The Appeals Process: The Appellate Briefs

The Appellate Briefs

The appellate lawyer then begins the time-consuming process of reviewing the appellate record page-by-page and line-by-line to determine what grounds for appeal exist. This process usually involves reading and analyzing the thousands of pages that make up the appellate record multiple times. The analysis of the appellate record by the appeals attorney must be thorough and complete to ensure that every error of fact and law is discovered and investigated in depth. The ability to identify and define the key issues in an appeal is critical because a focused appeal will always be more successful than throwing everything against the wall and seeing what sticks. Knowing how to find and analyze the key issues requires more than knowing the law but it requires knowing where the law is headed and where it can be pushed forward, which only comes from years of experience.    

The review of the record on appeal usually involves the creation of an abstract of the record. This abstract is essentially a detailed index of the record. This abstract will be used to prepare the actual opening brief. The person who filed the notice of appeal, known as the appellant, files the opening brief; in most cases in the appellate court it is the defendant who was convicted. However, the State is allowed to file what is known as an interlocutory appeal in certain situations such as when they lose a motion to suppress or a motion to dismiss.     

The opening brief is the single most important part of the appellate process. A talented appellate attorney is able to shine in the opening brief. The brief is a written argument that contains the issues presented for review; the standard of review for the issues presented; a concise statement of facts; a detailed argument in support of your arguments; and the remedy being sought in the appellate court. The argument section must cite by page the law that supports the arguments being made and cite to the appellate record by page where the error was made, which is why a detailed abstract is so important. Anything short of that could result in the appellate court dismissing the opening brief without even considering the arguments.

After the appellant files the opening brief the person defending the appeal, known as the appellee, files a response. The appellee’s response is held to the same rules and procedural standards as the opening brief. The purpose of the response brief is to establish that reversible error did not occur in the trial court. The response must also cite by page to the law that supports its positions and it must cite to the appellate record by page.

Once the appellee’s response is filed, the appellant is allowed to file a reply brief. The reply brief is meant only to respond to the arguments made in the appellee’s response. The reply brief cannot raise new arguments not raised in the opening brief. After the reply brief, the appellate rules prevent any more filings by either party. At this point, the appellate court is allowed to make a ruling based solely upon the briefs filed by the parties. However, a few cases are called for oral argument by the appellate court.

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