Vt. R. App. P. 28

As amended through November 4, 2024

Rule 28 - Briefs

(a)Appellant's Principal Brief. The appellant's principal brief must contain under appropriate headings and in this order:

(1) a statement of the issues presented for review, with references to the pages where the discussion of each begins;

(2) a table of contents and a table of cases (alphabetically arranged), statutes, and other authorities - with references to the pages of the brief where they are cited;

(3) a concise statement of the case, including the subject of the litigation, the claims of the parties, the facts of the case and proceedings below, and the appellant's specific claims of error, with appropriate references to the record;

(4) an argument, which may be preceded by a summary, and must contain:

(A) the issues presented, how they were preserved, and appellant's contentions and the reasons for them--with citations to the authorities, statutes, and parts of the record on which the appellant relies; and

(B) for each issue, a concise statement of the applicable standard of review, which may appear in the discussion of the issue or under a separate heading placed before the discussion of the issues.

(5) a short conclusion stating the precise relief sought.

(b)Appellee's Brief. The appellee's principal brief must conform to the requirements above, but it need not include a statement of the case or the standard of review unless the appellee is dissatisfied with the appellant's statement.

(c)Appellant's Reply Brief. The appellant may file a brief in reply to the appellee's brief. No further briefs may be filed without Court permission, except as provided in (d).

(d)Briefs in a Case Involving a Cross-Appeal.

(1)Designation of Appellant. If a cross-appeal is filed, the party who files a notice of appeal first is the appellant for the purposes of this rule, and Rules 30 and 31. If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by agreement of the parties or by Court order.

(2)Appellee's Principal Brief. In a case with a cross-appeal, the appellee must file a principal brief that addresses the cross-appeal and also responds to the appellant's principal brief. The appellee's principal brief must conform to the requirements of paragraphs (a)(1)-(5), except an appellee who is satisfied with appellant's statement need not include a statement of the case.

(3)Appellant's Reply Brief. The appellant must file a brief that responds to the principal brief in the cross-appeal and in the same brief may reply to the response in the appeal.

(4)Appellee's Reply Brief. An appellee may file a brief in reply to the response in the cross-appeal. The brief must be limited to the issues presented by the cross-appeal.

(5)No Further Briefs. No further briefs may be filed without Court permission.

(e)References to the Record.

The parties must provide citations in their briefs to the record The proper format for citations is as follows:

(1) If there is an Appeal Volume and no printed case or the document is not in the printed, cite to the page in the Appeal Volume where the document is located as follows: AV-28;

(2) If there is a Printed Case, cite to the page in the Printed Case where the document is located as follows: PC-28;

(3) Cite to the page in the transcript or time stamp in audio recording as follows: 5/12/20-TR-52 or 5/1/21-R-21:01.

(f)Briefs in a Case Involving Multiple Appellants or Appellees. In a case involving more than one appellant or appellee, including cases consolidated on appeal, any number of appellants or appellees may join in a brief, and any party may adopt by reference a part of another's brief. Parties may also join in reply briefs.

(g)Length of Briefs.

(1) Briefs cannot exceed the limits stated in Rule 32(a)(4), except by Court permission.

(2) A request for permission to exceed these limits must specify the number of additional words requested, and must be filed no later than 7 days before the filing deadline for the brief involved.

(h)Citation of Supplemental Authorities. If pertinent and significant authorities come to a party's attention after the party's brief has been filed - or after oral argument but before decision - a party may promptly file a letter setting forth the citations, and serve it on all other parties. The letter must state without argument the reasons for the supplemental citations, referring either to the page of the brief or to a point argued orally. Any response must be made promptly and must be similarly limited.

Vt. R. App. P. 28

Amended June 20, 1984, eff. 9/3/1984; 1/9/1985, eff. 3/15/1985; 12/12/1985, eff. 4/1/1986; 2/22/1996, eff. 7/1/1996; 10/19/1999, eff. 12/31/1999; 2/5/2008, eff. 4/7/2008; 3/22/2011, eff. 3/23/2011; 8/30/2011, eff. 10/31/2011; 3/14/2012, eff. 5/14/2012; 6/11/2013, eff. 9/3/2013; amended Sept. 20, 2017, eff. 1/1/2018; amended Dec. 10, 2019, eff. 3/2/2020; amended July 13, 2021, eff. 8/17/2021; amended October 10, 2023 eff. 1/1/2024; amended April 1, 2024, eff. 7/1/2024.

Reporter's Notes-2024 Amendment

Rule 28(g)(1) is revised to update its cross-reference to the word-count limits in Rule 32. Former Rule 32(a)(7) is now (a)(4). See Reporter's Notes-2021 Amendment, V.R.A.P. 32.

Rule 28(e) is amended in conjunction with an amendment to Rule 30(a)(1) requiring a printed case in most appeals, with limited exceptions. As amended, Rule 28(e) states that the parties are required to provide the Court with references to the record in accordance with V.R.A.P. 28(a)(3) and provides the proper format for record citations. These references are important for the Court's efficient and full evaluation of the parties' arguments. Under revised (e)(1), if there is an appeal volume and no printed case or a document is not in the printed case, the parties must cite to the location of the document in the appeal volume. Under existing (e)(2), if there is a printed case, the briefs must reference the location of the document in the printed case. There is no requirement to provide parallel citations to the appeal volume in the brief. However, amended V.R.A.P. 30(d)(2)(A) requires that the index for the printed case contain a page reference to the document's location in the appeal volume.

Reporter's Notes-2021 Amendment

Rule 28 is revised to update its requirements consistent with current practice and the implementation of an electronic case management system and electronic filing.

Subdivisions (a) and (b) are amended to add the word "principal" before appellant's and appellee's brief to make the language consistent with Rule 32.

Rule 28(c) is amended to clarify that it pertains to the appellant's reply brief. The reference to a cross-appeal is removed as this is addressed in new subdivision (d).

New subdivision (d) addresses cross-appeals. It clarifies the different briefs permitted for cases involving cross-appeals. New Rule (d)(2) clarifies that in a case with a cross-appeal an appellee's principal brief is the opportunity to make the principal argument and also to respond to appellant's principal brief. Under (d)(5) no further briefs are permitted without the Court's permission.

Former subdivision (d) is now (e). It contains new paragraphs (1)-(3) addressing how to cite to the record in a brief. Where there is an appeal volume, the location of the document in the appeal volume must always be included. If the case has a printed case, either required or optional, the document is referenced by using the page number in the printed case. For cases where an optional printed case is filed, the reference to the appeal volume must also be included. When multiple superior court cases are consolidated into one appeal, the parties can identify the appeal volume by using the docket number for the superior court case or using another means to clearly identify which case is being cited.

Former paragraphs (d), (e), (f), and (g) are deleted. Former paragraphs (h), (i), and (j) are now (f), (g), and (h).

Reporter's Notes-2020 Amendment

Rule 28(d) is amended in anticipation of the new case management system, which will be rolled out in phases throughout the state, and the concurrent use of both electronic filing and electronic case files. See Reporter's Notes to Rule 3. The 2020 Vermont Rules for Electronic Filing will be used for this new system. The rule is amended to reflect that for a time there will be appeals from cases filed under both the 2010 Vermont Rules for Electronic Filing and the 2020 Vermont Rules for Electronic Filing.

Rule 28(d) is broken into four paragraphs with new headings. Rule 28(d)(1) retains the existing rule about references to the record where there is a nonelectronic case file. Rule (d)(2) is added to explain how to refer to the record for cases filed under the 2010 Vermont Rules for Electronic Filing. Rule (d)(3) is added to explain how to refer to the record in cases filed under the 2020 Vermont Rules for Electronic Filing. In those cases, the new case management system will create a paginated record. Rule (d)(4) is substantially the same in requiring parties to cite to pages of the printed case or record where challenge evidence was identified, offered, and received or rejected.

Reporter's Notes-2018 Amendment

Rule 28(i)(2) is amended to conform its 5-day time period to the simultaneous amendment of V.R.C.P. 6(a).

11. That Rule 31(a)(3) of the Vermont Rules of Appellate Procedure be amended to read as follows (new matter underlined; deleted matter struck through):