Inadequate Briefing and Denial of Appellate Review

By Kenneth J. Bartschi

It should go without saying that obtaining appellate review requires considerable effort on the parties seeking resolution of their issues. Numerous pitfalls can prevent review of part or all of an appeal. Until the 2013 amendments to Practice Book § 61-10, a frequent means of forfeiting review was the failure to seek articulation of an ambiguity in the record. See, e.g., Blum v. Blum, 109 Conn. App. 316 (2008) (precluding review where record did not reveal the court’s reasoning and appellant did not seek articulation). Since 2013, appellate courts will not refuse to review claims solely because of the lack of an articulation. See § 61-11(b). Nevertheless, there are other ways to forfeit review. One – inadequate briefing – seems lately to be a more frequent basis for declining to review an issue or even an entire appeal.

It is well established that an appellate tribunal will not review a claim that is inadequately briefed. The typical boiler plate goes like this:

We consistently have held that [a]nalysis, rather than mere abstract assertion, is required in order to avoid abandoning an issue by failure to brief the issue properly. . . . [F]or this court judiciously and efficiently to consider claims of error raised on appeal . . . the parties must clearly and fully set forth their arguments in their briefs. We do not reverse the judgment of a trial court on the basis of challenges to its rulings that have not been adequately briefed. . . . The parties may not merely cite a legal principle without analyzing the relationship between the facts of the case and the law cited. . . . [A]ssignments of error which are merely mentioned but not briefed beyond a statement of the claim will be deemed abandoned and will not be reviewed by this court.

Kachnowski v. Administrator, Unemployment Compensation Act, 158 Conn. App. 579, 581-82 n.2 (2015) (citation and internal quotation omitted). It is perfectly understandable why a court would not want to resolve an issue without proper briefing. Doing the analysis the litigant has failed to do comes close to advocacy, which is not the role of the court.

It seems lately, however, that the phrase “inadequately briefed” appeared in Supreme and Appellate Court decisions with greater frequency. A recent Westlaw search revealed that in the past six months, the phrase appeared in 29 appellate cases for an average of 4.8 times per month. Expanding the search to 12 months and three years yielded 47 and 103 cases respectively, for averages of 3.9 times per month and 2.9 times per month. Perhaps this is a statistical fluke, but it may be a trend and, if so, the question arises as to what is prompting it.

Part of the likely explanation is that the number of pro se litigants has increased in the Appellate Court in recent years. The appellant in Kachnowski, for example, was pro se. Other recent examples include Stone v. Pattis, 159 Conn. App. 405 (2015) (largely denying review due to inadequate briefing); Castro v. Mortgage Lenders Network USA, Inc., 158 Conn. App. 371, 373 n.2 (2015) (refusing to review an issue due to inadequate briefing). While it is true that the courts show some lenity with pro se litigants, courts will not do so at the expense of the substantive rights of other parties. See, e.g., Lynch v. Lynch, 153 Conn. App. 208, 226 (2014), cert. denied, 315 Conn. 923 (2015). Thus, technical errors by pro se litigants may be overlooked, but substantive errors such as the failure to brief an issue adequately, not so much.

But a significant number of the cases where the court has criticized a party for inadequate briefing are counseled cases. Generally with counseled cases, it is one or two issues and not the entire appeal that are inadequately briefed. Interestingly, the courts have been explaining in some detail why the briefing on a point was inadequate. E.g., State v. O’Brien-Veader, 318 Conn. 514, 561-62 (2015) (defendant cited and quoted authorities but did not explain why court’s hearsay rulings were incorrect by applying the law to the facts); Trikona Advisers LTD. v. Haida Investments, Ltd., 318 Conn. 476, 478 n.4 (2015) (failure to apply law to facts; argument made in three sentences without supporting analysis to citation to authority). Such explanations are welcome as they delineate what the courts expect in briefing issues.

To the extent that inadequate briefing is more commonly appearing as a reason to decline review in counseled cases, it may be an indirect result of the amendment to Practice Book § 61-10 providing that the court will not refuse review solely for the failure to seek an articulation of an ambiguity. As noted above, prior to 2013 appellate courts routinely denied review if a party failure to seek an articulation on an ambiguity pertinent to the issue under review. It is likely that in at least some of those cases, there may also have been inadequate briefing, but since the failure to seek articulation was enough to deny review, the court did not pile on with criticism of the briefing. Since the lack of an articulation can no longer serve as the sole means to deny review, courts now need to address inadequate briefing when they find it.

The way to avoid forfeiting review, of course, is to brief the issue properly—cite authority (or explain why there isn’t any) and explain how it applies to the facts of the case. It may seem like basic advice, but enough litigants are running afoul of the briefing standards that the point needs to be