San Jose, CA asked in Appeals / Appellate Law and Civil Litigation for California

Q: Can the oral argument in the prior appeal be cited to support an argument in the subsequent appeal in the same case?

In the prior appeal, the defendants conceded a point. Based on that concession, the appellate court reversed and remanded. Post remand, the defendants argued the identical point and the trial court again sided it with them and dismissed the case based on the same issue that the appellate court considered and rejected. Now, the case is before the same appellate court. I would like to know if I can cite the arguments made in the oral argument to which all three judges agreed and accordingly issued their unanimous decision? Can the prior appeal's oral argument support my argument on this appeal?

1 Lawyer Answer
Charles William Michaels
Charles William Michaels
  • Appeals & Appellate Lawyer
  • Baltimore, MD

A: First, I am not a California lawyer. That being said, was the "law of the case" argued before the trial court on remand? I would think that that doctrine applies here. But I can see how oral argument in the prior appeal could be cited in the current appeal, so I think the answer is "yes."

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