image_pdfimage_print

5. Appellant’s Opening Brief

The written briefs are the most important part of an appeal. Because there is no new trial during an appeal, the Court of Appeal makes a decision based on what they read in the written briefs, the record on appeal, and in legal research.

The first written brief is the opening brief. It is the case for appeal prepared by the appellant. The opening brief argues why the trial court made a legal mistake, how the mistake impacted the decision, what could be corrected or reversed in the judgment, and why the judgment should be reversed.

Here’s an overview of what to expect in this step of the appeal process and how to prepare an opening brief.

You can also:

See a sample opening brief

Timeline of an Opening Brief

After filing documents to designate the record, the next step is to prepare the opening brief. Once the record on appeal is filed, the Court of Appeal notifies the appellant of the opening brief due date. The deadline is generally 40 days after the Court of Appeal sends notice of the filing of the record on appeal. If the appellant prepares an appendix and does not request a reporter’s transcript, then the appellant has 70 days from the date they file the election to proceed by appendix (rule 8.124 election) in the trial court.

Preparing an Opening Brief

Appeals are won or lost on the briefs, so the appellant needs to spend time researching and writing a persuasive, concise legal argument. It’s a good idea to start working on the opening brief as soon as the notice of appeal is filed. This will allow as much time as possible to complete all of the necessary information in the required format.

Remember an appeal is not a retrial of the facts. The Court of Appeal only considers legal issues or mistakes made by the trial court. So an effective opening brief will focus on legal issues. The appellant should review what’s in the record, including:

  • the ruling, decision, or judgment of the trial court judge
  • the statutes, constitutional provisions, case decisions, and other legal authorities that the trial court judge used to support the decision

To win an appeal, the appellant must prove that the trial court made a legal mistake and that the mistake impacted the decision. This is hard to do because the Court of Appeal generally defers to the trial court’s decision, unless it is de novo review.  The burden is on the appellant to present a legal argument in the opening brief that convinces the Court of Appeal to reverse the trial court’s order or judgment.

Outline of an Opening Brief

There are several sections in an opening brief. While all of them are important, some sections take more time and effort to write than others.

Here is an overview of each section with a description of what it includes.

All of the sections are required.

Choose a section to learn more


Cover

The cover contains basic information about the case and the parties to the case. This includes:

  • the title of the brief (Appellant’s Opening Brief)
  • the case title, trial court number, and Court of Appeal case number
  • the names of the trial court and trial court judge
  • the appellant’s name, mailing address, telephone number, fax number (if available), and e-mail address (if available)
  • if the appellant hired a lawyer, California State Bar number of each attorney helping to write the brief

See the full rules for a cover page (CRC 8.40(c), 8.204(b)(10).)

Certificate of Interested Entities or Persons (required except in certain cases)

In all civil appeals, the first page of the opening brief after the cover is the Certificate of Interested Entities or Persons form APP-008.

The appellant prepares this form for the Court of Appeal to identify other entities and/or persons that have an interest in the outcome of the case. A business or an organization is an example of an entity.

An appellant is NOT REQUIRED to file a Certificate of Interested Entities or Persons if the case is a family, juvenile, guardianship, or conservatorship case.

Learn more about the Certificate of Interested Entities or Persons

Table of Contents

The Table of Contents is a list of all the sections in the brief. Each section title is listed in order by the page number.

The Table of Contents tells the Court of Appeal where to find information in the brief. A judge should be able to get a good overview of the case by reading the Table of Contents.

Table of Authorities

The Table of Authorities is a list of all the legal authorities or precedents that the appellant discusses in the brief. Legal authorities are examples from the law that help prove a legal argument to the Court of Appeal. The appellant should focus on finding legal authorities that support an argument against the trial court’s decision.

Legal authorities may be found on the internet or at a law library. A librarian can help the respondent find legal authorities in the area of law that the case involves.

The Table of Authorities is created when the brief is finished and all the page numbers are final. Each legal authority must include a page number where it can be found in the brief. 

Statement of the Case

The Statement of the Case tells the “procedural facts” of the case. Procedural facts are facts relating to the court process. The Statement of the Case lists procedural facts in chronological order from when the complaint was filed to when the judgment was entered.

Every procedural fact in the brief must include:

  1. the date when a procedural fact happened
  2. a reference to the source and page number where the procedural fact can be found in the record on appeal

Here is a list of procedural facts to include in the Statement of the Case:

  • filing of the complaint
  • who sued whom and for what
  • rulings on any motions or hearings related to issues the appellant is asking the Court of Appeal to review
  • a description of orders related to issues the appellant is asking the Court of Appeal to review
  • the judgment entered
  • damages awarded

Statement of Appealability

The Statement of Appealability is often only one sentence. Here the appellant tells the court why the case is appealable. There are basically three options:

  • there is a judgment or order of dismissal (after demurrer or other motion) and the case is finished
  • there is an order (usually this order comes after the judgment, or after a hearing in a family law or probate case)
  • there is a nonfinal judgment

If appealing an order or nonfinal ruling, the appellant must state the statute that gives them the right to appeal.

Statement of Facts

The Statement of Facts gives “historical facts” or evidence admitted in the trial court about what happened before there was a lawsuit. Every historical fact in the brief must be supported with a reference to the source and page number where the fact can be found in the record on appeal.

The Statement of Facts should only include “significant facts,” meaning facts that are related to the legal issue or issues the appellant discusses in the appeal.

No new facts or evidence can be introduced in the Statement of Facts. The Statement of Facts can only mention facts or evidence presented in the trial court and included in the record on appeal.

Argument

The argument is the most important part of the opening brief. Here the appellant identifies the legal issues, meaning any errors made by the trial court. The appellant also explains how the mistakes caused so much harm or “prejudice” that there should be a retrial, or that the judgment should be reversed or changed.

The appellant must do several things in the argument:

  1. Present the legal issues of the appeal
    Each legal issue must be discussed separately under its own heading. The heading should summarize the issue in a few words. In the discussion, the appellant should identify the standard of review that applies to the issue. The standard of review is basically the rules or guidelines the court uses to decide whether the trial court made an error in its decision. Different kinds of rulings require different guidelines. So the appellant has to research what the standard of review will be for each issue. After identifying the standard of review, the discussion should then explain the legal error the trial judge made, and how that legal error harmed (“prejudiced”) your case. The appellant should support the discussion with statements of law. See a list of common legal issues in an appeal
  2. Discuss the standard of review
    The standard of review is the rules or guidelines the Court of Appeal uses to decide whether the trial court made a mistake. Different kinds of legal issues are reviewed by different rules. The court requires an appellant to include a standard of review for each legal issue in the opening brief. So the appellant needs to research what the standard of review is for each issue.
  3. Include legal authorities that prove the trial court is wrong
    The appellant’s argument must include a reference to a legal authority for every statement of law arguing why the trial court’s decision is wrong.
    A legal authority can be a case decision, statute, rule of court, book written about the law, constitutional provision, or legal treatise. The appellant must explain how the legal authority applies to the facts in the case.

Conclusion

This is usually one paragraph where the appellant tells the court what relief they are seeking. For example, the appellant asks that the order or judgment should be reversed, or a new trial should be granted. Note that no arguments are repeated or introduced in the conclusion section.

Certificate of Compliance or Word Count

There are rules about how long a brief can be. Each brief must include a Certificate of Compliance saying that it is within the maximum length allowed by the court.

Briefs prepared on a typewriter cannot be more than 50 pages.

Briefs prepared on a computer cannot be more than 14,000 words.

The word count includes footnotes, but it does not include the cover, the Certificate of Interested Entities or Persons, the Tables of Contents and Authorities, the Certificate of Compliance, any signature block, proof of service forms, or any attachments.

The appellant can attach a maximum of 10 pages of documents to the end of the brief.

If needed, an appellant can ask the Court of Appeal to allow a longer brief. The appellant would file an “Application to File an Oversized Brief” with the Court of Appeal and serve a copy of the application to all other parties in the case. There is no court form for this application so the appellant types the application on a piece of paper.

The appellant must provide what the court calls “good cause” – which means a good reason – to file an oversized brief. The court may or may not say yes to the request.

Read California Rules of Court 8.204(c) to learn more about the length limitations for briefs

Proof of Service

Always check with your Court of Appeal to confirm the specific service requirements in your case.

Generally, you must serve a copy of the opening brief to all parties in the case, to the trial court judge, and to the Supreme Court of California BEFORE it can be filed with the Court of Appeal.

If the other party has a lawyer, then the brief is served to the lawyer. If the other party does not have a lawyer, then the brief is served to the other party.

There are rules about who can serve a brief and how it can be served.

The appellant must give the Court of Appeal proof that all of the required copies were delivered. Appellants are encouraged to use court form APP-009 (mail or in person) or APP-009E (electronic to provide proof of service. This form tells the court who served the brief, who was served with the brief, how the brief was served, and the date it was served. The appellant must file one proof of service of service form for each brief that is delivered.

Proof of service forms are always included at the end of the opening brief, after the Certificate of Compliance.


Next Steps after the Opening Brief

The opening brief is the first in a series of three briefs. Next the other party – who is called the respondent – can file a respondent’s brief that addresses the issues raised in the opening brief. Then the appellant has an opportunity to file a final brief called a reply brief that addresses what’s included in the respondent’s brief.

The appellant is not required to file a reply brief, and the appellant only files a reply brief if the respondent files a brief.

Additional Resource Links:

Sample Opening Brief
Official appeal procedures for unlimited civil appeal cases (Form APP-001)
California Rules of Court Relating to the Courts of Appeal

Common Questions:


Where can I get help writing my brief?

Form APP-001 has full instructions on appeal procedures, including what needs to be in a brief.

Each Court of Appeal has self-help resources online. You can also contact your local Court of Appeal to see if they have a self-help center at the court.

You can visit a law library to do legal research.

The California Courts website has a lot of information about lawyers and legal help.

If you need help finding a lawyer, the California Bar Association website can connect you to lawyer referral service in your area.

What are the formatting rules for briefs?

Briefs should follow these general formatting rules:

  • Prepare on a computer or type on a typewriter.
  • Single-space the headings and footnotes. Double-space everything else in the brief.
  • Use a font size no smaller than 13 points. (This includes footnotes.)
  • Set page margins as follows: left and right margins at 1.5 inches, and top and bottom margins at 1 inch.

Rules for printing and binding:

  • Use 8-1/2-by-11 inch white or unbleached paper of at least 20-pound weight (except for the cardstock front and back covers). Do not use legal or pleading paper with numbered lines.
  • Both sides of paper may be used unless prepared with a typewriter.
  • The pages should be unbound.

Rules for page numbering:

  • The pages must be consecutively numbered.
  • The page numbering must begin with the cover page as page 1 and use only Arabic numerals (e.g., 1, 2, 3). The page number on the cover page may be hidden and need not appear.

Rules for cover colors, only when briefs are filed on paper (Note: this rule does not apply for electronic filing). The cover must be cardstock paper.

  • Appellant’s opening brief or appendix—green cover
  • Respondent’s brief or appendix—yellow cover
  • Appellant’s reply brief or appendix- tan cover
  • Joint Appendix—white cover
  • Petition for rehearing—orange cover
  • Petition for review—white cover

Rules for information required to be included on the cover of the brief:

The cover should include the title of the case, the superior court and Court of Appeal case numbers, the names of the superior court judge and county, the type of brief (for example, “Appellant’s Opening Brief,” “Respondent’s Brief,” or “Appellant’s Reply Brief” (see “Cover” of Sample Form K), and the filing party’s name, address, and daytime telephone number. The court heading should be centered at the top of the brief cover.

What are common legal issues presented in an appeal?

When someone decides whether or not to appeal, they should carefully review the record of the trial proceedings for potential legal issues.

There are many legal issues that might be raised by an appellant in the opening brief. Here are some of the most common legal issues raised in an appeal:

  • The trial judge erroneously admitted evidence over objection, and the inadmissible evidence prejudiced the appellant’s case.
  • The trial judge erroneously refused to admit relevant evidence and thus prejudiced the appellant’s case.
  • The jury instructions were legally incorrect.
  • The trial judge misinterpreted the parties’ contract that was in dispute.
  • The trial judge misapplied or misinterpreted statutory, common law (case decisions), or constitutional law.
  • The trial judge erred in sustaining a demurrer to the appellant’s complaint because the complaint legally states a cause of action.
  • The trial judge erred in granting summary judgment because there are material, disputed facts that require a trial.
  • The trial judge or jury made a mathematical or other error in computing the amount of damages.
  • The trial judge erred in awarding costs or attorney’s fees.
  • The findings of the trial judge do not support the decision.
  • The evidence is legally insufficient to support the findings or to support the judgment judgment.

How is the Statement of Facts prepared if there was no trial?

The statement of facts in an appeal brief will be different if the case was dismissed without a full trial.

Cases are commonly dismissed without a full trial in two ways: demurrer or summary judgment. If there was no trial in your case, you should consider doing legal research or talking to a lawyer to get help preparing your Statement of Facts. 

Here are some general considerations for an appeal of these common types of dismissals.

Demurrer
A demurrer ruling is an order but by statute it may be appealed. The order must say the case is dismissed. The Court of Appeal usually only looks at the complaint and assumes all the factual allegations are true in order to rule on whether the complaint states a cause of action. The Statement of Facts in the respondent’s brief should include facts that support the trial court’s demurrer ruling and facts as stated in the complaint.

Summary judgment
A trial court’s ruling granting summary judgment is an order. A party seeking to appeal the ruling must first get a judgment based on that ruling. The facts are taken from the evidence before the trial court at the time of its ruling. A common issue for appeal is whether the trial court was correct that there was no genuine dispute as to material facts that must be resolved at a trial.

What is the standard of review?

The Court of Appeal’s job is to determine if the trial court followed the law and how to resolve any issues if the trial court did not follow the law. To do this, the court uses a process that’s called the “standard of review.” These are basic guidelines to help the court evaluate the appellant’s argument.

The standard of review is different for each legal issue. The three most common standards of review are:

  1. De novo standard. In de novo review, the Court of Appeal does not defer to the decisions made in the trial court. Instead the Court of Appeal looks at the issue as if the trial court had never ruled on it. This type of review is generally limited to issues involving questions of law. It is the most favorable standard of review for an appellant.
  1. Abuse of discretion. During a trial, the judge uses his or her discretion to decide on many things. This includes whether or not to allow discovery, admit evidence, issue restraining orders, award damages, and more. When an appellant argues that “abuse of discretion” applies in the case, they must prove that the trial judge’s decision “exceeded the bounds of reason.” Since the Court of Appeal generally defers to the trial court’s exercise of discretion, this type of appeal is difficult to win.
  1. Substantial evidence. This standard is used when an appellant is arguing against the factual findings of a judge or jury after a trial. The Court of Appeal reviews the record and decides whether a reasonable fact-finder could have come to the same conclusion as the trial court. The Court of Appeal does not decide whether it would have reached the same factual conclusions as the judge or jury. This kind of appeal is difficult to win because it argues that the trial court did not consider or understand all the evidence, believed the wrong witnesses, or failed to properly weigh the evidence. The Court of Appeal will reject this kind of argument if there is any substantial evidence—contradicted or not—that supports the trial court’s finding of the facts.

How do I put things in the record on appeal for the Court of Appeal to review?

How do I research and find legal authorities?

You can research and find legal materials at a public law library. Look for books that are written about the area of law that the case involves. For example, search in the area of contract law if a case involves a possible breach of contract for work that was not done or work that was not done properly. A librarian can suggest books to read about different areas of law.

Books written about the law—also called “secondary sources”—will include cases previously decided in all areas. Based on the legal information gathered and the facts of the case, the appellant can make a list of the issues he or she wants to raise. These can be issues the appellant thinks hurt his or her case in superior court the most, or the issues that will help his or her case in the appeal.

How do I cite legal authorities and other sources in a brief?

For every event or fact about the case that you include in your brief, you must provide an exact location and page number where the court can find it in the record on appeal.

Here’s a list of places information can be found in the record on appeal:

  • Appellant’s appendix—AA
  • Appellant’s opening brief—AOB
  • Appellant’s reply appendix—ARA
  • Appellant’s reply brief—ARB
  • Augmented clerk’s transcript—Aug CT
  • Augmented reporter’s transcript—Aug RT
  • Clerk’s transcript—CT
  • Joint appendix—JA
  • Reporter’s transcript—RT
  • Respondent’s appendix—RA
  • Respondent’s brief—RB
  • Superior court file—SC file
  • Supplemental clerk’s transcript—SCT
  • Supplemental reporter’s transcript—SRT

Each case is different. Some cases have all these sources in the record on appeal, and some cases only have a few of these sources.

In your brief, you will support each event or fact with a reference to a page number in one of the sources in this list. You will use the abbreviation that matches the source to tell the Court of Appeal where to look for the information. The court will check each reference to make sure it supports your version of the story.

For example, say you want to tell the court a fact about the case that’s on page one of the clerk’s transcript. Here’s what you would write in the brief: “Appellant filed a civil complaint on January 3, 2018. (CT 1)”

If there is more than one volume of the clerk’s transcript or reporter’s transcript, you’ll need to write the volume number, then CT or RT, and then the page number. For example: (1 CT 3), (2 RT 150).

If there is more than one augmented clerk’s transcript, also include the transcript by date. For example: (1/3/18 Aug CT 2).

Can I include new information or new evidence in my brief?

No. An appeal is not a new trial. You cannot introduce new information, new evidence, or new witnesses during the appeal process. The Court of Appeal will only consider what’s included in the record on appeal.

Can I include confidential information in a brief?

No. Briefs are generally filed publicly, and publicly filed documents must not disclose confidential or sealed material.

If you need to refer to confidential or sealed material, please carefully review the procedure described here in CRC 8.46(f) and CRC 8.47.

Can I include attachments or exhibits with a brief?

Attachments should only be included with a brief if they are absolutely necessary. Improper attachments can cause a brief not to be filed, or to be rejected and returned for corrections.

Copies of exhibits or other materials may only be attached if they are already in the existing record on appeal, or in relevant local, state, or federal rules or regulations. The attachments must not be more than a combined total of 10 pages, unless the court grants you permission to break this rule.

If you need to file more than 10 pages of attachments, you can ask the Court of Appeal for permission. You may file a “Request to Attach Additional Exhibits” with the Court of Appeal and serve a copy of the application to all other parties in the case. There is no court form so you type the request on a piece of paper. You must provide what the court calls “good cause” – which means a good reason – to attach additional exhibits.

The court may or may not say yes to your request.

Instead of including a lot of attachments, it may be easier to simply make a reference in your brief to any legal authorities, or to exhibits already in the record on appeal.

Before including attachments you should carefully review CRC rule 8.204(d).

What are common mistakes in briefs?

Here is a list of common mistakes made in briefs:

  • not citing the record on appeal (giving the court the exact place in the record to look) for a fact that you put in your brief
  • including information and sources that are not in the record on appeal
  • not citing the law (giving the court the name and place in a published court decision, statute, or other law) for what you say is the law in your brief
  • using improper citations that are not legal authorities, like a blog post or an unpublished court decision
  • improper or unprofessional tone (don’t use curse words or say bad things about people)
  • not proofreading (the brief has typos and other obvious errors)
  • not clearly telling the court what you want

Who needs to receive a copy of my brief? How do I serve my brief to other parties or courts?

Always check with your court to confirm the specific filing and service requirements in your case. Not all courts allow electronic filing.

Serving a document means delivering a copy of the document to another party, or delivering a copy to a different court than the one where you are filing the document.

Generally, you must serve a copy of the opening brief to all parties in the case, to the trial court judge, and to the Supreme Court of California BEFORE it can be filed with the Court of Appeal.

  • Serving documents to other parties. There are three ways to serve a document to another party: by mail, in person, or electronically. If you want to serve a document electronically, you will first need to get the recipient to agree.

A party to the case can serve a brief electronically. The court has rules about who can serve a document by mail or in person. It must be a person who is over 18 and lives in the county where they are serving. A party to the case cannot serve a document by mail or in person to another party. If the other party has a lawyer, then the document is served to the lawyer. If the other party does not have a lawyer, then the document is served to the other party.

If you submit your document electronically, there’s an option to have TrueFiling™ serve your document electronically to the other parties before your document is filed with the trial court or Court of Appeal. TrueFiling™ will automatically attach an electronic proof of service to any documents you electronically file (e-file).

  • Serving documents to the trial court. The trial court may be served by mail and some trial courts may be served electronically. Always check with your trial court to see if they accept electronically served documents.
  • Serving documents to the California Supreme Court. The Supreme Court may be served either by mail or electronically. If a brief is served on paper, the Supreme Court must receive 4 copies. If a document is filed electronically through TrueFiling™, it automatically fulfills the service requirements for the California Supreme Court.

What’s proof of service?

You need a proof of service form for each person or court who receives a copy of the document. You are encouraged to use form APP-009 (serve by mail or in person) or APP-009E (serve electronically) for proof of service

The person who is serving a document must complete and sign a proof of service form when they deliver the document. The court requires this form as proof that the document was delivered to all parties in the appeal and the necessary courts.

The original proof of service forms should be attached as the last pages of the original document that you file in the court.

A copy of the proof of service forms must be attached as the last pages of each copy of the document that you serve to other parties.

If you submit your document electronically, there’s an option to have TrueFiling™ serve your document electronically to the other parties before your document is filed with the trial court or Court of Appeal. TrueFiling™ will automatically attach an electronic proof of service to any documents you electronically file (e-file).

Get a blank proof of service form APP-009 (mail or in person)

Get a blank proof of service form APP-009E (electronic)

See the instructions sheet for the proof of service form

See detailed proof of service information from the California Courts 

Read the California rules of court on proof of service requirements CRC 8.25(a)8.212(c)(1), and CRC 8.298.212(c)(3).)

Visit TrueFiling™, the court’s online filing system

How do I file my brief with the Court of Appeal?

There are two ways to file documents with a court: electronically file (e-file) on the computer or file on paper at the court.

The Court of Appeal requires lawyers and people who have a lawyer to file electronically. If you are self-represented – meaning you do not have a lawyer – then you can choose to file electronically or file on paper.

If filing electronically, the Court of Appeal does not need or require paper copies.

If filing on paper in the Court of Appeal, the original document and proof of service forms are always given to the Court of Appeal. Some courts also require you to file extra copies of the documents.

You should always keep one copy of all documents you file with the court. It’s a good idea to bring or mail an extra copy of the document to the court clerk. You can ask the clerk to stamp “filed” on the extra copy to show that the original was filed, and keep the extra copy as proof.

What if my brief is rejected?

If an opening brief is incomplete or does not follow the formatting rules, the court may decline to file it. If the brief only requires minor corrections, the court clerk may contact the appellant and ask for permission to make the minor corrections. The court may also return the brief to the appellant for corrections and changes. After making these corrections it is generally necessary to prepare a new document. The new revised brief must be served again on all the parties and filed again with the Court of Appeal. If the problems with the brief have been corrected, the court will file the revised brief. If the problems have not been corrected and it’s an appellant’s opening brief, the court may dismiss the case.

How can I check the deadline to file my brief?

You can contact the clerk at your Court of Appeal if you have questions about the deadline to file your brief.

What happens if I miss the deadline to file my opening brief?

If the appellant’s opening brief is not filed by the deadline, the Court of Appeal will mail a notice that the brief must be filed within 15 days.

During the 15-day timeframe, the appellant may file an application for an extension of time. The court may grant an extension if they find there is a good reason.

If the appellant does not file an opening brief or request an extension to file within the 15-day timeframe, the appeal will be dismissed.

What if I need more time/an extension to file my brief?

If you need more time to file your brief, you can agree – or “stipulate” – with the other parties to extend the deadline up to a maximum of 60 days. An extension or stipulation must be filed in the Court of Appeal before the date the brief is due. Stipulations must be signed by all parties and served to all parties.

Note: The parties cannot stipulate to extend the time if the court has already granted an extension to file the brief.

If a party needs more time to file and has already stipulated to 60 days or if the parties are unable to agree to an extension, a motion or application for extension of time may be filed with the Court of Appeal. The court may or may not grant the extension for more time.

Get a blank form APP-006 application for extension of time to file a brief

Get a blank form APP-012 stipulation for extension of time to file a brief

What happens if a party files a cross-appeal?

If one of the parties files a cross-appeal, then the briefing contents and briefing schedule are different. In the event of a cross-appeal, the opposing parties must try to agree on a briefing schedule. They can either submit a joint briefing schedule, or submit a separate briefing schedule for the court to consider and make a decision about the schedule. See CRC 8.216 for the procedures for submitting such a briefing schedule.


FORMS

Documents you will need for your case.

image_pdfimage_print