Supreme Court Considers Rule Change to Eliminate Briefing in Appeals from Dismissals and Summary Judgement Orders - The Writ

On October 10, 2018, the Nevada Supreme Court issued an order seeking public comment on proposed changes to the Nevada Rules of Appellate Procedure that could have profound effects on appellate practice in the state. Justices Hardesty and Stiglich filed a petition to adopt a new NRAP 3F that would allow for summary proceedings in certain civil appeals. Specifically, appeals from final judgments that grant NRCP 12(b)(2), 12(b)(5) and 56 motions would be submitted without briefs or oral argument “unless the court otherwise orders.”

Once the appeal is docketed in the Supreme Court and an appendix filed, the appellate court would look only to the briefs before the district court when considering the appeal. The losing party below would have no opportunity on appeal to brief the perceived errors in the district court’s order.

Many written comments on the proposed new rule were submitted by individual practitioners, the Appellate Litigation Section, a Boyd School of Law professor and the Nevada Justice Association. The Court held a public hearing on the petition on November 5, 2018, at which additional comments were presented.

Justice Hardesty opened the public hearing by explaining the goal of the proposed rule change: to speed up the time for disposition of appeals, a matter that is of continuing concern to the bench, the bar and litigants. It is no secret that the appellate courts have a tremendous caseload, which continues to grow. On the whole, even with many cases being routed to the Court of Appeals, the time for disposition of civil appeals has not improved markedly.

The comments in favor of the proposed rule change ubiquitously cited the need to expedite appeals. Business litigants, the proponents argued, seek faster results at lower cost. In addition to the legal fees incurred to prepare appellate briefs, there is a business cost to delay.

Additionally, those in favor of the rule change noted that the NRAP already provides for summary consideration in appeals from venue changes, criminal fast track and child custody cases and bar disciplinary matters. As a result, they argued, what the rule change proposes is not unprecedented. One proponent noted that the docketing statement will still provide the appellant an opportunity to carefully craft the statement of the issues to identify the district court’s errors.

The comments in opposition to the rule change far exceeded those in favor. The primary concern raised by the opponents was due process. As the opponents noted, the movants below (generally defendants) get more opportunity to brief dispositive motions (by filing a motion and reply versus the opposition filed by the plaintiff). They characterized this as putting an appellant at a three-to-one disadvantage when appealing a case-ending order. Not only is this inequitable, the opponents argued, but it would undermine the public’s confidence in the judicial process if litigants don’t have an opportunity to be heard anew on appeal.

The opponents also pointed out that the rule change decreases the opportunities for appellate advocacy on what tend to be important legal issues. The justices often emphasize the importance of retaining an appellate practitioner to handle, or at least consult on, an appeal. The proposed rule change, they noted, raises the importance of advocacy and briefing in the district court while diminishing the importance of appellate advocacy before the courts that are actually making law for Nevada. Nuanced issues of first impression often cannot be developed well enough in the trial court. And with summary disposition on appeal, there is no opportunity for appellate lawyers to discuss the errors made by the district court. The net effect, the opponents posited, would be to shift the balance of power to the district court.

All commenters agreed that everyone wants greater expediency in appeals, but some of the opponents pointed out that the proposed amendments could have unanticipated consequences that actually stymie the judicial process. They cited the likelihood that more motions for reconsideration would be filed in the district courts, as litigants try to make a record of what they perceive to be the district court’s errors. Similarly, the losing party to an appeal will be more likely to file petitions for rehearing and en banc reconsideration because that would be their only opportunity for appellate briefing. In sum, the opponents argued, the rule change may slow down the very process it seeks to speed up.

Although the comments generally did not propose any specific alternatives, the suggestion was made to convene a committee to brainstorm ways to help achieve the stated goal while ensuring that any rule changes are carefully tailored to avoid unintended consequences.

The Court took the matter under submission. At the time of this writing, no decision has been rendered. Those who are interested in following the proposed amendments can do so on the Court’s website under ADKT 501.