Appellate Adventures, Chapter 16: "What If I Were Writing a Brief for the Respondent?"

Our story so far.

Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test at a tennis tournament.

With the guiding hand of Patty Plato (his former law school professor), Flash had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So he filed his notice of appeal and his designation of record, then drafted an outline of his opening brief. Plato advised him how to draft the procedural facts section of the brief, then the substantive statement of facts, and how to organize and present the Argument section. [See prior Moskovitz On Appeal columns.]

Flash had another question. "Professor, would your advice on how to write the appellant's opening brief apply to the respondent's brief? What if I had won below and Topspin were appealing?"

Plato replied, "I'm not sure Topspin could appeal, Flash. We need to go back to our earlier discussion of what is appealable, Flash. In general, you can appeal only from judgments and post-judgment orders. If Judge Buller had denied Topspin's motion for summary judgment, the court would have simply entered an order of denial. No judgment, and no post-judgment order. So Topspin would have nothing to appeal from."

"So Topspin would have had no means of challenging the denial?"

"Not by appeal -- at least not yet. Topspin could file in the appellate court a petition for writ of mandate directing Judge Buller to grant their motion for summary judgment. But the appellate court has total discretion in deciding whether to grant these petitions. Most are denied without explanation. You need to show not only that the trial court was wrong, but make a strong case that the issue needs to be decided now -- rather than later on appeal from the final judgment. That's not easy."

Flash asked, "If you appeal from the judgment after trial, can you then complain about something that happened much earlier -- like denial of a motion for summary judgment?"

"Yes. On appeal, you may challenge any trial court ruling that led to the judgment. If the trial court had granted Topspin's motion for summary judgment, there would have been no trial, no verdict, and no final judgment against Topspin. So on appeal Topspin could argue that there was no triable issue of fact, so the trial court should have granted summary judgment. But the appellate court would probably hold that a trial court error in denying summary judgment was harmless, because the jury later found that there was a triable issue of fact, because the jury found for Debbie."

Flash said, "So let's get back to my question. Is there anything different about writing a respondent's brief?"

Plato explained. "Most of the strategies we discussed earlier apply equally to the respondent's brief. Write clearly and concisely, and follow the appellate court's standard of review. There are, however, some differences.

"The appellate judge will read the appellant's opening brief before she reads your respondent's brief. So if the appellant's brief is reasonably clear, she will be at least somewhat familiar with the facts and issues when she picks up your brief. Therefore, for example, you should usually write a strong, short Introduction that summarizes right off the bat why the appellant is wrong.

"How you write the Statement of Facts depends on the quality of the appellant's opening brief. If the appellant wrote a clear, accurate summary of the procedural facts, there is usually not much reason to write your own -- just accept his. Of course, if there are some procedural facts he omitted that are helpful to you, point this out.

"His rendition of the substantive facts will almost always need a response, via your different rendition. His might not be clear, or might not follow the standard review, or might simply be inaccurate or not supported by the record. Should you write your own statements of facts, or just refer to the appellant's statement? Most respondent's attorneys write their own, full-blown statement of facts. But "Put Yourself In The Shoes of the Decider." If you had just read the appellant's statements of facts, would you be in a mood to read pretty much the same long story again? Wouldn't you be likely to skip it, and go straight to the respondent's argument? Sure, the respondent will put a spin on the facts that is different from appellant's spin, but how likely is that that a newcomer to this case (the judge) will catch these nuances when she reads your statement of facts? And, again, why should she bother? Here's one solution. Tell the reader up front why you're making her read the story again. For example:

Appellant argues that the jury's verdict was not supported by substantial evidence. But Appellant's Statement of 'Facts' presents only Appellant's evidence, which the jury presumably found not to be credible. Here is the evidence that supports the verdict...."

"Sometimes you can make these points without writing a whole new statement of facts. Just write something like this in your statement of facts section:

Appellant's Statement of Facts is mostly accurate, but it leaves out a key fact -- the fact on which this case turns: the evidence showed that Mr. Smith admitted that he was mistaken when he said that he saw defendant go through the stop sign without stopping.

"That short, punchy statement might have more impact than a long, new respondent's statement of facts that includes the above omission.

"And remember: you too must comply with the applicable standard of review. If the appellant is appealing a summary judgment, the appellate court will view the evidence in a light most favorable to the appellant. So the respondent's Statement of Facts should not simply summarize the respondent's evidence.

"If the appellant's arguments are presented in a logical order, it's usually best to adopt the same sequence he presented. This makes it easier for the appellate judge to follow your responses. But if appellant's arguments are not presented logically (e.g., they overlap or repeat themselves), don't hesitate to set up your own sequence and framing.

"It's good to be the respondent, because appellate courts hearing civil appeals affirm about 80% of the time. But there are two disadvantages. First, the appellant gets to file two briefs -- an opening brief and a reply brief -- while the respondent gets only one. Second, the appellant gets the last word -- the reply brief. So make sure that your respondent's brief includes your best response to each of appellant's viable arguments. True, you'll get a chance at oral argument to rebut the reply brief, but that might be too late: the appellate judges might have pretty much made up their minds by then."

Flash said, "Thanks, Professor. So how would I write the reply brief?"