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lists the steps that you should generally follow as you
work on an appeal. There is no automatic sequence of steps
which an attorney should take in every appeal; however,
the list below generally incorporates the steps which experienced
attorneys take in handling cases.
We suggest that you review the checklist before you start
working on the case and keep referring to it as you work
on the appeal. The list is meant only as a general guide,
and obviously every case is different, so you will have
to use your own best judgment as events occur.
Please pay particularly close attention to those items suggesting
that you contact the appellant. Keeping your client informed
about the progress of his or her appeal is extremely important,
particularly as cases often take a year or more to be decided
and lack of communication is often the source of clients"
1. Receive documents from the case file from FDAP.
Once you are appointed to the case, FDAP will send you copies
of documents from the case file.
2. Write the appellant when you first get the case, and
promptly answer all letters. If you believe that your
client is writing excessively, contact FDAP. The file sent
to you from our office should contain any correspondence
from the appellant to FDAP, including the background information
form that we ask appellants to fill out regarding their
appeals. Please acknowledge to the appellant, in your initial
letter, that you have his earlier correspondence with us,
so s/he will not feel that the case is being blindly shunted
3. Receive the record and a preliminary assessment memo
from your FDAP buddy. (The memo is provided only in
assisted cases.) The memo discusses the case and potential
issues which you might raise in the appeal. Please note
that, due to time constraints, the assisting attorney's
review of the record is not complete. As counsel of record,
you are responsible for reviewing the record thoroughly
to identify, research, and evaluate all potential issues.
You are responsible for making sure that any arguments are
factually correct. The preliminary assessment memo may cite
some cases to get you started on your research. Be sure
to check the current validity of any cases cited in the
memo, and to read a given case before you cite it in your
4. Read and summarize the record. Some attorneys
draft a statement of the case and a statement of facts soon
after reading the record, while the facts are fresh in their
minds. Others prefer to take notes while reading the record
and draft these portions of the brief after defining the
arguments to be raised.
5. Make a list of potential issues to investigate and
research. If you intend to research an issue identified
in the preliminary assessment memo from FDAP as probably
not arguably meritorious, you should first consult with
your FDAP buddy to discuss the issue, prior to spending
a lot of time researching and/or briefing the issue.
6. Take all necessary steps to complete the record.
If you are not already familiar with its provisions, you
should read Local
Rule 7 . Under rule 8.340(c) (criminal) and 8.408(e)(1) (incorporating 8.155(a)) (juvenile), the reviewing court may grant an augmentation of the record "[a]t any time." However, it would be the better practice to adhere to the former deadlines as much as possible, i.e. within
30 days after the expiration of the 10-day administrative
review period in assisted cases, 30 days after the appointment
order or record filing in independent cases, or 15 days
after counsel has received the record on appeal in dependency
fast track cases.
If you note that some other document or transcript is missing
from the record, determine if it is an item usually included
in the "normal" record on appeal. (For a list
of "normal" record items, see rules 8.320 and 8.404(a),
as well as Local Rule 6 , which adds additional items to
the "normal" record in the First District.) If
it is a "normal" record item which has been omitted
from the record, write to the superior court clerk and request
that the missing document or transcript be sent to all counsel
and to the Court of Appeal pursuant to rule 8.340(b)). If
you do not receive the missing item in one week, follow
up with a phone call. If this does not produce results,
call your FDAP buddy. If the missing document or transcript
is not a "normal" appellate record item, you should
file an augment motion (Local Rule 7) or call your FDAP
buddy for instructions on how to proceed.
If the FDAP buddy has noticed that a document which should
be included in the "normal" record on appeal is
missing from the record, he or she probably will have sent
a "Rule 8.340/Local Rule 7/Local Rule 6 Notification"
to the appropriate superior court clerk requesting that
the missing document or transcript be sent to counsel and
the appellate court. You should receive a copy of this notification.
If you do not receive the missing document or transcript
in a timely fashion, check with your FDAP buddy.
If the FDAP buddy has noticed that a document or transcript
not usually included in the "normal" appellate
record is missing, and you determine that you need the document
or transcript for this appeal, you will need to file an
application to augment the record with the Court of Appeal.
However, an augment request should never be filed for the
purpose of delay.
There are two situations that have at times come to the
appellate court's attention concerning augment/rule 8.340(b)
(a) When the record is missing a Marsden hearing or a probation report (or other type of psychological
report etc.): In this situation, the superior court
clerk may have sent those items (including copies for the
appellant's attorney) to the Court of Appeal, and the court
may have inadvertently failed to send the items to you.
Thus, before you file a rule 8.340(b) request or augmentation
for the items, please contact the division clerk at the Court
of Appeal and ask him or her to check if the items are there.
If they are, the clerk will then forward them to you, avoiding
the necessity of the rule 8.340(b) or augment request.
(b) When the record is missing a sealed transcript
involving the identity of an informant or some other
such proceeding from which the defense was excluded at trial:
This will most frequently arise in connection with a sealed
affidavit in support of a search warrant, but it could also
arise any time there were motions litigated in the trial
court concerning the identity of an informer or other situation
from which the defense was excluded and the records sealed.
In these situations, if you make a rule 8.340(b) request
for the item, you should specify in your request that
the superior court clerk should send the item, under seal,
directly to the Court of Appeal. If there are grounds
for moving to unseal the records, it would then be up to
you to file a motion in the Court of Appeal to unseal the
items. If the court denied that motion, you could then either
move the court, or raise as an issue, that the court should
review the materials in camera to determine if there was
error under the appropriate legal standards. The point is
that you should not simply make a rule 8.340(b) request for
the item in such a way that the superior court clerk might
mistakenly send the transcript directly to you.
7. Call trial counsel. The file usually will have
the form we have sent to trial counsel, specifying issues
that trial counsel feels may be raised on appeal. We recommend
that you follow-up with a call to get trial counsel's full
impressions of the case. In assisted cases, if you feel
there may be an issue regarding ineffective assistance of
counsel, please consult our office before calling trial
counsel, to decide upon your method of approach.
8. If appropriate, examine the superior court file and
exhibits. In some cases, it may be useful to examine
the superior court file. This is a chance to examine the
record in more detail, possibly picking up motions or points
of evidence which were not included in the appellate record.
The case file is located in the superior court clerk's office.
This step may be particularly worth-while in cases where
there were many pretrial motions. Whether to undertake this
step is subject to a case-by-case judgment, because in many
cases it is not likely to be helpful.
Please remember that under rule 8.224 (see rule 8.320(e) (criminal) or 8.404(f) (juvenile)),
if you want to have the superior court transmit an exhibit
to the Court of Appeal, you must designate in the superior
court the exhibit to be transmitted within ten days after
the filing of the respondent's brief. This
permits the Court of Appeal to have the exhibit already
available for review once the briefing is completed and
the court is reviewing the briefing in the case, rather
than having to wait until the court has set the case for
argument. Again, please note that the rule specifies the
designation must be made within ten days of the respondent's
brief, i.e., before the reply brief is actually due.
Additionally, if you want the appellate court to take judicial
notice of a document, be sure to follow Local
Rule 9 when filing such a request.
9. At this point, you will probably want to write the
appellant, make a phone call to the appellant, or, if necessary,
visit the appellant to discuss the issues you intend to
investigate and to solicit his or her feedback. If you plan
to visit the appellant in jail or prison, you must get FDAP's
prior written authorization in order to be compensated
for your travel time and expenses. (Even with approval
for a visit, your travel time is not compensable if the
one-way distance is less than 25 miles, but you can be reimbursed
for expenses (i.e., mileage costs, bridge toll, parking,
etc.).) Call your FDAP buddy to obtain approval. In most
appeals, a personal visit is not necessary.
10. Research and write draft of opening brief. In assisted
cases, remember that you must submit a draft of the
opening brief (including a Wende brief) to your FDAP
buddy before you file an opening brief with the court. The draft should be submitted to your FDAP buddy two weeks
before it is due in court. The opening brief is due within
the time frame as set forth in the order appointing
counsel on appeal.
(a) Extension of time requests:
Read this section in conjucntion with our May 25, 2017, Panel Alert Reminders Regardings Extensions and Deadlines
If you need to
request an extension of time, be sure to read Local
Rule 11 and use the designated form. (Non-fillable PDF versions on Court Web site here; WP & MS Word versions on FDAP Web site here.) The First District
Court of Appeal has adopted a specific policy regarding
extension of time requests. Counsel should 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 even within the additional time provided by rules 8.412, 8.416, and 8.360, the attorney should file an EOT request before entering the 15- or 30-day period provided by those rules. If such an EOT request is granted, when the new deadline passes the attorney will still receive the additional time provided by rule 8.412, 8.416, or 8.360, even if upon granting that extension the court indicated no further extensions will be granted.
Any EOT request-whether filed before or after the 15- or 30-day periods by rules 8.412, 8.416, and 8.360-should be filed at least a week prior to the due date so that if the court denies the request counsel will still be able to complete and file the brief prior to the unchanged due date. Extension requests filed close to, or on, the due date are highly disfavored.
Good cause must be
shown in the EOT application. When the court grants an EOT
and states "no further extensions will be granted,"
the court means what it says. It would be fair to characterize
the court's attitude in one case as extremely irked when
counsel filed a routine EOT request after being told no
further EOT's would be granted.
You should send a copy of the EOT request to FDAP at the
same time you file the EOT application with the court.
Note: In normal assisted cases you cannot use FDAP as a reason for requesting an extension of time. It is very important that you adhere to this. In assisted cases you have to turn in a draft opening brief to FDAP two weeks prior to the filing due date. This necessity, and time to make changes suggested by the FDAP review, is already built into the extra time you get for filing an AOB in assisted cases. Thus, it would present FDAP in a false light, and would actually be misleading to the court, to state in such a case that your obligations to FDAP were the reason for needing an extension of time. Of course, if FDAP has in fact caused delay due to unusual circumstances, such as not getting the record to you in time or for some other unusual reason, in that event it would be proper to note that as a cause for needing an extension of time.
(b) Wende/Sade C./Ben C. briefs & statements: If you find no arguable
appellate issues, you will file a no-merit brief under People
v. Wende, In re Sade C., or Conservatorship of Ben C. (An arguable issue
has been defined as an issue that in counsel's professional
judgment has a reasonable potential for success, and should
result in a reversal or modification of the judgment if
successful.) In both independent and assisted cases,
you must consult with FDAP before filing a no-issue brief or statement . See Working with FDAP, Requirements for All Cases, ¶ 3 .
(c) Habeas corpus and collateral writs: The most
common issue which may require going beyond the record,
and thus filing a petition for writ of habeas corpus along
with the appeal, is ineffective assistance of counsel. In
assisted cases, you must discuss with your FDAP buddy the
possibility of filing a writ petition before you take any
action. Discussing ineffective assistance with trial counsel
is a sensitive matter, and you should consult with your
FDAP buddy before doing so.
(d) Citation form: For any questions about proper
citation form, consult the California Style Manual. Parallel
citations for California cases are considered unnecessary
in practice. Remember, you
cannot cite an unpublished Court of Appeal opinion or an opinion which has been depublished for any reason, including as a result of a grant of review by the California Supreme Court. Exceptions to the bar against citing unpublished and depublished opinions apply in extremely limited circumstances. For instance, it is proper to cite unpublished decisions in a petition for review simply for the non-precedential purpose of establishing the need for review, e.g. when the unpublished cases demonstrate a split among the courts of appeal or that the question presented affects numerous cases. Another exception to the bar applies when alerting the court to prior decisions finding misconduct or ineffectiveness of an attorney involved in the case before the court. (See e.g. People v. Hill (1998) 17 Cal.4th 800, 847; In re Vargas (2000) 83 Cal.App.4th 1125, 1134.) Panel attorneys should consult their FDAP buddy about any doubt they have about the propriety of citing unpublished decisions in these limited circumstances.
11. File opening brief. In independent cases as well
as assisted cases, a copy of the filed opening brief must
be sent to FDAP. Be sure to send the appellant a copy of
(a) Mandatory language on brief cover page.
The Court of Appeal for the First Appellate District issued
the following memorandum on June 25, 1987:
Beneath the attorney's name, address, and phone number on
covers of briefs must appear the following statement:
"By appointment of the Court of Appeal under the First
District Appellate Project's (assisted-case system) or (independent-case
The above statement, depending upon the situation which
applies to each case, is now required by the Court of Appeal
on all brief covers for court appointed cases. You should
also include your state bar number on the cover.
(b) Electronic submission of briefs.
of Appeal receives electronic copies of briefs,
in addition to filing the normal hard-copies. Such submissions
are completely voluntary on the panel attorney's part, but the court would
appreciate electronic submissions since it will make its
work easier in terms of searching through the briefs, matching
the briefs with the transcripts (which in some cases the
court receives in electronic form as well as in hard copy),
and possibly adapting portions of the statements for
opinions. As a pilot project, the court has been electronically
receiving some FDAP briefs, briefs from the A.G.'s office, and panel attorney
Here is how such submissions would work:
(1) You still need to file and serve the regular hard
copies of the briefs in exactly the same manner as you do
now. These are the only officially filed pleadings, and
nothing in this electronic submission program alters or
amends the normal brief format and filing requirements.
(2) Electronic submission of briefs is voluntary for panel attorneys.
(3) The court can accept briefs by email or by mailing
the court a floppy disk. If you send a floppy disk, please
include it along with the hard copies of the brief.
(4) The submission must be in PDF format.
(5) Emailed briefs should be sent to Ron Poellath at the Court of Appeal: Ron.Poellath@jud.ca.gov.
(6) If you send a floppy disk, it should be sent
to Ron Poellath, First District Court of Appeal, 350 McAllister
Street, San Francisco, CA 94102. The floppy disk must be
formatted for a PC. If you desire, Ron Poellath can provide
a floppy disk for you, and/or he can return your floppy
disk to you if you like. The floppy disk should have a label
using the same naming as the file itself (see item 8, below).
(7) It is essential that the electronic brief
be a complete and exact representation of the written brief-
i.e., the pagination and formatting must be the same. The
only exception is that it is acceptable to have the Table of
Authorities and/or the Table of Contents at the end of the
electronic brief, if you initially have the Table as a separate
file and it is easier for you to insert the Tables at the
end of the brief. However, the Tables (and the Proof
of Service) must be merged into the brief and saved together
in one single file.
(8) The file should be named in no more than 7 characters- just use the case number, e.g. "A099999." Ron Poellath at the court will be downloading the email
or the floppy disk and giving it full names; you should
just use the case number because the Court's system cannot
currently handle file names with more than 7 characters.
(9) For now, this program applies just to briefs, not to
motions or habeas or other petitions. This includes supplemental
briefs, though you may not wish to electronically submit
a very short letter brief.
(10) If you have any questions, you can call Ron
Poellath at the Court of Appeal (415-865-7259). If you want
to discuss this procedure generally, you can also call FDAP
Staff Attorney Jonathan
Soglin (415- 495-3119).
12. Write to the appellant. We recommend writing
to your client at the AOB stage, noting and explaining the
issues you have raised in the opening brief. If the appellant
had suggested certain issues which you found non-arguable,
you should explain to the appellant why you did not raise
those issues in the brief.
13. Submit interim compensation claim to FDAP. Please
fill in all requested information accurately, and ensure
that your math is correct, so as not to cause unnecessary
delays in the processing of your claim. You need to send
the interim compensation claim with your original signature on it to FDAP (no copies are necessary) plus any of the
required attachments (i.e., unbriefed issues list). Note:
interim claims are not permitted in Wende and Sade
14. Receive and review respondent's brief. You should
send a copy of this brief to your client. If you file a
reply brief, you might wait until it is written and send
copies of the reply and respondent's briefs to your client
at the same time.
15. Draft and file the appellant's reply brief. Reply
briefs are due twenty days after the respondent's brief
is filed. Reply briefs can be important and are filed in
most cases, although they are not necessary in all cases.
Since the Court of Appeal often has a draft opinion ready
by oral argument, it is usually important to file a reply
brief in order to make a succinct response to the Attorney
General's arguments if they are not fully dealt with in
your opening brief. Further, if you expect to waive oral
argument in the case, this is a factor in favor of filing
a reply brief. Note that it is hard to get an extension
of time for filing a reply brief; if you request one, we
suggest asking for 20 days rather than 30 days.
16. Oral argument. Except in dependency fast track
cases, you will receive a notice from the Court of Appeal
requiring that you respond within ten days if you want oral
argument. If you do not respond, you waive oral argument.
In assisted cases, please call your FDAP buddy to discuss
whether oral argument is appropriate in your particular
case. In dependency fast track cases, no notice is sent
and counsel must file a request for oral argument within
15 days after appellant's reply brief is filed.
17. Receive and review the court's opinion. In assisted
cases, you should call your FDAP buddy to discuss the opinion
and its aftermath. Even if you win, there are further steps
you need to take to follow up on your victory.
18. Write the appellant. In all cases, you should
write to the appellant immediately after you receive
the court's opinion. Send him or her a copy of the opinion.
Explain what will happen if the judgment has been reversed
or modified. If the judgment has been affirmed, inform the
appellant whether or not you intend to file a petition for
rehearing and/or a petition for review. If you do not
intend to pursue the case any further, you must inform the
appellant that he or she may file a pro per petition for review within the mandatory
deadlines. Be sure to inform the appellant of the deadline
and filing procedures. You should inform the appellant
that a petition for review must be filed with the Supreme
Court to preserve his or her right to file a petition for
writ of habeas corpus in federal court. FDAP has a sample
"affirmance letter"; call if you want a copy. Send the appellant your copy of the appellate record
with this letter if you do not plan to file these petitions.
Prior to sending the record to the appellant, do not forget
to redact jurors" names from the record per section
237 of the California Code of Civil Procedure -- this
is mandatory. In addition, further redaction may be required
if, for example, you obtained files or documents (including
police reports) from trial counsel. For instance, victims"
and witnesses" addresses and phone numbers received
by trial counsel in discovery pursuant to section 1054.1,
subdivision (a) of the Penal Code cannot be disclosed to
anyone, including the defendant. (See Penal Code, §
1054.2.) A victim of a sex offense may request nondisclosure
of his/her name and/or address as well. (See Pen. Code,
19. Petition for rehearing. With some very limited
exceptions, a petition for rehearing must be filed in
the Court of Appeal within 15 days after the filing of the
court's opinion. (See Rule 8.268(b)(1).) In assisted cases,
you should discuss with your FDAP buddy the advisability
of filing such a petition. FDAP has sample petitions for
rehearing that can be sent to you upon request.
20. Petition for review. A petition for review must
be filed in the California Supreme Court within 10 days
after the decision of the Court of Appeal becomes final. (Rule 8.500(e).)
The decision on a direct appeal becomes final 30 days after
the opinion is filed. (Rule
A decision denying a habeas corpus petition without issuing
an order to show cause is final on the same day that the
decision in a related appeal is final, if the two decisions
are filed on the same day. (Rule 8.264(b)(4).) Separate petitions
are required if the Court of Appeal decides the appeal and
denies the writ without an order to show cause and without
"formally consolidating the two proceedings."
(Rule 8.500(d).) If the Court of Appeal formally consolidated, then a simple
petition for review must be filed. If the case presents new or important
issues of law, or involves issues on which the Courts of
Appeal are split, you may want to petition the Supreme Court
for review. (See Rule 8.500(b).) In assisted cases, you should
discuss this possibility with your FDAP buddy before filing
the petition. FDAP has sample petitions for review that
can be sent to you upon request.
21. Submit final compensation claim to FDAP. After
you have completed all work on the case and written your
final letter to the appellant, submit your final compensation
claim to FDAP. If you have not filed a petition for review,
you should wait until after the deadline for such a petition
in the event your client files one. It is important to submit
a final claim even if you have done only a small amount
of work on the case since the interim claim because 5% of
your interim claim was withheld and will be paid to you
on the final claim. This also enables FDAP and the AOC to
close our case files, and enhances the accuracy of caseload
statistics. In regard to average hours per case, it is worth
noting here that accurate statistics are critical to proper
budgeting for payment of appointed counsel. Additionally,
you need to send the final compensation claim with your original signature on it to FDAP (no copies are necessary)
plus any of the required attachments (i.e., unbriefed issues
22. Close File and Write Final Letter to the Appellant. As noted previously, you must write to the appellant and
explain the procedures for filing a petition for rehearing
and/or petition for review if you do not intend to file
either one and to explain to the appellant how to proceed
in federal court if the appellant chooses to do so. FDAP
recommends that you immediately send the transcripts to
the appellant once the case has ended. If the record
is rather large, it may be difficult for the appellant to
retain the record in state prison and you should inquire
as to where the appellant would like the record sent.
Finally, you must retain the client's file, essentially
forever. (See Rules Prof. Conduct, rule 3-700(D) [client
file belongs to client].) Although not binding authority,
the State Bar of California Committee on Professional Responsibility
and Conduct has issued a formal opinion on attorneys"
duties in retaining clients" files. Specifically, the
committee held that "client files in criminal matters
should not be destroyed without the former client's express
consent while the former client is alive." (Cal. St.
Bar. Comm. Prof. Resp., Formal Opn. No. 2001-157; see
also Los Angeles County Bar Assoc. Legal Ethics Comm. Formal
Opn. Nos. 420, 475; Bar Assoc. of San Francisco Legal Ethics
Comm. Formal Opn. No. 1996-1.) Practically speaking,
retaining the appellant's file may be very useful to the
appellant in the future in light of all the new and ever
changing recidivist statutes and/or for use in any federal