§ CR 76.12 Briefs

CR 76.12 Briefs

(1) When required.

Unless otherwise directed by the appellate court, before any appeal is taken under submission for final disposition on the merits briefs shall be filed by the respective parties. An appellant or cross-appellant may file a reply brief. No further briefs will be considered without leave of the court. The combining of arguments on an appeal and cross-appeal into one brief is both permitted and encouraged. Should the appellant or appellants fail to file a brief, no brief shall be required of the appellees unless so ordered by the court.

(2) Time for filing.

(a) Civil cases. In civil cases, including workers' compensation appeals, except appeals from Circuit Court orders determining paternity, dependency, abuse, neglect, domestic violence or juvenile status offense, the appellant's brief shall be filed with the clerk of the appellate court within 60 days after the date of the notation on the docket of the notification required by Rule 75.07(6). The appellee's brief (or combined briefs, if the appellee is also a cross-appellant) shall be so filed within 60 days after the date on which the appellant's brief was filed. The appellant's reply brief shall be filed within 15 days after the date on which the last appellee's brief was filed or due to be filed. If the appellant is also a cross-appellee, a combined brief may be filed within 60 days after the date on which the last appellee's brief is filed or due to be filed. When a motion for discretionary review has been granted by the Supreme Court, the time in which the movant's brief must be filed shall be computed from the date of entry of the order granting review.

(i) Civil appeals from Circuit Court orders determining paternity, dependency, abuse, neglect, domestic violence or juvenile status offense. Appeals in these cases shall be expedited. The appellant's brief shall be filed with the clerk of the appellate court within 30 days after the date of the notation on the docket of the notification required by Rule 75.07(6). The appellee's brief shall be filed within 30 days after the date of filing of the appellant's brief. The appellant's reply brief shall be filed within 10 days after the date of filing of the appellee's brief. Motions for extension of time will not be considered except under extraordinary circumstances.

(b) Criminal cases.The times in which briefs are required to be filed in criminal cases shall be the same as in civil cases, except as follows:

(i) If counsel for the appellant is the Public Advocate of the Commonwealth or the Attorney General of the Commonwealth, or designee, the appellant's brief shall be filed within 60 days after the date on which the record on appeal was received by the clerk of the appellate court (notice of which shall be sent); and

(ii) If counsel for the appellant is someone other than the Public Advocate of the Commonwealth or the Attorney General of the Commonwealth, or designee, the appellee's brief shall be filed within 60 days after the date on which the appellant's brief was filed or within 60 days after the date on which the record on appeal was received by the clerk of the appellate court, whichever is the later.

(3) Number of copies.

(a) Briefs in the Court of Appeals shall be filed in quintuplicate. In the Supreme Court ten copies shall be filed.

(b) Filing of Electronic Briefs on Diskette or CD-ROM. Any party filing a brief on the merits with the Clerk of the Supreme Court or the Court of Appeals may, and is encouraged to, file with the required copies of the paper brief an electronic brief thereof on a floppy disk or CD-ROM (preferred). The appellate court clerk shall receive and file the floppy disk or CD-ROM with the papers of that case.

(i) All electronic briefs shall be on a 3.5 floppy disk or CD-ROM that can be read via Microsoft Windows and shall contain in a single file all information contained in the paper brief, including the cover, the table of contents, and the certifications, in the same order as the paper brief. The electronic briefs may also contain hypertext links or bookmarks to cases, statutes and other reference materials available on the Internet or appended to the brief.

(ii) An electronic brief must be formatted in Microsoft Word, WordPerfect, or in a .pdf document (preferred).

(iii) An electronic brief shall contain a label indicating:

(a) The style and docket number of the case,

(b) The name of the document contained on the diskette or CD-ROM, and

(4) Form and content.

(a) Printed or typewritten brief.In the Supreme Court and the Court of Appeals, all briefs may be printed or typewritten. “Printed briefs” are those which have been typeset. A brief produced on a computer printer is considered to be typewritten.

(i) If printed, briefs shall be in black ink on unglazed opaque white paper 6 1/8 by 9 1/4 inches in dimension, in type no smaller than 11-point, and enclosed in covers colored as specified in this rule.

(ii) If typewritten, briefs shall be on unglazed white paper 8 1/2 by 11 inches in dimension in black type no smaller than 12 point set at standard width. Typing shall be double spaced and clearly readable. The brief shall have a 1 1/2 inch margin on the left side and a 1 inch margin on all other edges. Briefs shall be enclosed (front and back) in covers colored as specified in this rule. Typewritten briefs shall be securely bound at the left side.

(iii) Covers. All briefs shall be enclosed (front and back) in covers colored as follows: Appellants--red; Appellees--blue; Appellants reply brief--yellow; Amicus curiae--brown; Petitions for Rehearing--green; Response--gray; Other--white. Brief covers shall show the file number(s) of the appeal(s), the file number(s) of the circuit court action(s), a caption containing at least the lead appellants and appellees, the name of the party on whose behalf the brief is submitted, and the certificate required by subsection (6) of this rule. See official forms 24 and 25.

(b) Length.

(i) In the Court of Appeals, unless otherwise ordered by that court, the appellant's brief and the appellee's brief in response shall be limited to 25 pages each, excluding the introduction, statement of points and authorities, exhibits and appendices. Reply briefs shall be limited to five pages each, except that when an appellant is called upon to respond to more than one appellee brief the appellant is permitted up to five additional pages for each additional appellee brief. A brief combining arguments as an appellee and crossappellant shall be limited to 40 pages. A brief combining an appellant's reply and a cross-appellee brief shall be limited to 30 pages.

(ii) In the Supreme Court, unless otherwise permitted by order of that Court the appellant's brief and the appellee's brief in response shall be limited to 50 pages each, excluding the introduction, statement of points and authorities, exhibits and appendices, and reply briefs shall be limited to 10 pages each. A brief combining arguments on an appeal and cross-appeal to the Supreme Court shall not exceed 65 pages. A brief combining a reply and a response to a cross-appeal shall not exceed 25 pages in length. If the appellant is called upon to respond to more than one appellee's brief, the appellant shall be permitted up to five additional pages for each additional appellee's brief.

(iii) In cases where the death penalty has been imposed, upon motion made at least 20 days prior to the filing deadline, and upon good cause shown, the appellant's brief and the appellee's brief may be extended to no more than 150 pages, excluding the introduction, statement of points and authorities, exhibits and appendices. Upon similar motion, for good cause shown, made at least 5 days prior to the filing deadline, a reply brief may be extended to no more than 25 pages.

(c) Organization and contents-Appellant's brief. The organization and contents of the appellant's brief shall be as follows:

(i) A brief “INTRODUCTION” indicating the nature of the case, and not exceeding two simple sentences, such as, “This is a murder case in which the defendant appeals from a judgment convicting him of 1st -degree manslaughter and sentencing him to 20 years in prison,” or “This is a case in which an insurance company appeals from a judgment construing its policy as applicable, and a co-defendant's policy as not applicable, to the plaintiff's accident claim. Plaintiff also appeals against the co-defendant.”

(ii) A “STATEMENT CONCERNING ORAL ARGUMENT” indicating whether the appellant desires oral argument and why appellant believes that oral argument would or would not be helpful to the Court in deciding the issues presented. This Statement should be no longer than one brief paragraph. The appellant's statement is not binding on the Court and does not preclude a party's right to file a motion to reconsider the Court's ruling that oral argument will be dispensed with. Failure to include a statement concerning oral argument will be treated as indicating that appellant does not desire oral argument in the appeal.

(iii) A “STATEMENT OF POINTS AND AUTHORITIES,” which shall set forth, succinctly and in the order in which they are discussed in the body of the argument, the appellant's contentions with respect to each issue of law relied upon for a reversal, listing under each the authorities cited on that point and the respective pages of the brief on which the argument appears and on which the authorities are cited.

(iv) A “STATEMENT OF THE CASE” consisting of a chronological summary of the facts and procedural events necessary to an understanding of the issues presented by the appeal, with ample references to the specific pages of the record, or tape and digital counter number in the case of untranscribed videotape or audiotape recordings, or date and time in the case of all other untranscribed electronic recordings, supporting each of the statements narrated in the summary.

(v) An “ARGUMENT” conforming to the statement of Points and Authorities, with ample supportive references to the record and citations of authority pertinent to each issue of law and which shall contain at the beginning of the argument a statement with reference to the record showing whether the issue was properly preserved for review and, if so, in what manner.

(vi) A “CONCLUSION” setting forth the specific relief sought from the appellate court.

(vii) An “APPENDIX” with appropriate extruding tabs containing copies of the findings of fact, conclusions of law, and judgment of the trial court, any written opinions filed by the trial court in support of the judgment, the opinion or opinions of the court from which the appeal is taken, and any pleadings or exhibits to which ready reference may be considered by the appellant as helpful to the appellate court. The first item of the appendix shall be a listing or index of all documents included in the appendix. The index shall set forth where the documents may be found in the record. The appellant shall place the judgment, opinion, or order under review immediately after the appendix list so that it is most readily available to the court. Except for matters of which the appellate court may take judicial notice, materials and documents not included in the record shall not be introduced or used as exhibits in support of briefs. In workers' compensation cases the appendix shall include the opinions of the Administrative Law Judge, the Workers' Compensation Board and the Court of Appeals.

(viii) Any “INDEX” the appellant may wish to provide.

(d) Organization and contents-Appellee's brief. The organization and contents of the appellee's brief shall be as follws:

(i) A “STATEMENT CONCERNING ORAL ARGUMENT” responsive to appellant's statement indicating why appellee believes that oral argument would or would not assist the Court in deciding the issues presented.

(ii) A “COUNTERSTATEMENT OF POINTS AND AUTHORITIES” similar to the statement required of the appellant by
paragraph (4)(c)(iii) of this Rule.

(iii) A “COUNTERSTATEMENT OF THE CASE” stating whether the appellee accepts the appellant's Statement of the Case and, if not, setting forth the matters the appellee considers essential to a fair and adequate statement of the case in accordance with the requirements of paragraph (4)(c)(iv) of this Rule.

(iv) An “ARGUMENT” conforming to the appellee's Statement of Points and Authorities and to the requirements of paragraph (4)(c)(v) of this Rule with reference to record-references and citations of authority.

(v) An “APPENDIX” with appropriate extruding tabs containing copies of any papers or exhibits, not included in the appellant's brief to which ready reference may be considered by the appellee as helpful to the appellate court. The first item of the appendix shall be a listing or index of all documents included in the appendix. The index shall set forth where the documents may be found in the record.

(vi) Any “INDEX” the appellee may wish to provide.

(e) Organization and contents--other briefs.Other briefs permitted by these Rules shall have a “STATEMENT OF POINTS AND AUTHORITIES” conforming to paragraph (4)(c)(iii) of this Rule, shall state the purpose of the brief and the particular issues to which it is directed and shall contain an ARGUMENT consistent with the requirements of paragraph (4)(c)(v) of this Rule. The brief shall conclude with a statement of the relief sought, if pertinent, and may include an appendix or an index as in the instance of the briefs mentioned in paragraphs (4)(c) and (4)(d) of this Rule. Reply briefs shall be confined to points raised in the briefs to which they are addressed, and shall not reiterate arguments already presented.

(f) Organization and contents--Briefs of five pages or less.The requirements of this Rule with respect to a “STATEMENT OF POINTS AND AUTHORITIES” shall not apply to any brief of five pages or less.

(g) Form of citations. All citations of Kentucky Statutes shall be made from the official edition of the Kentucky Revised Statutes and may be abbreviated “KRS.” The citation of Kentucky cases reported after January 1, 1951, shall be in the following form for decisions of the Supreme Court and its predecessor court: Doe v. Roe, ___ S.W.2d ___ or ___ S.W.3d ___ (Ky. [date]), or for reported decisions of the present Court of Appeals, Doe v. Roe, ___ S.W.2d ___ or ___ S.W.3d ___ (Ky. App. [date]). Case names may be italicized or underlined.

(5) Service of briefs on adverse parties and courts from which appeals have been taken.

Before filing any brief in the appellate court a party shall serve, in the manner provided by CR 5.02, a copy of it on each adverse party to the appeal and on the judge whose decision is under review. In criminal cases both the defendant and the attorney general also shall serve copies of their briefs on the Commonwealth's attorney of the district in which the case was tried.

(6) Certificate required.

Every brief shall bear on the front cover a signed statement, in accordance with Rule 5.03, by the attorney or party that service has been made as required by this Rule, which statement shall identify by name the persons so served. Except for briefs on appeals from the Court of Appeals to the Supreme Court, the statement shall further certify that the record on appeal has been returned to the clerk of the trial court or that it was not withdrawn by the party filing the brief. The name or names of the attorneys submitting a brief and responsible for its contents shall appear following its “Conclusion.”

(7) Amicus curiae briefs.

A brief for an amicus curiae shall not be filed except on order of the appellate court pursuant to a motion specifying with particularity the nature of the movant's interest, the points to be presented, and their relevance to the disposition of the case. Payment of the filing fee specified in Rule 76.42(2)(a) shall be required with a motion for leave to file an amicus curiae brief and said motion shall be filed within fifteen (15) days of the filing of appellant's brief. An amicus curiae brief shall not exceed fifteen (15) pages, shall not contain appendices and shall be tendered with the motion.

(8) Penalties.

(a) A brief may be stricken for failure to comply with any substantial requirement of this Rule 76.12.

(b) If the appellant's brief has not been filed within the time allowed, the appeal may be dismissed.

(c) If the appellee's brief has not been filed within the time allowed, the court may: (i) accept the appellant's statement of the facts and issues as correct; (ii) reverse the judgment if appellant's brief reasonably appears to sustain such action; or (iii) regard the appellee's failure as a confession of error and reverse the judgment without considering the merits of the case.