The vast majority of appeals are resolved without oral argument, which means that the brief is likely the only chance an attorney will have to present a client's case on appeal. The consequences of an inadequate or noncompliant brief range from frustrating the court to having the appeal dismissed. In egregious cases, sanctions may even be imposed.
Jul 22, 2018 · If your attorney over-generalizes or mischaracterizes the holding in a case, he or she will lose credibility and decrease your chances of creating a winning appellate brief. Also, your attorney should provide the appellate court with a full citation of each case, so that the appellate court can easily find the location of your citation in the case law.
Although the appellee will argue in the answer brief that the appellant’s arguments in the initial brief are incorrect, both sides must argue their positions respectfully and without name-calling or insults. The initial brief and the answer brief will each have the following sections: Table of Contents Table of Authorities
different from these sources, your credibility will come into question. 1) PERSUASIVE TECHNIQUES . Incorporate your Theory of the Case into the Statement of Facts. The Theory of the Case is the unifying concept of your case; it is an implicit message in your brief that ties together the factual, legal, and policy issues.
Whereas, appellate judges primarily correct legal errors made by lower courts, develop the law, and set forth precedent that will guide future cases. Appellate courts also sit in panels on the theory that three or more judges, acting as a unit, are less likely to make an error in judgment than one judge sitting alone.
Instead, the appellate court will “remand”, or send, the case back to the trial court for the trial court to actually fix or re-decide the issue. This means that the issue or issues wrongly decided will be re-tried or re-heard by the trial judge based on and within the instructions given by the appellate court.
If you believe the trial judge has made a mistake as your case is proceeding, you may ask the Appellate Division for permission to file an interim appeal. If this request is granted, the case will be paused until the Appellate Division decides whether or not the trial court's interim decision was correct.Jan 4, 2021
Prejudicial error can include things like mistakes made by the judge about the law, incorrect instructions given to the jury, and errors or misconduct by the lawyers or by the jury.
For example, in a criminal case a higher court may conclude that the trial judge gave a legally improper instruction to the jury, but if the mistake were minor and in the opinion of the appellate court had no bearing on the jury's finding, the appellate court may hold it a harmless error and let a guilty verdict stand.Nov 28, 2021
The job of the Court of Appeals is to see if the trial court made a mistake. 5. It's difficult to take a case to the Supreme Court because the Supreme Court chooses which cases to hear and they don't choose very many. 6.
You can change an existing court order or consent order. You can also ask a court to enforce an order if your ex-partner is not following it. If you ask the court to change or enforce an order, you'll probably have to go to a court hearing. You can usually avoid this if you get help outside of court instead.
What are the chances of success? For an appeal to succeed a party must convince the Court that the Judge that heard the original case made an error of law and that the error was of such significance that the decision should be overturned.
The short answer is that the judge makes a decision in your case whenever he or she makes a decision in your case. Attorneys don't have the authority to push judges to make decisions in cases. The judges are in control of what happens in court, which includes the time it takes to do things.
After reviewing the case, the appellate court can choose to: Affirm (uphold) the lower court's judgment, Reverse the lower court's judgment entirely and remand (return) the case to the lower court for a new trial, or.
As a general rule, the Appellate Court should not admit additional evidence for the purpose of the disposal of an appeal, and the parties are not entitled to produce additional evidence, whether oral or documentary in the appellate court.
Abuse of discretion is a standard by which appellate courts review certain decisions by lower courts. The standard is used when the appellate court is reviewing a “discretionary” ruling of the lower court judge. For example, administrative agencies are typically given wide discretion in many types of determinations.
In the statement of the case and the facts section of an appellate brief, the party writing the brief will discuss: 1 the type of case (civil, criminal, etc.), and nature of the appeal (such as an appeal from a final judgment or non-final order, etc.); 2 the procedural history of the case in the lower tribunal, such as what documents, pleadings, or motions were filed and when; what arguments and positions the parties raised the lower tribunal; and what happened in the pre-trial and trial proceedings ;, 3 the evidence that was presented to the lower tribunal at the trial or hearing, such as written documents and/or the testimony of witnesses; and 4 the outcome of the trial, hearing, or other proceeding.
Briefs must generally be printed or typed on opaque, white, unglossed paper. The paper size should be 8.5 by 11 inches. The paper should have margins of at least one inch on all sides. The lettering should be black. If a brief is typed on a computer, it must be double-spaced and use Times New Roman 14-point font, or Courier New 12-point font. Any headings or footnotes must be the same font and size as the rest of the brief. Although typed briefs must be double spaced, headings, indented quotations, and footnotes can be single spaced.
The initial brief is the first brief. It is filed by the appellant who filed the appeal. The appellant’s initial brief is due within 70 days after filing the notice of appeal. An appellant who needs extra time to file the initial brief should file a motion for an extension of time in the appellate court before the deadline for the brief. Motion practice is discussed in Chapter 4 of this Handbook. The initial brief should set out the facts and history of the case in the statement of case and facts section. It should also present legal arguments explaining each reason the appellant believes the decision of the lower tribunal was wrong (i.e., erroneous) and why it should be reversed. The initial brief cannot be longer than 50 pages, not counting the pages used for the Table of Contents, Table of Citations, Certificate of Service, Certificate of Font Compliance and the signature block for the brief’s author. A party can ask the court for permission to file brief longer than 50 pages, but such motions are rarely granted. And briefs are usually much shorter, often 20 to 30 pages or less.
The initial brief should set out the facts and history of the case in the statement of case and facts section . It should also present legal arguments explaining each reason the appellant believes the decision of the lower tribunal was wrong (i.e., erroneous) and why it should be reversed.
The appellant’s reply brief, if any, is due 20 days after the answer brief and responds to the answer brief arguments. The reply brief can be no more than 15 pages long, not counting the pages necessary for the Table of Contents, Table of Citations, Certificate of Service, Certificate of Font Compliance, and the signature block for the brief’s author.
It is a list of the legal authorities (cases, statutes, and rules) referred to or “cited” in the brief to support the party’s arguments, along with all of the page numbers where those authorities were cited in the brief.
The statement of the case and facts explains to the appellate court, based only on the documents and evidence that are in the record, what the history and facts of the case are, and what occurred in the lower tribunal. This part of the brief is for facts only, not argument.
If no notice of entry of judgment is given, then the appealing party has 180 days to file the notice of appeal. These are general rules. Be sure to determine whether special circumstances apply to the appeal. If the appeal is from a limited-jurisdiction case, the time limit is much shorter.
Donna Bader is a certified specialist in appellate law with 30 years experience, practicing in Laguna Beach. She is the former editor-in-chief of Advocate and Plaintff magazines, and is the author of An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial.
The most common mistake made by trial lawyers is to think that they should do the same thing in the appellate court that they did in trial court. They write their jury speech and call it a brief. At best, they address the appellate judges as they would address the trial judge. At worst, they treat the appellate judges like jurors.
Here is what we mean by effective packaging: A few years ago, the Supreme Court considered a case that turned on the interpretation of two complex, interrelated statutes. One statute involved regulation by the FDA, and the other involved patent law. Conventional law school wisdom would have called for the brief to begin with a statement of the events giving rise to the controversy, followed by a description of the proceedings below. The winning brief did not do that. Instead, it opened with a four-page description of the statutory scheme. Not one sentence on those four pages was argumentative or even disputable. The passage alerted the Court to the statutory elements that the brief writers knew were most significant and helpful to their side. It gave the Court a framework to understand everything else the brief said — from the statement of facts through the conclusion of the argument.
Popularly known for decades as "Stern and Gressman," the book Supreme Court Practice came out in late 1993 in a seventh edition, written by Robert L. Stern, Eugene Gressman, Stephen M. Shapiro, and Kenneth S. Geller. The lawyer writing a brief for a federal court of appeals must consult two sets of rules.
Lawyers quickly learn that is not a Boston native’s term for a milk shake, but is instead an acronym for the Federal Rules of Appellate Procedure , which apply in all federal courts of appeals. But the FRAP is not enough. A brief writer also must study the "local rules" of the court to which the appeal is being taken.
A good brief writer can formulate clear, neutral-sounding questions but frame them in a way that tends (subtly, of course) to suggest the answer the writer seeks . The question should not present your argument, but it should express a clear point of view about the case.
The Summary Follows the Argument. Experienced brief writers know that the summary of argument is usually written after the argument itself . The summary ordinarily should have the same structure as the argument. In our experience, the structure of the argument tends to evolve over the course of drafting and editing.
Alliance Resources Corp ., 113 S. Ct. 2711 (1993), represents a triumph of the tactic of presenting a new and better rationale on appeal. The highest court of West Virginia had upheld an award of punitive damages that was many times the compensatory damages; the award was therefore greatly out of proportion to the actual harm suffered by the plaintiff. The state court had opined that the case implicated no federal constitutional limit on the size of the punitive damages on the dubious ground that the defendant had been "really mean." The Supreme Court’s grant of certiorari suggested likely dissatisfaction with the West Virginia court’s rationale.