Colo. R. App. P. 28

As amended through Rule Change 2024(7), effective April 4, 2024

Rule 28 - Briefs

(a)Appellant's Brief. The appellant's brief must be entitled "opening brief" and must contain the following under appropriate headings and in the order indicated:

(1) a certificate of compliance as required by C.A.R. 32(h);

(2) a table of contents, with page references;

(3) a table of authorities - cases (alphabetically arranged), statutes, and other authorities --with references to the pages of the brief where they are cited;

(4) a statement of the issues presented for review;

(5) a concise statement identifying the nature of the case, the relevant facts and procedural history, and the ruling, judgment, or order presented for review, with appropriate references to the record (see C.A.R. 28 (e));

(6) a summary of the arguments, which must:

(A) contain a succinct, clear, and accurate statement of the arguments made in the body of the brief;

(B) articulate the major points of reasoning employed as to each issue presented for review; and

(C) not merely repeat the argument headings or issues presented for review;

(7) the arguments, which must contain:

(A) under a separate heading placed before the discussion of each issue, statements of the applicable standard of review with citation to authority, whether the issue was preserved, and if preserved, the precise location in the record where the issue was raised and where the court ruled; and

(B) a clear and concise discussion of the grounds upon which the party relies in seeking a reversal or modification of the judgment or the correction of adverse findings, orders, or rulings of the lower court or tribunal, with citations to the authorities and parts of the record on which the appellant relies;

(8) a short conclusion stating the precise relief sought; and

(9) any request for attorney fees.

(b)Appellee's Brief. The appellee's answer brief must be entitled "answer brief" and must conform to the requirements of C.A.R. 28 (a) except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the appellant's statement. For each issue, the answer brief must, under a separate heading placed before the discussion of the issue, state whether the appellee agrees with the appellant's statements concerning the standard of review with citation to authority and preservation for appeal, and if not, why not. The answer brief must also contain any request for attorney fees or state any opposition to attorney fees requested in the opening brief.

(c)Reply Brief. The appellant may file a brief, which must be entitled "reply brief" in reply to the answer brief. A reply brief must comply with C.A.R. 28(a)(l)-(3), and must state any opposition to attorney fees requested in the answer brief. No further briefs may be filed except with leave of court.

(d)References in Briefs to Parties. Parties should minimize use of the terms "appellant" and "appellee." Parties should use the designations used in the lower court or agency proceeding, the parties' actual names or initials, or descriptive terms such as "the employee," "the injured person," or "the taxpayer."

(e)References to the Record. Reference to the record and to material appearing in an addendum to the brief should generally follow the format detailed in the "Court of Appeals Policy on Citation to the Record." Record references, including abbreviations, must be clear and readily identifiable.

(f)Reproduction of Statutes, Rules, Regulations, etc. If the court's determination of the issues presented requires the study of regulations, ordinances, or any statutes or rules not currently in effect or not generally available in an electronic format, the relevant parts may be reproduced in an addendum at the end of the brief.

(g)Length of Briefs.

(1) An opening brief and an answer brief must contain no more than 9,500 words. A reply brief must contain no more than 5,700 words. Headings, footnotes, and quotations count toward the word limitations. The caption, table of contents, table of authorities, certificate of compliance, certificate of service, and signature block do not count toward the word limit.

(2) A self-represented party who does not have access to a word-processing system must file a typewritten or legibly handwritten opening or answer brief of not more than 30 double-spaced and single-sided pages, or a reply brief of no more than 18 double-spaced and single-sided pages. Such a brief must otherwise comply with C.A.R. 32.

(3) A party may file a motion to exceed the word limitation explaining the reasons why additional words are necessary. The motion must be filed with the brief.

(h)Briefs in Cases Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including consolidated cases, any number of appellants or appellees may join in a single brief, and any party may adopt by reference any part of another's brief, but a party may not both file a separate brief and incorporate by reference the brief of another party. Parties may also join in reply briefs. In cases involving a single appellant or appellee with multiple opposing parties, the single party must file a single brief in response to multiple opposing parties' briefs. Except by permission of the court, such a brief is restricted to the page and word limits set forth in C.A.R. 28(g), regardless of the cumulative page and word counts of the opposing parties' briefs. Multiple parties represented by the same counsel must file a joint brief.

(i)Citation of Supplemental Authorities. If pertinent and significant new authority, including legislation, comes to a party's attention after the party's brief has been filed, a party may promptly advise the court by giving notice, with a copy to all parties. The notice must set forth the citation and state, without argument, the reason for the supplemental citation, referring either to the page of the brief or to a point argued orally. The body of the notice must not exceed 350 words. Any response must be made promptly and must be similarly limited.

(j) Notice of Settlement or Resolution. When the parties have agreed to settle or otherwise resolve a pending case, they must notify the court immediately.

C.A.R. 28

Source: IP(a), (b), (c), (g), and (h) amended March 17, 1994, effective 7/1/1994; entire rule amended and adopted December 4, 2003, effective 1/1/2004; entire rule amended and adopted February 24, 2005, effective 7/1/2005; (k) and committee comment added and effective 6/22/2006; (e) amended and effective 9/7/2006; (g) amended and effective 5/28/2009; entire rule and comments amended and effective 6/25/2015; amended and adopted by the Court, En Banc, February 24, 2022, effective 7/1/2022.

COMMENTS

2006

Compliance with subsection (k) does not warrant lengthy discussion but requires only the declaration of the applicable standard of review and the record reference to where the issue was preserved. The following are examples:

(1) An appellate court reviews the wording of an instruction for abuse of discretion, [cite case]. Because this is a criminal case and no objection was made or alternative instruction tendered in the trial court, the issue should be reviewed for plain error [cite case].

(2) The admissibility of expert testimony is reviewed for abuse of discretion, [cite case] This issue was preserved by appellant's offer of proof. R.______, p.______.

2015

Prior subsection (h) entitled, "Briefs in Cases Involving Cross-Appeals," has been deleted from C.A.R. 28. The substance of prior subsection (h) now appears in C.A.R. 28.1, which sets forth briefing requirements for cases involving cross-appeals.

Prior subsection 28(k) entitled, "Standard of Review; Preservation," has been deleted, but parties must continue to comply with its substantive requirements, which are now set forth in subsections 28(a)(7)(A) and (b). Compliance with subsections 28(a)(7)(A) and (b) does not warrant lengthy discussion but requires only the declaration of the applicable standard of review with citation to authority and the record reference to where the issue was preserved. The following are examples:

(1) An appellate court reviews the wording of an instruction for abuse of discretion, [cite case]. Because this is a criminal case and no objection was made or alternative instruction tendered in the trial court, the issue should be reviewed for plain error [cite case].

(2) The admissibility of expert testimony is reviewed for abuse of discretion, [cite case] This issue was preserved by appellant's offer of proof. R. CF, p.

The deletion of prior subsections (h) and (k) required the re-lettering of the substance of previous subsections (i), "Briefs in Cases Involving Multiple Appellants or Appellees," and (j) "Citation of Supplemental Authorities," to new subsections (h) and (i), respectively.

2022

The revisions to C.A.R. 28(a)(7)(B) do not establish additional requirements. Rather, the substance of the beginning portion of prior C.A.R. 1(d), entitled "Ground for Reversal, etc.," and which referenced C.A.R. 28(a), was relocated to C.A.R. 28(a)(7)(B).

ANNOTATION Law reviews. For article, "How Not to Write a Brief", see 22 Dicta 109 (1945). For article, "Supreme Court Proceedings: Rules 111-119", see 23 Rocky Mt. L. Rev. 618 (1951). For article, "Colorado Criminal Procedure - Does It Meet Minimum Standards?", see 28 Dicta 14 (1951). For article, "Appellate Procedure and the New Supreme Court Rules", see 30 Dicta 1 (1953). For article, "Some Observations on Colorado Appellate Practice", see 34 Dicta 363 (1957). For article, "Some Observations on Brief Writing", see 33 Rocky Mt. L. Rev. 23 (1960). For note, "Colorado Appellate Procedure", see 40 U. Colo. L. Rev. 551 (1968). For article, "Amendments to Appellate Rules Concerning Type Size and Word Count", see 34 Colo. Law. 27 (June 2005). For article, "Complying With C.A.R. 28 and 32", see 39 Colo. Law. 65 (November 2010). Where court could discern that certain issues manifested themselves from a search of the briefs, fact appellant's brief was deficient relative to the requirements of this rule did not require dismissal. Barr Lake Vill. Metro. Dist. v. Colo. Water Quality Control Comm'n, 835 P.2d 613 (Colo. App. 1992). Purpose of rules of court. Rules of court are for the purpose of enforcing an orderly and diligent preparation and submission of causes. La Junta & Lamar Canal Co. v. Fort Lyon Canal Co., 25 Colo. 515, 55 P. 728, motion to set aside order dismissing appeal granted, 25 Colo. 513, 55 P. 729 (1898). Requirements of this rule adopted as aid to court in disposing of causes. The requirements of this rule were not adopted merely for the protection or convenience of litigants, but in a large measure as aids to the court in disposing of causes submitted. Dubois v. People, 26 Colo. 165, 57 P. 187 (1899). Counsel cannot determine for themselves in what manner they shall prepare a case for hearing, in disregard of the requirements prescribed by the rules. Dubois v. People, 26 Colo. 165, 57 P. 187 (1899). Failure to comply with this rule may result in dismissal. Denver, W. & Pac. Ry. v. Woy, 7 Colo. 556, 5 P. 815 (1884); Meyer v. Helland, 2 Colo. App. 209, 29 P. 1135 (1892); McDonald v. McLeod, 3 Colo. App. 344, 33 P. 285 (1893); Hammond v. Herdman, 3 Colo. App. 379, 33 P. 933 (1893); Buckey v. Phenicie, 4 Colo. App. 204, 35 P. 277 (1894); Wilson v. People, 25 Colo. 375, 55 P. 721 (1898); Dubois v. People, 26 Colo. 165, 57 P. 187 (1899); Meldrum v. Bassler, 40 Colo. 506, 90 P. 1033 (1907); Knapp v. Fleming, 127 Colo. 414, 258 P.2d 489 (1953); Waters v. Culver, 130 Colo. 360, 275 P.2d 936 (1954). Or affirmance of judgment. A judgment may be affirmed upon appellant's failure to comply with the requirements for printing briefs. Mitchell v. Pearson, 34 Colo. 281, 82 P. 447 (1905). General composition of briefs. Gardner v. City of Englewood, 131 Colo. 210, 282 P.2d 1084 (1955). Length and contents of appellate briefs. It is neither necessary nor advisable that every previous procedural move and ruling be presented to the appellate court. Only those procedural steps which are relevant to the issues raised in the appellate court need be recited. People v. Galimanis, 728 P.2d 761 (Colo. App. 1986). For when the limit on length may be modified, see People v. Galimanis, 728 P.2d 761Colo. App. 1986). Rule does not extend an open invitation to counsel to conduct additional research after the close of briefing and then present the fruits of such research to the court on the eve of argument. Glover v. Innis, 252 P.3d 1204 (Colo. App. 2011). Sufficient statement of the case is presented by relating only the facts material to a decision. F. W. Woolworth Co. v. Peet, 132 Colo. 11, 284 P.2d 659 (1955). This rule requires a statement in the brief of the facts material to a decision of the case. Lowe v. United States Fid. & Guar. Co., 171 Colo. 215, 466 P.2d 73 (1970). Rule provides for a summary of argument. Farrell v. Bashor, 140 Colo. 408, 344 P.2d 692 (1959). Appellant required to set out part of record supporting contentions of error. The elimination of the requirement of an abstract of the record does not relieve the appellant of the duty of setting out such parts of the pleadings, the evidence, the findings, and the judgment as are required to support his contentions of error. In re Hay's Estate, 127 Colo. 411, 257 P.2d 972 (1953). As court will not search through briefs to discover errors and supporting evidence. The court will not search through briefs to discover what errors are relied on, and then search through the record for supporting evidence. It is the task of counsel to inform the court, as required by the rules, both as to the specific errors relied on and the grounds and supporting facts and authorities therefor. Mauldin v. Lowery, 127 Colo. 234, 255 P.2d 976 (1953); Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo. App. 1991); Castillo v. Koppes-Conway, 148 P.3d 289 (Colo. App. 2006). Where a taxpayer appeals from an adverse decision in a quo warranto action challenging right of member of the federal rent advisory board to hold office as a city councilman and the federal statutes were not quoted or cited or summarized or analyzed in the record or in the taxpayer's brief, the appellate court will not search through the federal statutes to find grounds of technical disability in order to remove the councilman from office. People ex rel. Miller v. Cavender, 123 Colo. 175, 226 P.2d 562 (1950). Argument that is merely a bald assertion of error violates section (a) of this rule and is not properly presented for review. Sinclair Transp. Co. v. Sandberg, 2014 COA 76M,__P.3d__. Brief held inadequate. Mauldin v. Lowery, 127 Colo. 234, 255 P.2d 976 (1953); In re Hay's Estate, 127 Colo. 411, 257 P.2d 972 (1953); Westrac, Inc. v. Walker Field, 812 P.2d 714 (Colo. App. 1991); Castillo v. Koppes-Conway, 148 P.3d 289 (Colo. App. 2006). Scurrilous brief attacking trial judge stricken. Knapp v. Fleming, 127 Colo. 414, 258 P.2d 489 (1953). Briefs stricken and appeal dismissed due to uncivil language and inadequate argument. Martin v. Essrig, 277 P.3d 857 (Colo. App. 2011). Applied in Barlow v. Staples, 28 Colo. App. 93, 470 P.2d 909 (1970)..