by Connor Nelson
Introduction
Appellate courts require parties to provide them with "adequate" briefs - briefs that cite the record and relevant authorities and give well-developed arguments and well-reasoned analysis in favor of the party's position. Hess v. Canberra Dev. Co., LC, 2011 UT 22, ¶ 25, 254 P.3d 161. The Rules of Appellate Procedure, specifically Appellate Rule 24, have tended to dominate earlier discussion of adequate briefing. However, just like other attorneys, appellate counsel also operate under the Rules of Professional Conduct. And those rules impose responsibilities on appellate counsel, such as the duty of candor, which reinforce the requirements in Appellate Rule 24. Together, procedural and professional conduct rules create more robust briefing requirements than Appellate Rule 24 alone - a set of requirements that this article calls "the complete adequate briefing standard." Briefing that satisfies the complete adequate briefing standard more accurately and comprehensively argues issues while also embracing the duty of candor required of all counsel. This article examines the briefing requirements in Appellate Rule 24, the duty of candor from Professional Conduct Rules 3.1 and 3-3 together, then elaborates on the complete adequate briefing standard all the rules establish.
Rule 24, Utah Rules of Appellate Procedure
Appellate Rule 24 governs adequate briefing by establishing what a brief must contain, in terms of both the facts of the case and controlling authority. This Rule is the foundation for adequate briefing. At the very least, a party's brief needs to give the appellate court citations to the facts and law, as well as provide sufficiently thorough analysis for it to rule in favor of the party's position. The procedural rules' requirements "serve to focus the briefs, thus promoting more accuracy and efficiency in the processing of appeals." Bums v. Summerhays, 927 P.2d 197,199 (Utah Ct. App. 1996) (cleaned up).
Appellate Rule 24(a) (6) states that appellate briefs "must include, with citations to the record," the facts and procedural history "to the extent necessary to understand the issues presented for review." See also Utah R. App. P. 24(e) (1). This first requires fairly construing the decision appealed from. See In re Discipline of La Jeunesse, 2018 UT 6, ¶¶ 27-29, 32,416 P.3d 1132; In re Discipline of Spencer, 2022 UT 28, ¶¶ 13-23, 513 P-3d 759-The parties then need to explain the context and substance of the dispute. See Lamb v. Lamb, 2024 UT App 16, ¶ 18, 545 P.3d 273-While some lower court decisions have a significant impact on the issues presented on appeal, others make no meaningful difference. For an appellate court to understand the proceedings below, it needs to know what significant decisions and details shaped the outcome. For example, a ruling to admit evidence may matter a great deal if that evidence ultimately persuaded the lower court, so details about that evidence should be included in the brief.
The appellate court does not "reweigh the evidence and independently choose winch inferences it finds to be the most reasonable." Benge v. Cody Ekker Constr., 2019 UT App 164, ¶ 9, 451 P.3d 667 (cleaned up). Instead, the parties must use the previous decision maker's version of events, not a party's preferred version, for contextualizing the appeal. Omitting key facts or misconstruing them distorts the picture of what happened below into something different than the record supports. Tessa L. Dysart, Leslie H. Southwick, & Ruggero J. Aldisert, Winning on Appeal: Better Briefs and Oral Argument 192 (3d ed. 2017). In other words, inaccurately conveying the facts in a brief is like asking the court to review a different case than the one submitted for review.
Next, Appellate Rule 24(a) (8) states that a brief must "explain, with reasoned analysis supported by citations to legal authority and the record, why" the party "should prevail on appeal." This subsection embraces a party's appellate argument - applying law to the facts and decision under review to show why a decision should be reversed or affirmed. It imposes the expectation that parties do their own work to advance an argument, rather than outsource that work to the appellate court. Salt Lake City v. Kidd, 2019 UT 4, ¶ 35, 435 P.3d 248; State v. Christensen, 2016 UT App 225, ¶ 35, 387 P.3d 588 (Briefs are inadequate when their "overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court." (cleaned up)). To that end, when a brief "merely contains bald citations to authority without development of that authority and reasoned analysis based on that authority," the brief is inadequate under Appellate Rule 24(a) (8). State r. Timmerman, 2009 UT 58, ¶ 25 n.5, 218 P.3d 590 (cleaned up).
CONNOR NELSON is an Assistant Solicitor General in the Utah Attorney General's Office. The views expressed herein are his own and do not reflect the position of the Attorney General or the Attorney General's Office.
Not every issue requires lengthy analysis. One issue may be sufficiently argued hi "only one sentence without any citations to legal authority or to the record," while another may need "dozens of pages of argument including volumes of authority and citations to the record." Bank of Am. v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d 196. But see Utah R. App. P. 24(a)(8) (requiring citations to the record and authority to argue a claim). But no matter an issue's complexity or the amount of argument needed, the touchstone for adequate briefing remains the same: providing the court with "a sufficient argument for ruling hi [a party's] favor." Bank of Am., 2017 UT 2, ¶ 12 (quoting State v. Nielsen, 2014 UT 10, ¶ 41, 326 P.3d 645); see also Utah R. App. P. 24(a)(8).
Rules 3.1 and 3.3, Utah Rules of Professional Conduct
The Rules of Professional Conduct apply to all attorneys' conduct, including during an appeal. Utah R. Pro. Cond. Preamble. Two rules describing the duty of candor apply to how appellate counsel draft briefs: Rules 3-1 and 3-3.
Professional Conduct Rule 3-1 states that a lawyer "shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good-faith argument for an extension, modification or reversal of existing law." This rule imposes a straightforward expectation on appellate counsel not to raise groundless issues and to limit their briefing "to a discussion of only those issues with some chance of success." In re C.I.E., 1999 IT App 183, 1999 WL 33244612 at * 1 (mem.). Appellate Rule 33(b) likewise imposes the requirement that appellate counsel not advance frivolous claims in an appeal. Utah R. App. P. 33(b); see also L.C. v. State, 963 P.2d 761, 765 n.5 (Utah 1998); C.R. England v. Labor Comm'n, 2024 LT App 170, ¶ 54, 561 P.3d 213. Its definition of frivolity parallels Professional Conduct Rule 3.1's definition. See Utah R. App P. 33 (b) ("For the purposes of these rules, a frivolous appeal, motion, brief, or other document is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law."); Utah R. Pro. Cond. 3-1. In civil cases, appellate courts can sanction parties who file briefing deemed frivolous to pay the opponent's expenses for conducting the appeal. Utah R. App. P. 33(a), 34. And the appellate court retains the power to sanction any attorney practicing before it for rule violations. Utah R. App. P. 40(c).
Professional Conduct Rule 3.1 allows lawyers to defend criminal cases where incarceration is possible in such a maimer "as to require that every element of the case be established." Utah R. Pro. Cond. 31, cmt. 3- But the rule does not permit a criminal defense lawyer to raise truly legally frivolous positions - positions that have no basis in law or fact or are not supported by a good-faith argument for extending the law - for a criminal defendant. § 3-1-1 (b)—(c) Meritorious Claims and Frivolous Positions, Legal Ethics, Law. Deskbk. Pro. Resp. (2023-2024 ed.) (observing limits on criminal defense arguments under Professional Conduct Rule 3-1).
Professional Conduct Rule 3.3(a) provides that a lawyer
shall not knowingly or recklessly: (1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; or (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction directly adverse to the position of the client and not disclosed by opposing counsel.
Like the candor expected of attorneys in other contexts, this rule imposes the requirement that appellate counsel be forthright when disclosing and relying on facts and the legal authority in a brief. See id. The rule creates no exceptions by practice area; every attorney is required not to make false statements of fact and to disclose adverse controlling authority when making an argument. Id.
Professional Conduct Rule 33 offers straightforward direction to disclose "legal authority in the controlling...
