Form And Content Of Appellate Briefs

Article by Thomas R. Newman and Steven J. Ahmuty, Jr.

This article originally appeared in the New York Law Journal

The form and content of briefs filed in New York Court of Appeals and the four departments of the Appellate Division is prescribed by CPLR 5528 and 5529 as supplemented by the individual rules of those courts. CPLR 5529(a)(3) authorizes each appellate court, "by rule applicable to practice therein," to prescribe the format, type size and length of briefs. Apart from the two CPLR sections, there are no state-wide uniform rules of appellate procedure. Practitioners familiar with the rules in one court cannot assume that they will be the same in another. There are differences and, in each case, the rules of the court to which the appeal is taken should be consulted. The clerks may refuse to accept for filing any briefs that do not comply with the court's rules.

General Requirements

Briefs shall be on 8 1/2-inch by 11-inch white paper and may be reproduced by any method that produces a permanent, legible black image on white paper and secure binding on the left side. Letter press printing is no longer required.1 Requirements differ among departments in terms of the size of the words. The requirements in the First and Second departments distinguish between proportionally spaced typeface (in which the sizes of the letters vary in width) and monospaced typeface (in which all letters are the same size).

In the First and Second departments, if proportionally spaced typeface is used, it shall be no less than 14 point size, except footnotes (where permitted) shall be no less than 12 point size; monospaced typeface shall be no less than 12 point size and footnotes no less than 10 point size. In the Fourth Department, all words shall be no less than 11 point size.2

Section 5528(a) of CPLR states that the appellant's brief is to contain, in the following order, (1) a table of contents, which shall include the contents of the appendix, if it is not bound separately; (2) a concise statement, not exceeding two pages, of the questions involved without names, dates, amounts or particulars, with each question numbered, set forth separately and followed immediately by the answer, if any, of the court from which the appeal is taken; (3) a concise statement of the nature of the case and of the relevant facts, with supporting record references; (4) the legal argument divided into points with appropriate headings "distinctively printed" (i.e., capital letters in bold type); and (5) an appendix, which may be bound separately, containing only such parts of the record on appeal as are necessary to consider the questions involved, "including those parts the appellant reasonably assumes will be relied upon by the respondent." If the appellant is proceeding on a full record on appeal pursuant to CPLR 5526, an appendix is not required.

In the Appellate Division, First and Second departments, the appellant's brief shall also contain the statement required by CPLR 5531 (Description of action); in the First Department as an addendum at the end of the brief,3 and in the Second Department at the beginning of the brief.4 In the First and Second departments, if the court has dispensed with a printed, reproduced or typewritten record and has permitted the appeal...