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§ 2-109. Briefs.

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   (A) Time for Filing. The briefs listed below must be filed within the times stated in these rules. Briefs in support of motions are described in §§ 2-1062-107, and 2-113. Requests for additional time to file briefs must be made in accordance with the provisions of § 2-106. NO EXTENSIONS OF TIME WILL BE ALLOWED IN ADVANCED CASES EXCEPT UPON A SHOWING OF EXCEPTIONAL CAUSE.

   (1) Appellant's briefs must be served and filed as follows:

   (a) No request for preparation of bill of exceptions filed: 2 months from the date the appeal is filed in the Supreme Court.

   (b) Request for preparation of bill of exceptions filed: 1 month after the date the bill of exceptions is due to be filed.

   (2) Appellee's brief must be served and filed within 1 month after appellant has served and filed briefs. If service of appellant's brief is by mail, 3 days are added to allow for delivery time. (See Neb. Ct. R. Pldg. § 6-1106(e).)

   (3) Appellant's reply brief must be served and filed within 14 days after appellee has served and filed briefs; 3 days are added if service of appellee's brief is by mail.

   (4) Briefs of amicus curiae may not be filed without leave of court. (See § 2-106.) Leave to file amicus briefs shall not be considered within 20 days of oral argument.

   (5) A motion for rehearing and brief in support must be filed in the office of the Supreme Court Clerk within 10 days after the release of the opinion of the court or the entry of the order of the court disposing of the appeal. Any response to the motion for rehearing must be filed in the office of the Supreme Court Clerk within 10 days after the motion for rehearing and brief in support is filed. An original and one copy of said motion for rehearing and brief in support or response to the motion for rehearing are required to be filed in Supreme Court and Court of Appeals cases. See § 2-113 for the form and content of a motion for rehearing.

   (6) If rehearing is granted in a case, the parties may file additional briefs at least 1 week prior to reargument or other submission to the court. See § 2-111.

   (7) Briefs in advanced cases are due as provided by these rules or as ordered by the court.

   (B) Form.

   (1) Printed briefs shall be produced on unglazed white book paper on pages 6½ inches wide and 9½ inches long, trimmed size. The printed matter shall be black in color, 4 inches wide and 7 inches long. The type used may be 11 or 12 point with lines leaded 2 points, except in quotations which may be leaded 1 point. Type may be underscored, italicized, or boldfaced for emphasis. The use of footnotes is not permitted. The brief shall have a cover, which may be of heavier stock than the rest of the brief.

   (2) Computer-generated or typewritten briefs may be filed in any case on unglazed, white, 8½- by 11-inch paper of at least 16 pound weight and shall be bound by a single paper clip or binder clip in the upper left-hand corner only. The print on such briefs shall be black in color, shall be on only one side of each sheet, and may be mechanically reproduced on uncoated white paper by any method which provides a clear and distinct image of the type. Type may be underscored, italicized, or boldfaced for emphasis. Quoted material of 50 words or more shall be indented five spaces from the left margin. A page shall contain not more than 25 lines, and margins shall be at least 1 inch at the sides, top, and bottom. The use of programs which condense the space between letters or words is not permitted. The use of footnotes is not permitted. Brief covers shall not be of greater weight than the paper within the brief and shall have a dull finish, allowing the ink to penetrate.

   (a) Computer-generated briefs shall be in not less than 12-point Courier, Arial or Helvetica, or Times or Times New Roman font, double spaced, with not less than 12 points of leading.

   (b) Typewritten briefs shall be in nothing smaller than 12-point type and double spaced.

   (3) The cover shall show the Supreme Court number, the case caption listing the plaintiff first (regardless of who is appellant), the county from which the case was brought, the name of the trial judge, the name, address, city, state, zip code, telephone number, e-mail address, and Nebraska attorney identification number of the attorney filing the brief (the name of the law firm, if any, may also appear), and the name of the party for whom the brief is filed. If a party or parties represent themselves, it shall contain the above information except for the identification number. The cover of the brief shall serve as the title page, and no additional title page may be contained within the brief.

   (4) The color of the brief covers shall be:

   (a) Appellant, or plaintiff in an original action,‑‑gray (same for reply brief);

   (b) Appellee, or defendant in an original action,‑‑tan; and

   (c) Amicus‑‑white.

   (5) Briefs may not exceed the following page lengths: original submission (combined total of appellant's brief, reply brief, and answer brief to cross‑appeal, or combined total of appellee's brief, brief on cross‑appeal, and reply brief to answer brief on cross‑appeal), 50 pages; motions for rehearing and amicus curiae, 15 pages. These page limitations are exclusive of the cover; the table of contents, the table of cases, statutes, and authorities; and the certificate of mailing, but inclusive of all other pages and materials, including appendixes, indices, exhibits, and other documents of any nature, character, kind, or description whatsoever.

   (6) Service of a copy of the brief shall be made either on the opposing party or the attorney of record for the party and upon all other parties participating in the appeal. Service may be made either by personal service or by regular, certified, or registered mail. Proof of service may be shown by the affidavit of the person making service or by the receipt of the party or attorney served.

   (7) An original and one copy of all Supreme Court and Court of Appeals briefs, together with proof of service, shall be filed in the office of the Supreme Court Clerk on or before the date the brief is due.

   (C) General Rules for Preparation of Briefs. In the preparation of the brief, the following general rules shall be observed:

   (1) References to the transcript shall be made by setting forth in parentheses the capital letter "T" followed by the page of the transcript, as, for example, (T26). For supplemental or confidential transcripts, the reference shall be made by setting forth in parentheses either “Supp. T” or “Conf. T,” followed by the page of the transcript. In original actions, references shall be made to the pleading and page thereof.

   (2) References to questions, answers, objections, motions, rulings, or any other matters found in the bill of exceptions shall be made by setting forth in parentheses the numbered page and line in the bill of exceptions where found, as, for example, (156:12). The number preceding the colon should represent the page of the bill of exceptions where found, and the number following the colon, the line.

   (3) References to exhibits in the bill of exceptions shall be made by setting forth in parentheses the capital letter E, followed by the number of the exhibit, followed by a comma and the page of the exhibit on which the material to which reference is made appears, followed by a colon and the page of the bill of exceptions where the exhibit was offered and received or refused, followed by a comma and the page where the exhibit is found, as, for example, (E5,3:92, 95). References to documents not in the bill of exceptions but nonetheless subject to review by the Supreme Court, such as a presentence investigation report, shall identify the document, followed by a comma and the page on which the material to which reference is made appears, as, for example, (Presentence Investigation Report, p. 75).

   (4) Every reference to a reported case shall set forth the title thereof, the volume and page where found, the tribunal deciding the case, and the year decided. If the cited opinion is long, it shall also refer to the page where the pertinent portion of the opinion is found. Nebraska cases shall be cited by the Nebraska Reports and/or Nebraska Appellate Reports, but may include citation to such other reports as may contain such cases.

   (5) If a current statute is relied upon, it must be cited from the last published revision or compilation of the statutes, or supplement thereto, if contained therein; if not contained therein, to the session laws wherein contained, or the legislative bill as enacted.

   (6) Citations to textbooks, encyclopedias, and other works shall give the title, edition, year of publication, volume number, section, and page where found.

   (D) Content of Briefs. BRIEFS FILED WITH THE CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential.

   (1) The brief of appellant, or plaintiff in an original action, shall contain the following sections, under appropriate headings, and in the order indicated:

   (a) The title page, which is the cover;

   (b) A table of contents with page references, and an alphabetically arranged table of cases, statutes, and other authorities cited, with references to the pages of the brief where cited;

   (c) A statement of the basis of jurisdiction of the appellate court. The jurisdictional statement must identify the statute, court rule, or case law believed to confer jurisdiction on the Supreme Court or Court of Appeals, state relevant facts establishing why the judgment or order sought to be reviewed is an appealable order, and further must include the following information:

   (i) the date of entry of the judgment or order sought to be reviewed;

   (ii) the date of filing of any motion claimed to toll the time within which to appeal, the disposition of such motion, and the date of entry of the order disposing of it;

   (iii) the date of filing of the notice of appeal, and the date of depositing of the docket fee or date of the granting of the order to proceed in forma pauperis, and;

   (iv) if the order sought to be reviewed adjudicates fewer than all the claims, or the rights and liabilities of fewer than all the parties, the jurisdictional statement must recite the language of the lower court's order providing the basis for such interlocutory appeal or otherwise identify the statute, court rule, or case law authorizing such interlocutory appeal.

   (d) A statement of the case, which, in original actions, shall state the issues before the court. Except in original actions, the statement of the case shall contain the following, in the order indicated: (1) The kind of action or nature of the case; (2) the issues actually tried in the court below; (3) how the issues were decided and what judgment or decree was entered by the trial court; and (4) the scope of the Supreme Court's review;

   (e) A separate, concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error. Each assignment of error shall be separately numbered and paragraphed, bearing in mind that consideration of the case will be limited to errors assigned and discussed. The court may, at its option, notice a plain error not assigned;

   (f) Propositions of law shall be contained in separate, numbered paragraphs, and shall state concisely and without argument or elaboration the legal propositions urged as controlling. Only propositions discussed in the argument shall be stated. Each proposition of law shall be followed by a list of supporting authorities. Preference in citation shall be given to those authorities deemed most important. Authorities cited under any proposition must be quoted or otherwise discussed in the argument;

   (g) The statement of facts shall be made in narrative form, and shall consist of so much of the substance of the record as is necessary to present the case. Each and every recitation of fact, whether in the statement of facts or elsewhere in the brief, shall be annotated to the record in the manner set forth in § 2-109(C);

   (h)The appellant's brief must contain, under appropriate headings, a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief and which must not merely repeat the argument headings. The appellee's brief may contain such summary; and

   (i) The argument shall present each question separately, and shall present each proposition of law as best sets forth the contentions of the party. Authorities relied upon shall be quoted or otherwise discussed. A party may make such further statements of fact or quotations from the record as deemed necessary to properly present the question, supporting such facts by appropriate references to the record.

   (2) The brief of appellee, or defendant in an original action, shall contain the following matters, in the order indicated:

   (a) Table of contents and table of cases cited;

   (b) A statement of the basis of jurisdiction of the appellate court, if appellant's statement is not accepted as correct;

   (c) Statement of the case, if appellant's statement thereof is not accepted as correct;

   (d) Propositions of law;

   (e) Statement of facts, if appellant's statement is not accepted as correct or is amplified. Each and every recitation of fact shall be annotated to the record in the manner set forth in § 2-109(C), no matter where in appellee's brief such recitation is made; and

   (f) Argument.

   (3) If a party wishes to avail himself or herself of the provisions of the statute with reference to remittitur, a special assignment of error may be made in the brief of appellee, or a cross‑appeal may be taken.

   (4) Where the brief of appellee presents a cross‑appeal, it shall be noted on the cover of the brief and it shall be set forth in a separate division of the brief. This division shall be headed "Brief on Cross‑Appeal" and shall be prepared in the same manner and under the same rules as the brief of appellant.

   (5) The reply brief shall be prepared in the same manner as the brief of appellee. The answer of appellant to any cross‑appeal shall be set forth in a separate division of the reply brief and shall be headed "Answer to Brief on Cross‑Appeal," and shall be noted on the cover of the brief.

   (6) All rules for motions for rehearing may be found in § 2-113.

   (E) Cases Involving Constitutional Questions. A party presenting a case involving the federal or state constitutionality of a statute must file and serve notice thereof with the Supreme Court Clerk by a separate written notice or by notice in a Petition to Bypass at the time of filing such party's brief. If the Attorney General is not already a party to an action where the constitutionality of the statute is in issue, a copy of the brief assigning unconstitutionality must be served on the Attorney General within 5 days of the filing of the brief with the Supreme Court Clerk; proof of such service shall be filed with the Supreme Court Clerk.

   (F) Any person who claims the right under the law or a uniform course of practice to an attorney fee in a civil case appealed to the Supreme Court or the Court of Appeals must file a motion for the allowance of such a fee supported by an affidavit which justifies the amount of the fee sought for services in the appellate court. Such a motion must be filed no later than 10 days after the release of the opinion of the court or the entry of the order of the court disposing of the appeal, unless otherwise provided by statute. Any person filing a motion for attorney fees beyond the 10-day time limit must include within the motion a citation to the statutory authority permitting a filing beyond the time limit prescribed by this rule. For purposes of this subsection an order of the court disposing of the appeal shall include an order disposing of a motion for rehearing. A motion for attorney fees which is timely filed in the Court of Appeals shall toll the time for filing a petition for further review. See § 2-102(F). An original and one copy of such motion and proof of service shall be filed with the Supreme Court Clerk, and a copy shall be served upon the opposing party or the attorney of record. A court-appointed attorney in a criminal case, appealed to the Supreme Court or the Court of Appeals, may, after issuance of a mandate by the appellate court, apply to the appointing court for an attorney fee regarding services in the appeal.

Rule 9(B)(1), (B)(2)(e), and (B)(5) amended March 25, 1992; Rule 9(B)(2)e amended April 22, 1992; Rule 9(A)(5) amended April 29, 1992; Rule 9(A)(2) amended May 28, 1992; Rule 9(F) amended July 1, 1992; Rule 9(F) amended November 25, 1992; Rule 9(B)(7) amended June 15, 1994; Rule 9(A)(5) and (B)(7) amended October 17, 1995; Rule 9(B) amended September 25, 1996; Rule 9(B)(1) amended November 20, 1996;  Rule 9(A) and (B)(6) amended May 29, 1997; Rule 9(A)(4) amended March 17, 1999; Rule 9(D)(1) and (2) amended October 27, 1999, effective December 6, 1999;  Rule 9(F) amended December 15, 1999; Rule 9(B)(3) amended June 6, 2001; Rule 9(F) amended November 15, 2001; Rule 9(B)(2)(b) amended March 22, 2006; Rule 9(E) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 2-109, effective July 18, 2008. § 2-109(A)(2) amended August 27, 2008; § 2-109(D)(1)(h)-(i) amended September 10, 2008, effective January 1, 2009; § 2-109(D) amended November 19, 2008; §§ 2-109(A)(5), (B)(2) and (6)-(7) amended June 6, 2012; § 2-109(C)(1) amended July 2, 2014.

 

This page was last modified on Wednesday, July 2, 2014