RULE 28. BRIEFS
(a) Form of Briefs. All briefs must comply with Rule 32.
(a) Brief of the Appellant. The brief of the appellant must contain under appropriate headings and in the following order:
(b) Appellant's Brief. The appellant's brief must contain, under appropriate headings and in the order indicated:
1. A (1) a table of contents, with page references ,; and a table of cases (alphabetically arranged), statutes, and other authorities cited,
(2) a table of authorities -- cases (alphabetically arranged), statutes, and other authorities--with references to the pages of the brief where they are cited
.; 2. In (3) in an application for the exercise of original jurisdiction, a concise statement of the grounds on which the jurisdiction of the supreme court is invoked, including citations of authorities .; 3. A (4) a statement of the issues presented for review .; 4. A concise statement of the case. The statement must first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below,
(5) a statement of the case briefly indicating the nature of the case, the course of the proceedings, and the disposition below;
followed by a clear, concise, chronological statement of the facts relevant to the issues presented for review, with appropriate references to the record (subdivision (e)). If the facts are in dispute the brief must so state.
(6) a statement of the facts relevant to the issues submitted for review, which identifies facts in dispute and includes appropriate references to the record (see Rule 28(e));
5. An Argument. The argument may be preceded by a summary. The argument must contain the contentions of the appellant with respect to the issues presented, and the reasons therefor with citations to the authorities, statutes, and parts of the record relied on. The argument must avoid unnecessary repetition.
(7) the argument, which must contain:
(A) appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies; 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);
6. A (8) a short conclusion stating the precise relief sought. (b) Brief of the Appellee. The brief of the appellee must conform to the requirements of subdivision (a)(1), (3), (4), and (5), but a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.
(c) Appellee's Brief. The appellee's brief must conform to the requirements of subdivision (b), except that none of the following need appear unless the appellee is dissatisfied with the appellant's statement:
(1) the jurisdictional statement;
(2) the statement of the issues;
(3) the statement of the case;
(4) the statement of the facts; and
(5) the statement of the standard of review.
(c) Reply Brief. The appellant may file a single reply brief that conforms to subdivision (a)(1) strictly confined to new matter raised in the appellee's brief. Except as provided in subdivision (h), no other briefs may be filed without leave of the court.
(d) Reply Brief. The appellant may file a single brief in reply to the appellee's brief. Unless the court permits, no further briefs may be filed. A reply brief must contain a table of contents, with page references, and a table of authorities -- cases (alphabetically arranged), statutes, and other authorities -- with references to the pages of the reply brief where they are cited.
(d) References in Briefs to Parties. Counsel 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 instead the designations used in the trial court or in the agency proceedings, or the actual names of parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," "the purchaser."
(e) References to Parties. In briefs and at oral argument, counsel should minimize use of the terms "appellant"and "appellee." To make briefs clear, counsel should use the parties' actual names or the designations used in the lower court or agency proceeding, or such descriptive terms as "the employee," "the injured person," "the taxpayer," "the purchaser."
(e)(f) References in Briefs to the Record. Briefs must contain references to the page of the appendix where the part of the record relied on appears (see Rule 30(a)).If References to the parts of the record contained in the appendix filed with the appellant's brief must be to the pages of the appendix. If the appendix is prepared after the briefs are filed or if references are made in the briefs to parts of the record not reproduced in the appendix, the references must be to the docket number of that part of the record. If reference is made to evidence the admissibility of which is in controversy, reference must be made to the pages of the appendix or transcript where the evidence was identified, offered, and received or rejected A party referring to evidence whose admissibility is in controversy must cite the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. (f)(g) Reproduction of Statutes, Rules, Regulations, and Other Sources. If determination of the issues presented requires the study of statutes, rules, regulations, other sources, or relevant parts thereof, they must be reproduced in the brief or in an addendum thereto, or they may be supplied to the court in pamphlet form. If the court's determination of the issues presented requires the study of statutes, rules, regulations, etc., the relevant parts must be set out in the brief or in an addendum at the end of the brief. (g)(h) Length of Briefs. The author of the brief must sign the brief and thereby certify compliance with the requirements and limits of these rules. [Reserved]. (1) Word Limit for Proportional Typeface. If proportionately spaced typeface is used, a principal brief may not exceed 10,500 words, and a reply brief may not exceed 2,500 words, excluding words in the table of contents, table of citations, and any addendum. Footnotes must be included in the word count. (2) Page Limit for Monospaced Typeface. If monospaced typeface is used, a principal brief may not exceed 40 pages, and a reply brief may not exceed 10 pages, excluding the table of contents, table of citations, and any addendum. (h)(i) Briefs in Cross-Appeals a Case Involving a Cross-Appeal.
(1) An appellee and cross-appellant
shall must file a single brief at the time the appellee's brief is due. This brief must contain the issues and argument involved in the cross-appeal as well as the answer to the appellant's brief.
(2) The appellant's answer to the cross-appeal must be included in the reply brief, but without duplication of statements, arguments, or authorities contained in the appellant's principal brief. To avoid duplication, references may be made to the appropriate portions of the appellant's principal brief.
(3) The cross-appellant may file a reply brief confined strictly to the arguments raised in the cross-appeal. This brief is due within 14 days after service of the appellant's reply brief; however, if there is less than 14 days before oral argument, the reply brief must be filed at least 3 days before argument.
(i)(j) Briefs In a Case Involving Multiple Parties. Any number of parties may join in a single brief or adopt by reference any part of another's brief. Parties may similarly join in reply briefs.
(k) Citation of Supplemental Authorities. If pertinent and significant authorities come to a party's attention after the party's brief has been filed--or after oral argument but before decision--a party may promptly advise the court by letter, with a copy to all other parties, setting forth the citations. The letter must state without argument the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. Any response must be made promptly and must be similarly limited.
Rule 28 was amended, effective March 1, 1986; January 1, 1988; March 1, 1994; March 1, 1996; March 1, 2003.
subdivision (a) paragraph(b)(4), each legal issue should be stated as a question of law sufficiently specific to allow the court to understand the precise issue presented. Generalized statements such as, "Is the verdict supported by the evidence?" are not sufficient.
(e)(f), references may be made to the docket number of parts of the record not reproduced as in the examples following: Answer, docket No. 2, p. 7; Motion for Judgment, docket No. 15, p. 2; Transcript p. 231. Under subdivision (g)(1), a party may rely upon the word count of the word processing system used to prepare the brief.
Rule 28 was revised, effective March 1, 2003, in response to the December 1, 1998, amendments to Fed.R.App.P. 28. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. Substantive changes were made to conform this rule with the changes made in Rule 32.
Subdivision (a) was added to inform parties that all briefs must comply with Rule 32.
Paragraphs (1) and (2) were amended, effective March 1, 2003, to separate the
table of contents and the table of authorities into two distinct items in a brief.
Paragraphs (5) and (6) were amended, effective March 1, 2003, to require two separate statements--a statement of the case (the procedural history) and a statement of the facts.
Subdivision (c) was amended, effective March 1, 2003, to conform the appellee's brief with the appellant's brief, and to expand the items that need not be included in the appellee's brief.
Subdivision (h) was amended, effective March 1, 2003, to delete length limitations, which have been moved to Rule 32.
Subdivision (k) was added, effective March 1, 2003, to provide a means for parties to inform the court of authorities that come to a party's attention after a brief has been filed or after oral argument.
SOURCES: Joint Procedure Committee Minutes of September 27-28, 2001, pages 7-9; April 27-28, 1995, pages 15-17; January 26-27, 1995, pages 6-7; September 29-30, 1994, pages 13-16; January 28-29, 1993, page 11; February 19-20, 1987, page 8; September 18-19, 1986, pages 15-16; November 30, 1984, pages 32-33; October 19, 1984, pages 23-26; March 16-17, 1978, page 4; January 12-13, 1978, pages 15-18. Fed.R.App.P. 28.
SUPERSEDED: N.D.C.C. §§ 28-18-06, 28-18-09, 28-27-33, 29-23-01, 29-23-02, 29-23-03, 29-23-04, 29-23-08, and 29-23-09.
CROSS REFERENCE: N.D.R.App.P. 25 (Filing and Service), N.D.R.App.P. 30 (Appendix), N.D.R.App.P. 31 (Filing and Service of Briefs) and N.D.R.App.P. 32 (Form of Briefs, Appendices, and Other Papers).