(a) Form of Briefs.
All briefs must comply with Rule 32.
(b) Appellant's Brief.
The appellant's brief must contain, under appropriate headings
and in the order indicated:
(1) a table of contents, with page references;
(c) Appellee's Brief.
(2) a table of authorities - cases (alphabetically arranged), statutes, and other
authorities - with references to the pages of the brief where they are cited;
(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
(4) a statement of the issues presented for review;
(5) a statement of the case briefly indicating the nature of the case, the course of the
proceedings, and the disposition below;
(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(f));
(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 (8) a short conclusion stating the precise relief sought.
(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); and
(C) if the appeal is from a judgment ordered under N.D.R.Civ.P. 54(b), whether the certification was appropriate.
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; (d) Reply Brief.
(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.
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. (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."
(f) References to the Record.
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. 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. (g) Reproduction of Statutes, Rules, Regulations, and Other Sources.
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. (h) [Reserved].
(i) Briefs in a Case Involving a Cross-Appeal.
(1) An appellee and cross-appellant 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. (j) Briefs In a Case Involving Multiple Parties.
(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.
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
(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.
All briefs under this rule must be concise, presented with accuracy,
logically arranged with proper headings, and free from burdensome, irrelevant or immaterial
Rule 28 was amended, effective March 1, 1986; January 1, 1988; March 1, 1994;
March 1, 1996; March 1, 2003; March 1, 2008; March 1, 2010
Under 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.
Under subdivision (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.
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.
Subdivision (b) :
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. Paragraph (7) was amended, effective March 1, 2010, to require a party to brief the appropriateness of a district court's grant of a certification under N.D.R.Civ.P. 54(b).
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
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.
Subdivision (l) was added, effective March 1, 2008, to explain requirements for briefs
filed under Rule 28.
Sources: Joint Procedure Committee Minutes of September 24-25, 2009, pages 11-12;
2007, pages 29-31; 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. Rule 28, 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).