CHAPTER 10 Court of Appeals Briefs

• Jurisdiction: United States

CHAPTER 10

Court of Appeals Briefs

10-1 Introduction

This chapter addresses the rules for briefing in the courts of appeals, a framework for thinking about briefing strategy, and strategies for each part of a court of appeals brief. Many of these strategies also apply to other types of briefs, including briefs in the Texas Supreme Court, amicus briefs, and briefing in support of an original proceeding. We present these here because the court of appeals brief is the most common appellate brief. In other chapters, we discuss strategies specific to the Texas Supreme Court proceedings, amicus briefs, and original proceedings.

10-2 General Rules

10-2:1 Deadlines

Deadlines for filing briefs in the courts of appeals are dictated by the rules.

10-2:1.1 Ordinary Appeal

• Appellant's brief: 30 days after the clerk's and reporter's record have both been filed. ¹

• Appellee's brief: 30 days after the appellant's brief is filed. ²

• Reply brief: 20 days after the appellee's brief is filed. ³

• Briefs in a cross-appeal: Because the rules do not distinguish between deadlines for an appeal and a cross-appeal, the deadlines are the same for a cross-appellant as for the appellant and the same for a cross-appellee as for the appellee.

10-2:1.2 Accelerated Appeal of Interlocutory Order

• Appellant's brief: 20 days after the clerk's and reporter's record have both been filed. ⁴

• Appellee's brief: 20 days after the appellant's brief is filed. ⁵

• Reply brief: 20 days after the appellee's brief is filed. ⁶

The court of appeals may extend these deadlines on a motion complying with Rule 10.5(b).⁷ Or it may shorten the deadlines in the interest of justice.⁸

If either party discovers that it has missed a briefing deadline, it should file a motion to extend the deadline as soon as possible. The rules expressly allow a motion to extend a court of appeals briefing deadline "before or after the date the brief is due."⁹

10-2:2 Format

Briefs are subject to the formatting rules of all appellate filings in Rule 9.4.

10-2:2.1 Margins

The rules require one-inch margins on both sides, top, and bottom of the page.¹⁰

10-2:2.2 Typeface

The rules require a 14-point font or larger, except for footnotes, which may be 12-point or larger.¹¹ Although no particular typeface or font is required, the typeface must be "conventional."¹²

10-2:2.3 Maximum Word Count

• Appellant's and appellee's briefs: 15,000 words

• Reply briefs: 7,500 words

• Aggregate of all briefs filed by a party: 27,000 words. ¹³

The word count does not include these parts of the brief: caption, identity of parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature, proof of service, certification, certificate of compliance, and appendix.¹⁴

It is particularly important for briefs to follow the rules that are designed to make it easier for judges and court staff to use briefs. In particular, briefs should be:

• in text-searchable, PDF, format;

• directly converted to PDF rather than scanned, if possible; and

• combined with any appendix into a single computer file unless that would exceed the size limit for electronic filing. ¹⁵

Following these rules will make a brief easier to navigate on the court's computer screens.

10-2:3 Failure to File Brief

If an appellant in a civil appeal fails to file a brief, the court of appeals may:

1. dismiss the appeal for want of prosecution, unless the appellant reasonably explains the failure to file and the appellee has not been significantly injured by the failure to timely file a brief;

2. retain the appeal and give further direction to the case as it considers proper; or

3. if an appellee's brief has been filed, affirm the trial court judgment on the appellee's brief without examining the record. ¹⁶

If the appellee fails to file a brief, the court will accept as true the facts stated in the appellant's brief.¹⁷

10-3 General Principles

10-3:1 Writing to the Reader's Perspective

To win, an advocate must think of a brief differently from other writing. A brief should not be written in the same way as a law-review article. Because the purpose of a brief is to persuade the reader, writing a successful brief requires understanding the unique perspective, and the needs, of the judicial reader.

Too many appellate briefs are written for the wrong audience.

Wrong audience #1: the audience in the writer's own head. It is human nature to write from our own perspective. When we write a document, we understand exactly what we mean. But it is a mistake to assume that readers will understand it simply because we do.

The problem is that advocates who write from their own perspective often stop editing to make their arguments clearer when they reach the point where they persuade themselves. It requires much more work to make a brief understandable and persuasive to someone else because most of us write with a voice in our head that provides all of the necessary emphasis and explanation for our own writing. For instance, a long, complex sentence can make perfect sense to the writer, yet be completely incomprehensible to the reader. It takes work to make our writing as clear as possible so that our audience will understand it.

Wrong audience #2: the perfect judge. The perfect judge has full knowledge of the law and great interest in the case. This perfect judge has infinite time to read, research, and consider the arguments. This perfect judge also reads briefs in a quiet, library-like setting. Many authors routinely write briefs under the assumption that, if the judges are smart and fair, the judges will certainly agree with the author's side of the issue because they will understand and be persuaded by it.

The reality, of course, is that judges rarely meet this ideal. Judges, like the rest of us, are distracted readers. As Third Circuit Judge Ruggero J. Aldisert explained:

Briefs usually must compete with a number of other demands on the judge's time and attention. The telephone rings. The daily mail arrives with motions and petitions clamoring for immediate review. The electronic mail spits out an urgent message. . . . The law clerks buzz you on the intercom because they have hit a snag in a case. So the deathless prose that you have been reading . . . must await another moment. Or another hour. Or another day.¹⁸

Judges also are rarely the substantive experts we expect. Advocates often know much more about the issue that they have researched and crafted into an argument than the judge does. Advocates also usually have more interest in the issue than most judges will. For the advocate, understanding the issue and winning the argument may help them keep the client, establish a reputation, and earn a bonus or contingency fee. Judges rarely have the same personal incentives.

Judges do want to do a good job, but they need help from advocates. In their speeches and papers, more and more judges are asking advocates to give them more assistance in the brief itself. As Supreme Court Justice Ruth Bader Ginsburg advised:

The cardinal rule: it should play to the audience. . . . The best way to lose that audience is to write the brief long and cluttered. . . . The concentration of court of appeals sittings means that the judges will lack time to ferret out bright ideas buried in complex sentences.¹⁹

To understand how judges read our briefs, it is important to place ourselves in the shoes of real judges and the circumstances in which they typically read briefs. Real judges want to be able to understand the argument quickly, and they need to quickly understand the most persuasive reasons why you should win.

10-3:2 Helping Readers Work Less

This may seem counterintuitive. When we write to courts, we want courts to work; we want courts to act. We praise judges and court staff who are hard workers. Why, then, would we want to help judges and court staff work less? The answer is that we want them to spend their time effectively—deciding the legal rule in our favor, writing an opinion in our favor.

You should not force courts to do extra, unnecessary work. You do not want courts to waste their limited time trying to determine what your argument or support is. So your brief should not force courts to spend extra time identifying the brief's structure and locating its main points. Headings in a brief should enable readers to know what to expect from each part of the brief. The brief should not make the court do any work that the document can do for the court.

Judges and court staff have a limited amount of energy and patience that they are willing to devote to understanding a brief. You should not squander their patience by requiring them to spend 10 minutes to comprehend the meaning of a contract provision, or 20 minutes trying to find the structure of an argument. You want courts to save their mental energy for processing and acting on that information.

10-3:3 Persuasion

Appellate briefs differ from some other forms of legal writing—such as law-review articles and memoranda to clients—in that their purpose is to persuade. To persuade a court to rule favorably, you must understand the court's perspective. You should put yourself in the shoes of a judge.

The key to understanding the court's perspective is understanding what courts do. The job of courts is not just to hear one side's argument and determine whether it is correct. It is the court's job to weigh competing arguments—which often both have merit—and then decide which argument is better.

As a result, the job of an advocate is not just to explain the client's position. It is to explain why that position is better than the other side's position.

The problem with much advocacy is that it is oblivious to the best arguments made by the other side. This is because advocates often are locked in the point of view of their own side. And they believe that, if...