Chapter 11 Writing Appellate Briefs

LibraryHandling Appeals in Arkansas (2021 Ed.)
CHAPTER 11 WRITING APPELLATE BRIEFS
Rob Shafer and Tory Lewis

A. Introduction

The appellate brief is the most vital part of the appellate process. When oral argument is not requested or is denied, the appellate court will decide your appeal on the briefs alone. Even when oral argument is granted, the accepted wisdom among judges is that it rarely changes the outcome of an appeal. So if you mean to win on appeal, you must write a winning appellate brief.

Your winning appellate brief must show the court that it is procedurally able — or unable — to reach the merits of the appeal. On the merits, it must orient the court regarding the relevant facts, apply the governing law, and persuade the court that there is—or is not—reversible error. Ideally, it should suggest to the court why a ruling in your favor would be sound precedent for future cases.

A good brief reflects the fact that the role of an appellate court is more narrow than that of a circuit court. A circuit court looks for truth, but an appellate court looks for error. Appellate courts are limited by the rules of appellate jurisdiction and the standards of review. Accordingly, appellate briefs should not simply recast the arguments from the circuit-court briefs. You must decide what your point on appeal is — where your best chance lies of proving or disproving error—and then get to the point.

It sometimes happens that a case requires counsel to raise numerous points on appeal; but beware of the temptation to think—as I once did—that a record contains "a Christmas tree of error." (Predictably, I lost.) Most cases are best served by two or three points on appeal. Focus your argument, anticipate and refute the ways in which your Houdini opponent can "slip the noose," have a colleague read your brief to see if it persuades, and then ... win on appeal!

B. General Requirements for All Briefs

1. Nomenclature

The rules refer to an appellant's brief, an appellee's brief, and an appellant's reply brief. Counsel refer to the appellant's first brief as the "opening brief" and to the appellee's brief as the "response brief." An appellee will only file a "reply brief" if the appellee is also a cross-appellant.

2. Filing Deadlines, Extensions of Time, and Number of Copies

See ASCR 4-4(a)-(c). For extensions of time, see Chapter 17(D)(1).

• The appellant files 18 copies of an opening brief 40 days after the record is lodged with the clerk.

• The appellee (or appellee/cross-appellant, or sole cross-appellant) files 18 copies of a response brief (and/or an opening brief on cross-appeal) 30 days after the appellant's opening brief is filed.

• The appellant files 18 copies of a reply brief 15 days after the appellee's response brief is filed.

• An appellant who is a cross-appellee has 15 days to file a response to the cross-appellant's opening brief. The rule is not clear on this point, but the clerk's longstanding practice is to enforce a 15-day requirement.

• An appellee/cross-appellant (or sole cross-appellant) has 15 days to file a reply brief.

• All time periods are in calendar days, not business days.

3. Confidential Information and Redaction

See ASCR 4-1(d) and 4-4(a)-(c); Admin. Order No. 19, § VII(A); see also ARCP 5(c)(2)(A)-(B). Counsel must file the required 18 copies of the brief in two versions whenever confidential information is relevant to the issues on appeal and is included anywhere in the brief. One redacted copy must be filed not under seal, and 17 redacted copies must be filed under seal. The cover must state whether the brief copy is REDACTED or UNREDACTED (in large capitals). "Filing under seal" means that counsel informs the clerk when the unredacted copy is presented for filing so that the clerk can stamp it "sealed."

On the other hand, when the record contains confidential information that is not relevant to the issues on appeal, (i) the confidential information must be omitted from the brief, or (ii) if confidential information is integrated with other relevant information, the confidential information must be redacted in all copies of the brief. Such briefs do not need to be identified as redacted (because counsel is not submitting an unredacted brief) or filed under seal.

Administrative Order No. 19, § VII(A) lists information that is confidential. It is unclear whether the "open court" exception that precedes the list applies to appellate briefs, so counsel should redact the information. Methods of redaction are provided in ARCP 5(c)(2)(A).

4. Covers and Binding

See ASCR 4-1(a) and 4-2(a)(9). There are no color requirements for covers. Some lawyers follow the rules for federal appellate briefs: blue (appellant), red (appellee), and light gray (appellant's reply), but many lawyers use white covers. Most briefs are bound on the left margin with ring-type plastic bindings, which should be large enough to allow the brief to open comfortably and lie flat.

A brief in multiple volumes should state, for example, "Volume I of II, Volume II of II." Name the main parts of the brief to the extent applicable (e.g., "ABSTRACT, BRIEF, AND ADDENDUM OF APPELLANT," "SUPPLEMENTAL ABSTRACT AND BRIEF OF APPELLEE"). Counsel must put their bar identification number, telephone number, fax number, and e-mail address on the cover. Although it is not required by the rules, the clerk prefers for counsel to include the case number in 48-point font at the top of the cover.

5. Typeface, Margins, Line Spacing, and Printing

See ASCR 4-1(a). The minimum typeface is 14 points for all parts of the brief excluding the Addendum. Footnotes, like text, must be double-spaced unless material is quoted and indented. From the Abstract through the end of the brief, both sides of the page may be used. It is advisable not to duplex the Argument so that judges may write notes to the left of an Argument page.

6. Page Numbering

See ASCR 4-1(a). Use small roman numerals from the Table of Contents through the Table of Authorities. Then paginate as follows:

Abstract: Ab 1, Ab 2 (or Abs 1, Abs 2), etc.
Supplemental Abstract: Supp Ab 1, Supp Ab 2, etc.
Statement of the Case: SoC 1, SoC 2, etc.
Argument: Arg 1, Arg
...

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