Massachusetts appellate attorney Roger T. Manwaring and Lawyers’ Legal Research & Writing draft appellate briefs and provide other appellate services to attorneys in Boston, Worcester, Springfield and throughout Massachusetts. To find out more, click here or contact Attorney Manwaring to discuss your appeal. The initial consultation is always free.
NOTE: The following is a general summary of the appellate process under the Massachusetts Rules of Appellate Procedure, for appeal of a civil case from a trial court to the Massachusetts Appeals Court. It covers the process from the filing of a Notice of Appeal through the oral argument. While providing a general overview of the appellate process and of the obligations of appellant and appellee, this summary does not discuss every nuance of the rules, nor their application to every type of appeal (e.g. child welfare appeals). It also concerns only appeals in civil, not criminal, cases. Therefore, this summary should not be relied upon as a substitute for reading the Massachusetts Rules of Appellate Procedure, the Appeals Court Rules, Appeals Court Standing Orders, or other directives.
An attorney handling an appeal from a trial court to the Massachusetts Appeals Court must be intimately familiar with the Massachusetts Rules of Appellate Procedure and with the Appeals Court Rules and Standing Orders, among other directives. These govern every aspect of the appellate process, from filing the appeal to assembly of the record, preparation of the appellate brief, oral argument and post-decision petitions. Even experienced trial attorneys often are not conversant with the appellate process. An attorney who does not regularly handle appeals may want to consider enlisting the aid of an appellate attorney who knows the applicable rules and how to draft a winning appellate brief.
The Notice of Appeal.
An appeal is taken by filing a Notice of Appeal (“NOA”) with the clerk of the lower court. Rule 3(a). The NOA must specify who is appealing and must designate the judgment, decree, order, etc. appealed from. Rule 3(c). Special rules apply to child welfare cases. Id.
Unless otherwise specified by statute, the NOA must be filed within 30 days after the date of entry of the judgment appealed from. Rule 4(a). A 60-day period applies to cases in which the Commonwealth, or any officer or agency thereof, is a party, except for child welfare cases which remain subject to the 30-day limit. If any party files a timely NOA, then any other party may file an NOA within 14 days after service of the original NOA or within the 30- or 60-day periods allowed by Rule 4(a), whichever expires later.
A special rule applies when certain post-trial motions have been filed in the trial court. When a motion is filed: for judgment under Rule 50(b); to amend or make additional findings of fact under Rule 52(b); to alter or amend judgment under Rule 59 or for relief from judgment under Rule 60(b), however titled, if either motion is filed within 10 days after entry of the judgment; or for new trial under Rule 59, the time for appeal begins to run only upon the entry of an order denying new trial or granting or denying any other such motion.
The NOA should be served on counsel for all other parties, though the rules require the clerk of the lower court to also do so.
Stays, bonds and injunctions pending appeal.
Motions to stay a judgment or order pending appeal, for approval of a bond or for an order suspending, modifying, restoring or granting an injunction pending appeal must usually be made to the lower court and are governed by Rule 6(a).
The record on appeal.
The record on appeal consists of the original papers, the exhibits on file, the transcript of proceedings and the docket entries in the lower court. Rule 8.
Ordering the transcript.
Within 10 days after filing an NOA, the appellant must order from the court reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. Rule 8(b)(1). At the time of ordering, the appellant must make arrangements for payment. Special rules apply to the ordering of electronically recorded transcripts, Rule 8(b)(3), and transcripts in child welfare cases, Rule 8(b)(5).
Within the same 10-day period after filing an NOA, except in the case of electronically recorded transcripts, the appellant must deliver to the clerk of the lower court either: (i) a transcript of those portions of the transcript of the lower court proceedings which the appellant deems necessary for determination of the appeal, (ii) a signed statement certifying that the appellant has ordered such portions from the court reporter or (iii) a statement that appellant has not ordered the transcript and does not intend to do so. Rule 9(c)(2). Upon receipt of the transcript, the appellant must deliver it to the lower court clerk.
Also within the same 10-day period after filing of the NOA, unless the entire transcript is ordered, the appellant must file and serve on the appellee a description of the parts of the transcript which he intends to include in the record and a statement of the issues he intends to present on the appeal. Rule 8(b)(1). The appellee may file and serve a counter-designation within 10 days after service of the appellant’s designation.
Where no transcript is available.
Rule 8(c) applies when no transcript was made in the trial court or the transcript is unavailable. The appellant may file and serve on the appellee a statement of the evidence within 30 days after filing the NOA. The statement may be based on any available means, including the appellant’s recollection. The appellee may file objections or proposed amendments to the statement within 10 days after service. The lower court then approves a final statement which thereafter constitutes the record on appeal.
Agreed statement as the record on appeal.
Under Rule 8(d), the parties may agree on a statement of the case. The statement must be filed with the lower court within 30 days after filing of the NOA. The statement, with any additions which the court considers necessary, will be approved by the lower court and constitutes the record on appeal. When such a statement is made, it constitutes the appendix required by Rule 18.
Assembly of the record.
As soon as possible after filing of the NOA, the lower court clerk is to begin assembling the record. Upon request of the clerk, the appellant shall take any action reasonably necessary to enable the clerk to assemble the record. Rule 9(c)(1).
Upon receipt of the transcript at any time, the appellant must forthwith deliver the original transcript to the clerk of the lower court. Rule 9(c)(2).
Under Rule 9(d), when the record is fully assembled, the clerk of the lower court will notify the parties and the clerk of the appellate court.
Docketing the appeal.
Within 10 days after receiving from the clerk of the lower court notice of assembly of the record, the appellant must pay the docket fee to the clerk of the appellate court. Rule 10(a)(1). That fee is presently $300 for each appealing party. G. L. c. 262, §4; Mass.R. App. P. 10(a)(1). Notably, each appellant must pay a separate docket fee. Rule 10(a)(1). In the case of a cross-appeal, the cross-appellant must also pay a separate fee. Id. The clerk of the Appeals Court will then enter the case on the docket and notify each party and the clerk of the lower court.
Designation of items to be included in the appendix.
Within the same 10-day period after notice of assembly of the record, the appellant must serve on the appellee a designation of the parts of the record which he intends to include in the appendix and a statement of the issues which he intends to present for review. Rule 18(b). The appellee may then serve a counter-designation within 10 days after receipt of the designation.
Registering for electronic notice of Appeals Court actions.
After the case is entered in the Appeals Court, all counsel may (but are not required to) register to receive email-only notice of Appeals Court actions. See Standing Order Governing Electronic Notification of Court Orders, Notices, and Decisions in Lieu of Paper Notice. The registration form can be found here: http://www.mass.gov/courts/court-info/appealscourt/appeals-court-help-center/electronic-notification-overview.html.
Civil Docketing Statement.
Within 14 days after entry of the case on the Appeals Court docket (the Court will issue a Notice of Entry), each appellant or cross-appellant (other than an incarcerated, self-represented person) must file with the Appeals Court and serve on all opposing counsel a Civil Docketing Statement. The Statement and directions for filing can be accessed here: http://www.mass.gov/courts/docs/forms/appeals/civdocketingstatement.pdf. Each separately represented appellant or cross-appellant must file a separate Civil Docketing Statement. The Civil Docketing Statement may be filed either (1) as a .pdf file attached to an email addressed to firstname.lastname@example.org or (2) via the Appeals Court’s e-filing system. The Court may take whatever action is necessary to ensure the filing of the Docketing Statement, including denying without prejudice any motion to enlarge time to file a brief or motion to stay appellate proceedings.
Corporate Disclosure Statement.
Within 30 days after docketing of the appeal, all corporate parties must file the Corporate Disclosure Statement required by Supreme Judicial Court Rule 1.21.
1. Briefing schedule. The appellant’s brief must be filed within 40 days after the date on which the appeal is docketed and the appellee’s brief must be filed within 30 days after service of the brief of the appellant. The appellant may file a reply brief within 14 days after service of the brief of the appellee. Rule 19.
2. Contents of the briefs. The contents of the briefs are governed by Rule 16. The appellant’s brief must contain:
- The Corporate Disclosure Statement, if applicable, discussed below.
- A table of contents and a table of authorities, including cases (alphabetically arranged), statutes and other authorities.
- A statement of the issues presented for review.
- A statement of the case, including (1) a statement of the nature of the case, the proceedings below, and its disposition in the lower court and (2) a statement of the facts with appropriate references to the record.
- The argument, with citations to the authorities, statutes and parts of the record relied on.
- In a brief with more than 24 pages of argument, a short summary of argument.
- A short conclusion stating the precise relief sought.
- The printed names, Board of Bar Overseers numbers, addresses, telephone numbers and email addresses of individual counsel, and, if an individual counsel is affiliated with a firm, the firm name.
- The certification under Rule 16(k) discussed below.
- The addendum, discussed below.
The appellee’s brief should contain the same sections but need not include the conclusion, nor a statement of the issues or of the case unless the appellee is dissatisfied with the statements of the appellant.
3. Corporate Disclosure Statement. A Corporate Disclosure Statement, if applicable, must appear in the brief, prior to the table of contents, even if it was previously filed separately.
4. Rule 16(k) Certification. Rule 16(k) requires that the brief contain a certification of counsel that the brief complies with all rules governing briefs. This Certification should appear on the last page of the brief.
5. Addenda to the briefs. The appellant’s brief must include an addendum containing: (1) the decision, findings, etc., pertinent to the issue on appeal and (2) copies of statutes, rules or regulations cited but not otherwise reproduced in the appellant’s brief. The appellee’s brief must also include an addendum containing the statutes, rules or regulations cited but not otherwise reproduced in appellee’s brief. The addenda should have a table of contents and should be consecutively paginated.
6. Form of briefs. Rule 20 sets forth specific requirements for the form of briefs:
- Length: Primary briefs cannot exceed 50 pages, exclusive of tables and addenda. A reply brief cannot exceed 20 pages.
- Paper: Standard 8.5 x 11 inch paper should be used.
- Binding: Pages should be bound on their left side.
- Margins: The top and bottom margins should be 1” while the left and right margins should be 1.5”, so that the text area is 5.5” by 9”. Page numbers can appear in the margin.
- Typeface: A monospaced font such as Pica or Courier should be used. Type for both text and footnotes should be 12 point with character spacing such that no more than 10.5 characters fit with one horizontal inch.
- Spacing: Text should be double spaced except for footnotes, headings and indented quotations.
- Printing on both sides of pages: Is allowed.
- Cover colors: Appellant’s brief-Blue; Appellee’s brief-Red; Reply brief-Gray; Intervenor/Amicus brief-Green
- Information on cover of brief: The cover should contain the name of the court, the case number, the title of the case (e.g. Jones v. Smith), the nature of the proceeding and the name of the lower court (e.g. “On appeal from a judgment of the Suffolk Superior Court”)
- The title of the document (e.g. “Brief for the Appellant”)
- The name, BBO number, firm name (if any), address, telephone number and email address of counsel.
7. Filing and service of briefs. The appellant is to file four paper copies of the brief and serve two on counsel for each party separately represented. In the alternative, the brief may be electronically filed using the Appeals Court’s e-filing system, discussed below.
8. Certificate of Service. The items filed on paper should be accompanied by a separate certificate of service. The Court prefers a separate document to a certificate appearing as part of a document.
1. Appendix contents. The appendix must contain, at a minimum: the lower court docket; the first pleading filed in the lower court; a copy of any pleading referred to in the brief; and a copy of the judgment or decision appealed from. Rule 18(a); Clerk’s Guide to Appeals (http://www.mass.gov/courts/appealscourt/guide-to-appeals.html#civil-K). In addition, the appendix should contain any other parts of the record to which the parties wish to direct the attention of the Court. Rule 18(a). Unless they have independent significance, memoranda of law in the lower court should not be included in the appendix.
Usually, the appellant includes in the appendix any items counter-designated by the appellee, although the rules provide that a dispute as to the contents of the appendix shall be settled by the lower court. Rule 18(b). The cost of producing the appendix is initially born by the appellant. However, if the appellant considers items designated by the appellee to be unnecessary to the appeal, the appellant can so advise the appellee and the appellee then must advance the cost of including those parts.
2. Arrangement of the appendix. The pages of the appendix must be consecutively numbered and the documents set out in chronological order. Rule 18(d). It must begin with a table of contents. The cover of the appendix should be white and should contain the same information as the cover of a brief.
The appellant may submit separate volumes of the appendix containing only transcripts and only exhibits. Doing so may be advantageous because Rule 18(e), discussed below, allows the filing and service of fewer copies of such volumes. No single volume of the appendix may be more than 1.5” thick.
3. Filing and service. The appendix is to be filed at the same time as the brief, Rule 18(a), unless the appellant elects the option to produce it after the filing of the briefs. Rule 18(c). If filing paper copies, four copies of each volume of the appendix should be filed with the Court and two should be served on each party separately represented, except that only two copies of volumes of the appendix containing only exhibits and one copy of volumes containing only transcripts need be filed and only one of each must be served on each party separately represented. Rule 18(e)(1).
In the alternative, the appellant may file the appendix electronically using the Appeals Court’s e-filing system, discussed below.
The Appeals Court’s e-filing system.
Attorneys who are members of the Massachusetts bar and who have registered for e-filing, may file briefs, appendices and other documents through the Appeals Court’s Odessey File and Serve site. E-filing is not available for impounded cases or impounded documents. Information about e-filing may be obtained here.
Citation of supplemental authorities.
If“pertinent and significant authorities come to the attention of a party after his brief has been filed, or after oral argument but before decision” the party may send a letter to the Appeals Court clerk setting forth the citations, with a copy to all counsel. Rule 16(l). The letter must state the portion of the brief or the point argued orally to which the new authorities pertain and must, without argument, explain the reason for the supplemental citations. Other parties may file responsive letters.
The Appeals Court may direct the parties to appear at a prehearing conference to consider simplifying the issues and other matters that will aid the Court. If such a conference is held, the Court will enter an order reciting the actions taken and the agreements made. Rule 21.
Summary disposition under Rule 1:28.
If, after filing of the briefs and appendix, the panel of the Appeals Court to which an appeal is assigned “determine[s] that no substantial question of law is presented by the appeal or that some clear error of law has been committed which has injuriously affected the substantial rights of an appellant,” it may dispense with oral argument and issue a so-called “Rule 1:28 order” affirming, modifying or reversing the lower court’s order.
The Appeals Court clerk will advise the parties of the time and place for oral argument. Each side is usually allowed to argue for 15 minutes, but may request additional time by sending a letter to the clerk reasonably in advance of the hearing.
The appellant argues first. Rule 22(a). In cross-appeals, the plaintiff below is considered to be the appellant. Rule 22(d). The party arguing first may request leave to respond in writing to any new matter in the arguments of the other party. Rule 22(c).
Updated: January 20, 2017.
Massachusetts appeals attorney Roger T. Manwaring and Lawyers’ Legal Research & Writing draft appellate briefs and provide other appellate services to attorneys in Boston, Worcester, Springfield and throughout Massachusetts. To find out more, click here or contact Attorney Manwaring to discuss your appeal. The initial consultation is always free.