The essence of the appellate is the dissatisfaction of a party with a judgment or order of a trial court that has not entered into force. The party that appeals the case is «appellant» will try to convince the court the trial made a mistake in reaching its judgment. The party that opposes the appeal is «respondent» will try to convince the appellate court that the court made no errors in the decision. The appellate brief is one of the mechanisms that will be used in the process of the appeal through which the parties will present their arguments. In such situations it is important to know how to write an appellate brief to protect your argument.
Often, three briefs need to be filed. The first brief («opening brief») is filed by an appellant. After it is being served the respondent needs to file a brief with the certain amount of time, usually within 20-30 days. Then, the appellant may file another brief as a reply.
An appellate brief should be presented in a clearly printed text. If the brief is written by hand with illiterate and illegible handwriting, the content of the text contains details and circumstances that can’t be referred to the text, it takes a lot of time for the court to read them and understand the meaning of the written text.
The form of the appellate brief can vary from jurisdiction to jurisdiction, however they all have many similarities, than differences. The appellate rules often set the format of the brief. According to them, the briefs must include the most of the following sections:
Each of these sections should appear in a certain order, which is stated in the rules of the court.
An appellant brief should contain the foolwing:
When there is a detailed content of the appellant brief, it is much easier for the court to work. Such details may contain information on why the previous decision of the court was wrong and what the circumstances of the case can refute the court’s decision. Also you can present new facts or methods of evidence relevant to the case, and the objections to the evidence, when the court unreasonably refused to accept them, or when you could not present them earlier due to valid reasons.
This is necessary for the court in order not to look for these facts while investigating the evidence, the appellant uses.
The brief should contain a request from a person who files a complaint. The appellant must indicate a specific article he or she is basing their appeal and asking the court to cancel the decision (ruling). The article states what the court can do within its powers: «to cancel the decision and send the case for retrial, to annul the previous decision and decide a new one, to suit a claim, to change the court’s decision, to cancel the decision and discontinue the proceedings, or to cancel the court’s decision and leave the brief without consideration».
This section should also include additional evidence the court needs to reclaim, who to bring to the hearing, what witnesses to call, and what they can confirm.
Also you need to include the list of written evidence (materials), which are attached to the brief (various kinds of certificates, documents, letters, which were not subject to examination in court).
The court is obliged to check their authenticity and, where appropriate, if they are photocopied to collate them with the originals, certify them with the signatures.
The main thing in understanding how to write an appellate brief is not to attach any unnecessary papers, newspaper clippings, photocopies, and other document to the brief.
According to practical cases, appellate briefs can be considered from one to three, or even more months, and during this period the court may receive any response to its request, by satisfying the appellant’s petition.
An appellant brief is signed by the person who submits it, or their representative.
The appeal must be signed by the head personally and stamped by the enterprise, organization, institution, and not by the person who replaces the head of the organization.
In the event a complaint is signed by the Deputy or Acting Head, a certified copy of the order or the Charter should be duly attached stating that the person acts as the head of the company while the latter is on vacation or sick, or the person who signed the complaint has the right to submit petition and file appeals.
The brief that is filed by the representative of the parties has to have letter of attorney, stating the representative has the right to submit an appellant brief, or other document confirming the representative’s authority, if the case doesn’t have such document.
In the absence of such a document, the brief is considered to be submitted by an unauthorized person.
A lawyer is not entitled to an appeal, and therefore, if he or she files a complaint without a duly executed power of attorney, it is also considered a complainant made by an unauthorized person.
According to the law, a brief can be submitted by people who by law are considered to be the legal representatives and do not require a power of attorney, however, other documents are required proving that they are the legal representatives.
Such people may be:
When submitting an appellant brief, check the terms of credentials specified in the letters of attorney.
If the term of the letter of attorney has expired before writing and filing an appeal, and it is not renewed, then the brief is considered to be filed by unauthorized parties, and must be returned or signed in the period of appeal. After the expiry to appeal, the representative has no right to sign the appeal, even if after this period, the mandate was extended. In such a case, the court refuses to accept the appeal on his behalf for out of time.
Appellant brief can also have attached copies with copies of additional materials in the number of copies corresponding to the number of people who participated in the case, given the fact that one copy has to be always in the court. This is needed to ensure that people involved in the case could promptly examine the arguments of the appeal, additional materials enclosed to it and make appropriate objections.
After the receipt of the appellant brief by the court, or three days after the end of the term of the appeal, the brief together with the case is sent to the court of appeal. Appeals received after this term, are sent to the court no later than the next working day after the receipt of documents.
Considering the appeal, the judge checks whether the judgment to which the brief was filed can be considered, whether the terms of appellate brief were met, whether the court fee was paid, and whether the brief corresponds to the content and the format, if not the brief is sent back to the appellant for elimination of deficiencies.
The judge exactly specifies what is wrong with the brief, its form or content.
If within the appointed period of time the deficiencies of the brief were not eliminated, it will go back to the appellant and will be considered not filed.
If the appellant has not removed any of the deficiencies identified in the determination, the brief will be considered not filed.
In fact, if the appellant after the appointed time will present a properly formatted brief to the court, it won’t be accepted, since no defects have been eliminated in the set period of time. The term appointed by the judge is preclusive and can’t be restored.