Step 4: Respondent's brief
The written briefs are crucial in an appeal because there is no new trial. The Court of Appeal makes its decision based on the written briefs, the record on appeal, and legal research.
Each party writes a brief to explain to the Court of Appeal why they should win the appeal. A brief should include facts about the trial court case and examples from the law. Writing a brief can be challenging and time-consuming.
The respondent is the party who won in the trial court. They write only one brief, called the respondent’s brief. This brief argues that the trial court's decision was correct. Even if the trial court made a legal mistake, the respondent may argue that the mistake did not change the outcome of the case.
Filing a respondent's brief is optional, but the appeal will go forward without it. If the respondent chooses not to write a brief, they miss the chance to present their arguments to the Court of Appeal.
Overview of the respondent’s brief
Here’s what to expect when writing a respondent’s brief:
- State your position: Clearly state that you believe the trial court's decision was correct.
- Address the appellant’s arguments: Respond to the points made in the appellant's opening brief. Explain why the arguments are not valid or why the trial court's ruling should stand.
- Include supporting facts and laws: Provide relevant facts from the trial and legal examples to support your argument.
- Follow court rules: Make sure your brief meets all the required formatting and filing rules set by the Court of Appeal.
If you need help, you can also look at a sample respondent’s brief to guide you in writing your own.
Timeline of a respondent’s brief
The respondent must file their brief with the Court of Appeal within 30 days after the appellant files the opening brief.
Cost of filing a respondent’s brief
There is a $390 filing fee the first time a respondent files a motion or brief with the Court of Appeal. After that, the respondent does not have to pay any additional filing fees during the appeal. However, there may be other fees if they need to obtain parts of the record from the trial court.
The respondent can apply for a fee waiver for the Court of Appeal filing fee if they need financial assistance.
Before preparing a respondent’s brief
Before spending time or money on writing a brief, the respondent should check for any problems that could lead to the appeal being dismissed. Here are some things the respondent should review:
- Final judgment: If the appeal is from a judgment, make sure it is a final judgment. Generally, only final judgments can be appealed.
- Appealable order: If the appeal is from an order, confirm that it is an appealable order.
- Timeliness of the notice of appeal: Check if the notice of appeal was filed on time. The deadline is generally 60 days after either the trial court clerk or the respondent serves notice of the entry of the judgment or order to the appellant. The trial court clerk can confirm this deadline.
If the respondent finds any issues with the appeal, they can file a motion asking the Court of Appeal to dismiss the appeal.
Understanding what the Court of Appeal reviews
An appeal is not a new trial of the facts. The Court of Appeal only looks at legal issues or mistakes made by the trial court.
To win an appeal, the appellant must show that the trial court made a legal mistake and that this mistake affected the decision. This can be challenging because the Court of Appeal usually respects the trial court’s decision unless it’s a de novo review.
In an appeal, it is the appellant's responsibility to present a legal argument that convinces the Court of Appeal to reverse the trial court’s order or judgment.
An effective respondent’s brief focuses on presenting facts that support the trial court’s decision and counters the legal issues raised by the appellant in the opening brief.
Preparing a respondent’s brief
Appeals are often won or lost based on the briefs. Although the law usually favors the respondent, there are times when an appellant can be successful in the Court of Appeal. Therefore, the respondent needs to spend time writing a clear and persuasive legal argument that supports the trial court’s decision. This may involve research.
The respondent only needs to address the arguments made by the appellant in the appellant’s opening brief.
To get started, the respondent should read all the information in the appeal. This means the respondent will:
- Review what is in the record:
- The ruling, decision, or judgment of the trial court judge.
- The statutes, constitutional provisions, case decisions, and other legal authorities that the trial court judge used to support the decision.
- Review the appellant’s opening brief:
- The legal argument explaining why the trial court’s decision should be reversed.
- The standard of review to be considered.
- The legal authorities the appellant used to support their argument.
The respondent’s job is to find legal authorities—examples from the law—that support the trial court’s original decision. They will include these legal authorities in their brief and explain why the appellant’s legal arguments are incorrect. The respondent may also point out if the appellant did not follow the court rules regarding appeals, which could lead to dismissing the case.
It’s a good idea to start working on the respondent’s brief as soon as the appellant’s opening brief is filed. This allows as much time as possible to complete all the necessary information in the required format.
The respondent may want to consult with a lawyer who has experience with appeals. A lawyer can provide legal advice and help write the respondent’s brief. Even if the respondent chooses not to hire a lawyer, an initial consultation can help them understand the best legal arguments against the appeal. A lawyer can also advise on what legal and court fees the respondent might be able to get reimbursed if they win the appeal.
Outline of a respondent’s brief
There are several sections in a respondent’s brief. While all of them are important, some sections require more time and effort to write than others. Here is an overview of each section with a description of what it includes.
The cover of a respondent’s brief must include basic information:
- The title of the brief: Respondent’s Brief
- The case title, trial court case number, and Court of Appeal case number
- The name of the trial court and the name of the trial court judge
- The respondent’s name, mailing address, telephone number, fax number (if available), and email address (if available)
- If the respondent hired a lawyer, the name and California State Bar number of each attorney assisting with the brief
If a respondent’s brief is filed on paper, the cover must be yellow. This color rule does not apply to electronically filed briefs. For more details, see the full rules for a cover page in CRC 8.40(c) and 8.204(b)(10).
The first page of the respondent’s brief after the cover is the Certificate of Interested Entities or Persons.
- The Certificate of Interested Entities or Persons form (APP-008) is available at the court or online.
- This form helps the Court of Appeal identify other entities and/or persons that have an interest in the outcome of the case. An entity can be a business or an organization.
- A respondent does not need to file this certificate if the case is a family, juvenile, guardianship, or conservatorship case.
The Table of Contents lists all the sections of the brief in the order they appear, along with page numbers. It helps the Court of Appeal quickly find information and provides an overview of the case.
The Table of Authorities lists all the legal authorities (such as case law, statutes, or regulations) cited in the brief. Legal authorities are examples from the law that support a legal argument to the Court of Appeal.
Legal authorities can be found online or at a law library, where a librarian can assist the respondent in finding relevant legal authorities for the case.
The Table of Authorities is created after the brief is written, once the page numbers are finalized. Each legal authority must include a page number or numbers showing where it can be found in the brief.
What to consider: In the opening brief, the appellant will focus on legal authorities that support their argument against the trial court’s decision. The appellant may not list all the applicable legal authorities, so the respondent should not rely solely on the appellant’s legal authorities. The respondent may need to research and find different or additional legal authorities that support their argument favoring the trial court’s decision.
The Statement of the Case provides the “procedural facts” of the case. Procedural facts are related to the court process and are listed in chronological order from when the complaint was filed to when the judgment was entered.
Every procedural fact in the brief must include:
- The date when the procedural fact happened
- A reference to the source and page number where the procedural fact can be found in the record on appeal
List of procedural facts to include in the Statement of the Case:
- Filing of the complaint
- Who sued whom and for what
- Rulings on any motions or hearings related to issues the appellant wants the Court of Appeal to review
- A description of orders related to issues the appellant wants the Court of Appeal to review
- The judgment entered
- Damages awarded
What to consider: The appellant’s opening brief must include a Statement of the Case. The respondent should carefully review the appellant’s version to ensure its accuracy. The appellant’s Statement of the Case may not include or may misrepresent procedural facts that would support the trial court’s decision.
If the respondent completely agrees with the appellant’s version, they are not required to include a Statement of the Case in their brief. They can simply include a heading for Statement of the Case and write a sentence stating they agree with the appellant’s Statement of the Case.
However, most respondents do include a Statement of the Case to present their side of the case in a way that supports the judgment or appealable order.
The Statement of Facts shares important information about what happened before the case. It includes facts or evidence that were accepted in the trial court. Every fact mentioned must have a reference that shows the source and where it can be found in the record on appeal.
The Statement of Facts should only include significant facts. This means the facts should relate to the legal issues discussed in the appeal. The Statement of Facts can only mention facts or evidence that were presented in the trial court.
What the respondent needs to consider
The appellant’s opening brief must include a Statement of Facts. The respondent should carefully check the appellant’s version to make sure it is accurate. The appellant’s Statement of Facts might leave out or incorrectly state facts that support the trial court’s decision.
If the respondent completely agrees with the appellant’s version, they do not need to include a new Statement of Facts. They can just add a heading for Statement of Facts in their brief and write a sentence saying they agree with the appellant’s Statement of Facts.
However, most respondents do include a Statement of Facts to present their side of the case in a way that supports the judgment or order being appealed.
The argument is the most important part of the respondent’s brief. In this section, the respondent explains why the appellant’s arguments are wrong and why the trial court’s decision is correct.
The respondent does several things in the argument:
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Respond to the legal issues in the appellant’s opening brief (required)
The respondent carefully reviews the legal arguments made in the appellant’s opening brief. The respondent’s brief should address all the legal issues raised by the appellant. They should discuss each legal issue in the same order and use the same titles and numbers as the appellant. For every legal issue, the respondent must include a statement of law that explains why the appellant is mistaken.
Even if the appellant shows that the trial court made a legal mistake, the respondent can argue that the mistake did not cause enough harm or “prejudice” to require a new trial or a change in the judgment. -
Include legal authorities that prove the trial court was right (required)
The respondent’s argument must include references to legal authority for every statement explaining why the appellant’s argument is wrong and why the trial court’s decision is right.
Legal authorities can be:
- Case decisions
- Statutes
- Rules of court
- Law books
- Constitutional provisions
- Legal treatises
The respondent must explain how each legal authority applies to the facts of the case. They should also review the legal authorities used by the appellant to make sure they are valid and were used correctly. If there are issues with the appellant’s legal authorities, the respondent can point these out in their argument.
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Discuss the standard of review (optional)
The standard of review is the set of rules the Court of Appeal uses to decide if the trial court made a mistake. Different legal issues have different standards. The appellant must include a standard of review for each legal issue in their opening brief.
The respondent should think about the standard of review chosen by the appellant. If they agree with it, they don’t need to discuss it in their argument. If they disagree or if the appellant did not include a standard of review, the respondent can discuss this issue in their argument. -
Make additional arguments against the appeal (optional)
The appellant will only make legal arguments that support their case. After addressing the legal issues in the appellant’s opening brief, the respondent can include extra legal issues that support their side.
The respondent can add as many issues as they want. Each legal issue should be listed separately with a title that summarizes the issue in a few words. For example, if the trial court provided alternate reasons for its order but the appellant only discussed one reason, the respondent could address the other reasons.
The respondent may also argue that the appellant made mistakes or did not follow court rules about appeals. Here are some examples of mistakes the respondent might find in the appellant’s brief, court filings, or the record:
- The notice of appeal was filed after the deadline.
- The order or judgment is not appealable.
- The appellant forfeited or waived their right to appeal an issue by not objecting or filing a motion to challenge the issue during the original trial.
In the conclusion, the respondent writes one paragraph asking the court to affirm (or uphold) the judgment or order being challenged in the appeal. If the respondent believes the judgment or order is not appealable, they can ask the court to dismiss the appeal.
The respondent can also request that their costs related to the appeal be covered. For example, they can ask the appellant to pay all court fees. In some cases, the respondent may also ask the appellant to pay for attorney fees.
It's important to remember that no new arguments or issues should be discussed in the conclusion.
There are rules about how long a brief can be. Each brief must include a Certificate of Compliance stating that it follows the court's length rules:
- Briefs prepared on a typewriter cannot be longer than 50 pages.
- Briefs prepared on a computer cannot exceed 14,000 words. The word count includes footnotes but does not count the cover, the Certificate of Interested Entities or Persons, the Tables of Contents and Authorities, the Certificate of Compliance, any signature block, proof of service forms, or attachments.
The respondent can attach up to 10 pages of documents to the end of the brief. These attached documents can include copies of exhibits, materials from the trial court record, or relevant local, state, or federal regulations that are not easy to find.
If necessary, a respondent can ask the Court of Appeal for permission to file a longer brief that exceeds the 14,000-word limit. To do this, the respondent must file an “Application to File an Oversized Brief” with the Court of Appeal and serve a copy of this application to all parties involved in the case. There is no special court form for this.
The respondent must provide a reason, called “good cause,” for why they need to file a longer brief. The court may or may not approve this request.
For more details, you can read California Rules of Court 8.204(c) to learn about the length limitations for briefs.
Always check with your Court of Appeal to confirm the specific service requirements for your case.
Generally, you must serve a copy of the respondent’s brief to all parties involved in the case, to the trial court judge, and to the Supreme Court of California before you can file it with the Court of Appeal.
- If the other party has a lawyer, serve the brief to the lawyer.
- If the other party does not have a lawyer, serve it directly to them.
There are rules about who can serve a brief and how it can be served. (See Code of Civil Procedure sections 1010.6-1013a.)
The respondent must provide the Court of Appeal with proof that all required copies were served. Respondents are encouraged to use court form APP-009 (for mail or in-person service) or APP-009E (for electronic service) to show proof of service. This form includes details about who served the brief, who received it, how it was served, and the date it was served.
The respondent must file one proof of service form for each brief that is served.
Proof of service forms are always included at the end of the respondent’s brief, after the Certificate of Compliance.
Filing the respondent’s brief with the Court of Appeal
There are two ways to file a brief: electronically file (e-file) on the computer or file on paper at the Court of Appeal. Always check with your Court of Appeal to confirm the specific filing requirements and copy requirements in your case.
The court requires lawyers and people who have a lawyer to file electronically. If a respondent is self-represented (does not have a lawyer), they can choose to file electronically or on paper.
If filing electronically, the court does not need or require paper copies.
If filing on paper, the original brief and proof of service forms are always given to the Court of Appeal. Some Courts of Appeal require that you file extra copies of the respondent’s brief when you file the original.
The respondent should keep one copy of the brief. It is a good idea to bring or mail an extra copy of the brief to the court clerk. The respondent can ask the clerk to stamp “filed” on the extra copy to show the original was filed and keep the extra copy as proof.
Appeals
What's next?
After the respondent files a brief, the appellant can file a third and final brief. The appellant’s reply brief addresses the issues and arguments raised in the respondent’s brief. The appellant is not required to file a reply brief.