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Bar News - February 18, 2011


Appearing before the Supreme Court: Practical Tips for Attorneys

Editor’s Note: This collection of frequently asked questions was submitted to Bar News by the The Wiggin & Nourie Appellate Practice Group. The list is not intended to be a substitute for the Supreme Court Rules in their entirety, but the group hopes it will be of assistance to practitioners who must appear before the Court.

1. Should I include the trial transcript in my appendix?

Answer: No. The official transcript is provided to the Court before it issues a briefing schedule. Reproducing it in the appendix is duplicative.

2. Do I need to file copies of the brief with the trial court?

Answer: No. See Supreme Court Rule 16. You are required to provide two copies per party. When initially filing your Notice of Appeal, only one copy is sent to each of the parties, but two to three copies are filed with the clerk of the court or agency from which the appeal or transfer is taken.

3. Will the trial court automatically provide the Supreme Court with the "record"?

Answer: No. It is the obligation of the appealing party to provide the Supreme Court with the record. See Supreme Court Rule 13. Those portions of the record critical to your issues on appeal should be reproduced in your appendix.

4. What documents can or should be attached to my Brief?

Answer: The opening brief must contain a copy of the decision being appealed or reviewed. See Supreme Court Rule 16(3)(i). In lieu of a separately bound appendix, if there are a few key exhibits the Court needs to decide the issue on appeal, they can be included as an addendum to the brief with a separately labeled table of contents. If your attachments are voluminous, they must be filed in a separate Appendix. See Supreme Court Rule 17.

5. How do I file confidential material, such as a financial affidavit in a marital case?

Answer: You must file the confidential material in an appendix that is marked confidential and it will be sealed at the Court. You must also file a public redacted appendix. RSA 458:15-b.

6. Do I have to file an electronic copy of my brief for publication on the Court’s website?

Answer: No. The Court asks parties to submit electronic briefs ("eBriefs") in addition to the required hard copies, but does not require them. If you would like to file an eBrief, you must provide the eBrief to the Court in PDF format, either on a CD or via e-mail. For more information, visit www.courts.state.nh.us/supreme/ebriefs/index.htm.

7. Does each party file its own appendix?

Answer: It depends. The Court encourages the parties to agree on the contents of the appellate record before the appealing party files its brief, so that the record may be filed as an addendum or appendix to the appealing party’s brief. However, if the parties do not agree on the contents of the record and the appellee deems the appealing party’s appendix to be insufficient, the appellee may file additional portions of the record as an addendum or appendix to the appellee’s brief. The appellee should not duplicate in its addendum or appendix any material already included in that of the appellant. See Supreme Court Rule 17.

8. Should I always request oral argument?

Answer: No. You should only request oral argument if you believe oral argument will be helpful to the Court. See Supreme Court Rule 18(1).

9. Is there a particular format required for a Supreme Court brief?

Answer: Yes. Supreme Court Rule 16 sets forth basic formatting requirements, as well is a detailed list of the sections that each party must include in its brief. You should review the rule carefully each time you draft a brief to ensure that you have included all of the sections that are necessary and appropriate in your case. Note that the appellee is not required to include as many sections in its brief as is the appellant. See Supreme Court Rule 16(4)(a).

10. When requesting an extension to file a brief do I need to file a Motion?

Answer: It depends. If the other side consents and you seek no more than 15 days, you do not need to file a motion and instead can file an original and one copy of an Assented-To Notice of Automatic Extension of Time pursuant to Supreme Court Rule 21(6-A)(a). The notice filed with the Court must advise the Court of the new briefing deadlines for all parties, including the deadline for filing reply briefs (even if such a deadline was not in the briefing schedule issued by the Court). However, if a total of two automatic extensions have already been taken by the parties, you will have to file a Motion showing the existence of extraordinary circumstances. See Supreme Court Rule 21(6-A)(b). If the other side opposes your request for an extension, or you seek an extension beyond 15 days, you need to file a motion.

11. Can a party move for summary affirmance after a Notice of Appeal is filed?

Answer: It depends. A party cannot file a motion for summary affirmance in connection with a mandatory appeal (Rule 7). See Sup. Ct. R. 25(6). A party can, however, file a motion to dismiss based on subject matter, timeliness, or other causes unrelated to the merits of the appeal. For non-mandatory appeals, a party can file a motion for summary disposition (affirmance or reversal) within 20 days after the appeal is filed.

12. As the opposing party to a mandatory appeal, do I have to file a brief?

Answer: No. The opposing party (i.e. the appellee) can file a memorandum of law not to exceed 15 pages. See Sup. Ct. R. 16(4)(b). The memorandum of law need not have all the formal requirements of a brief. It must have an argument section setting forth the points of facts and law and a conclusion setting forth the relief requested.

13. Do both the moving party on appeal (appellant) and the opposing party have the right to file reply briefs?

Answer: No. The moving party may file a reply brief within 20 days after the submission of the opposing brief. See Sup. Ct. R. 16(7). The opposing party may not file a reply brief without prior leave from the court and such briefs shall not ordinarily be allowed.

14. Can I cite a 3JX decision from the New Hampshire Supreme Court in support of my argument in a brief?

Answer: No. A party cannot cite a 3JX decision in any pleading in any court of the state. See Sup. Ct. R. 13(3). A party can cite the decision if it is in connection with their own case.

15. Basics of Supreme Court Brief – Supreme Court Rules 16, 17, and 30.

Party
Cover
Length
Due Date
Copies
Moving Party Blue 35 pages Set by Court Original + 8 copies
Opposing Party Red 35 pages or 50 pages for cross-appeal issues Set by Court Original + 8 copies
Reply Brief Gray 10 pages Within 20 days of opposing brief Original + 8 copies
Appendix White   Contemporaneous with brief Original + 8 copies
Amicus Brief
See Sup. Ct. R. 30
Green 35 pages When brief of supporting position is due Original + 8 copies

Members of the appellate practice group are available to answer further questions. Learn more at www.wiggin-nourie.com.

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