This article appears substantially as published in the June 16, 2014, issue of the Massachusetts Lawyers Weekly, but has been edited to reflect later changes in applicable rules. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.
Having completed your research and other preparations, you are now ready to begin drafting a concise and compelling appellate brief. Before you start typing, however, review the Massachusetts Rules of Appellate Procedure and Appeals Court Standing Orders, which contain detailed requirements for the form and content of appellate briefs and appendices.
Because rules can change, you should consult them each time you draft an appellate brief. It would be unfortunate to find out after completing your brief that it fails to comply with Appeals Court requirements.
Make sure that the margins, font, line spacing and other attributes of your document comply with Mass. R. App. P. 20(a), which governs the formatting of appellate briefs. Rule 20 requires:
- 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 inch, while the left and right margins should be 1.5 inches, so that the text area is 5.5 by 9 inches. Page numbers can appear in the margin.
- Typeface: A mono-spaced 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 within 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, 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”) and the name, Board of Bar Overseers number, firm name (if any), address, telephone number and email address of counsel.
Also keep in mind the length limitations for primary and reply briefs set forth in Rule 16(h): Primary briefs cannot exceed 50 pages, exclusive of tables and addenda. A reply brief cannot exceed 20 pages.
Next, create major headings that correspond to the sections of the brief required by Rule 16(a). For the appellant, these include:
- A corporate disclosure statement, if applicable, must appear in the brief, prior to the table of contents, even if it was previously filed separately.
- A table of contents and a table of authorities, including sub-headings for cases, statutes and other authorities.
- A statement of the issues presented for review.
- A statement of the case, including (1) the nature of the case, (2) the proceedings below and its disposition in the lower court, and (3) a statement of relevant facts, with appropriate references to the record.
- In a brief with more than 24 pages of argument, a short summary of argument. I recommend including such a summary in all briefs.
- The argument: within the argument section, insert headings for each appellate issue and subheadings which you drafted based on your research (headings and subheadings will be discussed more fully in a future column).
- A conclusion stating the precise relief sought.
- The printed names, BBO numbers, addresses, telephone numbers and email addresses of individual counsel, and, if an individual counsel is affiliated with a firm, the firm name.
- The 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; the certification should appear on the last page of the brief.
- 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 addendum should have its own table of contents and should be consecutively paginated.
The appellee’s brief should contain the same sections but need not include the conclusion or a statement of the issues or of the case unless the appellee is dissatisfied with the statements of the appellant.
Inserting all of the required section headings at the outset helps ensure that you won’t forget a required section.
Certificate of service.
When filed, your brief should be accompanied by a separate certificate of service. The court prefers a separate document to a certificate appearing as part of a document. Both appellant and appellee must serve two copies of their briefs on each party separately represented. The appellant must also serve two copies of the appendix (unless fewer are allowed by Rule 18(e)).
Both appellant and appellee must file four paper copies of their briefs with the Appeals Court clerk. The appellant must also file four paper copies of each volume of the appendix (unless fewer are allowed by Appeals Court Standing Order). In the alternative, briefs and appendices in many cases can be electronically filed through the Appeals Court’s Odyssey File and Serve site. Information about e-filing may be obtained here.
Having ensured compliance with the appellate rules, you are now ready to draft a clear and persuasive brief. That process begins with a statement of issues on appeal, which will be the subject of my next column.
Updated: January 20, 2017.