The Appellate Process & Brief Writing An introduction © Professor Njeri M. Rutledge

Deciding to Appeal Costly Timely Can you beat the odds

Deciding to Appeal Expensive Court costs - required the transcribe the ENTIRE trial – will be over $1000.00 Attorney’s fee – large time commitment. Review the record, prepare brief(s), present an oral argument. When giving an estimate – be liberal

Timely May take several months or years If criminal case – postpone sentence If civil case – postpone payment

It’s a long-shot Most appeals are not successful Appellate judges tend to respect lower court rulings In 2000, the reversal rate in federal system 9.4%

The Big Issues for Appeal Is there a basis for reversing the trial court? Does the appellate court have jurisdiction? Was error preserved?

Basis for Appeal Don’t file frivolous appeals Role of appellate court – ensure lower court does not make legal errors vs. debating factual disputes Does the appeal raise an issue of law? Is the issue relatively important?

Jurisdiction Appellate courts will only consider appealable orders – final decision of a district court (28 U.S.C. § 1291) Prerequisite to jurisdiction timely notice of appeal – within 30 days FRAP 4. Order transcript within 10 days after the notice of appeal

Was Error Preserved? All trial court decisions are not eligible for review Only decisions preserved in the trial court Preservation of Error – issue properly raised in a timely fashion for consideration and disposition Issue must be raised so the trial court has an opportunity to consider its merit Can’t switch horses midstream

Recap Appellate Review = Preserved error Within the court’s appellate jurisdiction (notice of appeal & final decision) Important issue of law

Standard of Review Establishes level of deference towards trial court or jury Can be no deference, extreme deference or something in between Standard must be defined early in the brief – FRAP 28(a)(9)(B) Should include citation to authority

Standard of Review Briefs with multiple legal issues may have more than one standard

Standards of Review De Novo Clearly Erroneous Abuse of Discretion Substantial Evidence

Standard of Review: De Novo Gives no deference to the trial court The appellate court is free to decide the case as if the trial court never issued a ruling Used for pure questions of law.

Issues of Law Requires de novo review What is the law in this jurisdiction on this point? The facts are irrelevant Example: Interpreting a statute; constitutional questions; motions for summary judgment. Does a minor have the capacity to enter into a binding contract?

Standard of Review: Clearly Erroneous Substantial deference to the trial court. Requires the appellate court to affirm unless the appellate court is: Firmly convinced that a mistake has been made Otherwise the trial court must be affirmed, even if the appellate court disagrees with the ruling. Used to review pure questions of fact

Standard of Review: Substantial Evidence Extreme deference to the lower court. Used to review factual questions decided by a jury. Decision must stand unless there is no substantial evidence to support the decision, considering the evidence in the light most favorable to the verdict with all reasonable inferences deductible from the evidence to support the verdict.

Questions of Fact Clearly erroneous or substantial evidence review What happened in the case? The rule of law is irrelevant Ex: What speed was the car traveling? Questions about who did what, where and when. Questions about intent & motive.

Sometimes it is Both Mixed Question of Law & Fact Asks whether a certain set of facts meets a particular legal standard. Ex. Does driving 65 mph in the rain on highway 42 fall below the degree of care that would be exercised by a reasonable person under those circumstances?

Mixed Questions of Law & Fact Circuits differ in their approach Most treat as de novo or vary between de novo and clearly erroneous depending on the nature of the mixed question

Standard of Review: Abuse of Discretion Extreme deference towards the trial court Asks whether the trial court “abused its discretion.” Notice the term discretion suggests there is no right or wrong decision. Did the court act arbitrarily or commit a clear error of judgment.

Discretionary Questions Requires an abuse of discretion standard Usually deal with matters of procedure and case management Compelling discovery, imposing sanctions, amending pleadings; granting continuances or the admission of evidence. Ex: Should a party be allowed to file an amended complaint two weeks before trial?

Different Standards of Review De novo – for pure issues of law. No deference Abuse of discretion – for procedural & evidentiary matters. Appellant must show an abuse of discretion. Extreme deference. Clear Error – for judge as trier of fact. Reverse factual finding only if clearly erroneous. Substantial deference No substantial evidence – for jury as trier of fact. Reversed if not supported by substantial evidence. Maximum deference.

Summary Kind of Issue Pure question of law Pure question of fact Mixed question Trial court’s discretion Applicable Standard De novo No deference Clearly erroneous or substantial evidence Substantial or maximum deference Usually de novo, but varies Abuse of Discretion Extreme deference

Appellate Briefs Usually 3 Brief of the appellant Brief of the appellee Appellant’s reply brief

References to Parties Rule 28(d) – counsel should minimize use of the terms appellant and appellee Call the parties’ actual names or designations used by the lower court (the employee) (the employer) etc.

Format of Briefs Fed. R. App. P. 32 32(a)(1)(A) – one-sided 32(a)(2) – Cover Appellant’s brief cover = blue Appellee’s brief cover = red Amicus/intervenor = green Reply brief = gray Supplemental brief = tan

Format continued Cover page info – Rule 32 (a)(2)(A-F) Cause number CENTERED AT THE TOP Name of the court Title of the case Nature of the proceeding and the name of the court below Title of the brief – identifying the party for whom filed Name, office address & phone number of counsel

Format Continued 32(a)(3) – Binding Must be secure, allowing the brief to lie reasonably flat when opened Paper size – 8 ½ x 11 paper Double-spaced Quotations more than 2 lines – indented & single spaced Headings & footnotes – single spaced One inch margins on all sides

Font Size – Rule 32(a)(5) 14 – point or larger Local Rule for the Tenth Circuit – Rule 32.1 – 14 point preferred, but 13-point is acceptable

What’s in it/What Order Look at the Rules Fed. R. App. P. 28 The appellant’s brief must contain, under appropriate headings and in the order indicated:

Appellate Brief Corporate disclosure statement see Rule 26.1 Table of contents w/ page references Table of authorities Jurisdictional statement Statement of the issues for review Statement of the case Statement of facts Summary of the Argument The argument Conclusion stating relief sought Certificate of compliance See Rule 32(a)(7)

Appellee Brief the same but under the Rules the following are optional: Jurisdictional statement; statement of the issues; statement of the case; statement of facts; standard of review Note: This is NOT optional under the Rutledge LRW2 Rules of Procedure!

Corporate Disclosure Statement Required Rule 26.1 Sample in supplement Unnecessary for government entities Identify parent corporations Any corporations owning more than 10% of stock

Table of Contents Identifies each component of the brief and its page number Includes point headings and subheadings of the Argument section Can generate automatically Can update if numbers change Add last Instructions in supplement

Table of Authorities Lists the authorities cited Identifies page numbers for the cites Separates the authorities into categories Cases, statutes, law review articles, etc.

Numbered pages Table of Contents & Authorities should be numbered separately (roman numerals) i, ii, iii etc To change page numbers insert “Next page break” and change starting point after insert page numbers

Jurisdictional Statement Rule 28(4)(A-D), each brief must include The basis for the district court’s or agency’s subject matter jurisdiction, with citations to applicable statutes The basis for the court of appeals’ jurisdiction, with citations to applicable statutes The filing dates establishing the timeliness of the appeal and An assertion that the appeal is from a final order or judgment

Statement of the Case The Statement of the Case should briefly indicate the nature of the case, the course of proceedings, and the disposition below. In other words, tell the appellate court what the case is about, how it got here, and what already happened.

Statement of the Issues The statement of the issues should concisely state each issue or question presented for review by the appellate court.

Issues/Questions Presented Possible structures Under [relevant law], does a [certain legal status] exist when [these legally significant facts] are present? Whether the court below was correct when it held that [under the relevant law], a [certain legal status] existed when [these legally significant facts] are present?

Issues/Question Presented Possible Structures Whether the court below erred when it held that [this law applied] in this way [to the legally significant facts]? Whether [legal status exists[ when [these legally significant facts exists] and when [this law applies]?

Remember Advocacy Does Jones’ moral obligations to perform his promise to pay Smith for past services give rise to a legal obligation in light of the serious physical injuries suffered by Smith and the immeasurable benefit he gave to Jones in saving Jones’ life? Did the trial court correctly reject a vague and uncertain “moral obligation” exception to the fundamental principle that a promise made in recognition of past services lacks consideration and therefore is unenforceable?

Statement of Facts This section of the brief tells the factual story. It should be limited to the facts relevant to the issues before the appellate court. The statement of the case must include references to the record, such as (R. at 4.)

Statement of Facts Look for: All facts mentioned in the Argument All legally significant facts Favorable or unfavorable Significant background facts Emotionally significant facts

Remember your audience Judges Skeptical readers Influenced by equity Concerned about impact on future cases & policy Conservative Doesn’t like reversal Resists unreasonable arguments Law clerks Recent graduates Inexperienced with issues Concerned more with equities in present case & not the future Critical reader (possible law review) Critical of details

Summary of the Argument A succinct, clear and accurate statement of the arguments made in the body without merely repeating the argument headings. A summary of the argument is just what it says. It is the argument condensed into a few paragraphs – usually one paragraph per issue – with more meat in them than can be put into headings.

Argument The argument section of the brief should be separated by headings and sub-headings, which serve as a roadmap for the reader. These headings should be structured in a parallel fashion, particularly since they will be reproduced in the table of contents. The argument should contain a concise statement of the standard of review for each issue.

Point Headings First, look at the elements & identify your arguments Identify the ruling you seek, asserting is correctness + Assert your conclusion about the part of the rule that entitles your client to the ruling. Example The burglary charge should be dismissed because the alleged breaking and entering occurred earlier than thirty minutes after sunset.

Subheadings Should have a logical relationship to headings (like elements) Negligence (subheading on duty) Death Penalty (subheading on the 8th Amendment or the 14th Amendment)

Conclusion The conclusion should be a short statement of the relief sought. In some circumstances, compelling summary of the major points

Certificate of Service Assures the Court that you have provided copies of your brief to all parties (or their attorneys)

Certificate of Compliance For briefs submitted under Rule 28.1(e)(2) or 32(a)(7)(B) – certifies that you did not exceed the word or line limit for the brief (14,000 lines max).

Certificates See Local Rules for a complete listing of certificates required by your Circuit – 10th Circuit