FREQUENTLY ASKED QUESTIONS ABOUT BRIEFS OTHER THAN THE “OPENING” BRIEF
| Q. | I see that most briefs require me to include a section that discusses the standard of review. Is that section perfunctory? And do all of the issues need to be governed by the same standard? |
| A. | The standard of review is very important. It controls how the appellate court will assess what the trial court did. For instance, de novo review means that the trial court’s decision gets no deference, whereas the “clearly erroneous” standard and the “abuse of discretion” standard cause appellate courts to give more latitude to trial courts. As you might suspect, empirical research confirms that appellate courts that apply de novo review are far more likely to reverse a lower court than appellate courts applying more deferential standards. Each issue in your brief may be governed by a separate standard. And if a single issue raises multiple subissues, each of them might be governed by a different standard. You might decide which issues to appeal based partly on how they implicate the standard of review. Bear in mind, too, that parties sometimes argue in the alternative over the standard of review, suggesting (for example) that the appellate court should apply de novo review, but that the trial court’s order should be vacated even if the appellate court applies the “clearly erroneous” standard. |
| Q. | Should I always file a reply? |
| A. | Basically, yes. Your adversaries are likely to raise at least one decent argument or to assert at least one incorrect fact, so you will usually want to counter what they submit (and, thereby, get the final word). |
| Q. | Is a reply really the final word? Can I respond to a reply? |
| A. | Some courts permit parties to file “surreplies,” either by rule or with the court’s permission. Exercise this prerogative only when necessary. Some courts, such as the Second Circuit, effectively ban surreplies, reflecting the judges’ conviction that lawyers already submit too much paper. |
| Q. | Should I always file an opposition to a petition for discretionary review, such as a cert petition? |
| A. | No, you can refrain from filing an opposition if you conclude that no justice would find the case meritorious enough to hear. Also, at least at the Supreme Court of the United States, the Court won’t grant certiorari without asking the respondent for its views. In state supreme courts, check the local rules to see whether you must — or may — oppose a petition for review. In federal en banc cases, the court of appeals will usually tell the appellee if it wants to receive an opposition to a petition for a rehearing en banc. |
| Q. | If I’m writing an appellate brief, where do amici come from? |
| A. | Some nonparties will hear of the case and will involve themselves in the case as amici. But you may also recruit amici. Thinking about which perspectives can help your client’s cause and (as the saying goes) “lining them up” is an important part of good appellate advocacy. Remember that various ethical rules will govern what you can discuss with amici; in general, you can tell amici what your brief will argue, but you may not tell them what to write. Check amici’s past positions because your client will be accountable for what its “friends” say. Amicus briefs often work best when they line up unlikely allies. As examples, an oil company will benefit if it has environmental groups as amici, just as an environmental group will benefit if it has oil companies as amici. |
| Q. | What happens if I represent amici that have a view that differs from either party? |
| A. | That’s fairly common. You submit an “amicus brief in support of neither party.” That caption signals to the court that you are advancing a position that differs from what either party is arguing. If, however, you support one side’s conclusion (but you favor an alternative rationale), you may still support that party. |
| Q. | Do all appellate courts follow the same rules? |
| A. | Not at all — even within federal courts, there’s great variation. For instance, an appellee must typically file its brief within thirty days. See Fed. R. App. P. 31(a)(1). But some courts alter the deadlines significantly. See, e.g., 4th Cir. R. 31(a) (“the appellee shall serve and file appellee’s brief within twenty-one days”) (emphasis added). Many lawyers in the Fourth Circuit have suffered nausea (and awkward calls with clients) when their briefs were rejected for being untimely filed. Similarly, local rules differ on whether amici need permission to file, on the formatting of briefs (e.g., the Seventh Circuit dictates which fonts may be used), and so on. State appellate rules vary even more significantly. |