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How do I write an appellate brief?

In short

• An appeal is not a second trial. The appellate court reads the record and the briefs. It does not hear witnesses and it does not take new evidence.
• The standard of review controls everything. Whether the court owes the trial judge deference on a given issue usually decides whether you win it.
• An issue not raised in the trial court is usually forfeited on appeal. What you can argue was fixed before the appeal began.
• The brief’s required sections are set by rule, and briefs are rejected by the clerk for missing them or for exceeding the word limit.
• The brief follows a notice of appeal filed on a very short deadline, and the deadline for the brief itself runs from an event in the appellate court, not from the judgment.
• Names differ: the first brief is the appellant’s brief in federal court and most states, the initial brief in Florida, the appellant’s opening brief in California, the opening brief in the Ninth Circuit.

How do I appeal a court decision? The appeal process step by step

Before the brief there is the appeal itself, and most of what decides an appeal happens before a word of the brief is written. This is how to file an appeal, in order.

1. Judgment is entered in the trial court. The clock starts here, not when you received the ruling and not when you understood it.
2. You file a notice of appeal in the trial court — not the appellate court. It is short: who is appealing, what judgment or order, to which court. This deadline is jurisdictional, which is a way of saying that no judge can forgive it.
3. You pay the filing fee, or apply for a fee waiver. The appellate fee is separate from what you already paid below and is set by that court’s own fee schedule.
4. The record is designated and transmitted. This filing is the designation of the record: you tell the clerk which parts of the trial court file and which transcripts are to go up, and you order and pay for those transcripts.
5. The appellate court sets a briefing schedule, usually running from the date the record is filed. Federally, Fed. R. App. P. 31(a)(1) gives an appellant 40 days after the record is filed, an appellee 30 days after the appellant’s brief, and a reply 21 days after that and at least 7 days before argument. Circuit local rules often change the trigger, so read them.
6. Briefs are filed. Appellant, appellee, reply.
7. Oral argument, or not. Most appeals are decided on the briefs.
8. The court decides: affirm, reverse, vacate, remand, or modify. A published opinion binds later cases; an unpublished one may not.
9. Post-decision options exist and are narrow: a petition for rehearing, rehearing en banc, or review in the state supreme court or the United States Supreme Court. Each has its own short deadline.

What is an appellate court?

An appellate court reviews what a lower court did rather than trying the case itself. It hears no witnesses and takes no new evidence. In the federal system it is one of the thirteen courts of appeals, sitting in panels of three; in a state system it is usually an intermediate appellate court with the state supreme court above it.

How long do I have to file an appeal?

In an ordinary federal civil case, 30 days from entry of the judgment, under Fed. R. App. P. 4(a)(1)(A). A criminal defendant has 14 days under Rule 4(b)(1)(A).

You will see “60 days when the government is a party” repeated all over the internet, and it is a trap worth naming. Rule 4(a)(1)(B) gives 60 days only where the United States, a federal agency, or a federal officer or employee is a party in the way that rule describes. A civil rights case against state or local officials is not one of those — a Section 1983 appeal against a city, a county or a state officer gets 30 days like any other civil case, even though the defendants are government. Reading it the other way has cost people their appeals.

Certain post-judgment motions restart the appeal clock and others do not, which is its own trap: a timely Rule 59 motion tolls it, an untimely one does not. States differ again — California allows 60 days from service of notice of entry, or 180 days if it was never served, on form APP-002. Find your own rule and your own trigger date before anything else on this page.

What is the record on appeal, and what is a designation of the record?

The record is everything the trial court had: the papers filed in the case, the exhibits admitted, and the transcript of the proceedings. Federally it is defined in Fed. R. App. P. 10 and transmitted under Rule 11; states call it the record on appeal, the clerk’s transcript, or the appendix.

Two consequences follow, and they are the two things people most often get wrong. Nothing outside the record can be considered — a document you found afterwards, a witness who never testified, an explanation you never got to give. And you have to pay for the transcript, which is frequently the largest single cost of an appeal and is the point at which many appeals quietly stop. If you cannot pay, the fee waiver is a separate application with its own form, and you file it early rather than after the deadline to order has passed.

The designation of the record is the filing in which you tell the clerk which parts of the file and which transcripts go up. Designate too little and the appellate court cannot see your error; designate everything and you pay for transcripts you do not need. If something that should be in the record is missing or wrong, most systems have a correction procedure — federally, Rule 10(e). Use it before you brief, not after.

What is an appellate brief?

The appellant files first, arguing what went wrong. The appellee answers, defending the judgment. The appellant may file a reply, limited to answering the answer.

The brief is not a letter to the court and it is not a complaint about the outcome. It is a structured legal argument, confined to the record, addressed to judges who did not attend the trial and who will know only what the record and the briefs tell them.

Most federal and state appellate courts decide the majority of their cases without oral argument. The brief is what is read. Where argument is held it is usually fifteen minutes a side, and the judges have already formed a view from the papers.

What an appellate court can do: affirm, reverse, vacate, remand for a new trial or for further proceedings, or modify the judgment. What it will not do: hear your side of the story again, consider a document that is not in the record, or reverse because the result feels wrong.

What is a standard of review?

This is the most important concept in appellate practice and the one most often left out of a self-represented brief. For each issue, the appellate court applies a standard that tells it how much deference to give the trial judge.

The practical lesson is to lead with the issues reviewed de novo. An appellant arguing that the jury believed the wrong witness is arguing into the teeth of the most deferential standard in the system. An appellant arguing that the judge misread a statute is arguing into the least deferential one. Appellate rules require the standard of review to be stated for each issue — it is not optional and it is not decoration.

This is also why a grant of summary judgment is a comparatively good thing to appeal: it is reviewed de novo, with no deference at all. What summary judgment is, and how it is opposed, is covered on the motions page.

What are the parts of an appellate brief?

Federal courts of appeal set out the appellant’s brief in Fed. R. App. P. 28(a). Most state appellate rules follow a closely similar list, in a different order and with different names.

• Corporate disclosure statement, where a party is a corporation.
• Table of contents, with page references.
• Table of authorities — every case, statute and other authority, with the pages they appear on. Courts do check this.
• Jurisdictional statement — the basis for the trial court’s jurisdiction, the basis for the appellate court’s, the dates establishing the appeal is timely, and that the judgment is final or otherwise appealable. An appeal from an order that is not appealable is dismissed, and this section is where that becomes visible.
• Statement of the issues presented for review. Usually a small number of questions, written so that the answer you want is the natural one. This is the most reworked part of a good brief.
• Statement of the case — the facts relevant to the issues, the procedural history, and the rulings under review, with a citation to the record for every assertion. An uncited factual assertion is disregarded at best and invites a sanction at worst.
• Summary of the argument — a genuine summary of the reasoning, not a list of headings. Some judges read this and the standard of review before anything else.
• Argument — the substance. For each issue: the contention, the standard of review, the controlling authority, and its application to the facts of this record. Point headings in the table of contents should read as the outline of the argument.
• Conclusion — a short statement of the precise relief sought. Reverse and remand for a new trial. Vacate the sentence and remand for resentencing. Reverse and direct entry of judgment. Say which.
• Certificate of compliance with the type-volume limit, and a certificate of service.

The appellee’s brief, under Rule 28(b), omits several sections unless it disagrees with the appellant’s version. The reply brief, under Rule 28(c), is confined to answering the appellee. Separately, the record excerpts or appendix — Fed. R. App. P. 30 federally — must contain everything you cite.

How long can an appellate brief be?

Federally, Fed. R. App. P. 32(a)(7) sets a type-volume limit: a principal brief may contain no more than 13,000 words, and a reply brief no more than half of that, which the Appendix of Length Limits states as 6,500 words. The certificate of compliance under Rule 32(g) states the count. Rule 32(a)(5) also governs the type itself: a proportionally spaced face must be 14-point or larger and must have serifs, with sans-serif permitted only in headings and captions, and Rule 32(a)(4) requires double spacing on 8½ × 11 paper with one-inch margins.

State limits differ widely, and several states still use page limits rather than word counts. Exceeding the limit is a clerk-level rejection in most courts, and leave to exceed it is a motion that has to be filed in advance and is often denied.

Shorter is generally better. The limits are ceilings, not targets, and a thirty-page brief with three strong issues does better than a sixty-page brief with nine.

How do I write an appellate brief myself?

Ten steps, in order. The first four decide whether you have an appeal at all; the rest are the brief.

1. Protect the deadline first. Covered above. Miss the notice of appeal and there is no appeal to brief.
2. Order the record. Transcripts ordered and paid for, or a fee waiver applied for, and the clerk’s record designated. The brief’s deadline typically runs from the record being filed rather than from the judgment.
3. Read the record, all of it, with the issues in mind. This is the largest single block of work in an appeal and there is no shortcut. You are looking for the exact place where each error happened and for the place where it was objected to.
4. Check preservation for every issue. Was the objection made, the argument raised, the offer of proof put on the record? An issue raised for the first time on appeal is generally forfeited, and the exceptions are narrow. This check often eliminates the issue you care most about.
5. Choose the issues. Two to four strong ones. A brief that raises nine issues tells the court that none of them is strong, and appellate judges say so openly.
6. Identify the standard of review for each surviving issue, and rank them so the de novo issues come first.
7. Research the controlling authority. For a federal appeal, the Supreme Court and your own circuit; for a state appeal, the state supreme court and the intermediate appellate district that covers your case. Then verify each one is still good law. In an appellate brief a citation to an overruled case is a serious credibility problem, and courts have sanctioned filers for citing authority that does not exist.
8. Draft with a record citation in every factual sentence and a pin cite in every legal one.
9. Build the tables, run the word count, complete the certificate of compliance, assemble the appendix, and check the local rules of that specific appellate court for its own additions — cover colour, number of paper copies, electronic format, whether a separate excerpts volume is required.
10. File and serve on the schedule, and calendar the answering brief and your reply.

Steps 3 and 7 are why appellate briefs cost what they cost. The record reading is hours, and the research is the part that cannot be done well without a tool that tells you whether a case still stands. Free research — CourtListener, govinfo, Justia — finds opinions. Confirming that a decision has not been overruled, and finding the later case that limits it before your opponent does, is the service Westlaw and Lexis sell. In an appeal, where the panel will read what you cite, it is not optional.

What is the brief called in my court?

The same document has different names, and each one is its own search.

There are also briefs that are not party briefs. An amicus curiae brief is filed by a non-party with the court’s permission or the parties’ consent. A brief in support of a petition for review or for certiorari is a different document with its own shorter limits — the Supreme Court’s own requirements are in its Rules of the Court.

What mistakes sink an appeal?

• The notice of appeal, filed late. Nothing after this matters.
• Issues that were never preserved in the trial court, argued at length and disposed of in a sentence.
• Too many issues, so that the good one is buried at page forty.
• No standard of review, or the wrong one, so the brief argues facts to a court reviewing for clear error.
• Factual assertions with no record citation, which the court will not credit.
• Word limit exceeded or certificate of compliance missing, and the brief bounced by the clerk with the deadline running.
• Authority that has been overruled or that is not binding on this court.

Common questions

Rules and cases cited on this page

Fed. R. App. P. 3, 4, 10, 11, 28, 30, 31, 32 and the Appendix of Length Limits · Fed. R. Civ. P. 52(a)(6), 59 · Fed. R. Crim. P. 52(b) · Cal. Rules of Court and form APP-002 · Fla. R. App. P. · N.Y. C.P.L.R. art. 55 · the local rules of your appellate court

United States v. Olano, 507 U.S. 725 (1993)

Related pages

How do I file a motion in court? · What is post-conviction relief? · What is a Section 1983 lawsuit?