Three Ways to Guarantee that the Court of Appeal Ignores Your Arguments

How can an appellate specialist help you present your arguments on appeal? Sometimes having assistance in preparing a complete appellate record and supporting legal arguments with citations can ensure that the appellate court actually understands and hears the merits of your arguments. The Third District Court of Appeal issued an opinion on May 1, 2017 that is illustrative. In Stover v. Bruntz (May 1, 2017 No. C077206) two parties — Stover and Bruntz — represented themselves in an appeal. Several facts and arguments were not successful due to the brief writing and appellate record issues in the appeal.

Stover wanted to argue on appeal that by accepting the benefits of the lower court order, Bruntz had waived an argument. The Court of Appeal observed:

We note that, Stover’s brief also makes a passing reference questioning whether Bruntz can appeal the court’s order because she allegedly accepted certain child care support payments following the trial. But he does not support the argument with any reasoned analysis or citation to authority. We therefore deem the issue waived.

Bruntz attempted to refer to a motion for relief she had filed but the Court of Appeal wrote:

While Bruntz claims she filed a motion for relief pursuant to Code of Civil Procedure section 473.5, she does not include any such filing in her appendix on appeal. (Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364[“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two”].)

Bruntz also raised an argument without citing to the appellate record:

Bruntz also contends without any citation to the record that the court found the April 2007 order ambiguous which could not be enforced by contempt. The court’s order itself contains no such finding. The court, moreover, did find Stover in contempt for the six month period from February 2011 to July 2011, which was the subject of Bruntz’s second order to show cause for contempt. In light of the above, and given our conclusion that retroactive modification is only permitted to the date a motion to modify is filed, we need not address Bruntz’s improperly raised ambiguity argument. (Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856 (Duarte) [“If a party fails to support an argument with the necessary citations to the record, that portion of the brief may be stricken and the argument deemed to have been waived”].)

As to both parties, the Court of Appeal observed:

Both parties’ briefs make numerous factual assertions without any supporting citation to the relatively sparse record, which does not contain a reporter’s transcript or settled statement of the trial proceedings.

The Stover v. Bruntz decision provides extreme examples of how arguments can be lost due to the manner of presentation. The parties in this case were self-represented. However, even experienced lawyers who do not regularly handle appeals can miss some of the nuances of appellate law practice and can get in the way of a Court of Appeal understanding and ruling on the merits of arguments.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to an appeal in your matter, consider retaining a certified appellate specialist as your lawyer or co-counsel on appeal.  Don’t wing it, win it.

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