The briefs constitute the substance of every appeal. The first brief filed by the appellant is called the appellant’s opening brief.1 It explains, in detail, the factual and procedural background of the case, as well as the legal arguments that the appellant believes justify reversal of all or part of the lower court’s outcome.
This article takes a look at the procedural requirements for filing an opening brief in the California Courts of Appeal. It also provides some helpful tips about crafting arguments.
Need a Lawyer?
Take your case to the next level by hiring an appellate attorney.
- 1 Time for Filing
- 2 Writing a Brief
- 3 Contents of the Appellant’s Opening Brief
- 4 The Appellant’s Appendix
- 5 Length of the Opening Brief
- 6 Formatting Requirements
- 7 Filing the Brief
Time for Filing
In general, the opening brief must be filed within 40 days of the date the court of appeal gives notice that the record has been filed.2
If the appellant elects to file an appendix (instead of a clerk’s transcript) and no reporter’s transcript has been designated by the parties, the opening brief must be filed within 70 days of the date the appellant files their election to use an appendix.3 The court of appeal will usually provide a notice identifying the date on which the opening brief must be filed.
A party who needs more time to file a brief can ask the opposing party (or that party’s attorney) to agree to an extension of time to file the brief. That agreement cannot extend the filing deadline by more than 60 days. If the other party agrees, a written stipulation is signed by both parties and filed with the court of appeal, which will then set the new deadline that the parties agreed upon.4
If the respondent does not agree to extend the deadline for filing the opening brief, the appellant can file an application with the presiding justice of the court to extend the deadline.5 The application must explain why more time is needed and, if no stipulation with the respondent was obtained, why not. The application must show good cause for the extension of time.6
If the maximum extension time has already been stipulated to and the appellant requires more time, they can also file an application with the presiding justice of the court to extend the deadline.7 Again, the application must show good cause for the extension of time.8
Because there is no guarantee that an extension will be granted (particularly if it is opposed by the respondent or the appellant lacks good cause), it is best to file the brief before the original deadline expires.
Writing a Brief
A brief is a legal argument. It applies the law to the facts of the case in a way that is designed to persuade the appellate court that the trial court made a mistake (if the brief is filed by the appellant) or that the trial court’s decision should be affirmed (if the brief is filed by the respondent).
Writing a persuasive brief requires a thorough understanding of the facts in the record and of the applicable law. The writer of a brief will usually engage in exhaustive legal research to find every statute and case that might have a bearing on the legal issue being briefed.
Briefs should cite statutes, published court decisions,9 relevant portions of the record on appeal, and any other applicable legal authority to support the arguments.
Prior court decisions can be particularly persuasive, especially if they address the same or similar issue in a way that is favorable to the brief’s arguments. If the cases were decided by a higher court in the same jurisdiction, those decisions may be binding on the current court.10
But since each case turns on its own facts, a legal rule that a court applied to one set of facts might not apply to a different set of facts. Briefs often explain to a court why precedents should or should not apply to the case before the court. They can do this by emphasizing facts in prior case law that favor their argument, and explaining why adverse facts are irrelevant to the current case.
Writing a persuasive appellate brief is an art. This step does not attempt to explain all the nuances of crafting a legal argument. Rather, the focus here is on the mechanics of preparing a brief.
If you are interested in further reading on the art of persuasive writing, the following books might be helpful:
- The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts, by Bryan Garner (or really anything by Bryan Garner).
- How Judges Think, by Judge Richard A. Posner.
- Point Made: How to Write Like the Nation’s Top Advocates, by Ross Guberman.
- Making Your Case: The Art of Persuading Judges, by Bryan Garner and Justice Antonin Scalia.
Contents of the Appellant’s Opening Brief
Every appellate brief in California must contain certain components. If parts are omitted, the court of appeal might reject the brief. Or the party filing the brief might lose the appeal because information necessary to the decision was not placed before the court.
The components that must be included in a California appellate brief are:
The cover of a brief must contain:11
- The name of the appellate court;
- The case number in the court of appeal;
- The case number in the trial court;
- The names of the parties, in the same order as they appear in the trial court caption, and their designations;
- The names of the trial court and of the trial judge;
- The title of the brief; and
- The name, address, telephone number, and designation of the person who prepared and is filing the brief.12
If a hardcopy of the brief is being filed (as opposed to an electronic filing), the cover of the appellant’s opening brief is green.13 Companies that regularly print briefs will have a supply of the stiff paper that is customarily used for a brief cover.
There are various ways to style the cover. One way is as follows:
Certificate of Interested Entities or Persons
If no motions have been previously filed by the appellant, the opening brief in civil cases must include a certificate of interested entities or persons (discussed in Step 6). If the certificate has been previously filed, a copy should still be included in the opening brief.14
This certificate must appear as the first page of the brief—immediately after the cover page.15
Table of Contents
Each brief must include a list, followed by page numbers, of each section of the brief.16 The table of contents generally must appear at the beginning of the brief, after the cover page and the certificate of interested entities or persons.
Table of Authorities
Each brief must include a list of each statute, administrative rule, case, treatise, scholarly article, and any other authority relied upon in the brief, with the page number of each page on which that authority is cited.17
The different types of authorities are generally separated into their own lists, and each list begins with a subheading stating the type of authority in the list (e.g., “Cases” or “Statutes”). The authorities in each list are then sorted alphabetically.
Some writers include an introduction or summary of the argument at the beginning of the brief, just after the table of authorities. There is no requirement that your brief include an introduction, but it can help give your readers (namely, the justices) a preview of your perspective of the case.
If your brief addresses simple issues, and introduction may not be necessary. When the argument is more complex or extended, a brief summary of it can focus the minds of busy justices by allowing them to quickly grasp the thrust of your argument.
This introduction can also be placed right before the main argument.
Statement of Appealability
The opening brief must include a description of the judgment or order from which the appeal is taken and citation to the rule or statute that makes that judgment or order appealable.18
This statement is usually very short. It can be as short as one or two sentences, if the facts allow. But some cases require a more detailed explanation of why the case is appealable, if that is an issue.
Statement of the Case
The opening brief must include a short procedural summary of the significant events that took place in the trial court.19 This section is usually called the statement of the case or the procedural history.
This section should include the date on which each event occurred and a citation to the record where that event can be located.20 Citations appear in parentheses following the stated event.
The citation format is usually: the volume number of the transcript in which the fact appears; “RT” or “CT,” depending on whether the citation is to the reporter’s transcript or the clerk’s transcript, respectively; and page number where the fact can be found in that transcript.
Joint appendices are commonly abbreviated “JA,” and augmented transcripts are abbreviated “ART” or “ACT.”
(1 RT 17) would be used to cite to page 17 of volume 1 of the reporter’s transcript.
Significant events might include, for example, the filing of a civil complaint, an order excluding important evidence, the trial of the lawsuit, the entry of judgment, and the filing of the notice of appeal.
An event should generally be regarded as significant if the appellant will need to refer to it when arguing the appeal.
Statement of the Facts
The opening brief must include a statement of facts.21 The statement of facts is a summary of the evidence before the trial court or other facts that are necessary to understand the issues raised on appeal.
The statement of facts should be a relatively neutral recitation of relevant facts—regardless of whether they are helpful or harmful to your case. In cases that went to trial, a well-written statement of facts tells the story of the events that caused the lawsuit to be filed as they were described at trial, but only to the extent that those events are supported by the record.
Each fact must be supported by a citation to the part of that record where the fact appears.22 Citations appear in parentheses following the stated fact, in the same format as mentioned in the statement of the case.
The argument is perhaps the most important section of any brief. It provides a detailed explanation of the legal arguments the appellant believes justify reversal of all or part of the lower court’s outcome.
Each issue raised on appeal must be discussed under a separate argument heading.23 Examples of argument headings might be:
I. The undisputed evidence established that appellant was misclassified as an exempt employee.
II. The trial court erred by excluding the expert testimony of appellant’s therapist.
If an argument is lengthy or complex, it may be useful to break it into separate subsections, each preceded by a subheading.
At the beginning of each argument, you must identify the standard of review that will govern the court’s consideration of that argument. A standard of review defines the degree to which the court of appeal is required to defer to trial court rulings. The three most common standards are:
- Question of law. If the issue concerns a question of law (such as the meaning of a statute), the court of appeal will decide the issue independently.24 Courts also refer to this standard as de novo review.
- Question of fact. If the issue concerns a disputed question of fact (such as whether or why a particular event occurred), the court of appeal will review the case to determine whether substantial evidence supports the outcome. The evidence is “substantial” when it is reasonable in nature, credible, and of solid value.25 The court of appeal will not second-guess a lower court’s assessment of witness credibility or its resolution of conflicting testimony.26
- Abuse of discretion. If the issue concerns the trial court’s exercise of its discretion (such as the decision to exclude evidence that the court believes to be unfairly prejudicial), the court of appeal will uphold the trial court’s decision if it is based on reason and is consistent with the facts.27
Parties will generally need to do legal research to determine the appropriate standard of review. Start by finding cases that have addressed similar issues and note how the appellate court characterized its standard of review in those cases.
Additionally, parties must support their arguments by citing statutes, precedents, or other legal authorities that help their position.28 When lawyers write briefs, they typically summarize the law, then explain how the law applies to the facts of the case.
When other appellate court decisions have reached conflicting results in similar cases, the brief should explain why precedents that are favorable to the desired outcome should be followed while distinguishing precedents that are unfavorable to that outcome.
The format for citing legal authority is determined by one of two reference guides:
- The Bluebook: A Uniform System of Citation, or
- The California Style Manual.29
It may be easier to use The California Style Manual because it is available online at no cost, while access to The Bluebook requires a purchase or a paid subscription. After choosing a citation format, that format should be used consistently throughout the brief.
The conclusion is a brief summary of the argument and a request for the court of appeal to take a specific action.
An appellant usually asks the court of appeal to reverse or vacate the trial court’s judgment or order and to take some additional action, such as remanding the case to the lower court for a new trial or remanding with instructions to enter judgment in the appellant’s favor.
A signature is not required by the rules, but it is customary to sign and date the brief.30
Certificate of Word Count
Every appellate brief must include a certificate of word count (sometimes called a “certificate of compliance”).31 The certificate of word count tells the court of appeal that your brief complies with the length limits discussed below. The text of the certificate of word count can read:
Appellate counsel certifies in accordance with California Rules of Court, rule 8.204(c), that this brief contains ___________ words as calculated by the software in which it was written. I certify under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
You must sign and date the certificate of word count.32
Proof of Service
Every filing in the court of appeal must include a proof of service.33 Step 3 discusses how to serve documents.
Each brief must be served on the attorney for each party that is represented by an attorney. Or, if the party is not represented by an attorney, the brief should be served on each unrepresented party.34 Briefs must also be served on the superior court clerk for delivery to the trial judge.35
In some cases, the law requires additional persons or entities to be served.36
The Appellant’s Appendix
If the appellant is filing an appendix instead of a clerk’s transcript (explained in step 5), the appendix must be filed as a separate document. It cannot be combined with the brief.
The appendix must begin with a cover that matches the cover of the appellant’s opening brief, except the title is “Appellant’s Appendix” or “Joint Appendix.”37
The cover of the appellant’s appendix is green. The cover of a Joint Appendix is white.38
Length of the Opening Brief
In civil cases, an opening brief prepared on a computer must not exceed 14,000 words, including footnotes.39 The word count does not include the cover, the certificate of interested entities or persons, the table of contents, or the table of authorities.
In criminal appeals and juvenile appeals (excluding death penalty cases), an opening brief prepared on a computer must not exceed 25,500 words, including footnotes.40 As with civil appeals, the word count does not include the cover, the certificate of interested entities or persons, the table of contents, or the table of authorities.
When checking the word count and preparing the certificate of word count, make sure your word count includes footnotes. On Microsoft Word and some other word processing programs, you need to check a box to include footnotes in your word count.
If your brief is prepared on a typewriter, it must not exceed 50 pages.41
If the appellant has a good reason, the courts will sometimes permit the appellant to file a brief that exceeds the word or page limit.42 To do so, the appellant must file an application to the presiding judge.
Because there is no guarantee that an application for an overlength brief will be granted, it is best to prepare a brief that is within the normal word limits, if possible.
The brief must also follow certain rules:
- Interior pages should be printed on white paper of at least 20-pound weight. The paper must be standard size (8.5 inches by 11 inches).43
- The cover should ideally be printed on a heavier paper known as cardstock. Copying services and printers that are familiar with legal briefs will have a supply of cardstock.
- The body text of the brief must be at least a 13-point font, and the line-spacing must be at least one-and-a-half-spaced.44
- Headings, footnotes, and blockquotes can be single spaced.45
- Side margins must be 1.5 inches. Top and bottom margins must be 1 inch.46
- Pages must be numbered using only Arabic numerals. The cover is page 1, although that number may be hidden. Every page number after that must appear on the bottom of the page.47
Whether the brief should be bound or unbound depends on the local rules of the court of appeal in the district where the brief will be filed. It is important to read and understand the local rules before preparing and filing a brief.
Filing the Brief
In some districts, briefs can be filed electronically by following the instructions the website for the district in which the brief must be filed.
An e-filed brief must be filed in a searchable PDF format and must be given a filename that follows the format specified on the court’s website. Failure to follow those rules may prevent the brief from being filed.48
The format of the brief is generally the same, whether the brief is printed or e-filed. Some rules, however, such as the weight of the paper on which the brief must be printed, will only apply to printed briefs.
Even if the brief is e-filed, local rules may require a specified number of printed copies (typically 3) to be filed with the clerk of the court of appeal for the district in which the appeal is pending.
If the brief is not e-filed, the appellant must file the original and 4 paper copies of the brief with the clerk of the court of appeal in the district where the appeal is pending.49 In addition, the appellant must provide one copy of the brief in text-searchable PDF format. The electronic copy must exactly duplicate the written brief.50
Need a Lawyer?
Take your case to the next level by hiring an appellate attorney.
The opening brief is often referred to by attorneys as an AOB.Footnote 1
Cal. Rules of Court, rule 8.212, subd. (a)(1)(A).Footnote 2
Cal. Rules of Court, rule 8.212, subd. (a)(1)(B).Footnote 3
Cal. Rules of Court, rule 8.212, subds. (b)(1), (b)(2).Footnote 4
Cal. Rules of Court, rule 8.212, subd. (b)(3).Footnote 5
Cal. Rules of Court, rule 8.212, subd. (b)(3).Footnote 6
Cal. Rules of Court, rule 8.212, subd. (b)(3).Footnote 7
Cal. Rules of Court, rule 8.212, subd. (b)(3).Footnote 8
Cal. Rules of Court, rule 8.1115, subd. (a) [“[A]n opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”].Footnote 9
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [“Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction.”].Footnote 10
Cal. Rules of Court, rule 8.204, subd. (b)(10).Footnote 11
Cal. Rules of Court, rule 8.204, subd. (b)(10).Footnote 12
Cal. Rules of Court, rule 8.40, subd. (b)(1).Footnote 13
Cal. Rules of Court, rule 8.208, subd. (d)(1) [“[T]he party must serve and file its certificate at the time it files the first such motion, application, or opposition and must include a copy of this certificate in the party’s principal brief.”].Footnote 14
Cal. Rules of Court, rule 8.208, subd. (d)(1) [“If no motion, application, or opposition to such motion or application is filed before the parties file their principal briefs, each party must include its certificate in its principal brief. The certificate must appear after the cover and before the tables.”].Footnote 15
Cal. Rules of Court, rule 8.204, subd. (a)(1)(A).Footnote 16
Cal. Rules of Court, rule 8.204, subd. (a)(1)(A).Footnote 17
Cal. Rules of Court, rule 8.204, subd. (a)(2)(B) [“An appellant’s opening brief must: . . . State that the judgment appealed from is final, or explain why the order appealed from is appealable”].Footnote 18
Cal. Rules of Court, rule 8.204, subd. (a)(2)(A) [“An appellant’s opening brief must: (A) State the nature of the action, the relief sought in the trial court, and the judgment or order appealed from . . . .”].Footnote 19
Cal. Rules of Court, rule 8.204, subd. (a)(1)(C) [each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”].Footnote 20
Cal. Rules of Court, rule 8.204, subd. (a)(2)(C) [“An appellant’s opening brief must: . . . (C) Provide a summary of the significant facts limited to matters in the record.”].Footnote 21
Cal. Rules of Court, rule 8.204, subd. (a)(1)(C) [each brief must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears”].Footnote 22
Cal. Rules of Court, rule 8.204, subd. (a)(1)(B) [“State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority”].Footnote 23
Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [“Questions of law relate to the selection of a rule; their resolution is reviewed independently.”].Footnote 24
Rivard v. Board of Pension Commissioners (1985) 164 Cal.App.3d 405, 409–410.Footnote 25
Betz v. Pankow (1993) 16 Cal.App.4th 919, 923 [“We must accept the trial court’s resolution of disputed facts when supported by substantial evidence; we must presume the court found every fact and drew every permissible inference necessary to support its judgment, and defer to its determination of credibility of the witnesses and the weight of the evidence.”].Footnote 26
Shamblin v. Brattain (1988) 44 Cal.3d 474, 478–479 [“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”].Footnote 27
Cal. Rules of Court, rule 8.204, subd. (a)(1)(B) [“support each point by argument and, if possible, by citation of authority”].Footnote 28
Cal. Rules of Court, rule 1.200 [“Citations to cases and other authorities in all documents filed in the courts must be in the style established by either the California Style Manual or The Bluebook: A Uniform System of Citation, at the option of the party filing the document. The same style must be used consistently throughout the document.”].Footnote 29
Cal. Rules of Court, rule 8.204, subd. (b)(9) [“The brief need not be signed.”].Footnote 30
Cal. Rules of Court, rule 8.204, subd. (c)(1) [“Such a brief must include a certificate by appellate counsel or an unrepresented party stating the number of words in the brief. The person certifying may rely on the word count of the computer program used to prepare the brief.”].Footnote 31
Cal. Rules of Court, rule 8.204, subd. (c)(1).Footnote 32
Cal. Rules of Court, rule 8.25, subd. (a) [“The party must attach to the document presented for filing a proof of service showing service on each person or entity required to be served under (1). The proof must name each party represented by each attorney served.”].Footnote 33
Cal. Rules of Court, rule 8.25, subd. (a)(1) [“Before filing any document, a party must serve, by any method permitted by the Code of Civil Procedure, one copy of the document on the attorney for each party separately represented, on each unrepresented party, and on any other person or entity when required by statute or rule.”].Footnote 34
Cal. Rules of Court, rule 8.212, subd. (c)(1) [“One copy of each brief must be served on the superior court clerk for delivery to the trial judge.”].Footnote 35
See, e.g., Cal. Rules of Court, rule 8.212, subd. (c)(3) [“One copy of each brief must be served on a public officer or agency when required by rule 8.29.”].Footnote 36
Cal. Rules of Court,Footnote 37
rule 8.124, subd. (d)(2) [“In addition to the information required on the cover of a brief by rule 8.204(b)(10), the cover of an appendix must prominently display the title ‘Joint Appendix’ or ‘Appellant’s Appendix’ or ‘Respondent’s Appendix’ or ‘Appellant’s Reply Appendix.'”].
Cal. Rules of Court, rule 8.40, subd. (b)(1).Footnote 38
Cal. Rules of Court, rule 8.204, subd. (c)(1) [“A brief produced on a computer must not exceed 14,000 words, including footnotes. Such a brief must include a certificate by appellate counsel or an unrepresented party stating the number of words in the brief. The person certifying may rely on the word count of the computer program used to prepare the brief.”].Footnote 39
Cal. Rules of Court, rule 8.360, subd. (b)(1) [“A brief produced on a computer must not exceed 25,500 words, including footnotes. Such a brief must include a certificate by appellate counsel or an unrepresented defendant stating the number of words in the brief; the person certifying may rely on the word count of the computer program used to prepare the brief.”]; see also Cal. Rules of Court, rule 8.412, subd. (a)(3) [“Rule 8.360 (b) governs the length of briefs.”].Footnote 40
Cal. Rules of Court, rule 8.204, subd. (c)(2) [“A brief produced on a typewriter must not exceed 50 pages.”].Footnote 41
Cal. Rules of Court, rule 8.204, subd. (c)(5) [“On application, the presiding justice may permit a longer brief for good cause.”].Footnote 42
Cal. Rules of Court, rule 8.204, subd. (b)(1) [“A brief may be reproduced by any process that produces a clear, black image of letter quality. All documents filed must have a page size of 81/2 by 11 inches. If filed in paper form, the paper must be white or unbleached and of at least 20-pound weight.”].Footnote 43
Cal. Rules of Court, rule 8.204, subds. (b)(4) [“Except as provided in (11), the font size, including footnotes, must not be smaller than 13-point, and both sides of the paper may be used.”], (b)(5) [“The lines of text must be unnumbered and at least one-and-a-half-spaced.”].Footnote 44
Cal. Rules of Court, rule 8.204, subds. (b)(5) [“Headings and footnotes may be single-spaced. Quotations may be block-indented and single-spaced. Single-spaced means six lines to a vertical inch.”].Footnote 45
Cal. Rules of Court, rule 8.204, subds. (b)(6) [“The margins must be at least 11/2 inches on the left and right and 1 inch on the top and bottom.”].Footnote 46
Cal. Rules of Court, rule 8.204, subds. (b)(7) [“The pages must be consecutively numbered. The page numbering must begin with the cover page as page 1 and use only Arabic numerals (e.g., 1, 2, 3). The page number may be suppressed and need not appear on the cover page.”].Footnote 47
See Cal. Rules of Court, rules 8.70–8.79. Information about the process of e-filing can be found on the website of the court of appeal for the district in which the appeal was filed.Footnote 48
Cal. Rules of Court, rule 8.44, subd. (b).Footnote 49
Cal. Rules of Court, rule 8.44, subd. (b).Footnote 50