The Lawletter Vol 44 No 6
The appellate process is already an expensive and difficult process. Why sink your chances of a win by presenting the court with a brief that is not compelling or, even worse, is noncompliant with court rules?
In very egregious cases, a noncompliant brief may result in the denial of the appeal. In 2019, a North Carolina court concluded that dismissal was an appropriate sanction. In Ramsey v. Ramsey, 826 S.E.2d 459 (N.C. Ct. App. 2019), the appellant failed to file the record on appeal within 15 days of the date the record was settled and included a discussion of relevant facts in the argument section, instead of in a separate fact statement. He included the standard of review in only one of his three argument sections and had a litany of minor errors, such as a failure to identify the specific names of persons served in the Certificate of Service. And although the brief met word limits, the Certificate of Compliance stated the word count, rather than the required statement that the brief contains no more than the permitted number of words. The court declined to make its own "voyage of discovery through the record" in order to glean the relevant circumstances for the appeal and dismissed the appeal. Id. at 464.
In a recent case in Illinois, the court dismissed an appeal, noting that the brief was "difficult to follow" and violated multiple appellate rules. For example, the brief interjected argument into the statement of facts and cited cases without explaining their applicability. In Bank of New York Mellon for Certificate Holders CWALT, Inc., Alternative Loan Tr. 2006-J2 Mortgage Pass-Through Certificates, Series 2006-J2 v. Nestle, 2017 IL App (2d) 160623-U, the court concluded that the defendant would have lost on appeal for substantive reasons, as far as the court could discern the relevant arguments, but that some of the matters raised were forfeited, based on a lack of cogent argument or relevant citations to authority. In another Illinois case, the court dismissed an appeal, finding that the rule violations interfered with the court's review. Ammar v. Schiller, DuCanto & Fleck, LLP, 93 N.E.3d 660 (Ill. App. Ct. 2017), appeal denied, 95 N.E.3d 496 (Ill. 2018). The appellant's brief raised 10 issues on appeal, some of which cited only to general propositions of law rather than to specific authority. The appendix was also deficient, lacking the notice of appeal and an accurate table of contents.
The court may allow attorneys to correct deficiencies in a brief or impose a sanction less than dismissal. In a recent Florida case, the court of appeal found that the circuit court erred when it dismissed an appeal from a county court because the appellant failed to include the transcripts of the hearing in the appellate record. The court should have warned the appellant that the failure to provide the transcripts would result in dismissal and should have allowed him to correct the error. Fla. Wellness & Rehab. Ctr., Inc. v. Mark J. Feldman, P.A., 262 So. 3d 234, 238 (Fla. Dist. Ct. App. 2018). But depending on the errors, correction may be at the subjective judgment of the court.
Even if a court does not dismiss an appeal for rules violations, failure to make a cogent argument may doom an appellant's chances. A Kentucky court recently expressed exasperation with an appellant's failure to comply with appellate rules, although it declined to dismiss the case. French v. French, No. 2018-CA-000878-ME, 2019 WL 3048356, at *2 (Ky. Ct. App. July 12, 2019) ("We regret having to address, yet again, an attorney's failure to comply with rules of appellate procedure."). The appellant lost the appeal. Would a compliant brief have changed the outcome? Obviously, that will never be known, but the lack of compliance clearly did not help the appellant's position, given the level of annoyance expressed by the court in its opinion.
A noncompliant brief may also expose an attorney to monetary sanctions. In a 2019 North Carolina case, the court fined defense counsel as a sanction for violating rules related to the appellate brief. State v. Pavkovic, COA 19-126, 2019 WL 4439672 (N.C. Ct. App. Sept. 17, 2019). The brief was noncompliant in a number of ways, such as being single rather than double spaced. It also (among other deficiencies) failed to contain a proper table of authorities, and while it complied with the word limit, the court had to conduct its own analysis to determine the word count. The court concluded that dismissal was too harsh of a sanction, but defense counsel was ordered to personally pay double the court-imposed costs of the appeal, including all costs for printing the briefs and records.
NLRG can assist you with appellate brief research and writing. Our services include everything from providing you with a signature-ready brief based on your input to reviewing a brief you have written to help you identify its weaknesses and verify that it is compliant with court rules. We have prepared over 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.