The United States Courts of Appeals has revealed that approximately 75 percent of cases in the appellate court are resolved on the briefs, which means there is no oral argument. While the report was based on statistics from a decade ago, not much has changed in recent years. As it turns out, briefs are likely the most important element in the federal appeals process.
Technically speaking, a brief is a document that’s filed by an appellant for the purpose of providing the appeals court with information about a case heard in a district court. A brief is an objective citing of case facts that also includes an argumentative component regarding the legal errors that are believed to have occurred.
Writing a brief is something that should not be taken lightly since it will be used by appellate judges to make a final decision. In addition to an assertion of facts, a brief must include specific citations regarding the constitution or statute that supports the legal argument. It must only include evidence that was used in the district court case as opposed to new evidence.
The party responsible for responding to the assertion in a brief is called the appellee. In the event that the issue is regarding a criminal case, the appellee is likely to be the government. The appellee will file a response to the brief that likewise includes factual statements, citations and evidence to support the legal arguments. Both the appellant and appellee will point to the transcript from the case.
The appellant is allowed an opportunity to reply to the responsive arguments of the appellee. There are strict technical guidelines and requirements that must be followed by both sides. For instance, the submission of briefs is no small matter because they must adhere to deadlines, as well as requirements for paper size, binding, font type, formatting and paper color, among other details.
The legal system is based on what’s known as stare decisis, which means the decisions in a case are actually governed by decisions that were made in a prior cases. This is one of the reasons why a lot of time and effort must be put into the process of developing a brief and citing the right statutes. In fact, a strong argument doesn’t matter if it is not in alignment with precedence. It’s one of the reasons why research is such a critical aspect of filing briefs. Without a doubt, any necessary research will be conducted by appellate judges as the weight the strength of the arguments on both sides.
An appellate lawyer should have stellar writing and research skills. There are many lawyers that can be quite persuasive and creative when writing, which is necessary. However, these are not skills that can stand alone during the federal appeals process, especially since a large number of appeals are resolved on the briefs. One of the reasons why the federal appeals process is lengthy is because appellate judges typically read trial transcripts. This means trying to use creative writing in briefs that is not backed up by information in the transcripts will not go over well.
Issues presented in a brief must be clear and accurate. The most effective and successful appellate lawyers are adept at stating the facts, presenting clear arguments in alignment with the law, and doing so creatively. That might sound like a tall order, but it’s less complicated when you have a sufficient amount of information.
Appellate lawyers generally become more adept at writing briefs as they gain experience. It’s a skill that is born out of necessity since there is no other way to engage in the federal appeals process, except for during the rare occasion when oral arguments are allowed. This is precisely why it’s best to work with an appellate lawyer that has a proven record of success or a respectable amount of experience.