C. Restrictions On Advocacy In Court Proceedings, Cal. Prac. Guide Prof. Resp. Ch.

8-C

Cal. Prac. Guide Prof. Resp. Ch. 8-C

California Practice Guide: Professional Responsibility
Paul W. Vapnek, Mark L. Tuft, Ellen R. Peck and Justice Howard B. Wiener (Ret.)
Chapter 8. Advocacy And Representation
C. Restrictions On Advocacy In Court Proceedings

6. [8:256] Duty to Disclose Adverse Law: In presenting a matter to a tribunal, attorneys must not:
Seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law (CRPC 5
200(B));
Intentionally misquote to a tribunal the language of a book, statute or decision (CRPC 5200(C));
Cite as authority, knowing its invalidity, a decision that has been overruled or a statute that has been
repealed or declared unconstitutional (CRPC 5200(D)).
The duties so imposed are part of the broader duty to employ only such means as are consistent with the
truth. [CRPC 5200 (A); Bus. & Prof.C. 6068(d); see also ABA Model Rule 3.3 (candor toward tribunal);
and Gonzalez-Servin v. Ford Motor Co. (7th Cir. 2011) 662 F3d 931, 934The ostrich-like tactic of
pretending that potentially dispositive authority against a litigants contention does not exist is as
unprofessional as it is pointless (internal quotes omitted); Batt v. City & County of San Francisco (2007)
155 CA4th 65, 82, 65 CR3d 716, 729, fn. 9It is good ethics and good tactics to identify the adverse
authorities ... and then argue why they are distinguishable or unsound (emphasis in original) (citing ABA
Model Rule 3.3 and criticizing plaintiffs counsels appellate brief for ignoring cases cited by defense counsel
and trial court)]

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B. Preparing And Filing Motions, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-B

Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-B

California Practice Guide: Civil Procedure Before Trial
Hon. William F. Rylaarsdam, Hon. Lee Smalley Edmon, Contributing Editors: Atty. Richard J. Burdge, Jr., Atty.
Richard B. Goetz, and Atty. David J. Pasternak
Chapter 9. Part I Law And Motion
B. Preparing And Filing Motions

[9:77] Be up front about opposing authority: If there are cases which appear to be against you, be
up front about them. Obviously, attempt to distinguish them. But, in any case, be sure to cite them.
There are several reasons: First, you owe a duty to the court to cite all relevant authority, including
adverse authority (CRPC 5200 prohibits lawyers from attempting to mislead the judge ... by an artifice
or false statement of fact or law).
Second, by citing the adverse authority before your opponent does, you may take some of the steam
out of his or her arguments. Finally, whether or not your opponent cites the case, the judge may be aware
of it, and may view your failure to cite it as incompetence, or as an attempt to mislead the court. A
lawyers reputation, whether for good or bad, is earned.

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B. Approaches To Briefwriting, Cal. Prac. Guide Civ. App. & Writs Ch. 9-B

Cal. Prac. Guide Civ. App. & Writs Ch. 9-B

California Practice Guide: Civil Appeals and Writs
Jon B. Eisenberg, Ellis J. Horvitz, and Justice Howard B. Wiener (Ret.)
Chapter 9. Appellate Briefs
B. Approaches To Briefwriting

(6) [9:58] Distinguish conflicting authorities: Be up front about cases that appear to be against your
position. Obviously, attempt to distinguish them. But, if they are truly on point, do not ignore them!
Your failure to confront unfavorable relevant holdings will be regarded as an attempt to deceive and
mislead the court.
It may well cause you to lose the case, and may even subject you to monetary sanctions! [Pierotti v. Torian
(2000) 81 CA4th 17, 32, 96 CR2d 553, 563appellant and counsel assessed $32,000 sanctions for (among
other things) utter failure to discuss the most pertinent legal authority, indicating they subjectively
prosecuted the appeal for an improper purpose; Alicia T. v. County of Los Angeles (1990) 222 CA3d 869,
884886, 271 CR 513, 520521appellants counsel assessed $750 sanctions for persistent citation of
depublished case and failure to address controlling case even after respondent pointed out the errors; see also
9:294]

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C. Use And Citation Of Legal Authority, Cal. Prac. Guide Fed. 9th Cir. Civ. App....

Cal. Prac. Guide Fed. 9th Cir. Civ. App. Prac. Ch. 8-C
California Practice Guide: Federal Ninth Circuit Civil Appellate Practice
Christopher A. Goelz and Meredith J. Watts, Consulting Editor: Cole Benson
Chapter 8. Appellate Briefs
C. Use And Citation Of Legal Authority

(1) [8:228] Discuss and distinguish conflicting authorities: It is unprofessional to omit mention of binding
authority contrary to your position (see ABA Model Rules of Prof. Conduct, Rule 3.3(a)(3); CRPC 5
200). Contrary authority should always be raised and distinguished, if at all possible.
If directly contrary authority is not distinguishable, your brief must explain either:
why it is not binding;
why it is dicta; or
why it is wrong.
This is the time to face up to such problems. Even if opposing counsel fails to locate conflicting authority,
the court very probably will find it.
(2) [8:230] Duty to cite all controlling authority: As officers of the court, counsel owe a duty to bring
controlling authority to the courts attention. [See ABA Model Rules of Prof. Conduct, Rule 3.3; CRPC 5
200] It is also good practice to mention relevant contra authority from other circuits, as a courtesy to the
court.
If the court fails to notice such authority, you risk misleading the panel by omission. [See International
Evangelical Church of Soldiers of the Cross of Christ v. Church of the Soldiers of the Cross of Christ of State
of Calif., 54 F3d 587, 591 (9th Cir. 1991) (controlling case not cited)extraordinary unhelpfulness of the
briefing ... contributed to (district courts) misimpression of California law (parentheses added)]
e. [8:234] Use of quotations: Many judges and clerks like to see the actual wording of a critical holding rather
than relying upon counsels paraphrase. Be sure all quotes are followed by jump cites to the actual page in the
reporter from which they are taken.
(1) [8:235] Avoid misleading quotations: Although advocacy requires choosing quotes that support your
positions, be careful not to edit quotations in such a way as to distort their meaning.
Again, you must assume your readers will check your cites. If they find you are editing unfairly, it will affect
your credibility. [See Batchelder v. Kawamoto, supra, 147 F3d at 918919 (court comments on partys
attempt to mislead this court); Johnson v. Multnomah County, OR, 48 F3d 420, 423, fn. 4 (9th Cir.
1994)court observed that party omitted critical footnote and failed to note omission]
i. [8:240] Signal when using dictum: When the language you quote or cite is arguably dictum, be candid with
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C. Use And Citation Of Legal Authority, Cal. Prac. Guide Fed. 9th Cir. Civ. App....

the court about the weight of this authority.

[8:241249] Reserved.
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