stating the case


The Chair of the Appellate Rules Advisory Committee asked the Council of Appellate Lawyers to comment on a proposal to repeal or amend Fed. R. App. P. 28(a)(6), which requires the appellant's brief to include a "statement of the case briefly indicating the nature of the case, the course of proceedings, and the disposition below." This requirement was added in 1998. Before that, Rule 28 required a statement of the case that included both the procedural history and the relevant facts.  The thought is that some lawyers unnecessarily repeat some of the same material in the statement of the case, the jurisdictional statement and the statement of facts, and that some lawyers include unnecessary procedural details that have no bearing on the appeal.  The board of the American Academy of Appellate Lawyers chose to take no position on this proposal, with members of differing views. 

If you have a separate jurisdictional statement, you've put in the core procedural material needed to get before the appellate court, so it's true that there's probably always some repetition between the jurisdictional statement and the statement of the case.  And if the statement of the case was eliminated as a requirement, that wouldn't preclude a drafter from segregating the procedural and factual history.  So I guess I think it doesn't matter much whether the requirement is in or out from the lawyer's perspective.

The notes to the 1998 amendment provide that the requirement of a separate statement of the case segregating procedural and factual history was added because the Advisory Committee "believes that the separation will be helpful to the judges."  So I guess this is a question left best to those judges.  I suppose the question is whether elimination of the requirement will lead to more stream-of-consciousness  ramblings that the judges will have to parse.  Since no one should drafting that sort of brief in the first place, statement of the case or not, the question is whether imposing it as a requirement makes any difference. 

In sum, no strong feelings here.  I do think, however, that it would be useful to be allowed to have a short introduction.  While no introduction is listed in either the Maine or federal rules, the Maine SJC welcomes them, and you end up trying to fit one into a federal brief without calling in an introduction.  Judges normally put introductions in their opinions – a few opening paragraphs describing what the appeal is all about — and I think it makes sense to have one in the briefs, too.