A SUMMARY OF THE MASSACHUSETTS RULES OF APPELLATE PROCEDURE: CIVIL APPEALS FROM NOTICE OF APPEAL THROUGH ORAL ARGUMENT

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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.  This summary is updated through June 1, 2019.  Later amendments may have altered the rules discussed. 

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 and serving it on all parties. Rule 3(a). Under appropriate circumstances, two or more persons may file a joint NOA.  Rule 3(b). 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); for new trial under Rule 59; or 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, the time for appeal begins to run only upon the entry of an order disposing of the last remaining such motion. Rule 4(a)(2). An NOA filed before the disposition of such post-trial motions is ineffective. Rule 4(a)(3).

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). If filing a motion in the lower court is impracticable, or if the lower court denies the motion, then a motion may be filed in the appellate court. Rule 6(a)(1). Detailed requirements for the content and filing of a motion to stay in the Appeals Court are set forth in a Standing Order.

The record on appeal.

The record on appeal consists of the documents and exhibits on file, the transcript of the proceedings and the docket entries in the lower court. Rule 8.

Ordering the transcript.

Except in child welfare cases, within 14 days after filing the NOA, the appellant must:

• For proceedings relevant to an appeal that have been recorded by a court reporter, order the transcript of those proceedings unless the appellant certifies to the clerk either (i) that no lower court proceedings were relevant to the appeal or (ii) that the transcript is on file with the court.
• For those proceedings relevant to the appeal that were electronically recorded, the appellant must request the transmission of the audio recording and order transcription of those proceedings unless, again, the appellant certifies to the clerk either (i) that no lower court proceedings were relevant to the appeal or (ii) that the transcript is on file with the court.

Rule 8(b)(1)(B). The appellant must file all transcript orders and certifications with the clerk of the lower court and serve them on all parties.

Within 14 days after service of such transcript orders or certifications, any other party may order transcripts of additional proceedings and must file any such transcript orders with the clerk and serve them on all parties. Rule 8(b)(1)(B).

All transcript orders must be made in accordance with procedures set forth by the Chief justice of the Trial Court.

The parties may stipulate that transcription of certain portions of the proceedings relevant to the appeal is not necessary. Rule 8(b)(1)(B).

Special rules apply to the ordering of electronically recorded transcripts, Rule 8(b)(3), and transcripts in child welfare cases.

Within the same 14-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 or 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, or (iii) a statement that appellant has not ordered the transcript and does not intend to do so. Rule 9(c)(2).

Upon completion of the transcription, the court reporter delivers the transcript to the clerk of the lower court.  Within 14 days after receiving all transcripts ordered by all parties, the clerk issues a notice to all parties.

Where no transcript is available.

Rule 8(c) applies when no report of the evidence or proceedings was made by the lower court and no transcript is available.  Within 14 days after filing the NOA, the appellant must file a motion to reconstruct the record. The parties then confer, within such time as is allowed by the lower court, the appellant must file and serve on all parties a proposed statement of proceedings.  Within 14 days after service, any party may object to the proposed statement and may file proposed amendments thereto. 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. If the parties intend to do so, they must notify the clerk of the lower court within 14 days after filing of the NOA.  Within 28 days after such notice, the parties must file an agreed statement of the record on appeal in the lower court.  The lower court then approves the agreed statement as filed or with such modifications as it deems appropriate.

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(d)(1).

Under Rule 9(e), 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 14 days after receiving from the clerk of the lower court notice of assembly of the record, each appellant, including any cross-appellant and each appellant in a joint appeal, 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). 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.  Rule 10(a)(3).  Additional requirements apply where the appeal calls into question the constitutionality of a state law.  Rule 10(a)(4).

Cross-Appeals.

If a cross-appeal is filed, the party who files an NOA first is the appellant for purposes of the Rules.  If the parties file on the same day, the plaintiff in the trial court is the appellant.  Rule 10(a)(7).

Designation of items to be included in the appendix.

If the parties do not agree on the contents of the appendix, within the same 14-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 14 days after receipt of the designation.  If a party designates parts of the record that are impounded or confidential, the designation must so state.  Rule 18(b)(2).

Registering for electronic notice of Appeals Court actions.

All law firms and attorneys who have cases pending in the Appeals Court must register for electronic filing at efileMA.com.

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. Each separately represented appellant or cross-appellant must file a separate Civil Docketing Statement. All attorneys must electronically file the docketing statement using the Appeals Court’s e-filing system. Attorneys filing in impounded cases and self-represented parties in all cases are encouraged, but not required, to file the docketing statement using the e-filing system.  Docketing statements that are not e-filed must be submitted on paper by mail or hand-delivery to the Appeals Court. 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.

Briefs.

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 or 7 days before argument, whichever is earlier. Rule 19. Special rules govern the time for filing briefs in cross-appeals.  Rule 19(b).

Contents of the briefs. The contents of the briefs are governed by Rule 16. The appellant’s brief must contain, in the following order:

• A cover.
• 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, (2) the proceedings below, and (3) its disposition in the lower court.
• A statement of facts relevant to the issues on appeal. This section need not repeat the items stated in the statement of the case.  Each fact must be supported by references to the appendix or transcript.
• In a brief with an argument exceeding 20 pages (or 4,500 words if produced in a proportionally spaced font), a short summary of argument.
• The argument, with citations to the authorities, statutes and parts of the record relied on. For each issue addressed in the argument, there must be a statement of the applicable standard of review.
• Any request for attorney’s fees and costs, with citation to the authority supporting such an award.
• 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 addendum, discussed below.
• The certification under Rule 16(k) discussed below.
• A certificate of service, which should appear as part of the brief and not as a separate document.

The appellee’s brief should contain the same sections but need not include a statement of the issues, of the case, of the facts or of the standards of review, unless the appellee is dissatisfied with the statements of the appellant.

Reply brief. The appellant may file a reply brief, which responds to arguments raised in the appellee’s brief.  No new issues may be raised.  The reply brief must include a cover, table of contents, argument, conclusion, signature block, addendum, certificate of compliance and certificate of service.

Citations to the record. Every factual statement appearing anywhere in a brief must be supported by a citation to the appendix or to a volume and page of the appendix or a volume and page of the transcript or exhibit volumes.  All material cited in a brief must appear in the appendix or in transcript or exhibit volumes, regardless of whether it also appears in the addendum.  Where material also appears in the addendum, a citation to the addendum should also be included.        If reference is made to evidence the admissibility of which is disputed, reference shall be made to the pages of the appendix or transcript at which the evidence was identified, offered, and received or rejected.

Briefs in cross-appeals. When the parties have cross-appealed:

• The appellant’s primary brief sets forth the appellants issues and argument.
• The appellee’s primary brief contains both argument on the appellee’s issues and a response to the appellant’s brief.
• The appellant’s reply brief sets forth both a reply as to appellant’s issues and a response to appellee’s brief.
• The appellee’s reply brief contains appellee’s reply as to appellee’s issues.

Briefs in cross-appeals are subject to different length limitations, discussed below.

References to impounded material. Parties are urged not to disclose impounded material where possible. If a brief or other document references impounded material or material that is confidential pursuant to statute, rule or court order, the party filing the document must file with the Appeals Court clerk and serve on all parties a written notice so indicating.  When impounded material is included in a brief, the cover of the brief must so state.

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.

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. The certification must state how compliance with the applicable length limit was ascertained.

Addenda to the briefs. The appellant’s brief must include an addendum containing: (1) a table of contents; (2) the decision, findings, etc., pertinent to the issue on appeal, including a typed version of any handwritten or oral endorsement, notation, findings or order; (3) copies of statutes, rules or regulations consideration of which is required for determination of the appellate issues; and (4) any unpublished decision cited in the brief. The appellee’s brief must also include an addendum and should include items even if they appear in the appellant’s addendum.

Form of briefs. Rule 20 sets forth specific requirements for the form of briefs:

• Length: The length limitations for briefs differ depending on whether the brief is produced in a monospaced font (e.g. Courier New) or a proportionally spaced font (e.g. Times New Roman) and on whether the brief is a primary or reply brief. Special rules govern briefs in cross-appeals.

In all briefs, only sections required by Rule 16(a)(5-11), including headings, footnotes and quotations, count towards the word limit.  Rule 20(a)(2-3).

• Paper: Standard 8.5 x 11 inch paper should be used. Rule 20(a)(1).
• Binding: Pages should be bound on their left side. Rule 20(a)(1).
• A cover or front page must be used.
• Margins: If printed using a monospaced font, 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”. If printed using a proportionally spaced font, all margins must be 1”. Page numbers must appear in the margin and the cover page must be paginated as page 1, with all successive pages, including the addendum, consecutively numbered. Rule 20(a)(4).
• Typeface: If a monospaced font is used, both text and footnotes should be 12 point with character spacing such that no more than 10.5 characters fit with one horizontal inch. If a proportionally spaced font us used, both text and footnotes must be 14 point.
• 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. Colored covers are not required for electronically filed briefs.
• 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”), and the name, BBO number, firm name (if any), address, telephone number and email address of counsel.
• If the brief contains impounded or confidential material, the notice required by Rule 16(m).

Filing and service of briefs. Briefs are generally required to be filed electronically using the Appeals Court’s e-filing system. If not filed electronically, a party is to file four paper copies of the brief and serve two on counsel for each party separately represented.   Different filing requirements apply in the SJC.

Certificate of Service. Each item filed on paper should contain a certificate of service. E-filing a document automatically serves it on counsel and others who have registered for e-filing.

The appendix.

Appendix contents. The appendix must contain, in the following order: (1) a cover; (2) a table of contents; (3) the lower court docket; (4) any order of impoundment or confidentiality from the lower court; and, (5) in chronological order, any parts of the record relied upon in the brief, any document or part thereof relating to any issue on appeal, any memorandum of decision or order pertinent to any issue, including a typed version of any handwritten or oral endorsement, the judgment or decree appealed from, and any notice of appeal. Rule 18(a)(1)(A).  Unless they have independent significance, memoranda of law in the lower court should not be included in the appendix.  Rule 18(a)(1)(B).

Special rules govern the reproduction of exhibits (Rule 18(a)(1)(F)) and transcripts.  Rule 18(b)(4).

Usually, the appellant includes in the appendix any items counter-designated by the appellee and the cost of producing the appendix is initially born by the appellant. However, if the appellant considers parts of the record 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. Disputes as to the content of the appendix or the advancing of costs are decided by the lower court.  Rule 18(b)(3).

Arrangement of the appendix. The pages of each volume of the appendix must be separately consecutively numbered, with the cover paginated as page 1. Rule 20(a)(5). Each volume must begin with a table of contents. The first volume of a multi-volume appendix must contain a complete table of contents for all volumes.  Rule 18(a)(1)(C). 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. Rule 19(d). No single volume of the appendix may be more than 1.5” thick.  Rule 20(a)(5)(C).  Text may appear on both sides of the page. Rule 20(a)(5)(D).

Impounded materials in the appendix. If the entire case has been impounded, the cover of the appendix must indicate that the appendix is impounded. If the entire case has not been impounded, a separate appendix volume must be filed containing the impounded material and a copy of any lower court order impounding that material.  The cover of such a volume must state that it contains impounded material.

Filing and service. The appendix is to be filed at the same time as the brief, Rule 18(a). The appendix is generally required to be filed electronically using the Appeals Court’s e-filing system. If filing paper copies, four copies of each volume of the appendix should be filed with the Appeals 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 19(d)(1-2).

Supplemental appendix. A supplemental appendix may only be filed with prior leave of court to do so. Rule 18(b)(5).

The Appeals Court’s e-filing system.

In public and partially impounded civil panel cases (those on the “P” docket), attorneys must file briefs, appendices and certain other documents through the Appeals Court’s e-filing system.  See Appeals Court Standing Order Concerning Electronic Filing.  E-filing of impounded documents is encouraged but not mandatory.  Id.

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.

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.

Oral argument.

The Appeals Court clerk will advise the parties of the time and place for oral argument. A request for postponement may be made by motion.  Each side is usually allowed to argue for 15 minutes, but may request additional time by filing a motion reasonably in advance of the hearing.  The appellant argues first. Rule 22(a).

Updated: June 1 2019.

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