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self-study / Practice and Pleading

Dec. 18, 2023

Throwing the book at improper citations

Zareh Jaltorossian

Partner, KP Law


As an appellate lawyer, I’m often asked to review and comment on briefs written by trial lawyers. These run the gamut from simple motions in limine to complicated motions for summary judgment and appellate briefs. Many of these briefs exhibit the same mistakes. Though easy to fix, these common mistakes diminish the quality of your brief. Below are some of the main problems I see and how you can avoid them.

Pointless throat-clearing and definitions

A brief is your opportunity to communicate with the court, and you have limited space to do it. Avoid wasting space by anachronistic formalisms and useless definitions. Here is an example of the kind of opening sentence I typically see: “Plaintiff John Smith (“Plaintiff” or “Mr. Smith”) hereby respectfully submits this opposition to the demurrer filed by Defendant Apple Corporation (“Defendant” or “Apple.”)” This sentence communicates no information. You don’t need to define the parties after identifying them. And the court knows you’re opposing a demurrer. Don’t squander your opportunity to say something impactful out of the gate.

Neutral headings

Headings are key to organization and clarity. But they also should give the reader a roadmap of your legal argument. Your headings should not just inform the reader of the subject matter discussed under them. They should be phrased persuasively to propel your argument. For example, “Standard Of Review” is not as effective a heading as, “This Court Reviews The Trial Court’s Order De Novo.” The headings in your factual and procedural history are no exception. Make all your headings persuasive.

Failure to apply the standard of review

Whether a brief is for a trial or appellate court, it’s critical not only to state the applicable standard of review, but also to adhere to and apply it throughout your brief. I regularly review oppositions to summary judgment motions. These oppositions usually devote considerable space to discussing the governing legal standard, reminding the court that it must deny summary judgment so long as there is a triable issue of fact. But lawyers frequently forget to adhere to the standard of review later in their brief. For instance, I’ve often seen some variant of the following heading in an opposition to a summary judgment motion: “The Evidence Overwhelmingly Proves That Defendant’s Stated Reason For Termination Was Pretextual.” This heading is doubly problematic – the writer has not only failed to adhere to the standard of review (whether there are triable issues), they have undertaken a burden to prove much more than they must to defeat summary judgment. This problem pervades appellate briefs also. For example, an appellate brief will recite that the order the appellant is challenging is reviewed for abuse of discretion. This requires the appellant to demonstrate that the trial court acted arbitrarily or irrationally. The legal argument then criticizes the trial court for committing legal error. By abandoning the standard of review, the appellant has failed to carry their burden of demonstrating that reversal is warranted under the correct standard. It’s crucial to state the right standard of review and stick to it throughout your brief.

Improper citation format

Most appellate lawyers have some writing pet peeve. Many are dogmatic opponents of passive voice, so they’ll reach for the red marker when they see a sentence like, “The complaint was filed by Plaintiff on March 1, 2023.” Others are adamant that authors should refer to all parties by name, not “Plaintiff” or “Defendant.” Some insist that a brief’s conclusion should say something more than just the relief sought. I regard these as stylistic matters left to a lawyers’ judgment. I generally write in an active voice, but a passive voice can be useful too: “Mistakes were made,” for instance, because you have some reason to conceal who made them.

But there is one failing deserving of universal condemnation! No, not using exclamation points! I’m talking about crazy citation formats.

There are two citation systems California practitioners use – Harvard Bluebook and California Style Manual. I often see briefs, however, that combine the two in ad hoc and arbitrary ways. Litigators, untethered to either system, seem to be making up their own citation styles as they go along. This produces briefs with internally inconsistent citation formats of infinite varieties.

A simple tip to make your life easier – for trial court briefs, use Bluebook. The California Style Manual format should be used only for California Court of Appeal briefs. It is a cumbersome and more difficult system than Bluebook. Here’s an example of a Bluebook cite: Smith v. Jones, 10 Cal.App.4th 500 (2000) (Bluebook format should be used in all courts except the California Court of Appeal). The short form of this would be: Smith, 10 Cal.App.4th at 505.

The California Style Manual version of the same cite is: (Smith v. Jones (2000) 10 Cal.App.4th 500 (Smith) [Bluebook format should be used in all courts except the California Court of Appeal].)

You see how much more cumbersome this format is. The California Style citation is in parentheses, with brackets within the parentheses for the “parenthetical.” And the abbreviated case name is in its own parentheses. Per the California Style Manual, the short form of this citation is: (Smith, supra, 10 Cal.App.4th at p. 505.) Again, much more complicated than the Bluebook short form. There are other differences between these two systems, but I’ll spare you the full chronicle of these Byzantine delights.

Suffice to say, the briefs I encounter violate each system’s rules in an endless profusion of creative and agonizing ways, resulting in confusion and clutter.

I know what you’re thinking: there has to be a better way! There is. For trial court briefs, stick with the simpler Bluebook format we all learned in law school. For appellate briefs, follow the California Style Manual. Don’t combine the two systems. And when in doubt, call an appellate lawyer for advice. We’re always happy to talk citation format.


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