One thing to know about an initial appellate brief is that a judgment was made in a case, and someone was on the losing end of it. That person has to write a brief so good as to make an appellate court reverse that lower court order. Far too often, it is a self-represented litigant in the enviable position of having to write that brief.
Though appellate courts are loathe to overturn lower court decisions, it might be worth it to appeal a judgment that you feel is wrong, especially if you’ve properly preserved issues. To succeed, you must persuade the appellate court that the case should be reversed. Conversely, your opponent has only to show that the lower court’s decision was sound. He has an easier job, but you go first. That is, you decide what error(s) the appeal will focus on.
Sections of a Brief
When writing a brief, be sure to adhere to rules that apply in your jurisdiction. Some jurisdictions may, for instance, determine the sections that must be included. Always follow those rules. A brief typically consists of the sections below in order.
A Cover Page
Here you’ll include basic information, such as the parties (you v. the other party), the court name, the date of the decision, the lower case number, and other required information.
Table of Contents
The table of contents consists of all the headings and subheadings of your case brief. It gives the judges a quick overview of what is in the brief. It is better to leave this section for the end when you know for sure what the sections of the brief are.
Table of Citations
By the time you’re writing a brief, you should know how to formulate citations for cases and statutes in your jurisdiction. Here, make an alphabetical list of all the cases you cite. In a separate section of the table, list statutes, rules, codes, etc. If there are other types of references, include them in your table. You can hold off on this section until the end if you like.
Questions or Issues Presented
Some judges or clerks go through a brief and read certain parts first to understand what’s going on. This is one of the sections they read. Your framing of the issue(s) gives them an understanding of 1) what the case is about; 2) whether the issue is important; 3) whether the decision is reversible; and 4) whether you have the ability to write a persuasive brief. In whorl, this section is important for making a judge care.
Sample Question: Did the lower court err in finding that a truck driver owes no duty to pedestrians on a sidewalk?
Statement of the Case and Facts
Next, state the relevant facts upon which the court should make its decision. It’s important to write the facts clearly and precisely. Judges can connect the dots between poorly stated facts, but don’t rely solely on their experience.
Present the facts in an interesting and persuasive way without embellishing. That is, list only facts relevant to the appeal and the issues you’ve named in your Issues section. If you raise substantive issues, make sure you state relevant facts. If you raise procedural issues, include procedurally significant facts.
Sample Substantive Fact: Party Y hit party X over the head with a stick. Sample Procedural Fact: The lower court declined to dismiss the claim brought by party X.
Also, be sure to point to the record in the case. The record is the collection of motions, pleadings, transcripts or other documents or things filed during the case. You must point to where in the record the fact or group of facts you’re stating can be found. Typically, you can create your own citation code (i.e. R: 10).
Sample Citation to the Record: Party Y hit party X over the head with a stick. (R: 10).
Argument or Discussion
In this section, organize your argument by each of your questions or issues. Make each a point heading, and try to keep the heading to a single sentence.
If an issue is not clear, logical and coherent, go back to your Issues section and rewrite it. Too, if the issues can be reordered for more power, reorder them here and in the issues section. For instance, do you want to lead with your strongest argument or the argument that will set the most precedent? Decide this, and organize your argument around it.
Sample heading and issue: Did the lower court err in finding that a truck driver owes no duty to pedestrians on a sidewalk?
Everything underneath this heading in your appellate brief should address this issue only. You can include subheadings, but stay with the issue.
Statutes and appellate cases are of utmost importance. If you have a strong statute that directly supports your issue, start with that. In your argument, make the connection between the law and facts clear. Be sure that each paragraph follows from the previous. Once you’re done with the first question or issue, move on to the next question or issue.
Conclusion
Summarize all your key points in a few sentences, and request something specific from the court. It may be wise to write this section first. It may help you clarify your goals and set your thoughts towards reaching that goal.
Certificate of Compliance
The case brief must meet standards regarding its length, font size, etc. The certificate of compliance certifies that it does meet statutory requirements.
Certificate of Service
This certificate formally confirms that your opponent has been served copies of the brief.
Appendix
The appendix contains key parts of the appellate brief and record on appeal. Some courts may require that an electronic brief include clickable sections of an appendix. Also, courts may require that the appendix be completely separated from the brief.
Other Possible Sections of an Appellate Brief
You are not usually obliged to include the following sections in your brief, but depending on your case, you may consider them to supplement it.
Preliminary Statement
Use a preliminary statement to add something the court needs to know that is not appropriate for another section. For instance, you can say in your preliminary statement something as simple as, “In this brief “R” refers to the record in this case and “10” is page number.”
Standard of Review
The standard of review is a court’s way of determining how much respect or deference it will give the lower court when it decides error. The standard of review differs depending on what type of issue is being raised. Decisions on issues of fact are given greater deference than those on issues of law because the lower court judge was in the best position to determine facts. The appellate court accepts the lower court findings of fact unless it’s clear that a mistake was made.
There are many standards of review, but the most are abuse of discretion and de novo. An abuse of discretion standard determines if a discretionary ruling was unreasonable. When a de novo review is applied, the case is reviewed as if the lower court decision did not take place. Little deference is given to the lower court in a de novo review.
Yes, you as a pro se litigant can suggest to the court the standard of review it should use for your case. The court then can decide whether to go along with your suggestion or use another standard.
The Last Word
As the appellant writing an initial brief, you must persuade the appellate court that the case should be reversed because of a lower court error. In answer, your opponent has to convince the appellate court that the lower court decision is sound. Going first puts you in a powerful position. Your actions in the initial stages of the appellate process matters, and the brief is front and center. Do that right, and you improve your chances of getting that rare reversal.
