This post is authored by Cathy Trent-Vilim, a partner in LDM’s litigation department.
We’ve all been there before. Gazing at the foot-high stack of transcripts and bill of exceptions, you decide to put them aside and work on something else that day. Then that day turns into a week, which turns into two weeks, and before you know it, you’re scrambling to meet your appeal brief deadline.
In the past, this wouldn’t have been a problem. You’d simply file a motion (often times stipulated by opposing counsel) with the Court. As long as your case was not an advanced case (criminal, worker’s compensation, unemployment compensation, certified questions, original actions, custody of minor children, juvenile cases, and a few others), you could practically bank on the Court granting your motion. Not anymore! Automatic brief extensions are a thing of the past.
I recently received a notice from the Court regarding a case pending before the Court of Appeals in which the Supreme Court and Court of Appeals announced that “[d]ue to the reduced number of cases awaiting submission to the Supreme Court and Court of Appeals, and as part of the courts’ continuing efforts to reduce case processing time, future requests for brief date extensions will be closely scrutinized.” (Bold in original). The Court further indicated that if an appellant defaults (fails to file a brief), a brief must be filed within 10 days of receipt of notice from the Court. If not, the appeal is subject to dismissal. Finally, the Court warned that “these rules will be strictly enforced.”
As a result, to obtain a brief extension, you must actually show “good cause” (“good cause” has always been required; but in the past it usually sufficed to show that your opponent stipulated to the extension, that your case was not advanced, and that the motion was not being made for purposes of delay). Now, “good cause” will likely mean an exceptionally long appellate record (i.e., several weeks of trial or hundreds of exhibits), unusually complex legal issues, or exceptional circumstances for the moving attorney (i.e., serious illness or death in the immediate family).
Given the Court’s admonition, plan your time accordingly and be sure you get your brief filed within the time provided by the Nebraska Rules of Appellate Practice. If you anticipate a problem, get your motion for extension on file as quickly as possible. You do not want to find out your motion was denied shortly before your deadline runs, or worse, after the deadline has already passed! If so, you will have some ‘splaining to do.