APPEALS OF TRIAL COURT decisions docketed by the New Hampshire Supreme Court starting Jan. 1, 2004, will be automatically accepted for review by the court, except for those in certain categories, such as habeas corpus appeals and parole violations.

The end to discretionary review for Rule 7 cases, as well as most of the rules and procedures the court has enacted for the new system, bring the court into line with common practice in many appellate jurisdictions. The new rules, though, are temporary and are subject to reconsideration by the court before they are adopted permanently. Some of the biggest questions attorneys have about the system have no answer yet: How many new cases will be filed as a result, and will an influx of new appeals prolong the appellate process?

The vacancy on the court created by the recently announced retirement of Chief Justice David A. Brock likely won't delay the processing of cases under the new system in the short run, said Supreme Court Clerk Eileen Fox. It will be several months before appellate filings under the mandatory system will be coming to justices for substantive review.

Fox's answers to other questions about the implementation of the new process appear below. (For more, check your e-mail or fax machine for information on a special direct-to-video and online NHBA•CLE program being produced in December that will provide an orientation to the new process, as well as discussion between court officials and experienced NH appellate practitioners.)

Most Rule 7 cases will be automatically accepted for review and the court will no longer decline an appeal or summarily affirm a lower court decision. After a case is accepted, the parties will have the opportunity to file written arguments on the issues being appealed. The most important change is that the court will now review and issue a decision based on the merits of the case. Not all cases will receive oral argument, however. After briefs are filed, the court will determine the level of review: solely on the briefs, by oral argument before a three-judge panel, or following oral argument before the full court. In Rule 7 cases, the initial hurdle will be a review by the court's professional staff to ensure that appeals were filed in a timely manner and that the case falls within the court's subject matter jurisdiction. Mootness could also be cause for rejection by the court.

Because cases will be accepted automatically, the initial notice of appeal, instead of being an argument for the court to accept the case, will be basically a notice that the party intends to appeal the lower court decision, along with succinct statements identifying the issues that the appellant expects will be the grounds for appeal. This list of issues will not be exclusive, although new issues can only be added by filing a motion and receiving permission of the court.

Fox said the court would likely forbear mistakes in filling out the new mandatory and discretionary notice of appeal forms for the first few months. She said that the court is likely to be strict when it comes to appeal deadlines and other time limits imposed by the court, such as the deadlines for paying for transcripts and filing briefs. Because there are likely to be more cases that the court must decide on the merits, and because the court wants to avoid delays in disposing of cases, the court must expect the same attention to deadlines from the parties.

The clerk's office will now handle the initial screening to ensure that notices of appeal have been timely filed and meet other jurisdictional and technical requirements. Such reviews will be completed and parties notified in a matter of days or weeks, Fox said. Once an appeal is accepted, the court will order a copy of the trial record (appellants will specify, as they do now, which portions of the record need to be provided). In most cases, the court reporters or transcribers will have 60 days to produce the record. Fox anticipates that under the new rules, more transcripts may be ordered, but she does not know whether that will slow down the timetable for producing trial records. Once the court has obtained the record, the court will issue a briefing schedule to the parties.

Fox hopes that the court will be able to schedule matters, once briefs are received, in the same time frame it now does. For instance, oral arguments in January 2004 are being scheduled for cases initially filed in the spring of 2003 or later and briefed in the fall.

Once the appellant's brief and the opposing brief and a reply brief are received, the justices will decide how to handle the case: briefs only, 3JX, or full argument. Parties also have the option of asking the court to decide a case without oral argument. To expedite a clear-cut matter, the appellee can choose to file a memorandum of law and dispense with a formal brief and oral argument.

Fox was unable to predict whether the judges actually will be able to hear cases in the same time frame that they now do and whether the number of appeals that may be filed will extend the time that it takes the court to decide cases.

Parties and attorneys must keep in mind that the appellant has the burden of providing the Supreme Court with an adequate record for the court to decide the issues being appealed. It may not always be necessary to prepare a complete transcript of the trial court proceedings, however. If all sides agree on the facts, the parties may file an agreed statement of the case that includes the issues and the agreed-upon facts, and the appeal will be decided based on this statement. To reduce the cost of the transcript, parties also can request portions of the trial court proceedings if the entire proceeding is not necessary for the appeal.

As for other parts of the record, such as pleadings or exhibits, the parties may request that specific documents or exhibits be transferred from the trial court to the Supreme Court so that they are available for review. Alternatively, a party may submit copies of documents as part of an appendix to the party's brief. This might include, for example, pleadings in the case that would provide helpful background, but are not directly related to the issues under appeal.

Except in criminal cases and in a very limited number of civil cases, such as termination of parental rights, indigent parties are not entitled to have a trial record prepared at state expense.

In announcing its plan to expand appeals last year by eliminating discretion, justices said they expect to be spared some of the time that was being spent deciding motions regarding their screening decisions. However, there will still be motions to decide, such as motions for reconsideration or rehearing, motions for extensions of time, and motions to add an issue after the filing of the notice of appeal. Motions also may be required if parties are seeking an extension in the 35-page limit for briefs and opposing briefs (15 pages for reply briefs). Depending on the type of motion, it may be decided by the full court, or by a single justice.

As under the current system, cases involving the status of children will be heard on an expedited basis. A new Supreme Court Rule 7-A also will allow the Supreme Court to remand a case to the lower court for necessary reasons-such as a significant change in circumstances.

An attorney may file a motion to expedite a case if there are reasons justifying such treatment. If an attorney believes that the other side is causing delays in the case for invalid reasons, the attorney should file an appropriate pleading with the court explaining his or her concerns, Fox said.

To view the rules or to obtain a copy of the new notice of appeal form, visit the court's Web site, which has an entire section devoted to the new appellate rules at http://www.courts.state.nh.us/supreme/new_appellate_process.htm.

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