Appellate Insights

Under California appellate rules, briefs must state each point under a separate heading or subheading.  Appellants and respondents alike should heed this requirement, as both persuasion and preservation may depend on it.  Some practice tips to consider:

• Many appellate courts will deem an argument forfeited if buried under an unrelated heading, or made only in a footnote.

• Headings should be substantive, but not so lengthy that they cease to serve as “headlines” and start to resemble text.

• Organizing headings for each distinct contention brings discipline to the drafting process, making the brief more coherent and digestible.  Generating a new Table of Contents for each draft is an excellent editing tool, helping you see whether points flow logically and persuasively.

• If the Table of Contents has “gaps” that would confuse a stranger, revise.  Justices often read the TOC to gain a substantive overview of the brief before diving in.

▶ The practical message:  Ensure that your brief headings are crisp and clear, and that they smoothly outline all your core contentions on appeal.