Briefs in civil appeals

The appellant's opening brief is the first brief from the appellant (the person who is appealing).  It must clearly explain, using references to the clerk's transcript and the reporter's transcript (or the other forms of the record that you are using), the legal errors the appellant claims were made by the trial court.

This brief also tells how those legal errors hurt the appellant and what the appellant wants the Court of Appeal or appellate division to do. Remember that an appeal is not a new trial; the appellate court will not consider new evidence, such as the testimony of new witnesses or new exhibits, so you should not try to include any new evidence in your brief.

The appellant's opening brief is mandatory:

• For cases in the appellate division of the superior court (limited civil cases), the appellant's opening brief is due within 30 days after the record on appeal is filed in the appellate division. If the parties are using a joint or separate appendixes and no reporter’s transcript, the appellant’s opening brief and the appellant’s appendix or the joint appendix are due 60 days from the date appellant filed in the superior court the election to use an appendix. The superior court clerk will send you the deadlines for serving and filing your brief.
• For cases in the Court of Appeal (unlimited civil cases), the appellant's opening brief is due 40 days after the Court of Appeal notifies the appellant that the clerk's and reporter's transcripts (or other forms of the record that you are using) have been filed in the Court of Appeal. If the parties are using a joint or separate appendices and no reporter's transcript, the appellant's opening brief and the appellant's or joint appendix are due 70 days from the date appellant filed the election to use an appendix in the superior court.

If the appellant does not file their opening brief by the deadline set by the court, the court may dismiss the appeal.

The respondent's brief is the other side's chance to respond to the appellant's opening brief. It must address the facts and legal issues raised in the appellant's opening brief and explain why the trial court's decision was correct and should not be overturned. The brief may bring up some issues that the appellant's opening brief did not.

The respondent is not required to file a brief. But if the respondent chooses not to file a brief, the court can decide the appeal on the record, the appellant's opening brief, and any oral argument by the appellant, so the respondent will lose the chance to make their argument about the issues in the case.

The respondent's brief is due 30 days after the appellant's opening brief is served and filed.

If the respondent files a brief, the appellant can also file another brief replying to the respondent's brief. This is called a "reply brief." The appellant's reply brief is optional. If the appellant decides to reply to the issues raised in the respondent's brief (the appellant cannot raise new issues), the appellant's reply brief is due 20 days after the respondent's brief is served and filed.

Some juvenile cases have a fourth brief, the minor's opening brief.  In some appeals, such as cases involving termination of parental rights, the minor's lawyer may file a brief (this is optional).  It is due within 10 days after the respondent's brief is filed.

For the rules about what must be in your brief and how it must be written, including requirements for the format and length of these briefs:

• Read rule 8.883 of the California Rules of Court for civil appeals in the appellate division of the superior court (limited civil cases).
• Read rule 8.204 of the California Rules of Court for civil appeals in the Court of Appeal (unlimited civil cases).
• Read rule 8.412 of the California Rules of Court for juvenile appeals.

For the rules about serving and filing briefs:

• Read rule 8.882 of the California Rules of Court for civil appeals in the appellate division of the superior court (limited civil cases).
• Read rule 8.200 and rule 8.212 of the California Rules of Court for civil appeals in the Court of Appeal (unlimited civil cases).
• Read rule 8.412 of the California Rules of Court for juvenile appeals.

For appeals of limited civil cases in the appellate division of the superior court, the requirements for what must be in a brief and how the brief must be prepared are in rule 8.883 of the California Rules of Court.

For appeals of civil cases in the Court of Appeal (unlimited civil cases), the requirements for what must be in a brief and how the brief must be prepared are in rule 8.204 of the California Rules of Court.

For appeals of juvenile cases, which are unlimited civil appeals in the Court of Appeal, the requirements for what must be in a brief and how the brief must be prepared are in rule 8.412 of the California Rules of Court.

In general, the appellant's opening brief must:

• Identify the nature of the action (type of case) you are appealing,
• Specify the judgment or order you are appealing,
• State that the judgment is final or explain why the order is appealable, 
• Include a summary of important facts in the record,
• Support each reference to a fact in the record with a citation to the record (the volume and page number of the record where that fact appears),
• Support each point in the brief by argument and, if possible, by a citation to authority (giving the court the name and place in a published court decision, constitution, statute, court rule or other legal authority that supports what you say is the law in your brief), and 
• Indicate the relief (solution) you want from the court.

Remember, these are just some of the requirements. There are others, like the size of the font, the number of words, the margins, type of paper, and others.

All briefs in civil cases must be served on all the parties and on the clerk of the superior court (for delivery to the judge in the case) and must be filed in the appropriate appellate court (the Court of Appeal or the appellate division of the superior court).

In unlimited civil cases (in the Court of Appeal), briefs must also be served on any public officer or agency required to be served under rule 8.29 of the California Rules of Court. If a brief is not filed electronically, an electronic copy of the briefs must be submitted to the Court of Appeal under rule 8.212 of the California Rules of Court.  If submitting an electronic copy of the Court of Appeal would cause undue hardship for the party filing the brief, the party can instead serve 4 paper copies on the Supreme Court.

For more information about serving and filing briefs in the appellate division (limited civil appeals), read rule 8.882.

For more information about serving and filing briefs in the Court of Appeal (unlimited civil appeals), read rule 8.212.

In the appellate division of the superior court, for a limited civil appeal, you and the other parties can agree to a maximum of 30-days in extensions on time to file your brief. If you need more time or if you are unable to get the other side to agree to an extension, you may file an application asking the appellate division for more time to file your brief (see California Rules of Court, rules 8.806, 8.810, and 8.882). You can use Application for Extension of Time to File Brief–Limited Civil Case (form APP-106).

In the Court of Appeal, you and the other parties can agree to up to a maximum of 60 days in extensions of time to file your brief, but only if you have not already gotten an extension from the court. If you agree to an extension, the parties can use a Stipulation for Extension of Time to File Brief (Civil Case)(Appellate) (form APP-012). (Remember, this applies to civil cases only).  If you need more time or if you are unable to get the other side to agree to an extension, you may file an application for extension of time with the Court of Appeal (see California Rules of Court, rules 8.50, 8.60, and 8.212(b)). You can use Application for Extension of Time to File Brief–Civil Case (form APP-006).

To ask the court for an extension of time in appeals of juvenile cases, you can use:

• For juvenile delinquency cases, Application for Extension of Time to File Brief–Juvenile Justice Case (Appellate) (form JV-816)
• For juvenile dependency cases, Application for Extension of Time to File Brief–Juvenile Dependency Case (Appellate) (form JV-817)

If the appellant's opening brief or a respondent's brief is late, the appellate court clerk will send a notice that gives the party 15 more days to file the brief.

If the appellant's opening brief is not filed within this 15-day grace period allowed under the rule, the court may dismiss the appeal. If the respondent's brief is not filed within the 15-day grace period, the court may decide the case on the appellant's opening brief, the record, and any oral argument by the appellant.

A party can apply for an extension of time to file a brief for good cause if they ask for the extension within the 15-day grace period. If the appellant's opening brief is not filed during this extension, the court may dismiss the appeal.

If the brief is not done correctly — if it is too long, for example — the court may refuse to file it, return it to the party for corrections and changes, or choose to disregard the problem and accept the brief as is.

If the brief is returned for corrections, generally it is necessary to prepare a new document, which must be served on all the parties and filed with the court.

If the incorrect or omitted items have been redone properly, the court will file the corrected document. If the items have not been redone properly, the court may refuse to file the brief. If the appellant's opening brief is not filed, the court may dismiss the case. If the respondent's brief is not filed, the court may let the appeal proceed on the record and the appellant's opening brief and oral argument.

• Not citing the record (giving the court the exact place in the record that shows the fact) for a fact that you put in your brief
• Relying on material that is not part of the record
• Not citing the law (giving the court the name and place in a published court decision, statute, or other law) for what you say is the law in your brief
• Improperly citing an unpublished court decision
• Ignoring the standard of review
• Addressing waived issues (these are issues you may have given up the right to challenge in the trial court.) Talk to a lawyer if you are not sure
• Not showing prejudice (harm to the appellant) — not proving that if the mistake had not been made in the trial court, the decision would have been different
• Improper tone
• No proofreading (so your brief has typos and other obvious errors)
• Not clearly telling the court what you want