Why an Appellate Attorney Should Always Take the Brief in Opposition Seriously

Posted on 17 June, 2014 at 14:25

If you are an appellate attorney who is representing the Respondent or Appellee, you will soon see the importance of writing a strong Brief in Opposition. In most instances, writing the Brief in Opposition is usually a much easier task than the Appellant’s Brief. Why? Well, you already have a victory in place in the lower court. As a result, the odds generally favor an affirmance over a reversal - so the odds are with you. However, as an appellate attorney, you must always keep in mind that Appellate Courts can and will reverse a lower court’s decision. Consequently, your job with the Brief in Opposition is to preserve the victory you obtained in the lower court. This requires that the Brief in Opposition strongly presents why an affirmance should be issued by the Appellate Court.


Your job in the Brief in Opposition is to discount the Appellant’s Brief and to reaffirm that a just result was rendered at the trial court level. Appellate attorneys know that there are certain ways to discount the Appellant’s Brief. First, attack the cases cited by the Appellant as inconsequential or irrelevant. This step takes hours of work. The appellate attorney should always check each and every citation in the Appellant’s Brief. Many times attorneys cherry pick quotes or completely miscite the law. As an appellate attorney, it is your job to draw this to the attention of the Appellate Court. Second, put forward the argument that the lower court’s decision, even if flawed, was the proper and just verdict. Many times an attorney representing a client on appeal is not an appellate attorney and spends countless pages in the Appellant’s Brief citing non-prejudicial error as the basis for a reversal. Remember, Appellate Courts are concerned with prejudicial error, and it is prejudicial error that the court seeks to redress through a reversal. Third, remind the Appellate Court that a significant amount of time and legal resources have already been expended on the case requiring that the Appellate Court respect the lower court’s decision.


Again, the Respondent or Appellee usually has an easier job in the Appellate Court. The odds are certainly with you, but do not rest on your laurels. If you wish to retain your legal victory, you must produce a professional and powerful brief. Otherwise, your victory may be fleeting as your case gets reversed by the Appellate Court. 


Written by:    Alexandra Siskopoulos, Esq.

Telephone:    (646) 942-1798 

Email:            [email protected] 


Disclaimer: This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Categories: Appellate Attorneys

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