Oklahoma Bar Journal
Practical Tips for Civil Appellate Brief Writing in Oklahoma State Court
By Susan Beaty and Kellie Laughlin
When submitting an appeal to the Oklahoma Supreme Court, always look first to the Oklahoma Supreme Court Rules.1 The answers to a large majority of technical questions – when to file, what to include and where to submit – are included in the rules.2 Here we offer helpful tips for attorneys submitting appeals from final orders of district courts, with particular emphasis on appellate brief writing. The guidance provided herein is intended only as a “starter kit” for submitting an appeal and is not a comprehensive or exhaustive review of the rules. We include additional advice regarding style and tone in appellate briefs with the intention of providing insight into effective advocacy at the appellate level.3
GETTING STARTED – THE PETITION IN ERROR
Every appeal begins with filing a petition in error.4 Rule 1.21 includes the filing deadlines for appeals of various types of cases. Appellants are required to attach three exhibits to the petition in error: 1) a copy of the appealable decision from which they are appealing, 2) a one-page summary of the case; and 3) a list of issues to be raised on appeal.5 Appellees are similarly required to attach a one-page summary of the case to the response to the petition in error. The forms for the petition in error and response to petition in error are found in Rule 1.301.6
TO BRIEF OR NOT TO BRIEF: ACCELERATED APPEALS UNDER RULE 1.36
Before addressing appellate briefing, we first address a feature of appellate procedure that may cause some to breathe a sigh of relief: briefs are not required for every appeal. In fact, many civil appeals are decided without the aid of extensive written arguments and are instead adjudicated according to the accelerated appeals process enumerated in Rule 1.36.
The accelerated appeals process is available in three categories of appeals: 1) rulings on motions for summary judgment under District Court Rule 13; 2) orders granting dismissal for failure to state a claim; and 3) orders granting dismissal for lack of personal or subject matter jurisdiction.7 In these appeals, written briefs are not permitted unless the appellate court gives leave.8
While not having to prepare briefs in accelerated appeals may come as a welcome reprieve to many practitioners, there are instances in which counsel may still wish to submit briefs to the court. The existence of a complicated issue of law might be reason to request leave to file a brief. A party seeking leave of court to file briefs must do so by motion, and no briefs may be attached to the motion.9 The Supreme Court maintains discretion in determining whether to grant leave to file briefs in an accelerated appeal. The court clerk will not accept briefs in an accelerated appeal unless the court so permits.10 In the interest of conserving client and attorney resources, counsel should not attempt to submit briefs in an accelerated appeal without first seeking and receiving leave of court.
In all appeals not governed by the accelerated procedure, briefs are required.11 However, because briefs are not normally permitted in accelerated appeals, the petition in error is especially important in listing the issues on appeal and presenting a brief overview of the case.12 In an appeal where briefs are submitted, the exhibits attached to a petition in error serve as only a preliminary overview of the forthcoming briefs. In an accelerated appeal, however, the one-page summary of the case and the list of issues on appeal are the only opportunity for persuasion. Of course, as we will highlight regarding briefs, the summary of the case is never a place for bare legal argument. Still, a prudent attorney will utilize the permitted single page to not only present the facts and procedural history, but also highlight the most important issues of fact and law.
BEFORE YOU BRIEF – DESIGNATING THE RECORD ON APPEAL
Essential to any successful appellate brief is citation to a record supporting your claims of error.13 The Oklahoma Supreme Court Rules provide for the record on appeal to be created by the parties filing a designation of record. The appellate court’s review is limited to the instruments included in the record on appeal. 14 To be included in the record on appeal, those instruments must be designated by the parties.15 Indeed, “all parties to an appeal must designate a record.”16 Rule 1.28(a) sets out thorough instructions for how to properly designate your record for appeal.
Your designation of record must be filed in the district court and in the Supreme Court, as well as mailed to all parties.17 The appellant’s designation of record must be filed with the Supreme Court clerk either at the time the petition in error is filed there or at the time the designation of record is filed in the district court, whichever is later.18 The designation of record must be mailed to the other parties and filed in the district court either concurrently with or prior to filing the petition in error in the district court. If you have designated any transcripts, you must also give the designation of record, along with the cost of preparing the transcripts, to the court reporter. Within 20 days of the filing of the appellant’s designation, the appellee must file a counter-designation of record.19 The form for the designation and counter-designation is the same: Form 11 in Rule 1.301.20 Where the parties are in agreement as to which instruments should be designated for the record, they may file a single stipulated designation of record within 10 days of filing the petition in error.21 Rule 1.33 explains how and when the district court clerk assembles the designated record and files it with the Oklahoma Supreme Court clerk for consideration with your briefed argument.
Rule 1.28(b) gives direction for what items should be designated as well as what items may not be designated, both with an eye toward limiting the record to items relevant to the issues on appeal. First, the rule directs parties to designate only those instruments filed in the case which are pertinent. To reiterate this limitation, the rule states, “[N]o designation of record which generally includes the entire trial court record shall be filed without order of the Chief Justice.” Rule 1.28 also allows trial courts to penalize parties who designate excessive or unnecessary portions of transcript.22
Second, the rule expressly states which items shall not be included in the record:
The record on appeal shall not include the following unless upon order of the trial court or appellate court, or unless the document is specifically drawn in issue by the appeal: subpoenas, summonses, certificates of service, returns and acceptances of service, and procedural motions or orders (e.g., continuances, extensions or time, etc.). Depositions filed but not offered or admitted into evidence must be excluded from the record on appeal. Materials which were not before the trial court at the time of the decision appealed are not properly part of the record on appeal without order of the trial court of the appellate court.23
Transcripts of hearings or trial are often designated for the record in order to show alleged errors. Where the parties have not requested a court reporter or paid for a transcript, the rules allow the parties to file a narrative statement in lieu of a transcript.24 That rule provides specific procedures for obtaining the trial court’s approval before a narrative statement may be filed with the Supreme Court clerk. If you do not have a transcript, it may be well worth the effort to prepare and file a narrative statement to present a record supporting your claims on appeal.
When deciding which instruments to include in the designation of record, parties should be mindful of the applicable standard of review as well as the issues or errors alleged. Both will help parties determine which pleadings, testimony or exhibits will best support their claims on appeal. A case governed by a clear and convincing standard may well require more of a record than one determined by any competent evidence, although the type of errors alleged also impacts the record necessary to allow review of those errors. In briefs, “[q]uotations from the record must be accurate, in context, and reference the pages in the record where they appear.”25 Necessarily you will want to designate any instrument you intend to quote from in your brief.
WRITING THE BRIEF – SUMMARY OF THE RECORD
Once you have your assembled record and are ready to draft your appellate brief, look to Rule 1.11(e)(1) as a guide for drafting the summary of the record on appeal. The summary of the record is the second section of the brief, following the index:
The brief of the moving party shall contain a Summary of the Record, setting forth the material parts of the pleadings, proceedings, facts and documents upon which the party relies, together with such other statements from the record as are necessary to a full understanding of the questions presented to this Court for decision.26
The summary should be a direct and accurate explanation of the procedural history of the case; in other words, it should explain how the case was initiated and how it got to the appellate court. Statements in the summary of the record must be supported by reference to the record. Where a party intends to assert error in the admission or rejection of evidence or testimony, the testimony shall be set out in the summary of the record with citation to the record. Where a party intends to assert errors in the jury instructions,
the challenged instructions must be included in the summary of the record or in an appendix to the brief.
The summary of the record is not the place for argument or contentious language. In the summary of the record, the reviewing court wants a clear and accurate view of what happened. Rule 1.11(f) expressly directs the parties to include separate propositions of error later in the brief, not in the summary of the record. Additionally, it is unnecessary to include detailed explanation of parts of the record not relevant to the questions presented on appeal. Where you have diligently limited the record to relevant instruments, however, your summary of the record will likely include an explanation of each instrument and why it is relevant. The summary of the record prepares the reviewing court to better understand the allegations of error presented later in the brief.
WRITING THE BRIEF – WHAT’S THE ISSUE?
In beginning to draft an appellate brief, one of the most important tasks is also one of the most difficult: identifying the issue(s) on appeal.
As mentioned above, the first place in which an appellant lays out the issues on appeal (also referred to as “allegations of error”) is in an exhibit attached to the petition in error, consisting of a bullet-pointed list of issues to be raised.27 Of course, all issues raised before the appellate court must have first been considered and resolved by the trial court below.28 Additionally, though an issue is raised in the petition in error, it is waived if later omitted from the brief.29 Similarly, an issue raised in both the petition in error and the brief, but for which no authority is given in support, may also be waived.30 In the event that you unintentionally omit an issue from the petition in error, however, you may 1) file an amended petition in error, if the brief has not been filed; 2) seek leave to file an amended petition in error, if the brief has already been filed; or
3) simply include the omitted issues in the brief.31 The appellant’s brief-in-chief will be deemed to amend the petition in error to include any additional issues on appeal, so long as the issues were considered and resolved by the trial court.32 No issue may be raised for the first time in a reply brief.33
Still, the greatest difficulty arises not in determining where to list the issues on appeal, but in determining what issues to include. Supreme Court Rule 1.11(f) provides that in appellate briefs, “[t]he main contentions of the parties must be set forth in separate propositions” and authority supporting “each proposition must follow the statement of the proposition.”34 Rule 1.11(f) essentially requires that a brief be well organized and issues be clearly delineated. You should therefore ensure that every proposition is clear and distinct from the other main contentions and that supporting argument and authority properly follow the appropriate assertion.35
Occasionally, for fear that a viable issue might be forfeited on appeal, some attorneys adopt a scorched earth approach in listing and briefing issues on appeal. While it is important to include and support every major contention for which there is merit, it is also your duty to judiciously select and identify the issues raised.36 Though a party might list all possible issues on appeal in the list of issues attached to the petition in error, the brief should represent a more carefully crafted and distilled argument. As feasible, you should seek to present only a few main questions in your brief. Avoid conflating and confusing issues. A more intentional selection and identification of the issues prior to drafting the brief may help avert trouble.
FINAL THOUGHTS – PLAY NICE, KEEP IT SIMPLE
The tone with which an appellate argument is written can be nearly as important as its substance. When writing an appellate brief, attorneys must walk the fine line between maintaining persuasive value and sounding overly argumentative. As in trial practice, lawyers in appellate practice can stifle their own effectiveness by communicating in an excessively adversarial manner. Not only does this undermine the general goal of civility in the legal profession, but it also detracts from the overall effectiveness of the brief. A quick rule of thumb would be to generally omit words describing the opposing party or the lower court. With limited space for argument in a brief – only 30 pages37 – it is best to preserve every word in furtherance of your argument.
Finally, when drafting an appellate brief, remember to keep it simple. Though the idea of drafting an argument directed to the highest court in the state may conjure impulses to delve into the nuances of complicated legal inquiries and employ lofty legal jargon, the best briefs are those which capture the arguments as succinctly and simply as possible.38 An effective brief acts as an instruction manual guiding the court in the correct application of the law. As such, there is no need to muddy the waters with puffery or legalese. Distill it down and keep it straightforward.
The appellate court reviewing a trial court decision is bound by the record presented, the applicable standard of review and relevant authority. Focusing on these things in a clear, direct and simple fashion is your best bet. Plainly state how the trial court erred, accurately state where the error is shown in the record, explain why your client is entitled to relief and always use the Oklahoma Supreme Court Rules as your guide.
ABOUT THE AUTHORS
Susan Beaty is a staff attorney for Judge Kenneth L. Buettner of the Oklahoma Court of Civil Appeals. She is a member of the OBA Appellate Practice Section and a member of Oklahoma City Rotary Club 29. She is a graduate of the OU College of Law.
Kellie Laughlin graduated from the OU College of Law in 2018, where she served as an editor of the Oklahoma Law Review and competed in moot court. She is currently a staff attorney to Judge Kenneth L. Buettner of the Oklahoma Court of Civil Appeals
in Oklahoma City.
1. The Oklahoma Supreme Court Rules are found in Appendix 1 to Chapter 15 of Title 12 of the Oklahoma Statutes. 12 O.S. Supp. 2013 Ch. 15 App. 1. We cite to the Oklahoma Supreme Court Rules hereafter by citing simply to the appropriate rule number (e.g. “Rule 1.1”).
2. Special procedures regarding specific types of appeals from orders other than a final order from a district court, such as those from the Corporation Commission, Workers’ Compensation proceedings, Tax Commission, etc., are laid out with particularity in the rules.
3. The opinions expressed herein are the authors’ alone and do not represent the view of any court or member thereof. Judicial and professional opinions may differ regarding the persuasiveness of advocacy tactics addressed herein.
4. Rule 1.23(a)(1).
5. Rule 1.301 (Form 5).
6. Id., (Form 5)(form for petition in error), (Form 6) (form for response to petition in error).
7. Rule 1.36.
11. Rule 1.10(a)(1).
12. Choate v. Lawyers Title Ins. Corp., 2016 CIV APP 60, ¶54, 385 P.3d 670 (citing Siemens Fin. Servs., Inc. v. MTG Guarnieri Mfg., Inc., 2012 OK CIV APP 1, ¶8, 269 P.3d 36).
13. Hamid v. Sew Original, 1982 OK 46, ¶6, 645 P.2d 496 (“Legal error may not be presumed ... from a silent appellate record.”) (also explaining that, absent a record affirmatively showing error, the appellate court presumes that the trial court did not err).
14. Rule 1.33(d) (“The record on appeal shall consist only of those portions of ‘the entire trial court record’ properly designated by a party to the appeal or ordered by the appellate court.”).
16. A notable exception to this rule is in cases governed by the accelerated procedure outlined in Supreme Court Rule 1.36. In those cases, the parties themselves gather and file the record on appeal, rather than designating a record to be prepared by the district court clerk; though the record submitted still must be certified by the district court clerk. Rule 1.36(g).
Additionally, in the unusual case in which questions of law may be determined without reference to the trial court record, the parties may file a statement in lieu of a record on appeal. See Rule 1.31.
17. Rule 1.28(b).
19. Rule 1.28(c). Bear in mind that subsections 1, 2 and 3 of Rule 1.28(b) include different deadlines for filing the designation of record in three specific types of appeals.
20. Rule 1.28(b), (c). The rule notes that a different form will be used when the Oklahoma Uniform Case Management System is in effect. This article does not address procedures under that future scenario.
21. Rule 1.28(g).
22. Rule 1.28(b), (g).
23. Rule 1.28(b).
24. Rule 1.30.
25. Rule 1.11(j)(1).
26. Rule 1.11(e)(1).
27. Rule 1.301 (Form 5).
28. Rule 1.26(a); Dumas v. Conyer, 1968 OK 165, ¶20, 448 P.2d 835.
29. Rule 1.11(k)(1); Mangum Oil & Gas v. Mayabb, 2016 OK CIV APP 48, ¶15, 378 P.3d 1225 (citing Peters v. Golden Oil Co., 1979 OK 123, ¶3, 600 P.2d 330)(waiving issues raised in petition but omitted from brief ).
30. Id.; Badillo v. Mid Century Ins. Co., 2005 OK 48, ¶62 n. 18, 121 P.3d 1080 (citing State ex rel. Dep’t of Human Servs. v. Baggett, 1999 OK 68, ¶12 n. 5, 990 P.2d 235) (recognizing an exception to waiver of an issue unsupported by authority where the issue is well taken, but finding that an unsupported issue was not subject to the exception and was therefore waived).
31. Rule 1.26(a).
32. Rule 1.26(b) (citing Jackson v. Okla. Mem’l Hosp., 1995 OK 112 ¶5, 909 P.2d 765).
34. Rule 1.11(f).
35. Mazzio’s Corp. v. Bright, 2002 OK CIV APP 45, ¶¶18-19, 46 P.3d 201 (striking and denying consideration of portions of petitioner’s brief for failure to properly enumerate and support issues on appeal).
36. See Tenth Circuit’s Practitioner’s Guide (9th Rev., January 2018), Part VI(C)(2):
The statement of the issues or questions presented for review requires careful selection and choice of language. The main issue should be stressed and an effort made to present no more than a few questions. The questions selected should be stated clearly and simply. A brief that assigns a dozen errors and treats each as being of equal importance when some are clearly not lessens the stronger arguments. As Justice Frankfurter once said, a bad argument is like the clock striking thirteen,it puts in doubt the others.
37. Rule 1.11(b).
38. See Justice Ruth Bader Ginsburg, Gillian Metzger, Abbe Gluck, A Conversation with Justice Ruth Bader Ginsburg, 25 Colum. J. of Gender & L. 6 (2013) (“But one thing about writing a brief. You have to keep it simple. You have to remember that judges are overwhelmed with reading cases briefs ... [N]ever write a sentence that has to be read again to be understood.”).