Briefs

(2024) The Supreme Judicial Court amended S.J.C. Rule 1:08 (1) (H) effective October 1, 2022, to permit filers to include their personal pronouns with the filer’s name or signature. In 2024, the Massachusetts Rules of Appellate Procedure were amended to incorporate the option into Mass. R.A.P. 16(a)(12)(A). The amendment expressly allows people to include preferred personal pronouns on court filings. The information informs judges, opposing counsel, and court personnel of a person’s pronouns in advance of a hearing or communication, and can help prevent inadvertent misidentification during legal proceedings. See J. Stanton & Y. Taylor, Utilizing and Normalizing Personal Pronouns in Legal Filings, Proceedings, and Communications, 67 B.B.J. #2 (Spring 2023). (2019) Rule 16(a) was revised and reorganized to detail in sequential order the contents of an appellant’s brief. The revised rule is organized as a checklist intended to assist the parties in preparing a brief in compliance with the Rules, and to eliminate any heretofore unreferenced requirements raised by other court rules or decisions. The rule cross-references Rule 20(a)(4) for brief formatting and pagination requirements. Rule 16(a)(1) is a new paragraph that begins the checklist format. It merely cross-references Rule 20(a)(6) , which sets forth color and contents of the cover of a brief. Rule 16(a)(2) is a new paragraph that cross-references S.J.C. Rule 1:21 , which requires the inclusion of a corporate disclosure statement in specified circumstances. The corporate disclosure statement is to be included immediately after the cover, and before the table of contents in a party’s principal brief. See S.J.C. Rule 1:21. Rules 16(a)(3) and 16(a)(4) are derived from prior Rule 16(a)(1) and provide the required format of the table of contents and table of authorities, respectively. Rule 16(a)(5) continues the requirement from prior Rule 16(a)(2) for a statement of the issues presented. The rule was revised to highlight that the statement of issues is to describe each issue concisely and with particularity. Rule 16(a)(6) continues the requirement from prior Rule 16(a)(3) that the brief include a statement of the case. The revised rule requires the statement of the case to include reference to the record appendix or transcript, a requirement that was required in prior Rule 16(e) , although not expressly so stated. See also Fed. R. App. P. 28(a)(6). Rule 16(a)(7) continues the requirement from prior Rule 16(a)(3) for a statement of facts relevant to the issues presented for review, with supporting references to the record. New language clarifies that the statement of facts need not repeat items included in the statement of the case. The rule also clarifies that each statement of fact must be supported by specific page references to the record appendix or transcript, similar to the requirements in prior Rules 16(a)(3) and 16(e) . Rule 16(a)(8) continues prior Rule 16(a)(4)’s requirement for a summary of the argument that does not merely repeat argument headings. Under prior Rule 16(a)(4), a summary of the argument was required only when the argument exceeded 24 pages. The page limit was reduced to arguments exceeding 20 pages, or equivalent length under the word count alternative if a proportionally spaced font is used. The paragraph continues to require page references to the pages in the body of the brief where each argument is presented. See also Fed. R. App. P. 28(a)(7). Rule 16(a)(9) governs the argument portion of the brief and is derived from prior Rule 16(a)(4). The rule was divided into two subparagraphs, the first, Rule 16(a)(9)(A), concerning the argument section generally, and the second, Rule 16(a)(9)(B), concerning presentation of the individual issues. The final sentence of prior Rule 16(a)(4) was relocated to Rule 22 , because it concerns oral argument (“Nothing argued in the brief shall be deemed waived by a failure to argue orally”). Rule 16(a)(9)(B) includes a new requirement, derived from Fed. R. App. P. 28(a)(8), that the party include the standard of review for each issue raised. The standard of review is a critical factor in every appeal, constituting the lens through which the court views the issues presented. Rule 16(a)(10) is a new paragraph added to ensure litigants comply with the requirement derived from case law, that any request for attorney’s fees and costs must be included in the brief. See Yorke Management v. Castro, 406 Mass. 17 , 19 (1989). Such a request must be made even where the request is not based upon a fee-shifting statute. Beal Bank, SSB v. Eurich, 448 Mass. 9 , 10 (2006). An appellate court may excuse or modify this requirement if the circumstances so warrant. Lowell v. Massachusetts Comm’n Against Discrimination, 65 Mass. App. Ct. 356 , 358 (2006). This new rule also requires that a request for fees and costs identify the specific source (e.g., statute, court rule, or case law) which authorizes the request. Rule 16(a)(11) continues the requirement of prior Rule 16(a)(5) for a conclusion to the brief that states the precise relief requested from the appellate court. Rule 16(a)(12) delineates the requirements of the brief’s signature block and expands upon prior Rule 16(a)(8). The signature block must include both the mailing and electronic addresses of the person who prepared the brief, whether by counsel or a self-represented party. This is consistent with amendments to Rules 13(e) , 20(a)(6)(B) , and 20(b)(2)(B) . Rule 16(a)(13) specifies the contents of the addendum to a principal brief. It contains substantially revised text relocated from prior Rules 16(a)(6) and 16(a)(7). The amendment was intended to consolidate into a single provision the various items required to be included in an addendum. Rule 16(a)(13)(A) requires the addendum to include a table of contents listing each item contained in the addendum and the page number on which the document begins. Rule 16(a)(13)(B) continues the requirement of prior Rule 16(a)(6) that a copy of any memorandum of decision or findings of the lower court be included in the addendum. The provision was expanded to require that when the addendum includes a document bearing a handwritten endorsement by the lower court, the addendum also include a typed copy of that endorsement. A lower court judge will often endorse a motion or other paper with a handwritten notation that is difficult to decipher. Requiring both a copy of the original endorsement and a typed version facilitates review in the appellate court. If the lower court clerk provides a typed notice of docket entry containing the full text of the judge’s order, a copy of the notice would suffice for purposes of this rule. Rule 16(a)(13)(D) is a new subparagraph requiring that when a brief cites to an unpublished decision, a copy of the entire decision is to be included in the addendum. The Appeals Court already requires that any party citing to a Memorandum of Decision and Order pursuant to Appeals Court Rule 1:28 decision is to include the full text of that decision in the addendum to a brief. See Chace v. Curran, 71 Mass. App. Ct. 258 (2008) ; Appeals Court Rule 1:28, as amended in 2008. The amendment codifies this requirement in the Rules, and expands the requirement to apply to any unpublished decision cited in a brief to either appellate court. Rule 16(a)(13)(E) is nearly identical to prior Rule 16(a)(7), omitting “or chalk” as superfluous. Rules 16(a)(14) and 16(a)(15) are new paragraphs which specify that the brief is to conclude with the Rule 16(k) certificate of compliance and the Rule 13(e) certificate of service. Adding these paragraphs to the “checklist” portion of Rule 16(a) highlights that the certifications are necessary parts of a brief and identify the proper location of the certifications in the brief. Rule 16(b) was revised and separated into three paragraphs. The rule specifies, in greater detail than prior Rule 16(b), the contents of the appellee’s brief. The rule requires the appellee’s brief to conform to the requirements of Rule 16(a) except as provided in paragraphs (1)-(3) of the rule, and including that the statements of the issues, case, facts, and applicable standard(s) of review need not be made unless the appellee is dissatisfied with the statements of the appellant. A new provision, Rule 16(b)(3), requires the appellee to include an addendum that contains the same materials required in the appellant’s addendum in Rule 16(a)(13), insofar as the items are pertinent to the appellee’s arguments, even if the items were included in the appellant’s addendum. Prior Rule 16(c) was revised to specify the format of a reply brief, and expressly state that the reply brief may not raise new issues different from those raised in the principal briefs. Accord Krapf v. Krapf, 439 Mass. 97 , 110 (2003) (where Supreme Judicial Court, citing prior Rules 16(a)(4) and (c), declined to consider issues raised for the first time in a reply brief). The words “or a single justice” are added to the prior requirement that “leave of the appellate court” be obtained before an appellee may file a reply brief, otherwise known as a sur-reply brief. The sentence in prior Rule 16(c) authorizing an appellee who has cross-appealed to file a reply brief responding to the appellant’s argument as to the issues presented in the cross appeal was relocated to Rule 16(i) , the rule addressing brief requirements in a cross appeal. Rule 16(e) continues to require that parties support factual statements in a brief with citation to the record. This subdivision was amended to specify that the citation references shall be to both the supporting volume number(s), if applicable, and page number(s) in the appendix, transcript, exhibits, or addendum. All citations must be clear and may follow the examples found in the text of the rule. References to Rules 18(c) and 18(f) were deleted consistent with revisions to those subdivisions as described in the Reporter’s Note to Rule 18 . Prior Rule 16(f) (reproduction of statutes, rules, regulations, etc., in the addendum) was deleted entirely because its substance was relocated to Rule 16(a)(13) . The subdivision was kept as “reserved” instead of renumbering the subdivisions that follow because subsequent subdivisions 16(k) and 16(l) are commonly referred to by their respective numbers and maintaining the lettering will avoid confusion for filers in the appellate courts. Rule 16(g) , regarding Massachusetts citations, was amended to remove language referencing old volumes of the Massachusetts Reports, since those are not as commonly cited today. The language was revised to state more simply that citations to Massachusetts authorities need to be to the official reporter of the decision or the official publication containing the statute or regulation, if an official report or publication exists. Language related to quotations of statutory material and citation examples were also relocated to these Reporter’s Notes. Examples of citations to Massachusetts authorities are as follows: Authority Citation Supreme Judicial Court: Commonwealth v. Dorelas, 473 Mass. 496 , 502-503 (2016); Appeals Court: Amaral v. Seekonk Grand Prix Corp., 89 Mass. App. Ct. 1 , 3-5 (2016); Unpublished decision: Parks vs. Petraglia, Boston Hous. Ct., No. 93-CV-00155 (Jan. 20, 1995); General Laws: G. L. c. 261, § 27D . Citations to these and other authorities should be made consistent with the Supreme Judicial Court Style Manual . Rule 16(h) was renamed “Length of Briefs in Cases Other Than Cross Appeals,” to be consistent with Rule 16(i) , which governs the length of briefs in cross appeals. The current contents of the Rule are deleted entirely, and replaced with a cross-reference to Rule 20(a)(2) , which establishes the brief length requirements. Rule 16(i) continues to govern briefs in cases involving cross appeals. The rule was revised and separated into four paragraphs. The first sentence of this provision was deleted and relocated to Rule 10(a)(6) , docketing of a joint appeal. Rule 10(a)(6) is a more appropriate location for a provision designating the parties for purposes of a cross appeal, rather than in the rule concerning the briefs. The parties’ designation for purposes of the appeal applies to all aspects of the appeal, starting at the docketing stage, and is not simply for purposes of briefing. Rule 16(i)(1) cross-references Rule 20(a)(3) regarding requirements for the length of briefs in a cross appeal. In addition, Rule 16(i)(2) updates the rule to align it with Federal language concerning cross appeals (e.g., principal brief and response brief). See Fed. R. App. P. 28.1(c).The sentence in prior Rule 16(c) authorizing an appellee that has cross-appealed to file a reply brief responding to the appellant’s argument as to the issues presented in the cross appeal was relocated to Rule 16(i)(3). Finally, Rule 16(i)(4) clarifies that, except with leave of the appellate court or a single justice, an appellee who has cross-appealed may file only a single reply brief in response to the issues presented by the cross appeal regardless if multiple appellants have filed responses to the issues presented by the cross appeal. Rule 16(j) was amended to cross-reference Rule 10(a)(5) concerning consolidated appeals. The specific reference to Rule 10(a)(5) clarifies the phrase “cases consolidated for purposes of the appeal.” The rule was revised and separated into three paragraphs. The rule continues to authorize parties to join in another party’s brief in the same case. The rule was revised to clarify that reply briefs can be joined in the same manner as principal briefs. In addition, a clause requiring notice to the clerk and other parties was added. The notice informs the clerk to designate that party as having joined another party’s brief and alerts the other parties that a separate brief will not be filed. Finally, a new provision, encompassed in Rule 16(j)(3), codifies existing practice that, except with leave of the appellate court or a single justice, in cases involving more than one appellant or appellee, an appellee may file only a single brief regardless of the number of appellant briefs that are filed, and an appellant may file only a single reply brief regardless of the number of appellee briefs that are filed. Rule 16(k) continues to require a certification of compliance with the formatting requirements of these Rules. Rule 16(k) was amended to add language that the certification is to specify how compliance with the applicable length limit of Rule 20 was ascertained. This requirement will also assist the appellate court clerks’ offices in verifying the brief’s compliance with applicable rules. This requirement is similar to the certification required by Fed. R. App. P. 32(g)(1). Rule 16(l) was amended to remove the phrase “with a copy to all counsel” and add the sentence, “Filing and service of any letter pursuant to this paragraph shall comply with Rule 13 .” Parties often neglect to adhere to the service requirements of Rule 13 when filing letters submitted pursuant to Rule 16(l). An express reference to that rule will increase compliance with these requirements and clarify that service requirements apply to such letters. Rule 16(n) is a new subdivision that codifies existing appellate court practice regarding the filing of an amended brief. The amended document is to be submitted to the court contemporaneous with a motion seeking leave to file the amended document. An “amended” (which sometimes is titled “revised” or “corrected”) brief typically contains typographical corrections or required redactions. 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. (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.