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Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 16: Briefs

Effective Date: 10/01/2005
Updates: Amended effective February 24, 1975 Amended May 15, 1979, effective July 1, 1979
Amended May 25, 1982, effective July 1, 1982 Amended November 17, 1986, effective January 1, 1987 Amended November 24, 1987, effective January 1, 1988 Amended effective May 5, 1989 Amended effective February 1, 1991 Amended effective January 1, 1992 Amended effective January 1, 1997 Amended June 11, 1997, effective July 1, 1997 Amended December 1, 1998, effective January 1, 1999 Amended February 5, 2003, effective March 3, 2003 Amended effective October 1, 2005

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(a) Brief of the appellant

The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1) In all briefs, a table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.

(2) A statement of the issues presented for review.

(3) A statement of the case, which shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below. There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record (see subdivision (e)).

(4) The argument, which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. In a brief with more than twenty-four pages of argument, there shall be a short summary of argument, suitably paragraphed and with page references to later material in the brief dealing with the same subject matter, which should be a condensation of the argument actually made in the body of the brief, and not a mere repetition of the headings under which the argument is arranged. The appellate court need not pass upon questions or issues not argued in the brief. Nothing argued in the brief shall be deemed to be waived by a failure to argue orally.

(5) A short conclusion stating the precise relief sought.

(6) Any written or oral findings or memorandum of decision by the court pertinent to an issue on appeal included as an addendum to the brief.

(7) In cases where geographical facts are of importance, unless appropriate plans are reproduced in the printed record or record appendix, an outline plan or chalk (preferably based on exhibits in evidence) shall be included. This outline plan should be suitable for reproduction on one page of the printed law reports.

(8) The printed names, Board of Bar Overseers (BBO) numbers, addresses, and telephone numbers of individual counsel, and, if an individual counsel is affiliated with a firm, the firm name.

(b) Brief of the appellee

The brief of the appellee shall conform to the requirements of subdivision (a)(1)-(4) and (7), except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.

(c) Reply brief

The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal. No further briefs may be filed except with leave of the appellate court. Reply briefs shall comply with the requirements of Rule 16 (a)(1).

(d) References in briefs to parties

Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as "appellant" and "appellee." It promotes clarity to use the designations used in the lower court, or the actual names of the parties, or descriptive term such as "the employee," "the injured person," "the taxpayer," "the landlord," etc. If the name of a party has been impounded or has been made confidential by statute, rule, or court order, counsel shall preserve confidentiality in briefs and oral arguments.

(e) References in briefs to the record

References in the briefs to parts of the record reproduced in an appendix filed with a brief (see Rule 18(a)) shall be to the pages of the appendix at which those parts appear. If the appendix is prepared after the briefs are filed, references in the briefs to the record shall be made by one of the methods allowed by Rule 18(c). If the record is reproduced in accordance with the provisions of Rule 18(f), or if references are made in the briefs to parts of the record not reproduced, the references shall be to the pages of the parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. No statement of a fact of the case shall be made in any part of the brief without an appropriate and accurate record reference.

(f) Reproduction of statutes, rules, regulations, etc.

If determination of the issues presented requires consideration of constitutional provisions, statutes, rules, regulations, etc. or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end.

(g) Massachusetts citations

Massachusetts Reports between 17 Massachusetts and 97 Massachusetts shall be cited by the name of the reporter. Any other citation shall include, wherever reasonably possible, a reference to any official report of the case or to the official publication containing statutory or similar material. References to decisions and other authorities should include, in addition to the page at which the decision or section begins, a page reference to the particular material therein upon which reliance is placed, and the year of the decision; as, for example: 334 Mass. 593, 597-598 (1956). Quotations of Massachusetts statutory material shall include a citation to either the Acts and Resolves of Massachusetts or to the current edition of the General Laws published pursuant to a resolve of the General Court.

(h) Length of briefs

Except by permission of the court, principal briefs shall not exceed fifty pages, exclusive of pages containing the table of contents, tables of citations and any addendum containing statutes, rules, regulations, etc. Except by permission of the court, reply briefs shall not exceed twenty pages. Permission of the court shall not be granted unless the moving party specifies the relevant issue or issues and why such issues merit additional pages. A motion of a party to exceed the page limits stated in this rule will not be granted except for extraordinary reasons.

(i) Briefs in cases involving cross appeals

If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for the purposes of this rule and Rules 18 and 19, unless the parties otherwise agree or the court otherwise orders. 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.

(j) Briefs in cases involving multiple appellants or appellees

In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.

(k) Required certification; non-complying briefs

The last page of each brief shall include a certification by counsel, or, if a party is proceeding pro se, by the party, that the brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass. R. A. P. 16(a)(6) (pertinent findings or memorandum of decision); Mass. R. A. P. 16(e) (references to the record); Mass. R. A. P. 16(f) (reproduction of statutes, rules, regulations); Mass. R. A. P. 16(h) (length of briefs); Mass. R. A. P. 18 (appendix to the briefs); and Mass. R. A. P. 20 (form of briefs, appendices, and other papers). A brief not complying with these rules (including a brief that does not contain a certification) may be struck from the files by the appellate court or a single justice.

(l) Citation of supplemental authorities

When pertinent and significant authorities come to the attention of a party after his brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited.

(m) References to impounded material

Upon the filing of any brief or other document containing references to matters that are impounded or have been made confidential by statute, rule, or order counsel (or a party if pro se), shall file a written notice with the clerk, with a copy to all parties, so indicating. Wherever possible, counsel shall not disclose impounded material. Where it is necessary to include impounded material in a brief, the cover of the brief shall clearly indicate that impounded information is included herein.

Reporter's note

(2005) In order to reduce the number of non-complying briefs, Appellate Rule 16(k) was amended in 2005 to require a certification that the brief complies with all of the rules of court that govern briefs. Counsel should be aware that a brief that does not contain the required certification may be struck by the court for non-compliance with the rule.

(2003) By virtue of the 2003 amendment to Appellate Rule 16(h), a party seeking leave to file a brief with additional pages must specify the issues involved and why they require additional pages. The rule also sets forth a standard of “extraordinary reasons” for the allowance of such a motion.

(1999) The 1999 amendments to Appellate Rule 16(h) were made together with the updating of Appellate Rule 20, the latter governing the form of briefs and appendices. The 1999 amendments to Appellate Rule 20 deleted references to standard typographic printing in recognition of the practice that briefs today are produced through computer wordprocessing and no longer through a typesetting and printing process. Accordingly, the page limitation for briefs produced by “standard typographic printing” of forty pages (and fifteen pages for reply briefs) has been deleted from the rule.

The existing page limitation on principal briefs produced by computer wordprocessing remains fifty pages, with reply briefs twenty pages.

(1999) New paragraph (6), added to Appellate Rule 16(a) effective in 1999, requires that any findings (written or oral) or memorandum of decision by the trial court pertinent to an appellate issue be included in an addendum to the appellant’s brief. Although findings or a memorandum of decision are already required to be included in the appendix to the brief (Mass.R.A.P. 18(a)), incorporating such matters in an addendum to the brief will enable a judge on appeal to locate quickly the trial court’s rationale for its decision, especially where there is a multi-volume appendix.

The reference to oral findings is intended to cover the situation where the trial judge has dictated findings into the record that have been transcribed or otherwise recorded. These findings must now also be included in an addendum to the brief.

This additional requirement will not serve to reduce the maximum number of pages for a principal brief. The page limitations contained in Mass.R.A.P. 16(h) are inapplicable to an addendum to a brief.

(1997) The amendment to Appellate Rule 16(a)(1), effective January 1, 1997, eliminates the provision that a table of contents and a table of cases, statutes, and other authorities be included only in briefs of twenty pages or more. All briefs must include these items.

The 1997 amendments to Appellate Rule 16(d) and (m) serve as a reminder to counsel to maintain confidentiality in briefs and oral argument of any information that has been impounded or designated as confidential. For example, where the name of a person is not subject to disclosure, counsel may use a generic term such as “child” or “juvenile” or may use a pseudonym or initials.
 
Illustrative statutes requiring confidentiality include G.L. c. 112, § 12S (petitions by minors seeking judicial determination of maturity in connection with abortion; see also Superior Court Standing Order No. 5-81, as amended, requiring that papers “shall be designated anonymously” such as with the titles “Mary Moe” or “Mary Doe”); G.L. c. 119, § 38 (names in care and protection proceedings); G.L. c. 119, § 65 (juvenile proceedings); G.L. c. 209A, § 8 (in abuse prevention proceedings, plaintiff’s address and case records involving a minor); G.L. c. 209C, § 13 (papers in paternity proceedings and a party’s address); and G.L. c. 210, § 5C (adoption proceedings).
 
Illustrative rules providing for confidentiality include Mass.R.Civ.P. 26(c) (trade secrets and other matters in connection with discovery) and Probate Court Supplemental Rule 401 (financial statements in connection with requests for support or alimony). The Uniform Rules on Impoundment Procedure also provide a mechanism to preserve confidentiality of matters contained in case papers.

Illustrative cases using pseudonyms include Care and Protection of Stephen, 401 Mass. 144, 514 N.E.2d 1087 (1987); C.C. v. A.B., 406 Mass. 679, 550 N.E.2d 365 (1990); Oscar F. v. County of Worcester, 412 Mass. 38, 587 N.E.2d 208 (1992); Adoption of Carla, 416 Mass. 510, 623 N.E.2d 1118 (1993); Doe v. Superintendent of Schools of Worcester, 421 Mass. 117, 653 N.E.2d 1088 (1995); Doe v. Purity Supreme, Inc., 422 Mass. 563, 664 N.E.2d 815 (1996); and Commonwealth v. Wotan, 422 Mass. 740, 665 N.E.2d 976 (1996).
 
There may be instances, however, where counsel will find it necessary to include confidential information in a brief in order to allow for full appellate review of the issue. In such instances, Rule 16(m) provides that counsel must alert the clerk’s office that confidential information is contained in a filing. In this way, the rule shifts the burden to counsel to alert the clerk’s office to the presence of impounded material so that the latter can take appropriate steps to safeguard the material in accordance with Supreme Judicial Court Rule 1:15, Impoundment Procedure.

These amendments, together with amendments to Appellate Rule 18, serve to preserve confidentiality of material in briefs, appendices, and oral argument.

(1991) Mass.R.A.P. 16(a)(7) and 20(a), final sentence, clause (5):

These amendments require individual counsel who are affiliated with a firm to include the firm name on filed briefs. Appellate judges need to know the firm names in order to determine correctly whether it is necessary to withdraw from a case.

(1986) This amendment is to clarify that reply briefs of more than twenty pages shall contain the tables and references required of other appellate briefs of that length. Such tables and references aid opposing parties and the court. This amendment corresponds, in part, to the 1986 amendment to Fed.R.A.P. 28(c).

(1982) Appellate Rule 16(l) is the same as F.R.A.P. 28(j), which became effective in 1979. Its purpose is to allow a concise letter to inform the court in a non-argumentative manner of a “pertinent and significant” authority discovered after the filing of a brief or oral argument. The amendment does not authorize reargument in the disguise of a supplementary citation.

(1979) Rule 16 was previously incorporated into criminal appellate procedure by Appeals Court Rule 1:15 (1975: 3 Mass.App.Ct. 803) and Supreme Judicial Court Rule 1:15 (1975: 366 Mass. 861). The rule is unchanged beyond amendment of subdivision (e) to reflect the fact that there may be more than one appendix in a criminal case. (Mass.R.App.P. 19[a] ).
 
The last two sentences of subdivision (a)(4) which provide that questions or issues not argued in the brief need not be decided, but that a failure to orally argue an issue does not waive it if argued in the brief, supersede the last two sentences of former Appeals Court and Supreme Judicial Court Rules 1:13 (1972: 1 Mass.App.Ct. 889, amended 1975: 3 Mass.App.Ct. 801. 1967: 351 Mass. 738, amended, 1975: 366 Mass. 801).

(1975) As originally promulgated, Appellate Rule 16(a)(4) made optional the use of a summary of argument. The new rule makes such a summary mandatory, if the brief contains more than 24 pages of argument (i.e. not including table of contents, table of cases, statutes, and authorities, statement of issues, and statement of the case). By explicit language, the summary must be something more than a mere recital of the argument headings.

Amended Appellate Rule 16(a)(4) makes explicit the long-standing principle that failure to discuss an issue in the brief may, at the discretion of the court, preclude reliance upon that point in oral argument. On the other hand, if the brief does include the question, failure to argue it orally does not waive the point.

Although earlier Massachusetts appellate citation form omitted the year of decision, the amendment to Appellate Rule 16(g) ensures that the year will be included in any citation.

(1973) Appellate Rule 16 establishes the form of the briefs: table of contents; statement of the issues; statement of the case; arguments; and conclusion. Appellate Rule 16(f) also requires the reproduction of relevant statutes and the like. None of the requirements will substantially change existing practice. Appellate Rule 16(e), stating the requirements in briefs for references to the record, likewise follows existing practice. See S.J.C. Rule 1:15; Appeals Court Rule 1:15.

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Updates: Amended effective February 24, 1975 Amended May 15, 1979, effective July 1, 1979
Amended May 25, 1982, effective July 1, 1982 Amended November 17, 1986, effective January 1, 1987 Amended November 24, 1987, effective January 1, 1988 Amended effective May 5, 1989 Amended effective February 1, 1991 Amended effective January 1, 1992 Amended effective January 1, 1997 Amended June 11, 1997, effective July 1, 1997 Amended December 1, 1998, effective January 1, 1999 Amended February 5, 2003, effective March 3, 2003 Amended effective October 1, 2005

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