• Does One Hand Know What the Other's Doing?
  • February 7, 2013 | Author: Laurie Hepler
  • Law Firm: Carroll, Burdick & McDonough LLP - San Francisco Office
  • For parties that appear in California courts with any regularity, business strategy is essential to effective appeals.  In appellate courts, loose phrasing or short-sighted arguments can seriously wound a party's long-term interests -- which can be tough to explain to a G.C., a founder, or a board -- even if those pearly words seemed helpful in winning the dispute at hand.  Here are three reasons why consistency with business strategy is critical:

    • The Prospect of Publication:  Win or lose, the opinion may become law.  The reach and shape of that law will depend to a large extent on the framing of each side's positions in written briefs. A party should never assert anything in an appellate brief that it would not be prepared to accept as a rule (or exception) controlling its future conduct.

    • Judicial Estoppel:  A win -- whether or not in a precedential opinion -- brings with it this more subtle constraint.  Every position the winner took that was essential to the court's decision can be cited in other cases to estop that party from going a different way in similar circumstances.  The estoppel won't always stick in the later proceeding (it depends on a few factors), but still: do you want to have that fight?  Maybe yes, but often it is not worth the risk.  At the very least, counsel must assess this risk.

    • Once Filed, It's Findable:  This should come as no surprise.  Despite California state courts' lingering use of paper appellate filings, various paid and free sources now digitize those briefs and make them available in searchable formats.  Opposing counsel share them; online research services bank them; the California Supreme Court (if you get there) posts all briefs in argued cases online; etc.

    The practical message:   Inside counsel or outside appellate counsel should ensure -- over time and across districts of the Court of Appeal -- that a litigant's most important business and legal imperatives drive all appellate pleadings.  Some appeals should not be pursued or defended at all, if larger priorities would suffer.  And in every appellate brief you do file, every argument or sentence that could undermine higher priorities should disappear.