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Supreme Court - FAQS FOR FILING RULE 7 NOTICE OF APPEAL FROM A FINAL DECISION ON THE MERITS ISSUED BY A SUPERIOR COURT OR CIRCUIT COURT

Q. Which notice of appeal form do I use?
Q. Where do I get the forms?
Q. How do I complete the notice of appeal form?
Q. Do I need to file anything else with my notice of appeal form?
Q. How many copies of the notice of appeal are required?
Q. Do I need a transcript?
Q. What day is my appeal due?
Q. What happens after an appeal is filed?
Q. I didn't receive a copy of the notice of appeal filed by another party. What should I do?
Q. I received an order that says that I must file a brief. What is a brief?
Q. Will my case be scheduled for oral argument?
Q. When will the court decide my case?

Oral Argument FAQ

Q. Which notice of appeal form do I use?

A. There are two notice of appeal forms for filing an appeal in the supreme court from a final decision of a State trial court - a notice of mandatory appeal form and a notice of discretionary appeal form. The type of your case will determine which form you should use.

Most appeals are mandatory appeals, which means that they are automatically accepted for review by the supreme court. For these appeals, you should fill out the notice of mandatory appeal form. Mandatory appeals include, for example, an appeal of a criminal conviction, an appeal of a final divorce decree, an appeal of a small claims matter, and an appeal in a dispute over ownership of land.

Some appeals are discretionary appeals. That means that the court will review the notice of appeal document before deciding whether it will accept the case for appellate review. The following cases are discretionary appeals: post-conviction review of criminal proceedings (including petitions for writ of habeas corpus and motions for new trial); a criminal sentence modification or suspension proceeding; a parole or probation revocation proceeding; a landlord/tenant eviction action to regain possession of the rental property (often for non-payment of rent); an order denying a motion to intervene; or a post-divorce domestic relations matter. To appeal any of these types of cases, use the notice of discretionary appeal form.

NOTE -- The notice of discretionary appeal form contains more information than the notice of mandatory appeal form. If you are unsure which form to use, you may use a notice of discretionary appeal form. If it is determined that the appeal is mandatory, the court will have all of the information necessary to process your appeal.

Q. Where do I get the forms?

A. The forms are available at the supreme court clerk's office, on-line, and at most trial courts.

Q. How do I complete the notice of appeal form?

A. The bulk of the notice of appeal form contains basic information about the case that you are appealing: Who are the parties? Did anyone have a lawyer? What trial court decided the case? What was the docket number in the trial court? Who was the trial judge? You already know most of this information or you can get it from the trial court.

In addition to basic information about your case, you must provide additional information depending upon whether you file a mandatory or a discretionary appeal.

(1). If you are filing a notice of mandatory appeal, the form also requires you to list the "specific questions to be raised on appeal." In this section (section 13), you need to explain clearly, but concisely, why you believe that the trial court's decision is wrong. This is where you explain to the court why you are filing your appeal. Don't leave anything out. If a question is not listed in this section, you cannot discuss it in your brief, unless the court has granted a motion to add the question to the appeal.

(2). If you are filing a notice of discretionary appeal, you must also explain why it is important that the court accept your appeal, or any issues in the appeal, for appellate review. Because of this, the form requires you to describe "the nature of the case and the result." In this section (section 13), you need to give the court some background on your case -- what kind of case it is (e.g., a landlord/tenant eviction action to regain possession of the rental property), what happened in the trial court, what the trial judge decided, etc. On a separate piece of paper, provide this information clearly so that the court has a good sense of what happened in your case. Also in a discretionary appeal, you need to list the "issues on appeal." In this section (section14), on a separate piece of paper, you need to explain clearly, but concisely, why you believe that the trial court's decision is wrong. This is where you explain to the court why you are filing your appeal and why the court should accept it. It is the most important part of your notice of appeal, so be particularly careful while filling it out. If a question is not listed in this section, you cannot include it in your brief, unless the court has granted a motion to add the question to the appeal.

Q. Do I need to file anything else with my notice of appeal form?

A. You must file your original notice of appeal form and eight copies. The copies are necessary so that the supreme court justices and court staff can review the material that you have filed.

With each copy of the notice of appeal, you must file a copy of the trial court's decision that you are appealing, as well as the trial court clerk's written notice of the decision, which you should have received either in court or in the mail with the decision in your case. If any post-trial motions were filed by any party, you must provide a copy of the decision on the post-trial motion, as well as the trial court clerk's notice of decision.

You must also pay the filing fee. In addition to the filing fee, the legislature has imposed a $25.00 surcharge on most supreme court appeals. The types of cases that are exempt from the surcharge are: criminal cases, juvenile cases, domestic violence cases, small claims cases, landlord-tenant cases, and stalking cases. In these cases, there is no additional charge added onto the filing fee. The filing fee schedule can be found on the court's website or can be provided to you by the Supreme Court.

If you are financially unable to pay the filing fee, you must file a motion to waive the filing fee, supported by an affidavit of assets and liabilities. The motion to waive the filing fee should explain to the court why you are unable to pay the fee in your case. The affidavit of assets and liabilities form asks questions about your income and expenses and requires your signature, swearing that the information on the form is correct under penalties of law.

Q. How many copies of the notice of appeal are required?

A. You need to file an original and eight copies of the notice of appeal in the office of the clerk of the supreme court. In addition, you must provide a copy to each of the parties (or to their attorneys, if they are represented by counsel). Also, you must provide two copies to the clerk of the court from which the appeal is taken. The clerk will give one of the copies to the trial judge. If there was a master involved in your case in addition to a judge, you must provide an extra copy to the trial court, which will be given to the master.

Q. Do I need a transcript?

A. It is a long-standing rule that the supreme court will review only matters that were raised in the trial court. Generally, you will need a transcript to show that you brought the issue to the attention of the trial judge so that he or she was given an opportunity to consider the issue in reaching a decision in your case.

You need a transcript to show the supreme court what evidence you and the other parties presented in the case, such as the testimony of witnesses and exhibits introduced during the trial. If there is no transcript of what happened in the trial court, the supreme court may assume that the evidence was sufficient to support the result reached by the trial court. In that case, the decision below will be reviewed only for errors of law.

In deciding whether a transcript is necessary, you should keep in mind that the appealing party is responsible for providing the supreme court with a sufficient record to decide the issues on appeal. The transcript is an important, and sometimes crucial, part of that record in most cases. If you fail to provide a sufficient record, the supreme court may not review an issue that you have raised or your appeal may even be dismissed. See Bean v. Red Oak Prop. Mgmt . , 151 N.H. 248 (2004).

Q. What day is my appeal due?

A. Strict deadlines apply to filing a notice of appeal with the supreme court. It is very important, therefore, that your notice of appeal arrives at the court on time. If your appeal is late, it may be dismissed by the court. Under Rule 21(6), motions for late entry of a notice of appeal are not favored and will be granted only upon a showing of exceptional circumstances .

In most cases, you have 30 days to file an appeal. These are consecutive, calendar days, not business days - Saturdays and Sundays count in the thirty-day period. This is true whether you are appealing a civil case (for example, Jones v. Smith ) or a criminal case (for example, State of NH v. Brown ).

In a civil case, an appeal is due within 30 days from the date on the trial court clerk's "notice of decision," which you should have received either in court or in the mail with the decision in your case. Be aware that the date of the notice of decision may be different from the date on the decision itself.

In criminal appeals, the notice of appeal is due 30 days from the date of sentencing.

In civil cases, a motion filed after the final decision may extend the appeal period. This is true only if the motion is filed within the time limit set by the trial court's rules. For example, a motion for reconsideration filed within ten days of the decision in superior court will extend the appeal period. In that case, the appeal is due within 30 days from the date on the trial court clerk's notice of the decision on the motion for reconsideration. In landlord-tenant cases, there is a 7-day time limit to file a motion to reconsider. Motions that are filed late - after the time limit set by the trial court - will not extend the appeal period.

The same is true in criminal cases. If a motion is filed after sentencing, the appeal is due thirty days from the date of the trial court clerk's notice of decision on the motion. The motion must be filed within 10 days of sentencing, however, or the appeal period will not be extended.

If you choose to mail your notice of appeal to the court, be aware of the rule related to filings placed in the mail. Filings postmarked at least two days prior to the due date will be considered timely even if they are received after the deadline. See Rule 26(1). In other words, your notice of appeal must be postmarked at least two days before it is due to ensure that it will be considered timely.

Appealing parties often make a mistake when they are calculating the thirty-day period. This happens because most months have 31 days. To figure out when your appeal is due, it is best to use a calendar. Day 1 is the day after the date on the clerk's notice of decision. Start counting. Day 30 is when your notice of appeal is due, unless Day 30 falls on a day when the court is not open (Saturday, Sunday, legal holiday, or other day that the clerk's office is closed); then your appeal is due the next day that the court is open.

Q. What happens after an appeal is filed?

A. When an appeal is filed at the supreme court, it is entered into the court's case management system. This is referred to as "docketing" the case. When an appeal is docketed, it is assigned a "docket number" (also referred to as a "case number") by the clerk's office staff. That number should be used to identify your appeal whenever you file anything in the case or whenever you call the court to ask a question about the case. Once the appeal has been given a docket number, the clerk's office issues a docket letter, which notifies all parties to the case that an appeal has been filed and informs the parties of the docket number that has been assigned to the case.

Q. I didn't receive a copy of the notice of appeal filed by another party. What should I do?

A. If you receive a docket letter indicating that another party to your case has filed a notice of appeal but you do not receive a copy, you should contact the appealing party yourself to request a copy. If, after contacting the appealing party, you still do not receive a copy of the notice of appeal, notify the court in writing so that it can take appropriate action.

If, however, there is a court order prohibiting you from contacting the appealing party directly, contact the supreme court clerk's office.

If you are the party who is filing an appeal, you must provide copies of the notice of appeal to "all other parties to the case," either by delivering a copy personally or by putting a copy in the mail. See Rule 26(2) & (3). The notice of appeal form requires that you certify to the court that you sent all other parties a copy of the notice of appeal.

Q. I received an order that says that I must file a brief. What is a brief?

A. A brief is a written document that presents arguments either opposing or supporting the decision in the trial court. It is different from the notice of appeal that is filed to start the appeal process because it is a more detailed explanation of the issues in the case. The appealing party must file the first brief. If you are the appealing party (the appellant), your brief should explain to the court why you believe that the trial court's decision is wrong. After the appealing party has filed a brief, the other parties are given an opportunity to respond by filing a brief or memorandum. If you are on the other side (the appellee), your brief should explain why you believe that the trial court's decision was correct.

If you are the appealing party, you MUST file a brief or your appeal will be dismissed. The notice of appeal, or other appeal document that the appealing party filed, is NOT a brief. If you are not the appealing party, you do not need to file a brief, but if you choose not to, you will not be allowed to argue orally, if the court schedules oral argument in the case.

You can find the format for an appellate brief in Supreme Court Rule 16. Read the Rule carefully. It not only explains how a brief should be organized and what it must contain, but it also includes other important information, such as the page length of a brief (usually no more than 35 pages), what color the cover must be, how many copies you need to file, and so on. To the best of your ability, follow Rule 16(3) step-by-step when writing your brief. If your brief does not comply with the Rule, it may be returned to you to correct.

Three requirements for briefs are particularly important . First, at the end of your brief you must state in writing that you have hand-delivered or sent by first class mail a copy of your brief to all parties to the case. This is called a certification. Second, you must sign your brief. See Rule 16(10). For the appealing party there is a third requirement. If the appealed decision is in writing, a copy of that decision must be included with the brief (not in a separate appendix).  The appealing party must, immediately before the signature line on the brief, certify either that the appealed decision is in writing and is appended to the brief, or that the appealed decision was not in writing and therefore is not appended to the brief.  See Rule 16(3)(i).

Q. Will my case be scheduled for oral argument?

A. The court does not hear oral argument in every case. In most cases, after all briefs have been filed, the court reviews them to decide whether oral argument will be helpful in deciding the case. Often, after reviewing the briefs and the record on appeal (the transcript, if one was ordered, and any documents that have been transferred from the trial court), the court decides that oral argument is not necessary to make a decision in the case. When this happens, the court issues a brief order explaining its reasons for either affirming or reversing the trial court. In fact, most cases are decided without oral argument.

If the court decides that oral argument would be helpful, the case will be scheduled on the next available oral argument date. Some cases are scheduled for oral argument before all five supreme court justices (full court), while some cases are scheduled for oral argument before a panel of three supreme court justices (3JX). An order issued by a 3JX panel applies to the parties in that particular case only; it does not serve as precedent for any other case.

Q. When will the court decide my case?

A. Except in unusual circumstances, the decision-making process does not begin until all parties have filed briefs. The briefs are reviewed by the court to decide whether to schedule oral argument. The review process generally takes 45 to 60 days after all briefs have been filed.

If your case is not scheduled for oral argument, the court will discuss it at one of its regular conferences and will decide whether to affirm or reverse the trial court. A short order explaining the court's reasons will generally be issued within a week of the court's decision.

If the court determines that oral argument will be held in a case, the clerk of court will schedule the case for the next available oral argument date. With the exception of months when the court does not hear oral argument (and, instead, concentrates on writing opinions), the court generally hears three or four days of oral arguments a month.

Cases scheduled for oral argument are assigned to a justice to write an opinion or order. The justice, assisted by his or her law clerks, prepares a draft, which is circulated to all justices who are not disqualified from the case. The justices meet frequently to discuss all the opinions and orders that have been drafted. If a justice does not agree with the majority of the other justices, the justice may write a separate dissenting opinion. Generally, an opinion is issued within four months of oral argument, but in some cases it may take longer than four months.

 

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