Movin' On Up: After 10 Years of Practicing Law, I Filed My First Court Of Appeals Brief
The experience elicited feelings of excitement, trepidation, and fatigue.
You know those cases that never seem to go away? I am dealing with one of those right now. I’ve been working on it since 2011, long before the court got involved. It’s one of the longest relationships I’ve ever had. It’s pretty dysfunctional, but at least I get paid to stick around.
After the opposing party unsuccessfully moved to vacate a default judgment in September, I found myself facing the task of drafting my first brief for the court of appeals. I wrote mock appellate briefs in law school about a decade ago, and once I appealed a fee-award amount from district court to superior court. But in all my years of practice, I’ve never been involved in any real-life court of appeals action. I would like to think it’s because my opposition has always been too scared to face me in the higher court.
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I received the official notice of appeal with a mix of excitement (“Wow, the court of appeals!”), trepidation (“All these unfamiliar new court rules to learn!”), and fatigue (“I can’t believe I am still writing and arguing about this case. This case is like a regrettable high-school boyfriend that keeps popping up on my “People You May Know” Facebook feed”).
One of the first things you realize about your first appellate case is that you have no idea what’s going to happen and when. The good news is that if you are the respondent, the appealing party has to do a lot of the front-end work, including ordering the transcripts and “designating” the clerk’s papers. The non-appealing party’s job is just to make sure that the appellant gets all the stuff over to the appellate court and then to sit back and wonder what the appellant is going to argue the trial court did wrong.
Unlike the trial court in my county, the appellate court doesn’t give you a nice case schedule with a neat list of deadlines. One of the hurdles to entry into the higher court is to be able to figure out your own deadlines by looking at the court rules.
On the day I finally received the appellant’s brief, I was working on a summary judgment motion and just let the brief fester on my desk like a harbinger of doom. Then I let it sit there another few days, while I made excuses to work on every other project on my to-do list (I call this tactic “productive procrastination” and highly recommend it).
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When I worked up the nerve to read through the brief—mostly because my paralegal and I had incorrectly calendared the response deadline by a week and I had no idea how long it was going to take me to draft an appellate brief—I was both surprised and horrified to see that the thing was almost 50 pages. This response was not going to be the kind of project I could hammer out by working late a couple of nights, law-school style. This brief and I were going to be spending a meaningful amount of time together.
I have learned that the first task when drafting a response brief of any kind is to figure out how to frame the thing: Are you going to fit your arguments into the framework provided by the moving party, or are you going to re-frame things and shoehorn responses to the other side’s arguments into your framework? I took the second approach, after spending some quality time with Westlaw to figure out tiny details such as the standard of review and what exactly I was going to be arguing.
Fortunately, the appellant’s brief covered a lot of old territory already explored in the motion to vacate proceedings. They basically wanted the court of appeals to disagree with the findings made by the trial court. So my job was to explain to the court of appeals that the findings had enough evidence to support them and should be left undisturbed like a napping cat.
I was pleasantly surprised to find that I was enjoying the process of drafting my appellate brief. My day-to-day legal practice involves a lot of negotiating quick resolutions for clients to avoid litigation and incurring a lot of fees. It’s like eating cereal for dinner: It gets the job done and is awesome, but it’s not the same as actually turning on the stove. The appeal gave me a chance to really research and weave together case law, supporting facts, and arguments, just like law school conned us into believing we were all going to do every day for a living. It was also interesting to approach a case from the standpoint of an appellate court: New audience, different role.
In what seemed like no time at all, I had a rough draft of my brief. There were some hiccups along the way: When confronting each new argument from the appellant, I had a moment of panic until I found some case law supporting my position. Legal authority became a weird sort of security blanket for me, chasing away my “what if I can’t come up with a defense?” nightmares.
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It turned out that drafting an appellate brief is actually the easy part. The hard part is the tedious stuff: Drafting the table of contents and table of authorities, citing to the clerk’s papers and report of proceedings, and making sure the document conforms to all the requirements in the court rules, which dictates margins, type size and even font. To avoid a last-minute rush, I even CAME IN OVER THE WEEKEND to attend to these tasks, against the backdrop of a seemingly endless St. Paddy’s parade outside my office window.
My paralegal and I actually walked over to the court of appeals to file our brief because we like pomp and circumstance. Then I texted a picture of me and my brief to my parents to include them in the special day.
For anyone also newly facing an appellate brief, here are some tips:
• Print out the documents from the clerk’s papers on which you will be relying, and use your copy machine to stamp the clerk’s paper numbers on them.
• Unless you are an evil genius and can figure out how to auto-populate page numbers in the tables, wait until your brief is absolutely final before inserting those page numbers.
• Write your introduction at the end, when you have finally figured out what you are arguing.
• Look at brief samples online from attorneys or firms you respect. When it comes to appellate-brief formatting, it is not a goal to stand out from the crowd.
• Give yourself a lot of time. Worst-case scenario, you get done earlier than expected and can’t use the brief as an excuse to put off other projects.
• Though wallowing in self-doubt can be fun, don’t question whether you are capable of actually completing an appellate brief for an actual court. Just think of all the practice you got in law school writing fake briefs for fake appellate courts.
Finally, enjoy yourself! It’s not every day that lawyers get to do real lawyer stuff like draft an appellate brief.
Allison Peryea is a shareholder attorney at Leahy Fjelstad Peryea, a boutique law firm in downtown Seattle that primarily serves community association clients. Her practice focuses on covenant enforcement and dispute resolution. She is a longtime humor writer with a background in journalism and cat ownership. You can reach her by email at Allison.Peryea@leahyps.com.