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An Appellate Brief

An appeal brief is an appellant’s or respondent’s written argument that explains why the higher court acted correctly or wrongly. It’s time to prepare a brief once the record has been compiled.

There Can Be 3 Briefs:

  1. an opening brief of the appellant,
  2. a brief of the respondent, and
  3. a brief of reply of the appellant.
  • The opening brief of the appellant tells the Court of Appeal what judgments or orders the appellant appeals, why the appellant believes that the higher court acted incorrectly in making those judgments or orders, how the actions of the court hurt the appellant, and what the appellant wants the Court of Appeal to do about it if it finds that the higher court acted wrongly.
  • The brief of the respondent responds to each of the appellant’s questions, displaying why the arguments of the appellant are incorrect and expressing support for the decision of the trial court.
  • The answering brief of the appellant addresses the respondent’s claims and reveals how they do not resolve the arguments put forward in the opening brief of the appellant. In the reply summary, no new issues can be presented.

The Opening Brief of the Appellant

The opening brief of the appellant is due 40 days after the appellant has been informed by the Court of Appeal that the transcript of the record or reporter is filed. Whether the appellant prepared his/ her own appendix and did not request the transcript of a reporter, the opening brief and appendix of the appellant are due 70 days from the date on which the appellant filed in the superior court the election of rule 8.124.

In either case the Court of Appeal shall send the appellant a notice specifying when the opening brief of the appellant is due.

The Brief of the Respondent

You will need to address the facts and legal issues raised in the opening brief of the appellant if you are the respondent.

First of all, make sure

  • that there is a final judgment if the appeal is from a judgment or
  • that the order is appealable, that the appeal is from an order and
  • that the notice of appeal has been filed on time or that the appeal has been filed on time.

If there is a problem with the appeal, you can file a motion to reject the appeal and/or argue in your respondent’s brief that the appeal should be rejected.

The Brief to Reply the Appellant

Why a brief reply from an appellant?

Why is there no response to the answer?

Because the appellant has the burden of proving that the trial court erred to the Court of Appeal, the defendant has the opportunity to respond to the brief of the respondent. The brief reply from the appellant is optional.

No new issues can be raised in the reply as there would be no opportunity for the respondent to refute them. The appellant will explain how the respondent did not combat the statements of the appellant contained in the opening brief; answer the cases and points posed in the brief of the respondent; and respond to new questions raised in the brief by the respondent.

Somewhere the briefing has to stop, and that’s where it stops!

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