Throughout my seventeen years as appellate counsel in the Pennsylvania office of Counsel Press, I have noticed several recurring themes regarding appellee briefs. One theme in particular stands out as a common mistake which can reduce the effectiveness of your response to appellants’ arguments: the failure to keep things simple.Perhaps the most basic tenet of appellate practice is for the appellant to focus exclusively on issues that merit the appellate court’s involvement. All too often, appellants succumb to arguing why they should have been successful at trial, instead of sticking solely to what legal errors committed at trial merit its results being overturned. Counsel for appellants are always well-advised not to waste an appellate court’s time by arguing the merits of the client’s underlying case, thereby attempting to “get another bite at the apple.”
The question then arises: how should the appellee respond when an appellant fails to heed this advice? How should issues which have no business being in front of the appellate court be discussed and countered? It is common, and all too natural, to answer the appellant’s argument point-for-point, going into as much detail as necessary to defend the results of the lower court proceeding.
When faced with arguments not related to legitimate issues on appeal, however, less becomes more. Instead of instinctively countering each argument raised by the appellant, an appellee should first weigh each point’s legitimacy as a proper issue on appeal. By definition, the appellee is defending the results of the trial court proceeding. The underlying tone of their brief should therefore be that 1) the lower court found in their favor; 2) the judge drafted an opinion stating why it found in their favor; and 3) the appellant’s brief contains nothing that rises to the level of reversible or remandable error.
Certainly an appellee must answer in detail all legitimate issues raised by the appellant. But for issues that do not merit the appellate court’s involvement, it is typically best to succinctly dismiss them. Countering such issues in detail runs the risk of bestowing legitimacy on them and should be avoided.