APPELLEES: What Part of “Answer Brief” Is It That You Don’t Understand? PART 2

In our prior post we noted that although the appellate rule on briefs does not explicitly state that appellees’ answer briefs should be set up with the same issues as were posed in the initial brief, such a conclusion is suggested by the very name “answer” brief.  Now let’s look at how failing to follow this simple premise can derail the appellate process, and otherwise be contrary to an appellee’s best interest.

As its name suggests, the answer brief is the appellate analog to a defendant’s answer in the trial court.  The complaint frames the issues, as does an initial brief, and the opposing party then responds to those issues as framed by the plaintiff or appellant.  The response can be a simple denial, such as, if an appellant’s first issue on appeal is that the trial court’s decision is not supported by competent substantial evidence, the first issue in the answer brief can be that the decision is supported by such evidence.

Or the appellee’s answer brief’s corresponding issue can be more in the nature of an avoidance or affirmative defense.  For example, if the appellant’s second issue is that certain evidence should have been excluded as hearsay, the answer brief’s second issue could be that, although the evidence admitted was hearsay, affirmance is still proper because the ruling was harmless error, or because the appellant failed to object.  Even though such responses admit the premise of the appellant’s issue, they disagree with the appellant’s conclusion that reversal is required. And obviously, whether a simple denial or an avoidance, the answer brief’s issues should be numbered in a manner so as to correspond to the issues as presented in the initial brief.

Or, at least one would think that the above would be obvious.

Let’s look at the issues in two actual briefs filed in a Florida district court of appeal to see how badly an appellee can muck up such a seemingly simple procedure.  In a family law case involving attorney’s fees to a parenting evaluator against one of the parents (the award also included fees against the other parent, who did not appeal), the initial brief posed these two issues, in this order: 1. The fee award was error because it included attorney’s fees for responding to a purely clerical request; and 2. The fee award was error because the contract relied on only applied if a “claim” was made “against” the parenting evaluator, and the appellant never made such a claim.

In the same appeal, here are the issues as presented in the answer brief: 1. The fee award was proper under the contract relied on; 2. (and we’ll quote this one verbatim) “The trial court correctly assessed the amount of fees and allocation of responsibility [between the parents] based upon the evidence presented at the hearing.”  (Bracketed matter supplied).

What’s wrong with this picture?

First, the issue posed first in the answer brief actually responds to the second issue in the initial brief.  So, when the appellant drafts his or her reply brief, where does s/he respond to that?  First? Second?  All of the above?  This will not only cause a headache for opposing counsel, but potentially for the court as well.

Courts don’t like headaches.  Even if the appellee is correct in his or her response, counsel has certainly done his or her client no favors by this nonsensical drafting choice.

Second, and even worse, the second issue in the answer brief is not a point presented by the appellant!  The appellant did not appeal the sufficiency of the evidence to support the amount awarded, nor the allocation of the award as between the parents, making this “issue” in the answer brief totally irrelevant to resolution of the appeal.  Conversely, with the appellant’s first point not in fact responded to in appellee’s issues presented, appellee risks that the appellant could essentially win the point by default.

Appeals can be difficult enough as it is.  Appellees, make sure your answer brief actually answers!


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