This checklist sets out the steps in an appeal generally followed by experienced appellate attorneys. FDAP also maintains a collection of commonly-used sample forms, letters, and motions here. The California Appellate Practice Manual is another excellent reference for appointed appellate attorneys. However, please note that it was written by Appellate Defenders, Inc. for attorneys appointed to cases in the Fourth District, and certain sections may not apply to practice in the First District or membership on the FDAP panel.
Counsel should review this checklist before each new case and refer to it throughout the appeal. The checklist is meant only as a general guide. Counsel will have to exercise independent judgment in every case.
Please pay close attention to the steps involving client communication. The appeal is the client’s case and the client is entitled to be kept apprised of the progress of the case and counsel’s assessment of the issues.
Note: In this checklist we assume that counsel is representing the appellant, which is true in the vast majority of panel cases. When counsel is representing respondent, the steps are slightly different, but are easily adapted.
Upon appointment, FDAP will send to the panel attorney various documents, including the notice of appeal, the judgment or order on appeal, any correspondence with the client, and intake forms if returned by the client and trial counsel.
The file sent to you from our office should contain any correspondence from the client to FDAP, including the background information form that we ask clients to fill out. Counsel should acknowledge to the client, in the initial letter, that they have received and reviewed any pre-appointment correspondence. If counsel feels the client is writing excessively, or there are other communication-related difficulties, counsel should confer with the FDAP consulting staff attorney.
It is not unusual during the course of a case to need the client’s signed consent for release of information. Some trial attorneys require the client’s authorization before they will talk to appellate counsel about the case or share documents from the client’s file. Having the client sign and return to counsel a generic release form at the outset of the case will prevent delay. Please note that such generic release forms will not suffice for release of health information. Most health care providers, including county jails and CDCR, have their own HIPAA forms.
Counsel must be proactive in communications with vulnerable clients, such as clients convicted of a sex offense or whose testimony might make them vulnerable to retaliation in custody. The presumption is that in such cases, especially sex offense cases, clients should not be sent anything that describes the offense (letters, briefs, transcripts) unless they ask for those documents, well-advised of the risks.
In order to comply with Rule 8.360(d)(1) and (2) (regarding service of briefs on the defendant), counsel should write to the client early in the case to inquire about their preferences about receiving the briefs, asking the client to reply in writing as to whether counsel should (1) send the client’s copy of the briefs to a relative, (2) send the client’s copy to the client along with a return envelope for the client to immediately return to counsel upon review, or (3) retain the client’s copy in counsel’s file.
An issues memo is prepared only in assisted cases, and provides a general description of the case and potential issues in the appeal. The assisting attorney’s review of the record is not exhaustive. The panel attorney, as counsel of record, is responsible for reviewing the record to identify, research, and evaluate all potential issues, and ensuring that arguments are factually and legally sound.
For each new case, counsel should register for electronic case notifications from the Court. This provides a safeguard against another party mis-serving a document, counsel’s own mis-calendaring, or overlooking a properly served document.
FDAP recommends taking detailed notes while reviewing the record, while deferring the drafting of a detailed recitation of the facts until after counsel has identified the issues that will be raised. Issue-driven statements are more persuasive.
It is counsel’s duty to ensure that there is an adequate record before the appellate court so that all issues may be resolved on the merits. A failure to complete or correct the record may preclude full consideration and resolution of the issues. The procedure to complete and/or correct the record depends on the item sought.
(a) Missing normal record items:
If a document or transcript is missing from the record, counsel should determine if it is an item that should have been included in the normal record on appeal. For a list of normal record items, see rules 8.320 and 8.407, as well as Local Rule 3, which lists additional items the First District requires to be included in the record. A missing normal record item can be obtained by writing to the superior court clerk and requesting that the missing document or transcript be sent to all counsel and to the Court of Appeal pursuant to rule 8.340(b). Counsel should follow up with a phone call if the missing item is not received in a timely manner. If this does not produce results, counsel should confer with the FDAP consulting attorney.
When requesting record items from the clerk’s transcript, counsel should identify each requested document by its title and filing date or, if the filing date is not available, the date it was signed. Minute orders may be requested by date. (See Cal. Rules of Court, rule 8.122(a)(1).) When requesting record items in the reporter’s transcript, specify the date of each proceeding requested. (See Cal. Rules of Court, rule 8.130(a)(1).) It is also helpful to include the reporter’s name and certification (CRS) number if known, and any other information in the record that will assist the superior court clerk in identifying the missing transcript.
Note: Local Rule 11(c) now provides for an automatic extension of time when the Court receives notice of a supplemental record request filed in the superior court pursuant to Rules 8.155(b), 8.340(b), or 8.410(a). Under the new rule, counsel will no longer have to separately file and request an extension of time while awaiting the omitted transcripts. Rather, the filing deadline will be automatically extended for 15 days from the date the supplemental record is filed. Reminder: To get the benefit of the automatic tolling, counsel must electronically serve the Court of Appeal with the record omission letter. TrueFiling has a specific filing category for service copies of omitted record requests.
(b) Augmenting the record:
When a document or transcript is needed to assess and pursue potential issues on appeal but is not part of the normal record, counsel will need to file a motion to augment in the Court of Appeal.
The California Rules of Court provide that a reviewing court may grant an augmentation “[a]t any time.” (Rule 8.340(c) [criminal] and Rule 8.410(b) [incorporating rule 8.155(a), juvenile].) However, the First District has a stricter local rule, Local Rule 4(c), which provides that a motion to augment should be made 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. In the First District, motions made after these time periods require a showing of good cause.
Note: Unlike a record omission request for normal record material, a motion to augment the record does not automatically toll briefing. A request for an extension of time can be combined with the motion to augment.
(c) When the record is missing both normal record and non-normal record items:
Some appellate records are missing both normal record and non-normal record items. The best practice in the First District when this occurs is to file two separate requests (a record omission letter with the superior court for the missing normal record items, and a motion to augment with the Court of Appeal for the non-normal record items) rather than a single omnibus request.
(d) Sealed and/or confidential items:
Some appellate records contain – or should contain – confidential and/or sealed items, such as psychological reports and reporter’s transcripts of in camera hearings. Per Rule 8.45(b), “[a] ‘sealed’ record is a record that is closed to inspection . . . by order of a court,” and “[a] ‘confidential’ record is a record that, in court proceedings, is required by statute, rule of court, or other authority except a court order . . . to be closed to inspection by the public or a party.”
Appellate counsel should automatically receive any confidential or sealed record items that are part of the clerk’s transcript on appeal if the client or trial counsel had access to them in the trial court. (See Rule 8.45(d).) However, per First District Local Rule 3(d), appellate counsel’s copies of all reporter’s transcripts of in camera hearings – including Marsden hearing transcripts – are sent directly to the Court of Appeal and may be obtained only by application. In addition, sometimes the trial court appeals clerk mistakenly sends appellate counsel’s copy of confidential or sealed record items to the Court of Appeal. When that happens, it is usually reflected in the online docket, and appellate counsel should file a request for access to such items with the Court of Appeal.
If sealed or confidential items are missing from the appellate record and were not sent to the reviewing court, appellate counsel should send a record omission letter to the trial court appeals clerk. The record omission letter should identify any requested items as sealed or confidential and advise the appeals clerk whether to send the items to appellate counsel directly or to the Court of Appeal only, as appropriate.
Sometimes confidential and/or sealed material that is not supposed to be in the appellate record is inadvertently included. For example, by law the transcripts must not include the names, addresses, or telephone numbers of sworn jurors; jurors must be referred to by an identifying number. (Code Civ. Proc., § 237, subd. (a)(2); Cal. Rules of Court, rule 8.332(b).) Other examples might be confidential juvenile records (see, generally, Welf. & Inst. Code, § 827; rule 8.401(b)) and confidential transcripts (rule 8.47). Examples in dependency appeals might be the contact information for confidential foster parents or a parent or the psychological evaluation of the other parent. Upon discovering material that counsel is not supposed to see, counsel should stop reading that part of the transcript immediately and notify their consulting FDAP attorney. The court may order return of the records, redaction, or other corrective action. Under no circumstances should counsel send such material to clients or other persons without specific authorization from the court or FDAP.
If the material is appropriate for counsel to review, but not the client, counsel may personally redact the transcript, if practical, in order to send it to the client, completely covering the confidential information and ensuring it is not readable by any methods. If the changes are more extensive, counsel may ask the court to order the court clerk to prepare a proper copy. If the record is in electronic form, having the clerk do the corrections may be the only alternative.
**The above two paragraphs are adapted from pages 50 and 51 of the ADI practice manual to reflect the preferred course of action when practicing in the First District.
The file will often include an intake form completed by trial counsel. The form provides background about the case and issues trial counsel considers potentially viable on appeal. In all cases, contact trial counsel early in the appeal to get their full impressions, including any important matters that may have occurred off the record. In assisted cases, if the panel attorney feels there may be an issue regarding ineffective assistance of counsel, the panel attorney should consult FDAP about the best approach before calling trial counsel. In all cases, the best practice is to communicate with trial counsel and develop a relationship prior to asking any questions touching on ineffective representation.
In any case in which there was a trial or evidentiary hearing, counsel will likely need to obtain and review the exhibits offered by all parties, including those not admitted. Often, trial counsel can provide a complete set of exhibits. It is also possible to view the exhibits at the superior court. Always call ahead to make sure the exhibits are available for viewing and to arrange a time to see them.
All exhibits admitted, refused, or lodged are deemed part of the record on appeal. (Rules 8.320(e) [criminal]; 8.407(e) [juvenile]; 8.483(d) [civil commitment].) Accordingly, such exhibits can be cited and relied upon in briefing, without moving to augment the record on appeal to include them.
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 worthwhile in cases where there were many pretrial motions. As with exhibits, call ahead to make sure the file is available and to arrange a time for the review.
In the course of record review and research, counsel should be vigilant to watch for any potential adverse consequence stemming from moving forward with the appeal. In criminal and delinquency cases, for example, these commonly include errors such as an unauthorized sentence or custody credits award, or a mandatory sentence, fine, fee, or other disability that was required to be imposed but was not. Because the opposing party or the Court of Appeal may notice the error during the appeal, and because an unauthorized sentence may be corrected at any time, it is critical to communicate with the client about the risks and benefits of going forward with the appeal; it may be necessary to obtain from the client a written acknowledgment of the risk and the desire to proceed with the appeal. Counsel should confer with the FDAP consulting attorney about potential adverse consequences.
Under the Judicial Council’s compensation guidelines, time spent traveling to visit the client will not be compensated unless counsel can show that the matters to be discussed cannot be covered in written correspondence or a telephone call.
Prior to briefing, communicate with the client about the potential issues in the appeal, including any potential adverse consequences, and solicit the client’s impressions and concerns.
If counsel believes visiting the client in jail or prison is necessary, then counsel must obtain FDAP’s prior written authorization in order to be compensated for travel time and expenses. Only the executive director and the assistant director can approve such requests. Even with approval for a visit, travel time is not compensable if the one-way distance is less than 25 miles, although counsel can be reimbursed for expenses (e.g., mileage costs, bridge toll, parking).
Draft Review in Assisted Cases. In assisted cases, a FDAP staff attorney reviews the brief prior to filing. Be sure to follow the Procedures and Policies for Assisted Cases in our panel attorney guide.
No-Issue Review. In any case (assisted or independent) in which counsel is unable to find arguable issues to raise, counsel must following the procedures for no-issues review found in our panel attorney guide.
Habeas Corpus and Other Writs. Ineffective assistance of counsel is the most common issue that may require going beyond the record and filing a petition for writ of habeas corpus along with the appeal. In assisted cases, counsel must discuss with the FDAP assisting attorney the possibility of filing a writ petition before taking any action. Discussing ineffective assistance with trial counsel is a sensitive matter, and counsel should consult with the FDAP assisting attorney before doing so.
See our Panel Attorney Policies and Procedures for detailed information regarding how and when to seek extension of time.
Mandatory Language on Brief Cover: Effective February 1, 2021, the First District no longer requires that panel attorneys include on the cover of briefs the fact that they are appointed and their designation as independent or assisted.
Sealed and/or Confidential Record Items: If appellate counsel cites to sealed and/or confidential record items in any Court of Appeal pleading, two versions of the pleading must be prepared: an unredacted nonpublic version and a public redacted version. (Rule 8.46(g); Rule 8.47(c).) Appellate counsel need not file an application to file the pleading under seal if the pleading references sealed record items. (Rule 8.46(g).) On the other hand, if the pleading references confidential record items, the two versions of the brief must be filed along with an application to file the unredacted version under seal. (Rule 8.47(c).) Note that some confidential record items may be referenced in Court of Appeal pleadings without preparing two versions of the pleading or seeking permission to file it under seal. For, example, the Appellate Advisory Committee Comment to Rule 8.47 expressly exempts probation reports from the rules governing the disclosure of information contained in confidential records.
When serving the client with the opening brief, we recommend also writing to the client, noting and explaining the issues raised. If the client had suggested certain issues which counsel did not include in the AOB, counsel should explain to the client why they did not raise those issues in the brief. Be cautious about serving the client with the opening brief and with the content of correspondence in any case in which receipt of that information could make the client vulnerable, such as when the client is convicted of sex offenses and is incarcerated.
Send a copy of opposing counsel’s brief to the client.
Under rule 8.224 (see rule 8.320 (e) [criminal] or 8.407 (e) [juvenile]), if counsel believes the Court of Appeal should (or will want to) view exhibits, counsel must designate in the superior court the exhibits to be transmitted to the Court of Appeal within ten days after the filing of the respondent’s brief. After the 10-day window has passed, transmission of the exhibits to the Court of Appeal requires a motion showing good cause filed in the Court of Appeal. (Rule 8.224(c) and Advisory Committee Comment.)
Reply briefs are due 20 days after the respondent’s brief is filed. There is a very strong expectation that counsel will file a reply brief in every case, and the failure to file a reply brief may be regarded as a concession by the Court. Since the Court of Appeal often has a draft opinion ready by oral argument, it is almost always necessary to file a reply brief in order to make a succinct response to the opposing party’s arguments, even if the points were addressed in the opening brief. Note there is no “default” time for reply briefs. (Cal. Rules of Court, rule 8.220.) Counsel may request an extension of time with a showing of good cause. Additional tips for writing effective reply briefs can be found in the FDAP article Preparing Appellant’s Reply Brief.
Except in dependency fast track cases, counsel will receive a notice from the Court of Appeal requiring a response within ten days if requesting oral argument. Some divisions issue the notice immediately upon completion of briefing. Others wait months to issue the notice. In either case, if counsel does not respond to the notice, oral argument is deemed waived. 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.
The court may issue a focus letter prior to argument. The court may also issue a tentative opinion prior to argument, but will only do so if the matter has been placed on the oral argument calendar. Counsel should consider the possible issuance of a tentative opinion when deciding whether to request oral argument. Counsel will be provided the opportunity to waive argument following the issuance of a tentative opinion.
In assisted cases, please call your FDAP assisting attorney to discuss whether oral argument is appropriate in the particular case.
Consult the FDAP training materials on oral argument regarding the decision to request oral argument and how to conduct oral argument.
Keep track of relevant new appellate decisions and legislative enactments after you file your reply brief. Counsel can write the Court of Appeal a letter advising of such post-briefing developments, but the relevant rule of court (8.254(b)), which is strictly enforced, cautions that “[t]he letter may provide only a citation to the new authority and identify, by citation to a page or pages in a brief on file, the issue on appeal to which the new authority is relevant. No argument or other discussion of the authority is permitted in the letter.” If a relevant new case or statute requires new argumentation, counsel must file an application for permission to a supplemental opening brief. The proposed supplemental opening brief should be filed contemporaneously with the application.
A checklist on preparing for and presenting oral argument can be found here.
If applicable, review the Court of Appeal’s tentative opinion and consider whether to proceed with or waive oral argument.
In assisted cases, counsel should discuss the opinion with the FDAP assisting staff attorney to determine next steps. Even if the decision is favorable, there may be further steps to take to follow up on the victory.
In all cases, write to the client immediately after receiving the Court’s opinion. Send the client a copy of the opinion, unless it contains sensitive information the client would not want in their possession. Explain what will happen if the judgment has been reversed or modified. If the judgment has been affirmed (or reversed in the case where the client is the respondent), inform the client as to whether counsel intends to file a petition for rehearing and/or petition for review. If counsel does not intend to pursue the case any further, counsel must so inform the client such that they may file a pro per petition for review within the mandatory deadlines. Be sure to inform the client of the deadline and filing procedures. Counsel should inform the appellant that a petition for review must be filed with the Supreme Court to preserve the right to file a certiorari petition in the U.S. Supreme Court or a petition for writ of habeas corpus in federal court. Counsel should send the client the paper copy of the appellate record with the letter if counsel does not plan to file these petitions.
Prior to sending the record to the client, be sure that all jurors’ names have been redacted. (If counsel has discovered a juror’s name was not properly redacted, counsel should have notified the Court immediately. (Cal. Code of Civ. Proc., § 237; Rules of Court, rule 8.332.) In addition, further redaction may be required if counsel obtained files or documents (including police reports) from trial counsel. For instance, victim and witness addresses and phone numbers received by trial counsel in discovery cannot be disclosed to anyone, including the defendant. (See Pen. Code, § 1054.2.) A victim of a sex offense may request nondisclosure of his or her name and/or address as well. (See Pen. Code, § 293.)
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, counsel should discuss with the FDAP staff attorney the advisability of filing such a petition. FDAP has sample petitions for rehearing.
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 single 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, counsel ordinarily should petition the Supreme Court for review. (See Rule 8.500(b).) In addition, if the case has federal issues the client may want to pursue in the U.S. Supreme Court or in the lower federal courts, counsel should ordinarily file a petition for review. In assisted cases, counsel should discuss this possibility with the FDAP consulting staff attorney before filing the petition. FDAP has sample petitions for review.
As noted previously, counsel must write to the client and explain the procedures for filing a petition for rehearing and/or petition for review if counsel does 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 counsel immediately send the transcripts to the appellant once the case has ended. If the record is large, it may be difficult for the client to retain the record in state prison and counsel should inquire as to where the appellant would like the record sent.
In criminal and delinquency cases, counsel 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. No. 475; Bar Assoc. of San Francisco Legal Ethics Comm. Formal Opn. No. 1996-1.) Practically speaking, retaining the client’s file may be very useful to the client in the future in light of new and ever-changing criminal justice and sentencing reforms and for use in any federal habeas proceedings.
After counsel has completed all work on the case and written the final letter to the client, counsel should submit the final compensation claim. If counsel has not filed a petition for review, counsel should wait until after the deadline for such a petition in the event opposing counsel or the client files one. It is important to submit a final claim even if counsel has done only a small amount of work on the case after submission of the interim claim, because five percent of the amount recommended at the time of the interim claim is withheld and will only be paid upon submission of the final claim.