NOTICE: The official publication of the Massachusetts Rules of Appellate Procedure is found in the bound volumes published and distributed as part of the Massachusetts Reports. Efforts have been taken to accurately compile and publish on this Web site these rules as they were initially published in 365 Mass. 844 (1974), subsequently amended in Massachusetts Reports through September 1, 2008. In the event of discrepancies between the electronic version of the rules found on this Web site and the print version found in the Massachusetts Reports, the print version will be considered authoritative.

Rule 1. SCOPE OF RULES: DEFINITIONS

Rule 2. SUSPENSION of RULES

Rule 3. APPEAL -- HOW TAKEN

Rule 4. APPEAL -- WHEN TAKEN

Rule 5. REPORT OF A CASE FOR DETERMINATION

Rule 6. STAY OR INJUNCTION PENDING APPEAL

Rule 7. DISABILITY OF A MEMBER OF THE LOWER COURT

RULE 8. THE RECORD ON APPEAL

RULE 9. ASSEMBLY AND TRANSMISSION OF THE RECORD: EXHIBITS

RULE 10. DOCKETING THE APPEAL

RULE 11. DIRECT APPELLATE REVIEW

Rule 11.1. TRANSFER FROM SUPREME JUDICIAL COURT

RULE 12. PROCEEDINGS IN FORMA PAUPERIS

RULE 13. FILING AND SERVICE

RULE 14. COMPUTATION AND EXTENSION OF TIME

RULE 15. MOTIONS

RULE 16. BRIEFS

RULE 17. BRIEF OF AN AMICUS CURIAE

RULE 18. APPENDIX TO THE BRIEFS

RULE 19. FILING AND SERVING OF BRIEFS AND MOTIONS

RULE 20. FORM OF BRIEFS, APPENDICES, AND OTHER PAPERS

RULE 21. PREHEARING CONFERENCE

RULE 22. ORAL ARGUMENT

RULE 23. ISSUANCE OF RESCRIPT: STAY OF RESCRIPT

RULE 24. JUSTICES"S PARTICIPATION

RULE 24.1. DIVIDED VOTE ON FURTHER APPELLATE REVIEW

RULE 25. DAMAGES FOR DELAY

RULE 26. COSTS

RULE 27. PETITION FOR REHEARING

RULE 28. ENTRY OF JUDGMENT FOLLOWING RESCRIPT

RULE 29. VOLUNTARY DISMISSAL

RULE 30. SUBSTITUTION OF PARTIES

RULE 31. DUTIES OF CLERKS

RULE 32. TITLE

(a) Scope of Rules. These rules govern procedure in appeals to an appellate court.

(b) Rules Not to Affect Jurisdiction. These rules shall not be construed to extend or limit the jurisdiction, as established by law, of the Supreme Judicial Court or the Appeals Court. All proceedings related to any appeal from: (a) a decision of a single justice of the Supreme Judicial Court, and (b) a decision of any tribunal, appeal from which must by law be brought in the Supreme Judicial Court, shall be had only before the full Supreme Judicial Court or a single justice thereof (unless transferred to the Appeals Court by order of the Supreme Judicial Court). But these rules shall govern such proceedings, except as provided in Supreme Judicial Court Rule 2.21.

(c) Definitions. As used in these rules:

"appeal" means an appeal to an appellate court and supersedes any procedure other than reservation and report by which matters have heretofore been brought before an appellate court for review.

"appellate court" means the full Supreme Judicial Court, the full Appeals Court, or a statutory quorum of either, as the case may be, whichever court is exercising statutory jurisdiction over the case at bar.

"child welfare case" means any case that is before a court of competent jurisdiction pursuant to G. L. c. 119, §§ 21-39J; G. L. c. 201, §§ 1, 2, 6, 14; or G. L. c. 210, §§ 1-11.

"clerk" means "clerk," "register," "recorder," and their respective assistants or deputies; "clerk of the appellate division" means the clerk of the trial court from which the action was reported to the appellate division.

"first class mail" means use of first class postage prepaid, whether certified, registered, uncertified, or unregistered. Registration or certification shall not be required unless specifically stated to be necessary.

"lower court" means the single justice, court, appellate division, board, commission, or other body whose decision is the subject of an appeal; for the purpose of Rule 9, the term includes any member of the lower court.

"rescript" means the order, direction, or mandate of the appellate court disposing of the appeal.

"single justice" means a single justice of whichever appellate court is exercising statutory jurisdiction over the case at bar.

(d) Construction. Words or phrases importing the singular number may extend and be applied to several persons or things, words importing the plural number may include the singular, and words importing the masculine gender may include the feminine and neuter.

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In the interest of expediting decision, or for other good cause shown, the appellate court or a single justice may, except as otherwise provided in Rule 14 (b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction. Such a suspension may be on reasonable terms.

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(a) Filing the Notice of Appeal. An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by rule 4. Failure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal.

A party need not claim an appeal from an interlocutory order to preserve his right to have such order reviewed upon appeal from the final judgment; but for all purposes for which an appeal from an interlocutory order has heretofore been necessary, it is sufficient that the party comply with the requirement of Massachusetts Rule of Civil Procedure 46 or Massachusetts Rule of Criminal Procedure 22, whichever was applicable to the trial of the case in the lower court.

(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment or order of a lower court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the appellate court upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.

(c) Content of the Notice of Appeal. The notice of appeal shall specify the party or parties taking the appeal and shall, in civil cases, designate the judgement, decree, adjudication, order, or part thereof appealed from. In child welfare cases, the notice of appeal and any request for a transcript, if required, shall be signed by the party or parties taking the appeal, unless the appellant is the minor subject of the action; a notice of appeal that is not so signed shall not be accepted for filing by the clerk.

(d) Service of the Notice of Appeal. The clerk of the lower court shall serve notice of the filing of a notice of appeal by mailing a copy thereof to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party at his last known address. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or his counsel. The clerk shall note in the docket the names of the persons to whom he mails copies, with the date of mailing.

(e) Change of Counsel on Appeal in Criminal and Certain Noncriminal Cases. If the defendant in a criminal case or any party in any other proceeding, excluding child welfare cases, in which counsel is required to be made available to such party pursuant to Supreme Judicial Court Rule 3:10 was represented by counsel at trial, trial counsel shall continue to represent that party on appeal until the trial court permits him to withdraw his appearance and until an appearance is filed by substitute counsel. If trial counsel wishes to withdraw, he shall, on the day upon which the notice of appeal is filed, file a motion to withdraw. Any motion under this provision shall be marked up by the trial counsel for hearing no later than seven days after filing. If the motion to withdraw is allowed, the judge shall assign the Committee for Public Counsel Services to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10.

(f) Appointment of Appellate Counsel in Child Welfare Cases. Any party to a child welfare case in which counsel was appointed pursuant to Supreme Judicial Court Rule 3:10 and who was represented by counsel at trial, shall continue to be represented by that counsel on appeal until either the trial court has appointed counsel for appellate purposes and an appearance has been filed by appellate counsel or the trial court has denied a motion to appoint counsel for appellate purposes.

Trial counsel shall, on the day upon which the signed notice of appeal is filed, file, and request a hearing on, a motion to allow reasonable costs associated with the appeal. At the same time, if trial counsel is not appellate certified by the Committee for Public Counsel Services, counsel shall also file, and request a hearing on, a motion to appoint counsel for appellate purposes. Subject to the provisions of Supreme Judicial Court Rule 3:10, § 7, trial counsel shall continue to represent the party at all trial court proceedings.

If the motion to appoint counsel for appellate purposes is allowed, the Committee for Public Counsel Services shall be assigned to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10.

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(a) Appeals in Civil Cases. In a civil case, unless otherwise provided by statute, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within thirty days of the date of the entry of the judgment appealed from; but if the Commonwealth or an officer or agency thereof is a party, the notice of appeal may be filed by any party within sixty days of such entry, except in child welfare cases, in which the notice of appeal shall be filed within thirty days from the date of the entry of the judgment, decree, order, or adjudication. If a notice of appeal is mistakenly filed in an appellate court, the clerk of such appellate court shall note the date on which it was received and transmit it to the clerk of the lower court from which the appeal was taken and it shall be deemed filed in such lower court on the date so noted. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within fourteen days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.

If a timely motion under the Massachusetts Rules of Civil Procedure is filed in the lower court by any party: (1) for judgment under rule 50(b); (2) under rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (3) under rule 59 to alter or amend a judgment; or (4) under rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above. No additional fees shall be required for such filing.

(b) Appeals in Criminal Cases. In a criminal case, unless otherwise provided by statute or court rule, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within thirty days after entry of the judgment or order appealed from; or entry of a notice of appeal by the Commonwealth; or the imposition of sentence.

The running of the time for filing a notice of appeal shall be terminated as to the moving party by a motion for a new trial pursuant to Massachusetts Rule of Criminal Procedure 30 filed in the lower court within thirty days after the verdict or finding of guilt or within thirty days after imposition of sentence and the full time fixed by this rule shall commence to run and shall be computed from the date of entry of an order denying such motion.

(c) Extension of Time for Filing Notice of Appeal. Upon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal by any party for a period not to exceed thirty days from the expiration of the time otherwise prescribed by this rule. Such an extension may be granted before or after the time otherwise prescribed by this rule has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with such notice as the lower court shall deem appropriate.

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A report of a case for determination by an appellate court shall for all purposes under these rules be taken as the equivalent of a notice of appeal. Whenever a case or any part of it is reported after decision or verdict, the aggrieved party (as designated by the lower court) shall be treated as the appellant. Whenever a case or any part of it is reported without decision or verdict, the plaintiff in a civil action or the defendant in a criminal case shall be treated as the appellant. The clerk of the lower court shall serve notice of the filing of the report by mailing a copy thereof to counsel of record for each party; or if a party is not represented by counsel, to the party at his last known address.

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(a) Stay Must Ordinarily Be Sought in the First Instance in Lower Court; Motion for Stay in Appellate Court. In civil cases, an application for a stay of the judgment or order of a lower court pending appeal, or for approval of a bond under subsection (b) (1) of this rule, or for an order suspending, modifying, restoring or granting an injunction during the pendency of an appeal, or in criminal cases, a motion for a stay of execution of a sentence must ordinarily be made in the first instance in the lower court. A motion for such relief may be made to the appellate court or to a single justice, but the motion shall show that application to the lower court for the relief sought is not practicable, or that the lower court has denied an application, or has failed to afford the relief which the applicant requested, with the reasons given by the lower court for its action. The motion shall also show the reasons for the relief requested and the facts relied upon, and if the facts are subject to dispute the motion shall be supported by affidavits or other statements signed under the penalties of perjury or copies thereof. With the motion shall be filed such parts of the record as are relevant. Reasonable notice of the motion shall be given to all parties. The motion shall be filed with the clerk of the appellate court to which the appeal is being taken (provided that, if the court be the Supreme Judicial Court, the motion shall be filed with the clerk of the Supreme Judicial Court for Suffolk County).

(b) Civil Cases.

(1) Stay May Be Conditioned upon Giving of Bond; Proceedings Against Sureties. Relief available in the appellate court under this rule may be conditioned upon the filing of a bond or other appropriate security in the lower court. If security is given in the form of a bond or stipulation or other undertaking with one or more sureties, each surety thereby shall submit himself to the jurisdiction of the lower court and irrevocably appoint the clerk of the lower court as his agent upon whom any papers affecting his liability on the bond or undertaking may be served. His liability may be entered against him on motion in the lower court without the necessity of an independent action. The motion and such notice of the motion as the lower court prescribes may be served on the clerk of the lower court, who shall forthwith mail copies to the sureties if their addresses are known.

(2) Terms. Relief available in the appellate court under this rule, or denial of such relief, may be conditioned on such reasonable terms as the appellate court or single justice may impose. For failure to observe such terms, the appellate court or single justice may make such further order as it or he deems just and appropriate.

(c) Criminal Cases. A motion for a stay of execution of a sentence shall be governed by paragraph (a) of this rule and by Massachusetts Rule of Criminal Procedure 31.

If a defendant fails at any stage to take any measure necessary for the hearing of an appeal or report, a stay of execution of a sentence may, on motion of the Commonwealth, be vacated.

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If by reason of death, sickness, resignation, removal, or other disability, the judge or judges whose decision has been appealed to the appellate court be unable to perform the duties to be performed under these rules by the lower court, then any other judge regularly sitting in or assigned to such lower court may, on assignment by the Chief Justice or presiding judge of such lower court, perform those duties.

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(a) Composition of the Record on Appeal. The original papers and exhibits on file, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases. In a civil case, in an appeal from an appellate division, the original papers and exhibits shall include the report of the trial judge to the appellate division with any exhibits made a part of such report.

(b) The Transcript of Proceedings.

(1) Civil Cases, Except Child Welfare Cases: Duty of Appellant to Order; Notice to Appellee if Partial Transcript Is Ordered. Within ten days after filing the notice of appeal the appellant shall order from the court reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the appellee a description of the parts of the transcript which he intends to include in the record and a statement of the issues he intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary he shall, within ten days after the service of the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the lower court for an order requiring the appellant to do so. At the time of ordering, a party shall make satisfactory arrangements with the court reporter for payment of the cost of the transcript.

(2) Criminal Cases: Duty of Clerk; Duty of Court Reporter. Upon the filing of a notice of appeal, unless the parties file therewith a stipulation designating the parts of the proceedings which need not be transcribed, the clerk of the lower court, within ten days, shall order from the court reporter a transcript of the proceedings and shall file a certificate of such order. The parties are encouraged to stipulate to those parts of the proceedings which are unnecessary to the appeal. Upon receipt of an order, the court reporter shall prepare one original typed transcript. The court reporter shall deliver the original typed transcript to the clerk of the lower court who shall, by means of xerography or other similar method which produces legible copies, prepare one copy thereof for each of the appellate court, the appellant, and the appellee. The clerk of the lower court shall deliver one copy each to the appellant and the appellee and shall certify that the copies of the appellant and appellee have been delivered. The clerk of the lower court shall retain custody of the original typed transcript and one copy thereof until the record is transmitted to the appellate court as provided by rule 9 (d).

The Commonwealth shall pay the cost of the original of the typed transcript and a copy for the appellate court. Except as provided in Rule 8 (b) (4), the cost of the copy for the appellant shall be paid for by the appellant.

(3) Electronically Recorded Proceedings, Except Child Welfare Cases.

(i) Applicability. Rule 8 (b) (3) applies to proceedings which were recorded electronically on equipment under the control of the court and which were not recorded by an official court reporter.

If, however, a complete transcript of the electronic recording has been produced for use by the trial court, and it or a copy is available to the parties, such transcript or copy shall be utilized in lieu of preparing another pursuant to this Rule 8 (b) (3). Upon receipt of the notice of appeal in such cases, the clerk shall advise the parties of the name of the preparer of the transcript; the parties shall then follow the procedure under Rule 8 (b) (1) in a civil case, or Rule 8 (b) (2) in a criminal case, as if a court reporter had been present, except the appellant's time for ordering a transcript shall be extended to within ten days after appellant's receipt of the clerk's notification of the name of the preparer of the transcript.

(ii) Duties of the Appellant and of the Clerk; Selection of Transcriber. If the appellant deems all or part of the electronic recording necessary for inclusion in the record, the appellant shall, simultaneously with filing a notice of appeal, order from the clerk of the lower court, in accordance with any rule or established policy of the court, a cassette copy of the electronic recording, which is hereinafter called "the cassette." The clerk shall promptly provide the cassette, unless the provisions of the second paragraph of Rule 8 (b) (3) (i) apply. If a portion of the electronic recording has already been transcribed for use by the trial court, and such transcript or a copy is available to the parties, the clerk shall, in addition to providing the cassette, at the same time advise the parties of the name of the preparer of the transcript.

Within fifteen days of receipt of the cassette from the clerk, appellant shall file in court and serve on each appellee a document which includes the date of receipt of the cassette; a designation of the parts of the cassette the appellant intends to include in the transcript; and the name, address, and telephone number of the individual or firm selected to prepare the transcript, provided that the appellant and each appellee have agreed to this choice and the appellant so states. If the appellant and appellees have not so agreed, said document shall also specifically notify the clerk to select the transcriber.

The designation of the parts of the cassette to be transcribed should be precise and include such details as the name of the witness whose testimony has been designated and the portions to be included, giving an exact quote of the beginning words and concluding words of each designated portion.

If such selection of an individual or firm to prepare the transcript is not included, or if the transcript is to be provided at the expense of the Commonwealth, the individual or firm shall be selected by the clerk. When the selection is made by the clerk, the individual or firm shall be selected in accordance with procedures promulgated by the Chief Administrative Justice. The clerk shall promptly notify all parties of any such selection made by the clerk. Any individual or firm selected to transcribe the record pursuant to Rule 8 (b) (3) is hereinafter called "the transcriber."

If the appellant has designated the entire cassette for transcription, then within said fifteen days of receipt of the cassette from the clerk, appellant shall also send or deliver to the transcriber the cassette provided by the clerk and a written order designating the entire cassette for transcription. If the appellant has not designated the entire cassette, then after twenty days have expired from the service upon the appellee of appellant's designation of transcript, the appellant shall promptly send or deliver to the transcriber the cassette provided by the clerk and a written order which states those parts of the cassette designated by the parties for transcription. In addition, the order, whether for all or part of the transcript, shall include a statement that the original of the designated portions of the transcript should be sent to the clerk of the lower court, and shall indicate the number of copies, if any, to be sent to the appellant. The appellant shall promptly file with the clerk and serve on the other parties a copy of the order placed with the transcriber. Unless the entire cassette is to be transcribed, the appellant shall, together with appellant's designation of transcript, file and serve on the appellee a statement of the issues the appellant intends to present on the appeal.

The appellant shall cooperate with the transcriber by providing such information as is necessary to facilitate transcription, and, where the Commonwealth is not responsible for the cost of transcription, make satisfactory arrangements with the transcriber to pay for the trial court's original of the designated portions of the transcript and any copies ordered by the appellant for the appellant's own use.

(iii) Duties of the Appellee. If the appellee deems it necessary to have a cassette in order to consider counter-designating, or for any other purpose, the appellee shall, after receipt of the notice of appeal, promptly order the cassette from the clerk or promptly arrange with the appellant to use appellant's cassette. If the appellant has not designated and ordered the entire transcript and if the appellee deems a transcript of other portions of the proceedings to be necessary, the appellee shall within fifteen days after receipt of the appellant's designation, file in court, and serve on the appellant, a designation of such additional parts. The designation of the parts of the cassette to be transcribed should be precise and include such details as the name of the witness whose testimony has been designated and the specific portions to be included, giving an exact quote of the beginning words and concluding words of each designated portion. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the lower court for an order requiring the appellant to do so. If the appellee desires a copy of designated portions of the transcript, the appellee shall promptly communicate to the transcriber the number of copies wanted and, in cases where the Commonwealth is not responsible for the cost of the transcript, make satisfactory arrangements with the transcriber for payment for the appellee's own copies.

The appellee shall cooperate with the transcriber by providing such information as is necessary to facilitate transcription.

(iv) Duties of the Transcriber. The transcriber shall prepare an original typed transcript of the designated portions and the requested number of copies, in accordance with the designations, and shall deliver said original to the clerk, with the following certificate of accuracy:

I, ____________, do hereby certify that the foregoing is a true and accurate transcript, prepared to the best of my ability, of the designated portions of the cassette provided to me by the appellant or appellee of a trial or hearing of the ___________ Division of the _____________ Court Department in the proceedings of ____________ v. ____________, case(s) no.(s) _________________ before Justice ______________________ on __________________.

(Day and Date)

Date:__________________ ______________________________

Transcriber's Signature

The transcriber shall deliver legible copies to all parties who have so requested.

(v) Unintelligible Portions of the Cassette. If portions of the cassette cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate their content. If agreement cannot be reached, the parties shall promptly present their differences as to such portions to the trial judge who heard the testimony. The trial judge shall, if possible, settle the content of the unintelligible portions, which shall then be included in the transcript.

(vi) Transcripts Paid for by the Commonwealth. In criminal cases, the Commonwealth shall pay the cost of the original of the designated portions of the typed transcript and a copy for the appellate court. Except as provided in Rule 8 (b) (4), the cost of the copy for the appellant shall be paid for by the appellant who shall make arrangements with the transcriber to pay for such copy.

Whenever the Commonwealth is to pay for an original or copy of the designated portions of the transcript, each party designating any portion of the cassette for transcription shall, at the time of filing the designation, also file a certificate that the parts designated are necessary to permit full consideration of the issues on appeal. Unless one of the parties specifically requests otherwise, that part of the cassette dealing with impanelment of a jury shall not be transcribed.

(4) Cost of Transcripts for Indigents. In all cases in which counsel is required to be made available pursuant to Supreme Judicial Court Rule 3:10, the cost of any transcript for such a party shall be paid for by the Commonwealth.

(5) Child Welfare Cases.

(i) Proceedings Recorded by an Official Court Reporter. On the filing of a notice of appeal, unless the parties file therewith a stipulation designating the parts of the proceedings which need not be transcribed, the clerk of the lower court on behalf of the appellant, shall order from the court reporter a transcript of the entire proceeding or of such parts of the proceeding not already on file. The clerk of the lower court shall notify all parties of the date the transcript was ordered by sending a copy of the order form to all parties.

On receipt of the order the court reporter shall prepare an original typed transcript for filing with the lower court and a copy for the appellant and any party who so requests. The court reporter shall deliver the original to the clerk of the lower court who shall immediately notify all parties of its receipt, and the court reporter shall deliver legible copies to the appellant and to any party who so requests.

(ii) Electronically Recorded Proceedings.

(a) Applicability: Rule 8 (b) (5) (ii) applies to child welfare cases which were recorded electronically on equipment under the control of the court and which were not recorded by an official court reporter. If, however, a complete transcript of the electronic recording has been produced for use by the lower court, and it or a copy is available to the parties, that transcript or copy shall be used.

(b) Duties of the Appellant and Clerk. Upon the filing of a notice of appeal, the clerk of the lower court shall produce a cassette copy of the electronic recording. Within 10 days of production of the cassette, the clerk of the lower court shall, unless the parties file a stipulation designating the parts of the cassette which need not be transcribed, on behalf of the appellant order a transcription of the entire cassette from the transcriber selected by the clerk in accordance with procedures promulgated by the Chief Justice for Administration and Management. The clerk shall also notify all parties of the name of the transcriber and the date the cassette was sent for transcription by sending a copy of the order form to all parties.

On receipt of the order the transcriber shall prepare an original typed transcript for filing in the lower court and a copy for the appellant and any party who so requests. The transcriber shall deliver the original to the clerk of the lower court who shall immediately notify all parties of its receipt, and the transcriber shall deliver legible copies to the appellant and to any party who so requests. The appellant and appellee shall cooperate with the transcriber by providing information necessary to facilitate transcription.

The transcriber shall certify the original transcript using the following certificate of accuracy:

I, ______________, do hereby certify that the foregoing is a true and accurate transcript, prepared to the best of my ability, of the designated portions of the cassette provided to me by the clerk of the lower court of a trial or hearing of the ______________ Division of the ________________ Court Department in the proceedings of _________________, cases(s) no(s). ____________ before Justice _____________________ on _____________.

Date: _________ ___________________________

Transcriber's

Signature

(iii) Unintelligible Portions of the Cassette. If portions of the cassette cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate their content. If agreement cannot be reached, the parties shall promptly present their differences as to such portions to the trial judge who heard the testimony. The trial judge shall, if possible, settle the content of the unintelligible portions, which shall then be included in the transcript.

(iv) Costs. The appellant shall pay for the cost of the original transcript filed with the lower court and for any copies ordered by the appellant. If there is more than one appellant, the cost of the original and any copies shall be divided between the various appellants. Any other party who requested a copy of the transcript shall pay for its copy. For any party for whom counsel is made available pursuant to Supreme Judicial Court Rule 3:10, the cost of any transcript requested by, or on behalf of, such party shall be paid in accordance with G. L. c. 261.

(c) Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may, within thirty days after the notice of appeal is filed, file a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments thereto shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may, within thirty days after the notice of appeal is filed, prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the lower court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the lower court, and as approved shall be retained in the lower court as the record on appeal.

Copies of the agreed statement shall be filed as the appendix required by rule 18.

(e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court, either before or after the record is transmitted to the appellate court, or the appellate court, or a single justice, on proper suggestion or on its own motion, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to a single justice.

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(a) Assembly. The clerk of the lower court as soon as may be after the filing of the notice of appeal shall place together all the original papers including the exhibits filed in the lower court, together with such other papers as thereafter become a part of the record pursuant to rule 8. The papers shall be numbered in the order of filing and the exhibits shall be plainly marked with the number assigned in the lower court preceded by the letters "exh.". The clerk shall append to the record a list of the documents correspondingly numbered and identified with reasonable definiteness. The record so assembled by the clerk shall be suitably spindled, bound, or tied and retained by the clerk in this form until the final disposition of the appeal, except as the record or any part of it is ordered to be transmitted by the appellate court or a single justice.

(b) Exhibits. No exhibit need be reproduced for the record, except by order of an appellate court, a single justice, or the judge of the lower court. Any counsel may reproduce any exhibit in several copies for the convenience of the court. The lower court shall make such orders as it deems necessary for the preservation of exhibits, and for the reproduction of important exhibits which the appellate court should examine, and the clerk of the lower court shall transmit any exhibit to the appellate court at the request of any party made at any time after the filing of the record appendix. A party shall make advance arrangements with the clerk of the lower court for the transmission and receipt of exhibits of unusual bulk or weight. No exhibit consisting of currency, bearer securities, firearms, narcotics, or contraband articles shall be transmitted to an appellate court unless pursuant to an order of the full appellate court or a Justice thereof.

(c) Appellant's Obligation.

(1) In General. In a civil or criminal case, upon request by the clerk of the lower court, the appellant shall forthwith perform any act reasonably necessary to enable the clerk to assemble the record and the clerk shall assemble a single record.

The lower court or the appellate court or a single justice thereof may require the record to be assembled and the appeal to be docketed at any time.

(2) Civil Cases. Notwithstanding any other obligation which these rules may impose, but excepting electronically recorded proceedings governed by Rule 8 (b) (3), each appellant in a civil case shall, within ten days after filing a notice of appeal, deliver to the clerk of the lower court either (i) a transcript of those portions of the transcript of the lower court proceedings which the appellant deems necessary for determination of the appeal, (ii) a signed statement certifying that the appellant has ordered such portions from the court reporter, or (iii) a signed statement certifying that the appellant has not ordered and does not intend to order the transcript or any portion thereof. Upon receiving the transcript, the appellant in a civil case shall forthwith deliver it to the clerk of the lower court.

(d) Duty of Clerk; Transmission. When the record is fully assembled, the clerk of the lower court shall notify the parties and the clerk of the appellate court shall transmit to the appellate court two certified copies of the docket entries and, in a criminal case, the original and one copy of the transcript and a list of all the exhibits. In case of an order to transmit, transmission shall be effected when the clerk of the lower court mails or otherwise forwards the record to the clerk of the appellate court. The clerk of the lower court shall indicate, by endorsement on the face of the record or otherwise, the date upon which it is transmitted to the appellate court.

(e) Record for Preliminary Hearing in the Appellate Court. If prior to the time the record is assembled a party desires to make in the appellate court a motion for dismissal, for a stay pending appeal or for any intermediate order, the appellate court or a single justice may, on its own motion or on motion of any party, with or without notice, order the clerk of the lower court to transmit to the appellate court such parts of the original record as the appellate court or the single justice shall deem appropriate.

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(a) Docketing the Appeal.

(1) Civil Cases. Within ten days after receiving from the clerk of the lower court notice of assembly of the record, or of approval by the lower court of an agreed statement, each appellant, including each cross-appellant, shall pay to the clerk of the appellate court the docket fee fixed by law, and the clerk shall thereupon enter the appeal of such appellant or cross-appellant upon the docket. If an appellant is authorized to prosecute the appeal without prepayment of fees, the clerk shall enter the appeal upon the docket at the request of a party.

(2) Criminal Cases. Upon receipt of notice of assembly of the record, pursuant to rule 9 (d), or of approval by the lower court of an agreed statement, pursuant to rule 8 (d), the clerk of the appellate court shall enter the appeal upon the docket.

(3) In General. Upon docketing the appeal, the clerk shall serve written notice thereof on each party and the clerk of the lower court. Upon motion, the lower court or a single justice of the appellate court may, for cause shown, enlarge the time for docketing the appeal or permit the appeal to be docketed out of time. An appeal shall be docketed under the title given to the action in the lower court, with the appellant identified as such, but if such title does not contain the name of the appellant, his name, identified as appellant, shall be added to the title.

(b) Filing. The clerk of the appellate court shall file upon receipt any part of the record or any paper authorized to be filed in lieu of the record under any provisions of rule 9, following timely docketing of the appeal. The clerk shall immediately give notice to all parties of the date of each such filing.

(c) Dismissal for Failure of Appellant in a Civil Case to Comply with Rule 9 (c) or Rule 10 (a). If any appellant in a civil case shall fail to comply with rule 9 (c) or rule 10 (a) (1) or (3), the lower court may, on motion with notice by any appellee, dismiss the appeal, but only upon a finding of inexcusable neglect; otherwise, the court shall enlarge the appellant's time for taking the required action. If, prior to the lower court's hearing such motion for noncompliance with Rule 9 (c), the appellant shall have cured the noncompliance, the appellant's compliance shall be deemed timely.

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(a) Application; When Filed; Grounds. An appeal within the concurrent appellate jurisdiction of the Appeals Court and Supreme Judicial Court shall be entered in the Appeals Court before a party may apply to the Supreme Judicial Court for direct appellate review. Within twenty days after the docketing of an appeal in the Appeals Court, any party to the case (or two or more parties jointly) may apply in writing to the Supreme Judicial Court for direct appellate review, provided the questions presented by the appeal are: (1) questions of first impression or novel questions of law which should be submitted for final determination to the Supreme Judicial Court; (2) questions of law concerning the Constitution of the Commonwealth or questions concerning the Constitution of the United States which have been raised in a court of the Commonwealth; or (3) questions of such public interest that justice requires a final determination by the full Supreme Judicial Court. Oral argument in support of an application will not be permitted except by order of court.

(b) Contents of Application; Form. The application for direct appellate review shall contain, in the following order: (1) a request for direct appellate review; (2) a statement of prior proceedings in the case; (3) a short statement of facts relevant to the appeal; (4) a statement of the issues of law raised by the appeal, together with a statement indicating whether the issues were raised and properly preserved in the lower court; (5) a brief argument thereon (covering not more than ten pages of typing) including appropriate authorities, in support of the applicant's position on such issues; and (6) a statement of reasons why direct appellate review is appropriate. A certified copy of the docket entries shall be appended to the application. The applicant shall also append a copy of any written decision, memorandum, findings, rulings, or report of the lower court relevant to the issues on appeal. The application shall comply with the requirements of Rule 20.

(c) Opposition; form. Within ten days after the filing of the application, any other party to the case may, but need not, file and serve an opposition thereto (covering not more than ten pages of typing) setting forth reason why the application should not be granted. The opposition shall not restate matters described in subdivision (b) (2) and (3) of this rule unless the opposing party is dissatisfied with the statement thereof contained in the application. The opposition shall comply with the requirements of Rule 20.

(d) Filing; service. One copy of the application and one copy of each opposition shall be filed in the office of the clerk of the Appeals Court. An original and seventeen copies of the application and of each opposition shall be filed in the office of the clerk of the full Supreme Judicial Court. Filing and service of the application and of any opposition shall comply with Rule 13.

(e) Effect of application upon appeal. The filing of an application for direct appellate review shall not extend the time for filing briefs or doing any other act required to be done under these rules.

(f) Vote of Direct Appellate Review; Certification. If any two justices of the Supreme Judicial Court vote for direct appellate review, or if a majority of the justices of the Appeals Court shall certify that direct appellate review is in the public interest, an order allowing the application (or transferring the appeal sua sponte) or the certificate, as the case may be, shall be transmitted to the clerk of the Appeals Court; upon receipt, direct appellate review shall be deemed granted. The clerk shall forthwith transmit to the clerk of the full Supreme Judicial Court all papers theretofore filed in the case and shall notify the clerk of the lower court that the appeal has been transferred.

(g) Cases transferred for direct review; time for serving and filing briefs. In any appeal transferred to the full Supreme Judicial Court from the Appeals Court:

(1) If at the time of transfer all parties have served and filed briefs in the Appeals Court, no further briefs may be filed except that a reply brief may be served and filed on or before the last date allowable had the case not been transferred, or within ten days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later.

(2) If at the time of transfer only the appellant's brief has been served and filed in the Appeals Court, the appellant may, but need not, serve and file an amended brief within twenty days after the date on which the appeal is docketed in the full Supreme Judicial Court. The appellee shall serve and file his brief within thirty days after service of any amended brief of the appellant, or within fifty days after the date on which the appeal is docketed in the full Supreme Judicial Court, whichever is later.

(3) Service and filing of a reply brief shall comply with Rule 19.

(4) If at the time of transfer to the full Supreme Judicial Court no party to the appeal has served or filed a brief, the appellant shall serve and file a brief within twenty days after the date on which the appeal is docketed in the full Supreme Judicial Court or within forty days after the date on which the appeal was docketed in the Appeals Court, whichever is later.

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In the case of a direct appeal to the Supreme Judicial Court, within fourteen days after the appeal has been docketed, or such further time as a single justice upon motion for cause shown may allow, any party may serve and file a motion, on notice, to transfer the appeal to the Appeals Court. The motion: (a) shall not exceed five typewritten pages; (b) shall succinctly specify the grounds for transfer; and (c) shall conform to Rules 13, 14, 15 and 20 (b). Within seven days after filing of the motion, any other party may serve and file an opposition to the transfer. The opposition: (a) shall not exceed five typewritten pages; (b) shall succinctly specify the reasons for opposing the transfer; and (c) shall conform to Rules 13, 14, 15 and 20 (b).

No oral argument will be permitted.

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(a) Leave to Proceed on Appeal in Forma Pauperis from Lower Court to Appellate Court. Either a lower court or a single justice, for cause shown and after reasonable notice, may authorize an appeal to be prosecuted in forma pauperis, upon such reasonable terms as such court or justice may prescribe.

(b) Form of Briefs, Appendices and Other Papers. Parties allowed to proceed in forma pauperis may file briefs, appendices and other papers in typewritten form, and may request that the appeal be heard on the original record without the necessity of reproducing parts thereof in any form.

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(a) Filing. Papers required or permitted to be filed in the appellate court shall be filed with the clerk. Filing may be accomplished by first class mail, either registered or unregistered, addressed to the clerk, but filing shall not be timely unless the papers are received by the clerk within the time fixed for filing, except that briefs and appendices shall be docketed on the date of receipt and shall be deemed timely filed if (i) received within the time fixed for filing or (ii) accompanied by an affidavit signed by counsel of record attesting that the day of mailing was within the time fixed for filing. If a motion requests relief which may be granted by a single justice, the justice may permit the motion to be filed with him, in which event he shall note thereon the date of filing and shall thereafter transmit it to the clerk.

(b) Service of All Papers Required. Copies of all papers filed by any party and not required by these rules to be served by the clerk shall, at or before the time of filing, be served by a party or person acting for him on all other parties to the appeal or review. Service on a party represented by counsel shall be made on counsel.

(c) Manner of Service. Service may be personal or by first class mail. Personal service included delivery of the copy to a clerk or other responsible person at the office of counsel. Service by first class mail is complete on mailing.

(d) Proof of Service. Paper presented for filing shall contain an acknowledgment of service by the person served or proof of service in the form of a statement under the penalties of perjury of the date and manner of service and of the name of the person served, signed by the person who made service. Proof of service may appear on or be affixed to the papers filed. The clerk may permit papers to be filed without acknowledgment or proof of service but shall require such acknowledgment or proof to be filed promptly thereafter.

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(a) Computation of Time. In computing any period of time prescribed by these rules, by order of court, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run shall not be included. The last day of the period shall be included, unless it is a Saturday, Sunday or a legal holiday, in which event the period shall extend until the end of the next day which is not a Saturday, Sunday or a legal holiday. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation. As used in this rule "legal holiday" means those days specified in G. L. c. 4, § 7, and any other day appointed as a holiday by the President or the Congress of the United States or so designated by the laws of the Commonwealth.

(b) Enlargement of Time. The appellate court or a single justice for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time; but neither the appellate court nor a single justice may enlarge the time for filing a notice of appeal beyond one year from the date of entry of the judgment or order sought to be reviewed, or, in a criminal case, from the date of the verdict or finding of guilt or the date of imposition of sentence, whichever date is later.

(c) Additional Time After Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after service of a paper upon him and the paper is served by mail, three days shall be added to the prescribed period.

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(a) Content of Motions; Response; Reply. Unless another form is elsewhere prescribed by these rules, an application for an order or other relief shall be made by filing a motion for such order or relief with proof of service on all other parties. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall state with particularity the grounds on which it is based, and shall set forth the order or relief sought. If a motion is supported by briefs, affidavits, or other papers, they shall be served and filed with the motion. Any party may file a response in opposition to a motion other than one for a procedural order (for which see subdivision (b)) within seven days after service of the motion, but motions authorized by Rule 6 may be acted upon after reasonable notice, and the appellate court or a single justice may shorten or extend the time for responding to any motion.

(b) Determination of Motions for Procedural Orders. Notwithstanding the provisions of the preceding paragraph as to motions generally, motions for procedural orders, including any motion under Rule 14 (b), may be acted upon at any time, without awaiting a response thereto. Any party adversely affected by such action may request reconsideration, vacation, or modification of such action.

(c) Power of a Single Justice to Entertain Motions. In addition to the authority expressly conferred by these rules or by law, a single justice may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single justice may not dismiss or otherwise determine an appeal or other proceeding, and except that the appellate court may provide by order or rule that any motion or class of motions shall be acted upon by the appellate court. The action of a single justice may be reviewed by the appellate court.

(d) Motions for New Trial in Capital Cases. After the docketing of an appeal in a criminal case in which the defendant was convicted of murder in the first degree and until the filing of a rescript by the appellate court, a motion for a new trial pursuant to Massachusetts Rule of Criminal Procedure 30 shall be filed in the appellate court and may be remitted to the trial judge for hearing and determination at such time as the appellate court may direct.

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(a) Brief of the Appellant. The brief of the appellant shall contain under appropriate headings and in the order here indicated:

(1) In all briefs, a table of contents, with page references, and a table of cases (alphabetically arranged), statutes and other authorities cited, with references to the pages of the brief where they are cited.

(2) A statement of the issues presented for review.

(3) A statement of the case, which shall first indicate briefly the nature of the case, the course of proceedings, and its disposition in the court below. There shall follow a statement of the facts relevant to the issues presented for review, with appropriate references to the record (see subdivision (e)).

(4) The argument, which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. In a brief with more than twenty-four pages of argument, there shall be a short summary of argument, suitably paragraphed and with page references to later material in the brief dealing with the same subject matter, which should be a condensation of the argument actually made in the body of the brief, and not a mere repetition of the headings under which the argument is arranged. The appellate court need not pass upon questions or issues not argued in the brief. Nothing argued in the brief shall be deemed to be waived by a failure to argue orally.

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

(6) Any written or oral findings or memorandum of decision by the court pertinent to an issue on appeal included as an addendum to the brief.

(7) In cases where geographical facts are of importance, unless appropriate plans are reproduced in the printed record or record appendix, an outline plan or chalk (preferably based on exhibits in evidence) shall be included. This outline plan should be suitable for reproduction on one page of the printed law reports.

(8) The printed names, Board of Bar Overseers (BBO) numbers, addresses, and telephone numbers of individual counsel, and, if an individual counsel is affiliated with a firm, the firm name.

(b) Brief of the Appellee. The brief of the appellee shall conform to the requirements of subdivision (a)(1)-(4) and (7), except that a statement of the issues or of the case need not be made unless the appellee is dissatisfied with the statement of the appellant.

(c) Reply Brief. The appellant may file a brief in reply to the brief of the appellee, and if the appellee has cross-appealed, the appellee may file a brief in reply to the response of the appellant to the issues presented by the cross appeal. No further briefs may be filed except with leave of the appellate court. Reply briefs shall comply with the requirements of rule 16 (a) (1).

(d) References in Briefs to Parties. Counsel will be expected in their briefs and oral arguments to keep to a minimum references to parties by such designations as "appellant" and "appellee." It promotes clarity to use the designations used in the lower court, or the actual names of the parties, or descriptive terms such as "the employee," "the injured person," "the taxpayer," "the landlord," etc. If the name of a party has been impounded or has been made confidential by statute, rule, or court order, counsel shall preserve confidentiality in briefs and oral arguments.

(e) References in Briefs to the Record. References in the briefs to parts of the record reproduced in the appendix filed with a brief (see Rule 18 (a)) shall be to the pages of the appendix at which those parts appear. If the appendix is prepared after the briefs are filed, references in the briefs to the record shall be made by one of the methods allowed by Rule 18 (c). If the record is reproduced in accordance with the provisions of Rule 18 (f), or if references are made in the briefs to parts of the record not reproduced, the references shall be to the pages of the parts of the record involved; e.g., Answer p. 7, Motion for Judgment p. 2, Transcript p. 231. Intelligible abbreviations may be used. If reference is made to evidence the admissibility of which is in controversy, reference shall be made to the pages of the appendix or of the transcript at which the evidence was identified, offered, and received or rejected. No statement of a fact of the case shall be made in any part of the brief without an appropriate and accurate record reference.

(f) Reproduction of Statutes, Rules, Regulations, Etc. If determination of the issues presented requires consideration of constitutional provisions, statutes, rules, regulations, etc. or relevant parts thereof, they shall be reproduced in the brief or in an addendum at the end.

(g) Massachusetts Citations. Massachusetts Reports between 17 Massachusetts and 97 Massachusetts shall be cited by the name of the reporter. Any other citation shall include, wherever reasonably possible, a reference to any official report of the case or to the official publication containing statutory or similar material. References to decisions and other authorities should include, in addition to the page at which the decision or section begins, a page reference to the particular material therein upon which reliance is placed, and the year of the decision; as, for example: 334 Mass. 593, 597-598 (1956). Quotations of Massachusetts statutory material shall include a citation to either the Acts and Resolves of Massachusetts or to the current edition of the General Laws published pursuant to a resolve of the General Court.

(h) Length of Briefs. Except by permission of the court, principal briefs shall not exceed fifty pages, exclusive of pages containing the table of contents, tables of citations and any addendum containing statutes, rules, regulations, etc. Except by permission of the court, reply briefs shall not exceed twenty pages. Permission of the court shall not be granted unless the moving party specifies the relevant issue or issues and why such issues merit additional pages. A motion of a party to exceed the page limits stated in this rule will not be granted except for extraordinary reasons.

(i) Briefs in Cases Involving Cross Appeals. If a cross appeal is filed, the plaintiff in the court below shall be deemed the appellant for the purposes of this rule and Rules 18 and 19, unless the parties otherwise agree or the court otherwise orders. The brief of the appellee shall contain the issues and argument involved in his appeal as well as the answer to the brief of the appellant.

(j) Briefs in Cases Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for purposes of the appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another. Parties may similarly join in reply briefs.

(k) Required Certification; Non-complying Briefs. The last page of each brief shall include a certification by counsel, or, if a party is proceeding pro se, by the party, that the brief complies with the rules of court that pertain to the filing of briefs, including, but not limited to: Mass. R. A. P. 16(a)(6) (pertinent findings or memorandum of decision); Mass. R. A. P. 16(e) (references to the record); Mass. R. A. P. 16(f) (reproduction of statutes, rules, regulations); Mass. R. A. P. 16(h) (length of briefs); Mass. R. A. P. 18 (appendix to the briefs); and Mass. R. A. P. 20 (form of briefs, appendices, and other papers). A brief not complying with these rules (including a brief that does not contain a certification) may be struck from the files by the appellate court or a single justice.

(l) Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after his brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited.

(m) References to Impounded Material. Upon the filing of any brief or other document containing references to matters that are impounded or have been made confidential by statute, rule, or order, counsel (or a party if pro se), shall file a written notice with the clerk, with a copy to all parties, so indicating. Wherever possible, counsel shall not disclose impounded material. Where it is necessary to include impounded material in a brief, the cover of the brief shall clearly indicate that impounded information is included herein.

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A brief of an amicus curiae may be filed only (1) by leave of the appellate court or a single justice granted on motion or (2) at the request of the appellate court, except that consent or leave shall not be required when the brief is presented by the Commonwealth. The brief may be conditionally filed with the motion for leave. A motion for leave shall identify the interest of the applicant and shall state the reasons why a brief of an amicus curiae is desirable. Any amicus curiae shall file its brief within the time allowed the party whose position as to affirmance or reversal the amicus brief will support unless the appellate court or a single justice for cause shown shall grant leave for later filing, and shall specify within what period an opposing party may answer. A motion of an amicus curiae to participate in the oral argument will be granted only for extraordinary reasons. The same number of copies of the brief of an amicus curiae shall be filed with the clerk and served on counsel for each party separately represented as required by Rule 19 (b).

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(a) Duty of Appellant to Prepare and File; Content of Appendix; Time for Filing; Number of Copies. The appellant shall prepare and file an appendix to the briefs.

In civil cases, the appendix shall contain: (1) the relevant docket entries in the proceedings below; (2) any relevant portions of the pleadings, charge, findings, or opinion; (3) the judgment, order, or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. Except where they have independent relevance, memoranda of law in the lower court should not be included in the appendix.

In criminal cases, the appendix need not contain relevant portions of the transcript, but shall contain: (1) the relevant docket entries in the proceedings below; (2) a copy of the complaint or indictment; and (3) any paper filed in the case relating to an issue which is to be argued on appeal. Any party in a criminal case may include in an appendix to his brief any other parts of the record to which he wishes to direct the particular attention of the court.

The appendix shall include any order of impoundment or confidentiality from the lower court. The fact that parts of the record are not included in the appendix shall not prevent the parties or the court from relying on such parts, provided that the court may decline to permit the parties to refer to portions of the record omitted from the appendix, unless leave be granted prior to argument.

Unless filing is to be deferred pursuant to the provisions of subdivision (c) of this rule, any appendix shall be filed and served with the brief. If separately bound, the same number of copies of the appendix shall be filed with the clerk as required by Rule 19 (b) for the filing of the brief, and two shall be served on counsel for each party separately represented, unless the court shall by rule or order direct the filing or service of a lesser number and except as otherwise provided in subdivision (e) of this rule.

(b) Determination of Contents of Appendix in Civil Cases; Cost of Producing. The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than ten days after the date on which the clerk notifies the parties that the record has been assembled, serve on the appellee a designation of the parts of the record which he intends to include in the appendix and a statement of the issues which he intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, he shall, within ten days after receipt of the designation, serve upon the appellant a designation of those parts. The parties shall not engage in unnecessary designation and may refer to parts of the record not included in the appendix if permitted by the appellate court or a single justice pursuant to the provisions of Rule 18 (a) or 18 (f). However, this does not affect the responsibility of the parties to include materials necessary to their appeal, including exhibits, in the appendix.

Where a party designates as part of the record any matter that has been impounded or has been made confidential by statute, rule, or order, the designation shall so state.

Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented he may so advise the appellee and the appellee shall advance the cost of including such parts. In the event of a dispute as to the parts to be included or the advance required to include them, the matter shall be settled by the lower court on motion and notice. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily the court may impose the cost of producing such parts on the party.

(c) Alternative Method of Designating Contents of the Appendix in Civil Cases; How References to the Record May Be Made in the Briefs When Alternative Method Is Used. In civil cases, if the appellant shall so elect -- with leave of the appellate court or a single justice -- preparation of the appendix may be deferred until after the briefs have been filed, and the appendix may be filed twenty-one days after service of the brief of the appellee. Notice of the election by the appellant to defer preparation of the appendix shall be filed and served by him within ten days after the date on which the clerk notifies the parties that the record has been assembled. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) of this rule 18 shall apply, except that the designations referred to therein shall be made by each party at the time his brief is served, and a statement of the issues presented shall be unnecessary.

If the deferred appendix authorized by this subdivision is employed, references in the briefs to the record may be to the pages of the parts of the record involved, in which event the original paging of each part of the record shall be indicated in the appendix by placing in brackets the number of each page at the place in the appendix where that page begins. Or, if a party desires to refer in his brief directly to pages of the appendix, he may serve and file typewritten or page-proof copies of his brief within the time required by rule 19 (a), with appropriate references to the pages of the parts of the record involved. In that event, within fourteen days after the appendix is filed he shall serve and file copies of the brief in the form prescribed by rule 20 (a) containing references to the pages of the appendix in place of or in addition to the initial references to the pages of the parts of the record involved. No other changes may be made in the brief as initially served and filed, except that typographical errors may be corrected.

(d) Arrangement of the Appendix. The pages of the appendix shall be consecutively numbered and the parts of the record which are reproduced therein shall be set out in chronological order. The appendix shall commence with a chronologically ordered list of the parts of the record which it contains, with references to the pages of the appendix at which each part begins. When an appendix relates to two or more cases or to more than two parties, the appendix shall indicate the case to which each paper belongs and by whom it was filed. Unless the party filing the appendix reproduces the entire transcript of testimony, he shall, preceding each portion of testimony transcript reproduced, insert a concise statement identifying:

(1) the witness whose testimony is being reproduced;

(2) the party originally calling him;

(3) the party questioning him; and

(4) the classification of his examination (direct, cross, or other).

When matter contained in the reporter's transcript of proceedings is set out in the appendix, the page number of the original transcript at which such matter may be found may be indicated in brackets immediately before the matter which is set out, unless it already appears on the matter as set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) may be omitted. A question and its answer may be contained in a single paragraph.

(e) Reproduction of Exhibits and Transcripts. Exhibits and transcripts or portions thereof in civil cases, designated for inclusion in the appendix, may be contained in separate volumes, suitably indexed.

(1) Appeals Court. On appeals to the Appeals Court, five copies of the exhibits volume or volumes, and two copies of the transcript volume or volumes, shall be filed with the appendix and one copy of each shall be served on counsel for each party separately represented.

(2) Supreme Judicial Court. On appeal to the Supreme Judicial Court, and on further appellate review, five copies of the exhibits volume or volumes and five copies of the transcript volume or volumes shall be filed with the appendix and one copy of each shall be served on counsel for each party separately represented.

(3) Appeals transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which copies of the exhibits and transcripts have already been filed in the Appeals Court pursuant to this rule, three additional copies of the transcript volume or volumes shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a lesser or greater number.

(f) Hearing of Appeals on the Original Record Without the Necessity of an Appendix. On motion, the appellate court or a single justice may, in specific cases, dispense with the requirement of an appendix and permit appeals to be heard in whole or in part on the original record, with such copies of the record, or relevant parts thereof, as the court may require.

(g) Reproduction of Impounded Materials. If the entire case has been impounded, the cover of the appendix shall clearly indicate that the appendix is impounded. If the entire case has not be impounded, a separate appendix volume shall be filed containing the impounded material and the cover thereof shall clearly indicate that it contains impounded material.

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(a) Time for Serving and Filing Briefs. Except as provided in section (d) of this rule and in Rule 11(g)(4) concerning the filing of briefs on direct appellate review, and in Rule 27.1(f) concerning the filing of briefs on further appellate review, the appellant shall serve and file his brief within 40 days after the date on which the appeal is docketed in the appellate court. The appellee shall serve and file his brief within thirty days after service of the brief of the appellant. The appellant may serve and file a reply brief within fourteen days after service of the brief of the appellee, but, except by leave of the appellate court or a single justice, for good cause shown, a reply brief must be filed at least three days before the first day of the sitting at which the case is in order for argument.

(b) Number of Copies to Be Filed and Served.

(1) Appeals Court. On appeals to the Appeals Court, seven copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser number, and two copies shall be served on counsel for each party separately represented.

(2) Supreme Judicial Court. On appeal to the Supreme Judicial Court, an original and seventeen copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser or greater number, and two copies shall be served on counsel for each party separately represented.

(3) Appeals transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which briefs have already been filed in the Appeals Court, eleven additional copies of each brief shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a lesser or greater number.

(c) Consequence of Failure to File Briefs. If an appellant fails to file his brief within the time provided by this rule, or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to file his brief, he will not be heard at oral argument except by permission of the appellate court.

(d) Rule for Appeals Pursuant to Massachusetts General Laws Chapter 278, sec. 33E.

(1) In the case of a direct appeal by an appellant who has been convicted of first degree murder, the appellant shall, within one hundred and twenty days after the date on which the appeal is docketed in the Supreme Judicial Court: (1) serve and file the appellant's brief; (2) serve and file a motion for new trial; or (3) for good cause shown, seek a further enlargement of time for filing a brief or a motion for new trial. The Commonwealth shall serve and file its brief within ninety days after service of the brief of the appellant. The appellant may serve and file a reply brief within thirty days after service of the brief of the Commonwealth.

(2) If a motion for new trial is remanded to the Superior Court, the direct appeal of the conviction shall be stayed pending decision on the motion for new trial. The matter shall be heard and determined expeditiously in the Superior Court. The appellant shall file with the Clerk of the Supreme Judicial Court for the Commonwealth status reports at thirty-day intervals. An appeal by the defendant from the denial of a motion for new trial shall be consolidated with the direct appeal. An appeal by the Commonwealth or by the defendant from the determination of a motion for new trial shall have the same docket number as the direct appeal. The Clerk of the Supreme Judicial Court for the Commonwealth shall establish a briefing schedule.

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(a) Form of Briefs and the Appendix. Except on order of the appellate court or a single justice, or if filed on behalf of a party allowed to proceed in forma pauperis, all briefs and appendices shall be produced by any duplicating or copying process which produces a clear black image on white paper. However produced, the page shall be eight and one-half inches in width and eleven inches in height. Pages shall be firmly bound at the left by saddle-wiring, side-wiring, stapling, or sewing. If side-wired or sewn, a strong paper cover shall be used. A transcript of testimony or a report of evidence may be included as part of the appendix and may be reproduced by Xerography or a similar process. No single volume of the appendix shall be more than one and one-half inches thick. The text of appendices may appear on both sides of the page.

The following rules shall govern the format of text on a page for all briefs:

(1) The top and bottom margins shall be at least one inch. The left and right margins shall be at least one and one-half inches. Thus, the text area should not be more than five and one-half inches in width nor more than nine inches in height. Page numbers may appear in the margin.

(2) The typeface shall be a monospaced font (such as pica type produced by a typewriter or a Courier font produced by a computer word processor) of 12 point or larger size and not exceeding 10.5 characters per inch.

(3) Text shall be double-spaced, except that argument headings, footnotes and indented quotations may be single-spaced. For purposes of this rule, single spacing means not more than six lines of text per vertical inch; double spacing means not more than three lines of text per vertical inch and not more than twenty-seven double-spaced lines on a page.

(4) The text may appear on both sides of the page.

Briefs or appendices not in substantial compliance with these rules shall not be received unless the appellate court or a single justice shall otherwise order.

The cover of the brief of the appellant shall be blue; that of the appellee, red; that of an intervenor or amicus curiae, green; that of any reply brief, gray. The cover of the appendix, if separately bound, shall be white. The front covers of the briefs and appendices, if separately produced, shall contain: (1) the name of the court and the number of the case; (2) the title of the case (see Rule 10 (a)); (3) the nature of the proceeding in the court (e.g., Appeal; Application for Review) and the name of the court, agency, or board below; (4) the title of the document (e.g., Brief for Appellant, Appendix); and (5) the names, Board of Bar Overseers (BBO) numbers, addresses, and telephone numbers of counsel representing the party on whose behalf the document is filed, and, if an individual counsel is affiliated with a firm, the firm name.

(b) Form of Other Papers. Petitions for rehearing shall be produced in a manner prescribed by subdivision (a). Motions and other papers may be produced in like manner, or they may be typewritten in pica type upon opaque, unglazed paper eight and one half by eleven inches in size. Lines of typewritten text shall be double spaced. Consecutive sheets shall be attached at the left margin. Carbon copies may be used for filing and service if they are legible.

A motion or other paper addressed to the court shall contain a caption setting forth the name of the court, the title of the case, the file number, and a brief descriptive title indicating the purpose of the paper; said caption shall appear on the first page, typed so as to be legible.

The cover of applications for direct appellate review and for further appellate review shall be white.

Such motion or paper shall contain, at the end thereof, the names, Board of Bar Overseers (BBO) numbers, addresses and telephone numbers of counsel, if any, representing the party on whose behalf the motion or paper is filed, and if an individual counsel is affiliated with a firm, the firm name.

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The appellate court may direct the attorneys for the parties to appear before the court or a single justice for a prehearing conference to consider the simplification of the issues and such other matters as may aid in the disposition of the proceeding by the court. The appellate court or single justice shall make an order which recites the action taken at the conference and the agreements made by the parties as to any of the matters considered and which limits the issues to those not disposed of by admissions or agreements of counsel, and such order when entered shall control the subsequent course of the proceeding, unless modified to prevent manifest injustice.

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(a) Notice of Argument; Postponement. The clerk shall advise all parties of the time and place at which oral argument will be heard. A request for postponement of the argument must be made by motion filed reasonably in advance of the date fixed for hearing.

(b) Time Allowed for Argument. Unless otherwise enlarged or limited by the appellate court, each side will be allowed fifteen minutes for argument, except in a criminal case in which the defendant is appealing a conviction of murder in the first degree, in which case each side will be allowed twenty minutes for argument. If counsel is of the opinion that additional time is necessary for the adequate presentation of the argument, counsel may request additional time for good cause shown. Requests may be made by letter addressed to the clerk reasonably in advance of the date fixed for the argument. The appellate court may terminate the argument whenever in its judgment further argument is unnecessary.

(c) Order and Content of Argument. Except as otherwise provided in Rule 27.1 (g), the appellant will argue first and shall include a fair statement of the case. Counsel will not be permitted to read, except briefly, from briefs, records, prepared statements, or authorities. The party making the opening argument on request may be allowed the opportunity to reply in writing to new matter in the arguments of his adversary.

(d) Cross and Separate Appeals. A cross or separate appeal shall be argued with the initial appeal at a single argument, unless the appellate court otherwise directs. If a case involves a cross appeal, the plaintiff in the action below shall be deemed the appellant for the purposes of this rule unless the parties otherwise agree or the court otherwise directs. If separate appellants support the same argument, care shall be taken to avoid duplication of argument.

(e) Non-Appearance of Parties. If the appellee fails to appear to present argument, the appellate court will hear argument on behalf of the appellant, if present. If the appellant fails to appear, the court may hear argument on behalf of the appellee, if his counsel is present. If neither party appears, the case will be decided on the briefs unless the appellate court shall otherwise order.

(f) No Oral Argument by an Attorney Who Has Been a Witness Except by Leave of Court. No attorney shall be permitted to take part in the argument of a case in which he has been a witness for his client; except by special leave of court.

(g) Submission on Briefs. By agreement of the parties, a case may at any time be submitted for decision on the briefs, but the appellate court may direct that the case be argued. At any time, any party may, by written notice filed and served, waive his right to oral argument. No criminal case in which the defendant was convicted of murder in the first degree may be submitted for decision on the briefs without oral argument unless the full appellate court or a Justice thereof shall have approved the submission prior to the week the case has been scheduled for argument.

(h) Use of Physical Exhibits at Argument; Removal. If physical exhibits other than documents or chalks are to be used at the argument, counsel shall arrange to have them placed in the courtroom before the court convenes on the date of the argument. After the argument, the exhibits shall be left with the clerk unless the court otherwise directs. If exhibits are not reclaimed by counsel within a reasonable time after notice is given by the clerk, they shall be destroyed or otherwise disposed of as the clerk shall think best.

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The clerk of the appellate court shall mail to all parties a copy of the rescript and the opinion, if one was written. The rescript of the court shall issue to the lower court twenty-eight days after the date of the rescript unless the time is shortened or enlarged by order. The timely filing of a petition for rehearing or of an application for further appellate review will stay the rescript until disposition of the petition or application unless otherwise ordered by the appellate court. If the petition or application is denied, the rescript shall issue forthwith unless the appellate court or a single justice orders otherwise. If an application for further appellate review is granted the rescript of the Appeals Court shall not issue to the lower court.

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(a) Other Justices May Participate Without Reargument. Whenever the justices before whom a law question has been heard so desire, others of the justices may be called in to take part in the decision, upon a perusal of the record and briefs, without reargument.

(b) Justice May Review Own Ruling in Certain Cases. No justice shall sit on the hearing of any proceeding in the nature of a review of any judgment, decree, order, or ruling made by him; provided, however, that this shall not apply where it is necessary to secure a quorum or where the other justices of the court shall be equally divided in opinion.

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If, following allowance of an application for further appellate review, the justices of the Supreme Judicial Court are equally divided in opinion, unless a majority of the participating justices decides otherwise, the court shall issue an order noting such equal division, the effect of which shall be the same as if the court had denied the application for further appellate review.

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If the appellate court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law.

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(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the appellate court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the appellate court.

(b) Costs for and Against the Commonwealth. In cases involving the Commonwealth or an agency or officer thereof, if an award of costs against the Commonwealth is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (a); otherwise, cost shall not be awarded for or against the Commonwealth.

(c) Cost of Briefs, Appendices, and Copies of Records. The cost of printing or otherwise producing necessary copies of briefs, appendices, or copies of records authorized by Rule 18 (f) shall be taxable in the lower court at rates not higher than those generally charged for such work in the Commonwealth. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which he shall file with the clerk of the lower court, with proof of service, within fourteen days after the entry of judgment.

(d) Clerk to Insert Costs in Lower Court Judgment; Costs Taxable. The clerk of the lower court shall prepare and certify an itemized statement of costs for insertion in the lower court judgment. The statement shall include those costs taxable under subdivision (c) of this rule; costs incurred in the preparation and transmission of the record; the cost of the reporter's transcript, if necessary for the determination of the appeal; the premiums paid for cost of any bond to preserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed in the lower court as costs of the appeal in favor of the party entitled to costs under this rule.

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(a) Time for Filing; Content; Answer; Action by Court if Granted. A petition for rehearing should be filed with the clerk of the appellate court within fourteen days after the date of the rescript unless the time is shortened or enlarged by order. It shall state with particularity the points of law or fact which it is contended the court has overlooked or misapprehended and shall contain such argument in support of the petition as the petitioner desires to present. Oral argument in support of the petition will not be permitted, except by order of the quorum or panel which decided the appeal. No answer to a petition for rehearing will be received unless requested by the quorum or panel, but a petition for rehearing will ordinarily not be granted in the absence of such a request. A petition for rehearing shall be decided by the quorum or panel which decided the appeal. If a petition for rehearing is granted, the quorum or panel may make a final disposition of the cause without reargument or may restore it to the calendar for reargument or resubmission or may make such other orders as are deemed appropriate under the circumstances of the particular case. Action upon a petition is in the discretion of such quorum or panel, which may award costs, including a reasonable attorney's fee, to the prevailing party.

(b) Form of Petition; Length. The petition shall be in a form of a letter to the senior justice of the quorum or panel which decided the appeal with seven clear and legible copies, and additional copies shall be mailed by first class mail or delivered to all other counsel. Except by permission of the quorum or panel, a petition for rehearing shall not exceed ten pages of standard typewritten material.

(c) Revision of Decision. Upon consideration of a petition for rehearing, a quorum or panel may in writing order their decision to be reviewed and revised by a majority of the Justices of the court. The petitioner shall notify the Supreme Judicial Court of any action taken on the petition if an application for further appellate review also has been filed.

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(a) Application; when filed; grounds. Within twenty days after the date of the rescript of the Appeals Court any party to the appeal may file an application for leave to obtain further appellate review of the case by the full Supreme Judicial Court. Such application shall be founded upon substantial reasons affecting the public interest or the interests of justice. Oral argument in support of an application shall not be permitted except by order of the court.

(b) Contents of application; form. The application for leave to obtain further appellate review shall contain, in the following order: (1) a request for leave to obtain further appellate review; (2) a statement of prior proceedings in the case(including whether any party is seeking a rehearing in the Appeals Court); (3) a short statement of facts relevant to the appeal (but facts correctly stated in the opinion, if any, of the Appeals Court shall not be restated); (4) a statement of the points with respect to which further appellate review of the decision of the appeals court is sought; and (5) a brief statement (covering not more than ten pages of typing), including appropriate authorities, indicating why further appellate review is appropriate. A copy of the rescript and opinion, if any, of the Appeals Court shall be appended to the application. In addition, if the Appeals Court entered a memorandum and order under Appeals Court Rule 1:28 which refers to another document, such as a brief or judge's findings and rulings, a copy of that document, or, if appropriate, the pertinent pages of that document, shall be appended to the application. The application shall comply with the requirements of Rule 20.

(c) Opposition; form. Within ten days after the filing of the application, any other party to the appeal may, but need not, file and serve an opposition thereto (covering not more than ten pages of typing) setting forth reasons why the application should not be granted. The opposition shall not restate matters described in subdivision (b) (2) and (3) of this rule unless the opposing party is dissatisfied with the statement thereof contained in the application. An application shall comply with the requirements of Rule 20.

(d) Filing; service. One copy of the application and one copy of each opposition shall be filed in the office of the clerk of the Appeals Court. An original and seventeen copies of the application and of each opposition shall be filed in the office of the clerk of the full Supreme Judicial Court. Filing and service of the application and of any opposition shall comply with Rule 13.

(e) Vote for further appellate review; certification. If any three justices of the Supreme Judicial Court shall vote for further appellate review for substantial reasons affecting the public interest or the interests of justice, or if a majority of the justices of the Appeals Court or a majority of the justices of the Appeals Court deciding the case shall certify that the public interest or the interests of justice make desirable a further appellate review, an order allowing the application or the certificate, as the case may be, shall be transmitted to the clerk of the Appeals Court; upon receipt, further appellate review shall be deemed granted. The clerk shall forthwith transmit to the clerk of the full Supreme Judicial Court all papers theretofore filed in the case and shall notify the clerk of the lower court that leave to obtain further appellate review has been granted.

(f) Briefs. Any party may apply to the Supreme Judicial Court within ten days after the date on which the appeal is docketed in the full Supreme Judicial Court for permission to file a new brief. If the application is granted, the new brief must be filed in accordance with the briefing schedule established by the Clerk of the Supreme Judicial Court, and the court may impose terms as to the length and filing of such brief and any response thereto. If a new brief is filed, it will be considered in lieu of the Appeals Court brief. If permission to file a new brief is denied or not sought, cases in which further appellate review has been granted shall be argued on the briefs filed in the Appeals Court.

(g) Order of Argument. The applicant for leave to obtain further appellate review will argue first unless the court directs or the parties agree otherwise.

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When the rescript from the appellate court sets forth the text of the judgment to be entered, the clerk of the lower court shall, upon receipt of the rescript, prepare, sign and enter the judgment which has been ordered. If the rescript orders settlement of the form of the judgment in the lower court, the clerk of the lower court shall sign and enter the judgment after settlement. Notation of a judgment in the lower court docket constitutes entry of the judgment.

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(a) Dismissal in the Lower Court. If an appeal has not been docketed, the appeal may be dismissed by the lower court upon the filing in that court of a stipulation for dismissal signed by all the parties, or upon motion and notice by the appellant.

(b) Dismissal in the Appellate Court. If the parties to an appeal or other proceeding shall sign and file with the clerk of the appellate court an agreement that the proceeding be dismissed, specifying the terms as to payment of costs, and shall pay whatever fees are due, the clerk shall enter the case as dismissed, but no rescript or other process shall issue without an order of the appellate court. An appeal may be dismissed on motion of the appellant upon such terms as may be agreed upon by the parties or fixed by the court. The clerk of the appellate court shall promptly notify the clerk of the lower court whenever an appeal in a criminal case is dismissed pursuant to this rule.

(c) Settlement; Obligation of Appellant. In the event a case is settled or otherwise disposed of while an appeal is pending, it shall be the duty of counsel for the appellant to notify the clerk of the appellate court forthwith.

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(a) Death of a Party. If a party dies after a notice of appeal is filed in the lower court or while a proceeding is pending in the appellate court, the personal representative of the deceased party may be substituted as a party on motion filed by the representative or by any party with the clerk of the appropriate court. The motion of a party shall be served upon the representative in accordance with the provisions of Rule 13. If the deceased party has no representative, any party may suggest the death on the record and proceedings shall then be had as the appellate court or a single justice may direct. If a party against whom an appeal may be taken dies after entry of a judgment or order in the lower court but before a notice of appeal is filed, an appellant may proceed as if death had not occurred. After the appeal is docketed, substitution shall be effected in the appellate court in accordance with this subdivision. If a party entitled to appeal shall die before filing a notice of appeal, the notice of appeal may be filed by his personal representative, or, if he has no personal representative, by his attorney of record within the time prescribed by these rules. After the appeal is docketed, substitution shall be effected in the appellate court in accordance with this subdivision.

(b) Substitution for Other Causes. If substitution of a party in the appellate court is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a).

(c) Public Officers; Death or Separation from Office.

(1) When a public officer is a party to an appeal or other proceeding in an appellate court in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution.

(2) When a public officer is a party to an appeal or other proceeding in his official capacity he may be described as a party by his official title rather than by name; but the court may require his name to be added.

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(a) General Provisions. Any clerk of the appellate court shall take the oath and give the bond required by law. No clerk shall practice in any court as an attorney or as counselor while he continues in office. The Supreme Judicial Court and the Appeals Court shall be deemed always open for the purpose of filing any proper paper, of issuing and returning process and of making motions and orders. The office of the clerk with a clerk in attendance shall be open during the hours from nine in the morning to four-thirty in the afternoon on all days except Saturdays, Sundays, and those days specified in G. L. c. 4, § 7, any other day appointed as a holiday by the President or the Congress of the United States, or designated by the laws of the Commonwealth, and except that either court may authorize closing of its clerk's office at four in the afternoon during the period between the Fourth of July and Labor Day.

(b) The Docket; Calendar; Other Records Required. The clerk shall keep a book known as the docket, in such form and style as may be prescribed by the appellate court, and shall enter therein each case. Cases shall be assigned consecutive file numbers. The file number of each case shall be noted on the folio of the docket whereon the first entry is made. All papers filed with the clerk and all process, orders and rescripts shall be entered chronologically in the docket on the folio assigned to the case. Entries shall be brief but shall show the nature of each paper filed or rescript or order entered. The entry of an order or rescript shall show the date the entry is made. The clerk shall keep a suitable index of cases contained in the docket.

The clerk shall prepare, under the direction of the appellate court, a calendar of cases awaiting argument. In placing cases on the calendar for argument, he shall give preference to appeals in criminal cases and to appeals and other proceedings entitled to preference by law.

The clerk shall keep such other books and records as may be required from time to time by law or by the appellate court.

(c) Notice of Orders or Rescripts. Immediately upon the entry of an order or rescript or upon receipt of notice of the grant of an application for direct or further appellate review the clerk shall serve a notice of entry by mail upon each party to the proceeding together with a copy of any opinion respecting the order or rescript, and shall make a note in the docket of the mailing.

(d) Custody of Records and Papers. The clerk shall have custody of the records and papers of the appellate court. He shall not permit any original record or paper to be taken from his custody except as authorized by the orders or instructions of the court or a single justice. Original papers transmitted as the record on appeal or review shall upon disposition of the case be returned to the lower court from which they were received.

These rules may be known and cited as the Massachusetts Rules of Appellate Procedure.

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