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Updated: August 24, 2020

This article appears substantially as published in the July 30, 2015, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

While each section of your brief must be drafted with care and creativity, the other sections set the stage for an effective Argument.  It is in the Argument section that you explain the law and show how that law requires a ruling in your client’s favor.  In the one-third of appeals which are decided without oral argument, your brief is your only opportunity to present your legal positions to the justices.

Here and in my next column, I offer a few suggestions to make your Argument section more effective.

Do not merely cut and paste from a trial court brief.

If you take nothing else from this article, you should be convinced that an appellate brief is a specialized document that should be written from scratch.

Be methodical and organized.

In determining how to draft the Argument section, keep in mind that your audience consists of Appeals Court justices who do not know the facts of your case as well as you do.  Further, because the justices may be generalists, you should not assume that they have expertise in the legal subject matter of your appeal.  Do not skip steps in your legal analysis, assuming that the justices will follow along.  If your argument has multiple conceptual steps, clearly lay out every one leading to your ultimate conclusion.

Because you need to methodically lay out your legal analysis, your brief’s Argument section should be highly structured.  Although the Summary of Argument section of your brief provides an overall roadmap, each major argument within the Argument section should have its own roadmap paragraph.

Use headings and sub-headings.

You should also use headings and sub-headings to help the reader keep track of complex arguments.  The major headings in your Argument section should simply state your position as to each of the issues which you listed in your Statement of Issues.  Thus, if one of the issues was, “Whether Jones is liable to Brown for negligently entrusting her vehicle to Smith,” your heading might read,

Jones is liable to Brown for negligently entrusting her vehicle to Smith because: (1) Jones gave Smith specific or general permission to drive the vehicle; (2) Smith was incompetent or unfit to drive the vehicle; (3) that unfitness was the proximate cause of Brown’s injuries; and (4) Jones had actual knowledge of Smith’s incompetence or unfitness to drive the vehicle.

Sub-headings should track the subsidiary propositions which, together, lead to the conclusions stated in each major heading in your Argument section.  Under the negligent entrustment heading, sub-headings might include: “Jones gave Smith specific or general permission to drive the vehicle,” “Smith was incompetent or unfit to drive the vehicle,” “Smith’s unfitness was the proximate cause of Brown’s injuries,” and “Jones had actual knowledge of Smith’s incompetence or unfitness to drive the vehicle.”

Because a justice may first read only the headings and sub-headings, they should be written to provide a stand-alone explanation of your argument.  Doing so will also enable your Table of Contents, in which the headings will appear, to serve a persuasive function, summarizing your argument.  It follows that instead of simply stating legal conclusions, your headings and sub-headings should contain sufficient facts to support the conclusion.  Compare, for example, “Jones gave Smith specific or general permission to drive the vehicle” with “By handing her car keys to Smith, Jones gave Smith specific or general permission to drive the vehicle.”

Incorporate the standard of review.

As your audience consists of appellate justices, you should frame each of your arguments in terms of the applicable standard of review, just as you framed each issue in your Statement of Issues.  For example, if the standard is abuse of discretion, argue that the lower court abused its discretion, not merely that it erred.  The standard of review may be your best asset or greatest obstacle.

Order your arguments for maximum effect.

Keeping in mind your overall objective (to convince the justices to rule for your client) also helps determine the order in which to present your arguments.  As the appellant, your goal is to show that the trial court misunderstood the facts or misapplied the law and why that requires reversal.  As the appellee, you must show why the trial court was right.

If there is a natural, logical order in which the arguments should appear, use it.  For example, a threshold argument, such as lack of standing, that will enable the Appeals Court to rule in your client’s favor without considering the other potential issues, should be addressed first.

In the absence of a logical order, present your best argument first and, if possible, bury weaker arguments in the middle of your brief.  You must do this because the justices will probably assume that your strongest argument appears first.

If you represent the appellee, you must decide whether to follow the order of argument in the appellant’s brief.  Doing so makes it easier for the justices to compare your arguments with the appellant’s arguments on the same issue.  However, following the order of argument in the appellant’s brief may result in your strongest argument not appearing first.  I recommend using the most effective order for the arguments in an appellee’s brief, even if it differs from the order used by the appellant.

Keep the focus on your client’s arguments.

Within each division of the Argument section and within individual paragraphs and sentences, maintain a focus on your client’s position and view of the case.  Refer to your opponent’s position in subordinate clauses or buried in the middle of sentences and paragraphs.

Utilize the trial court’s opinion.

If you represent the appellant, you should show why each argument relied upon by the trial court is flawed.  Conversely, the appellee should argue in support of the trial court’s reasoning.  Consider, also, whether the judgment should be affirmed on grounds other than those on which the trial court relied.

If seeking costs or attorney’s fees, request them in your brief.

Mass. R. App. P. 26 provides for the awarding of appellate costs if the Appeals Court makes no provision for costs in its decision.  However, it is advisable to expressly request such an award in your brief, especially if you seek an award that differs from what Rule 26 would require.  Appellate counsel fees are awarded only when authorized by statute or when an appeal is frivolous.  Mass. R. App. P. 25.  A party seeking attorney fees should include such a request in the brief.

In my next column, we’ll examine additional ways in which to enhance the power and effectiveness of your brief’s Argument section.

Read other parts of the Appellate Brief Series:

• In Drafting Appellate Briefs, Step 1 is Know the Audience  (Appellate Brief Series, Part 1), Massachusetts Lawyers Weekly (2014).  Learn how to draft a more effective  and successful appellate brief by keeping in mind the unique concerns and expectations of Appeals Court justices.
• Steps to Take Before You Write (Appellate Brief Series, Part 2), Massachusetts Lawyers Weekly (2014).  Learn how advance preparation pays big dividends when drafting an appellate brief.
• Writing a Brief? Know the Technical Requirements (Appellate Brief Series, Part 3), Massachusetts Lawyers Weekly (2014).  Learn about the technical requirements for a Massachusetts appellate brief, including required sections, certifications, organization, formatting and filing.
• Get Off to a Good Start With a Strong Statement of Issues (Appellate Brief Series, part 4), Massachusetts Lawyers Weekly (2014).  A carefully drafted statement of issues is critical to the success of your appellate brief.
• Follow the Statement of Issues With a Strong Statement of the Case (Appellate Brief Series Part 5), Massachusetts Lawyers Weekly (2015). Your Massachusetts appellate brief should have a strong Statement of the Case, establishing your credibility, telling a compelling story, and supporting your legal positions.
• More on the Effective “Argument” Section (Appellate Brief Series Part 7), Massachusetts Lawyers Weekly (2015).  Learn more about drafting an effective “Argument” section for your Massachusetts appellate brief.  It’s your best chance to present your legal positions.

Read more about appeals here.

Learn about my appellate brief drafting services here.

A defendant against whom a plaintiff has obtained a judgment sometimes seeks indemnification from another person or business, attempting to pass the entire liability on the judgment to that other party.  However, indemnification is available only in very limited circumstances.

Consider, for example, a situation in which a convenience store is sued by a customer who was injured when she slipped on juice which apparently had leaked from a juice dispenser on the premises.  The store, takes the position that if it is liable to the customer, it should be indemnified by the juice distributor who owned and installed the machine, and was responsible for its maintenance.  However, the contracts between the store and the distributor do not expressly provide for indemnification.  Can the store shift its liability to the distributor?  Probably not.

In Araujo v. Woods Hold Martha’s Vineyard Nantucket Steamship Authority, 693 F.2d 1 (1982), the Court of Appeals for the First Circuit, applying Massachusetts law, explained that indemnification is available only in three situations:

Three different sets of circumstances may give rise to a right to indemnification. First, an express agreement may create a right to indemnification. Second, a contractual right to indemnification may be implied from the nature of the relationship between the parties…. Third, a tort-based right to indemnification may be found where there is a great disparity in the fault of the parties.

Id. at 2.  (Citation omitted).  See also Medeiros v. Whitcraft, 931 F.Supp. 68, 75 (D. Mass. 1996); United States v. Dynamics Research Corp., 441 F.Supp.2d 259, 267 (D. Mass. 2006); In re Access Cardiosystems, Inc., 361 B.R. 626, 647-48 (Bkrtcy. D. Mass. 2007).

None of those theories applies in the hypothetical described above. First, there was no express contract written or oral, relating to or providing for indemnification.

Second, no contractual right to indemnification should be implied.  “A contractual right to indemnification will only be implied when there are unique special factors demonstrating that the parties intended that the would-be indemnitor bear the ultimate responsibility for the plaintiff’s safety … or when there is a generally recognized special relationship between the parties.”  Medeiros v. Whitcraft, 931 F.Supp. at 75, quoting Araujo, 693 F.2d at 2-3.  See also Coons v. A.F. Chapman Corp., 460 F.Supp.2d 209, 223 (D. Mass. 2006), citing Samos Imex Corp. v. Nextel Communications, Inc., 20 F.Supp.2d 248, 250 (D. Mass. 1998); Dynamics Research, 441 F.Supp.2d at 267-68.  The vendor-purchaser relationship between the store and the distributor does not rise to the level of a special relationship.  In Coons, the District Court stated:

As to the existence of a special relationship, Chapman neither identifies nor suggests the presence of a special relationship between Industrial and Chapman. See, e.g., Medeiros v. Whitcraft, 931 F.Supp. 68, 75 (D.Mass.1996) (allowing summary judgment on indemnity inasmuch as the party seeking indemnity “neither alleged any facts, nor offered any evidence, to even suggest … that any ‘special relationship’ exists between the parties”). …  Furthermore, the case law does not support the existence of such a relationship under the circumstances. See, e.g., Oates v. Diamond Shamrock Corp., 23 Mass.App.Ct. 446, 503 N.E.2d 58, 59-60 (1987) (defendant retailer not entitled to indemnification from co-defendant manufacturer inasmuch as there is no special relationship between the parties); Myrtle Beach Pipeline Corp. v. Emerson Electric Co., 843 F.Supp. 1027, 1064 (D.S.C.1993) (“courts have uniformly held that this vendor-vendee relationship does not constitute a ‘special’ or ‘unique’ circumstance justifying implied contractual indemnity”). Summary judgment on counts III and IV is therefore warranted.

460 F.Supp.2d at 224.  (Emphasis added).

Finally, there is no basis for common law (a/k/a “tort based”) indemnification of the store by the distributor.  With very rare exceptions, common law indemnification is available only when the party seeking indemnity is liable only vicariously or derivatively, and was not personally at fault for the plaintiff’s injuries.  Fireside Motors, Inc. v. Nissan Motor Corp. in USA, 395 Mass. 366, 369 (1985). (“At common law a person may seek indemnification if that person ‘does not join in the negligent act but is exposed to derivative or vicarious liability for the wrongful act of another’”).  See also Thomas v. EDI Specialists, Inc., 437 Mass. 536, 538 n.1 (2002).

In Medeiros, the court stated:

the tort-based theory of indemnification is “[d]esigned to shift the whole loss upon the more guilty of the two tortfeasors … [and] has usually been available only when the party seeking it was merely passively negligent while the would-be indemnitor was actively at fault. ‘Passive negligence’ has been limited to instances in which the indemnitee was vicariously or technically liable. Where the party seeking indemnification was itself guilty of acts or omissions proximately causing the plaintiff’s injury, tort indemnification is inappropriate.”

931 F.Supp. at 75-76.  See also Coons, 460 F.Supp.2d at 224.  (“indemnity … permissible where the person seeking indemnification did not join in the negligent act of another but was exposed to liability because of that negligent act. … The general rule, however, is that a person who negligently causes injury to a third person is not entitled to indemnification from another person who also negligently caused that injury.” (Internal quotation marks omitted)).[1]

In our hypothetical, the store, if liable to the customer at all, is liable for its own negligence in failing to maintain a safe premises, not derivatively or vicariously for any negligence of the distributor.  Tort based indemnity is therefore, not available.[2]

Whenever a defendant seeks to shift all liability to another, the claim should be carefully analyzed to determine whether the facts of the case fit within any of the limited situations in which indemnification is available.

[1] In rare circumstances the Massachusetts courts will grant tort-based indemnification to a party who has some fault, where that party’s fault is insignificant compared to the fault of the party from whom indemnification is sought.  It appears, however, that this differing degree of fault indemnification is very difficult to obtain.  Rathbun v. Western Massachusetts Electric Co., 395 Mass. 361 (1985).  This exception to the general rule requiring vicarious liability is discussed in more detail here.

[2] Medeiros, 931 F.Supp. at 76 (“In order to be held responsible for any damages in the instant case, the jury would of necessity have to find that E.T. & L. was itself negligent. Put another way, E.T. & L. could not be held vicariously liable for any acts or omissions of Fellows/Whitcraft, but rather only for its own independent negligence, if any. There quite simply is no relationship between the third-party plaintiffs and the third-party defendant, i.e., agent and principal, such as would give rise to any vicarious or derivative responsibility one for the other. Because E.T. & L. would have to be an active wrongdoer, independently negligent in order to be found liable, a tort-based claim for indemnification is precluded.”).

A defendant against whom a plaintiff has obtained a judgment sometimes seeks indemnification from another person or business, attempting to pass the entire liability on the judgment to that other party.  In the absence of an express contractual right to indemnity, or a special relationship justifying between the parties, only a tort-based, so-called “common law” indemnity is allowed.  (For a more general discussion of the three types of indemnity, click here).

However, that tort-based indemnification usually requires that the party seeking indemnification be entirely fault free and liable to the plaintiff only vicariously or derivatively (as where an employer had no involvement in the torts of its employee but is liable solely due to the agency relationship).  But what if the party seeking indemnity, although slightly at fault, is far less at fault than the person from whom indemnification is sought?  Is such a person barred from receiving indemnity despite the great disparity in fault?

Although the answer is not entirely free from doubt, it appears that, in very rare circumstances, the Massachusetts courts will grant tort-based indemnification to a party who has some fault, where that party’s fault is insignificant, compared to the fault of the party from whom indemnification is sought.

In Rathbun v. Western Massachusetts Electric Co., 395 Mass. 361 (1985), the Court noted that in rare circumstances, a party at fault can obtain tort-based indemnification.  The Court stated:

The general rule is that a person who negligently causes injury to a third person is not entitled to indemnification from another person who also negligently caused that injury. Indemnification has been permitted, however, where the person seeking indemnification did not join in the negligent act of another but was exposed to liability because of that negligent act. Sometimes the successful indemnitee in such a situation is said to have been only “constructively” rather than “actually” negligent or to have been “derivatively” or “vicariously” liable rather than “directly” liable. These are distinctions that characterize the result in a case but hardly assist in reaching that result. Only in exceptional cases, however, has indemnity been allowed to one who was not free from fault….

The number of instances in which this court has allowed indemnity to a negligent indemnitee is small…. Probably no instructive general rule can be stated as to when indemnity will or will not be allowed to a negligent person…. In those cases in which indemnity has been allowed to a negligent indemnitee, the indemnitee’s negligence has been insignificant in relation to that of the indemnitor.

Id. at 364. (Emphasis added, footnote references omitted).  See also Economy Engineering Co. v. Commonwealth, 413 Mass. 791, 794 (1992) (“This is not one of those rare cases where the fault of one joint tortfeasor (the Commonwealth) is so slight as to grant it rights of indemnity against another joint tortfeasor.”); Ford v. Flaherty, 364 Mass. 382, 385 (1973) (“In a few cases indemnity has been allowed to persons who were not free of fault, but the facts and reasoning of those exceptional cases are not apposite here.”); American Ins. Co. v. Siena Const. Corp., 2007 WL 3317801, *5 n.7 (Mass. Super. 9/28/07) (“Only in rare instances, none of which exist here, has indemnity been allowed to one who is not free from fault”); Davis v. 575 Worcester Road, LLC, 2007 WL 5086368 (Mass. Super. 5/16/07) (“In rare cases where the fault of one joint tortfeasor is so slight as compared with another, common law rights of indemnity against another joint tortfeasor may be granted.”); Commonwealth v. JEMS of New England, Inc., 2002 WL 1839253, *3 (Mass. Super.  7/25/02); Demers v. Levine, 2001 WL 170994, *2 (Mass. Super. 1/31/01); Araujo v. Woods Hole, Martha’s Vineyard, Nantucket Steamship Authority, 693 F.2d 1, 3 (1^st Cir. 1982); Alexander, Nicholas, “Developments in Indemnity Law: Express, Implied Contractual, Tort-Based and Statutory”, 79 Mass. L. Rev. 50, 57 (1994).

In Knapik v. American Title Ins. Co., 1994 WL 878795, *2 (Mass. Super. 10/5/94), the Court stated:

To establish a claim for tort-based indemnity, Elander must be able to satisfy one of two recognized tests: the “vicarious and derivative” test or the “differing degree of fault” test….

The differing degree of fault test allows indemnity between tortfeasors if the indemnitee can both present a prima facie claim of liability against the indemnitor (usually judicially determined) and demonstrate a virtual lack of culpability by the indemnitee. See id. at 57. Although this test does not require a preexisting relationship between Carolina and Elander, the allegations in Elander’s third-party complaint do not satisfy either prong of this test.

1994 WL 878795, *2. (Emphasis added).

In Homart, the Court stated:

The general rule for tort-based indemnification is that indemnity is permitted where one party does not join in the negligent act but is exposed to derivative or vicarious liability for the wrongful act of another…. Courts have indicated, however, that in rare cases, the fault of one joint tortfeasor may be so slight as to grant it rights of indemnity against another joint tortfeasor….

Homart alleges that it had no involvement in or responsibility for the deposit of the asbestos-laced debris at Ternberry Estates, but that Ternberry knowingly purchased and utilized said debris as landfill at a financial profit. While the circumstances under which a negligent party may recover indemnification from a joint tortfeasor are indeed rare, this Court cannot say beyond doubt, based solely on the pleadings, that Homart is not entitled to relief under such a theory. Accordingly, Homart’s motion to dismiss Count XX of the second amended third-party complaint must be denied.

1997 WL 124103, *5-6.  (Emphasis added).

In his article, Alexander explains,

The vicarious and derivative test is not the only tort-based indemnity test created by Hollywood Barbeque. Over the years, Hollywood Barbeque has also been frequently cited as authority for allowing tort-based indemnity between tortfeasors. The case stands for the proposition that under certain circumstances a remotely responsible tortfeasor can claim indemnity from a predominantly responsible tortfeasor.

***

Clearly defined guidelines stating the extent of the disparity of fault necessary to satisfy the test do not exist. However, prevailing indemnitees present (1) a prima facie claim of liability against the indemnitor, usually judicially determined and (2) a near absence of any culpability on the part of the indemnitee….

Unlike vicarious and derivative type tort-based indemnity, the disparity of fault type does not require a preexisting relationship between putative indemnitor and indemnitee. ….

(Emphasis added, footnote omitted).

It should be noted that some Massachusetts courts have questioned the continued vitality of the differing degree of fault basis for common law indemnity.  Fraco Products, LTD v. Bostonian Masonry Corp., 84 Mass. App. Ct. 296 (2013).  See also Cartagena, 2002 WL 1283669, *3-4.  In Fraco, the Appeals Court stated:

Citing Rathbun v. Western Mass. Elec. Co., 395 Mass. 361, 479 N.E.2d 1383 (1985), Fraco argues in the alternative that further fact finding is necessary because if its own negligence (if any) were determined to be de minimis as compared to that of Bostonian, Fraco would be entitled to common-law indemnification under a “differing degree of fault” theory. In Rathbun, the Supreme Judicial Court noted that in rare exceptions, indemnification has been allowed to a joint tortfeasor….

Fraco contends that under the aforementioned language in Rathbun, Fraco would be entitled to common-law indemnification from Bostonian if Fraco’s fault is relatively insignificant in relation to that of Bostonian. Even assuming the continuing vitality of the differing degree of fault theory—an assumption which can be fairly questioned—we are unpersuaded by Fraco’s argument. Although the Supreme Judicial Court has adverted to the differing degree of fault theory in two modern decisions, see Rathbun, supra and Economy Engr. Co. v. Commonwealth, supra, in neither case was indemnification allowed. Moreover, a review of the cases cited in Rathbun reveals only one case, more than a century ago—before the existence of statutory contribution and workers’ compensation—in which the court allowed indemnification to one of two joint tortfeasors based on differing degrees of fault. See Boston Woven Hose & Rubber Co. v. Kendall, 178 Mass. 232, 236–237, 59 N.E. 657 (1901). Further, as the court indicated in Rathbun, indemnification between joint tortfeasors based on relative fault would seem functionally indistinguishable from contribution based on degree of fault, an approach the Legislature expressly precluded in G.L. c. 231B, § 2(a )…. Similarly, allowing for recovery based on differing degrees of fault in cases where, as here, the third-party defendant-employer has already paid workers’ compensation (a circumstance not considered in Rathbun or Economy Engr. Co.) would conflict with the policy behind the exclusivity provision of the workers’ compensation statute, G.L. c. 152, § 23. Accordingly, the trial judge correctly entered summary judgment on behalf of Bostonian, denying Fraco’s request for common-law indemnification.

84 Mass. App. Ct. at 304-05.  (Emphasis added).  The Court in Cartagena v. Lotus Development Corp., 2002 WL 1283669, *3-4 (Mass. Super. 6/3/02), also questioned whether the vitality of the degree of fault ground for common law indemnity, but felt bound by precedent to deny the indemnitor’s motion for partial summary judgment.  The Court stated,

A review of the cases cited in Rathbun reveals only one case in which the Court allowed indemnification to one of two joint tortfeasors, both of whom had been held liable for negligence, based on differing degrees of fault. See Boston Woven Hose and Rubber Company v. Kendall, 178 Mass. 232, 236-237 (1901). The facts there were remarkably similar to those presented here, considered in the light most favorable to Lotus, although the statutory context was significantly different, in that neither worker’s compensation nor statutory contribution yet existed.

***

Thus, although the Supreme Judicial Court has acknowledged the existence of the theory on which the plaintiff relies in at least two modern decisions, Rathbun and Economy Engineering Co. v. Commonwealth, 413 Mass. at 794, it appears to have actually applied that theory to approve an award of indemnification only once, a full century ago, before the existence of statutory contribution. In light of this history, one could fairly question the continued viability of the theory.

Nevertheless, based on the quoted language in Rathbun, at least two Superior Court decisions have denied pre-trail motions seeking dismissal of indemnification claims asserted on a theory of differing degrees of fault. See Commonwealth v. Homart Development Co., No. 95-2280B, 1997 WL 124103 (Mass.Super.Ct.1997) (Doerfer, J.); Knapik v. American Title Insurance Co., No. 922088, 1994 WL 878795 (Mass.Super.Ct.1994) (Butler, J.). This Court is obliged to do the same. It is not the role of this Court to declare moribund a doctrine that the Supreme Judicial Court appears to consider still in existence, albeit only for exceptional cases. Nor, on the record presented at this stage, can the Court determine that the facts developed at trial could not prove this case to be exceptional in some manner not presently apparent, such that the doctrine might have proper application.

2002 WL 1283669, *3-4.  (Emphasis added).

Based on the forgoing, it appears that despite doubts expressed by some courts, the Supreme Judicial Court decisions in Rathbun, Economy and Ford remain good law and that common law indemnity based on differing degrees of fault remains a viable argument.  A claim for indemnification should, therefore, be considered by a defendant who is only minimally at fault, where another defendant was significantly more to blame.

A recent decision of the Massachusetts Appeals Court arguably expands the “mode of operation” approach, a theory by which a slip and fall plaintiff can hold a commercial property owner liable for damages.  In Bowers v. P. Wile’s, Inc., 87 Mass. App. Ct. 362, 30 N.E.3d 847 (2015), the Court clarified that application of the mode of operation approach is not limited to cases where the dangerous condition causing the plaintiff’s accident resulted from breakage or spillage of items the defendant store is offering for sale.

The traditional premises liability rule.

Under traditional premises liability rules, where a foreign substance causes a plaintiff invitee’s slip and fall accident, the plaintiff can establish negligence on the part of the business owner in one of three ways: (1) by proving that the defendant caused the substance to be there; (2) by proving that the defendant had actual knowledge of the existence of the foreign substance; or (3) by proving that the foreign substance was present on the defendant’s premises for such a length of time that the defendant should have known about it.  If, under (2) or (3), above, the owner knows or should know of the dangerous condition, then the plaintiff must also show that the owner should have expected that invitees would not discover the danger or protect themselves from it, and that the owner failed to exercise reasonable care to protect invitees from the danger.

The Sheehan decision.

In Sheehan v. Roche Bros. Supermarkets, Inc., 448 Mass. 780 (2007), the Supreme Judicial Court adopted the so-called “mode of operation” approach, which focuses on whether the nature of the defendant’s business gives rise to a substantial risk of injury to customers. Under this approach, where a store owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner can be held liable for injuries to a customer if the customer proves that the owner failed to take all reasonable precautions necessary to protect customers from these foreseeable dangerous conditions.

The Sheehan Court held that the defendant supermarket’s use of a self-service mode of operation (in which customers select their items from the shelves rather than being waited on by store personnel) created the foreseeable risk that products would end up on the floor, posing a danger to customers who might be distracted by the store’s attractive displays of products. The plaintiff in Sheehan had slipped on a grape which had fallen to the floor in the self-service produce section of the store.

According to the Sheehan Court, the mode of operation approach does not eliminate the requirement that the store owner knows or should know of the presence of the foreign substance on the floor prior to the accident. However, notice is presumed where the owner knows or should know that its very method of operation is likely to cause such dangers. The plaintiff is relieved of the burden of proving notice by, for example, showing how long the foreign substance has been on the floor. The plaintiff is still required to show that the accident was caused by a foreign substance or other dangerous condition and that the store failed to take reasonable measures, commensurate with the dangers of self-service, to make the store safe for patrons. The plaintiff must also show that the dangerous condition was caused by the self-service mode of operation and not by other causes (e.g. a fall caused by a newly waxed floor).

The mode of operation approach could, theoretically, apply whenever a defendant’s method of doing business poses foreseeable dangers to customers.  Indeed, the Sheehan Court made clear that the rationale supporting the mode of operation approach “was based on the foreseeable likelihood that hazards could result from the owner’s self-service mode of operation, and that such ‘ conditions may include, but are not limited to, spilled foreign substances or fallen matter.’”  Bowers, 30 N.E.3d at 851, quoting Sheehan, 448 Mass. at 786 n.6.  Nevertheless, until recently, the courts have applied the mode of operation approach only in cases where defendant businesses were self-service establishments similar to supermarkets and the hazard was caused by the breakage or spillage of items which the defendant store was offering for sale.

The Bowers decision.

The plaintiff in Bowers was a customer who fell after stepping on a small river stone which was on the sidewalk after it had been moved from an adjacent gravel area maintained by the defendant store.  The sidewalk ran parallel to the store front and the gravel area was a strip, also parallel to the store front and located between the store and the sidewalk.  Between the gravel area and the front wall of the store was a porch area.  There was evidence that the store displayed merchandise on the porch and in the gravel area, and allowed customers to help themselves to products from those areas.  In other words, the store operated on a self-service basis in those areas.

It was a common occurrence for stones from the gravel area to be moved, by customer foot traffic or other causes, from the gravel area to the sidewalk.  Store personnel were aware of this fact and, when outside the store for other reasons, would look for stones on the sidewalk and kick them back onto the gravel area.  However, the store had no formal schedule for inspections of the sidewalk.

The trial court judge granted the store’s motion for summary judgment, “based on his view that the mode of operation approach applies only where the dangerous condition results from breakage or spillage of items offered for sale.”  Bowers, 30 N.E.3d at 848.  However, the Appeals Court reversed, holding that the mode of operation approach is not so limited in its application.  The Court explained,

We acknowledge that Sheehan, supra at 781, 863 N.E.2d 1276, itself, involved an injury caused by an item (a grape) that apparently fell from a self-service display to the supermarket floor before a customer slipped on it. However, under the rationale supporting the mode of operation approach, it should not matter whether the item that migrates from the self-service display to the floor (thereby causing a slipping hazard) is a grape or a quantity of shaved ice from the bed keeping the grapes cool. The distinction drawn by the motion judge between items offered for sale and other hazards foreseeably occurring as a result of the store’s use of a self-service mode of operation accordingly should make no difference in the applicability of the mode of operation approach. Moreover, as we have observed, the Supreme Judicial Court explicitly cautioned that its adoption of the mode of operation was not limited to “spilled foreign substances or fallen matter.” Sheehan, 448 Mass. at 786 n. 6, 863 N.E.2d 1276.

Returning to the facts of the instant case, … it is undisputed that the gravel area, the source of the stone causing the plaintiff’s injury, was a self-service area used for the display and sale of store merchandise, including large items, the manipulation of which foreseeably could (and often did) cause stones to move onto the sidewalk, creating a risk of tripping or falling. In our view, it is accordingly an appropriate circumstance for application of the mode of operation approach.

Bowers, 30 N.E.3d 847 at 852-53.

Having concluded that the mode of operation approach applied, the Appeals Court noted that there remained a factual dispute as to whether, in light of the risks posed by its mode of operation, the store had failed to take reasonable steps to prevent the accident that occurred.  It therefore reversed the summary judgment for the store and sent the case back to the trial court.

The Bowers decision expands the reach of the mode of operation approach.  By making clear that the dangerous condition leading to a plaintiff’s injury may be any condition foreseeably occurring as a result of the store’s use of a self-service mode of operation, and is not limited to the presence of store merchandise on the floor, the Bowers decision makes it easier for more plaintiffs to recover compensation.

Updated: August 24, 2020

This article appears substantially as published in the January 22, 2015, issue of the Massachusetts Lawyers Weekly. It has been modified where necessary to reflect changes in the Massachusetts Rules of Appellate Procedure. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

Having drafted an effective statement of issues for your appellate brief (the subject of my Aug. 18, 2014, column), your next task is to present the facts of the case.

How you present the facts in your appellate brief can be at least as important as your legal analysis. A skillfully drafted factual section will both establish your credibility in the eyes of the court and tell a compelling story, leading the judges to view the case from the perspective most favorable to your client and making them more receptive to the legal positions you take in the argument section.

The Massachusetts Rules of Appellate Procedure require that the facts be presented in two separate sections: (1) a Statement of the Case which describes the nature of the case, provides the procedural history relevant to the issues on appeal, and identifies the disposition of those issues by the trial court; and (2) a Statement of Facts section which describes the relevant facts but need not include facts otherwise included in the Statement of the Case.

Nature of the case

The nature of the case subsection should offer a very short, general description of the dispute between the parties and your view of the issues on appeal.

Procedural history

The procedural history must include appropriate citations to the record (i.e., to the appendix). It should include all procedural events that are relevant to the appellate issues, but should omit events that are not relevant. Accordingly, if the critical issues on appeal deal with evidentiary rulings at trial, there is no need to refer to most pre-trial events.

While it usually makes sense to set forth the proceedings below in chronological order, it is not required. In certain cases, when a procedural event or ruling gives rise to the central issue on appeal, it may make more sense to start the proceedings below section with that critical event.

Relevant facts

In the relevant facts section, you present in a neutral, non-argumentative tone all the facts relevant to the issues on appeal. If you prepared a summary of the record while reviewing it in preparation for drafting the brief, that summary can provide an initial draft of the relevant facts section.

Your relevant facts section has two primary goals: (1) to develop and maintain your credibility; and (2) to present the facts in such a way that the judges finish reading them with the sense, if you represent the appellant, that the trial court erred in a way that needs to be corrected or, if you represent the appellee, that no reversible error occurred below.

Maintaining credibility is essential. If the judges conclude that they cannot trust your presentation of the facts, they are much less likely to trust the law you present and the arguments you make in the argument section of your brief. To build credibility in your relevant facts section:

• Maintain a neutral tone and avoid presenting the facts in an overtly argumentative manner;
• Include only facts that are in the record (i.e., that were presented to the trial court);
• Be honest and complete. Include all relevant facts, whether they help your case or damage it. In addition to ethical concerns, omitting negative facts is counterproductive as it offers the opposing party an opportunity to attack your honesty;
• Cite meticulously to the record. Every factual statement must be followed by a citation to the appendix or transcript. Rules 16(a)(7); 16(e). If you convince the justices and their clerks that your citations are reliable, they will be more likely to use your brief as a reference document.

Your other goal, of course, is to structure this presentation so as to persuade the Appeals Court to rule in your client’s favor. Use this section to tell the justices a story, explaining the case from your client’s perspective and personalizing your client when possible. Usually, a chronological structure will work best for this narrative.

As the name of the subsection implies, you must include all relevant facts. Think ahead to your argument section. Any fact on which your argument will rely must be included in your relevant facts section. Strictly speaking, if a fact is not relevant to any of the appellate issues, and is not necessary to an understanding of the relevant facts, you can omit it. However, some facts that are not technically relevant will still contribute to the “story” you are trying to tell.

Like the statement of issues, while maintaining a neutral tone, you should craft your relevant facts section to stress facts favorable to your case and diminish facts that harm it. Ways in which that can be accomplished include:

• Placing positive facts near the beginning or end of paragraphs and sentences within paragraphs, while burying negative facts in the middle of paragraphs and sentences;
• Linking any negative facts to the circumstances that explain them;
• Placing paragraphs containing negative facts between paragraphs containing positive facts;
• Using active voice for positive facts (“Jones applied the brakes”) and passive voice for negative facts (“the brakes were applied by Jones”);
• Placing negative facts in subordinate clauses of sentences.

I offer the following additional suggestions:

• Use specific dates only when they are relevant (e.g., to a statute of limitations issue). Unnecessary dates distract the reader;
• Use subheadings within your relevant facts section. They help the reader navigate complex facts and also will appear in your table of contents, allowing it to serve as a summary of the facts and argument;
• Do not refer to the parties as appellant and appellee. Instead, use names that help the reader remember who is who (e.g., “Brown” and “the Company”);
• Use short quotations from the record, but avoid long quotes that will lose the reader’s attention;
• Revisit your relevant facts section after you finish drafting the argument section of your brief. Often, as the argument section becomes more developed, it may come to rely on facts that you did not initially include in the relevant facts.

Devote the time necessary to drafting an effective statement of relevant facts. By presenting the justice with a compelling story, and offering them the facts in the form most favorable to your client, you increase the likelihood that they will be receptive to your legal arguments.

My next column will focus on how to make those arguments clear and persuasive. 

Read other parts of the Appellate Brief Series:

• In Drafting Appellate Briefs, Step 1 is Know the Audience  (Appellate Brief Series, Part 1), Massachusetts Lawyers Weekly (2014).  Learn how to draft a more effective  and successful appellate brief by keeping in mind the unique concerns and expectations of Appeals Court justices.
• Steps to Take Before You Write (Appellate Brief Series, Part 2), Massachusetts Lawyers Weekly (2014).  Learn how advance preparation pays big dividends when drafting an appellate brief.
• Writing a Brief? Know the Technical Requirements (Appellate Brief Series, Part 3), Massachusetts Lawyers Weekly (2014).  Learn about the technical requirements for a Massachusetts appellate brief, including required sections, certifications, organization, formatting and filing.
• Get Off to a Good Start With a Strong Statement of Issues (Appellate Brief Series, part 4), Massachusetts Lawyers Weekly (2014).  A carefully drafted statement of issues is critical to the success of your appellate brief.
• A Persuasive Argument Requires an Effective Argument Section (Appellate Brief Series Part 6), Massachusetts Lawyers Weekly (2015).  Learn how to draft a convincing and persuasive argument section for your Massachusetts appellate brief.  It may be your only chance to present your legal positions.
• More on the Effective “Argument” Section (Appellate Brief Series Part 7), Massachusetts Lawyers Weekly (2015).  Learn more about drafting an effective “Argument” section for your Massachusetts appellate brief.  It’s your best chance to present your legal positions.

Read more about appeals here.

Learn about my appellate brief drafting services here.

Updated: August 24, 2020

This article appears substantially as published in the August 18, 2014, issue of the Massachusetts Lawyers Weekly. Attorney Manwaring writes the newspaper’s Appellate Issues column, which is devoted to matters arising from the appellate process.

My last column concerned how to ensure that a brief complies with the appellate rules. Here, the topic is the importance of drafting a clear and persuasive statement of issues.

A carefully drafted statement of issues is critical to the success of your appellate brief. An Appeals Court judge probably knows little if anything about your case before reading the briefs and is likely to go to those sections that provide an overview of the nature of the appeal, how the appellant claims the trial court erred, and what relief the appellant is seeking from the Appeals Court.

Accordingly, a judge may look at the statement of issues first.

Because your statement of issues may be the judge’s point of entry to your brief, it is very important that it clearly explains what the case is about. Care should also be given to choosing which issues, and how many, to appeal.

I recommend that you draft your statement before writing other portions of the brief. Having forced yourself to clearly identify and concisely explain the legal issues, you will be better prepared to decide which facts are relevant to those issues and should be included in your statement of relevant facts.

You also will have a better sense of how to structure the argument section of the brief to address those issues while ignoring irrelevant issues.

Form and clarity

Each issue should be stated in not more than one relatively short paragraph. Although many issues can be summed up in a single sentence, sometimes two or three sentences explain the issue more clearly.

Your appellate issues always should be stated as questions that can be answered “yes” or “no.”

I often begin an issue with “Whether …”, but other formulations (“Did…”, “Was…”) also work well. Unless there is good reason not to, the issue should be phrased so that the court can rule in your client’s favor by answering the question “yes.”

The issue must always be phrased in a neutral, non-argumentative way. Moreover, it should include the relevant facts, both those favorable and unfavorable to your case.

Consider, for example, a case in which the issue is whether an owner of property containing a swimming pool is liable under the child trespasser statute, G.L. c. 231, §85Q, for the death of a 17-year-old trespasser who drowned in the pool.

The primary defense is that the teen was old enough to discover and appreciate the risk posed by the pool. The issue of “whether the pool owner is liable under c.231, §85Q” is not nearly as good as one that includes the critical facts. The appellee pool owner might better state the issue as:

“Whether the pool owner is liable under c.231, §85Q, where the child trespasser was 17 years old, the pool was surrounded by a locked, 10-foot fence, and the pool contained no hidden dangers, although the pool area was unlit and unguarded.”

As that example demonstrates, you can stress favorable facts (e.g., by placing them near the beginning of the issue) and minimize unfavorable facts (e.g., by placing them later or by putting them in a subordinate clause).

It is often useful to incorporate the applicable standard of review in an issue. Thus, instead of asking whether the trial court erred when it excluded scientific expert testimony, ask whether the court abused its discretion in doing so.

Choice of issues

Although the trial court record may present many possible appellate issues, you should limit the appeal to issues that offer your client a realistic chance of success.

Given that only about 14 percent of appeals result in reversal, there are relatively few truly reversible errors. Thus, it is unlikely that you would have one, much less four, seven or ten in your case.

Including a large number of issues can be detrimental. You should not waste the limited pages of an appellate brief making arguments that are predestined to fail. Further, pursuing weak arguments undermines your credibility and may reduce the effectiveness of an otherwise strong brief.

Be selective

Consider the strength of your argument on each issue, both factually and legally. Investigate whether each potential issue was properly preserved for appeal (e.g., by objection at trial).

Also take into account the applicable standard of review. An issue subject to de novo review is more likely to succeed than one for which the standard is abuse of discretion.

A carefully drafted statement of issues introduces the Appeals Court judge to your case and provides a context for the facts and the law you present in later sections of the brief. The issues provide the lens through which the judge views those facts and arguments.

My next column focuses on how to present the facts, telling a story that convinces judges to rule for your client.

Read other parts of the Appellate Brief Series:

• In Drafting Appellate Briefs, Step 1 is Know the Audience  (Appellate Brief Series, Part 1), Massachusetts Lawyers Weekly (2014).  Learn how to draft a more effective  and successful appellate brief by keeping in mind the unique concerns and expectations of Appeals Court justices.
• Steps to Take Before You Write (Appellate Brief Series, Part 2), Massachusetts Lawyers Weekly (2014).  Learn how advance preparation pays big dividends when drafting an appellate brief.
• Writing a Brief? Know the Technical Requirements (Appellate Brief Series, Part 3), Massachusetts Lawyers Weekly (2014).  Learn about the technical requirements for a Massachusetts appellate brief, including required sections, certifications, organization, formatting and filing.
• Follow the Statement of Issues With a Strong Statement of the Case (Appellate Brief Series Part 5), Massachusetts Lawyers Weekly (2015). Your Massachusetts appellate brief should have a strong Statement of the Case, establishing your credibility, telling a compelling story, and supporting your legal positions.
• A Persuasive Argument Requires an Effective Argument Section (Appellate Brief Series Part 6), Massachusetts Lawyers Weekly (2015).  Learn how to draft a convincing and persuasive argument section for your Massachusetts appellate brief.  It may be your only chance to present your legal positions.
• More on the Effective “Argument” Section (Appellate Brief Series Part 7), Massachusetts Lawyers Weekly (2015).  Learn more about drafting an effective “Argument” section for your Massachusetts appellate brief.  It’s your best chance to present your legal positions.

Read more about appeals here.

Learn about my appellate brief drafting services here.

Updated: August 24, 2020

This article was originally 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 Rules, 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.

Formatting.

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. 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).

Also keep in mind the length limitations for primary and reply briefs set forth in Rules 20(a)(2-3), which provide alternative page and word count limits:   

Major headings.

Next, create major headings that correspond to the sections of the brief required by Rule 16(a). The appellant’s brief must contain, in the following order:

• A cover.
• A Corporate Disclosure Statement, if applicable.
• 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.
• An addendum which must contain: (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.
• A certification under Rule 16(k) that the requirements for briefs have been complied with, including the length limitation.
• 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. The appellee’s brief must also include an addendum and should include items even if they appear in the appellant’s addendum.

Inserting all of the required section headings at the outset helps ensure that you won’t forget a required section.

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.

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.

Read other parts of the Appellate Brief Series:

• In Drafting Appellate Briefs, Step 1 is Know the Audience  (Appellate Brief Series, Part 1), Massachusetts Lawyers Weekly (2014).  Learn how to draft a more effective  and successful appellate brief by keeping in mind the unique concerns and expectations of Appeals Court justices.
• Steps to Take Before You Write (Appellate Brief Series, Part 2), Massachusetts Lawyers Weekly (2014).  Learn how advance preparation pays big dividends when drafting an appellate brief.
• Get Off to a Good Start With a Strong Statement of Issues (Appellate Brief Series, part 4), Massachusetts Lawyers Weekly (2014).  A carefully drafted statement of issues is critical to the success of your appellate brief.
• Follow the Statement of Issues With a Strong Statement of the Case (Appellate Brief Series Part 5), Massachusetts Lawyers Weekly (2015). Your Massachusetts appellate brief should have a strong Statement of the Case, establishing your credibility, telling a compelling story, and supporting your legal positions.
• A Persuasive Argument Requires an Effective Argument Section (Appellate Brief Series Part 6), Massachusetts Lawyers Weekly (2015).  Learn how to draft a convincing and persuasive argument section for your Massachusetts appellate brief.  It may be your only chance to present your legal positions.
• More on the Effective “Argument” Section (Appellate Brief Series Part 7), Massachusetts Lawyers Weekly (2015).  Learn more about drafting an effective “Argument” section for your Massachusetts appellate brief.  It’s your best chance to present your legal positions.

Read more about appeals here.

Learn about my appellate brief drafting services here.