The Appellate Process &The Appellate Process &Brief WritingBrief Writing

An introductionAn introduction

©© Professor Njeri M. Rutledge Professor Njeri M. Rutledge

Deciding to AppealDeciding to Appeal

CostlyCostly TimelyTimely Can you beat the oddsCan you beat the odds

Deciding to AppealDeciding to Appeal

ExpensiveExpensive

Court costs - required the transcribe the Court costs - required the transcribe the ENTIRE trial – will be over $1000.00ENTIRE trial – will be over $1000.00

Attorney’s fee – large time commitment. Attorney’s fee – large time commitment. Review the record, Review the record, prepare brief(s), prepare brief(s), present an oral argument. When giving present an oral argument. When giving

an estimate – be liberalan estimate – be liberal

TimelyTimely

May take several months or yearsMay take several months or years If criminal case – postpone sentenceIf criminal case – postpone sentence If civil case – postpone paymentIf civil case – postpone payment

It’s a long-shotIt’s a long-shot

Most appeals are not successfulMost appeals are not successful Appellate judges tend to respect Appellate judges tend to respect

lower court rulingslower court rulings In 2000, the reversal rate in federal In 2000, the reversal rate in federal

system 9.4%system 9.4%

The Big Issues for AppealThe Big Issues for Appeal

1)1) Is there a basis for reversing the Is there a basis for reversing the trial court?trial court?

2)2) Does the appellate court have Does the appellate court have jurisdiction?jurisdiction?

3)3) Was error preserved?Was error preserved?

Basis for AppealBasis for Appeal

Don’t file frivolous appealsDon’t file frivolous appeals Role of appellate court – ensure Role of appellate court – ensure

lower court does not make legal lower court does not make legal errors vs. debating factual disputeserrors vs. debating factual disputes Does the appeal raise an issue of law?Does the appeal raise an issue of law? Is the issue relatively important?Is the issue relatively important?

JurisdictionJurisdiction

Appellate courts will only consider Appellate courts will only consider appealable ordersappealable orders – final decision of – final decision of a district court (28 U.S.C. a district court (28 U.S.C. § 1291)§ 1291)

Prerequisite to jurisdictionPrerequisite to jurisdiction timely notice of appeal – within 30 timely notice of appeal – within 30

days FRAP 4.days FRAP 4. Order transcript within 10 days after Order transcript within 10 days after

the notice of appealthe notice of appeal

Was Error Preserved?Was Error Preserved?

All trial court decisions are not eligible All trial court decisions are not eligible for reviewfor review

Only decisions preserved in the trial Only decisions preserved in the trial courtcourt

Preservation of Error – issue properly Preservation of Error – issue properly raised in a timely fashion for raised in a timely fashion for consideration and dispositionconsideration and disposition Issue must be raised so the trial court has Issue must be raised so the trial court has

an opportunity to consider its meritan opportunity to consider its merit Can’t switch horses midstreamCan’t switch horses midstream

RecapRecap

Appellate Review = Appellate Review = Preserved errorPreserved error Within the court’s appellate Within the court’s appellate

jurisdiction (notice of appeal & final jurisdiction (notice of appeal & final decision)decision)

Important issue of lawImportant issue of law

Standard of ReviewStandard of Review

Establishes level of deference Establishes level of deference towards trial court or jurytowards trial court or jury

Can be no deference, extreme Can be no deference, extreme deference or something in betweendeference or something in between

Standard must be defined early in Standard must be defined early in the brief – FRAP 28(a)(9)(B)the brief – FRAP 28(a)(9)(B) Should include citation to authorityShould include citation to authority

Standard of ReviewStandard of Review

Briefs with multiple legal issues may Briefs with multiple legal issues may have more than one standardhave more than one standard

Standards of ReviewStandards of Review

De NovoDe Novo Clearly ErroneousClearly Erroneous Abuse of DiscretionAbuse of Discretion Substantial EvidenceSubstantial Evidence

Standard of ReviewStandard of Review: De Novo: De Novo

Gives no deference to the trial courtGives no deference to the trial court The appellate court is free to decide The appellate court is free to decide

the case as if the trial court never the case as if the trial court never issued a rulingissued a ruling

Used for pure questions of law.Used for pure questions of law.

Issues of LawIssues of Law

Requires de novo reviewRequires de novo review What is the law in this jurisdiction on What is the law in this jurisdiction on

this point?this point? The facts are irrelevantThe facts are irrelevant Example: Interpreting a statute; Example: Interpreting a statute;

constitutional questions; motions for constitutional questions; motions for summary judgment.summary judgment. Does a minor have the capacity to enter Does a minor have the capacity to enter

into a binding contract?into a binding contract?

Standard of Review: Clearly Standard of Review: Clearly ErroneousErroneous

Substantial deference to the trial Substantial deference to the trial court.court.

Requires the appellate court to affirm Requires the appellate court to affirm unless the appellate court is:unless the appellate court is: Firmly convinced that a mistake has Firmly convinced that a mistake has

been madebeen made Otherwise the trial court must be Otherwise the trial court must be

affirmed, even if the appellate court affirmed, even if the appellate court disagrees with the ruling.disagrees with the ruling.

Used to review pure questions of factUsed to review pure questions of fact

Standard of Review: Substantial Standard of Review: Substantial EvidenceEvidence

Extreme deference to the lower court.Extreme deference to the lower court. Used to review factual questions Used to review factual questions

decided by a jury.decided by a jury. Decision must stand unless Decision must stand unless

there is no substantial evidence to there is no substantial evidence to support the decision, support the decision,

considering the evidence in the light considering the evidence in the light most favorable to the verdict with all most favorable to the verdict with all reasonable inferences deductible from reasonable inferences deductible from the evidence to support the verdict.the evidence to support the verdict.

Questions of FactQuestions of Fact

Clearly erroneous or substantial Clearly erroneous or substantial evidence reviewevidence review

What happened in the case? What happened in the case? The rule of law is irrelevantThe rule of law is irrelevant Ex: What speed was the car traveling?Ex: What speed was the car traveling? Questions about who did what, where Questions about who did what, where

and when. Questions about intent & and when. Questions about intent & motive.motive.

Sometimes it is BothSometimes it is Both

Mixed Question of Law & FactMixed Question of Law & Fact Asks whether a certain set of facts Asks whether a certain set of facts

meets a particular legal standard.meets a particular legal standard. Ex. Does driving 65 mph in the rain Ex. Does driving 65 mph in the rain

on highway 42 fall below the degree on highway 42 fall below the degree of care that would be exercised by a of care that would be exercised by a reasonable person under those reasonable person under those circumstances?circumstances?

Mixed Questions of Law & FactMixed Questions of Law & Fact

Circuits differ in their approachCircuits differ in their approach Most treat as de novo or vary Most treat as de novo or vary

between de novo and clearly between de novo and clearly erroneous depending on the nature erroneous depending on the nature of the mixed questionof the mixed question

Standard of Review: Abuse of Standard of Review: Abuse of DiscretionDiscretion

Extreme deference towards the trial Extreme deference towards the trial courtcourt

Asks whether the trial court “abused Asks whether the trial court “abused its discretion.”its discretion.”

Notice the term discretion suggests Notice the term discretion suggests there is no right or wrong decision.there is no right or wrong decision.

Did the court act arbitrarily or Did the court act arbitrarily or commit a clear error of judgment.commit a clear error of judgment.

Discretionary QuestionsDiscretionary Questions

Requires an abuse of discretion Requires an abuse of discretion standardstandard

Usually deal with matters of procedure Usually deal with matters of procedure and case managementand case management Compelling discovery, imposing sanctions, Compelling discovery, imposing sanctions,

amending pleadings; granting continuances amending pleadings; granting continuances or the admission of evidence.or the admission of evidence.

Ex: Should a party be allowed to file an Ex: Should a party be allowed to file an amended complaint two weeks before amended complaint two weeks before trial?trial?

Different Standards of ReviewDifferent Standards of Review De novo – for pure issues of law. De novo – for pure issues of law.

No deferenceNo deference Abuse of discretion – for procedural & Abuse of discretion – for procedural &

evidentiary matters. Appellant must show evidentiary matters. Appellant must show an abuse of discretion. an abuse of discretion. Extreme deference.Extreme deference.

Clear Error – for judge as trier of fact. Clear Error – for judge as trier of fact. Reverse factual finding only if clearly Reverse factual finding only if clearly erroneous.erroneous. Substantial deferenceSubstantial deference

No substantial evidence – for jury as trier of No substantial evidence – for jury as trier of fact. Reversed if not supported by fact. Reversed if not supported by substantial evidence. substantial evidence. Maximum deference.Maximum deference.

SummarySummary Kind of IssueKind of Issue

Pure question of lawPure question of law

Pure question of Pure question of factfact

Mixed questionMixed question

Trial court’s Trial court’s discretiondiscretion

Applicable StandardApplicable Standard

De novoDe novo No deferenceNo deference

Clearly erroneous or Clearly erroneous or substantial evidencesubstantial evidence Substantial or Substantial or

maximum deferencemaximum deference Usually de novo, but Usually de novo, but

variesvaries Abuse of DiscretionAbuse of Discretion

Extreme deferenceExtreme deference

Appellate BriefsAppellate Briefs

Usually 3Usually 3 Brief of the appellantBrief of the appellant Brief of the appelleeBrief of the appellee Appellant’s reply briefAppellant’s reply brief

References to PartiesReferences to Parties

Rule 28(d) – counsel should minimize Rule 28(d) – counsel should minimize use of the terms appellant and use of the terms appellant and appelleeappellee

Call the parties’ actual names or Call the parties’ actual names or designations used by the lower court designations used by the lower court (the employee) (the employer) etc.(the employee) (the employer) etc.

Format of BriefsFormat of Briefs

Fed. R. App. P. 32Fed. R. App. P. 32 32(a)(1)(A) – one-sided32(a)(1)(A) – one-sided 32(a)(2) – Cover32(a)(2) – Cover Appellant’s brief cover = blueAppellant’s brief cover = blue Appellee’s brief cover = redAppellee’s brief cover = red Amicus/intervenor = greenAmicus/intervenor = green Reply brief = grayReply brief = gray Supplemental brief = tanSupplemental brief = tan

Format continuedFormat continued

Cover page info – Rule 32 (a)(2)(A-F)Cover page info – Rule 32 (a)(2)(A-F) Cause number CENTERED AT THE TOPCause number CENTERED AT THE TOP Name of the courtName of the court Title of the caseTitle of the case Nature of the proceeding and the name of Nature of the proceeding and the name of

the court belowthe court below Title of the brief – identifying the party for Title of the brief – identifying the party for

whom filedwhom filed Name, office address & phone number of Name, office address & phone number of

counselcounsel

Format ContinuedFormat Continued

32(a)(3) – Binding32(a)(3) – Binding Must be secure, allowing the brief to lie Must be secure, allowing the brief to lie

reasonably flat when openedreasonably flat when opened Paper size – 8 ½ x 11 paperPaper size – 8 ½ x 11 paper Double-spacedDouble-spaced Quotations more than 2 lines – indented & Quotations more than 2 lines – indented &

single spacedsingle spaced Headings & footnotes – single spacedHeadings & footnotes – single spaced One inch margins on all sidesOne inch margins on all sides

Font Size – Rule 32(a)(5)Font Size – Rule 32(a)(5) 14 – point or larger14 – point or larger Local Rule for the Tenth Circuit – Rule Local Rule for the Tenth Circuit – Rule

32.1 – 14 point preferred, but 13-32.1 – 14 point preferred, but 13-point is acceptablepoint is acceptable

What’s in it/What OrderWhat’s in it/What Order

Look at the RulesLook at the Rules Fed. R. App. P. 28Fed. R. App. P. 28

The appellant’s brief must contain, The appellant’s brief must contain, under appropriate headings and in the under appropriate headings and in the order indicated:order indicated:

Appellate BriefAppellate Brief

1.1. Corporate Corporate disclosure disclosure statement see Rule statement see Rule 26.126.1

2.2. Table of contents Table of contents w/ page referencesw/ page references

3.3. Table of authoritiesTable of authorities

4.4. Jurisdictional Jurisdictional statementstatement

5.5. Statement of the Statement of the issues for reviewissues for review

6.6. Statement of the Statement of the casecase

7.7. Statement of factsStatement of facts

8.8. Summary of the Summary of the ArgumentArgument

9.9. The argumentThe argument

10.10. Conclusion stating Conclusion stating relief soughtrelief sought

11.11. Certificate of Certificate of compliance See compliance See Rule 32(a)(7)Rule 32(a)(7)

Appellee Brief the same but under Appellee Brief the same but under the Rules the following are optional:the Rules the following are optional:

Jurisdictional statement; statement Jurisdictional statement; statement of the issues; statement of the case; of the issues; statement of the case; statement of facts; standard of statement of facts; standard of reviewreview

Note: This is NOT optional under the Note: This is NOT optional under the Rutledge LRW2 Rules of Procedure!Rutledge LRW2 Rules of Procedure!

Corporate Disclosure StatementCorporate Disclosure Statement

Required Rule 26.1Required Rule 26.1 Sample in supplementSample in supplement Unnecessary for government entitiesUnnecessary for government entities Identify parent corporationsIdentify parent corporations

Any corporations owning more than 10% Any corporations owning more than 10% of stockof stock

Table of ContentsTable of Contents

Identifies each component of the Identifies each component of the brief and its page numberbrief and its page number

Includes point headings and Includes point headings and subheadings of the Argument sectionsubheadings of the Argument section

Can generate automaticallyCan generate automatically Can update if numbers changeCan update if numbers change Add lastAdd last

Instructions in supplementInstructions in supplement

Table of AuthoritiesTable of Authorities

Lists the authorities citedLists the authorities cited Identifies page numbers for the citesIdentifies page numbers for the cites Separates the authorities into Separates the authorities into

categoriescategories Cases, statutes, law review articles, etc.Cases, statutes, law review articles, etc.

Numbered pagesNumbered pages

Table of Contents & Authorities Table of Contents & Authorities should be numbered separately should be numbered separately (roman numerals) i, ii, iii etc(roman numerals) i, ii, iii etc

To change page numbers insert To change page numbers insert “Next page break” and change “Next page break” and change starting point after insert page starting point after insert page numbersnumbers

Jurisdictional StatementJurisdictional Statement

Rule 28(4)(A-D), each brief must includeRule 28(4)(A-D), each brief must include

The basis for the district court’s or agency’s The basis for the district court’s or agency’s subject matter jurisdiction, with citations to subject matter jurisdiction, with citations to applicable statutesapplicable statutes

The basis for the court of appeals’ The basis for the court of appeals’ jurisdiction, with citations to applicable jurisdiction, with citations to applicable statutesstatutes

The filing dates establishing the timeliness The filing dates establishing the timeliness of the appeal andof the appeal and

An assertion that the appeal is from a final An assertion that the appeal is from a final order or judgmentorder or judgment

Statement of the CaseStatement of the Case

The Statement of the Case should The Statement of the Case should briefly indicate the nature of the briefly indicate the nature of the case, the course of proceedings, and case, the course of proceedings, and the disposition below. the disposition below.

In other words, tell the appellate court In other words, tell the appellate court what the case is about, how it got what the case is about, how it got here, and what already happened.here, and what already happened.

Statement of the IssuesStatement of the Issues

The statement of the issues should The statement of the issues should concisely state each issue or concisely state each issue or question presented for review by the question presented for review by the appellate court.appellate court.

Issues/Questions PresentedIssues/Questions Presented

Possible structuresPossible structures Under [relevant law], does a [certain Under [relevant law], does a [certain

legal status] exist when [these legal status] exist when [these legally significant facts] are present?legally significant facts] are present?

Whether the court below was correct Whether the court below was correct when it held that [under the relevant when it held that [under the relevant law], a [certain legal status] existed law], a [certain legal status] existed when [these legally significant facts] when [these legally significant facts] are present?are present?

Issues/Question PresentedIssues/Question Presented

Possible StructuresPossible Structures Whether the court below erred when Whether the court below erred when

it held that [this law applied] in this it held that [this law applied] in this way [to the legally significant facts]?way [to the legally significant facts]?

Whether [legal status exists[ when Whether [legal status exists[ when [these legally significant facts exists] [these legally significant facts exists] and when [this law applies]?and when [this law applies]?

Remember AdvocacyRemember Advocacy

Does Jones’ moral obligations to perform his Does Jones’ moral obligations to perform his promise to pay Smith for past services give promise to pay Smith for past services give rise to a legal obligation in light of the rise to a legal obligation in light of the serious physical injuries suffered by Smith serious physical injuries suffered by Smith and the immeasurable benefit he gave to and the immeasurable benefit he gave to Jones in saving Jones’ life?Jones in saving Jones’ life?

Did the trial court correctly reject a vague Did the trial court correctly reject a vague and uncertain “moral obligation” exception and uncertain “moral obligation” exception to the fundamental principle that a promise to the fundamental principle that a promise made in recognition of past services lacks made in recognition of past services lacks consideration and therefore is consideration and therefore is unenforceable?unenforceable?

Statement of FactsStatement of Facts

This section of the brief tells the This section of the brief tells the factual story. It should be limited to factual story. It should be limited to the facts relevant to the issues the facts relevant to the issues before the appellate court. The before the appellate court. The statement of the case must include statement of the case must include references to the record, such as (R. references to the record, such as (R. at 4.)at 4.)

Statement of FactsStatement of Facts

Look for:Look for: All facts mentioned in the ArgumentAll facts mentioned in the Argument All legally significant factsAll legally significant facts

Favorable or unfavorableFavorable or unfavorable Significant background factsSignificant background facts Emotionally significant factsEmotionally significant facts

Remember your audienceRemember your audience

JudgesJudges Skeptical readersSkeptical readers Influenced by equityInfluenced by equity Concerned about Concerned about

impact on future impact on future cases & policycases & policy

ConservativeConservative Doesn’t like reversalDoesn’t like reversal Resists Resists

unreasonable unreasonable argumentsarguments

Law clerksLaw clerks Recent graduatesRecent graduates Inexperienced with Inexperienced with

issuesissues Concerned more Concerned more

with equities in with equities in present case & not present case & not the futurethe future

Critical reader Critical reader (possible law review)(possible law review)

Critical of detailsCritical of details

Summary of the ArgumentSummary of the Argument

A succinct, clear and accurate A succinct, clear and accurate statement of the arguments made in statement of the arguments made in the body without merely repeating the the body without merely repeating the argument headings.argument headings.

A summary of the argument is just what A summary of the argument is just what it says. It is the argument condensed it says. It is the argument condensed into a few paragraphs – usually one into a few paragraphs – usually one paragraph per issue – with more meat paragraph per issue – with more meat in them than can be put into headings. in them than can be put into headings.

ArgumentArgument

The argument section of the brief should be The argument section of the brief should be separated by headings and sub-headings, separated by headings and sub-headings, which serve as a roadmap for the reader. These which serve as a roadmap for the reader. These headings should be structured in a parallel headings should be structured in a parallel fashion, particularly since they will be fashion, particularly since they will be reproduced in the table of contents. The reproduced in the table of contents. The argument should contain a concise statement argument should contain a concise statement of the standard of review for each issue.of the standard of review for each issue.

Point HeadingsPoint Headings

First, look at the elements & identify your First, look at the elements & identify your argumentsarguments

Identify the ruling you seek, asserting is Identify the ruling you seek, asserting is correctnesscorrectness

+ Assert your conclusion about the part of + Assert your conclusion about the part of the rule that entitles your client to the the rule that entitles your client to the ruling.ruling. Example Example

The burglary charge should be dismissed The burglary charge should be dismissed because the alleged breaking and entering because the alleged breaking and entering occurred earlier than thirty minutes after occurred earlier than thirty minutes after sunset.sunset.

SubheadingsSubheadings

Should have a logical relationship to Should have a logical relationship to headings (like elements)headings (like elements)

Negligence (subheading on duty)Negligence (subheading on duty) Death Penalty (subheading on the 8Death Penalty (subheading on the 8thth

Amendment or the 14Amendment or the 14thth Amendment) Amendment)

ConclusionConclusion

The conclusion should be a short The conclusion should be a short statement of the relief sought.statement of the relief sought.

In some circumstances, compelling In some circumstances, compelling summary of the major pointssummary of the major points

Certificate of ServiceCertificate of Service

Assures the Court that you have Assures the Court that you have provided copies of your brief to all provided copies of your brief to all parties (or their attorneys)parties (or their attorneys)

Certificate of ComplianceCertificate of Compliance

For briefs submitted under Rule For briefs submitted under Rule 28.1(e)(2) or 32(a)(7)(B) – certifies 28.1(e)(2) or 32(a)(7)(B) – certifies that you did not exceed the word or that you did not exceed the word or line limit for the brief (14,000 lines line limit for the brief (14,000 lines max).max).

CertificatesCertificates

See Local Rules for a complete listing See Local Rules for a complete listing of certificates required by your of certificates required by your Circuit – 10Circuit – 10thth Circuit Circuit