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