Proposed NRAP changes, a little at a time: NRAP 28, 28.1 and 28.2
This is the tenth in a series of posts looking at proposed changes to the Nevada Rules of Appellate Procedure. The Nevada Supreme Court will hear public comment on October 6. The Court welcomes written comments about the proposed amendments.
Previous posts on this topic:
Proposed changes to NRAP 1, 2 and 3
Proposed changes to NRAP 3A, 3B and 3C
Proposed changes to NRAP 3D, 3E and 4
Proposed changes to NRAP 5, 7 and 8
Proposed changes to NRAP 9
Proposed changes to NRAP 10, 11, 12 and 13
Proposed changes to NRAP 14, 21 and 22
Proposed changes to NRAP 23, 24, 25 and 25A
Proposed changes to NRAP 26, 27
NRAP 28 Briefs. (page 67 of the pdf)
Subsection (a) Appellant's Brief
Major changes are proposed
The requirements for a table of contents and table of authorities would remain the same.
Subsection (a)(3) would require a jurisdictional statement, including the basis for the Court's appellate jurisdiction, the filing dates establishing the timeliness of the appeal, and an assertion that the appeal is from a final order or judgment or information establishing the court's jurisdiction on some other basis.
The requirements for a statement of the issues presented, statement of the case, and statement of the fact would remain the same.
Under the existing rule, a summary of the argument may be included. Under the proposed rule, at subsection (a)(7) briefs shall include "a summary of the argument, which must contain a succinct, clear and accurate statement of the arguments made in the body of the brief, and which must not merely repeat the argument headings."
The argument portion of the brief is addressed in subsection (a)(8). A new provision would be added as subsection (a)(8)(B) which would require that "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 issue).
The requirements for a conclusion and attorney's certificate remain the same.
Subsection (b) Respondent's Brief
The proposed changes are primarily stylistic. Basically, the Respondent's brief should include the same matters included in the Appellant's brief, but the Respondent may omit sections of the brief if they are satisfied with the Appellant's jurisdictional statement, statement of the issues, statement of the case, statement of the facts, and statement of the standard of review.
Subsection (c) Reply Brief
The proposed changes are stylistic.
Subsection (d) References in Briefs to Parties
The proposed changes are stylistic
Subsection (e) References in Briefs to the Record
The proposed changes are primarily stylistic. A new provision requires that assertions to the brief cite to the volume number of the transcript or appendix in addition to the page number.
Subsection (f) Reproduction of Statutes, Rules, Regulations, Etc.
The proposed changes are stylistic
Subsection (g) Length of Briefs
The current version of the rule provides for briefs of 30 pages unless permission is granted for excess pages. The proposed rule would reference Rule 32(a)(7) for provisions regarding the length of briefs
Subsection (h) Reserved
The current version of the rule addresses cases involving cross-appeals. This rule would be omitted under the proposed revisions and a new Rule 28.1 would be created to address cross-appeals.
Subsection (i) Briefs in a Case Involving Multiple Appellants or Respondents
The proposed changes are stylistic
Subsection (j) Sanctions for inadequate briefs
This would be a new rule: "All briefs under this rule must be concise, presented with accuracy, logically arranged with proper headings and free from burdensome, irrelevant, immaterial or scandalous matters. Briefs that are not in compliance may be disregarded or stricken, on motion or sua sponte by the court, and the court may assess attorney fees or other monetary sanctions against the offending lawyer.
Analysis
The requirement for a statement of the standard of review is common in other appellate courts and is long overdue here. I wish there was a requirement for the Respondent's Answering Brief that argument on issues presented be set forth forth in the same order that they are presented in the Appellant's Opening Brief. It tends to drive me a bit bonkers when I'm writing a Reply Brief and I can't find the State's argument on a particular issue because the DA decided to hide it within another issue or otherwise randomly present the answering arguments in an obscure that bears no relationship to the issues as they are presented in the opening brief. I'll get over it, but it's annoying and probably difficult for the Court to follow as well.
Rule 28.1 Cross-Appeals (page 71 of the pdf)
Under the existing rules, cross-appeals are addressed in a single small paragraph. The new rule is lengthy and provides much more guidance concerning briefing in cross-appeals. Please consult the text as I don't want to type it all. It essentially follows existing practice. The third of the four briefs is to have a yellow cover and supplemental briefs are to have tan covers. That's new.
Rule 28.2 Attorney's Certificate (page 74 of the pdf)
This rule is currently Rule 28A. The proposed rule would be Rule 28.2. Other changes are stylistic.