Appellant’s Opening Brief – California Appellate Courts (2022)

The written briefs are the most important part of an appeal. Because there is no new trial during an appeal, the Court of Appeal makes a decision based on what they read in the written briefs, the record on appeal, and in legal research.

The first written brief is the opening brief. It is the case for appeal prepared by the appellant. The opening brief argues why the trial court made a legal mistake, how the mistake impacted the decision, what could be corrected or reversed in the judgment, and why the judgment should be reversed.

Here’s an overview of what to expect in this step of the appeal process and how to prepare an opening brief.

You can also:

See a sample opening brief

Timeline of an Opening Brief

After filing documents to designate the record, the next step is to prepare the opening brief. Once the record on appeal is filed, the Court of Appeal notifies the appellant of the opening brief due date. The deadline is generally 40 days after the Court of Appeal sends notice of the filing of the record on appeal. If the appellant prepares an appendix and does not request a reporter’s transcript, then the appellant has 70 days from the date they file the election to proceed by appendix (rule 8.124 election) in the trial court.

Preparing an Opening Brief

Appeals are won or lost on the briefs, so the appellant needs to spend time researching and writing a persuasive, concise legal argument. It’s a good idea to start working on the opening brief as soon as the notice of appeal is filed. This will allow as much time as possible to complete all of the necessary information in the required format.

Remember an appeal is not a retrial of the facts. The Court of Appeal only considers legal issues or mistakes made by the trial court. So an effective opening brief will focus on legal issues.The appellant should review what’s in the record, including:

  • the ruling, decision, orjudgment of the trial court judge
  • thestatutes, constitutional provisions, case decisions, and other legal authorities that the trial court judge used to support the decision

To win anappeal, theappellantmust prove that the trial court made a legal mistakeandthat the mistake impacted the decision. This is hard to do because the Court ofAppealgenerally defers to the trial court’s decision, unless it is de novo review. The burden is on theappellantto present a legal argument in the opening brief that convinces the Court ofAppealto reverse the trial court’sorderorjudgment.

Outline of an Opening Brief

There are several sections in an opening brief. While all of them are important, some sections take more time and effort to write than others.

Here is an overview of each section with a description of what it includes.

All of the sections are required.

Choose a section to learn more

Cover

The cover contains basic information about the case and the parties to the case. This includes:

  • the title of the brief (Appellant’s Opening Brief)
  • the case title, trial court number, and Court of Appeal case number
  • the names of the trial court and trial court judge
  • the appellant’s name, mailing address, telephone number, fax number (if available), and e-mail address (if available)
  • if the appellant hired a lawyer, California State Bar number of each attorney helping to write the brief

See the full rules for a cover page (CRC 8.40(c), 8.204(b)(10).)

Certificate of Interested Entities or Persons (required except in certain cases)

In all civil appeals, the first page of the opening brief after the cover is the Certificate of Interested Entities or Persons form APP-008.

Theappellantprepares this form for the Court ofAppealto identify otherentitiesand/orpersons that have an interestin the outcome of the case. A business or an organization is an example of an entity.

An appellantisNOT REQUIREDto file a Certificate of Interested Entities or Personsif the case is a family, juvenile, guardianship, or conservatorship case.

Learn more about the Certificate of Interested Entities or Persons

Table of Contents

TheTable of Contentsis a list of all the sections in thebrief. Each section title is listed inorderby the page number.

TheTable of Contentstells the Court ofAppealwhere to find information in thebrief. A judge should be able to get a good overview of the case by reading theTable of Contents.

Table of Authorities

TheTable of Authoritiesis a list of all the legal authorities or precedents that theappellant discusses in thebrief. Legal authorities are examples from the law that help prove a legal argument to the Court ofAppeal. Theappellantshould focus on finding legal authorities that support an argument against the trial court’s decision.

Legal authorities may be found on the internet or at a law library. A librarian can help therespondentfind legal authorities in the area of law that the case involves.

TheTable of Authoritiesis created when thebriefis finished and all the page numbers are final. Each legal authority must include a page number where it can be found in thebrief.

Statement of the Case

TheStatement of the Casetells the “procedural facts” of the case. Procedural facts are facts relating to the court process. TheStatement of the Caselists procedural facts in chronologicalorderfrom when the complaint was filed to when thejudgment was entered.

Every procedural fact in thebriefmust include:

  1. the date when a procedural fact happened
  2. a reference to the source and page number where the procedural fact can be found in therecord onappeal

Here is a list of procedural facts to include in theStatement of the Case:

(Video) How to Write an Appellate Brief

  • filing of the complaint
  • who sued whom and for what
  • rulings on any motions or hearings related to issues theappellant is asking the Court ofAppealto review
  • a description of orders related to issues theappellant is asking the Court ofAppeal to review
  • thejudgment entered
  • damages awarded

Statement of Appealability

The Statement of Appealability is often only one sentence. Here the appellant tells the court why the case is appealable. There are basically three options:

  • there is a judgment or order of dismissal (after demurrer or other motion) and the case is finished
  • there is an order (usually this order comes after the judgment, or after a hearing in a family law or probate case)
  • there is a nonfinal judgment

If appealing an order or nonfinal ruling, the appellant must state the statute that gives them the right to appeal.

Statement of Facts

TheStatement of Factsgives “historical facts” or evidence admitted in the trial court about what happened before there was a lawsuit. Every historical fact in thebrief must be supported with a reference to the source and page number where the fact can be found in therecordonappeal.

TheStatement of Factsshould only include “significant facts,” meaning facts that are related to the legal issue or issues theappellantdiscusses in theappeal.

No new facts or evidence can be introduced in theStatement of Facts. TheStatement of Factscan only mention facts or evidence presented in the trial court and included in therecordonappeal.

Argument

The argument is the most important part of the opening brief.Here the appellant identifies the legal issues, meaning any errors made by the trial court. The appellant also explains how the mistakes caused so much harm or “prejudice” that there should be a retrial, or that the judgment should be reversed or changed.

The appellant must do several things in the argument:

  1. Present the legal issues of the appeal
    Each legal issue must be discussed separately under its own heading. The heading should summarize the issue in a few words. In the discussion, the appellant should identify the standard of review that applies to the issue. The standard of review is basically the rules or guidelines the court uses to decide whether the trial court made an error in its decision. Different kinds of rulings require different guidelines. So the appellant has to research what the standard of review will be for each issue. After identifying the standard of review, the discussion should then explain the legal error the trial judge made, and how that legal error harmed (“prejudiced”) your case. The appellant should support the discussion with statements of law.See a list of common legal issues in an appeal
  2. Discuss the standard of review
    Thestandard of reviewis the rules or guidelines the Court ofAppealuses to decide whether the trial court made a mistake. Different kinds of legal issues are reviewed by different rules. The court requires anappellantto include astandard of reviewfor each legal issue in the openingbrief. So theappellantneeds to research what thestandard of reviewis for each issue.
  3. Include legal authorities that prove the trial court is wrong
    The appellant’s argument must include areferenceto a legal authority for every statement of law arguing why the trial court’s decision is wrong.
    A legal authority can be a case decision, statute, rule of court, book written about the law, constitutional provision, or legaltreatise. The appellantmust explain how the legal authority applies to the facts in the case.

Conclusion

This is usually one paragraph where the appellant tells the court what relief they are seeking. For example, the appellant asks that the order or judgment should be reversed, or a new trial should be granted. Note that no arguments are repeated or introduced in the conclusion section.

Certificate of Compliance or Word Count

There are rules about how long abriefcan be. Eachbriefmust include a Certificate of Compliance saying that it is within the maximum length allowed by the court.

Briefs prepared on atypewritercannot be more than50 pages.

Briefs prepared on acomputercannot be more than14,000 words.

The word count includes footnotes, but itdoes notinclude the cover, the Certificate of Interested Entities or Persons, the Tables of Contents and Authorities, the Certificate of Compliance, any signature block,proof ofserviceforms, or any attachments.

Theappellantcan attach a maximum of 10 pages of documents to the end of thebrief.

If needed, an appellantcan ask the Court ofAppealto allow a longerbrief. Theappellantwould file an “Applicationto File an OversizedBrief” with the Court ofAppealand serve a copy of theapplicationto all other parties in the case. There is no court form for thisapplicationso theappellanttypes theapplicationon a piece of paper.

Theappellantmust provide what the court calls “good cause” – which means a good reason – to file an oversizedbrief. The court may or may not say yes to the request.

Read California Rules of Court 8.204(c) to learn more about the length limitations for briefs

Proof of Service

Always check with your Court of Appeal to confirm the specific service requirements in your case.

Generally, you must serve a copy of theopeningbrief to all parties in the case, to the trial court judge, and to the Supreme Court of CaliforniaBEFOREit can be filed with the Court ofAppeal.

If the otherpartyhas a lawyer, then thebriefis served to the lawyer. If the otherpartydoes not have a lawyer, then thebriefis served to the otherparty.

There are rules about who can serve abriefand how it can be served.

Theappellant must give the Court ofAppealproof that all of the required copies were delivered. Appellants are encouraged to use court formAPP-009 (mail or in person) or APP-009E (electronic to provideproof ofservice. This form tells the court who served thebrief, who was served with thebrief, how thebriefwas served, and the date it was served. Theappellantmust file oneproof ofserviceofserviceform for eachbriefthat is delivered.

Proof ofserviceforms are always included at the end of theopeningbrief, after the Certificate of Compliance.

Where can I get help writing my brief?

(Video) California Appellate Court Legacy Project Intro

Form APP-001has full instructions onappealprocedures, including what needs to be in abrief.

Each Court ofAppealhasself-help resources online.You can also contact your local Court ofAppealto see if they have a self-help center at the court.

You can visit alaw libraryto do legal research.

The California Courts website has a lot ofinformation about lawyers and legal help.

If you need help finding a lawyer, the California Bar Association website can connect you tolawyer referralservicein your area.

What are the formatting rules for briefs?

Briefs should follow these general formatting rules:

  • Prepare on a computer or type on a typewriter.
  • Single-space the headings and footnotes. Double-space everything else in the brief.
  • Use a font size no smaller than 13 points. (This includes footnotes.)
  • Set page margins as follows: left and right margins at 1.5 inches, and top and bottom margins at 1 inch.

Rules for printing and binding:

  • Use 8-1/2-by-11 inch white or unbleached paper of at least 20-pound weight (except for the cardstock front and back covers). Do not use legal or pleading paper with numbered lines.
  • Both sides of paper may be used unless prepared with a typewriter.
  • The pages should be unbound.

Rules for page numbering:

  • The pages must be consecutively numbered.
  • The page numbering must begin with the cover page as page 1 and use only Arabic numerals (e.g., 1, 2, 3). The page number on the cover page may be hidden and need not appear.

Rules for cover colors, only when briefs are filed on paper (Note: this rule does not apply for electronic filing). The cover must be cardstock paper.

  • Appellant’s opening brief or appendix—green cover
  • Respondent’s brief or appendix—yellow cover
  • Appellant’s reply brief or appendix- tan cover
  • Joint Appendix—white cover
  • Petition for rehearing—orange cover
  • Petition for review—white cover

Rules for information required to be included on the cover of the brief:

The cover should include the title of the case, the superior court and Court of Appeal case numbers, the names of the superior court judge and county, the type of brief (for example, “Appellant’s Opening Brief,” “Respondent’s Brief,” or “Appellant’s Reply Brief” (see “Cover” of Sample Form K), and the filing party’s name, address, and daytime telephone number. The court heading should be centered at the top of the brief cover.

What are common legal issues presented in an appeal?

When someone decides whether or not to appeal, they should carefully review the record of the trial proceedings for potential legal issues.

There are many legal issues that might be raised by an appellant in the opening brief. Here are some of the most common legal issues raised in an appeal:

  • The trial judge erroneously admitted evidence over objection, and the inadmissible evidence prejudiced the appellant’s case.
  • The trial judge erroneously refused to admit relevant evidence and thus prejudiced the appellant’s case.
  • The jury instructions were legally incorrect.
  • The trial judge misinterpreted the parties’ contract that was in dispute.
  • The trial judge misapplied or misinterpreted statutory, common law (case decisions), or constitutional law.
  • The trial judge erred in sustaining a demurrer to the appellant’s complaint because the complaint legally states a cause of action.
  • The trial judge erred in granting summary judgment because there are material, disputed facts that require a trial.
  • The trial judge or jury made a mathematical or other error in computing the amount of damages.
  • The trial judge erred in awarding costs or attorney’s fees.
  • The findings of the trial judge do not support thedecision.
  • The evidence is legally insufficient to support the findings or to support the judgment judgment.

How is the Statement of Facts prepared if there was no trial?

Thestatement of factsin anappealbriefwill be different if the case was dismissed without a full trial.

Cases are commonly dismissed without a full trial in two ways:demurrerorsummaryjudgment. If there was no trial in your case, you should consider doing legal research or talking to a lawyer to get help preparing yourStatement of Facts.

Here are some general considerations for anappealof these common types of dismissals.

Demurrer
Ademurrerruling is anorderbut by statute it may be appealed. Theorder must say the case is dismissed. The Court ofAppealusually only looks at the complaint and assumes all the factual allegations are true inorderto rule on whether the complaint states acause of action. TheStatement of Factsin therespondent’sbriefshould include facts that support the trial court’sdemurrerruling and facts as stated in the complaint.

Summary judgment
Atrial court’s ruling grantingsummaryjudgmentis anorder. Aparty seeking toappealthe ruling must first get ajudgmentbased on that ruling. The facts are taken from the evidence before the trial court at the time of its ruling. A common issue forappealis whether the trial court was correct that there was no genuine dispute as to material facts that must be resolved at a trial.

What is the standard of review?

The Court of Appeal’s job is to determine if the trial court followed the law and how to resolve any issues if the trial court did not follow the law. To do this, the court uses a process that’s called the “standard of review.” These are basic guidelines to help the court evaluate the appellant’s argument.

The standard of review is different for each legal issue. The three most common standards of review are:

  1. De novo standard. In de novo review, the Court of Appeal does not defer to the decisions made in the trial court. Instead the Court of Appeal looks at the issue as if the trial court had never ruled on it. This type of review is generally limited to issues involving questions of law. It is the most favorable standard of review for an appellant.
  1. Abuse of discretion. During a trial, the judge uses his or her discretion to decide on many things. This includes whether or not to allow discovery, admit evidence, issue restraining orders, award damages, and more. When an appellant argues that “abuse of discretion” applies in the case, they must prove that the trial judge’s decision “exceeded the bounds of reason.” Since the Court of Appeal generally defers to the trial court’s exercise of discretion, this type of appeal is difficult to win.
  1. Substantial evidence. This standard is used when an appellant is arguing against the factual findings of a judge or jury after a trial. The Court of Appeal reviews the record and decides whether a reasonable fact-finder could have come to the same conclusion as the trial court. The Court of Appeal does not decide whether it would have reached the same factual conclusions as the judge or jury. This kind of appeal is difficult to win because it argues that the trial court did not consider or understand all the evidence, believed the wrong witnesses, or failed to properly weigh the evidence. The Court of Appeal will reject this kind of argument if there is any substantial evidence—contradicted or not—that supports the trial court’s finding of the facts.

How do I put things in the record on appeal for the Court of Appeal to review?

Learn how to designate – or choose – materials from the trial court record to send the Court of Appeal.

How do I research and find legal authorities?

You can research and find legal materials at a public law library. Look for books that are written about the area of law that the case involves. For example, search in the area of contract law if a case involves a possible breach of contract for work that was not done or work that was not done properly. A librarian can suggest books to read about different areas of law.

(Video) Preparing to File Your Brief

Books written about the law—also called “secondary sources”—will include cases previously decided in all areas. Based on the legal information gathered and the facts of the case, the appellant can make a list of the issues he or she wants to raise. These can be issues the appellant thinks hurt his or her case in superior court the most, or the issues that will help his or her case in the appeal.

How do I cite legal authorities and other sources in a brief?

For every event or fact about the case that you include in yourbrief, you must provide an exact location and page number where the court can find it in therecordonappeal.

Here’s a list of places information can be found in therecordonappeal:

  • Appellant’sappendix—AA
  • Appellant’s openingbrief—AOB
  • Appellant’s replyappendix—ARA
  • Appellant’sreplybrief—ARB
  • Augmentedclerk’s transcript—AugCT
  • Augmentedreporter’s transcript—AugRT
  • Clerk’s transcript—CT
  • Jointappendix—JA
  • Reporter’s transcript—RT
  • Respondent’sappendix—RA
  • Respondent’s brief—RB
  • Superior court file—SC file
  • Supplementalclerk’s transcript—SCT
  • Supplementalreporter’s transcript—SRT

Each case is different. Some cases have all these sources in therecordonappeal, and some cases only have a few of these sources.

In yourbrief, you will support each event or fact with a reference to a page number in one of the sources in this list. You will use the abbreviation that matches the source to tell the Court ofAppealwhere to look for the information. The court will check each reference to make sure it supports your version of the story.

For example, say you want to tell the court a fact about the case that’s on page one of theclerk’s transcript. Here’s what you would write in thebrief: “Appellantfiled a civil complaint on January 3, 2018. (CT1)”

If there is more than one volume of theclerk’s transcriptorreporter’s transcript, you’ll need to write the volume number, thenCTorRT, and then the page number. For example: (1CT3), (2RT150).

If there is more than one augmentedclerk’s transcript, also include the transcript by date. For example: (1/3/18 AugCT2).

Can I include new information or new evidence in my brief?

No. An appeal is not a new trial. You cannot introduce new information, new evidence, or new witnesses during the appeal process. The Court of Appeal will only consider what’s included in the record on appeal.

Can I include confidential information in a brief?

No. Briefs are generally filed publicly, and publicly filed documents must not disclose confidential or sealed material.

If you need to refer to confidential or sealed material, please carefully review the procedure described here in CRC 8.46(f) and CRC 8.47.

Can I include attachments or exhibits with a brief?

Attachments should only be included with abriefif they are absolutely necessary. Improper attachments can cause abriefnot to be filed, or to be rejected and returned for corrections.

Copies of exhibits or other materials may only be attached if they are already in the existingrecordonappeal, or in relevant local, state, or federal rules or regulations. The attachments must not be more than a combined total of 10 pages, unless the court grants you permission to break this rule.

If you need to file more than 10 pages of attachments, you can ask the Court ofAppealfor permission. You may file a “Request to Attach Additional Exhibits” with the Court ofAppealand serve a copy of theapplicationto all other parties in the case. There is no court form so you type therequest on a piece of paper. You must provide what the court calls “good cause” – which means a good reason – to attach additional exhibits.

The court may or may not say yes to your request.

Instead of including a lot of attachments, it may be easier to simply make a reference in yourbriefto any legal authorities, or to exhibits already in therecordonappeal.

Before including attachments you should carefully reviewCRC rule 8.204(d).

What are common mistakes in briefs?

Here is a list of common mistakes made in briefs:

  • not citing therecord onappeal(giving the court the exact place in therecordto look) for a fact that you put in yourbrief
  • including information and sources that are not in therecord onappeal
  • not citing the law (giving the court the name and place in a published court decision, statute, or other law) for what you say is the law in yourbrief
  • using improper citations that are not legal authorities, like a blog post or an unpublished court decision
  • improper or unprofessional tone(don’t use curse words or say bad things about people)
  • not proofreading (thebrief has typos and other obvious errors)
  • not clearly telling the court what you want

Who needs to receive a copy of my brief? How do I serve my brief to other parties or courts?

Always check with your court to confirm the specific filing andservice requirements in your case. Not all courts allow electronic filing.

Serving a document means delivering a copy of the document to anotherparty, or delivering a copy to a different court than the one where you are filing the document.

Generally, you must serve a copy of theopeningbrief to all parties in the case, to the trial court judge, and to the Supreme Court of CaliforniaBEFOREit can be filed with the Court ofAppeal.

  • Serving documents to other parties. There are three ways to serve a document to anotherparty: by mail, in person, or electronically.If you want to serve a document electronically, you will first need to get the recipient to agree.

A party to the case can serve a brief electronically. The court has rules about who can serve a document by mail or in person. It must be a person who is over 18 and lives in the county where they are serving. Apartyto the case cannot serve a document by mail or in person to anotherparty. If the otherpartyhas a lawyer, then the document is served to the lawyer. If the otherpartydoes not have a lawyer, then the document is served to the otherparty.

If yousubmityour document electronically, there’s an option to have TrueFiling™ serve your document electronically to the other parties before your document is filed with the trial court or Court ofAppeal. TrueFiling™ will automatically attach an electronicproof ofserviceto any documents you electronically file (e-file).

  • Serving documents to the trial court. The trial court may be served by mail and some trial courts may be served electronically. Always check with your trial court to see if they accept electronically served documents.
  • Serving documents to the California Supreme Court. The Supreme Court may be served either by mail or electronically. If a brief is served on paper, the Supreme Court must receive 4 copies. If a document is filed electronically through TrueFiling™, it automatically fulfills theservice requirements for the California Supreme Court.

What’s proof of service?

(Video) Fact vs. Law for Appeals in California - The Law Offices of Andy I. Chen

You need aproof ofserviceform for each person or court who receives a copy of the document.You are encouraged to use formAPP-009 (serve by mail or in person) or APP-009E (serve electronically)forproof ofservice.

The person who is serving a document must complete and sign aproof ofserviceform when they deliver the document. The court requires this form as proof that the document was delivered to all parties in theappealand the necessary courts.

The originalproof ofserviceforms should be attached as the last pages of the original document that you file in the court.

A copy of theproof ofserviceforms must be attached as the last pages of each copy of the document that you serve to other parties.

If yousubmityour document electronically, there’s an option to have TrueFiling™ serve your document electronically to the other parties before your document is filed with the trial court or Court ofAppeal. TrueFiling™ will automatically attach an electronicproof ofserviceto any documents you electronically file (e-file).

Get a blankproof ofserviceformAPP-009(mail or in person)

Get a blankproof ofserviceformAPP-009E (electronic)

Seethe instructions sheet for theproof ofserviceform

See detailedproof ofserviceinformation from the California Courts

Read theCalifornia rules of courtonproof ofservicerequirementsCRC8.25(a),8.212(c)(1),andCRC8.29,8.212(c)(3).)

VisitTrueFiling™, the court’s online filing system

How do I file my brief with the Court of Appeal?

There are two ways to file documents with a court: electronically file (e-file) on the computer or file on paper at the court.

TheCourt ofAppealrequires lawyers and people who have a lawyer to file electronically. If you are self-represented – meaning you do not have a lawyer – then you can choose to file electronically or file on paper.

If filing electronically, the Court ofAppealdoes not need or require paper copies.

If filing on paper in the Court ofAppeal, the original documentandproof ofserviceforms are always given to the Court ofAppeal. Some courts also require you to file extra copies of the documents.

You should always keep one copy of all documents you file with the court. It’s a good idea to bring or mail an extra copy of the document to the court clerk. You can ask the clerk to stamp “filed” on the extra copy to show that the original was filed, and keep the extra copy as proof.

What if my brief is rejected?

If an opening brief is incomplete or does not follow the formatting rules, the court may decline to file it. If the brief only requires minor corrections, the court clerk may contact the appellant and ask for permission to make the minor corrections. The court may also return the brief to the appellant for corrections and changes. After making these corrections it is generally necessary to prepare a new document. The new revised brief must be served again on all the parties and filed again with the Court of Appeal. If the problems with the brief have been corrected, the court will file the revised brief. If the problems have not been corrected and it’s an appellant’s opening brief, the court may dismiss the case.

How can I check the deadline to file my brief?

You can contact the clerk at your Court of Appeal if you have questions about the deadline to file your brief.

What happens if I miss the deadline to file my opening brief?

If theappellant’s openingbriefis not filed by the deadline, the Court ofAppealwill mail a notice that thebriefmust be filed within 15 days.

During the 15-day timeframe, theappellant may file anapplicationfor an extension of time. The court may grant an extension if they find there is a good reason.

If theappellant does not file an opening brief or request an extension to file within the 15-day timeframe, theappealwill be dismissed.

What if I need more time/an extension to file my brief?

If you need more time to file yourbrief, you can agree – or “stipulate” – with the other parties to extend the deadline up to a maximum of 60 days. An extension orstipulationmust be filed in the Court ofAppealbefore the date thebriefis due. Stipulations must be signed by all parties and served to all parties.

Note: The parties cannot stipulate to extend the time if the court has already granted an extension to file thebrief.

If apartyneeds more time to file and has already stipulated to 60 daysorif the parties are unable to agree to an extension, amotion orapplicationfor extension of time may be filed with the Court ofAppeal. The court may or may not grant the extension for more time.

Get a blank form APP-006 application for extension of time to file a brief

Get a blank form APP-012 stipulation for extension of time to file a brief

What happens if a party files a cross-appeal?

(Video) The 90 Day Rule for Appellate Decisions

If one of the parties files a cross-appeal, then the briefing contents and briefing schedule are different. In the event of a cross-appeal, the opposing parties must try to agree on a briefing schedule. They can either submit a joint briefing schedule, or submit a separate briefing schedule for the court to consider and make a decision about the schedule. See CRC 8.216 for the procedures for submitting such a briefing schedule.

FAQs

How long can an appellant's reply brief be in California? ›

(a) Time to file

(2) A respondent must serve and file its brief within 30 days after the appellant files its opening brief. (3) An appellant must serve and file its reply brief, if any, within 20 days after the respondent files its brief.

What is appellant's reply brief? ›

A reply brief is a useful vehicle for bringing to the court's attention a controlling or persuasive case decided after the filing of the appellant's main brief. This underscores the importance of continuing to research the law up to the date of filing of the reply brief, and then, right up to the date of oral argument.

What is an appellant's opening brief? ›

The first written brief is the opening brief. It is the case for appeal prepared by the appellant. The opening brief argues why the trial court made a legal mistake, how the mistake impacted the decision, what could be corrected or reversed in the judgment, and why the judgment should be reversed.

How do you write an introduction for an appellate brief? ›

Draft a powerful opening sentence that explains why you should prevail. Tell the court exactly what you want (i.e., the remedy you seek) Briefly present the most persuasive facts and legal authority that support your position. Include a theme that connects all of your arguments.

How long should a reply brief take? ›

The appellant files a reply brief and proof of service with the Court of Appeal within 20 days after the respondent's brief is filed.

What happens if appellee does not file brief? ›

If an appellant fails to file a brief within the time provided by this rule, or within an extended time, an appellee may move to dismiss the appeal. An appellee who fails to file a brief will not be heard at oral argument unless the court grants permission.

What makes a good reply brief? ›

A reply brief is not a con- densed version or executive summary of the opening brief. The focus of any reply brief should be to respond to opposing counsel's arguments. You should get to the heart of the matter as quickly as possible.

How do you write a good response brief? ›

How to Write an Effective Reply Brief
  1. File a reply brief unless there are strategic reasons not to. ...
  2. Focus on responding to opposing counsel's arguments. ...
  3. Leave out weak arguments. ...
  4. Maintain credibility. ...
  5. Embrace a theme. ...
  6. Do not be afraid to give your reply brief some flavor. ...
  7. Make the reply brief a stand-alone document.

Can you raise new arguments in a reply brief? ›

Do not try to raise arguments in the reply brief that could have been raised in your opening brief. Many attorneys cannot resist the temptation to bring up new points. This is not permitted, and any attempt to sneak in a new issue on reply will likely annoy the judges and result in a finding of waiver.

What does an appellate brief look like? ›

The brief should have a cover sheet stating: the name of the appellate court; the case number the appellate court has assigned to the case, or a space to enter that number if it is a new case that does not have a number; the name or “style” of the case (i.e., John Smith v.

How do I get a copy of my appellate briefs in California? ›

Once patrons have identified an appellate case, they can contact a Reference Librarian to access print copies of briefs. The collection includes briefs dating back to California's admission to the Union.

What is a appellate brief? ›

Once the appellate court files the record on appeal, you will have to prepare your brief. A "brief" is a party's written description of the facts in the case, the law that applies, and the party's argument about the issues on appeal. The briefs are the single most important part of the appellate process.

How many pages should an appellate brief be? ›

(b) Length

Such a brief must include a certificate by appellate counsel or an unrepresented party stating the number of words in the brief. The person certifying may rely on the word count of the computer program used to prepare the brief. (2) A brief produced on a typewriter must not exceed 20 pages.

How do you write a good legal introduction? ›

An impressive introduction should, firstly, outline the research topic. Do this without simply repeating the given question. Secondly, create a road map for the reader, letting them know how the essay will approach the question. Thirdly, include a thesis statement which we will review in the next point.

How long should a brief be? ›

Every brief should include, at a minimum, the facts of the case, the legal issue, the legal principle applied in the case, the holding and reasoning of the majority, and a summary of any concurrences and dissents. Your brief should not exceed 600 words, excluding concurrences and dissents.

How many pages are allowed in a reply brief? ›

The person certifying may rely on the word count of the computer program used to prepare the brief. (2) If typewritten, an opening or answering brief on the merits must not exceed 50 pages and a reply brief on the merits must not exceed 30 pages.

When it comes to oral arguments What happens if only one side files a brief? ›

If only one side waives (gives up) oral argument, the appellate court will hold oral argument with the other side. If everyone waives oral argument, the judges will consider your appeal based on the briefs and the record that were submitted.

What is a sur reply? ›

A surreply, or sur-reply, is an additional reply to a motion filed after the motion has. already been fully briefed.

How many days does an appellee have to file its brief? ›

In the typical civil appeal, appellant's brief is due 40 days after the record is received by the Clerk. Appellee's brief is due 30 days after appellant's brief is served.

How do you respond to an opposition? ›

Focus on facts and supporting authorities opposing counsel relies on that make a difference; don't waste your limited pages on inconsequential points. Respond to each argument in the sequence that is most effective, not necessarily in the order of the brief you are opposing.

How many copies of the appellant's appellee's brief shall be filed to the clerk of court? ›

Within thirty (30) days from receipt of the brief of the appellant, the appellee shall file ten (10) legible copies of his brief with proof of service thereof upon the appellant. Sec.

Do judges read reply briefs? ›

Interestingly, contrary to what practitioners may think about how appellate judges consider the cases before them, none of the panelists typically reads reply briefs first. Instead, lawyers should assume that judges will read briefs in the order in which the parties submit them.

What is a Supreme court brief? ›

Briefs are the written documents in which the attorneys in a case present their legal arguments to the court. When one researches a case, it is sometimes instructive to examine the written briefs that were filed by the parties, as well as the arguments presented orally to the court after the briefs were filed.

Can you introduce new arguments on appeal? ›

claim is properly presented, a party can make any argument in support of that claim” on appeal). Consequently, before losing all hope of introducing a new argument on appeal, consider whether the new argument is truly unpreserved or whether it might be framed in a way so as to be cognizable.

Can new issues be raised on appeal California? ›

New issues can even be raised and decided in the Supreme Court. There too, even after a first appeal, the rule about sticking to prior arguments "does not apply when the facts are not disputed and the party merely raises a new question of law." Hittle v. Santa Barbara County Employees Retirement Ass'n, 39 Cal.

When a new point can be raised for the first time in second appeal? ›

Firstly, when a necessary issue has not been determined by either the Lower Court or the Court of the first instance. Secondly, when the necessary issue has been wrongly determined by the Courts on the substantial question of law which can properly be the subject matter of the second appeal under Section 100.

What is the most important part of a case brief? ›

The Reasoning: The most important component of your case brief is the court's reasoning, or its rationale, for the holding. To determine what the court's reasoning was, ask: “How did the court arrive at the holding?

What are the key components of an appellate brief? ›

There are several components that make up your Appellate Brief: Title Page; Table of Contents; Table of Authorities; Statutes Involved; Standard of Review; Question Presented; Statement of Facts; Summary of Argument, Argument and Citation of Authority; Point headings that are within Argument section; Conclusion; ...

What are the required components of an appellant's brief in the Eighth Circuit? ›

FRAP 28(a) requires an appellant's brief to contain (1) a corporate disclosure statement, if required by FRAP 26.1; (2) a table of contents; (3) a table of authorities; (4) a jurisdictional statement; (5) a statement of the issues; (6) a statement of the case; (7) a statement of facts; (8) a summary of the argument; (9 ...

Where can I find case briefs online? ›

Briefs: Free Websites

US Supreme Court - The official US Supreme Court website lists sources to access court briefs, including a link to the ABA collection of Merits Briefs (not including amici curiae briefs and joint appendices) available through the American Bar Association's Preview of United Supreme Court Cases.

Why should parties to a dispute try to negotiate a settlement without resorting to litigation? ›

Why should parties to a dispute try to negotiate a settlement without resorting to litigation? Often a dispute can be settled through a mutually acceptable solution thus avoiding the costs, delays, and difficulties of a court trial.

How do you get California Supreme Court briefs? ›

Briefs filed with the California Supreme Court since 1990, and with the California Courts of Appeal since 1996 can be retrieved by docket number or party name though the California Public Law Library Briefs' Service, a Westlaw database.

How do you write a case brief example? ›

Steps to briefing a case
  1. Select a useful case brief format. ...
  2. Use the right caption when naming the brief. ...
  3. Identify the case facts. ...
  4. Outline the procedural history. ...
  5. State the issues in question. ...
  6. State the holding in your words. ...
  7. Describe the court's rationale for each holding. ...
  8. Explain the final disposition.

How many words should an Appeal brief have? ›

California's word limit for appellate briefs in civil cases is 14,000 words.

What is the Rule 32? ›

Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence.

What is the Rule 36? ›

The provisions of Rule 36 make it clear that admissions function very much as pleadings do. Thus, when a party admits in part and denies in part, his admission is for purposes of the pending action only and may not be used against him in any other proceeding.

How do you write your first in law essay? ›

Table of Contents:
  1. 1 #1 YOU HAVE TO PLAN YOUR ESSAY.
  2. 2 #2 BE VERY CLEAR IN YOUR INTRODUCTION.
  3. 3 #3 WRITE YOUR INTRODUCTION FIRST.
  4. 4 #4 SHORT PARAGRAPHS, SHORT PARAGRAPHS AND SHORT PARAGRAPHS!
  5. 5 #5 BE MINDFUL OF USING CASE LAW.
  6. 6 #6 REMOVE COMPOUND CONSTRUCTIONS AS MUCH AS YOU CAN.
  7. 7 #7 FINALLY – CHECK YOUR TENSES.
15 Jan 2021

How do you critically discuss law? ›

It is recommended that you make a bullet point list mentioning the pros and cons of the law so you can critically evaluate whether it's good or bad law when you consider all the factors. Then you need to think about the situations and issues where the law falls short and fails to address the situation.

What are the essentials of legal writing? ›

The paper argues that use of plain language, avoiding legalese, proper punctuation and grammar, clarity of thought, adequate and accurate research, proper organisation, brevity in expression and engaging with the audience is the key to good legal writing.

How long can reply briefs be in California? ›

Respond to the each of the arguments in the Opposition.

In most cases, the Reply briefs are limited to 10 pages (excluding the title page).

What are the six elements of a legal brief? ›

A legal brief should include:
  • The name of the case.
  • The names of the parties involved.
  • The current stage of litigation.
  • The legal issue being addressed.
  • Relevant facts of the case.
  • The rule of law applied.
  • Your argument.
  • A conclusion.
4 Mar 2022

What should a brief include? ›

10 Key Elements of a Successful Creative Brief
  1. Describe your company. ...
  2. Summarize the project. ...
  3. Explain your objectives. ...
  4. Define your target audience. ...
  5. Outline the deliverables you need. ...
  6. Identify your competition. ...
  7. Include details on the tone, message, and style. ...
  8. Provide the timing.

What is a reply brief in legal terms? ›

noun. : a brief that is filed with the plaintiff's reply and that sets forth the arguments in support thereof.

What is a respondent's brief? ›

A brief is an opportunity to explain to the Court of Appeal what your arguments are and why you are correct. It can take a lot of time, research, and effort to write a respondent's brief. There are strict rules about the format and the information that must be included.

How do you write a good reply brief? ›

How to Write an Effective Reply Brief
  1. File a reply brief unless there are strategic reasons not to. ...
  2. Focus on responding to opposing counsel's arguments. ...
  3. Leave out weak arguments. ...
  4. Maintain credibility. ...
  5. Embrace a theme. ...
  6. Do not be afraid to give your reply brief some flavor. ...
  7. Make the reply brief a stand-alone document.

How many pages can an opposition to a motion be in California? ›

Any opposition to the motion must be served and filed within five days of service of the moving papers and may be no longer than 15 pages. Any reply brief must be served and filed within two court days of service of the opposition papers and may be no longer than 5 pages.

Do judges read reply briefs? ›

Interestingly, contrary to what practitioners may think about how appellate judges consider the cases before them, none of the panelists typically reads reply briefs first. Instead, lawyers should assume that judges will read briefs in the order in which the parties submit them.

Can you raise new arguments in a reply brief? ›

Do not try to raise arguments in the reply brief that could have been raised in your opening brief. Many attorneys cannot resist the temptation to bring up new points. This is not permitted, and any attempt to sneak in a new issue on reply will likely annoy the judges and result in a finding of waiver.

What does a lawyer do with a brief? ›

A brief is a written argument submitted to the court. Lawyers often prepare briefs which highlight and clarify certain information or provide legal comparisons in an attempt to persuade the courtroom to rule in favor of that lawyer's client.

How long should heads of argument be? ›

The applicant, excipient or plaintiff in opposed motions, exceptions and provisional sentence proceedings shall not less than ten clear court days before the day of the hearing deliver concise heads of argument (which shall be no longer than five pages (“the short heads”)) and not less than seven clear court days ...

Who is respondent in a case? ›

"Respondent" refers to the party being sued or tried and is also known as the appellee.

How long is a appellate brief? ›

California's word limit for appellate briefs in civil cases is 14,000 words. Cal. R.

How do you respond to an appeal? ›

Dear [Recipient], I received your letter dated [date] appealing the termination of your employment with [company name]. I'm pleased to report that I have decided to grant your appeal and reinstate your employment should you wish to rejoin the team.

How do you write a legal reply? ›

A reply to a legal notice should contain all the necessary facts and averments regarding the case. A reply to legal notice must incorporate reply to all the facts as stated in the legal notice sent by the Claimant, which the respondent wish to state in its defence.

Can you attach exhibits to a Reply brief? ›

(d) Attachments to briefs

A party filing a brief may attach copies of exhibits or other materials in the appellate record or copies of relevant local, state, or federal regulations or rules, out-of-state statutes, or other similar citable materials that are not readily accessible.

How many days do you have to respond to a motion California? ›

2022 California Rules of Court

(3) Any opposition must be served and filed within 15 days after the motion is filed. (Subd (a) amended effective January 1, 2007.) (1) The court may rule on a motion at any time after an opposition or other response is filed or the time to oppose has expired.

How long do you have to respond to a motion in California? ›

Motion: sixteen court days before the hearing date. Opposition: nine court days before the hearing date. Optional Reply: five court days before the hearing date. Pursuant to Local Rule 1.06, the court in most departments makes a tentative ruling on the motion by 2:00 p.m. the court day before the hearing.

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