Timeliness and Sixth District Policies Regarding Extensions of Time

By Michael Kresser, Executive Director

In January 2006, it will be three years since Conrad Rushing became Presiding Justice of the Sixth District Court of Appeal. One notable change has been the timelier handling of criminal appeals by the court. Prior to Justice Rushing's promotion to Presiding Justice, the Sixth District was one of the slowest appellate courts in the state in deciding criminal appeals. It was not unusual for cases to take two years to reach decision, and some took three years or more. There was a substantial backlog of fully briefed cases that did not receive judicial attention for many months.

Justice Rushing was a Santa Clara County Superior Court judge for 24 years before his appointment to the Court of Appeal in April 2002. During his tenure in superior court, Justice Rushing served in various administrative capacities as Presiding Judge of the entire court, Presiding Judge of the Civil Division, Supervising Judge of the Criminal Division, and Presiding Judge of the Appellate Department.

This substantial judicial administrative experience was brought to bear on the problems of the Sixth District Court of Appeal. All phases of the appellate process were scrutinized: record preparation, briefing, and the court's decisional process. Changes to reduce unnecessary delay in each phase of the appellate process were instituted. As a result, the backlog of briefed cases not being worked on by the court has been eliminated, and the average time it takes the court to issue an opinion in a criminal case has declines substantially.

The quicker pace of adjudication in the Sixth District has in turn led to concerns expressed by some SDAP panel attorneys about Sixth District policies regarding extensions of time to file briefs. These attorneys are concerned about denials of what they feel are justified extension requests, concerned about dealing with uncontrollable jamups in their caseloads, and concerned about the court's level of understanding of some of the real world problems of solo appellate practitioners, who often have limited or no secretarial or administrative support.

At a recent meeting with Presiding Justice Rushing, SDAP staff attorney Vicki Firstman and I discussed the realities of panel members who devote all or most of their practice to appointed appellate work. Such realities include the need to have an inventory of a number of cases to make the practice financially viable, the fact that the hourly rate is too low to cover overhead, making support staff scarce, and the fact that most events which start our clocks ticking, like the filing of records, respondent's briefs and opinions, are not in our control or predictable. I stressed that solo practitioners are not like civil law firms, which can tap into greater resources to finish a project quickly when put under a tight deadline. I also explained that if panel members felt that the extension policy of the Sixth District was too restrictive, many of them could reduce their level of activity in the District due to their membership on other appellate project panels. Ms. Firstman addressed the time pressures felt by our dependency specialists. While the Presiding Justice was interested in the difficulties faced by the panel, he also reiterated that he felt that many extension requests failed to demonstrate good cause.

When extension requests are denied, we are frequently called by panel members to discuss what to do next. In most cases, we are able to help avoid what nobody really wants: the court's instruction to us to vacate the panel attorney's association due to failure to file a brief. After dealing with a number of these situations, and after our recent discussions with the Presiding Justice, we have a few recommendations for panel attorneys on how to avoid time problems in the Sixth District.

1. Do not go into Rule 17 time, unless it is due to denial of an extension request.

One way in which attorneys unintentionally use their rule 17 time is by sending an extension request the day before or on the due date, so that the appellate court issues a rule 17 notice before receiving the extension request. If you are very near or on the due date and just mailing an extension request, try calling the clerk's office (408-277-1004) and letting the clerk know the extension request is in the mail. This might help you avoid issuance of the rule 17 notice.

Attorneys sometimes intentionally go into rule 17 time when an attorney has a substantial part of the brief completed, figuring the brief can be finished in another week or ten days, and decides to avoid the paperwork of an extension request. Problems arise with this approach when the attorney suddenly receives opinions in multiple cases, or becomes ill, or is denied an extension request in another case, and suddenly needs an extension.

There is a definite difference in opinion between the current and former Presiding Justices of the Sixth District Court concerning an attorney going into rule 17 time. Former Presiding Justice Cottle said he did not mind attorneys going into rule 17 time, as long as they filed the brief in before it expired. Presiding Justice Rushing stated at our 2004 seminar that attorneys should avoid going into rule 17 time. Part of the reason, I'm sure, is that inevitably not everyone gets the brief in on time. But I think his position also reflects his more active managerial approach to appellate administration. If a brief is not done within the time allowed by the rules, he expects a showing of good cause why not.

From counsel's standpoint, the main reason not to go into rule 17 time is that it is your safety net if an extension request is denied. If you have not previously gone into rule 17 time, you still have 30 days to file the brief if an extension request is denied. If a rule 17 notice has already been issued, your brief is due immediately upon denial of the extension request. In these situations, the best we can generally do is buy the panel attorney a few days more to file the brief before we are told to vacate the association.

2. Make sure you show good cause.

The basis for the extension request of many attorneys essentially consists of a list pleadings filed in the preceding thirty days in numerous other cases the attorney is handling. Generally, most of these cases are not Sixth District cases. While such a request demonstrates that the attorney has been busy and productive, it does not necessarily demonstrate good cause. Generally, a list of things done in other cases should contain some explanation of why work in those cases were accorded priority over preparation of the brief in the present case; e.g., the arrival of a long awaited augmentation in a case in which you were appointed before you were appointed in the present case, or the need to file a petition for rehearing or review, tasks for which time could not be extended.

The simple listing of work done on many other cases also creates the inference that you have not been doing anything on the present case in the last thirty days. Dispel that inference if you can by saying you have completed your review of the record, or identified and researched several issues, or have drafted a portion of the brief, or whatever you have accomplished. Do not make it seem like the case is on the back burner if it is not.

In some cases in which extensions have been denied, we have talked to our panel attorney and discovered additional facts supporting the request which the attorney did not include. In such cases, we have encouraged the panel attorney to make a second request which includes all the helpful facts. This has been successful in some instances.

3. If the brief has been long delayed, commit to completing the brief within the requested time, or ask for less than 30 days.

If you know that you are testing the court's patience with a third or fourth extension request, a commitment to completing the brief within the requested time may help demonstrate that you have fully committed yourself to finishing the brief, especially if it is coupled with an indication that you are in a position to devote all or substantially all of your time to the task. Also, if you are far enough along in your work on the brief as to be certain of your ability to finish it in less than 30 days, a request for less than 30 days may meet with a more favorable response.

4. Be careful about personal reasons.

In the universe of bad extension requests, there are both those that say too little in terms of showing good cause, and those that say too much about the personal life of the attorney. Requests of the latter kind have cited factors like the illness of a pet, the need to file tax returns, the visit of in-laws, or an ongoing home remodeling. Such reasons are not persuasive, since it is assumed that an attorney who accepts the burden of representing a client has sufficient available time and energy to handle the case in a reasonable timely fashion. While events like the need to provide emergency care for a family member do unfortunately occur, I think it is important in such situations to give some indication when you will be able to return to your practice.

5. Do not ask for more than 30 days.

Some attorneys, believing that they can state with certainty that they will not finish the brief for at least 60 days, decide to ask for an extension of that length. Do not ask for it, because almost certainly it will not be granted. And if the request is denied in its entirety, rather than granted for only 30 days, the rule 17 notice will issue and suddenly you will have to do in 30 days something you did not think you could do within 60 days.

Conclusion

As part of the more efficient management of the Sixth District docket, standards for the granting of appointed counsel's requests for extension of time have been tightened. Attorneys need to realize that a certain amount of time is allocated for the performance of their task, and to go beyond that requires a showing of good cause. While some panel attorneys have expressed concern over the perceived inability to obtain more than two extensions to file the opening brief, if two extensions are obtained and rule 17 period is added, 130 days will have elapsed from the filing of the record. This is a reasonable period for preparation of the opening brief in the great majority of cases, and many cases could and should be handled more expeditiously.

As busy professionals with many demands on our time, we are all concerned with having enough time to prepare a quality brief for each client. However, we also need to see our part in the appellate process in the context of the expectations of our clients and the court. The client has a right to a reasonably timely resolution of the appeal, and to get whatever relief is forthcoming as soon as reasonably possible. The court expects appointed counsel to be diligent in the performance of their duties to their clients.

However, effective management of the appellate docket does not require rigid time limits, regardless of the circumstances of the case or counsel. There must be flexibility to accommodate the truly extraordinary cases, whether they are extraordinary due to sheer record length, complexity or number of issues, or unfortunate events such as counsel's illness. I think there is such flexibility, if attorneys take some time in explaining the need for requested extensions.

December 7, 2005

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