(a) In General. In lieu of the expedited appeal provided in Rule 8A or appeal on the record of proceedings as provided in Rule 8C, the parties may elect to submit an agreed statement of the case, which, upon approval by the trial court, shall constitute the record on appeal.
(b) Filing and Contents. Within thirty days after (1) the filing of a notice of appeal or (2) termination of an expedited appeal, the parties may prepare, sign and file in the trial court an agreed statement of the case. The agreed statement shall contain a copy of the notice of appeal, shall show how the issues presented by the appeal arose and were decided in the trial court and shall set forth only so many of the facts proved or sought to be proved as are essential to a decision of the issues presented.
(c) Approval by the Trial Court. The statement shall be deemed approved by the trial judge unless within fifteen days of its filing the trial judge, with or without a conference, enters an order of disapproval on the grounds that it does not accurately state the facts or how the issues arose. The trial judge may condition approval upon the inclusion of such additions or deletions as he or she considers necessary to present fully and accurately the issues raised by the appeal. The clerk shall serve notice on all parties of the approval or disapproval of the agreed statement which shall include any conditions, additions or deletions made by the trial judge.
If the agreed statement is disapproved, or approved on conditions or with additions or deletions that any party finds unacceptable, the agreed statement may thereupon be considered terminated and the party wishing to appeal may proceed under Rule 8C, or either party may move for a hearing on such revised agreement and the matter shall proceed as the judge may permit, within such times as the judge may permit. Failure to achieve an agreed statement that is acceptable to the parties and approved by the court shall result in a disapproval concluding the matter and the party wishing to appeal may proceed under Rule 8C.
(d) Copies; Briefs; Transmission to the Appellate Division. Within twenty-five days after receipt of notice of approval of the agreed statement from the clerk, as provided above, the appellant shall file six additional copies of the agreed statement and six copies of its brief. One copy of its brief shall be served on the other parties within the same time limit. The appellee shall serve one copy and file six copies of its brief within fifteen days after service of the appellant's brief. The appellant may serve one copy and file six copies of a reply brief within ten days after service of the appellant's brief. Such briefs shall be in compliance with Rules 16 and 20 of these rules, except that no appendix shall be required. After the expiration of sixty days from final approval of an agreed statement, the clerk shall transmit to the Appellate Division six copies of the agreed statement, six certified copies of the docket entries and six copies of the briefs of each party, if any, unless the court allows further time for the filing of briefs or any other reason. Said transmission shall not be delayed by the failure of any party to file a brief within the required period or any extension thereof, provided, however, that the consequences for failure to file a brief shall be governed by Rule 19(c) .
Effective July 1, 1994.
This rule provides the second option for appeal to the Appellate Division. It has no equivalent under the Mass.R.A.P. It may be used instead of the other two or if the expedited appeal is tried but fails. It allows the appellant, with the agreement of the appellee and approval of the court, to frame the issues for appeal in a relatively brief form.
It can be in the appellee's interest to agree to an accurate statement of the issues and cooperate with this method of appeal because of the cost that will be incurred if appeal on the full record becomes necessary.
Once the agreed statement is timely filed and served, court approval is presumed unless an order of disapproval is entered by the court within fifteen days of the filing. If the court conditions its approval on changes, the appellant can terminate the process and proceed under Rule 8C or either party can request a hearing to resolve the matter and achieve an agreed statement in final form.
It should be noted that notice from the clerk of approval or disapproval of the agreed statement includes approval resulting from inaction by the trial judge. That is, if fifteen days passes from the filing of the agreed statement and the judge does not enter an order disapproving the statement, the clerk must send notice of approval to the parties. This notice triggers the next step, the filing of briefs in the trial court.
The clerk must transmit the case to the Appellate Division at the expiration of sixty days from approval of the agreed statement. This allows sufficient time for filing of briefs. If they are not filed, the case must be transmitted anyway. Note that when a party fails to file and serve a brief and the case is transmitted to the Appellate Division, the consequences of the failure are governed by Rule 19.
No appendix to the appellant's brief is required. The agreed statement itself fulfills that function.
When an agreed statement is "conditionally approved" by the court, the rule permits the court to schedule and hear argument as to the additions, deletions or changes involved, on its own timetable. If an acceptable agreement can be formulated and approved by the court, briefs can be filed and the matter transmitted to the Appellate Division. If an agreed statement cannot be formulated, the court will disapprove and the procedure is terminated, leaving the appellant with the Rule 8C avenue of appeal.