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Rule 128.Briefs

128.01Informal Briefs and Letter Briefs

Subdivision 1. Informal Briefs.

Informal briefs may be authorized by the appellate court and shall contain a concise statement of the party's arguments on appeal, together with the appendix required by Rule 130.01. The informal brief shall have a cover and may be bound informally by stapling.

Subd. 2.Reliance Upon Trial Court Memoranda.

If counsel elects, in the statement of the case, to rely upon memoranda submitted to the trial court supplemented by a short letter argument, the submission shall be covered and may be informally bound by stapling. The trial court submissions and decision shall be attached as the appendix.

(Amended effective for appeals taken on or after January 1, 1992; amended effective January 1, 1999.)

128.02Formal Brief

Subdivision 1.Brief of Appellant.

The formal brief of the appellant shall contain under appropriate headings and in the order here indicated:

(a) A table of contents, with page references, and an alphabetical table of cases, statutes, and other authorities cited, with references to the pages of the brief where they are cited.

(b) A concise statement of the legal issue or issues involved, omitting unnecessary detail. Each issue shall be stated as an appellate court would state the broad issue presented. Each issue shall be followed by:

(1) a description of how the issue was raised in the trial court, including citations to the record;

(2) a concise statement of the trial court's ruling;

(3) a description of how the issue was subsequently preserved for appeal, including citations to the record; and

(4) a list of the most apposite cases, not to exceed four, and the most apposite constitutional and statutory provisions.

(c) A statement of the case and the facts. A statement of the case shall first be presented identifying the trial court and the trial judge and indicating briefly the nature of the case and its disposition. There shall follow a statement of facts relevant to the grounds urged for reversal, modification or other relief. The facts must be stated fairly, with complete candor, and as concisely as possible. Where it is claimed that a verdict, finding of fact or other determination is not sustained by the evidence, the evidence, if any, tending directly or by reasonable inference to sustain the verdict, findings or determination shall be summarized. Each statement of a material fact shall be accompanied by a reference to the record, as provided in Rule 128.03.

(d) An argument. The argument may be preceded by a summary introduction and shall include the contentions of the party with respect to the issues presented, the applicable standard of appellate review for each issue, the analyses, and the citations to the authorities. Each issue shall be separately presented. Needless repetition shall be avoided.

(e) A short conclusion stating the precise relief sought.

(f) The appendix required by Rule 130.01.

Subd. 2.Brief of Respondent.

The formal brief of the respondent shall conform to the requirements of Rule 128.02, subdivision 1, except that a statement of the issues or of the case or facts need not be made unless the respondent is dissatisfied with the statement of the appellant. If a notice of related appeal is filed pursuant to Rule 103.02, subdivision 2, the respondent's brief shall present the issues specified in the notice of related appeal. A respondent who fails to file a brief either when originally due or upon expiration of an extension of time shall not be entitled to oral argument without leave of the appellate court.

Subd. 3.Addendum.

(a) Contents. Appellant must prepare an addendum and file it with the opening brief. The addendum must include:

(1) a copy of any order, judgment, findings, or trial court memorandum in the action directly relating to or affecting issues on appeal; and

(2) short excerpts from the record, other than from the transcript of testimony, that would be helpful in reading the brief without immediate reference to the appendix.

(b) Length. The addendum must not exceed 15 pages excluding the orders and judgments required by subdivision (1)(a) of this rule and any material reproduced in the addendum under Rule 128.04. The addendum must be incorporated into the back of the brief, unless it includes a long district court decision, in which event it may be bound separately. If bound separately, the appellant must file the same number of addenda as briefs.

(c) Respondent's Addendum. The respondent's brief may include an addendum not to exceed 15 pages, which must be incorporated into the back of the brief.

(d) Non-Duplication. A document or other material included in any party's addendum need not be included in any appendix.

Subd. 4.Reply Brief.

The appellant may file a brief in reply to the brief of the respondent. The reply brief must be confined to new matter raised in the brief of the respondent.

Subd. 5.Additional Briefs.

No further briefs may be filed except with leave of the appellate court.

(Amended effective January 1, 1999; amended effective January 1, 2009; amended effective January 1, 2010.)

Advisory Committee Comment - 1998 Amendments

Rule 128.02 is amended in 1998 to add a requirement for listing the most apposite cases for each issue in the statement of issues. This rule is part of the briefing requirements for the United States Court of Appeals for the Eighth Circuit, and provides useful guidance on the issues. See 8th Cir. R. 28A(I)(4). Minn. R. Civ. App. P. 128.02, subd 2, does not expressly require a statement of issues in a responding brief, but if one is included, it should conform to this rule. In addition, the provisions concerning letter briefs formerly found in Rule 132.01, subd. 5, have been moved to Rule 128.01, subd. 2.

Advisory Committee Comment - 2008 Amendments

Rule 128.02, subdivision 3, as amended, is a new rule, containing a new requirement for submission of an addendum. The rule requires the key trial court rulings, and permits up to 15 additional pages that would be helpful to reading the brief, to be bound with the brief. Presumably, the materials in the addendum would otherwise be contained in the appendix, so this rule really just reorganizes the location of the materials for the benefit of the parties and the appellate judges. The rule explicitly provides for inclusion of the relevant trial court orders or judgment in the addendum; it does not contemplate attachment of briefs of the parties. In the rare cases where memoranda of the parties are relevant to the appeal, they should be included in the appendix. The current subdivisions 3 and 4 of Rule 128.02 are renumbered as subdivisions 4 and 5.

Advisory Committee Comment - 2009 Amendments

Rule 128.02, subdivision 1(b), is amended to require specification of how each issue was raised in the record and preserved for appeal in the trial court, including citations to the record. These are matters that are important to many appeals and adding this requirement is intended to make it easier for the court to determine that each issue was properly raised, decided, and preserved for appeal. This requirement has been implemented by other courts, see e.g., Iowa R. App. P. 6.14, and the committee believes this requirement will improve the quality of briefing in Minnesota appeals. For example, subparagraph 1 requires specification of where an evidentiary objection or offer of evidence was made, including a transcript citation, and subparagraph 3 where it was raised in a motion for new trial to preserve it for appeal. The rule does not expand what is required to raise or preserve an issue for appeal; it only requires that specific information be provided in the statement of issues in the appellant's brief about how these steps were taken.

Rule 128.02, subdivision 1(d), is amended to require that a brief address the applicable standard of appellate review. The standard of review is crucial to the analysis of every issue by the appellate court. A useful compendium of the standards of review for particular issues is Minnesota Court of Appeals, Standards of Review (Aug. 2008), available for review or download at http://www.lawlibrary.state.mn.us/casofrev.html. The rule does not dictate how the standard of review be set forth - whether in a separate section or at the beginning of the argument for an issue - although in most cases it is best handled at the beginning of the argument for each issue. The applicable standard of review must be addressed for each issue in an argument.

Subdivision 2 is amended to reflect the amendment of Rule 106 to abolish the notice of review and adoption of Rule 103.02, subdivision 2, to adopt the notice of related appeal.

128.03References in Briefs to Record

Whenever a reference is made in the briefs to any part of the record which is reproduced in the addendum or appendix or in a supplemental record, the reference shall be made to the specific pages of the addendum or appendix or the supplemental record where the particular part of the record is reproduced. Whenever a reference is made to a part of the record which is not reproduced in the addendum or appendix or in a supplemental record, the reference shall be made to the particular part of the record, suitably designated, and to the specific pages of it, e.g., Motion for Summary Judgment, p. 1; Transcript, p. 135; Plaintiff's Exhibit D, p. 3. Intelligible abbreviations may be used.

(Amended effective January 1, 2009.)

128.04Reproduction of Statutes, Ordinances, Rules, Regulations, Etc.

If determination of the issues presented requires the study of statutes, ordinances, rules, regulations, etc., or relevant parts of them, they shall be reproduced in the brief or in an addendum, or they may be supplied to the court in pamphlet form.

Comment - 1983

See Appendix for form of formal brief (Form 128).

Rule 128.05Citation 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 clerk of the appellate courts 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 the point argued orally. Any response must be made promptly and must be similarly limited.

(Added effective March 1, 2001.)

Advisory Committee Comment - 2000 Amendments

Rule 128.05 is a new provision in the Minnesota Rules. It is patterned after Fed. R. App. P. 28(j), and is intended to allow a party to submit additional authorities to the court without requiring a motion and without providing an opportunity for argument. The rule contemplates a very short submission, simply providing the citation of the new authority and enough information so the court can determine what previously made argument it relates to. The submission itself is not to contain argument, and a response, if any, is similarly constrained. Because a response is limited to the citation of authority and cannot provide argument, a response most frequently will not be necessary or proper. A submission or reply that does not conform to the rule is subject to being stricken. See, e.g., Esicorp, Inc. v. Liberty Mut. Ins. Co., 193 F.3d 966, 972 (8th Cir. 1999) (granting motion to strike argumentative submission); Anderson v. General Motors Corp., 176 F.3d 488 (10th Cir. 1999) (unpublished) (same).

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