THE STATE OF NEW HAMPSHIRE SUPREME COURT OF NEW HAMPSHIRE ... · existing Rules of the Supreme...

1

THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

ORDER

R-2017-006, In re Suggested Amendments to Supreme Court Rules (Electronic Filing)

Advisory Committee on Rules Chair, Justice Robert Lynn, recently

received a suggestion to adopt the “Supplemental Rules of the Supreme

Court of New Hampshire For Electronically Filed Cases and Other Cases

Commenced on or after January 1, 2018” and to amend existing

Supreme Court Rules 1, 6, 12-D, 16, 17, 21, 22 and 26 to accommodate

electronic filing. Justice Lynn referred the suggestion directly to the

Court pursuant to New Hampshire Supreme Court Rule 51(f)(“Special

Cases”).

On or before October 23, 2017, members of the bench, bar,

legislature, executive branch or public may file with the clerk of the

supreme court comments on the suggested amendments. An original

and one copy of all comments shall be filed. Comments may also be

emailed to the court at:

[email protected]

To see the language of proposed new rules please see Appendix A

(attached). To see the language of the proposed amendments to existing

Supreme Court Rules, please see Appendices B through I (attached).

The current rules of the New Hampshire state courts are

mailto:[email protected]

2

available on the Internet at:

http://www.courts.state.nh.us/rules/index.htm

Date: September 21, 2017

ATTEST: _________________________________

Eileen Fox, Clerk Supreme Court of New Hampshire

http://www.courts.state.nh.us/rules/index.htm

3

APPENDIX A

The suggestion is to adopt the Supplemental Rules of the Supreme

Court of New Hampshire for Electronically Filed Cases and Other Cases

Commenced on or after January 1, 2018, as follows:

Supplemental Rules of the Supreme Court of New

Hampshire for Electronically Filed Cases and Other Cases

Commenced on or after January 1, 2018

TABLE OF CONTENTS

I. General Provisions

1. Effective Date and Applicability of These Rules

2. Relationship to Other Rules

3. Definitions

4. Scope of Electronic Filing: General Provisions

5. Scope of Electronic Filing: Exceptions Based Upon

Party’s Status

6. Scope of Electronic Filing: Exceptions Based Upon Case

Type or Document Type

7. Official Court Record and Public Inspection

8. Registration Requirements

4

II. Filing Documents

9. Timing and Timeliness of Filings: General Provisions

10. Timing and Timeliness of Filings: Effect of Technical

Failure

11. Format of Filings

12. Paper Copies Not Required or Allowed

13. Signatures on Filings

14. Signatures on Court-Issued Electronic Documents

15. Notarized Signatures on Electronic Documents (Notarial

Acts)

16. Confidential Filings

III. Service of Documents

17. Formal Service of Process

18. Electronic Service of Documents

IV. Miscellaneous Provisions

19. Electronic Payment of Fees, and Refund of Fees Paid

Electronically

20. Motions for Admission Pro Hac Vice

21. Certified or Attested Court Documents

5

Rule 1. Effective Date and Applicability of These Rules

These rules, which shall be known as the “Supplemental Rules of

the Supreme Court of New Hampshire for Electronically Filed Cases and

Other Cases Commenced on or after January 1, 2018,” govern the filing

of documents in supreme court cases commenced on or after January 1,

2018. These rules also govern the filing of documents in any supreme

court case commenced prior to January 1, 2018, that the supreme court

converts to an electronic case in accordance with Rule 4(c) of these rules.

In the interest of expediting a decision, or for other good cause shown,

the supreme court or a single justice thereof may suspend the

requirements or provisions of any of these rules in any instance on

application of a party or on the court’s or a single justice’s motion, and

may order proceedings in accordance with that direction.

These rules shall be cited as “Sup. Ct. 2018 Supp. R. ____.”

6

Rule 2. Relationship to Other Rules

To the extent that these supplemental rules conflict with the

existing Rules of the Supreme Court of New Hampshire (“Supreme

Court Rules”) as to such matters as the filing, format, or service of a

document, these rules supersede the Supreme Court Rules. In all

other respects, however, the Supreme Court Rules remain in full force

and effect, and these rules shall supplement them.

7

Rule 3. Definitions

(a) “Confidential” means a case record or portion of a case

record, such as a particular document, that shall be available to all

case parties and their attorneys, but shall not be available for public

inspection pursuant to Supreme Court Rule 12(1)(b).

(b) “Conventionally,” with respect to the filing of a document,

means the filing of the document with the court in paper or other non-

electronic format. With respect to serving a party with a copy of a filed

or court-issued document, “conventionally” means providing a copy of

the filed or court-issued document to that party personally or by first-

class mail in accordance with Supreme Court Rule 26.

(c) “Document” means any written matter issued by or filed with

the court, whether filed conventionally or electronically, including, but

not limited to, notices of appeal, petitions, appendices, motions,

objections, applications, notices, affidavits, briefs, memoranda of law,

orders, and opinions.

(d) “Ex parte” document means a document submitted to the

court for filing with the intention that the document shall be neither

served on nor available to one or more other case parties, including

their attorneys or nonlawyer representatives.

(e) “Registered e-filer” means a person, including a self-

represented party, a nonlawyer representative, or an attorney, who has

registered with the electronic filing system in order to submit

documents for filing with the court.

(f) “Electronic filing” means the process whereby a registered e-

filer electronically submits a document to the supreme court in

accordance with these rules to initiate a supreme court case or to file a

document in an existing supreme court case.

(g) “Electronic service address” of a party means the electronic

mail (e-mail) address at or through which the party shall receive

8

electronic service. Electronic service on a party represented by an

attorney shall be made on the attorney through the attorney’s

electronic service address. Electronic service on a party represented by

a nonlawyer representative shall be made on the nonlawyer

representative through the nonlawyer representative’s electronic

service address.

(h) “Electronic service,” with respect to an electronic filing by a

party, means the electronic filing system’s transmission of a

notification of that filing to the electronic service address of each party

who has consented to electronic service by registering as an e-filer.

The electronic filing system’s electronic notification will transmit a

party’s electronic filing to all registered e-filers in the case and contain

a hyperlink or other means for the registered e-filers to access the

document or documents that were filed electronically. “Electronic

service,” with respect to a document issued by the court, means the

court’s electronic transmission of a notification of the court-issued

document to the electronic service address of each party who has

consented to electronic service by registering as an e-filer. The

electronic notification will contain a hyperlink or other means for the

registered e-filers to access the court-issued document.

(i) “Electronic signature” is a signature, other than an inked

signature, as authorized by these rules.

(j) “Non-electronic signature” is an inked signature.

(k) “Supreme Court case” or “case,” in the context of a supreme

court proceeding governed by these rules, includes all of the following:

an appeal pursuant to Supreme Court Rule 7; an appeal pursuant to

Supreme Court Rule 7-B; an interlocutory appeal pursuant to Supreme

Court Rule 8; an interlocutory transfer pursuant to Supreme Court

Rule 9; an appeal from an administrative agency pursuant to Supreme

Court Rule 10; a petition for original jurisdiction pursuant to Supreme

9

Court Rule 11; a certified question of law pursuant to Supreme Court

Rule 34; a request for an advisory opinion of the justices pursuant to

Part II, Article 74, of the New Hampshire Constitution; an attorney

discipline matter pursuant to Supreme Court Rule 37; a judicial

discipline matter pursuant to Supreme Court Rule 40; a matter

involving administration or supervision of the New Hampshire Bar; and

a matter involving a proposed rule or rule amendment pursuant to

Supreme Court Rule 51.

10

Rule 4. Scope of Electronic Filing: General Provisions

(a) Except as otherwise provided by these rules or by order of the

supreme court, documents in cases commenced in the supreme court on

or after January 1, 2018, shall be submitted to the court for filing as

follows:

1. By Attorneys. Attorneys must submit all filings to the supreme

court through the court’s electronic filing system. This requirement

applies both to New Hampshire Bar members and to attorneys admitted

pro hac vice.

2. By Self-Represented Parties Who Filed Electronically in Trial

Court. Self-represented parties who were required to file electronically in

the trial court proceeding from which the appeal is taken must submit all

filings to the supreme court through the court’s electronic filing system.

A party who is self-represented in the supreme court, but who filed

electronically in the trial court proceeding below through an attorney or a

nonlawyer representative, must submit all filings to the supreme court

through the court’s electronic filing system.

3. By Self-Represented Parties Who Did Not File Electronically in

Trial Court. Self-represented parties who were not required to file

electronically in a trial court proceeding below have the option of: (1)

registering as an e-filer with the electronic filing system and submitting

documents to the supreme court electronically through the system; or (2)

filing documents conventionally. However, if a self-represented party

registers as an e-filer and electronically submits a document in a

supreme court case through the electronic filing system, the self-

represented party must electronically submit all subsequent filings in

that case through the electronic filing system.

4. By Nonlawyer Representatives. Nonlawyer representatives

must submit all filings to the supreme court through the court’s

electronic filing system to the same extent as self-represented parties. A

party who is represented in the supreme court by a nonlawyer

11

representative, but who filed electronically in the trial court proceeding

below through an attorney or as a self-represented party, must submit

all filings to the supreme court through the court’s electronic filing

system.

(b) When applicable pursuant to the preceding paragraph, the

requirement to submit documents through the electronic filing system

extends to nonconfidential documents in nonconfidential cases,

confidential documents in nonconfidential cases, and documents in

confidential cases, with the exception of the document types listed in

Rule 6 of these rules.

(c) Cases commenced in the supreme court prior to January 1,

2018, are not subject to these supplemental rules and are not available

for electronic filing, absent a specific court order to the contrary. Filings

in such cases must be submitted conventionally to the court in

accordance with the Supreme Court Rules. However, a party may file a

written motion with the court to request to convert such a non-electronic

case to an electronic-filing case. If the court grants the motion, or

decides on its own motion to convert the case to an electronic-filing case,

the case will thereafter be governed by these rules. Following such an

order for conversion of the non-electronic case to an electronic-filing

case, the parties must ensure that filings submitted after the conversion

date comply with all provisions of these rules.

(d) Unless the court has specifically ordered otherwise in advance,

faxing documents to the court or e-mailing documents to the court

outside of the electronic filing system does not constitute “filing” in any

supreme court case, regardless of the case’s date of commencement.

Notwithstanding the foregoing, in a Supreme Court Rule 7-B appeal, the

minor may file documents in accordance with any of the filing methods

permitted by Rule 7-B.

12

Rule 5. Scope of Electronic Filing: Exceptions Based Upon Party’s

Status

A party who is otherwise required to file electronically in a supreme

court case may be excused from the requirement of electronic filing in

the following circumstances:

(a) The supreme court may fully excuse a party from electronic

filing in a case if the court finds that: (1) a party is protected by law from

disclosing certain identifying or contact information, and electronic filing

would defeat or undermine that protection; or (2) extraordinary

circumstances exist that would render electronic filing such a hardship

that the party would be denied access to the court. A party requesting to

be fully excused from the requirement of electronic filing shall

conventionally file a motion with the court setting forth the reasons for

the request. The motion should be filed with the party’s first filing in the

case, and the party’s first filing may be conventionally filed subject to the

court’s ruling on the motion. If the motion is granted, the party who is

fully excused from the requirement of electronic filing shall file

documents conventionally, shall serve documents conventionally on

other parties, and shall be served documents conventionally by other

parties.

(b) Self-represented individuals over whom guardianship is

sought or ordered, and self-represented individuals for whom involuntary

admission or commitment is sought or ordered, are exempt from the

requirement of electronic filing and need not file a motion to be excused.

(c) A self-represented incarcerated party who notifies the court

in writing of his or her incarceration is exempt from the requirement of

electronic filing until such time as that party is no longer incarcerated. A

self-represented incarcerated party need not file a motion to be excused.

(d) In the interest of expediting a decision, or for other good

cause shown, the supreme court may permit, on its own motion or the

motion of a party, a limited exception to the requirement of electronic

13

filing by allowing a party who is not otherwise excused pursuant to this

rule to initiate a case conventionally or to file a document in an existing

case conventionally.

14

Rule 6. Scope of Electronic Filing: Exceptions Based Upon Case

Type or Document Type

(a) A supreme court case concerning a proposed rule or rule

amendment pursuant to Supreme Court Rule 51 shall be opened by

the supreme court, and not initiated by an interested person through

the electronic filing system. However, all filings subsequent to the

court’s case initiation shall be governed by these rules.

(b) Any material for filing in a case that cannot reasonably be

submitted through the electronic filing system as a .doc, .docx. or .pdf

document, such as physical exhibits, demonstrative evidence, and

video or audio recordings, must be conventionally filed.

(c) A document that is submitted for in camera review shall not

be submitted through the electronic filing system. The document must

be conventionally filed.

(d) An ex parte document shall not be submitted through the

electronic filing system. The document must be conventionally filed,

and the title of the document must state that the document is filed ex

parte.

(e) A document submitted in a confidential case by a person who

is not a party or counsel in the case shall not be submitted through the

electronic filing system. The document must be conventionally

submitted, following which a determination will be made as to whether

to docket the document and to allow the person to file in the case.

(f) A Financial Affidavit & Application for Court Appointed

Counsel or a Financial Affidavit & Application for Transcripts at State

Expense shall not be submitted through the electronic filing system.

The document must be conventionally filed.

(g) A motion pursuant to Supreme Court Rule 21B to withdraw a

criminal appeal shall not be submitted through the electronic filing

system. The document must be conventionally filed.

15

(h) An Attorney’s Statement of counsel fees and expenses under

Supreme Court Rules 47 or 48, or a Guardian ad Litem’s Statement of

fees and expenses under Supreme Court Rule 48-A, shall not be

submitted through the electronic filing system. The document must be

conventionally filed.

(i) The certified copy of the record in a municipal land-use

appeal or in an appeal from an administrative agency may be


(j) A trial court’s record or a portion thereof that is ordered to be

transmitted pursuant to Supreme Court Rule 14(2) may be


(k) A Supreme Court Rule 9 interlocutory transfer statement

may be conventionally filed by the trial court or administrative agency.

(l) A certified question pursuant to Supreme Court Rule 34 may

be conventionally filed by the Supreme Court of the United States, by a

court of appeals of the United States, or of the District of Columbia, or

by a United States district court.

(m) A mediator’s Appellate Mediation Report may be


16

Rule 7. Official Court Record and Public Inspection

For a supreme court case governed by these rules, the official

court record of docket entries and documents, whether filed

electronically or conventionally, shall be the electronic case file

maintained by the clerk of court. Accordingly, the clerk in such a case

will scan or otherwise reproduce a conventionally filed document into

an electronic document for entry in the court’s electronic case file,

unless the nature of the conventionally filed document (such as a

physical exhibit) makes it technologically infeasible to do so. The clerk

need not maintain or retain any conventionally filed document after the

clerk scans or otherwise reproduces that document into an electronic

document for entry in the court’s electronic case file. If the nature of a

conventionally filed document makes it technologically infeasible to

scan or otherwise reproduce the document into an electronic document

for entry in the court’s electronic case file, the document as

conventionally filed shall be part of the court’s official record and shall

be maintained in its conventionally filed format.

In accordance with Supreme Court Rule 12(1)(a), the public will

be able to inspect nonconfidential cases governed by these rules and

nonconfidential documents in such cases through electronic viewing

access at the clerk’s office during regular business hours, except that a

nonconfidential document that is maintained in its conventionally filed

format shall be made available for inspection in its conventionally filed

format. Following issuance of the mandate or the close of the supreme

court case, however, any documents that were conventionally filed by

the trial court or administrative agency, including records transmitted

pursuant to Supreme Court Rules 10(3) and 14(2), may be returned by

the clerk to the trial court or administrative agency.

17

Rule 8. Registration Requirements

(a) Registration. To initiate a supreme court case or to file a

document through the court’s electronic filing system, a person must

first become a registered e-filer by completing an online registration

and accepting the conditions of electronic filing, including those set

forth in the “Responsibilities of Registered E-Filer” section of this rule.

(b) Responsibilities of Registered E-Filer.

(1) A registered e-filer is responsible for all documents that are

filed via the registered e-filer’s username and password. A registered

e-filer shall not knowingly cause or permit the registered e-filer’s log-

in information to be used by any other person; provided, however,

that an attorney may permit the attorney’s log-in information to be

used by attorneys and nonlawyer assistants over whom the attorney

exercises supervisory responsibilities in compliance with the New

Hampshire Rules of Professional Conduct.

(2) Any electronic filing, or downloading or viewing of an

electronic filing, made by use of a username and password shall be

deemed to have been made with the authorization of the person

registered to use the log-in information.

(3) If a person’s log-in information is misappropriated,

misused or compromised in any way, the person registered to use that

log-in information must promptly notify the clerk.

(4) For good cause shown, the court may issue an order

prohibiting a registered e-filer from filing electronically in a particular

case or in all cases.

(5) A registered e-filer must maintain an electronic service

address during the pendency of the case at which the registered e-

filer consents to receive and agrees to accept through the electronic

filing system copies of electronically filed documents, as well as

notices and orders issued electronically by the court. Whenever

18

notice or service to a registered e-filer is required, notice or service to

the electronic service address of record in the electronic filing system

shall satisfy the requirement and shall be deemed binding on the

registered e-filer and on any party that the registered e-filer

represents in the case.

(6) A registered e-filer must maintain accurate contact

information in the court’s electronic filing system. This obligation is

separate from, and in addition to, a party’s obligation under Supreme

Court Rule 26(9) and a New Hampshire Bar member’s obligation

under Supreme Court Rule 42E to provide accurate and up-to-date

contact information.

(7) If a registered e-filer is no longer a participant in any pending

supreme court case and does not wish to remain active in the

electronic filing system, the registered e-filer should deactivate his or

her registration status in the system.

19

Rule 9. Timing and Timeliness of Filings: General Provisions

(a) Availability of Electronic Filing System

Electronic submission of a document may be made any day of

the week, including weekends and holidays, and at any time of day

that the electronic filing system is available. The expansive availability

of the electronic filing system shall not affect the provisions for

computation and extension of time set forth by statute or by Supreme

Court Rule 27.

(b) Timing of Electronic Filings

When a document is submitted through the electronic filing

system, the electronic filing system shall issue a confirmation notice to

the filer that the submission has been received. Following receipt of

the submission, the clerk shall review the submitted document to

determine whether the document should be docketed. If the clerk

dockets the document, the electronic filing system shall issue a notice

to the filer that the submission has been so docketed, and the

document shall be deemed to have been filed on the date that the

electronic submission was received, unless that date is a Saturday,

Sunday, legal holiday, or other day that the clerk’s office is closed, in

which case the document shall be deemed to have been filed on the

next day that the clerk’s office is open for business. If the clerk rejects

the submitted document for docketing purposes, the electronic filing

system shall issue a notice to the filer that the submission has been so

rejected, and the document shall be deemed not to have been filed.

(c) Timing of Conventional Filings

A document that is filed conventionally in a case subject to these

rules shall be governed by Supreme Court Rule 26(1) with respect to

the timing of the filing.

20

(d) Timeliness of Filings

A document that is electronically submitted through the court’s

electronic filing system and docketed by the clerk shall be deemed

timely if it is filed at or before 11:59:59 p.m. on the date that the filing

is due. A document that is filed conventionally in a case subject to

these rules shall be deemed timely if it is filed, as measured by

Supreme Court Rule 26(1), on or before the date that the filing is due.

21

Rule 10. Timing and Timeliness of Filings: Effect of Technical

Failure

(a) Under these rules, a “technical failure” is deemed to have

occurred when the electronic filing system cannot receive filings

continuously or intermittently over the course of any period of time

greater than one hour after 12:30 p.m. on a given day, excepting such

periods resulting from scheduled system maintenance for which public

notice was provided. A filer shall immediately report a technical failure

by calling the clerk’s office at (603) 271-2646.

(b) A filer who encounters a technical failure may conventionally

file the document, provided that the document is accompanied by a

motion for relief from technical failure that attests to the filer’s

unsuccessful attempts to timely submit the document through the

electronic filing system.

(c) If a filer misses a filing due date as a result of a technical

failure, the filer may electronically or conventionally file the document

on the first day on which the clerk’s office is open for business

following the missed due date. The document shall be accompanied by

a motion for relief from technical failure that attests to the filer’s

unsuccessful attempts to timely submit the document through the

electronic filing system. If the motion is granted, a document so filed

shall be deemed to have been submitted and received on the day that

the technical failure prevented the filer’s submission.

(d) A technical problem with the filer’s computer or systems,

including but not limited to a telephone line problem, a problem with

the filer’s internet service, or a problem with the filer’s hardware or

software, does not constitute a “technical failure” under these rules

and will not excuse an untimely filing, unless the court orders

otherwise. In such a circumstance, the filer may file the document

conventionally, along with a motion explaining how the filer’s technical

22

problem prevented an electronic submission of the document through

the electronic filing system.

23

Rule 11. Format of Filings

(a) Naming of Filings and Documents. So far as possible, a

party initiating a case electronically should identify the correct case

category, case type, and case subtype from the available selections in

the electronic filing system, and a party filing a document electronically

should identify the correct filing type and filing subtype from the

available selections in the electronic filing system. Upon review, the

clerk may, when necessary and appropriate, modify a filer’s selections

to comply with the court’s standards for case classification and

document classification, but the clerk shall not reject any submission

merely because the filer’s selections do not comply with the court’s

classification standards.

(b) Formatting and Page Limits. An electronically filed document

must comply with the formatting and word-limit requirements for

conventionally filed documents as set forth in the Supreme Court

Rules, except that colored-cover, binding, and related requirements

shall not apply to electronically filed documents.

(c) Acceptable Formats for Electronically Filed Documents. A

document that is submitted through the electronic filing system must

be in one of the following formats only: .doc; .docx; or .pdf. The

electronic filing system is not capable of accepting documents or other

material in any other format. A document that is submitted in .doc or

.docx format will be converted to .pdf text searchable format by the

electronic filing system. So far as possible, the filer shall submit a

document that has been converted or is convertible to .pdf text

searchable format, unless the filer possesses only a paper copy of the

document, in which case a scanned .pdf that is not text searchable

may be submitted. A scanned document shall conform with a

standard of no less than 200 and no more than 300 dots per inch. A

filer shall not electronically submit a document that contains tracking

24

tags, embedded systems commands, password protections, access

restrictions or other security features, special tags or dynamic features.

(d) Size Limits on Documents for Electronic Submission. No

individual document exceeding 25 megabytes, either in converted or

scanned .pdf format, shall be submitted through the electronic filing

system. Any document exceeding 25 megabytes must be divided into

separate documents of less than 25 megabytes.

(e) Filer’s Requirement to Retain Scanned Document. With the

exception of paper documents that were filed in the trial court or

administrative agency from which the appeal is taken, any paper

document that is converted by the filer to .pdf format through a

scanner and then filed using the electronic filing system must be

retained by the filer until the issuance of the mandate or the close of

the case. Upon request of the court or any party, the filer must make

the paper document available for inspection.

(f) Hyperlinks. Hyperlinks and other electronic navigational aids

may be included – and are encouraged – in an electronically filed

document as an aid to the court. Each hyperlink must contain a text

reference to the target of the link. Although hyperlinks may be

included in a document as an aid to the court, the material referred to

by a hyperlink is not considered part of the official record unless it is

already part of the record in the case or unless it is material of which

the court may take judicial notice. Hyperlinks may be used by a filer

to provide an electronic link to other portions of the same document or

to other portions of the court’s case file. Hyperlinks to cited authority

may not replace standard citation format for constitutional citations,

statutes, cases, rules or other similarly cited materials.

(g) Manner of Submitting Conventional Filings. Because a

document that is conventionally filed in a supreme court case

commenced on or after January 1, 2018, will be scanned or otherwise

25

reproduced by the clerk into an electronic document for entry in the

court’s electronic case file, the filer of the document must ensure that

the document is printed only on the front side of each page, is logically

organized and separate from other documents, and is submitted to the

court with no tabs, durable bindings, or difficult-to-remove fasteners

that would interfere with the clerk’s ability to scan or otherwise

reproduce the document. If a timely filed document does not conform

to this rule or is not clearly legible, the clerk may require the filer to

resubmit the document, but the document shall not thereby be deemed

untimely.

26

Rule 12. Paper Copies Not Required or Allowed

Notwithstanding any provision to the contrary in the Supreme

Court Rules, a filer who submits a document electronically or

conventionally in a case governed by these rules need not and shall not

file any paper copies of the document with the court, unless otherwise

ordered to do so.

27

Rule 13. Signatures on Filings

(a) Original Electronic Document Deemed Signed.

The electronic submission of a document by a registered e-filer

shall be considered a signed original if:

(1) The document is electronically signed by the registered e-

filer in either one of the following ways:

(A) the typed symbol /s/ followed by the typed name of the

registered e-filer submitting the document (example: /s/

John Smith); or

(B) a graphic representation of the filer’s actual signature;

and

(2) Unless the document is a court form, the document

including the electronic signature also includes the following

information:

(A) name (in addition to name typed as part of electronic

signature in section (1));

(B) address;

(C) telephone number (if available);

(D) e-mail address;

(E) law firm (for attorneys only); and

(F) bar identification number (for attorneys only).

(b) When Multiple Signatures on Electronic Document Are Required.

(1) When multiple signatures are required on a document that is

submitted electronically, each person named as a signer of the

document shall either:

(A) sign in one of the ways a filer signs documents

described in (a)(1) above; or

(B) authorize the filer to sign the document on his or her

behalf. The filer shall represent having obtained approval

28

to sign for another signer named in the document as

follows:

Typed symbol /s/ followed by the typed name of the

other signer, followed by, “Signed by [filer’s name] with permission of [other signer’s name.]”

Example: /s/ Jennifer Jones, signed by John Smith

with permission of Jennifer Jones.

(2) The electronic signature of each named signer shall be

accompanied by the same information required to accompany the

filer’s electronic signature described above in (a)(2). However, when a

document is signed with permission of another named signer, the

filer’s information shall accompany only the filer’s own signature.

(3) Notwithstanding the above, the court, in its discretion, may

require a graphic representation of any filer’s actual signature.

(c) Effect of Electronic Signature.

An electronic signature meeting the requirements described

above in (a)(1) and (2) shall be considered the functional equivalent to a

non-electronic signature produced on paper.

(d) Challenge to Authenticity of Signature on Electronic Document.

Any party to a case may challenge the authenticity of the

signature on an electronically filed document by filing an objection

within 10 days after discovery that the signature is not authentic,

provided that the objection is filed prior to issuance of the mandate or

the close of the supreme court case. After issuance of the mandate or

the close of the supreme court case, a party seeking to challenge the

authenticity of the signature on an electronically filed document may

pursue appropriate relief through any otherwise available procedures.

29

(e) Signature on Conventional Filings.

A document that is conventionally filed must contain the original

non-electronic signature of each party submitting the document, along

with the information described above in (a)(2).

30

Rule 14. Signatures on Court-Issued Electronic Documents

(a) Justice’s Signature. If an electronic document requires a justice’s

signature, the document shall be deemed signed if it bears one of the

following:

(1) the typed symbol /s/ followed by the typed name of the

justice (example: /s/ John Smith); or

(2) a graphic representation of the justice’s signature.

(b) Clerk’s Signature. If an electronic document requires the clerk’s

signature, the document shall be deemed signed if it bears one of the

following:

(1) the typed symbol /s/ followed by the typed name of the

clerk (example /s/ John Smith); or

(2) a graphic representation of the clerk’s signature.

Official Comment

This rule does not itself create any requirement that orders,

opinions or other documents contain a signature of the clerk or a

justice.

31

Rule 15. Notarized Signatures on Electronic Documents (Notarial

Acts)

(a) A notarial act associated with an electronically filed

document must conform to the requirements of notarial acts and

signatures provided in RSA chapter 456-B and RSA chapter 294-E.

(b) The signature of a person who executed an electronically filed

document and the signature of a person who performed a notarial act

related to such a document must be presented by:

(1) The typed symbol /s/ followed by the typed name of the

signer(s) (example: /s/ John Smith); or

(2) The graphic representation of each signer’s actual

signature.

(c) Any party to a case may challenge the authenticity of the

signature of a person who performed a notarial act on a document filed

electronically in that case by filing an objection within 10 days after

discovery that the signature is not authentic, provided that the

objection is filed prior to issuance of the mandate or the close of the

supreme court case. After issuance of the mandate or the close of the

supreme court case, a party seeking to challenge the authenticity of

the signature of a person who performed a notarial act on a document

filed electronically may pursue appropriate relief through any otherwise

available procedures.

Official Comment

For requirements of notarial acts and signatures on electronic

documents, see, especially, RSA 456-B:7 and RSA 294-E:2, VIII, RSA

294-E:9, and RSA 294-E:11.

32

Rule 16. Confidential Filings

The electronic filing of a case or document does not affect the

confidential status to which the case or document may otherwise be

entitled under applicable law, including Supreme Court Rule 12.

(a) Filing a Document that is Partially Confidential in a

Nonconfidential Case. This provision applies in a nonconfidential case

to the filing of a document a portion of which contains material that

has been determined to be confidential by the trial court,

administrative agency, other tribunal, or the supreme court. A party

who files a document that is partially confidential must: (1) notify the

court, at the time of filing and in a conspicuous manner, that the

document contains confidential material, and identify the specific basis

for confidentiality; (2) file the document with the confidential material;

and (3) file a redacted version of the document, from which the

confidential material has been removed. To comply with this

requirement when a party is filing the document electronically, the

party must: (1) notify the court of the document’s status as confidential

by designating the document as confidential in the electronic filing

system and by indicating in the electronic filing system the basis for

the document’s confidentiality, because doing so will prevent the

document from being available for public inspection; and (2) file the

redacted version of the document without designating it as confidential

in the electronic filing system, so that the redacted version is available

for public inspection.

(b) Filing a Confidential Document in a Nonconfidential Case.

This provision applies in a nonconfidential case to the filing of a

document that has been determined to be confidential in its entirety by

the trial court, administrative agency, other tribunal, or the supreme

court. A party who files a document that is confidential in its entirety

must notify the court, at the time of filing and in a conspicuous

33

manner, that the document is confidential, along with the specific

basis for confidentiality. If the party is filing that document

electronically, the party must notify the court of the document’s status

as confidential by designating the document as confidential in the

electronic filing system and indicating in the electronic filing system

the basis for the document’s confidentiality, because doing so will

prevent the document from being available for public inspection.

(c) Filings in a Confidential Case. This provision applies to a

case that has been determined to be confidential in its entirety by the

trial court, administrative agency, other tribunal, or the supreme court.

A party who initiates a confidential case must indicate in a

conspicuous manner on the notice of appeal form or in the appeal

document or other case-initiating document that the entire case is

confidential, along with the specific basis for confidentiality. If the case

is initiated electronically, the filer shall not designate the case-initiating

filing or document as confidential in the electronic filing system

because doing so will defeat the ability of parties to view the case-

initiating filing or document through the case-view functionality of the

electronic filing system. Similarly, a party who electronically files a

subsequent document in a confidential case shall not designate the

filing or the document as confidential in the electronic filing system

because doing so will defeat the ability of parties to view that particular

filing or document through the case-view functionality of the electronic

filing system. If a filing or document is electronically designated by a

party as confidential in contravention of this provision, the clerk may

remove the designation, but the clerk’s removal of the designation shall

not thereby alter the confidential status of the case, filing or document.

(d) Confidential Filings When There Has Been No Prior

Determination of Confidentiality. As set forth in Supreme Court Rule

12(2)(b), a party or other person with standing who seeks to have the

34

case record or a portion of the case record, such as a particular

document, determined to be confidential by the supreme court must

file a motion to seal. In addition to the procedure set forth in Rule

12(2)(b), if the party who seeks a determination of confidentiality is

electronically filing the case or document for which the confidentiality

determination is sought, the party must: (1) file the motion to seal

electronically, but not designate the motion itself as confidential in the

electronic filing system; (2) designate the filing or document for which

confidentiality is sought as confidential in the electronic filing system;

and (3) indicate in the electronic filing system the basis for

confidentiality. The party’s designation of a filing or document as

confidential in the electronic filing system neither establishes

confidentiality nor takes the place of a motion to seal as required by

Supreme Court Rule 12(2)(b). Upon filing of the motion to seal, the

case record or the portion of the case record which is the subject of the

motion shall be kept confidential pending a ruling on the motion. If

the motion to seal is denied, the clerk shall remove the confidential

designation of the filing or document in the electronic filing system.

(e) Court Action When Confidentiality is Required. The failure of

a party filing electronically to comply with the provisions of this rule, or

the failure of a party or other person with standing to request that a

case record or a portion of a case record be confidential, shall not

preclude the court from determining on its own motion that a statute,

administrative or court rule, or other compelling interest requires that

a case record or a portion of a case record be kept confidential.

However, the responsibility for properly designating and identifying

confidential material in accordance with this rule rests solely with the

parties and their attorneys. It is not the responsibility of the court or

the clerk to review each document to ensure that confidential material

has been properly designated and identified as confidential.

35

(f) Documents Submitted Ex Parte or for In Camera Review. The

procedures set forth in this Rule 16 do not apply to documents

submitted ex parte or to documents submitted for in camera review.

As set forth in Rule 6 of these rules, such documents must be


36

Rule 17. Formal Service of Process

A document that requires personal service or other formal service

of process on a party to confer jurisdiction over that party as a matter

of law shall not be served electronically, unless the court authorizes

electronic service in the case. If electronic service is not authorized,

the document must be served in the manner required by applicable

law.

37

Rule 18. Electronic Service of Documents

(a) Effect of Electronic Service. Electronic service, as defined in

these rules, satisfies the requirement in Supreme Court Rule 26(2) that

a filer provide to all other parties a copy of each filing at or before the

time of filing. In addition, whenever notice to a party is required,

notice to the electronic service address of the party shall be deemed

notice to, and binding on, the party.

(b) Acceptance of Electronic Service by Registered E-Filers;

Conventional Service Required to Other Parties.

(1) Registration as an e-filer in the electronic filing system

shall constitute consent to acceptance of electronic service of

court documents and documents filed by other registered e-filers

in the case. Except as otherwise provided by these rules or by

court order, no other form of delivery to a registered e-filer by a

registered e-filer is permitted as valid service. When a registered

e-filer submits a document to the court through the electronic

filing system, and one or more other parties to the case or their

representatives have registered as e-filers, the filing party must

cause electronic service through the filing system to be made on

each other registered e-filer by so designating at the time of the

filing party’s submission. If an e-filer uses the electronic filing

system’s “Exclude from eService” functionality to circumvent this

requirement, the clerk may reject the filing.

(2) A party who is not required to file electronically, whether

by exemption or otherwise, shall be conventionally served by

providing him or her, at the time of filing, with a paper copy of

each document filed. See Supreme Court Rule 26(2) and (3)(a).

A party who is not required to file electronically, whether by

exemption or otherwise, shall conventionally serve each of his or

her filings by providing, at the time of filing, a paper copy of each

38

filing to the other parties in the case. See Supreme Court Rule

26(2) and (3)(a). It is the responsibility of the party filing a

document to provide a copy of the filing to other parties in

accordance with this provision and (b)(1), above. With respect to

a court-issued document, the clerk’s office will conventionally

serve the document on each party who is not required to file

electronically, whether by exemption or otherwise.

(3) A party who is presumptively required by these rules to

file electronically, but who has not yet registered as an e-filer,

must be conventionally served in accordance with (b)(2), above;

provided, however, that in a case when all parties are

represented by lawyers and a stipulation for e-mail service was

filed in the trial court or administrative agency in compliance

with applicable rules of that tribunal, see, e.g., Superior Court

Rule 3(b); District Division Rule 1.3-A(B), the “appeal document”

(as defined by Supreme Court Rule 3) shall be served in

accordance with the stipulation, and such service shall be

deemed valid conventional service. A party who is presumptively

required by these rules to file electronically, but who has not yet

registered as an e-filer and who has requested an exemption

from the requirement of electronic filing, must conventionally

serve each of his or her filings to other parties in the case in

accordance with (b)(2), above. It is the responsibility of the party

filing a document to provide a copy of the filing to other parties

in accordance with this provision and (b)(1), above. With respect

to a court-issued document, the clerk’s office will conventionally

serve the document on each party who has not yet registered as

an e-filer.

(c) Certificate of Service. A party filing a document, whether

electronically or conventionally, must include a statement in the

39

document in accordance with Supreme Court Rule 26(7) certifying that

a copy of the document is being timely provided to all other parties in

the case. Unless the document is a court form, the certification in the

document must identify the name of each party receiving a copy of the

document through the electronic filing system’s electronic service and

the name of each party receiving a paper copy of the document through

conventional service.

(d) Court-Issued Documents. The clerk’s office will electronically

serve any court-issued document to all registered e-filers in the case.

Electronic service by the clerk’s office constitutes service or notice of

the document. In accordance with (b)(2) and (b)(3), above, the clerk’s

office will conventionally serve a court-issued document to each party

who is not a registered e-filer.

(e) No-Contact Orders. Absent a court order to the contrary, a

party who is subject to a no-contact order and who is a registered e-

filer may use the electronic filing system’s electronic service to provide

a copy of a filed document to the opposing party if the opposing party

or the opposing party’s counsel or nonlawyer representative is a

registered e-filer.

40

Rule 19. Electronic Payment of Fees, and Refund of Fees Paid

Electronically

A registered e-filer shall make payment of any fees that are due

to the court through the electronic filing system’s payment processor,

unless the registered e-filer has either filed a motion to waive the fee or

indicated in the electronic filing system that the fee will be paid at the

court. If the amount listed as due for a filing or transaction in the

electronic filing system is insufficient to cover the actual amount of the

applicable fee or surcharge imposed by RSA 490:26-a, II, the clerk may

order the filer to pay the remaining amount.

The clerk may refund an electronic or other payment when no

payment was required, when the payment was duplicative of a previous

payment, or when the amount paid exceeds the actual amount owed

for the filing or transaction.

41

Rule 20. Motions for Admission Pro Hac Vice

A motion for the appearance pro hac vice of an attorney who is

not a member of the Bar of this State (“Nonmember Attorney”) must be

electronically filed by a registered e-filer who is an active member in

good standing of the Bar of this State (“In-State Attorney”) and who will

be associated with the Nonmember Attorney in accordance with

Supreme Court Rule 33(1). The nonrefundable application fee must be

paid through the electronic filing system’s payment processor, unless

the registered e-filer has either filed a motion to waive the fee or

indicated in the electronic filing system that the fee will be paid at the

court or was previously paid in a consolidated or related matter. See

Supreme Court Rule 33(5). Due to technical features of the electronic

filing system, the In-State Attorney must file a separate motion for each

Nonmember Attorney whose admission pro hac vice is sought, and may

not request the admission of multiple Nonmember Attorneys in one

motion.

42

Rule 21. Certified or Attested Court Documents

When a statute, court rule or administrative order requires a

document to be certified or attested to by means of a supreme court

seal or otherwise, such a document shall be considered properly

attested to or certified when:

(a) the document, with statutory attestation language and

bearing an electronic certification stamp approved by the supreme

court as meeting the requirements for attestation, is electronically

transmitted directly from the clerk to the registered e-filer or any

other person or entity; or

(b) the paper document is issued by the clerk bearing the

physical seal of the court or other evidence of attestation.

43

APPENDIX B

The suggestion is to amend Supreme Court Rule 1 as follows (new

material is in [bold and brackets]):

RULE 1 OFFICIAL PUBLICATION AND NOTIFICATION OF RULES

The Supreme Court of New Hampshire, pursuant to its

constitutional, statutory, and common law powers, N.H. CONST. pt. II,

art. 73-a; RSA 490:4; Boody v. Watson, 64 N.H. 162 (1886), promulgates the following rules of practice and procedure.

[For cases commenced in the supreme court on or after

January 1, 2018, the following rules are supplemented by – and, as

to certain matters such as the filing, format or service of a document, may be superseded by – the Supplemental Rules of the

Supreme Court of New Hampshire for Electronically Filed Cases and Other Cases Commenced on or after January 1, 2018. Those supplemental rules alter these rules in several ways, including, but

not limited to, as follows: (1) notwithstanding any provision to the contrary in these rules, a filer who submits a document

electronically or conventionally in a case governed by the supplemental rules need not and shall not file any paper copies of the document with the court, unless otherwise ordered to do so; (2)

a document that is filed electronically in a case governed by the supplemental rules must comply with the formatting and word-limit requirements set forth in these rules, but not with the colored-

cover, binding, and related requirements of these rules; and (3) a document that is filed conventionally (non-electronically) in a case

governed by the supplemental rules must comply with the formatting and word-limit requirements set forth in these rules, but the filer of the document must ensure that the document is printed

only on the front side of each page, is logically organized and separate from other documents, and is submitted to the court with no tabs, durable bindings, or difficult-to-remove fasteners that

would interfere with the clerk’s ability to scan or otherwise reproduce the document into an electronic document for entry in

the court’s electronic case file.]

Publication in New Hampshire Bar News will constitute official

publication and notification of any changes in rules regulating practice in the New Hampshire courts or governing membership in the New

Hampshire Bar Association or standing as a member of the New Hampshire Bar, as well as of any other Supreme Court orders of general application.

44

Rules of the supreme court and all other New Hampshire courts

shall be available in the offices of all clerks of court and shall also be printed by a commercial publisher and made available for purchase by

attorneys, law libraries and the public. Further information as to obtaining copies of the New Hampshire Bar News or binders of Court Rules may be obtained from the New Hampshire Bar Association or the

Supreme Court’s Clerk’s office.

In the interest of expediting a decision, or for other good cause

shown, the supreme court or a single justice thereof may suspend the requirements or provisions of any of these rules in any instance on

application of a party or on the court's or a single justice’s motion, and may order proceedings in accordance with that direction.

References in court rules to the district court shall be deemed to include the circuit court – district division; references to the probate

court shall be deemed to include the circuit court – probate division; and references to the judicial branch family division shall be deemed to include the circuit court – family division.

45

APPENDIX C


material is in [bold and brackets]; deleted material is in

strikethrough format):

RULE 6 FORM OF CASES AND APPENDICES

(1) Filings of cases and appendices [shall be made through the court’s electronic filing system, unless either the case is exempt or

the party filing the case is exempt or otherwise not required to file electronically in accordance with the Supplemental Rules of the Supreme Court of New Hampshire for Electronically Filed Cases and

Other Cases Commenced on or after January 1, 2018.

(2) If either the case is exempt or the party filing the case is exempt or otherwise not required to file electronically, the filing of the case and any appendix may be submitted to the court

conventionally (non-electronically) in accordance with Rule 26 and] may be prepared using a printing, duplicating or copying process capable of producing a clear letter quality black image on white paper, but shall

not include ordinary carbon copies. [Unless submitted through the court’s electronic filing system, each filing of a case shall be upon

good quality, nonclinging paper 8 ½ by 11 inches in size.] If timely filings do not conform to this rule or are not clearly legible, the clerk of the court may require that new copies be substituted, but the filings

shall not thereby be deemed untimely.

(2) Each filing of a case in a mandatory appeal shall be upon good

quality, nonclinging paper 8 ½ by 11 inches in size, but the mandatory notice of appeal need not be in pamphlet form, need not have covers, and

need not be bound along the left margin.

Each filing of a case and appendix in any case other than a

mandatory appeal shall be in pamphlet form upon good quality, nonclinging paper 8 ½ by 11 inches in size, with front and back covers of

durable quality. Each shall have a minimum margin of one inch on all sides the binding side and shall be firmly bound along the left margin. Any metal or plastic spines, fasteners, or staples shall be flush with the

covers and shall be covered by tape. The covers shall be flush with the pages of the case. The court will not accept any other method of binding unless prior approval has been obtained from the clerk of the supreme

court.

46

(3) The front cover of the filing of a case and of the appendix, if the appendix is separately produced, shall contain: (1) The name of this

court; (2) The docket number, after one has been assigned; (3) The title of the case; (4) The nature of the proceeding in this court, e.g., appeal by

petition; and (5) The names and addresses of counsel for the party filing the case. See form in appendix to these rules.

(4) Whenever the pertinent text of constitutions, statutes, ordinances, rules, regulations, insurance policies, contracts or other

documents is to be set forth in an appendix, it need not be typewritten, but may be produced by an easily readable duplicating or dry copying process.

(5) Each request for findings of fact and rulings of law set forth in a

notice of appeal or appendix shall indicate on the margin whether they have been “granted,” “denied” or “not ruled upon” by the master or the court.

47

APPENDIX D

The suggestion is to amend Supreme Court Rule 12-D as follows

(new material is in [bold and brackets]; deleted material is in


RULE 12-D SUMMARY PROCEDURES ON APPEAL

(1) Selection of Cases.

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

(b) Any party may request or consent that a case be set for oral

argument before a 3JX panel. The court will consider and act upon such request, based upon criteria set out at paragraph (5) below.

(c) The court may direct that the matter be submitted on briefs, without oral argument, to a 3JX panel. See Rule 18(1).

(d) Except as noted in this rule, the procedure for cases

assigned to a 3JX panel shall be the same as otherwise provided in these

rules. Any motions made in a case assigned to a 3JX panel shall be acted upon by the panel. The panel may, in its discretion, refer any such motion to the full court for resolution.

(2) Disposition after Argument Before Three Justices; Additional

Briefing, etc.

(a) Any case which has been heard by a 3JX panel shall be

decided by unanimous order of the three justices. If the panel cannot reach a unanimous decision, it shall direct that the case be decided by the full court. The panel may order that a case be decided by the full

court in such other circumstances as it deems appropriate. The panel may, prior to determining that a unanimous decision cannot be reached,

require additional briefing. If decision by the full court is ordered, the court may issue an additional order setting forth matters to be reargued or rebriefed.

(b) Unless the court orders otherwise, whenever a 3JX panel

directs after oral argument that a case be decided by the full court, no further oral argument shall be held and the members of the court who

48

were not on the 3JX panel shall listen to the recording of the 3JX oral argument before deciding the case.

(3) Non-precedential Status of Orders. An order issued by a 3JX

panel shall have no precedential value, but it may, nevertheless, be cited or referenced in pleadings or rulings in any court in this state, so long as it is identified as a non-precedential order. Such non-precedential orders

may be cited and shall be controlling with respect to issues of claim preclusion, law of the case and similar issues involving the parties or facts of the case in which the order was issued. All citations to non-

precedential orders shall identify the court, docket number and date.

(4) [Repealed.]

(5) Criteria for Selection of Cases for 3JX Panel. Cases suitable for

oral argument before a 3JX panel include, but are not limited to:

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

(b) appeals claiming an unsustainable exercise of discretion where the law governing that discretion is settled;

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

(6) Briefing, Argument, etc.

(a) In all cases selected for oral argument before a 3JX panel, briefs shall be limited to [9,500 words] 35 pages, exclusive of the table of contents, tables of citations and any addendum containing pertinent

texts of constitutions, statutes, rules, regulations and other such matters. Reply briefs shall be limited to [3,000 words] 10 pages.

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

the event of multiple parties on the same side, the court may determine,

either upon its own motion or upon motion of a party, an appropriate amount of time for oral argument.

(7) Motion for Rehearing or Reconsideration. Motions for

rehearing or reconsideration of any order assigning a case to a three-

justice panel or of any order issued by a three-justice panel shall be governed by Rule 22.

49

APPENDIX E




RULE 16 BRIEFS

(1) Briefs may be prepared using a printing, duplicating or copying process capable of producing a clear letter quality black image on white

paper, but shall not include ordinary carbon copies. If briefs timely filed do not conform to this rule or are not clearly legible, the clerk of the supreme court may require that new copies be substituted, but the filing

shall not thereby be deemed untimely.

Each brief shall be in pamphlet form upon good quality, nonclinging paper 8 ½ by 11 inches in size, with front and back covers of durable quality. Each brief shall have a minimum margin of one [and

one-half (1½)] inch on [all sides] the binding side and shall be firmly bound at the left margin. Any metal or plastic spines, fasteners or staples shall be flush with the covers and shall be covered by tape. The

covers shall be flush with the pages of the case. See also Rule 26(5).

If briefs are produced by commercial printing or duplicating firms, or, if produced otherwise and the covers to be described are available, the cover of the brief of the appealing party should be blue; that of the

opposing party, red; that of an intervenor or amicus curiae, green; and that of any reply brief, including the answering brief in accordance with

Rule 16(8), gray. The cover of the appendix, if separately printed, should be white.

The court will not accept any other method of binding unless prior approval has been obtained from the clerk of the supreme court.

(2) The front covers of the briefs and of appendices, if the appendices are separately produced, shall contain: (a) the name of this

court and the docket number of the case; (b) the title of the case; (c) the nature of the proceeding in this court, e.g., appeal by petition pursuant

to RSA 541: 6, and the name of the court or agency below; (d) the title of the document, e.g., brief for plaintiff; (e) the names, addresses and New Hampshire Bar identification numbers of counsel representing the party

on whose behalf the document is filed; and (f) the name of counsel who is to argue the case. See form in appendix.

50

(3) So far as possible, the brief of the moving party on the merits shall contain in the order here indicated:

(a) A table of contents, with page references, and a table of cases

listed alphabetically, a table of statutes and other authorities, with references to the pages of the briefs where they are cited.

(b) The questions presented for review, expressed in terms and circumstances of the case but without unnecessary detail. While the statement of a question need not be worded exactly as it was in the

appeal document, the question presented shall be the same as the question previously set forth in the appeal document. The statement of a

question presented will be deemed to include every subsidiary question fairly comprised therein. The moving party may argue in his brief any question of law not listed in his appeal document, but only if the

supreme court has granted a motion to add such question, and he has presented a record that is sufficient for the supreme court to decide the

questions presented. Motions to add a question may be filed only by a party who filed an appeal document (including a party who filed a cross-appeal), and shall be filed at least 20 days prior to the due date of the

moving party's brief. After each statement of a question presented, counsel shall make

specific reference to the volume and page of the transcript where the issue was raised and where an objection was made, or to the pleading

which raised the issue. Failure to comply with this requirement shall be cause for the court to disregard or strike the brief in whole or in part, and opposing counsel may so move within ten days of the filing of a brief

not in compliance with this rule.

(c) The constitutional provisions, statutes, ordinances, rules, or

regulations involved in the case, setting them out verbatim, and giving their citation. If the provisions involved are lengthy, their citation alone

will suffice at that point, and their pertinent text shall be set forth in an appendix.

(d) A concise statement of the case and a statement of facts material to the consideration of the questions presented, with

appropriate references to the appendix or to the record.

(e) A summary of argument, suitably paragraphed, which should

be a succinct, but accurate and clear, condensation of the argument made in the body of the brief. It should not be a mere repetition of the headings under which the argument is arranged.

51

(f) The argument, exhibiting clearly the points of fact and of law being presented, citing the authorities relied upon.

(g) A conclusion, specifying the relief to which the party believes

himself entitled.

(h) A statement that the party waives oral argument or that the

party requests oral argument. A party requesting oral argument may designate whether the party requests oral argument before a 3JX panel or the full court, and may set forth reasons why the party believes oral

argument is necessary or will be helpful to the court in deciding the case. If a party requests oral argument before the full court, and if the party

believes that more than 15 minutes to a side will be necessary for oral argument, the party may set forth why the party believes that good cause exists for granting additional time. The party shall designate the lawyer

to be heard if there are two or more lawyers on the party’s side.

(i) A copy of the decision(s) below that are being appealed or reviewed. If the appealed decision is in writing, a copy of that decision shall be included with the brief, and shall not be included in a separate

appendix. The appealing party shall, immediately before the signature line on the brief, certify either that the appealed decision is in writing and is appended to the brief, or that the appealed decision was not in

writing and therefore is not appended to the brief. Any brief not conforming with this rule may be rejected.

(4)(a) The brief of the opposing party shall conform to the foregoing

requirements, except that no statement of the case need be made beyond

what may be deemed necessary in correcting any inaccuracy or omission in the statement of the other side, and except that subsections (b), (c), and (h) of subsection (3) need not be included unless the opposing party

is dissatisfied with their presentation by the other side.

(b) Instead of a brief, the opposing party in a mandatory appeal may file a memorandum of law not to exceed [4,000 words] 15 pages in length. A memorandum of law need not comply with the requirements

for a brief set forth in this rule, including the requirements that briefs be bound in pamphlet form and have covers. A memorandum of law,

however, shall contain: (i) the argument, exhibiting clearly the points of fact and of law being presented, citing the authorities relied upon; and (ii) a conclusion, specifying the relief to which the party believes himself

entitled. A party who files a memorandum of law shall be deemed to have consented to the waiver of oral argument.

(5) Reply briefs shall conform to such parts of this rule as are applicable to the briefs of an opposing party, but need not contain a

52

summary of argument, regardless of their length, if appropriately divided by topical headings.

(6) Briefs and memoranda of law must be compact, logically

arranged with proper headings, concise and free from burdensome, irrelevant, and immaterial matter. Briefs and memoranda of law not complying with this section may be disregarded and stricken by the

supreme court.

(7) Unless specially ordered otherwise, the original and 8 copies of

the opening brief shall be filed with the clerk of the supreme court, in addition, 2 copies with counsel for each party separately represented, 2

copies with each [self-represented] pro se party, and like distribution shall be made of the opposing brief, opposing memorandum of law, or any other brief, all within the times specified in the applicable scheduling

order.

The party filing the opening brief may similarly file, and make like distribution of, a reply brief, which shall be filed by the earlier of 20 days following the submission of the opposing brief or opposing memorandum

of law, or 10 days before the date of oral argument. A reply brief may be filed after the expiration of the applicable time period only by leave of court. Responses to a reply brief shall not ordinarily be allowed. No

response to a reply brief may be filed except by permission of the court received in advance.

Whenever a party desires to present late authorities, newly enacted

legislation, or other intervening matters that were not available in time to

have been included in his brief, he may similarly file, and make like distribution of, such new matters up to and including the day of oral argument, or by leave of the supreme court thereafter.

The court shall not consider any brief or memorandum of law after

a case has been argued or submitted, unless the court has granted to the party offering to file the brief or memorandum of law special leave to do so in advance.

(8) If a cross-appeal is filed, the clerk shall determine which party

shall be deemed the moving party for the purposes of this rule, unless the parties agree and so notify the court. The brief of the opposing party shall contain the issues and argument involved in his appeal as well as

the answer to the brief of the moving party. The moving party may file an answering brief within the time specified in the scheduling order.

53

(9) All references in a brief or memorandum of law to the appendix or to the record must be accompanied by the appropriate page number. [See Rule 17.]

(10) The party filing a brief or memorandum of law shall conclude the pleading with a certification that the party has hand-delivered or has sent by first class mail two copies of the pleading to the other counsel in

the case.

The name of the party filing the brief or memorandum of law and

the name of the lawyer representing the party shall appear in type at the conclusion of the pleading, and the lawyer shall sign the pleading.

Names of persons not members of the bar or not parties shall not appear on the notice of appeal, the brief, the memorandum of law, or in the appendix unless they have complied with Rule 33 and received prior

written approval of the court. See Rule 33(2).

If an attorney provided limited representation to an otherwise unrepresented party by drafting a brief or memorandum of law to be filed by such party in a proceeding in which the attorney is not entering any

appearance or otherwise appearing in the case in the supreme court, the attorney is not required to disclose the attorney’s name on such pleading

to be used by that party; any pleading drafted by such limited representation attorney, however, must conspicuously contain the statement “This pleading was prepared with the assistance of a New

Hampshire attorney.” The unrepresented party must comply with this required disclosure.

(11) Each brief and memorandum of law shall consist of standard sized typewriter characters or size [13] 12 font produced on one side of

each leaf only. The [lines of] text shall be [spaced at a setting of 1.2] double spaced. [The text shall be left-aligned only. The pages of the brief shall be sequentially numbered, beginning with the cover page as page 1 and using only Arabic numerals for page numbers (e.g., 1,

2, 3), including for the table of contents and table of authorities. The page number may be suppressed and need not appear on the

cover page.]

Except by permission of the court received in advance, no reply brief (or response thereto) shall exceed [3,000 words] 10 pages, and, except in a case with a cross-appeal, no other brief shall exceed [9,500

words] 35 pages, exclusive of pages containing the table of contents, tables of citations, and any addendum containing pertinent texts of

constitutions, statutes, rules, regulations, and other such matters. If a cross-appeal is filed, the opening brief and answering brief of the moving party shall not exceed [9,500 words] 35 pages, and the opposing brief of

54

the cross-appellant shall not exceed [14,000 words] 50 pages, exclusive of pages containing the table of contents, tables of citations, and any

addendum containing pertinent texts of constitutions, statutes, rules, regulations, and other such matters. The cross-appellant may file a

reply brief, which shall not exceed [3,000 words] 10 pages.

(12) Failure of the appealing party to file a brief shall constitute a

waiver of the appeal and the case shall be dismissed.

55

APPENDIX F


material is in [bold and brackets]):

RULE 17 APPENDIX TO BRIEF

(1) The court will not ordinarily review any part of the record that

has not been provided to it in an appendix or transmitted to it. See Rule

13(3).

If there is to be an appendix of relevant documents or pleadings, the parties are encouraged to agree on its contents as an addendum to the moving party's brief or as a separate submission, if voluminous. If

the moving party's appendix is not deemed to be sufficient, the opposing party may prepare and file an appendix of such additional parts of the

record as an addendum to his brief or memorandum of law or, if voluminous, as a separate submission.

(2) The original and 8 copies of an appendix meeting the requirements of Rule 6(2) shall be filed in the office of the clerk of the

supreme court and its pages shall be sequentially numbered[, beginning with the cover page as page 1 and using only Arabic numerals for page numbers (e.g., 1, 2, 3), including for the table of contents. The

page number may be suppressed and need not appear on the cover page.]. The cover of the appendix should be white.

(3) The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matter to be included in the

appendix unnecessarily, such as the full text of decisions of this court or irrelevant pleadings, the supreme court may impose the cost of producing such parts on that party, even though he may be the

prevailing party.

(4) At the beginning of the appendix there shall be inserted a table

of contents with references to the page of the appendix at which each item listed in the table of contents begins. When matter contained in the

transcript of proceedings is set out in the appendix, the page of the transcript at which such matter may be found shall be indicated in brackets immediately before the matter that is set out. Omissions in the

text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters, e.g., captions, subscriptions,

acknowledgments, shall be omitted.

56

[(5) To facilitate reading multi-volume appendices in electronic form:

(a) Each volume of the appendix shall be designated by a

Roman numeral on the cover and shall be separately paginated, beginning with the cover page as page 1. All subsequent pages shall be numbered consecutively, including the table of contents, with

Arabic numerals only. Page numbering shall not continue across multiple volumes. For example, a brief with a two-volume appendix would cite to both the particular appendix volume and its page

number as “Apx. I at 117” and “Apx. II at 24.”

(b) The first volume of the appendix shall include a complete table of contents referencing all volumes of the appendix, and each individual volume shall include a table of contents for that volume.]

57

APPENDIX G




RULE 21 MOTIONS, BRIEF MEMORANDA, AND EXTENSIONS OF TIME

(1) Motions relating to substance shall be entered upon the filing with the clerk of the supreme court of the original and 7 copies of the

motion and a signed statement by counsel that a copy of the motion and notice of the filing have been mailed first class or delivered to opposing counsel. See Rule 26. Motions shall be upon good quality, nonclinging

paper 8 ½ by 11 inches in size. They shall consist of standard size typewriter characters or size [13] 12 font produced on one side of each

leaf only. The [lines of] text shall be [spaced at a setting of 1.2.] double spaced and they [The text shall be left-aligned only. Motions shall have sequentially numbered pages[, beginning with the first or cover

page as page 1 and using only Arabic numerals for page numbers (e.g., 1, 2, 3), including for any table of contents. The page number

may be suppressed and need not appear on the first page].

(2) Every motion to the court shall state with particularity the

grounds on which it is based and the order or relief sought. A memorandum of law, affidavits, or other papers in support of the motion may be filed with it.

(3) The original and 7 copies of objections to a motion relating to

substance may be filed within 10 days from the date the motion has been filed in the clerk's office. The grounds of objections shall be stated with particularity. A memorandum of law, affidavits, or other papers in

support of the objections may be filed with the objections.

(3-A) No reply to an objection may be filed without permission of

the court received in advance. A motion for permission to file a reply must be filed within 10 days from the date the objection has been filed in

the clerk's office; provided, however, that the court may act upon a motion prior to the expiration of said ten-day period. Any reply to an objection filed without prior permission of the court shall not be

considered by the court.

(4) Oral argument will not be heard on any motion, except at the invitation of the court.

58

(5) If a motion does not relate to substance, but relates solely to scheduling or procedure, an original and one copy shall be filed with the

clerk of the supreme court, with copies to opposing counsel. See Rule 26. All motions relating solely to scheduling or procedure shall state

whether opposing counsel consents.

(6) No motion to extend time to file an appeal document will be

accepted unless accompanied by the required entry fee. See also Rule 5(1). No motion for late entry of an appeal document will be accepted

unless accompanied by the appeal document and the required entry fee and unless the appeal document conforms to applicable rules. Motions to extend time to file an appeal document and motions for late entry of

an appeal document are not favored and shall be granted only upon a showing of exceptional circumstances. No court or agency other than

the supreme court may extend the time to file an appeal document in the supreme court or permit late entry of an appeal document in the supreme court.

(6-A). Extensions of time to file briefs.

(a) Unless the scheduling order states otherwise, any party may obtain an automatic extension of no more than fifteen days within

which to file briefs (or memoranda of law) by filing an original and one copy of an assented-to notice of automatic extension of time. The notice shall affirmatively state that all parties assent to the extension, and the

notice MUST set forth the new dates upon which all briefs (or memoranda of law) for all parties shall be due, including the date for

reply briefs. No such date shall be extended by more than fifteen days. Upon the filing of the notice, the new briefing schedule set forth therein shall become effective without further order of the court.

(b) A maximum of two assented-to notices of automatic

extension of time may be filed by the parties collectively. Thereafter, no

additional extension of time will be granted by the court absent a showing of extraordinary circumstances.

(c) Extensions of time of more than fifteen days, or

extensions when all parties do not consent, may be requested only by

motion to the court. Extensions of more than fifteen days are not favored.

(7) A single justice may rule on all non-dispositive motions and

may issue any non-dispositive order. A single justice may rule upon

requests to withdraw or dismiss an appeal filed by the appellant, may dismiss an appeal pursuant to Rule 5(4), Rule 15(2) or Rule 16(12); and

59

may dismiss an appeal without prejudice upon procedural grounds. Any order of a single justice shall state which justice so ruled.

(8) The clerk of the supreme court may rule on all motions relating

to scheduling except for motions for expedited consideration, motions to extend time to file an appeal document, and motions for late entry of an appeal document. The clerk may issue briefing and other scheduling

orders. The clerk may issue orders requiring parties to file necessary documents with the court or to cure technical defects in filings, including orders requiring parties to refile a notice of appeal on the proper form.

The clerk may grant or refer to the court dispositive motions to which all parties consent, and non-dispositive motions to which no objection is

filed or all parties consent except for motions to extend time to file an appeal document and motions for late entry of an appeal document. With respect to other motions filed between the issuance of the

scheduling order pursuant to Rule 12-B and the date of oral argument or submission of the case on the briefs, the clerk may refer such motions to

the court or issue an order to the effect that no ruling will be made on the motion prior to oral argument or submission of the case on the briefs, but that the parties may address the motion during their allotted

oral argument time if oral argument is held. In mandatory appeals, the clerk may issue orders accepting the case. Any order of the clerk shall state that it is issued pursuant to this rule.

(9) Any motion to reconsider an order issued by a single justice or

the clerk shall be filed within ten days from the date of the issuance of the order. A motion to reconsider an order issued by a single justice shall be referred to the court for decision. A motion to reconsider an

order issued by the clerk shall be referred to a single justice or to the court for decision.

(10) Whenever the court issues an order requiring or permitting a party to file a brief memorandum, the brief memorandum shall be

entered upon the filing with the clerk of the supreme court of the original and 7 copies of the brief memorandum and a signed statement by counsel that a copy of the brief memorandum and notice of the filing

have been mailed first class or delivered to opposing counsel. See Rule 26. Brief memoranda shall be upon good quality, nonclinging paper 8 ½

by 11 inches in size. They shall consist of standard size typewriter characters or size [13] 12 font produced on one side of each leaf only. The [lines of] text shall be [spaced at a setting of 1.2.] double spaced

and they [The text shall be left-aligned only. Brief memoranda] shall have sequentially numbered pages[, beginning with the first or

cover page as page 1 and using only Arabic numerals for page numbers (e.g., 1, 2, 3), including for any table of contents. The page

number may be suppressed and need not appear on the first page].

60

(11) Any order or decision by the court disposing of the case on the

merits shall be deemed to be a denial of any pending non-dispositive motion.

61

APPENDIX H




RULE 22 MOTION FOR REHEARING OR RECONSIDERATION

(1) A motion for rehearing or reconsideration shall be entered upon the filing with the clerk of the supreme court of the original and 7 copies

of the motion and a certificate by counsel that a copy of the motion and notice of the filing have been mailed first class or delivered to opposing counsel and to the clerk of the court or agency from which the appeal or

transfer was taken, and (in the case of an appeal from an administrative agency) to the attorney general.

(2) Any motion for rehearing or reconsideration shall be filed within

10 days from the date of the opinion or dismissal or summary decision in

matters in which an opinion is not issued. The motion shall state with particularity the points of law or fact that in the professional judgment of the movant the court has overlooked or misapprehended and shall

contain such argument in support of the motion as the movant desires to present, but the motion shall not exceed [3,000 words] 10 pages. Oral

argument in support of the motion shall not be permitted, except at the invitation of the court.

(3) No answer to a motion for rehearing or reconsideration shall be required unless requested by the court, but any answer or objection must be filed within 10 days from the date the motion was filed.

(3-A) If an answer/objection to a motion for rehearing or

reconsideration is filed, no reply to the answer/objection may be filed without permission of the court received in advance. A motion for permission to file a reply must be filed within 10 days from the date the

answer/objection has been filed in the clerk’s office; provided, however, that the court may act upon a motion for rehearing or reconsideration

prior to the expiration of said ten-day period. Any reply to an answer/objection filed without prior permission of the court shall not be considered by the court.

(4) If a motion for rehearing or reconsideration is granted, the court

may make a final disposition of the case without reargument or may

restore it to the calendar for reargument or resubmission or make such other orders as are deemed appropriate in the circumstances of the case.

62

(5) Consecutive motions for rehearing or reconsideration shall not be considered or acted upon by the court.

63

APPENDIX I




RULE 26 FILING AND SERVICE

(1) Papers required or permitted to be filed in this court shall be filed with the clerk of this court and shall be upon good quality,

nonclinging paper 8 1/2 by 11 inches in size. With the exception of documents attached to a filing [or submitted on a court form], the type used in all filings shall consist of standard size typewriter characters or

size [13] 12 font. Filing may be accomplished by first class mail addressed to the clerk of this court, but filing shall not be timely unless

the papers are received by the clerk within the time fixed by rule or law. Filings postmarked at least 2 days prior to the time fixed by rule or law shall be deemed timely.

If the clerk’s office provides a drop box for the filing of documents, the contents of the drop box shall be removed by the clerk’s office at the

start of business each day that the court is open for business. The following rules shall determine the date of filing for documents filed via

the drop box: (a) Any person filing a document or documents via the drop box

shall indicate the date and time of filing on the document or documents or on the envelope containing the document or documents, and the document shall be considered to have been filed on the date indicated,

except if the date indicated is a Saturday, Sunday, legal holiday, or other day upon which the clerk's office is closed, the document shall be

considered to have been filed on the next day that the court is open for business. If a document or documents deposited in the drop box does not include both a date and time of filing, the document will be deemed

to have been filed on the date that the document or documents are removed from the drop box.

(b) The court is NOT responsible for any documents placed in the drop box which are lost, stolen, misplaced, or destroyed. A party

may contact the court during business hours to verify that a document placed in the drop box has been received by the clerk's office.

(2) Copies of all [documents] papers filed by any party shall, at or before the time of filing, be served by a party or person acting for him on

64

all other parties to the case. Service on a party represented by counsel shall be made on counsel. Copies of motions to extend time to file an

appeal document, appeal documents, and motions for rehearing or reconsideration shall be filed with the clerk of the court or agency from

which the appeal or transfer is taken, and (in the case of an appeal from an administrative agency) with the attorney general, as specified in rules 5, 21, or 22.

(3) (a) Service may be personal or by first class mail. Personal

service includes delivery of the copy to a secretary or other responsible

person at the office of counsel. Service by first class mail is complete on mailing.

(b) In any case when all parties are represented by lawyers, all

parties’ counsel may agree that pleadings filed and communications

addressed to the court may be furnished to all other counsel by email. An agreement may be filed with the court by stipulation. Such

agreement shall list the email address(es) at which counsel agrees to be served. The email header shall include the caption of the case and its docket number. Pleadings and communications furnished in accordance

with this rule shall be attached to the email in .PDF file format. Documents so furnished may have on their signature lines a copy of counsel's signature, a facsimile thereof, “/s/ [counsel's name]” as used in

the federal ECF system, or similar notation indicating the document was signed.

(4) In the case of any notice of appeal or transfer filed in this court,

counsel for the filing party shall include with the filing a statement

certifying that every issue specifically raised (a) has been presented to the court below and (b) has been properly preserved for appellate review by a contemporaneous objection or, where appropriate, by a properly filed

pleading. Failure of counsel to comply with this requirement will result in the assessment of costs and attorney’s fees by the court and may also

result in the rejection of the notice of appeal as to that issue.

(4-A) When an attorney provides limited representation to an

otherwise unrepresented party by drafting a document to be filed by such party with the supreme court in a proceeding in which the attorney is not

entering any appearance or otherwise appearing in the case in the supreme court, the attorney is not required to disclose the attorney’s name on such pleading to be used by that party; any pleading drafted by

such limited representation attorney, however, must conspicuously contain the statement “This pleading was prepared with the assistance of a New Hampshire attorney.” The unrepresented party must comply with

this required disclosure.

65

(5) Notices of appeal and all other [documents] papers required or permitted to be filed in this court shall have sequentially numbered

pages[, beginning with the first or cover page as page 1 and using only Arabic numerals for page numbers (e.g., 1, 2, 3), including for

any table of contents. The page number may be suppressed and need not appear on the first page].

(6) Notices of appeal and all other papers required or permitted to be filed in this court shall be duplicated on non-clinging paper. Clinging paper shall include any duplication done by a wet-process machine or

any electrostatic duplicating method which creates static electricity between the pages.

(7) All [documents] papers presented for filing shall contain a

statement of compliance with sections (2), (3), and (4). [If a document presented for filing is subject to a word limitation, see, e.g., Rule

16(11) and Rule 22(2), the document shall contain a statement of

compliance with the word limitation and a certification identifying the number of words in the document.]

(8) All filings and correspondence, except the initial filing of the appeal document, shall contain the supreme court's docket number.

(9) All changes of mail address shall be filed with the clerk. Whenever notice to a party is required, notice to the last mail address on

file shall be deemed notice to, and binding on, the party.

(10) Any pleading filed by counsel who is a member of the New

Hampshire Bar shall include counsel's New Hampshire Bar identification number.

Date post:	26-Mar-2020
Category:	Documents
Upload:	others
View:	3 times
Download:	0 times