BRIEFS

28.1 Brief of the Appellant (a) The brief of appellant/petitioner must include, in addition to the sections enumerated in FRAP 28, the following: (1) in the statement of the issues presented for review required by FRAP 28(a)(5), a designation by reference to specific pages of the appendix or place in the proceedings at which each issue on appeal was raised, objected to, and ruled upon; (2) after the statement of issues for review, a statement of related cases and proceedings, stating whether this case or proceeding has been before this court previously, and whether the party is aware of any other case or proceeding that is in any way related, completed, pending or about to be presented before this court or any other court or agency, state or federal. If the party is aware of any previous or pending appeals before this court arising out of the same case or proceeding, the statement should identify each such case; and (b) The following statements should appear under a separate heading placed before the discussion of the issue: the statement of the standard or scope of review for each issue on appeal, i.e., whether the trial court abused its discretion; whether its fact findings are clearly erroneous; whether it erred in formulating or applying a legal precept, in which case review is plenary; whether, on appeal or petition for review of an agency action, there is substantial evidence in the record as a whole to support the order or decision, or whether the agency's action, findings and conclusions should be held unlawful and set aside for the reasons set forth in 5 U.S.C. § 706(2). (c) It is preferred that the documents listed in L.A.R. 32.2(c) be attached to the paper brief. The documents may be filed electronically in a document separate from the brief.

(d) The court expects counsel to exercise appropriate professional behavior in all briefs and to refrain from making ad hominem attacks on opposing counsel or parties. Source: 1988 Court Rule 21.1 Cross-references: FRAP 28-32, 39; 3d Cir. L.A.R. 29-32, 39 Table of Contents 21 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 Committee Comments: 3d Cir. L.A.R. 28.1, added in 1995, contains a requirement that the appellant must designate where in the proceedings each issue was preserved for appeal.

Appellant should cite to the appendix, but if the germane portion of the record is not included in the appendix, the appellant must cite to the original record. If the matter has not been filed of record in the district court, appellant may cite to the original document. 3d Cir. L.A.R. 28.1 no longer requires parties to file a separate statement with the Clerk's Office identifying any previous or pending appeals because such matters must be identified in the briefs.

3d Cir. L.A.R. 28.1 also makes explicit for the first time the court's expectation that counsel will write briefs in a professional manner and refrain from making ad hominem attacks on the opposing side. The portions of prior Court Rule 21.1 that were repetitive of FRAP 28 have been deleted. See L.A.R. 32.2(c) for permissible attachments to the brief.

28.2 Brief of the Appellee The brief of the appellee or respondent must conform to the requirements of FRAP 28(b) and 3d Cir. L.A.R. 28.1 (a)(2), (b) and (c). If the appellee is also a cross-appellant, the appellee's brief must also comply with rules 28.1(a)(1) and (a)(3). The brief of an appellee who has been permitted to file one brief in consolidated appeals must contain an appropriate cross reference index which clearly identifies and relates appellee's answering contentions to the specific contentions of the various appellants.

The index must contain an appropriate reference by appellee to the question raised and the page in the brief of each appellant. Source: 1988 Court Rule 21.1 Cross-references: FRAP 28-32; 3d Cir. L.A.R. 29-32 Committee Comments: The portions of prior Court Rule 21.1 that were repetitive of FRAP 28 were deleted in 1995. Otherwise no substantive change from prior Court Rule 21.1 is.

28.3 Citation Form; Certification (a) In the argument section of the brief required by FRAP 28(a)(9), citations to federal opinions that have been reported must be to the United States Reports, the Federal Reporter, the Federal Supplement or the Federal Rules Decisions, and must identify the judicial circuit or district, and year of decision. Citations to the United States Supreme Court opinions that have not yet appeared in the official reports may be to the Supreme Court Reporter, the Lawyer's Edition or United States Law Week in that order of preference. Citations to United States Law Week must include the month, day and year of the decision. Citations to federal decisions that have not been formally reported must identify the court, docket number and date, and refer to the electronically transmitted decision.

Citations to services and topical reports, whether Table of Contents 22 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 permanent or looseleaf, and to electronic citation systems, must not be used if the text of the case cited has been reported in the United States Reports, the Federal Reporter, the Federal Supplement, or the Federal Rules Decisions. Citations to state court decisions should include the West Reporter system whenever possible, with an identification of the state court. Hyperlinks to decisions may be used, but are not required, as provided in L.A.R. Misc. 113.13.

If hyperlinks are used, citation to a reporter, looseleaf service, or other paper document must be included, if available. If a hyperlink to a paper document is not available, the internet address of the document cited must be included. (b) For each legal proposition supported by citations in the argument, counsel must cite to any opposing authority if such authority is binding on this court, e.g., U.S. Supreme Court decisions, published decisions of this court, or, in diversity cases, decisions of the highest state court. (c) All assertions of fact in briefs must be supported by a specific reference to the record.

All references to portions of the record contained in the appendix must be supported by a citation to the appendix, followed by a parenthetical description of the document referred to, unless otherwise apparent from context. Hyperlinks to the electronic appendix may be added to the brief. If hyperlinks are used, the brief must also contain immediately preceding the hyperlink a reference to the paper appendix page. Hyperlinks to testimony must be to a transcript.

A motion must be filed and granted seeking permission to hyperlink to an audio or video file before such links may be included in the brief or appendix. Hyperlinks may not be used to link to sealed or restricted documents. (d) Except as otherwise authorized by law, each party must include a certification in the initial brief filed by that party with the court that at least one of the attorneys whose names appear on the brief is a member of the bar of this court, or has filed an application for admission pursuant to 3d Cir. L.A.R. 46.1.

Source: 1988 Court Rule 21.1 Cross-references: 28 U.S.C. §§ 515, 517, 518; Third Circuit Internal Operating Procedure 9.1 (1994); L.A.R. Misc. 113.13 Committee Comments: Subsection (b) was adopted in 1995. It imposes upon each party the obligation to cite to authority that is binding on this court, whether that authority supports or opposes the party's propositions. Otherwise, no substantive change from prior Court Rule 21.1 is intended, including the court's longstanding practice of not requiring attorneys representing the United States, or any agency thereof, to be a member of the bar of this court.

The rule was amended in 2008 to permit the use of hyperlinks. Table of Contents 23 3RD CIRCUIT LOCAL APPELLATE RULES August 1, 2011 28.4 Signing the Brief All briefs must be signed in accordance with the provision of L.A.R. 46.4. Electronic briefs may be signed with either an electronically generated signature or “s/ typed name” in the signature location. Counsel’s state Bar number, if any, and address and phone number must be included with the signature.

Source: Fed. R. Civ. P. 11 Cross-references: L.A.R. 46.4; L.A.R. Misc. 113.4 Committee Comments: This rule is derived from Fed. R. Civ. P. 11 which requires signatures on all papers. The signing of documents is important because it constitutes a certificate by the attorney or party that he or she has read the pleading or brief to ensure that it complies with all federal and local rules. The requirement is interpreted broadly and the attorney of record may designate another person to sign the brief.

If a party is represented by multiple counsel, the signature from only one attorney of record is required. 28.5 Page Limitations in Cross Appeals (Abrogated in 2008 as duplicative of F.R.A.P. 28.1)