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Appellate Briefs

An appellate brief is a written legal argument presented to an appellate court. Its purpose is to persuade the higher court to uphold or reverse the trial court’s decision.  Briefs of this kind are therefore geared to presenting the issues involved in the case from the perspective of one side only.

The legal brief, or memorandum, establishes the legal position of the party, explaining why the court should decide in favor of that party, or, in the case of appeal, reverse the lower court’s judgment.  The trial or motion brief argues that the court should alter the course of a trial by resolving and fixing disputed points.

To achieve these ends, the brief must appeal to the accepted forces such as statutory law or precedent, but may also include policy arguments and social statistics when appropriate.  For example if the law is vague or broad enough to allow the appellate judge some discretion in his decision making, an exploration of the consequences of the possible decision outside of legal formalism may provide guidance.

Appellate court rules generally provide for the filing of an appellant’s brief, an appellee’s brief, and a reply brief by the appellant[i].  A reply brief may also be filed by a cross appellant in support of the issues presented on the cross appeal.  After the filing of the reply briefs, further briefs, generally, may be filed only with leave of the court.

There is authority that the rules on briefing are to be liberally construed[ii].  However, it has also been said that courts are entitled to insist on meticulous compliance with rules sensibly designed to make appellate briefs as valuable aid to decisional process as they can be.

In a case involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another’s brief[iii].  Parties may similarly join in reply briefs.  A party should not fail to file a brief and then belatedly inform the court that the party is relying on another party’s brief. A party does not present an issue to the appellate court by simply announcing that it reaffirmed and joined the positions of other parties regarding an issue as stated in their appellate briefs where the party does not make an argument or cite authority in support of its position. However, if the defaulting party raises an issue identical to that raised by a party that has filed a brief, the court is not required to dismiss the appeal of the defaulting party[iv].

A special rule of federal appellate procedure applies to a case in which a cross-appeal is filed[v].  For purposes of this rule, and the rules governing computation and appendices to briefs and oral argument, the party who files a notice of appeal first is the appellant, except that if notices are filed on the same day, the plaintiff in the proceeding below is the appellant[vi].  These designations may be modified by the parties’ agreement or by court order.

In a case involving a cross-appeal, the appellant must file a principal brief in the appeal, which must comply with general requirements applicable to the appellant’s brief.  A cross appeal is not necessary if an appellee desires only to defend the judgment rendered below, an appellee’s answering brief may raise for the first time new arguments or new reasoning to support the judgment.  The appellant must file a brief that responds to the principal brief in the cross-appeal and may, in the same brief, reply to the response in the appeal.  That brief must comply with the content requirements generally applicable to the appellant’s brief.  The appellee may file a brief in reply to the response in the cross-appeal, which must include tables of contents and authorities with page references, as well as a certificate of compliance with the page/type-volume limits if required, and must be limited to the issues presented by the cross-appeal.  Unless the court permits, no further briefs may be filed in a case involving a cross-appeal[vii].  In the state courts, the rules for filing a brief on a cross appeal are generally the same as the rules applicable to an appellant’s brief.  A cross appellant may be prohibited, however, from responding in its reply brief to an appellant’s reply brief.

[i] USCS Fed Rules App Proc R 28

[ii] El Paso Natural Gas Co. v. Minco Oil & Gas Co., 964 S.W.2d 54 (Tex. App. Amarillo 1998)

[iii] USCS Fed Rules App Proc R 28

[iv] Marcaida v. Rascoe, 569 F.2d 828 (5th Cir. Tex. 1978)

[v] USCS Fed Rules App Proc R 28.1

[vi] USCS Fed Rules App Proc R 28.1

[vii] USCS Fed Rules App Proc R 28.1

Inside Appellate Briefs