Common-Sense Changes to Federal Appellate Brief Rules

It's good to see changes to court rules that arise from reasonable criticism and suggestions from practitioners and jurists.

Last April, the Supreme Court proposed a change to the Federal Rules of Appellate Procedure to bring them in line with the Rules of the Supreme Court, "which long ago abandoned the annoying requirement of having to separate the procedural and factual histories of the litigation."

Rule 28, governing the format and content of appellate briefs, has been amended -- effective December 1, 2013 -- to eliminate the requirement for separate sections of the briefs for the "Statement of the Case" and the "Statement of Facts."

The new -- single -- section is to be labeled the "Statement of the Case." Rule 28(a)(6). It should include "a concise statement of the case setting out the facts relevant to the issues submitted for review, describing the relevant procedural history, and identifying the rulings presented for review, with appropriate references to the record."

Under the previous version of this rule, the "Statement of Facts" was the crucial section of the brief that set out the facts material to the issue(s) before the court. The "Statement of the Case" focused -- separately -- on the procedural status and history.

This rule change gives more flexibility to counsel to tailor the brief appropriately to the particular facts and circumstances of the litigation and the issues to be decided on appeal.