Appellate Counsellor Tips

Tips On Briefing

Federal Practice

Appellant's brief is due within 40 days after the filing of the record on appeal. Fed. R. App. P. 31(a). (In the Ninth Circuit that is the day that the district court clerk files the "certificate of record." Ninth Circuit Rule 11-2.) However, the Ninth Circuit may choose to establish a briefing schedule by order. See Ninth Circuit Rule 31-2.1(a).

The cover of the appellant's brief should be blue, the appellee's, red, and the reply brief, gray. Fed. R. App. P. 32(a)(2).

The Federal Rules of Appellate Procedure limit brief length by number of pages, or alternatively, by word count. Briefs with a monospaced typeface must have no more than 10.5 characters per inch. Briefs with a proportionally spaced typeface must include serifs and be 14-point or larger. Headings and captions may be in sans-serif type. All briefs must be double-spaced except that headings, footnotes and quotations more than two lines long may be single-spaced. A principal brief may not exceed 30 pages, 14,000 words, or 1,300 lines (if monospaced). A reply brief must not exceed half the type volume for a principal brief. Fed. R. App. P. 32.

The brief must include a "Certificate of Compliance", which confirms compliance with the type volume restrictions in a format that the Ninth Circuit has provided in its Form 8.

All briefs must be on 8-1/2 by 11 inch paper. Margins must be at least 1 inch on all four sides.

The brief must contain the following, in the order indicated (See Rule 29(a)):

  1. Corporate disclosure statement identifying all parent companies, subsidiaries and affiliates of a party that have issued shares to the public.
  2. Table of contents
  3. Table of authorities.
  4. Jurisdictional statement, stating the basis for subject matter jurisdiction in the district court, the basis for claiming appealability and the statutory basis for jurisdiction in the court of appeals the date of entry of the order appealed from, the date of filing of the notice of appeal and the basis for claiming that the appeal is timely.
  5. Statement of the issues presented for review. As to each issue, appellant must state where in the record it was raised, and identify the applicable standard of review. Ninth Circuit Rule 28-2.5.
  6. Statement of the case, indicating the nature of the case, the course of proceedings and the disposition in the trial court.
  7. Statement of the facts relevant to the issues submitted for review, with references to the record.
  8. A summary of the argument.
  9. The argument, with citations to authorities and the parts of the record on which the appellant relies.
  10. A short conclusion stating the precise relief sought.
  11. The certificate of compliance with respect to the length of the brief.

The Ninth Circuit rules contain the following additional requirements.

  1. A statement identifying any related cases, or a statement that there are no related cases. Ninth Circuit Rule 28-2.6.
  2. An addendum containing the relevant parts of any statutes, regulations or rules that bear upon the determination of the appeal. Ninth Circuit Rule 28-2.7.

Appellee's brief must be served and filed within 30 days after service of appellant's brief. Fed. R. App. P. 31(a). This is extended by three days if appellant's brief was served by mail. Fed. R. App. P. 26(c). Appellee's brief must otherwise follow the same format as appellant's brief except that the statement of jurisdiction may simply state appellee's agreement with appellant's statement, and the statements of issues, the case and the standard of review may be omitted if appellee is satisfied with appellant's recitation.

Appellant may serve and file a reply brief within 14 days after service of appellee's brief, extended by three days for service by mail. Fed. R. App. P. 26(c), 31(a).

State Practice

Generally, appellant's brief must be served and filed within 30 days after the filing of the record with the court of appeal. If the appendix method was chosen, the brief must be filed within 30 days of the filing of the reporter's transcript, or within 70 days of the filing of the notice of electing the appendix method if no reporter's transcript was ordered. Cal. R. Ct. 16(a).

If not served on time the clerk will send notice that if the brief is not filed within 15 days of the notice, the appeal will be dismissed. Cal. R. Ct. 17(a). The time periods may be extended by stipulation for no more than 60 days. Cal. R. Ct. 16(a).

The maximum length of a brief is 50 pages. If the brief is proportionally spaced, the type shall not be smaller than 13-point Times New Roman type. If the brief is typewritten, that is, not proportionally spaced, the type shall be at least as large as standard pica or 12-point type in the Courier font or equivalent, spaced 10 characters per horizontal inch.

Lines shall be at least a space and a half apart, although footnotes and quotations may be singled spaced. Cal. R. Ct. 15. The cover of appellant's brief should be green. Cal. R. Ct. 44(c). An original and four copies are filed with the court of appeal, and five copies with the Supreme Court. Cal. R. Ct. 44(b)(2). One copy must be filed with the clerk of the trial court for the trial judge. Cal. R. Ct. 16(b).

The brief shall contain the following, but no particular order is required:

  1. A table of contents and table of authorities. Cal. R. Ct. 15(a).
  2. A statement of the case, containing the nature of the action, the relief sought, a summary of the material facts, and the decision of the trial court. Cal. R. Ct. 13.
  3. A statement that the appeal is from a final judgment or an explanation of the grounds of appealability. Cal. R. Ct. 13.
  4. Concise point headings that are generally descriptive of the subject matter covered. Cal. R. Ct. 15(a).

Respondent's brief must be served and filed within 30 days after filing of appellant's brief. Cal. R. Ct. 16(a). If the brief is not filed on time, the clerk will send notice that the appeal may be submitted for decision on the appellant's brief alone if a brief is not filed within 15 days of the notice. The rules applicable to appellant's brief apply, except that the cover of respondent's brief should be yellow. Cal. R. Ct. 44(c).

Appellant may serve and file a reply brief within 20 days after filing of respondent's brief. Cal. R. Ct. 16(a). The cover should be tan. Cal. R. Ct. 44(c).