Brief Requirements and the Argument Section
An appellate brief is a regulated document. The sections are prescribed, the order is prescribed, the length is capped, and an argument that does not appear in the right place is usually treated as one that was never made.
The rule in short
Federal Rule of Appellate Procedure 28(a) lists what an appellant's brief must contain, including a corporate disclosure statement, tables, a jurisdictional statement, a statement of the issues, a statement of the case with record references, a summary of the argument, the argument itself with the standard of review for each issue, a conclusion, and the required certificates. Rule 32 governs form, typeface and the word limits, and requires a certificate of compliance.
Appellate briefs are governed by rule to a degree that surprises litigants used to trial practice. Federal Rule of Appellate Procedure 28 fixes what must be in an appellant's brief and in what order. Rule 32 fixes how it must look and how long it may be. Local circuit rules add further requirements, and a brief that ignores them is often returned before a judge sees it.
What Rule 28 requires, in order
The appellant's brief must contain a corporate disclosure statement where required, a table of contents with page references, and a table of authorities with references to the pages where each is cited. It must then set out a jurisdictional statement, which identifies the basis for the district court's jurisdiction, the basis for the court of appeals' jurisdiction, the relevant filing dates establishing timeliness, and an assertion that the appeal is from a final judgment or a statement of the other basis for jurisdiction.
Next comes a statement of the issues presented for review, followed by a concise statement of the case setting out the relevant procedural history and the facts relevant to the issues, with appropriate references to the record. Then the summary of the argument, which must contain a succinct and accurate summary rather than a repetition of the headings.
The argument follows, then a short conclusion stating the precise relief sought, and finally the certificate of compliance. Rule 28(b) prescribes a shorter list for the appellee, which may omit sections where the appellee is satisfied with the appellant's version. Rule 28(c) permits a reply confined to answering the appellee's brief.
The part the case is decided on
Rule 28(a)(8) requires the argument to contain the appellant's contentions and the reasons for them, with citations to the authorities and parts of the record relied on. It separately requires, for each issue, a concise statement of the applicable standard of review, which may appear in the discussion of the issue or under a separate heading placed before the discussion.
Three elements therefore have to appear for every issue: what the appellant says, why, and how much deference the trial court's ruling receives. Omitting the third is common and self-defeating, because the argument that persuades under de novo review is usually different from the one that persuades under abuse of discretion, as set out in the framework for sorting questions of law, fact and the mixed ones between them.
Courts of appeals across the circuits treat an argument as forfeited where the brief asserts it without developing it. A heading with no supporting reasoning, a sentence in a footnote, a citation with no explanation of how it applies, and a request to incorporate a district court filing by reference have all been held insufficient. The rule is not a trap for the careless so much as a consequence of the adversarial premise: the court decides the arguments made to it, and an undeveloped assertion gives the other side nothing to answer.
Typeface, format and the word limits
Rule 32 sets the physical requirements. A brief must be on letter-size paper, double spaced except for quotations and headings, with margins of at least one inch, and in a proportionally spaced typeface of at least fourteen point or a monospaced face meeting the specified pitch. Cover colors are assigned by the role the brief plays.
The length limits are stated in words. A principal brief may not exceed thirteen thousand words and a reply brief may not exceed six thousand five hundred. Certain components are excluded from the count, including the cover, the tables, the certificates and any addendum of statutes or rules. Rule 32(g) requires a certificate of compliance stating the number of words.
Exceeding the limit requires leave of court, sought by motion in advance. Motions to file an oversize brief are frequently denied, and a brief filed over the limit without leave may be stricken. Circuits also impose their own limits on motions, petitions and other filings, which Rule 32 addresses separately.
| Document | Word limit | Distinctive content | Time to file |
|---|---|---|---|
| Appellant's principal brief | Thirteen thousand | Jurisdictional statement and issues presented | Forty days after the record is filed |
| Appellee's brief | Thirteen thousand | May adopt the appellant's statements | Thirty days after the appellant's brief |
| Reply brief | Six thousand five hundred | Confined to answering the appellee | Twenty-one days after the appellee's brief |
| Cross-appellant's response and reply | Set separately by rule | Combined response and principal argument | Governed by the cross-appeal rule |
| Amicus brief | Half of a principal brief | Statement of interest and authorship disclosure | Keyed to the supported party's brief |
Record references and the use of authority
Every factual assertion needs a citation to the place in the record where it appears. Rule 28 requires it, and judges rely on it, since a statement without a citation cannot be verified and is often disregarded. The materials cited must actually be in the record assembled under the rules governing what the record contains and how gaps are filled.
Authority should be cited for propositions that need it and not for propositions that do not. A string of citations for an uncontroversial standard consumes words that the argument needs. Where the point is preserved by something specific in the record, the brief should say where, because the appellee will argue otherwise under the objection and offer of proof requirements.
What the briefs determine about the rest of the appeal
Briefing does more than present the argument; it determines how the case will be handled. Panels decide from the briefs whether a case warrants argument at all, a question governed by the criteria for allotting and dispensing with argument. Judges read the briefs before the bench memorandum is written, and the issues framed there are the issues the court will address.
The conclusion matters more than its length suggests. It must state the precise relief sought, and a request for reversal where vacatur and remand is the available remedy invites an opinion that grants less than the appellant wanted. Where multiple issues are raised, saying which one carries the appeal is usually worth more than treating them all as equal.
Points to carry away
- Rule 28(a) prescribes the required sections and the order in which they appear.
- The argument must state contentions with reasons, citations and record references.
- The standard of review must be stated for each issue raised.
- Rule 32 caps a principal brief at thirteen thousand words and a reply at six thousand five hundred.
- A certificate of compliance must accompany a brief that relies on the word limit.
- An argument mentioned without development is treated as forfeited in most circuits.
Questions readers ask
Can a new argument be raised in the reply brief?
Generally not. Courts treat an argument first raised in reply as forfeited, because the appellee has no opportunity to answer it. Rule 28(c) describes the reply as responding to the appellee's brief, and circuits enforce that description. The narrow exceptions cover responses to matters the appellee raised for the first time, jurisdictional questions the court must consider regardless, and intervening authority. Where an appellant realizes an issue was omitted, the available step is a motion for leave to file a supplemental brief, which is granted sparingly.
Do the covers of the briefs have to be different colors?
Yes, where the brief is filed in paper. Rule 32 assigns colors by role so that a judge handling several volumes can find the right one without reading: the appellant's principal brief, the appellee's brief, a reply, and briefs of amici each have an assigned cover. Cross-appeals add further assignments. Many circuits now accept or require electronic filing, in which the requirement matters less, but local rules frequently retain it for the paper copies the court asks to be sent.
What has to be certified about the length of a brief?
Rule 32(g) requires a certificate of compliance for any document that is subject to a word or line limit, signed by the attorney or the unrepresented party, stating that the document complies and giving the number of words or lines. The certificate may rely on the word count of the word-processing system used. Certain items are excluded from the count, including the cover, the tables, the certificates and any addendum containing statutes or rules, and the exclusions are listed in the rule.
Sources
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 28, BriefsThe required contents of the appellant's, appellee's and reply briefs.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 32, Form of BriefsPaper size, typeface, cover colors, word limits and the certificate of compliance.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 31, Serving and Filing BriefsThe sequence and periods for filing the principal briefs and the reply.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 30, Appendix to the BriefsThe materials the briefs cite to and how they are assembled.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 10, The Record on AppealThe record that every factual assertion in a brief must be traceable to.
- United States Courts — Current Rules of Practice and ProcedureOfficial rule text and the committee notes on brief content and length.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
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