The appellate court probably knows the relevant law but not the facts of your case, so it will look to your appellant’s brief to fill this void. If you don’t provide an adequate statement of the case in your brief, the court will have to look to the respondent’s brief. That’s major incentive to making your statement of the case as clear and effective as possible.
The appellant’s opening brief includes a statement of the case that concisely sets out the nature of the action or proceeding and the relief sought, a summary of the material facts, and the judgment or ruling of the superior court. Cal Rules of Ct 8.204(a)(2). Before you start drafting, review these three steps:
1. Organize according to the needs of your case. There’s no required organizational method for presenting the statement of the case; the precise organization must follow the needs of the particular case. But here are some tips to creating an organization that will fit your case:
- Formulate an outline. Before you write your first draft, decide on a logical presentation sequence and draft a suitable outline, with the principal points serving as subheadings in the presentation.
- Present in chronological order. Most appellants decide to use a chronological narrative. Refer to the salient aspects of the lower court’s proceeding, but present the underlying facts in terms of their own logical development.
- Manage complex facts. Complex briefs with extensive facts require special treatment. Consider using an Introductory Statement of Facts as a separate heading to tell a general story of what happened, with a note that the particular facts pertaining to each issue will be presented separately when that issue is discussed. Complex facts may also be managed by subdividing the statement of facts, using headings and subheadings, which can then be extracted to create a forceful table of contents.
2. Emphasize the most relevant facts. Decide which of the underlying facts and which portions of the trial court proceedings are particularly relevant to the issues on appeal, and focus the account on those aspects. Include only a summary account of other matters to acquaint the appellate court with the factual background of the case.
3. Be fair. Tactical considerations and professional ethics dictate that the appellant state the case fairly and accurately. See Cal Rules of Ct 8.204(a)(2); Cal Rules of Prof Cond 5–200. If you misstate the facts or present a distorted picture by ignoring facts adverse to the appellant’s position, your opponent will likely call such distortions to the court’s attention—or the court may discover them on its own. At that point, your credibility is destroyed.
For everything you need to know about drafting an appellant’s opening brief, turn to CEB’s California Civil Appellate Practice, chap 12. And get step-by-step guidance in CEB’s Handling Civil Appeals. Learn from an expert how to craft legal arguments to engage and persuade an appellate justice to rule in your client’s favor in CEB’s CLE program Myron Moskovitz on Winning Appeals and Writs, available On Demand.
Other CEBblog™ posts you may find useful:
- What Are My Prospects on Appeal?
- Keep an Eye Toward an Appeal
- Oops! Missing a Party in the Notice of Appeal
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