Appellate Briefing Rules

All appellate courts have rules governing the form and structure of appellate briefs. Following these rules is quite important. Below is a discussion of a 9th Circuit case where the Court of Appeals took drastic action against an appellant for repeated and egregious violations of these rules.

Date sent: Mon, 27 Oct 97

Last week, the Ninth Circuit issued a published opinion that forcefully highlights the importance of the rules for appellate briefing. That circuit has quite specific rules on the format, content and length of briefs, which are easy to obtain and (in my experience) easy to follow. Apparently frustrated with the effort required to perform a proper review when those rules are not followed, the court struck the appellant's briefs and dismissed the appeal, finding it unnecessary to discuss the merits. The opinion itself makes interesting reading and expresses the depth of feeling that the circuit has on this issue. The court insisted "that parties not clog the system by presenting us with a slubby mass of words rather than a true brief." N/S Corp. v. Liberty Mutual Ins. Co., No. 96-55641, 1997 U.S. App. LEXIS 29064 (9th CIr. Oct. 23, 1997)

Date sent: Tue, 28 Oct 97

Attorneys who do not follow the more important rules of brief format or attempt to evade them cause problems for all of us. The Second Circuit has overly strict rules on typeface. This is a result of an attorney who was denied the right to file an overlength brief and then filed the same brief with a typeface so narrow that it was hard to read. His actions were stupid and wound up penalizing everyone who practices before the Second Circuit.

Overlength briefs are almost never required and are a sign of a bad appellate advocate. Dishonest or incomplete statements are another sign of bad appellate advocacy. Failure to include all the required parts of a brief (unless it is, for example, a one sentence brief taking no position) is inexcusable.

I wonder what the lawyer did in the Ninth Circuit to so provoke the Court.

Date sent: Tue, 28 Oct 97

The Ninth Circuit case, N/S Corporation v. Liberty Mutual, 1997 U.S. App. LEXIS 29064 (October 23, 1997) is about two pages long. After a bit of general comments about the Court's tolerance of minor breaches, the Court says that the Appellant's (N/S Corporation's) violations are "legion" and then enumerates them.

The brief omitted anything about the appellate standrad of review; the brief was "replete with assertions of fact and assertions about the record" but had only a few generalized record citations and left it up to the Court to attempt to find the asserted information "alas, much of it is not there at all"; the opening brief exceeds the word limits for proportionately spaced briefs; there were "creative renditions" of the proceedings below and citations of depublished Cal;ifornia case authority; when Liberty pointed out "these failures, and others, in a motion to dismiss, N/S did not even deign to respond. Its reply brief omitted the table of contents and table of authorities cited.

The Court then went on to say that it would be uneasy striking N/S briefs and dismissing its appeal if it were otherwise meritorious, "[h]owever, the appeal is not meritorious."

The above is a quick summary of the Court's opinion.

Date sent: Tue, 28 Oct 97

Approximately one year ago, four colleagues and I, each representing a defendant in a complex first degree murder case in the Court of Appeal in Los Angeles, sat through two hours of argument before our case was called. Each of us is an experienced appellate practitioner and the bulk of all of our practices is criminal appeals, although several of us have civil background as well. All but one of the matters on calendar were civil.

We were all appalled at the number of lawyers who stood before the Court that day, reargued the facts, and seemed to have no understanding of the substantial evidence standard. In fact, few -- if any -- of the matters which preceded us actually involved issues of law.

It would be very refreshing to see our state appellate courts issue an opinion similar to N/S Corp v. Liberty Mutual. None of these lawyers was serving his or her client's interest.

The above discussion was taken from the Appellate Law Discussion list and edited.

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