It’s official. For the first time since the major edits of 2009, the Supreme Court has revised the North Carolina Rules of Appellate Procedure. While there is no change as momentous as, say, the abolition of assignments of error four years ago, the rule changes will soon impact every appellate practitioner.
The biggest change is that Reply briefs are now always permitted under new Rule 28(h). No longer will you have to wait to find out if your case would be orally argued, or wonder whether an Appellee’s brief presents an issue sufficiently “new” or “additional” to merit a Reply. Instead, you will have 14 days to serve a Reply in every case. Period.
The primary reason behind this change lies in the statistics of oral arguments. Approximately 80% of appeals have historically been “30(f)’d,” meaning decided without oral argument. Under old Rule 28(h), parties had a right to file a Reply brief in that instance, after the Court had made an initial review of the briefs and found oral argument unnecessary. The timing also didn’t work well. Reply briefs were often filed just days before conference–the day the panel votes on the disposition of the appeal. That is, in 80% of cases, a reply brief was allowed, but not all that useful. New Rule 28(h) simply increases that number to 100%, but requires a Reply brief to be filed within 14 days of the Appellee’s brief. The idea is that the panel can timely consider the Reply brief alongside the other briefs.
Next, the revisions codify an existing practice allowing the “three-day mail rule” in Rule 27(b) to be applied when a document is served by email. This is not a substantive change.
Finally, the revisions rewrite Rule 9(d), which deals with Documentary Exhibits. Most significantly, the Court will now require documentary exhibits to be paginated and, when multiple exhibits are filed, indexed. This is most useful for appeals from trials or other evidentiary hearings. Instead of sending up a haphazard array of trial exhibits, you must now organize the documents first. No Judge wants to be fumbling through unnumbered pages without an index trying to find what you keep calling “the key document in this case.” (The Appellate Style Manual already provides a nice example of how to comply with this Rule.) The revisions also make clear that the trial court clerks must send non-reproducible exhibits (e.g., a weapon, an oversized plat) to the appellate courts upon counsel’s written request. No order from the appellate court is required.
The rule changes are effective April 15, 2013. Unlike after the 2009 changes, the rules do not change for appeals filed on or after April 15, 2013. Rather, the rules change on April 15, 2013. This may lead to some interesting squabbles for papers due around that time. For example, do you have an automatic right to file a Reply brief to an Appellee’s brief filed, say, on April 10?
These rule changes are good news for appellate practitioners, in my view. Many thanks to the Supreme Court for being responsive to the needs of the appellate bar, and for its continued stewardship of the Appellate Rules.