IOP § III(J): Briefs

1. Time for Filing and Form

When an appeal is docketed, the clerk’s office issues a briefing schedule to all counsel establishing the time for filing briefs. If a cross-appeal is filed later, a revised briefing schedule will be issued, but normally the time for filing the appellant’s opening brief will not be enlarged. The requirements for briefs are delineated in FRAP 28, 28.1 and 32, and 8th Cir. R. 28A. The clerk has been directed to reject briefs which do not comply with the provisions governing the elements of the brief and its length and form, as well as briefs that do not contain the addendum material required by 8th Cir. R. 28A(b). The color of brief covers is governed by FRAP 32(a)(2), except in cross-appeals, where the colors are governed by FRAP 28.1(d).

Pursuant to the provisions of 8th Cir. R. 28A(a), briefs filed by attorneys and other authorized CM/ECF users must be submitted for filing using the CM/ECF system by the due date established by the court’s briefing schedule and other orders. Upon receipt of the electronic version of the brief, the clerk’s office will review it (and the submitted addendum) for compliance with the rules and notify counsel if any defects are noted. Counsel have five days from receipt of a defect notice to submit a revised electronic version of the brief; failure to submit a corrected version of the brief may result in the issuance of an order to show cause or an order barring the filing of the brief. Once a fully compliant electronic version is submitted, the clerk will file the brief and notify all parties to the case, either by mail or through an electronic Notice of Docket Activity, that the brief has been filed. Subsequent due dates are calculated from the date of this notice. Counsel should carefully review the provisions of 8th Cir. R. 28A(a) and (b) for further details.

Once the filing party has received notice that the brief has been filed, the party has five days to submit the paper copies of the brief (and any addendum) required by 8th Cir. R. 28A(d). The court encourages inexpensive forms of reproduction to minimize costs, but counsel should check each copy of the brief for legibility, completeness, and proper binding. Type and page size requirements are covered by FRAP 32(a) and FRAP 28.1(e). If staples are used for binding, tape should be placed over the edges. The certificates of service required by FRAP 25(d) and the certificate of compliance required by FRAP 32(g) and 28.1(e)(3) must be included in briefs or supplied in a separate document. The court’s website contains additional instructions, pointers, and checklists to assist counsel in preparing briefs. Briefs can be accessed through the PACER system. Please note, the PACER $.10 per page charge applies to briefs (subject to a $3.00 cap per brief). For billing information or to establish a PACER account, see <www.pacer.gov/billing>.

The court’s goal is to process all appeals promptly. Requests for extension of time are not favored and are not granted routinely even when all parties agree to an extension. Limited extensions may be granted to court reporters, attorneys, or pro se litigants for good cause.

2. Reply and Supplemental Briefs; Supplemental Citations

A reply brief need contain only items 2, 3, 8, 9, and 10 of FRAP 28(a), and a certificate of service. Supplemental briefs may not be filed without leave of court. The court may request supplemental briefs on specific issues after a case is argued or submitted without argument. The court may request that supplemental briefs be filed in letter format; in such instances, the brief may take the form of a letter addressed to the clerk of the court. Supplemental briefs are filed through the CM/ECF system.

Counsel are permitted to call the court’s attention to intervening decisions or new developments by directing a letter providing supplemental citations to the clerk. See FRAP 28(j). Supplemental citations not in compliance with FRAP 28(j) will be rejected.

3. Briefs of an Amicus Curiae

To avoid repetition or restatement of arguments, counsel for an amicus curiae should ascertain, before preparing a brief, the arguments that will be made in the brief of any party to be supported. The brief of an amicus curiae generally can be filed only with written consent of all parties or with leave of court. The United States, an agency or officer thereof, or any state may file an amicus brief without consent of the parties or leave of court. A motion for leave to file an amicus brief must be accompanied by the proposed brief, and must state the movant’s interest and the reason an amicus is desirable. The cover of the amicus brief must identify the party or parties supported and whether the brief supports affirmance or reversal. All other requirements are contained in FRAP 29. Participation by an amicus curiae in oral arguments will be allowed only with the court’s permission and usually only for extraordinary reasons.

4. Contents

The content and organization of briefs are detailed in FRAP 28 and 32, and 8th Cir. R. 28A. Counsel should also consult the "Appeal Information” button on the court’s website for pointers and checklists for preparing briefs. The table of contents should contain brief argument headings. The requirements for the jurisdictional statement are contained in FRAP 28(a)(4).

Briefs should be carefully proofread. Spelling and grammatical mistakes make a brief less effective. Briefs should be brief. Footnotes should be used sparingly and must be printed or typed in the same size font type as the text of the brief. The footnotes are counted toward the type-volume limitations contained in FRAP 32(a)(7).

4. Function

The brief serves two main purposes. It prepares the panel for oral argument and decision by outlining the case and presenting the arguments. The brief is also an important source of record information for the court.

The writer should identify the key issues and concentrate on them. Except in unusually complicated cases, a brief addressing more than four or five issues is often diffuse and gives the reader the impression that no single issue is very important. The statement of facts should be complete, concise, and nonargumentative. It should be in narrative form with references to the transcript or other parts of the record. The argument should be divided into the main issues with appropriate headings and should include an analysis of the evidence and a discussion of the authorities. If no decision is controlling, the emphasis should be on reason as well as precedent. The court prefers a few good cases on point, with sufficient discussion of their facts to show their relevance, rather than an overabundance of citations. Cases worth citing usually can be summarized tersely or quoted briefly to show their precedential value. A long factual discussion is unnecessary unless a precedent is so closely on point that it must be distinguished. The writer should ensure that all cases support the principle for which they are cited and that the citations are accurate.