Effective December 1, there are a couple of new rules that Fifth Circuit practitioners should be aware of. The first is a change to Federal Rule of Appellate Procedure 28. The revised rule eliminates the separate "Statement of the Case" from the required parts of a brief. Instead, the statement of the case and statement of facts are combined in one section, which the rule describes as a "concise statement of the case." The revised FRAP 28 describes what should be included:
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 (see Rule 28(e)).
FRAP 28.1 has also been amended to be consistent with FRAP 28. The Fifth Circuit has amended Fifth Circuit Rule 28.3 to conform with the revised FRAP 28 and FRAP 28.1.
The second change relates to the form of record citations. Fifth Circuit Rule 28.2 has been amended to impose a uniform method of citing the record. In single-record appeals, the citation format is ROA.XXXX, where XXXX is the page number of the record. In multiple-record appeals (such as consolidated appeals), the format is ROA.NN-NNNNN.XXXX, where NN-NNNNN is the case number in which the record was filed and XXXX is the page number. The period between each portion of the citation is important.
The genesis of the second change is a cool piece of software that the clerk's office is going to use to add hyperlinks to the record to all briefs. In other words, before the brief is circulated, the clerk's office will run it through this program and every citation to the record will be turned into a hyperlink so that the judges and their staffs can easily view the portion of the record cited.
Click here to see the court's order and the revised rules.
- Rich Phillips, Thompson & Knight