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Perfecting the Appeal:
The Brief

Gavel 2 for Articles on Appeals

Perfecting the Appeal – The Brief

Part 3 of 3

By J. Douglas Barics
Updated January 2025

1. The Appellant’s Brief

An appellate brief is the written argument made to the appellate division why the lower court’s disposition of the case was incorrect. The appellate division is an error checking court, and to that end, its function is to review trial decisions for errors, and determine if these errors are significant enough to give a different result.

The format of the brief is as follows.

a. The Cover

The cover must include the title of the appellate proceeding.

For the Second Department, the upper right-hand section must contain a notation stating whether oral argument is requested or of the appeal is to be submitted only. If argument is requested, the time required and the name of the attorney who will argue must be included.

For the First Department, the request for oral argument is made on the note of issue, which is a separate form not used in the Second Department.

The lower right-hand section must contain the name, address, telephone number and email address of the attorney filing the brief and indicate whom the attorney represents.

b. The Table of Contents

  • The Table of Authorities
  • Questions Presented
  • Preliminary Statement
  • Statement of Facts
    • Each sub point if presented that way in the statement
  • Argument
    • Each argument point
  • Conclusion
  • Printing Specification Statement
  • 5531 Statement
  • the contents

c. The Table of Authorities

A table of cases in alphabetic order, statutes and other authorities. For each one, the pages of the brief where they are cited must be included.

d. Questions Presented

A short statement of the questions involved and the answer to each one. The answer is how the lower court answered the question and not what is requested in the appeal.

e. The Preliminary Statement

The preliminary statement is a short summary of the issues and most relevant facts to allow the reader to get a sense of the issues being raised. It should not duplicate the statement of facts.

f. The Statement of Facts

The facts is the summary of what happened in the lower court without argument. Every fact, good or bad, should be included with an appropriate reference to the record.

g. The Argument

The argument are the points raised by the appellant based on the facts presented to the lower court. Incorrect factual determinations or misapplication of the law should be spelled out.

The headings must be distinctively printed as the Appellate Division will generally address each point specifically in deciding the appeal.

Each argument should include a short request as to what relief is requested for that point.

h. Printing Requirement Statement

A statement certifying compliance with printing requirements is required

i. Statement Pursuant to 5531

In the First and Second Departments, the CPLR 5531 statement must also be included in the brief.

j. Additional Content if the Original Record is used

In the First and Second Judicial Departments, if the appeal is using the original record, the brief must include the following:

  • a copy of the order or judgment appealed from and the decision that gave rise to the judgment
  • a copy of the opinion and findings, if any, of a hearing officer, and
  • a copy of the notice of appeal

2. The Respondent’s Brief

The respondent’s brief is the same as the appellant’s brief in format, except that the respondent may include a counterstatement of the questions involved or a counterstatement of the nature of the case and the and facts

3. The Appellant’s Reply Brief

A reply brief of the appellant must also conform with the same format. The purpose of the reply is to address the issues raised in the responding brief and not to repeat the main brief.

About J. Douglas Barics

J. Douglas Barics is an appeals attorney located in Commack NY who regularly represents individuals in the First and Second Departments. If you have any questions about this article, please contact J. Douglas Barics

 

Disclaimer: The article "Perfecting the Appeal - The Brief" is provided as a free educational service and does not constitute legal advice.  For more information see the full disclaimer.