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Effective Date: 3/1/1996

Obsolete Date: 3/1/2003

(a) Brief of the Appellant. The brief of the appellant must contain under appropriate headings and in the following order:

1. A table of contents, 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.

2. 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 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, 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.

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.

6. 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) 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) 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 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 are made in the briefs to parts of the record not reproduced, 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.

(f) 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.

(g) Length of Briefs. The author of the brief must sign the brief and thereby certify compliance with the requirements and limits of these rules.

(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) Briefs in Cross-Appeals. An appellee and cross-appellant shall 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.

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.

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 a reply brief must be filed at least 3 days before argument.

(i) Briefs 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.

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; March 1, 2022; August 1, 2023.

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).

Paragraph (7) was amended, effective August 1, 2023, to require a party to cite to the record to show that an issue was preserved for review or to provide a statement of grounds for seeking review of an issue not preserved.

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.

Subdivivison (f) was amended, effective March 1, 2022, to direct parties to Rule 30 for instruction on citing to the record. 

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 30, 2021, pages 2-9; 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.


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. 10(h) (Correction or Modification of 146 Record); N.D.R.App.P. 14 (Identity Protection), N.D.R.App.P. 25 (Filing and Service), N.D.R.App.P. 30 (References to the Record), N.D.R.App.P. 31 (Filing and Service of Briefs) and N.D.R.App.P. 32 (Form of Briefs and Other Documents).

Effective Date Obsolete Date
08/01/2023 View
03/01/2022 08/01/2023 View
03/01/2019 03/01/2022 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