Fixing Errors in a Brief That You Have Already Filed

24 Oct Fixing Errors in a Brief That You Have Already Filed

[2:50 minutes to read] We just had an incident with an attorney that sheds light on an important subject: how to fix an error in a brief that has already been filed.

At first, with this client of ours, everything went fine, from soup to nuts: from the time we got the case, to getting a draft back to him to plug the record sites into his main appellant brief, to our serving and filing it and giving him proof of service in filing. The client was happy with our service. After serving and filing the brief, the higher-ups in the law firm decided to look at the brief, and they realized it was a draft; it was not the final version that was approved. Panic ensues, because this is not the argument the firm wanted to set forth on their client’s behalf before the Court.

Is this an error that can be fixed, or have they totally sunk the boat? What can they do?

• The answer in the Appellate Division, First through Fourth Departments, is that as long as the main appellant and respondent are not changing their argument, the Court does understand that human and typographical errors happen. The easiest way to fix them would be to stipulate that these changes were made because of typographical errors. It is very straightforward, not a long legal treatise. The Court will say, “Okay, not a problem. We will take it.” A brief correcting typographical errors (not changing the argument) will be accepted by the Court as a replacement.  

• The Second Circuit Court of Appeals also understands human errors. The main appellant and respondent would have to submit the corrected brief with a letter to the Court explaining what the problem was. When they serve and file a brand new brief and submit it to the Court, the docket sheet will say that there was a typographical error, or whatever wording the Court chooses to use, and that the Court is accepting a new brief.

Thankfully, we were able to intercede in this instance, and we now have a very happy client. Human errors in the filing of briefs are not insurmountable, particularly if they are caught early. The team at Appellate Innovations is here to help our clients with these kinds of questions and problems. Contact us today with questions or comments.

Liza Bobo
APPELLATE INNOVATIONS
3 Barker Avenue, 2nd Floor
White Plains, NY 10601
Phone: (914) 948-2240