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Highlights of 2016 Appellate Rules Amendments

Last week, we noted here and here that the Supreme Court had adopted amendments to the Appellate Rules. The two biggest changes were the adoption of new en banc Rule 31.1 and the modified font rules under Appellate Rules 26 and 28 and Appendix B, which we blogged about in earlier posts.

The remaining changes appear to be technical amendments designed to clarify ambiguities in the rules or to bring the Appellate Rules into compliance with current practice.

A Few Extra Words

The big news is that Courier font is dead in 2017.  However, your trusty Court of Appeals’ brief template will also need an updated certificate of compliance. Rule 28(j) clarifies that captions and counsel’s signature block do not count against the word court limit for briefs filed in the Court of Appeals. Also, did you figure out a quick way to ensure that your brief did not contain more than “twenty-seven lines of double-spaced text” on any page?  No?  I didn’t either.  Thankfully, that provision has been deleted as well.

Reply Briefs And Appellate Rule 3.1

These amendments clarify that the 2013 amendments, which allow reply briefs as of right, also apply to Rule 3.1 cases. Also, Appendix A’s timetables were updated to reflect the 2013 reply brief changes.

A Reminder to Check Two Rules To Figure Out Where To File A Transcript Extension Request

Rule 27(c) used to say that all appellate-related requests for an extension of time—other than the first request for more time to serve the proposed record on appeal—were filed in the appellate division. That was not a 100% accurate statement. Appellate Rule 7 stated that in all but death penalty cases, the trial court was authorized to grant the first extension of time to produce the transcript.  Taking Appellate Rule 27 at its word, many practitioners would file their first motion for extension of time to produce the transcript in the appellate courts—with the appellate court denying the motion and handing out advice to take a look at Appellate Rule 7.  The amendments fixed that inconsistency, specifically adding to Rule 27 that certain transcript extension requests are to be filed in the trial court per Appellate Rule 7.

The 2009 Mystery Sentence That Few Knew How To Comply With

As part of the 2009 amendments, a mystery sentence was added to Appellate Rule 7(a)(1):  “If the appellant intends to urge on appeal that a finding or conclusion of the trial court is unsupported by the evidence or is contrary to the evidence, the appellant shall cite in the record on appeal the volume number, page number, and line number of all evidence relevant to such finding or conclusion.”  This sentence created considerable confusion. First, it essentially buried a record on appeal requirement in an Appellate Rule that otherwise dealt with transcripts.  Moreover, it was unclear how an appellant could cite to transcript evidence relevant to a disputed finding or conclusion if the appellant was arguing on appeal that no such evidence existed.  Because few people knew about this requirement—and even fewer knew how to comply with it—the amendments deleted this sentence, bringing the rules into conformity with current practices.

How Many Copies Of The Record Does The Clerk Want?

Appellate Rule 12(c) includes a provision governing the filing of appellate record documents. The Court of Appeals clerk was constantly asking for additional copies of certain record documents because prior Appellate Rule 12(c) was unclear.  Appellate Rule 12(c) was updated to provide that an appellant is required to file one copy of the printed record and any paper deposition or administrative hearing transcripts not electronically filed by the court reporter under Appellate Rule 7.  Because Rule 9(d) documentary exhibits and the Rule 11(c) Supplement are not reproduced by the clerk, the appellant is required to file three copies of those.

Not All Documents Can Be Electronically Filed In The Court of Appeals

Appellate Rule 26(a)(2) used to say that all appellate documents could be e-filed.  The problem is that the Court of Appeals does not permit parties to e-file any of the record on appeal components, instead requiring paper filings.  Appellate Rule 26(a) has been amended to state that “Many documents may be filed electronically through the use of this site. The site identifies those types of documents that may not be filed electronically.

Interestingly, the Supreme Court allows e-filing of all documents—meaning if you have a direct appeal to the Supreme Court and want to e-file the entire appellate record, you do not have to count copies per Appellate Rule 12(c).

Appellate Rule 18 Gets Some Much-Needed Attention

When extensive changes are made to the rules governing appeals from the superior court, you might notice that two or three years later, those same changes will finally find their way into Appellate Rules 18 and 20.  With these latest amendments, Rule 18 finally received a much-needed update.  First, the rules were changed to provide that objections and amendments to the proposed record are not filed—only served (just like Appellate Rule 11).

In addition, the Administrative Procedure Act was revised in 2011, empowering the administrative law judges of the Office of Administrative Hearings to issue final decisions in some so-called “contested cases.”  Appellate Rules 18 and 20, however, continued to refer to appeals taken from “agencies,” which was no longer accurate for all administrative appeals.  Now, these Rules uses the phrase “administrative tribunal” in place of “agency.”  They also now more accurately reflect current practice for those appeals of right taken from administrative agencies, boards, commissions, and the Office of Administrative Hearings.

The Standard Of Review And The Statement Of Appellate Jurisdiction

In the past 20 years, the rules were amended to require the addition of both an appellate jurisdiction statement and a standard of review to appellate briefs.  Until these most recent amendments, Appendix E’s sample brief index did not include these provisions. It does now.

Numerous Other Non-Substantive Changes

I will not bore you with details of the numerous insignificant changes to the Appellate Rules (for example, replacing “Appeal Information Statement” with the acronym “AIS”).  However, you may notice that the annotations that used to be at the end of each rule have been deleted.  Since 2009, these annotations have listed the dates on which each rule (or its subparts) were adopted or amended. Instead, these annotations have been replaced with “History Notes” containing hyperlinked citations to every Supreme Court order that changed that particular rule.

–Beth Scherer

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3 Responses to "Highlights of 2016 Appellate Rules Amendments"

  • Leslie Rawls
    December 28, 2016 - 4:21 pm Reply

    Very useful summary, Beth. Thank you!

  • Glenn Gerding
    December 28, 2016 - 5:03 pm Reply

    The Order adopting the rules and the preamble to the rules indicate the new rules are effective for cases appealed on or after January 1, 2017. (The new en banc rule, Rule 31.1 states that it is effective immediately).

    Is it your understanding that both appellate courts are OK with practitioners going ahead and switching to the use of the fonts and font sizes authorized by the new rules?

    • Beth Scherer
      December 28, 2016 - 5:35 pm Reply

      Glen–For the font type yes. All of the new “favored” fonts will comply with the old rules. Font size is the gray area b/c the old rules required 14 point (which is an obnoxious font size for century schoolbook, in my humble opinion). While I feel fairly confident that the Supreme Court justices and many of the Court of Appeals judges would be fine with briefs using the new font size rules moving forward (regardless of “effective” date), I obviously can’t speak for them. The safest advice (at least until we hear otherwise) is to use 14-point Century for current appeals, and then switch to 12 or 13-point font for appeals filed under the new rules.

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