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August 31, 2017 Articles

Successfully Filing Your First Appellate Brief

Tips on deadlines, page or word length, the color of the brief’s cover, and even the margins.

By Amit Bindra

Working on my first appellate brief was an exhilarating—and stressful—experience. Because it was an interlocutory cross-appeal, we submitted a 50-page brief, and we only had one week to finalize it after receiving the appellant’s opening brief. To complicate matters, a family issue arose, and I had to travel during the process.

Several articles gave me useful insight. Some articles helped me learn how to approach an appellate brief; others helped me understand the differences between an appellate brief and a trial court brief. I also read articles about the experiences that other attorneys had with their first brief and about common mistakes that attorneys make. Through this process, I found Howard J. Bashman’s blog, “How Appealing,” and also discovered that great appellate briefs are available online via the Department of Justice and Mayer Brown’s Supreme Court and Appellate Practice Group. Fortunately, I also happened upon a very good guide to appellate practice in Illinois. Two articles from the Young Lawyers Division of the ABA were particularly helpful. In one article, Honorable Justice Richard Posner explained the value of “put[ting] yourself in the judge’s shoes all the way, as it were.” In the other article, Damon Thayer explained the value of a reply brief and how many law clerks and judges read the reply brief first and work backward to understand a case and its issues.

Set out below are the four most important tips I learned in the process of reading and doing. Hopefully, these tips and resources are useful for other first-time appellate brief writers and make your project (at least somewhat) manageable.

1. Know the Rules
It is very important to know the appellate rules for your brief, which are almost always different from the rules for the trial court. There are three layers of rules to review.

First, read—and then read again—the rules for the state or federal jurisdiction in which you will submit your brief. There are rules on deadlines (for the notice of appeal, filing the record, and the brief itself), page or word lengths (which change if it is a cross-appeal), the color of the brief’s cover, the order in which to organize the brief, whether to electronically file the brief, the correct margins (which are typically different from what is required in the trial court), the number of copies to submit, the certifications to provide, and several other rules that vary based on jurisdiction. For example, the State of Indiana requires a specific header on each page (except the first page), which the State of Illinois does not. Ind. App. R. 43(H) (“Each page, except for the front page, of the document shall contain a header that lists the name of the party(ies) filing the document and the document name. . . . The header shall be aligned at the left margin of the document.”). While some of these rules seem arcane, the clerk of the appellate court could reject a brief that violates any of the appellate rules.

Second, read the local rules for the appellate jurisdiction. In Illinois, the appellate courts are divided into different districts. The first district, where Chicago is located, is different from the fourth district, where Springfield is located. Each district has its own local rules. For example, at least one district prefers that all briefs be submitted on a compact disc. Ill. 3d Dist. Admin. Or. 52.

Finally, conduct a recent search for the standard of review to ensure that it has not changed.

2. Be Proactive
It is important to stay on top of deadlines.

In the vast majority of situations, an appellate brief will not catch an attorney by surprise. Most appeals follow a lengthy process: filing the notice of appeal, obtaining the record from the trial court, and then ultimately filing the brief. Even with most expedited appeals, there is ample time to prepare before you have to begin working on your brief. And, in most cases, appellate courts will grant reasonable extensions to file a brief if notice is sought early in the process.

In my situation, though, we were working on an expedited appeal without the possibility of a lengthy extension. But I also knew what to expect from the appellant’s brief as this was a matter I had worked on in trial court. Prior to receiving the opening brief, I thoroughly reviewed and outlined the record to make it easier to cite. Additionally, I conducted a substantial amount of the legal research.

Being proactive is also necessary if your brief has to be printed instead of electronically filed. Because several bound copies (with a specific color for the cover) have to be filed, the brief realistically should be finished at least a day or two earlier.

3. Ask Questions
The clerks of the appellate courts are universally very helpful and willing to answer questions, especially questions that may seem simple. Contacting a clerk is an easy way to avoid making a technical error. In addition to contacting a clerk, reach out to other appellate practitioners or attorneys that have been through the process before.

4. Start with the End in Mind
All appellate briefs need a table of contents and a table of authorities, so those are good places to start. I create a template at the beginning to make the table of contents easier to finalize.

Furthermore, there are different rules regarding margins for most appellate courts, which then impact the page length of the brief. This can be a tedious process if it is started close to the filing deadline. I change the margins at the outset to save time at the end.

Hopefully, these tips and resources help make your first appellate experience fun and successful. And after writing your first brief, I hope that you—like me—love appellate law and want to keep working on appeals.

Amit Bindra is an associate attorney at the Prinz Law Firm, P.C., in Chicago, Illinois.

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