COVID-19

HOW COVID-19 AFFECTS CALIFORNIA'S APPELLATE COURTS

No one’s immune to the coronavirus, but California’s appellate courts appear resistant to its effects on their operations.

While California’s trial courts are almost completely shut down for civil lawsuits, and some U.S. District courts have limited their operations, the state and federal courts of appeal continue their work mostly unabated – with some minor changes.

In the Ninth Circuit, public access to the courthouse is restricted and the court encourages litigants to file papers electronically, which most attorneys were already doing. Litigation continues on schedule, though for oral arguments scheduled through May 2020, the court’s panels will decide – on a case by case basis – whether to hold them in person, livestream them, or cancel them all together. So far, livestreaming is the most popular choice.

For an example of what Ninth Circuit argument looks like when held over the internet using videoconferencing software, click here. This video raises an important point about advocacy via video. In that video, one attorney chooses to turn his camera on, while the other uses only audio. Relying on audio is less effective and not as engaging as letting the judges see one’s facial expressions. We recommend appellate advocates appear by video – dressed professionally, sitting in a professional environment – whenever possible.

The Ninth Circuit is also extending non-jurisdictional filing deadlines for briefs and motions. Citing COVID-19 in an attorney’s request for extensions will automatically extend the time to file a brief by 60 days, after which the court can grant more extensions by motion. Jurisdictional deadlines, however, are unaffected: Due dates for notices of appeal and petitions for review remain the same.

In state court, the six districts of California’s appellate courts set their own rules, but each is operating without significant interruption. After vacating some oral argument dates in March, the Fourth District’s divisions one and three, for example, are now allowing attorneys to argue cases by telephone – mandating it, in fact. One of our firm’s oral arguments was rescheduled from the end of March to the end of April, which gives some idea of the typical delay. In appellate litigation – where cases can take up to 18 months to complete – a 30-day continuance of oral argument is a negligible setback.

One significant change in the Fourth District: All deadlines set by the Rules of Court which would have fallen from April 19th to May 18th have been automatically extended for 30 days. If asked for additional extensions, the court would probably grant it.

Appellate courts, operating at a more leisurely pace than the trial courts with a much smaller docket, are resistant to COVID-19, but not immune. And the judges are human, of course; they understand the impact of this pandemic on lawyers and parties, and they will make allowances where appropriate.

Our firm handles appeals in all California appellate courts, the Ninth Circuit, and the California Supreme Court. Let us know if you have questions about appellate litigation or need help on an appeal.

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