Appellate Court Procedures

• Author: Pamela Everett Nollkamper
• Pages: 539-566

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Chapter 4

Appellate Court Procedures

§400 Commencing an Appeal

§410 Record on Appeal

§420 Appellate Briefs

§430 Appendix

§440 Appeal Timetable

§450 Brief Page Limitation Guide

§400 Commencing an Appeal

§401 Appellate Schedule

§402 Sample: Notice of Appeal

§403 Serving the Notice of Appeal

§404 Appeals From an Interlocutory Order

§405 Representation Statement

§410 Record on Appeal

§411 Transcript of Proceedings

§412 Electronic Transcripts

§420 Appellate Briefs

§421 Appellant’s Briefs

§421.1 Appellant’s Brief—When to File

§421.2 Appellant’s Brief—Number of Copies

§422 Appellee’s Brief

§422.1 Appellee’s Brief—When to File

§422.2 Appellee’s Brief—Number of Copies

§423 Amicus Curiae Brief

§423.1 Amicus Curiae—Content and Form

§423.2 Amicus Curiae—Length

§423.3 Amicus Curiae—When to File

§424 Electronic Briefs

§425 Preparation of Briefs

§425.1 Length of Briefs

§425.2 Certificate of Compliance

§425.3 Corporate Disclosure Statement

§425.4 Preparation of Brief Cover

§425.5 Sample: Brief Cover

§425.6 Preparation of Table of Contents

§425.7 Sample: Table of Contents

§425.8 Table of Citations and Authorities

§425.9 Sample: Table of Citations and Authorities

§425.10 Jurisdictional Statement

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§400 APPELLATE COURT PROCEDURES

§426 Tips and Suggestions

§430 Appendix

§431 Deferred Appendix

§432 Appendix Organization

§433 Preparation of Appendix

§434 When to File the Appendix

§435 Number of Copies Filed

§436 Exhibits

§440 Appeal Timetable

§450 Brief Page Limitation Guide

§400 COMMENCING AN APPEAL

An appeal is commenced by filing a Notice of Appeal in the district court from which

the appeal is taken. A Notice of Appeal must be filed in the district court within 30 days

after entry of the judgment from the lower court (60 days if the United States is a party

or a federal officer is sued in an individual capacity) (Fed.R.App.P. 4(a)). This time

may be extended upon a showing of good cause by a motion filed within 30 days of the

expiration of the 30-day appeal period. A motion may be filed after the 30-day period

if excusable neglect or good cause can be shown. No extension may exceed 30 days, or

14 days after the date when the order granting the motion is entered, whichever is later

(Fed.R.App.P. 4(a)(5)).

Note: The date the appeal time period begins to run may be difficult to determine

since the time begins to run after the judgment is entered rather than when it is deter-

mined. According to Fed.R.Civ.P. 58(a), most judgments must be set forth in a separate

document. When a separate document is not required, the time period for filing a notice

of appeal beings to run when the court’s decision is entered on the docket. When a

separate document is required, the time for filing an appeal begins to run when the

judgment is set out in a separate document and entered in the docket. Some courts have

addressed this ambiguity by local rule. Be sure to check with your court to determine

its requirements.

If a Notice of Appeal is mistakenly filed in the court of appeals, the clerk of that court

must note the date when it was received on the notice and send it to the district clerk. The

notice is then considered filed in the district court on the date so noted.

If one party files a notice of appeal, any other party may file a notice of appeal within

14 days after the date when the first notice was filed. If a party files a post-trial motion,

the time to file an appeal runs for all parties from the entry of the order disposing of

the last remaining motion. The district court may reopen the time to file an appeal for a

period of 14 days after the date when its order to reopen is entered, if:

• The court finds that the moving party did not receive notice under Federal Rule

of Civil Procedure 77(d) of the entry of the judgment or order sought to be

appealed within 21 days after entry;

• The motion is filed within 180 days after the judgment or order is entered or

within 14 days after the moving party receives written notice of the entry,

whichever is earlier; and

• The court finds that no party would be prejudiced thereby (Fed.R.App.P. 4(6)).