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Researching Appellate Procedure

In Federal and Minnesota Courts

 

Last modified 11/2011.  Direct feedback on this page to lawlib@umn.edu.


Introduction

 

Appellate rules define how a decision in Federal district court or Minnesota district court may be brought to one of the thirteen Federal Courts of Appeals or to the Minnesota Court of Appeals or Supreme Court for a re-hearing, possible reversal, or referral back to the trial court.   Separate procedural rules exist for appeals to the Federal courts and to Minnesota courts.  Once a case has been accepted on appeal, there are in addition rules for proceeding within that court.  The United States Supreme Court has its own internal rules of procedure, as do the several Circuit Courts of Appeal and the Minnesota Supreme Court and the Court of Appeals. 

Procedural rules are mandatory, both the appealing party and the responding, opposing party must understand and comply with the rules.  A case will not be accepted on appeal if the rules are not followed.   There are many tools to help understand the requirements of appellate procedure.   This guide focuses on the rules of appellate procedure in the United States Court of Appeals, the Minnesota Supreme Court, and the Minnesota Court of Appeals.    It focuses on sources which contain or explain the Federal Rules of Appellate Procedure and the Minnesota Rules of Appellate Procedure.   It also includes references to the local rules of the several federal circuit courts. 

Access to some of the electronic resources included in this research guide is restricted to University of Minnesota students; some electronic titles are restricted to law students.


Federal Rules of Appellate Procedure

 

The Federal Rules of Appellate Procedure were drafted by the Advisory Committee on the Federal Rules of Appellate Procedure, adopted by order of the Supreme Court on December 4, 1967, transmitted to Congress by the Chief Justice on January 15, 1968, and became effective on July 1, 1968.  Uniformity in appellate procedure was perceived as a need ten years earlier when Congress passed “An Act to Empower the Judicial Conference to study and recommend changes in and additions to the rules of practice and procedure in the Federal courts” (P.L. 85-513, 72 Stat. 356 (1958).  The rules have been amended several times since their original adoption, and rules with their amendments are printed by Congress as House documents.   The appellate rules were substantially rewritten and restyled in 1998.

Appellate rules are organized topically into seven titles, first by the source from which the appeal originates; district court appeals are followed by Tax Court appeals, then administrative agency appeals.  These are followed by rules for extraordinary writs and for habeas corpus proceedings and proceedings in forma pauperis.   Then the Rules provide general provisions (Rules 25-48) relating to computation of time, format of briefs, costs, and the ability of each court to promulgate local rules.   Selected sample forms appear at the end of the rules.

History

 

Chief Justice Earl Warren appointed an Advisory Committee on Appellate Rules in 1960 as part of the interest at that time generally in rule-making activity and specifically in uniformity in appellate rules. The Advisory Committee prepares a brief note for every rule or amendment when it is proposed. It is important to read the committee note at the end of each rule because the note provides an official explanation of the rule’s intent. Most publications of the Federal Rules of Appellate Procedure include the Advisory Committee notes following each rule (e.g. United States Code, United States Code Annotated, United States Code Service discussed below). Recent proposals to amend the rules can be found in Federal Rules Decisions also discussed below.

Unannotated Rules

 

The Federal Rules of Appellate Procedure are widely available in unannotated form. This form is a useful easy reference to check rule requirements or to verify citations to the rules, but it does not provide helpful explanations or interpretations of the rules. “Deskbooks,” softbound volumes typically including all procedural rules related to practice in one jurisdiction, are heavily used by practitioners. Unannotated Federal Rules of Appellate Procedure also appear with statutory compilations or as supplements to treatises on appellate procedure.

  • Federal Rules of Appellate Procedure. (US DOCUMENTS Y4.J89/1:Ap4/2/) Official annual compilation of the rules. Latest print version is 1997; the current version is now available at http://www.uscourts.gov/rules/ at the federal judiciary’s web site about federal rule making.
  • Federal Civil Judicial Procedure and Rules (RESERVE KF8816.A195). This annual “deskbook” includes the appellate rules, advisory committee notes, and several forms.
  • United States Code 2006 ed. (RESERVE KF62 2006x) The Federal Rules of Appellate Procedure appear in the volume containing the appendix to Title 28. Each rule is followed by historical notes from the Advisory Committee.

Recent rule changes appear in supplementation to United States Code Service (Primary KF62.1972.L38), United States Code Congressional and Administrative News (PRIMARY KF48.W45), and United States Supreme Court Reports (L.Ed.) (Reporters KF101.A313).

Annotated Rules

 

When an in-depth explanation of a rule is needed, it is useful to consult annotated versions of the rules. Annotations often provide detailed discussions for each rule. In some works, however, the annotations consist only of brief citations to other sources containing explanations and judicial interpretations of the rules. The following treatises and encyclopedias on appellate procedure provide substantive annotations for the rules:

  • Cyclopedia of Federal Procedure. 3d ed. (KF8840.C93 1951). This multi-volume encyclopedic work is arranged in the order litigation proceeds (e.g. pre-trial, trial, post-trial), so that explanations of appellate procedure and rules are in the last volumes of the set. There is a rules table and also a good index that will lead to sections of the text where particular rules and topics are discussed.  This title is also on Westlaw in the CYCFEDPROC database.
  • Federal Practice and Procedure [Wright & Miller]. (RESERVE KF8840.W74) A leading treatise on federal procedure, Wright & Miller also contains significant discussion of the appellate rules. Volumes 16A and 16AA provide a history of the rules and a detailed analysis of the rules in numerical order. The index volume for the set includes a table indicating which section of the treatise explains each Federal appellate rule. This work is available electronically on Westlaw in the FPP database.
  • Federal Procedure. [Lawyers ed.] (KF8840.F42). This multi-volume encyclopedia is arranged alphabetically under broad procedural topics. The work includes a detailed index, a table of rules, and separate volumes with unannotated rules.  On Westlaw in the FEDPROC database.
  • Moore’s Federal Practice. 3d ed. (RESERVE KF8820.A313M63). This work, like Federal Practice and Procedure above, provides a thorough and authoritative analysis of the Federal Rules of Appellate Procedure, rule by rule. The text of each rule is followed by in-depth commentary and references to cases and other commentary. The work includes a detailed index volume and a table of appellate rules. This source is available on LexisNexis; the file name is MOORES.

The following works to not themselves provide commentary, but they do offer numerous references to commentary and judicial interpretation of the rules.

  • United States Code Annotated. (PRIMARY KF62 1927 .W45; RESERVE KF62 1927 .W45). Separate volumes containing the rules follow the Title 28 volumes. After each rule and its Advisory Committee note, there are many references to case interpretations, books, and articles discussing the rule. The rules found in this source are also on Westlaw in the US-RULES database.
  • United States Code Service. (PRIMARY KF62 1972. L38). Rules of procedure are found in separate volumes at the end of this set. Each rule is followed by an Advisory Committee note and references to secondary sources and judicial opinions. The rules found in this source are also available on LexisNexis (Federal Legal – U.S. > United States Code Service (USCS) > Federal Rules Annotated); the file name is RULES.

Supreme Court Rules

 

The United States Supreme Court has its own rules of procedure for cases being appealed to and heard in that court. These rules are included in many of the titles mentioned above, both annotated and unannotated. 

Local Federal Appellate Court Rules

 

In addition to the Federal Rules of Appellate Procedure, appellants and respondents must observe local rules within each Court of Appeals. Rule 47 of the Federal Rules of Appellate Procedure gives each Court of Appeals the authority to promulgate such rules, and each Court has done so. It is important to know these rules and to observe them. Sources that provide local rules for each Court of Appeals include:

  • Bender’s Federal Practice Manual. (KF8816.A21). In addition to the Federal Rules of Appellate Procedure, this title also provides the local rules and forms for each Circuit Court of Appeals. A “Circuit Court Rules Index” in the 3rd volume of the set is very detailed.
  • Federal Court of Appeals Manual: Local Rules. (KF9052.K634x). An annual softbound volume, this title contains the Federal Rules of Appellate Procedure as well as the local rules for every Circuit of Appeals. There is an individual index for each Circuit’s rules.
  • Federal Local Court Rules. 3d ed. (REPORTERS KF8820.A2xb) is a multi-volume loose-leaf set that contains the local rules for every federal district court. The seventh volume provides the local rules for every Circuit Court of Appeals.
  • Federal Procedure Rules Service (KF8840.F43) is a series of pamphlets, published semiannually, that provide the rules of appellate procedure and the local rules of procedure in the 8th Circuit Court of Appeals.

Deskbooks for individual states in addition to providing that state’s court rules also contain the local rules of the federal Circuit Court of Appeals for that state. For example, Minnesota Rules of Court—Federal (PRIMARY, REFERENCE OFFICE, & RESERVE KFM5929.A193) provides the rules and procedures of the Eighth Circuit Court of Appeals.

Local rules of the Circuit Courts of Appeals are also available on LexisNexis (Legal > Federal Legal > U.S. > Find Statutes, Administrative Materials & Court Rules > Court Rules > Courts of Appeals Rules All Circuits). The file name is CIRRUL. On Westlaw the local federal appellate rules are in the US-RULES database. On the internet, links to the rules are available at: http://www.llrx.com/courtrules and at the websites for the individual circuit courts.

Digests, Court Reports & Citators

 

The Federal Rules of Appellate Procedure and the fair process of appealing from state and federal trial courts have been frequently interpreted by federal courts. It is possible to locate such cases by using West’s Federal Practice Digest and the Supreme Court Digest under the topic “Appeal and Error.” An alternative source for finding Supreme Court cases is the Digest of United States Supreme Court Reports, Lawyers Edition under the topic “Appeal.” A number of specialized reporters, digests, and citators focus specifically on the federal rules of procedure, including the appellate rules.

  • Federal Rules Digest. 3d ed. (REPORTERS KF123.F443x). This digest covers federal cases from 1954-date, and a single volume in the set covers the Federal Rules of Appellate Procedure. It is most useful when researching a specific rule, since its classification scheme, FINDEX, uses the rules’ own numbers.
  • Federal Rules Service, 1st-3d series. (REPORTERS KF121.F433x). This reporter reports cases on the federal rules, including the appellate rules, in chronological order. Access is through the FINDEX and Digest described in the previous entry.
  • Shepard’s Federal Rules Citations. (REFERENCE KF8816.A23.S54). This citator is designed to provide references to federal cases and secondary sources which cite specific rules, including the rules of appellate procedure. It is arranged by rule number and also documents changes to the rules.

Additional Sources

 

To find other works containing the text of the Federal Rules of Appellate Procedure, commentary about the rules or individual rules, or references to cases that interpret the rules, search MNCAT Discovery Catalog. The title search—federal rules of appellate procedure—is useful. Or, try the LC subject heading search appellate procedure followed by the jurisdiction you need. Other good LC subject heading searches, again followed by the appropriate jurisdiction, include: appellate courts, briefs, judicial opinions, and oral pleading.

First approved by the American Bar Association House of Delegates in 1977, the Standards Relating to Appellate Courts (KF8750.A944 1994) were amended in 1994. They address appellate court structure, appellate review, and how the appellate process can be better and more efficiently managed.

Internet Sources

 

An excellent site containing links to nearly all court rules available on the internet is www.llrx.com/courtrules. The Federal Rules of Appellate Procedure are also available at Cornell Law School’s Legal Information Institute.


Minnesota Rules of Appellate Procedure

First promulgated in 1967, the current Rules of Civil Appellate Procedure superseded the Civil Appeal Code (MSA 605.01-225). Rule 101 defines the scope of the rules: they govern procedure in the Supreme Court and Court of Appeals in civil cases, in proceedings for review of administrative orders, and in criminal cases to the extent that these rules are not inconsistent with the Rules of Criminal Procedure and with several statutes. Rules 28 and 29 of the Minnesota Rules of Criminal Procedure describe the procedures for appeal of criminal convictions; in Minnesota all appeals of first degree murder convictions go directly to the Minnesota Supreme Court, bypassing the Minnesota Court of Appeals. Appeals in juvenile proceedings are governed by Rule 21 of the Rules of Juvenile Delinquency Procedure.

Unannotated Annotated Rules

 

  • Minnesota Rules of Court. (RESERVE and REFERNCE OFFICE KFM5929.A193). Published annually, this “deskbook” contains the Minnesota Rules of Civil Appellate Procedure, other court rules, and an accompanying appendix of appellate forms. The rules are available on LexisNexis (Legal > States Legal-U.S. > Minnesota > Statutes & Regulations) and on Westlaw in the MN-RULES database.
  • Minnesota Statutes. (PRIMARY and REFERNCE OFFICE KFM5429.M56) The last volume of this set contains all of the court rules for Minnesota. This work is available on LexisNexis (Legal-U.S. > Minnesota > Statutes & Regulations) and on Westlaw in the MN-ST database.
  • Court rules are also available from the Minnesota Judicial Branch website at: http://www.mncourts.gov/default.aspx?page=511#appellate.

Annotated Rules

 

  • Appellate Rules Annotated [Minnesota Practice]. (RESERVE and REFERENCE OFFICE KFM5480.M53 v.3) This title follows the same order as the Appellate Rules and provides in-depth history, case annotations, authors’ commentary, and references to law reviews and other commentary. This title is also available on Westlaw in the MNPRAC database.
  • Minnesota Statutes Annotated. (PRIMARY, RESERVE, and REFERENCE OFFICE KFM5430.1946.A315). The Rules of Civil Appellate Procedure are contained in a separate volume near the end of this set. Included after each rule are historical notes, case annotations, and references to other commentary. This title is included in the MN-ST-ANN database on Westlaw.

Digests, Court Reports and Citators

 

The standard tools used to find and update Minnesota case law can be used to find cases which interpret the Minnesota Rules of Civil Appellate Procedure.

  • Dunnell Minnesota Digest. 5th ed. (REFERENCE and REFERENCE OFFICE KFM5457.D86 2001). This encyclopedic work includes a general discussion of appellate procedure under the heading APPEAL AND ERROR. It includes a subject index, and the Finders’ Materials volume at the end of the set includes a table of the rules. This title is included on LexisNexis (States, Legal – Minnesota > Restatements & Jurisprudences > Dunnell Minnesota Digest.
  • Shepard’s Minnesota Citations. (REFERENCE OFFICE KFM5450.S5). The statute volume of this set includes reference to cases which interpret court rules, including the Minnesota Rules of Civil Appellate Procedure.
  • West’s Minnesota Digest 2d. (REPORTERS KFM5457.D86 2001). For federal appellate procedure, courts and jurisdiction, consult the topic FEDERAL COURTS. Minnesota appellate procedure is covered in the topic APPEAL AND ERROR. For a detailed analysis of that topic and specific key numbers, see the detailed table of contents at the start of that topic. Also listed there are subjects excluded and covered by other topics.

Internet Sources

 

As previously mentioned, the Minnesota Rules of Civil Appellate Procedure are available from the judicial branch’s website at http://www.mncourts.gov/default.aspx?page=511#appellate. Another useful source for understanding the appellate process is the source Standards of Review from the Minnesota Court of Appeals: http://www.lawlibrary.state.mn.us/casofrev.pdf.

Looseleaf Services, Texts & Periodicals

 

Looseleaf Services

 

  • United States Law Week (REPORTERS/Current in Reference Office KF101.A332). This service provides timely reporting of United States Supreme Court proceedings, including newly docketed cases and reports on oral arguments, and decisions. This title from the Bureau of National Affairs is also available electronically with coverage beginning in 1997 in Mondale Hall and remotely to law students.

 

Texts

 

In addition to the titles listed in the Annotated Rules sections above, there are several treatises that may be useful in gaining a better understanding of the rules and the appellate process. MNCAT Discovery Catalog subject heading searches under appellate procedure followed by the jurisdiction you are researching provide access to many texts. Helpful texts on federal and Minnesota appellate procedure include:

 

  • Federal Standards of Review [Childress, Davis]. 4th ed. (KF9050.C48 2010) This three-volume work, updated by pocket supplements, discusses the specific standards of review which determine how an appellate court may review the action of a district court or an administrative agency. It is available on LexisNexis in the FDSTRV file.
  • Persuasive Written and Oral Advocacy: In Trial and Appellate Courts [Fontham, Vitiello, Miller] 2d ed. (RESERVE KF251.F67 2007) This title features detailed guidance to writing and arguing effectively in both trial and appellate courts. It has been updated to include advice about electronic filing and video presentations and meetings.
  • Appellate Advocacy in a Nutshell [Hornstein]. 2d ed. (RESERVE KF9050.Z9.H668 1998). This concise Nutshell title reviews the basics of effective appellate oral arguments and written briefs.
  • Art of Advocacy: Appeals [Houts, Rogosheske]. (KF9050.H68). This comprehensive loose-leaf title covers the entire appellate process and provides detailed instructions about written briefs and oral arguments. It includes sample models of both.
  • Brief Writing and Oral Argument [Re]. (KF251.R4 2005). Now in its 9th edition, it provides classic and authoritative guidance on both topics.
  • How to Handle an Appeal [Levy]. 4th ed. (KF9050.L49). Written by an experienced trial and appellate attorney, this title includes a section on preserving points for appeal and many practical suggestions for appellate practice. It includes many sample forms and briefs.
  • A Practical Guide to Appellate Advocacy [Beazley] (KF251.B42 2010)  Intended as a guide for law students and others new to writing appellate briefs, it covers the many decisions a brief-writer must make.
  • A Practitioner's Guide to Appellate Advocacy [Lofaso]. (KF9050.P73 2010).  From the ABA Section of Litigation, this is a step-by-step guide through the process of appellate advocacy.
  • Supreme Court Practice: For Practice in the Supreme Court of the United States [Gressman, et al.] 9th ed. (RESERVE KF9057.S8 2007). Another classic, this title provides a complete description of the process of appealing a case to the Supreme Court.
  • Supreme Court & Appellate Advocacy: Mastering Oral Argument [Frederick] 2nd ed. (KF8870.F74 2010)
  • 8th Circuit Appellate Practice Manual [Herr, Magnuson, Vasaly] 4th ed. (KF209.M54x 2007 no.66). This publication from Minnesota State Bar Association Continuing Legal Education describes the basics of appealing to the 8th Circuit Court of Appeals.
  • Methods of Practice [Haydock, Knapp] [Minnesota Practice, v.5A-6A] 4th ed. (RESERVE and REFERENCE OFFICE KFM5480.M53). The first chapter is an in depth discussion of the appellate process. It is also on Westlaw in the MNPRAC database.
  • Minnesota Civil Practice [McFarland, Keppel] 4th ed. (KFM5930.M31x and RESERVE and REFERENCE OFFICE). Chapter 27 of this general work focuses on appellate procedure and includes forms. The work also has a table of appellate rules. It is available on LexisNexis in the MNCIVP file.
  • Appellate Practice Institute [Minnesota Continuing Legal Education] 1st, 2nd, & 3rd. (KF209.M54x 2007 no.7; KF209.M54x 2008 no. 23; RESERVE KF209.M54x 2009 no.19). These annual publications present a variety of materials on appellate topics from the CLE programs. Topics include the basics of appellate practice, brief writing, and particular appeals including family and administrative matters.

 

Periodicals

 

Periodical articles can provide helpful information about recent developments in appellate procedure, important cases, and recent rule changes. In addition to Westlaw and LexisNexis, LegalTrac and Index to Legal Periodicals & Books may be used to locate such articles by keyword, subject, author, article title, popular names of cases or statutes, citations of cases, rules, and statutes. It is also possible to key in a specific procedural rule to find articles about that rule; try “rule” and “appellate” and the number of the rule in a keyword search. Periodical titles that may be particularly relevant to appellate procedure include:

  • Federal Circuit Bar Journal (Periodicals Per.F4337). Available electronically via HeinOnline.
  • Journal of Appellate Practice and Process (Per.J6836). Available electronically via HeinOnline.

If your interest is appellate procedure in a particular state jurisdiction, focusing on the journals or law reviews from that state may also be useful.