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

2. Deciding to Appeal
Costly
Timely
Can you beat the odds

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

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

5. 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%

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

7. 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?

8. 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

9. 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

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

11. 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

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

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

14. 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.

15. 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?

16. 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

17. 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.

18. 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.

19. 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?

20. 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

21. 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.

22. 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?

23. 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.

24. 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

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

26. 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.

27. 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

28. 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

29. 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

30. 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

31. 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:

32. 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)

33. 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!

34. 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

35. 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

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

37. 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

38. 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

39. 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.

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

41. 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?

42. 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]?

43. 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?

44. 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.)

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

46. 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

47. 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.

48. 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.

49. 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.

50. 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)

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

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

53. 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).

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