Any party who loses a civil trial (bench or jury) has the right to appeal. Trials and appeals are expensive and laden with emotion. That said, we often receive inquiries from “appellees” when they find out the losing party is taking an appeal.1 These calls all focus on what really happens if they do not file an appellee’s brief. Clearly, the winner in the trial court does not have to file an Appellee’s Brief. This blog explores the reasons a potential appellee should strongly consider filing an Appellee’s Brief.
There are two key reasons you should consider retaining appellate counsel to research, write and file your Appellee’s Brief. First, the decisional law setting out what occurs when an appellee elects not to file a brief should give you pause. Specifically, when an appellee does not appear and file an Appellee’s Brief, the Court of Appeals does not develop an argument for the absent litigant and applies a less stringent standard of review. As such, the Court of Appeals will reverse the trial court if the appellant is able to establish prima facie error. Prima facie error is an error at first sight, on the first appearance, or on the face of it. This means—in the absence of an Appellee’s Brief--it is more likely the trial court’s decision will be reversed. This means the appellee who won in the trial court, just lost. Thus, in most cases, in consultation with appellate counsel, most litigants determine they should file an Appellee’s Brief.
Second, and fortunately for Appellees, they can prepare their response to an Appellant’s Brief with less work in most cases than what goes into an Appellant’s Brief because they can follow the logic, law, and analysis the trial court used when it decided the case in their favor in the first place. Further, they can develop and/or bolster the trial court’s reasoning by supporting it with additional cases and statutes on point. Frankly, most potential appellees want to file an Appellee’s Brief when they read and review the Appellant’s Brief; a sound Appellant’s Brief written by a skilled appellate attorney will at worst make some significant, strong arguments the trial court’s order is erroneous because of the number of cases and statutes cited and the ways a case argument to the contrary can be made under most any record. In other words, you (the winner in the trial court) might review the Appellant’s Brief and believe the trial court did err and believe you should have lost. That is good appellate writing. With an Appellee’s Brief and a solid brief writer, the Appellant’s Argument can sometimes be dissected to show flaws in legal reasoning. Thus, while the Appellant’s Brief might sound compelling, on closer review, it is not. Remember without filing an Appellee’s Brief, the Appellant’s Brief will be the only brief the Court of Appeals will have before it to use to decide the case. Thus, the decision not to file an Appellee’s Brief should not be taken lightly.
You might be asking what is in an Appellee’s Brief. The Appellee’s Brief contains the same sections and requirements on how it is to be structured as with an Appellant’s Brief. These are contained in the Indiana Rules of Appellate Procedure. Sometimes the Appellee agrees with the Appellant such as on the statement of the facts.2 Most of the difference is in the argument which must address just the arguments lodged by the Appellant,3 unless a cross-appeal is taken. If these sections and requirements of the Appellee’s Brief are important and of interest to you, you should visit the Appellant’s Brief section of our website.
Ciyou & Dixon, P.C. attorneys handle appeals for Appellants and Appellees from all final orders in civil cases throughout the State. In addition, the firm handles criminal appeals, and those taken from Indiana Federal District Court to the Seventh Circuit Court of Appeals in Chicago, Illinois. The firm also handles Writs of Certiorari to the United States Supreme Court. This blog is written to provide a general background. It is not intended as legal advice or a solicitation for services. It is an advertisement.