Are You Bound From The Start By The Statements You Make?

Litigators often lose sleep worrying about some misstep that will ultimately sink their case. Most cautious lawyers subscribe to Murphy’s (non-legal) Law: “Anything that can go wrong will go wrong.” A litigator’s version might be something like this: “If I don’t include the kitchen sink, then what I don’t say can and will be held against me by a court of law.”

Litigation’s uncertainties, coupled with notions of zealous representation, make this approach understandable. But for some appellate issues, those sleepless nights and the kitchen sink might be less prominent if you know where to look for help.

At an appeal’s initial stages, courts usually require the appealing party to file a document that describes the appeal and the issues raised. Different jurisdictions call them different things: “statement of the case,” “appeal information statement,” “case information statement,” “civil appeal statement” or something similar. Appellants file these short documents, usually a single page, to provide the court with high-level overviews of the case, generally for administrative purposes.

The statements usually require appellants to list potential issues. And in some jurisdictions, if respondents disagree with those listed issues, then they may provide their own competing versions. But most court’s appellate rules don’t provide explicit guidance on whether parties’ listing of issues in the docketing statements is binding on the parties.

So litigators who draft docketing statements (or their responses) often have several concerns. If the party’s docketing statement omits an issue, is that issue waived? Is the specific formulation of the issue binding on the party when it comes to filing a brief? If the respondent acquiesces or otherwise fails to object to the appellant’s stated issues, are they stuck with the issue as stated?

While not to be taken lightly, the anxious litigator may take some comfort in the fact that most state and federal appellate courts will likely reject any attempt to bind parties to the docketing statements’ stated list of issues.

Minnesota:  ‘proposed’ issues, not comprehensive litany

Appellate rules promote judicial efficiency, and docketing statements help facilitate that efficiency. Rule 133.03 of the Minnesota Rules of Appellate Procedure requires the appellant to file a “Statement of the Case” at the commencement of every appeal. The rule requires parties to briefly describe “claims, defenses, issues litigated” before the trial court, as well as requiring the parties to “[l]ist specific issues proposed to be raised on appeal.” Minn. R. App. P. 133.03, Form 133, available at <>.

Lawyers frequently ask whether — at this early stage of the process — the appellant has to cover the waterfront with potential issues, even if those issues are later jettisoned. Do they have to brief all the issues listed? What happens if an appellant doesn’t list a particular issue?

In Minnesota state court, the answer is pretty clear. In Matter of Salkin, 430 N.W.2d 13 (Minn. App. 1988), appellant’s statement of case didn’t list an issue later included in his brief. The respondent argued that the issue was waived because it was not listed in the statement of case. Id. at 15. The appellate court rejected the respondent’s argument, saying that waiver only occurs if a party fails to raise the issue “in a statement of the case or brief.” Id. (emphasis in original, citation omitted). The court noted that Form 133 requires only “proposed” issues to be raised on appeal. Id. A decade later, an unpublished opinion re-affirmed that position. Amina, Inc. v. Minneapolis, Case No. A06–2172, n.2 (Minn. App. Jan. 29, 2008) (“This court has specifically ‘decline[d] to hold that a statement of the case must include all issues to be addressed in the briefs.’”) (quoting Salkin, 430 N.W.2d at 15).

As a matter of policy, this stands to reason: a purpose of Rule 133 is to simplify the issues. If parties were required to list every conceivable issue in the statement of case issues would not be simplified; the form might look more like a brief than an overview of the case.

8th Circuit: Comprehensive listing can help

The federal analogue to Minnesota’s Form 133 is Form A —the Appeal Information Form. In Form A, an appellant must “List Issues on Appeal (for administrative purposes).” Form A also permits (but does not require) the appellant to indicate that the form also constitutes the appellant’s “statement of issues under FRAP 10(b)(3).” That rule addresses identifying issues in order to ensure the correct portion of the transcript is ordered. It does not, however, restrict the statement of issues in a brief.

Although the 8th Circuit doesn’t require an appellant completing Form A to list all potential issues, Form A might help remedy other paltry pleadings.

Last year, the 8th Circuit held that where the appellant’s notice of appeal was sparse, appellant’s more fulsome listing of issues in the Appeal Information Form saved the day.

In Hallquist v. United Home Loans, Inc., 715 F.3d 1040 (8th Cir. 2013), the appellants sued to challenge the non-judicial foreclosure sale of their home. The District Court dismissed their case, entering judgment on the dismissal. Appellants’ subsequent motion for reconsideration was denied. Id. at 1043. They appealed from that denial, but not from the dismissal of their lawsuit.

Because the issues on appeal from the dismissal would be markedly broader than an appeal only from the denial of reconsideration, the court had to decide if the notice of appeal, which only identified the order denying reconsideration, could be read to include the dismissal. The court concluded it could.

Appellant’s Form A, filed on the same day as the notice of appeal, listed four issues as to which the appellants sought review — all going to the merits of the dismissal order. Id. at 1045. That was enough for the 8th Circuit to conclude that the appellants had manifested an intent to appeal the underlying judgment. “The defendants have not demonstrated any prejudice if review is permitted. They were on notice of [appellants’] intent as expressed in the appeal information form. Id.

That rule makes sense, since the point of a notice of appeal is to inform the court and the other side as to just what judgment, orders, and issues are being brought to the appellate court. Notices of appeal are to be liberally construed, and any information that helps the court figure out what is before it should be, and frequently is, considered in that effort.

A final practical point. While the courts may understand the significance, or lack of significance, of a preliminary statement of issues on appeal, sometimes opposing lawyers don’t. It is not uncommon to see a motion to strike part of a brief addressing an issue not identified in the statement of case or appeal information form. That prospect can be minimized by some expansive drafting, such as “This appeal raises issue X, issue Y, and all other issues properly preserved in the proceedings below and raised by the nature of the appeal.” While this only states what is clearly the law, it may help avoid responding to a challenge that the initial statement of issues was too narrow.

Someone once said “All generalities are false.” An interesting concept if you think about it. But in the world of appeals, it may have some validity. The operative generality is that appeal information forms don’t define the issues to be presented on appeal. But in some instances, they may provide a safety net for the litigant (and lawyer) that needs one.

Reprinted with permission of Minnesota Lawyer ©2014

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