§ 14.8 Brief of Appellant or Petitioner

• Jurisdiction: Washington

§14.8 BRIEF OF APPELLANT OR PETITIONER

This section reviews the form, content, and rules for filing and service of briefs of appellants and petitioners.

(1) Determining who is the appellant or petitioner

The party seeking review by appeal is the appellant and the party seeking discretionary review is the petitioner. RAP 3.4. If more than one party seeks review, the first party filing is the appellant or petitioner. RAP 10.1(f). A party opposing an appellant or petitioner is called a respondent. A respondent who seeks "cross review" may also be referred to as a cross appellant or cross petitioner, depending on whether review is by appeal or discretionary review.

(2) Time for filing opening brief

The brief of an appellant or petitioner must be filed with the appellate court within 45 days after the report of proceedings is filed in the trial court. RAP 10.2(a). At the same time the brief is filed, the brief of an appellant or petitioner must be served on every other party and on any amicus curiae, and proof of service must be filed with the appellate court. RAP 10.2(h). An appellant or petitioner may move the court for additional time to file the opening brief. Counsel will usually receive one extension of time if reasonable grounds exist. The appellate courts vary on their internal policies regarding further extensions.

If the record on review does not include a report of proceedings, the brief must be filed within 45 days after the party seeking review has filed a designation of clerk's papers and exhibits. RAP 10.2(a). The appellate court "will ordinarily impose sanctions under RAP 18.9 for failure to timely file and serve a brief." RAP 10.2(i). See Wilson v. OverlakeHosp. Med. Ctr, Inc., 77 Wn.App. 909, 914, 895 P.2d 16 (1995) ($750 sanction for failure to timely prosecute appeal).

(3) Form of brief of appellant or petitioner, generally

The brief of an appellant or petitioner includes, in the order indicated here, a title page, tables, introduction (optional), assignments of error, issues pertaining to the assignments of error, statement of the case, argument, and conclusion. RAP 10.3(a). The brief may also contain a summary of argument, which generally precedes the argument. RAP 10.3(a)(6). Briefs may also include an appendix. RAP 10.3(a)(8). A form of brief is found in RAP Form 6. The opening brief of an appellant is limited to 50 pages, excluding tables and the appendix. RAP 10.4(b).

(4) Title page

The title page is the cover of the brief. It contains the appellate court docket number; the name of the reviewing court; the names of the parties designated pursuant to RAP 3.4; the title of the brief; and the name, address, phone number, and Washington State Bar Association number of the lawyer for the party filing the brief. A sample title page for an appellate brief is set forth below:

NO. [Appellate Court Docket Number]

[SUPREME COURT or COURT OF APPEALS, DIVISION_]

OF THE STATE OF WASHINGTON

[Title of trial court proceedings with parties designated as in Rule 3.4, for example:

JOHN DOE,

Respondent,

v.

MARY DOE, [Appellant or Petitioner],

and

HENRY JONES, Defendant.

[PETITION FOR REVIEW or title of brief, for example: BRIEF OF PETITIONER; REPLY BRIEF OF APPELLANT]

________________________________________________

[Name of attorney for party filing brief]

WSBA#__________________________________________

Attorney for_______________________________________

[Identity of party, as Appellant.]

[Address and phone number of attorney for party filing brief or petition]

The title page should include the full caption of the case, even though not all parties in the case are involved in the appeal (such as Henry Jones, Defendant, in the example above).

(5) Table of contents

The brief should contain a table of contents setting out in order the page at which each portion of the brief may be found. RAP 10.3(a)(2).

Practice Tip: Use the table of contents to give the judges a summary and overview of your entire appeal. This is most effective if each of your subheadings in the brief is a topical sentence instead of a short phrase. For example, instead of "Factual Background," use headings that describe the facts of the case. Follow the same practice for your argument headings.

(6) Table of authorities

Computer programs that create tables of authorities are now commonplace. They greatly simplify the process. Waiting to run the table of authorities until your brief is in final form—and not altering it further after the table is run—helps to avoid last-minute errors in the table. Most of these programs run tables that comply with the following rules, but you must always check to be sure your table complies.

The brief must contain a table of cases, statutes, rules, regulations, and other authorities, with reference to the pages of the brief where each is cited. RAP 10.3(a)(2). Cases should be listed alphabetically. If there is a large number of cases, the table of authorities may be subdivided into an alphabetical listing of Washington cases, followed by an alphabetical listing of cases from other jurisdictions. Constitutional provisions should be listed under a separate heading, in the order in which the provisions appear in the particular constitution.

Statutes, rules, and regulations may be listed under one heading, each category in the order in which they appear in their respective published source. Common names of such statutes, rules, and regulations may be used in addition to code numbers.

Remaining authorities may be collected under a separate category entitled "Other Authorities," which should be located at the end of the table.

If a particular authority or citation is referenced repeatedly throughout the brief, it is acceptable not to list every page upon which the authority appears, but rather to note under the page designation column "passim," which is Latin for "everywhere."

(7) Introduction

RAP 10.3(a)(3) permits a "concise" introduction, which is optional but appreciated by most judges. The introduction, like an executive summary, should not exceed one or two pages. As with everything else in your brief, it must be scrupulously honest and accurate.

Although the rule states that an introduction need not contain citations to the record or authority, this is not a license to lard the introduction with distortions, much less facts outside the record. Later in the brief, every fact recited in the introduction should be supported by a citation to the record, and every argument mentioned in the introduction should be supported by citation to authority.

(8) Assignments of error

Each specific trial court action (or inaction) the appellant or petitioner claims is erroneous must be included in a separate assignment of error. RAP 10.3(a)(4).

(a) The rules

A separate assignment of error must be included for each instruction a party contends the court improperly gave or refused. The assignment of error must refer to the instruction or the proposed instruction by number. RAP 10.3(g). The instruction or proposed instruction should be included in full in the body of the brief or in an appendix. RAP 10.4(c). Similarly, a separate assignment of error must be included for each finding of fact a party contends was improperly made or refused. The assignment of error must refer to the finding or proposed finding by number, RAP 10.3(g), and the finding or proposed finding should also be set out in full in the assignment of error, body of the brief, or appendix. RAP 10.4(c). Neither RAP 10.3(a)(4), 10.3(g), nor 10.4(c) requires the text of a conclusion of law to which error is assigned to be set out verbatim, but practitioners often do so in the same manner as with findings of fact. RAP 10.3(g) was amended in 1994 to eliminate the requirement that error be assigned to proposed findings rejected by the trial court.

Several cases contain statements that unchallenged conclusions of law become the law of the case. Detonics .45Assocs. v. Bank of Cal., 97 Wn.2d 351, 353, 644 P.2d 1170 (1982) (en banc); State v. Slanaker, 58 Wn.App. 161, 165, 791 P.2d 575, review denied, 115 Wn.2d 1031 (1990); Millican of Wash., Inc. v. Wienker Carpet Serv., Inc., 44 Wn.App. 409, 413, 722 P.2d 861 (1986). These statements are consistent with the appellate rules, which require a party to raise and argue an issue on appeal if it is to be considered by the appellate court. RAP 10.3(a)(6). Based on these cases, however, one court has suggested that an appellate court will review a conclusion of law only if it is challenged in the form of an assignment of error. King Aircraft Sales, Inc. v. Lane, 68 Wn.App. 706, 716-17, 846 P.2d 550 (1993). This is a regrettable, and wrong, conclusion. RAP 10.3(g) specifically states that there must be an assignment of error for each finding of fact a party claims is erroneous, but does not require an assignment of error to a conclusion of law. This is consistent with the different roles of the trial and appellate courts. The trial courts find facts, which are subject to review only upon assignment of error. The appellate courts, on the other hand, review issues of law anew. An assignment of error to a conclusion of law should not be required for the appellate court to examine an issue of law raised by an appellant's challenge to the trial court's application of law to a particular set of facts. See Schweib v. Crosby, 160 Wn.App. 345, 349-50, 249 P.3d 184 (2011).

Prior to adoption of the RAP, failure to comply with the technical requirements for assignments of error was often fatal, with the appellate court refusing to reach the merits of the issue. But RAP 1.2 would seem to ameliorate this harsh result. This rule provides that the appellate rules "will be liberally interpreted to promote justice and facilitate the decision of cases on the merits." RAP 1.2 comes into play in interpreting the warning in...