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socrateaser
socrateaser, Attorney
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Hello, I am fighting a speeding ticket in the California.

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Hello, I am fighting a speeding ticket in the California. I challenged the ticket in the court and lost. I filed for an appeal and I now have to write an "Opening Brief", pursuant to Rule 8.882 of the California Rules of Court. I am challenging the verdict because when it was my turn to testify.the judge interrupted me mid stream, asked me several questions, none of which he allowed me to answer and then ended my testimony and handed down his verdict. I had very specific evidence and questions which I was expecting to be able to present before the judge unceremoniously cut me off. I understand that in the appeal I can not present any "new evidence", which poses a problem, since the judge cut me off. Can you let me know how best to handle this? So two questions: (1) how do I write an "Opening Brief" and (2) how do I mention the above information, stating my case, without violating the premise of not introducing new evidence?

Hello,

You asked:

(1) how do I write an "Opening Brief" and

A: Your question is extremely broad. I would have to write 10,000 words. If you are willing to visit the public law library, I can direct you to the most well-respected resources. However, I cannot rewrite their text in this forum without committing copyright infringement (moreover, this text editor stops about 2,000 characters, so I would have to post about 100 "answers" to fully reproduce the relevant text.

Please let me know if you would like some direction to the relevant legal treatises.

(2) how do I mention the above information, stating my case, without violating the premise of not introducing new evidence?

A: If you have filed the proposed statement on appeal (Judicial Council form CR-135 (misdemeanors) or form CR-143 (infractions), then you can refer to the statement as your source of facts, because the trial court judge must certify the statement, and as a consequence, the statement substitutes for a court reporter transcript of the hearing.

 

If the final statement does not contain the necessary facts, then presumably, your proposed statement does, before the judge modified the statement. If so, then you would cite that document, which should be part of the record on appeal.

 

Please let me know if I can clarify anything or assist you further.

Customer: replied 3 years ago.

I actually filed form CR-142 and then checked the box at 4 (a)( (2) which said I am NOT attaching my proposed statement. It goes on to say there that "I understand that I must serve and file this proposed statement in the trial court within 20 days of the date of the date I file the appeal..." BUT at the appeals court desk they said I had to wait until the Copy of the Official Electronic Recording was certified as delivered to the court, which happened on April 22nd and that form now ways I need to file an Opening Brief. Are they one in the same?


 


Also, regarding the opening brief and your earlier response, I was hoping you could refer me to a reference or a link that would guid me to the format of what the court would expect.

I actually filed form CR-142 and then checked the box at 4 (a)( (2) which said I am NOT attaching my proposed statement. It goes on to say there that "I understand that I must serve and file this proposed statement in the trial court within 20 days of the date of the date I file the appeal..." BUT at the appeals court desk they said I had to wait until the Copy of the Official Electronic Recording was certified as delivered to the court, which happened on April 22nd and that form now ways I need to file an Opening Brief. Are they one in the same?

 

A: The electronic record is not the same thing as a Statement on Appeal. The electronic record contains whatever is in the court file. But, there is no transcription of the trial, because there was no court reporter (presumably). And, without the Statement on Appeal, there would be no facts upon which you can argue your case.

 

If less than 20 days has passed, you could file an amended CR-142 with a proposed statement. But, if the 20 days has passed, then you would have to file a motion in the Appellate Division of the Superior Court and ask for an order that you be permitted to submit a proposed statement to the trial court untimely ("instanter"). There is no statutory grounds for such a waiver, but you need those facts or you are toast -- because you won't have anything to argue in your brief, without the statement on appeal.

 

Also, regarding the opening brief and your earlier response, I was hoping you could refer me to a reference or a link that would guide me to the format of what the court would expect.

A: There isn't anything like this anywhere online. You're into the area of very costly legal treatises, and no one is going to give out the "keys to the kingdom" for free. Here are links to a couple of well-respected guides:

California Civil Appellate Practice

 

Civil Appeals and Writs (The Rutter Group California Practice Guide)

 

As you can see, a visit to the county public law library will save you a lot of money. I pay annual subscriptions for all of these materials, so I know how costly it all is. For someone who only needs to fight a single case, the cost is overwhelming.

You need to review the Appellate Division local rules, available from your county Superior Court Website. The rules will tell you what is required to file a motion and/or an opening brief. However, the rules won't tell you "how" to write a brief or a motion. For that, you will need those guides that I have identified (or something similar). Nothing else will do.

Here is a link to a sample opening brief for an Appellate Division. It will give you a template to follow.

Please let me know if I can be of further assistance.


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