News from the Director

FDAP Panel Alert 2018-11

August 31, 2018

On Avoiding Orders Denying Extension and Augment Requests


Yes, this is a thing. The First District, in a renewed emphasis on timeliness, is enforcing existing rules and denying some extension and augment requests as untimely or for an inadequate showing. For proper representation of your client, it is essential that panel attorneys adhere to the rules and adopt best practices. 

A little over a year ago we sent a reminder about complying with First District extensions and deadlines. The First District continues to more strictly enforce the rules in reviewing extension and augment applications. We have seen this play out with the Court denying applications for non-compliance with the rules. And in one instance the Court referred a panel attorney to the state bar upon failing to meet the Court's final AOB deadlines in two cases. FDAP also takes these deadlines very seriously. When panel attorneys fall behind in their work, we have recommended their removal from one or more cases and/or declined to recommend their appointment in future cases until they are on top of their caseload. Chronic timeliness problems and other failures to adhere to professional standards have been grounds for removal from the panel. 

Please read the critical reminders below and familiarize yourself with the applicable Rules of Court and Local Rules. 
Bookmark these rules governing extension requests and augment motions: 

Delays not only interfere with the Court’s management of its docket, but can also prevent the Court from granting meaningful relief to our clients.

Time-Sensitive Cases

In prioritizing your work and in making decisions about whether to seek an extension, consider the time-sensitiveness of the case (e.g. short sentence cases, dependency cases, delinquency cases). 

EOT Standards:

In most cases, extensions can be granted for “good cause.” Rule 8.63(b) lists many factors the Court will consider. But a conclusionary statement that more time is needed “because of press of business” is not “good cause." 

Significantly, a special rule applies in appeals from orders terminating parental rights, requiring a showing of “exceptional good cause” for an extension. (Rule 8.416(f)) Do not assume that your deadlines in other cases will constitute "exceptional good cause."

EOT Timing

In the First District, do not file a request for an extension of time if the brief will be filed within the time allotted by the California Rules of Court, which provides an additional 30 days after the official due date in criminal cases (rule 8.360(c)(5)) and most juvenile cases (rule 8.412(b)(5)) and an additional 15 days in dependency appeals from the termination of parental rights (rule 8.416(g)). The First District will place no stigma upon counsel who file within that time period. If, however, the attorney believes that he or she will not be able to file the brief within the additional time provided by rules 8.412, 8.416, and 8.360, the attorney should file an EOT request before entering the default period. (If you have previously received contrary advice from FDAP, please disregard it and consider this description of the rules authoritative.)  Last minute extension requests are strongly disfavored. Avoid filing the request less than a week prior to the current due date.  

EOT ContentFailing to use the Court's format for an extension can cause you to omit important information. Your EOT format must mirror the Court's form in terms of order and content, although it is not necessary to use the Court's form.

Be sure to explain, with some specifics, what work you have performed on the case since the last deadline. It is important to show that you are making progress on the case.

Denials/Warnings

The Court sometimes denies extension requests. Always review the order to make sure it was granted in full, rather than granted in part or denied. Contact FDAP immediately if (1) the Court states “no further extensions will be granted” and you will be unable to meet the new deadline or (2) the Court denies an extension request and you will be unable to satisfy the then-current deadline.

Augment Motions - What are they for?

Augment motions should be used to ask the Court of Appeal to add to the record items from the superior court file or transcripts of superior court hearings. But do not use an augment motion for items which are part of the normal record.  For normal record items inadvertently omitted from the record, make your request to the superior court appeals clerk. (Local Rule 7(a).) 

Do not use augment motions to add exhibits to the record. Exhibits, whether admitted or excluded, are already part of the record on appeal. (Rule 8.320(e), 8.407(e).) You can obtain the exhibits from trial counsel, the superior court, or even the district attorney. To have any exhibits transmitted to the Court of Appeal for the Court's review, file in the superior court a Rule 8.224 notice designating exhibits to be transmitted. 

Augment Motion Timing

Counsel for appellant should file a motion to augment the record within 30 days of receipt of the record in independent cases and 40 days (i.e. 30 days after the 10-day administrative review period) in assisted cases. "Thereafter, motions to augment will only be entertained upon a showing of good cause." (Local Rule 7(b).)  In fast-track dependency appeals, the motion must be filed within 15 days of receipt of the record. (Rule 8.416(d)(2).) 

Piecemeal augmentation is strongly disfavored. (An exception might be when the first augment you receive reveals additional material to request that you could not have know about at the time of the first request.) 

Augment Motion Content

For CT items, identify the document with specificity by date and type (title if possible). Explain the relevance of the document to potential issues on appeal. 
For RT items, identify the date, department and judge, the time of the court session if necessary (e.g. morning or afternoon), and provide the name of the court reporter. Again, explain with specificity how the material would be relevant to potential issues on appeal. 

FDAP Deadlines

Abide by FDAP's deadlines. Last minute requests for a draft review or no-issue review are very problematic. FDAP staff attorneys have deadlines in their own cases and deadlines related to work of other panel attorneys, so they may not be able to get to your case right away. If you are running into time trouble at the draft stage, advance warning to your FDAP consulting attorney is essential.

 

 

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