How To Handle New Legal Authority During Pendency Of The Appeal

All of the appellate briefs have been filed. You’re waiting for oral arguments or a decision. Then, while waiting, a court decision that’s relevant to your appeal is announced. Or, perhaps, a statute or regulation that may impact the appeal is enacted. Collectively, these are known as new legal authorities. You can’t file any more briefs, but the new authority certainly affects the outcome of the case. So what can you do? Attorney Janet Gusdorff of Gusdorff Law explains.

Delays at the Court of Appeal

Appeals are notoriously lengthy. According to the 2022 Court Statistics Report, the statewide median duration in civil appeals from filing the notice of appeal to the decision is 568 days. During this time, the appellate record is filed, three appellate briefs are drafted and filed, oral argument is set and often heard, and any important motions are filed and heard.

The gap between these milestones allows plenty of room for new legal authority to emerge. These primarily include new appellate decisions that the Court of Appeal may hand down on other, related matters. New laws and regulations may also be enacted that could have a bearing on the outcome of your case. Fortunately, the parties are not frozen in time with whatever authority was last raised in their briefs. They can – and in certain circumstances – must update the Court of Appeal on new legal authority.

How to Notify the Court

Regarding the California Court of Appeals only, here is how to bring new authority to the Court’s attention:

An attorney may notify the Court of Appeal concerning recent authority by simply writing a letter. However, this letter should be limited to significant new authority only. Under the California Rules of Court, “significant” generally does not include merely additional authority. It is customary for lawyers to cite multiple sources of authority in their principal briefs. Piling on by adding another Court of Appeal decision would likely be a misuse of the letter.

But there are at least a couple of important exceptions to this. First, if there is a Supreme Court decision that obviously supports a party’s argument. Why? Because the Court of Appeal is nearly always bound by the decisions of a court of higher jurisdiction. Your lawyer would therefore want the Court of Appeal to take note of such a decision.

Another exception would be if there was no clear authority supporting an argument when the principal brief was filed. The new authority could therefore potentially strengthen a point that lacked substantive authority earlier in the appeal. Depending on the circumstances of your case, there may be other reasons to cite a new authority in a letter. Check with a seasoned California appellate litigation attorney.

It should also be noted that this letter is not to be used as another legal brief. Some appellate lawyers are tempted to argue points in their letters to the Court of Appeal. This would be considered improper since written arguments are reserved for the principal briefs. Rather, the letter should only:

  • Cite the New Authority
  • Explain which issues in a brief already on file (citing the page number) are affected by the new authority

Lastly, the letter must be filed and served as soon as possible after the new authority is issued. But what if new authority arose after oral argument? A letter may be filed and served only if said authority was not available at oral argument.

Appellate Advocacy That Adapts To Legal Changes

New legal authority could drastically impact your appeal. It may even make the difference between winning and losing. However, properly notifying the Court of Appeal is a potentially complicated matter, especially given the ethical duties that counsel owes to the Court as well as to their clients. Gusdorff Law is ready to respond to developing authority that touches on your appeal. Call us today to get started.

 

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