Clearing Up Confusion in Filing a Supplemental Brief in the Third & the Fifth District Courts
Step 1 – File a motion requesting permission to file a supplemental brief prior to filing the brief. The Third District requires that an appointed attorney who requests permission to file a supplemental brief needs to explain in great detail why the issue was not raised at the time the opening brief was filed (e.g., the issue arose after the filing of the opening brief based on a new published opinion from the Supreme Court).
Step 2 – Next, obtain a ruling on your motion for permission to file a supplemental brief. The request for permission to file the supplemental brief should be filed and granted before counsel attempts to file the actual supplemental brief. Do not file the motion and the brief together – this is a common mistake.
Step 3 – File the brief. Once counsel has received a copy of the order granting permission, counsel may file the supplemental brief with the clerk. The brief must be formal with green covers, a table of contents, a table of authorities, a statement of any additional facts that apply to the new argument, a certification of page count, and a proof of service. A letter brief will not be accepted for filing unless the court's order specifically includes granting permission to file an informal brief.
Normally counsel should file a request for permission to file a supplemental brief along with the prepared supplemental brief. (Caveat: if counsel believes that it is likely that the court will not grant filing permission, then counsel should make the motion first, before spending time for which s/he will not be compensated. For example, if oral argument was 75 days ago and the case is likely to be decided soon, counsel would be wise to obtain a ruling first because there's a greater chance that the motion will not be granted under those circumstances.)