Helping Trial Lawyers Navigate the Appellate System

Appellate Practice and Procedure Lesson 5: Handling an Appeal—Preparing Briefs (Part 2)


This post features the video and slidedeck for the fifth lecture in my Appellate Practice and Procedure course, which I introduced here. The presentation appears after the jump.

This class picks up where the last one left off. The basic concepts covered in Lesson 4 still apply, but the focus is on strategies and approaches specific to the appellee’s brief and the appellant’s reply brief.

The appellee’s brief is critical because it’s the only chance to address the appellant’s positions unless the court grants oral argument. The idea is to target and refute the complaints raised in the appellant’s opening brief, add any further arguments supporting the result reached in the trial court, and persuade the appellate judges not to disturb that result.

An appellant’s reply brief, if filed, should not simply rehash previous arguments. Instead, it should focus on why the appellee’s arguments are wrong, distinguish the appellee’s authorities, and answer any questions remaining after the initial round of briefing. This focus should be laser-like; get in, make your points thoroughly but succinctly, and get out.

Leave your questions or comments below, or use the hashtag #APandP to facilitate discussion on Twitter via @AppellaTex or @dtoddsmith. We will continue on March 23 with Lesson 6: Oral Argument and the Decision.

Image courtesy of Flickr by Eder Capobianco.

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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