Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 19: Filing and serving of briefs and motions

Effective Date: 04/01/2004
Updates: Amended May 15, 1979, effective July 1, 1979 Amended effective February 1, 1991
Amended effective July 1, 1991 Amended October 30, 1997, effective January 1, 1998 Amended July 28, 1999, effective October 1, 1999 Amended February 26, 2004, effective April 1, 2004

Contact

Trial Court Law Libraries

(a) Time for serving and filing briefs

Except as provided in section (d) of this rule, and in Rule 11(g)(4) concerning the filing of briefs on direct appellate review, and in Rule 27.1(f) concerning the filing of briefs on further appellate review, the appellant shall serve and file his brief within 40 days after the date on which the appeal is docketed in the appellate court. The appellee shall serve and file his brief within thirty days after service of the brief of the appellant. The appellant may serve and file a reply brief within fourteen days after service of the brief of the appellee, but, except by leave of the appellate court or a single justice, for good cause shown, a reply brief must be filed at least three days before the first day of the sitting at which the case is in order for argument.

(b) Number of copies to be filed and served

(1) Appeals Court. On appeals to the Appeals Court, seven copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser number, and two copies shall be served on counsel for each party separately represented.

(2) Supreme Judicial Court. On appeal to the Supreme Judicial Court, an original and seventeen copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser or greater number, and two copies shall be served on counsel for each party separately represented.

(3) Appeals transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which briefs have already been filed in the Appeals Court, eleven additional copies of each brief shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a lesser or greater number.

(c) Consequence of failure to file briefs

If an appellant fails to file his brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to file his brief, he will not be heard at oral argument except by permission of the appellate court.

(d) Rule for appeals pursuant to Massachusetts General Laws Chapter 278, sec. 33E

(1) In the case of a direct appeal by an appellant who has been convicted of first degree murder, the appellant shall within one hundred and twenty days after the date on which the appeal is docketed in the Supreme Judicial Court: (1) serve and file the appellant's brief; (2) serve and file a motion for new trial; or (3) for good cause shown, seek a further enlargement of time for filing a brief or a motion for new trial. The commonwealth shall serve and file its brief within ninety days after service of the brief of the appellant. The appellant may serve and file a reply brief within the thirty days after service of the brief of the Commonwealth.

(2) If a motion for new trial is remanded to the Superior Court, the direct appeal of the conviction shall be stayed pending decision on the motion for new trial. The matter shall be heard and determined expeditiously in the Superior Court. The appellant shall file with the Clerk of the Supreme Judicial Court for the Commonwealth status reports at thirty-day intervals. An appeal by the defendant from the denial of a motion for new trial shall be consolidated with the direct appeal. An appeal by the Commonwealth or by the defendant from the determination of a motion for new trial shall have the same docket number as the direct appeal. The Clerk of the Supreme Judicial Court for the Commonwealth shall establish a briefing schedule.

Reporter's notes

(2004) The first sentence of Appellate Rule 19(a) has been amended to be consistent with the simultaneous amendment to Appellate Rule 27.1(f) . As amended in 2004, Appellate Rule 27.1(f) provides that upon further appellate review in the Supreme Judicial Court, a party may rely on the brief filed in the Appeals Court or may request permission to file a new brief in lieu of the Appeals Court brief.

(1999) The 1999 amendments added new Appellate Rule 19(d) to deal with direct appeals to the Supreme Judicial Court from first-degree murder convictions pursuant to G.L. c. 278, § 33E. The changes to Appellate Rule 19 were based on recommendations made by the Ad Hoc Supreme Judicial Court Committee on Appeals in Cases of Murder in the First Degree, a committee consisting of defense attorneys and prosecutors who handle first degree murder appeals. The major purpose of the amendments was to establish realistic time periods for the briefing of such appeals.

Paragraph (1) of Appellate Rule 19(d) substantially lengthens the time period for the service and filing of briefs that is provided for cases other than first-degree murder appeals in Appellate Rule 19(a). The time period for the appellant’s brief has been increased from 40 days to 120 days; the time period for the Commonwealth’s brief has been increased from 30 days to 90 days (and any reply brief by the appellant to be served and filed within 30 days). A defendant must serve and file a motion for new trial within 120 days of docketing the appeal in the Supreme Judicial Court.

Paragraph (2) of Appellate Rule 19(d) provides for a stay of the direct appeal in the event the Supreme Judicial Court remands to the Superior Court a motion for new trial. In such event, the appellant must file status reports with the Clerk of the Supreme Judicial Court for the Commonwealth every 30 days. An appeal by the defendant from the Superior Court judge’s denial of a motion for new trial is to be consolidated with the direct appeal under the same docket number. In such a case, the Clerk of the Supreme Judicial Court will establish the schedule for briefing.

(1997) The 1997 amendments to Appellate Rule 19(b) were prompted by the need for additional copies of filings to accommodate the practice in which all seven Justices of the Supreme Judicial Court sit on many cases.

Appellate Rule 19(b)(2), dealing with appeals to the Supreme Judicial Court, was amended to increase to seventeen the number of copies of each brief to be filed with the clerk of the Supreme Judicial Court, unless otherwise ordered. The amendment also clarified that an original is to be filed together with the seventeen copies.

Appellate Rule 19(b)(3), dealing with appeals transferred to the Supreme Judicial Court from the Appeals Court in cases where briefs had already been filed in the Appeals Court, was amended to increase to eleven the number of additional copies to be filed with the clerk of the Supreme Judicial Court, unless otherwise ordered.

(1991) Experience has demonstrated that seven copies of briefs are needed by the Appeals Court and fifteen by the Supreme Judicial Court. This amendment, reducing the number of copies from fifteen in the Appeals Court, should save money for the parties and the Commonwealth, as well as storage space for the court. When a case is transferred from the Appeals Court to the Supreme Judicial Court, in which briefs have already been filed, the clerk of the Appeals Court must transmit the seven copies of the briefs already filed (Mass.R.A.P. 11(f)), and the parties must promptly deliver an additional eight copies to the clerk of the Supreme Judicial Court (Mass.R.A.P. 19(b)(3)).

(1979) There is no change in the substance of subdivision (a), but applying the rule to criminal appeals does enlarge the times for filing of the appellant’s brief found in former Appeals Court and Supreme Judicial Court Rules 1:16 (1975: 3 Mass.App.Ct. 804. 366 Mass. 861-62) from twenty-eight to forty days after docketing (Mass.R.App.P. 10[b] ). Further, under the former court rules, the appellee’s brief was required to be filed within forty-nine days after entry of the case, while up to seventy days after docketing is allowed by this rule (within thirty days after service of appellant’s brief). Thus, in the usual appeal, the defendant’s brief is due forty days after docketing and the Commonwealth’s brief thirty days thereafter. The abolishing of assignments of error (former G.L. c. 278, § 33D [St.1974, c. 458, § 2] ) eliminate one step in prior appellate procedure which generated a great deal of delay. Section 33D of chapter 278 required that assignments were to be filed within thirty days after receipt of notice of the completion of the summary of the record (G.L. c. 278, § 33C [St.1974, c. 458, § 1] ), but that time could be extended by a justice of an appellate or lower court. Much of the delay was attributable to the fact that assignments could not be prepared until the trial transcript had been received and reviewed for error.

Appeals Court and Supreme Judicial Court Rules 1:16 permitted either party to file a reply brief; under Rule 19, only the appellant may do so. Twenty-five copies of each were required to be filed by both the former court rules and by Appellate Rule 19(b). Subdivision (b) has been amended to reduce that number to fifteen, the reduction being applicable in civil and criminal cases alike. The requirement in subdivision (b) that two copies of briefs be served upon each party separately represented is consistent with former Appeals Court and Supreme Judicial Court Rules 1:16.

(1973) Appellate Rule 19 sets the time table for the filing of briefs. Appellant must file his brief within 40 days after the docketing of the appeal (which occurs ten days after the record is assembled, see Appellate Rule 10(a); assembly occurs “as soon as may be after the filing of the notice of appeal,” Appellate Rule 9(a)). Thus appellant’s brief ordinarily must be filed approximately 50 days after the filing of his notice of appeal, (plus however long the lower court clerk requires for assembling the record). Appellee must file his brief within 30 days after service of appellant’s brief. The appellant may serve a reply brief within 14 days after service of the appellee’s brief. Although Appellate Rule 19 somewhat enlarges previous appellate timetables, see S.J.C. Rule 1:16 and Appeals Court Rule 1:16, it should occasion no unusual difficulties.

Downloads

Contact

Updates: Amended May 15, 1979, effective July 1, 1979 Amended effective February 1, 1991
Amended effective July 1, 1991 Amended October 30, 1997, effective January 1, 1998 Amended July 28, 1999, effective October 1, 1999 Amended February 26, 2004, effective April 1, 2004

Feedback

Did you find what you were looking for on this webpage? * required
We use your feedback to help us improve this site but we are not able to respond directly. Please do not include personal or contact information. If you need a response, please locate the contact information elsewhere on this page or in the footer.
We use your feedback to help us improve this site but we are not able to respond directly. Please do not include personal or contact information. If you need a response, please locate the contact information elsewhere on this page or in the footer.

If you need to report child abuse, any other kind of abuse, or need urgent assistance, please click here.

Feedback