Pursuant to Part II, Article 73-a of the New Hampshire Constitution, and Supreme Court Rule 51 A(7), the Supreme Court of New Hampshire approves, on a temporary basis, effective January 1, 2002, new Supreme Court Rule 12-D as set forth in Appendix A. This amendment to the Supreme Court Rules shall be referred to the advisory committee on rules for consideration of whether it should be adopted as a permanent rule.

December 10, 2001

ATTEST:     ______________________

                    Eileen Fox, Clerk of Court
                    Supreme Court of New Hampshire



Amend the Supreme Court Rules by adopting on a temporary basis the following new Rule 12-D:



(1) Selection of Cases.

(a) By order of the court, consistent with the criteria set out at paragraph (5) below, any case may be set for oral argument before a panel of three justices (3JX panel).

(b) Any party may request or consent that a case be set for oral argument before a 3JX panel. The court will consider and act upon such request, based upon criteria set out at paragraph (5) below.

(c) If all parties of record are represented by counsel, the court may direct that the matter be submitted on briefs, without oral argument. See Rule 18(5).

(d) Except as noted in this rule, the procedure for cases assigned to a 3JX panel shall be the same as otherwise provided in these rules. Any motions made in a case assigned to a 3JX panel shall be acted upon by the panel. The panel may, in its discretion, refer any such motion to the full court for resolution.

(2) Disposition after Argument Before Three Justices; Additional Briefing, etc. Any case which has been heard by a 3JX panel shall be decided by unanimous order of the three justices. If the panel cannot reach a unanimous decision, it shall direct that the case be reargued before the full court. The panel may order that a case be reargued before the full court in such other circumstances as it deems appropriate. The panel may, prior to determining that a unanimous decision cannot be reached, require additional briefing. If argument before the full court is ordered, the court may issue an additional order setting forth matters to be reargued or rebriefed.

(3) Nonprecedential Status of Orders. An order issued by a 3JX panel shall have no precedential value and shall not be cited in any pleadings or rulings in any court in this state, provided however, that such order may be cited and shall be controlling with respect to issues of claim preclusion, law of the case and similar issues involving the parties or facts of the case in which the order was issued.

(4) Opinions. With the consent of all the parties, a 3JX panel may recommend to the full court that a published opinion be issued in the case. If the court accepts the referral, the two justices not on the panel may participate in the opinion by reading the briefs and reviewing oral arguments. Without the consent of the parties, a 3JX panel which believes a published opinion should be issued in the case may order the case be reargued before the full court.

(5) Criteria for Selection of Cases for 3JX Panel. Cases suitable for oral argument before a 3JX panel include, but are not limited to:

(a) appeals involving claims of error in the application of settled law;

(b) appeals claiming abuse of discretion where the law governing that discretion is settled;

(c) appeals claiming insufficient evidence or a result against the weight of the evidence.

(6) Briefing, Argument, etc.

(a) In all cases selected for oral argument before a 3JX panel, briefs shall be limited to 20 pages, exclusive of the table of contents, tables of citations and any addendum containing pertinent texts of constitutions, statutes, rules, regulations and other such matters. Reply briefs shall be limited to 10 pages.

(b) Oral argument will be limited to five minutes per party.

(7) Motion for Rehearing or Reconsideration. Motions for rehearing or reconsideration of any order assigning a case to a three-justice panel or of any order issued by a three-justice panel shall be governed by Rule 22.