How to Write a Standard of Review for Appellate Brief

Introduction

In well-nigh appeals, an initial brief, an reply brief, and a answer brief will be filed, in that order.  The appellant, who filed the notice of appeal, will file the initial brief first.  And then the other party, the appellee, will respond with an answer brief.  Finally, the appellant can respond to the answer brief past filing a answer brief.  In the case of boggling writs, a petition is filed as the brief. Boggling writ petitions are discussed in Chapter x of this Handbook.

Earlier writing an appellate cursory, a party should review the appellate record to understand the history and facts of the instance, research the law, and decide what arguments to make and issues to raise. The appellant will want to argue why the lower tribunal's decision or judgment should be reversed (why the lower court "erred").  And the appellee will want to argue why the decision was right and should be upheld, or "affirmed."

Over again, the initial brief is filed first by the appellant.  The appellee does non file an answer cursory until after the initial brief, because the reply cursory will reply to the arguments in the initial brief.  The answer cursory is so filed by the appellant subsequently, and in response to, the reply brief.  Both the initial brief and the answer brief will contain a section called the statement of the instance and facts.  In this department, the briefs discuss the history and facts of the case. There must be no argument in the facts section.  The initial and reply briefs will also incorporate statement sections.  There will be a summary of the argument section, which is a short preview of the argument, and likewise a separate and longer argument department where the party volition fully discuss all points on appeal.  Initial and answer briefs should too country the standard of review.  The answer brief will merely need an statement section, since it just responds to the respond brief (and cannot add any new arguments).  All appellate briefs should incorporate citations to the appellate record for any facts discussed, whether in the facts section or the argument.  All briefs should also comprise citations to legal authority (statutes and instance constabulary) in the statement section.

Equally mentioned above, before a party writes an appellate brief, he or she should consider and written report several things.  For case, the party writing the appellate brief reads the record on entreatment prepared by the clerk of the lower tribunal that entered the order or judgment appealed.  This record will include the of import pleadings filed in the example and should also include transcripts of whatsoever important hearings that were held that relate to the issues raised in the appeal.

The party writing the appellate brief besides researches what police force applies to the party'south example and to the issues raised in the entreatment.  This may include statutes, example police force, rules, or other sources of law. The party writing the appellate brief goes to a constabulary library or does legal research on the computer to look for cases or statutes, preferably ones from the State of Florida, that support his or her argument.  So the party writing the appellate brief gathers together any statutes and case law that support the argument he or she is going to brand in the appellate brief.  This is because the Florida Rules of Appellate Procedure crave the appellate political party to specifically refer, or "cite," to those cases or statutes in the appellate cursory to support his or her argument.  Citations to legal authorities in the cursory should follow the format for citations constitute in Florida Dominion of Appellate Procedure 9.800.

Formatting for All Briefs

Florida Dominion of Appellate Procedure nine.210 requires that all briefs have a specific format.  Briefs must generally be printed or typed on opaque, white, unglossed paper. The paper size should be 8.5 past 11 inches.  The paper should take margins of at least i inch on all sides.  The lettering should be blackness.  If a brief is typed on a computer, information technology must be double-spaced and utilise Times New Roman 14-indicate font, or Courier New 12-point font.  Any headings or footnotes must be the aforementioned font and size equally the rest of the cursory.  Although typed briefs must be double spaced, headings, indented quotations, and footnotes tin can be single spaced.

The brief should have a embrace sail stating: the name of the appellate court; the case number the appellate courtroom has assigned to the case, or a space to enter that number if it is a new example that does not accept a number; the name or "style" of the case (i.eastward., John Smith v. Jane Doe); the name of the lower tribunal that entered the order or opinion on appeal; the proper noun of the brief (i.e., initial cursory of appellant John Doe); and the name and address of the person filing the brief.

Briefs filed in paper format should not be stapled or bound (except past newspaper clip or safe band).  This is a contempo requirement that assists the clerks of court, who now have to scan paper briefs into the computer.

Contents of the Initial Brief and Respond Brief

The initial brief is the first brief.  It is filed past the appellant who filed the appeal. The appellant's initial brief is due within 70 days subsequently filing the detect of appeal.  An appellant who needs extra time to file the initial brief should file a motion for an extension of time in the appellate courtroom before the deadline for the brief.  Motion practice is discussed in Chapter 4 of this Handbook.  The initial brief should set out the facts and history of the case in the statement of case and facts section.  It should also present legal arguments explaining each reason the appellant believes the decision of the lower tribunal was wrong (i.eastward., erroneous) and why information technology should exist reversed.  The initial brief cannot be longer than 50 pages, not counting the pages used for the Tabular array of Contents, Table of Citations, Document of Service, Certificate of Font Compliance and the signature cake for the brief's writer. A party can ask the court for permission to file cursory longer than 50 pages, but such motions are rarely granted.  And briefs are usually much shorter, often xx to 30 pages or less.

The answer brief is the side by side cursory.  It is filed by the appellee inside 20 days after the initial brief, again unless a movement for an extension of time is filed before the deadline. The answer brief responds to the arguments in the initial brief.  Information technology volition contend why the lower tribunal's decision was right and should be affirmed. Like the initial brief, the respond brief generally cannot be longer than fifty pages.  Unlike the initial brief, the answer cursory is not required to take a argument of the case and facts section, but it usually should have ane to explicate the case from the appellee'south perspective. Although the appellee will fence in the answer cursory that the appellant's arguments in the initial brief are wrong, both sides must argue their positions respectfully and without name-calling or insults.

The initial brief and the answer brief will each have the following sections:

1. Table of Contents
2. Table of Authorities
3. Statement of the Case and Facts
4. Summary of the Argument
5. Standard of Review
6. Argument
7. Conclusion
8. Certificate of Service
9. Certificate of Font Compliance

1. Tabular array of Contents

   The tabular array of contents lists the sections and event headings in the brief, with the corresponding page numbers of where in the brief those sections and headings are.  For case, a tabular array of contents for an initial brief might expect something like this in an appeal of a final judgment entered after a jury trial:

   
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2. Table of Regime

   The table of authorities (also called the table of citations) is similar to the table of contents.  It is a list of the legal authorities (cases, statutes, and rules) referred to or "cited" in the cursory to support the party's arguments, along with all of the page numbers where those regime were cited in the brief. Cases are listed in alphabetical order.  Statutes are listed in numerical club. Legal regime are cited in the format required past Dominion 9.800 of the Florida Rules of Appellate Process.

   For example, a table of authorities in an appellate brief might await like this:

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3. Statement of the Case and the Facts

   Before writing the brief, the party will take reviewed the record on appeal that was prepared by the clerk of the trial court (or other lower tribunal) that entered the order or judgment existence appealed. The statement of the example and facts explains to the appellate courtroom, based but on the documents and evidence that are in the record, what the history and facts of the case are, and what occurred in the lower tribunal. This part of the brief is for facts only, not argument.

   The appellate party may non discuss in the brief any fact or circumstance that is not in the appellate tape, such as events occurring after the gild or stance on entreatment was entered, or documents or evidence he or she did not present to or file in the lower tribunal.  In any appellate brief, every sentence containing a fact must be followed past a commendation referring to the page number of the record on entreatment where that fact tin exist found or supported.  Usually, the appellate party would refer to a page of the tape in parentheses or brackets with an "R." followed by the book and page number. Ii common formats for citing the tape book and folio numbers are, for example:  (R. Vol. ane, pp. ane-8; R. Vol. 4, p.815), or [RI.1-viii; RIV.815].  If there is a trial transcript in the tape that has split up page numbers, the appellate party may refer to it as "T." followed by the folio number.  Citations in the statement of example and facts section of a cursory might await something similar this:

   This case arises from an automobile accident.  [RI.12-18]. Plaintiff, Mr. Roberts, filed a lawsuit against Defendant, Ms. Wynn, alleging she was negligent in causing the accident and that he was injured as a issue. [RI.12-18].  Defendant denied she was negligent or that the accident caused Plaintiff's alleged injuries.  [RI.34-36; RII.205].

   At trial, Plaintiff'southward treating medico, Dr. John, testified Plaintiff was injured as a upshot of the accident.  [T.235-40, 315-nineteen]. Defendant'south expert, Dr. Smith, testified that Plaintiff was not injured. [T.441-44, 448-52].

   In the statement of the case and the facts section of an appellate brief, the political party writing the brief will talk over:

   1. the blazon of instance (civil, criminal, etc.), and nature of the appeal (such as an entreatment from a final judgment or non-final order, etc.);
   2. the procedural history of the instance in the lower tribunal, such as what documents, pleadings, or motions were filed and when; what arguments and positions the parties raised the lower tribunal; and what happened in the pre-trial and trial proceedings;,
   3. the evidence that was presented to the lower tribunal at the trial or hearing, such as written documents and/or the testimony of witnesses; and
   4. the outcome of the trial, hearing, or other proceeding.

   The appellate party drafting the brief includes in this section those facts that specifically chronicle to the issue he or she is arguing.  For case, an appellant who is only arguing that the trial courtroom erred in excluding certain bear witness at trial probably would not demand to discuss facts regarding jury selection in the brief.  The statement of the case and the facts is usually presented in chronological order to make it easier for the appellate court to follow and sympathize.

4. Summary of the Argument

   This section provides an overview of the arguments made in the appellate brief.  It is much like a "road map" that previews the arguments.  The summary of the argument is seldom longer than two pages, and is never longer than five pages.  Since the summary of the statement is only a brusk preview of the arguments, it generally does not need to have citations to the appellate record or legal authorities.

5. Standard of Review

   While the standard of review does not have to be in a dissever section, it must be included in the brief.  If it is not in a dissever section, it should be included in the argument section, at the first of each issue. Whether it is in a separate section or in the statement, the standard of review should be stated for each point on appeal.  The standard of review is very short, usually just a sentence or two and ofttimes no longer than a paragraph.  It tells the appellate court whether the effect raised on appeal is a question of fact, law, or both.  This is important because the standard of review determines how much weight or "deference" the appellate courtroom will give to, or how strictly it will question, the lower tribunal's rulings and determination.

   Appellate courts give the greatest deference to a lower tribunal's findings of fact and discretionary decisions. Findings of fact are generally reviewed for "competent substantial prove," meaning they will normally be upheld if supported by any competent bear witness in the record.  Discretionary decisions, such every bit rulings on testify, are reviewed for an "abuse of discretion," meaning they will commonly be upheld unless the determination was extremely unreasonable.

   Appellate courts review pure legal issues, such as the interpretation of a statute, with the least amount of deference.  This is chosen the "de novo" standard of review.  Under this standard, appellate courts decide for themselves what the police force says and what the decision of police force should be, without deferring to the trial courtroom'due south determination.

6. Statement

   The argument department explains the political party'southward legal arguments in the appeal and why the determination of the lower tribunal should either be affirmed or reversed. It discusses the relevant statutes and case law, how the law applies to the facts in the instance, and the party's arguments based on the police force as practical to the facts.  Information technology explains the legal reasons why the guild or judgment of the lower tribunal was either correct or incorrect, and what specific result, or "relief," the party wants in the appeal (i.e., what the political party wants the appellate court to do).  For case, an appellant may enquire the appellate court to reverse the final judgment and return, or "remand," the case to the lower tribunal for a new trial, whereas an appellee may ask the appellate court in the reply brief to assert the final judgment.  The statement should be supported by references to legal cases, statutes, and rules that support that appellate political party'due south argument that the lower tribunal conclusion was either correct or wrong.

   The statement is divided into specific legal problems.  The statement section in the brief starts with an consequence heading for each statement or bespeak on appeal.  In many cases, an appellant might only heighten one or two specific bug. In other cases, the appellant might argue more than 1 or two issues, if he or she believes the lower tribunal made more errors.  Each result the appellant raises should have a reasonable basis in the facts and in the law. The appellant's upshot or issues should be conspicuously and concisely stated.  If the appellant is arguing more than than one issue, the appellant usually starts with the strongest point first.  Under each issue heading, the appellant discusses the case police force, statutes, and rules that bargain with the event for that section.

   The appellee'south reply brief arguments reply to the argument problems raised in the initial brief.  Information technology oftentimes has the aforementioned or like issue headings as the initial cursory, to help the appellate court know which of appellant'due south initial brief arguments the appellee's respond brief is responding to.  Similar the initial brief, the appellee'southward answer brief should explain how the law applies to the facts and nowadays his or her arguments in support of the outcome he or she wants in the appeal (unremarkably affirmance).  The answer brief arguments should as well include citations to the legal government, cases, and statutes the appellee believes supports his or her position and arguments in the appeal.

7. Conclusion.

   In the conclusion, the party tells the courtroom what event or relief he or she wants in the appeal (i.e., what the political party is asking the appellate court to exercise in the example).  It is usually only a sentence or two in length, and should non be longer than one page. For example, the conclusion in appellate cursory in an entreatment from a judgment entered after a trial might expect like this:

   

8. Certificate of Service

   The brief should contain a certificate of service, in which the political party filing the brief with the court affirms that he or she has sent, or "served," a copy of the brief to the opposing party (or their chaser if they have i) on a specific date and states the method of service, such equally by mail, delivery, or service past e-postal service (if the procedures for e-service are followed). The certificate of service must exist signed by the appellate party and should include a signature block containing the appellate party's proper noun, address and telephone number.  For example, a document of service might look like this:

   Click here to download the contents of this form.

   It is of import for pro se litigants to remember that, mostly, a party has to both file the brief with the courtroom, and serve a copy on the opposing party.  Pro se parties are generally permitted to serve documents by e-mail if they comply with certain requirements, which are set forth in detail in Florida Rule of Judicial Administration two.516.  In improver, nigh courts at present allow (but practice not require) electronic filing by pro se parties. See Florida Dominion of Judicial Assistants ii.525(c)-(d).

   The requirements for electronic filing, even when it is available, often vary in different courts. Accordingly, pro se parties interested in electronic filing should consult the website or clerk's office of the particular court to observe out if electronic filing is allowed, and, if so, the requirements for electronic filing and service by electronic mail. See also Florida Rules of Judicial Assistants 2.516 and ii.525(c)-(d). Unless electronic filing and service by e-mail is available, a brief must by and large exist filed by mail or commitment to the court, and served by mail service or delivery to the opposing party.

9. Certificate of Font Compliance.

   Co-ordinate to Florida Rules of Appellate Procedure 9.210(a)(ii), the font of the letters in the brief must be either Times New Roman 14-point font or Courier New 12-point font.  In the certificate of compliance, the appellate political party states that the font and type size used in the cursory complies with this Dominion and signs below the statement.  A certificate of compliance might expect like this:

   Click here to download the contents of this form.

The Reply Cursory

The Florida Rules of Appellate Procedure do non require that the appellant file a respond cursory, but an appellant often should file a reply brief to respond to the arguments in the answer brief.  The appellant's reply brief, if whatever, is due 20 days after the answer cursory and responds to the reply brief arguments.  The reply brief tin can exist no more than 15 pages long, non counting the pages necessary for the Tabular array of Contents, Table of Citations, Certificate of Service, Certificate of Font Compliance, and the signature block for the brief's author.

The reply brief typically includes the following sections:

1. Table of Contents
2. Table of Regime
3. Reply Argument
4. Conclusion
5. Certificate of Service
6. Certificate of Font Compliance

The reply cursory does not raise new arguments. Bug that were not raised first in the initial cursory are by and large waived.  Only, if new or different arguments are raised in the answer brief, the respond cursory tin answer to those argument.  The key is that the answer brief responds to the answer brief arguments. It does not just repeat the initial brief, nor does it raise new arguments that were not in either the initial or answer cursory.  Although the appellant argues in the reply brief that the appellee'due south answer brief arguments are incorrect, the appellant, like the appellee, must exercise so respectfully and without proper noun calling or insults.

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Source: http://prose.flabarappellate.org/chapter-5-writing-an-appellate-brief/

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