RULE 28. BRIEFS

Effective Date: 3/1/2019

(a) Form of Briefs. All briefs must comply with Rule 25 and 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 paragraph references;

(2) a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the paragraphs in 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 authorities;

(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

(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; and (8) a short conclusion stating the precise relief sought.

(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.

(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 paragraph references, and a table of authorities—cases (alphabetically arranged), statutes, and other authorities—with references to the paragraphs in the reply brief where they are cited.

(e) References to Parties.  Except as required under Rule 14, 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 for which 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) Oral Arguments Requested. Any party who desires oral argument must place the words "ORAL ARGUMENT REQUESTED" conspicuously on the cover page of the appellant's, appellee's or cross-appellee's reply brief. Any party requesting oral argument must include in their brief a short statement explaining why oral argument would be helpful to the court.

(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.

(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 5 days before argument.

(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.

(l) Requirements. All briefs under this rule must be concise, presented with accuracy, logically arranged with proper headings, and free from burdensome, irrelevant or immaterial matters.

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; March 1, 2011; October 1, 2014; December 1, 2014; March 1, 2019.

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 and amended effective October 1, 2014, to conform the rule to electronic filing.

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 brief.

Subdivision (e) was amended, effective March 1, 2019, to reference Rule 14, which provides for identity protection for certain individuals.

Subdivision (h) was amended, effective March 1, 2003, to delete length limitations, which have been moved to Rule 32.

Subdivision (h) was amended, effective March 1, 2019, to require a party to request oral argument and provide a short statement explaining why oral argument would be helpful to the court.

Paragraph (i)(3) was amended, effective March 1, 2011, to change the deadline for a cross-appellant to serve and file a reply brief if there is less than 14 days before argument from 3 to 5 days before argument.

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.

Rule 28 was amended, effective October 1, 2014, to replace "paper" with "document."

Rule 28 was amended, effective December 1, 2014, to require references to paragraph numbers in tables of contents and tables of authorities.

SOURCES: Joint Procedure Committee Minutes of September 26, 2013, page 25; April 29-30, 2010, pages 23-24; September 24-25, 2009, pages 11-12; April 26-27, 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. Fed.R.App.P. 28.

STATUTES AFFECTED:

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. 14 (Identity Protection), 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 Documents).

Effective Date Obsolete Date
03/01/2019 View
12/01/2014 03/01/2019 View
03/01/2011 12/01/2014 View
03/01/2010 03/01/2011 View
03/01/2008 03/01/2010 View
03/01/2003 03/01/2008 View
03/01/1996 03/01/2003 View