Miss. R. App. P. 28

As amended through October 31, 2024

Rule 28 - Briefs

(a)Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1)Certificate of Interested Persons. This certificate shall list all persons, associations of persons, firms, partnerships, or corporations which have an interest in the outcome of the particular case.

If a large group of persons or firms can be specified by a generic description, individual listing is not necessary.

The certificate shall be in the following form:

Number and Style of Case.

The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal.

(Here list names of all such persons and identify their connection and interest.)

_____________________________________________________

Attorney of record for ______________________________________

Governmental parties need not supply this certificate.

(2)Tables. There shall follow a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with references to the pages of the brief where they are cited.

(3)Statement of Issues. A statement shall identify the issues presented for review. No separate assignment of errors shall be filed. Each issue presented for review shall be separately numbered in the statement. No issue not distinctly identified shall be argued by counsel, except upon request of the court, but the court may, at its option, notice a plain error not identified or distinctly specified.

(4) Statement of Assignment. Unless the case has already been assigned by the Court, the appellant must succinctly give the reasons, if any, that the Supreme Court either must or should retain the case for the reasons stated under Rule 16(b) or (d). The statement should include citations to any cases sought to be overruled or perceived to be in conflict.

(5)Statement of the Case.This statement shall first indicate briefly the nature of the case, the course of the proceedings, and its disposition in the court below. There shall follow the statement of facts relevant to the issues presented for review, with appropriate references to the record.

(6)Summary of the Argument. The summary, suitably paragraphed, should be a succinct, but accurate and clear, condensation of the argument actually made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged. It should seldom exceed two (2) and never five (5) pages.

(7)Argument. The argument shall contain the contentions of appellant with respect to the issues presented, and the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.

(8)Conclusion. There shall be a short conclusion stating the precise relief sought.

(b)Pro Se Supplemental Brief in Criminal Appeal. An appellant in a criminal appeal may file a pro se supplemental Brief of the Appellant. This pro se brief may address issues not raised by counsel, but such issues must be based on the record. This pro se brief shall conform to the requirements of Rule 28(a), (e), (f), (h) and (l).

(c)Brief of the Appellee. The brief of the appellee shall conform to the requirements of Rule 28(a) except that a statement of issues, of assignment, or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.

(d)Reply Brief. The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross-appeal. No further briefs may be filed except with leave of the Court. All reply briefs shall contain a table of contents, with page references, and a table of cases (alphabetically arranged), statutes, and other authorities cited, with references to the pages of the reply brief where they are cited.

(e)References in Briefs to Parties. Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as "appellant" and "appellee." It promotes clarity to use the designations used in the lower court or in the agency proceedings, or the actual names of the parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," or "plaintiff."

(f)References in Briefs to the Record and Citations. All briefs shall be keyed by reference to page numbers (1) to the record excerpts filed pursuant to Rule 30 of these Rules, and (2) to the record itself.

(1) The Supreme Court and the Court of Appeals shall assign paragraph numbers to the paragraphs in all published opinions. The paragraph numbers shall begin at the first paragraph of the text of the majority opinion and shall continue sequentially throughout the majority opinion and any concurring or dissenting opinions in the order that the opinions are arranged by the Court.

(2) All Mississippi cases shall be cited to either:

(i) the Southern Reporter and, in cases decided prior to 1967, the official Mississippi Reports (e.g., Smith v. Jones, 699 So. 2d 100 (Miss. 1997); Thompson v. Clark, 251 Miss. 555, 170 So. 2d 225 (1965)); or

(ii) for cases decided from and after July 1, 1997, the case numbers as assigned by the Clerk's Office (e.g., Smith v. Jones, 95-KA-01234-SCT (Miss. 1997)).

(3) Quotations from cases and authorities appearing in the text of the brief shall be cited in one of the following ways:

(i) preceded or followed by a reference to the book and page in the Southern Reporter and/or the Mississippi Reports where the quotation appears (e.g., Smith v. Jones, 699 So. 2d 100, 102 (Miss. 1997)); or

(ii) in cases decided from and after July 1, 1997, preceded or followed by a reference to the case number assigned by the Clerk's Office and paragraph number where the quotation appears (e.g., Smith v. Jones, 95-KA-01234-SCT (¶1) (Miss. 1997)); or

(iii) in cases decided from and after July 1, 1997, preceded or followed by a reference to the book and paragraph number in the Southern Reporter where the quotation appears (e.g., Smith v. Jones, 699 So. 2d 100 (¶1) (Miss. 1997)); or

(iv) in cases decided prior to July 1, 1997, preceded or followed by a reference to the case number assigned by the Clerk's Office and paragraph number where the quotation appears when the case is added to the Court's Internet web site in the new format, i.e., with paragraph numbers (e.g., Smith v. Jones, 93-CA-05678-SCT (¶1) (Miss. 1995)); or

(v) preceded or followed by a parallel citation using both the book citation and the case number citation.

(g)Reproduction of Statutes, Rules, Regulations, etc. If determination of the issues presented requires the study of statutes, rules, or regulations, etc., they shall be reproduced in the brief or in an addendum at the end and they may be supplied to the court in pamphlet form.

(h)Length of Briefs. Except by permission of the court, principal briefs shall not exceed 50 pages, and reply briefs shall not exceed 25 pages, exclusive of pages containing the statement with respect to oral argument, any certificates of counsel, table of contents, tables of citations, and any addendum containing statutes, rules, or regulations.

(i)Briefs in Cases Involving Cross-Appeals. If a cross-appeal is filed, the party first filing a notice of appeal shall be deemed the appellant for the purposes of this rule and Rules 30 and 31, unless the parties otherwise agree or the court otherwise orders. The brief for appellee shall contain the issues involved in the appellee's appeal as well as the answer to the brief for appellant.

(j)Briefs in Cases Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.

(k)Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of counsel after the party's brief has been filed, or after oral argument or decision, the party may promptly advise the clerk of the Supreme Court, by letter with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall, without argument, state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited.

(l)Disrespectful Language Stricken. Any brief containing language showing disrespect or contempt for the trial court will be stricken from the files, and the appropriate appellate court will take such further action as it may deem proper.

(m)Other Briefs. Any brief submitted other than those listed in Rule 28(a), (b), (c), and (d) shall conform to Rules 28(e), (f), (h), and (l). Any brief filed prior to the filing of the brief of the appellant shall contain a certificate of interested persons as required by Rule 28(a)(1). Any brief exceeding 10 pages in length shall contain tables of contents and authorities in compliance with Rule 28(a)(2).

(n)Filing Conventional of Briefs on Electronic Media. When filed conventionally, all parties filing a brief on the merits of any case with the Clerk of the Supreme Court shall file with that brief a copy thereof in an electronically formatted medium (such as USB Flash Drive or CD-ROM) , and the Clerk shall receive and file such with the papers of that case. All electronic media and electronic files stored thereon must be in an industrial standardized format with the electronic brief stored in the Adobe Portable Document Format (PDF). All electronic media shall be labeled to include the following information:

(1) the style of the case, and,

(2) the number of CD-ROMs, i.e., "1 of 2, 2 of 2, etc.,"

Miss. R. App. P. 28

Amended 12/28/1995; 12/22/1997; amended effective 5/27/2004 to make filing of briefs on electronic disks mandatory; amended effective 7/1/2009; amended effective 8/2/2012 to allow pro se supplemental briefs in criminal appeals; amended effective 6/1/2016 to require Statement of Assignment.; amended effective 6/20/2016; amended October 17, 2018, effective 10/25/2018.

ADVISORY COMMITTEE HISTORICAL NOTE

Effective December 11, 1997, Rule 28(e) and the Comment were amended to provide a vendor and media neutral citation standard in the public domain. 702-705 So.2d XLI (West Miss.Cases 1997).

Effective December 28, 1995, Rule 28(m) and a new final paragraph to the Comment were added to encourage the filing of disk copies of briefs. 663-667 So.2d XXVII (West Miss.Cases 1995).

Effective January 1, 1995, M.R.A.P. 28 replaced Miss.Sup.Ct.R. 28, embracing proceedings in the Court of Appeals. 644-647 So.2d LXIV-LXVII (West Miss.Cases 1994).

Effective July 1, 1994, the Comment to Miss.Sup.Ct.R. 28 was amended to delete material concerning the transition from statutory procedures to Rule practice. 632-635 So.2d LII (West Miss.Cases 1994).

Comment

Rule 28 is based upon Fed. R. App. P. 28 and 5 th Cir. R. 28.2.1, 28.2.2. If a party states issues under Rule 28(a)(3) not included in a statement required by Rule 10(b)(4), that party will bear responsibility for the cost of preparing any additional portions of the record subsequently designated by any other party in response to the statement of additional issues.

Article 3, section 26 of the Mississippi Constitution states that "[i]n all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both. . . ." Accordingly, pro se supplemental briefs are permitted under Rule 28(b). See also Lindsey v. State, 939 So. 2d 743 (Miss. 2005).

In cross-appeals, the response of the appellant to the cross-appeal is to be combined with the appellant's reply. The combined brief is treated as a principal brief under Rule 28(h) which governs page lengths.

Rule 28(f) requires parallel citations prior to 1967 because the Southern Reporter is the official reporter only for decisions published since 1966. Any party filing a brief citing an unreported decision from another court should also file a copy of the decision with the clerk of the Supreme Court.

Rule 28(f) adopts a citation standard which is in the public domain. The new citation standard is both vendor neutral and media neutral. A vendor neutral citation is one which does not contain vendor-specific information, and a media neutral citation is one which is not tied to a particular format. The citation Smith v. Jones, 699 So. 2d 100 (Miss. 1997), for example, is neither vendor neutral nor media neutral. However, the citation Smith v. Jones, 95-KA-01234-SCT (Miss. 1997) is both vendor neutral and media neutral. The basis for the adoption of a new citation standard is to allow citation of cases which appear in electronic format in addition to citation of cases which appear in print.

An original Rule 28(k) letter should be submitted with three copies. Rule 28(m) governs briefs other than briefs on the merits controlled by Rules 28(a), (b), (c), and (d).

The provisions of Rule 28(n) apply only to briefs on the merits of an appeal and not to memoranda and briefs filed in support of or in opposition to motions and petitions seeking less than relief on the merits of appeals.

[Amended December 28, 1995; December 22, 1997; amended effective May 27,2004; amended effective July 1, 2009; amended effective August 2, 2012.]