Form briefs on appeal: A giant step forward for access to appellate justice

Access to justice has a long way to go, but it has also come a long way. The Judicial Council's Appellate Advisory Committee recently took a critical step furthering access in the challenging arena of appellate review. In an Invitation to Comment, the Judicial Council is proposing fillable briefs, in a standard format, for appeals to the Appellate Division. Comments on SPR24-05 are due by May 3, 2024.

This proposal is a game-changer for litigants who wish to appeal but cannot afford an attorney after the trial proceedings conclude. It also lays the groundwork for using fillable briefs in unlimited civil cases at the California Courts of Appeal.

If you think an appellate brief is hard, try writing one without a lawyer

A persuasive appellate brief is no easy task. The appellant must give compelling reasons why the trial judge, presumed to be right, got it wrong. Making this showing is difficult enough for lawyers. Even more daunting, what if you represent yourself? The briefing stage is overwhelming. It is where many self-represented parties stumble--even when they have meritorious issues.

This is not just a travesty of justice, but a staggering problem nationwide. Approximately one-third of civil appeals in California involve at least one litigant, most often the appellant, proceeding without counsel. Many are family law cases deciding the rights of children and feuding spouses, who may have no choice but to pursue or defend an appeal. When basic human necessities are at stake, such as personal safety or child custody, a fair shake on appeal is the least our system should offer.

Other civil disputes are entitled to the same dignity. Whether the appeal is over money, or injunctive or equitable relief, it should be resolved by robust review doing justice. But appellate judges cannot do this alone. To facilitate the rule of law, they need competent appellate briefs.

The California Lawyers Association suggests form briefs

I serve on the Committee on Appellate Courts (CAC) of the California Lawyers Association. As reported previously in the Daily Journal, CAC has a deep lineage of shaping California appellate practice, including an Access to Justice Subcommittee. (Benjamin G. Shatz, "The glorious history of the Committee on Appellate Courts," Daily Journal (May 3, 2021).)

As part of our work on access issues, CAC studied form appellate briefs from across the country. The Ninth Circuit Court of Appeals has used these briefs successfully for years and, we discovered, so have other states. Drawing on those examples, CAC prepared form briefs, customized for California, and sent them to the Appellate Advisory Committee. These drafts were the starting point for the form briefs (opening, respondent, and reply) now out for public comment.

An appellate brief is a complex document not always suited for a standard format. But for litigants proceeding without counsel, form briefs provide invaluable structure and simplicity. For example, the form briefs feature fillable spaces to answer the following questions:

· What are the facts of this case?

· What happened in the trial court?

· What do you think the trial court did wrong?

· What are your responses to Appellant's arguments?

· What would you like the Appellate Division to do?

Form briefs are a user-friendly means for self-represented parties to make their arguments. Likewise, form briefs will reduce the incoherence characteristic of many pro se appellate briefs written from scratch. In deciding the high percentage of civil appeals involving pro se litigants, appellate judges (and their research attorneys) will pull out fewer hairs in frustration.

In California, as elsewhere, form briefs will be a "win win" for both parties and the appellate courts. If these briefs are a hit in the Appellate Division, as appears likely, the next step is expanding their use to the Court of Appeal.