What is an appellate brief?

An appellate brief is a formal court document that lays out all of the arguments a petitioner or respondent plans to make on appeal.  Both the petitioner in an appeal and the respondent file an appellate brief.

Appellate briefs are only used when the case is being appealed, which occurs after the trial phase is over.  Usually, the petitioner files his or her brief first, sending a copy to the court and to each respondent in the case.  The respondent or respondents prepare and file their own briefs, addressing the arguments in the petitioner’s brief and raising any other arguments or affirmative defenses and presenting evidence from the trial record to support the respondents’ arguments.  Some courts allow the petitioner to file a reply brief, similar to the way trial courts allow a party that filed a motion for summary judgment or similar document to reply to the opposing party’s response.

The rules that govern what an appellate brief must contain and how it must be formatted vary according to which state or federal court the appeal is being filed in.  For instance, the Federal Rules of Appellate Procedure, used in U.S. Courts of Appeals, require that the appellate brief contain at least the following information:

  • the “question presented,” or the question the petitioner wants the court to answer (preferably in the petitioner’s favor);
  • a summary of the facts of the case that puts the question presented in context, so the judges can understand it;
  • the relief sought, or what the petitioner wants the court to do;
  • the reason the appeal should be permitted, and the law or court rule that permits the appeal; and
  • a copy of the order, judgment, or decision the petitioner is appealing, and any permission from the lower court to do so, if permission is required.

Once the petitioner has filed her appellate brief, each respondent in the case has only a few days to file his own appellate brief, addressing the petitioner’s arguments and explaining why the court should find in favor of the respondent, not the petitioner.

Often, the formatting rules for appellate briefs are much stricter than they are for briefs filed in the trial court.  Appellate briefs often require more research and legal argument than trial court briefs as well, since they are often asking the court to come to a specific conclusion about the law that governs the case, rather than the case’s individual facts.  In some jurisdictions, appellate practice differs so greatly from trial practice that some attorneys choose to specialize in appeals only, although it is possible for an attorney to do both trial and appellate work.

An appellate brief must base its arguments on the record produced at trial.  In the federal courts, the “record” consists of the following information:

  • the original papers and exhibits filed with the trial court,
  • a transcript of the testimony and other events that occurred at trial or a hearing, if any sort of hearing or trial took place, and
  • a certified copy of the docket related to the case, prepared by the clerk of the trial court.

The record must be filed with the appeals court as well, along with the appellate briefs.

Once the briefs are filed and the appellate court judges have had a chance to look them over, a hearing is scheduled, at which the parties or their attorneys have a chance to present oral arguments to the appeals court.  These arguments give the parties a chance to explain their positions more thoroughly and give the judges the chance to ask any questions they may have.


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