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Defense Perspective: Contemplations
and Tips for Filing an Appellate Brief

By Michael McDonald, Esq.

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In this series, Michael G. McDonald, Esq. of the McDonald Law Corporation offers practical advice to WC lawyers and adjustors.

For twenty-five years I have been practicing law in California. During my early years, I represented injured workers, tenants, Legal Aid clients and claimants for Social Security benefits. I had the opportunity to do a few non-jury trials, hearings before Administrative Law Judges and hearing officers. I even appeared on a regular basis before the Federal District Court in San Diego where I appealed denied Social Security claims. Those appearances allowed me to begin the process of learning appellate work.

For the last 20 years, I have primarily represented defendants in the workers’ compensation arena. I have filed petitions for writs of review and answers to petitions with various District Courts of Appeal on workers’ compensation issues. During all of my years of practice, I never had an opportunity to ever file a brief before the California Supreme Court; until this year, that is.

The case, Travelers’ Indemnity Co. v. WCAB (Morales) (2011) 76 CCC 601 (Sup. Ct. writ denied), concerns the issue of laches. The underlying case remains open and there still has been no final determination of liability against any of the parties. This discussion will focus on the procedural issues and hurdles encountered during the appellate process leading up to the drafting of my Answer.
The Underlying Case

The original matter was heard at arbitration in May 2010. At that time, the parties made many stipulations (including the existence of general and special employment) and agreed the arbitration would focus on laches and equitable estoppel. Following the hearing, the arbitrator held for CIGA on the equitable estoppel issue and found in favor of Travelers’ Insurance on the laches issue. CIGA appealed that finding to the WCAB.


The Record and the California Rules of Court

The record submitted to the arbitrator, the WCAB and the Court of Appeals was clean. Counsel for the parties discussed the evidence and submitted the appropriate documents with page numbers and exhibit numbers. The legal briefs properly cited the evidence. A clean record is vital in preparation of any appellate brief, especially one drafted to the Supreme Court. Appellate courts have no knowledge of the underlying case. Thus, a clean record is very important.

What constitutes a “clean record?” That is in the eye of the beholder. When the WCAB changes the opinions of a judge or arbitrator in workers’ compensation cases, some argue the record is not so clean. This is due to the fact that the WCAB can make new factual findings based upon the record. In such instances, it is vital to include the decision of the WCAB as well as the underlying decision for the record.

Another issue in attempting to get to the appellate level is simply that appellate courts, I am told by some appellate practitioners, do not like to step into the workers’ compensation morass. They typically defer issues of fact to the WCAB and focus on issues of law. The guidelines for what is required in a petition and answer are found in California Rules of Court, Rules 8.200, 8.204, 8.208, 8.212, 8.495, 8.500 et seq. Workers’ compensation cases are governed by Rule 8.495.

An interesting rule is Rule 8.25(b)(3):

(3) A brief, a petition for rehearing, an answer to a petition for rehearing, a petition for transfer of an appellate division case to the Court of Appeal, an answer to such a petition for transfer, a petition for review, an answer to a petition for review, or a reply to an answer to a petition for review is timely if the time to file it has not expired on the date of:
(A) Its mailing by priority or express mail as shown on the postmark or the postal receipt; or
(B) Its delivery to a common carrier promising overnight delivery as shown on the carrier's receipt.

This would apply to petitions for review to the Supreme Court. In my matter, I believed an appeal to the Supreme Court would occur. However, on the last day it was to be filed, the website failed to show any filing. In fact, the brief was not received by the Court Clerk until the next morning. Since the mailing was perfected by overnight service, it was deemed filed the date the service took possession of the petition.

Keep in mind that the brief’s cover color is red for Petitions and Answers for Writ of Review at the lower court. The cover is white at the Supreme Court. See Rule 8.40 and when in doubt, call the court clerk for assistance.

At the court of appeals level, exhibits are required (see Rule 8.495). During my research, I found that at the Supreme Court level, no attachments are permitted with certain exceptions (see Rule 8.504).

The time limits for appellate briefs differ between the courts. If appealing an order, decision or award of the WCAB, California Labor Code Section 5950 allows 45 days (no extra time for mailing) to file in the Court of Appeal. An Answer must be filed within 25 days unless additional time is provided. At the Supreme Court level, a petition for review must be filed within 10 days after the Court of Appeal decision is final in that court. (Rule 8.500) Any answer must be filed and served within 20 days after the petition is filed.

Rule 8.204 provides a guide for contents, form, length and attachments. In general, a brief should be limited to 14,000 words, including footnotes. When drafting my brief for the Supreme Court, several items were necessary for proper formatting. They included a Certificate of Interested Parties or Entities as well as a Certificate of Counsel identifying the exact word count in the document. Failure to provide these items could result in the document not being filed.

Tip: Have a clean record for appeal; review the California Rules of Court; know the time lines.


Know Your Case

It goes without saying, but I have seen too many briefs in which the drafting party did not understand the facts, law or court rules. I can surmise that in some instances an intern drafted a brief which was signed by counsel. An understanding of arguments both pro and con is important in drafting appropriate documents.

Developing a theme prior to trial and continuing the theme to the appellate level is helpful. It provides the flow and integration of the argument with the facts of the case. In any appellate brief, it is helpful to quote crucial portions of the record verbatim. By doing so, you focus the evidence in your favor.

In my case, many parts of the record were quoted at the WCAB level and the District Court level. Crucial portions of the record were quoted verbatim in my brief to the Supreme Court. By doing so, I hoped to focus the evidence to support our position that the Petition for Review should be denied.

Tip: Quote crucial portions of the record.


Know the Standard of Review

There are three main standards of review for appellate courts in California. They are abuse of discretion, de novo and substantial evidence. There is also Labor Code §5952, which limits the scope of review:

The review by the court shall not be extended further than to determine, based upon the entire record which shall be certified by the appeals board, whether:

(a) The appeals board acted without or in excess of its powers.
(b) The order, decision, or award was procured by fraud.
(c) The order, decision, or award was unreasonable.
(d) The order, decision, or award was not supported by substantial evidence.
(e) If findings of fact are made, such findings of fact support the order, decision, or award under review.

Nothing in this section shall permit the court to hold a trial de novo, to take evidence, or to exercise its independent judgment on the evidence.

One must argue the standard most appropriate to the facts and decision. One must consider whether the standard set forth in the opposition brief is the proper standard. If not, inform the court of the proper standard of review.

Abuse of Discretion: Appellate courts give deference to the lower court’s view of the evidence. It will reverse only if there is a clear abuse of discretion. The lower court’s decision will not be reversed, even if a different ruling would have been better. The lower court’s decision must be reasonable and based upon the evidence. The appellate court may reverse if the lower court used an incorrect legal standard.

De Novo: De Novo review or independent review is typically used in cases with purely legal issues and no facts are in dispute. Reinart v. IAC (1956) 46 Cal.2d 349, 358. The theory is the appellate court can determine the law, since the trial court is in no better position to determine what the law is. In such a case, the appellate court will make findings as if there was never a lower court ruling.

Substantial Evidence: This standard is used when reviewing the sufficiency of the evidence to support a fact in dispute. The appellate court will review the entire record to determine whether evidence of record supports the determination of the lower court. Substantial evidence means evidence “which, if true, has probative force on the issues. It is more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion…. It must be reasonable in nature, credible, and of solid value…” Braewood Convalescent Hosp. v. WCAB (1983) 34 Cal.3d 159, 164.

In the Travelers’ case, I argued the proper standard of review was substantial evidence. My hope was to create a higher threshold for the appellant.

Tip: Argue the proper standard of review if opposing counsel does not.


Pick Your Issues Carefully

In drafting a Petition for Writ of Review or an Answer to Petition for Writ of Review at the District Court level, it is important to carefully choose the issues you need to argue. Most appellate practitioners suggest limiting arguments to your top three or four. At the Supreme Court level, the practitioners recommend limiting your argument to a single issue which has important value to other cases. Make sure the issues raised on appeal were raised at the trial level. Issues not raised at trial or appeal to the WCAB are deemed waived.

Review Labor Code Sections 5950 et seq. when preparing a petition for writ of review, as those sections concern judicial review time limits, extent of review, etc.

In drafting the Answer to Petition for Writ of Review in the Travelers’ matter, I argued facts to show there was no prejudice to Travelers shown by the evidence of record. The WCAB had reversed the arbitrator’s decision and the appellate court ultimately denied the petition.

At the Supreme Court level, I argued, inter alia, the Court should not grant review since there was no important question of law and there was no conflict among lower court decisions. These were general issues, but important issues to be considered by the Supreme Court. The Supreme Court generally will not review lower court decisions unless there is an important question of law or conflict among lower courts. Then, I argued facts in other decisions to support our position.

Tip: State your best arguments and explain why and how your
opponent is wrong.


Allocate Sufficient Time to Prepare Your Brief

As a defense attorney, I must be able to estimate my time in order for my client to allocate proper reserves for the work. The time includes, research, drafting, re-drafting, proof reading, re-writing sections and putting together a final product. It is not unusual to expend numerous hours on the process at the Reconsideration level, the Court of Appeal level and the Supreme Court level.

At each level, the briefs are different. Not only may you be drafting a petition, but then you may find yourself filing an answer at a different level. That happened in the Travelers case. We filed the Petition for Reconsideration. Then, after the filing for the Petition for Writ of Review, we filed an Answer to Petition for Writ of Review. Travelers’ Petition for Review to the Supreme Court resulted in our filing an Answer to Petition for Review. We went from offense to defense during the process. The arguments and time lines changed each time.

At each level, your audience is different. The WCAB commissioners have a day to day knowledge of the system, while the judges at the higher court levels do not. Is there an important question of law, or is the issue an interpretation of the facts? The appellate courts tend to accept questions of law and deny issues based upon interpretation of the facts. This gives deference to the WCAB as the fact finder.

Since my staff and I had never drafted a brief for the Supreme Court, I began the process by reviewing briefs on various subjects filed with the Supreme Court. The review included an analysis of various successful writing styles and arguments. From there my brief began to take form. I reviewed each case cited by opposing counsel and formed arguments to counteract them.

Each brief requires different factors for a proper product. Thus, it is important to make sure you provide yourself with sufficient time to draft and edit your product. Make sure your office has a system in place to efficiently accept the product and produce a quality brief. The briefing process will require you and your staff to drop other work in order to focus on the task at hand. The staff should know the formatting requirements and filing requirements, as should you.

My Supreme Court “final” draft was reviewed by me, one of my associates and two paralegals. Each review resulted in some changes to the “final” draft. The 29 page final brief took multiple hours of proof-reading and editing to insure there were no “typos” and the citations were correct. Each step was slow and tedious. But the product was competed in a fashion for which we were all proud.

In summary, give yourself plenty of time to draft the product. Understand the appellate rules at each level and seek out answers to your questions by using the internet, books and conversations with others. Create a product for which you can be proud. Your client is counting on you.

About the Author:
Michael G. McDonald is the founder of McDonald Law Corporation in Concord, California and a Certified Specialist in Workers' Compensation Law, State Bar of California. He is a Director for the California Workers’ Compensation Defense Attorneys Association.

Michael G. McDonald, Esq.
McDonald Law Corporation
1800 Sutter Street, Suite 430
Concord, CA 94520-2563
Voice: (925) 363-4380
Fax: (925) 363-4352
Other locations: Sacramento, San Jose and Fresno www.mcdonaldlawcorp.com
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