The opening brief is the appellant’s written argument that tries to convince the Supreme Court that the Superior Court made a mistake in its decision that should be reversed. It is the first appeal brief in a three-part series.
The appellant's opening brief is a single bound document that contains specific sections. The following sections are required by the Appellate Rule 212:
This website includes a sample appeal brief to show you what the different sections of a brief look like.
The front cover of the brief must contain:
See the sample brief cover for an example.
You will prepare the Table of Contents after you have written the appeal brief. Only then will you know which sections are on what pages. In the Table of Contents, list the heading for each section of the brief and note which page it is found on. The Table of Contents should include these sections:
Someone reading the brief should be able to get a good overview of the case by skimming the Table of Contents. See the sample brief Table of Contents for an example.
List all of the statutes, case law and other authorities that you rely on in your brief. Group separately the different authorities. For example, put all the statutes in one list and then put all the cases in another list. List the statutes in numeric order and list the cases alphabetically and include their citations. Note on which pages of the brief you cite each authority.
You will prepare the Table of Authorities after you have written the brief. That way you know on which page you cited what authority.
See the sample brief Table of Authorities for an example.
Type in the exact language from the authorities that you rely on in your brief. This includes the important statutes, regulations, constitutional provisions, court rules, or ordinances. You may attach photocopied language from these authorities so long as it is easily readable. If you rely on a particular section or subsection of a long statute or other authority, you do not need to include the whole statute. Just include the section that you rely on. Do not include language from cases in this section.
See the sample brief Authorities Principally Relied Upon for an example.
This section of the brief shows the court there is a final judgment from the trial court which is being appealed. It states:
See the sample brief Jurisdictional Statement for an example.
List all parties to the appeal. You do not need to include this section if all parties to the appeal are included in the caption on the cover.
List all of the issues that the Supreme Court needs to decide. State the issues in terms of how the Superior Court made a mistake. For example, "The Superior Court made a mistake when it decided that . . ." Only include issues that the Supreme Court can resolve.
See the sample brief Statement of Issues Presented for Review for an example.
The Statement of the Case contains two main subjects:
See the sample brief Statement of the Case for an example.
State only the important facts that the Supreme Court should know to decide the appeal. State the facts in chronological order, starting from the beginning of the Superior Court case.
You must follow every factual statement that you make in your brief with a citation to the Superior Court record, excerpt of record, or the transcript from a Superior Court hearing or trial. This is required by Appellate Rule 212(c)(8) so that the justices can understand whether a factual assertion is accurate. If you do not provide supporting cites for every factual statement, it is harder for the Supreme Court to fairly consider the issues you raise. Most important, failure to provide citations can result in the Supreme Court not considering your legal argument. Failure to provide the Court with this information is the most common reason that briefs are rejected.
Make sure you cite to the record, excerpt of record or transcript after every factual statement you make. So for example, if you say in your brief, "The parties were married in 1999," you must provide a citation to either the record (R. 34), the excerpt of record (Exc. 12), or the transcript (Tr. 4) to support that statement. It would look like this, depending on whether the information is found in the record, excerpt or transcript:
After the Statement of Facts section, summarize what happened procedurally in the Superior Court and what the Superior Court decided. This means you describe
Do not describe every motion and hearing, only the important proceedings and those relevant to the issues on appeal. For example, state when the complaint was filed in the Superior Court. Discuss any motions that were important. If a trial or hearing was held, state the date and the date the court entered the final judgment. You need to decide which events are important enough for the Supreme Court to consider.
When the Supreme Court reviews an issue on appeal, it needs some kind of rules or guidelines to determine whether the Superior Court made an error in its decision. Different kinds of rulings require different kinds of review guidelines. These guidelines are called standards of review.
When the appellant argues that the Superior Court made a mistake in its ruling, the Supreme Court looks first at what the standard of review is for that particular issue. The three most common standards of review are:
These different standards are discussed below. Also, there are other standards of review that may apply to the issues in your appeal.
You need to figure out which standard of review applies to the different issues you are appealing to the Supreme Court.
See the sample brief Standard of Review for an example.
If the Superior Court judge used discretion in making the final decision, then the Supreme Court uses the abuse of discretion standard to review the decision on appeal. Abuse of discretion happens when the Superior Court ruling is arbitrary, unreasonable or absurd because it makes absolutely no sense.
For example, a decision where a judge uses discretion is:
It is difficult to convince the Supreme Court that the Superior Court judge abused his or her discretion in making a decision. Abuse of discretion does not mean a trial or the judge had to be perfect, but it does mean that the judge's actions were so far out of bounds that someone truly did not get a fair trial. Sometimes on appeal, the Supreme Court finds that the Superior Court judge was wrong, but not wrong enough to have influenced the outcome of the trial. In that situation, the trial court decision may be affirmed.
The clearly erroneous standard of review is used if you are appealing the factual findings of a judge or jury after trial. Review under the clearly erroneous standard is very deferential to what the Superior Court judge did. This means that the Supreme Court will accept the Superior Court's findings of fact unless it has a definite and firm belief that the Superior Court made a mistake. If the Superior Court's account of the evidence is possible considering the entire record, the Supreme Court will not reverse it even if it would have weighed the evidence differently if it was hearing the case in the first place. Because the judge or jury at the trial saw the witnesses and heard what they had to say, they are in a better position to decide what actually happened and who is telling the truth.
For example, the Supreme Court would use the clearly erroneous standard to review the Superior Court's decision to value a home to be $150,000 when the parties did not agree about the home's value.
De novo is a Latin phrase which means "from the beginning." When the Supreme Court uses de novo review, it will independently review the issue as if the Superior Court had never ruled on it. If this standard applies, the Supreme Court will not defer at all to the Superior Court's decision and does not assume that the Superior Court's decision is correct.
This type of review is generally limited to issues that involve questions of law. How the Superior Court interpreted a statute or the Alaska Constitution is a question of law. For example, whether a new law regarding custody should be applied to custody cases filed before the law went into effect is a question of law. So the Supreme Court would review this issue using the de novo standard of review.
This is where you explain how the Superior Court made a mistake in deciding your case. Remember that when you filed your Notice of Appeal, you stated the points on appeal. The argument section should address each point on appeal. For each issue, state why you think the Superior Court made the wrong decision and why the Supreme Court should reverse the decision on appeal according to the standard of review. Explain why the incorrect Superior Court decision harmed your case so much that the error should cause the Supreme Court to reverse the Superior Court's judgment or order. Do not try to phrase your arguments in legal jargon. Instead use plain language to explain your arguments.
Use headings to help the court understand what you are discussing. Think of the argument section of your brief as a book where each issue is a separate chapter. Set off each issue with a heading similar to a chapter title that describes the arguments that will follow.
For every statement of law you make in the brief, you need to cite to a case, statute, rule or legal treatise that supports your statement. For every statement of fact, cite to the record just as you did in the Statement of the Case. Citations usually appear at the end of the sentence.
See the sample brief Argument for an example.
Briefly restate your position and tell the Supreme Court what you want it to do. For example, you may ask the court to reverse the Superior Court's decision.
See the sample brief Conclusion for an example.
Most briefs do not include an appendix. You must attach an appendix if the case involves property division issues in a divorce. List the parties' assets and debts as shown in the Superior Court record. This includes the Superior Court's findings as to the type of property (marital or individual), value of the property, and who got each item or property or debt.
There are very specific requirements for what a brief looks like. Please follow very carefully what the formatting section says so that your brief will be accepted. If your brief does not include all of the required formatting, the court will reject it. Please read the Top Ten Reasons Why Briefs and Excerpts of Record are Rejected .
| Rev. 3 May 2010
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