2. APPELLANT’S BRIEF

• Jurisdiction: United States

2. Appellant’s Brief

In the Court of Appeals, on average somewhat less than half the civil appeals result in affirmance. In criminal cases, the affirmance rate is high, with roughly two-thirds of criminal appeals ending with the Court upholding the order appealed from.³⁴⁹

Counsel for the appellant bears the burden of convincing the Court that the result achieved below should be altered. Even though the appellant knows the record and the applicable law, the appellant must repeatedly rewrite and rearrange to attain brevity and clarity, avoiding lengthy paragraphs and complex sentence structure. Most sentences can be improved simply by striking excess words or by restructuring. Ideally, a skilled writer other than the attorney who wrote the brief should review it not just for errors of grammar and syntax, but also for clarity, persuasiveness, and brevity.

The parts of the appellant’s brief are considered below in the order in which they should appear.³⁵⁰

(a) The Cover contains the title of the case and a statement of whether it will be argued or submitted; the name, address, and telephone number of the counsel; the name of the party on whose behalf it is submitted, and the date it was completed.³⁵¹ This latter requirement enables the Court to accept a brief as predicated upon a good-faith analysis of the law as of the date it was finalized, as well as to provide a guidepost to evaluate claims by counsel that important authority has developed since the brief was prepared. The cover must be white. The cover must indicate, in the upper right corner, whether the party proposes to submit the brief with or without oral argument. If oral argument is requested, the name of the person who will present the argument and the amount of time requested must be set forth.³⁵² If a time request does not appear on the brief, the Court usually will assign some time, but generally not more than 10 minutes.³⁵³ When in doubt, the lawyer should request five minutes more for argument than is deemed needed, thereby providing a cushion against last-minute discoveries and including an allowance for time used in answering questions. The Court will decide how much argument time to allocate and may award less time than requested.

(b) The Lower Case Roman Numeral Pages precede the body of the brief. The following three items must be included in a Court of Appeals brief:

(i) A Table of Contents is mandatory;³⁵⁴ it is the first revelation of a party’s line of argument. The point headings and subpoint headings should be written as simply and directly as possible and, if correctly written, will proceed with inexorable logic from the first heading to the conclusion. If the conclusion is only one short sentence, it should, like the headings, be printed in the table of contents in full. Following the point headings, any addenda to the brief should be described.³⁵⁵

(ii) A Table of Cases and Other Authorities is required³⁵⁶ and can be of substantial help to a judge in locating a reference and to the advocate in answering questions during argument. For New York decisions, official citations should be included, if available. Where a case is officially reported, it is not required that the unofficial citations (such as the New York Supplement or Northeastern Reporter Series) be included. If a decision is cited that is not officially published or otherwise readily available, a copy must be included as an addendum to the brief.³⁵⁷

(iii) A Corporate Disclosure Statement must be included if the brief is being submitted on behalf of a corporation or other business entity. The statement must list all parents, subsidiaries or affiliates of the entity. If there are none, a statement to that effect must be submitted.³⁵⁸ The statement is an aid to the Court in identifying any possible conflicts of interest that might not be apparent from the name of the particular entity that is the party.³⁵⁹

(c) The Preliminary Statement is second only to the statement of facts in importance. It will invariably be the first section of the body of the brief; it sets the scene with the basic facts and the prior proceedings. It should identify the parties and their positions both below and on the appeal,³⁶⁰ but for clarity the parties should thereafter be identified as plaintiff or defendant, or by name or role (e.g., driver, passenger), rather than as appellant or respondent. It should also state what happened in the trial court (and at whose hands: judge, jury, or both) as well as in the intermediate appellate court, noting any dissent. It should include a statement showing that the Court has jurisdiction to entertain the appeal and to review the questions raised. The statement should also summarize — so that the Court can immediately orient itself to the arguments to be presented — the nature of the perceived prejudicial error. Since it is only a synopsis, the statement need not contain detailed record references or case citations at this point, but it should refer to facts necessary to make the statement intelligible. Including citations to key portions of the record, or references to a case that is central to the argument, can be helpful.

(d) Questions presented may be stated by the appellant, along with their lower court answers. They may be counterstated by the respondent if there is disagreement with the appellant’s statement. While questions should be so phrased as to suggest the desired answers, it is a mistake to pose clearly “loaded” questions. Questions should be as short and as few as possible, limited to the crucial issues presented for review. As the Court of Appeals is primarily a law court, the questions should be phrased to raise questions of law. After the argument has been written, the questions presented should be reviewed and revised as indicated by the argument. Section 5528 of the CPLR limits the statement of questions to a total of two pages.

While CPLR 5528(a) requires that a brief contain a table of contents, a statement of questions presented, a statement of facts, and the argument, in that order, it does not bar other inclusions. Nor is it likely that a brief will be rejected because the stated order is not followed exactly. Thus the Questions Presented may be placed before or after the Statement of Facts, as the circumstances of a particular case may dictate.

(e) Statement of Facts. The Court of Appeals is a court of law that generally cannot review the facts. Indeed, where the Appellate Division has upheld the factual findings of the lower court, the appellant will rarely be able to convince the Court that it can review, much less should reverse based on, perceived errors in the facts found below.³⁶¹ Nevertheless, an appellant should...