California Appellate Practice: By the Numbers

By: Benjamin G. Shatz
– Daily Journal

"I was told there would be no math; that's why I went into law" is the trite refrain of many lawyers with liberal arts backgrounds. But, of course, law practice does require math: e.g., calculating damages by percentage of fault; calculating 10 percent interest per annum on most money judgments; and simple counting for calendaring and other quotidian tasks. There's simply no escaping numbers. As our MBA brethren like to say, "if you can't quantify it, you don't really understand it." So for those wishing to understand the California appellate courts and appellate practice - perhaps those studying for the appellate law specialization exam - what follows is a one, two, three and beyond, of some key numbers that govern civil appellate practice in California.

1: The number of our Supreme Court. Don't scoff. Some states (e.g., Texas) have more than one supreme court. Also the number of chances a respondent gets on appeal to present its case to the court in writing and at oral argument. The number of counties within the 4th District Court of Appeal, Division 3.

2: The number of justices needed in the Court of Appeal to win. Also the number of chances an appellant gets to present its case on appeal, i.e., the opening and reply briefs and opening and rebuttal at oral argument. The number of months (July and August) that the Supreme Court does not hear arguments.

3: The number of "courts of record" in which California's judicial power is vested ("the Supreme Court, the courts of appeal, and the superior courts"). The number of justices on a Court of Appeal panel. According to CRC 8.63(b)(3), the size of an "average-length record" on appeal (i.e., one volume of clerk's transcript or appendix and two volumes of reporter's transcript).

4: The number of votes needed for review in the California Supreme Court; also the number needed to win. The number of justices in each division of the 1st and 2d District Courts of Appeal. The number of counties in the 2nd and 6th District Courts of Appeal.

5: The number of appellate divisions in the 1st District Court of Appeal.

6: The number of Court of Appeal districts. The number of associate justices on the Supreme Court. The number of justices in the 4th District, Division 2. And VI is the article in the California Constitution covering the judiciary.

7: The number of justices on the Supreme Court. Also, the number of appellate oral arguments needed for state bar appellate law specialization certification. And the number of justices in the 6th District.

8: The number of divisions in the 2nd District. Also, the title in the California Rules of Court housing the Appellate Rules. The number of days to file an answer to a rehearing petition if the court requests an answer but does not set a due date. The number of justices in the 4th District, Division 3.

9: The number of appellate courtrooms in California (San Francisco, Los Angeles, Ventura, Sacramento, San Diego, Riverside, Santa Ana, Fresno, and San Jose). The number of counties in the 5th District Court of Appeal.

10: The number of days after filing a notice of appeal to file the record designation. The number of pages allowed as attachments to a brief. The number of days after finality within which to file a petition for review. The number of days within which to file a reply supporting a petition for review. The minimum ownership percentage of an entity that must be disclosed in a certificate of interested parties. The number of justices in the 5th District and the 4th District, Division 1.

11: The number of justices in the 3rd District Court of Appeal.

12: The number of counties in the 1st District. The number of years in an appellate justice's term for retention election.

13: The section in Article VI of the California Constitution containing the "miscarriage of justice" requirement necessary for a reversal. The minimum point size for fonts in briefs.

14: The number of days after a reply is filed (or could have been filed) to file an amicus brief in the Court of Appeal. Also the number of days to answer an amicus brief filed by the attorney general.

15: The number of days in a grace period (as lawyers call it) or default period (as clerks call it) after the due date for a principal brief within which the brief may still be timely filed. The number of days after a decision issues to file a rehearing petition, and to oppose an appellate motion. The number of days after a Supreme Court remand to the Court of Appeal to file a supplemental brief.

19: The number of intermediate appellate courts in California, counting each district and division, i.e., 5 in the 1st + 8 in the 2nd + 3 in the 4th + the 3rd, 5th and 6th. The section in Article VI providing the basis for the 90-day rule for issuance of opinions.

20: The number of days: from service of a notice of notice of appeal to file a cross-appeal; after a record is filed to request to borrow the appellate record from another party; to file a reply brief after the respondent's brief is filed; to file a publication request after an unpublished opinion is issued; to file an answer to a petition for review; to file a reply brief on the merits in the Supreme Court. The minimum number of days advance notice before oral argument. The number of dollars it costs (in some courts) to get a copy of an oral argument recording. The number of justices in the 1st District (4x5).

23: The number of counties in the 3rd District.

30: The number of days to file a respondent's brief after an opening brief is filed. Also the number of days from issuance of an opinion to its finality. The number of minutes each side is allowed for oral argument (in theory, at least). The number of days after finality of a Court of Appeal opinion to file a depublication request with the Supreme Court. The number of days to file an opening brief on the merits in the Supreme Court after review is granted; the time to file an answering brief on the merits; and the time to file an amicus brief in the Supreme Court after the reply brief is filed.

32: The number of justices in the 2nd District (4x8).

40: The number of days after the record reaches the Court of Appeal for filing the opening brief. The number of dollars it costs (in some courts) to get a copy of an oral argument recording. The typical time to file a petition for review after a decision (i.e., 30 days to finality, plus 10 days). The time after remittitur to file an appellate costs bill.

45: The number of days to dismiss or update the court after a notice of settlement is filed.

50: The maximum number of pages for a brief produced on a typewriter.

58: The number of counties in California, and thus the number of superior courts.

60: The number of days to file a notice of appeal after notice of entry is served. The number of days parties may stipulate for extensions of time for briefing in the Court of Appeal. The number of days for the Supreme Court to grant review after a petition for review is filed.

70: The number of days to file the opening brief from the filing of a record designation stating that appellant is not designating a reporter's transcript or clerk's transcript.

90: The number of days within which a court is to issue a decision after submission. The maximum number of days after a petition for review is filed for the Supreme Court to grant review (after granting itself an extension); or after finality of an opinion that the Supreme Court can take to decide whether to grant review on its own motion (after granting itself the maximum extension). And the time to file a cert petition to the Supreme Court.

100: The number of dollars for appellant's record fee.

105: The number of Court of Appeal justices.

180: The number of days to file a notice of appeal if notice of entry was not served.

300: The number of pages per volume of an appendix.

390: The filing fee for appearance as a respondent.

710: The filing fee for a petition for review.

775: The filing fee for a notice of appeal.

2,800: The word-count limit for a supplemental brief in the Supreme Court.

8,400: The word-count limit for a petition for review and for a reply brief on the merits in the Supreme Court.

14,000: The word-count limit for briefs in the Court of Appeal and opening and answering briefs on the merits in the Supreme Court.

Well, thanks a million for plowing through all that. Now you should not be at sixes and sevens with the basics of appellate numerology. And next time you need to catch 40 winks, try reading it again.