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In this lesson, you will learn about each brief during the appeals process. You will know how to structure an appellate brief, what’s included, the standard of review, the appellee’s brief structure and steps, along with how to write the reply brief and why.
The Appellate brief
- Sample cover of an appellate brief
- Inside an appellate brief
- Error
- Standard of review
- Appellant’s brief
- Appellee’s brief
- Writing the reply brief
Transcript
Unlike typical motions and pleadings, an appellate brief has a cover that includes case numbers, parties, court name, and so on.
Inside, an appellate brief might look similar to motions and pleadings, except for additional inclusions, like a table of contents and table of authorities, A statement assigning error, a statement about the standard of review, a statement of conformity, and an appendix in citations to the record.
Font size might also be larger.
Error refers to the issue that led to an erroneous decision. The barring of a material witness or misinterpretation of a statute are examples of heirs. Grave heirs are deemed reversible. Minor errors might be deemed as harmless with no real bearing on the outcome of the case.
The standard of review is an appellate court\’s way of determining how much deference it will give the lower court when it decides error. The standard of review differs depending on what type of issue is being raised before the court.
Decisions on issues of fact are given greater difference than those on issues of law because the lower court judge was in the best position to determine facts.
The appellate court accepts the lower court findings of fact unless it\’s clear that a mistake was made. The arbitrary and capricious standard of review for instance is an issue of fact and is thus a very high standard of review. The court must determine if a ruling was based on something other than evidence. If the answer is no, the lower court decision stands. A substantial evidence standard determines if a ruling was supported by substantial evidence and a clearly erroneous standard determines if a ruling was at odds with the evidence. Abuse of discretion determines if a discretionary ruling was unreasonable.
When a de novo review is applied, the case is reviewed as if the lower court decision did not take place. Little deference is given to the lower court in a de novo review.
The appellate brief sets the stage for the errors or issues to be addressed on appeal. It begins the appeals process in earnest. The goal of an appellant is to convince an appellate court that it should reverse a lower court order. In the brief, the appellant should identify the correct and most useful standard of review, and the appellant should also identify cases that have reversed a ruling using the same standard of review.
The goals of the appellee\’s brief are, of course, quite different. The two main goals are to support the ruling of the lower court and to help the court write its opinion. The appellee should identify issues the appellant relies on, but did not preserve for appeal. He should also look for harmless error and for cases that have affirmed a ruling using the same standard of review.
The reply brief is written by the appellant, It\’s not required, but it helps to have the last word. The appellant should first read and understand the appellee\’s brief. The appellant should look for unsupported arguments points that are helpful to him and gaps in the argument. In writing, he should respond by briefly highlighting misstatements or overstatements and any misinterpretations of the law. He should also clarify or explain any points the appellee has confused and drive home his main point.