Skip to Content

Anatomy of an Opening Brief

A

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. 

What Court Will Hear Your Appeal? An Overview of Nevada’s Appellate System

A typical appellate court system has three courts:  a lower court (district court), a court of appeals (the Nevada Court of Appeals or, in federal court, the Ninth Circuit Court of Appeals), and a supreme court (the Nevada Supreme Court or the United States Supreme Court). In a typical system, your appeal would go to the next court.  If you appeal from district court, you go to the intermediate appellate court.  If you appeal from the intermediate appellate court, you go to the supreme court and hope it accepts your appeal.

Nevada is not a typical appellate court system.  To understand which court will hear your appeal, you need to know the following:

THE HISTORY OF NEVADA’S APPELLATE COURTS

Nevada did not get an intermediate court of appeals until January 2015.  Prior to 2015, all appeals went directly to the Nevada Supreme Court.  Because that was the only appellate court in Nevada, the Nevada Supreme Court heard every appeal.  And because Nevadans were spoiled by having their supreme court hear all of their appeals, they were reluctant to vote for the creation of an intermediate appellate court.

As a result, the Nevada Supreme Court was buried in appeals with a massive back log of cases, and litigants were constantly complaining about how long an appeal took to process.

The solution was to create an intermediate appellate court that did not automatically hear every appeal, but that could hear those appeals which are inherently time sensitive.  Thus, the Nevada Court of Appeals was born.

Despite the creation of the Court of Appeals, every appeal is still filed with the Nevada Supreme Court.  The Supreme Court then “pushes down” certain categories of appeals to the Court of Appeals.

CASES THAT ARE PRESUMPTIVELY HEARD BY THE NEVADA COURT OF APPEALS:

Under NRAP 17(b), the categories of appeals that are presumptively assigned to the Court of Appeals are:

  • Criminal appeals in criminal cases that do not involve the death penalty, or conviction of a category A or B felony unless the challenge is to the sufficiency of the evidence or the length of the sentence.
  • Appeals from judgments in torts cases where the amount of the judgment is less than $250,000 (this does not include attorney fees and costs);
  • Appeals from judgments in contract cases where the amount at issue is less than $75,000;
  • Appeals from “postjudgment” orders in civil cases (i.e., attorney fees, new trials, motions to amend the judgment, etc.)
  • Appeals from cases involving statutory liens under NRS Chapter 108 (i.e., mechanics’ liens and other similar liens);
  • Appeals from administrative agency decisions, excluding decisions by Nevada’s taxing and water agencies, and/or the public utilities commission.
  • Family law appeals, except for proceedings for termination of parental rights or proceedings under NRS Chapter 432B;
  • Interlocutory appeals on motions for change of venue;
  • Interlocutory appeals from the grant or denial of an injunction;
  • Writ petitions challenging discovery orders or motions in limine;
  • Appeals from probate court (trust and estate litigation) if the estate or trust has less than $5,430,000 in value; and
  • Appeals from the foreclosure mediation program.

There are certain benefits to having a case presumptively assigned to the Court of Appeals.  For example, the Court of Appeals’ case load is slightly less than the Nevada Supreme Court’s, which means that your appeal may be resolved faster.

Furthermore, assignment to the Court of Appeals will not unduly delay the litigation.  An assignment to the Court of Appeals does not mean that you or your opposing party automatically gets a second appeal to the Nevada Supreme Court.  Any appeal to the Nevada Supreme Court from the Court of Appeals will only be accepted on a petition filed under NRAP 40B, and the acceptance of these appeals is purely discretionary with the Nevada Supreme Court.

WHAT CASES ARE PRESUMPTIVELY HEARD BY THE NEVADA SUPREME COURT

Under NRAP 17(a), the Nevada Supreme Court presumptively hears the following cases:

  • Cases involving the death penalty;
  • Cases governing ballot or election questions;
  • Cases involving judicial discipline.
  • Cases involving attorney admission and discipline;
  • Cases involving approval of prepaid legal service plans;
  • Questions of law certified by a federal court under NRAP 5;
  • Appeals from Nevada’s tax and water agencies, and the public utilities commission;
  • Family law appeals involving termination of parental rights or that arise under NRS Chapter 432B;
  • Appeals that raise an issue of first impression (and particularly, those raising issues of first impression regarding a constitutional question)
  • Appeals that raise an issue of statement public importance;
  • Appeals that raise an issue in which there is a split of authority between published decisions coming out of two courts (i.e., state and federal), or the Court of Appeals and the Nevada Supreme Court.

The Nevada Supreme Court may also retain cases which are not presumptively assigned to the Court of Appeals, even if these appeals are not presumptively retained by the Nevada Supreme Court.  Did that confuse you?  If your appeal doesn’t fall within any of the categories contained in NRAP 17(a)-(b), there is a chance it will remain with the Nevada Supreme Court.  Remember, however, that the assignment of cases is discretionary and that discretion rests with the Nevada Supreme Court.  Once the Nevada Supreme Court assigns a case to the Court of Appeals, you cannot seek re-assignment to the Nevada Supreme Court. NRAP 17(d).

ROUTING STATEMENTS

When you file your brief or writ petition, you must include a NRAP 17(d) routing statement that identifies the court you believe should hear the appeal.  In the statement, you must include whether the appeal falls within cases presumptively assigned to either court under NRAP 17(a)-(b).  If your case involves an issue of first impression, an issue of statewide public importance, or seeks a resolution to a split of authority, you should identify that in your NRAP 17 routing statement.  The Nevada Supreme Court is not omniscient.  They cannot be expected to know the full landscape of the law if litigants do not inform them of the need for a decision on certain issues.

Remember, as well, that even if your case is presumptively retained by the Nevada Supreme Court, you can always request assignment to the Court of Appeals in your NRAP 17 routing statement.

If your case has been assigned to the Court of Appeals, you will receive notification from the Nevada Supreme Court under NRAP 17(e).

If all this confuses you, just remember this one thing:  Your appeal will go up, and someone in a robe is probably going to decide it.