APPELLEES: What Part of “Answer Brief” Is It That You Don’t Understand? PART 1

Today’s installment goes to a recurring problem in appellate practice, yet one on which there is very little, if any, reported law: the answer brief which doesn’t actually “answer” the points on appeal, stated in the initial brief.  While one would think that such a problem would be one avoided by simple common sense, and a recognition of an analytic truth bordering on tautology, we hope to show that not only are such answer briefs arguably violative of applicable rules, but simply bad form and tactically foolish.

We begin with the premise that there are three types of briefs filed by the parties in any appeal: initial, answer, and reply (the exception being appeals in which a cross-appeal is taken), under Rule 9.210 (subsections b, c, and d, respectively).  The first two of those subsections state:

(b) Contents of Initial Brief. The initial brief shall contain the following, in order:

(1) A table of contents listing the issues presented for review, with references to pages.

(2) A table of citations with cases listed alphabetically, statutes and other authorities, and the pages of the brief on which each citation appears. See rule 9.800 for a uniform citation system.

(3) A statement of the case and of the facts, which shall include the nature of the case, the course of the proceedings, and the disposition in the lower tribunal. References to the appropriate volume and pages of the record or transcript shall be made.

(4) A summary of argument, suitably paragraphed, condensing succinctly, accurately, and clearly the argument actually made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged. It should seldom exceed 2 and never 5 pages.

(5) Argument with regard to each issue including the applicable appellate standard of review.

(6) A conclusion, of not more than 1 page, setting forth the precise relief sought.

(c) Contents of Answer Brief. The answer brief shall be prepared in the same manner as the initial brief; provided that the statement of the case and of the facts may be omitted. If a cross-appeal has been filed, the answer brief shall include the issues in the cross-appeal that are presented for review, and argument in support of those issues.

(Emphasis supplied).

Admittedly, the rule does not specify that the issues posed in an answer brief must correspond to the issues “presented” in the initial brief.   However, the rule presupposes some knowledge of how appeals work, and the history of appellate practice. Further, the conclusion that answer briefs must actually “answer” the issues in the initial brief is inherent in the name “answer brief.”  Appellees may in fact bring up their own issues—if they are also cross-appellants, as noted by the final clause quoted above.

Otherwise, an answer brief should answer the issues posed in the initial brief.  In our next installment, we’ll look at how and why, as well as an example taken from actual briefs filed in a Florida district court of appeal.

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