Civil Cases

A. What if I am dissatisfied with the trial court's judgment?

If you are dissatisfied with the trial court's judgment, you have a right to appeal after final judgment has entered. For appellate purposes, a matter is ripe for appeal when an order, decree or judgment has entered as to all issues and all parties so that there is nothing left to litigate.
B. How do I appeal the trial court judgment?

The first step is to file a notice of appeal in the clerk's, register's or recorder's office of the court in which your case was heard. The deadline for filing a notice of appeal can be as short as ten days. For most cases, the deadline is thirty days after the final judgment is entered on the docket. As soon as a judgment is rendered in your case, you will need to determine what the deadline is for filing an appeal, and where you need to file it. It is important that you read and follow the Massachusetts Rules of Appellate Procedure (Mass.R.A.P.) or other rules that apply to your case. The rules may be available for you to view in law libraries (see Exhibit 1 andhttp://www.lawlib.state.ma.us/libraries/index.html), or can be found on the Appeals Court website via http://www.mass.gov/courts/sjc/rules.html.
C. What is a notice of appeal? A notice of appeal is a written statement prepared by you that has the name of your case, the trial court docket number, and states your intention to appeal the judgment. The notice of appeal should include your name, and should specify the order, decree or judgment that you are appealing. See Exhibit 2 and Mass.R.A.P. 3(c). The notice must be filed in the clerk's office of the trial court where your case was heard. See Mass.R.A.P. 4(a). See Mass.R.A.P. 4(c) & 14(b) if you have missed the filing deadline. D. Do I have to do anything else when I file my notice of appeal? Yes. If there was a trial in your case in which people testified and evidence was taken, you will need to have a transcript of the trial. You must contact the trial court clerk's office to get the information as to how to order the trial transcript and whom you must pay. If you are indigent, you may file a motion in the trial court, supported by a current affidavit of indigency, asking to have the cost of the transcript paid by the Commonwealth. If your case was decided just on the papers filed, for example, on a motion to dismiss, and no witnesses testified, it is not necessary to order a transcript. Whether or not you order a transcript, you are required to file a certificate in the lower court clerk's office stating that either a transcript is necessary for your appeal and you have ordered it, or that no transcript is necessary for the appeal. See Mass.R.A.P. 9(c)(2). E. When I get the transcript, what do I do? When you receive the transcript, make a copy for yourself, for the trial court clerk's office and for each opposing counsel or party. You must file a copy of the transcript with the trial court clerk's office. See Mass.R.A.P. 9(c)(2). Typically, the filing of the transcript is the final step in the assembly process. It is advisable to make a written request to the trial court clerk's office to assemble the record when all of the transcripts have been filed there. It is a good idea to submit this request as a letter and to send a copy to all opposing counsel or parties. F. What does the trial court clerk's office do with the transcript? Once you file a copy of the transcript with the trial court clerk's office, that office will "assemble the record", send it to the Appeals Court, and send notice to all parties involved that this has been done. It is important that the trial court clerk's office has your current address and phone number. See generally Mass.R.A.P. 8(b) & 9. G. What does "assemble the record" mean? "Assemble the Record" refers to the trial court clerk's office's action of placing together all of the original papers, exhibits, and the transcript, if any, filed in the trial court. See Mass.R.A.P. 8(a).

During the course of the appeal, the trial court will retain the record, and does not send any portion of the record to the Appeals Court, unless requested to do so by the Court. See Mass.R.A.P. 9(a). When you prepare your record appendix (see Section K) you may request from the trial court copies of those parts of the record necessary for the Court to effectively analyze and determine your appellate issues. There is a charge for the copies, or you may use your own copies if they do not have your writing or notes on them. How long does it take to "assemble the record"? The rules do not specify a deadline for the trial court to complete the assembly of the record. Because of the number of cases that the trial courts are asked to handle and assemble, and because the assembly process itself requires careful attention to detail, it may take many weeks for the assembly process to be completed. If transcripts have been ordered, the assembly process may be further delayed pending completion of the transcripts, a process that is beyond the control of the clerk's office. H. How do I docket my appeal? Within ten days of receiving notice from the trial court clerk, you must pay your docket fee to the Appeals Court. See Mass.R.A.P. 10 (a). The docket fee is $300 per appealing party. If you and your spouse are both appealing, the fee is $600. The Appeals Court will accept payment in cash, bank check or money order. Personal checks are not accepted. Any bank check or money order is made payable to the Commonwealth of Massachusetts. You may pay in person or mail your payment to: Appeals Court Clerk's Office John Adams Courthouse One Pemberton Square Suite 1200 Boston, MA 02108 If you are not able to pay the docketing fee because you are indigent you may file a Motion to Waive the docket fee along with an affidavit of indigency. The affidavit is available on the Appeals Court website at: http://www.mass.gov/courts/sjc/affidavit-indigency-related-docs.html or you may come to the Clerk's Office to fill out the Motion to Waive and the affidavit. It is very important that your payment (or your Motion to Waive with affidavit of indigency attached) is received in the Clerk's Office within ten days following your receipt of the record assembly notice. Failure to docket your appeal within the ten-day deadline will require the filing of a motion, with additional filing fee required, asking a single justice of the Appeals Court to permit your appeal to be docketed late. After you docket your appeal, the Appeals Court Clerk's Office will send you a Notice of Entry with your docket number in the Appeals Court. This number will not be the same as your trial court docket number. You will be required to include this docket number on each document filed with the Appeals Court. If you call the Clerk's Office with questions about your case, you will be asked to provide this docket number. You are now designated as the appellant in the case. The other side is designated as the appellee. You should immediately review the Massachusetts Rules of Appellate Procedure (Mass.R.A.P.), especially those sections of the rules that are referenced in this guide. As a pro se litigant, you are bound by the same rules and are held to the same standards as a party who is represented by an attorney. Commonwealth v. Jackson, 419 Mass. 716, 719 (1995) Now that your case has been docketed, you are required to file and serve a docketing statement, according to the Appeals Court's Pilot Program Requiring Appellants to File Docketing Statements in Civil Cases. The docketing statement provides the court with important background information involving your case that will be useful when the appeal is entered, screened, and considered by the court. It must be sent to the Court by e-mail within fourteen (14) days after the Appeals Court issues the "Notice of Entry" of the appeal. The docketing statement, and its instructions, is available at:http://www.mass.gov/courts/appealscourt/docs/civdocketingstatement.pdf. If you do not file the docketing statement, the court can deny any motion to enlarge time to file a brief or a motion to stay appellate proceedings, until the docketing statement is filed.

The appellant's primary responsibility in an appeal is the preparation and filing of a brief and record appendix. As the appellant, you have forty (40) days to serve and file your brief and record appendix. Mass.R.A.P. 19(a). As discussed below, the rules require you to file and serve multiple copies of the brief and record appendix. J. What is a brief? A brief is the appellant's vehicle to present argument to the Court in support of the appellant's claim that the trial court committed reversible error. There is no right to have your appeal argued orally, and most appeals are determined solely on the briefs filed by the parties. A brief contains a statement of the issues on appeal, the procedural history of the case, a statement of the underlying facts, the appellant's legal argument, and a conclusion stating the relief sought. See below "Contents Of The Brief" for additional requirements. Mass.R.A.P. 16, 19, and 20 govern the content and format of an appellate brief. Your principal appellate brief must have a blue cover, must be securely bound on the left hand side and cannot be longer than 50 pages. The cover of the brief must have the name of the case, the Appeals Court docket number, the name of the trial court, the title of the document (i.e., Appellant's Brief), and your name, address, and telephone number. See Mass.R.A.P. 20. Formatting of the Brief: Your principal brief may not be longer than fifty pages. The fifty page limit does not include the table of contents, the table of authorities, and the addendum. You must have one and one half inch margins on the left and the right, and one inch top and bottom margin. Your brief must be typed in black ink using a monospaced font, double spaced, on 8 1/2" by 11" inch white paper. As stated in the Reporter's Notes to Mass.R.A.P 20, it is suggested that Courier New font, 12 point size, be used when typing your brief, because it is the monospaced font most widely used by parties when filing briefs with the Appeals Court. See Mass.R.A.P. 20. Notably, footnotes must be typed using the same font and point size. See Exhibit 6 for a checklist detailing these requirements. Contents Of The Brief Your brief is required to contain the following elements, arranged in the order as set out below. Table of contents with page references to pages in the brief where the content appears. Mass.R.A.P. 16(a)(1). Table of Authorities including a list of cases referred to, alphabetically arranged, with page references to pages in the brief where the case citation appears. This table should also include statutes and other legal authorities with appropriate page references. Mass.R.A.P. 16(a)(3). Citations must be to the official Massachusetts Reporter volume. Statement of the issues is a brief summary of the issues raised in your brief and discussed in the argument section. Mass.R.A.P. 16(a)(2). The statement of the issues is the first page of the substantive portion of your brief, and should be numbered as page 1. Statement of the case is a procedural history of what happened to your case. It is helpful to have page references to the record appendix to support your statement of the case. Mass.R.A.P. 16(a)(3). Statement of the facts. Your statement of the facts should be an objective description of the facts of your case as it developed and proceeded in the trial court. Importantly, every fact included in this statement must have support in the record appendix and must be followed by a page reference to the appendix or transcript where that fact appears. Mass.R.A.P. 16(a)(3) and 16(e). Summary of the argument is necessary only if your argument section is longer than 24 pages. This section is a brief summary of the arguments made later in the brief and should have a page reference to the pages at which each point argued appears later in the brief. Mass.R.A.P. 16(a)(4). Argument. This section contains the legal argument that supports the issues you are raising on appeal. Your legal argument must be supported by legal authority such as appellate case law, statutes, and/or regulations. Mass.R.A.P. 16(4). You must use official case citations, such as Commonwealth v. Moffett, 383 Mass. 201 (1981),

and Commonwealth v. Giontzis, 47 Mass. App. Ct. 450 (1999). If you are citing to a constitutional provision, statute or regulation as authority in support of your legal arguments, you must include as an addendum to the brief a copy of the constitutional provision, statute or regulation. This is referred to as the statutory addendum. (See "Addendum" below.) Mass.R.A.P. 16(f). Conclusion. This is a concise statement of the relief that you are asking the court to give you. Mass.R.A.P. 16(k) certificate of compliance. The last page of every brief must contain a statement which certifies that you have complied with the Massachusetts Rules of Appellate Procedure that pertain to the filing' of briefs. See Exhibit 5. Addendum. The addendum is physically attached to the end of your brief and must include copies of any statutes, rules, regulations, or local ordinances that you refer to in your brief. Mass.R.A.P. 16(f). It must also contain a copy of the order, judgment or decree that you are appealing. Mass.R.A.P. 16(a)(6). The addendum is not the same as the appendix. The addendum should also be consecutively numbered, for example, Add. 1, Add. 2, etc. Certificate of Service. A certificate of service must be filed with the Appeals Court at the time of the filing of your brief and appendix. It is not required that the certificate of service be bound with the brief, and it is preferable to the Court that it be filed separately. A certificate of service is signed under the pains and penalties of perjury, lists the date and manner of service (e.g., first class mail, in hand service), and must provide the address at which each party was served. If service was made on counsel, the certificate of service must also indicate the name of the party being represented by counsel served. See generally Mass.R.A.P. 13. Other Requirements. Use of pseudonyms or initials for name of sexual assault victims. M.G.L. c. 265, 24C prohibits the disclosure of the name of the victim of certain sexual assault crimes. If the case involves any type sexual assault, it is required to use a pseudonym or initials when referring to the victim or complainant. If the name of the victim appears in the record appendix, you must black out the name. K. What is a record appendix? The record appendix, or appendix, is the collection of those portions of the trial court's record (e.g., papers, exhibits and/or transcripts) relevant to the issues, facts, and arguments set forth in your brief. The appendix must also include a copy of the trial court docket, as well as a copy of the order, judgment, or decree being appealed. See Mass.R.A.P. 18(a). It is your responsibility as the appellant to provide the Court with each document and/or transcript that you believe is necessary to decide your appeal. If you do not provide it, it will not be considered by the judges deciding your case. The Appeals Court is a reviewing court, and reviews only those documents that were made part of the trial court record; documents not made part of the record are not permitted to be included in the appendix. Format. The appendix, if it is bound separately from your brief, must have a white cover containing the same information that is on the cover of your brief. The appendix must have a table of contents which identifies each document and lists the page number of the appendix at which it starts. Mass.R.A.P. 18(d). The pages must be consecutively numbered, for example, A1, A2, etc., and the documents should be placed in the same chronological order as they were filed in the trial court, starting with the trial court's docket. The appendix cannot be more than one and one half inches thick. If it is, it must be broken into separate volumes. Mass.R.A.P. 20(a). The cover of each volume should identify its number in comparison to the total number of volumes (e.g., "Vol. 1 of 3"). Insertion and reference to impounded materials. If the entire case has been impounded by a court order, standing order or by statute, the cover of the record appendix must clearly indicate that the record appendix is impounded.

See Mass.R.A.P. 16(m). If only some of the documents you wish to include in the record appendix have been impounded, you must file those documents in a separate appendix volume, and the cover of that volume must clearly indicate that it contains impounded material. Mass.R.A.P. 18(g). L. What do I do after I prepare my brief and appendix? After you have prepared your brief and appendix you must make enough copies to file seven copies with the court, to serve two upon each opposing party, and to keep at least one copy for yourself. Mass.R.A.P. 19(b)(1). Also, you are allowed to divide the exhibits and transcript(s) into separate volumes, with a table of contents, in chronological order, and consecutively paginated. If you do this, you may file five copies of exhibits and serve one, and file two copies of the transcript and serve one. M. How do I serve and file my brief and appendix? Your brief and appendix must be served and filed within forty days after the entry of your appeal in the Appeals Court. You may hand deliver the briefs and appendices or you may mail them to both the court and the opposing party. Mass.R.A.P. 19(a) and (b)(1). At the time you file the seven (7) copies of the brief and appendix, you must also file a certificate of service, showing that you have delivered or caused to be delivered upon the opposing counsel, or opposing party if the other party is not represented by counsel. The certificate of service must include the date of service, manner of service, and the name and address of the person served must be filed with the Appeals Court at the time that you file your brief and appendix with the court. Mass.R.A.P. 13. See also Exhibit 3. If you are mailing your brief on the day that is it due, you must also include a written statement to the court, also known as an affidavit of mailing, in which you swear that the brief was mailed to the court on or before the date due. Mass.R.A.P. 13(a)(ii). If the Court receives your brief and affidavit after the due date, the brief will be deemed timely filed as of the date it was mailed, pursuant to Mass.R.A.P. 13(a)(ii). N. What if I need more time to serve and file my brief and appendix? If for some reason you cannot meet the forty-day deadline in which to serve and file your brief and appendix, you may file a motion with the Appeals Court asking for more time. SeeMass.R.A.P.14(b). The motion must set forth the reasons for the requested extension, provide a date certain by which the brief will be filed, and must be accompanied by a certificate of service which lists the name of the document being served, the date of service, the manner of service (e.g., first class mail, in hand service), and the names and addresses of all parties being served. See Mass.R.A.P. 13. A copy of the motion must be served on all other parties to the appeal. Mass.R.A.P. 13(b). It is the policy of the Court to grant no more than one motion for enlargement of time per side, the enlargement sought not to exceed 120 days, and then only on the basis of an affidavit setting forth (a) good cause to warrant the requested enlargement, and (b) an explanation why the particular time period requested is reasonable. Further enlargements of time will ordinarily not be granted absent genuine emergency, such as a death, illness, or serious injury. O. What happens after I serve and file my brief and record appendix? The opposing party, the appellee, has thirty days after service of your brief and record appendix to file the appellee's brief. Mass.R.A.P. 19(a). An appellee does not have to file a brief, but most do. If an appellee does not file a brief, she/he will ordinarily not be allowed to present oral argument, if one is scheduled. Mass.R.A.P. 19(c). See below for additional information on the Appellee. P. I have been served with the appellee's brief. May I file any more briefs with the Appeals Court? Yes. You have the right to file a reply brief within fourteen days of service of the appellee's brief. The reply brief

has a gray cover, cannot be longer than twenty pages, and is to only reply to the arguments made in the appellee's brief. Mass.R.A.P. 16(c) and (h). There is no requirement that the reply brief restate the issues, procedural history, or facts of the matter. The twenty page limit can be devoted strictly to argument in response to the appellee's brief. Also, the reply brief must comply with the requirements of Mass.R.A.P. 16(a)(1), by including a table of contents and a table of authorities (see Exhibit 4), as described above. Q. When will my appeal be decided? An appeal is considered fully briefed at the time of the filing of the appellee's brief. The appellant's and appellee's brief will then be reviewed by the Court for a determination of which appellate track the case will follow. Your appeal may either be scheduled for oral argument before a panel of three Appeals Court judges or it may be decided on the briefs by a panel without oral argument. Whether to schedule oral argument or to decide the appeal just on the briefs filed is a decision that is made by the court. A party does not have a right to oral argument on appeal. You may expect that your appeal in a civil case will be scheduled for argument or referred to a panel for decision on the briefs approximately six months after the appellee's brief is filed. You will receive notice that the case is scheduled for oral argument or submitted to a panel without oral argument. If the case is scheduled for oral argument, you will receive a notice from the court requiring you to identify any dates in a specified month when you are unavailable to argue. You must respond by email, or you will be deemed available for the month. After you receive this notice, all of your filings must be sent by email in PDF format only, and no paper originals will be accepted for filing. See Appeals Court Standing Order Requiring The Electronic Filing Of All Motions And Letters Filed After Panel Assignment at: http://www.mass.gov/courts/appealscourt/standing_order_filing.html R. How long does the three judge panel have to issue a decision? While there is no time period set by law or the Massachusetts Rules of Appellate Procedure, the panel usually issues its decision within 130 days of receiving the case. S. If I am not happy with the Appeals Court decision, can I appeal my case to another court? Technically, there is no "appeal" to a higher court from a decision made by the Appeals Court. However, you may request post-appellate review of the Court's decision by filing a petition for rehearing or an application for further appellate review. See Mass.R.A.P. 27 & 27.1. Petition for Rehearing The petition is submitted in letter form addressed to the most senior judge on the three judge panel. It is filed in the Clerk's Office, which will docket and distribute it to the panel. The petition for rehearing must be served and filed within fourteen days of the issuance of the decision. According to the Appeals Court Standing Order Requiring The Electronic Filing Of All Motions And Letters Filed After Panel Assignment (see court's website at http://www.mass.gov/courts/appealscourt/standing_order_filing.html), the petition must be filed with the court via email, as a pdf file attached to an email message sent to emotions@appct.state.ma.us. There is no fee for the filing of a petition for rehearing. See Mass.R.A.P. 27. Application for Further Appellate Review (FAR) You may also, within twenty days of the issuance of the Appeals Court decision, file an application for further appellate review with the Supreme Judicial Court. The fee for an application for further appellate review is $200 and you should review Mass.R.A.P. 27.1 before you file the application. You will be required to file the fee and seventeen copies with the Supreme Judicial Court, and one copy with the Appeals Court. If you need more time than is provided by the rules to file either the petition for rehearing or application for further appellate review, you must file a motion in the appropriate court requesting additional time. See Mass.R.A.P. 27 & 27.1. The motion should state reasons for the requested extension, and provide a date certain by which the petition or application will be filed.

If your requested extension will extend beyond twenty-eight days after the entry of the Court's decision, you should also file a motion in the Appeals Court to stay the issuance of the rescript. The rescript, which is the technical name for the Court's decision, issues to the trial court twenty-eight days after it is entered on the Appeals Court docket. This twenty-eight day period allows for a party to file for the post-decision relief described herein. If a petition for rehearing, application for further appellate review, or motion to stay the issuance of the rescript is not filed within this twenty-eight day period, the Court's decision will issue to the trial court for entry therein. See Mass.R.A.P. 23.

Obligation of an Appellee
A. What is an appellee? If you were the prevailing party in the trial court and are responding to the appeal, and you did not file the notice of appeal, you are designated as the appellee. B. What do I have to do? An appellee is permitted but not required to file a brief. If you do not file a brief, you will not be permitted to argue your side if oral argument is scheduled. Mass.R.A.P. 19(c). C. What if I want to file a brief? You have the right to do so. The appellant must serve you with a copy of his/her brief and appendix. You will then have thirty days to serve and file a copy of your appellee's brief. Your brief must have a red cover and must follow the format as set forth in Section J above, except that a statement of the issues, a statement of the case, and statement of the facts are not required unless you are dissatisfied with the appellant's brief description of those parts. See Mass.R.A.P. 16 and 20. D. May I also file a record appendix? Only an appellee in a criminal case is permitted as of right to file a supplemental appendix. In civil cases appellees are not permitted to file their own appendix. Mass.R.A.P. 18(a). If you think that the appellant has left out important parts of the record below that you want the appellate court to consider when deciding the appeal, you must file a motion for leave to file a supplemental appendix explaining what additional documents you wish to include. You may submit this motion before you file your brief, or at the time that you file your brief and supplemental appendix. Papers not made part of the trial court's record are not permitted to be filed in the proposed supplemental appendix. E. May I file a reply to the appellant's reply brief? No, not unless this is a cross appeal (that is, you also filed a notice of appeal below in the lower court and you have also paid a docket fee to enter your cross appeal in the Appeals Court). If this is a cross appeal, you are permitted to file a sur-reply brief within 14 days after service of the appellant's reply brief. See Mass.R.A.P 16(c). See Section P above for the format of a reply brief.