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    The Lawletter Blog

    APPELLATE BRIEF WRITING: Mistakes Can Be Fatal to Your Case

    Posted by Nicole Prysby on Wed, Jun 1, 2016 @ 10:06 AM

    The Lawletter Vol 41 No 5

    Nicole Prysby, Senior Attorney, National Legal Research Group

         "Judges are not like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). The frustration evident in this quote is shared by many appellate judges. The appellate process is already an uphill battle, and presenting the court with a brief that is not compelling or, even worse, is noncompliant with court rules makes it even harder. The vast majority of appeals are resolved without oral argument, which means that the brief is likely the only chance an attorney will have to present a client's case on appeal.

         The consequences of an inadequate or noncompliant brief range from frustrating the court to having the appeal dismissed. In egregious cases, sanctions may even be imposed. For example, sanctions were imposed against counsel in one case involving the failure to observe line spacing, font, and footnote rules. Kano v. Nat'l Consumer Co-op. Bank, 22 F.3d 899 (9th Cir. 1994). In another case, the court suggested that counsel should be liable for malpractice for a brief that was egregiously noncompliant with court rules. Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404 (3d Cir. 1980). In Kushner, failure to comply with federal rules for the brief and appendix not only led to dismissal of the appeal but also prompted the court to suggest that a client facing this situation "may wish to proceed against his or her counsel in an action for malpractice." Id. at 408. The court also stated that "[w]e note with extreme melancholy that this case is not an isolated example." Id.

         Of course, courts are reluctant to strike briefs and dismiss appeals, because it is a harsh penalty on a client. In re Estate of DeMarzo, 2015 IL App (1st) 141766, 39 N.E.3d 255. However, they are less reluctant to take other actions, such as striking portions of a brief, resolving doubts against the appellant, and other actions that will harm an appeal. For example, including facts that are not part of the record resulted in the striking of those portions of the brief. Hawkins v. Harney, 2003 MT 58, 66 P.3d 305; see also Doppes v. Bentley Motors, Inc., 94 Cal. Rptr. 3d 802 (Ct. App. 2009) (court declined to consider paragraphs in the statement of facts without record citations). Citing to unpublished authority and failing to provide a copy of the opinion with the brief led to the court's declining to consider those arguments. Condon v. Condon, 298 P.3d 86 (Wash. 2013).

         In some cases, the appellate court will allow an attorney to correct deficiencies in the brief, but depending on the errors, the option of correcting the brief is left to the discretion of the court.

         The attorneys of National Legal Research Group have prepared more than 6,000 briefs for state and federal courts of appeal and the U.S. Supreme Court, and our highly skilled staff of attorneys, proofreaders, and cite-checkers have detailed knowledge of appellate rules and procedures to ensure compliance and acceptance. Our services include everything from providing you with a signature-ready brief based on your input to reviewing a brief you've written to help you identify its weaknesses and verify that it is compliant with court rules. For more information about our services, please call 877-804-8315 or visit http://www.nlrg.com/our-services/legal-research-for-attorneys.

    Topics: noncompliance consequences, Lawletter Vol 41 No 5, appeal dismissal, Nicole Prysby, appellate brief writing

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