Many attorneys and self-represented parties have questions about the appellate process. This page contains links to several different topics that attorneys and self-represented parties often ask the court about. Although this information is designed to provide answers to common procedural questions, it does not substitute for a careful review of all existing statutes, court rules, standing orders, and relevant case law.
When and how do I appeal an order or decision from the Lower Court?
A case is ready for appeal when an order, decree or judgment has entered as to all issues and all parties so that there is nothing left to litigate. The first step in the appeal is filing a notice of appeal in the clerk’s, register’s, or recorder’s office of the court in which your case was heard. View the Civil Appeals guide for an overview of when and where you must file your notice of appeal, which is the first step in the appeals process.
If the lower court judge has issued an order which is not a final judgment and you believe that the lower court judge has committed an error of law of an abuse or discretion, you may have the right to seek review in the single justice session, in certain instances. Click here to learn about the Appeals Court single justice session.
What is a notice of appeal?
A notice of appeal is a written statement prepared by you and filed in the lower court that has the name of your case, the lower court docket number, and states your intention to appeal the judgment. The notice of appeal should include your name and contact information, and should specify the order, decree or judgment that you are appealing. See Sample Notice of Appeal and Mass.R.A.P. 3(c).
The notice must be filed in the clerk's office of the lower court where your case was heard. See Mass.R.A.P. 4(a).
The notice of appeal tells the lower court to collect your case materials (to “assemble the record”) and send what’s called the “notice of assembly” to the Appeals Court.
How do I request transcripts?
You must contact the lower court clerk's office to get the information as to how to order the transcripts and how to pay for it. If you are indigent, you may file a motion in the lower court, supported by a current affidavit of indigency, asking to have the cost of the transcript paid by the Commonwealth.
If your case was decided just on the papers filed, for example, on a motion to dismiss, and no witnesses testified, it is not necessary to order a transcript. Whether or not you order a transcript, you are required to file a certificate in the lower court clerk's office stating that either a transcript is necessary for your appeal and you have ordered it, or that no transcript is necessary for the appeal.
See Mass.R.A.P. 9(d).
What does it mean to Assemble the Record?
"Assemble the Record" refers to the lower court clerk's office's action of placing together all of the original papers, exhibits, and the transcript, if any, filed in the lower court. This process begins once you file your Notice of Appeal with the trial court. Once the record has been assembled, it is not sent to the Appeals Court. Mass.R.A.P. 18(a). Instead, during the course of the appeal, the lower court keeps the record, and does not send any portion of the record to the Appeals Court, unless requested to do so by the Court.
The lower court clerk must complete assembly of the record within 21 days of receipt of all transcripts, subject to limited exceptions. Mass.R.A.P.9(e). If transcripts have been ordered, the assembly process may be delayed pending completion of the transcripts, a process that is beyond the control of the clerk's office.
What is the Notice of Assembly of the Record?
Once the record has been assembled, the lower court will send you a “Notice of Record Assembly” and send to the Appeals Court what is referred to as the “Record Assembly.” The Record Assembly is not the full record that the lower court has placed together, but is a collection of documents that includes the lower court docket and the notice(s) of appeal filed. Once your case has been entered, the Appeals Court relies on the Record Assembly to enter preliminary information about the case. The Record Assembly will remain in your case file during the course of your appeal.
If your case is a civil case, you must enter your appeal within 14 days of receiving this Notice of Record Assembly. You may mail your payment or request for waiver on the last day if accompanied by a certificate attesting that the day of mailing was within 14 days of receipt of the notice of assembly. Mass.R.A.P. 10(a)(1). Criminal cases are entered automatically by the court. Mass.R.A.P. 10(a)(2).
How do I “enter” or “docket” my appeal?
You must pay a fee to the Appeals Court within 14 days of receiving the notice from the lower court clerk, in order to have your case entered into the Appeals Court’s docket. The docket fee is $300 per appealing party. For example, if you and your spouse are both appealing, the fee is $600. The Appeals Court will accept payment in cash, check or money order, by credit card, or via eFileMA.com. Please note that if you electronically enter your appeal via eFileMA.com, the provider will charge you a separate convenience fee. Any check or money order is made payable to the "Commonwealth of Massachusetts." You may pay in person or mail your payment to:
Appeals Court Clerk's Office
John Adams Courthouse
One Pemberton Square
Boston, MA 02108
If you are not able to pay the docketing fee because you are indigent you may file a Motion to Waive the docket fee along with an affidavit of indigency. If you are unsure whether or not you qualify as indigent, you may want to review the topic of indigency and take a look at the affidavit to see what the standards are. The affidavit is available online or you may come to the Clerk's Office to fill out the Motion to Waive and the affidavit.
Failure to docket your appeal within the 14-day deadline will require the filing of a motion, with additional filing fee required, asking a single justice of the Appeals Court to permit your appeal to be docketed late.
What is the Notice of Entry?
After you docket your appeal, the Appeals Court Clerk's Office will send you a Notice of Entry with your docket number in the Appeals Court. This number will not be the same as your trial court docket number. You will be required to include this docket number on each document filed with the Appeals Court. Any time you call the Clerk's Office with questions about your case, you will be asked to provide this docket number.
The Notice of Entry includes additional information about how your case will proceed in the Appeals Court. Read it carefully. Also take this time to review the Massachusetts Rules of Appellate Procedure (Mass.R.A.P.) and the Appeals Court Standing Order Concerning Electronic Filing, which will govern the progress of your case in the Appeals Court.
What is the Docketing Statement?
After a case has been entered, all appealing parties (appellants and cross-appellants) are required to file and serve a docketing statement, according to the Appeals Court Standing Order Concerning Docketing Statements for All Appeals (Civil and Criminal) (see the Civil Docketing Statement or Criminal Docketing Statement). This requirement applies to both civil and criminal cases. The requirement does not apply to incarcerated self-represented litigants and does not apply to appellees.
The docketing statement provides the court with important background information involving your case that will be useful when the appeal is entered, screened, and considered by the court. It must be filed within fourteen (14) days after the Appeals Court issues the "Notice of Entry" of the appeal.
If you do not file the docketing statement, the court can deny any motion to enlarge time to file a brief or a motion to stay (or pause) appellate proceedings, until the docketing statement is filed.
What is a cross appeal?
When both sides of a trial court case seek to appeal a judgment, and both sides file a Notice of Appeal with the trial court, that is called a cross-appeal. Only one party will be designated the appellant. Generally, unless the parties specify otherwise, where a cross appeal is filed, the party that filed the first notice of appeal will be deemed the appellant for the purposes of filing briefs. The other party is referred to as the appellee/cross appellant. Both parties (the appellant and appellee/cross-appellant) are required to pay the $300 docketing fee within the 14-day deadline.
The brief of the appellee shall contain the issues and argument involved in his appeal as well as the answer to the brief of the appellant. Also, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal.
What are the Appeals Court rules about service?
Every motion, status report, brief and every other paper filed in the Appeals Court must also be served by first-class mail or by hand, unless otherwise allowed by an applicable standing order (such as such as through eFileMA.com, the e-filing system used at the Appeals Court), upon counsel for the opposing party or upon the opposing party if he or she is unrepresented. As proof of this, each filing must be accompanied by a certificate of service that specifies the date, the document filed, and the address to which it is sent. Please note that if you are filing the documents electronically through eFileMA.com, those documents may be electronically served through eFileMA.com pursuant to E-Filing Rule 7 and such service shall be considered compliant with Mass. R. App. P. 13, provided the other party or party's attorney has registered with eFileMA.com.
The certificate of service must include the date of service, manner of service, and the name and address of the person served must be filed with the Appeals Court at the time that you present any filing to the court. See Mass.R.A.P. 13, Mass.R.E.F. 7. It must be labeled with your correct case name and Appeals Court docket number.
What do I do if I was not served with a copy of a court filing?
You should first contact the opposing party to request a copy. If unsuccessful, you may file and serve a motion with the court that the other side is not complying with the rules regarding service and requesting an order for service.You may obtain copies of any filings from the Appeals Court Clerk’s Office but you will be charged for those copies (see the Appeals Court fee schedule).
How should I prepare my brief and appendix?
The official rules for filing briefs and appendices are contained in the Massachusetts Rules of Appellate Procedure, primarily in rules 1, 16, 18, 19, and 20, and the Massachusetts Rules of Electronic Filing (if the documents are filed electronically). The Appeals Court has also created a Guide to Appellate Briefs which explains the rules and helps you make sure you did not forget anything. The guide is not a substitute for the official rules and the rules control in the case of any ambiguity or conflict.
How do I request additional time?
If for some reason you cannot meet the prescribed deadline in which to serve and file your brief and appendix, you may file a motion for extension of time with the Appeals Court. The motion must explain your reasons for the requested extension, provide a date certain by which the brief will be filed, and be accompanied by a certificate of service which lists the name of the document being served, the date of service, the manner of service (e.g., e-service, first class mail, in hand service), and the names and addresses of all parties being served. A copy of the motion must be served on all other parties to the appeal.
It is the policy of the Court to grant no more than one motion for enlargement of time per side, the enlargement sought not to exceed 120 days, and then only on the basis of an affidavit setting forth:
(a) good cause to warrant the requested enlargement, and
(b) an explanation why the particular time period requested is reasonable.
Further enlargements of time will ordinarily not be granted absent genuine emergency, such as a death, illness, or serious injury.
In general, as with most motions, it can be expected that any motion to enlarge may be decided within 7 days, or sooner. If you have filed a motion to enlarge and your due date is coming up, the motion will not be expedited simply because your due date is approaching. The clerk’s office suggests that all motions to enlarge be filed at least 7 days before any impending due date.
Will my motion marked up for a hearing?
No. In general, the Appeals Court does not hold hearings on motions. Motions are decided based on the papers that have been filed, usually within a week or so of filing the motion.
What is the procedure for filing an opposition?
Any party may file a response in opposition to a motion within 7 days after service of the motion. However, motions filed under Rule 6 and other procedural motions (such as a motion to enlarge time) may be acted on by the court without waiting for an opposition. Any opposition received upon a motion that has been acted upon shall be treated as a request to reconsider, vacate, or modify the action. The Court or a single justice may shorten or extend the time for responding to any motion.
See Mass.R.A.P. 15.
My motion to enlarge time to file a brief was denied without prejudice because I did not file the docketing statement. What do I do?
What is an appellee?
If you were the prevailing party in the trial court and are responding to the appeal, and you did not file the notice of appeal, you are designated as the appellee.
An appellee is permitted, but not required to, file a brief. If the appellee does not file a brief, you will not be permitted to argue your side if oral argument is scheduled.
See Mass. R.A.P. 19(e).
May the appellee file a record appendix?
Only in a criminal case does an appellee have a right to file a supplemental appendix. In civil cases appellees are not permitted to file their own appendix without permission from the court. If you think that the appellant has left out important parts of the record below that you want the appellate court to consider when deciding the appeal, you must file a Motion for Leave to File a Supplemental Appendix explaining what additional documents you wish to include. When it is being filed by the appellee, the record appendix is referred to as a supplemental appendix. You may submit this motion before you file your brief, or at the time that you file your brief and supplemental appendix.
See Mass.R.A.P. 18(b)(5).
May the appellee file a reply to the appellant's reply brief?
No, not unless this is a cross appeal. In a cross appeal, the appellee is permitted to file a sur-reply brief. The deadline is the earlier of 14 days after service of the appellant's response and reply brief or 7 days before argument. Mass.R.A.P. 19(b).
How does the court determine which cases should be heard at argument?
Whether to schedule oral argument or to decide the appeal just on the briefs filed is a decision that is made by the court. A party does not have a right to oral argument on appeal.
In general, an appeal is considered “ready” for the court’s review when the appellee’s brief is filed. At that time, the Court will review the appellant's and appellee's briefs in order to determine whether or not the court will hear oral argument on the case. (The reply brief is reviewed at whatever point it is submitted.) Based on this determination, an appeal may either be scheduled for oral argument before a panel of three Appeals Court judges or it may be decided “on the briefs” by a panel without oral argument.
When will my appeal be decided?
You may expect that your appeal in a civil case will be scheduled for argument or referred to a panel for decision on the briefs approximately six months after the appellee's brief is filed. Criminal cases will be scheduled for argument or referred to a panel approximately five months after the appellee's brief is filed. From that point, or from the date of oral argument if one is held, the panel usually issues its decision within 130 days of receiving the case.
If I am not happy with the Appeals Court decision, can I appeal?
Technically, there is no "appeal" to a higher court from a decision made by the Appeals Court. However, you may request review of the Court's decision by filing a petition for rehearing (which will be reviewed by the same Appeals Court panel) or by filing an application for further appellate review with the Supreme Judicial Court. See Mass.R.A.P. 27 and Mass.R.A.P. 27.1.
How do I file a motion for reconsideration or modification of decision?
A motion for reconsideration or modification of decision must state the points of law or fact you contend the court has overlooked or misapprehended. The motion shall not exceed either 10 pages of text in monospaced font or 2,000 words in proportional font. The deadline is within 14 days of the date of the Appeals Court's decision. There is no fee. Mass.R.A.P. 27.
Attorneys must file the motion via eFileMA.com. If e-filed, no paper copy is required.
How do I file an application for further appellate review?
Within 21 days after the date of the Appeals Court's decision, any party to an appeal may file an application for further appellate review of the case by the full Supreme Judicial Court. Applications for further appellate review are governed by the provisions of Rule 27.1 of the Massachusetts Rules of Appellate Procedure. Click here for more information about further appellate review.
Where can I get more information about appellate process?
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Depending upon your income and legal problem, you may be able to get free legal services. Check out the Legal Resource Finder provided by Mass Legal Help or try calling a local lawyer referral service:
Massachusetts Bar Association: 866-627-7577
Boston Bar Association: 617-742-0625
National Lawyers Guild: 617-227-7008
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You may also be able to get assistance from the Civil Appeals Clinic. The Civil Appeals Clinic is run by the Volunteer Lawyers Project and held at the Appeals Court Clerk’s Office on Wednesdays between 12:30 p.m. - 4:00 p.m. The clinic is staffed by volunteer attorneys and is limited to low-income persons who qualify for services. At the clinic, free attorneys can explain the process for appealing a judgment or decision and answer questions about it.