Appellate Insights

Every appellate opinion must have a “disposition,” in which the court formally resolves the appeal.  Sometimes the disposition is a final judgment for one side, whether affirming or reversing the judgment below.  But many times, the court directs further proceedings on remand to the trial court.

One powerful way an appellant can improve its chance of success—and the efficiency of proceedings on remand—is to spell out exactly what relief the appellant wants.

• First, determine the best result available on appeal, given the procedural posture and the record.  Get very specific—e.g., which claims should go to trial (or re-trial) upon a reversal?  With what instructions or under what legal rule?
• Then draft the “disposition” to order that result.
• That disposition forms a much stronger Conclusion for the opening brief than the familiar (and obvious) “For the foregoing reasons, the Court should reverse and remand.”  Summarize it in your Introduction; and justify each part of it in your brief.  Busy appellate courts will appreciate the clarity.

►  The practical message:  It’s much easier for court readers to follow a brief that’s clear about where it’s going.  Every opening brief should tell the court precisely how the appellant wants the opinion to end.