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[an error occurred while processing this directive] Appeal Checklist

This "checklist" 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" complaints.

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 around.

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 brief.

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) requests.

(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 the brief.

(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 system)."

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.

The Court 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 briefs.

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 C. cases.

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, § 293.)

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 8.264(b)(1).) 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 list).

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 habeas proceedings.

 

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