Myron Moskovitz
Legal Director, Moskovitz Appellate Team
90 Crocker Ave
Piedmont , CA 94611-3823
Phone: (510) 384-0354
Email: myronmoskovitz@gmail.com
UC Berkeley SOL Boalt Hal
Myron Moskovitz is author of Strategies On Appeal (CEB, 2021; digital: ceb.com; print: https://store.ceb.com/strategies-on-appeal-2) and Winning An Appeal (5th ed., Carolina Academic Press). He is Director of Moskovitz Appellate Team, a group of former appellate judges and appellate research attorneys who handle and consult on appeals and writs. See MoskovitzAppellateTeam.com. The Daily Journal designated Moskovitz Appellate Team as one of California's top boutique law firms. Myron can be contacted at myronmoskovitz@gmail.com or (510) 384-0354. Prior "Moskovitz On Appeal" columns can be found at http://moskovitzappellateteam.com/blog.
MOSKOVTIZ ON APPEAL
What is the most challenging task for an appellate advocate?
Winning an ordinary appeal is tough, because appellate courts reverse less than 20% of the time. Obtaining a writ of mandate is even tougher, because appellate courts issue them less than 10% of the time.
But those challenges pale before the toughest of all: getting a top court -- the California Supreme Court or the U.S. Supreme Court -- to take a case in the first place.
These high courts have complete discretion to control their dockets, and every day they face a tall pile of petitions for review and certiorari -- many more than they have time to hear on the merits. The overwhelming majority of these petitions are turned down with a short order: "Petition denied." With no explanation.
The odds of getting a cert petition or petition for review granted in a civil case are daunting. About 97% of these petitions are denied. That's right, your chance of getting a hearing on the merits is around 3%. Once you get through that door, the chance of undoing the Court of Appeal opinion goes up to about 50%. But getting your foot into that 3% crack is much harder.
How might you squeeze into this tiny cohort?
Here's the most important thing to understand. Of course, you believe the Court of Appeal opinion was unfair to your client. That's too bad, but it will not get you into the 3%. Supreme Courts do not view themselves as courts of "error-review." They have more important things on its mind -- like running a justice system for the whole state or country. These Supreme Courts want to hear cases that have a broad effect, well beyond the parties.
In California, our starting point is Rule of Court 8.500(b)(1). You must show the California Supreme Court that its input is needed for one of two reasons:
When necessary to secure uniformity of decision or to settle an important question of law.
Let look at the first reason.
"Secure uniformity of decision" means you must show a conflict among reported Court of Appeal opinions. "Reported" (or "published") because only those opinions constitute precedent. And a "conflict" usually means an express conflict, as in an opinion that says -- right there in black and white: "We decline to follow Smith v. Jones."
Most lawyers assert a conflict by arguing that the Court of Appeal opinion they are challenging is inconsistent with other Court of Appeal opinions. Welcome to the 97% denial pile. Everybody tries this, and it almost never works. To get the Supreme Court's attention, you really need an opinion that says -- clearly, expressly, and right out loud -- "We decline to follow X."
Such express conflicts rarely occur. So let's look at the second reason: Supreme Court review is needed "to settle an important question of law."
Most petitions discuss the cases, and then argue that the question of law is "important" because the cases are not consistent, could be clearer, etc. Join the 97%. Almost never works.
The most promising route -- tried by very few petitions -- is to show that the "question of law" is "important" in the real world. The Court of Appeal opinion you are challenging will really screw up an entire industry, a significant institution, or the like. Not just your client. If your Court of Appeal opinion was published, that goes a long way to showing it is "important," because a published opinion -- and only a published opinion -- constitutes precedent that trial courts must follow. If your opinion is "unpublished," your chance of getting into the 3% is extremely low. It happens, though, once in a blue moon.
But even among few published opinions, very few get accepted for review. It takes more than that to show the issue is "important." (A dissent helps.)
But how can you show real world "importance" in your petition for review? Your petition might speculate on what might happen. But it would be better to back it up with facts -- evidence that the opinion will hurt other people, other companies, or other public agencies. You might be able to find articles, websites, etc. that show this -- but that's often tough to do.
Why not go straight to the horse's mouth? Get people and institutions affected by the Court of Appeal opinion to tell the Supreme Court exactly how that opinion has already affected them or might affect them in the future.
That can be done via amicus letters.
An amicus letter is not an amicus brief. An amicus brief is filed after the Supreme Court grants review, and usually argues the legal issues encompassed by the issues on which the Supreme Court has granted review.
An amicus letter has a very different purpose. It merely urges the Supreme Court to take the case, to grant the petition for review.
Understanding this distinction is crucial.
The focus of an amicus brief is the law. The focus of an amicus letter is the effect of the opinion on what's happening out in the real world. There is little need for an amicus letter to attack the legal analysis in the Court of Appeal opinion, if the petition for review has already done a decent job of that.
There's even a special Rule of Court dealing with amicus letters, Rule 8.500(g):
(g) Amicus curiae letters
(1) Any person or entity wanting to support or oppose a petition for review or for an original writ must serve on all parties and send to the Supreme Court an amicus curiae letter rather than a brief.
(2) The letter must describe the interest of the amicus curiae. Any matter attached to the letter or incorporated by reference must comply with rule 8.504(e).
(3) Receipt of the letter does not constitute leave to file an amicus curiae brief on the merits under rule 8.520(f).
The amicus letter should focus on impact, rather than law. As in, "The Court of Appeal will cause serious problems in our title insurance industry, because it allows titles to be clouded in the following way...." Or, "The Court of Appeal opinion will make it difficult for public agencies to induce contractors to bid on construction projects for public buildings, because...."
Supreme Court justices and law clerks are experts in the law. But they often know little about the intricacies of title insurance, construction industry practices, how airports are operated, the practices of commercial fishermen, and the like. Amicus letters from key players in these areas can tell the court, "Hey! This opinion is really messing up our industry! Here's how...."
So how do you get good amicus letters?
Let's start with how much time you need.
A Court of Appeal opinion becomes "final" 30 days after it was issued. (A petition for rehearing does not extend this time unless it led the Court of Appeal to change the bottom line, e.g., from "Affirmed" to "Reversed" or "Modified.")
After the 30 days runs, you then have 10 days to file your petition for review to the California Supreme Court.
The Supremes then have a maximum of 60 days to decide whether to hear the case. But they usually don't take that long. A law clerk will begin work on your petition right after all the papers relating to the petition have been filed. Your opponent has the right to file an "answer" to your petition within 20 days after the petition was filed, and then you have 10 days to file a reply. So if an answer is filed, the law clerk won't begin work until the reply is filed or the 10 days runs without a reply.
The bottom line: In most cases, the Supreme Court law clerk won't begin to write his memo to the court -- recommending grant or denial -- until 30 days after you file your petition for review.
After that 30 days, the Supreme Court might act of the petition at any time. So it's important to get amicus letters filed within that 30 day period. If, however, someone has trouble getting the letter out within 30 days, it's still worth sending in the letter after that. If your case has a decent chance of getting review, the law clerk will probably put it on "the A List," which has a higher chance of a grant, and will might take longer for the court to act upon.
And this can happen: Your opponent chooses not to file an answer. This shortens the relevant period. As soon as the 20 days to file an answer runs, with no answer filed, the Supreme Court law clerk has all the relevant papers she needs -- just your petition -- so she gets to work on her memo. That means amicus letters should be filed within that 20 days (or very soon after it runs).
Lining up amicus letters can take time, so it's best to start early. Some companies or public agencies might need to get approval from their governing boards to file an amicus letter, and their boards might meet only once a month or so.
Therefore, soon after you decide to file a petition for review, start contacting potential amicus letter writers. This usually happens soon after you get the Court of Appeal opinion you want to challenge. So that's the time to get on the phone.
Whom do you call? Start with the most prestigious institution or company in the industry. If they agree to write a letter, it's more likely that the others will follow.
Whom do you call within the company, public agency, etc.? If you know someone, call them. If you can, talk to a lawyer -- maybe the general counsel. Your pitch has a better chance of being understood if it's heard by a lawyer.
Your client might be better at this than you are. Your client is likely to know people in his industry and have good relations with them. And the client might be better able to convince the person to write the letter, by showing the person how the Court of Appeal opinion might hurt his company, by trading favors, etc. Put your client to work on this.
The person being solicited is likely to want to know more about the case than what you or your client can provide over the phone. They'll want to see the Court of Appeal opinion, and they'll probably want to see your petition for review. So get to work on your petition early. Do not wait until the 10-day period begins to run. Start soon after you get the Court of Appeal opinion. Then you might have at least a draft to send to potential amicus letter writers.
Make it easy on the people you solicit. Tell them that their letter should be short, no more than a page or two. The letter should keep the discussion of the law to a minimum, and focus on the real world impact of the decision on the industry or institution. The more specific, the better. If possible, the letter should spell out examples of how the opinion has already screwed things up -- or, if that's all they have, how it might screw things up in the future.
Here's another problem. If you persuade the Supreme Court that the Court of Appeal opinion is wrong, the Supreme Court might simply order the opinion "depublished." Presto! No more precedent! But this doesn't do your client any good, because the Court of Appeal's decision still stands. Solution: Ask your letter writers if the opinion is well-known in the industry. If it is, it can screw things up even if unpublished, because it could encourage other litigants to make the same arguments -- which have not been rejected by the Supreme Court, because a depublication order is not construed as a ruling on the merits. If the facts support this, ask your letter writer to discuss it.
It's usually best if a lawyer writes the amicus letter. But it's not essential. I've seen excellent amicus letters written by knowledgeable lay people.
Do not write the amicus letter yourself. Rule of Court 8.520(f) says an amicus brief must identify any "party in the pending appeal" who authored any part of it (or paid for it). Read literally, this does not apply to amicus letters, but it should. Talk to the writer about what might work, but let them write the letter.
If the writer is short of time or ideas, it's OK for them to say that they join with another amicus letter. This is why it's good to get an amicus letter from an important player filed early on.
The amicus letter should be sent by TruFiling to the chief justice of the California Supreme Court. Just go to TruFiling's website to see how to do it. The letter should include the name of the case and the Supreme Court case number. You may, if you prefer, mail your letter to the Supreme Court -- with "proof of service" on all parties. This takes longer to reach the court than TruFiling, and errors on the proof of service are not uncommon. So it's safer and quicker to use TruFiling.
I've prepared a short memo on amicus letters to send to potential letter writers. If you'd like a copy, let me know.
Getting good amicus letters takes work, but if it gets you into that 3%, it's worth it.
And here's an added bonus. If the Supreme Court grants your petition, you'll start writing your opening brief to the Supreme Court. It would be nice to include a section on the real world impact of a ruling against you -- and have something to cite to back you up. This is where those amicus letters could once again come in handy, as the court already has them.