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Briefly: Why more rule amendments?

Files and Mouse_CIn November 2013, the Minnesota Supreme Court filed an order establishing a Dec. 31, 2013 deadline for submitting comments on proposed amendments to the Minnesota Rules of Civil Appellate Procedure.  The order was based on a final report of the Minnesota Supreme Court Advisory Committee and the Rules of Civil Appellate Procedure filed Nov.15, 2013.

The committee recommended a number of rule changes, some more dramatic than others.  For example, they recommended that the appendix be eliminated in all appellate proceedings.  Recognizing that appendices by definition duplicate the record, the committee apparently concluded that the cost of both preparing and handling voluminous appendices far outweighed the benefit.  Interestingly, the committee noted that “with convenient electronic access to the record” appendices are less important than they once were.  However, since electronic access in state court is hardly universal, it may be some time before this observation is fully accurate.

Nonetheless, the committee recommended that the appendix be replaced by an addendum not to exceed 50 pages.  On balance, the recommendation makes a lot of sense.  Lawyers usually leave compiling the appendix to the staff, and often to the last minute as well.  I have seen hundreds, if not thousands, of appendices that are of limited value, and certainly cost far more than they add to the case.

The recommendations also provide that transcripts will be submitted to the court only in electronic form in civil appeals.  Once again, paper is not only less convenient, but it is more expensive to handle.  As I have written on more than one occasion, courts find themselves compelled to move to electronic records because they simply can’t afford to hire the people necessary to handle paper.  See, e.g., Eric J. Magnuson and Michael W. Kaphing, Ethical Issues on Appeal in a Technological World, For the Defense, Vol. 55 (2013).

So, if you are inclined to ask, “Why are the courts constantly changing the rules?”, in this instance, the answer is easy: to adapt to growing technology.  However, there is a deeper and more fundamental reason behind the changes, one that goes to the essence of why we even have rules: so that lawyers and judges can handle their cases more efficiently and effectively.

Rules of procedure are intended to guide practitioners in the orderly presentation of a case.  While it often seems that the rules are unnecessarily nit-picky, each rule has a point.  Judges see hundreds if not thousands of cases a year.  They need to know where to look for things, and they expect to find them where they look.

For example, an appellate judge who picks up a brief expects there to be, in a particular order, a complete and accurate table of contents, a table of authorities, a statement of issues, a summary of the argument, an argument and a conclusion.  The rules don’t require these things just to be picky.  The point is that a judge needs help in getting her arms around a case, and lawyers who follow the rules may not gain particular favor in the eyes of a judge, but they certainly won’t irritate the judge, or worse.

Appellate courts really take briefing requirements seriously.  The failure to file an appellate brief in accordance with the requirements of Rule 128 may result in the dismissal of an appeal.  See State on behalf of Barrett v. Korbel, 300 Minn. 563, 221 N.W.2d 125 (1974).  In Cole v. Star Tribune, 581 N.W.2d 364 (Minn. Ct. App. 1998), the Court sanctioned a lawyer for failing to comply with the briefing rules, including failure to include citations to the record.  “The purpose behind Rule 128 is to provide a standardized brief format to allow appellate courts to read and observe the voluminous presented materials in each of the multiple cases that the Court simultaneously considers … failure to comply with the rules can diminish a brief’s persuasiveness … leave to a non-consideration of an issue … or dismissal of an appeal.”

It doesn’t take a reported decision to make the obvious clear – a badly written and technically imperfect brief is simply not effective.  Good stuff in a bad package ceases to be good stuff.  A statement of facts not supported by an accurate citation to the transcript or exhibit that clearly supports that statement may well be ignored.  This may be true even if the fact is found somewhere in the record, but the court’s attention is not directed to the location.  As more than one appellate court has said, “Judges are not like pigs hunting for truffles buried in briefs.”  Roska ex rel.  Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003) (citing cases).

It’s with this background in mind that you should read the proposed amendments to the Rules of Civil Appellate Procedure.  The changes are not, as some might think, the result of the rules committee having too great an affinity for the new and technological.  Rather, they reflect the thoughtful consideration of how the appellate process might be improved.  Making things simpler and more transparent is a constant goal, and in today’s world, that inevitably means more technology based practices.

It’s highly likely that the proposed amendments to the appellate rules will become effective as written, and will guide appellate practitioners in handling future appeals.  What is also absolutely clear is that these amendments will not be the last that we will see, particularly in the area of technology.  “Because things are the way they are, things will not stay the way they are.”  Bertolt Brecht, Poet, available at  As I noted in an earlier article in this column, technology is here to stay and because of that fact, the procedural rules that govern courts, will also continue to change.

It may be that technology changes will fail to evoke the high level of philosophical discourse that the development of cyberlaw did, when Judge Frank Easterbrook of the Seventh Circuit published a presentation in the University of Chicago Legal Forum titled “Cyberspace and the Law of the Horse” in which he argued that cyberlaw should not become a unique section of legal studies and litigation. “Only by putting the law of the horse in the context of broader rules about commercial endeavors could one really understand the law about horses,” Easterbrook argued.

That prompted a challenge by Professor Lawrence Lessig, then a professor at Harvard Law School whose rebuttal argument “The Law of the Horse:  What Cyberlaw Might Teach” appeared in Vol. 113 of the Harvard Law Review.  Lessig wrote, “My aim is to show that there is something general about how we might think of regulation — regulation, that is, both there, and here — that cyberspace will teach, and that we see this general feature only by working through some specifics.”

Whether or not coming technology changes bring about another “law of the horse” debate, law review esoterica is not what drives daily appellate practice.  Instead, it’s the practical and immediate – complying with the rules and making your client’s case.  However, in undertaking that increasingly complex task, we all need to keep in mind the changes that have transpired, and that are coming in the future, and the reason for those changes.  It’s going to be a wonderful life.

Eric Magnuson is a partner at Robins, Kaplan, Miller & Ciresi and served as chief justice of the Minnesota Supreme Court from 2008 to 2010.  He can be reached at [email protected].

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