Appellate Practice & Procedure

Class #5:

Handling an Appeal—Preparing Briefs

(Part II)

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™

Introduction

From Class #4:•Most appeals are won or lost on the briefing (aside from merits)

•Purpose of brief is to persuade the court that your client should win

Focus on appellee’s brief and appellant’s reply brief

Considerable crossover from last time; will emphasize

the differences

The Basics

From Class #4:•Legal writing ability is essential

•Briefs should be brief; rarely approach page limits

•Write for the justices, not yourself or your client

•Use proper cite form

•Go for helpful over adversarial

•Don’t assume the justices know the law, but don’t talk down to them, either

•Favor party names over “alphabet soup” and “Appellant” or “Appellee”

•Edit, edit, edit!

•If you can, put the brief down for a few days, then edit some more

•Have someone else proofread and cite-check

•Have the brief copied and bound

•Know and follow your jurisdiction’s rules, and be mindful of local practices

Appellee’s Brief

Issue Selection

Same principles as appellant’s brief:•Limit to 2 or 3 issues or points of error if possible

•More than 3 puts lawyer’s credibility at risk

•Simple statements/questions v. “deep issues”

•But avoid generic issues like “Did the trial court err . . . ?”

Respond to the opposition’s issues, but shape them in

your favor

Add issues as appropriate, such as:•To assert waiver or harmless error

•Or if you have a cross-appeal

Effective Simple Issue Statements

Examples of Deep Issues

Tables/Indexes

Same principles as appellant’s brief:•First opportunity for advocacy

•Correctness in formatting, cite form, etc. important

•Restate issues and argument outline

•Insert last, after all editing is complete

Sample Table of Contents

Sample Table of Authorities

Statement of Facts

Same principles as appellant’s brief:•Tell a story—your version of it

•Think thorough, but short

•Disclose bad facts to protect credibility and minimize importance

•Avoid argument, but phrase favorably and persuasively

Correct factual misstatements as necessary

Point out when appellant is presenting facts in a manner

inconsistent with the standard of review

Standards of Review

Make note when appellant has omitted the applicable

standards or stated them incorrectly

Use the fact that standards of review frequently work in

the appellee’s favor

Summary of the Argument

Same principles as appellant’s brief:•Prepare it near end of briefing process, right before tables/indexes

•Distill your positions down to a few paragraphs

•Justices will often read this section first

Argument and Authorities

Generally should respond to appellant’s issues in the

order raised

Emphasize errors in arguments and logic

Distinguish cases appellant relies on

Show that the standards of review have not been met and

why the judgment should be affirmed

Argument and Authorities (cont’d)

Assert any independent grounds for

affirmance, i.e., reasons you should win even if appellant

is correct

Raise non-frivolous waiver issues, i.e., failure to

preserve error in the jury charge

Urge that any error was harmless, i.e., has not been

shown to have resulted in an improper judgment

Argument and Authorities (cont’d)

Otherwise, same principles as appellant’s brief:•Rely on the strongest authorities you can find

•Confront weaknesses and authority contrary to your client’s position

•Break text up with headings at least every few pages

•Roman numeral outlines are an effective tool for organizing and transitioning

•Weave relevant facts into legal argument

•Avoid substantive footnotes if possible

Relief Requested

Same principles as appellant’s brief:•Consider carefully what you want the court to do

•Ask for that relief specifically and, if appropriate, in the alternative

As the appellee, you should ask the court to:•affirm the trial court’s judgment in its entirety;

•modify the trial court’s judgment and affirm as modified; or

•alternatively, reverse and remand for further proceedings (i.e., new trial) if

appellant seeks rendition of judgment in its favor

Cross-Appeals

When appellee seeks a more favorable judgment than the

one obtained in the trial court

Check the rules:•Can you raise arguments as cross-appellant without perfecting own appeal?

•Depending on jurisdiction, may require dual briefing tracks

•Some require separate notices, but handle briefing by rule, i.e., FRAPs

Otherwise, the principles discussed in Class #4 apply

Appellant’s Reply Brief

Should You File a Reply Brief?

Not always necessary, even if the applicable rules

provide for one

If all you’ll do is repeat arguments from your opening

brief, save the time and paper

But if appellee’s brief raises points or questions that need

answering, then get to it

Approach if Filed

Introduction or preliminary statement

Anticipate questions the justices might ask

Address problem areas raised in appellee’s brief

Further explanation of the law or policy

Approach if Filed (cont’d)

Otherwise, make a relatively short, concise argument not

unlike that described under appellee’s brief:•Respond to appellee’s issues in the order raised

•Emphasize errors in arguments and logic

•Distinguish cases appellee relies on

•Show how you have satisfied the standards of review

Say what you need to say, and get out

Sample Briefs

Some are available through my JD Supra profile

I will be adding to my library in the coming weeks

Questions?

“Stop by” during office hours

Participate in the official study group

Visit the Appellate Discussion Lounge

Next Time . . .

Appellate Practice & Procedure

Class #6:

Oral Argument and the Decision

presented by

D. Todd Smithhttp://texasappellatelawblog.com

for

Solo Practice University™