How to Draft a Successful Appellate Brief

Often times, a judicial mistake or an issue in the system can result in a wrongful conviction or a sentence that does not appropriately match the crime accused. In these cases, you can appeal your case.

In California, the appellate process can be difficult. There is a process that must be followed to appeal your conviction or sentence in the state of California. This process requires specific forms, and supporting arguments to be successfully accomplished. More, there are deadlines that can end your appeal, before it even starts.

In this article, the leading California and Los Angeles Appeals Lawyers, Matthew Barhoma, with Power Trial Lawyers will outline how to draft a successful appellate brief in California. Call us today at 213-800-7664 to consult with us regarding the likelihood of success of your appeal. In this article we will discuss:

(1) Knowledge of Court's Rules re. Appellate Briefs.
(2) How to Review the Record and Transcript of Trial
(3) Appellate Procedure (opening brief, reply brief, response brief)
(4) Statement of Facts
(5) Opening Statement/Summary of Case
(6) Argument

This article will outline the basics of writing and filing an appellate brief in California. As the most populous state in the nation, California has very particular standards, rules, and customs for writing and filing briefs on appeal. The bulk of these rules are found in Title 8 of the California Rules of Court (the “Appellate Rules” or “AR”) and are discussed in many court decisions. California courts are strict about the necessity for litigants, including self-represented ones, to follow these rules. (Cf. Tanguilig v. Valdez (2019) 36 Cal.App.5th 514, 520 (self-represented party “is entitled to the same, but no greater, consideration than other litigants and attorneys.”)). The courts do not shy away from dismissing arguments if the briefs do not follow the rules. This is not a jurisdiction that sanguinely excuses the failure to follow what might elsewhere be considered a minor procedural detail.

Both laypeople and attorneys should be clear on what an appeal is and is not. When people talk about an “appeal,” they sometimes mean any proceedings after the verdict, conviction, or sentencing. In the world of appellate litigation, an “appeal” generally refers to a direct appeal. This means that you are asking a higher court to review the decision of a lower court. In California state courts, the main lower court at the county level is known as Superior Court. There are several mid-level appellate courts known as the Court of Appeal throughout the state, and then the statewide Supreme Court. Bear in mind that even if there is a jury verdict involved in the case, the court itself enters the judgment of guilt or liability. It is this judgment that gets appealed to the higher court. The appellant is the party appealing to the higher court. The appellee or respondent is the party responding to the appeal.

A direct appeal can be thought of as a “closed box.” (See People v. Waidla (2000) 22 Cal.4th 690, 743 (“Appellate jurisdiction is limited to the four corners of the record on appeal”)). The appellate court can only examine the record of the proceedings below. (See People v. Jenkins (2000) 22 Cal.4th 900, 952). This is everything from the initial documents like the complaint or information, to pretrial motions, to the court’s written decisions, and the trial itself. All of these are part of the record. The appellate court reviews the record to determine if there were errors at the lower court and what the effect of those errors were. This can be something like the improper admission of evidence, or an improper argument by one of the attorneys.

The alleged error, however, must appear in the record. If it is something outside the record, such as an argument that the prosecutor knew of exculpatory evidence and did not tell the defense, it cannot be brought on direct appeal. (See Protect Our Water v. Cnty. of Merced (2003) 110 Cal.App.4th 362, 364 (“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.”)). There are other avenues, outside the scope of this article, to bring such claims.

The very first thing that must be done in an appeal is filing and serving the notice of appeal. This is actually done in the lower court where the judgment was rendered. The notice of appeal generally must identify the judgment or order being appealed, but will be routed to the appropriate Court of Appeal based on region of the state. (See AR 8.100(a)(1),(2)). The time to file a notice of appeal usually is 60 days after the lower court or opposing party serves a notice of entry of the judgment or order being appealed. (See AR 8.104(a)(1)(A),(B)). The notice of entry basically serves as official notice that the lower court case is over, and your time to appeal has begun. You do not need to wait until receiving a notice of entry to file your notice of appeal. It is a procedural requirement for the other side. Best practice is to file the notice of appeal as soon as is reasonably practicable. In a civil case, you have 180 days from the date of judgment otherwise. (See AR 8.104(a)(1)(C)). In a criminal case, you have 60 days from the rendition of the judgment, i.e., sentencing. (See AR 8.308(a)).

The next step is to file the record. In civil cases, this generally consists of the “Clerk’s Transcript” and the “Reporter’s Transcript.” The Clerk’s Transcript (CT), also known as the judgment roll, basically contains all of the written documents in the case, but at the very least must include the notice of appeal, and any written judgment or order appealed from. (See AR 8.122(b)(1)(A)-(C)).

The Reporter’s Transcript (RT) consists of the actual proceedings in court as taken down by the court reporter. You must designate the dates of each proceeding to be included in the RT. The appellate court’s review will be limited to these dates. (See AR 8.130(1),(2)). In the absence of reporter’s transcripts, the court may review the case on the basis of the CT alone, and will make every presumption in favor of the validity of the judgment. (See Bond v. Pulsar Video Prods. (1996) 50 Cal.App.4th 918, 924).

In a criminal case, the clerk of court prepares both the CT and RT, and these together constitute the record on appeal. (See AR 8.320(a)).

A. What to contain
As the appellant, you must file an Opening Brief. (AR 8.200(a)(1)). You may also file a Reply Brief to the respondent’s brief (AR 8.200(a)(3)). The Appellant’s Opening Brief must contain: a table of contents; a table of authorities you used, meaning cases, statutes, court rules, and the like; a statement of the nature of the action, the relief sought in the trial court, and the judgment or order appealed from; that the judgment appealed from is appealable or “final,” meaning that the case in the lower court is over and can be appealed; a summary of the facts; each argument under a separate heading, preferably with citations to authority; and support for any reference to the record by citing the volume and page number of the CT or RT. (See AR 8.204(a)).

B. Statement of Facts
The statement of facts should be written persuasively but honestly. On the one hand, you should incorporate your overriding argument into the facts as much as possible without delving into legal discussion. For example, if your argument is that the prosecutor made inappropriate comments on summation, you should specify what those were. It is not enough merely to qualify them. So, for example:

BAD: “The prosecutor used unfair arguments. She did not follow the law and made Appellant appear to be a bad person. This led to an unfair trial.”

GOOD: “The prosecutor claimed that Appellant was ‘a monster’ (RT 567). She asserted that he ‘sat there expressionless as the victim told you he assaulted her – an innocent man would’ve said something’ (RT 569). The prosecutor then concluded, ‘For your sake, for your daughters, sisters, and mothers’ sakes – lock this deviant up where he belongs’ (RT 574).”

A good statement of facts will prime the court to be interested in your legal argument and show why that argument has factual merit.

On the other hand, you must include all relevant facts, even if they do not favor your side. You will lose credibility otherwise. Additionally, you should not use vindictive, literary, or overly emotional language. (See City of Riverside v. Horspool (2014) 223 Cal.App.4th 670, 674 n.4 (criticizing party’s fact section as “replete with argument and . . . lacking in accurate material facts, presenting only information favorable to his position. An opening brief is not an appropriate vehicle for an attorney to ‘vent his spleen’ after losing. . . . An appellant has a duty to summarize the facts fairly in light of the judgment.”)).

BAD: “It was a dark and stormy night. Suddenly a shot rang out in the darkness!”

GOOD: “On January 17, 2020, around 11:00 p.m., the victim was walking home from work. As she was walking, she heard a gunshot (RT 587).”

Note that the “good” fact section contains references to the record. This is a requirement of the Appellate Rules and failing to provide them may lead the appellate court to deem your argument waived. (See Duarte v. Chino Cmty. Hosp. (1999) 72 Cal.App.4th 849, 856 (“It is the duty of a party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations”)).

C. Argument
Your argument section is key to convincing the appellate court that the law, as applied to the facts of your case, indicate your appeal should be granted. Each section of the argument should be concisely and clearly stated. It is reasonable to present only one or two issues to the court. No matter how much you believe in your case, you do not want to bog down the court or its law clerks and bore them into disinterest.

It is key to understand the standard of review that the appellate court will utilize. Appellate courts generally do not act as juries or fact finders. (See, e.g., Leff v. Gunter (1983) 33 Cal.3d 508, 518). They analyze what facts were brought up in the trial court, and how the law applies to those facts.

In that regard, the standard of review for something like an argument that the trial court erred in refusing to admit certain kinds of evidence, or made the wrong choice on child custody, is abuse of discretion. (See People v. Linton (2013) 56 Cal.4th 1146, 1181; In re Marriage of Burgess (1996) 13 Cal. 4th 25, 32). Abuse of discretion analysis asks whether the trial court took action or refused to take action in an arbitrary, capricious, or “patently absurd” manner that resulted in a “manifest miscarriage of justice.” (Employers Reins. Co. v. Superior Ct. (2008) 161 Cal.App.4th 906, 919). An abuse of discretion is found in a ruling that is “so irrational or arbitrary that no reasonable person could agree with it.” (See Sargon Enters., Inc. v. University of S. Cal. (2012) 55 Cal.4th 747, 773).

On the other hand, the appellate court will use de novo review for certain other questions, such as resolving a question of law on undisputed facts, a legal question unrelated to fact-finding, or faulty jury instructions. (See People v. Cole (2004) 33 Cal.4th 1158, 1206; Baker Marquart LLP v. Kantor (2018) 22 Cal.App.5th 729, 738; Edwards v. Post Transp. Co. (1991) 228 Cal.App.3d 980, 984 n.2). De novo review means that the court will engage in its own independent analysis of the question of law and will not rely simply on the trial court’s analysis. (Cf. Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348).

It is essential to use point headings in the argument section, stating each point of your argument under a heading or subheading summarizing that point, and then supporting each point by legal argument, and citation to authority if possible. (See AR 8.204(a)(1)(B)). Failure to do so may be deemed a waiver of the argument you are trying to make. (See Opdyk v. Cal. Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830 n.4).

The brief must use any “conventional font.” (AR 8.204(b)(2)). This can be understood to be a serif font like Cambria, Times New Roman, Georgia, or Century Schoolbook, which is what this article uses. A professional-looking sans serif font like Arial or Verdana also may be used, but most courts and attorneys prefer serif. In fact, while much of the writing world has moved on, many lawyers still insist on Times New Roman.

The font size must be at least 13-point, including footnotes, if produced on a computer. (AR 8.204(b)(4)). Margins must be at least 1.5 inches on the left and right and 1 inch on the top and bottom. (AR 8.204(b)(6)). This is to allow margin comments by court staff and other attorneys.

Finally, the brief, if produced on a computer, generally is limited to 14,000 words in civil cases. You must place a certification in the brief stating the number of words. (AR 8.204(c)(1)). In criminal cases you are allowed 25,500 words, and the certification is required there as well. (AR 8.360(b)(1)). For comparison, this 9-page, 13-point Century Schoolbook article is just over 2,100 words.

If you or a loved one believe the outcome of your criminal proceed was prejudicial or substantially not fair, you deserve a second chance. There are strict deadlines to filing your appeal, which must be met. It is of crucial importance that you consult with a California criminal appeals lawyer timely.

Power Trial Lawyers is an award-winning appellate law firm with attorneys who have a track record of success. At Power Trial Lawyers, we win cases because:

Knowledge of Appellate Rules – the appellate process is complex, but we have practiced in the appellate courts for years. We know appellate procedure and have appeared before hundreds of judges. We employ a winning strategy.

We are not afraid to argue; and argue to win – Handling the briefing and the oral argument is no easy task. Hence why you should seek an appellate lawyer, not just a trial lawyer. At Power Trial Lawyers we are not afraid to fight for your rights. If you have been wrongfully convicted, or whether there is an unfair outcome in your matter, we are not afraid to adequately bring those grievances to bar. We also handle oral arguments with the intent to win.

Power Trial Lawyers is a legal team on standby to help you. Consult with us by calling 213-800-7664. Or you can contact us from a submission form.