brief. It is emphatically not an appellate lawyer's responsibility to raise every non-frivolous issue or even every viable issue. Instead, deciding which issues are worth briefing and which are not is a matter of professional judgment.

You do not have a duty to raise every non-frivolous issue requested by the client or suggested by trial counsel if there are tactical decisions weighing against it. (See Jones v. Barnes (1983) 463 U.S. 745, 751-754.) On the other hand, you have a duty to advocate for changes in the law if an argument can be made to support change. (People v. Feggans (1967) 67 Cal.2d 444, 447.)

In assessing an issue, you must be aware of one of the facts of life on appeal: the "harmless error" doctrine will be used to deem many errors harmless. Thus, in assessing the value of any issue, you need to consider whether you can avoid the doctrine by arguing the error is reversible per se and, if not, how good a showing of prejudice you can make, to satisfy the applicable test of prejudice. An article which provides analysis on how to show prejudicial error is available on our website, at sdap.org.

Once you have decided which issues are worth briefing, you should then decide which issues are your lead issues and which are of lesser importance. The order in which you present your issues is also affected by your view of their respective merits. Sometimes logic or chronology will dictate the order in which issues must be presented. More often, however, the choice of order is one for you to decide: the general rule is to open the argument section of your brief with your strongest issue. An exception to this rule is that a sentencing issue should not be raised first if any issue exists which could lead to reversal of a count of conviction.

The proper presentation of an issue typically requires you to do the following: (1) identify the claimed error (e.g., the Superior Court erred by failing to give a particular instruction); (2) if the law requires an objection to render the issue cognizable on appeal, specify that place in the record where the issue was raised; (3) argue the error (the court's failure was error because . . . ); and (4) argue prejudice (the court's error was prejudicial and requires reversal because . . . ).

All too often we see briefs that establish the existence of error and then state in a single sentence that the error was prejudicial. This cavalier approach to prejudice is ill-conceived. As noted above, you must pay attention to prejudice, showing precisely how the error impacted the prosecution and defense. A careful review of opening statement, closing argument, instructions, communications from jurors, and deliberations is necessary. You need to convince the Court of Appeal that the identified error affected the outcome.


B. OPENING BRIEF
The opening brief is the time to put your best foot forward. You must present the best case possible for relief for your client by showing that there was error; that the error was not waived or forfeited and that the error was prejudicial.

The opening brief may be the first battle in a long war on the judgment. The client may ultimately want to attack the conviction by way of federal habeas corpus. It is important that the issues are framed in a way to preserve and prepare for that eventuality.

1. Captions and Format.
When preparing your brief, you should carefully review California Rules of Court, rules 8.40, 8.44, 8.200, 8.204 and 8.360 to make sure that your brief complies with basic requirements. Use plain 8-1/2 x 11 paper without left margin numbering. Briefs and petitions should be bound in the color prescribed by rule 8.40. (Green for opening briefs, tan for reply briefs, orange for petitions for rehearing, white for petitions for review, red for writ petitions.) If stapled, the bound edge must be covered with tape.

The cover should set forth the name of the court, the case title, the case number, and set forth the nature of the brief, i.e., Appellant's Opening Brief. The cover should bear the name of the Superior Court appealed from, the lower court case number and the judges who made the rulings appealed from. The lower right hand corner should indicate "The Sixth District Appellate Program, in association with" your name, State Bar number, address and phone number, as counsel for appellant. In cases in which SDAP has declared a conflict, SDAP’s name should not appear on the cover as counsel.

The form and length of the brief should conform to rules 8..204 and 8.360. Each argument should have its own heading. Subheadings are often helpful in the organization of a complex argument. Statement of any matter in the record must be supported by appropriate reference to the record. Each brief must start with a topical index of its contents, and a table of authorities, separately listing all cases, statutes, court rules, constitutional provisions and other authorities.

2. Jurisdictional Statement.
As the first item in the body of the brief, a Statement of Appealability should appear demonstrating that the appeal is being taken from a final judgment, or explaining why the order or non-final judgment is appealable. (Cal. Rules of Ct., rule 8.204(a)(2)(B).)

3. Statement of the Case.
The procedural history of the case should be concise and focus on those portions of the proceedings most relevant to the appeal. It should generally indicate the charges, the types of hearings conducted, motions or notable events at trial, rulings if they are being challenged on appeal, the counts of conviction, and the judgment. The manner in which the judgment was calculated should be noted (i.e. 8 years on count one and a subordinate term of 16 months on count two). Every assertion of procedural history in the Statement of the Case should be supported by a citation to the record.

4. Statement of Facts.
The Statement of Facts should be in narrative form. Generally, a chronological story works best. The statement should focus on those facts which are relevant to the issues on appeal. Witness-by-witness summaries are difficult to follow and should be avoided. If facts are relevant to a legal issue and not guilt or innocence, then they should be separated by a descriptive heading (e.g. facts relevant to a suppression motion). Every assertion of fact in the Statement of Facts should be supported by a citation to the record.

In most cases, subheadings should be used to separate the People’s case from the defense evidence. If the defense did not call any witnesses, a brief summary of the defense closing argument should be provided.

5. Arguments.
Make sure each argument is analytically complete. Note where the specific objection was made on the record. Do not just argue that error occurred, but demonstrate why such error requires reversal or modification of the judgment. In cases with multiple counts of conviction, analyze whether the prejudicial effect of the error applies to all or just some counts. Cite the appropriate standard of prejudice and argue that standard with respect to the particular facts of the case. Specify the remedy you are seeking (e.g., reversal with directions to dismiss, reduction to a lesser included offense, remand for resentencing).

6. Proof of Service.
California Rules of Court, rule 8.360(d), requires that briefs be served on the district attorney, the Attorney General, and the Clerk of the Superior Court. Unless the defendant has expressly requested otherwise in writing, a copy must be sent to the defendant. This sometimes presents a problem. Consult with SDAP about what to do if you have lost contact with your client, the client has been deported, or you believe the client may have absconded.

Also, particularly in cases involving sexual offenses, you should make sure that your client, if in custody, wants to receive the brief. If not, you should obtain a written request by the client that briefs not be sent. Your statement that you have such a written request is adequate proof that you are in compliance with Rule 8.360(d) regarding sending the brief.

The rules do not require service on trial counsel. It is a professional courtesy which is encouraged by SDAP.