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Bar News - December 19, 2003

How the Appellate Landscape Has Changed


THE NEW SUPREME Court appellate rules going into effect in January 2004 represent the most significant changes made by the court since the current rules were adopted in 1979. The biggest impact of the new process will be that many litigants will have a right to appellate review of the merits of their cases.

The new rules apply to "mandatory" cases. Non-mandatory, or discretionary, appeals will generally be handled in the same manner as all cases were before. Most appeals will be mandatory, but the list of discretionary appeals is significant, including appeals from administrative agencies, interlocutory appeals, cases involving the court's extraordinary jurisdiction, procedurally unusual criminal cases, and a few others.


When the court first announced its procedural changes, it was not clear whether it would abandon its body of preservation law concerning the ability to argue issues not listed in the notice of appeal. For most cases in the First Circuit, for instance, the notice of appeal is simply that – a notice – and as long as it is timely filed, generally does not effect substantive rights. But along with its proposed rules, the Supreme Court has also prescribed forms for notices of appeal. The discretionary appeal form is substantially identical to what the court has been using for several years (although different than the old-style form many attorneys still use), directing the appellant to list the questions for appeal and tell the court why it should accept the case.

Mandatory appeals have their own new form. Although there is no need to advocate for acceptance, the form specifies that the appellant must "list specific questions to be raised on appeal." Thus it is safe to assume that the court's preservation law will remain intact, and that if issues are not listed in the notice of appeal, they will be deemed waived. The lesson here: When you file a mandatory notice of appeal within 30 days of losing in the trial court, list every possible issue you can think of, and let appellate counsel waive the issues in the comparative leisure of brief-writing. Although that practice might be sloppy, because acceptance is automatic, there's little downside to being over-inclusive.

Influencing How the Supreme Court Handles Your Case

For mandatory appeals, the court will determine how the case is handled based on its reading of the briefs, rather than based on the notice of appeal. As in the past, there will be three procedural tracks: 1) full briefing, oral argument, and reported opinion; 2) the 3JX route, including either briefs or memoranda of law, possibly an oral argument, and a non-reported decision; and 3) a decision based on briefs or memoranda and a non-reported order. As in the past, the treatment probably depends upon the substance of the case and perhaps its value or importance to the litigants and the public, and whether there are novel issues involved.

Because the court will use the briefs to decide how the case will be handled, these matters, if they are not readily apparent, must be emphasized by both parties in their briefs. If, for example, you believe the appellant has overstated the value, importance or public interest of a case for the purpose of ensuring an oral argument or a reported decision, and you think it is in your client's interest to minimize publicity or to have the court handle the case with less procedure, note that in your brief. If then you disagree with the treatment with which the court has announced it will handle the case, there is no bar to filing a motion requesting the treatment you think the case deserves.

The appellee may point out procedural problems with the appeal, and should file a motion to dismiss based on lack of jurisdiction, mootness, untimeliness, or other issues unrelated to substance. But under the new rules for mandatory cases, a motion for summary disposition is not allowed, and a motion to dismiss is not intended to point out the case’s importance or lack of it, or to advocate for one sort of treatment or another.

Timing and Cost of Appeals

Under the old rules, appellate lawyers spent lots of time with clients helping them decide whether or not to appeal their cases. Under the new rules, for mandatory appeals, that is no longer necessary: The court doesn't provide for much advocacy in the notice of appeal; there is no guessing whether the case will get accepted; and filing the notice of appeal can be done easily, relatively inexpensively, and without a determination of "certworthiness" by trial counsel. I suspect, therefore, that most lawyers will make a thoughtful list of appellate issues and automatically file.

Thus, I believe the decision-point for clients has changed. Rather than having to decide within 30 days after trial whether a notice of appeal ought to be filed, deciding whether the case is worth time and money can be made later when the appellant is required to post a deposit for transcripts, or when the court issues its briefing schedule. Although these later times have traditionally been decision-points, because filing a notice of appeal will be relatively cheap, whether to pursue the appeal need not be seriously considered early on. In some cases, such as those involving child custody or large sums of money, this change probably won’t make a bit of difference. But in cases that are harder to predict, I believe it might result in better whether-to-go-forward decisions.


The new rules may have an impact on ethical issues. First, because an appeal is a virtual certainty in many cases, lawyers probably have a duty to advise clients that their cases "will not" – not just "might not" – be over until an appeal is concluded.

Second, and more far-reaching, is the question of whether there are duties inadvertently undertaken. Filing a notice of appeal will now be such an easy, inexpensive process, trial counsel may now be considered to have a duty to file, and, thus the trial lawyer may have inadvertently undertaken an obligation to the client and to the court to conduct the appeal. Historically the court has been reluctant to let lawyers out of cases once they are in. For trial lawyers who aren't comfortable with appellate work, this may pose a problem. I have no easy answer beyond filing a motion to withdraw along with the notice of appeal.

Overall, I believe the result of the court’s new appellate rules will be a fairer and more predictable process for litigants and lawyers.

Joshua Gordon practices appellate law in Concord. His Web site is



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