Form and Content of Appellate Briefs
By Thomas R. Newman and Steven J. Ahmuty, Jr.
May 2, 2012
New York Law Journal
The form and content of briefs filed in New York Court of Appeals and the four departments of the Appellate Division is prescribed by CPLR 5528 and 5529 as supplemented by the individual rules of those courts. CPLR 5529(a)(3) authorizes each appellate court, "by rule applicable to practice therein," to prescribe the format, type size and length of briefs. Apart from the two CPLR sections, there are no state-wide uniform rules of appellate procedure. Practitioners familiar with the rules in one court cannot assume that they will be the same in another. There are differences and, in each case, the rules of the court to which the appeal is taken should be consulted. The clerks may refuse to accept for filing any briefs that do not comply with the court's rules.
Briefs shall be on 8 1/2-inch by 11-inch white paper and may be reproduced by any method that produces a permanent, legible black image on white paper and secure binding on the left side. Letter press printing is no longer required.1 Requirements differ among departments in terms of the size of the words. The requirements in the First and Second departments distinguish between proportionally spaced typeface (in which the sizes of the letters vary in width) and monospaced typeface (in which all letters are the same size).
In the First and Second departments, if proportionally spaced typeface is used, it shall be no less than 14 point size, except footnotes (where permitted) shall be no less than 12 point size; monospaced typeface shall be no less than 12 point size and footnotes no less than 10 point size. In the Fourth Department, all words shall be no less than 11 point size.2
Section 5528(a) of CPLR states that the appellant's brief is to contain, in the following order, (1) a table of contents, which shall include the contents of the appendix, if it is not bound separately; (2) a concise statement, not exceeding two pages, of the questions involved without names, dates, amounts or particulars, with each question numbered, set forth separately and followed immediately by the answer, if any, of the court from which the appeal is taken; (3) a concise statement of the nature of the case and of the relevant facts, with supporting record references; (4) the legal argument divided into points with appropriate headings "distinctively printed" (i.e., capital letters in bold type); and (5) an appendix, which may be bound separately, containing only such parts of the record on appeal as are necessary to consider the questions involved, "including those parts the appellant reasonably assumes will be relied upon by the respondent." If the appellant is proceeding on a full record on appeal pursuant to CPLR 5526, an appendix is not required.
In the Appellate Division, First and Second departments, the appellant's brief shall also contain the statement required by CPLR 5531 (Description of action); in the First Department as an addendum at the end of the brief,3 and in the Second Department at the beginning of the brief.4 In the First and Second departments, if the court has dispensed with a printed, reproduced or typewritten record and has permitted the appeal to be heard on the original papers, the appellant's brief shall also contain a copy of the opinion upon which the judgment or order being appealed is based.5
The respondent's brief is to contain (1) a table of contents; (2) a counterstatement of the questions involved or of the relevant facts, if the respondent disagrees with the statement of the appellant (which will be in almost every case); and the legal argument, divided into points with appropriate headings.6 If respondent thinks the appellant's appendix is inadequate, the respondent's brief may contain an appendix of such additional parts of the record necessary for the court to consider the questions involved.
The Fourth Department rules differ from the other departments in two important respects: "A brief shall contain no footnotes." This admonition is stated in two separate sections of the rules for emphasis.7 And, in the Fourth Department, the covers of the various briefs are in distinctive colors: appellant or petitioner, blue; respondent, red; reply, gray; sur-reply, yellow; intervenor or amicus, green.8 White, used for all briefs in the other three departments and in the Court of Appeals, is used in the Fourth Department only for a supplemental pro se brief in a criminal appeal.
New York decisions are to be cited from the official reports, if any, and all other decisions from the National Reporter System, if they are there reported. Other decisions may be cited from the most available source (e.g., NYLJ, Lexis, Westlaw).9 Copies of decisions that are not officially reported or otherwise readily available should be included with the submission in which they are cited.10
The name of counsel who is to argue or submit the appeal must appear at the upper right hand corner of the cover of all briefs, regardless of who filed the brief. In the Court of Appeals and the Second, Third and Fourth departments, requests for oral argument are made by indicating in the upper right hand corner under the name of counsel whether the appeal is to be argued or submitted and, if to be argued, the amount of time requested.11 In the First Department, a written request for oral argument must be submitted.12
In the First, Second and Fourth departments, except by permission of the court, appellants' and respondents' briefs shall not exceed 70 pages or 14,000 words, and reply briefs shall not exceed 35 pages or 7,000 words, while in the Third Department appellants' briefs shall not exceed 50 printed or 70 typewritten pages and reply briefs 10 printed or 15 typewritten pages.13 In the First and Second departments, a brief prepared on a computer shall include at the end a "Printing Specifications Statement" that specifies the processing system, typeface, point size and word count as calculated by the processing system used to prepare the brief.14
Quality Versus Quantity
There are no page limits on briefs filed in the Court of Appeals, except those self-imposed limits dictated by common sense and effective appellate advocacy. But this is not to say that the Court of Appeals welcomes verbose, prolix, poorly written, repetitious, meandering briefs. It most assuredly does not, as the court made clear in Slater v. Gallman,15 where it stated:
[T]his case presents an appropriate opportunity to comment on a matter that concerns us greatly, namely, the quality, length and content of briefs presented to this court. Although this is an extreme example, unfortunately it is not always the rare case in which we receive poorly written and excessively long briefs, replete with burdensome, irrelevant, and immaterial matter. Although counsel candidly admits that his 284-page brief is "unusually long," his claim that it is "meticulously structured, thoroughly documented, exhaustively researched, carefully analyzed and comprehensively presented" seems too self-congratulatory. His argument wanders aimlessly through myriad irrelevant matters of administrative and constitutional law, pausing only briefly to discuss the issues raised by this appeal. The brief pursues, in seemingly endless fashion, matters not properly before this court for the simple reason that they were not raised below.The court did not and has not imposed a specific rule "in the belief that such a rule would be an insult to those appellate counsel who understand the functions of this court and their own role in pursuing appeals to this court, and whose briefs focus on the pertinent issues."16
The court also noted that the issues presented upon this appeal were neither novel nor complex and "the brief and reply brief filed by counsel constitute an unwarranted burden upon this court. These briefs neither assist our deliberations nor serve the best interests of his client."17 The respondent Tax Commission filed a 21-page brief, including 14 pages of argument that "cogently and concisely discuss[ed] all the issues presented in this relatively uncomplicated appeal."18 The court, although recognizing it to be "a wholly inadequate sanction," imposed costs against the appellant. And, in Horowitz Bros. & Margareten v. Margareten,19 the 203 pages of plaintiffs' brief and reply brief resulted in a denial of costs and the court's "stress[ing] again that our reluctance to impose a limitation on the length of briefs '[too] often…is merely viewed as a license to substitute volume for logic in an apparent attempt to overwhelm the courts.'"
An excessively long, poorly written brief is counterproductive and an imposition on the court. As the court pointed out in Slater v. Gallman, "These briefs neither assist our deliberations nor serve the best interests of [counsel's] client."20 Busy judges and their law clerks will be loath to fight their way through a morass of excessive verbiage that does not appear likely to lead them to any productive result. Instead, they will turn to and rely on the opponent's brief.
This is not a new problem. Over a century ago, in Stevens v. O'Neill,21 "an action for false imprisonment, in which the facts were few, simple and unchangeably settled by unanimous affirmance,…the points presented by the learned counsel for the appellant cover one hundred and seventeen printed pages, of which more than two-thirds is devoted to quotations from the evidence and from adjudged cases." The Court of Appeals observed that "The entire law governing the subject of false imprisonment is so well settled that it could be written in fewer words than are devoted to that portion which the counsel deems applicable to this case." The court found necessary to remind counsel that "[e]xtended quotations from authorities have no place in the points, which, after stating the facts fairly, should set forth the positions insisted upon by counsel, the heads of the argument and the authorities relied upon to support it."22
While the cases discussed herein are extreme examples of poor writing and advocacy, in Slater, supra, the Court of Appeals noted that "unfortunately it is not always the rare case in which we receive poorly written and excessively long briefs, replete with burdensome, irrelevant, and immaterial matter." It said pretty much the same thing 73 years earlier in Stevens v. O'Neill. "We have been led to make these observations, not simply by this case, but by many, of which this is an example."23 There is no excuse for submitting a poorly written and badly structured brief.
Thomas R. Newman is of counsel to Duane Morris and author of "New York Appellate Practice" (Matthew Bender). Steven J. Ahmuty Jr. is a partner at Shaub, Ahmuty, Citrin & Spratt. They are both members of the American Academy of Appellate Lawyers.
- 22 NYCRR §600.10(a)(4); §670.10.3(b); §800.8(a); §1000.4(f)(7). Briefs may be typewritten, so long as all copies can be easily read. Pro se litigants may file neatly prepared, legible handwritten briefs, although their submission "is not encouraged." §670.10.3(d).
- 22 NYCRR §600.10(a)(3); §670.10.3(a)(1) and (2); §1000.4(f)(2). The Third Department has no rule on type size.
- 22 NYCRR §600.10(d)(2)(v).
- 22 NYCRR §670.10.3(g)(2)(i).
- 22 NYCRR §600.10(d)(2)(vi); §670.10.3(g)(2)(vi).
- CPLR 5528(b); 22 NYCRR §600.10(d)(3); §670.10.3(g)(3); §800.8(a); §1000.4(f)(6).
- 22 NYCRR §1000.4(f)(2) and (6). "To expect a person to read a footnote is like requiring him to go downstairs to answer the front door bell on his wedding night." Attributed to John Barrymore in Quote It II, a Dictionary of Memorable Legal Quotations, p. 154 (Wm. S. Hein Co. 1988).
- 22 NYCRR §1000.4(f)(5).
- 22 NYCRR §600.10(a)(11); §1000.4(f)(7).
- 22 NYCRR §500.1(h). This is a good practice that should be followed in all the appellate courts even where not expressly required by the court's rules.
- 22 NYCRR §500.13(b); §670.10.3(g)(1); §800.10(c); §1000.11(b).
- 22 NYCRR §600.11(f)(1).
- 22 NYCRR §600.10(d)(1)(i); §670.10.3(a)(3); §800.8(a); §1000.4(f)(3).
- 22 NYCRR §600.10(d)(1)(v); §670.10.3(a)(1).
- 38 N.Y.2d 1, 4-5, 377 N.Y.S.2d 448, 450-451 (1975) (284-page main brief and 35-page reply brief).
- 38 N.Y.2d at 5, 377 N.Y.S.2d at 451.
- 38 N.Y.2d at 5, 377 N.Y.S.2d at 450.
- 64 N.Y.2d 1008, 489 N.Y.S.2d 53 (1985)(main brief and reply brief totaled 203 pages); see also Ball v. State, 41 N.Y.2d 617, 625, 394 N.Y.S.2d 597, 603 (1977); Rochester City School Dist. v. Rochester Teachers Assn., 41 N.Y.2d 578, 584, 394 N.Y.S.2d 179, 183 (1977) where costs were denied for excessive briefs.
- 38 N.Y.2d at 5, 377 N.Y.S.2d at 451.
- 169 N.Y. 375, 376 (1902).
- Id. at 377.
- 169 N.Y. at 377.
This article originally appeared in the New York Law Journal and is republished here with permission from law.com.