What You Need To Know About New Appellate Rules

Rule amendments, rule amendments, rule amendments. Just when you think you know how to do something, everything is changed. Appeals are no different. Effective July 1, 2016, Minnesota lawyers will need to master the new amendments to the Minnesota Rules of Civil Appellate Procedure.

We all need to face it: Rule amendments are a fact of life. This column has previously addressed rule amendments and why they are necessary. See, e.g., Eric J. Magnuson, “Why more rule amendments?” Minn. Lawyer (Jan. 20, 2014). Regardless of how we might feel about rule amendments, new rules are upon us and we must understand and comply with them. As this column has also noted, when you don’t get with the program, the consequences can often be serious. See Eric J. Magnuson & Lisa L. Beane, “Appendix-itis and Other Potentially Fatal Appellate Diseases,” Minn. Lawyer (Nov. 16, 2015) (discussing the rule change replacing the appendix with an addendum, and how not recognizing that rule could cause serious problems).

So here we are, poised to embrace another set of rule changes. According to the Minnesota Supreme Court’s April 14, 2016, Order Promulgating Amendments to the Rules of Civil Appellate Procedure, the purpose of the amendments is “to further clarify the procedures that govern electronic filing and electronic service in the appellate courts.” That seems like a good idea, because electronic filing has gone from being a novelty to the norm, and although it has real and substantial advantages, it also takes a little practice. See Eric J. Magnuson & Katherine Barrett Wiik, “Appellate E-Filing Has Arrived – or – I Have to Pass Another Test?!” Minn. Lawyer (May 18, 2015).

Many of the amended rules will govern e-filing and e‑service, but there are a number of changes unrelated to e‑filing and e-service. Although you need to know all the changes, here are what we consider to be the three most important rule changes:

1. Mandatory e-filing

Appellate e-filing is mandatory in matters pending on or filed after July 1. See Order Regarding Mandatory and Permissive Electronic Filing and Service in the Appellate Courts, ADM09-8006 (Minn. Jan. 27, 2016). Previously, e-filing was optional in Minnesota appellate courts. Now, e-filing using the Minnesota Appellate E-Filing Application (E-MACS) will be required in all appellate cases for attorneys admitted to practice in Minnesota or admitted pro hac vice to practice before Minnesota appellate courts.

The principal reason for this change is to adapt to technological advancements, but the amendments also alleviate the costs and inefficiencies associated with paper filings. E-filing will reduce appellate costs because paper copies will be eliminated in almost all cases, saving trees and person hours required to open the mail, file stamp documents, make copies, and distribute the paper. In addition, e-filing provides greater access to appellate practitioners and their clients because e-filing is available 24 hours a day, seven days a week. By embracing e-filing, appellate courts have recognized the convenience and benefits of mandatory e-filing in appellate proceedings.

2. Uniform citations to the record

Another notable change concerns citations to the record in appellate briefs. Amended Rule 128.03 clarifies how parties should refer to the record. Rule 128.03(c) states that references to the record should include the document index number from the trial court Register of Actions, and the page numbers of that document. For example, a citation to page three of a Register of Actions entry might be “Doc. 50 at 3.” Minn. R. Civ. App. P. 128.03(c), cmt. However, where that portion of the record is included in an addendum, the citation should refer to the addendum page, such as “Add. 38.” Id.

This change will allow the appellate court to find the cited materials easily. The Advisory Committee Comments to Rule 128.03 explain that “[t]he adoption of system-wide electronic filing makes the use of a uniform means of referencing electronically filed documents both more desirable and more readily accomplished.” Because appellate courts and litigants will be referring to an electronic record, uniform citation requirements are useful to clearly direct the court to particular portions of the record and allow the parties to concisely cite the record.

3. Unpublished decisions not included in addendum

A final noteworthy change concerns the inclusion of unpublished decisions in an addendum. Amended Rule 130.02 eliminates the need to include unpublished decisions in the addendum, unless those decisions are not generally available in online databases or from Minnesota law libraries. However, the Advisory Committee Comment to this amendment clarifies that the amendment does not affect the statutory requirement to provide copies of unpublished opinions to opposing parties or counsel.

The reason for this change is obvious: In today’s electronic world, everyone can get their hands on unpublished decisions through Westlaw, Lexis, or a free service like Google Scholar. “[T]he court does not have use for [unpublished decision] copies given their ready availability online or from law libraries.” Minn. R. Civ. App. P. 130.02, cmt. As a practical matter, parties should no longer include copies of unpublished decisions cited in appellate briefs in the addendum, but should include the appropriate citation for unpublished decisions using the Westlaw database in their briefs. Id. Yes, that’s right, Westlaw even if you use Lexis, Google Scholar, or some other service. For those without access to Westlaw, the Minnesota Judicial Branch offers free access to the database at the Minnesota Law Library. In the rare occasion when unpublished decisions are not easily available and must be included in an addendum, parties may exclude the unpublished decisions from the 50-page limit for the addendum. Id.

A number of additional changes such as the substitution of word limits for page limits in documents other than briefs, the requirement of a table of contents for an addendum, and requirements regarding the signing of pleadings and petitions for recusal will also go into effect on July 1. As a result, you should read and understand all of the amendments to the Rules of Civil Appellate Procedure.

Although learning new rules every couple of years can be a pain, it’s part of the current practice of law. One thing we can be sure of is that the most recent rule amendments will not be the last. In a recent article in the ABA Litigation Journal, one appellate practitioner called for further and more dramatic changes to the appellate rules. “Appellate motions, briefs, and oral arguments are overly formal, redundant, and time-consuming, and there are obvious ways tweaking the rules and incorporating basic technologies could greatly simplify all three.” Martin J. Siegel, Let’s Revamp the Appellate Rules Too, 42 A.B.A. Litig. J. 3 (Spring 2016). It is beyond this article to explore all the ways that the rules might be changed to make the appellate process more efficient (spoiler alert – how about hyperlinks in briefs to the record and cited cases?), but certainly there will be more changes in the years to come.

Reprinted with permission of Minnesota Lawyer ©2016