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PROPOSED AMENDMENTS TO THE

MASSACHUSETTS RULES OF APPELLATE PROCEDURE

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PROPOSAL BY A SUBCOMMITTEE OF THE SUPREME JUDICIAL COURT STANDING ADVISORY COMMITTEE ON THE RULES OF CIVIL AND APPELLATE

PROCEDURE AND THE STANDING ADVISORY COMMITTEE ON THE RULES OF CRIMINAL PROCEDURE

May, 2017

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INTRODUCTION

In 2015, the Supreme Judicial Court Standing Advisory Committee on the Rules of Civil and Appellate Procedure, in conjunction with the Standing Advisory Committee on the Rules of Criminal Procedure, appointed a subcommittee to review the Massachusetts Rules of Appellate Procedure (hereinafter “Rules”). The Rules were enacted in 1974 and, although many isolated amendments have been adopted over the years, no full-scale review of the Rules has occurred in over four decades. Accordingly, the Standing Advisory Committee charged the Appellate Subcommittee to review the Rules and identify proposals that would

• make the rules more easily understood and followed; • facilitate the just and expeditious resolution of appeals; • clarify and simplify filing and formatting requirements; • eliminate arcane language and incorporate consistent style and terminology; • incorporate existing practices and procedures; and • facilitate the appellate and trial courts’ development of paperless processes.

The Subcommittee has completed its review and proposes the following amendments. Where possible, the Subcommittee has sought to preserve the current Rules’ language and related procedures so not to disrupt established practices that, for the most part, operate well. Consequently, many proposed amendments are merely stylistic or organizational, and would require minimal change to current procedures if adopted. Other proposed amendments are substantive and intended to improve a rule or procedure consistent with the Subcommittee’s charge.

The Subcommittee also compared the relevant Federal Rules of Appellate Procedure, aware of both the differences between the Massachusetts and Federal courts and case types, and of the recent Federal “restyling” amendments designed to make those rules more comprehensible. While the Subcommittee followed the spirit of the Federal restyling amendments, the Subcommittee concluded the preferable route in most instances would be to maintain the existing Massachusetts Rules’ language, style, and procedures instead of proposing a wholesale adoption of the current Federal rules. However, in certain situations the Subcommittee is proposing adoption of Federal language. See, e.g., proposed Rules 4(d) and 13(a)(2) (timeliness of filings by a self-represented party confined in an institution).

Each current rule and any proposed amendment to it are presented in the following order:

1. Summary and explanation of rationale for the proposed amendment(s);

2. The existing rule, marked to show all proposed deletions and additions; and,

3. The proposed rule, without any markings.

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The Subcommittee welcomes all comments and suggestions on these proposed amendments, and any suggestions for additional amendments, to the current Massachusetts Rules of Appellate Procedure. Please submit all comments by either email to [email protected] or in hard copy to:

Appellate Rules Subcommittee Massachusetts Appeals Court John Adams Courthouse One Pemberton Square, Room 1200 Boston, MA 02108

Respectfully,

The Subcommittee on the Massachusetts Rules of Appellate Procedure

Joseph Stanton, Chair, Clerk, Massachusetts Appeals Court

Donald Bronstein, Director of Criminal Appeals, Private Counsel Division, Committee for Public Counsel Services

Bessie Dewar, State Solicitor, Office of the Attorney General

Hon. Joseph Ditkoff, Appeals Court (member while General Counsel, Administrative Office of the District Court)

Maura Doyle, Clerk, Supreme Judicial Court for Suffolk County

Francis Kenneally, Clerk, Supreme Judicial Court for the Commonwealth

Tiffany Knapp, Esq., Appeals Court

Matthew Lashof-Sullivan, Esq., Appeals Court

Patricia Malone, Assistant Clerk, Appeals Court

Jane Montori, Chief, Appeals Division, Hampden District Attorney’s Office (member through December 2015)

A.W. (Chip) Phinney, Deputy Legal Counsel, Supreme Judicial Court

Randall Ravitz, Chief, Appeals Division, Criminal Bureau, Office of the Attorney General

Hon. Peter Sacks, Appeals Court (member while State Solicitor, Office of the Attorney General)

Michael Sullivan, Clerk, Middlesex Superior Court

Hon. Gabrielle Wolohojian, Appeals Court

mailto:[email protected]

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CONTENTS Introduction ........................................................................................................................................ 2

Contents ............................................................................................................................................. 4

Proposed Global Changes to all Rules ............................................................................................... 6

Rule 1. Scope of Rules: Definitions .................................................................................................. 9

Rule 2. Suspension of Rules ........................................................................................................... 15

Rule 3. Appeal—How Taken .......................................................................................................... 16

Rule 4. Appeal—When Taken ........................................................................................................ 24

Rule 5. Report of a Case for Determination .................................................................................... 32

Rule 6. Stay or Injunction Pending Appeal..................................................................................... 33

Rule 7. Disability of a Member of the Lower Court ....................................................................... 39

Rule 8. The Record on Appeal ........................................................................................................ 40

Rule 9. Assembly of the Record; Reproduction of Exhibits; Notice of Assembly; and Transmission of Documents from the Lower Court the Record: Exhibits ..................................... 56

Rule 10. Docketing the Appeal ....................................................................................................... 66

Rule 11. Direct Appellate Review .................................................................................................. 73

Rule 11.1. Transfer from Supreme Judicial Court .......................................................................... 78

Rule 12. Proceedings in Forma Pauperis ........................................................................................ 80

Rule 13. Filing and Service ............................................................................................................. 82

Rule 14. Computation and Extension of Time ................................................................................ 90

Rule 15. Motions ............................................................................................................................. 92

Rule 16. Briefs ................................................................................................................................ 95

Rule 17. Brief of an Amicus Curiae .............................................................................................. 116

Rule 18. Appendix to the Briefs: Contents, Cost, Filing, and Service.......................................... 121

Rule 19. Filing and Service of Briefs and Certain Motions ........................................................ 139

Rule 20. Form and Length of Briefs, Appendices, and Other PapersDocuments ...................... 146

[Deleted] Rule 21. Prehearing Conference ................................................................................... 159

[New] Rule 21. Protection of Personal Identifying Information ............................................. 159

Rule 22. Oral Argument ................................................................................................................ 161

Rule 23. Notice of Decision; Issuance of Rescript;: Stay of Rescript ......................................... 166

Rule 24. Justices’ Participation ..................................................................................................... 169

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[Deleted] Rule 24.1. Divided Vote on Further Appellate Review ................................................ 171

Rule 25. Damages for DelayFrivolous Appeal in Civil Cases ................................................... 172

Rule 26. Costs in Civil Cases ....................................................................................................... 173

Rule 27. PetitionMotion for RehearingReconsideration or Modification of Decision ................. 177

Rule 27.1. Further Appellate Review............................................................................................ 182

Rule 28. Entry of JudgmentProcedure in Lower Court Following Rescript ............................. 187

Rule 29. Voluntary Dismissal ....................................................................................................... 189

Rule 30. Substitution of Parties in Civil Cases ............................................................................ 192

Rule 31. Duties of Clerks .............................................................................................................. 195

Rule 32. Title................................................................................................................................. 199

Appendix of Sample Forms ........................................................................................................... 200

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PROPOSED GLOBAL CHANGES TO ALL RULES

The Subcommittee proposes the following global changes be made, where appropriate, throughout these Rules:

Gender Neutrality. Masculine gender pronouns are removed in favor of gender-neutral phrases.

Provisions Rendered Obsolete by Technology. The proposed amendments delete certain provisions that have become obsolete because of technological developments and work processes. Word Count Proposal. The Subcommittee proposes an amendment that would allow, as does Federal Rule of Appellate Procedure 32(a)(7), the use of a word limit together with a proportionally spaced font, as an alternative to a page limit, in setting the permissible lengths of principal and reply briefs, amicus briefs, motions for reconsideration or modification of decision (currently called petitions for rehearing), and applications for and responses to direct and further appellate review.

The proposed word limits are not intended to allow for longer documents. In fact, the proposed limits allow no more than the amount of text permitted under the current Rules. The proposed word limits are:

• 10,000 for a principal brief in all cases except cross appeals (Rule 20(a)(2)(A)); • 4,000 for a reply brief in all cases except cross appeals (Rule 20(a)(2)(B)); • 10,000 for an appellant’s principal brief in a cross appeal (Rule 20(a)(3)(A)); • 12,500 for an appellee’s principal and response brief in a cross appeal (Rule

20(a)(3)(B)); • 10,000 for an appellant’s response and reply brief in a cross appeal (Rule 20(a)(3)(C)); • 4,000 for an appellee’s reply brief in a cross appeal (Rule 20(a)(3)(D)); • 7,000 for an amicus brief (Rule 20(a)(2)(C) and (a)(3)(E)); • 2,000 for a motion for reconsideration or modification of decision (Rule 27(b) and (c));

and • 2,000 for argument in applications for direct appellate review and for further appellate

review, as well as any response to those documents (Rule 11(b), 11(c), and 27.1). The proposed amendments would exclude items for inclusion in the length limits consistent with current Mass. R. App. P. 16(h), and current Fed. R. App. P. 32(a)(7)(B)(ii), except that the word count proposal clarifies that the signature block also is excluded. See proposed Rule 20(a)(2)(D) and 20(a)(3)(E). The amendments would require a certification of compliance with the new requirements, including a specific representation of how compliance with the brief-length limit

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was ascertained (See proposed Rules 20(a)(2)(F), 20(a)(3)(G) and 16(k)). The Federal rules likewise require a certificate of compliance for word count. See Fed. R. App. P. 32(a)(7)(C). There are many advantages to this proposed change. For example, it will eliminate the considerable time parties sometimes spend using formatting devices solely to comply with the current page limits. These devices include (a) moving material from text into footnotes; (b) reordering and otherwise adjusting the wording of sentences and paragraphs in order to save lines, ultimately adding up to saved pages; and (c) placing the first (or last) line of a paragraph on the page before (or after) the remainder of the paragraph, creating an awkward “widow” or “orphan” line of text. In addition, a proportionally spaced font provides higher contrast and therefore is more readable than a monospaced font (whether on paper or on a screen), especially when italics are used. A proportionally spaced font is also more readable when fully-justified. This proposal is consistent with the word limit/proportional font approach in the Federal rules, except that the proposed amendments to the Massachusetts rules preserve the 1.5" side margins to which the Massachusetts appellate courts are accustomed. (Allowing 1" margins would make a line of proportional font longer and thus less readable. It would also require either different side-margin rules for proportional vs. monospaced font; or, if 1" margins were allowed for monospaced font as well, a shortening of the existing page limits to maintain the substance of the existing limits on the overall amount of material in the brief.) Importantly, the proposal allows for no more than the amount of text that currently fits into a properly formatted 50-page principal brief or 20-page reply brief. The Subcommittee reviewed the Federal rules for guidance as to comparative ratios among the different types of briefs (i.e., principal, reply, and amicus), but not for the absolute numbers of words, since it was determined that adopting the Federal word count applicable to the various briefs would lead to substantially longer briefs than the 50 pages currently authorized in the Massachusetts rules. For this reason, the proposed word limits for briefs are less than their Federal counterparts and, as stated above, allow no more than the amount of text permitted under the current rules. Note that for briefing in a cross appeal, the appellee’s response and reply brief may include approximately the amount of text that fits into a properly formatted 60-page brief. This is consistent with the Federal approach by recognizing that in an appellee/cross-appellant’s brief, the appellee must both respond to the arguments in the appellant’s brief and present the appellee’s arguments in the cross appeal. For a further discussion of the Subcommittee’s proposal regarding the briefing process in a cross appeal, please refer to the explanation of proposed Rule 20(a)(3), infra.

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“Freestanding” Paragraphs: Separating into Smaller Segments and Numbering. Multiple existing rules have several long, freestanding paragraphs either comprising the complete rule or contained within sections of a rule. This decreases readability of the rule and makes referring to particular provisions of a rule more complex. Accordingly, many freestanding paragraphs have been numbered and separated into distinct paragraphs, making it easier to refer to different sections. Where appropriate, titles also have been added.

Consistent Numbering. Throughout the Rules, numbers have been consistently changed to numeral format. Excluded from this change are internal rule cross-references and other citations, as well as numbers that begin a sentence.

Changing “Paper” to “Document”. The word “paper” is replaced with “document” throughout the rules. The word “document” encompasses more media (e.g., PDFs) and is in line with the courts’ transition to electronic filing and storage of electronic documents.

Changing Deadlines to be in Increments of 7 Days. Many filing deadlines in the rules are revised to be in increments of 7. Most existing 10-day deadlines are converted to 14-day deadlines, and all 20-day deadlines to 21-day deadlines. Currently, the 10- and 20-day deadlines cause some due dates to fall on weekends. By extending these due dates to the next closest increment of 7, the dates are certain to fall on weekdays. This clarifies filing dates for parties and makes processing filings easier in the appellate courts. Note that deadlines in increments of 30 or 40 days are unchanged because those are well established and traditionally referenced time periods that are not as affected by the weekend as the shorter time periods referenced above.

Changing “Trial” Court to “Lower” Court. All references to the trial court are amended to lower court, consistent with the definition of “lower court” in Rule 1(c). Changing “Opposition” to “Response”. All references to “opposition” are amended to “response” to reflect that, depending on the particular circumstances of a case, or a particular motion, the nonmoving party may want to respond to the moving party’s request, but not necessarily oppose that request. Parties remain free to caption a response as an “opposition” if they so desire.

Form of Cross-References. Internal cross-references within a Rule to other Massachusetts Rules of Appellate Procedure are changed to be in the form “Rule 6(a)(2) ” instead of “section (a)(2) of this rule,” to clarify the cross-reference.

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RULE 1. SCOPE OF RULES: DEFINITIONS

Summary Several significant changes are proposed to Rule 1. First, the revisions to paragraph (a) add language tracking the revised Massachusetts Rule of Civil Procedure 1 and Federal Rule of Civil Procedure 1, to express that the rules are intended to secure the just, speedy, and inexpensive determinations of appeals, and should be construed in that manner. An additional new sentence provides that the rules are to be construed in conjunction with the local rules and standing orders of the appellate courts. Second, all but the first sentence of paragraph (b) is deleted as unnecessary, overbroad, and duplicative of the first sentence.

Third, the proposed changes to paragraph (c) include revisions to the reference to G.L. c. 190B in the definition of “child welfare case” by deleting “Parts 2 and 3,” and adding “regarding guardianship of minors.” Fourth, a new definition of “decision” is added to distinguish between the appellate court's written opinion, memorandum and order pursuant to Rule 1:28, or other final adjudicative order in the case (the decision), and the “rescript,” which is the appellate court's order, direction, or mandate disposing of the appeal, that is transmitted to the lower court 28 days after the release of the appellate court’s decision (the rescript). Additionally, the definition of “first class mail” is updated to include references to appropriate, alternate mail delivery options already in use, including third-party commercial carriers. Lastly, a new definition of “party” is proposed to refer to both a self-represented party and counsel.

Explanation of Revisions

Rule 1(a). The Subcommittee amended this section by adding “and Construction” to its title to clarify the content of the rule. Proposed language that the rules should be construed in order to secure the just, speedy, and inexpensive determination of appeals is consistent with the new Federal Rule of Civil Procedure 1, including amendments effective December 1, 2015. Nearly identical language is also included in Massachusetts Rule of Civil Procedure 1, including amendments effective July 1, 2015. See Mass. R. Civ. P. 1 (“[These rules] shall be construed to secure the just, speedy and inexpensive determination of every action.”); Fed. R. Civ. P. 1 (“[These rules] should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”). As stated in the Reporter’s Notes to the revised Mass. R. Civ. P. 1, “The purpose of the change was to acknowledge that both the court and the parties have the obligation to employ the rules for the purposes set forth.”

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Additionally, including in this paragraph a reference to the appellate courts’ local rules and standing orders also removes many of the so-called “traps for the unwary,” as individuals who rely only on the appellate rules may miss additional procedural requirements and potentially compromise their appellate rights. See Commonwealth v. Hartsgrove, 407 Mass. 441, 444-445 (1990) (“The Massachusetts Rules of Appellate Procedure were intended to simplify the procedure by which individuals take a case from the trial court to the appellate court, removing many of the traps for the unwary which previously prevented a litigant from having his appeal heard on the merits.”).

Rule 1(b). The Subcommittee proposes deleting the second sentence of paragraph (b) as unnecessary in light of the broad language of the first sentence. An appeal from a decision of a Single Justice of the Supreme Judicial Court must be to the Supreme Judicial Court, but other proceedings related to such an appeal may not be. See Pixley v. Commonwealth, 453 Mass. 827 (2009) (describing subsequent proceedings related to the appeal to take place in the Appeals Court); Commonwealth v. Pixley, 77 Mass. App. Ct. 624 (2010) (related proceedings in the Appeals Court).

Rule 1(c). The clause “unless the context clearly indicates otherwise” was added to the beginning of the rule to address instances when the words, as used in the Rules, are more broad or narrow than that included in the definitions.

Proposed new and revised definitions:

“Child welfare case”: The reference to G.L. c. 190B in the definition of “child welfare case” is revised to clarify that only the provisions of G.L. c. 190B regarding guardianship of minors is encompassed in the definition, so as to ensure the definition is neither over- nor under-inclusive.

“Decision”: A definition of “decision” is added to distinguish between the appellate court's written opinion, memorandum and order pursuant to Rule 1:28, or other final adjudicative order in the case (the decision), and the “rescript,” which is the appellate court's order, direction, or mandate disposing of the appeal. The current rules’ use of “rescript” causes some confusion for parties as to when to begin calculating the time to file a petition for rehearing and an application for further appellate review. Accordingly, the Subcommittee proposes to add "decision" in place of "rescript" in proposed Rules 27(a), 27.1(a) and 27.1(b), as well as to proposed Rules 23(a), 23(b), and 31(c).

“First class mail or its equivalent”: Including third-party carriers within the definition of “first class mail” conforms with the parallel Federal Rule of Appellate Procedure 25(a)(2)(B). In addition, this definition better serves the parties by allowing such filings and making it clear that these services may be used. The Subcommittee chose delivery within 3 days to ensure that the third-party carrier used is comparable to the United States Postal Service first class mail. The period of “3 days” as opposed to “3 calendar days” was selected in part because this is the language included in the Federal rules.

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“Party”: Adding a new definition for the term “party” clarifies that, when “party” is used, it refers both to a self-represented party and counsel, rather than expressly referencing both situations in every rule. In parallel with the addition of this definition, the term has been added throughout the rules where appropriate.

“Rescript”: A slight revision to “rescript” is made for stylistic purposes only. No substantive change is intended.

Rule 1(d). The Subcommittee removed the last clause of the final sentence. This explanation is no longer necessary as words that import the masculine gender were globally removed from the Rules and replaced with gender-neutral language.

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Requested Reporter’s Notes

Rule 1(a). The Subcommittee requests the following Reporter’s Note to clarify the meaning of the proposed new last sentence, “[The Rules] shall be construed in conjunction with the rules and standing orders of the appellate courts” as follows:

These Rules shall be construed in conjunction with the Rules of the Supreme Judicial Court, Appeals Court Rules, and standing orders of the appellate courts, including but not limited to: Supreme Judicial Court Rule 1:15 (impoundment procedure in the appellate courts), Supreme Judicial Court Rule 1:21 (corporate disclosure statement), Chapter 2 of the Supreme Judicial Court Rules (rules for the regulation of Single Justice practice before the Supreme Judicial Court), and any appropriate Massachusetts Appeals Court rules or standing orders.

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PROPOSED RULE 1—SHOWING REVISIONS AND DELETIONS

KEY TO REPORTER’S CONVENTIONS: Original language = regular typeface Strikethrough = removed Bold = addition to rule

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Rule 1. Scope of Rules: Definitions (a) Scope and Construction of Rules. These rules govern procedure in appeals to an appellate court. They shall be construed, administered, and employed to secure the just, speedy, and inexpensive determination of appeals. They shall be construed in conjunction with the rules and standing orders of the appellate courts. (b) Rules Not to Affect Jurisdiction. These rules shall not be construed to extend or limit the jurisdiction, as established by law, of the Supreme Judicial Court or the Appeals Court. All proceedings related to any appeal from: (a) a decision of a single Justice of the Supreme Judicial Court, and (b) a decision of any tribunal, appeal from which must by law be brought in the Supreme Judicial Court, shall be had only before the full Supreme Judicial Court or a single justice thereof (unless transferred to the Appeals Court by order of the Supreme Judicial Court). But these rules shall govern such proceedings, except as provided in Supreme Judicial Court Rule 2:21. (c) Definitions. As used in these rules, unless the context clearly indicates otherwise:

“appeal” means an appeal to an appellate court and supersedes any procedure other than reservation and report by which matters have heretofore been brought before an appellate court for review. “Aappellate Ccourt” means the full Supreme Judicial Court, the full Appeals Court, or a statutory quorum of either, as the case may be, whichever court is exercising statutory jurisdiction over the case at bar. “child welfare case” means any case that is before a court of competent jurisdiction pursuant to G.L. c. 119, §§ 21-39J; G.L. c. 190B, Parts 2 and 3 regarding guardianship of minors; or G.L. c. 210, §§ 1-11. “clerk” means “clerk,” “register,” “recorder,” and their respective assistants or deputies; “clerk of the appellate division” means the clerk of the trial court from which the action was reported to the appellate division. “decision” means, when referring to an appellate court, the court’s written opinion, memorandum and order pursuant to Appeals Court Rule 1:28, or other final adjudicative order in the case. “first class mail or its equivalent” means (1) use of the United States Postal Service through first class postage or other class of mail that is at least as expeditious,

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postage prepaid or (2) dispatch to a third-party commercial carrier for delivery within 3 days., whether certified, registered, uncertified, or unregistered. Registration or certification shall not be required unless specifically stated to be necessary. “lower court” means the single justice, court, appellate division, board, commission, or other body whose decision is the subject of an appeal; for the purpose of Rule 9, the term includes any member of the lower court. “party” means counsel, where a party is represented by counsel, or, when a party is not represented by counsel, it means the self-represented litigant. “rescript” means the appellate court’s order, direction, or mandateof the appellate court disposing of the appeal. “single justice” means a single justice of whichever appellate court is exercising statutory jurisdiction over the case at bar.

(d) Construction. Words or phrases importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular, and words importing the masculine gender may include the feminine and neuter.

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PROPOSED RULE 1 Rule 1. Scope of Rules: Definitions (a) Scope and Construction of Rules. These rules govern procedure in appeals to an appellate court. They shall be construed, administered, and employed to secure the just, speedy, and inexpensive determination of appeals. They shall be construed in conjunction with the rules and standing orders of the appellate courts. (b) Rules Not to Affect Jurisdiction. These rules shall not be construed to extend or limit the jurisdiction, as established by law, of the Supreme Judicial Court or the Appeals Court. (c) Definitions. As used in these rules, unless the context clearly indicates otherwise:

“appeal” means an appeal to an appellate court and supersedes any procedure other than reservation and report by which matters have heretofore been brought before an appellate court for review.

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“appellate court” means the full Supreme Judicial Court, the full Appeals Court, or a statutory quorum of either, as the case may be, whichever court is exercising statutory jurisdiction over the case at bar. “child welfare case” means any case that is before a court of competent jurisdiction pursuant to G.L. c. 119, §§ 21-39J; G.L. c. 190B regarding guardianship of minors; or G.L. c. 210, §§ 1-11. “clerk” means “clerk,” “register,” “recorder,” and their respective assistants or deputies; “clerk of the appellate division” means the clerk of the trial court from which the action was reported to the appellate division. “decision” means, when referring to an appellate court, the court’s written opinion, memorandum and order pursuant to Appeals Court Rule 1:28, or other final adjudicative order in the case. “first class mail or its equivalent” means (1) use of the United States Postal Service through first class postage or other class of mail that is at least as expeditious, postage prepaid or (2) dispatch to a third-party commercial carrier for delivery within 3 days. Registration or certification shall not be required unless specifically stated to be necessary. “lower court” means the single justice, court, appellate division, board, commission, or other body whose decision is the subject of an appeal; for the purpose of Rule 9, the term includes any member of the lower court. “party” means counsel, where a party is represented by counsel, or, when a party is not represented by counsel, it means the self-represented litigant. “rescript” means the appellate court’s order, direction, or mandate to the lower court disposing of the appeal. “single justice” means a single justice of whichever appellate court is exercising statutory jurisdiction over the case at bar.

(d) Construction. Words or phrases importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular.

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RULE 2. SUSPENSION OF RULES

Summary and Explanation of Revisions This proposed revision strikes the last sentence of Rule 2, which currently states that “[s]uch a suspension [of the Rules] may be on reasonable terms,” and replaces it with “on such terms as the court or the single justice may order.” It can be assumed that a judicial determination to suspend the rules should always be made reasonably, and the new language keeps parties on notice that there may be terms and conditions attached to a suspension of the rules. In addition, this amendment is consistent with Federal Rule of Appellate Procedure 2, which does not contain a statement about the terms of suspension of the rules.

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PROPOSED RULE 2—SHOWING REVISIONS AND DELETIONS Rule 2. Suspension of Rules In the interest of expediting decision, or for other good cause shown, the appellate court or a single justice may, except as otherwise provided in Rule 14(b), suspend the requirements or provisions of any of these rules in a particular case, on such terms as the court or the single justice may order, on application of a party or on its own motion and may order proceedings in accordance with its direction. Such a suspension may be on reasonable terms.

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PROPOSED RULE 2 Rule 2. Suspension of Rules In the interest of expediting decision, or for other good cause shown, the appellate court or a single justice may, except as otherwise provided in Rule 14(b), suspend the requirements or provisions of any of these rules in a particular case, on such terms as the court or the single justice may order, on application of a party or on its own motion and may order proceedings in accordance with its direction.

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RULE 3. APPEAL—HOW TAKEN

Summary Revisions to paragraph (a)(1) clarify that the appellant has a duty to serve notice on all other involved parties when filing a notice of appeal. The revisions to paragraph (b) change the title of the paragraph from “Joint or Consolidated Appeals” to “Appeals By Multiple Parties.” In addition, the proposal moves to Rule 10 provisions regarding consolidating appeals and parties proceeding on appeal as a single appellant. The revisions to paragraph (c) regarding the signing of the notice of appeal in a child welfare case where the appellant is not a minor, changes the phrase “party or parties taking the appeal,” to “person or persons or counsel for the entity taking the appeal.” “Entity” would include a government agency, such as the Department of Children and Families, which sometimes takes an appeal in child welfare cases. In addition, the phrase “the minor subject of the action” is shortened to “a minor.” The text of revised paragraph (e) changes the procedure for lower court counsel to withdraw their appearance on appeal in criminal and certain non-criminal cases. Counsel must inform the Committee for Public Counsel Services that a notice of appeal has been filed and assignment of appellate counsel is necessary. Existing paragraph (f), concerning appointment of counsel in child welfare cases, is revised such that the Rule is subject to the requirements of new Rule 10(d) concerning motions to withdraw appearance after the docketing of an appeal in the appellate court. Further, a new paragraph has been added as new Rule 3(e)(4) explaining that, if a motion to withdraw is not filed and allowed in the lower court prior to transmission of the notice of assembly to the appellate court, lower court counsel will be designated as counsel in the appellate court. The new provision states that any subsequent motion to withdraw must comply with Rule 10(d).

Explanation of Revisions Rule 3(a). The phrase “with service upon all parties” is added to the first sentence to clarify the appellant’s duty to serve notice on all other parties when filing a notice of appeal. As the Rule presently stands, this duty is not clear, in part due to the lack of an explicit statement of the appellant’s duty and in part because paragraph 3(d) states that the clerk is to provide notice. Although the clerk of the lower court is still required to serve notice, clarifying the duty of the filing party to serve other parties the notice of appeal will ensure prompt service of all filings.

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Rule 3(b). The Subcommittee proposes changing the title of this paragraph from “Joint or Consolidated Appeals” to “Appeals by Multiple Parties.” In addition, the proposed revisions include removing the language relating to consolidated appeals and authorizing parties to proceed on appeal as a single appellant. The substance of this provision is relocated to Rules 10(a)(5) and (6). Currently, Rules 3 and 10 both address joinder and consolidation of appeals, and there may be inconsistency between how these rules are applied. Rule 3 is concerned with initiating an appeal in the lower court, and prescribes how a party takes an appeal; Rule 10(a) addresses the docketing of the appeal and other matters related to the appeal in the appellate court. Rule 3 as currently written authorizes parties to proceed on appeal as a single appellant and addresses consolidation of appeals in the appellate court, matters that more appropriately should be addressed in the appellate court. Consolidating appeals happens at the time of, or after, the docketing of the appeal in the appellate court, not at the time the notice of appeal is filed in the lower court. Furthermore, whether parties can proceed on appeal as a single appellant is more appropriately determined by the appellate court. Moving the content of the subsection related to consolidated appeals and to parties proceeding on appeal as a single appellant to Rules 10(a)(5) and (6) provides a more appropriate context for these provisions. In addition, proposed revisions to Rule 3(b) clarify that in addition to a judgment or order, an appeal may be taken from a decree or adjudication. The addition of these words makes this provision consistent with other parts of the rules. Rule 3(c). This provision is revised to include separate paragraphs for the required content of a notice of appeal, generally (Rule 3(c)(1)), and those filed in child welfare cases (Rule 3(c)(2)). Because the requirements related to a notice of appeal in a child welfare case are different from all other types of cases, a separate paragraph for notices of appeal in child welfare cases lends clarity to the rule. Regarding the signing of the notice of appeal in a child welfare case where the appellant is not a minor, the reference is amended from “party or parties taking the appeal,” to “person or persons or counsel for the entity taking the appeal,” because of the new definition of “party” in Rule 1(c), and because the term “person” ordinarily does not apply to government entities, such as the state Department of Children and Families, which may take appeals in child welfare cases and which can act only through counsel. In addition, the phrase “the minor subject of the action” is shortened to “a minor” as the qualification in the former phrase is excess verbiage that may add confusion to the rule.

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Rule 3(d). This paragraph was updated to replace “mailing” with “transmitting,” to accommodate the fact that the lower court may have procedures by which notice is transmitted electronically. See Mass. R. Civ. P. 77(d). Rule 3(e). The Subcommittee proposes changing the procedure for lower court counsel to withdraw their appearance upon appeal. Rather than filing a motion to withdraw, waiting for the lower court to rule on the motion, and then assigning CPCS to provide representation, the proposed new procedure requires lower court counsel to notify CPCS that appellate counsel should be assigned no later than the day on which the notice of appeal is to be filed. Assigned appellate counsel is required to file a prompt notice of appearance in the lower court, following which lower court counsel may file a notice of withdrawal. This procedure is proposed because CPCS often is not timely notified that it needs to assign appellate counsel. As a result, a substantial amount of time may elapse before appellate counsel is assigned, causing delays in the appellate process. The proposed procedure will ensure timely notification to CPCS, and appearance of appellate counsel, prior to the filing of a motion to withdraw by trial counsel, streamlining the assignment of counsel and appeals process. Rule 3(f). The Subcommittee added references to new Rule 10(d) (see infra Rule 10(d) for a full explanation of this provision), relating to motions to withdraw appearance after the lower court's issuance of the notice of assembly and docketing of an appeal in the appellate court, as well as a new, separately numbered paragraph explaining that, should lower court counsel either not withdraw in the lower court or file a motion to withdraw in the lower court that is not acted on by the lower court prior to its issuance of the notice of assembly, the lower court counsel’s appearance in the case will continue and counsel will be designated as counsel in the appellate court. There is often confusion on the part of lower court counsel as to whether a motion to withdraw appearance should be filed in the lower or appellate court. Appellate courts enter active counsel listed on the lower court docket at the time of transmission of the notice of assembly, whether or not counsel thereafter has been retained or assigned for purposes of the appeal because such terms of representation are not entered on a docket—only an attorney’s appearance or withdrawal is entered. Adding this language clarifies that counsel listed as active on the lower court docket at the time the notice of assembly issues will be listed as active counsel on the docket of the appellate court, consistent with current practice. It also clarifies that, after an appeal is entered in an appellate court, a motion to withdraw must be filed in the appellate court, not the lower court. This amendment will reduce confusion on the part of attorneys as to why their appearance has entered on the appellate court docket in circumstances where the attorney was retained or assigned as lower court counsel only, and clarifies that a motion to withdraw appearance should be filed in the appellate court once that court has jurisdiction of a case. See proposed new Rule 10(d), infra.

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PROPOSED RULE 3—SHOWING REVISIONS AND DELETIONS Rule 3. Appeal—How Taken (a) Filing the Notice of Appeal.

(1) An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 4, with service upon all parties. Failure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. (2) A party need not claim an appeal from an interlocutory order to preserve his the party’s right to have such order reviewed upon appeal from the final judgment; but for all purposes for which an appeal from an interlocutory order has heretofore been necessary, it is sufficient that the party comply with the requirement of Massachusetts Rules of Civil Procedure 46 or Massachusetts Rules of Criminal Procedure 22, whichever was applicable to the trial of the case in the lower court.

(b) Joint or Consolidated AppealsAppeals by Multiple Parties. If two 2 or more persons are entitled to appeal from a judgment, decree, adjudication, or order, or part thereof of a lower court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the appellate court upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals. (c) Content of the Notice of Appeal.

(1) Content of the Notice of Appeal, Generally. The notice of appeal shall specify the party or parties taking the appeal and shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from. (2) Content of the Notice of Appeal in Child Welfare Cases. In child welfare cases, the notice of appeal and any request for a transcript, if required, shall be signed by

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the party or parties person or persons or counsel for the entity taking the appeal;, unless however, if the appellant is the a minor subject of the action;, the notice and request shall be signed by the minor’s counsel. aA notice of appeal that is not so signed shall not be accepted for filing by the clerk.

(d) Service of the Notice of Appeal. The clerk of the lower court shall serve notice of the filing of a notice of appeal by mailingtransmitting a copy thereof to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party at his last known address. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or his counsel. The clerk shall note in the docket the names of the persons to whom copies are transmitted, and the date of transmissionhe mails copies, with the date of mailing. (e) Change of Counsel on Appeal in Criminal and Certain Non-criminal Cases. If the defendant in a criminal case, or any party in any other proceeding, excluding child welfare cases, in which counsel is required to be made available to such party pursuant to Supreme Judicial Court Rule 3:10, was represented by counsel at trial, trial lower court counsel shall continue to represent that party on appeal until the trial court permits him to withdraw his appearance and until an appearance is filed by substitute counsel. In such proceedings, assigned lower court counsel shall, no later than the day on which the notice of appeal is filed, notify the Committee for Public Counsel Services that appellate counsel should be assigned. Assigned appellate counsel shall promptly file a notice of appearance in the lower court, following which lower court counsel may file a notice of withdrawal. If trial counsel wishes to withdraw, he shall, on the day upon which the notice of appeal is filed, file a motion to withdraw. Any motion under this provision shall be marked up by the trial counsel for hearing no later than seven days after filing. If the motion to withdraw is allowed, the judge shall assign the Committee for Public Counsel Services to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10. (f) Appointment of Appellate Counsel in Child Welfare Cases.

(1) Subject to the provisions of Rule 10(d), aAny party to a child welfare case in which counsel was appointed pursuant to Supreme Judicial Court Rule 3:10 and who was represented by counsel at trial, shall continue to be represented by that counsel on appeal until either the trial lower court has appointed counsel for appellate purposes and an appearance has been filed by appellate counsel or the trial lower court has denied a motion to appoint counsel for appellate purposes.

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(2) Trial Lower court counsel shall, on the day upon which the signed notice of appeal is filed, file, and request a hearing on, a motion to allow reasonable costs associated with the appeal in the lower court. At the same time, if trial lower court counsel is not appellate certified by the Committee for Public Counsel Services, counsel shall also file, and request a hearing on, a motion to appoint counsel for appellate purposes in the lower court. Subject to the provisions of Supreme Judicial Court Rule 3:10, § 7, trial lower court counsel shall continue to represent the party at all trial lower court proceedings. (3) If the motion to appoint counsel for appellate purposes is allowed, the Committee for Public Counsel Services shall be assigned to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10. (4) If counsel has not filed a motion to withdraw appearance in the lower court, or counsel has filed a motion to withdraw but the motion has not been allowed by the lower court prior to the date that the lower court transmits to the appellate court the notice of assembly of the record pursuant to Rule 9, lower court counsel will be designated as counsel in the appellate court. Any motion to withdraw filed thereafter shall comply with Rule 10(d).

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PROPOSED RULE 3 Rule 3. Appeal—How Taken (a) Filing the Notice of Appeal.

(1) An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 4, with service upon all parties. Failure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal. (2) A party need not claim an appeal from an interlocutory order to preserve the party’s right to have such order reviewed upon appeal from the final judgment; but for all purposes for which an appeal from an interlocutory order has heretofore been necessary, it is sufficient that the party comply with the requirement of Massachusetts Rules of Civil Procedure 46 or Massachusetts Rules of Criminal Procedure 22, whichever was applicable to the trial of the case in the lower court.

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(b) Appeals by Multiple Parties. If 2 or more persons are entitled to appeal from a judgment, decree, adjudication, order, or part thereof of a lower court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal. (c) Content of the Notice of Appeal.

(1) Content of the Notice of Appeal, Generally. The notice of appeal shall specify the party or parties taking the appeal and shall, in civil cases, designate the judgment, decree, adjudication, order, or part thereof appealed from. (2) Content of the Notice of Appeal in Child Welfare Cases. In child welfare cases, the notice of appeal and any request for a transcript, if required, shall be signed by the person or persons or counsel for the entity taking the appeal; however, if the appellant is a minor, the notice and request shall be signed by the minor’s counsel. A notice of appeal that is not so signed shall not be accepted for filing by the clerk.

(d) Service of the Notice of Appeal. The clerk of the lower court shall serve notice of the filing of a notice of appeal by transmitting a copy thereof to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or counsel. The clerk shall note in the docket the names of the persons to whom copies are transmitted, and the date of transmission. (e) Change of Counsel on Appeal in Criminal and Certain Non-criminal Cases. If the defendant in a criminal case, or any party in any other proceeding, excluding child welfare cases, in which counsel is required to be made available to such party pursuant to Supreme Judicial Court Rule 3:10, was represented by counsel at trial, lower court counsel shall continue to represent that party on appeal until an appearance is filed by substitute counsel. In such proceedings, assigned lower court counsel shall, no later than the day on which the notice of appeal is filed, notify the Committee for Public Counsel Services that appellate counsel should be assigned. Assigned appellate counsel shall promptly file a notice of appearance in the lower court, following which lower court counsel may file a notice of withdrawal. (f) Appointment of Appellate Counsel in Child Welfare Cases.

(1) Subject to the provisions of Rule 10(d), any party to a child welfare case in which counsel was appointed pursuant to Supreme Judicial Court Rule 3:10 and who was

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represented by counsel at trial, shall continue to be represented by that counsel on appeal until either the lower court has appointed counsel for appellate purposes and an appearance has been filed by appellate counsel or the lower court has denied a motion to appoint counsel for appellate purposes. (2) Lower court counsel shall, on the day upon which the signed notice of appeal is filed, file, and request a hearing on, a motion to allow reasonable costs associated with the appeal in the lower court. At the same time, if lower court counsel is not appellate certified by the Committee for Public Counsel Services, counsel shall also file, and request a hearing on, a motion to appoint counsel for appellate purposes in the lower court. Subject to the provisions of Supreme Judicial Court Rule 3:10, § 7, lower court counsel shall continue to represent the party at all lower court proceedings. (3) If the motion to appoint counsel for appellate purposes is allowed, the Committee for Public Counsel Services shall be assigned to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10. (4) If counsel has not filed a motion to withdraw appearance in the lower court, or counsel has filed a motion to withdraw but the motion has not been allowed by the lower court prior to the date that the lower court transmits to the appellate court the notice of assembly of the record pursuant to Rule 9, lower court counsel will be designated as counsel in the appellate court. Any motion to withdraw filed thereafter shall comply with Rule 10(d).

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RULE 4. APPEAL—WHEN TAKEN

Summary The Subcommittee proposes several amendments to Rule 4. In particular, since a party may appeal from more than a “judgment,” paragraph (a) is amended to add “decree, appealable order, or adjudication,” and paragraph (b) to add “adjudication.” A cross-reference to Rule 25(b)(2) of the Massachusetts Rules of Criminal Procedure is added to the second paragraph of (b). Paragraph (a) is further revised to provide that the time to file an appeal after the disposition of a timely-filed post-judgment motion delineated in the Rule runs from the “date the order denying a new trial or disposing of any other motion listed in this sentence is entered in the lower court, whichever date is later.” In addition, the end of the last sentence of paragraph (c) is revised from “such notice as the lower court shall deem appropriate” to “service on all other parties,” and a new paragraph (d) is proposed to address the filing of a notice of appeal by a self-represented party confined in an institution.

Explanation of Revisions Rule 4(a) and 4(b). The Subcommittee proposes that, in paragraph (a), which governs appeals in civil cases, language be added such that “judgment, decree, appealable order, or adjudication” are referenced. Similarly, in paragraph (b), which governs appeals in criminal cases, the Subcommittee proposes that language be added such that “judgment, appealable order, or adjudication” are referenced. These updates make Rule 4(a) and 4(b) consistent with the terms used in existing Rule 3(c), except that the Subcommittee proposes adding “appealable” before the word “order” to more accurately delineate the scope of lower court dispositions from which an appeal may be taken. The addition of these words is not intended to alter what is an appealable lower court disposition; it is proposed for the purpose of ensuring consistency and completeness. The Subcommittee also proposes a Reporter’s Note clarifying what is meant by “appealable order” as follows:

An “appealable order” include those orders authorized by statute, rule, or case law as immediately appealable.

The Subcommittee next considered whether to update proposed Rule 4(a)(2) for consistency with amendments to the parallel provision of the Federal Rules of Appellate Procedure that became effective December 1, 2016. See Fed. R. App. P. 4(a)(4)(A). The amendments to the Federal

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provision removed the word “timely” in reference to the filing of enumerated post-judgment motions and their tolling effect on the time for filing a notice of appeal, and substituted language providing that tolling occurs only if a party “files” the post-judgment motion “within the time allowed by those rules” identified in Fed. R. App. P. 4(a)(4)(A). After reviewing the differences between the Federal and Massachusetts Rules of Civil Procedure, the Subcommittee concluded to retain “timely” in proposed Mass. R. App. P. 4(a)(2) because, unlike in the Federal Rule which references when a party “files” post-judgment motions under the Federal Rules of Civil Procedure, the pertinent Massachusetts Rules of Civil Procedure use different terms, including “filed,” “served,” and “made.” See Mass. R. Civ. P. 50(b) (“serve”), 52(b) (“made”), 59(b) (“served”), 59(e) (“served”), and 60(b)(“made”). The Subcommittee determined that retaining “timely” and removing “filed” from the existing language would eliminate any confusion insofar as proposed Rule 4(a)(2) references the Massachusetts Rules of Civil Procedure. As revised, the sentence would state: “If there is a timely motion under the Massachusetts Rules of Civil Procedure is filed in the lower court by any party . . . .” The Subcommittee also proposes an amendment to Rule 4(a)(2) which would clarify that the time for filing a notice of appeal for all parties begins on the date the order disposing of the last remaining motion enumerated in Rule 4(a)(2) is entered in the lower court. Proposed Rule 4(a)(3) revises existing language by highlighting in a separate provision that a notice of appeal filed before the disposition of any timely post-judgment motion described in Rule 4(a)(2), has no effect, and a new notice of appeal must be filed upon entry in the lower court of the order disposing of the last remaining motion. In addition, the reference to fees for filing a notice of appeal has been deleted. The only existing fees required for the filing of a notice of appeal are in the Appellate Division of the District Court, a court not governed by these rules. Deleting any reference to such fees removes any potential for confusion. Rule 4(c). In Rule 4(c), the Subcommittee proposes altering the last sentence to require service upon all other parties when a party seeks to file a request for an extension of time for filing a notice of appeal after the time has already expired, and removing language that the lower court determines the type of notice that a party is to provide. This proposal ensures consistency in procedure, as well as ensures that all parties to the lower court action receive notice. New paragraph 4(d). This new provision addresses the filing of a notice of appeal by self-represented parties confined in an institution, and is intended to apply to civilly committed persons as well as prisoners, similar to Federal Rule of Appellate Procedure 4(c). Although the First Circuit has not ruled on this question, other circuits are in agreement. They also use the word “inmate” to refer to such persons. See Brown v. Taylor, 829 F.3d 365 (5th Cir.

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2016); Parrish v. McCulloch, 481 Fed. Appx. 254, 254 (7th Cir. 2012); Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). This proposal clarifies timely filing in this scenario and tracks much of the parallel Federal Rule as well as Supreme Judicial Court case precedent. The provision provides that the notice of appeal is to be deemed filed on the date the document is deposited for mailing in the institution’s internal mailing system. The provision also creates a mechanism for inmates to show timely filing by requiring a certificate complying with Rule 13(a)(1)(B). This certificate will give rise to a presumption of timely filing. However, not including this certificate will not itself render the notice of appeal invalid or untimely; the Rule provision permits the lower court to allow later filing of the certificate. The Rule also establishes that, in a civil case, the 14-day time period for another party to file a notice of appeal begins when the filing of the first notice of appeal is entered on the lower court’s docket. Supreme Judicial Court case law and the Federal rules address special filing requirements applicable to self-represented inmate mail that currently are not addressed in the Massachusetts Rules of Appellate Procedure. In particular, Federal Rule of Appellate Procedure 4(c)(1) (as amended effective December 1, 2016) provides that, if such an individual files a notice of appeal in either a civil or criminal case, the notice is timely if it is deposited in the institution’s internal mail system on or before the last day for filing. Proposed Rule 4(d) is modeled on the Federal rule. In Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990), the Supreme Judicial Court relied on the United States Supreme Court’s interpretation of the Federal rule to hold that a self-represented party confined in an institution would be deemed to have filed a notice of appeal with the trial court, in accordance with Massachusetts Rule of Appellate Procedure 4(b), upon the inmate having placed the notice of appeal in the prison’s institutional mailbox. The court agreed with the defendant’s contention that filing the notice with the clerk in the case of an incarcerated self-represented inmate should be deemed to have occurred on the inmate’s relinquishment of control of the notice of appeal to the prison authorities. Id. at 444. Because Hartsgrove concerned a notice of appeal in a criminal matter, the Supreme Judicial Court did not reach the question of its applicability to civil matters. However, as the Supreme Judicial Court noted,

The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped “filed” or to establish the date on which the court received the

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notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk’s process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation. . . . [T]he pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped “filed” on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk’s failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access—the prison authorities—and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice.

Commonwealth v. Hartsgrove, 407 Mass. at 445-446, quoting Houston v. Lack, 487 U.S. 266, 270-272 (1988). Moreover, questions as to the timely filing of the notice of appeal cause issues for both the lower and appellate courts. Implementing a definitive rule will alleviate these issues. Adding this provision incorporates what is commonly referred to as “the prisoner mailbox rule” into the rules. The provision incorporates existing Supreme Judicial Court case law into Rule 4 and extends it to the filing of all notices of appeal by prisoners, as is the case under the Federal rules. Whether the case involves a criminal or civil appeal, the concerns highlighted by the Supreme Judicial Court in Hartsgrove as to the limitations placed on inmates regarding access to mail are the same, and thus the proposal applies equally to both types of cases.

Note that the proposed rule requires only that the party’s certificate set forth the date of deposit, and does not include the further requirement found in the Federal rule that the party also state that first-class postage has been prepaid. The Subcommittee investigated and learned that inmates in some Massachusetts institutions would not be able to certify that the postage has been prepaid since the institutions affix postage after the item leaves the inmate’s hands. The rule as proposed focuses on ensuring inmates use the internal mail system and deposit the notice in that system within the applicable time frame in order to obtain the benefit of the rule.

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Requested Reporter's Notes

Rule 4(a)(1) and 4(b)(1). An "appealable order" include those orders authorized by statute, rule, or case law as immediately appealable. Rule 4(d). The new Rule 4(d) addresses the filing of a notice of appeal by self-represented parties confined in institutions, and is intended to apply to civilly committed persons as well as prisoners, similar to Federal Rule of Appellate Procedure 4(c). Federal Courts of Appeal are in agreement that the federal rule applies to such persons, and they also use the word “inmate” to refer to such persons. See Brown v. Taylor, 829 F.3d 365 (5th Cir. 2016); Parrish v. McCulloch, 481 Fed. Appx. 254, 254 (7th Cir. 2012); Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004).

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Rule 4. Appeal—When Taken (a) Appeals in Civil Cases.

(1) In a civil case, unless otherwise provided by statute, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within thirty 30 days of the date of the entry of the judgment, decree, appealable order, or adjudication appealed from; but if the Commonwealth or an officer or agency thereof is a party, the notice of appeal may be filed by any party within sixty 60 days of such entry, except in child welfare cases, in which the notice of appeal shall be filed within thirty 30 days from the date of the entry of the judgment, decree, appealable order, or adjudication. If a notice of appeal is mistakenly filed in an appellate court, the clerk of such appellate court shall note the date on which it was received and transmit it to the clerk of the lower court from which the appeal was taken and it shall be deemed filed in such lower court on the date so noted. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within fourteen 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.

(2) If there is a timely motion under the Massachusetts Rules of Civil Procedure is filed in the lower court by any party, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: (1A) for judgment under Rule 50(b); (2B) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted;

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(3C) to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, but only if either motion is served within ten 10 days after entry of judgment; or (4D) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. (3) A notice of appeal filed before the disposition of any of the above timely motions listed in Rule 4(a)(2) shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the last such remaining motion as provided above. No additional fees shall be required for such filing.

(b) Appeals in Criminal Cases.

(1) In a criminal case, unless otherwise provided by statute or court rule, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within thirty 30 days after entry of the judgment, or appealable order, or adjudication appealed from; or entry of a notice of appeal by the Commonwealth; or the imposition of sentence. (2) The running of the time for filing a notice of appeal shall be terminated as to the moving party by a motion for a new trial pursuant to Massachusetts Rules of Criminal Procedure 25(b)(2) and 30 filed in the lower court within thirty 30 days after the verdict or finding of guilt or within thirty 30 days after imposition of sentence and the full time fixed by this rule shall commence to run and shall be computed from the date of entry of an order denying such motion.

(c) Extension of Time for Filing Notice of Appeal. Upon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal by any party for a period not to exceed thirty 30 days from the expiration of the time otherwise prescribed by this rule. Such an extension may be granted before or after the time otherwise prescribed by this rule has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with service on all other parties such notice as the lower court shall deem appropriate. (d) Appeal by a Self-Represented Party Confined in an Institution. If an institution has a system designed for legal mail, a self-represented party confined there must use that system to receive the benefit of this Rule. If such party files a notice of appeal in either a civil or criminal case, the notice is timely if deposited in the institution’s internal mail system on or before the last day for filing and is accompanied by a signed certificate in compliance with Rule 13(a)(1)(B) setting out the date of deposit. If the notice of appeal is not received by the last day for filing, the certificate shall give rise to a presumption of timely filing provided it

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shows compliance with this Rule. Failure to attach the certificate shall not of itself render the notice of appeal invalid or untimely, and the lower court may permit the later filing of a certificate. If such party files the first notice of appeal in a civil case under Rule 4(d), the 14-day period provided in Rule 4(a)(1) for another party to file a notice of appeal runs from the date when the lower court enters the first notice.

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PROPOSED RULE 4

Rule 4. Appeal—When Taken (a) Appeals in Civil Cases.

(1) In a civil case, unless otherwise provided by statute, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within 30 days of the date of the entry of the judgment, decree, appealable order, or adjudication appealed from; but if the Commonwealth or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry, except in child welfare cases, in which the notice of appeal shall be filed within 30 days from the date of the entry of the judgment, decree, appealable order, or adjudication. If a notice of appeal is mistakenly filed in an appellate court, the clerk of such appellate court shall note the date on which it was received and transmit it to the clerk of the lower court from which the appeal was taken and it shall be deemed filed in such lower court on the date so noted. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.

(2) If there is a timely motion under the Massachusetts Rules of Civil Procedure in the lower court by any party, the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion: (A) for judgment under Rule 50(b); (B) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (C) to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60, however titled, but only if either motion is served within 10 days after entry of judgment; or (D) under Rule 59 for a new trial. (3) A notice of appeal filed before the disposition of any timely motion listed in Rule 4(a)(2) shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the last such remaining motion.

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(b) Appeals in Criminal Cases.

(1) In a criminal case, unless otherwise provided by statute or court rule, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within 30 days after entry of the judgment, appealable order, or adjudication appealed from; or entry of a notice of appeal by the Commonwealth; or the imposition of sentence. (2) The running of the time for filing a notice of appeal shall be terminated as to the moving party by a motion for a new trial pursuant to Massachusetts Rules of Criminal Procedure 25(b)(2) and 30 filed in the lower court within 30 days after the verdict or finding of guilt or within 30 days after imposition of sentence and the full time fixed by this rule shall commence to run and shall be computed from the date of entry of an order denying such motion.

(c) Extension of Time for Filing Notice of Appeal. Upon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this rule. Such an extension may be granted before or after the time otherwise prescribed by this rule has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with service on all other parties. (d) Appeal by a Self-Represented Party Confined in an Institution. If an institution has a system designed for legal mail, a self-represented party confined there must use that system to receive the benefit of this Rule. If such party files a notice of appeal in either a civil or criminal case, the notice is timely if deposited in the institution’s internal mail system on or before the last day for filing and is accompanied by a signed certificate in compliance with Rule 13(a)(1)(B) setting out the date of deposit. If the notice of appeal is not received by the last day for filing, the certificate shall give rise to a presumption of timely filing provided it shows compliance with this Rule. Failure to attach the certificate shall not of itself render the notice of appeal invalid or untimely, and the lower court may permit the later filing of a certificate. If such party files the first notice of appeal in a civil case under Rule 4(d), the 14-day period provided in Rule 4(a)(1) for another party to file a notice of appeal runs from the date when the lower court enters the first notice.

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RULE 5. REPORT OF A CASE FOR DETERMINATION

Summary and Explanation of Revisions The Subcommittee’s proposed revisions update the Rule to reflect current notification practices, and include reference to the new definition of “party” to reduce excess verbiage in the current rule.

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Rule 5. Report of a Case for Determination A report of a case for determination by an appellate court shall for all purposes under these rules be taken as the equivalent of a notice of appeal. Whenever a case or any part of it is reported after decision or verdict, the aggrieved party (as designated by the lower court) shall be treated as the appellant. Whenever a case or any part of it is reported without decision or verdict, the plaintiff in a civil action or the defendant in a criminal case shall be treated as the appellant. The clerk of the lower court shall serve notice of the filing of the report by mailing transmitting a copy thereof to counsel of record for each party; or if a party is not represented by counsel, to the party at his last known address.

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PROPOSED RULE 5 Rule 5. Report of a Case for Determination A report of a case for determination by an appellate court shall for all purposes under these rules be taken as the equivalent of a notice of appeal. Whenever a case or any part of it is reported after decision or verdict, the aggrieved party (as designated by the lower court) shall be treated as the appellant. Whenever a case or any part of it is reported without decision or verdict, the plaintiff in a civil action or the defendant in a criminal case shall be treated as the appellant. The clerk of the lower court shall serve notice of the filing of the report by transmitting a copy thereof to each party.

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RULE 6. STAY OR INJUNCTION PENDING APPEAL

Summary The Subcommittee’s proposed revisions delete the word “reasonable” from Rule 6(a)(3), and change “rescript” to “decision” in Rules 6(b)(5) and (6) consistent with the new definitions for those terms proposed in Rule 1. In addition, in Rule 6(b)(2), the Subcommittee proposes language to clarify when the Commonwealth’s response time is either 30 days or governed by Rule 15.

Explanation of Revisions Rule 6(a)(3). The proposal deletes the word “reasonable.” Similar to the proposed amendment and explanation in Rule 2, it can be assumed that any terms imposed by the appellate court or single justice would be reasonable without the necessity of including an explicit statement to that effect. Rule 6(b)(2). The Subcommittee proposes the addition of language clarifying that there are two situations where the Commonwealth’s response time is governed by Rule 15: prior to entry of a criminal appeal, and, after entry of the appeal if the motion is filed within 30 days of the due date for the appellant’s brief. Otherwise, the Commonwealth has 30 days to respond. This clarification will eliminate any misapprehension that the Commonwealth has 30 days to respond in all circumstances. In both situations, the time for response is subject to the current caveat that the time may be shortened or extended by a single justice. Rule 6(b)(5) and (6). Changing the word “rescript” to “decision” is consistent with the new definitions for those terms proposed in Rule 1 to distinguish between the rescript and the decision in a case.

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PROPOSED RULE 6—SHOWING REVISIONS AND DELETIONS Rule 6. Stay or Injunction Pending Appeal (a) Civil Cases.

(1) Stay Must Ordinarily be Be Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court. In civil cases, an application for a stay of the judgment or order of a lower court pending appeal, or for approval of a bond under subsectionRule

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6(a)(2) of this rule, or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the lower court. A motion for such relief may be made to the appellate court or to a single justice, but the motion shall show that application to the lower court for the relief sought is not practicable, or that the lower court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the lower court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute, the motion shall be supported by affidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk of the appellate court to which the appeal is being taken (provided that if the court be the Supreme Judicial Court, the motion shall be filed with the clerk of the Supreme Judicial Court for Suffolk County).

(2) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available in the appellate court under this rule may be conditioned upon the filing of a bond or other appropriate security in the lower court. If security is given in the form of a bond or stipulation or other undertaking with one 1 or more sureties, each surety thereby shall submit to the jurisdiction of the lower court and irrevocably appoint the clerk of the lower court as an authorized agent upon whom any papers documents affecting liability on the bond or undertaking may be served. A surety’s liability may be entered against the surety on motion in the lower court without the necessity of an independent action. The motion and such notice of the motion as the lower court prescribes may be served on the clerk of the lower court, who shall forthwith mail copies to the sureties if their addresses are known.

(3) Terms. Relief available in the appellate court under this rule, or denial of such relief, may be conditioned on such reasonable terms as the appellate court or single justice may impose. For failure to observe such terms, the appellate court or single justice may make such further order as it or he the single justice deems just and appropriate.

(b) Criminal Cases. A motion for a stay of execution of a sentence shall be governed by paragraph Rule 6(b) of this rule and by Massachusetts Rules of Criminal Procedure 31.

(1) Stay Must Ordinarily beBe Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court. In criminal cases, an application for a stay of execution of a sentence pending appeal must ordinarily be made in the first instance in the lower court. A motion for such relief may be made to the single justice of the appellate court to which the appeal is being taken, but the motion shall show that application to the lower court for

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the relief sought is not practicable, or that the lower court has previously denied an application for a stay or has failed to afford the relief which the applicant requested with the reasons given by the lower court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute, the motion shall be supported by affidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed such parts of the record as are relevant. The motion shall be filed with the clerk of the appellate court to which the appeal is being taken (provided that if the court be the Supreme Judicial Court, the motion shall be filed with the clerk of the Supreme Judicial Court for Suffolk County). (2) Reasonable Notice. Reasonable notice of the motion for a stay shall be given to the Commonwealth. If the motion is filed prior to the entry of the appeal in an appellate court, the time for response shall be governed by Rule 15. After an appeal has been entered pursuant to Rule 10(a)(2), (A) ifIf the motion is filed at least 30 days prior to the date the appellant’s brief is due, the time for a response shall be governed by Rule 15; or (B). If if the motion is filed at any other time, the Commonwealth shall have 30 days to respond. A single justice may shorten or extend the time for responding to any motion authorized by this Rule. (3) Appealability of Single Justice Order;. Finality. An order by the single justice allowing or denying an application for a stay may be appealed to the appellate court in which the appeal is pending. An order by the appellate court in which the appeal is pending, allowing or denying an application for a stay, shall be final. (4) Revocation of Stay Pending Appeal. If a defendant fails at any time to take any measure necessary for the hearing of an appeal or report, a stay of execution of a sentence may, on motion of the Commonwealth, be revoked. (5) Expiration of Stay. Upon the release of the rescriptdecision by the appellate court of a judgment affirming the conviction, the stay of execution of the sentence automatically expires, unless extended by the appellate court. (6) Notice of Expiration of Stay. Upon release of a rescriptdecision affirming the conviction, the clerk of the appellate court shall notify the clerk of the triallower court and the parties that the conviction has been affirmed and that therefore, the stay of execution of the sentence has automatically expired.

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PROPOSED RULE 6 Rule 6. Stay or Injunction Pending Appeal (a) Civil Cases.

(1) Stay Must Ordinarily Be Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court. In civil cases, an application for a stay of the judgment or order of a lower court pending appeal, or for approval of a bond under Rule 6 (a)(2), or for an order suspending, modifying, restoring, or granting an injunction during the pendency of an appeal must ordinarily be made in the first instance in the lower court. A motion for such relief may be made to the appellate court or to a single justice, but the motion shall show that application to the lower court for the relief sought is not practicable, or that the lower court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the lower court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute, the motion shall be supported by affidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk of the appellate court to which the appeal is being taken (provided that if the court be the Supreme Judicial Court, the motion shall be filed with the clerk of the Supreme Judicial Court for Suffolk County).

(2) Stay May Be Conditioned Upon Giving of Bond; Proceedings Against Sureties. Relief available in the appellate court under this rule may be conditioned upon the filing of a bond or other appropriate security in the lower court. If security is given in the form of a bond or stipulation or other undertaking with 1 or more sureties, each surety thereby shall submit to the jurisdiction of the lower court and irrevocably appoint the clerk of the lower court as an authorized agent upon whom any documents affecting liability on the bond or undertaking may be served. A surety’s liability may be entered against the surety on motion in the lower court without the necessity of an independent action. The motion and such notice of the motion as the lower court prescribes may be served on the clerk of the lower court, who shall forthwith mail copies to the sureties if their addresses are known.

(3) Terms. Relief available in the appellate court under this rule, or denial of such relief, may be conditioned on such terms as the appellate court or single justice may impose. For failure to observe such terms, the appellate court or single justice may make such further order as it or the single justice deems just and appropriate.

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(b) Criminal Cases. A motion for a stay of execution of a sentence shall be governed by Rule 6(b) and by Massachusetts Rules of Criminal Procedure 31.

(1) Stay Must Ordinarily Be Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court. In criminal cases, an application for a stay of execution of a sentence pending appeal must ordinarily be made in the first instance in the lower court. A motion for such relief may be made to the single justice of the appellate court to which the appeal is being taken, but the motion shall show that application to the lower court for the relief sought is not practicable, or that the lower court has previously denied an application for a stay or has failed to afford the relief which the applicant requested with the reasons given by the lower court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute, the motion shall be supported by affidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed such parts of the record as are relevant. The motion shall be filed with the clerk of the appellate court to which the appeal is being taken (provided that if the court be the Supreme Judicial Court, the motion shall be filed with the clerk of the Supreme Judicial Court for Suffolk County).

(2) Reasonable Notice. Reasonable notice of the motion for a stay shall be given to the Commonwealth. If the motion is filed prior to the entry of the appeal in an appellate court, the time for response shall be governed by Rule 15. After an appeal has been entered pursuant to Rule 10(a)(2), (A) if the motion is filed at least 30 days prior to the date the appellant’s brief is due, the time for a response shall be governed by Rule 15; or (B) if the motion is filed at any other time, the Commonwealth shall have 30 days to respond. A single justice may shorten or extend the time for responding to any motion authorized by this Rule.

(3) Appealability of Single Justice Order; Finality. An order by the single justice allowing or denying an application for a stay may be appealed to the appellate court in which the appeal is pending. An order by the appellate court in which the appeal is pending, allowing or denying an application for a stay, shall be final. (4) Revocation of Stay Pending Appeal. If a defendant fails at any time to take any measure necessary for the hearing of an appeal or report, a stay of execution of a sentence may, on motion of the Commonwealth, be revoked. (5) Expiration of Stay. Upon the release of the decision by the appellate court of a judgment affirming the conviction, the stay of execution of the sentence automatically expires, unless extended by the appellate court.

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(6) Notice of Expiration of Stay. Upon release of a decision affirming the conviction, the clerk of the appellate court shall notify the clerk of the lower court and the parties that the conviction has been affirmed and that therefore, the stay of execution of the sentence has automatically expired.

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RULE 7. DISABILITY OF A MEMBER OF THE LOWER COURT

Summary and Explanation of Revisions The Subcommittee substantially revised the text of this Rule in order to make it more readable and otherwise to not limit or list the reasons a judge may become unable to participate in a case. The new text is more clear and allows for the replacement of a judge should that judge become unable to participate in the case. This is current practice, and these amendments make it clear that judicial substitutions may be made as needed. The revised language is consistent with parallel provisions in the Massachusetts Rules of Civil and Criminal Procedure. See Mass. R. Civ. P. 63 and Mass. R. Crim. P. 38.

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PROPOSED RULE 7—SHOWING REVISIONS AND DELETIONS Rule 7. Disability of a Member of the Lower Court If by reason of death, sickness, resignation, removal, or other disability, the a judge or judges whose decision has been appealed to the appellate court becomes unable to perform the duties to be performed under these rules by the lower courtparticipate further, then any other judge regularly sitting in of or assigned to suchthe lower court may, on assignment by the Chief Justice or presiding judge of such lower court, perform those duties be substituted.

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PROPOSED RULE 7 Rule 7. Disability of a Member of the Lower Court If a judge whose decision has been appealed to the appellate court becomes unable to participate further, then any other judge of or assigned to the lower court may be substituted.

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RULE 8. THE RECORD ON APPEAL

Summary Rule 8 contains extensive proposed amendments, as recommended by a Trial Court Committee on Transcript Production. Addressing widespread dissatisfaction with the complexity and lack of flexibility afforded by the current Rule 8, the Chief Justice of the Trial Court convened a Trial Court committee in 2016 to recommend changes to Rules 8 and 9(a) to provide an efficient and clear process for court personnel and attorneys for the production of the transcript for an appeal. The Committee is pleased to recommend the Trial Court’s proposal. The proposed Rule 8 presupposes the adoption of a forthcoming Administrative Order by the Chief Justice of the Trial Court addressing such issues as the mechanics of ordering a transcript from a lower court clerk or centralized depository, the method of payment for transcript, and the delivery of the transcripts by the court reporter or transcriber to the court and to the parties. As the Trial Court alters its recording systems and capacity for electronic transmission, this Administrative Order will allow maximum flexibility for the Chief Justice of the Trial Court to alter the procedures as technological and managerial advances allow within the bounds of the Rules. The Trial Court has not yet published a proposed administrative order and will wait until the proposed amendments to Rule 8 are adopted before doing so, which should allow the Trial Court sufficient time to experience the new recording system and identify new electronic means of transfer and filing the transcript. The proposal eliminates the cumbersome and rarely-used system of designation and cross-designation of transcripts contained in the current Rule 8(b)(1). Instead, absent an agreement among the parties, the appellant must order the transcript of all proceedings relevant to the appeal. The appellee may order the transcript of any other proceedings without having to cross-designate, and any disputes over whether the appellant should pay for those additional transcripts may be settled by the lower court. The proposal also eliminates the provision in the current rule, not always followed, that the clerk in a criminal case order the transcript without the prompting of the appellant. The appellant’s trial counsel is in a much better position than the clerk of the lower court to determine which dates and hearings are potentially relevant to an appeal, and requiring appellant’s counsel to order the transcript will increase efficiency and accuracy. Because of the extreme urgency of child welfare appeals, the requirement that the clerk of the lower court order the transcript directly in such appeals is retained. The proposal retains the option for parties to stipulate that some or all of the proceedings need not be transcribed or to present an agreed statement of the record on appeal. In such cases,

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however, the parties must inform the clerk of the lower court within 14 days of the filing of the notice of appeal, the same time limit for ordering a transcript. By this provision, the clerk will know that the court should receive some filing within 14 days of the filing of the notice of appeal if the appeal is expected to proceed. Finally, the proposal in paragraph (e) breaks out the various ways in which a transcript may be corrected or supplemented, requiring the approval of the lower court, unless the appellate court rules otherwise.

Explanation of Revisions Rule 8(a). The proposal replaces “papers” with “documents” and eliminates the requirement that the docket entries be certified. The second sentence of the current Rule 8(a) is deleted, as any report to the appellate division would be part of the documents on file with the lower court in any event. Rule 8(b)(1). Proposed Rule 8(b)(1) governs all appeals, whether civil or criminal, except for child welfare cases. Under proposed Rule 8(b)(1)(A), within 14 days of the filing of a notice of appeal, the appellant must either order transcripts of “all court proceedings relevant to the appeal,” certify that no court proceedings are relevant to the appeal, or certify that the relevant transcripts have already been filed with the court. If proceedings were electronically recorded, the appellant must order the recording and the transcription at the same time. The appellant has no duty to designate the proceedings to be transcribed or to wait 10 days for the appellee to respond to the designation. The exact mechanics of the order, and even whether the order will be made with the lower court clerk or a central provider such as the Office of Transcription Services, is left to an Administrative Order by the Chief Justice of the Trial Court, to allow the process to improve with technological advances. In any event, the appellant must file the orders (or certifications) with the lower court clerk and give notice to the other parties. If the appellee believes that other proceedings should be transcribed, the appellee may order the transcript of those proceedings within 14 days of the appellant’s order. Again, the appellee need not cross-designate or wait for a response from the appellant. The exact mechanics will be left to the Administrative Order. The appellee is likewise required to file any order with the lower court clerk and provide notice to the other parties. Proposed Rule 8(b)(1)(C) governs costs. As under the current rule, the Commonwealth is responsible for paying for the transcript for the court in all criminal cases and in civil cases in which the appellant was entitled to appointed counsel. In other cases, the appellant is required to pay for the transcript for the lower court for all proceedings relevant to the appeal, regardless of whether the appellant or the appellee ordered them. The lower court may settle any dispute over

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whether transcripts ordered by the appellee are relevant to the appeal and has the authority to shift costs even for transcripts relevant to the appeal if the interests of justice so recommend. Payment of costs for the copies of the transcripts to be provided to the parties will be governed by the Administrative Order, as this topic will be governed by contracts between the Trial Court and transcribers and court reporters, and should be greatly influenced by the expansion of electronic provision of transcripts. Proposed Rule 8(b)(1)(B) retains the right of the parties to stipulate that the transcription of some or all of the court proceedings is unnecessary to the appeal. In this circumstance, however, the parties must file the stipulation with the lower court clerk with 14 days, the same deadline for filing a copy of a transcript order. Rule 8(b)(2). Proposed Rule 8(b)(2) governs child welfare cases. As with current Rule 8(b)(5), proposed Rule 8(b)(2) requires the lower court clerk to order the transcript of the court proceedings relevant to the appeal, unless the parties stipulate otherwise within 14 days of the filing of the notice of appeal. This provision recognizes the extreme urgency of child welfare appeals. Rule 8(b)(3). Proposed Rule 8(b)(3) clarifies that, in all cases, the transcriber must deliver the transcript directly to the lower court clerk, rather than providing it to the ordering party for delivery to the clerk. This clarification is intended to avoid unnecessary delays. See South Boston Elderly Residences, Inc. v. Moynahan, 88 Mass. App. Ct. 742, 742-743 (2015) (nearly ten month delay caused by dispute over the duty to transmit the transcript). The mechanics of such delivery will be governed by the Administrative Order, again intended to allow the Trial Court to take immediate advantage of advances in technology regarding electronic delivery. The lower court clerk has the duty of informing all parties when all transcripts have been received. Of course, a clerk may also inform parties when transcripts of some, but not all, proceedings are received. Rule 8(c). The proposal modifies the procedure for reconstructing the record when a transcript is unavailable. Unlike the current Rule 8(c), the proposal places the duty on the parties to confer prior to the filing of a proposed reconstruction in the lower court. This process is more likely to achieve the objective of a record adequate for the appellate court and better reflects the Supreme Judicial Court’s admonition that “‘[a]ll those with . . . relevant evidence, but particularly the attorneys involved at the trial, are under an affirmative duty to use their best efforts to ensure that a sufficient reconstruction is made if at all possible.’” Drayton v. Commonwealth, 450 Mass. 1028, 1030 (2008), quoting Commonwealth v. Harris, 376 Mass. 74, 79 (1978). Once the parties have conferred, the appellant shall file a proposed reconstruction. As under the current rule, any other party may file objections, amendments, or additions, and the lower court shall settle the

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matter. The deadline for filing such objections, amendments, or additions is changed from 10 days to 14 days. Rule 8(d). The proposal retains the ability of the parties to file an agreed statement of the record on appeal. Unlike the current rule, however, the parties must notify the lower court clerk of their intention to do so within 14 days of filing the notice of appeal. Rule 8(e). The proposal separates the three ways in which transcripts may be modified: omissions, corrections, or the supplying of inaudible portions. In each case, the parties may stipulate to a modification and submit the stipulation to the lower court for approval. If the parties cannot agree, they may submit the dispute to the lower court for resolution. The provision of the current Rule 8(e) that allows parties to stipulate to an addition, but not a correction, without lower court approval is deleted. In both cases, the appellate court may benefit from any guidance the lower court judge may be able to provide. The appellate court retains the ability to order a correction or addition to the transcripts, with or without lower court input.

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PROPOSED RULE 8—SHOWING REVISIONS AND DELETIONS Rule 8. The Record on Appeal (a) Definition. The record on appeal shall consist of the documents and exhibits on file, the transcript of the proceedings, if any, and the docket entries. Composition of the Record on Appeal. The original papers and exhibits on file, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases. In a civil case, in an appeal from an appellate division, the original papers and exhibits shall include the report of the trial judge to the appellate division with any exhibits made a part of such report.

(b) The Producing the Transcript of Proceedings.

(1) Civil Cases, Except Other than Child Welfare Cases:.

(A) Transcript Orders and Certifications. For those proceedings relevant to the appeal that were recorded by a court reporter, the appellant shall order a transcript of those proceedings within 14 days of filing the notice of appeal in accordance with procedures set by the Chief Justice of the Trial Court, unless the appellant certifies to the clerk (i) that no lower court proceedings are relevant to the appeal or (ii) that the transcript is on file with the court. For those proceedings relevant to the appeal that were electronically

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recorded, the appellant shall request the transmission of the audio recording of those proceedings and order the transcription of those proceedings within 14 days of filing the notice of appeal in accordance with procedures set by the Chief Justice of the Trial Court, unless the appellant certifies to the clerk (i) that no lower court proceedings are relevant to the appeal or (ii) that the transcript of all proceedings relevant to the appeal is on file with the court. The appellant shall at the same time file a copy of the transcript orders or certifications with the clerk and serve a copy on all other parties. Within 14 days of service of the appellant’s transcript orders or certifications, any other party may order a transcript of additional proceedings in accordance with procedures set by the Chief Justice of the Trial Court. Such party shall at the same time file a copy of the transcript order with the clerk and serve a copy on all other parties.

(B) Stipulation that Transcript is Unnecessary. To the extent consistent with the appellant’s duty to provide an adequate record to the appellate court, the parties may stipulate that the transcription of some or all of the proceedings relevant to the appeal is unnecessary to the adjudication of the appeal, in which case the appellant need order only the transcript of the proceedings, if any, that the parties agree are necessary to the adjudication of the appeal. The parties shall file the stipulation with the clerk within 14 days of the filing of the notice of appeal.

(C) Costs of Transcription. In any criminal case and in a civil case in which the appellant is entitled to have counsel made available pursuant to Supreme Judicial Court Rule 3:10, the Commonwealth shall pay for the cost of providing the transcript of all proceedings relevant to the appeal, including those designated by the appellee, to the lower court clerk. In all other cases, unless ordered otherwise by the lower court, the appellant shall pay for such costs. If the parties cannot agree on which proceedings are relevant to the appeal, the lower court shall settle the matter upon motion. Payment, if required, for copies of the transcript for the parties shall be governed by procedures set by the Chief Justice of the Trial Court.

Duty of Appellant to Order; Notice to Appellee if Partial Transcript Is Ordered. Within ten days after filing the notice of appeal the appellant shall order from the court reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the appellee a description of the parts of the transcript which he intends

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to include in the record and a statement of the issues he intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary he shall, within 10 days after the service of the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the lower court for an order requiring the appellant to do so. At the time of ordering, a party shall make satisfactory arrangements with the court reporter for payment of the cost of the transcript.

(2) Criminal Child Welfare Cases: Duty of Clerk; Duty of Court Reporter. Upon the filing of a notice of appeal, unless the parties file a stipulation designating the parts of the proceedings which need not be transcribed or a statement of intent to proceed under Rule 8(d), the clerk of the lower court shall order, within 14 days and in accordance with procedures set by the Chief Justice of the Trial Court, a transcript of the proceedings relevant to the appeal and shall serve a copy of the transcript order on the parties. Upon the filing of a notice of appeal, unless the parties file therewith a stipulation designating the parts of the proceedings which need not be transcribed, the clerk of the lower court, within ten days, shall order from the court reporter a transcript of the proceedings and shall file a certificate of such order. The parties are encouraged to stipulate to those parts of the proceedings which are unnecessary to the appeal. Upon receipt of an order, the court reporter shall prepare one original typed transcript. The court reporter shall deliver the original typed transcript to the clerk of the lower court who shall, by means of xerography or other similar method which produces legible copies, prepare one copy thereof for each of the appellate court, the appellant, and the appellee. The clerk of the lower court shall deliver one copy each to the appellant and the appellee and shall certify that the copies of the appellant and appellee have been delivered. The clerk of the lower court shall retain custody of the original typed transcript and one copy thereof until the record is transmitted to the appellate court as provided by Rule 9(d).

The Commonwealth shall pay the cost of the original of the typed transcript and a copy for the appellate court. Except as provided in Rule 8(b)(4), the cost of the copy for the appellant shall be paid for by the appellant.

(3) Electronically Recorded Proceedings, Except Child Welfare Cases. Delivery of the Transcript. Upon completion, the transcriber shall deliver the transcript to the clerk of the lower court in accordance with procedures set by the Chief Justice of the Trial Court. The delivery of transcripts to the parties shall be governed by procedures set by the Chief Justice of the Trial Court. Upon receipt of all of the transcripts ordered by the parties, the clerk shall notify all parties within 14 days that the transcripts have been received.

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(i) Applicability. Rule 8(b)(3) applies to proceedings which were recorded electronically on equipment under the control of the court and which were not recorded by an official court reporter.

If, however, a complete transcript of the electronic recording has been produced for use by the trial court, and it or a copy is available to the parties, such transcript or copy shall be utilized in lieu of preparing another pursuant to this Rule 8(b)(3). Upon receipt of the notice of appeal in such cases, the clerk shall advise the parties of the name of the preparer of the transcript; the parties shall then follow the procedure under Rule 8(b)(1) in a civil case, or Rule 8(b)(2) in a criminal case, as if a court reporter had been present, except the appellant’s time for ordering a transcript shall be extended to within ten days after appellant’s receipt of the clerk’s notification of the name of the preparer of the transcript.

(ii) Duties of the Appellant and of the Clerk; Selection of Transcriber. If the appellant deems all or part of the electronic recording necessary for inclusion in the record, the appellant shall, simultaneously with filing a notice of appeal, order from the clerk of the lower court, in accordance with any rule or established policy of the court, a cassette copy of the electronic recording, which is hereinafter called ’the cassette.’ The clerk shall promptly provide the cassette, unless the provisions of the second paragraph of Rule 8(b)(3)(i) apply. If a portion of the electronic recording has already been transcribed for use by the trial court, and such transcript or a copy is available to the parties, the clerk shall, in addition to providing the cassette, at the same time advise the parties of the name of the preparer of the transcript.

Within fifteen days of receipt of the cassette from the clerk, appellant shall file in court and serve on each appellee a document which includes the date of receipt of the cassette; a designation of the parts of the cassette the appellant intends to include in the transcript; and the name, address, and telephone number of the individual or firm selected to prepare the transcript, provided that the appellant and each appellee have agreed to this choice and the appellant so states. If the appellant and appellees have not so agreed, said document shall also specifically notify the clerk to select the transcriber.

The designation of the parts of the cassette to be transcribed should be precise and include such details as the name of the witness whose testimony has been designated and the portions to be included, giving an exact quote of the beginning words and concluding words of each designated portion.

If such selection of an individual or firm to prepare the transcript is not included, or if the transcript is to be provided at the expense of the Commonwealth, the

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individual or firm shall be selected by the clerk. When the selection is made by the clerk, the individual or firm shall be selected in accordance with procedures promulgated by the Chief Administrative Justice. The clerk shall promptly notify all parties of any such selection made by the clerk. Any individual or firm selected to transcribe the record pursuant to Rule 8(b)(3) is hereinafter called ’the transcriber.’

If the appellant has designated the entire cassette for transcription, then within said fifteen days of receipt of the cassette from the clerk, appellant shall also send or deliver to the transcriber the cassette provided by the clerk and a written order designating the entire cassette for transcription. If the appellant has not designated the entire cassette, then after twenty days have expired from the service upon the appellee of appellant’s designation of transcript, the appellant shall promptly send or deliver to the transcriber the cassette provided by the clerk and a written order which states those parts of the cassette designated by the parties for transcription. In addition, the order, whether for all or part of the transcript, shall include a statement that the original of the designated portions of the transcript should be sent to the clerk of the lower court, and shall indicate the number of copies, if any, to be sent to the appellant. The appellant shall promptly file with the clerk and serve on the other parties a copy of the order placed with the transcriber. Unless the entire cassette is to be transcribed, the appellant shall, together with appellant’s designation of transcript, file and serve on the appellee a statement of the issues the appellant intends to present on the appeal.

The appellant shall cooperate with the transcriber by providing such information as is necessary to facilitate transcription, and, where the Commonwealth is not responsible for the cost of transcription, make satisfactory arrangements with the transcriber to pay for the trial court’s original of the designated portions of the transcript and any copies ordered by the appellant for the appellant’s own use.

(iii) Duties of the Appellee. If the appellee deems it necessary to have a cassette in order to consider counter-designating, or for any other purpose, the appellee shall, after receipt of the notice of appeal, promptly order the cassette from the clerk or promptly arrange with the appellant to use appellant’s cassette. If the appellant has not designated and ordered the entire transcript and if the appellee deems a transcript of other portions of the proceedings to be necessary, the appellee shall within fifteen days after receipt of the appellant’s designation, file in court, and serve on the appellant, a designation of such additional parts. The designation of the parts of the cassette to be transcribed should be precise and include such details as the name of the witness whose testimony has been designated and the specific portions to be included, giving an exact quote of the beginning words and concluding words of each designated portion. If the

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appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the lower court for an order requiring the appellant to do so. If the appellee desires a copy of designated portions of the transcript, the appellee shall promptly communicate to the transcriber the number of copies wanted and, in cases where the Commonwealth is not responsible for the cost of the transcript, make satisfactory arrangements with the transcriber for payment for the appellee’s own copies.

The appellee shall cooperate with the transcriber by providing such information as is necessary to facilitate transcription.

(iv) Duties of the Transcriber. The transcriber shall prepare an original typed transcript of the designated portions and the requested number of copies, in accordance with the designations, and shall deliver said original to the clerk, with the following certificate of accuracy:

I, _______, do hereby certify that the foregoing is a true and accurate transcript, prepared to the best of my ability, of the designated portions of the cassette provided to me by the appellant or appellee of a trial or hearing of the _______ Division of the _______ Court Department in the proceedings of _____________ v. ______________, case(s) no.(s) ______ before Justice _____________ on _______________(Day and Date).

Date: _________________________ ___________________________________

Transcriber’s Signature

The transcriber shall deliver legible copies to all parties who have so requested.

(v) Unintelligible Portions of the Cassette. If portions of the cassette cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate their content. If agreement cannot be reached, the parties shall promptly present their differences as to such portions to the trial judge who heard the testimony. The trial judge shall, if possible, settle the content of the unintelligible portions, which shall then be included in the transcript.

(vi) Transcripts Paid for by the Commonwealth. In criminal cases, the Commonwealth shall pay the cost of the original of the designated portions of the typed transcript and a copy for the appellate court. Except as provided in Rule

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8(b)(4), the cost of the copy for the appellant shall be paid for by the appellant who shall make arrangements with the transcriber to pay for such copy.

Whenever the Commonwealth is to pay for an original or copy of the designated portions of the transcript, each party designating any portion of the cassette for transcription shall, at the time of filing the designation, also file a certificate that the parts designated are necessary to permit full consideration of the issues on appeal. Unless one of the parties specifically requests otherwise, that part of the cassette dealing with impanelment of a jury shall not be transcribed.

(4) Cost of Transcripts for Indigents. In all cases in which counsel is required to be made available pursuant to Supreme Judicial Court Rule 3:10, the cost of any transcript for such a party shall be paid for by the Commonwealth.

(5) Child Welfare Cases.

(i) Proceedings Recorded by an Official Court Reporter. On the filing of a notice of appeal, unless the parties file therewith a stipulation designating the parts of the proceedings which need not be transcribed, the clerk of the lower court on behalf of the appellant, shall order from the court reporter a transcript of the entire proceeding or of such parts of the proceeding not already on file. The clerk of the lower court shall notify all parties of the date the transcript was ordered by sending a copy of the order form to all parties.

On receipt of the order the court reporter shall prepare an original typed transcript for filing with the lower court and a copy for the appellant and any party who so requests. The court reporter shall deliver the original to the clerk of the lower court who shall immediately notify all parties of its receipt, and the court reporter shall deliver legible copies to the appellant and to any party who so requests.

(ii) Electronically Recorded Proceedings

(a) Applicability: Rule 8(b)(5)(ii) applies to child welfare cases which were recorded electronically on equipment under the control of the court and which were not recorded by an official court reporter. If, however, a complete transcript of the electronic recording has been produced for use by the lower court, and it or a copy is available to the parties, that transcript or copy shall be used.

(b) Duties of the Appellant and Clerk. Upon the filing of a notice of appeal, the clerk of the lower court shall produce a cassette copy of the electronic recording. Within 10 days of production of the cassette, the clerk of the lower court shall, unless the parties file a stipulation

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designating the parts of the cassette which need not be transcribed, on behalf of the appellant order a transcription of the entire cassette from a transcriber selected by the clerk in accordance with procedures promulgated by the Chief Justice for Administration and Management. The clerk shall also notify all parties of the name of the transcriber and the date the cassette was sent for transcription by sending a copy of the order form to all parties.

On receipt of the order the transcriber shall prepare an original typed transcript for filing in the lower court and a copy for the appellant and any party who so requests. The transcriber shall deliver the original to the clerk of the lower court who shall immediately notify all parties of its receipt, and the transcriber shall deliver legible copies to the appellant and to any party who so requests. The appellant and appellee shall cooperate with the transcriber by providing information necessary to facilitate transcription.

The transcriber shall certify the original transcript using the following certificate of accuracy:

I, _______, do hereby certify that the foregoing is a true and accurate transcript, prepared to the best of my ability, of the designated portions of the cassette provided to me by the clerk of the lower court of a trial or hearing of the _______ Division of the _______ Court Department in the proceedings of _______, case(s) no(s). _______ before Justice _______ on _______.

Date: ___________________ ________________________________________

Transcriber’s Signature

(iii) Unintelligible Portions of the Cassette. If portions of the cassette cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate their content. If agreement cannot be reached, the parties shall promptly present their differences as to such portions to the trial judge who heard the testimony. The trial judge shall, if possible, settle the content of the unintelligible portions, which shall then be included in the transcript.

(iv) Costs. The appellant shall pay for the cost of the original transcript filed with the lower court and for any copies ordered by the appellant. If there is more than one appellant, the cost of the original and any copies shall be divided between the various appellants. Any other party who requested a copy of the transcript shall

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pay for its copy. For any party for whom counsel is made available pursuant to Supreme Judicial Court Rule 3:10, the cost of any transcript requested by, or on behalf of, such party shall be paid in accordance with G.L. c. 261.

(c) Statement of the Evidence or Proceedings When No Report or Transcript Was Made or When the Transcript Is Unavailable is Available. If no report of the evidence or proceedings at a hearing or trial was made, or if and a transcript is unavailable, the parties shall confer and reconstruct the record. After the parties have conferred, the appellant mayshall file a proposed statement of the proceedings, within thirty days after the notice of appeal is filed, file a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto wWithin ten 14 days after of service of the proposed statement, any other party may file objections or proposed amendments or additions. The lower court shall promptly settle any disputes and approve a statement of the proceedings for inclusion in the record on appeal. Thereupon the statement and any objections or proposed amendments thereto shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

(d) Agreed Statement as the Record on Appeal. If the parties intend to submit an agreed statement of the record on appeal in lieu of the procedures set forth in Rule 8(a)-(c), the parties shall notify the clerk in writing within 14 days of the filing of the notice of appeal. Within 28 days thereafter, the parties shall submit to the lower court an agreed statement of the record on appeal containing such information as is necessary for consideration of the appeal. If the statement conforms to the truth, the lower court shall approve the statement, along with any additions the lower court considers useful to the appellate court. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may, within thirty days after the notice of appeal is filed, prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the lower court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the lower court, and as approved shall be retained in the lower court as the record on appeal.

Copies of the agreed statement shall be filed as the appendix required by Rule 18.

(e) Correction or Modification of the Record.

(1) Omissions. If anything material is omitted from the record, the parties may supply it by stipulation and submit the stipulation for the approval of the lower court. If the parties are unable to agree, the lower court on motion shall settle the dispute and add to the record on appeal. On motion of the parties or on its own

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motion, the appellate court or a single justice may direct that any omission be rectified.

(2) Corrections. If any part of the record on appeal fails to accord with what occurred in the lower court, the parties may correct the record by stipulation and submit the stipulation for the approval of the lower court. If the parties are unable to agree, the lower court on motion shall settle any disputes and conform the record to the truth. On motion of the parties or on its own motion, the appellate court or a single justice may direct that any part of the record be corrected.

(3) Inaudible Recording. If portions of the proceedings cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate to their content, and shall submit any such stipulation for the approval of the lower court. If the parties are unable to agree, the lower court shall settle the dispute on motion.

If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court, either before or after the record is transmitted to the appellate court, or the appellate court, or a single justice, on proper suggestion or on its own motion, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to a single justice.

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PROPOSED RULE 8

Rule 8. The Record on Appeal (a) Definition. The record on appeal shall consist of the documents and exhibits on file, the transcript of the proceedings, if any, and the docket entries. (b) Producing the Transcript of Proceedings.

(1) Cases other than Child Welfare Cases.

(A) Transcript Orders and Certifications. For those proceedings relevant to the appeal that were recorded by a court reporter, the appellant shall order a transcript of those proceedings within 14 days of filing the notice of appeal in accordance

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with procedures set by the Chief Justice of the Trial Court, unless the appellant certifies to the clerk (i) that no lower court proceedings are relevant to the appeal or (ii) that the transcript is on file with the court. For those proceedings relevant to the appeal that were electronically recorded, the appellant shall request the transmission of the audio recording of those proceedings and order the transcription of those proceedings within 14 days of filing the notice of appeal in accordance with procedures set by the Chief Justice of the Trial Court, unless the appellant certifies to the clerk (i) that no lower court proceedings are relevant to the appeal or (ii) that the transcript of all proceedings relevant to the appeal is on file with the court. The appellant shall at the same time file a copy of the transcript orders or certifications with the clerk and serve a copy on all other parties. Within 14 days of service of the appellant’s transcript orders or certifications, any other party may order a transcript of additional proceedings in accordance with procedures set by the Chief Justice of the Trial Court. Such party shall at the same time file a copy of the transcript order with the clerk and serve a copy on all other parties.

(B) Stipulation that Transcript is Unnecessary. To the extent consistent with the appellant’s duty to provide an adequate record to the appellate court, the parties may stipulate that the transcription of some or all of the proceedings relevant to the appeal is unnecessary to the adjudication of the appeal, in which case the appellant need order only the transcript of the proceedings, if any, that the parties agree are necessary to the adjudication of the appeal. The parties shall file the stipulation with the clerk within 14 days of the filing of the notice of appeal.

(C) Costs of Transcription. In any criminal case and in a civil case in which the appellant is entitled to have counsel made available pursuant to Supreme Judicial Court Rule 3:10, the Commonwealth shall pay for the cost of providing the transcript of all proceedings relevant to the appeal, including those designated by the appellee, to the lower court clerk. In all other cases, unless ordered otherwise by the lower court, the appellant shall pay for such costs. If the parties cannot agree on which proceedings are relevant to the appeal, the lower court shall settle the matter upon motion. Payment, if required, for copies of the transcript for the parties shall be governed by procedures set by the Chief Justice of the Trial Court.

(2) Child Welfare Cases. Upon the filing of a notice of appeal, unless the parties file a stipulation designating the parts of the proceedings which need not be transcribed or a statement of intent to proceed under Rule 8(d), the clerk of the lower court shall order, within 14 days and in accordance with procedures set by the Chief Justice of the Trial

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Court, a transcript of the proceedings relevant to the appeal and shall serve a copy of the transcript order on the parties.

(3) Delivery of the Transcript. Upon completion, the transcriber shall deliver the transcript to the clerk of the lower court in accordance with procedures set by the Chief Justice of the Trial Court. The delivery of transcripts to the parties shall be governed by procedures set by the Chief Justice of the Trial Court. Upon receipt of all of the transcripts ordered by the parties, the clerk shall notify all parties within 14 days that the transcripts have been received.

(c) Statement of the Proceedings When No Report or Transcript is Available. If no report of the evidence or proceedings at a hearing or trial was made and a transcript is unavailable, the parties shall confer and reconstruct the record. After the parties have conferred, the appellant shall file a proposed statement of the proceedings. Within 14 days of service of the proposed statement, any other party may file objections or proposed amendments or additions. The lower court shall promptly settle any disputes and approve a statement of the proceedings for inclusion in the record on appeal. (d) Agreed Statement as the Record on Appeal. If the parties intend to submit an agreed statement of the record on appeal in lieu of the procedures set forth in Rule 8(a)-(c), the parties shall notify the clerk in writing within 14 days of the filing of the notice of appeal. Within 28 days thereafter, the parties shall submit to the lower court an agreed statement of the record on appeal containing such information as is necessary for consideration of the appeal. If the statement conforms to the truth, the lower court shall approve the statement, along with any additions the lower court considers useful to the appellate court. (e) Correction or Modification of the Record.

(1) Omissions. If anything material is omitted from the record, the parties may supply it by stipulation and submit the stipulation for the approval of the lower court. If the parties are unable to agree, the lower court on motion shall settle the dispute and add to the record on appeal. On motion of the parties or on its own motion, the appellate court or a single justice may direct that any omission be rectified. (2) Corrections. If any part of the record on appeal fails to accord with what occurred in the lower court, the parties may correct the record by stipulation and submit the stipulation for the approval of the lower court. If the parties are unable to agree, the lower court on motion shall settle any disputes and conform the record to the truth. On motion of the parties or on its own motion, the appellate court or a single justice may direct that any part of the record be corrected.

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(3) Inaudible Recording. If portions of the proceedings cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate to their content, and shall submit any such stipulation for the approval of the lower court. If the parties are unable to agree, the lower court shall settle the dispute on motion.

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RULE 9. ASSEMBLY AND TRANSMISSION OF THE RECORD: EXHIBITS

Summary The Subcommittee recommends amending the title of the Rule from “Assembly and Transmission of the Record: Exhibits” to “Assembly of the Record; Reproduction of Exhibits; Notice of Assembly; and Transmission of Documents from the Lower Court” as this more accurately reflects the processes encompassed in the Rule. The proposed edits to paragraph (a) include modernizing the language concerning how the clerk will retain the record. The proposal also relocates the second sentence of Rule 9(d)(1) into this paragraph as a separately numbered section. Paragraph (b) regarding exhibits is substantially amended to modernize the language and reduce excess verbiage in the Rule. The Subcommittee proposes adding new paragraph (c) which requires the clerk of the lower court to notify the clerk of the appellate court if the record includes any impounded information or documents. Existing Rule 9(c) has been relettered as (d) in this proposal, and its second sentence, as previously discussed, has been moved to Rule 9(a). In addition, a new paragraph (3) is proposed, which would require the appellant in a criminal case in which the appeal concerns the denial of a motion for a new trial to deliver to the clerk of the lower court a copy of the transcript of the lower court proceedings related to the appellant’s underlying conviction. The Subcommittee suggests revising, updating, and adding to the information required by the clerk of the lower court to transmit to the appellate court in existing paragraph (d) (re-lettered to be (e) in this proposal) to include the information currently required and utilized by the appellate courts. Significantly, a 21-day period is added for the lower court clerk to issue notice of assembly. The Subcommittee lastly recommends deleting existing paragraph 9(e) in its entirety.

Explanation of Revisions Rule 9(a). The proposal replaces archaic language regarding spindling, binding, and tying the papers in preparation for the appeal and recognizes that the process of labeling, describing, and tracking documents filed in a lower court is one that occurs as a matter of course in the life of a

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case. Instead, the proposal focuses the lower court clerk on the duty of reviewing the file and confirming the accuracy of the docket entries and the organization of the file. The relocation of the second sentence of current Rule 9(c)(1) into new paragraph (a)(2) is proposed because it is more appropriately located in this paragraph as it relates to the appellate court’s or a single justice’s authority. Current Rule 9(c)(1) relates to the appellant’s obligations. Rule 9(b). The significant deletions and additional last sentence in (b) are intended to simplify the Rule requirements regarding trial court exhibits and to clarify the distinction between the record and the appendix. The intent is to make it clear that exhibits are not transmitted to the appellate court with the notice of assembly from the lower court, but remain in the lower court. However, parties can and must reproduce exhibits within their appendices when pertinent to the issues raised on appeal. New Rule 9(c). A new paragraph is added requiring the clerk of the lower court to notify the clerk of the appellate court that information in the record was impounded by the lower court. Supreme Judicial Court Rule 1:15 and the Appellate Court Entry Statement form that is transmitted to the appellate court from the lower court with the assembly require the clerk of the lower court to notify the clerk of the appellate court as to impounded information in the record. However, these provisions are not currently reflected in the Massachusetts Rules of Appellate Procedure. Adding this provision will update the Rules to make them consistent with Supreme Judicial Court Rule 1:15 and current appellate court practices, and will further ensure that impounded documents are not inadvertently made available to the public. The bulk of the proposed language is taken almost verbatim from Supreme Judicial Court Rule 1:15, §§ 2(a) and (b). It also clarifies for the lower court clerk that notification to the appellate court clerk as to impounded materials is required at the time of transmission of notice of assembly of the record to the appellate court. See S.J.C. Rule 1:15, §§ 2(a) and (b). Rule 9(d) [formerly Rule 9(c)]. The second sentence of current Rule 9(c)(1) was moved into 9(a) for clarity as the provision, which concerns appellate court authority, is out of place in the section outlining the appellant’s obligations. A new paragraph (3) has been added, which requires the appellant in a criminal case in which the appeal concerns the denial of a motion for new trial to deliver to the clerk of the lower court a copy, in either paper or electronic form, of the transcript of the lower court proceedings related to the appellant’s underlying conviction. If the transcript of the lower court proceedings is available in the appellate court, in lieu of providing the lower court clerk a copy of the transcript, the appellant may provide a certification that a copy is available in the appellate court. The clerk

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of the lower court is to transmit the transcript of the lower court proceedings or the certification to the appellate court when the assembled record is transmitted. If the appellant is unable to obtain the transcript, or the transcript is irrelevant to the appeal, the appellant may instead file a statement to that effect. This new paragraph addresses a problem that arises when appeals concern a motion for a new trial in criminal cases. The appellate court often requires a copy of the transcript of the proceedings related to the underlying criminal conviction when the appeal at issue concerns a motion for a new trial. However, the transcript has not been provided to the court as part of the record, and it might not be readily available in the appellate court. Adding this provision to the Rule assists the appellate court in cases involving the appeal of the denial of a motion for a new trial by making available the entire lower court record for review. Rule 9(e) [formerly Rule 9(d)]. The Subcommittee proposes adding a window of time for the clerk of the lower court to complete the assembly of the record and send notice of the assembly to the parties and the clerk of the appellate court. This amendment requires the clerk of the lower court to complete assembly of the record within 21 days of either receipt of the transcript of proceedings, receipt of notice that no transcript will be ordered and the time has expired for any other party to order a transcript, or the expiration of the time for filing any other notice of appeal after the filing of a first notice of appeal pursuant to Rule 4(a), whichever date is later; or, if the parties notify the clerk that an agreed statement of the case on appeal pursuant to Rule 8(d) is to be filed, within 21 days of the lower court’s approval of the statement. This amendment addresses the time delay in some cases in completion of the assembly of the record, which results in delays in final resolution of an appeal. The current Rule does not reflect current practice as to information required by the appellate courts for entry of an appeal. The documents that are sought are often requested by the clerk’s office or by an appellate panel when the case is ready for review. Accordingly, the proposal also revises, updates, and adds to the information required to be transmitted by the clerk of the lower court to the appellate court, to include the notice of assembly, the appellate court entry statement, and a copy of the notice(s) of appeal. It clarifies that, in criminal cases, an electronically-formatted transcript is to be transmitted with the notice of assembly. The proposal also includes a reduction in the number of copies of the docket entries required to be transmitted from two to one, as two copies are no longer needed by the appellate courts. Amending this rule as proposed will assist trial court clerk’s offices in assembling appeals by clarifying the documents that are needed for review by the appellate courts. It will also facilitate the administration of criminal appeals by ensuring that the transcripts are included with the notice of assembly transmitted to the appellate courts.

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The proposed amendments to current Rule 9(d) also include elimination of the requirement that the lower court provide two “certified” copy of the docket entries. This proposal is made for several reasons. First, the lower courts’ paper docket systems that existed when the rules were originally adopted have been replaced by electronic dockets from which printouts are generated for inclusion in the assembly of record, and transmitted directly to the appellate courts pursuant to current Rule 9(d) [and proposed Rule 9(e)]. Accordingly, the appellate court can presume the docket transmitted directly from the lower court is authentic and accurate. Any incorrect docket entry transmitted to the appellate court can be corrected pursuant to current and proposed Rule 8(e). Relatedly, the manual certification of the docket needlessly consumes the time and effort of lower court personnel and would be eliminated by this proposal. Notably, the copy of the docket entries included in the appellant’s appendix is not required to be certified. See current and proposed Rule 18(a). In practice, the appellate courts rely on this appendix copy of the docket since it is more conveniently accessible than the assembly stored in the case file. Finally, the appellate and trial courts anticipate developing an electronic system for assembly and transmission of the record that could be impeded by a requirement for a manually certified copy of the docket. Rule 9(e). The Subcommittee proposes deleting this paragraph. There is already a mechanism for parties to obtain a stay of appellate proceedings or for voluntary dismissal of an appeal.

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PROPOSED RULE 9—SHOWING REVISIONS AND DELETIONS Rule 9. Assembly of the Record; Reproduction of Exhibits; Notice of Assembly; and Transmission of Documents from the Lower Court of the Record: Exhibits (a) Assembly.

(1) Upon the filing of a notice of appeal, the clerk of the lower court shall promptly review the file and ensure the accuracy of the docket entries and that all papers are properly numbered in order of filing or identified with reasonable specificity. The clerk shall prepare a list of all exhibits filed in the lower court and ensure that all exhibits are properly numbered and labeled. The clerk shall maintain the file until the final disposition of the appeal, unless otherwise ordered by a judge. (2) The lower court or the appellate court or a single justice thereof may order the record to be assembled, and the appellate court or a single justice thereof may order the appeal to be docketed, at any time.

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The clerk of the lower court as soon as may be after the filing of the notice of appeal shall place together all the original papers including the exhibits filed in the lower court, together with such other papers as thereafter become a part of the record pursuant to Rule 8. The papers shall be numbered in the order of filing and the exhibits shall be plainly marked with the number assigned in the lower court preceded by the letters “exh.”. The clerk shall append to the record a list of the documents correspondingly numbered and identified with reasonable definiteness. The record so assembled by the clerk shall be suitably spindled, bound, or tied and retained by the clerk in this form until the final disposition of the appeal, except as the record or any part of it is ordered to be transmitted by the appellate court or a single justice. (b) Exhibits. No exhibit need be reproduced for the record, except by order of an appellate court, a single justice, or the judge of the lower court. Any counsel may reproduce any exhibit in several copies for the convenience of the court. The lower court shall make such orders as it deems necessary for the preservation of exhibits, and for the reproduction of important exhibits which the appellate court should examine, and the clerk of the lower court shall not transmit any exhibit to the appellate court at the request of any party made at any time after the filing of the record appendix. A party shall make advance arrangements with the clerk of the lower court for the transmission and receipt of exhibits of unusual bulk or weight. No exhibit consisting of currency, bearer securities, firearms, narcotics, or contraband articles shall be transmitted to an appellate court unless pursuant to an order of the full appellate court or a justice thereof. The parties may reproduce exhibits for inclusion in the record appendix insofar as necessary to their appeal, pursuant to Rule 18. (c) Impounded materials. When an appeal has been taken in a case in which material has been impounded, the clerk of the lower court shall provide written notification that material was impounded by the lower court. Such notification shall specify the materials or portions thereof which were impounded below and shall include a copy of the order of impoundment, if any, or a reference to other authority for the impoundment. Unless otherwise ordered by the appellate court, or otherwise provided in the lower court order of impoundment, material impounded in the lower court shall remain impounded in the appellate court. (cd) Appellant’s Obligation.

(1) In General. In a civil or criminal case, upon request by the clerk of the lower court, the appellant shall forthwith perform any act reasonably necessary to enable the clerk to assemble the record and the clerk shall assemble a single record. The lower court or the appellate court or a single justice thereof may require the record to be assembled and the appeal to be docketed at any time.

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(2) Civil Cases. Notwithstanding any other obligation which these rules may impose, but excepting electronically recorded proceedings governed by Rule 8(b)(3), each appellant in a civil case shall, within ten 14 days after filing a notice of appeal, deliver to the clerk of the lower court either (iA) a transcript of or those portions of the transcript of the lower court proceedings which the appellant deems necessary for determination of the appeal, (iiB) a signed statement certifying that the appellant has ordered such portions from the court reporter, or (iiiC) a signed statement certifying that the appellateappellant has not ordered and does not intend to order the transcript or any portion thereof. Upon receiving the transcript, the appellant in a civil case shall forthwith deliver it to the clerk of the lower court. (3) Denial of Motion for Post-Conviction Relief in a Criminal Case. Excepting an appellant in a criminal case in which the defendant was convicted of murder in the first degree, and notwithstanding any other obligation these rules may impose, each appellant in a criminal case in which the appeal concerns the denial of a motion for post-conviction relief shall, within 14 days after filing a notice of appeal, deliver to the clerk of the lower court an electronically formatted transcript of the lower court proceedings related to the appellant’s underlying conviction or a statement that such a transcript may not be obtained with due diligence or is not relevant. In lieu of a copy of the transcript, the appellant may file with the clerk of the lower court a certification that a copy of the transcript is available in the appellate court. The certification shall include the appellate court docket number of the case in which the transcript is available. The clerk of the lower court shall transmit the transcript of the lower court proceedings or the certification to the appellate court when notice of the assembled record is transmitted.

(de) Duty of Clerk; Transmission.

(1) Unless otherwise ordered by the lower court or the appellate court or a single justice thereof pursuant to Rule 9(a)(2), When the record is fully assembled, the clerk of the lower court shall notify complete the assembly of the record and transmit notice of the assembled record to the appellate court and parties either:

(A) within 21 days from the latter of (i) receipt of the transcript of proceedings, if any, in the lower court; or

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(ii) receipt of notice from the appellant that no transcript will be ordered and the expiration of the time for any other party to order a transcript; or (iii) the expiration of the time for filing any other notice of appeal after the filing of a first notice of appeal pursuant to Rule 4(a); or

(B) if the parties notify the clerk of their intent to file an agreed statement as to the record on appeal pursuant to Rule 8(d), within 21 days of the lower court’s approval of the statement.

(2) The notice of assembly transmitted to the appellate court shall be accompanied by the following:

(A) a completed appellate court entry statement; (B) a copy of the notice(s) of appeal; (C) and shall transmit to the appellate court two a certified copies copy of the docket entries; (D) the written notification regarding impounded materials as required by Rule 9(c); (E) a list of all the exhibits; and, (F) in a criminal cases, the original and one copy of the any electronically formatted transcript, if a transcript is necessary for the appealand a list of all the exhibits.

(3) In case of an order to transmit, transmission shall be effected when the clerk of the lower court mails or otherwise forwards a copy of the record notice of assembly and other information as required in this paragraph to the clerk of the appellate court. (4) The clerk of the lower court shall indicate, by endorsement on the face of the record or otherwisenotice of assembly, the date upon which it is transmitted to the appellate court.

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(e) Record for Preliminary Hearing in the Appellate Court. If prior to the time the record is assembled a party desires to make in the appellate court a motion for dismissal, for a stay pending appeal or for any intermediate order, the appellate court or a single justice may, on its own motion or on motion of any party, with or without notice, order the clerk of the lower court to transmit to the appellate court such parts of the original record as the appellate court or the single justice shall deem appropriate.

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PROPOSED RULE 9 Rule 9. Assembly of the Record; Reproduction of Exhibits; Notice of Assembly; and Transmission of Documents from the Lower Court (a) Assembly.

(1) Upon the filing of a notice of appeal, the clerk of the lower court shall promptly review the file and ensure the accuracy of the docket entries and that all papers are properly numbered in order of filing or identified with reasonable specificity. The clerk shall prepare a list of all exhibits filed in the lower court and ensure that all exhibits are properly numbered and labeled. The clerk shall maintain the file until the final disposition of the appeal, unless otherwise ordered by a judge. (2) The lower court or the appellate court or a single justice thereof may order the record to be assembled, and the appellate court or a single justice thereof may order the appeal to be docketed, at any time.

(b) Exhibits. The lower court shall make such orders as it deems necessary for the preservation of exhibits, and shall not transmit any exhibit to the appellate court unless pursuant to an order of the appellate court or a justice thereof. The parties may reproduce exhibits for inclusion in the record appendix insofar as necessary to their appeal, pursuant to Rule 18. (c) Impounded materials. When an appeal has been taken in a case in which material has been impounded, the clerk of the lower court shall provide written notification that material was impounded by the lower court. Such notification shall specify the materials or portions thereof which were impounded below and shall include a copy of the order of impoundment, if any, or a reference to other authority for the impoundment. Unless otherwise ordered by the appellate court, or otherwise provided in the lower court order of impoundment, material impounded in the lower court shall remain impounded in the appellate court.

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(d) Appellant’s Obligation.

(1) In General. In a civil or criminal case, upon request by the clerk of the lower court, the appellant shall forthwith perform any act reasonably necessary to enable the clerk to assemble the record. (2) Civil Cases. Notwithstanding any other obligation which these rules may impose, but excepting electronically recorded proceedings governed by Rule 8(b)(3), each appellant in a civil case shall, within 14 days after filing a notice of appeal, deliver to the clerk of the lower court either (A) a transcript or those portions of the transcript of the lower court proceedings which the appellant deems necessary for determination of the appeal, (B) a signed statement certifying that the appellant has ordered such portions from the court reporter, or (C) a signed statement certifying that the appellant has not ordered and does not intend to order the transcript or any portion thereof. Upon receiving the transcript, the appellant in a civil case shall forthwith deliver it to the clerk of the lower court. (3) Denial of Motion for Post-Conviction Relief in a Criminal Case. Excepting an appellant in a criminal case in which the defendant was convicted of murder in the first degree, and notwithstanding any other obligation these rules may impose, each appellant in a criminal case in which the appeal concerns the denial of a motion for post-conviction relief shall, within 14 days after filing a notice of appeal, deliver to the clerk of the lower court an electronically formatted transcript of the lower court proceedings related to the appellant’s underlying conviction or a statement that such a transcript may not be obtained with due diligence or is not relevant. In lieu of a copy of the transcript, the appellant may file with the clerk of the lower court a certification that a copy of the transcript is available in the appellate court. The certification shall include the appellate court docket number of the case in which the transcript is available. The clerk of the lower court shall transmit the transcript of the lower court proceedings or the certification to the appellate court when notice of the assembled record is transmitted.

(e) Duty of Clerk; Transmission.

(1) Unless otherwise ordered by the lower court or the appellate court or a single justice thereof pursuant to Rule 9(a)(2), the clerk of the lower court shall complete the assembly of the record and transmit notice of the assembled record to the appellate court and parties either:

(A) within 21 days from the latter of

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(i) receipt of the transcript of proceedings, if any, in the lower court; or

(ii) receipt of notice from the appellant that no transcript will be ordered and the expiration of the time for any other party to order a transcript; or

(iii) the expiration of the time for filing any other notice of appeal after the filing of a first notice of appeal pursuant to Rule 4(a); or

(B) if the parties notify the clerk of their intent to file an agreed statement as to the record on appeal pursuant to Rule 8(d), within 21 days of the lower court’s approval of the statement.

(2) The notice of assembly transmitted to the appellate court shall be accompanied by the following:

(A) a completed appellate court entry statement; (B) a copy of the notice(s) of appeal; (C) a copy of the docket entries; (D) the written notification regarding impounded materials as required by Rule 9(c); (E) a list of all the exhibits; (F) in criminal cases, any electronically formatted transcript, if a transcript is necessary for the appeal.

(3) In case of an order to transmit, transmission shall be effected when the clerk of the lower court mails or otherwise forwards a copy of the notice of assembly and other information as required in this paragraph to the clerk of the appellate court. (4) The clerk of the lower court shall indicate, by endorsement on the face of the notice of assembly, the date upon which it is transmitted to the appellate court.

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RULE 10. DOCKETING THE APPEAL

Summary Proposed revisions to Rule 10(a)(1) would increase the amount of time to docket a civil appeal from 10 days to 14 days and change the date that the time to docket the appeal begins to run from when the notice of assembly is received by the party to the date that the lower court enters and issues to the party the notice of assembly. The Rule also clarifies that an appellant authorized to prosecute an appeal without pre-payment of fees must provide a written request to enter the appeal. Further, the provision clarifies that the filing fee must be received by the clerk of the appellate court by the end of the 14 day period. Rule 10(a)(2) is revised to remove the clause “or of approval by the lower court of an agreed statement, pursuant to Rule 8(d).” New Rule 10(a)(4), modelled on existing Massachusetts Rule of Criminal Procedure 24(d) and Federal Rule of Appellate Procedure 44(b), adds a requirement that, in civil cases where the constitutionality of an act of the Legislature and neither the Commonwealth nor an officer, agency, or employee thereof is a party to the appeal, the party asserting the unconstitutionality shall notify the Attorney General of the challenge. New Rule 10(a)(5) and (6) relocate the Rule provisions related to consolidated and joint appeals from Rule 3 to this Rule, and a new provision, Rule 10(a)(7), regarding designation of the parties in a cross-appeal, is added. Rule 10(c) is revised to remove the cross-reference to Rule 10(a)(3). New Rule 10(d) addresses withdrawal of counsel after docketing an appeal.

Explanation of Revisions Rule 10(a)(1). As currently written, parties have 10 days from receiving the notice of assembly from the lower court clerk to docket the appeal. Under the current rule, the due date may fall on a weekend. Litigants often are confused as to whether they must submit the fee by the day before or following the weekend, despite the explanation for computation of time periods in Rule 14(a). In addition, currently there is confusion as to when an appealing party “receives” the notice of assembly. This confusion leads, in any given month, to several motions to docket late, and motions to dismiss an appeal filed in the lower court for lack of timely entry.

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Further, many litigants mistakenly believe that mailing the filing fee or written request to waive payment of the fee within the time period specified in the rule, rather than ensuring that it is received by the clerk of the appellate court within that timeframe, is sufficient. Expanding the time period to docket the appeal from 10 to 14 days will eliminate the issue of the final docketing date falling on a weekend, and compensate for mailing between when the lower court transmits the notice, and when the party receives it. The proposed change also provides an ascertainable and verifiable time period for docketing the appeal to reduce confusion as to when the 14 day period commences. Moreover, specifying in the rule that the appellate court clerk’s office must receive the fee or motion to waive the fee within the 14 days will clarify for parties that the fee or motion to waive the fee cannot simply be mailed by the 14th day in order to be timely. In addition, the Subcommittee proposes a change specifying that, if the appellant is authorized to proceed on appeal without prepayment of fees, docketing occurs upon written request of a party. In cases where the appellant is authorized to prosecute the appeal without prepayment of fees, the Appeals Court clerk’s office often receives verbal requests to docket the appeal. Specifying that a written request to enter the appeal is required will diminish any confusion over the matter. Rule 10(a)(2). It is proposed that the clause “or of approval by the lower court of an agreed statement, pursuant to Rule 8(d)” be removed because, even in Rule 8(d) situations, a notice of assembly should issue. Revisions to Rule 9(e) clarify that the notice of assembly should issue in this circumstance and provides a timeframe within which the notice should issue. New Rule 10(a)(4). A new subparagraph is added to provide the Attorney General notice of constitutional challenges to acts of the legislature. The new Rule is modelled after existing Massachusetts Rule of Civil Procedure 24(d) and Federal Rule of Civil Procedure 44(b), with minor changes to specify the timing and manner of notice. Rule 10(a)(5). A new subparagraph addressing consolidated appeals has been added. Currently, Rule 3 addresses consolidation of appeals in the appellate court. However, Rule 3 prescribes how an appeal is taken, and relates to actions to be taken by the appealing party in the lower court to initiate an appeal. Moving the content of the subsection on consolidated appeals to Rule 10 allows the information to be presented in a more appropriate context because Rule 10 is concerned with docketing an appeal and consolidation happens at the time of, or after, the docketing of the appeal in the appellate court, not at the time the notice of appeal is filed in the lower court.

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Rule 10(a)(6). A new subparagraph addressing joint appeals has been added. Currently, only Rule 3 addresses joint appeals. Pursuant to Rule 3, parties with similar interests may file a joint notice of appeal in the trial court or may join in an appeal after filing separate notices of appeal, and then proceed on appeal as a single appellant, but still must enter their cases in the appellate court separately. This can cause confusion for parties who seek to pay one docketing fee on behalf of all parties who have joined in appeal. This new rule would clarify that, when an appeal is entered in the appellate court and the parties file a joint notice of appeal, they shall automatically proceed as a single appellant without leave of court. If the parties’ interests are aligned, judicial economy and efficiency is advanced by having them proceed in the appellate court as a single appellant. Rule 10(a)(7). New paragraph 10(a)(7) encompasses the content of the first sentence in current Rule 16(j). However, Rule 10 is a more appropriate location for information regarding the designation of parties to a cross-appeal so that the parties know from the outset of the appeal which party is the appellant and which the appellee. In addition to relocating the provision, the Subcommittee proposes revising the designation of the parties to deem the party filing the first notice of appeal as the appellant, absent agreement or court order otherwise, consistent with Federal rules. See Fed. R. App. P. 28.1. Rule 10(c). This provision applies to an appellant’s compliance with Rules 9(d) and 10(a). The reference to Rule 10(a)(3) was removed from the first sentence of this provision because Rule 10(a)(3) applies to clerks, not appellants. New Rule 10(d). A new paragraph was added to address the withdrawal of counsel. See Mass.R.Civ.P. 11(d). Currently there is some confusion on the part of attorneys who have appeared in the lower court as to the court in which a motion to withdraw should be filed post-judgment or decision. Adding this subsection clarifies that, after an appeal is docketed in the appellate court, a motion to withdraw must be filed in the appellate court, not the lower court. This will reduce confusion as to where the motion should be filed once an appellate court has jurisdiction of a case.

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PROPOSED RULE 10—SHOWING REVISIONS AND DELETIONS Rule 10. Docketing the Appeal (a) Docketing the Appeal.

(1) Civil Cases. Within ten 14 days after receiving from the clerk of the lower court notice of assembly of the record, or of approval by the lower court of an agreed statement of the lower court’s entry and issuance of the notice of assembly of the record to the appellate court and to the parties, each appellant, including each cross-appellant and each appellant in a joint appeal, shall pay to the clerk of the appellate court the docket fee fixed by law or request a waiver of the fee, and the clerk shall thereupon enter the appeal of such appellant or cross-appellant upon the docket. If an appellant is authorized to prosecute the appeal without prepayment of fees, the clerk shall enter the appeal upon the docket at the written request of a party. (2) Criminal Cases. Upon receipt of notice of assembly of the record, pursuant to Rule 9(de), or of approval by the lower court of an agreed statement, pursuant to Rule 8(d) , the clerk of the appellate court shall enter the appeal upon the docket. (3) In General. Upon docketing of the appeal, the clerk shall serve written notice thereof upon each party and the clerk of the lower court. Upon motion, the lower court or a single justice of the appellate court may, for cause shown, enlarge the time for docketing the appeal or permit the appeal to be docketed out of time. An appeal shall be docketed under the title given to the action in the lower court, with the appellant identified as such, but if such title does not contain the name of the appellant, his then the party’s name, identified as appellant, shall be added to the title. (4) Certain Constitutional Claims. Within 14 days after the docketing of any civil appeal that draws into question the constitutionality of an act of the legislature, if neither the Commonwealth nor an officer, agency, or employee thereof is a party to the appeal, the party asserting the unconstitutionality of the act shall notify the attorney general of such challenge. If such a question becomes apparent to a party after the 14-day period has expired, the party shall immediately notify the attorney general. Such notice shall be given either in writing or by use of any electronic method the attorney general may designate for this purpose. (5) Consolidated Appeals. Appeals may be consolidated by order of the appellate court upon its own motion or upon motion of a party, on such terms as the court may order.

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(6) Joint Appeal. Upon entry of an appeal pursuant to Rule 10(a)(1) or 10(a)(2), parties who have filed a joint notice of appeal shall proceed on appeal as a single appellant. (7) Cross Appeals. If a cross appeal is filed, the party who files a notice of appeal first is the appellant for the purposes of these Rules. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by the parties’ agreement, filed with the appellate court, or by court order.

(b) Filing. The clerk of the appellate court shall file upon receipt any part of the record or any paper document authorized to be filed in lieu of the record under any provision of Rule 9, following timely docketing of the appeal. The clerk shall immediately give notice to all parties of the date of each such filing. (c) Dismissal for Failure of Appellant in a Civil Case to Comply With Rule 9(cd) or Rule 10(a). If any appellant in a civil case shall fail to comply with Rule 9(cd) or Rule 10(a)(1) or (3), the lower court may, on motion with notice by any appellee, dismiss the appeal, but only upon a finding of inexcusable neglect; otherwise, the court shall enlarge the appellant’s time for taking the required action. If, prior to the lower court’s hearing such motion for noncompliance with Rule 9(cd) or 10(a)(1), the appellant shall have cured the noncompliance, the appellant’s compliance shall be deemed timely. (d) Withdrawal of Counsel. In all cases, any counsel who does not intend to continue representing a client on appeal, for any reason, should file a motion to withdraw his or her appearance in the lower court as soon as is practicable. After an appeal has been entered in an appellate court, any motion to withdraw appearance of counsel shall be filed with the appellate court. The motion shall include a certificate of service in compliance with Rule 13, which shows service on all parties to the appeal, including those represented by counsel filing the motion, at the party’s or parties’ last known address.

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PROPOSED RULE 10 Rule 10. Docketing the Appeal (a) Docketing the Appeal.

(1) Civil Cases. Within 14 days of the lower court’s entry and issuance of the notice of assembly of the record to the appellate court and to the parties, each appellant, including each cross-appellant and each appellant in a joint appeal, shall pay to the clerk of the appellate court the docket fee fixed by law or request a waiver of the fee, and the clerk shall thereupon enter the appeal of such appellant or cross-appellant upon the docket. If the appellant is authorized to prosecute the appeal without prepayment of fees, the clerk shall enter the appeal upon the docket at the written request of a party. (2) Criminal Cases. Upon receipt of notice of assembly of the record, pursuant to Rule 9(e), the clerk of the appellate court shall enter the appeal upon the docket. (3) In General. Upon docketing of the appeal, the clerk shall serve written notice thereof upon each party and the clerk of the lower court. Upon motion, the lower court or a single justice of the appellate court may, for cause shown, enlarge the time for docketing the appeal or permit the appeal to be docketed out of time. An appeal shall be docketed under the title given to the action in the lower court, with the appellant identified as such, but if such title does not contain the name of the appellant, then the party’s name, identified as appellant, shall be added to the title. (4) Certain Constitutional Claims. Within 14 days after the docketing of any civil appeal that draws into question the constitutionality of an act of the legislature, if neither the Commonwealth nor an officer, agency, or employee thereof is a party to the appeal, the party asserting the unconstitutionality of the act shall notify the attorney general of such challenge. If such a question becomes apparent to a party after the 14-day period has expired, the party shall immediately notify the attorney general. Such notice shall be given either in writing or by use of any electronic method the attorney general may designate for this purpose. (5) Consolidated Appeals. Appeals may be consolidated by order of the appellate court upon its own motion or upon motion of a party, on such terms as the court may order. (6) Joint Appeal. Upon entry of an appeal pursuant to Rule 10(a)(1) or 10(a)(2), parties who have filed a joint notice of appeal shall proceed on appeal as a single appellant.

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(7) Cross Appeals. If a cross appeal is filed, the party who files a notice of appeal first is the appellant for the purposes of these Rules. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by the parties’ agreement, filed with the appellate court, or by court order.

(b) Filing. The clerk of the appellate court shall file upon receipt any part of the record or any document authorized to be filed in lieu of the record under any provision of Rule 9, following timely docketing of the appeal. The clerk shall immediately give notice to all parties of the date of each such filing. (c) Dismissal for Failure of Appellant in a Civil Case to Comply With Rule 9(d) or Rule 10(a). If any appellant in a civil case shall fail to comply with Rule 9(d) or Rule 10(a)(1), the lower court may, on motion with notice by any appellee, dismiss the appeal, but only upon a finding of inexcusable neglect; otherwise, the court shall enlarge the appellant’s time for taking the required action. If, prior to the lower court’s hearing such motion for noncompliance with Rule 9(d) or 10(a)(1), the appellant shall have cured the noncompliance, the appellant’s compliance shall be deemed timely. (d) Withdrawal of Counsel. In all cases, any counsel who does not intend to continue representing a client on appeal, for any reason, should file a motion to withdraw his or her appearance in the lower court as soon as is practicable. After an appeal has been entered in an appellate court, any motion to withdraw appearance of counsel shall be filed with the appellate court. The motion shall include a certificate of service in compliance with Rule 13, which shows service on all parties to the appeal, including those represented by counsel filing the motion, at the party’s or parties’ last known address.

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RULE 11. DIRECT APPELLATE REVIEW

Summary and Explanation of Revisions Proposed revision to Rule 11(a) removes as unnecessary a reference to the fact that no oral argument will be allowed in support of an application for Direct Appellate Review. Proposed revisions to Rule 11(b) and (c) include updating the language used, and the word count alternative to page limits, explained in the global changes section of this document, is included in the length requirements for both the application and the response. Rule 11(c) also increases the time for response from 10 to 14 days to align with global changes to ensure deadlines fall on weekdays. In addition, Rule 11(d) is revised to remove the requirement that a copy of the application be filed in the Appeals Court. This requirement is no longer needed as the Appeals Court is notified automatically by the Supreme Judicial Court when an application for direct appellate review is filed. Finally, Rule 11(f) is revised to be consistent with current court practices. The phrase “upon receipt, direct appellate review shall be deemed granted” is removed. According to the former rule, although the Supreme Judicial Court entered and sent notice of an order granting direct appellate review, the Supreme Judicial Court’s order would not actually be “deemed granted” until the Appeals Court received it. This phrase is removed to give Supreme Judicial Court orders their intuitive effect, and their effect in all other situations, which is that an order is effective upon its entry. The rule is also amended to require the Supreme Judicial Court to send notice to the lower court when it grants direct appellate review.

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PROPOSED RULE 11—SHOWING REVISIONS AND DELETIONS Rule 11. Direct Appellate Review (a) Application; When Filed; Grounds. An appeal within the concurrent appellate jurisdiction of the Appeals Court and Supreme Judicial Court shall be entered in the Appeals Court before a party may apply to the Supreme Judicial Court for direct appellate review. Within twenty 21 days after the docketing of an appeal in the Appeals Court, any party to the case (or two 2 or more parties jointly) may apply in writing to the Supreme Judicial Court for direct appellate review, provided the questions presented by the appeal are: (1) questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial

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Court; (2) questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or (3) questions of such public interest that justice requires a final determination by the full Supreme Judicial Court. Oral argument in support of an application will not be permitted except by order of court. (b) Contents of Application; Form. The application for direct appellate review shall contain, in the following order: (1) a request for direct appellate review; (2) a statement of prior proceedings in the case; (3) a short statement of facts relevant to the appeal; (4) a statement of the issues of law raised by the appeal, together with a statement indicating whether the issues were raised and properly preserved in the lower court; (5) a brief argument thereon (covering consisting of not more than either ten 10 pages of typing text in monospaced font or 2,000 words in proportional font, as defined in Rule 20(a)(4)(B)) including appropriate authorities, in support of the applicant’s position on such issues; and (6) a statement of reasons why direct appellate review is appropriate. A certified copy of the docket entries shall be appended to the application. The applicant shall also append a copy of any written decision, memorandum, findings, rulings, or report of the lower court relevant to the appeal. The application shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). (c) OppositionResponse; Form. Within ten 14 days after the filing of the application, any other party to the case may, but need not, file and serve an opposition a response thereto (covering consisting of not more than either ten 10 pages of typingtext in monospace font or 2,000 words in proportional font, as defined in Rule 20(a)(4)(B)) setting forth reasons why the application should or should not be granted. The opposition response shall not restate matters described in subdivision Rule 11(b)(2) and (3) of this rule unless the opposing party is dissatisfied with the statement thereof contained in the application. The opposition response shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). A response may be filed in a different form as permitted by the court. (d) Filing; Service. One copy of the application and one copy of each opposition shall be filed in the office of the clerk of the Appeals Court. An original and seventeen 17 copies of the application and of each opposition response shall be filed in the office of the clerk of the full Supreme Judicial Court. Filing and service of the application and of any opposition response shall comply with Rule 13.

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(e) Effect of Application Upon Appeal. The filing of an application for direct appellate review shall not extend the time for filing briefs or doing any other act required to be done under these rules. (f) Vote of Direct Appellate Review; Certification. If any two 2 justices of the Supreme Judicial Court vote for direct appellate review, or if a majority of the justices of the Appeals Court shall certify that direct appellate review is in the public interest, an order allowing the application (or transferring the appeal sua sponte) or the certificate, as the case may be, shall be transmitted to the clerk of the Appeals Court with notice to the lower court; upon receipt, direct appellate review shall be deemed granted. The clerk of the Appeals Court shall forthwith transmit to the clerk of the full Supreme Judicial Court all papers documents theretofore filed in the case and shall notify the clerk of the lower court that the appeal has been transferred. (g) Cases Transferred for Direct Review; Time for Serving and Filing Briefs. In any appeal transferred to the full Supreme Judicial Court from the Appeals Court:

(1) If at the time of transfer all parties have served and filed briefs in the Appeals Court, no further briefs may be filed except that a reply brief may be served and filed on or before the last date allowable had the case not been transferred, or within ten 10 days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later. (2) If at the time of transfer only the appellant’s brief has been served and filed in the Appeals Court the appellant may, but need not, serve and file an amended brief within twenty 20 days after the date on which the appeal is docketed in the full Supreme Judicial Court. The appellee shall serve and file his a brief within thirty 30 days after service of any amended brief of the appellant, or within fifty 50 days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later.

(3) Service and filing of a reply brief shall comply with Rule 19. (4) If at the time of transfer to the full Supreme Judicial Court no party to the appeal has served or filed a brief, the appellant shall serve and file a brief within twenty 20 days after the date on which the appeal is docketed in the full Supreme Judicial Court or within forty 40 days after the date on which the appeal was docketed in the Appeals Court, whichever is later.

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PROPOSED RULE 11 Rule 11. Direct Appellate Review (a) Application; When Filed; Grounds. An appeal within the concurrent appellate jurisdiction of the Appeals Court and Supreme Judicial Court shall be entered in the Appeals Court before a party may apply to the Supreme Judicial Court for direct appellate review. Within 21 days after the docketing of an appeal in the Appeals Court, any party to the case (or 2 or more parties jointly) may apply in writing to the Supreme Judicial Court for direct appellate review, provided the questions presented by the appeal are (1) questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial Court; (2) questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or (3) questions of such public interest that justice requires a final determination by the full Supreme Judicial Court. (b) Contents of Application; Form. The application for direct appellate review shall contain, in the following order: (1) a request for direct appellate review; (2) a statement of prior proceedings in the case; (3) a short statement of facts relevant to the appeal; (4) a statement of the issues of law raised by the appeal, together with a statement indicating whether the issues were raised and properly preserved in the lower court; (5) a brief argument thereon (consisting of not more than either 10 pages of text in monospaced font or 2,000 words in proportional font, as defined in Rule 20(a)(4)(B)) including appropriate authorities, in support of the applicant’s position on such issues; and (6) a statement of reasons why direct appellate review is appropriate. A copy of the docket entries shall be appended to the application. The applicant shall also append a copy of any written decision, memorandum, findings, rulings, or report of the lower court relevant to the appeal. The application shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). (c) Response; Form. Within 14 days after the filing of the application, any other party to the case may, but need not, file and serve a response thereto (consisting of not more than either 10 pages of text in monospace font or 2,000 words in proportional font, as defined in Rule 20(a)(4)(B)) setting forth reasons why the application should or should not be granted. The response shall not restate matters described in Rule 11(b)(2) and (3) unless the party is dissatisfied with the statement thereof contained in the application. The response shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). A response may be filed in a different form as permitted by the court.

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(d) Filing; Service. An original and 17 copies of the application and of each response shall be filed in the office of the clerk of the full Supreme Judicial Court. (e) Effect of Application Upon Appeal. The filing of an application for direct appellate review shall not extend the time for filing briefs or doing any other act required to be done under these rules. (f) Vote of Direct Appellate Review; Certification. If any 2 justices of the Supreme Judicial Court vote for direct appellate review, or if a majority of the justices of the Appeals Court shall certify that direct appellate review is in the public interest, an order allowing the application (or transferring the appeal sua sponte) or the certificate, as the case may be, shall be transmitted to the clerk of the Appeals Court with notice to the lower court. The clerk of the Appeals Court shall forthwith transmit to the clerk of the full Supreme Judicial Court all documents filed in the case. (g) Cases Transferred for Direct Review; Time for Serving and Filing Briefs. In any appeal transferred to the full Supreme Judicial Court from the Appeals Court:

(1) If at the time of transfer all parties have served and filed briefs in the Appeals Court, no further briefs may be filed except that a reply brief may be served and filed on or before the last date allowable had the case not been transferred, or within 10 days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later. (2) If at the time of transfer only the appellant’s brief has been served and filed in the Appeals Court the appellant may, but need not, serve and file an amended brief within 20 days after the date on which the appeal is docketed in the full Supreme Judicial Court. The appellee shall serve and file a brief within 30 days after service of any amended brief of the appellant, or within 50 days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later.

(3) Service and filing of a reply brief shall comply with Rule 19. (4) If at the time of transfer to the full Supreme Judicial Court no party to the appeal has served or filed a brief, the appellant shall serve and file a brief within 20 days after the date on which the appeal is docketed in the full Supreme Judicial Court or within 40 days after the date on which the appeal was docketed in the Appeals Court, whichever is later.

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RULE 11.1. TRANSFER FROM SUPREME JUDICIAL COURT

Summary and Explanation of Revisions The Subcommittee updated the language of this rule by deleting antiquated language (e.g., “typewritten”) as technologically obsolete. In addition, the formatting requirements are made clearer, and the word count alternative to page limits, explained in the global changes section of this document, is added to the length requirements. The final sentence, stating “No oral argument will be permitted,” is removed as unnecessary.

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PROPOSED RULE 11.1—SHOWING REVISIONS AND DELETIONS Rule 11.1. Transfer from Supreme Judicial Court In the case of a direct appeal to the Supreme Judicial Court, within fourteen 14 days after the appeal has been docketed, or such further time as a single justice upon motion for cause shown may allow, any party may serve and file a motion, on notice, to transfer the appeal to the Appeals Court. The motion: (a) shall not exceed either five typewritten 5 pages of text in monospaced font or 1,000 words in proportional font, as defined in Rule 20(a)(4)(B); (b) shall succinctly specify the grounds for transfer; and (c) shall conform to Rules 13, 14, 15, and 20(b). Within seven 7 days after filing of the motion, any other party may serve and file an opposition a response to the transfer. The response opposition: (a) shall not exceed either five typewritten 5 pages of text in monospaced font or 1,000 words in proportional font, as defined in Rule 20(a)(4)(B); (b) shall succinctly specify the reasons for opposing the why transfer should or should not be granted; and (c) shall conform to Rules 13, 14, 15, and 20(b). No oral argument will be permitted.

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PROPOSED RULE 11.1 Rule 11.1. Transfer from Supreme Judicial Court In the case of a direct appeal to the Supreme Judicial Court, within 14 days after the appeal has been docketed, or such further time as a single justice upon motion for cause shown may allow, any party may serve and file a motion, on notice, to transfer the appeal to the Appeals Court. The motion (a) shall not exceed either 5 pages of text in monospaced font or 1,000 words in

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proportional font, as defined in Rule 20(a)(4)(B); (b) shall succinctly specify the grounds for transfer; and (c) shall conform to Rules 13, 14, 15, and 20(b). Within 7 days after filing of the motion, any other party may serve and file a response to the transfer. The response (a) shall not exceed either 5 pages of text in monospaced font or 1,000 words in proportional font, as defined in Rule 20(a)(4)(B); (b) shall succinctly specify the reasons why transfer should or should not be granted; and (c) shall conform to Rules 13, 14, 15, and 20(b).

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RULE 12. PROCEEDINGS IN FORMA PAUPERIS

Summary The Subcommittee proposes removing the term "reasonable" in paragraph (a) and adding to paragraph (b) language stipulating that an indigent party may request leave of the appellate court or a single justice to serve a reduced number of copies of the party’s brief, appendix, or other document. Antiquated language (“in typewritten form”) is removed, as well as language stating that the appeal may be heard on the original record.

Explanation of Revisions Rule 12(a). The Subcommittee proposes removing the term "reasonable" in paragraph (is struck, for reasons similar to those for the proposed revision to the last sentence of Rule 2, which currently states that “[s]uch a suspension [of the Rules] may be on reasonable terms,” and is proposed to be amended by replacing that phrase with “on such terms as the court or the single justice may order.” It can be assumed that a judicial determination to authorize an appeal to be prosecuted in forma pauperis should always be made reasonably, and the new language keeps parties on notice that there may be terms and conditions attached to the authorization. Rule 12(b). Reproducing multiple copies of the appendix materials in particular can be very expensive. To reduce the expense of an appeal, indigent parties often will attempt to file fewer than the required number of briefs and appendices even though they have not first obtained leave of court. Moreover, some indigent parties request to proceed on the original record instead of incurring the expense of preparing the appendix. The Subcommittee recommends that this provision of Rule 12(b), also currently included as Rule 18(f), be deleted for the reasons stated in the explanations for the deletion of that Rule, infra. Highlighting that an indigent party may seek to file a reduced number of copies, and clarifying that leave of court to do so is required, will promote judicial efficiency by increasing compliance with the rules.

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PROPOSED RULE 12—SHOWING REVISIONS AND DELETIONS Rule 12. Proceedings in Forma Pauperis (a) Leave to Proceed on Appeal In Forma Pauperis From Lower Court to Appellate Court.

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Either a lower court or a single justice, for cause shown and after reasonable notice, may authorize an appeal to be prosecuted in forma pauperis, upon such reasonable terms as such court or justice may prescribe. (b) Form of Briefs, Appendices and Other Papers Documents. Parties allowed to proceed in forma pauperis may upon motion and with leave of the appellate court or a single justice, file and serve a reduced number of copies of briefs, appendices and other papers documents than otherwise required by these rules.in typewritten form, and may request that the appeal be heard on the original record without the necessity of reproducing parts thereof in any form.

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PROPOSED RULE 12 Rule 12. Proceedings in Forma Pauperis (a) Leave to Proceed on Appeal In Forma Pauperis From Lower Court to Appellate Court. Either a lower court or a single justice, for cause shown and after reasonable notice, may authorize an appeal to be prosecuted in forma pauperis, upon such terms as such court or justice may prescribe. (b) Form of Briefs, Appendices and Other Documents. Parties allowed to proceed in forma pauperis may upon motion and with leave of the appellate court or a single justice, file and serve a reduced number of copies of briefs, appendices and other documents than otherwise required by these rules.

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RULE 13. FILING AND SERVICE

Summary The Subcommittee proposes separating the filing requirements of paragraph (a) into two subsections, the first, Rule 13(a)(1), addressing filings by other than self-represented parties confined in an institution, and the second, Rule 13(a)(2), addressing filings by self-represented parties confined in an institution. Language is added to clarify that filings by other than self-represented parties confined in an institution may be made in hand or by any electronic means provided by the Clerk. Language in the current rule that requires an affidavit signed by counsel attesting that the day of mailing was within the time fixed for filing is replaced with language requiring the filing of a certificate. Finally, language in current Rule 13(a) permitting motions to be filed directly with the single justice is removed as all filings should be made with the clerk, who will then docket and disseminate the filings to the single justice or appellate court. New language clarifies that it is the party’s obligation to serve all documents filed, and delineates service requirements. A provision is added to allow for service through electronic means with the consent of the party being served. Requiring consent of the person electronically served is consistent with the definition of “electronic service” in Rule 2 of the S.J.C. Interim Rules for Electronic Filing in Pilot Courts (2015). The Subcommittee suggests editing the title of paragraph (d) to reference explicitly “certificate” of service and to qualify that it addresses service of all documents other than briefs. Language stating that documents for filing must contain “acknowledgement of service by the person served” is removed since in practice that rarely occurs. In addition, language requiring a statement “under the penalties of perjury” is removed in favor of “certifying.” The Federal rules also do not require a statement signed under the penalties of perjury. Lastly, language indicating that proof of service must include the mailing and electronic address of the person served has been added. Finally, a new paragraph (e) delineates the requirements related to certificates of service for briefs.

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Explanation of Revisions Rule 13(a). The proposed revision regarding how filing may be accomplished updates the rules to reflect current practice, clarifies for litigants the filing methods that are allowed, and expressly authorizes filing in hand. In addition, “through any electronic means provided by the clerk” is added to allow the clerks to set their own policies regarding electronic filing, enabling flexibility within the filing rules as electronic filing evolves in the courts. Language stating that mail may be either registered or unregistered is deleted based on the definition of mail in Rule 1. The Subcommittee proposes replacing the requirement of an affidavit attesting the day of mailing is within the time fixed for filing in favor of requiring a certificate so attesting. An affidavit is not necessary in this situation, where a certificate of service is already required and is frequently duplicative of the information required in the affidavit. In addition, this makes accepting mailed briefs easier for the appellate court clerk’s office. As the rule is currently written, the clerk’s office frequently needs to call counsel to request submission of an affidavit, even if the certificate of service is clear that the briefs were mailed within the time fixed for filing. The language permitting motions to be filed directly with the single justice was removed because parties sometimes mail documents directly to a single justice for filing which inadvertently may not be transmitted to the appellate court clerk’s office for proper docketing and processing. The amendments to this section ensure that all documents filed by any party should be filed in the appellate court clerk’s office to address this problem. Lastly, the issues addressed by adding a new subparagraph (2) are the same as those outlined in new Rule 4(d), supra. Adding this new subparagraph incorporates a provision that is commonly referred to as “the inmate mailbox rule” into the appellate rules regarding filing of briefs, motions, and other documents, extending the reasoning of existing Supreme Judicial Court case law to these types of filings. Whether the case involves a criminal or civil appeal, the concerns highlighted by the Supreme Judicial Court in Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990), as to the limitations placed on inmates regarding access to mail are the same. Notably, although some lower courts in Massachusetts have not extended Hartsgrove beyond a criminal notice of appeal, some have extended Hartsgrove to civil complaints and motions. Rule 13(a) (2) is also consistent with the approach taken in the Federal rules. See Fed. R. App. P. 25(a)(2)(c), as amended effective December 1, 2016. Similar to proposed Rule 4(d), the proposed rule requires only that the party’s certificate set forth the date of deposit, and does not include the further requirement found in the Federal rule that the party also state that first-class postage has been prepaid. Inmates in some Massachusetts institutions would not be able to certify that the postage has been prepaid since the institutions affix postage after the item leaves

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the inmate’s hands. The rule as proposed focuses on ensuring inmates use the internal mail system and deposit the document in that system within the applicable time frame in order to obtain the benefit of the rule. Rule 13(b). The proposed revisions to the Rule provide that parties are to serve copies of any document filed in the case on all other parties to the appeal, and remove reference to service by the clerk. This clarifies that it is the party’s obligation to serve the documents and makes this provision consistent with other rule amendments that relieve the clerk of the obligation to serve documents. Rule 13(c). The clause “a clerk or other responsible person” is antiquated and is not consistent with current practices. It also imposes an unnecessary requirement on litigants. Moreover, it is not clear from the current rule if service can be made electronically. Although it appears to be an increasingly common practice, the current rule does not expressly permit electronic service upon a receiving party. In contrast, in 2011, the Appeals Court issued standing orders that allow electronic service of certain filings upon consent of the opposing parties, and in 2015-2016, the appellate courts began electronic filing and service under the S.J.C. Interim Rules on Electronic Filing in Pilot Courts (2015). The Subcommittee notes that Rule 20(a), infra, is updated to reference inclusion of an “electronic” address (instead of “email”), as a requirement on all filings. Rule 13(d). The revisions to this Rule complement the new Rule 13(e), discussed infra, which details the components of a certificate of service for briefs. This proposal is made because information included in the certificate of service for motions and other papers need not be as detailed as that for a brief. The clerks’ offices receive inquiries when a document was not properly served, and the lack of an address requirement makes it difficult to determine whether the document was served at the address on file with the court. Including a requirement that both the electronic and physical addresses of the person served be included on the certificate of service promotes consistency with the electronic-filing practices and procedures being developed for the appellate courts. The language allowing acknowledgment by the person served as an alternative to proof of service and requiring a statement under the penalties of perjury is archaic and unnecessary; Massachusetts Rule of Civil Procedure 5(d)(1) (filing deemed representation of service; otherwise a signed statement by serving party or acknowledgement of service signed by party served constitutes service) and Massachusetts Rule of Criminal Procedure 32(b) (service “made in the manner provided for in civil actions”) do not require the certificate of service to be under the penalties of perjury. New Rule 13(e). The Subcommittee proposes adding this new paragraph to provide easier reference to parties by identifying the location and contents of the certificate of service of a brief.

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Subsection (1) requires the certificate to appear in a brief, and cross-references Rule 16(a)(14), which also specifies the brief include a certificate of service. The prior rules did not specify the location of a brief’s certificate of service; some briefs contained the certificate while other briefs were filed separate from the certificate. The information on the certificate of service filed with a brief is utilized by the appellate court clerks’ offices to ensure proper processing of the brief and accurate records as to service and the timing for any responsive brief. Accordingly, the Appeals Court traditionally requested parties to file a separate certificate of service to facilitate the court’s docketing of paper briefs. However, the court’s new electronic filing processes have eliminated its need for a separate certificate. Finally, the Subcommittee anticipates that filing of one combined document will be more convenient for parties. Subsection (2) identifies the content of the certificate of service for a brief, which is similar to the content of a certificate of service for other documents contained in Rule 13(d), but contains additional detail.

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PROPOSED RULE 13—SHOWING REVISIONS AND DELETIONS Rule 13. Filing and Service (a) Filing. Papers Documents required or permitted to be filed in the appellate court shall be filed with the clerk.

(1) Filing Generally. Except as provided in Rule 13(a)(2), filing Filing may be accomplished in hand, through any electronic means provided by the clerk or by first class mail or its equivalent, either registered or unregistered, addressed to the clerk, but filing shall not be timely unless the papers documents are received by the clerk within the time fixed for filing, except that briefs and appendices shall be docketed on the date of receipt and shall be deemed timely filed if (iA) received within the time fixed for filing or (iiB) accompanied by an affidavita certificate signed by counsel of record attesting that the day of mailing was within the time fixed for filing. If a motion requests relief which may be granted by a single justice, the justice may permit the motion to be filed with him, in which event he shall note thereon the date of filing and shall thereafter transmit it to the clerk. (2) Documents Filed by a Self-Represented Party Confined in an Institution. If an institution has a system designed for legal mail, a self-represented party confined in an institution must use that system to receive the benefit of this Rule. A document other than a notice of appeal filed by such party is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and is accompanied by a signed certificate in compliance with Rule 13(a)(1)(B) setting out

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the date of deposit. If the document is not received by the last day for filing, the certificate shall give rise to a presumption of timely filing provided it shows compliance with this Rule. Failure to attach the certificate shall not of itself render the document invalid or untimely, and the appellate court may permit the later filing of a certificate. The time period for the opposing party to file any response to the document runs from the date when the appellate court dockets the document.

(b) Service of All Papers Documents Required. Copies of all papers documents filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting for him on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel. (c) Manner of Service. Service may be personal or by first class mail or its equivalent. Personal service includes delivery of the copy to the party’s mailing address a clerk or other responsible person at the office of counsel. Service by first class mail or its equivalent is complete on mailing. Service may also be completed electronically with the consent of the party being served. (d) Proof Certificate of Service of All Documents Other than Briefs.

(1) Requirement. PapersDocuments presented for filing shall contain an acknowledgement of service by the person served or proof a certificate of service. ProofA certificate of service may appear on or be affixed to the papersdocument filed. The clerk may permit papersdocuments to be filed without acknowledgement or proofa certificate of service but shall require such acknowledgement or proofcertificate to be filed promptly thereafter. (2) Contents. A certificate of service shall be in the form of a statement under penalties of perjury certifying

(A) the date and manner of service; and of (B) the name, mailing address, and, where available, electronic address of the person(s) served,; and (C) signed bythe printed and signed name, Board of Bar Overseers (BBO) number, if any, mailing and electronic addresses, and telephone number of the person who made service, and if that person is affiliated with a firm or office, the office name.

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(e) Certificate of Service of Briefs.

(1) Requirement. Briefs presented for filing shall be accompanied by a certificate of service. The certificate of service shall appear as a part of the brief being filed as required in Rule 16(a)(14). (2) Contents. The certificate of service shall be in the form of a certification that includes

(A) the name of the court and the number of the case; (B) the title of the case; (C) the title of the brief; (D) the due date of the brief; (E) the party on whose behalf service was made; (F) the printed and signed name, Board of Bar Overseers (BBO) number, if any, mailing and electronic addresses, and telephone number of the person who made service, and, if that person is affiliated with a firm or office, the office name; (G) the name and mailing address and, where available, electronic address of the person(s) served; and (H) the date and manner of service.

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PROPOSED RULE 13

Rule 13. Filing and Service (a) Filing. Documents required or permitted to be filed in the appellate court shall be filed with the clerk.

(1) Filing Generally. Except as provided in Rule 13(a)(2), filing may be accomplished in hand, through any electronic means provided by the clerk or by first class mail or its

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equivalent, addressed to the clerk, but filing shall not be timely unless the documents are received by the clerk within the time fixed for filing, except that briefs and appendices shall be docketed on the date of receipt and shall be deemed timely filed if (A) received within the time fixed for filing or (B) accompanied by a certificate attesting that the day of mailing was within the time fixed for filing. (2) Documents Filed by a Self-Represented Party Confined in an Institution. If an institution has a system designed for legal mail, a self-represented party confined in an institution must use that system to receive the benefit of this Rule. A document other than a notice of appeal filed by such party is timely if it is deposited in the institution’s internal mail system on or before the last day for filing and is accompanied by a signed certificate in compliance with Rule 13(a)(1)(B) setting out the date of deposit. If the document is not received by the last day for filing, the certificate shall give rise to a presumption of timely filing provided it shows compliance with this Rule. Failure to attach the certificate shall not of itself render the document invalid or untimely, and the appellate court may permit the later filing of a certificate. The time period for the opposing party to file any response to the document runs from the date when the appellate court dockets the document.

(b) Service of All Documents Required. Copies of all documents filed by any party shall, at or before the time of filing, be served by a party on all other parties to the appeal or review. (c) Manner of Service. Service may be personal or by first class mail or its equivalent. Personal service includes delivery of the copy to the party’s mailing address. Service by first class mail or its equivalent is complete on mailing. Service may also be completed electronically with the consent of the party being served. (d) Certificate of Service of All Documents Other than Briefs.

(1) Requirement. Documents presented for filing shall contain a certificate of service. A certificate of service may appear on or be affixed to the document filed. The clerk may permit documents to be filed without a certificate of service but shall require such certificate to be filed promptly thereafter. (2) Contents. A certificate of service shall be in the form of a statement certifying

(A) the date and manner of service;

(B) the name, mailing address, and, where available, electronic address of the person(s) served; and

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(C) the printed and signed name, Board of Bar Overseers (BBO) number, if any, mailing and electronic addresses, and telephone number of the person who made service, and if that person is affiliated with a firm or office, the office name.

(e) Certificate of Service of Briefs.

(1) Requirement. Briefs presented for filing shall be accompanied by a certificate of service. The certificate of service shall appear as a part of the brief being filed as required in Rule 16(a)(14). (2) Contents. The certificate of service shall be in the form of a certification that includes

(A) the name of the court and the number of the case; (B) the title of the case; (C) the title of the brief; (D) the due date of the brief; (E) the party on whose behalf service was made; (F) the printed and signed name, Board of Bar Overseers (BBO) number, if any, mailing and electronic addresses, and telephone number of the person who made service, and, if that person is affiliated with a firm or office, the office name; (G) the name and mailing address and, where available, electronic address of the person(s) served; and (H) the date and manner of service.

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RULE 14. COMPUTATION AND EXTENSION OF TIME

Summary and Explanation of Revisions Language is added to paragraph (b) clarifying that the single justice referred to is a single justice of the appellate court in which the appeal will be entered.

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Rule 14. Computation and Extension of Time (a) Computation of Time. In computing any period of time prescribed by these rules, by order of court, or by any applicable statute, the day of the act event, or default after which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period shall extend until the end of the next day which is not a Saturday, Sunday or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in this rule “legal holiday” means those days specified in G.L. c. 4, § 7 and any other day appointed as a holiday by the President or the Congress of the United States or so designated by the laws of the Commonwealth. (b) Enlargement of Time. The appellate court or a single justice of the appellate court in which the appeal will be, or is, entered for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but neither the appellate court nor a single justice may enlarge the time for filing a notice of appeal beyond one 1 year from the date of entry of the judgment or order sought to be reviewed, or, in a criminal case, from the date of the verdict or finding of guilt or the date of imposition of sentence, whichever date is later. (c) Additional Time After Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a paper document upon him the party and the paper document is served by mail, 3 days shall be added to the prescribed period.

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PROPOSED RULE 14 Rule 14. Computation and Extension of Time (a) Computation of Time. In computing any period of time prescribed by these rules, by order of court, or by any applicable statute, the day of the act event, or default after which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period shall extend until the end of the next day which is not a Saturday, Sunday or a legal holiday. When the period of time prescribed or allowed is less than 7 days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in this rule “legal holiday” means those days specified in G.L. c. 4, § 7 and any other day appointed as a holiday by the President or the Congress of the United States or so designated by the laws of the Commonwealth. (b) Enlargement of Time. The appellate court or a single justice of the appellate court in which the appeal will be, or is, entered for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but neither the appellate court nor a single justice may enlarge the time for filing a notice of appeal beyond 1 year from the date of entry of the judgment or order sought to be reviewed, or, in a criminal case, from the date of the verdict or finding of guilt or the date of imposition of sentence, whichever date is later. (c) Additional Time After Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a document upon the party and the document is served by mail, 3 days shall be added to the prescribed period.

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RULE 15. MOTIONS

Summary and Explanation of Revisions The language in Rule 15(a) is updated to reflect the proposed global changes to language used as described at the beginning of the document. Rule 15(d). Rule 15(d) is updated to replace "murder in the first degree", with “‘capital case’ as defined in G. L. c. 278, § 33E”, to reflect the fact that capital cases also include certain habitual offender convictions in addition to convictions of murder in the first degree. In addition, the terminology in reference to "the filing of a rescript" is changed to "the issuance of a rescript".

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PROPOSED RULE 15—SHOWING REVISIONS AND DELETIONS Rule 15. Motions (a) Content of Motions; Response; Reply. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other papersdocuments, they shall be served and filed with the motion. Any party may file a response in opposition to a motion other than one for a procedural order (for which see subdivision Rule 15(b)) within 7 days after service of the motion, but motions authorized by Rule 6 may be acted upon after reasonable notice, and the appellate court or a single justice may shorten or extend the time for responding to any motion. (b) Determination of Motions for Procedural Orders. Notwithstanding the provisions of the preceding paragraph as to motions generally, motions for procedural orders, including any motion under Rule 14(b), may be acted upon at any time, without awaiting a response thereto. Any party adversely affected by such action may request reconsideration, vacation, or modification of such action. (c) Power of a Single Justice to Entertain Motions. In addition to the authority expressly conferred by these rules or by law, a single justice may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single justice may not dismiss or otherwise determine an appeal or other proceeding, and except that the appellate court may provide by order or rule that any motion or class of motions shall be acted

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upon by the appellate court. The action of a single justice may be reviewed by the appellate court. (d) Motions for New Trial in Capital Cases. After the docketing of an appeal in a criminal case in which the defendant was convicted of murder in the first degree “capital case” as defined in G. L. c. 278, § 33E, and until the filingissuance of a rescript by the appellate court, any motion for a new trial pursuant to Massachusetts Rules of Criminal Procedure 30 shall be filed in the appellate court and may be remitted to the trial judge for hearing and determination at such time as the appellate court may direct.

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PROPOSED RULE 15 Rule 15. Motions (a) Content of Motions; Response; Reply. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other documents, they shall be served and filed with the motion. Any party may file a response to a motion other than for a procedural order (for which see Rule 15(b)) within 7 days after service of the motion, but motions authorized by Rule 6 may be acted upon after reasonable notice, and the appellate court or a single justice may shorten or extend the time for responding to any motion. (b) Determination of Motions for Procedural Orders. Notwithstanding the provisions of the preceding paragraph as to motions generally, motions for procedural orders, including any motion under Rule 14(b), may be acted upon at any time, without awaiting a response thereto. Any party adversely affected by such action may request reconsideration, vacation, or modification of such action. (c) Power of a Single Justice to Entertain Motions. In addition to the authority expressly conferred by these rules or by law, a single justice may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single justice may not dismiss or otherwise determine an appeal or other proceeding, and except that the appellate court may provide by order or rule that any motion or class of motions shall be acted upon by the appellate court. The action of a single justice may be reviewed by the appellate court.

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(d) Motions for New Trial in Capital Cases. After the docketing of an appeal in a “capital case” as defined in G. L. c. 278, § 33E, and until the issuance of a rescript by the appellate court, any motion for a new trial pursuant to Massachusetts Rule of Criminal Procedure 30 shall be filed in the appellate court and may be remitted to the trial judge for hearing and determination at such time as the appellate court may direct.

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RULE 16. BRIEFS

Summary The language used throughout Rule 16(a) is revised for clarity, and the word count alternative to page limits is added. The principal goal of the proposed revisions to this Rule is to provide a cover-to-cover checklist of information and items that must be contained in a brief. Cross-references to other applicable rule provisions also are added. Among the proposed amendments to this Rule are new provisions requiring inclusion of the corporate disclosure statement immediately following the cover of a brief, the applicable standard of review for each issue raised in the argument section of the brief, and any request for appellate attorney’s fees and costs. The new provisions also specify the contents of the signature block, and specify inclusion of the Rule 16(k) Certificate of Compliance and Rule 13(e) Certificate of Service in the brief. If the brief is filed on paper, the Rule 16(k) Certificate of Compliance and Rule 13(e) Certificate of Service also must also be filed separately from the brief. Finally, provisions regarding the contents of the addendum, currently spread among separate sections of Rule 16, are moved and consolidated into one subparagraph, proposed new Rule 16(a)(15). Rule 16(b), clarifies the content of the brief of the appellee, and is revised to cross-reference Rule 16(a) in its entirety. The Rule also clarifies procedures for filing such briefs in response to the filing of multiple appellant briefs. Likewise, revisions proposed for Rule 16(c) regarding reply briefs clarify procedures for filing such briefs in response to the filing of multiple appellee briefs. Revisions to Rule 16(h) remove all requirements as to the length of various briefs. Because Rule 16 as revised is limited to the required contents of briefs, the rule provisions related to brief length are moved to Rule 20, and cross-references to Rule 20(a)(2) concerning the length of briefs in cases other than cross appeals, and to Rule 20(a)(3) concerning the length of briefs in cross appeals, are added. Finally, Rule 16(k) is revised to include a requirement that, if the party filing the brief utilizes the word count alternative to the page limit, the party specify how compliance with the applicable length limit was ascertained.

Explanation of Revisions New Rule 16(a)(1). In order to provide cover-to-cover detail as to the contents of a brief, the checklist for the contents of a brief begins with the cover. This new subparagraph cross-references Rule 20 (a)(6) where the format and color of the cover of a brief filed with an appellate court is addressed.

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New Rule 16(a)(2). The Subcommittee proposes adding a new subparagraph that requires the inclusion of the corporate disclosure statement immediately following the cover of a brief, if such a statement is required to be filed. Pursuant to Supreme Judicial Court Rule 1:21, this statement is to be included before the table of contents in a party’s principal brief. The current Rules do not mention this requirement, which applies to all briefs. The proposal therefore makes Rule 16 consistent with Supreme Judicial Court. Rule 1:21 and eliminates a trap for the unwary. Moreover, by including the corporate disclosure statement at the beginning of the brief, it is highlighted for anyone reviewing the brief. Rule 16(a)(3) and 16 (a)(4) [formerly Rule 16(a)(1)]. The Subcommittee recommends separating the former Rule 16(a)(1) into two parts for clarity. Proposed new Rule 16(a)(3) clarifies the contents of the table of contents, and new Rule 16(a)(4) clarifies the contents of a brief’s table of authorities. Rule 16(a)(5) [formerly Rule 16(a)(2)]. The Subcommittee proposes highlighting that the statement of issues is to describe each issue concisely and with particularity. Rule 16(a)(6) [formerly Rule 16(a)(3)]. The Subcommittee updated this language for consistency with Federal Rule of Appellate Procedure 28(a)(6). This update is intended to clarify the expected contents of an appellate brief’s statement of the case. The current language causes confusion, and briefs received by the appellate court are inconsistent. Implementing a clearer definition will alleviate confusion and assist the justices. The language currently in Rule 16(a)(3) regarding the statement of facts is moved to a new Rule 16(a)(7). New Rule 16(a)(7). The Subcommittee proposes moving the language delineating the requirements for the statement of facts currently included within Rule 16(a)3) to a stand-alone provision and highlighting that each statement must be supported by references to the record. New Rule 16(a)(8). The Subcommittee proposes the addition of a new subparagraph requiring a summary of the argument that does not merely repeat argument headings. The language of this rule is taken from Federal Rule of Appellate Procedure 28(a)(7). Under current Rule 16(a)(4), a summary of the argument is required only when the argument is more than 24 pages - a requirement often overlooked. This new provision clarifies the contents of this section of a party’s brief, and requires a summary in all briefs regardless of the length of the argument section. It also requires pages references to the body of the brief where each argument is presented. The appellate court justices find a summary of the argument is helpful in reviewing the arguments advanced in parties’ briefs.

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Rule 16(a)(9) [formerly Rule 16(a)(4)]. Amendments to this rule incorporate related federal language regarding the contents of the argument section of the brief, including a new requirement that the party include the standard of review for each issue raised. See Fed. R. App. P. 28(a)(8). The standard of review applicable to an issue is the lens through which the appellate court views the appeal. It also helps parties frame and argue their issues on appeal. In addition, the summary of the argument requirement has been amended and moved to new Rule 16(a)(8), discussed supra. New Rule 16(a)(10). The Subcommittee proposes adding a new subparagraph to clarify that any request for attorney’s fees and costs is to be included in the brief, as required by the Supreme Judicial Court’s decision in Yorke Management v. Castro, 406 Mass. 17, 19 (1989). See also Fabre v. Walton, 436 Mass. 517, 525 (2002), citing McLarnon v. Jokisch, 431 Mass. 343, 350 (2000). The current rule does not address this requirement; the addition of this paragraph updates the rules to be consistent with case law. This proposed amendment would remove a trap for the unwary: litigants who seek to recover these monies may lose the opportunity to do so if the request is not included in their brief. The amendment requires a citation to the authority for awarding fees and costs, both to assist the court and as a reminder to parties that such a request should not be included unless the party is able to cite specific statutory or case law authority to support the request. New Rule 16(a)(11) [formerly Rule 16(a)(5)]. The Subcommittee recommends a stand-alone Rule, new Rule 16(a)(11), containing the requirement formerly set forth in Rule 16(a)(5) for a short conclusion stating the precise relief sought. New Rule 16(a)(12) [formerly Rule 16 (a)(8)]. The Subcommittee proposes adding a new paragraph delineating the requirements of the filer’s signature block. This paragraph expands upon existing Rule 16(a)(8) (which the Subcommittee proposes deleting), by including a requirement that the signature block include both the mailing and electronic addresses of individual counsel. The existing language is outdated in that it does not require the filing of counsel’s electronic address in the signature block, although the 2010 amendment to Rule 20(a)(4) requires the electronic address of any counsel to be on a brief’s cover. The proposed revisions to this rule clarify the requirements of the signature block, and its relocation to the “checklist” portion of Rule 16(a) simplifies the brief requirement rules for the parties and will result in increased efficiency in processing briefs in the appellate court clerk’s offices. Finally, the inclusion of an electronic address is consistent with proposed amendments to other Rules requiring counsel to provide a physical and electronic address. Compare existing Rule 13(d) with proposed Rule 13(e), and existing Rule 20(a)(4) with proposed Rules 20(a)(6)(B) and 20(b)(2)(B).

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New Rule 16(a)(13) and 16(a)(14). The Subcommittee proposes the addition of two new paragraphs in the “checklist” provisions of Rule 16(a) which specify that the brief is to include the Rule 16(k) certificate of compliance and the Rule 13(e) certificate of service. Currently, parties often file their briefs without these certifications, resulting in the briefs not being accepted for filing with the court. Additionally, the certifications are not filed by litigants in a consistent place in the briefs, making it difficult for court staff to determine whether the documents have been included as required. Adding this language to the “checklist” portion of Rule 16(a) simplifies for the parties the requirements for briefs and highlights that these documents are necessary parts of a brief. Identifying the proper location of the certifications in the brief increases efficiency and ensures that they are not inadvertently hidden from court staff, resulting in delays in the acceptance of briefs for filing. Rule 16(a)(15) [formerly Rule 16(a)(6) and 16(a)(7)]. The Subcommittee proposes substantial revisions to existing Rule 16(a)(6). Included in these revisions is the addition of language specifying the contents of the addendum and relocating all existing sections of the Rules regarding the contents of the addendum to this paragraph. Currently, there is no single rule specifically setting forth the contents of the addendum; the requirements as to the contents of the addendum are included in various provisions. As a result, litigants often are confused as to the contents of the addendum, resulting in the brief needing to be corrected. This new provision clarifies the documents required to be included in the addendum and streamlines the Rules to provide a single section in which the contents of the addendum are specified. Further, language has been added that states that, if an unpublished decision is cited, the full text of the decision is to be included in the addendum. The Appeals Court already requires that any party citing to a 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. The amendment codifies this requirement in the Rules. In addition, the amendment expands the requirement to apply to any unpublished decision cited in a brief to either appellate court. In addition, language is added requiring that where the addendum includes a document bearing a handwritten endorsement by the lower court, the addendum also include a typed copy of the 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. The parties are in the best position to advise the court, by providing an agreed typewritten version, as to the contents of the endorsement or notation. 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.

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Finally, the requirements included in existing Rule 16(a)(7), applicable to the addendum in an appeal in which geographical facts are of importance, are relocated to this provision. This proposal promotes judicial efficiency. It is aimed at reducing the number of briefs that are not in substantial compliance with the rules and thus not accepted by the court for filing without revision (see revised Rule 20(a)(7) or current Rule 20(a)(4)(stating that briefs or appendices not in substantial compliance with the rules shall not be received unless the appellate court or a single justice shall otherwise order), and aids the justices deciding the appeal by providing briefs that reference relevant documents. Rule 16(b). The Subcommittee proposes revisions to this rule provision which separate it into two subparagraphs: the new first subparagraph specifies in more detail than the current paragraph the contents of the appellee’s brief, and the new second subparagraph specifying that, except with leave of the appellate court or a single justice, an appellee may file only one brief in response to multiple appellant briefs, consistent with current practice. The new version of Rule 16(b), now Rule 16(b)(1), updates the existing rule cross-reference, includes that the appellee need not include a statement of the issues, statement of the case, and statement of the facts if the appellee agrees with the appellant’s statements, directs the appellee to address appellant’s issues, and adds a requirement that the appellee is to include an addendum that includes the same materials required in the appellant’s addendum in Rule 16(a)(15), insofar as the items are pertinent to the appellee’s arguments. New Rule 16(b)(2). New Rule 16(b)(2) clarifies that an appellee may file only a single brief in response to multiple appellant briefs, unless leave of court is sought and granted to file more than one responsive brief. Under the courts’ interpretation of the current rule, an appellee may file only one 50-page brief, regardless of the number of separate appellant briefs it receives. However, in appeals in which multiple appellants each file a brief, the appellee will often attempt to file multiple briefs, each one in response to a different appellant brief, assuming that is permissible under the Rule. This new subparagraph clarifies the Rule and existing practice that, no matter the number of appellant briefs filed, without leave of court, the appellee may only file a single brief in response to all appellant briefs. It will reduce the number of inquiries received by the clerk’s office on this matter and the number of briefs not accepted for filing due to nonconformance with the Rule. The Subcommittee notes that proposed Rule 20(a)(2)(E) does give parties the option to seek leave of court to file a brief in excess of the page or word limit, if necessary.

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Rule 16(c)(1) [formerly Rule 16(c)]. The Subcommittee proposes numbering the existing Rule 16(c)(1) in accordance with the new provisions proposed, which are discussed below. In Rule 16(c)(1), the words “or a single justice” are added to the current requirement that “leave of the appellate court” must be obtained before a sur-reply brief may be filed. This subsection, as currently written, is inconsistent with other parts of the rules where a party is required to seek leave to file a brief not otherwise in conformance with the rules. This amendment clarifies the intent of the rule and makes it consistent with other rules. In addition, the reference to Rule 16(a) (compliance requirements for the reply brief) is updated consistent with the addition of new subparagraphs to Rule 16(a) and the renumbering of subparagraphs in Rule 16(a). New Rule 16(c)(2). The Subcommittee proposes a new Rule 16(c)(2) to clarify that an appellant may file only a single reply brief regardless of the number of appellee briefs that are filed, unless leave of court is sought and granted to do otherwise. Under the courts’ interpretation of the current rule, an appellant may file only one 20-page reply brief, regardless of the number of separate appellee briefs it receives. However, in appeals in which multiple appellees each file a brief, the appellant will often attempt to file multiple reply briefs, each one in response to a different appellee brief. This new subparagraph clarifies the rule and existing practice that, no matter the number of appellee briefs filed, without leave of court, the appellant may only file a single brief in response to all appellee briefs. It will reduce the number of inquiries received by the clerk’s office on this matter and the number of briefs not accepted for filing due to nonconformance with the rule. The Subcommittee notes that proposed Rule 20(a)(2)(E) does give parties the option to seek leave of court to file a brief in excess of the page or word limit, if necessary. New Rule 16(c)(3). The Subcommittee proposes the addition of a new subparagraph which states that, in cross appeals, an appellee may file only a single brief in reply to the response to the cross appeal by multiple appellants, unless leave of court is sought and granted. Currently, in a cross appeal in which multiple appellants each file a brief in response to the cross appeal, the appellee will often attempt to file multiple reply briefs, one in response to each appellant’s responsive brief. This new subparagraph clarifies the rule and existing practice that in a cross appeal, an appellee may file only a single reply brief in response to multiple appellant reply briefs, unless leave of court is sought and granted. It will reduce confusion on the part of litigants, the number of inquiries received by the clerk’s office on this matter, and the number of briefs not accepted for filing due to nonconformance with the rule.

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The Subcommittee notes that proposed Rule 20(a)(2)(E) does give parties the option to seek leave of court to file a brief in excess of the page or word limit, if necessary. Rule 16(e). The Subcommittee’s proposed revisions to this paragraph add the requirement that parties are to support factual statements asserted in a brief by citation to both the volume number(s) and page number(s) where support for the statement appears in the appendix, transcript or exhibits, and if the supporting record material is also included in the addendum to the brief, there should also be a cite to the page of the addendum where it appears. This change will ensure that citations are clear, as the Subcommittee has also introduced in Rule 20(a)(5) a requirement that each volume of an appendix must be designated by a roman numeral, and be separately paginated. See proposed Rule 20(a)(5) infra. Reference to the volume number is necessary where there is more than one appendix volume, in order to locate the material referenced within the appendix. The Subcommittee also proposes deleting language relating to Rule 18(c) and 18(f) to correspond to the proposed revisions to those provisions, infra. For more information regarding the Subcommittee’s reasons for this change, see proposed Rule 18 and the accompanying summary and explanation. Rule 16(f). The Subcommittee proposes deleting this paragraph in its entirety, but keeping Rule 16(f) as “reserved” instead of renumbering the paragraphs that follow. The contents of the paragraph are included in proposed Rule 16(a)(15), a new provision encompassing the requirements for an addendum which previously had been dispersed throughout Rule 16 (see discussion of that Rule, supra). The paragraph should be retained as “reserved” in order to preserve the present numbering of subsequent sections, especially 16(k) and 16(l). These provisions are referred to by their respective numbers in every day appellate practice, and renumbering them would cause confusion for the appellate bar. Rule 16(g). The proposed changes remove language referencing old reporters. In addition, the language is 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. Language related to quotations of statutory material has been removed. Lastly, citation examples are removed, to be updated and placed in a Reporter’s Note. Practicing attorneys will know that older case law, in the rare circumstances it is even necessary to cite, needs to be cited by Reporter name. It is therefore unnecessary to reference this

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explicitly in the rule. A plain statement that official sources are necessary in citations to Massachusetts authority clarifies this rule. Rule 16(h). The Subcommittee proposes renaming this paragraph “Length of Briefs in Cases Other Than Cross Appeals,” to be consistent with Rule 16(i), governing length of briefs in cross appeals. The current contents of the Rule are deleted entirely, and replaced with one sentence: “ In any case other than a cross appeal, the length of briefs shall comply with Rule 20(a)(2).” The revisions to Rule 16 and 20 clarify that Rule 16 applies to the content of briefs, while Rule 20 applies to the form and length of briefs. See the proposed amendments to Rule 20(a) for more information. Rule 16(i). The first sentence of this paragraph is deleted and relocated to new Rule 10(a)(6). The Subcommittee determined that Rule 10 was a more appropriate location in the Rules for the provision designating the parties for purposes of a cross appeal, rather than in the Rule concerning the briefs, as the parties’ designation for purposes of the appeal applies to all aspects of the appeal, starting at the docketing stage, not simply for purposes of briefing. In addition, the language was updated to align with federal language concerning cross appeals (e.g., principal and response brief). See Fed. R. App. P. 28.1(c). Rule 16(j). This paragraph is updated to cross-reference Rule 10(a)(4) concerning consolidated appeals. In addition, the language authorizing parties to join in another’s brief is expanded to clarify that the provision also applies to reply briefs, and the last sentence stating that parties may “similarly join in reply briefs” is deleted. A clause providing notice to be given to the clerk and other involved parties is added. The specific reference to Rule 10(a)(4) clarifies the intent of the Rule language “cases consolidated for purposes of the appeal.” Adding “or reply brief” after the mention of principal briefs and deleting the last sentence condenses the Rule and makes it clearer that reply briefs can be joined in the same manner as principal briefs. Requiring notice to the appellate court and other parties should an appellant or appellee wish to join another party’s brief allows the court to designate that party as having joined another party’s brief and alerts the other parties and the court that no separate brief will be filed by the party providing the notice. This allows the court to move the case forward as necessary, facilitating timely disposition of the appeal. Rule 16(k). The proposed amendments add language that the certification is to specify how compliance with the applicable length limit of amended Rule 20 was ascertained. This requirement will also assist the appellate court clerk’s offices in verifying the brief’s compliance with applicable rules. The Federal courts require a similar certification. See Fed. R. App. P.

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32(a)(7)(C). See the proposed amendments to Rule 20 regarding the proposed word-limit alternative to brief length for more information regarding the length limit. Cross-references to other rules and their associated parentheticals are updated consistent with the proposed rule numbering changes and to increase clarity. Rule 16(l). The proposed amendments remove the phrase “with a copy to all counsel” and include the addition of 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. Directly referencing the rule will increase compliance with these requirements and make it clear that the requirements apply to letters submitted pursuant to Rule 16(l). New Rule 16(n). The proposed new Rule codifies existing appellate court practice regarding the filing of an amended brief or appendix volume. The amended document is to be submitted to the court contemporaneous with a motion seeking leave to file the amended document.

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Rule 16(a)(15). If the lower court clerk provides a typed notice of docket entry containing the full text of a judge’s handwritten order, a copy of the notice suffices for purposes of this rule. Rule 16(g). The Subcommittee requests that a Reporter’s Note be added to this Rule to replace and update the sample citations that are presently in the text of this Rule. The Note should include examples of appropriate citations to more recent years than presently exists in the rules, e.g.: Supreme Judicial Court: 473 Mass. 496, 502-503 (2016) Appeals Court: 89 Mass. App. Ct. 1, 3-5 (2016) General Laws: G. L. c. 261, § 27D Additionally, the Note could cross-reference this Rule with the Supreme Judicial Court Style Manual, available at http://www.mass.gov/courts/docs/sjc/docs/reporter-of-decisions-style-guide.pdf

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http://www.mass.gov/courts/docs/sjc/docs/reporter-of-decisions-style-guide.pdf

http://www.mass.gov/courts/docs/sjc/docs/reporter-of-decisions-style-guide.pdf

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PROPOSED RULE 16—SHOWING REVISIONS AND DELETIONS Rule 16. Briefs (a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1) Cover. The cover of the brief shall contain the information identified in Rule 20(a)(6)(B). (2) Corporate Disclosure Statement. A corporate disclosure statement, if required pursuant to Supreme Judicial Court Rule 1:21, shall be contained within the brief. (13) In all briefs, a tTable of cContents,. The table of contents shall list each section of the brief, including the headings and subheadings of each section, and the page on which they begin. with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with references to the pages of the brief where they are cited. (4) Table of Authorities. The table of authorities shall list each case, statute, rule, and other authority cited in the brief, with references to each page on which it is cited. The authorities shall be listed alphabetically or numerically, as applicable. (25) A sStatement of the iIssuespresented for review. The statement of issues shall concisely and particularly describe each issue presented for review. (36) Statement of Case. The Astatement of the case, which shall first indicate briefly describe the nature of the caseappeal, the course of proceedingsthe procedural history relevant to the issues presented for review, and itsthe disposition of these issues in by the lower court below. (7) There shall follow a Statement of Facts. The statement of the facts shall describe the facts relevant to the issues presented for review, but need not repeat items otherwise included in the statement of the case, and each statement of fact shall be supported by page with appropriate references to the record appendix or transcript in accordance with Rule 16(e)(see subdivision (e)). (8) Summary of Argument. The summary of the argument must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, which

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must not merely repeat the argument headings, and is to include page references to where in the body of the brief each argument is made. (49) Argument. The argument, which shall contain:

(A) the appellant’s contentions of the appellant with respect to the issues presented, and the reasons therefor, as to why the lower court committed reversible error, with citations to the authorities, statutes and parts of the record on which the appellant relies. The appellate court need not pass upon questions or issues not argued in the brief; and (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues). relied on. In a brief with more than twenty-four pages of argument, there shall be a short summary of argument, suitably paragraphed and with page references to later material in the brief dealing with the same subject matter, which should be a condensation of the argument actually made in the body of the brief, and not a mere repetition of the headings under which the argument is arranged. The appellate court need not pass upon questions or issues not argued in the brief. Nothing argued in the brief shall be deemed to be waived by a failure to argue orally.

(5) A short conclusion stating the precise relief sought. (10) Request for Attorney’s Fees and Costs. Any request for appellate attorney’s fees and costs must be included in the brief, with a citation to the authority therefor. (11) Conclusion. The brief shall contain a short conclusion stating the precise relief sought. (12) Signature Block. The signature block shall contain

(A) the printed and signed name(s), Board of Bar Overseers (BBO) number(s), if any, mailing and electronic addresses, and telephone number(s) of the person(s) who prepared the brief, and, if any individual counsel is affiliated with a firm or office, the office name; and (B) the date of signing.

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(13) Certificate of Compliance. The certification required by Rule 16(k) shall be contained within the brief. (14) Certificate of Service. The certificate of service required by Rule 13(e) shall be contained within the brief. (615) Addendum. An addendum, contained within the brief, shall consist of the following:

(A) a table of contents listing each item contained therein and the page on which it begins; (B) Aany appealed judgment or order (including any written opinion, or oral findings or memorandum of decision or findings of fact and conclusions thereon relating by the court pertinent to an issue raised on appeal, included as an addendum to the brief including a typed version of any pertinent handwritten or oral endorsement, notation, findings, or order made by the lower court); (C) copies of constitutional provisions, statutes, rules, regulations, or relevant parts thereof, as in effect at the relevant time, consideration of which is required for determination of the issues presented; (D) a copy of any unpublished decision cited in the brief; and (E) in a case where geographical facts are of importance, unless appropriate plans are reproduced in the printed record or record appendix, an outline plan (preferably based on exhibits in evidence). This outline plan should be suitable for reproduction on one 1 page of the printed law reports.

(7) In cases where geographical facts are of importance, unless appropriate plans are reproduced in the printed record or record appendix, an outline plan or chalk (preferably based on exhibits in evidence) shall be included. This outline plan should be suitable for reproduction on one 1 page of the printed law reports. (8) The printed names, Board of Bar Overseers (BBO) numbers, addresses, and telephone numbers of individual counsel, and, if an individual counsel is affiliated with a firm, the firm name.

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(b) Brief of the Appellee.

(1) The brief of the appellee shall conform to the requirements of subdivision Rule 16(a)(1)-(4) and (7), except as follows: that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.

(A) Agreement with Appellant’s Statements. The appellee’s brief may omit the statement of issues, the statement of the case, and the statement of the facts if the appellee agrees with the statements in the appellant’s brief. If any of these statements is omitted, the brief shall state that the appellee agrees with the appellant’s statement(s). (B) Argument. The argument shall address the contentions raised in the appellant’s argument. (C) Addendum. The addendum shall include copies of items required by Rule 16(a)(15) insofar as pertinent to the issues argued by the appellee, even if included in the addendum of the appellant.

(2) Except with leave of the appellate court or a single justice, an appellee may file only a single brief in response to multiple appellant briefs.

(c) Appellant’s Reply Brief.

(1) The appellant may file a reply brief in reply responding to the brief of the appellee’s argument. No new issues shall be raised in the reply brief. , and iIf the appellee has cross-appealed, the appellee may file a reply brief in reply to the response of responding to the appellant’s argument as to the issues presented by the cross appeal. No further briefs may be filed except with leave of the appellate court or a single justice. The Rreply briefs shall comply with the requirements of Rule 16 (a)(1), (3), (4), (9), and (11)-(15). (2) Except with leave of the appellate court or a single justice, an appellant may file only a single brief in reply to multiple appellee briefs. (3) Except with leave of the appellate court or a single justice, an appellee that has cross-appealed may file only a single brief in reply to the responses of multiple appellants to the issues presented by the cross appeal.

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(d) References in Briefs to Parties. Counsel Parties will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as “appellant” and “appellee.” It promotes clarity to use the designations used in the lower court, or the actual names of the parties, or descriptive terms such as “the employee,” “the injured person,” “the taxpayer,” “the landlord,” etc. If the name of a party has been impounded or has been made confidential by statute, rule, or court order, counsel the party shall preserve confidentiality in briefs and oral arguments. (e) References in Briefs to the Record. Any factual statement in a brief shall be supported by a citation to the volume number(s) and page number(s) at which it appears in an appendix, and if not contained in an appendix, to the volume number(s) and page number(s) at which it appears in the transcript(s) or exhibits volume(s). Only clear abbreviations may be used, for example, R.A. II at 55 (meaning Record Appendix volume II at page 55) or Tr. III at 231-232 (meaning Transcript volume III at pages 231-232). Any record material cited in a brief must be reproduced in an appendix or transcript or exhibit volume. Any record material cited in a brief that is included in the addendum should also include a citation to the addendum. References in the briefs to parts of the record reproduced in an appendix filed with the brief (see Rule 18(a)) shall be to the pages of the appendix at which those parts appear. If the appendix is prepared after the briefs are filed, references in the briefs to the record shall be made by one of the methods allowed by Rule 18(c) . If the record is reproduced in accordance with the provisions of Rule 18(f) , or if references are made in the briefs to parts of the record not reproduced, the references shall be to the pages of the parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. No statement of a fact of the case shall be made in any part of the brief without an appropriate and accurate record reference. (f) Reserved. Reproduction of Statutes, Rules, Regulations, etc. If determination of the issues presented requires consideration of constitutional provisions, statutes, rules, regulations, etc. or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end. (g) Massachusetts Citations. Citations to Massachusetts decisions, statutes, and regulations shall be made only to the official report of the decision or to the official publication containing the statute or regulation. Massachusetts Reports between 17 Massachusetts and 97 Massachusetts shall be cited by the name of the reporter. Any other citation shall include, wherever reasonably possible, a reference to any official report of the case or to the official publication containing statutory or similar material. References to decisions and other authorities should include, in addition to the page at which the decision or section begins, a page reference to the particular material therein upon which reliance is placed, and the year of the decision; as,

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for example: 334 Mass. 593, 597-598 (1956). Quotations of Massachusetts statutory material shall include a citation to either the Acts and Resolves of Massachusetts or to the current edition of the General Laws published pursuant to a resolve of the General Court. (h) Length of Briefs in Cases Other Than Cross Appeals. In any case other than a cross appeal, the length of briefs shall comply with Rule 20(a)(2). Except by permission of the court, principal briefs shall not exceed fifty pages, exclusive of pages containing the table of contents, tables of citations and any addendum containing statutes, rules, regulations, etc. Except by permission of the court, reply briefs shall not exceed twenty pages. Permission of the court shall not be granted unless the moving party specifies the relevant issue or issues and why such issues merit additional pages. A motion of a party to exceed the page limits stated in this rule will not be granted except for extraordinary reasons. (i) Briefs in Cases Involving Cross Appeals. If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for the purposes of this rule and Rules 18 and 19, unless the parties otherwise agree or the court otherwise orders. In a cross appeal, the length of briefs shall comply with Rule 20(a)(3). The brief of the appellee’s principal and response brief shall contain the issues and argument involved in his the appellee’s appeal as well as the answer to the brief of the appellant. (j) Briefs in Cases Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal per Rule 10(a)(4), any number of either may join in a single brief or reply brief, provided appropriate notice is given to the clerk and other parties. , and aAny appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs. (k) Required Certification; Non-complying Briefs. The last page of each brief shall include a certification by counsel, or, if a party is proceeding pro se, by the party, that the brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass. R. A. P. Rule 16(a)(615) (addendum pertinent findings or memorandum of decision); Mass. R. A. P. Rule 16(e) (references to the record); Mass. R. A. P. 16(f) (reproduction of statutes, rules, regulations); Mass. R. A. P. 16(h) (length of briefs); Mass. R. A. P. Rule 18 (appendix to the briefs); and Mass. R. A. P. Rule 20 (form and length of briefs, appendices, and other papersdocuments); and Rule 21 (redaction). The certification shall specify how compliance with the applicable length limit of Rule 20 was ascertained, by stating either (1) the name, size, and number of characters per inch of the monospaced font used and the number of non-excluded pages, or (2) the name and size of the proportionally spaced font used, the number of non-excluded words, and the name and version of the word-processing program used. A brief not complying with these rules (including a brief that does not contain a certification) may be struck from the files by the appellate court or a single justice.

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(l) Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after his the party’s brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited. Filing and service of any letter pursuant to this paragraph shall comply with Rule 13. (m) References to Impounded Material. Upon the filing of any brief or other document containing references to matters that are impounded or have been made confidential by statute, rule, or order, counsel (or a party if pro se), the party shall file a written notice with the clerk, with a copy to all parties, so indicating. Wherever possible, counsel the party shall not disclose impounded material. Where it is necessary to include impounded material in a brief, the cover of the brief shall clearly indicate that impounded information is included therein. (n) Amendment of Brief or Appendix. On motion for good cause, the court may grant leave for a party to file an amended brief or appendix volume. The motion shall describe the nature and reason for the amendment. The party shall file with the motion the amended brief or appendix volume marked as such on the front page or cover. Except as the court otherwise orders, the filing of an amended brief or appendix volume has no effect on any filing deadlines.

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PROPOSED RULE 16

Rule 16. Briefs (a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1) Cover. The cover of the brief shall contain the information identified in Rule 20(a)(6)(B). (2) Corporate Disclosure Statement. A corporate disclosure statement, if required pursuant to Supreme Judicial Court Rule 1:21, shall be contained within the brief.

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(3) Table of Contents. The table of contents shall list each section of the brief, including the headings and subheadings of each section, and the page on which they begin. (4) Table of Authorities. The table of authorities shall list each case, statute, rule, and other authority cited in the brief, with references to each page on which it is cited. The authorities shall be listed alphabetically or numerically, as applicable. (5) Statement of Issues. The statement of issues shall concisely and particularly describe each issue presented for review. (6) Statement of Case. The statement of the case shall briefly describe the nature of the appeal, the procedural history relevant to the issues presented for review, and the disposition of these issues by the lower court. (7) Statement of Facts. The statement of the facts shall describe the facts relevant to the issues presented for review, but need not repeat items otherwise included in the statement of the case, and each statement of fact shall be supported by page references to the record appendix or transcript in accordance with Rule 16(e). (8) Summary of Argument. The summary of the argument must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, which must not merely repeat the argument headings, and is to include page references to where in the body of the brief each argument is made. (9) Argument. The argument shall contain:

(A) appellant’s contentions as to why the lower court committed reversible error, with citations to the authorities and parts of the record on which the appellant relies. The appellate court need not pass upon questions or issues not argued in the brief; and (B) for each issue, a concise statement of the applicable standard of review (which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues).

(10) Request for Attorney’s Fees and Costs. Any request for appellate attorney’s fees and costs must be included in the brief, with a citation to the authority therefor. (11) Conclusion. The brief shall contain a short conclusion stating the precise relief sought.

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(12) Signature Block. The signature block shall contain

(A) the printed and signed name(s), Board of Bar Overseers (BBO) number(s), if any, mailing and electronic addresses, and telephone number(s) of the person(s) who prepared the brief, and, if any individual counsel is affiliated with a firm or office, the office name; and (B) the date of signing.

(13) Certificate of Compliance. The certification required by Rule 16(k) shall be contained within the brief. (14) Certificate of Service. The certificate of service required by Rule 13(e) shall be contained within the brief. (15) Addendum. An addendum, contained within the brief, shall consist of the following:

(A) a table of contents listing each item contained therein and the page on which it begins; (B) any appealed judgment or order (including any written opinion, memorandum of decision or findings of fact and conclusions thereon relating to an issue raised on appeal, including a typed version of any pertinent handwritten or oral endorsement, notation, findings, or order made by the lower court); (C) copies of constitutional provisions, statutes, rules, regulations, or relevant parts thereof, as in effect at the relevant time, consideration of which is required for determination of the issues presented; (D) a copy of any unpublished decision cited in the brief; and (E) in a case where geographical facts are of importance, unless appropriate plans are reproduced in the printed record or record appendix, an outline plan (preferably based on exhibits in evidence). This outline plan should be suitable for reproduction on one 1 page of the printed law reports.

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(b) Brief of the Appellee.

(1) The brief of the appellee shall conform to the requirements of Rule 16(a), except as follows:

(A) Agreement with Appellant’s Statements. The appellee’s brief may omit the statement of issues, the statement of the case, and the statement of the facts if the appellee agrees with the statements in the appellant’s brief. If any of these statements is omitted, the brief shall state that the appellee agrees with the appellant’s statement(s). (B) Argument. The argument shall address the contentions raised in the appellant’s argument. (C) Addendum. The addendum shall include copies of items required by Rule 16(a)(15) insofar as pertinent to the issues argued by the appellee, even if included in the addendum of the appellant.

(2) Except with leave of the appellate court or a single justice, an appellee may file only a single brief in response to multiple appellant briefs.

(c) Appellant’s Reply Brief.

(1) The appellant may file a reply brief responding to the appellee’s argument. No new issues shall be raised in the reply brief. If the appellee has cross-appealed, the appellee may file a reply brief responding to the appellant’s argument as to the issues presented by the cross appeal. No further briefs may be filed except with leave of the appellate court or a single justice. The reply briefs shall comply with the requirements of Rule 16(a)(1), (3), (4), (9), and (11)-(15). (2) Except with leave of the appellate court or a single justice, an appellant may file only a single brief in reply to multiple appellee briefs. (3) Except with leave of the appellate court or a single justice, an appellee that has cross-appealed may file only a single brief in reply to the responses of multiple appellants to the issues presented by the cross appeal.

(d) References in Briefs to Parties. Parties will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as “appellant” and “appellee.” It promotes clarity to use the designations used in the lower court, or the actual names of the

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parties, or descriptive terms such as “the employee,” “the injured person,” “the taxpayer,” “the landlord,” etc. If the name of a party has been impounded or has been made confidential by statute, rule, or court order, the party shall preserve confidentiality in briefs and oral arguments. (e) References in Briefs to the Record. Any factual statement in a brief shall be supported by a citation to the volume number(s) and page number(s) at which it appears in an appendix, and if not contained in an appendix, to the volume number(s) and page number(s) at which it appears in the transcript(s) or exhibits volume(s). Only clear abbreviations may be used, for example, R.A. II at 55 (meaning Record Appendix volume II at page 55) or Tr. III at 231-232 (meaning Transcript volume III at pages 231-232). Any record material cited in a brief must be reproduced in an appendix or transcript or exhibit volume. Any record material cited in a brief that is included in the addendum should also include a citation to the addendum. If reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. (f) Reserved. (g) Massachusetts Citations. Citations to Massachusetts decisions, statutes, and regulations shall be made only to the official report of the decision or to the official publication containing the statute or regulation. References to decisions should include, in addition to the page at which the decision begins, a page reference to the particular material therein upon which reliance is placed, and the year of the decision. (h) Length of Briefs in Cases Other Than Cross Appeals. In any case other than a cross appeal, the length of briefs shall comply with Rule 20(a)(2). (i) Briefs in Cases Involving Cross Appeals. In a cross appeal, the length of briefs shall comply with Rule 20(a)(3). The appellee’s principal and response brief shall contain the issues and argument involved in the appellee’s appeal as well as the answer to the brief of the appellant. (j) Briefs in Cases Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal per Rule 10(a)(4), any number of either may join in a single brief or reply brief, provided appropriate notice is given to the clerk and other parties. Any appellant or appellee may adopt by reference any part of the brief of another. (k) Required Certification; Non-complying Briefs. The last page of each brief shall include a certification by the party that the brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Rule 16(a)(15) (addendum); Rule 16(e) (references to the

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record); Rule 18 (appendix to the briefs); Rule 20 (form and length of briefs, appendices, and other documents); and Rule 21 (redaction). The certification shall specify how compliance with the applicable length limit of Rule 20 was ascertained, by stating either (1) the name, size, and number of characters per inch of the monospaced font used and the number of non-excluded pages, or (2) the name and size of the proportionally spaced font used, the number of non-excluded words, and the name and version of the word-processing program used. A brief not complying with these rules (including a brief that does not contain a certification) may be struck from the files by the appellate court or a single justice. (l) Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after the party’s brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited. Filing and service of any letter pursuant to this paragraph shall comply with Rule 13. (m) References to Impounded Material. Upon the filing of any brief or other document containing references to matters that are impounded or have been made confidential by statute, rule, or order, the party shall file a written notice with the clerk, with a copy to all parties, so indicating. Wherever possible, the party shall not disclose impounded material. Where it is necessary to include impounded material in a brief, the cover of the brief shall clearly indicate that impounded information is included therein. (n) Amendment of Brief or Appendix. On motion for good cause, the court may grant leave for a party to file an amended brief or appendix volume. The motion shall describe the nature and reason for the amendment. The party shall file with the motion the amended brief or appendix volume marked as such on the front page or cover. Except as the court otherwise orders, the filing of an amended brief or appendix volume has no effect on any filing deadlines.

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RULE 17. BRIEF OF AN AMICUS CURIAE

Summary The Subcommittee recommends separating the provisions of this rule into separately numbered and named paragraphs. This makes the rule easier to read and specific information easier to locate. The newly-designated provisions are detailed in the explanatory section below.

Explanation of Revisions Rule 17(a). This paragraph contains the first three sentences of existing Rule 17, with minor wording changes: “A brief of an amicus curiae may be filed only (1) by leave of the appellate court or a single justice granted on motion or (2) when solicited by the appellate court, except that consent or leave shall not be required when the brief is presented by the Commonwealth or its officer or agency. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable.” The words "or its officer or agency" have been added at the end of the second sentence to make it clear that an officer or agency of the Commonwealth may also file an amicus brief as of right. This language has been adopted from a similar provision in Fed. R. App. P. 29(a)(2). The paragraph is named “General,” as these sentences discuss amici briefs generally—when they may be filed and the requirement of a motion for leave to file. Rule 17(b). The proposed revisions to this paragraph contain the (modified) fourth sentence of the existing rule (“Any amicus curiae shall file its brief within the time allowed the party . . .”) and is titled “Timing.” The provision is amended from current language such that the amicus brief is due “within 7 days after the time allowed the party whose position as to affirmance or reversal the amicus brief will support . . .” when filing by motion, and at a time fixed by the court when filing in response to a solicitation. This amendment is consistent with the parallel Federal Rule. See Fed. R. App. P. 29(e) . This paragraph deals with the time allotted for the filing of an amici brief so it was named accordingly. In addition, language is added indicating that the appellate court or the single justice, when granting leave for later filing, may specify the period in which that party may answer. The mandatory “shall” is replaced with a permissive “may.” New Rule 17(c). The Subcommittee proposes adding an entirely new paragraph titled “Cover, Length, and Content” to read as follows:

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(c) Cover, Length, and Content. The cover, length, and content of the brief shall comply with Rules 16(a)(1)–(4), (8), (9), and (12)–(15). The brief shall also identify the interest of the amicus curiae. Unless the brief is presented by the Commonwealth or its officer or agency, the statement of interest shall include a declaration that indicates whether (1) a party or a party's counsel authored the brief in whole or in part; (2) a party or a party's counsel contributed money that was intended to fund preparing or submitting the brief; (3) a person or entity--other than the amicus curiae, its members, or its counsel--contributed money that was intended to fund preparing or submitting the brief and, if so, identifying each such person or entity; and (4) the amicus curiae or its counsel represents or has represented one of the parties to the present appeal in another proceeding involving similar issues, or was a party or represented a party in a proceeding or legal transaction that is at issue in the present appeal, and, if so, identifying the proceeding or transaction, its relevance to the present appeal, and the parties involved.

These changes are intended to clarify the requirements for an amicus brief, to ensure that the brief fully and fairly discloses the interest of the amicus curiae, and to discourage the use of amicus briefs as merely another mouthpiece for a party to the appeal. Following Fed. R. App. P. 29(a)(4)(D)-(E), proposed new Rule 17(c) requires the amicus curiae to identify its interest in the case in the amicus brief, so that it will be readily apparent to the appellate court when considering the brief. The disclosure requirements in proposed new Rule 17(c)(1)–(3) reflect the language of Fed. R. App. 29(a)(4)(E), with a few minor changes. As with the analogous federal rule, these provisions are not intended to require the amicus to disclose mere coordination of arguments or sharing of drafts with a party. Proposed new rule 17(c)(4) also seeks disclosure concerning whether "the amicus curiae or its counsel represents or has represented one of the parties to the present appeal in another proceeding involving similar issues, or was a party or represented a party in a proceeding or legal transaction that is at issue in the present appeal," in accord with Aspinall v. Philip Morris Co., Inc., 442 Mass. 381, 385 n.8 (2004), and Champa v. Weston Public Schools, 473 Mass. 86, 87 n.2 (2015). In determining whether another proceeding involves similar issues, the amicus and its counsel need only consider issues that have been explicitly raised in, and that are directly relevant to, the other proceeding and the present appeal. Likewise, in determining whether another proceeding or transaction is at issue in the present appeal, the amicus and its counsel need only consider whether that proceeding or transaction has been explicitly put at issue in the appeal. As in Fed. R. App. P. 29(a)(4)(E), the Commonwealth and its officer or agency are exempted from the requirements in proposed new Rule 17(c)(1)-(4). New Rule 17(d). The last sentence of the existing rule (“The same number of copies of the brief of an amicus curiae shall be filed with the clerk and served on counsel for each party separately represented as required by Rule 19(b)”) is moved to a separate paragraph titled “Filing” and the cross-reference changed to “Rule 19(c)” to conform to changes in Rule 19. In accordance with

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the new definition of “party” in Rule 1(c), “counsel for each party separately represented” is replaced with “each party.” New Rule 17(e). The fifth sentence of the existing rule (“A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.”) is moved to a separate paragraph titled “Oral Argument.”

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Requested Reporter’s Note

Rule 17(c). In determining whether another proceeding involves similar issues, the amicus and its counsel need only consider issues that have been explicitly raised in, and that are directly relevant to, the other proceeding and the present appeal. Likewise, in determining whether another proceeding or transaction is at issue in the present appeal, the amicus and its counsel need only consider whether that proceeding or transaction has been explicitly put at issue in the appeal.

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Rule 17. Brief of an Amicus Curiae (a) General. A brief of an amicus curiae may be filed only (1) by leave of the appellate court or a single justice granted on motion or (2) at the request of when solicited by the appellate court, except that consent or leave shall not be required when the brief is presented by the Commonwealth or its officer or agency. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. (b) Timing. In cases where an amicus curiae seeks by motion to file a brief, Anythe amicus curiae shall file its brief within 7 days after the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the appellate court or a single justice for cause shown shall grant leave for later filing, and in which case the appellate court or the single justice shall may specify within what period any other opposing party may answer respond. In cases where the appellate court solicits amicus briefs, it will establish the time for the filing of those briefs.

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(c) Cover, Length, and Content. The cover, length, and content of the brief shall comply with Rules 16(a)(1)–(4), (8), (9), and (12)–(15).A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons. The brief shall also identify the interest of the amicus curiae. Unless the brief is presented by the Commonwealth or its officer or agency, the statement of interest shall include a declaration that indicates whether (1) a party or a party's counsel authored the brief in whole or in part; (2) a party or a party's counsel contributed money that was intended to fund preparing or submitting the brief; (3) a person or entity--other than the amicus curiae, its members, or its counsel--contributed money that was intended to fund preparing or submitting the brief and, if so, identifying each such person or entity; and (4) the amicus curiae or its counsel represents or has represented one of the parties to the present appeal in another proceeding involving similar issues, or was a party or represented a party in a proceeding or legal transaction that is at issue in the present appeal, and, if so, identifying the proceeding or transaction, its relevance to the present appeal, and the parties involved. (d) Filing. The same number of copies of the brief of an amicus curiae shall be filed with the clerk and served on counsel for each party separately represented as required by Rule 19(bc). (e) Oral argument. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.

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PROPOSED RULE 17 Rule 17. Brief of an Amicus Curiae (a) General. A brief of an amicus curiae may be filed only (1) by leave of the appellate court or a single justice granted on motion or (2) when solicited by the appellate court, except that consent or leave shall not be required when the brief is presented by the Commonwealth or its officer or agency. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. (b) Timing. In cases where an amicus curiae seeks by motion to file a brief, the amicus curiae shall file its brief within 7 days after the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the appellate court or a single justice for cause shown shall grant leave for later filing, in which case the appellate court or the single justice may specify within what period any other party may respond. In cases where the appellate court solicits amicus briefs, it will establish the time for the filing of those briefs.

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(c) Cover, Length, and Content. The cover, length, and content of the brief shall comply with Rules 16(a)(1)–(4), (8), (9), and (12)–(15). The brief shall also identify the interest of the amicus curiae. Unless the brief is presented by the Commonwealth or its officer or agency, the statement of interest shall include a declaration that indicates whether (1) a party or a party's counsel authored the brief in whole or in part; (2) a party or a party's counsel contributed money that was intended to fund preparing or submitting the brief; (3) a person or entity--other than the amicus curiae, its members, or its counsel--contributed money that was intended to fund preparing or submitting the brief and, if so, identifying each such person or entity; and (4) the amicus curiae or its counsel represents or has represented one of the parties to the present appeal in another proceeding involving similar issues, or was a party or represented a party in a proceeding or legal transaction that is at issue in the present appeal, and, if so, identifying the proceeding or transaction, its relevance to the present appeal, and the parties involved. (d) Filing. The same number of copies of the brief of an amicus curiae shall be filed with the clerk and served on each party as required by Rule 19(c). (e) Oral argument. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons.

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RULE 18. APPENDIX TO THE BRIEFS

Summary The Subcommittee’s proposed revisions substantially update and revise this Rule. Rule 18(a) has been reorganized, and several provisions in other paragraphs of the current rule have been relocated to this paragraph. The Subcommittee’s goal is to make the requirements for the contents of the appendix clearer and easier to follow. The Subcommittee proposes updating the title of Rule 18 to “Appendix to the Briefs: Contents, Cost, Filing, and Service.” This more accurately reflects the content of the Rule. In addition, paragraphs (c) and (f) have been deleted, paragraph (d) is incorporated into paragraph (b), and a new paragraph related to reproduction of electronic audio or audiovisual exhibits is proposed. A separate provision is added regarding service of the appendix to highlight and clarify related requirements. Finally, a new Rule 18(a)(1)(F) is added to emphasize the importance of the parties’ responsibility to provide legible and high quality reproductions of exhibits in the record appendix, including that if the original exhibit is in color, it be reproduced in color. The details of each revision are included in the explanatory section below.

Explanation of Revisions Rule 18(a). The entire paragraph has been reorganized so that required items appear in a more logical and organized manner; therefore it appears as though the paragraph has been entirely rewritten. Related items have been grouped together and listed in a numbered format. This reorganization makes the requirements clearer and easier to reference. The Subcommittee recommends requiring all paper appendices to be bound and filed separately from the brief. This requirement furthers the appellate courts’ current paperless practices, which includes scanning paper-filed appendix volumes, and also anticipates the courts’ transition to electronic filing, which requires appendix volumes be filed separately from a brief. Appendix volumes are more easily scanned and viewed in an electronic format when filed separately. Although there was some concern by some Subcommittee members about the expense of separately producing an appendix that may be only a few pages in length, this should be alleviated by electronically filing the document, or if filed on paper, by the reduced number of copies required under the proposed revisions to Rule 19(c). A cautionary note is added to the beginning of the paragraph to alert the parties that the entire record ordinarily is not transmitted by the lower court to the appellate court, and therefore the appendix must include the items listed within the Rule. As currently written, it is not clear that the entire record is not transmitted to the appellate court, resulting in parties not including

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required documents in the appendix. Clarifying that these documents must be included in the appendix will alleviate some of these mistakes. Current language related to filing and service of the appendix has been updated and relocated to new Rule 18(f). Rule 18(a)(1). This provision, as revised, incorporates the requirements that are common to appendices filed in both civil and criminal cases. Rule 18(a)(1)(A). The items are listed in the order in which they should appear in the appendices. Currently, the format of appendices received by the appellate courts is inconsistent, making it difficult to ascertain whether an appendix complies with the Rules and contains all of the necessary parts of the record below. This proposal streamlines the Rule as to the content and arrangement of the appendix, which will in turn reduce confusion for litigants, help to ensure that briefs and appendices are complete and will be accepted for filing in the clerk’s offices, and facilitate review by the justices. Language has been added to require inclusion of the notice(s) of appeal and any written or oral findings or the memorandum of decision issued by the lower court and relevant to the appeal. The rule as amended also clarifies that, even though the judge’s order or decision at issue is included in a brief’s addendum, it also must be included in the appendix. Currently, it is not clear to parties that the appendix must contain items that are reproduced in the brief’s addendum. The duplication is required because of the different purposes served by the addendum and appendix: the addendum is for the convenient reference of the judges and parties, and the appendix is a compendium of all relevant lower court documents and is used for record reference purposes. In addition, the word “relevant” that qualified “docket entries” in the first sentence of 18(a) has been removed. The inclusion of the entire trial court docket provides a better context for review of the issues on appeal. Language is added regarding inclusion in the appendix of any order of impoundment or confidentiality from the lower court. This language currently is included in Rule 18(g), which results in parties frequently overlooking this requirement, and risking the inadvertent public release of confidential information. Including it in Rule 18(a) highlights its importance as a part of the appendix in all impounded cases, alleviates confusion, and reduces the risk of release of information encompassed by an impoundment order. Rule 18(a)(1)(B). The language in new Rule 18(a)(1)(B) is included in the first paragraph of current Rule 18(a).

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Rule 18(a)(1)(C). A new section, numbered 18(a)(1)(C), is proposed requiring that the first volume of a multi-volume appendix include a complete table of contents, properly referencing all volumes of the appendix. The new provision also requires that each individual volume of the appendix include a table of contents for that volume. This rule addition is intended to facilitate review of cases where multi-volume appendices are filed. Rule 18(a)(1)(D) and (E). The language in new Rule 18(a)(1)(D) currently is included in Rule 18(a). An additional provision, numbered 18(a)(1)(E), relocates language from current Rule 18(d) regarding an appendix that contains materials from more than one lower court case. As is provided in the current rule, the appendix must indicate the case to which each document belongs and by whom it was filed. This placement is more logical, as it delineates a requirement for the content of the appendix. Rule 18(a)(1)(F). This new provision requires that, when an appendix includes a reproduction of an exhibit, a high quality reproduction of it is required and, when an original photographic exhibit is in color, it needs to be duplicated clearly, and in color, in the appendix. Frequently, appendices with important exhibits include poor quality images, such as the scan of a partially illegible copy, which makes the exhibits difficult to read, including when viewed on an electronic device. The quality may be further compromised in an electronically-filed document. With the advent of electronic filing in the appellate courts and the use of electronic devices to view appendices, this amendment is necessary to ensure that the highest possible quality images are provided. Rule 18(a)(2). A separate section entitled “Additional Requirements in a Criminal Case” specifies items in addition to those delineated in Rule 18(a)(1) that must be included in the appendix in criminal cases only. A new provision is proposed which imposes an obligation on the appellee in a criminal case to include any part of the record on which the appellee relies that is not otherwise included in the appellant’s appendix. This requirement addresses situations where necessary documents are omitted from both parties’ appendices even though they are discussed in the appellee’s brief. For example, in Commonwealth v. Ubilez, 88 Mass. App. Ct. 814, 816 n.3 (2016), a case involving a warrantless search, the Commonwealth, as appellee, relied on an inventory policy that was submitted into evidence in the lower court. However, neither party included the policy in their record appendices filed with the Appeals Court. The Appeals Court stated, “As the proponent of the evidence (as well as the party bearing the burden of establishing the validity of the warrantless search), it was the Commonwealth’s obligation to include the document in the appellate record.” Id. The Subcommittee included this obligation in the rules to make it clear that the appellee must include such documents in the appendix,

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facilitating judicial review of the lower court decision where a crucial document may have been omitted from the appellant’s appendix. The second paragraph of this new provision provides for inclusion in the appendix of excerpts of the transcript in criminal cases. The Subcommittee proposes deleting Rule 18(c), explained below; thus language referring to deferral of filing the appendix pursuant to paragraph (c) is deleted. Rule 18(b). Amendments to this paragraph retain current requirements related to appendices in civil cases, as well as make additional revisions. The proposal numbers the three free-standing paragraphs of current Rule 18(b) and includes additional amendments consistent with the Global Changes section, supra. In addition, the reference to Rule 18(f) is struck, as the Subcommittee proposes deleting this section for the reasons stated below. Moreover, “Supplemental Appendix” is added to the title of the paragraph to clearly identify the contents of this provision. Additionally, to harmonize deadlines, it is proposed that the timeframe in Rule 18(b)(1), like Rule 10(a)(1), should be triggered by "the lower court's entry and issuance of the notice of assembly of the record to the appellate court and to the parties". This phrase would replace the current phrase "the date on which the clerk notifies the parties that the record has been assembled" in the second sentence. Additional revisions include striking the first portion of existing Rule 18 (d) concerning arrangement of the appendix and moving the requirements to Rule 18(a), which is explained more thoroughly above. The final paragraph of (d) has also been struck. The remaining portion, which outlines the requirements should a party in a civil case wish to reproduce only portions of a transcript, has been retained and included in Rule 18(b)(4). The Subcommittee included new language, found in Rule 18(b)(4), indicating that it may be necessary to reproduce the entire transcript of the relevant court proceedings, otherwise waiver of one or more issues may result. It is essential that parties provide the relevant portions of the transcripts of proceedings in the lower court. The exisiting provision can be a trap for the unwary. Currently, parties will submit incomplete transcripts to support their appellate arguments, when the appellate court reviewing the appeal determines that more of the transcript, or even the entire transcript, was necessary for proper review of the issues on appeal. This language makes clear that a partial transcript may not be appropriate for every civil case. Finally, the Subcommittee added Rule 18(b)(5) to address the filing of supplemental appendices in civil cases. The requirements for filing a supplemental appendix are included in separately numbered sections for ease of reference. Appellees and cross-appellees in civil cases often attempt to file supplemental appendices without knowing that leave of court is required. This

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rule clarifies the process for filing a supplemental appendix in a civil matter and incorporates current practice requiring leave of court for such filing. The new rule promotes judicial efficiency by reducing delays associated with the submission of a supplemental appendix without leave of court. In addition, requiring leave of court in a civil matter encourages parties to abide by the provisions of Rule 18(b) regarding designation and agreement as to the contents of the record appendix at the outset of the case. Rule 18(c). The Subcommittee proposes deleting this paragraph in its entirety. The current Rule permits the appellant to elect, with the court’s permission, to defer preparation of the appendix until after the briefs have been filed. In practice, requests to deter appendix preparation pursuant to Rule 18(c) are rarely filed, and, if filed, in practice are rarely allowed because the procedure is (1) cumbersome, (2) duplicates efforts of the parties in preparing the briefs and appendix, and of the court in storing the materials, and (3) results in the filing of briefs with irregular citations to the parts of the record involved, or the filing of a second or supplemental brief or pages with the correct record references. Striking the language in current Rule 18(c) will streamline the parties’ preparation of briefs and appendices by having them focus on the necessary parts of the record at the outset of the appeal, as contemplated by Rule 18(a). In the rare circumstance where deferral of appendix preparation may be appropriate, other existing rules could be utilized by the party to request such leave. For example, Rule 2, allowing for suspension of the rules by the appellate court or a single justice, and Rule 15(c), governing motions generally, would suffice to enable an appellant to request to defer appendix preparation. In addition, parties that might otherwise have sought leave under the current rule provision because they are concerned about timely filing their brief can seek an enlargement of time citing the need for more time to assemble the appendix. Rule 18(d). The Subcommittee proposes striking the majority of paragraph (d). Most of the contents of this paragraph have been moved to Rule 18(a), as explained above. The portion pertaining to partial transcripts has been moved to Rule 18(b) concerning the contents of the appendix in civil cases. Moving the content of this paragraph to Rule 18(a) streamlines the rule related to the content and arrangement of the appendix to reduce confusion that parties experience in preparing an appendix, resulting in additional inquiries in the clerk’s office and the filing of noncompliant briefs. Moving the portion of the Rule regarding partial transcripts to Rule 18(b) likewise streamlines the rule. Rule 18(c) [formerly Rule 18(e)]. Subparagraph (1) has been revised, reducing the number of exhibits required from five to four. Five copies of the exhibits are not necessary for processing

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in the Appeals Court. Reducing the number of copies of exhibits required promotes judicial economy, minimizes waste, and reduces expenses for the parties. Additionally, the revisions to subparagraph (1) authorize the filing of one electronic copy and one paper copy of the transcript. Parties with multiple volumes of transcripts, in particular, sometimes seek to file an electronic copy of the transcript in order to reduce expenses. Similar to reducing the number of copies of exhibits required, allowing one copy of the transcript to be filed in electronic form also promotes judicial economy, minimizes waste, and reduces expense for the parties. Language is also added to clarify service requirements as to jointly represented parties and self-represented litigants in both subparagraphs (1) and (2). Current service requirements sometimes cause confusion. Both paragraphs now require, “one copy of each shall be served on counsel for all jointly represented parties, and one copy of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or order direct the filing or service of a lesser number.” Clarifying these service requirements depending on the representation status of the parties will reduce this confusion. Rule 18(f). The Subcommittee proposes striking this paragraph. Parties sometimes request to proceed on the original record for purposes of expediency or instead of incurring the expense of preparation of an appendix. Such motions are rarely, if ever, allowed because the appendix materials are an essential part of the documents required by the appellate courts for review of the issues on appeal, and multiple copies of the pertinent record materials are required because multiple justices are involved in reviewing the record. In the rare circumstance where allowance of such a motion may be appropriate, Rule 2, allowing for suspension of the rules by the appellate court or a single justice, and Rule 15(c), governing motions generally, would suffice to enable proceeding in this alternative manner. Rule 18(d) [formerly Rule 18(g)]. This proposal adds a requirement that, when a separate appendix of impounded material must be filed, any lower court order impounding the material must be included in the impounded appendix volume(s). This update codifies current impoundment procedures, and further ensures the protection of the impounded information. New Rule 18(e). The Subcommittee proposes the addition of a new paragraph addressing the reproduction of electronic audio or audiovisual exhibits. This paragraph requires parties who include reproductions of these exhibits in their appendix to notify the clerk, with a copy of this notice sent to all parties, indicating the inclusion of such reproduction and specifying the form in which the material is reproduced.

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Parties sometimes file a reproduction of an electronic audio or audiovisual exhibit but do not alert the appellate court clerk that it has been included in the appendix. This rule requires the filing of a notice with the clerk’s office when a reproduction of an electronic audio or audiovisual exhibit is included in an appendix to ensure that the appellate court is aware that it has been included and can be properly processed and stored. New Rule 18(f). The proposal contains a new paragraph addressing filing and service of the appendix. Much of the language of this rule is taken from the last paragraph of existing Rule 18(a). The Subcommittee proposes including this as a separate numbered paragraph for clarity and reference purposes. Language clarifying the service requirements as to jointly represented parties and self-represented parties is added. The service requirements in these situations sometimes cause confusion. This language makes clear that two copies are served on counsel for jointly represented litigants and two copies are served on each individual self-represented litigant. This clarity will increase compliance with the rule.

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Rule 18(a)(1)(A)(v)(d). The amendment requiring the inclusion of the “judgment, decree, order, or adjudication in question” does not necessarily mean verdict slips must be included in the appendix, but might if the verdict slips are relevant to an issue on appeal. Rule 18(a)(1)(C). This Rule provision is proposed in order to facilitate reading appendices in electronic form, as the appellate courts currently scan paper copies for court personnel’s electronic access. The first volume of the appendix is to include a complete table of contents referencing all volumes of the appendix, and each individual volume must include a table of contents for that volume. The table of contents should identify each separate document included in each respective volume and the page in the volume where the document begins. Further, when a principal document contains multiple documents attached as exhibits, such as a motion for summary judgment package, the table of contents must list the motion and each individual document filed with the motion, and the page of the appendix where each document is located.

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PROPOSED RULE 18—SHOWING REVISIONS AND DELETIONS Rule 18. Appendix to the Briefs: Contents, Cost, Filing, and Service

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(a) Duty of Appellant to Prepare and File; Content of Appendix; Time for Filing; Number of Copies. The appellant shall prepare and file an appendix to the briefs which shall be separately bound. The parties are cautioned that, under Rule 9, the lower court does not ordinarily transmit the entire record to the appellate court. Therefore, the appendix or appendices must include the items specified in this Rule.

(1) Requirements in Civil and Criminal Cases.

(A) The appendix shall contain, in the order hereinafter provided:

(i) a cover that conforms substantially to Rules 20(a)(5)(A) and (a)(6). (ii) a table of contents, listing the parts of the record reproduced therein, and including a detailed listing of exhibits, affidavits, and other documents associated with those parts, with references to the pages of the appendix at which each begins; (iii) the docket entries in the lower court proceedings; (iv) any order of impoundment or confidentiality from the lower court; and (v) in chronological order of filing in the lower court:

(a) any parts of the record relied upon in the brief, and in a criminal case, a copy of the complaint or indictment; (b) any document, or portion thereof, filed in the case relating to an issue which is to be argued on appeal; (c) any findings or memorandum of decision or order by the lower court pertinent to an issue on appeal, including a typed version of any pertinent handwritten or oral endorsement, notation, findings, or order made by the lower court; (d) the judgment, decree, order, or adjudication in question; and (e) the notice(s) of appeal.

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(B) Except where they have independent relevance, memoranda of law in the lower court should not be included in the appendix. (C) The first volume of a multi-volume appendix shall include a complete table of contents referencing all volumes of the appendix, and each individual volume shall include a table of contents for that volume.

(D) The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts, provided that the court may decline to permit the parties to refer to portions of the record omitted from the appendix, unless leave be granted prior to argument. (E) When an appendix contains materials from more than 1 lower court case, the table of contents shall clearly indicate, by reference to the lower court docket number, the case in which each paper was filed and by whom it was filed. (F) Any reproduction of an exhibit in an appendix shall be of high quality to ensure a legible and accurate representation of the exhibit, including color if color is relevant. A color photograph marked or admitted as an exhibit in the lower court and included in the appendix must be reproduced in color. Lower court color-coded forms need not be reproduced in color.

(2) Additional Requirements in a Criminal Case.

(A) The appellee in a criminal case must include any part of the record relied on by the appellee not otherwise included in the appellant’s appendix. (B) The appendix may contain relevant excerpts of the transcript, but should not duplicate the entire transcript transmitted from the lower court to the appellate court.

In civil cases, the appendix shall contain: (1) the relevant docket entries in the proceedings below; (2) any relevant portions of the pleadings, charge, findings, or opinion; (3) the judgment, order, or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. Except where they have independent relevance, memoranda of law in the lower court should not be included in the appendix.

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In criminal cases, the appendix need not contain relevant portions of the transcript, but shall contain: (1) the relevant docket entries in the proceedings below; (2) a copy of the complaint or indictment; and (3) any paper filed in the case relating to an issue which is to be argued on appeal. Any party in a criminal case may include in an appendix to his brief any other parts of the record to which he wishes to direct the particular attention of the court. The appendix shall include any order of impoundment or confidentiality from the lower court. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts, provided that the court may decline to permit the parties to refer to portions of the record omitted from the appendix, unless leave be granted prior to argument. Unless filing is to be deferred pursuant to the provisions of subdivision (c) of this rule, any appendix shall be filed and served with the brief. If separately bound, the same number of copies of the appendix shall be filed with the clerk as required by Rule 19(b) for the filing of the brief, and two shall be served on counsel for each party separately represented, unless the court shall by rule or order direct the filing or service of a lesser number and except as otherwise provided in subdivision (e) of this rule. (b) Determination of Contents of Appendix in Civil Cases; Cost of Producing; Supplemental Appendix.

(1) The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than ten 14 days after the lower court's entry and issuance of the notice of assembly of the record to the appellate court and to the parties, the date on which the clerk notifies the parties that the record has been assembled, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, the appellant shall, within ten 14 days after receipt of the designation, serve upon the appellant a designation of those parts. The parties shall not engage in unnecessary designation and may refer to parts of the record not included in the appendix if permitted by the appellate court or a single justice pursuant to the provisions of Rule 18(a)(1)(D) or 18(f). However, this does not affect the responsibility of the parties to include materials necessary to their appeal, including exhibits, in the appendix.

(2) Where a party designates as part of the record any matter that has been impounded or has been made confidential by statute, rule, or order, the designation shall so state.

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(3) Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented the appellant may so advise the appellee and the appellee shall advance the cost of including such parts. In the event of a dispute as to the parts to be included or the cost advance required to include them, the matter shall be settled by the lower court on motion and notice. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party.

(c) Alternative Method of Designating Contents of the Appendix in Civil Cases; How References to the Record May Be Made in the Briefs When Alternative Method Is Used. In civil cases, if the appellant shall so elect - with leave of the appellate court or a single justice - preparation of the appendix may be deferred until after the briefs have been filed and the appendix may be filed twenty-one days after service of the brief of the appellee. Notice of the election by the appellant to defer preparation of the appendix shall be filed and served by him within ten days after the date on which the clerk notifies the parties that the record has been assembled. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) of this Rule 18 shall apply, except that the designations referred to therein shall be made by each party at the time his brief is served, and a statement of the issues presented shall be unnecessary. If the deferred appendix authorized by this subdivision is employed, references in the briefs to the record may be to the pages of the parts of the record involved, in which event the original paging of each part of the record shall be indicated in the appendix by placing in brackets the number of each page at the place in the appendix where that page begins. Or if a party desires to refer in his brief directly to pages of the appendix, he may serve and file typewritten or page-proof copies of his brief within the time required by Rule 19(a) , with appropriate references to the pages of the parts of the record involved. In that event, within fourteen days after the appendix is filed he shall serve and file copies of the brief in the form prescribed by Rule 20(a) containing references to the pages of the appendix in place of or in addition to the initial references to the pages of the parts of the record involved. No other changes may be made in the brief as initially served and filed, except that typographical errors may be corrected. (d) Arrangement of the Appendix. The pages of the appendix shall be consecutively numbered and the parts of the record which are reproduced therein shall be set out in chronological order. The appendix shall commence with a chronologically ordered list of the parts of the record which it contains, with references to the pages of the appendix at which each part begins. When an appendix relates to two or more cases or to more than two parties, the appendix shall indicate the case to which each paper belongs and by whom it was filed. Unless the party filing the appendix reproduces the entire transcript of testimony,

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(4) Dependent on the issues raised on appeal and the applicable standards of review, it may be necessary for the party filing the appendix to reproduce the entire transcript of the relevant lower court proceedings. Failure to reproduce the entire transcript may result in waiver of the issue. If the party does not order a transcript of the entire proceedings, the party shall, preceding each portion of transcript reproduced, insert a concise statement identifying:

(1A) the witness whose testimony is being reproduced; (2B) the party originally calling him the witness; (3C) the party questioning him the witness; and (4D) the classification of his the witness’s examination (direct, cross, or other); and (E) the transcript volume and page number from which the reproduced testimony is derived.

When matter contained in the reporter’s transcript of proceedings is set out in the appendix, the page number of the original transcript at which such matter may be found may be indicated in brackets immediately before the matter which is set out, unless it already appears on the matter as set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) may be omitted. A question and its answer may be contained in a single paragraph.

(5) Supplemental Appendix in a Civil Case. Except with leave of the appellate court or a single justice granted on motion, an appellee or cross-appellee in a civil case shall not file a supplemental appendix. Where such leave is granted, the appendix shall

(A) be filed and served with the brief pursuant to Rule 18(f); (B) include only materials that are part of the record; (C) not generally include materials already in the appellant’s appendix, unless necessary for context; and (D) be in the form prescribed by Rules 18(a)(1), and 20(a)(5) and (a)(6).

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(ec) Reproduction of Exhibits and Transcripts. Exhibits and transcripts or portions thereof in civil cases, designated for inclusion in the appendix, may be contained in separate volumes, suitablye indexed.

(1) Appeals Court. On appeals to the Appeals Court, five 4 copies of the exhibits volume or volumes, and two 2 copies of the transcript volume or volumes, which may be either 2 paper copies or 1 electronic and 1 paper copy, shall be filed with the appendix and one 1 copy of each shall be served on counsel for each party separately represented, 1 copy of each shall be served on counsel for all jointly represented parties, and 1 copy of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or order direct the filing or service of a lesser number. (2) Supreme Judicial Court. On appeal to the Supreme Judicial Court, and on further appellate review, five 5 copies of the exhibits volume or volumes and five 5 copies of the transcript volume or volumes shall be filed with the appendix and one 1 copy of each shall be served on counsel for each party separately represented, 1 copy of each shall be served on counsel for all jointly represented parties, and 1 copy of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a lesser number. (3) Appeals transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which copies of the exhibits and transcripts have already been filed in the Appeals Court pursuant to this rule, three 3 additional copies of the transcript volume or volumes shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a lesser or greater number.

(f) Hearing of Appeals on the Original Record Without the Necessity of an Appendix. On motion, the appellate court or a single justice may, in specific cases, dispense with the requirement of an appendix and permit appeals to be heard in whole or in part on the original record, with such copies of the record, or relevant parts thereof, as the court may require. (gd) Reproduction of Impounded Materials. If the entire case has been impounded, the cover of the appendix shall clearly indicate that the appendix is impounded. If the entire case has not been impounded, a separate appendix volume shall be filed containing the impounded material and a copy of any lower court order(s) impounding the material, and the cover thereof shall clearly indicate that it contains impounded material.

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(e) Reproduction of electronic audio or audiovisual exhibit. At the time of filing an appendix containing a reproduction of an electronic audio or audio-visual exhibit that was part of the lower court record, the filing party shall file a written notice with the clerk, with a copy of the notice sent to all parties, so indicating the inclusion of such reproduction, and specifying the form in which it is reproduced. (f) Filing and Service. Any appendix shall be filed and served with the brief. The same number of copies of the appendix shall be filed with the clerk as required by Rule 19(b) for the filing of the brief, 2 shall be served on counsel for each party separately represented, 2 shall be served on counsel for all jointly represented parties, and 2 shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or order direct the filing or service of a lesser number and except as otherwise provided in Rule 18(c).

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PROPOSED RULE 18 Rule 18. Appendix to the Briefs: Contents, Cost, Filing, and Service (a) Duty of Appellant to Prepare and File; Content of Appendix; Time for Filing; Number of Copies. The appellant shall prepare and file an appendix to the briefs which shall be separately bound. The parties are cautioned that, under Rule 9, the lower court does not ordinarily transmit the entire record to the appellate court. Therefore, the appendix or appendices must include the items specified in this Rule.

(1) In Civil and Criminal Cases.

(A) The appendix shall contain, in the order hereinafter provided:

(i) a cover that conforms substantially to Rules 20(a)(5)(A) and (a)(6). (ii) a table of contents, listing the parts of the record reproduced therein, and including a detailed listing of exhibits, affidavits, and other documents associated with those parts, with references to the pages of the appendix at which each begins; (iii) the docket entries in the lower court proceedings;

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(iv) any order of impoundment or confidentiality from the lower court; and (v) in chronological order of filing in the lower court:

(a) any parts of the record relied upon in the brief, and in a criminal case, a copy of the complaint or indictment; (b) any document, or portion thereof, filed in the case relating to an issue which is to be argued on appeal; (c) any findings or memorandum of decision or order by the lower court pertinent to an issue on appeal, including a typed version of any pertinent handwritten or oral endorsement, notation, findings, or order made by the lower court; (d) the judgment, decree, order, or adjudication in question; and (e) the notice(s) of appeal.

(B) Except where they have independent relevance, memoranda of law in the lower court should not be included in the appendix. (C) The first volume of a multi-volume appendix shall include a complete table of contents referencing all volumes of the appendix, and each individual volume shall include a table of contents for that volume.

(D) The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts, provided that the court may decline to permit the parties to refer to portions of the record omitted from the appendix, unless leave be granted prior to argument. (E) When an appendix contains materials from more than 1 lower court case, the table of contents shall clearly indicate, by reference to the lower court docket number, the case in which each paper was filed and by whom it was filed. (F) Any reproduction of an exhibit in an appendix shall be of high quality to ensure a legible and accurate representation of the exhibit, including color if color is relevant. A color photograph marked or admitted as an exhibit as an exhibit in

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the lower court must be reproduced in color. Lower court color-coded forms need not be reproduced in color.

(2) Additional Requirements in a Criminal Case.

(A) The appellee in a criminal case must include any part of the record relied on by the appellee not otherwise included in the appellant’s appendix. (B) The appendix may contain relevant excerpts of the transcript, but should not duplicate the entire transcript transmitted from the lower court to the appellate court.

(b) Determination of Contents of Appendix in Civil Cases; Cost of Producing; Supplemental Appendix.

(1) The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than 14 days after the lower court's entry and issuance of the notice of assembly of the record to the appellate court and to the parties, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, the appellant shall, within 14 days after receipt of the designation, serve upon the appellant a designation of those parts. The parties shall not engage in unnecessary designation and may refer to parts of the record not included in the appendix if permitted by the appellate court or a single justice pursuant to the provisions of Rule 18(a)(1)(D). However, this does not affect the responsibility of the parties to include materials necessary to their appeal, including exhibits, in the appendix.

(2) Where a party designates as part of the record any matter that has been impounded or has been made confidential by statute, rule, or order, the designation shall so state.

(3) Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented the appellant may so advise the appellee and the appellee shall advance the cost of including such parts. In the event of a dispute as to the parts to be included or the cost advance required to include them, the matter shall be settled by the lower court on motion and notice. The cost of producing the appendix shall be taxed as costs in the case, but if

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either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party.

(4) Dependent on the issues raised on appeal and the applicable standards of review, it may be necessary for the party filing the appendix to reproduce the entire transcript of the relevant lower court proceedings. Failure to reproduce the entire transcript may result in waiver of the issue. If the party does not order a transcript of the entire proceedings, the party shall, preceding each portion of transcript reproduced, insert a concise statement identifying:

(A) the witness whose testimony is being reproduced; (B) the party originally calling the witness; (C) the party questioning the witness; (D) the classification of the witness’s examination (direct, cross, or other); and (E) the transcript volume and page number from which the reproduced testimony is derived.

(5) Supplemental Appendix in a Civil Case. Except with leave of the appellate court or a single justice granted on motion, an appellee or cross-appellee in a civil case shall not file a supplemental appendix. Where such leave is granted, the appendix shall

(A) be filed and served with the brief pursuant to Rule 18(f); (B) include only materials that are part of the record; (C) not generally include materials already in the appellant’s appendix, unless necessary for context; and (D) be in the form prescribed by Rules 18(a)(1), and 20(a)(5) and (a)(6).

(c) Reproduction of Exhibits and Transcripts. Exhibits and transcripts or portions thereof in civil cases, designated for inclusion in the appendix, may be contained in separate volumes, suitably indexed.

(1) Appeals Court. On appeal to the Appeals Court, 4 copies of the exhibit volume or volumes, and 2 copies of the transcript volume or volumes, which may be either 2 paper

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copies or 1 electronic and 1 paper copy, shall be filed with the appendix and 1 copy of each shall be served on counsel for each party separately represented, 1 copy of each shall be served on counsel for all jointly represented parties, and 1 copy of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or order direct the filing or service of a lesser number. (2) Supreme Judicial Court. On appeal to the Supreme Judicial Court, and on further appellate review, 5 copies of the exhibit volume or volumes and 5 copies of the transcript volume or volumes shall be filed with the appendix and 1 copy of each shall be served on counsel for each party separately represented, 1 copy of each shall be served on counsel for all jointly represented parties, and 1 copy of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a lesser number. (3) Appeals transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which copies of the exhibits and transcripts have already been filed in the Appeals Court pursuant to this rule, 3 additional copies of the transcript volume or volumes shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a lesser or greater number.

(d) Reproduction of Impounded Materials. If the entire case has been impounded, the cover of the appendix shall clearly indicate that the appendix is impounded. If the entire case has not been impounded, a separate appendix volume shall be filed containing the impounded material and a copy of any lower court order(s) impounding the material, and the cover thereof shall clearly indicate that it contains impounded material. (e) Reproduction of electronic audio or audiovisual exhibit. At the time of filing an appendix containing a reproduction of an electronic audio or audio-visual exhibit that was part of the lower court record, the filing party shall file a written notice with the clerk, with a copy of the notice sent to all parties, so indicating the inclusion of such reproduction, and specifying the form in which it is reproduced. (f) Filing and Service. Any appendix shall be filed and served with the brief. The same number of copies of the appendix shall be filed with the clerk as required by Rule 19(b) for the filing of the brief, 2 shall be served on counsel for each party separately represented, 2 shall be served on counsel for all jointly represented parties, and 2 shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or order direct the filing or service of a lesser number and except as otherwise provided in Rule 18(c).

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RULE 19. FILING AND SERVICE OF BRIEFS AND MOTIONS

Summary This Rule has been substantially revised. The updates to this Rule include a new provision specific to the time for filing and serving briefs in cases involving cross appeals, a change to the number of briefs to be filed in the Appeals Court, a clarification of the filing and service requirements, and the consequences for appellants and appellees who fail to file briefs. The revisions are detailed in the explanatory section below. In addition, reference to G.L. c. 278, § 33E is replaced with "first degree murder appeals" throughout the rule.

Explanation of Revisions Title. “Certain” was added before “Motions” in the title of this Rule in order to ensure the title of the Rule clearly reflects the scope of the Rule. This rule governs only certain motions (for new trial in capital case, see 19(d)(1)), versus Rule 15 which governs motions generally. Rule 19(a). The rule for timely filing and serving briefs has been separated into two paragraphs: paragraph (a) concerns cases where there is no cross appeal, and paragraph (b) concerns cases involving cross appeals. Expressly excluded from both Rule provisions are briefs filed pursuant to Rule 19(e), 11(g), and 27.1(f). Proposed Rule 19(a)(2) clarifies that in an appeal involving multiple appellants, the appellee’s brief is not due until 30 days after service of the last appellant brief. In addition, proposed Rule 19(a)(3) concerns the time for filing of a reply brief. The proposed Rule revises the existing provision to state that it must be filed by the earlier of within 14 days of service of the appellee’s brief or within 7 days of argument. New Rule 19(b). This new provision concerns the time for serving and filing briefs in cases involving cross appeals, and is modelled on Federal Rule of Appellate Procedure 28.1(f). 19(c) [formerly Rule 19(b)]. The Subcommittee proposes a change to the number of briefs to be filed in the Appeals Court from 7 copies of each brief and appendix to 4 copies of each. As proposed in Rule 18(f), supra, the Subcommittee added language clarifying the service requirements as to jointly represented parties and self-represented litigants. The service requirements in these situations sometimes cause confusion. The new language clarifies that two copies are to be served on counsel for jointly represented litigants and two copies are to be served on each individual self-represented litigant. This clarity will increase compliance with the rule.

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The proposed revisions also increase the number of briefs to be filed with the Supreme Judicial Court in appeals transferred to that court from the Appeals Court to compensate for the reduction in the number of paper copies required by the Appeals Court. Rule 19(d) [formerly Rule 19(c)]. The Subcommittee recommends revising the language of the existing Rule to clarify that an appellate court may, upon motion or sua sponte, dismiss an appeal if an appellant fails to file a brief (other than a reply brief). In addition, a provision has been added requiring any appellee who will not be filing a brief to notify the court. This notification is essential to the timely disposition of an appeal, as otherwise, the court, and the other parties to the appeal, await the filing of the brief, which can result in a significant delay in the timing of consideration by a panel and disposition of the appeal. Timely notification is considered to be within the time period allotted for the filing of the brief. An additional provision has been added that, if an appellee fails to file a brief within the time provided by the rule, or any enlargement granted by the court, the appellate court may, upon motion or sua sponte, deem the case ready for consideration by the court. Rule 19(e) [formerly Rule 19(d)]. The title of this section is changed to reflect the fact that G. L. c. 278, § 33E was amended in 2012 to include certain habitual offender convictions. The title change clarifies that the extraordinary provisions of rule 19 (e) apply to first degree murder appeals only. No determination has been made that these provisions will apply to those habitual offender appeals that are now covered by G. L. c. 278, § 33E. References to Rule 19(e) have been updated in the remainder of the rule to reflect the new title.

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PROPOSED RULE 19—SHOWING REVISIONS AND DELETIONS Rule 19. Filing and Serving of Briefs and Certain Motions (a) Time for Serving and Filing Briefs in All Cases Except Cross Appeals.

Except as provided in section Rule 19(ed) (first degree murder appeals), of this rule, and in Rule 11(g)(4) concerning the filing of briefs on (direct appellate review), and in Rule 27.1(f) concerning the filing of briefs on (further appellate review):, (1) Appellant Brief. the The appellant shall serve and file his a brief within 40 days after the date on which the appeal is docketed in the appellate court.

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(2) Appellee Brief. The appellee shall serve and file his a brief within thirty 30 days after service of the brief of the appellant (or, in the case of multiple appellants, service of the last appellant brief). (3) Reply Brief. Except by leave of court, any reply brief must be served and filed by the earlier of

(A) 14 days after service of the brief of the appellee (or, in the case of multiple appellees, service of the last appellee brief), or (B) 7 days before argument. The appellant may serve and file a reply brief within fourteen days after service of the brief of the appellee, but, except by leave of the appellate court or a single justice, for good cause shown, a reply brief must be filed at least three days before the first day of the sitting at which the case is in order for argument.

(b) Time for Serving and Filing Briefs in Cases Involving Cross Appeals.

Except as provided in Rule 19(e) (first degree murder appeals), Rule 11(g) (direct appellate review), and Rule 27.1(f) (further appellate review), the following briefs shall be due when stated: (1) Appellant’s Principal Brief. The appellant/cross-appellee shall serve and file a brief within 40 days after the date on which the appeal is docketed in the appellate court. (2) Appellee’s Principal and Response Brief. The appellee/cross-appellant shall serve and file a brief within 30 days after service of the brief of the appellant (or, in the case of multiple appellants, service of the last appellant brief). (3) Appellant’s Response and Reply Brief. The appellant/cross-appellee reply brief must be served and filed within 30 days after service of the brief of the appellee/cross-appellant. (4) Appellee’s Reply Brief. Except by leave of court, any reply brief must be served and filed by the appellee/cross-appellant by the earlier of (A) 14 days after service of the brief of the appellee (or, in the case of multiple appellees, service of the last appellee brief), or (B) 7 days before argument.

(bc) Number of Copies to Be Filed and Served.

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(1) Appeals Court. On appeals to the Appeals Court, seven 4 copies of each brief and appendix shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser different number, and two 2 copies shall be served on counsel for each party separately represented, 2 copies of each shall be served on counsel for all jointly represented parties, and 2 copies of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a different number. (2) Supreme Judicial Court. On appeal to the Supreme Judicial Court, an original and seventeen 17 copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser or greater different number, and two 2 copies shall be served on counsel for each party separately represented, 2 copies of each shall be served on counsel for all jointly represented parties, and 2 copies of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a different number. (3) Appeals transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which briefs have already been filed in the Appeals Court, eleven 14 additional copies of each brief shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a lesser or greater number.

(cd) Consequence of Failure to File Briefs. If an appellant fails to file his a brief, other than a reply brief, within the time provided by this rule, or within the time as extended, the appellate court may, upon motion or sua sponte, dismiss the appeal.an appellee may move for dismissal of the appeal. If an appellee fails to file his brief, he will not be heard at oral argument except by permission of the appellate court. Any appellee who elects to not to file a principal brief shall timely notify the appellate court and all parties that no brief will be filed. If an appellee fails to file a brief within the time provided by this rule, or within the time as extended, the appellate court may, upon motion or sua sponte, deem the case ready for consideration by the appellate court. An appellee who fails to file a timely brief will not be heard at oral argument except by permission of the appellate court. (de) Rule for Appeals Pursuant to Massachusetts General Laws Chapter 278, sec. § 33E .First Degree Murder Appeals.

(1) In the case of a direct appeal by an appellant who has been convicted of first degree murder, the appellant shall within one hundred and twenty 120 days after the date on

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which the appeal is docketed in the Supreme Judicial Court: (1) serve and file the appellant’s brief; (2) serve and file a motion for new trial; or (3) for good cause shown, seek a further enlargement of time for filing a brief or a motion for new trial. The Commonwealth shall serve and file its brief within ninety 90 days after service of the brief of the appellant. The appellant may serve and file a reply brief within the thirty 30 days after service of the brief of the Commonwealth. (2) If during the pendency of the direct appeal a motion for new trial is remanded to the Superior Court, the direct appeal of the conviction shall will ordinarily be stayed until the motion is decidedpending decision on the motion for new trial. The matter shall be heard and determined expeditiously in the Superior Court. The appellant shall file with the Clerk of the Supreme Judicial Court for the Commonwealth status reports as directed by the Court at thirty-day intervals. An appeal by the defendant from the denial of a motion for new trial shall be consolidated with the direct appeal. An appeal by the Commonwealth or by the defendant from the determination of a motion for new trial shall have the same docket number as the direct appeal. The Clerk of the Supreme Judicial Court for the Commonwealth shall establish a briefing schedule.

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PROPOSED RULE 19

Rule 19. Filing and Serving of Briefs and Certain Motions (a) Time for Serving and Filing Briefs in All Cases Except Cross Appeals.

Except as provided in Rule 19(e) (first degree murder appeals), Rule 11(g)(4) (direct appellate review), and Rule 27.1(f) (further appellate review): (1) Appellant Brief. The appellant shall serve and file a brief within 40 days after the date on which the appeal is docketed in the appellate court. (2) Appellee Brief. The appellee shall serve and file a brief within 30 days after service of the brief of the appellant (or, in the case of multiple appellants, service of the last appellant brief). (3) Reply Brief. Except by leave of court, any reply brief must be served and filed by the earlier of

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(A) 14 days after service of the brief of the appellee (or, in the case of multiple appellees, service of the last appellee brief), or (B) 7 days before argument.

(b) Time for Serving and Filing Briefs in Cases Involving Cross Appeals.

Except as provided in Rule 19(e) (first degree murder appeals), Rule 11(g) (direct appellate review), and Rule 27.1(f) (further appellate review), the following briefs shall be due when stated: (1) Appellant’s Principal Brief. The appellant/cross-appellee shall serve and file a brief within 40 days after the date on which the appeal is docketed in the appellate court. (2) Appellee’s Principal and Response Brief. The appellee/cross-appellant shall serve and file a brief within 30 days after service of the brief of the appellant (or, in the case of multiple appellants, service of the last appellant brief). (3) Appellant’s Response and Reply Brief. The appellant/cross-appellee reply brief must be served and filed within 30 days after service of the brief of the appellee/cross-appellant. (4) Appellee’s Reply Brief. Except by leave of court, any reply brief must be served and filed by the appellee/cross-appellant by the earlier of (A) 14 days after service of the brief of the appellee (or, in the case of multiple appellees, service of the last appellee brief), or (B) 7 days before argument.

(c) Number of Copies to Be Filed and Served.

(1) Appeals Court. On appeal to the Appeals Court, 4 copies of each brief and appendix shall be filed with the clerk, unless the court by order in a particular case shall direct a different number, and 2 copies shall be served on counsel for each party separately represented, 2 copies of each shall be served on counsel for all jointly represented parties, and 2 copies of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a different number. (2) Supreme Judicial Court. On appeal to the Supreme Judicial Court, an original and 17 copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a different number, and 2 copies shall be served on counsel for each

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party separately represented, 2 copies of each shall be served on counsel for all jointly represented parties, and 2 copies of each shall be served on each self-represented party to the appeal, unless the parties agree in writing or the court shall by rule or by order direct the filing or service of a different number. (3) Appeals transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which briefs have already been filed in the Appeals Court, 14 additional copies of each brief shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a lesser or greater number.

(d) Consequence of Failure to File Briefs. If an appellant fails to file a brief, other than a reply brief, within the time provided by this rule, or within the time as extended, the appellate court may, upon motion or sua sponte, dismiss the appeal. Any appellee who elects to not to file a principal brief shall timely notify the appellate court and all parties that no brief will be filed. If an appellee fails to file a brief within the time provided by this rule, or within the time as extended, the appellate court may, upon motion or sua sponte, deem the case ready for consideration by the appellate court. An appellee who fails to file a timely brief will not be heard at oral argument except by permission of the appellate court. (e) First Degree Murder Appeals.

(1) In the case of a direct appeal by an appellant who has been convicted of first degree murder, the appellant shall within 120 days after the date on which the appeal is docketed in the Supreme Judicial Court: (1) serve and file the appellant’s brief; (2) serve and file a motion for new trial; or (3) for good cause shown, seek a further enlargement of time for filing a brief or a motion for new trial. The Commonwealth shall serve and file its brief within 90 days after service of the brief of the appellant. The appellant may serve and file a reply brief within the 30 days after service of the brief of the Commonwealth. (2) If during the pendency of the direct appeal a motion for new trial is remanded to the Superior Court, the direct appeal of the conviction will ordinarily be stayed until the motion is decided. The matter shall be heard and determined expeditiously in the Superior Court. The appellant shall file with the Clerk of the Supreme Judicial Court for the Commonwealth status reports as directed by the Court. An appeal by the defendant from the denial of a motion for new trial shall be consolidated with the direct appeal. An appeal by the Commonwealth or by the defendant from the determination of a motion for new trial shall have the same docket number as the direct appeal. The Clerk of the Supreme Judicial Court for the Commonwealth shall establish a briefing schedule.

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RULE 20. FORM OF BRIEFS, APPENDICES, AND OTHER PAPERS

Summary The Subcommittee proposes updates to this Rule, including revising the title to indicate that the Rule governs both the format and length of briefs, appendices, and other documents filed in the appellate courts. The title of Rule 20(a) is amended to clarify that the form requirements also apply to applications for and responses to further and direct appellate review. In addition, the word count alternative to page limits in setting the permissible lengths of briefs is added to this Rule. A new paragraph is proposed governing the format and length of appendices to facilitate the appellate courts’ use of electronically scanned appendices. The brief cover color for an intervenor has been updated and two more requirements have been added for the front covers of briefs and applications for and responses to direct and further appellate review. The language regarding the form of motions is also updated to clarify the related requirements. Lastly, the language of the Rule is modernized by deleting technologically obsolete language.

Explanation of Revisions Title. The Subcommittee proposes amending the title of this Rule to indicate that it applies to both the form and length of briefs, appendices, and other documents. It is also revised to reflect the global change from “papers” to “documents.” Rule 20(a). The Subcommittee proposes amending the title of this paragraph to indicate that it applies both to the form and length of briefs, appendices, and to applications for, and responses to, direct and further appellate review. Throughout this paragraph technologically obsolete language has also been removed. In addition, the paragraphs have been numbered, reordered, and revised, and new paragraphs have been added for clarity and ease of reference. The proposed changes and explanations for each paragraph are detailed below. Rule 20(a)(1). The first paragraph of the Rule addresses the form of briefs, appendices, and applications for, and responses to, direct and further appellate review, specifying required page sizes, duplication and binding, and requiring the inclusion of a cover. Reference to the format of appendices in the first paragraph of the current Rule (regarding thickness and text appearing on both sides of the page) is deleted and the content, with proposed revisions, is relocated to a new subparagraph (a)(5). New Rule 20(a)(2) & 20(a)(3). The Subcommittee proposes adding two new provisions to address the length of briefs. Paragraph (a)(2) addresses the length of briefs in all cases other than

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cross appeals, and paragraph (a)(3) addresses the length of briefs in cross appeals. The Subcommittee proposes an amendment that would allow, as does Federal Rule of Appellate Procedure 32(a)(7), the use of a word limit together with a proportionally spaced font, as an alternative to a page limit, in setting the permissible lengths of principal and reply briefs. The proposed word limits are not intended to allow for longer documents. In fact, the proposed limits allow no more than the amount of text permitted under the current rules. For a comprehensive discussion of the Subcommittee’s word count proposal, please refer to the global changes section of this document, supra.

Consistent with the Federal Rules, proposed Rule 20(a)(3) provides that in a cross-appeal, an appellee's principal and response brief may contain up to 60 pages or 12,500 words.

Rule 20(a)(4). The existing second paragraph of Rule 20(a) has been numbered as paragraph (4) and titled “Format of Text” in the Subcommittee’s proposals; therefore, the subparagraphs have been changed from numbers to letters to be consistent with the designation of paragraphs throughout the Rules. The revisions to this paragraph include the addition of applications for and responses to direct and further appellate review to clarify that the text requirements also apply to these documents. In addition, current Rule 20(a)(2), renumbered as Rule 20(a)(4)(B), has been updated to include the word count alternative to the page limit, as described above (see the word count proposal description in the global changes section and Rules 20(a)(2) and (3), supra). Rule 20(a)(5). The Subcommittee proposes a new subparagraph to address the format and length of appendices. In particular, the Rule provides that the thickness of any single volume of the appendix may not exceed 1.5", and that appendices filed on paper may have text appearing on both sides of the page. The proposal includes requirements that the cover of each volume of the appendix be designated by a Roman numeral, that each volume of the appendix be separately paginated with the cover designated as page 1, and that pages thereafter be numbered consecutively through the volume’s final page. This provision is proposed in order to facilitate reading appendices in electronic form. This amendment is warranted because the appellate courts currently scan paper briefs and appendices to create electronic duplicates (PDFs) for the justices’ review, and also have launched electronic filing programs allowing briefs and appendices formatted consistent with these rules. Without this requirement, the page numbers in electronically scanned appendices are significantly different than the corresponding paper version. Rule 20(a)(6). The Subcommittee proposes that the current last paragraph of Rule 20(a) regarding the color and contents of the covers of various documents be separated into two new paragraphs, the first addressing the color of the cover of a brief, appendix, and application for or

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response to direct or further appellate review, and the second addressing the contents of the cover. The proposed amendments to this Rule include changing a party intervening in the appeal’s brief cover to be yellow. Currently, these briefs are required to be the same color as amicus briefs, which can be confusing. This does not apply to parties who were intervenors in the lower court, who could be appellees or appellants. The majority of intervenors filing briefs in the appellate courts had intervened in the lower court and thus file an appellant or appellee brief. In addition, the proposed changes to this Rule clarify that the cover to applications for or responses to direct or further appellate review are white. Finally, the phrase "if separately bound" is removed from the existing requirement that appendix covers be white is removed, because under proposed rule 18(a) all appendices must be separately bound. The Subcommittee recommends amending the requirements for the contents of the cover of these documents. These proposed amendments include revising the word “e-mail address” to “electronic address,” clarifying that address means both “mailing and electronic” address, and the addition of applications for, and responses to, direct and further appellate review. The amendments also add another requirement: the notification required by Rule 16(m) where it is necessary to include impounded material in a brief. Rule 20(a)(7). The first sentence of the existing third paragraph of Rule 20(a) has been converted into a stand-alone paragraph. The Subcommittee proposes that this sentence stand alone in order to separate the requirements for the form and length of briefs and appendices from the consequences should a brief or appendix not be in substantial compliance with Rule 20. This makes the Rule more readable and clear. In addition, as has been done throughout this Rule, applications for and responses to direct and further appellate review have been added to this paragraph in order to clarify that this Rule likewise applies to those documents. Rule 20(b)(1). The Subcommittee proposes separating existing Rule 20 into two separate paragraphs. The first paragraph becomes (1) under this proposal. All but the first sentence of this paragraph is deleted, “petition for rehearing” is changed to “motion for reconsideration or modification,” and an express reference to Rule 27(b) is added. As described more fully in the proposed revisions to Rule 27, infra, “motion for reconsideration or modification” is a more accurate description of the contents and requested relief than “petition for rehearing.” Therefore, the Subcommittee proposes changing the title of these documents to be more accurate. In addition, the language prescribing the form of a motion for reconsideration or modification is confusing because it is found in multiple provisions of the Rules. Directly

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referencing Rule 27 will reduce confusion for parties as to the format of a motion for reconsideration or modification. Finally, the Subcommittee proposes deleting language referencing typewritten motions and carbon copies. This language is antiquated, and its deletion updates the Rules to reflect current practice. Rule 20(b)(2). The remaining paragraphs have been renumbered as (2). Specifying in one paragraph the required structure for motions promotes clarity for parties submitting motions, and will promote a consistent format for review by the court. Lastly, the Subcommittee proposes adding language to specify that “address” includes both the electronic and mailing address of the party, and requiring the date of filing to be included. Methods for electronic transmission of information change rapidly and this proposal allows for flexibility in the Rules to accommodate future methods of transmission, and is consistent with other proposed changes to the Rules.

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PROPOSED RULE 20—SHOWING REVISIONS AND DELETIONS Rule 20. Form and Length of Briefs, Appendices, and Other PapersDocuments (a) Form and Length of Briefs, Appendices, and Applications for and Responses to Direct and Further Appellate Review and the Appendix.

(1) Form. Except on order of the appellate court or a single justice, or if filed on behalf of a party allowed to proceed in forma pauperis, all briefs, and appendices, and applications for and responses to direct and further appellate review shall be produced by any duplicating or copying process which produces a clear black image on white paper. However produced, the page shall be eight and one-half 8.5 inches in width and eleven 11 inches in height. Pages shall be firmly bound at the left, by saddle-wiring, side-wiring, stapling, or sewing. If side-wired or sewn, a strong and a paper cover or front page shall be used. A transcript of testimony or a report of evidence may be included as part of the appendix and may be reproduced by Xerography or a similar process. No single volume of the appendix shall be more than one and one-half inches thick. The text of appendices may appear on both sides of the page. (2) Length of Briefs in All Cases Other Than Cross Appeals. The following rules shall govern the length of briefs in all cases other than cross appeals:

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(A) A principal brief shall either be produced in a monospaced font and not contain more than 50 pages, or be produced in a proportionally spaced font and not contain more than 10,000 words. (B) A reply brief shall either be produced in a monospaced font and not contain more than 20 pages, or be produced in a proportionally spaced font and not contain more than 4,000 words. (C) An amicus curiae brief shall either be produced in a monospaced font and not contain more than 35 pages, or be produced in a proportionally spaced font and not contain more than 7,000 words. (D) In all briefs, only those parts required by Rule 16(a)(5)-(11), including headings, footnotes, and quotations, count towards the length limits. (E) A motion to exceed these length limits shall specify the relevant issue or issues and why such issues merit additional pages or words, and will not be granted except for extraordinary reasons. (F) The certification required pursuant to Rule 16(k) shall specifically state how compliance with the length limits of this rule was ascertained, as specified therein.

(3) Length of Briefs in Cases Involving Cross Appeals. The following rules shall govern the length of briefs in cases involving cross appeals:

(A) An appellant’s principal brief shall either be produced in a monospaced font and not contain more than 50 pages, or be produced in a proportionally spaced font and not contain more than 10,000 words. (B) An appellee’s principal and response brief shall either be produced in a monospaced font and not contain more than 60 pages, or be produced in a proportionally spaced font and not contain more than 12,500 words. (C) An appellant’s response and reply brief shall either be produced in a monospaced font and not contain more than 50 pages, or be produced in a proportionally spaced font and not contain more than 10,000 words.

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(D) An appellee’s reply brief shall either be produced in a monospaced font and not contain more than 20 pages, or be produced in a proportionally spaced font and not contain more than 4,000 words. (E) An amicus curiae brief shall either be produced in a monospaced font and not contain more than 35 pages, or be produced in a proportionally spaced font and not contain more than 7,000 words. (F) In all briefs, only those parts required by Rule 16(a)(5)-(11), including headings, footnotes, and quotations, count towards the length limits. (G) A motion to exceed these length limits shall specify the relevant issue or issues and why such issues merit additional pages or words, and will not be granted except for extraordinary reasons. (H) The certification required pursuant to Rule 16(k) shall specifically state how compliance with the length limits of this rule was ascertained, as specified therein.

(4) Format of Text. The following rules shall govern the format of text on a the pages of for all briefs and applications for and responses to direct or further appellate review:

(1A) The top and bottom margins shall be at least one 1 inch. The left and right margins shall be at least one and one-half 1.5 inches. Thus, the text area should not be more than five and one-half 5.5 inches in width nor more than nine 9 inches in height. Page numbers may appear in the margin. (2B) The typeface shall be either (i) a monospaced font (such as pica type produced by a typewriter or a Courier New font produced by a computer word processor) of 12 point or larger size and not exceeding 10.5 characters per inch; or (ii) a proportionally spaced font (such as Times New Roman), of 12 point or larger size. (3C) Text shall be double-spaced, except that argument headings, footnotes, and indented quotations may be single-spaced. For purposes of this rule, single spacing means not more than six 6 lines of text per vertical inch; double spacing means not more than three 3 lines of text per vertical inch and not more than twenty-seven 27 double-spaced lines on a page.

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(4D) The text may appear on both sides of the page.

(5) Format and Length of Appendix. The following rules shall govern the format of appendices:

(A) The cover of each volume of the appendix shall be designated by a Roman numeral and paginated as page 1, and pages thereafter numbered consecutively through the volume’s last page. The cover shall also contain the information identified in Rule 20(a)(6)(B). (B) Each volume of the appendix shall be separately paginated, beginning at page 1. (C) No single volume of an appendix, transcript or exhibit shall be more than 1.5" thick. (D) The text of appendices filed on paper may appear on both sides of the page.

Briefs or appendices not in substantial compliance with these rules shall not be received unless the appellate court or a single justice shall otherwise order. (6) Color and Contents of Cover. The following rules shall govern the color and contents of all briefs, appendices, and applications for or responses to direct or further appellate review:

(A) Color. The cover of the brief of the appellant shall be blue; that of the appellee, red; that of an party intervening in the intervenorappeal, yellow; that of an or amicus curiae, green; that of any reply brief, gray. The cover of the appendix, if separately bound, shall be white. The cover or front page of an application for or response to direct or further appellate review shall be white. A color cover is not required for any electronically-filed brief.

(B) Contents. The covers of the briefs and appendices, if separately produced, in addition to the requirements for covers of appendices in Rule 20(a)(5), and of applications for or responses to direct or further appellate review shall contain:

(1i) the name of the court and the number of the case;

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(2ii) the title of the case (see Rule 10(a)); (3iii) the nature of the proceeding in the appellate court (e.g., Appeal; Application for Review) and the name of the lower court, agency, or board below; (4iv) the title of the document (e.g., Brief for Appellant, Appendix); and (5v) the name(s), Board of Bar Overseers (BBO) number(s), if any, mailing and electronic addresses, and telephone number(s), and e-mail addresses of the person(s) filing the document, if any, of counsel representing the party on whose behalf the document is filed, and, if any individual counsel is affiliated with a firm or office, the officefirm name; and (vi) where it is necessary to include impounded material in a brief, the notification required by Rule 16(m).

(7) Substantial Compliance Required. Briefs, appendices, or applications for or responses to direct or further appellate review not in substantial compliance with these rules shall not be received unless the appellate court or a single justice shall otherwise order.

(b) Form of Other PapersDocuments.

(1) Petitions Motions for Reconsiderationrehearing. Motions for reconsideration shall be produced in a manner prescribed by Rule 27(b) subdivision (a). Motions and other papers may be produced in like manner, or they may be typewritten in pica type upon opaque, unglazed paper eight and one half by eleven inches in size. Lines of typewritten text shall be double spaced. Consecutive sheets shall be attached at the left margin. Carbon copies may be used for filing and service if they are legible. A motion or other paper addressed to the court shall contain a caption setting forth the name of the court, the title of the case, the file number, and a brief descriptive title indicating the purpose of the paper; said caption shall appear on the first page, typed so as to be legible. The cover of applications for direct appellate review and for further appellate review shall be white.

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(2) Motions and Other Documents.

(A) A motion or other document addressed to an appellate court shall contain a caption setting forth the name of the court, the title of the case, the docket number, and a brief descriptive title indicating the purpose of the document; said caption shall appear on the first page. Lines of text shall be double-spaced. Consecutive pages shall be attached by a single staple at the upper left margin. (B) Such motion or paper document shall contain, at the end thereof,

(i) the printed and signed name(s), Board of Bar Overseers (BBO) number(s), if any, mailing and electronic addresses, and telephone number(s) of the person(s) filing the documentcounsel, if any, representing the party on whose behalf the motion or paper is filed, and, if any individual counsel is affiliated with a firm or office, the firmoffice name, and (ii) the date of signing.

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PROPOSED RULE 20

Rule 20. Form and Length of Briefs, Appendices, and Other Documents (a) Form and Length of Briefs, Appendices, and Applications for and Responses to Direct and Further Appellate Review.

(1) Form. Except on order of the appellate court or a single justice, or if filed on behalf of a party allowed to proceed in forma pauperis, all briefs, appendices, and applications for and responses to direct and further appellate review shall be produced by any duplicating or copying process which produces a clear black image on white paper. However produced, the page shall be 8.5 inches in width and 11 inches in height. Pages shall be firmly bound at the left, and a cover or front page shall be used. (2) Length of Briefs in All Cases Other Than Cross Appeals. The following rules shall govern the length of briefs in all cases other than cross appeals:

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(A) A principal brief shall either be produced in a monospaced font and not contain more than 50 pages, or be produced in a proportionally spaced font and not contain more than 10,000 words. (B) A reply brief shall either be produced in a monospaced font and not contain more than 20 pages, or be produced in a proportionally spaced font and not contain more than 4,000 words. (C) An amicus curiae brief shall either be produced in a monospaced font and not contain more than 35 pages, or be produced in a proportionally spaced font and not contain more than 7,000 words. (D) In all briefs, only those parts required by Rule 16(a)(5)-(11), including headings, footnotes, and quotations, count towards the length limits. (E) A motion to exceed these length limits shall specify the relevant issue or issues and why such issues merit additional pages or words, and will not be granted except for extraordinary reasons. (F) The certification required pursuant to Rule 16(k) shall specifically state how compliance with the length limits of this rule was ascertained, as specified therein.

(3) Length of Briefs in Cases Involving Cross Appeals. The following rules shall govern the length of briefs in cases involving cross appeals:

(A) An appellant’s principal brief shall either be produced in a monospaced font and not contain more than 50 pages, or be produced in a proportionally spaced font and not contain more than 10,000 words. (B) An appellee’s principal and response brief shall either be produced in a monospaced font and not contain more than 60 pages, or be produced in a proportionally spaced font and not contain more than 12,500 words. (C) An appellant’s response and reply brief shall either be produced in a monospaced font and not contain more than 50 pages, or be produced in a proportionally spaced font and not contain more than 10,000 words. (D) An appellee’s reply brief shall either be produced in a monospaced font and not contain more than 20 pages, or be produced in a proportionally spaced font and not contain more than 4,000 words.

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(E) An amicus curiae brief shall either be produced in a monospaced font and not contain more than 35 pages, or be produced in a proportionally spaced font and not contain more than 7,000 words. (F) In all briefs, only those parts required by Rule 16(a)(5)-(11), including headings, footnotes, and quotations, count towards the length limits. (G) A motion to exceed these length limits shall specify the relevant issue or issues and why such issues merit additional pages or words, and will not be granted except for extraordinary reasons. (H) The certification required pursuant to Rule 16(k) shall specifically state how compliance with the length limits of this rule was ascertained, as specified therein.

(4) Format of Text. The following rules shall govern the format of text on the pages of all briefs and applications for and responses to direct or further appellate review:

(A) The top and bottom margins shall be at least 1 inch. The left and right margins shall be at least 1.5 inches. Thus, the text area should not be more than 5.5 inches in width nor more than 9 inches in height. Page numbers may appear in the margin. (B) The typeface shall be either (i) a monospaced font (such as Courier New) of 12 point or larger size and not exceeding 10.5 characters per inch; or (ii) a proportionally spaced font (such as Times New Roman), of 12 point or larger size. (C) Text shall be double-spaced, except that argument headings, footnotes, and indented quotations may be single-spaced. For purposes of this rule, single spacing means not more than 6 lines of text per vertical inch; double spacing means not more than 3 lines of text per vertical inch and not more than 27 double-spaced lines on a page. (D) The text may appear on both sides of the page.

(5) Format and Length of Appendix. The following rules shall govern the format of appendices:

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(A) The cover of each volume of the appendix shall be designated by a Roman numeral and paginated as page 1, and pages thereafter numbered consecutively through the volume’s last page. The cover shall also contain the information identified in Rule 20(a)(6)(B). (B) Each volume of the appendix shall be separately paginated, beginning at page 1. (C) No single volume of an appendix, transcript or exhibit shall be more than 1.5" thick. (D) The text of appendices filed on paper may appear on both sides of the page.

(6) Color and Contents of Cover. The following rules shall govern the color and contents of all briefs, appendices, and applications for or responses to direct or further appellate review:

(A) Color. The cover of the brief of the appellant shall be blue; that of the appellee, red; that of a party intervening in the appeal, yellow; that of an or amicus curiae, green; that of any reply brief, gray. The cover of the appendix shall be white. The cover or front page of an application for or response to direct or further appellate review shall be white. A color cover is not required for any electronically-filed brief.

(B) Contents. The covers of the briefs and appendices, in addition to the requirements for covers of appendices in Rule 20(a)(5), and of applications for or responses to direct or further appellate review shall contain:

(i) the name of the court and the number of the case;

(ii) the title of the case (see Rule 10(a));

(iii) the nature of the proceeding in the appellate court (e.g., Appeal; Application for Review) and the name of the lower court;

(iv) the title of the document (e.g., Brief for Appellant, Appendix); and

(v) the name(s), Board of Bar Overseers (BBO) number(s), if any, mailing and electronic addresses, and telephone number(s), of the person(s) filing

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the document, and, if any individual counsel is affiliated with a firm or office, the office name;

(vi) where it is necessary to include impounded material in a brief, the notification required by Rule 16(m).

(7) Substantial Compliance Required. Briefs, appendices, or applications for or responses to direct or further appellate review not in substantial compliance with these rules shall not be received unless the appellate court or a single justice shall otherwise order.

(b) Form of Other Documents.

(1) Motions for Reconsideration. Motions for reconsideration shall be produced in a manner prescribed by Rule 27(b). (2) Motions and Other Documents.

(A) A motion or other document addressed to an appellate court shall contain a caption setting forth the name of the court, the title of the case, the docket number, and a brief descriptive title indicating the purpose of the document; said caption shall appear on the first page. Lines of text shall be double-spaced. Consecutive pages shall be attached by a single staple at the upper left margin. (B) Such motion or document shall contain, at the end thereof

(i) the printed and signed name(s), Board of Bar Overseers (BBO) number(s), if any, mailing and electronic addresses, and telephone number(s) of the person(s) filing the document, and, if any individual counsel is affiliated with a firm or office, the office name, and (ii) the date of signing.

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[DELETED] RULE 21. PREHEARING CONFERENCE

Summary and Explanation of Revisions The Subcommittee proposes rescinding this rule because it is obsolete; the procedure outlined in this rule for the court to direct attorneys to appear and discuss simplification of the issues does not occur. Rescinding this rule will reconcile the rules with the current practice of not holding such hearings, and eliminates any expectation on the part of any party that such a hearing is a possibility. Nevertheless, without a rule of procedure, the appellate court or a single justice thereof still would have inherent authority to order a conference, such as to update the court regarding the status of a case after a long stay pending further proceedings in the trial court.

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DELETED RULE 21

Rule 21. Prehearing Conference The appellate court may direct the attorneys for the parties to appear before the court or a single justice for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceeding by the court. The appellate court or single justice shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered shall control the subsequent course of the proceeding, unless modified to prevent manifest injustice.

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[NEW] RULE 21. PROTECTION OF PERSONAL IDENTIFYING INFORMATION

Summary and Explanation of Revisions In place of the deleted prehearing conference rule, the Subcommittee proposes that this rule encompass requirements related to the redaction of publicly available documents. Due to the importance of this requirement, the Subcommittee proposes this stand-alone rule to ensure parties are aware of the requirement and documents filed with the court conform to Supreme Judicial Court Rule 1:24. The title and language of the proposed amendment is identical to the proposed amendments to Mass. R. Civ. P. 5(h) and Mass. R. Crim. P. 32(h), as amended in 2017.

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PROPOSED RULE 21 Rule 21. Protection of Personal Identifying Information Publicly accessible documents filed with the court shall conform to Supreme Judicial Court Rule 1:24, Protection of Personal Identifying Information in Publicly Accessible Court Documents.

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RULE 22. ORAL ARGUMENT

Summary Scheduling cases for argument is a detailed and time-consuming task requiring coordination of parties and the justices and clerk’s office of the appellate court. Accordingly, the Subcommittee proposes several amendments to this Rule to clarify expectations and requirements related to oral argument and post- argument filings. In particular, the language related to the timeframe for filing motions requesting additional time for argument are clarified. In addition, a new provision is added governing post-argument filings.

Explanation of Revisions Rule 22(b). The language regarding moving for additional argument time is made more plain and clear. This makes the requirements, e.g., that such requests must be made “reasonably in advance of the date fixed for oral argument,” clear to litigants. Rule 22(c). The Subcommittee proposes revising this paragraph to create subparagraphs (1) and (2). Subparagraph (1) addresses the rules for oral argument, and retains the text of the existing rule. Subparagraph (2) addresses the rules for post-argument filings, containing new proposed language. In subparagraph (1), only the portion of the first sentence of the existing rule stating that the appellant shall argue first is retained, with the remainder deleted. The reference to 27.1(g) was removed because 27.1(g) is deleted in these proposals; for an explanation of the reasons for deletion, see the explanation of revisions to rule 27.1. A new sentence is added stating that nothing argued in the brief is deemed waived by a failure to argue orally. This sentence has been relocated from the current Rule 16(a)(4) to Rule 22(c) as it is more appropriately located in the provision related to oral argument. Subparagraph (2) contains entirely new language clarifying that, except with leave of court, other than a letter submitted in compliance with Rule 16(l), a party is precluded from submitting any additional argument on the merits in the case. The clerk’s offices often receive post-argument letters filed by parties ostensibly pursuant to Rule 16(l), but the letters contain argument. Such letters often do not state whether the panel granted leave for the filing during oral argument. This revised Rule clarifies that parties need leave of court, either granted at oral argument or by filing a motion seeking such leave, to file a letter with additional argument. It also distinguishes between “supplemental citation” letters filed pursuant to Rule 16(l), which do not require leave of court, and those that contain argument, which require leave, as proposed in this new rule. In

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addition, it is important for the clerk’s offices to be aware when a party has been granted leave during oral argument to file a letter containing argument to ensure proper processing of the letter. Rule 22(d). The provision in this Rule relating to designation of the parties in a cross appeal has been moved to proposed new Rule 10(a)(6). Rule 10 is a more appropriate location for this provision, so the parties know from the outset of the case which party is designated as the appellant. See the discussion of proposed Rule 10(a)(6), supra. Rule 22(e). A new first sentence is proposed to clarify that parties do not have the option not to attend oral argument without prior arrangements having been made with the court. Rule 22(f). The Subcommittee proposes that this paragraph be deleted. There are several circumstances in which an attorney may testify under Mass. R. Prof. C. 3.7(a), most notably to testify about attorney’s fees.

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PROPOSED RULE 22—SHOWING REVISIONS AND DELETIONS Rule 22. Oral Argument (a) Notice of Argument; Postponement. The clerk shall advise all parties of the time and place at which oral argument will be heard. A request for postponement of the argument must be made by motion filed reasonably in advance of the date fixed for hearing. (b) Time Allowed for Argument. Unless otherwise enlarged or limited by the appellate court, each side will be allowed fifteen 15 minutes for argument, except in a criminal case in which the defendant is appealing a conviction of murder in the first degree, in which case each side will be allowed twenty 20 minutes for argument. If counsel is of the opinion that additional time is necessary for the adequate presentation of the argument, counsel Reasonably in advance of the date fixed for oral argument, a party may request move for additional time for good cause shown. Requests may be made by letter addressed to the clerk reasonably in advance of the date fixed for the argument. The appellate court may terminate the argument whenever in its judgment further argument is unnecessary. (c) Order and Content of Argument.

(1) Oral Argument. Except as otherwise provided in Rule 27.1(g), tThe appellant will argue first and shall include a fair statement of the case. Counsel will not be permitted to read, except briefly, from briefs, records, prepared statements, records or authorities.

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Nothing argued in the brief shall be deemed to be waived by a failure to argue orally. The party making the opening argument on request may be allowed the opportunity to reply in writing to new matter in the arguments of his adversary. (2) Post-Argument Filings. After the oral argument of a case has been concluded or the case has been submitted on the documents without oral argument, no brief, memorandum, or letter relating to the case, except a citation of supplemental authorities letter filed pursuant to Rule 16(l), shall be submitted to the court, except to correct the party’s own misstatement during oral argument, or when such a writing was expressly allowed or requested by the court during the argument, or upon allowance of a motion to submit such a writing. Any such writing allowed during oral argument shall state that the court allowed the submission. A submission containing argument on the merits and not otherwise in compliance with this rule may be struck by the court.

(d) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the appellate court otherwise directs. If a case involves a cross appeal, the plaintiff in the action below shall be deemed the appellant for the purposes of this rule unless the parties otherwise agree or the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument. (e) Non-appearance of Parties. Parties are expected to appear for oral argument unless prior arrangements have been made with the court. If the appellee fails to appear to present argument, the appellate court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if his counsel is present. If neither party appears, the case will be decided on the briefs unless the appellate court shall otherwise order. (f) No Oral Argument by an Attorney Who Has Been a Witness Except by Leave of Court. No attorney shall be permitted to take part in the argument of a case in which he has been a witness for his client; except by special leave of court. (gf) Submission on Briefs. By agreement of the parties, a case may at any time be submitted for decision on the briefs, but the appellate court may direct that the case be argued. At any time, any party may, by written notice filed and served, waive his the party’s right to oral argument. No criminal case in which the defendant was convicted of murder in the first degree may be submitted for decision on the briefs without oral argument unless the full appellate court or a justice thereof shall have approved the submission prior to the week the case has been scheduled for argument.

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(hg) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents or chalks are to be used at the argument, counsel the party shall arrange to have them placed in the court room before the court convenes on the date of the argument. After the argument, the exhibits shall be left with the clerk unless the court otherwise directs. If exhibits are not reclaimed by counsel the party within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best.

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PROPOSED RULE 22 Rule 22. Oral Argument (a) Notice of Argument; Postponement. The clerk shall advise all parties of the time and place at which oral argument will be heard. A request for postponement of the argument must be made by motion filed reasonably in advance of the date fixed for hearing. (b) Time Allowed for Argument. Unless otherwise enlarged or limited by the appellate court, each side will be allowed 15 minutes for argument, except in a criminal case in which the defendant is appealing a conviction of murder in the first degree, in which case each side will be allowed 20 minutes for argument. Reasonably in advance of the date fixed for oral argument, a party may move for additional time for good cause shown. The appellate court may terminate the argument whenever in its judgment further argument is unnecessary. (c) Order and Content of Argument.

(1) Oral Argument. The appellant will argue first. Nothing argued in the brief shall be deemed to be waived by a failure to argue orally. (2) Post-Argument Filings. After the oral argument of a case has been concluded or the case has been submitted on the documents without oral argument, no brief, memorandum, or letter relating to the case, except a citation of supplemental authorities letter filed pursuant to Rule 16(l), shall be submitted to the court, except to correct the party’s own misstatement during oral argument, or when such a writing was expressly allowed or requested by the court during the argument, or upon allowance of a motion to submit such a writing. Any such writing allowed during oral argument shall state that the court allowed the submission. A submission containing argument on the merits and not otherwise in compliance with this rule may be struck by the court.

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(d) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the appellate court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument. (e) Non-appearance of Parties. Parties are expected to appear for oral argument unless prior arrangements have been made with the court. If the appellee fails to appear to present argument, the appellate court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if present. If neither party appears, the case will be decided on the briefs unless the appellate court shall otherwise order. (f) Submission on Briefs. By agreement of the parties, a case may at any time be submitted for decision on the briefs, but the appellate court may direct that the case be argued. At any time, any party may, by written notice filed and served, waive the party’s right to oral argument. No criminal case in which the defendant was convicted of murder in the first degree may be submitted for decision on the briefs without oral argument unless the appellate court or a justice thereof shall have approved the submission prior to the week the case has been scheduled for argument. (g) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents are to be used at the argument, the party shall arrange to have them placed in the court room before the court convenes on the date of the argument. After the argument, the exhibits shall be left with the clerk unless the court otherwise directs. If exhibits are not reclaimed by the party within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best.

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RULE 23. ISSUANCE OF RESCRIPT: STAY OF RESCRIPT

Summary The proposed amendments to this rule first would separate the existing text into separately numbered paragraphs for ease of reference and citation. The title and content of the Rule are updated to incorporate the new definition of “decision” proposed in Rule 1(c). In addition, the amendments would replace "mail" with "send" and permit the clerk to send "a copy or a link to the rescript and the decision . . . on the day the decision is released." Subsection (c) clarifies that the timely filing of a Rule 27 motion for reconsideration or modification of decision or a Rule 27.1 application for further appellate review will stay issuance of the rescript to the lower court until the appellate court's disposition of both the motion and the application.

Explanation of Revisions Title. The Subcommittee proposes amending the title of this Rule to reflect the proposed new definitions of “decision” and “rescript” and the processes covered by the Rule. Rule 23(a). The first sentence of the existing rule is designated as (a) and Rule 1(c)’s new definition of “decision” replaces “opinion.” To modernize the rule to account for the appellate courts’ ability to issue electronic notices instead of only conventional mail, new language (“or a link to”) is added. Currently, the website of the Reporter of Decisions posts the appellate court's decisions on the day they are released. In addition, the appellate courts' dockets are available on the internet and might have future capability to host copies of orders and decisions. Finally, a phrase is added to state the existing practice that the clerk notifies the parties on the day when the decision is released. Rule 23(b). The second sentence of the existing rule is now designated as (b). The proposed revisions to this sentence include global changes (i.e., use of numerals) as well as the addition of “appellate” before the word “court” and adding “decision” to clarify the rescript and decision are sent to the lower court. Rule 23(c). The remaining two sentences of the existing rule are now designated in subsection (c). Consistent with the proposed amendment to Rule 27, the term “petitions for rehearing” is replaced by “motion for reconsideration or modification.” Finally, language is added to clarify that the rescript issues forthwith after both the disposition of any motions for reconsideration and the denial of any applications for further appellate review, unless the appellate court or a single justice orders otherwise.

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Requested Reporter’s Note

Rule 23(a). Rule 23’s use of the word “rescript” to refer both to the appellate court’s decision and to the order or direction to the lower court disposing of the appeal (the rescript) that is transmitted to the lower court 28 days after the release of the court’s decision often confused parties. This confusion resulted sometimes in parties not filing timely petitions for rehearing (the term used for Rule 27's motion for reconsideration or modification of decision prior to the 2017 amendments to the Rules) or applications for further appellate review. The 2017 amendments to Rule 23 clarify the distinction between the clerk’s release of a decision to the parties and the clerk's issuance of the rescript to the lower court. Related amendments were made to the definitions in Rule 1(c), clarifying the definition of “rescript” and creating a new definition of “decision.” In addition, the 2017 amendments to Rule 23(a), identify the clerk’s responsibilities to issue notice of the appellate court’s release of a decision, and in Rule 23(b) to issue the rescript to the lower court. When read together, the amendments to Rules 23(a), 23(b), 27(a), and 27.1(a), establish the sequence of events that occur when the appellate court releases a decision: the clerk notifies the parties, the time periods commence for filing a motion for reconsideration or application for further appellate review, and the clerk will issue the rescript and decision to the lower court 28 days later unless such issuance is stayed for one of the reasons delineated in paragraph (c).

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PROPOSED RULE 23—SHOWING REVISIONS AND DELETIONS Rule 23. IssuanceNotice of Decision; Issuance of Rescript;: Stay of Rescript (a) The clerk of the appellate court shall mailsend to all parties a copy copies of or a link to the rescript and the opiniondecision, if one was written, on the day the decision is released.

(b) The rescript and the decision of the appellate court shall issue to the lower court twenty-eight 28 days after the date of the rescript decision unless the time is shortened or enlarged by order, except as provided by Rule 23(c). (c) The issuance of the rescript will automatically be stayed, unless otherwise ordered by the appellate court, by the timely filing of: (1) The timely filing of a petition motion for rehearing reconsideration or modification pursuant to Rule 27; or (2) or of an application for further appellate review pursuant to Rule 27.1. will stay the rescript until disposition of the petition or application unless otherwise ordered by the appellate court. If the petition or application is denied, tThe rescript shall issue forthwith after both the disposition of any

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motions for reconsideration and the denial of any applications for further appellate review, unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted, the rescript of the Appeals Court shall not issue to the lower court.

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PROPOSED RULE 23 Rule 23. Notice of Decision; Issuance of Rescript; Stay of Rescript (a) The clerk of the appellate court shall send to all parties copies of or a link to the rescript and the decision, if one was written, on the day the decision is released. (b) The rescript and the decision of the appellate court shall issue to the lower court 28 days after the date of the decision unless the time is shortened or enlarged by order, except as provided by Rule 23(c). (c) The issuance of the rescript will automatically be stayed, unless otherwise ordered by the appellate court, by the timely filing of: (1) a motion for reconsideration or modification; or (2) an application for further appellate review. The rescript shall issue forthwith after both the disposition of any motions for reconsideration and the denial of any applications for further appellate review, unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted, the rescript of the Appeals Court shall not issue to the lower court.

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RULE 24. JUSTICES’ PARTICIPATION

Summary and Explanation of Revisions In paragraph (a), the Subcommittee proposes replacing “perusal” with “review,” to more accurately describe a justice’s actions regarding a case. In addition, a new paragraph (b) has been added modelled on existing Rule 7, Disability of a Member of the Lower Court. This text allows for the replacement of a justice should that justice become unable to participate in the case. This is current practice in the appellate courts, and this addition makes it clear that the Chief Justice of the appellate court has the authority to make these substitutions as needed. Existing paragraph (b) is renumbered (c) in this proposal.

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PROPOSED RULE 24—SHOWING REVISIONS AND DELETIONS Rule 24. Justices’ Participation (a) Other Justices May Participate Without Reargument. Whenever the justices before whom a law question has been heard so desire, others of the justices may be called in to take part in the decision, upon a perusal review of the record and briefs, without reargument. (b) Replacement of Justices. If a justice who has participated in a case becomes unable to participate further, then the Chief Justice of the appellate court may substitute another justice. (bc) Justice May Review Own Ruling in Certain Cases. No justice shall sit on the hearing of any proceeding in the nature of a review of any judgment decree, order, or ruling made by himthat justice; provided, however, that this shall not apply where it is necessary to secure a quorum or where the other justices of the court shall be equally divided in opinion.

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PROPOSED RULE 24 Rule 24. Justices’ Participation (a) Other Justices May Participate Without Reargument. Whenever the justices before whom a law question has been heard so desire, others of the justices may be called in to take part in the decision, upon a review of the record and briefs, without reargument.

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(b) Replacement of Justices. If a justice who has participated in a case becomes unable to participate further, then the Chief Justice of the appellate court may substitute another justice. (c) Justice May Review Own Ruling in Certain Cases. No justice shall sit on the hearing of any proceeding in the nature of a review of any judgment decree, order, or ruling made by that justice; provided, however, that this shall not apply where it is necessary to secure a quorum or where the other justices of the court shall be equally divided in opinion.

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RULE 24.1. DIVIDED VOTE ON FURTHER APPELLATE REVIEW

Summary and Explanation of Revisions The Subcommittee proposes moving the text of this Rule to the end of Rule 27.1 as new Rule 27.1(g), replacing existing (and now deleted) Rule 27.1(g). Currently, this text, which describes the procedure when there is a divided vote on further appellate review, is placed before Rule 27.1, which describes the further appellate review process. As such, it does not correspond to the chronological order in which events related to further appellate review occur, and it unnecessarily separates two closely-related Rules. The Subcommittee does not recommend “reserving” Rule 24.1 for future use.

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PROPOSED RULE 24.1—SHOWING REVISIONS AND DELETIONS Rule 24.1. Divided Vote on Further Appellate Review If, following allowance of an application for further appellate review, the justices of the Supreme Judicial Court are equally divided in opinion, unless a majority of the participating justices decides otherwise, the court shall issue an order noting such equal division, the effect of which shall be the same as if the court had denied the application for further appellate review.

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PROPOSED RULE 24.1 [delete]

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RULE 25. DAMAGES FOR DELAY

Summary and Explanation of Revisions

The Subcommittee proposes removing the parenthetical indicating the Rule applies only in civil cases and moving it to the title of the Rule. As stated in the 1979 reporter's notes, Rule 25 is limited to civil cases. This clarifies the content and applicability of the Rule’s provisions and deletes a drafting technique unique to only a few rules that may have led to confusion. In addition, the word “Delay” is replaced with “Frivolous” in the title to more accurately reference the problem addressed by the Rule. The Subcommittee recommends amending the language of the rule to model the parallel Federal Rule, Federal Rule of Appellate Procedure 38. A new final sentence is added to reflect existing practice of the appellate courts.

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Rule 25. Damages for DelayFrivolous Appeal in Civil Cases

(Applicable to Civil Cases)

If the an appellate court shall determines that an appeal in a civil case is frivolous, it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law. The appellate court shall calculate the amount of any award after a separately filed motion or notice from the court and reasonable opportunity to respond.

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PROPOSED RULE 25

Rule 25. Damages for Frivolous Appeal in Civil Cases

If an appellate court determines that an appeal in a civil case is frivolous, it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law. The appellate court shall calculate the amount of any award after a separately filed motion or notice from the court and reasonable opportunity to respond.

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RULE 26. COSTS

Summary The Subcommittee proposes removing the parenthetical, “(applicable to civil cases)” and replacing it with an introductory sentence. This clarifies the content and applicability of the Rule’s provisions and deletes a drafting technique unique to only a few rules that may have led to confusion. The Rule is updated to remove the language authorizing taxing as a cost a fee to file the notice of appeal and adds the docketing fee and certain other fees that may be incurred by a party to the list of those costs that are taxable.

Explanation of Revisions Rule 26(a). The edits suggested by the Subcommittee in this section simplify the language of the sentence and add numbering to the various scenarios in which costs may be taxed. This makes the list easier to read. The list is also expanded to include judgments affirmed in part or modified in those situations where the costs are taxed only as ordered by the appellate court. Rule 26(d). The Subcommittee proposes deleting language indicating that a fee for filing a notice of appeal will be taxed as a cost. Though the existing language of this Rule tracked the Federal Rule, a fee for filing the notice of appeal does not exist for appeals that will be heard in the Appeals Court or Supreme Judicial Court. Rather, a fee, if required, is paid upon docketing. The language was updated to reflect this practice. In addition, the Subcommittee recommends adding language indicating that certain administrative and convenience fees are recoverable costs, such as credit card convenience fees, fees incurred when electronically filing, and other such costs. This change updates the rule to reflect current costs that may be incurred by a party in prosecuting an appeal.

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PROPOSED RULE 26—SHOWING REVISIONS AND DELETIONS Rule 26. Costs in Civil Cases (Applicable to Civil Cases)This rule applies only to civil cases. (a) To Whom Allowed. Except as otherwise provided by law or ordered by the court, (1) if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the appellate court; (2) if a judgment is affirmed, costs shall be taxed

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against the appellant unless otherwise ordered; (3) if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; (4) if a judgment is affirmed in part, on reversed in part, modified, or is vacated, costs shall be allowed are taxed only as ordered by the appellate court. (b) Costs For and Against the Commonwealth. In cases involving the Commonwealth or an agency or officer thereof, if an award of costs against the Commonwealth is authorized by law, costs shall be awarded in accordance with the provisions of subdivision Rule 26(a); otherwise, costs shall not be awarded for or against the Commonwealth. (c) Costs of Briefs, Appendices, and Copies of Records. The cost of printing or otherwise producing necessary copies of briefs, appendices, or copies of records authorized by Rule 18(f) shall be taxable in the lower court at rates not higher than those generally charged for such work in the Commonwealth. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which he shall be filed file with the clerk of the lower court, with proof of service, within fourteen 14 days after the entry of judgment. (d) Clerk to Insert Costs in Lower Court Judgment; Costs Taxable. The clerk of the lower court shall prepare and certify an itemized statement of costs on appeal for insertion in the lower court judgment. The statement shall include those following costs taxable on appeal are taxable in the lower court for the benefit of the party entitled to costs under this rule:

(1) copies under subdivision Rule 26(c) of this rule; (2) costs incurred in the preparation and transmission of the record; (3) , the cost of the reporter’s transcript, if necessary for theto determineation of the appeal; (4) , the premiums paid for cost of any bond to preserve rights pending appeal; (5) , and the fee for docketing the appeal under Rule 10(a)(1)filing the notice of appeal shall be taxed in the lower court as costs of the appeal in favor of the party entitled to costs under this rule; and, (6) the cost of any convenience fees and other administrative fees levied for the privilege of paying fees or costs by credit card or other means, including, but not limited to, fees for electronic filing of documents or pleadings with the court.

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PROPOSED RULE 26

Rule 26. Costs in Civil Cases This rule applies only to civil cases. (a) To Whom Allowed. Except as otherwise provided by law or ordered by the court, (1) if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties; (2) if a judgment is affirmed, costs shall be taxed against the appellant; (3) if a judgment is reversed, costs shall be taxed against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as ordered by the appellate court. (b) Costs For and Against the Commonwealth. In cases involving the Commonwealth or an agency or officer thereof, if an award of costs against the Commonwealth is authorized by law, costs shall be awarded in accordance with the provisions of Rule 26(a); otherwise, costs shall not be awarded for or against the Commonwealth. (c) Costs of Briefs, Appendices, and Copies of Records. The cost of printing or otherwise producing necessary copies of briefs, appendices, or copies of records authorized by Rule 18(f) shall be taxable in the lower court at rates not higher than those generally charged for such work in the Commonwealth. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which shall be filed with the clerk of the lower court, with proof of service, within 14 days after the entry of judgment. (d) Clerk to Insert Costs in Lower Court Judgment; Costs Taxable. The clerk of the lower court shall prepare and certify an itemized statement of costs on appeal for insertion in the lower court judgment. The following costs on appeal are taxable in the lower court for the benefit of the party entitled to costs under this rule:

(1) copies under Rule 26(c); (2) costs incurred in the preparation and transmission of the record; (3) the reporter’s transcript, if necessary to determine the appeal; (4) the premiums paid for any bond to preserve rights pending appeal; (5) the fee for docketing the appeal under Rule 10(a)(1); and,

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(6) the cost of any convenience fees and other administrative fees levied for the privilege of paying fees or costs by credit card or other means, including, but not limited to, fees for electronic filing of documents or pleadings with the court.

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RULE 27. PETITION FOR REHEARING

Summary The title of this Rule is changed from “petition for rehearing” to “motion for reconsideration or modification of decision.” This change more accurately reflects the contents of the documents filed pursuant to this Rule and the relief requested by parties. The Rule as proposed also reorganizes, and adds to, the current Rule. Separately numbered paragraphs are introduced, each addressing a discrete topic related to motions for reconsideration or modification of decision. These revisions make the Rule easier to reference and increases its readability. A new provision, Rule 27(c), entitled “Response,” includes all requirements related to responding to a motion for reconsideration or modification of decision in a stand-alone section for clarity. New Rule 27(d) clarifies the filing and service requirements related to motions filed pursuant to this Rule. The proposed changes also include the word count alternative to the page limit, consistent with the Subcommittee’s proposed global changes.

Explanation of Revisions Title. The Subcommittee proposes changing the title of this Rule from “petition for rehearing” to “motion for reconsideration or modification of decision.” Petitions for rehearing, as they are currently named, are rarely, if ever, seeking a rehearing of a case before the justices. Rather, the petitions request a reconsideration of the opinion (in order to obtain a different result) or modification of the decision e.g., to make corrections of facts. Parties filing these petitions generally are not seeking a rehearing before the court. Therefore, it is more accurate to call these petitions “motions,” as the parties are requesting that the court reconsider or modify an issued decision. This title change is more reflective of the contents of this Rule and the motions it governs. This change is also made throughout the Rules, where “petition for rehearing” is referenced. Rule 27(a). In this section, the Subcommittee recommends striking “rescript” and changing it to “decision of the appellate court,” consistent with the new definitions in Rule 1. The reference in the current rule to “rescript” encompasses both the decision of the appellate court that is released to the public and the parties and also the issuance of the rescript to the lower court 28 days later. This dual meaning is confusing for some parties calculating when the time period commences for filing a motion for reconsideration or modification of decision. Amending the language to use the new definition of “decision,” and to clarify that the motion is due 14 days after the date of the

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decision, makes it clear to the parties that it is the decision that triggers the timeframe, and is not the clerk's issuance of the rescript to the lower court. The language related to filing an opposition, referred to in these amendments as a “response,” has been moved to its own paragraph to promote clarity on related procedures. Rule 27(b). The first sentence of this paragraph is deleted. As the Subcommittee proposes changing the title of these documents to “motion for reconsideration or modification of decision,” the first sentence is no longer applicable. Language referring to “standard typewritten material” has been deleted from this provision. Language regarding the number of copies has been moved to paragraph (d). In addition, reference to Rule 20(a) is made concerning the word limit alternative to page limits. Specificity is needed as to the page limit and the particular form of typing that is acceptable. This updates the Rules to be consistent with other Rules regarding the particular form of typing that is acceptable to the court as well as page length. For more information regarding the word limit alternative to page length, see the word count proposal global change, supra. New Rule 27(c). The Subcommittee proposes a new paragraph entitled “Response.” The language for this paragraph comes from existing paragraph (a). Moving this language to a separate paragraph promotes clarity of the related procedures. The word “answer” is no longer used to signify a response to a motion for reconsideration or modification of decision. Lastly, this new paragraph clarifies the formatting requirements applicable to a requested response. New Rule 27(d). The Subcommittee proposes the addition of a new paragraph entitled, “Filing and Service.” Unlike previous rules related to briefs and motions, there is currently no provision in this rule related to its filing and service requirements. Because the current Rule 27 states that the petition for rehearing is to be in the form of a letter addressed to the senior justice of the quorum or panel which decided the appeal, litigants sometimes mail the request directly to the senior justice and/or panel that decided the appeal instead of filing it in the appellate court clerk’s office. Adding language about filing and service requirements clarifies the appropriate procedures. In a Supreme Judicial Court case, a paper original and seven copies of the motion shall be filed. In the Appeals Court, the motion in electronic form and no paper copies shall be filed pursuant to the Appeals Court’s standing order governing the electronic filing of all motions and letters filed after panel assignment. New Rule 27(e). The Subcommittee proposes an additional new paragraph entitled, “Ruling on Motion.” The contents of the proposed paragraph are taken from existing paragraph (a). Placing

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this information in its own paragraph increases the readability of the Rules and makes it easier to refer to its requirements. Rule 27(f) [formerly Rule 27(c)]. The Subcommittee proposes editing the existing paragraph (c) to remove the first sentence. Proposed new paragraph (e) authorizes the appellate court to order review or revision of opinions when a motion is allowed. Therefore, this information is redundant and its deletion promotes clarity. The language in the remaining sentence is updated to be consistent with the revisions made in the preceding paragraphs, e.g., “petition” is changed to “motion,” etc. In addition, language regarding notification to the Supreme Judicial Court of any action on the motion is streamlined, and a requirement that this notification be made “promptly” is added.

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PROPOSED RULE 27—SHOWING REVISIONS AND DELETIONS Rule 27. Petition Motion for Rehearing Reconsideration or Modification of Decision (a) Time for Filing; Content; Answer; Action by Court if Granted. A petition for rehearing should be filed with the clerk of the appellate court wWithin fourteen 14 days after the date of the rescript decision of the appellate court, any party to an appeal may file a motion for reconsideration or modification of decision unless the time is shortened or enlarged by order. It shall state with particularity the points of law or fact which it is contended the court has overlooked or misapprehended and shall contain such argument in support of the petition motion as the petitioner desires to present. Oral argument in support of the petition motion will not be permitted, except by order of the quorum or panel appellate court which decided the appeal. No answer to a petition for rehearing will be received unless requested by the quorum or panel, but a petition for rehearing will ordinarily not be granted in the absence of such a request. AThe petition motion for rehearing shall be decided by the quorum or panel of the appellate court that decided the appeal. If a petition for rehearing is granted, the quorum or panel may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case. Action upon a petition is in the discretion of such quorum or panel, which may award costs, including a reasonable attorney’s fee, to the prevailing party. (b) Form of PetitionMotion; Length. The petition shall be in a form of a letter to the senior justice of the quorum or panel which decided the appeal with seven clear and legible copies, and additional copies shall be mailed by first class mail or delivered to all other counsel. Except by permission of the quorum or panel appellate court, a petition motion for rehearing shall not

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exceed either ten 10 pages of standard typewritten material of text in monospaced font or 2,000 words in proportional font, as defined in Rule 20(a)(4)(B), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). (c) Response. No response to a motion for reconsideration or modification will be received unless requested by the appellate court, but reconsideration will ordinarily not be granted in the absence of such a request. Any response filed pursuant to this provision shall comply with the form and length requirements in Rule 27(b). (d) Filing and Service. The motion, and any requested response, shall be filed in the office of the clerk of the appellate court that released the decision. In a Supreme Judicial Court case, a paper original and seven copies of the motion shall be filed. In the Appeals Court, the motion in electronic form and no paper copies shall be filed. Service of the motion, and any requested response, shall comply with Rule 13. (e) Ruling on Motion. Upon consideration of a motion and any response, the appellate court may make a final disposition of the case without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case. Action upon a motion is in the discretion of such appellate court, which may award costs, including a reasonable attorney’s fee, to the prevailing party. (cf) Revision of DecisionNotice to Supreme Judicial Court. Upon consideration of a petition for rehearing, a quorum or panel may in writing order their decision to be reviewed and revised by a majority of the justices of the court. The petitioner A party seeking further appellate review shall promptly notify the Supreme Judicial Court of any action taken on the petition motion if an application for further appellate review also has been filed.

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PROPOSED RULE 27 Rule 27. Motion for Reconsideration or Modification of Decision (a) Time for Filing; Content; Action by Court if Granted. Within 14 days after the date of the decision of the appellate court, any party to an appeal may file a motion for reconsideration or modification of decision unless the time is shortened or enlarged by order. It shall state with particularity the points of law or fact which it is contended the court has overlooked or misapprehended and shall contain such argument in support of the motion as the petitioner

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desires to present. Oral argument in support of the motion will not be permitted, except by order of the appellate court which decided the appeal. The motion shall be decided by the quorum or panel of the appellate court that decided the appeal. (b) Form of Motion; Length. Except by permission of the appellate court, a motion shall not exceed either 10 pages of text in monospaced font or 2,000 words in proportional font, as defined in Rule 20(a)(4)(B), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). (c) Response. No response to a motion for reconsideration or modification will be received unless requested by the appellate court, but reconsideration will ordinarily not be granted in the absence of such a request. Any response filed pursuant to this provision shall comply with the form and length requirements in Rule 27(b). (d) Filing and Service. The motion, and any requested response, shall be filed in the office of the clerk of the appellate court that released the decision. In a Supreme Judicial Court case, a paper original and seven copies of the motion shall be filed. In the Appeals Court, the motion in electronic form and no paper copies shall be filed. Service of the motion, and any requested response, shall comply with Rule 13. (e) Ruling on Motion. Upon consideration of a motion and any response, the appellate court may make a final disposition of the case without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case. Action upon a motion is in the discretion of such appellate court, which may award costs, including a reasonable attorney’s fee, to the prevailing party. (f) Notice to Supreme Judicial Court. A party seeking further appellate review shall promptly notify the Supreme Judicial Court of any action taken on the motion.

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RULE 27.1. FURTHER APPELLATE REVIEW

Summary and Explanation of Revisions The new word count alternative to the page limit is added, consistent with the Subcommittee’s proposed global changes, and the word “rescript” in Rule 27.1(a) is replaced with “decision” consistent with the new definitions contained in Rule 1(c). In addition, references to an “opposition” are updated to read “response.” In addition, paragraph (d) is amended to remove the requirement that neither a copy of the application nor any response need be filed in the Appeals Court. All references to “an application for leave to obtain further appellate review” have been revised to “an application for further appellate review” to remove antiquated language. Rule 27.1(e) is revised to be consistent with current court practices. The phrase “upon receipt, further appellate review shall be deemed granted” is removed. According to the former rule, although the Supreme Judicial Court entered and sent notice of an order granting further appellate review, the Supreme Judicial Court’s order would not actually be “deemed granted” until the Appeals Court received it. This phrase is removed to give Supreme Judicial Court orders their intuitive effect, and their effect in all other situations, which is that an order is effective upon its entry. The rule is also amended to require the Supreme Judicial Court to send notice to the lower court when it grants further appellate review. The current provisions of paragraph (g) are removed as unnecessary and replaced with language taken directly from current Rule 24.1. As these two rules are closely-related, the Subcommittee proposes deleting Rule 24.1 and moving the text to this Rule. See the explanation in Rule 24.1, supra, for more information.

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PROPOSED RULE 27.1—SHOWING REVISIONS AND DELETIONS Rule 27.1. Further Appellate Review (a) Application; When Filed; Grounds. Within twenty 21 days after the date of the rescript decision of the Appeals Court, any party to the appeal may file an application for leave to obtain further appellate review of the case by the full Supreme Judicial Court. Such application shall be founded upon substantial reasons affecting the public interest or the interests of justice. Oral argument in support of an application shall not be permitted except by order of the court. (b) Contents of Application; Form. The application for leave to obtain further appellate review shall contain, in the following order: (1) a request for leave to obtain further appellate review; (2)

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a statement of prior proceedings in the case (including whether any party is seeking a rehearing reconsideration or modification in the Appeals Court); (3) a short statement of facts relevant to the appeal (but facts correctly stated in the opinion, if any,decision of the Appeals Court shall not be restated); (4) a statement of the points with respect to which further appellate review of the decision of the appeals court Appeals Court is sought; and (5) a brief statement (covering consisting of either not more than either ten 10 pages of typing text in monospaced font or 2,000 words in proportional font as defined in Rule 20(a)(4)(B)), including appropriate authorities, indicating why further appellate review is appropriate. A copy of the rescript and opinion, if any,decision of the Appeals Court shall be appended to the application. In addition, if the Appeals Court entered a memorandum and order under Appeals Court Rule 1:28 which refers to another document, such as a brief or judge’s findings and rulings, a copy of that document, or, if appropriate, the pertinent pages of that document, shall be appended to the application. The application shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). (c) OppositionResponse; Form. Within ten 14 days after the filing of the application, any other party to the appeal may, but need not, file and serve an opposition a response thereto (covering consisting of not more than either ten 10 pages of typing text in monospaced font or 2,000 words of text in proportional font, as defined in Rule 20(a)(4)(B)) setting forth reasons why the application should or should not be granted. The opposition response shall not restate matters described in subdivision Rule 27.1(b)(2) and (3) of this rule unless the opposing party is dissatisfied with the statement thereof contained in the application. An application A response shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). A response may be filed in a different form as permitted by the court. (d) Filing; Service. One copy of the application and one copy of each opposition shall be filed in the office of the clerk of the Appeals Court. An original and seventeen 17 copies of the application and of each opposition response shall be filed in the office of the clerk of the full Supreme Judicial Court. No copy of the application or any response need be filed in the Appeals Court. Filing and service of the application and of any opposition response shall comply with Rule 13. (e) Vote for Further Appellate Review; Certification. If any three 3 justices of the Supreme Judicial Court shall vote for further appellate review for substantial reasons affecting the public interest or the interests of justice, or if a majority of the justices of the Appeals Court or a majority of the justices of the Appeals Court deciding the case shall certify that the public interest or the interests of justice make desirable a further appellate review, an order allowing the

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application or the certificate, as the case may be, shall be transmitted to the clerk of the Appeals Court with notice to the lower court.; upon receipt, further appellate review shall be deemed granted. The clerk of the Appeals Court shall forthwith transmit to the clerk of the full Supreme Judicial Court all papers theretofore documents filed in the case and shall notify the clerk of the lower court that leave to obtain further appellate review has been granted. (f) Briefs. Any party may apply to the Supreme Judicial Court within ten 14 days after the date on which the appeal is docketed in the full Supreme Judicial Court for permission to file a new brief. If the application is granted, the new brief must be filed in accordance with the briefing schedule established by the Clerk of the Supreme Judicial Court, and the court may impose terms as to the length and filing of such brief and any response thereto. If a new brief is filed, it will be considered in lieu of the Appeals Court brief. If permission to file a new brief is denied or not sought, cases in which further appellate review has been granted shall be argued on the briefs filed in the Appeals Court. (g) Order of Argument. The applicant for leave to obtain further appellate review will argue first unless the court directs or the parties agree otherwise.Equally Divided Vote on Further Appellate Review. If, following allowance of an application for further appellate review, the justices of the Supreme Judicial Court are equally divided in opinion, unless a majority of the participating justices decides otherwise, the court shall issue an order noting such equal division, the effect of which shall be the same as if the court had denied the application for further appellate review.

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PROPOSED RULE 27.1 Rule 27.1. Further Appellate Review (a) Application; When Filed; Grounds. Within 21 days after the date of the decision of the Appeals Court, any party to the appeal may file an application for further appellate review of the case by the Supreme Judicial Court. Such application shall be founded upon substantial reasons affecting the public interest or the interests of justice. Oral argument in support of an application shall not be permitted except by order of the court. (b) Contents of Application; Form. The application for further appellate review shall contain, in the following order: (1) a request for leave to obtain further appellate review; (2) a statement of prior proceedings in the case (including whether any party is seeking a reconsideration or modification in the Appeals Court); (3) a short statement of facts relevant to the appeal (but facts correctly stated in the decision of the Appeals Court shall not be restated); (4) a statement of the

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points with respect to which further appellate review of the decision of the Appeals Court is sought; and (5) a brief statement (consisting of either not more than either 10 pages of text in monospaced font or 2,000 words in proportional font as defined in Rule 20(a)(4)(B)), including appropriate authorities, indicating why further appellate review is appropriate. A copy of the rescript and decision of the Appeals Court shall be appended to the application. In addition, if the Appeals Court entered a memorandum and order under Appeals Court Rule 1:28 which refers to another document, such as a brief or judge’s findings and rulings, a copy of that document, or, if appropriate, the pertinent pages of that document, shall be appended to the application. The application shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). (c) Response; Form. Within 14 days after the filing of the application, any other party to the appeal may, but need not, file and serve a response thereto (consisting of not more than either 10 pages of text in monospaced font or 2,000 words of text in proportional font, as defined in Rule 20(a)(4)(B)) setting forth reasons why the application should or should not be granted. The response shall not restate matters described in Rule 27.1(b)(2) and (3) unless the opposing party is dissatisfied with the statement thereof contained in the application. A response shall comply with the requirements of Rule 20(a), and shall contain a certification of such compliance, including a statement of how compliance with the foregoing length limit was ascertained, as specified in Rule 16(k). A response may be filed in a different form as permitted by the court. (d) Filing; Service. An original and 17 copies of the application and of each response shall be filed in the office of the clerk of the full Supreme Judicial Court. No copy of the application or any response need be filed in the Appeals Court. Filing and service of the application and of any response shall comply with Rule 13. (e) Vote for Further Appellate Review; Certification. If any 3 justices of the Supreme Judicial Court shall vote for further appellate review for substantial reasons affecting the public interest or the interests of justice, or if a majority of the justices of the Appeals Court or a majority of the justices of the Appeals Court deciding the case shall certify that the public interest or the interests of justice make desirable a further appellate review, an order allowing the application or the certificate, as the case may be, shall be transmitted to the clerk of the Appeals Court with notice to the lower court. The clerk of the Appeals Court shall forthwith transmit to the clerk of the full Supreme Judicial Court all documents filed in the case. (f) Briefs. Any party may apply to the Supreme Judicial Court within 14 days after the date on which the appeal is docketed in the full Supreme Judicial Court for permission to file a new brief. If the application is granted, the new brief must be filed in accordance with the briefing schedule established by the Clerk of the Supreme Judicial Court, and the court may impose terms

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as to the length and filing of such brief and any response thereto. If a new brief is filed, it will be considered in lieu of the Appeals Court brief. If permission to file a new brief is denied or not sought, cases in which further appellate review has been granted shall be argued on the briefs filed in the Appeals Court. (g) Equally Divided Vote on Further Appellate Review. If, following allowance of an application for further appellate review, the justices of the Supreme Judicial Court are equally divided in opinion, unless a majority of the participating justices decides otherwise, the court shall issue an order noting such equal division, the effect of which shall be the same as if the court had denied the application for further appellate review.

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RULE 28. ENTRY OF JUDGMENT FOLLOWING RESCRIPT

Summary and Explanation of Revisions The Subcommittee recommends updating the title of this Rule to “Procedure in Lower Court Following Rescript,” and removing the parenthetical indicating that the rule applies only to civil cases. This amendment clarifies the content and applicability of the Rule. The Subcommittee proposes separating this Rule into two paragraphs, one concerning civil cases and the other concerning criminal cases. The existing language, found in new paragraph (a), encompasses the procedure in civil cases. A new paragraph (b) is added to govern the procedure in criminal cases. The proposed language requires action when the rescript reverses or remands a case to the lower court, to ensure a timely hearing is scheduled for further proceedings.

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PROPOSED RULE 28—SHOWING REVISIONS AND DELETIONS Rule 28. Entry of Judgment Procedure in Lower Court Following Rescript (Applicable to Civil Cases) (a) Civil Cases. In a civil case, wWhen the rescript from the appellate court sets forth the text of the judgment to be entered, the clerk of the lower court shall, upon receipt of the rescript, prepare, sign, and enter the judgment which has been ordered. If the rescript orders settlement of the form of the judgment in the lower court, the clerk of the lower court shall sign and enter the judgment after settlement. Notation of a judgment in the lower court docket constitutes entry of the judgment. (b) Criminal Cases. If the rescript has the effect of entitling the defendant to immediate release from custody, counsel for the defendant, the Commonwealth, and the clerk of the lower court shall immediately take any action necessary to ensure that the defendant is released from custody forthwith. In all other criminal cases, unless the rescript affirms the lower court, the clerk of the lower court shall, upon receipt of the rescript, schedule a hearing forthwith to be held no later than 30 days from the clerk's entry of the rescript.

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PROPOSED RULE 28

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Rule 28. Procedure in Lower Court Following Rescript (a) Civil Cases. In a civil case, when the rescript from the appellate court sets forth the text of the judgment to be entered, the clerk of the lower court shall, upon receipt of the rescript, prepare, sign, and enter the judgment which has been ordered. If the rescript orders settlement of the form of the judgment in the lower court, the clerk of the lower court shall sign and enter the judgment after settlement. Notation of a judgment in the lower court docket constitutes entry of the judgment. (b) Criminal Cases. If the rescript has the effect of entitling the defendant to immediate release from custody, counsel for the defendant, the Commonwealth, and the clerk of the lower court shall immediately take any action necessary to ensure that the defendant is released from custody forthwith. In all other criminal cases, unless the rescript affirms the lower court, the clerk of the lower court shall, upon receipt of the rescript, schedule a hearing forthwith to be held no later than 30 days from the clerk's entry of the rescript.

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RULE 29. VOLUNTARY DISMISSAL

Summary The Subcommittee proposes updating the title of this Rule to read “Voluntary Dismissal of Appeal or Other Proceeding.” This title change makes the title of the Rule more clear and descriptive of the Rule’s contents. The major substantive changes are made to paragraph (b), which the Subcommittee proposes separating into two parts, one regarding civil cases and the other regarding criminal cases. In addition, the last sentence of paragraph (b) is moved to new paragraph (d) to highlight that the appellate court is to provide prompt notification of a voluntary dismissal to the clerk of the lower court.

Explanation of Revisions Rule 29(a). No substantive changes have been made to this paragraph. The language has been revised to make it more clear. In addition, the passive voice has been removed. Rule 29(b). The Subcommittee proposes amending the title of this section to include the word “voluntary” to more accurately reflect the substance of this paragraph. The Subcommittee further recommends separating the existing language into two separate paragraphs, one addressing voluntary dismissal in civil cases and another addressing voluntary dismissal in criminal cases because the processes related to each differ. This addition makes the procedures in both types of cases more clear. The proposal also clarifies that although a criminal appeal or other proceeding may be voluntarily dismissed, if the appellant is the defendant, an affidavit by the defendant or an attestation by counsel is required stating that the defendant assents to the dismissal of the appeal with prejudice. New Rule 29(d). The last sentence of paragraph (b) has been moved to a new paragraph (d), to highlight the appellate court clerk’s duty to promptly notify the lower court when an appeal is dismissed pursuant to this Rule.

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Rule 29. Voluntary Dismissal of Appeal or Other Proceeding (a) Voluntary Dismissal in the Lower Court. BeforeIf an appeal has not been docketed in the appellate court, the appeal may be dismissed by the lower court may dismiss the appeal on upon the filing in that court of a stipulation for dismissal signed by all the parties, or on the appellant’s upon motion and with notice by the appellantto all parties. (b) Voluntary Dismissal in the Appellate Court.

(1) Civil Cases. If the parties to ana civil appeal or other civil proceeding shall sign and file with the clerk of the appellate court an agreementa stipulation or motion that the proceeding be dismissed with prejudice, specifying the terms as to payment of costs and attorney’s fees, and shall pay whatever fees are due, the clerk shall enter the case as dismissed, but no rescript or other process shall issue without an order of the appellate court. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court. The clerk of the appellate court shall promptly notify the clerk of the lower court whenever an appeal in a criminal case is dismissed pursuant to this rule. (2) Criminal Cases. A criminal appeal or other criminal proceeding may be dismissed by the appellate court on motion of the appellant, and the clerk shall enter the case as dismissed. If the appellant is the defendant, the motion shall include an affidavit by the defendant, or an attestation by counsel, that the defendant assents to the court’s dismissal of the appeal with prejudice. If the motion states that the appeal is moot, an affidavit by the defendant is not required.

(c) Settlement; Obligation of Appellant. In the event a case is settled or otherwise disposed of while an appeal is pending, it shall be the duty of counsel forthe appellant to notify the clerk of the appellate court forthwith. (d) Notice to Lower Court. The clerk of the appellate court shall promptly notify the clerk of the lower court whenever an appeal is dismissed pursuant to this rule.

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PROPOSED RULE 29 Rule 29. Voluntary Dismissal of Appeal or Other Proceeding

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(a) Voluntary Dismissal in the Lower Court. Before an appeal has been docketed in the appellate court, the lower court may dismiss the appeal on the filing of a stipulation signed by all the parties or on the appellant’s motion with notice to all parties. (b) Voluntary Dismissal in the Appellate Court.

(1) Civil Cases. If the parties to a civil appeal or other civil proceeding shall sign and file with the clerk of the appellate court a stipulation or motion that the proceeding be dismissed with prejudice, specifying the terms as to payment of costs and attorney’s fees, and shall pay whatever fees are due, the clerk shall enter the case as dismissed. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court. (2) Criminal Cases. A criminal appeal or other criminal proceeding may be dismissed by the appellate court on motion of the appellant, and the clerk shall enter the case as dismissed. If the appellant is the defendant, the motion shall include an affidavit by the defendant, or an attestation by counsel, that the defendant assents to the court’s dismissal of the appeal with prejudice. If the motion states that the appeal is moot, an affidavit by the defendant is not required.

(c) Settlement; Obligation of Appellant. In the event a case is settled or otherwise disposed of while an appeal is pending, it shall be the duty of the appellant to notify the clerk of the appellate court forthwith. (d) Notice to Lower Court. The clerk of the appellate court shall promptly notify the clerk of the lower court whenever an appeal is dismissed pursuant to this rule.

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RULE 30. SUBSTITUTION OF PARTIES

Summary and Explanation of Revisions The Subcommittee proposes replacing the “applicable to civil cases” parenthetical with a sentence, and adding “in civil cases” to the title of the Rule. This clarifies the content and applicability of the Rule provisions and deletes a drafting technique unique to only a few rules that may have led to confusion.

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PROPOSED RULE 30—SHOWING REVISIONS AND DELETIONS Rule 30: Substitution of Parties in Civil Cases (Applicable to Civil Cases) This rule applies only to civil cases. (a) Death of a Party. If a party dies after a notice of appeal is filed in the lower court or while a proceeding is pending in the appellate court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the appropriate court. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 13. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate court or a single justice may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the lower court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the appeal is docketed, substitution shall be effected in the appellate court in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by his the party’s personal representative, or, if he the party has no personal representative, by his the party’s attorney of record within the time prescribed by these rules. After the appeal is docketed, substitution shall be effected in the appellate court in accordance with this subdivision. (b) Substitution for Other Causes. If substitution of a party in the appellate court is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision Rule 30(a). (c) Public Officers; Death or Separation From Office.

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(1) When a public officer is a party to an appeal or other proceeding in an appellate court in his the public officer’s official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his the public officer’s successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. (2) When a public officer is a party to an appeal or other proceeding in his the public officer’s official capacity, the public officer he may be described as a party by his official title rather than by name; but the court may require his the public officer’s name to be added.

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PROPOSED RULE 30

Rule 30: Substitution of Parties in Civil Cases This rule applies only to civil cases. (a) Death of a Party. If a party dies after a notice of appeal is filed in the lower court or while a proceeding is pending in the appellate court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the appropriate court. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 13. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate court or a single justice may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the lower court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the appeal is docketed, substitution shall be effected in the appellate court in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by the party’s personal representative, or, if the party has no personal representative, by the party’s attorney of record within the time prescribed by these rules. After the appeal is docketed, substitution shall be effected in the appellate court in accordance with this subdivision. (b) Substitution for Other Causes. If substitution of a party in the appellate court is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in Rule 30(a).

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(c) Public Officers; Death or Separation From Office.

(1) When a public officer is a party to an appeal or other proceeding in an appellate court in the public officer’s official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the public officer’s successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. (2) When a public officer is a party to an appeal or other proceeding in the public officer’s official capacity, the public officer may be described as a party by official title rather than by name; but the court may require the public officer’s name to be added.

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RULE 31. DUTIES OF CLERKS

Summary The Subcommittee has proposed revising this Rule to remove antiquated language and outdated practices. The proposed revisions require the clerk to provide notice when a decision is released, or an order is entered, or an application for direct or further appellate review is granted, but removes language that notice must be served by mail. Instead, the clerk will provide notice to the electronic business address of an attorney that is registered with the Board of Bar Overseers, and will send notice to the mailing or electronic address of a self-represented party, depending upon the party’s address preference as registered with the clerk.

Explanation of Revisions Rule 31(a). The first two sentences have been deleted because they are unnecessary to include in the rules of appellate procedure, where the oath and bond requirement are established by statute (G.L. c. 221, § 12, Bonds of clerks) and the prohibition on practicing is superseded by S.J.C. Rule 3:02 ("All clerks of court . . . and their assistants and employees in their offices are prohibited from engaging in the practice of law during the time they hold office or employment.") and S.J.C. Rule 3:12, Code of Professional Responsibility for Clerks of the Courts, Canon 3 (first par.). Provisions with specific hours of court (weekdays and holidays) have also been removed as unnecessary. 31(b). This paragraph is separated into three paragraphs for clarity and ease of reference, and the language has been updated to be more modern and consistent with current practices and with proposed revisions to the definitions in Rule 1(c). When placing cases on the calendar for argument, in addition to giving preference to appeals in criminal cases and to appeals and other proceedings entitled to preference by law (see G.L. c. 211, § 7 and G. L. c. 211A, § 13), the Subcommittee has added child welfare cases. This addition reflects current practices of the appellate courts.

The reference to the keeping of “books” by the clerk has been removed because it refers to an outdated practice. This language has been updated to “electronic docket” to reflect current practice in the appellate court clerk’s office. Rule 31(c). The title of the paragraph is amended to include the new definition of “decision” in Rule 1(c). Language is added authorizing the clerk to send notices to the electronic business

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address of an attorney that is registered with the Board of Bar Overseers. In addition, the clerk is authorized to send emailed or electronic notice to self-represented parties, depending upon such party’s address preference as registered with the clerk. Rule 31(d). In the last sentence, the phrases “upon the disposition of the case” and “from which they were received” have been deleted. The first deletion was made because it is current practice to return original documents that are transmitted to the Appeals Court as part of the record back to the lower court when review of the case is completed; the clerk does not presently wait for disposition of the case before doing so. The second deletion removes unnecessary language; the clerk of the appellate court would not return original documents to any other court than the lower court which transmitted the records to the appellate court.

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PROPOSED RULE 31—SHOWING REVISIONS AND DELETIONS Rule 31. Duties of Clerks (a) General Provisions. Any clerk of the appellate court shall take the oath and give the bond required by law. No clerk shall practice in any court as an attorney or as counselor while he continues in office. The Supreme Judicial Court and the Appeals Court shall be deemed always open for the purpose of filing any proper paperdocument, of issuing and returning process, and of making motions and orders. The office of the clerk with a clerk in attendance shall be open during the hours from nine in the morning to four-thirty in the afternoon regular court business hours on all weekdays except State and Federal holidays recognized by Saturdays, Sundays, and those days specified in G.L. c. 4, § 7 , any other day appointed as a holiday by the President or the Congress of the United States, or designated by the laws of the Commonwealth, and except that either court may authorize closing of its clerk’s office at four in the afternoon during the period between the Fourth of July and Labor Day. (b) The Docket; Calendar; Other Records Required.

(1) The clerk shall keep an electronic book known as the docket, in such form and style as may be prescribed by the appellate court, and shall enter therein each case. Cases shall be assigned consecutive file docket numbers. The file number of each case shall be noted on the folio of the docket whereon the first entry is made. All papers filings filed with the clerk and all process, orders, decisions, and rescripts shall be entered chronologically in on the docket on the folio assigned to the case. Entries shall be brief but shall show the nature of each paper filing, order, decision, filed or rescript or order

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entered. The entry of an order or rescript shall show the date the entry is made. The clerk shall keep a suitable index of cases contained in the docket. (2) The clerk shall prepare, under the direction of the appellate court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, he the clerk shall give preference to appeals in child welfare and criminal cases, and to appeals and other proceedings entitled to preference by law. (3) The clerk shall keep such other books and records as may be required from time to time by law or by the appellate court.

(c) Notice of Orders, Decisions, or Rescripts. Upon the entry of an order, decision, or rescript, including an order on an application for direct or further appellate review, the clerk of the appellate court shall send a notice of entry to each party, and include a copy of or a link to any decision and rescript. The clerk shall send such notice to the electronic business address of an attorney that is registered with the Board of Bar Overseers, and may send paper notice by conventional mail. The clerk shall send such notice to the mailing or electronic address of a self-represented party, depending upon such party’s address preference as registered with the clerk. Immediately upon the entry of an order or rescript or upon receipt of notice of the grant of an application for direct or further appellate review, the clerk shall serve a notice of entry by mail upon each party to the proceeding together with a copy of any opinion respecting the order or rescript, and shall make a note in the docket of the mailing. Service on a party represented by counsel shall be made on counsel. (d) Custody of Records and PapersDocuments. The clerk shall have custody of the records and papers documents of the appellate court. He The clerk shall not permit any original record or paper document to be taken from his the clerk’s custody except as authorized by the orders or instructions of the court or a single justice. Original papers documents transmitted as the record on appeal or review shall upon disposition of the case be returned to the lower court from which they were received.

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PROPOSED RULE 31 Rule 31. Duties of Clerks (a) General Provisions. The Supreme Judicial Court and the Appeals Court shall be deemed always open for the purpose of filing any proper document, of issuing and returning process, and

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of making motions and orders. The office of the clerk with a clerk in attendance shall be open during regular court business hours on all weekdays except State and Federal holidays recognized by the Commonwealth. (b) The Docket; Calendar; Other Records Required.

(1) The clerk shall keep an electronic docket, in such form and style as may be prescribed by the appellate court, and shall enter therein each case. Cases shall be assigned consecutive docket numbers. All filings, orders, decisions, and rescripts shall be entered chronologically on the docket. Entries shall show the nature of each filing, order, decision, or rescript. (2) The clerk shall prepare, under the direction of the appellate court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerk shall give preference to appeals in child welfare and criminal cases, and to appeals and other proceedings entitled to preference by law. (3) The clerk shall keep such other records as may be required from time to time by law or by the appellate court.

(c) Notice of Orders, Decisions, or Rescripts. Upon the entry of an order, decision, or rescript, including an order on an application for direct or further appellate review, the clerk of the appellate court shall send a notice of entry to each party, with a copy of or a link to any decision and rescript. The clerk shall send such notice to the electronic business address of an attorney that is registered with the Board of Bar Overseers, and may send paper notice by conventional mail. The clerk shall send such notice to the mailing or electronic address of a self-represented party, depending upon such party’s address preference as registered with the clerk. (d) Custody of Records and Documents. The clerk shall have custody of the records and documents of the appellate court. The clerk shall not permit any original record or document to be taken from the clerk’s custody except as authorized by the orders or instructions of the court or a single justice. Original documents transmitted as the record on appeal or review shall be returned to the lower court.

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RULE 32. TITLE No changes proposed.

RULE 32. TITLE These rules may be known and cited as the Massachusetts Rules of Appellate Procedure.

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APPENDIX OF SAMPLE FORMS

Following this page is an appendix of sample forms, with example brief and appendix covers, certificates of compliance pursuant to Rule 16(k), and certificates of service.

Sample Brief Cover ......................................................................................................................... A1

Sample Appendix Cover ................................................................................................................. A2

Sample 16(k) Certificate [word count] ........................................................................................... A3

Sample 16(k) Certificate [page limit] ............................................................................................. A4

Sample Certificate of Service [email service] ................................................................................. A5

Sample Certificate of Service [e-filing system] .............................................................................. A6

Sample Certificate of Service [mailing].......................................................................................... A7

Sample Certificate of Service [inmate legal mail] .......................................................................... A8

Suffolk, SS NO. 2016-P-1234

__________________

Plaintiff

V.

Defendant __________________

Brief Of Defendant-Appellant

__________________

On Appeal From The

Suffolk Superior Court __________________

November 15, 2016

Appendix of Sample Forms A1

matthew.lashof-sulli

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John Q. Public Attorney For Defendant BBO No. 123456 XYZ Law Offices 123 Main St. Boston, MA, 02108 [email protected] (617) 555-1234


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Contains References to IMPOUNDED Material


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______________________________________________


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Commonwealth Of Massachusetts Appeals Court


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Suffolk, SS NO. 2016-P-1234

__________________

Plaintiff

V.

Defendant __________________

Record Appendix Volume II of III

__________________

On Appeal From The

Suffolk Superior Court __________________

November 15, 2016



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John Q. Public Attorney For Defendant BBO No. 123456 XYZ Law Offices 123 Main St. Boston, MA, 02108 [email protected] (617) 555-1234


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Commonwealth Of Massachusetts Appeals Court


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Certificate of Compliance pursuant to Rule 16(k) [word count]

I, [nameJ, hereby certify that this brief complies with the rules of appellate

procedure applicable to briefs, including Rules 16, 18, 20, and 21.

This brief complies with the length and typeface limitations in Rule 20(a)(2) [or 20(a)(3)]

and 20(a)(4) because it is in the proportional font [font name) at size _[font

sizeJ, and contains [number ofJ total words in the parts of the brief required by Rule

16(a)(3)—(9) as counted using the word count feature of [program including

versionJ.

in ~~~ ~wJ n Q. Public (BBO #123456)

XYZ Law Offices123 Main St.

Boston, MA 02108(617)555-1234

igpublic(a~example.com



Certificate of Compliance pursuant to Rule 16(k) [page limit]

I, [nameJ, hereby certify that this brief complies with the rules of appellate

procedure applicable to briefs, including Rules 16, 18, 20, and 21.

This brief complies with the length and typeface limitations in Rule 20(a)(2) [or 20(a)(3)]

and 20(a)(4) because it is in the monospaced font [font name) at size _[font

sizeJ, resulting in characters per inch, and contains [number ofJ total double-spacedpages in the parts of the brief required by Rule 16(a)(3)—(9).

Jb n Q. Public (BBO #123456)XYZ Law Offices

123 Main St.Boston, MA 02108

(617) 555-1234igpublic cr,example.coin



Certificate of Service [email service]

Massachusetts Appeals Court, Plaintiff v. Defendant, No. 2016-P-1234: Appellant's Brief

I, [nameJ, hereby certify that I have previously contacted counsel for all other

parties, and obtained their consent to serve documents on them by email at the following

addresses. On behalf of [partyJ, I have served this brief to the agreed-upon email

addresses on this day, ,the brief having been due on

Service on:

Jane Counseljcounsel a,example.com987 High St.Springfield, MA 01103

Jennifer Attorneyjatty~,example.comP.O. Box 2345Boston, MA 02108

John Q. Public (BBO #123456)XYZ Law Offices

123 Main St.Boston, MA 02108

(617)555-1234igpublic(a),example.com





Certificate of Service [e-filing system]


I, [nameJ, hereby certify that I have served all other parties through the

electronic filing system, each party having been registered for the same. On behalf of

[partyJ, I e-filed the brief on this day, ,the brief having been due on

Service on:

Jane Counselicounsel(c~example.com987 High St.Springfield, MA 01103

Jennifer Attorneyj atty_(a),example.comP.O. Box 2345Boston, MA 02108

~~ ~. I~? CJo n Q. Public (BBO #123456)


Boston, MA 02108(617)555-1234

jc~public~a,example.com





Certificate of Service [mailing]


I, ~nameJ, hereby certify that I have served all other parties by mail at the

following addresses, mailing two printed copies of this brief to each address. On behalf of

(partyJ, I mailed the brief on this day, ,the brief having been due on

Service on:

Jane Counsel Jennifer Attorneyjcounsel(a~example.com jatty_(a),example.com

987 High St. P.O. Box 2345Springfield, MA 01103 Boston, MA 02108

~~~Jo n Q. Public (BBO #123456)


Boston, MA 02108(617)555-1234

j~public(a~example.com





Certificate of Service [inmate legal mail]


I, [nameJ, hereby certify that I have served all other parties by mail at the

following addresses by depositing two printed copies of this brief in the institutional legal mail

system, to each address. I deposited the brief on this day, ,the brief having been due on

Service on:

Jane Counsel987 High St.Springfield, MA 01103

~~ ~ Q. ~~John Q. Public, pro se

MCI ConcordP.O. Box 1234

Concord, MA 01742
