REQUIREMENTS AND BEST PRACTICES FOR FILING BRIEFS IN THE GEORGIA APPELLATE COURTS GABWA s Trial Masters Bootcamp August 17, 2013 BY MONICA R. OWENS, ESQ. 1. Review the rules before filing or making an appearance before the Court. Review the Appellate Practice Act, codified at O.C.G.A. 5-6-30 et seq. Review the Courts Rules. Since the Courts occasionally amend their rules, it is highly recommended that practitioners read the recent amendments and the effective dates of the amendments before preparing and submitting filings. Review the Courts e-filing instructions. Updated versions of the rules can be found on the Courts respective websites-- www.gaappeals.us and www.gasupreme.us. 2. Comply with the Courts formatting requirements. Generally, both Courts require that documents and briefs be filed on letter size (8 ½ x 11 ) white paper; have double-spacing between the lines; and have a font size no smaller than 10 characters per inch (12-point courier) or Times New Roman Regular 14 pt (Western). See Ga. Ct. App. Rule 1 (c); Ga. Sup. Ct. 16-18. Complying with the formatting requirements is crucial. Judges and their staff attorneys must read large volumes of documents on a daily basis. Practitioners should ensure that filings are easy to read. 3. Calculate and calendar the filing deadlines that apply in the case. Do not procrastinate in submitting the filings. Begin the process of drafting the brief far
in advance of the deadline in order to accommodate delays caused by writer s block, distractions, and unexpected complications. E-filings are deemed filed on the date that they are electronically submitted. See Ga. Ct. App. Rule 4 (b); Ga. Sup. Ct. 13. Generally, paper filings are deemed filed when they are physically received in the Clerk s Office with sufficient costs, if applicable. See Ga. Ct. App. Rule 4; Ga. Sup. Ct. 13. When the Clerk s Office at Court of Appeals is not open, it has a drop box for delivering documents available inside the street entrance to the 47 Trinity Avenue Building between 7:00 a.m. and 5:00 p.m. See Ga. Ct. App. Rule 4 (a). For paper filings, the Courts also allow filings by mail. A filing by mail is deemed filed on the date shown by the official postmark by the U.S. Postal Service (not by a private or commercial postage meter), or on the commercial carrier s transmittal form or envelope, if properly addressed, postage prepaid, and the postmark or transmittal date is legible. See Ga. Ct. App. Rule 4 (c); Ga. Sup. Ct. 13 (1). Appellant s and cross-appellant s brief is due within 20 days after the case is docketed. See Ga. Ct. App. Rule 23 (a); Ga. Sup. Ct. 10. Appellee s and cross-appellee s brief is due within 40 days after docketing or 20 days after the filing of an appellant s or crossappellant s brief. See Ga. Ct. App. Rule 23 (b); Ga. Sup. Ct. 10. The Court of Appeals allows the filing of an appellant s reply brief within 20 days from the filing of an appellee s brief. See Ga. Ct. App. Rule 23 (c). The Supreme Court allows the filing of supplemental briefs at any time before decision. See Ga. Sup. Ct. 24. A motion for reconsideration must be filed within 10 days of the decision. The motion is deemed filed only on the date on which it is physically received in the Clerk s Office. The mailbox rule, set forth in Ga. Ct. App. Rule 4 (a), (c) and Ga. Sup. Ct. 13 (1), does not apply. See Ga. Ct. App. Rules 4 (e), 37; Ga. Sup. Ct. 13, 27.
A request for extension of time must be in writing and must be received before the time for filing has expired. In the Court of Appeals, an extension must be requested by motion. In the Supreme Court, a request should be directed by letter to the Clerk sufficiently in advance of the due date so that the brief can be timely filed if the request is denied. Since extensions are subject to the Court s discretion, any request should specify the unusual circumstances that justify presenting the request. An extension must be granted by Court order or letter; an oral extension is not recognized. See Ga. Ct. App. Rule 16 (b); Ga. Sup. Ct. 12. 4. Review the filing before it is submitted to confirm that all filing requirements have been met. Confirm that the filing has been properly signed. Conformed or stamped signatures, or signatures by express permission are not allowed. All filings must be signed by the submitting attorney and provide his or her State Bar of Georgia membership number. See Ga. Ct. App. Rule 1 (a). Confirm that a certificate of service has been attached to show service upon the opposing party. All documents shall show that copies have been furnished to opposing counsel. Service shall be made before filing. Any document without a certificate of service shall not be accepted for filing. See Ga. Ct. App. Rule 6; Ga. Sup. Ct. 14. Confirm that the correct amount of filing fees, an affidavit of indigence, or a form showing the appointment of a public defender to represent the party has been included. Costs are $80 in all criminal cases and habeas corpus cases; $300 in all civil cases. Costs must be paid upon filing the application or filing the appellant s brief in direct appeals. See Ga. Ct. App. Rule 5; Ga. Sup. Ct. 5.
5. Prepare the brief using the proper Structure and Content. Following the structure set forth in the Rules will help with the organization of the brief. The Court of Appeals has specific rules governing the structure of briefs. See Ga. Ct. App. Rules 22 and 25 (a)- (c) (1). Appellant s Brief shall consist of 3 parts: Part One- (a) Statement of Proceedings Below (setting forth the relevant filings and procedural posture); (b) Statement of Material Facts (focusing on the facts that are relevant to the appellate issues; each fact should be supported by citations to the record or transcript); (c) Preservation of Errors (statement showing how each enumeration of error was preserved for appellate review, i.e., objections, motions, and court rulings; the purpose of this part is to show that the error raised has not been waived). Part Two- Enumeration of Errors Specify the objections or motions and the trial court s rulings or orders to properly identify the errors allegedly made by the trial court. Include a statement of jurisdiction that explains why the Court of Appeals, rather than the Supreme Court, has jurisdiction to decide the appeal. The jurisdiction of each Court is set forth in the Georgia Constitution. Court of Appeals: Ga. Const. of 1983, Art. VI, Sec. V, Para. III. General appellate jurisdiction in all cases not reserved to the Supreme Court or conferred on other courts by law. Supreme Court: Ga. Const. of 1983, Art. VI, Sec. VI, Para. II-V. Exclusive appellate jurisdiction in cases involving: (1) construction of a treaty or the Constitution of the State of Georgia or of the United States,
or constitutionality questions of a law, ordinance, or constitutional provision; and (2) election contests. General appellate jurisdiction in cases involving: (1) title to land; (2) equity; (3) wills; (4) habeas corpus; (5) extraordinary remedies; (6) divorce and alimony; (7) certifications from the Court of Appeals; (8) death penalty; (9) questions of law from any state appellate or federal district or appellate court and (10) certiorari from the Court of Appeals which are of gravity or great public importance. Sometimes jurisdictional issues can be complex. Review the Courts cases that analyze and determine jurisdictional issues. If an appeal is filed in the wrong Court, it will be transferred to the proper Court. See Ga. Ct. App. Rule 11 (b), (c); Ga. Sup. Ct. 32 (interlocutory appeals) and 35 (discretionary appeals). Part Three- Argument and Citation of Authorities (following the order of the Enumeration of Errors) Include the standard of review applicable for each issue presented; a list of standards of review generally applicable in criminal, civil, and special civil cases may be found on the Georgia Court Appeals website at www.gaappeals.us. Example: Grant of summary judgment. On appeal of a grant of summary judgment, the appellate court must review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998). Appellee s Brief shall consist of 2 parts: Part One- Statement of Facts pointing out material inaccuracies or incompleteness in the appellant s brief and any additional facts deemed necessary, including additional
citations to the record or transcript supporting the appellee s statement of facts; If the appellant s facts are not controverted, they will be accepted by the Court as true. Part Two- Argument and Citation of Authorities as to each enumeration of error Include the standard of review if different from that contended by the appellant. Although the Supreme Court does not prescribe a particular arrangement for briefs and filings, it is recommended that the following structure be used: I. Jurisdiction; II. Judgment appealed and date of entry; III. Brief statement of facts showing general nature of the case; IV. Enumeration of errors; V. Argument in the sequence of the enumeration of errors; VI. Citation of authorities; VII. Certificate of service. See Ga. Sup. Ct. 19. 6. Support each claim with accurate citations of legal authority and citations to the record and transcripts. A practitioner should be a master of the record in his or her case, and should perform legal research to develop comprehensive knowledge of the legal precedent relevant to the issues presented in the appeal. It is highly recommended that a practitioner spend time analyzing the facts as established by the evidence, procedural posture of the case, and the caselaw governing the issue. Address any underlying procedural issues that may impact the analysis of the primary issue. The brief should provide clarity as to the issues that must be determined in the appeal. Moreover, there should be no need for the Courts to sift through the records in order to locate the pleadings or evidence being
cited in the briefs. The failure to file a proper brief could result in an unfavorable decision. Enumerations of error which are supported by citations of authority or argument may be deemed abandoned. See Ga. Ct. App. Rule 25 (c); Ga. Sup. Ct. 22. Claims must be supported by specific references to the record or transcript in order to be considered. See Ga. Ct. App. Rule 25 (c) (2) (i). References should be indicated by specific volume or part of the record (R), transcript (T), or motion transcript (MT). See Ga. Ct. App. Rule 25 (c) (2) (iii); Ga. Sup. Ct. 19. Examples: Vol. 1, R-1 (referencing volume 1 of the record, page 1); Vol. 2, T-10 (referencing volume 2 of the transcript, page 10); Vol. 3, MT-10 8/12/2013 (referencing volume 3 of the motion transcript, page 10 from the hearing held on August 12, 2013). 7. Exclude unnecessary details in the facts and arguments. Briefs should be concise. Be direct and get to the point quickly. The page limits for briefs and responsive briefs are 30 pages in civil cases and 50 pages in criminal cases. Reply briefs filed in the Court of Appeals are limited to 15 pages. Tables of contents, tables of citations, cover sheets and certificates of service are not counted toward the page limit. See Ga. Ct. App. Rule 24 (f); Ga. Sup. Ct. 20. There is no need to continue writing until the page limit is reached. Rambling or redundant statements frustrate the reader. Inclusion of extraneous facts and frivolous issues tends to obscure critical issues. Ga. Sup. Ct. 19. 8. Organize the arguments. Develop a theory of the case as to each issue.
Make the strongest arguments first. Outline the arguments as to each issue. Also, anticipate the opponent s arguments; determine how the arguments will be rebutted and where the arguments will be presented in the brief. Outline the opponent s brief. The purpose is to recognize the opponent s arguments and ensure that each argument is rebutted. 9. Edit the brief. Correct errors before submitting the brief to the Court. Read the brief aloud to ensure that it flows and properly conveys the intended meaning. Have a third person who is not familiar with the case read the brief for clarity and errors. 10. Do not file an appeal solely for the purpose of delay or harassment. If legal precedent clearly reflects that no error occurred, do not waste time and resources filing the appeal unless there are valid grounds for requesting a new rule or overruling prior precedent. The Courts rules authorize the imposition of sanctions for frivolous appeals against the offending party and counsel in the maximum amount of $2,500.00. See Ga. Ct. App. Rule 15 (b), (c); Ga. Sup. Ct. 6.