Inadequate Briefing Will Cost You Your Appeal

Writing a brief for a Texas family law appeal – or for that matter, any kind of an appeal – is a technical project. You can’t just freestyle a brief like you can in a trial court. Rule 38.1 of the Texas Rules of Appellate Procedure lays out the requirements for a brief. The clerk of court will bounce your brief if you don’t meet these requirements. Moreover, inadequate briefing can result in waiving the issues you want to appeal.

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Requirements for Briefs

Rule 38.1 requires that an appellant’s brief contain the following sections:

  • Identity of Parties and Counsel
  • Table of Contents
  • Index of Authorities
  • Statement of the Case
  • Statement Regarding Oral Argument
  • Issues Presented
  • Statement of Facts
  • Summary of the Argument
  • Argument
  • Prayer
  • Appendix

Inadequate Briefing

Rule 38.1(i) – the “Argument” section from above – states:

The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.

Thus, the brief must contain (1) the argument; (2) citations to statutes, cases, etc. that support the argument; and (3) citations to the Reporter’s Record or the Clerk’s Record to support the argument. Parts (2) and (3) are where attorneys tend to get into trouble.

Example of Inadequate Briefing

A recent Texas family law appeal describes an example of inadequate briefing. In that case, according to the court of appeals, the appellant,

in his brief, does not provide us with a clear and concise argument, substantive analysis, or appropriate citations to authorities and the record to support his sufficiency argument. His conclusory statements, which simply state that there is no evidence to support the judgment, are not enough.

The issues that were inadequately briefed? Deemed waived, and therefore not considered by the appellate court.

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