Briefs

Once the appellate court files the record on appeal, you will have to prepare your brief.

A "brief" is a party's written description of the facts in the case, the law that applies, and the party's argument about the issues on appeal.

The briefs are the single most important part of the appellate process. The record on appeal (the clerk's and reporter's transcripts or other form of the record) provides the court with a picture of what occurred in the trial court. But it is the arguments in the briefs that tell whether or not there was a legal error in those proceedings and whether it changed the outcome of the case. The best briefs contain your entire argument, guiding the appellate court through the case and using the record and legal authority to justify your points. Because of the specialized knowledge necessary for writing a good brief, the briefs are also by far the most difficult part of the appellate process.

In most appeals, there are 3 possible briefs:

1. The appellant's opening brief

The appellant's opening brief is the first brief from the appellant (the person who is appealing).  It must clearly explain, using references to the clerk's transcript and the reporter's transcript (or the other forms of the record that you are using), what the appellant claims were the legal errors made by the trial court.

This brief also tells how those legal errors hurt the appellant and what the appellant wants the Court of Appeal or appellate division to do. Remember that an appeal is not a new trial; the appellate court will not consider new evidence, such as the testimony of new witnesses or new exhibits, so you should not try to include any new evidence in your brief.

The appellant's opening brief is mandatory:

  • For cases in the appellate division of the superior court (limited civil cases), the appellant's opening brief is due within 30 days after the record on appeal is filed in the appellate division. The superior court clerk will send you the deadlines for serving and filing your brief.
  • For cases in the Court of Appeal (unlimited civil cases), the appellant's opening brief is due 40 days after the Court of Appeal notifies the appellant that the clerk's and reporter's transcripts (or other forms of the record that you are using) have been filed in the Court of Appeal. If the appellant prepares his or her own appendix and does not request a reporter's transcript, the appellant's opening brief and appendix are due 70 days from the date appellant filed the election to use an appendix in the superior court.

If the appellant does not file his or her opening brief by the deadline set by the court, the court may dismiss the appeal.

2. The respondent's brief

The respondent's brief is the other side's chance to respond to the appellant's opening brief. It must address the facts and legal issues raised in the appellant's opening brief and explain why the trial court's decision should not be overturned. The brief may bring up some issues that the appellant's opening brief did not.

The respondent is not required to file a brief. But if the respondent chooses not to file a brief, the court can decide the appeal on the record, the appellant's opening brief, and any oral argument by the appellant, so the respondent will lose the chance to make his or her argument about the issues in the case.

The respondent's brief is due 30 days after the appellant's opening brief is served and filed.

3. The appellant's reply brief

If the respondent files a brief, the appellant can also file another brief replying to the respondent's brief. This is called a "reply brief." The appellant's reply brief is optional. If the appelland decides to reply to the issues raised in the respondent's brief (the appellant CANNOT raise new issues), the appellant's reply brief is due 20 days after the respondent's brief is served and filed.

Some juvenile cases have a fourth brief, the minor's opening brief.  In some appeals, such as cases involving termination of parental rights, the minor's lawyer may file a brief (this is optional).  It is due 20 days after the respondent's brief is filed.

 

Rules, Contents, and Common Problems with Briefs

Click on the topics listed to see additional information on briefs:


Rules on appellate briefs

For the rules about what must be in your brief and how it must be written, including requirements for the format and length of these briefs:

  • Read rule 8.883 of the California Rules of Court for civil appeals in the appellate division of the superior court (limited civil cases).
  • Read rule 8.204 of the California Rules of Court for civil appeals in the Court of Appeal (unlimited civil cases).

For the rules about serving and filing briefs:

  • Read rule 8.882 of the California Rules of Court for civil appeals in the appellate division of the superior court (limited civil cases).
  • Read rule 8.200 and rule 8.212 of the California Rules of Court for civil appeals in the Court of Appeal (unlimited civil cases).

Contents of a brief

For appeals of limited civil cases in the appellate division of the superior court, the requirements for what must be in a brief and how the brief must be prepared are in rule 8.883 of the California Rules of Court.

For appeals of civil cases in the Court of Appeal (unlimited civil cases), the requirements for what must be in a brief and how the brief must be prepared are in rule 8.204 of the California Rules of Court.

In general, the appellant's opening brief must:

  • Identify the nature of the action (type of case) you are appealing,
  • Specify the judgment or order you are appealing,
  • State that the judgment is final or explain why the order is appealable, 
  • Include a summary of important facts in the record,
  • Support each reference to a fact in the record with a citation to the record (the volume and page number of the record where that fact appears),
  • Support each point in the brief by argument and, if possible, by a citation to authority (giving the court the name and place in a published court decision, constitution, statute, court rule or other legal authority that supports what you say is the law in your brief), and 
  • Indicate the relief (solution) you want from the court.

Remember, these are just some of the requirements. There are others, like the size of the font, the number of words, the margins, type of paper, and others.

Who gets the briefs

All briefs in civil cases must be served on all the parties and on the clerk of the superior court (for delivery to the judge in the case) and must be filed in the appropriate appellate court (the Court of Appeal or the appellate division of the superior court).

In unlimited civil cases (in the Court of Appeal), briefs must also be served on any public officer or agency required to be served under rule 8.29 of the California Rules of Court. In addition, an electronic copy of briefs must be submitted to the Court of Appeal under rule 8.212 of the California Rules of Court.  The Supreme Court must be served with a single electronic copy of the briefs filed. If doing this would cause undue hardship for the party filing the brief, the party can instead serve 4 paper copies on the Supreme Court.

Extending time to file the brief

In the appellate division of the superior court, you and the other parties can agree to up to a maximum of 30 days in extensions to file your brief. If you need more time or if you are unable to get the other side to agree to an extension, you may file an application asking the appellate division for more time to file your brief (see California Rules of Court, rules 8.806 and 8.810).

In the Court of Appeal, you and the other parties can agree to up to a maximum of 60 days in extensions to file your brief. If you need more time or if you are unable to get the other side to agree to an extension, you may file an application for extension of time with the Court of Appeal (see California Rules of Court, rule 8.212(b)). You can use the Application for Extension of Time to File Brief (Civil Case) (Form APP-006).

If the brief is late or not filed at all

If the appellant's opening brief or a respondent's brief is late, the appellate court clerk will send a notice that gives the party 15 more days to file the brief.

If the appellant's opening brief is not filed within this 15-day grace period allowed under the rule, the appeal may be dismissed. If the respondent's brief is not filed within the 15-day grace period, the court may decide the case on the appellant's opening brief, the record, and any oral argument by the appellant.

A party can apply for an extension of time to file a brief for good cause if they ask for the extension within the 15-day grace period. If the appellant's opening brief is not filed during this extension, the court may dismiss the appeal.

If the brief is not prepared correctly

If the brief is not done correctly — if it is too long, for example — the court may refuse to file it, return it to the party for corrections and changes, or choose to disregard the problem and accept the brief as is.

If the brief is returned for corrections, generally it is necessary to prepare a new document, which must be served on all the parties and filed with the court.

If the incorrect or omitted items have been redone properly, the court will file the corrected document. If the items have not been redone properly, the court may refuse to file the brief. If the appellant's opening brief is not filed, the court may dismiss the case. If the respondent's brief is not filed, the court may let the appeal proceed on the record and the appellant's opening brief and oral argument.

Common mistakes in briefs

Here are some common mistakes made in briefs:

  • Not citing the record (giving the court the exact place in the record that shows the fact) for a fact that you put in your brief;
  • Relying on material that is not part of the record;
  • Not citing the law (giving the court the name and place in a published court decision, statute, or other law) for what you say is the law in your brief;
  • Improperly citing an unpublished court decision;
  • Ignoring the standard of review;
  • Addressing waived issues (these are issues you may have given up the right to challenge in the trial court. Talk to a lawyer if you are not sure);
  • Not showing prejudice (harm to the appellant) — not proving that if the mistake had not been made in the trial court, the decision would have been different;
  • Improper tone;
  • No proofreading (so your brief has typos and other obvious errors); and
  • Not clearly telling the court what you want.

Get help writing a brief

You can find California appellate briefs at the Courts of Appeal: Appellate Briefs. Also, the information forms developed by the Judicial Council for limited and unlimited civil cases have information about the requirements for briefs.

  • For an appeal of a limited civil case (civil cases involving an amount that is  $25,000 or less), read the Information on Appeal Procedures for Limited  Civil Cases (Form APP-101-INFO).

  •  For an appeal of an unlimited civil case (such as civil cases involving an  amount over $25,000 or family law cases), read the Information on Appeal  Procedures for Unlimited Civil Cases (Form APP-001).

And the Court of Appeal districts have self-help manuals with sample briefs you can use to guide you as well.  Click on the appropriate appellate district below to get more information.

The Courts of Appeal and where to get help

The 1st District Court of Appeal

The 1st District Court of Appeal is in San Francisco and hears appeals in unlimited civil cases (such as civil cases involving an amount over $25,000 and family law cases) from trial courts in Alameda, Contra Costa, Del Norte, Humboldt, Lake, Marin, Mendocino, Napa, San Francisco, San Mateo, Solano, and Sonoma Counties.

For help with an appeal, click on the 1st District Court of Appeal's practices and procedures page.

The 2nd District Court of Appeal

The 2nd District Court of Appeal is in Los Angeles and Ventura and hears appeals in unlimited civil cases from trial courts in Los Angeles, Ventura, Santa Barbara, and San Luis Obispo Counties.

For help with an appeal, click on the 2nd District Court of Appeal's practices and procedures page, or for more information, click on the 2nd District's self-help resources page.

The 3rd District Court of Appeal

The 3rd District Court of Appeal is in Sacramento and hears appeals in unlimited civil cases from trial courts in Alpine, Amador, Butte, Calaveras, Colusa, El Dorado, Glenn, Lassen, Modoc, Mono, Nevada, Placer, Plumas, Sacramento, San Joaquin, Shasta, Sierra, Siskiyou, Sutter, Tehama, Trinity, Yolo, and Yuba Counties.

For help with an appeal, click for the 3rd District Court of Appeal's practices and procedures page.

The 4th District Court of Appeal

The 4th District Court of Appeal has 3 locations, in San Diego, Riverside, and Santa Ana. It hears appeals in unlimited civil cases from trial courts in San Diego, Imperial, Orange, San Bernardino, Riverside, and Inyo Counties.

For help with an appeal, click for the 4th District Court of Appeal's practices and procedures page, or click for self-help resources (including a step-by-step guide of the appeals process).

The 5th District Court of Appeal

The 5th District Court of Appeal is in Fresno and hears appeals in unlimited civil cases from trial courts in Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare, and Tuolumne Counties.

For help with an appeal, click for the 5th District Court of Appeal's practices and procedures page, or click for self-help resources (including a step-by-step guide to the appeals process).

The 6th District Court of Appeal

The 6th District Court of Appeal is in San Jose and hears appeals in unlimited civil cases from trial courts in Santa Clara, San Benito, Santa Cruz, and Monterey Counties.

For help with an appeal, click for the 6th District Court of Appeal's practices and procedures page.

Site Map | Careers | Contact Us | Accessibility | Public Access to Records | Terms of Use | Privacy