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.
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
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
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.
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).
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
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
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
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
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.
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
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.
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.”
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.
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.
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.
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.