Once the appellate court files the record on appeal, you will have to prepare your brief. A "brief" is a party's written description of the facts in the case, the law that applies, and the party's argument about the issues on appeal.
PRINT EMAILThe record on appeal (the clerk's and reporter's transcripts or other form of the record) provides the appellate court with a picture of what occurred in the trial court. But it is the arguments in the briefs that explain whether or not there was a legal error in those proceedings and whether it changed the outcome of the case.
The best briefs contain your entire argument, guiding the appellate court through the case and using the record and legal authority to justify your points. Because of the specialized knowledge necessary for writing a good brief, the briefs are also by far the most difficult part of the appellate process.
The appellant's opening brief is the first brief from the appellant (the person who is appealing). It must clearly explain, using references to the clerk's transcript and the reporter's transcript (or the other forms of the record that you are using), the legal errors the appellant claims were made by the trial court.
This brief also tells how those legal errors hurt the appellant and what the appellant wants the Court of Appeal or appellate division to do. Remember that an appeal is not a new trial; the appellate court will not consider new evidence, such as the testimony of new witnesses or new exhibits, so you should not try to include any new evidence in your brief.
The appellant's opening brief is mandatory:
If the appellant does not file their opening brief by the deadline set by the court, the court may dismiss the appeal.
The respondent's brief is the other side's chance to respond to the appellant's opening brief. It must address the facts and legal issues raised in the appellant's opening brief and explain why the trial court's decision was correct and should not be overturned. The brief may bring up some issues that the appellant's opening brief did not.
The respondent is not required to file a brief. But if the respondent chooses not to file a brief, the court can decide the appeal on the record, the appellant's opening brief, and any oral argument by the appellant, so the respondent will lose the chance to make their argument about the issues in the case.
The respondent's brief is due 30 days after the appellant's opening brief is served and filed.
If the respondent files a brief, the appellant can also file another brief replying to the respondent's brief. This is called a "reply brief." The appellant's reply brief is optional. If the appellant decides to reply to the issues raised in the respondent's brief (the appellant cannot raise new issues), the appellant's reply brief is due 20 days after the respondent's brief is served and filed.
Some juvenile cases have a fourth brief, the minor's opening brief. In some appeals, such as cases involving termination of parental rights, the minor's lawyer may file a brief (this is optional). It is due within 10 days after the respondent's brief is filed.
For the rules about what must be in your brief and how it must be written, including requirements for the format and length of these briefs:
For the rules about serving and filing briefs:
For appeals of limited civil cases in the appellate division of the superior court, the requirements for what must be in a brief and how the brief must be prepared are in rule 8.883 of the California Rules of Court.
For appeals of civil cases in the Court of Appeal (unlimited civil cases), the requirements for what must be in a brief and how the brief must be prepared are in rule 8.204 of the California Rules of Court.
For appeals of juvenile cases, which are unlimited civil appeals in the Court of Appeal, the requirements for what must be in a brief and how the brief must be prepared are in rule 8.412 of the California Rules of Court.
In general, the appellant's opening brief must:
Remember, these are just some of the requirements. There are others, like the size of the font, the number of words, the margins, type of paper, and others.
All briefs in civil cases must be served on all the parties and on the clerk of the superior court (for delivery to the judge in the case) and must be filed in the appropriate appellate court (the Court of Appeal or the appellate division of the superior court).
In unlimited civil cases (in the Court of Appeal), briefs must also be served on any public officer or agency required to be served under rule 8.29 of the California Rules of Court. If a brief is not filed electronically, an electronic copy of the briefs must be submitted to the Court of Appeal under rule 8.212 of the California Rules of Court. If submitting an electronic copy of the Court of Appeal would cause undue hardship for the party filing the brief, the party can instead serve 4 paper copies on the Supreme Court.
For more information about serving and filing briefs in the appellate division (limited civil appeals), read rule 8.882.
For more information about serving and filing briefs in the Court of Appeal (unlimited civil appeals), read rule 8.212.
In the appellate division of the superior court, for a limited civil appeal, you and the other parties can agree to a maximum of 30-days in extensions on time to file your brief. If you need more time or if you are unable to get the other side to agree to an extension, you may file an application asking the appellate division for more time to file your brief (see California Rules of Court, rules 8.806, 8.810, and 8.882). You can use Application for Extension of Time to File Brief – Limited Civil Case (form APP-106 ).
In the Court of Appeal, you and the other parties can agree to up to a maximum of 60 days in extensions of time to file your brief, but only if you have not already gotten an extension from the court. If you agree to an extension, the parties can use a Stipulation for Extension of Time to File Brief (Civil Case)(Appellate) (form APP-012). (Remember, this applies to civil cases only). If you need more time or if you are unable to get the other side to agree to an extension, you may file an application for extension of time with the Court of Appeal (see California Rules of Court, rules 8.50, 8.60, and 8.212(b)). You can use Application for Extension of Time to File Brief – Civil Case (form APP-006).
To ask the court for an extension of time in appeals of juvenile cases, you can use:
If the appellant's opening brief or a respondent's brief is late, the appellate court clerk will send a notice that gives the party 15 more days to file the brief.
If the appellant's opening brief is not filed within this 15-day grace period allowed under the rule, the court may dismiss the appeal. If the respondent's brief is not filed within the 15-day grace period, the court may decide the case on the appellant's opening brief, the record, and any oral argument by the appellant.
A party can apply for an extension of time to file a brief for good cause if they ask for the extension within the 15-day grace period. If the appellant's opening brief is not filed during this extension, the court may dismiss the appeal.
If the brief is not done correctly — if it is too long, for example — the court may refuse to file it, return it to the party for corrections and changes, or choose to disregard the problem and accept the brief as is.
If the brief is returned for corrections, generally it is necessary to prepare a new document, which must be served on all the parties and filed with the court.
If the incorrect or omitted items have been redone properly, the court will file the corrected document. If the items have not been redone properly, the court may refuse to file the brief. If the appellant's opening brief is not filed, the court may dismiss the case. If the respondent's brief is not filed, the court may let the appeal proceed on the record and the appellant's opening brief and oral argument.
Once you've prepared your briefs, you need to decide if you want also want to argue in person, called oral argument.