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DISSECTING CROSS-APPEALS

WHAT IS A CROSS-APPEAL?

A cross appeal is an appeal filed by a respondent.  Normally, when you are the respondent (or appellee) on appeal, you have won and your focus is on defending what the lower court did.  But, sometimes, neither side wins. 

When neither side wins, the first party to file an appeal becomes the appellant. If you want to challenge the district court’s findings as well, you do not have to file a separate appeal.  You can file a cross-appeal.

WHEN SHOULD YOU FILE A CROSS APPEAL?

You should file a cross-appeal “when acceptance of the argument [you] wish[ ] to advance would result in reversal or modification of the judgment rather than an affirmance.”  Hamilton Beach Brands, Inc. v. f’real Foods, LLC, 908 F.3d 1328, 1337 (Fed. Cir. 2018) (internal quotations omitted).  Cross-appeals must be filed if you “seek to alter the judgment below.”  Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 364, 114 S. Ct. 855, 862, 127 L.Ed.2d 183 (1994). 

A common example of a cross-appeal is a party who prevails on summary judgment, but then is denied their requested attorney fees.  That party wants the summary judgment ruling to be upheld, but the attorney fee denial reversed.  They can cross-appeal the denial of fees. 

A cross-appeal cannot be filed when you generally agree with the outcome the court reached, but not with the court’s reasoning behind it.  “[A] party that is not adversely affected by a judgment lacks standing to cross-appeal.”  Vanda Pharm. Inc. v. W.Ward Pharm. Int’l, Ltd., 887 F.3d 1117, 1140 (Fed. Cir. 2018).  Instead, a responding party on appeal “may urge in support of a decree in any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.”  Jennings v. Stephens, 135 S. Ct. 793, 798, 190 L.Ed.2d 662 (2015) (internal quotations omitted).  And, “[a] prevailing party need not cross-[appeal] to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not change, the judgment.”  Nw. Airlines, Inc., 510 U.S. at 364, 114 S. Ct. at 862. 

HOW DO YOU FILE A CROSS APPEAL?

You file a notice of cross appeal.  NRAP 28.1(b); FRAP 28.1(b).  After the appellant files their opening brief, you file a combined answering brief and opening brief on cross-appeal.  NRAP 28.1(c)(2); FRAP 28.1(c)(2).  You do not need to include a statement of the case or a statement of the facts in this brief, but it must comply with Rule 28’s requirements for opening briefs (not answering briefs) in all other respects. Id.

The appellant then gets to file a answering brief to the cross-appeal opening brief, and can combine that answering brief with their reply brief.  NRAP 28.1(c)(3).  You get to file a reply brief in support of your opening brief on cross-appeal.  NRAP 28.1(c)(4).  This must be limited to the issues presented in the cross-appeal. 

Page limits are different for briefs in a cross-appeal.  Usually, opening and answering briefs are limited to 30 pages.  On cross-appeal, the appellant’s opening brief is limited to 30 pages, but the combined answering and opening brief on cross-appeal is expanded to 40 pages.  Usually, reply briefs are limited to 15 pages, but the appellant’s combined reply and answering brief on cross-appeal is expanded to 30 pages.  The respondent’s reply brief on cross-appeal is still limited to 15 pages.  NRAP 28.1(e); FRAP 28.1(e). 

The time limits to file a brief in a cross-appeal generally remain the same.  In Nevada, opening briefs are due 120 days after the date the appeal is docketing or briefing is reinstated following the settlement program.  NRAP 28.1(f)(1)(A).  Combined answering and opening briefs on cross-appeal are due 30 days after the initial brief.  NRAP 28.1(f)(1)(B).  The reply brief and combined answering brief is due 30 days after that, and the final reply brief on the cross-appeal is due 14 days after that.  NRAP 28.1(f)(1)(C)-(D). 

In the Ninth Circuit, the opening brief is due 40 days after the record is filed, the combined answering and opening on cross-appeal is due 30 days after that, the combined reply and answering brief on cross-appeal is due 30 days after that, and the final reply brief is due 21 days after that (unless oral argument will occur prior to that, then it is due no later than 7 days before oral argument).  FRAP 28.1(f).

FOOD FOR THOUGHT

Cross-appeals are a highly strategical decision.  If you won a favorable substantive decision, you might not want to file a cross-appeal. As I repeatedly say, it is not persuasive to argue “The judge is an absolute idiot who really screwed up… so you should totally affirm them.”

Anatomy of an Answering Brief

I recently discussed what an appellant must include in their opening brief HERE.  This post breaks down what a respondent (Nevada) or appellee (Ninth Circuit) needs to include in their answering brief.

WHAT YOU CAN LEAVE OUT

The good news for respondents/appellees who are wordy (or lazy) is that you do not need to include every item in an opening brief in your answering brief.

Items that you do NOT need to include are:

1.  jurisdictional statement;

2.  Routing statement (Nevada);

3.  statement of the issues;

4.  statement of the case;

5.  statement of the facts;

6.  standard of review; and

7.  conclusion.

NRAP 28(b); FRAP 28(b). 

These items may be left out of the brief if you agree with the appellant’s statement of them.  Beware, however, that anything you leave out gives the appellant the only say on this matter.  As a respondent/appellee, your answering brief is your one shot at telling the court your story.

WHAT YOU MUST INCLUDE

1.  The Rule 26.1 Corporate disclosure statement;

2.  table of contents

3.  table of authorities;

4.  summary of the argument;

5.  argument;

6.  compliance certificate.

These items are discussed HERE

Anatomy of an Opening Brief

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One of the biggest differences between litigation and appellate practice is the briefing.  When you litigate, you can get creative with how you draft motions, what you title them, and what you include within the body of the brief.  You cannot do that on appeal.  Here’s how you structure an opening brief, and what you must include. 

CORPORATE DISCLOSURE STATEMENT

After the title page, the very first thing you should include in the brief is a corporate disclosure statement under either NRCP 26.1, or FRAP 26.1.  NRAP 28(a)(1); FRAP 28(a)(1).  The purpose of a corporate disclosure statement is to identify the immediate ownership of entities so that the presiding Justices can determine whether they need to recuse themselves.  For example, if a Justice owns a lot of stock in one of the entities that owns the appellant, they should probably recuse themselves so as to avoid any appearance of improper bias towards the respondent. 

Corporate disclosure statements must be filed any entity that is not a natural person or a government agency.  NRAP 26.1(a); FRAP 26.1(a).  The disclosure must identify the owners (whether it is a corporation or not).  If a publicly held corporation owns 10% or more the company, that company must be identified.  If the entity is not owned by a public corporation, then the corporate disclosure statement needs to specifically state that fact.  Id

The corporate disclosure statements only require you to identify immediate ownership.  If your client is a limited liability company that is wholly owned by another company, you only need to identify that company.  You do not need to go further up the chain of ownership.  See NRAP 26.1; FRAP 26.1.

In Nevada, you must also list all counsel who appeared on behalf of your client before the lower court, and who are expected to appear on appeal.  NRAP 26.1(a). 

The corporate disclosure statement is the first thing you file on appeal, which means that you must file it if you engage in briefing prior to the opening brief (motions, etc.).  FRAP 26.1(b); NRAP 26.1(b). Even if you have already separately filed a corporate disclosure statement, you must include one in your brief.  FRAP 26.1(b); NRAP 26.1(b). 

IN NEVADA, YOU ALSO NEED A ROUTING STATEMENT

Following the corporate disclosure statement, you must include a routing statement under NRAP 17, specifying which court should hear your appeal and why.  NRAP 28(a)(5).  How appeals and the routing process work in Nevada is discussed HERE.

TABLE OF CONTENTS AND TABLE OF AUTHORITIES

The next two items you must include are a table of contents, with page numbers, and a table of authorities.  FRAP 28(a)(2)-(3); NRAP 28(a)(2)-(3).  The table of authorities should contain every case, statute, rule, regulation, and secondary source that you cite, with the page number where each citation appears.  FRAP 28(a)(3); NRAP 28(a)(3).  Authorities should be listed alphabetically (case law and secondary sources), or numerically (statues and rules).  Id

JURISDICTIONAL STATEMENTS

The next item that should appear is a jurisdictional statement, identifying the source of the Court’s jurisdiction.  This must include the rule of appellate procedure that provides jurisdiction in the Supreme Court or Court of Appeals.  NRAP 28(a)(4); FRAP 28(a)(4)  The primary rule in Nevada is NRAP 3A.

You must include the filing dates of the notice of appeal, and the date the judgment was entered to establish that your appeal was timely brought within the 30-day period to appeal.  NRAP 28(a)(4)(b); FRAP 28(a)(4).  

You must also certify that your appeal is either from a final judgment or order, or from some other order over which the Supreme Court or Court of Appeals have jurisdiction.  NRAP 28(a)(4)(c); FRAP 28(a)(4).  Appealable orders which are not final judgments under Nevada law are listed in NRAP 3A(b). 

STATEMENT OF THE ISSUES

The next item is a statement of the issues on appeal.  NRAP 28(a)(6); FRAP 28(a)(5).  The “issues” on appeal are the errors you contend the District Court made.  “The District Court abused its discretion in granting sanctions because  . . . “  The District Court erred in granting summary judgment because … etc.

STATEMENT OF THE CASE

Following the statement of the issues, you must present a statement of the case.  NRAP 28(a)(7); FRAP 28(a)(6).  A statement of the case is a brief synopsis of the underlying facts of the case and the procedural background underlying the appeal. 

It is not a place for you to go off on a rant about the raving injustice your client suffered.  Opening briefs have word limits, and those limited words should not be wasted in the statement of the case. The key word here is “brief.”  The statement of the case should identify the nature of the underlying case (this is an appeal from a personal injury lawsuit, this is an appeal from a jury verdict of guilty in a first-degree murder trial, etc.).  It should briefly explain the facts and the procedural history leading up to the appeal. 

STATEMENT OF THE FACTS

The statement of the facts is exactly what it sounds like:  the statement of the factual and procedural background relevant to the appeal.  NRAP 28(a)(8).  Every sentence in this portion should have a citation to an appendix or a record on appeal page. 

You do not have to include every fact or every piece of evidence and every motion that was filed.  Your statement of the facts only needs to include those facts which are directly relevant to the issues on appeal.

SUMMARY OF THE ARGUMENT

The next item that must be included is a summary of the argument.  NRAP 28(a)(9); FRAP 28(a)(7).  The summary of the argument is similar to an introduction in a motion.  It is your real first chance to tell the Court why you are appealing, what the legal wrongs were that were suffered, and why the District Court was wrong. 

Do not simply restate your headings from your argument in your summary.  The Court hates this so much that they specifically put in their rule not “do not repeat the argument headings.”

THE ARGUMENT

The argument portion also speaks for itself.  This is where you get to argue why your client was wronged, why the District Court erred, and why the Court should rule in your favor on appeal.

Remember to always include the applicable standards of review for each issue.  You are required to include these by rule.  NRAP 28(a)(10); FRAP 28(a)(8).  You can learn what standards apply to your issues HERE.

THE CONCLUSION

Congratulations! You’ve made it to the end of your brief.  You still have to write a conclusion.  NRAP 28(a)(11); FRAP 28(a)(9).  The conclusion must state the relief sought.  Are you seeking reversal of some, but not all? Are you seeking remand?  Tell the Court what you want. 

But keep it brief.  The conclusion is not a place to rehash all of your arguments. 

RULE 28.2 CERTIFICATE

Your brief must also contain a certificate of compliance. NRAP 28(a)(12); FRAP 28(a)(10).  This certificate certifies that your brief conforms to the type and format requirements of the court, meets the word count, and is otherwise, basically, a legitimate filing.  NRAP 28.2; FRAP 32(a)(7).  If you are not represented by an attorney, you do not need to include this certificate.