Appeals are very technical. In the last blog, we covered the beginning sections of an appellate brief. There is opportunity to fashion a primer for argument with the presentation of facts and issues. However, be forewarned: omissions of bad facts and argumentative spin on the facts is improper and will hurt the credibility of the attorney.
The argument is the biggest part of the appellate brief. It begins with a concise statement of the standard of review for each issue presented, usually organized by subheadings. Argument headers appear in ALL CAPS. When an appeal requires multiple standards of review, the best practice is to present the applicable standard of review at the beginning of each substantive section of the argument.
The brief will contain the argument, and any authority ought to be cited according to the latest version of The Bluebook: A Uniform System of Citation. Long quotes are to be further indented 0.75 inches from each side. The conclusion section of the argument is typically a very short and plain statement asking for a requested form of relief, or in some cases, alternative prayers for relief. It is short because there needs to be no recap of the argument. This is followed with the identification of counsel, proof of service, and appendix if applicable. If an attorney wishes to partake in oral arguments, they have to sign the brief (electronic signing in electronic filings is sufficient). See N.C. R. App. P. 33(a), Appendix B. The certification of compliance is a form that certifies that the attorney(s) followed the style rules for the brief in word count and font. Footnotes and citations are included in the word count, but cover page, captions, indexes, tables of authorities, signature blocks, certificate of service, and the certification of compliance are not.
The appendix contains the relevant portions of the transcript, statutes, and regulations that were cited in the brief. Not every brief requires the appendix, as direct quotes in the brief will terminate the requirement to supply the same material in an appendix. The appendix will have a table of contents and, like the other indexes, should be indented 1.75 inches from each side. It is best to number the appendix “- App. 1 -”. An addendum often can be confused as being an appendix. An addendum is a document submitted to the Court containing unpublished opinions cited in the brief. Citing to unpublished opinions is disfavored.
After the civil appellant serves their brief, the appellee is given 30 days to respond with their brief. Appellee’s briefs need not contain a statement of facts, grounds for appellate review, or standard of review. But they may do so to present additional arguments/issues, or if there are disagreements to the appellant’s statements of fact.
Service of electronically filed briefs can be accomplished by email. This is by far the simplest method of service.
Briefs are the argument on appeal. Not all appeals will have oral arguments, and in those cases, they are decided on the argument presented in the brief. Adherence to the appellate style manual and Bluebook is important—it makes it easier for clerks and Judges to read your brief and understand your argument.