You Just Won! Don't Forget the Loose Ends

Article by Paul Couenhoven

Despite the long odds of winning an appeal, maybe, just maybe, you will soon join the hit parade and win a case. So, you celebrate with a toast of champagne, ship the transcripts to the client and move on to your next case. Right?

Well, maybe. Winning in the court of appeal does not end your work on a case. Proper representation of your client often requires post-appeal work to ensure the remedy ordered by the court is enforced.

If the court of appeal has ordered the superior court to take some specific action - award additional credits, amend an abstract of judgment, or recalculate a sentence - you should monitor the case to make sure the ordered action takes place. If the client was represented by the public defender or appointed counsel, which is usually the case, a letter or phone call to trial counsel may be all that is needed. Send trial counsel a copy of the opinion and get their commitment to handle the matter after the remittitur issues. Just in case, follow up later with a friendly inquiry to find out what happened.

If counsel is unavailable for some reason or you believe s/he will be unreliable, you should check with the superior court after the remittitur issues to see if an amended order has issued or a court date set to comply with the appellate court's order. If it is a Santa Clara County case, you could call our office to request that one of our paralegals check the court file for an amended abstract or other order. It often helps to write a post-remittitur letter to the superior court judge who had the case asking that the matter be calendered or an amended order be issued. If after a phone call or a letter to prior trial counsel you suspect that some additional work on your part may be necessary to ensure the appellate court's order is carried out, you can delay the filing of your final claim to add the post-remittitur time spent representing your client. The bottom line to affecting the client's custodial status is to make sure the custodian actually receives documentation from the trial court that shows that a sentence has been vacated or reduced.

If the court of appeal issues an order to show cause on a habeas petition, your primary responsibility is to make sure that reliable counsel is appointed to represent your client in the superior court. Check with your SDAP buddy for suggestions on how to ensure competent counsel is appointed to represent your client in a habeas matter. If you want to handle the matter yourself, make sure the superior court calendars the case after the remittitur issues. I once had a case in San Francisco County which languished for months after the court issued an order to show cause because I did not press the superior court to calendar the case for a hearing. The case was finally assigned to a judge because the prosecutor told the calendar judge about the court of appeal order. I failed in my responsibility to ensure the superior court took appropriate action.

The opinion is just a piece of paper. As the attorney, it is your responsibility to make sure the court of appeal's order is enforced. When you win, remain involved with the case to ensure your client receives the benefit ordered.

March 16, 2004


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