Skip to Content

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

Wait, Writ What? A Crash Course in Appellate Writs

A writ petition is, basically, an early appeal.  Attorneys love to file writ petitions while the case is still going because, in their mind, they don’t have to wait until the bitter end to prove the judge wrong.  Unfortunately, you cannot take anything and everything up on a writ.   Understanding how and when writ relief is appropriate will save you time and your clients money.

WHO CAN FILE A WRIT PETITION

Any party to the proceeding can file a writ petition.  Writ relief is also available to non-parties.  Only parties to the litigation have the right to appeal.  See NRAP 3A.  Thus, writ relief is the only avenue of appellate review for non-parties aggrieved by orders.

Writ relief is the only appellate remedy for attorneys who wish to challenge (1) orders disqualifying counsel, Nev. Yellow Cab Corp. v. Eighth Jud. Dist. Ct., 123 Nev. 44, 49, 152 P.3d 737, 740 (2007), and (2) orders issuing sanctions. Watson Rounds v. Eight Jud. Dist. Ct., 131 Nev., Adv. Op. 79, 358 P.3d 228, 231 (Nev. 2015).  Although they represent parties, an attorney is not a “party” to the litigation who can appeal these orders.  Emerson v. Eighth Judicial Dist. Ct., 127 Nev. 672, 676, 263 P.3d 224, 227 (2011).

Writ relief is also the appropriate remedy for disqualification or peremptory challenges to judges.  See Ivey v. Dist. Ct., 129 Nev. 154, 159, 299 P.3d 354, 357 (2013); Morrow v. Dist. Ct., 129 Nev. 110, 112, 294 P.3d 411, 413 (2013).

For other non-parties, writ relief is the appropriate appellate remedy for orders compelling non-party witnesses to appear and/or participate at trial or in discovery, Quinn v. Eighth Jud. Dist. Ct., 134 Nev., Adv. Op. 5, 410 P.3d 984, 987 (Nev. 2018), and denial of a motion to intervene.  Hairr v. First Jud. Dist. Ct., 132 Nev., Adv. Op. 16, 368 P.3d 1198, 1200 (Nev. 2016).

WHAT TYPE OF WRIT PETITION YOU SHOULD FILE.   

There are two main types of writ petitions available to civil practitioners:  (1) mandamus; and (2) prohibition.  A writ of mandamus is used to order the district court judge to do something.  Aspen Fin. Servs., Inc. v. Eighth Jud. Dist. Ct., 129 Nev. 878, 881, 313 P.3d 875, 877 (2013); see also NRS 34.160.   In contrast to mandamus, a writ of prohibition seeks to prevent the district court from doing something.   Sandpointe Apartments v. Eighth Jud. Dist. Ct., 129 Nev. 813, 817, 313 P.3d 849, 852 (2013); see also NRS 34.320.

You should file a writ of mandamus for the following:

(1)  Challenges to the district court’s discretion in imposing sanctions on a party.  City of Sparks v. Second Judicial Dist. Ct., 112 Nev. 952, 953 n.1, 920 P.2d 1014, 1015 n.1 (1996)

(2)  Issues of law that need clarification (from any form of order – dismissal, summary judgment, etc.).  Paley v. Second Judicial Dist. Ct., 129 Nev. 701, 703, 310 P.3d 590, 592 (2013).

(3) A district court’s refusal to exercise jurisdiction over a party, or the subject matter of the litigation.  Amezcua v. Eighth Judicial Dist. Court of State ex rel. Cnty. of Clark, 130 Nev., Adv. Op. 7, 319 P.3d 602, 603 (2014); State, Through Miller v. Eighth Judicial Dist. Court In & For Clark Cnty., 97 Nev. 34, 35, 623 P.2d 976 (1981).  Mandamus is particularly appropriate for orders quashing service of process.  Jarstad v. Nat’l Farmers Union Prop. & Cas. Co., 92 Nev. 380, 383-84, 552 P.2d 49, 51 (1976).

You should file a writ of prohibition for the following

(1)  Orders requiring improper discovery. Quinn, 134 Nev. at ___, 410 P.3d at 987 (Nev. 2018).  Writs of prohibition are the favored procedural vehicle “to correct an order that compels disclosure of privileged information.”  Wynn Resorts, Ltd. v. Eighth Jud. Dist. Ct., 399 P.3d 334, 341 (Nev. 2017).

(2) Orders denying motions to quash service of process, or involving the exercise of jurisdiction which the district court lacks. Grupo Famsa v. Eighth Jud. Dist. Ct., 132 Nev., Adv. Op. 29, 371 P.3d 1048, 1050 (Nev. 2016).

WHEN YOU SHOULD FILE YOUR PETITION. 

A writ petition can be filed at any time, and there is no specific time by which one must be filed.  See NRAP 21.  This does not, however, mean that you can sit on your writ forever.  “Writ relief is subject to laches.”  State v. Eighth Judicial Dist. Ct. (Anzalone), 118 Nev. 140, 147-48, 42 P.3d 233, 238 (2002).  Laches bars writ relief if (1) “there was an inexcusable delay in seeking the petition,” (2) “an implied waiver arose from the petitioner’s knowing acquiescence in existing conditions,” and (3) the delay prejudiced the respondent.  Id. at 148, 42 P.3d at 238. A petitioner who is aware of their right to bring a writ petition and who offers no convincing explanation for their delay in doing so has inexcusably delayed seeking writ relief.  Bldg. & Constr. Trades Council of N. Nev. v. State, 108 Nev. 605, 611, 836 P.2d 633, 637 (1992).

WHERE YOU FILE YOUR PETITION. 

All writ petitions are initially filed with the Nevada Supreme Court.  See NRAP 21.  The petition can be heard by either the Nevada Supreme Court or the Nevada Court of Appeals.  You must include an NRAP 17 statement in the petition that identifies the court to which the issues should be directed.

WHY YOUR WRIT PETITION MAY BE GRANTED OR DENIED.

Writ relief is not a guarantee.  Writ relief is viewed as an “extraordinary remedy” that is only available if your alleged injury cannot be rectified by a subsequent appeal.  See NRS 34.170; NRS 34.330; see also Aspen Fin. Servs., Inc., 313 P.3d at 877-78.  90% of the time, your writ petition will be denied because you can eventually appeal from the order of which you now complain.

Occasionally, however, the appellate courts will agree to hear a writ petition even if the issue can be resolved in a later appeal.  The Nevada Supreme Court is particularly likely to consider the writ if you can demonstrate that resolution of the issues will promote judicial economy, clarify the law, and/or eliminate other, related litigation.  Yellow Cab of Reno, Inc. v. Second Judicial Dist. Court of State ex rel. Cnty. of Washoe, 127 Nev. 583, 589, 262 P.3d 699, 703 (2011); Williams v. Eight Judicial Dist. Court of State, ex rel. Cnty. of Clark, 127 Nev. 518, 525, 262 P.3d 360, 365 (2011).

These instances are rare.  Unless your issue falls into one of the topic areas listed above, it may be worth saving your time and your client’s money to wait for the appeal.

HOW YOUR WRIT PETITION SHOULD LOOK.  

When you file a writ petition you are the “petitioner,” the district court judge is the “respondent” and your opposing party is the “real party in interest.”  NRAP 21(a)(1).  Your caption should identify the parties in that manner. You have to serve the petition on the district court and your opposing party, as well as a file a notice of writ petition with the district court.  As with appeals, the district court has discretion whether to stay the litigation pending resolution of the writ proceeding.

Your writ petition must set forth: (1) the relief you are seeking, (2) the issues you want decided, (3) the facts necessary for the appellate court to understand the issues, and (4) legal argument as to why the appellate court should grant your writ.  NRAP 21(a)(3).  Writ petitions must be verified, i.e., signed under oath.  NRAP 21(a)(4).  And you should probably include some argument as to why your issue is appropriate for writ relief.

Unlike an appeal, the opposing party may not get a chance to respond.  The appellate court can deny your writ petition without an answer.  NRAP 21(b)(1).  If it determines that an answer is warranted, the appellate court will order the real party in interest, and sometimes the judge, to respond.  NRAP 21(b)(1); NRAP 21(b)(4).  Once the real party in interest responds, you may be asked for a reply, or the court may simply take the writ under consideration.

Writ petitions have to comply with the same formatting requirements as appeal briefs.  NRAP 21(d).  You also have to submit an appendix which complies with Rule 30.  NRAP 21(a)(4).

SO, WILL YOU FILE? 

My rule of thumb regarding writs is only to file if necessary.  Sometimes your client will believe it is necessary against your advice.  Sometimes, you will believe it is necessary only to have the Supreme Court dismiss your petition.  But it is important to know that writ petitions are not simply an appeal on steroids.  You are not automatically granted the right to interlocutory appellate review.

Protect Your Judge! Standards of Review on Appeal

When you are the respondent or real party in interest, you have one job: PROTECT YOUR JUDGE.  Once you’ve won your client’s case, your job is to defend the victory.   You cannot defend a victory unless you protect the judge.

To demonstrate how important this is, take a quick quiz:  Which is the more persuasive argument?

A. The judge is an idiot.  He had no idea what he was going.  Clearly, he got everything wrong and ignored all our best arguments.  Please affirm his ruling.

B. The judge is a genius. He applied the law perfectly.  This Court cannot reach any different decision under the law.  Please affirm his ruling.

 

I’d go with B, every time.

The easiest way to protect your judge is to know your standards of review.  Standards of review are the lenses through which an appellate court looks at a lower court’s decisions.  The two most common are (1) abuse of discretion, and (2) de novo.

Abuse of Discretion

Under an abuse of discretion standard, the appellate court will only reverse the lower court if it finds that the lower court “abused its discretion.”  This means that the appellate court will review the lower court’s determination to ensure that (1) it is supported by substantial evidence, (2) it did not overlook important facts, and (3) it applied the law correctly.  MB Am., Inc. v. Alaska Pac. Leasing, 132 Nev., Adv. Op. 8, 367 P.3d 1286, 1292 (2016).

Abuse of discretion is your best friend when your client has won on a factually contested issue.  Appellate courts are very reluctant to overturn factual findings because they are not “evidentiary” courts.  They do not receive evidence or hear testimony.  For this reason, appellate courts give great deference to the lower court on factual findings.  If you are faced with a challenge to a factual finding, your job is not to argue the evidence in favor of your client.  Your job is to highlight the evidence in the record that supports the lower court’s finding. The more there is, the less likely it is that the lower court abused its discretion.

Abuse of discretion is generally applied to all factual findings.  It also applies to the following orders:

  • Rule 11 sanctions
  • Decisions on admitting or refusing jury instructions
  • Denials or grants of preliminary injunctions
  • Awards of attorney fees and costs
  • Discovery orders
  • Denial of motion for change of venue
  • Denial of leave to amend
  • Decisions whether to certify a class action
  • Attorney disqualification orders
  • Good faith settlements between joint tortfeasors
  • Determination of fair value under appraisal statute
  • Granting/denying equitable remedies
  • Service by publication
  • Specific performance
  • Preliminary injunctions
  • Decisions on motions to set aside default
  • Appointment of receiver
  • Anti-SLAPP motions
  • Motions to grant new trials
  • Decisions not to certify issues of law to state supreme courts from federal courts
  • Most orders on procedural matters

Abuse of discretion is also your best friend if you are defending procedural rulings, because lower courts are granted extreme deference in managing their dockets.

De Novo

De novo review means that the appellate court looks at the issue with fresh eyes, without deference to the lower court.  De novo review applies to all questions of law that come up on appeal, even if those questions arise in the context of an order that is usually considered under an abuse of discretion standard.  For example, an order declining to give a specific jury instruction is generally reviewed for an abuse of discretion.  When the argument on appeal is that the order was wrong because the declined jury instruction was the correct statement of law, the question of whether the jury instruction adequately reflected the law will be reviewed de novo.

De novo review is your best friend when your client has won on an issue of first impression, or on an issue subject to a split of authority.  Your job on appeal is not to argue the law supporting your client’s case.  It is to show the appellate court how much law supports the lower court’s ruling.  The more law there is, the less likely it is that the lower court erred.

De novo will apply to all issues of law, including the following:

  • Absolute privilege
  • Claim/issue preclusion (res judicata)
  • Validity of premarital agreements
  • Treaty interpretation
  • Order granting motions to dismiss
  • Attorney misconduct
  • Whether damages are legally recoverable (not the amount)
  • Good faith settlements of insurance claims
  • Subject matter jurisdiction
  • Personal jurisdiction
  • Proper standard of proof
  • Pre-emption
  • Judicial estoppel
  • Grants of summary judgment
  • Standing
  • Contract interpretation
  • Settlement agreement interpretation
  • Statutory interpretation
  • Constitutional challenges
  • Regulation interpretation
  • Construction of insurance policy
  • Whether jury instruction is an appropriate reflection of law
  • Validity of a judgment
  • Equitable subrogation
  • Entry of permanent injunction if no factual dispute
  • Determination of state law, in federal courts sitting in diversity jurisdiction
  • Determination of whether state or federal law should apply in federal courts sitting in diversity jurisdiction

Appellants and Petitioners

This post was written from the perspective of a defending party on appeal.  Appealing or petitioning parties, however, should also be aware of these standards.  To win on appeal, you not only have to show that the judge was wrong, but also that your client was right.   Appellate courts will affirm a ruling that reaches the right result for the wrong reason.  See, e.g., Dynamic Transit v. Trans Pac. Ventures, 128 Nev., Adv. Op. 69, 291 P.3d 114, 117 n.3 (2012).

Whenever you are on appeal, remember these simple rules:  Have some standards (of review).  Protect your judge.  Use spell check.

You’ll do fine.