Rules of Appellate Procedure

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

Effective Date: 03/01/2019
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 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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Table of Contents

(a) Time for serving and filing briefs and appendices in all cases except cross appeals

Except as provided in Rule 19(c) (first degree murder appeals), Rule 11(g)(4) (direct appellate review), and Rule 27.1(f) (further appellate review), the following briefs and appendices shall be due as stated below:

(1) Appellant brief and appendix

The appellant shall serve and file a brief and appendix within 40 days after the date on which the appeal is docketed in the appellate court.

(2) Appellee brief 

The appellee shall serve and file a brief within 30 days after service of the brief of the appellant (or, in the case of multiple appellants, service of the last appellant brief).

(3) Reply brief 

Except by leave of court, any reply brief must be served and filed by the earlier of

(A) 14 days after service of the brief of the appellee (or, in the case of multiple appellees, service of the last appellee brief), or

(B) 7 days before argument.

(b) Time for serving and filing briefs and appendices in cases involving cross appeals

Except as provided in Rule 19(c) (first degree murder appeals), Rule 11(g) (direct appellate review), and Rule 27.1(f) (further appellate review), the following briefs and appendices shall be due when stated:

(1) Appellant’s principal brief and appendix 

The appellant/cross-appellee shall serve and file a brief and appendix within 40 days after the date on which the appeal is docketed in the appellate court.

(2) Appellee’s principal and response brief and appendix 

The appellee/cross-appellant shall serve and file a brief and appendix within 30 days after service of the brief and appendix of the appellant (or, in the case of multiple appellants, service of the last appellant brief).

(3) Appellant’s response and reply brief 

The appellant/cross-appellee reply brief must be served and filed within 30 days after service of the brief of the appellee/cross-appellant.

(4) Appellee’s reply brief 

Except by leave of court, any reply brief must be served and filed by the appellee/cross-appellant by the earlier of (A) 14 days after service of the brief of the appellant/cross-appellee (or, in the case of multiple appellant/cross-appellees, service of the last appellant/cross-appellee brief), or (B) 7 days before argument.

(c) Time for serving and filing briefs, appendices, and motions for new trial in first degree murder appeals

(1)

In the case of a direct appeal by an appellant who has been convicted of first degree murder, the appellant shall within 120 days after the date on which the appeal is docketed in the Supreme Judicial Court: (A) serve and file the appellant’s brief and appendix; (B) serve and file a motion for a new trial; or (C) for good cause shown, seek a further enlargement of time for filing a brief and appendix or a motion for a new trial. The Commonwealth shall serve and file its brief within 90 days after service of the brief of the appellant. The appellant may serve and file a reply brief within the 30 days after service of the brief of the Commonwealth.

(2)

If during the pendency of the direct appeal a motion for a new trial is remanded to the Superior Court, the direct appeal of the conviction will ordinarily be stayed until the motion is decided. 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 as directed by the Court. An appeal by the defendant from the denial of a motion for a 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 a 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.

(d) Number of copies to be filed and served

(1) Briefs and appendices

(A) Appeals Court

Except as provided in the Appeals Court Standing Order Concerning Electronic Filing, on appeal to the Appeals Court, 4 copies of each brief and appendix shall be filed with the clerk, unless the court by order in a particular case shall direct a different number, and 2 copies shall be served on counsel for each party separately represented, 2 copies of each shall be served on counsel for all jointly represented parties, and 2 copies of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a different number.

(B) Supreme Judicial Court

(i) On appeal to the Supreme Judicial Court, 7 copies of each brief and appendix shall be filed with the clerk, unless the court by order in a particular case shall direct a different number, and 2 copies shall be served on counsel for each party separately represented, 2 copies of each shall be served on counsel for all jointly represented parties, and 2 copies of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a different number.

(ii) Appeals Transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which briefs and appendices have already been filed in the Appeals Court, 7 copies of each brief and appendix shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a different number.

(2) Exhibits and transcripts in civil cases

Exhibits and transcripts or portions thereof in civil cases, designated for inclusion in the appendix, may be contained in separate volumes, suitably indexed.

(A) Appeals Court 

Except as provided in the Appeals Court Standing Order Concerning Electronic Filing, on appeal to the Appeals Court, 2 copies of the exhibit volume or volumes, and 1 copy of the transcript volume or volumes shall be filed with the brief and appendix and 1 copy of each shall be served on counsel for each party separately represented, 1 copy of each shall be served on counsel for all jointly represented parties, and 1 copy of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or order direct the filing or service of a different number.

(B) Supreme Judicial Court

(i) On appeal to the Supreme Judicial Court, and on further appellate review, 2 copies of the exhibit volume or volumes and 2 copies of the transcript volume or volumes shall be filed with the brief and appendix and 1 copy of each shall be served on counsel for each party separately represented, 1 copy of each shall be served on counsel for all jointly represented parties, and 1 copy of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a different number.

(ii) Appeals Transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which copies of the exhibits and transcripts have already been filed in the Appeals Court pursuant to this rule, 2 copies of the transcript volume or volumes shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a different number.

(e) Consequence of failure to file briefs and appendices

If an appellant fails to file a brief and appendix, other than a reply brief, within the time provided by this rule, or within the time as extended, the appellate court may, upon motion or sua sponte, dismiss the appeal. Any appellee who elects not to file a principal brief shall timely notify the appellate court and all parties that no brief will be filed. If an appellee fails to file a brief within the time provided by this rule, or within the time as extended, the appellate court may, upon motion or sua sponte, deem the case ready for consideration by the appellate court. An appellee who fails to file a timely brief will not be heard at oral argument except by permission of the appellate court.

Reporter's notes

(2019)

The title of Rule 19 was amended to add “Certain” before “Motions” to clarify this rule only governs certain motions, unlike Rule 15 which governs motions generally. Reference to “Appendices” was also added to the title because the rule, as amended, governs the requirements for the filing and service of appendices. A provision in prior Rule 18(a) governed the filing and service of appendices. Since amended Rule 19 clarifies that briefs and appendices are filed contemporaneously, relocating these requirements to Rule 19 streamlined the filing and service requirements for these documents. This amendment is also consistent with the deletion of the provision contained in prior Rule 18(c) which allowed parties to defer the filing of an appendix in a civil case. See Reporter’s Notes to Rule 18.

Rules 19(a) and (b). Prior Rule 19(a)’s provision for the timely filing and service of briefs was separated into two subdivisions: Rule 19(a) concerns cases where there is no cross appeal, and Rule 19(b) concerns cases involving cross appeals. Expressly excluded from both subdivisions are briefs filed pursuant to Rules 19(c) (first degree murder appeals), 11(g) (direct appellate review), and 27.1(f) (further appellate review).

Rule 19(a)(1) clarifies that the appellant’s brief and appendix are both due at the same time.

Rule 19(a)(2), governing the due date for an appellee’s brief, was revised to clarify that in an appeal involving multiple appellants, and in which more than one appellant brief is being filed, the appellee’s brief is not due until 30 days after service of the last appellants’ brief.

Rule 19(a)(3) amends the time period a party is allowed to file a reply brief. A reply brief must be filed by the earlier of either 14 days after service of the appellee’s brief or 7 days prior to a scheduled argument before the appellate court.

Rule 19(b) is a new subdivision that concerns the time for filing and serving briefs and appendices in cases involving cross appeals, and is modelled on Fed. R. App. P. 28.1(f). It is intended to clarify the time frame for filing briefs, and the types of briefs that can be filed, in such cases.

Rule 19(c), encompassing prior Rule 19(d), was revised to reflect that G.L. c. 278, § 33E, was amended in 2012 to include certain habitual offender convictions. The revision clarifies that the extraordinary provisions of Rule 19(c) apply only to first degree murder appeals. No determination has been made that these provisions will apply to those habitual offender appeals that are now covered by G.L. c. 278, § 33E. References to Rule 19(c) were updated in the remainder of the rule to reflect the new title.

Rule 19(d), prior Rule 19(b), is a substantively revised subdivision that provides, in a single rule, the varying requirements for the filing and service of a brief and the brief-related documents that must be filed with the brief in each of the appellate courts. Under the prior rules, these requirements were located in several different rules (prior Rules 18(a), 18(e), and 19(b)) and often caused confusion for the parties.

Rules 19(d)(1)(A) and 19(d)(2)(A) reduce the number of copies of documents that must be filed in the Appeals Court. Rule 19(d)(1)(A) reduces the number of copies of each brief and appendix to be filed in the Appeals Court from 7 to 4. Rule 19(d)(2)(A), which applies to civil cases, was relocated to Rule 19 from prior Rule 18(e) to consolidate and streamline the filing and service requirements previously contained in Rules 18 and 19. See Reporter’s Notes to Rule 18. The amendments reduce the number of copies of each exhibit and transcript volume that was required in prior Rule 18(e). The required number of copies of each exhibit volume was reduced from 5 to 2, and copies of each transcript volume from 2 to 1. Due to advances in the Appeals Court’s paperless practices, fewer copies of each document are now required to properly process and review filings. In both Rules 19(d)(1)(A) and 19(d)(2)(A), reference was added to the Appeals Court Standing Order Concerning Electronic Filing, which supplements the Rules of Appellate Procedure to the extent that it requires certain documents to be electronically filed, and, if electronically filed, provides no paper copies are required.

Rules 19(d)(1)(B) and 19(d)(2)(B) similarly reduce the number of copies of documents that must be filed in the Supreme Judicial Court. The Supreme Judicial Court now requires 7 copies of each brief and appendix volume. In civil cases, 2 copies of each exhibit volume and transcript volume are required. Under the prior rules, fewer copies of these documents were required to be filed in the Supreme Judicial Court if a case was transferred from the Appeals Court after briefs, appendices, exhibits, or transcripts were filed in the Appeals Court. This distinction has been eliminated. Under the new rules the number of required copies is the same regardless of how or when an appeal enters in the Supreme Judicial Court. Rules 19(d)(1)(B)(ii) and 19(d)(2)(B)(ii) retain the prior requirement that where an appeal is transferred to the Supreme Judicial Court after briefs, appendices, exhibits, or transcripts were filed in the Appeals Court, the additional required copies must be “promptly filed” with the clerk of the Supreme Judicial Court.

Rules 19(d)(1)(A), 19(d)(1)(B)(i), 19(d)(2)(A), and 19(d)(2)(B)(i) add text to clarify the service requirements depending on the representation status of the parties. In cases involving jointly represented parties, 2 copies of the brief and appendix must be served and 1 copy of each exhibit volume and transcript volume must be served on counsel for all jointly represented parties. In cases involving self-represented parties, 2 copies of the brief and appendix and 1 copy of each exhibit volume and transcript volume must be served on each self-represented party. These amendments are intended to reduce confusion parties often have regarding service requirements in cases involving jointly represented parties or self-represented parties.

Rule 19(e), prior Rule 19(c), was revised to clarify that an appellate court may, upon motion or sua sponte, dismiss an appeal if an appellant fails to file a brief and appendix (other than a reply brief). In addition, a provision was added requiring any appellee who will not be filing a brief to timely notify the court. Timely notification is considered to be within the time period allotted for the filing of the brief. This notification is essential to the appellate court’s processing of an appeal. Otherwise, the court awaits the filing of the brief, which can result in a significant delay in the timing of the court’s consideration and disposition of the appeal. An additional provision was added to provide that, if an appellee fails to file a brief within the time provided by the rule, or any enlargement granted by the court, the appellate court may, upon motion or sua sponte, deem the case ready for consideration by the court. This provision is consistent with the appellate courts’ practices.

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(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 for Appellate Procedure Rule 19: Filing and serving of briefs, appendices, and certain motions

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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 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601
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