In our previous blog post, Avoiding Procedural Traps on Appeal: Part 1, we featured the first 10 tips recommended by Judge Rebecca Glasgow of the Washington State Court of Appeals and Ian Cairns of Smith Goodfriend to ensure you avoid procedural traps when filing an appeal. In this week’s post, complete your knowledge by reading the remaining essential tips! You can download the full presentation of our 7th Annual Advanced Appellate Program (Washington) here.

11. Failure to provide a sufficient record

1. “An insufficient record on appeal precludes review of the alleged errors.” Bulzomi v. Dep’t of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994).
2. Make an adequate record below, e.g., filing proposed instructions, making sure colloquies and rulings are recorded, and making offers of proof.
3. Designate that record in the appellate court. See generally Title 9 of the RAPs.

12. Inviting Error

1. “The doctrine of invited error ‘prohibits a party from setting up an error at trial and then complaining of it on appeal.’” State v. Wakefield, 130 Wn.2d 464, 475, 925 P.2d 183 (1996) (quoting State v. Pam, 101 Wn.2d 507, 511, 680 P.2d 762 (1984)).
2. Don’t raise arguments subject to an invited error rebuttal where possible.
3. Be prepared to explain how the alleged error was not actually “invited,” i.e., “an affirmative, knowing, and voluntary act,” State v. Mercado, 181 Wn. App. 624, 630, 326 P.3d 154 (2014), or to argue potential exceptions to the rule.
   

13. Judicial Estoppel

1. Sometimes arises for the first time on appeal if arguing a party is taking a position contrary to one taken below.
2. Preclusion of inconsistent positions regarding factual assertions.
3. Precludes a party from taking one position below and then later trying to gain a tactical advantage by taking an opposite position.
4. Does not prevent alternative arguments.

14. Raising new arguments on appeal

1. “As a general rule, appellate courts will not consider issues raised for the first time on appeal.” State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251 (1995) (citing RAP 2.5(a)).
2. If the time for doing so has not expired, consider filing a motion for reconsideration to more squarely preserve and frame appellate arguments.
3. Under limited circumstances a party may raise new arguments on appeal. See RAP 2.5(a). Chapter 11 of the WSBA Appellate Practice Deskbook has comprehensive lists of issues that can and cannot be raised for the first time on appeal.
4. There are also a number of case law exceptions to the general rule that new issues may not be heard on appeal. See § 11.4 of the WSBA Appellate Practice Deskbook.

15. Raising evidentiary issues on appeal

1. If a trial court overrules an objection, then appellant cannot raise alternative ground for excluding evidence on appeal. The appellant must stick with the argument raised below. State v. Mak, 105 Wn.2d 692, 719, 718 P.2d 407 (1986). See also § 11.7(1)(a)(ii) of the WSBA Appellate Practice Deskbook.

16. Law of the Case doctrine

1. On appeal. governed by RAP 2.5(c).

17. Raising new issues in a reply brief

1. “An issue raised and argued for the first time in a reply brief is too late to warrant consideration.” Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
2. Plan ahead! Make sure to include all assignments of error (and supporting arguments) necessary for the court to grant you the relief you are requesting, e.g., if asking for the reversal of a jury’s general verdict, challenge all claims that might support the verdict.
3. While parties cannot raise new issues in a reply brief, “parties can clearly cite additional authority on appeal in support of issues they have already raised.” Brutsche v. City of Kent, 164 Wn.2d 664, 671 n.3, 193 P.3d 110 (2008).

18. Incorporating arguments by reference

1. “We do not permit litigants to use incorporation by reference as a means to argue on appeal or to escape the [length] limits for briefs.” Diversified Wood Recycling, Inc. v. Johnson, 161 Wn. App. 859, 890, 251 P.3d 293 (2011).
2. Make space in your brief for important arguments. If you absolutely must, file a motion for an overlength brief rather than incorporate an argument by reference. See RAP 10.4(b).

19. Placing arguments in a footnote

1. After completing a draft of your brief, review footnotes to consider 1) whether they are necessary, and, if so, 2) whether they should be moved into the body of the brief.

20. Respondent’s failure to argue harmless error 

1. Respondent: be sure to consider harmless error
2. See, e.g., State v. Charlton, No. 55544-1-II, 515 P.3d 537, 547 (2022).

The spotlight today is on Michael Asimow!  Michael will be presenting at our upcoming Administrative Law Hearings: A Beginner’s Guide on January 23 and January 25, 2024. This two-part webinar will provide the fundamentals of California administrative adjudication, everything from the Administrative Adjudication Bill of Rights to discovery and the prehearing process.

Praised by audiences for his excellent knowledge and memorable presentation, Michael frequently speaks at our administrative law programs, including Writs of Administrative Mandamus 101: The Nuts and Bolts in 2022 and Administrative Law Hearings: A Beginner’s Guide (California) in 2021.

Michael teaches at Santa Clara University School of Law. He was previously a long-term visiting professor at Stanford Law School and is a professor of law emeritus at UCLA.

In the area of administrative law, he is a co-author of the California Practice Guide–Administrative Law, published by the Rutter Group. He also co-authored a law school course book, State and Federal Administrative Law (5th ed., 2020). Michael has written numerous articles on state and federal administrative law as well as comparative administrative law. He is also a consultant to the Administrative Conference of the United States.

Looking forward to your discussion on administrative law, Michael!

Seeking a comprehensive review of proper appellate procedure in Washington state court? Hear from the experts!

Below are the first 10 tips recommended by The Honorable Rebecca Glasgow and Ian Cairns of Smith Goodfriend during our 7th Annual Advanced Appellate Program (Washington), which is available for download here.

1. Failure to timely a notice of appeal
   1. Generally, the notice of appeal is due within 30 days of entry of the appealed order. See RAP 5.2(a).
   2. Exceptions to the 30-day rule:
      1. Certain posttrial motions extend the time for filing (e.g., a CR 59 motion for new trial or reconsideration, etc.). See RAP 5.2(e); RAP 2.4(c).
      2. Statutory deadlines. A list of applicable statutes is available in the drafters’ comments to RAP 5.2 and in Tegland’s Appellate Practice Deskbook.
      3. An order does not have to be labeled a “final judgment” to be one.
2. Appeal as a matter of right
   1. See RAP 2.2(a) for a list of appealable orders.
      1. If an order is not on this list, it is not appealable and a party must instead seek discretionary review under RAP 2.3.
   2. For review of decisions of courts of limited jurisdiction, see RAP 2.2(c).
3. Failure to timely file a notice of discretionary review
   1. A notice of discretionary review is due 30 days from any non-appealable act by the trial court. See RAP 2.3. An “act” does not have to be memorialized by an order to start the clock.
4. Respondent’s failure to timely cross-appeal
   1. The “appellate court will grant a respondent affirmative relief by modifying the decision which is the subject matter of the review only (1) if the respondent also seeks review of the decision by the timely filing of a notice of appeal or a notice of discretionary review, or (2) if demanded by the necessities of the case.” See RAP 2.4(a).
   2. A respondent presenting an alternative basis for affirmance, as opposed to seeking affirmative relief, need not cross-appeal. See McGowan v. State, 148 Wn.2d 278, 287-88, 60 P.3d 67 (2002).
5. Failure to designate orders in a notice of appeal.
   1. The appellate court will review orders (or portions of orders) that have been designated in the notice of appeal or notice of discretionary review. See RAP 2.4(a).
   2. If a trial court order or ruling is not designated in the notice, the appellate court will review if the order “prejudicially affects the decision designated in the notice.” See RAP 2.4(b).
6. Jurisdiction
   1. Minimum dollar amount ($200) limits jurisdiction in Court of Appeals and Supreme Court. RCW 2.06.030; RCW 2.04.010. “Original amount in controversy”
   2. Subject matter jurisdiction can be raised at any time
7. Aggrieved party and standing
   1. Only an aggrieved party may seek appellate review. See RAP 3.1.
   2. An aggrieved party is one whose proprietary, pecuniary, or personal rights are substantially affected. Randy Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 150, 437 P.3d 677 (2019).
8. Mootness/Ripeness
   1. “A case is moot if a court can no longer provide effective relief.” State v. Gentry, 125 Wn.2d 570, 616, 888 P.2d 1105 (1995).
   2. For relevant mootness rules, see RAP 8.3; 18.12,
   3. Parties seeking dismissal should bring a motion if a case becomes moot mid-appeal.
   4. Ripeness generally arises in criminal cases where there is a vagueness challenge, in cases involving the Administrative Procedures Act, and in cases involving the constitutionality of statutes.
9. Failure to assign error
   1.  Briefs should include concise assignments of error. See RAP 10.3(a)(4).
   2. Provide separate assignments of error for each jury instruction improperly proposed, given, or refused. See RAP 10.3(g).
   3. Unchallenged findings of fact are verities on appeal.
   4. The appellate court does have discretion to review unassigned errors “if the issues are reasonably clear from the arguments in the brief, the opposing party has not been prejudiced, and the court has not been overly inconvenienced.” State v. Croy, 3 Wn. App. 2d 1067, 2018 WL 2437316, at *3 (2018) (citing State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995)).
   5. However, to be safe, make sure to include assignments of error and err on the side of being overinclusive in assignments. Include assignments of error that are specific without including argument.
10. Failure to support assignments of error
    1. “A party that offers no argument in its opening brief on a claimed assignment of error waives the assignment.” Brown v. Vail, 169 Wn.2d 318, 336 n. 11, 237 P.3d 263 (2010).
    2.  After finishing a draft of the opening brief, compare the assignments of error to the arguments to confirm each assignment is supported.
    3. Include references in the assignments of error to the brief sections with the corresponding argument and vice versa.

See the final 10 tips in our next blog!

Justice Jesse G. Reyes of the Illinois Appellate Court (1st District) is running for the Illinois Supreme Court 2024 bench!

Justice Reyes gave an enthralling presentation at our program, Preserving the Trial Record for Appeal in Illinois Civil Cases. Justice Reyes has been overwhelmingly praised for his extraordinary insight into the legal system. He has been a pillar of the community and a member of the judiciary since 1997, serving both as an associate and elected judge of the Circuit Court of Cook County. In 2012, Justice Reyes became the first Latino to be elected to the Illinois Appellate Court.

Raised in humble beginnings in Chicago’s Pilsen and Bridgeport neighborhoods, Justice Reyes aspired to be a lawyer for as long as he could remember. Justice Reyes’s intellect and ambition are bolstered by his voracious appetite for reading books and sharing stories with his vast associations.

Justice Reyes is a recipient of several awards for distinguished service to the bench and bar including the Justice John Paul Stevens Award by the Chicago Bar Association, the Charles E. Freeman Judicial Merit Award by the Decalogue Society of Lawyers, and the Vanguard Award by the Hispanic Lawyers Association of Illinois.

The primary election will occur on March 19, 2024. Go vote! There is no one more qualified and dedicated to public service than Justice Jesse G. Reyes!

One of our favorite speakers, NADINE WICHERN, is running for judge for the Circuit Court of Cook County! We highly recommend Nadine for the judgeship!

Nadine has frequently spoken at our programs, enlightening audiences about appellate litigation. These programs include Preserving the Trial Record for Appeal in Illinois Civil Cases, Persuasive Appellate Brief Writing, and our Appellate Practice Boot Camp.

Nadine has been lauded as an exceptional speaker and attorney, with a wealth of knowledge. She has an innate ability to connect with the audience at teach attorneys what they need to know about the subject matter in an understandable, clear and concise manner.

For more than two decades, Nadine has lived in Chicago and has built a prominent career in law dedicated entirely to public service. Nadine was selected for a prestigious clerkship on the Seventh Circuit Court of Appeals and a fellowship before the United States Supreme Court. She has also litigated scores of appeals while serving as Chief of the Civil Appeals Division in the Illinois Attorney General’s Office and the City of Chicago’s Department of Law.

Primary elections are on March 19, 2024. Support Nadine at the polls and VOTE!

This month’s Litigation Tip comes directly from one of our favorite boutique litigation firms in San Francisco: Lewis + Llewellyn.

Founding Partners Marc Lewis and Paul Llewellyn spoke at our litigation related seminars many years ago, and we frequently have attorneys from the firm speak at our annual Superior Court and Federal Court Boot Camps as well as our Depo training programs, including Evangeline Burbidge, Ryan Erickson and Becca Furman.

California Adopts New Rule for Initial Disclosures in Discovery

On September 30, 2023, California Governor Gavin Newsom signed Senate Bill No. 235 (SB235) into law, which amends California Code of Civil Procedure section 2016.090.  It institutes a new procedure for initial disclosures of information and documents.  Beginning on January 1, 2024, parties will be required to make initial witness and document disclosures within 60 days of another party’s request.  Failure to comply or act in good faith with the new law will result in a court-imposed sanction of $1,000.

The initial disclosures shall include:

“The names, addresses, telephone numbers, and email addresses of all persons likely to have discoverable information … that the disclosing party may use to support its claims or defenses, or that is relevant to the subject matter of the action or the order on any motion made in that action.”

“A copy, or a description by category and location, of all documents” and

Any insurance policies that may be used “to satisfy, in whole or in part, a judgment entered in the action or to indemnify or reimburse for payments made to satisfy the judgment.”

The new law also clarifies that “a party is not excused from its initial disclosures because it has not fully investigated the case, because it challenges the sufficiency of another party’s disclosures, or because another party has not made it’s disclosures.”  The rule will remain in effect until January 1, 2027.

These changes have the potential to streamline fact investigations and reduce the amount of written discovery exchanged between parties.  The new timeline will also require counsel to evaluate their position and case strategy much earlier to ensure all relevant information is captured in the initial disclosure.  Counsel would be well-advised to familiarize themselves with the new rule, which may catch opposing counsel off guard.

Thank you to everyone at Lewis + Llewellyn for allowing us to re-publish your Litigation Tip of the Month and most especially for speaking at our litigation seminars year after year!