THE STATE OF NEW HAMPSHIRE

SUPREME COURT OF NEW HAMPSHIRE

O R D E R

R-2005-0003, In re 2005 Annual Report of the Advisory Committee on Rules

The following rules, regarding which the New Hampshire Supreme Court has not previously requested public comment, have been reported by the New Hampshire Supreme Court Advisory Committee on Rules to the supreme court with a recommendation that they be adopted:

1. Superior Court Rule 14 re appearances. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix A.

2. Superior Court Rule 15 re appearances and withdrawals of counsel. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix B.

3. Superior Court Rule 21 re service of pleadings. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix C.

4. District Court Rule 1.3 re attorneys. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix D.

5. District Court Rule 1.3-A re service of pleadings. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix E.

6. Probate Court Rule 14 re appearances. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix F.

7. Probate Court Rule 15 re execution of pleadings. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix G.

8. Probate Court Rule 20 re attorneys. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix H.

9. Probate Court Rule 21 re pleadings. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix I.

10. Professional Conduct Rule 1.2 re scope of representation. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix J.

11. Professional Conduct Rule 6.5 re limited legal service programs. After public hearing held in June 2005, the committee recommends adoption of this rule as set forth in Appendix K.

12. Professional Conduct Rule 1.16 re termination of representation. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix L.

13. Professional Conduct Rule 4.2 re communication with person represented by counsel. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix M.

14. Professional Conduct Rule 4.3 re dealing with unrepresented person. After public hearing held in June 2005, the committee recommends amending this rule as set forth in Appendix N.

1. Supreme Court Rule 3 re definitions. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix O.

2. Supreme Court Rule 5(1) re docketing the case. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix P.

3. Supreme Court Rule 6 re form of cases and appendices. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix Q.

4. Supreme Court Rule 7 re appeal from lower court decision on the merits. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix R.

5. Supreme Court Rule 7-A re motion to stay or for remand. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix S.

6. Supreme Court Rule 10(1), (2), and (3) re appeal from administrative agency. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix T.

7. Supreme Court Rule 13 re the record. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix U.

8. Supreme Court Rule 15 re transcripts. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix V.

9. Supreme Court Rule 16 re briefs. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix W.

10. Supreme Court Rule 17 re appendix to brief. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix X.

11. Supreme Court Rule 18 re oral argument. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix Y.

12. Supreme Court Rule 21 re motions and brief memoranda. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix Z.

13. Supreme Court Rule 25 re summary disposition or dismissal. After public hearing held in June 2005, the committee recommends adopting this rule on a permanent basis as set forth in Appendix AA.

14. Rule 7 Notice of Discretionary Appeal form. After public hearing held in June 2005, the committee recommends adopting this form on a permanent basis as set forth in Appendix BB.

15. Rule 7 Notice of Mandatory Appeal form. After public hearing held in June 2005, the committee recommends adopting this form on a permanent basis as set forth in Appendix CC.

16. Outside front cover of cases and briefs form. After public hearing held in June 2005, the committee recommends adopting this form on a permanent basis as set forth in Appendix DD.

1. Supreme Court Rule 53 re continuing legal education requirement. After public hearing in June 2005, the committee recommends amending Rule 53 as set forth in Appendix EE.

1. Superior Court Rule 72 re jury instructions – plain error. After public hearing in December 2004, the committee recommends amending Rule 72 as set forth in Appendix FF.

2. Superior Court Rule 93-A re guardians ad litem for minor victims or witnesses in sex-related criminal cases. After public hearing held in June 2005, the committee recommends amending Rule 93-A as set forth in Appendix GG.

3. Superior Court Rule 169 (III) and (V) re the filing fee and surcharge for marriage waivers. After public hearing held in June 2005, the committee recommends adopting Rule 169 on a permanent basis as set forth in Appendix HH.

1. Superior Court Administrative Rule 12-1 re courts in which marital master program is in effect. After public hearing held in June 2005, the committee recommends amending Rule 12-1 as set forth in Appendix II.

2. Superior Court Administrative Rule 12-2 re administration of marital master program. After public hearing held in June 2005, the committee recommends amending Rule 12-2 as set forth in Appendix JJ.

3. Superior Court Administrative Rule 12-3 re qualifications for appointment as a marital master. After public hearing held in June 2005, the committee recommends amending Rule 12-3 as set forth in Appendix KK.

4. Superior Court Administrative Rule 12-5 re application process for marital masters. After public hearing held in June 2005, the committee recommends amending Rule 12-5 as set forth in Appendix LL.

5. Superior Court Administrative Rule 12-6 re length of terms and reappointment process for marital masters. After public hearing held in June 2005, the committee recommends amending Rule 12-6 as set forth in Appendix MM.

6. Superior Court Administrative Rule 12-7 re complaints against marital masters; application of Code of Judicial Conduct to marital masters. After public hearing held in June 2005, the committee recommends amending Rule 12-7 as set forth in Appendix NN.

1. District Court Rule 2.10 re discovery. After public hearing in December 2004, the committee recommends amending Rule 2.10, and adopting it as amended on a permanent basis, as set forth in Appendix OO.

1. Probate Court Rule 169 (I) re the filing fee and surcharge for marriage waivers. After public hearing held in June 2005, the committee recommends adopting Rule 169 on a permanent basis as set forth in Appendix PP.

1. Family Division Pilot Program Rule 11 re referees. After public hearing held in June 2005, the committee recommends adopting Rule 11 on a permanent basis as set forth in Appendix QQ.

1. Professional Conduct Committee Rule 5.5A re licensing of legal consultants (who are licensed in foreign countries). After public hearing held in December 2004, the committee recommends adopting Rule 5.5A as set forth in Appendix RR. The committee recommends that if this rule is adopted, the court may wish to consider adopting it as part of the supreme court rules rather than as part of the Professional Conduct Committee rules.

2. Professional Conduct Committee Rule 5.5B re temporary practice by foreign lawyers. After public hearing held in December 2004, the committee recommends adopting Rule 5.5B as set forth in Appendix SS. The committee recommends that if this rule is adopted, the court may wish to consider adopting it as part of the supreme court rules rather than as part of the Professional Conduct Committee rules.

On or before Thursday, December 15, 2005, members of the bench, bar, legislature, executive branch, or public may file with the clerk of the supreme court comments on any of the above rules. An original and seven copies of all comments shall be filed. Comments may also be e-mailed to the court at:

rulescomment@courts.state.nh.us

Copies of the proposed changes are available upon request to the clerk of the supreme court at the N.H. Supreme Court Building, 1 Noble Drive, Concord, New Hampshire 03301 (Tel. 271-2646). In addition, the proposed changes are available on the Internet at:

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

The current rules of the New Hampshire state courts are also available on the Internet at:

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

October 13, 2005

ATTEST: Eileen Fox, Clerk

Supreme Court of New Hampshire

APPENDIX A

Amend Superior Court Rule 14 by amending its title, designating each paragraph thereof as a separate subsection, and by adding a new last paragraph, so that Rule 14 as amended shall provide as follows:

14. (a) The names of the attorneys or parties, who conduct each cause, shall be entered upon the docket; and if the defendant shall neglect to enter an appearance within seven days after the return day of the writ, he shall be defaulted, and judgment shall be rendered accordingly; and no such default shall be stricken off, except by agreement, or by order of the Court upon such terms as justice may require, upon motion and affidavit of defense, specifically setting forth the defense and the facts on which the defense is based.

    (b) Special appearances shall be deemed general thirty days after the return day of the action, unless a special plea or motion to dismiss is filed within that time.

    (c) No person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, unless of good character and until there is on file with the Clerk: (1) a power of attorney signed by the party for whom he or she seeks to appear and witnessed and acknowledged before a Justice of the Peace or Notary Public, constituting said person his or her attorney to appear in the particular action; and (2) an affidavit under oath in which said person discloses (a) all of said person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute), (b) all instances in which said person has been found by any court to have violated a court order or any provision of the rules of professional conduct applicable to nonlawyer representatives, and (c) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court. Any person who is not a lawyer who is permitted to represent any other person before any court of this State must comply with the Rules of Professional Conduct as set forth in Professional Conduct Rule 8.5, and shall be subject to the jurisdiction of the committee on professional conduct.

(d) Limited Appearance of Attorneys. To the extent permitted by Rule 1.2 of the New Hampshire Rules of Professional Conduct, an attorney providing limited representation to an otherwise unrepresented litigant may file a limited appearance on behalf of such unrepresented party; provided, however, that although not prohibited, the provision of limited representation to a client who is involved in litigation and who is entitled as a matter of law to the appointment of counsel is discouraged. The limited appearance shall state precisely the scope of the limited representation, and the attorney’s involvement in the matter shall be limited only to what is specifically stated. The requirements of Superior Court Rule 15(a), (b) and (c) shall apply to every pleading and motion signed by the limited representation attorney. An attorney having filed a limited appearance, who later files a pleading or motion outside the scope of the limited representation (and without filing a subsequent or amended limited representation appearance) shall be deemed to have entered an appearance for the purposes of that new filing, and these rules pertaining to limited representation attorneys shall not apply to such filing. An attorney who signs a writ, petition, counterclaim, cross-claim or any amendment thereto which is filed with the court, will be considered to have filed a general appearance and, for the remainder of that attorney’s involvement in the case, shall not be considered as a limited representation attorney under these rules; provided, however, if such attorney properly withdraws from the case and the withdrawal is allowed by the Court, the attorney could later file a limited appearance in the same matter.

APPENDIX B

Amend Superior Court Rule 15 by deleting it and replacing it with the following:

15. (a) All pleadings and the appearance and withdrawal of counsel shall be signed by the attorney of record or his associate or by a pro se party. Names, addresses and telephone numbers shall be typed or stamped beneath all signatures or papers to be filed or served. No attorney or pro se party will be heard until his appearance is so entered.

    (b) The signature of an attorney to a pleading constitutes a certificate by him that he has read the pleading; that to the best of his knowledge, information and belief there is a good ground to support it; and that it is not interposed for delay.

    (c) If a pleading is not signed, or is signed with an intent to defeat the purpose of this rule, it may be stricken and the action may proceed as though the pleading had not been filed.

    (d) Other than limited representation by attorneys as allowed by Rule 14(d) and Professional Conduct Rule 1.2(f)), no attorney shall be permitted to withdraw that attorney’s appearance in a case after the case has been assigned for trial or hearing, except upon motion to permit such withdrawal granted by the Court for good cause shown, and on such terms as the Court may order. Any motion to withdraw filed by counsel shall set forth the reason therefor but shall be effective only upon approval by the Court. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the attorney's services.

(e) Automatic Termination of Limited Representation. Any limited representation appearance filed by an attorney, as authorized under Professional Conduct Rule 1.2(f)) and Rule 14(d) of this Court, shall automatically terminate upon completion of the agreed representation, without the necessity of leave of Court, provided that the attorney shall provide the Court a "withdrawal of limited appearance" form giving notice to the Court and all parties of the completion of the limited representation and termination of the limited appearance. Any attorney having filed a limited appearance who seeks to withdraw prior to the completion of the limited representation stated in the limited appearance, however, must comply with Rule 15(d).

(f) Pleading Prepared for Unrepresented Party. When an attorney provides limited representation to an otherwise unrepresented party, by drafting a document to be filed by such party with the Court in a proceeding in which (1) the attorney is not entering any appearance, or (2) the attorney has entered a limited appearance which does not include representation regarding such document, 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. Notwithstanding that the identity of the drafting attorney need not be required to be disclosed under this rule, by drafting a pleading to be used in court by an otherwise unrepresented party, the limited representation attorney shall be deemed to have made those same certifications as set forth in Rule 15(b) despite the fact the pleading need not be signed by the attorney.

 

 

 

APPENDIX C

Amend Superior Court Rule 21 by deleting the first paragraph and replacing it with a new first paragraph, so that Rule 21 as amended shall provide as follows:

21. Copies of all pleadings filed and communications addressed to the Court shall be furnished forthwith to all other counsel or to the opposing party if appearing pro se. When an attorney has filed a limited appearance under Rule 14(d) on behalf of an opposing party, copies of pleadings filed and communications addressed to the Court shall be furnished both to the opposing party who is receiving the limited representation and to the limited representation attorney. After the limited representation attorney files that attorney’s "withdrawal of limited appearance" form, as provided in Rule 15(e), no further service need be made upon that attorney. All such pleadings or communications shall contain a statement of compliance herewith.

         A no contact order in a domestic violence, stalking, or similar matter shall not be deemed to prevent either party from filing appearances, motions, and other appropriate pleadings, through the Court.  At the request of the party filing the pleading, the Court shall forward a copy of the pleading to the party or counsel on the other side of the case.  Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel, when both parties are represented.

APPENDIX D

Amend District Court Rule 1.3 by deleting said rule and replacing it with the following:

    A. Anyone addressing the Court or examining a witness shall stand. No-one should approach the bench to address the Court except by leave of the Court.

    B. No attorney shall be compelled to testify in any case in which he is retained, unless he shall have been notified in writing five days previous to the commencement of the trial that he will he summoned as a witness therein, and unless he shall have been so summoned previous to commencement of the trial.

    C. (1) An attorney, who is not a member of the Bar of this State, shall not be allowed to engage in the trial or hearing in any case, except on application to appear pro hac vice, which will not ordinarily be granted unless a member of the Bar of this State is associated with him or her and present at the trial or hearing.

(2) An attorney who is not a member of the Bar of this State seeking to appear pro hac vice shall file a verified application with the court, which shall contain the following information:

   (a) the applicant's residence and business address;

   (b) the name, address and phone number of each client sought to be represented;

   (c) the courts before which the applicant has been admitted to practice and the respective period(s) of admission;

   (d) whether the applicant: (i) has been denied admission pro hac vice in this State; (ii) had admission pro hac vice revoked in this State; or (iii) has otherwise formally been disciplined or sanctioned by any court in this State. If so, the applicant shall specify the nature of the allegations; the name of the authority bringing such proceedings; the caption of the proceedings, the date filed, and what findings were made and what action was taken in connection with those proceedings;

   (e) whether any formal, written disciplinary proceeding has ever been brought against the applicant by any disciplinary authority in any other jurisdiction within the last five years and, as to each such proceeding: the nature of the allegations; the name of the person or authority bringing such proceedings; the date the proceedings were initiated and finally concluded; the style of the proceedings; and the findings made and actions taken in connection with those proceedings;

   (f) whether the applicant has been formally held in contempt or otherwise sanctioned by any court in a written order in the last five years for disobedience to its rules or orders, and, if so: the nature of the allegations; the name of the court before which such proceedings were conducted; the date of the contempt order or sanction, the caption of the proceedings, and the substance of the court's rulings (a copy of the written order or transcript of the oral rulings shall be attached to the application); and

   (g) the name and address of each court or agency and a full identification of each proceeding in which the applicant has filed an application to appear pro hac vice in this State within the preceding two years; the date of each application; and the outcome of the application.

(h) In addition, unless this requirement is waived by the district court, the verified application shall contain the name, address, telephone number and bar number of an active member in good standing of the Bar of this State who will be associated with the applicant and present at any trial or hearing.

(3) The court has discretion as to whether to grant applications for admission pro hac vice. An application ordinarily should be granted unless the court finds reason to believe that such admission:

   (a) may be detrimental to the prompt, fair and efficient administration of justice;

   (b) may be detrimental to legitimate interests of parties to the proceedings other than the client(s) the applicant proposes to represent;

(c) one or more of the clients the applicant proposes to represent may be at risk of receiving inadequate representation and cannot adequately appreciate that risk; or

(d)  the applicant has engaged in such frequent appearances as to constitute common practice in this State.

 
    D. (1) No person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, unless of good character and until there is on file with the Clerk: (a) a power of attorney signed by the party for whom he or she seeks to appear and witnessed and acknowledged before a Justice of the Peace or Notary Public, constituting said person his or her attorney to appear in the particular action; and (b) an affidavit under oath in which said person discloses: (i) all of said person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute); (ii) all instances in which said person has been found by any court to have violated a court order or any provision of the rules of professional conduct applicable to nonlawyer representatives; and (iii) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court. Any person who is not a lawyer who is permitted to represent any other person before any court of this State must comply with the Rules of Professional Conduct as set forth in Professional Conduct Rule 8.5, and shall be subject to the jurisdiction of the committee on professional conduct.

(2) Limited Appearance of Attorneys. To the extent permitted by Rule 1.2 of the New Hampshire Rules of Professional Conduct, an attorney providing limited representation to an otherwise unrepresented litigant may file a limited appearance on behalf of such unrepresented party; provided, however, that although not prohibited, the provision of limited representation to a client who is involved in litigation and who is entitled as a matter of law to the appointment of counsel is discouraged. The limited appearance shall state precisely the scope of the limited representation, and the attorney’s involvement in the matter shall be limited only to what is specifically stated. The requirements of District Court Rule 1.3(E) shall apply to every pleading and motion signed by the limited representation attorney. An attorney having filed a limited appearance, who later files a pleading or motion outside the scope of the limited representation (and without filing a subsequent or amended limited representation appearance) shall be deemed to have entered an appearance for the purposes of that new filing, and these rules pertaining to limited representation attorneys shall not apply to such filing. An attorney who signs a writ, petition, counterclaim, cross-claim or any amendment thereto which is filed with the court, will be considered to have filed a general appearance and for the remainder of that attorney’s involvement in the case, shall not be considered as a limited representation attorney under these rules; provided, however, if such attorney properly withdraws from the case and the withdrawal is allowed by the Court, the attorney could later file a limited appearance in the same matter.

E. (1) All pleadings and the appearance and withdrawal of counsel shall be signed by the attorney of record or an associate or by a pro se party. Names, addresses and telephone numbers shall be typed or stamped beneath all signatures on papers to be filed or served. No attorney or pro se party will be heard until an appearance is so entered.

    The signature of an attorney to a pleading constitutes a certificate that the pleading has been read by the attorney; that to the best of the attorney's knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

    If a pleading is not signed, or is signed with an intent to defeat this rule, it may be stricken and the action may proceed as though the pleading had not been filed.

(2) Pleading Prepared for Unrepresented Party. When an attorney provides limited representation to an otherwise unrepresented party, by drafting a document to be filed by such party with the Court in a proceeding in which (a) the attorney is not entering any appearance, or (b) the attorney has entered a limited appearance which does not include representation regarding such document, 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. Notwithstanding that the identity of the drafting attorney need not be required to be disclosed under this rule, by drafting a pleading to be used in court by an otherwise unrepresented party, the limited representation attorney shall be deemed to have made those same certifications as set forth in Rule 1.3.E.(1) despite the fact the pleading need not be signed by the attorney.

    F. When any party shall change attorneys during the pendency of the action, the name of the new attorney shall be entered on the record.

    G. Whenever the attorney of a party withdraws an appearance in a civil case and no other appearance is entered, the Clerk shall notify the party by mail of such withdrawal, and unless the party appears pro se or through counsel by a date fixed by the Court, the Court may take such action as justice may require.

    H. In a criminal case, whenever the Court approves the withdrawal of appointed defense counsel, the Court shall appoint substitute counsel forthwith and notify the defendant of said appointment by mail.
   
    I. (1) Other than limited representation by attorneys as allowed by Rule 1.3.D.(2), and Professional Conduct Rule 1.2(f)), no attorney shall be permitted to withdraw that attorney’s appearance in a case after the case has been scheduled for trial or hearing, except upon motion to permit such withdrawal granted by the Court for good cause shown, and on such terms as the Court may order. Any motion to withdraw filed by counsel shall clearly set forth the reason therefore and contain a certification that copies have been sent to all other counsel or opposing parties, if appearing pro se, and to counsel's client at the client's last known address, which shall be fully set forth within the body of the motion. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the attorney's services.

    Upon receipt of a motion to withdraw, the Clerk shall schedule a hearing before the Court. Notice by mail shall be sent to all counsel of record, or parties if unrepresented by counsel, and to the client of withdrawing counsel, at the client's last known address as set forth in the motion.
 

  If withdrawing counsel's client fails to appear at said hearing, the Court may, in its discretion, and without further notice to said client, order the trial date continued or make such other order as justice may require.

(2) Automatic Termination of Limited Representation. Any limited representation appearance filed by an attorney, as authorized under Professional Conduct Rule 1.2(f)) and Rule 1.3.D.(2) of this Court, shall automatically terminate upon completion of the agreed representation, without the necessity of leave of Court, provided that the attorney shall provide the Court a "withdrawal of limited appearance" form giving notice to the Court and all parties of the completion of the limited representation and termination of the limited appearance. Any attorney having filed a limited appearance who seeks to withdraw prior to the completion of the limited representation stated in the limited appearance, however, must comply with Rule 1.3.I.(1).

APPENDIX E

Amend District Court Rule 1.3-A by deleting and replacing the first paragraph, and by correcting the spelling of "similar" in the second paragraph, so that Rule 1.3-A as amended shall provide as follows:

Rule 1.3-A.  Pleadings – copies to all parties

        Copies of all pleadings filed and communications addressed to the Court shall be furnished forthwith to all other counsel or to the opposing party if appearing pro se. When an attorney has filed a limited appearance under Rule 1.3.D.(2) on behalf of an opposing party, copies of pleadings filed and communications addressed to the Court shall be furnished both to the opposing party who is receiving the limited representation and to the limited representation attorney. After the limited representation attorney files that attorney’s "withdrawal of limited appearance" form, as provided in Rule 1.3.I.(2), no further service need be made upon that attorney. All such pleadings or communications shall contain a statement of compliance herewith.

        A no contact order in a domestic violence, stalking, or similar matter shall not be deemed to prevent either party from filing appearances, motions, and other appropriate pleadings, through the Court.  At the request of the party filing the pleading, the Court shall forward a copy of the pleading to the party or counsel on the other side of the case.  Furthermore, the no contact provisions shall not be deemed to prevent contact between counsel, when both parties are represented.

 

 

APPENDIX F

Amend Probate Court Rule 14 by amending the title and adding a new third paragraph, so that Rule 14 as amended shall state as follows:

RULE 14.  APPEARANCES – General, Special, and Limited

    Any party may appear before the court in person, or by any citizen of good character, or by an attorney authorized to practice in the courts of this state; provided, however, that no person who is not a lawyer will be permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself until there is on file with the Register: (1) a power of attorney signed by the party for whom he or she seeks to appear and witnessed and acknowledged before a Justice of the Peace or Notary Public, constituting said person his or her attorney to appear in the particular action; and  (2)  an affidavit under oath in which said person discloses (a) all of said person's misdemeanor and felony convictions (other than those in which a record of the conviction has been annulled by statute), (b) all instances in which said person has been found by any court to have violated a court order or any provision of the rules of professional conduct applicable to nonlawyer representatives, and (c) all prior proceedings in which said person has been permitted to appear, plead, prosecute or defend any action for any party, other than himself or herself, in any court.  The person so appearing shall file with the Register a written appearance notice giving his name, his residence, the matter in which he appears, the name of the person or persons for whom he appears and their respective mailing addresses, and the Register shall enter the appearance on the docket.  In contested matters, the notice of appearance shall be forwarded to the adverse party by the party so appearing and certification of such shall be made to the court.  Any person who is not a lawyer who is permitted to represent any other person before any court of this State must comply with the Rules of Professional Conduct as set forth in Professional Conduct Rule 8.5, and shall be subject to the jurisdiction of the committee on professional conduct.  

    Any Party may appear Pro Se, or be represented by an Attorney.  Attorneys and Pro Se Parties shall enter an Appearance Form before filing Pleadings or personally appearing before the Court.  An attorney-in-fact shall attach a copy of the Power of Attorney and affidavit to the Appearance Form.  No Appearance Form shall be required to be filed by the Petitioner, or if represented, by the Petitioner's Attorney or by a guardian ad litem, except as required by the previous paragraph of this rule.

Limited Appearance of Attorneys. To the extent permitted by Rule 1.2 of the New Hampshire Rules of Professional Conduct, an attorney providing limited representation to an otherwise unrepresented litigant may file a limited appearance on behalf of such unrepresented party; provided, however, that although not prohibited, the provision of limited representation to a client who is involved in litigation and who is entitled as a matter of law to the appointment of counsel is discouraged. The limited appearance shall state precisely the scope of the limited representation, and the attorney’s involvement in the matter shall be limited only to what is specifically stated. The requirements of Probate Court Rule 15 shall apply to every pleading and motion signed by the limited representation attorney. An attorney having filed a limited appearance, who later files a pleading or motion outside the scope of the limited representation (and without filing a subsequent or amended limited representation appearance) shall be deemed to have entered an appearance for the purposes of that new filing, and these rules pertaining to limited representation attorneys shall not apply to such filing.

The Appearance Form shall identify the Attorney, or Pro Se Party's name, address, the matter in which the Person appears and the name and address of the Party or Parties for whom the Person appears.

    Copies of the Appearance Form shall be forwarded to all Parties, or if represented, to their Attorneys by the Party so appearing.  A statement of compliance shall accompany all Appearance Forms.

    The filing of an Appearance shall not constitute a general objection or denial.  Any objections or denials must be raised in a separate Pleading.  A Special Appearance shall be deemed a General Appearance thirty (30) days after the Return Day of the action, unless a motion to dismiss on jurisdictional grounds is filed within that time.

 

 

APPENDIX G

Amend Probate Court Rule 15 by deleting it and replacing it with the following:

    (A) All Petitions shall be signed by the Petitioner, except that Petitions requesting equitable relief may be signed by the Petitioner or the Petitioner's Attorney. All bonds, inventories and accounts shall be signed by the Fiduciary. Motions and other Pleadings may be signed by the Party, the Party's Attorney or the attorney's associate. Names shall be typed, stamped or printed beneath all signatures on papers to be filed or served.

    The signature of any Person to a Petition, Motion, or other Pleading constitutes a certification that he or she has read the Pleading; that to the best of his or her knowledge, information and belief there is a good ground to support the Pleading; and that it is not interposed for delay.

    If a Petition, Motion, or other Pleading is not signed, it may be stricken and the action may proceed as though it had not been filed.

(B) Pleading Prepared for Unrepresented Party. When an attorney provides limited representation to an otherwise unrepresented party, by drafting a document to be filed by such party with the Court in a proceeding in which (1) the attorney is not entering any appearance, or (2) the attorney has entered a limited appearance which does not include representation regarding such document, 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. Notwithstanding that the identity of the drafting attorney need not be required to be disclosed under this rule, by drafting a pleading to be used in court by an otherwise unrepresented party, the limited representation attorney shall be deemed to have made those same certifications as set forth in Rule 15(A) despite the fact the pleading need not be signed by the attorney.

APPENDIX H

Amend Probate Court Rule 20 by adding a new subsection 20 A.5 and by deleting and replacing subsections 20 A.3 and 20 A.4 as follows:

3. Attorney for any other party and Guardian ad Litem. Other than limited representation by attorneys as allowed by Rule 14 and Professional Conduct Rule 1.2(f)), an Attorney for any other party and Guardian ad Litem shall file a motion to withdraw with the Register and certify that a copy of the motion has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties. In cases scheduled for a hearing, no motion to withdraw shall be granted except for good cause shown. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the Attorney's services. A Withdrawal is not effective until the motion to withdraw is granted by the Court.

4. Attorney for Respondent. Other than limited representation by attorneys as allowed by Rule 14 and Professional Conduct Rule 1.2(f)), an Attorney for Respondent shall file a motion to withdraw with the Register and certify that a copy of the motion has been forwarded to the Party for whom the Attorney appears at such Party's last known address and to all other Parties.

(a) In cases scheduled for a hearing, no motion to withdraw shall be granted except for good cause shown. A factor which may be considered by the Court in determining whether good cause for withdrawal has been shown is the client's failure to meet his or her financial obligations to pay for the Attorney's services. A Withdrawal is not effective until the motion to withdraw is granted by the Court.

(b) Whenever an Attorney is allowed to withdraw an Appearance, and no other Appearance is contemporaneously entered, the Register shall notify the Party by mail of such withdrawal, and, unless the Party appears pro se or by an Attorney by a date fixed by the Court, any contested matter shall proceed as though that Party has defaulted and does not wish to be heard.

5. Automatic Termination of Limited Representation. Any limited representation appearance filed by an attorney, as authorized under Professional Conduct Rule 1.2(f)) and Rule 14 of this Court, shall automatically terminate upon completion of the agreed representation, without the necessity of leave of Court, provided that the attorney shall provide the Court a "withdrawal of limited appearance" form giving notice to the Court and all parties of the completion of the limited representation and termination of the limited appearance. Any attorney having filed a limited appearance who seeks to withdraw prior to the completion of the limited representation stated in the limited appearance, however, must comply with either 3. or 4., above, as may be applicable.

APPENDIX I

Amend Probate Court Rule 21 by deleting it and replacing it with the following:

Rule 21. PLEADINGS - Copies to all Parties

    
    Any Person filing a Pleading or correspondence with the Court shall forthwith furnish copies to all Attorneys, Pro Se Parties appearing of record, and to all Persons Beneficially Interested, unless excused by the Court for good cause shown. When an attorney has filed a limited appearance under Rule 14 on behalf of an opposing party, copies of pleadings filed and communications addressed to the Court shall be furnished both to the opposing party who is receiving the limited representation and to the limited representation attorney. After the limited representation attorney files that attorney’s "withdrawal of limited appearance" form, as provided in Rule 20.A.5., no further service need be made upon that attorney. All such Pleadings shall contain a statement of compliance. This rule shall not apply to any Pleading for which orders of notice are issued and served upon the parties.

 

APPENDIX J

Amend Professional Conduct Rule 1.2 by deleting said rule and replacing it with the following:

(a) Subject to paragraphs (c), (d), and (e), a lawyer shall abide by a client’s decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation.

(b) A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, social or moral views or activities.

(c) Limited Representation. A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent. In providing limited representation, the lawyer's responsibilities to the client, the court and third parties remain as defined by these Rules as viewed in the context of the limited scope of the representation itself; and court rules when applicable.

(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

(e) It is not inconsistent with the lawyer’s duty to seek the lawful objectives of a client through reasonably available means, for the lawyer to accede to reasonable requests of opposing counsel that do not prejudice the rights of the client, avoid the use of offensive or dilatory tactics, or treat opposing counsel or an opposing party with civility.

(f) Limited Representation in Litigation. In addition to requirements set forth in Rule 1.2(c),

(1) a lawyer may provide limited representation to a client who is or may become involved in a proceeding before a tribunal (hereafter referred to as litigation), provided that the limitations are fully disclosed and explained, and the client gives informed consent to the limited representation. The form set forth in subsection (g) of this rule has been created to facilitate disclosure and explanation of the limited nature of representation in litigation. Although not prohibited, the provision of limited representation to a client who is involved in litigation and who is entitled as a matter of law to the appointment of counsel is discouraged.

(2) a lawyer who has not entered an applicable limited appearance, and who provides assistance in drafting pleadings, shall advise the client to comply with any rules of the tribunal regarding participation of the lawyer in support of a pro se litigant.

(g) Sample form.

 

To help you in litigation, you and a lawyer may agree that the lawyer will represent you in the entire case, or only in certain parts of the case. "Limited representation" occurs if you retain a lawyer only for certain parts of the case.

When a lawyer agrees to provide limited representation in litigation, the lawyer must act in your best interest and give you competent help. However, when a lawyer and you agree that the lawyer will provide only limited help,

· the lawyer DOES NOT HAVE TO GIVE MORE HELP than the lawyer and you agreed.

· the lawyer DOES NOT HAVE TO help with any other part of your case.

If you and a lawyer have agreed to limited representation in connection with litigation, you should complete this form and sign your name at the bottom. Your lawyer will also sign to show that he or she agrees. If you and the lawyer both sign, the lawyer agrees to help you by performing the following limited services:

1. ð Provide you general advice about your legal rights and responsibilities in connection with potential litigation concerning:

_____________________________________________________________________________

_____________________________________________________________________________

which advice shall be provided as:

ð consultation at a one-time meeting, or

ð consultation at an initial meeting and further meetings, telephone calls or correspondence (by mail, fax or email) as needed, or as requested by you

 

2. ð Assist in the preparation of your court or mediation matter regarding ___________

_________________________________________________________________________________ by:

[Case name]

ð explaining court procedures

ð reviewing court papers and other documents prepared by or for you

ð suggesting court papers for you to prepare

ð drafting the following court papers for your use: ______________________________

______________________________

ð legal research and analysis regarding _____________________

ð preparation for court hearing regarding _____________________

___________________________; or

ð preparation for mediation

ð other: _______________________

________________________________________________________________

________________________________

3. ð Representing you in Court regarding ___________________________________________,

[Case name]

ð Motion for ______________________________________________

ð Temporary hearing

ð final hearing

ð trial

ð other: ____________________________________________________________________________________________________________________________________________________________

4. ð Other limited service:_______________________________________________

_________________________________________________________________________

I have read this Consent to Limited Representation Form and I understand what it says. As the lawyer’s client, I agree that the legal services specified above are the only legal help this lawyer will give me. I understand and agree that:

· the lawyer who is helping me with these services is not my lawyer for any other purpose and does not have to give me any more legal help

· the lawyer is not promising any particular outcome

· because of the limited services to be provided, the lawyer has limited his or her investigation of the facts to that necessary to carry out the identified tasks with competence and in compliance with court rules

· if the lawyer goes to court with me, the lawyer does not have to help me afterwards, unless we both agree in writing

I agree the address below is my permanent address and telephone number where I may be reached. I understand that it is important that my lawyer, the opposing party and the court handling my case, if applicable, be able to reach me at this address. I therefore agree that I will inform my lawyer or any Court and opposing party, if applicable, of any change in my permanent address or telephone number.

A separate fee agreement ð was ð was not also signed by me and my lawyer.

__________________________________ ____________________________________

[print or type your name] Client’s Name [print or type your full mailing street/apartment address]

__________________________________ ____________________________________

[sign your name] [print or type City, State and Zip Code]

__________________________________ ____________________________________

Date [print or type your Phone Number]

__________________________________ ____________________________________

[print or type your name] Lawyer’s Name [print or type name of law firm]

__________________________________ ____________________________________

[sign your name] [print or type Street, City, State and Zip Code]

__________________________________ ____________________________________

Date [print or type your Phone Number]

1. This rule differs from the ABA Model Rule by:

Deleting the last two sentences of ABA Model Rule 1.2 (a).

Adding a new second sentence to 1.2(c).

Adding new subsections 1.2(e), 1.2(f), and 1.2(g).

2. The deleted sentences of ABA Model Rule 1.2 (a) provide as follows:

"A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify."

The Committee believes that the particular binding client decisions articulated in the third sentence of Rule 1.2(a) are by no means exclusive. There will obviously be other important client decisions that will be binding upon the lawyer depending upon the fact specific circumstances of any representation. The Committee certainly agrees that the Model Rule sentences correctly state those particular client decisions that are binding upon the lawyer. The Committee also believes, however, that specifically including these in the Rule may be wrongly construed by a lawyer to be the only binding decisions that can be made by a client. A lawyer must always carefully consider all client requests or decisions, in light of all relevant factors, including but not limited to, the particular fact pattern, type of representation, a client’s social and economic considerations, and the scope of representation and earlier decisions reached during the representation. See, e.g., Restatement Third, The Law Governing Lawyers, § 21 ("Allocating the Authority to Decide Between a Client and a Lawyer"), § 22 ("Authority Reserved to a Client"), and § 23 ("Authority Reserved to a Lawyer") (2000).

3. The second sentence of Rule 1.2(c) confirms that lawyers providing limited representation are bound by all professional responsibility rules. The rule also recognizes that these ethical obligations will need to be interpreted, or analyzed, within the context of the limited representation. One example of such an obligation could be the duty, under Rule 1.1(c)(3), to "develop a strategy, in collaboration with the client, for solving the legal problems of the client." A client who retains an attorney for limited purposes may simply want the lawyer to research and provide the applicable law in a specific area, thereby making Rule 1.1(c)(3) inapplicable. Conversely, the lawyer's duty pursuant to Rule 4.1(a) not to make false statements to third persons is the type of fundamental obligation that would remain applicable regardless of the limits placed on the scope of representation.

4. The added provision in Rule 1.2 (e), restates a rule revision that has been adopted (in various forms) in several other states. The Committee believes, especially in light of a growing concern by New Hampshire practicing lawyers for the professionalism of lawyers, that it is appropriate to make a distinction between following client objectives during representation, and the general civility and professionalism expected by all practicing New Hampshire attorneys. The lawyer should also be guided by The New Hampshire Lawyer Professional Creed, adopted April 4, 2001, by the New Hampshire Bar Association Board of Governors (which can be found under "NH Practice Guidelines" on the Bar’s website, www.nhbar.org).

APPENDIX K

Adopt a new Professional Conduct Rule 6.5 as set forth below:

Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

(a) A lawyer who, under the auspices of a program sponsored by the New Hampshire Bar Association, a nonprofit organization or court, provides one-time consultation with a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:

(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2) above, Rule 1.10 is inapplicable to a representation governed by this Rule.

(c) Rules 1.6 and 1.9(c) are applicable to a representation governed by this Rule.

 

1. New Hampshire’s version differs from the ABA Model Rule as follows:

a. Application of this Rule in (a) is limited to a "one time consultation with a client" instead of the ABA’s version "short-term limited legal services to a client."

b. Section (c ) is added.

2. The change in (a) is intended to give the attorney some clarity as to the scope of this Rule. This Rule relaxes certain of the normal conflicts limitations to allow this important pro bono service. This Rule applies only under circumstances where it is not reasonably possible for the attorney to otherwise comply with normal conflict of interest record check procedures. Therefore, the situation where an attorney provides repeated services for the same client, and not a "one time consultation", would not permit any deviation from the normal conflicts rules.

3. The addition of Section (c) is intended simply to emphasize the attorney's continuing responsibility to maintain confidences under Rule 1.6, and the attorney's duties to a former client under Rule 1.9(c). This inclusion raises this language, already contained in ABA Comment [2], to Rule status.

4. The value of the services rendered to the public in this pro bono context is important enough to justify carving out a special exception to the normal conflicts rules applicable in general client representation. In this special context, not even the protective "screening" rules, such as those adopted in 1.11(b), were employed.

5. Should a lawyer participating in a one-time consultation under this Rule later discover that the lawyer's firm was representing or later undertook the representation of an adverse client, the prior participation of the attorney will not preclude the lawyer's firm from continuing or undertaking representation of such adverse client. But the participating lawyer will be disqualified and must be screened from any involvement with the firm's adverse client. See ABA Comment [4].

 

 

APPENDIX L

Amend Professional Conduct Rule 1.16 by deleting it and replacing it with the following:

(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if:

(1) the representation will result in violation of the rules of professional conduct or other law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or

(3) the lawyer is discharged.

(b) Except as stated in paragraph (c), a lawyer may withdraw from representing a client if:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

(c) A lawyer must comply with the applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.

(d) As a condition to termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice of the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by law.

(e) The representation of a lawyer having entered a limited appearance as authorized by the tribunal under a limited representation agreement under Rule 1.2(f)(1), shall terminate upon completion of the agreed representation, without the necessity of leave of court, upon providing notice of completion of the limited representation to the court.

  APPENDIX M

Amend Professional Conduct Rule 4.2 by adding a new sentence to the end of the rule, so that Rule 4.2 as amended shall provide as follows:

Rule 4.2. Communication With Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order. An otherwise unrepresented party to whom limited representation is being provided or has been provided in accordance with Rule 1.2(f)(1) is considered to be unrepresented for purposes of this Rule, except to the extent the limited representation lawyer provides other counsel written notice of a time period within which other counsel shall communicate only with the limited representation lawyer.

APPENDIX N

Amend Professional Conduct Rule 4.3 by adding a sentence to the end of said rule, so that Rule 4.3 as amended shall state as follows:

Rule 4.3. Dealing With Unrepresented Person

    
    In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.

  APPENDIX O

Adopt on a permanent basis Supreme Court Rule 3, as amended, which was adopted on a temporary basis by supreme court orders dated November 12, 2003, April 21, 2004, and September 7, 2005, and which provides as follows:

"Administrative agency": Includes agency, board, commission, or officer.

"Appeal": Appellate review of rulings adverse to a party, after a final decision on the merits in a lower court.

"Appeal document": Includes notice of mandatory appeal (rule 7), notice of discretionary appeal (rule 7), interlocutory appeal (rule 8), interlocutory transfer without ruling (rule 9), appeal from administrative agency by petition (rule 10), and petition for original jurisdiction (rule 11).

"Appeal from administrative agency by petition": Appellate review of a party's grounds for asserting that an administrative agency's final order or decision on the merits is unlawful or unreasonable.

"Briefs":

"Opening brief": The brief filed first pursuant to court order.

"Opposing brief": The brief filed by the opposing party after the filing of the opening brief.

"Reply brief": See rule 16(7).

"Supplemental brief": See rule 16(7).

"Clerk": Where the context refers to the clerk of a lower court, "clerk" includes a clerk of a lower court, a register of probate, or the administrative agency official who is the equivalent of a clerk of court or who is charged with performing the duties associated with a clerk of court, and their respective assistants and deputies; where the context refers to the clerk of the supreme court, "clerk" includes his or her assistants and deputies.

"Decision on the merits": Includes order, verdict, opinion, decree, or sentence following a hearing on the merits or trial on the merits and the decision on motions made after such order, verdict, opinion, decree or sentence. Untimely filed post-trial motions will not stay the running of the appeal period unless the lower court waives the untimeliness within the appeal period.

"Declination of acceptance order": The supreme court does not deem it desirable to review the issues in a case, as a matter of sound judicial discretion and with no implication whatever regarding its views on the merits.

"First class mail": First class postage prepaid, whether certified, registered, uncertified, or unregistered.

"Interlocutory appeal": Appellate review of rulings adverse to a party, before a final decision on the merits in a lower court.

"Interlocutory transfer without ruling": Appellate review of questions of law transferred by a lower court or administrative agency before a final decision on the merits in the lower court or administrative agency and without ruling by the lower court or administrative agency.

"Mandatory appeal": A mandatory appeal shall be accepted by the supreme court for review on the merits. A mandatory appeal is an appeal filed by the State pursuant to RSA 606:10, or an appeal from a final decision on the merits issued by a superior court, district court, probate court, or family division court, that is in compliance with these rules, other than the following:

(1) an appeal from a final decision on the merits issued in a post-conviction review proceeding (including petitions for writ of habeas corpus and motions for new trial);

(2) an appeal from a final decision on the merits issued in a collateral challenge to any conviction or sentence;

(3) an appeal from a final decision on the merits issued in a sentence modification or suspension proceeding;

(4) an appeal from a final decision on the merits issued in an imposition of sentence proceeding;

(5) an appeal from a final decision on the merits issued in a parole revocation proceeding;

(6) an appeal from a final decision on the merits issued in a probation revocation proceeding; and

(7) an appeal from a final decision on the merits issued in a landlord/tenant action filed under RSA chapter 540 or in a possessory action filed under RSA chapter 540.

Comment

The amendment to this rule that added paragraph (7) above shall apply to any appeal of a landlord-tenant or possessory action under RSA chapter 540 in which the notice of appeal is docketed in the supreme court on or after October 15, 2005.

 

"Moving party": The plaintiff in an interlocutory transfer, the party appealing by appeal or by interlocutory appeal, or the party petitioning that the supreme court exercise its original jurisdiction.

"Notice of appeal": The notice filed to initiate an appeal from the lower court's final decision on the merits, in the form prescribed by these rules.

"Petition for original jurisdiction": Request that the supreme court exercise its original jurisdiction, whether exclusive or nonexclusive and whether in aid of its appellate jurisdiction or its supervisory jurisdiction, and that the court issue an extraordinary writ or grant other suitable relief.

"Trial court reporter": Lower court or administrative agency reporter.

The amendments to Supreme Court Rules 3, 5, 6, 7, 10, 13, 15, 16, 17, 18, 21, and 25 that take effect on January 1, 2004, shall apply to any case first docketed in the supreme court on or after January 1, 2004; that is, any case with a docket number of "2004-XXXX." Any case docketed in the supreme court prior to January 1, 2004, e.g., cases with docket numbers such as "2003-XXXX" or "2002-XXXX," shall not be governed by the aforesaid amendments.

APPENDIX P

Adopt on a permanent basis Supreme Court Rule 5(1), which was adopted on a temporary basis by supreme court order dated November 12, 2003, and which provides as follows:

(1) In an interlocutory appeal from a ruling and in an appeal from an administrative agency by petition, the party appealing, and in an interlocutory transfer without ruling and in a petition requesting the supreme court to exercise its original jurisdiction, the plaintiff shall pay the entry fee prescribed by the supreme court and shall simultaneously file the original and 12 copies of the required forms in the office of the clerk of this court, 1 copy with each of the parties, and 2 (where appropriate, 3) copies with the office of the clerk of the court or agency from which the appeal or transfer is taken (including a register of probate), 1 each of which copies shall be furnished to the trial judge and master by that clerk.

In an appeal from a lower court decision on the merits pursuant to Rule 7 other than a mandatory appeal, the party appealing shall pay the entry fee prescribed by the supreme court and, unless differently provided by law, shall simultaneously file the original and 12 copies of the notice of appeal and of the attachments mentioned on the applicable notice of appeal form, in the office of the clerk of this court, 1 copy with each of the parties, and 2 (or where appropriate, 3) copies with the office of the clerk of the court from which the appeal is taken (including a register of probate). The latter clerk shall provide a copy to the judge and master.

In a mandatory appeal from a lower court decision on the merits pursuant to rule 7, the party appealing shall pay the entry fee prescribed by the supreme court and, unless differently provided by law, shall simultaneously file the original and 3 copies of the notice of appeal and the attachments mentioned on the applicable notice of appeal form in the office of the clerk of this court, 1 copy with each of the parties, and 2 (or where appropriate, 3) copies with the office of the clerk of the court from which the appeal is taken (including a register of probate). The latter clerk shall provide a copy to the judge and master.

In all criminal appeals and appeals from an administrative agency, the appealing party shall simultaneously file 1 copy of the notice of appeal with the attorney general.

A cross-appeal by another party shall be docketed in the same manner, accompanied by the required entry fee, subject to rule 7(5) or rule 10(9).

A motion to extend time to file an appeal document, when not accompanied by the appeal document, shall be docketed upon the filing of an original and 7 copies of the motion, accompanied by the required entry fee. The moving party shall simultaneously file 1 copy with each of the parties, 1 copy with the office of the clerk of the court or agency from which the appeal or transfer is taken, and (in the case of a criminal appeal or an appeal from an administrative agency) 1 copy with the attorney general. A motion to extend time to file an appeal shall be granted only in exceptional circumstances. See Rule 21(6).

The amendments to Supreme Court Rules 3, 5, 6, 7, 10, 13, 15, 16, 17, 18, 21, and 25 that take effect on January 1, 2004, shall apply to any case first docketed in the supreme court on or after January 1, 2004; that is, any case with a docket number of "2004-XXXX." Any case docketed in the supreme court prior to January 1, 2004, e.g., cases with docket numbers such as "2003-XXXX" or "2002-XXXX," shall not be governed by the aforesaid amendments.

 

 

 

  APPENDIX Q

Adopt on a permanent basis Supreme Court Rule 6, which was adopted on a temporary basis by supreme court order dated November 12, 2003, and which provides as follows:

(1) Filings of cases and appendices 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 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 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.

    (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.

The amendments to Supreme Court Rules 3, 5, 6, 7, 10, 13, 15, 16, 17, 18, 21, and 25 that take effect on January 1, 2004, shall apply to any case first docketed in the supreme court on or after January 1, 2004; that is, any case with a docket number of "2004-XXXX." Any case docketed in the supreme court prior to January 1, 2004, e.g., cases with docket numbers such as "2003-XXXX" or "2002-XXXX," shall not be governed by the aforesaid amendments.

APPENDIX R

Adopt on a permanent basis Supreme Court Rule 7, which was adopted on a temporary basis by supreme court order dated November 12, 2003, and which provides as follows:

    (1) (A) Mandatory appeals.

Unless otherwise provided by law or by these rules, a mandatory appeal shall be by notice of appeal in the form of notice of appeal approved by the supreme court for the filing of a mandatory appeal. The form of notice of appeal for the filing of a mandatory appeal appears in the appendix to these rules ("Notice of Mandatory Appeal" form). Such an appeal shall be filed by the moving party within 30 days from the date on the clerk's written notice of the decision on the merits.

(B) Other appeals from lower court decisions on the merits.

The supreme court may, in its discretion, decline to accept an appeal, other than a mandatory appeal, or any question raised therein, from a lower court after a decision on the merits, or may summarily dispose of such an appeal, or any question raised therein, as provided in rule 25. Unless otherwise provided by law or by these rules, an appeal from a lower court decision on the merits other than a mandatory appeal shall be by notice of appeal in the form of notice of appeal approved by the supreme court for the filing of such an appeal. The form of notice of appeal for the filing of an appeal from a lower court decision on the merits other than a mandatory appeal appears in the appendix to these rules ("Notice of Discretionary Appeal" form). Such an appeal shall be filed by the moving party within 30 days from the date on the clerk's written notice of the decision on the merits.

(C) The definition of "decision on the merits" in rule 3 includes decisions on motions made after an order, verdict, opinion, decree or sentence. A timely filed post-trial motion stays the running of the appeal period for all parties to the case in the lower court including those not filing the motion. Untimely filed post-trial motions will not stay the running of the appeal period unless the lower court waives the untimeliness within the appeal period. Successive post-trial motions will not stay the running of the appeal period. See Petition of Ellis, 138 N.H. 159 (1993).

In criminal appeals, the time for filing a notice of appeal shall be within 30 days from the date of sentencing or the date of the clerk's written notice of disposition of post-trial motions, whichever is later, provided, however, that the date of the clerk's written notice of disposition of post-trial motion shall not be used to calculate the time for filing a notice of appeal in criminal cases if the post-trial motion was filed more than 10 days after sentencing.

  (2) An appeal shall be deemed filed when the original and all copies of the notice of appeal in proper form, together with the filing fee, are received by the clerk of this court within 30 days from the date on the clerk's written notice of the decision.

   (3) An appeal permitted by law on a different form and by a different procedure shall be deemed timely filed when it is received by the clerk of this court on the form and by the procedure prescribed by law.

   (4) All parties to the proceedings in the court from whose decision on the merits the appeal is being taken shall be deemed parties in this court, unless the moving party shall notify the clerk of this court in writing of his belief that one or more of the parties below has no interest in the outcome of the transfer. The moving party shall mail a copy of the letter first class, or give a copy, to each party in the proceeding below. A party thus designated as no longer interested may remain a party in this court by notifying the clerk of this court, with notice mailed first class or given to the other parties, that he has an interest in the transfer. Parties supporting the position of the moving party shall meet the time schedule provided for that party.

(5) If a timely notice of appeal is filed by a party, any other party may file a notice of cross-appeal within 10 days from the date on which the first notice of appeal was filed and shall pay a filing fee therewith.

(6) (A) The appealing party in a mandatory appeal shall attach to the notice of appeal the decision below, the clerk's written notice of the decision below, any order disposing of a timely-filed post-trial motion, and the clerk's written notice of any order disposing of a timely-filed post-trial motion.

(B) The appealing party in an appeal other than a mandatory appeal shall attach to the notice of appeal the decision below, the clerk's written notice of the decision below, any order disposing of a timely-filed post-trial motion, and the clerk's written notice of any order disposing of a timely-filed post-trial motion. Any other pleadings and documents that the appealing party believes are necessary for the court to evaluate the specific questions raised on appeal and to determine whether the appeal is timely filed shall be filed as a separate appendix. The appendix shall contain a table of contents referring to numbered pages, and only 8 copies shall be filed. Note: Also see rule 26(5). If a ground for appeal is the legal sufficiency of the evidence, the question in the notice of appeal form raising that ground shall contain a succinct statement of why the evidence is alleged to be insufficient as a matter of law.

The amendments to Supreme Court Rules 3, 5, 6, 7, 10, 13, 15, 16, 17, 18, 21, and 25 that take effect on January 1, 2004, shall apply to any case first docketed in the supreme court on or after January 1, 2004; that is, any case with a docket number of "2004-XXXX." Any case docketed in the supreme court prior to January 1, 2004, e.g., cases with docket numbers such as "2003-XXXX" or "2002-XXXX," shall not be governed by the aforesaid amendments.

APPENDIX S

Adopt on a permanent basis Supreme Court Rule 7-A, which was adopted on a temporary basis by supreme court order dated November 12, 2003, and which provides as follows:

(1) A motion to stay an order or judgment of a lower tribunal shall not be filed in this court unless the movant has first unsuccessfully sought similar relief from the lower tribunal. This requirement may be waived by the court upon motion in extraordinary circumstances. Any motion to stay shall be accompanied by a copy of the request for similar relief filed with the lower tribunal, any objection filed thereto, and the lower tribunal's order denying such relief. In addition, any motion to stay shall be accompanied by a copy of the order or judgment which the motion seeks to have stayed.

(2) A motion for remand or partial remand shall be accompanied by a copy of the pleading(s) that the movant intends to file with the lower tribunal if the motion is granted. Unless the court orders otherwise, the grant of a partial remand shall not stay the proceedings in this court.

Perfection of an appeal vests exclusive jurisdiction in the supreme court over those matters arising out of, and directly related to, the issues presented by the appeal. See Rautenberg v. Munnis, 107 N.H. 446, 447 (1966). The trial court is not in a position to act on such matters while an appeal is pending unless the case is remanded for that purpose. See id. at 448. Rautenberg also recognized, however, that the trial court is not prohibited from passing on collateral, subsidiary or independent matters affecting the case and the trial court has adequate authority and jurisdiction to preserve the status quo. See id.

In addition, Superior Court Rule 74 provides that a decree does not go to final judgment if a timely appeal is taken to the supreme court. See Rollins v. Rollins, 122 N.H. 6, 9 (1982). Thus, in an appeal from a divorce decree, for example, a timely appeal will prevent the trial court's final decree from going into effect, and the temporary decree would remain in effect while the appeal is pending. See id. at 10. Rollins also recognized, however, that the trial judge has the authority to order that the final decree, at least in part, is to be in effect while the appeal was pending, and that an appellant's only recourse in such a case was to obtain a stay of that order in the trial court or the supreme court. See id. (final decree as to level of child support held to be in effect while appeal was pending); Nicolazzi v. Nicolazzi, 131 N.H. 694, 696 (1989) (acknowledging trial court's discretion to set levels of alimony and child support to be paid during appeal).

This rule is intended to: (1) provide a procedural mechanism for requesting a stay of the judgment of a lower tribunal that is not stayed by the filing of a timely appeal; and (2) provide a procedural mechanism for requesting a remand or partial remand to a lower tribunal when necessary to allow the lower tribunal to act upon a matter that is not a collateral, subsidiary or independent matter affecting the case.

APPENDIX T

Adopt on a permanent basis Supreme Court Rule 10(1), 10(2) and 10(3), which were adopted on a temporary basis by supreme court order dated November 12, 2003, and which provide as follows:

(1) The supreme court may, in its discretion, decline to accept an appeal, or any question raised therein, from an order of an administrative agency, or may summarily dispose of such an appeal, or any question raised therein, as provided in rule 25. Review of an order of an administrative agency, when authorized by law, shall be obtained by filing the original and 12 copies of (a) an appeal under RSA 541; (b) in the case of an appeal from the department of employment security, an appeal under RSA 282-A:67; or (c) a petition for writ of certiorari if otherwise, accompanied by the required entry fee within the time prescribed by law. No entry fee will be required for an appeal filed by an individual claiming benefits under the unemployment compensation statute in accordance with RSA 282-A:158.

 

NOTE: To appeal to the supreme court from an administrative agency under RSA 541, the appealing party must have timely filed for a rehearing with the administrative agency. See RSA 541:4 and Appeal of White Mountains Education Association, 125 N.H. 771 (1984). The time period for the appeal does not begin to run until the administrative agency has acted upon the motion.

The appeal or petition, including any appeal from the department of employment security filed pursuant to RSA 282-A:67, shall as far as possible and in the order listed below:

(a) Specify the names of the parties seeking review of the order, the names of all other parties of record, the names of all counsel, and the addresses of all parties and counsel.

 

(b) Contain, or have annexed to it, a copy of the administrative agency's findings and rulings, a copy of the order sought to be reviewed, a copy of the motion for rehearing and all objections thereto, and a copy of the order on the motion for rehearing. The appeal or petition, and any appendix that may be filed, shall contain a table of contents.

 

(c) Specify the questions presented for review, expressed in the terms and circumstances of the case, but without unnecessary detail. The statement of a question presented will be deemed to include every subsidiary question fairly comprised therein. Only the questions set forth in the petition or fairly comprised therein will be considered by the court.

 

(d) Specify the provisions of the constitutions, statutes, ordinances, rules, or regulations involved in the case, setting them out verbatim, and giving their citation. If the provisions to be set out verbatim are lengthy, their citation alone will suffice at that point and their pertinent text shall be annexed to the petition. If the provisions aggregate more than 5 pages, their text may be filed as a separate appendix, including a table of contents referring to numbered pages, and only 8 copies shall be filed.

 

(e) Specify the provisions of insurance policies, contracts, or other documents involved in the case, setting them out verbatim. If the provisions to be set out verbatim are lengthy, their pertinent text shall be annexed to the petition. If the provisions aggregate more than 5 pages, their text may be filed as a separate appendix, including a table of contents referring to numbered pages, and only 8 copies shall be filed.

 

(f) Set forth a concise statement of the case containing the facts material to the consideration of the questions presented, with appropriate references to the transcript, if any.

 

(g) State the jurisdictional basis for the appeal, citing the relevant statutes or cases.

 

(h) A direct and concise statement of the reasons why a substantial basis exists for a difference of opinion on the question and why the acceptance of the appeal would protect a party from substantial and irreparable injury, or present the opportunity to decide, modify or clarify an issue of general importance in the administration of justice.

(i) A statement that every issue specifically raised has been presented to the administrative agency and has been properly preserved for appellate review by a contemporaneous objection or, where appropriate, by a properly filed pleading.

(2) The order sought to be reviewed or enforced, the findings and rulings, or the report on which the order is based, and the pleadings, evidence, and proceedings before the agency shall constitute the record on appeal.

(3) The administrative agency, complying with the provisions of rule 6(2) as to form, shall file the record with the clerk of the supreme court as early as possible within 60 days after it has received the supreme court's order of notice. The original papers in the agency proceeding or certified copies may be filed. At the beginning of the record there shall be inserted a table of contents with references to the page of the record at which each item listed in the table of contents begins.

The amendments to Supreme Court Rules 3, 5, 6, 7, 10, 13, 15, 16, 17, 18, 21, and 25 that take effect on January 1, 2004, shall apply to any case first docketed in the supreme court on or after January 1, 2004; that is, any case with a docket number of "2004-XXXX." Any case docketed in the supreme court prior to January 1, 2004, e.g., cases with docket numbers such as "2003-XXXX" or "2002-XXXX," shall not be governed by the aforesaid amendments.

APPENDIX U

Adopt on a permanent basis Supreme Court Rule 13, which was adopted on a temporary basis by supreme court orders dated November 12, 2003, December 30, 2003, and September 10, 2004, and which provides as follows:

RULE 13. THE RECORD

(1) The papers and exhibits filed and considered in the proceedings in the lower court or administrative agency from which the questions of law have been transferred, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court or administrative agency shall be the record in all cases entered in the supreme court.

(2) The moving party shall be responsible for ensuring that all or such portions of the record relevant and necessary for the court to decide the questions of law presented by the case are in fact provided to the supreme court. The supreme court may dismiss the case for failure to comply with this requirement.

(3) The supreme court will not ordinarily review any part of the record that has not been provided to it in an appendix by a party or transmitted to it by the lower court or administrative agency. See Rules 13(2), 17(1). Unless a party believes that providing a copy in an appendix of a paper or exhibit filed below would be impracticable or inadequate for appellate review, a party seeking to provide a paper or exhibit to the supreme court shall file a copy of the paper or exhibit in an appendix to the party's brief, which shall be filed on or before the date established for filing the party's brief.

(4) If a party believes that providing a copy in an appendix of any papers or exhibits filed below would be impracticable or inadequate for appellate review, the party shall file a motion with the supreme court on or before the date established for filing the party's brief, requesting that the supreme court order the lower court or administrative agency to transmit the papers or exhibits in question to the supreme court. The motion shall designate the papers and exhibits in question, and shall show cause why providing a copy in an appendix would be insufficient or inadequate for appellate review.

(5) Neither the original nor a reproduction of the record nor any part of the record shall be transmitted to the supreme court by the lower court or administrative agency from which the questions of law have been transferred, unless a supreme court order, rule, or form expressly requires such a transmittal.

(6) In lieu of the record as defined in section (1) of this rule, the parties may prepare and sign an original and 12 copies of a statement of the case showing how the questions of law transferred arose and were decided, and setting forth only so many of the agreed facts as are essential to a decision of the questions presented.

(7) If more than one transfer of questions of law in a case is made to the supreme court, each moving party shall comply with the provisions of rule 14(1) and of this rule and a single record shall be transmitted.

Transition Period

The amendments to Supreme Court Rules 3, 5, 6, 7, 10, 13, 15, 16, 17, 18, 21, and 25 that take effect on January 1, 2004, shall apply to any case first docketed in the supreme court on or after January 1, 2004; that is, any case with a docket number of "2004-XXXX." Any case docketed in the supreme court prior to January 1, 2004, e.g., cases with docket numbers such as "2003-XXXX" or "2002-XXXX," shall not be governed by the aforesaid amendments.

APPENDIX V

Adopt on a permanent basis Supreme Court Rule 15, which was adopted on a temporary basis by supreme court orders dated November 12, 2003, and September 10, 2004, and which provides as follows:

(1) Counsel shall attempt to enter into stipulations, such as an agreed statement of facts, that will reduce the size of transcripts or avoid them completely. If such a stipulation is entered into, an original and 12 copies thereof must be filed with the clerk's office if it is not included in the notice of appeal.

(2) (a) Mandatory appeals. The moving party shall have completed the notice of appeal form which includes the transcript information, including the date of the proceedings to be transcribed, the length of the proceedings, the name(s) of any court reporters, and the deposit required. A transcript of the parts of the proceedings necessary for appeal and not already on file in the lower court from which the questions of law have been transferred shall be prepared. The supreme court clerk's office shall issue a scheduling order notifying the moving party to pay the deposit for the transcript to the clerk of the lower court within 15 days from the date on the written notice or have the appeal deemed waived or have the case dismissed. Upon timely receiving the required deposit, the lower court clerk shall immediately notify the court reporter to proceed with the transcription and shall notify the clerk of the supreme court that the court reporter has been so notified. If the lower court clerk does not timely receive the required deposit, the clerk shall immediately so notify the clerk of the supreme court. For the purposes of initial assessment of transcription costs pursuant to this rule, any party filing an appeal may be considered a moving party, and in cases of multiple appeals, the court, within its discretion, may assess transcription costs as justice requires.

(b) Other appeals from lower court decisions on the merits. The moving party shall have completed the notice of appeal form which includes the transcript information, including the date of the proceedings to be transcribed, the length of the proceedings, the name(s) of any court reporters, and the deposit required. If the appeal is accepted by the court for briefing, the supreme court clerk's office shall issue a scheduling order notifying the moving party to pay the deposit for the transcript to the clerk of the lower court within 15 days from the date on the written notice or have the appeal deemed waived or have the case dismissed. Upon timely receiving the required deposit, the lower court clerk shall immediately notify the court reporter to proceed with the transcription and shall notify the clerk of the supreme court that the court reporter has been so notified. If the lower court clerk does not timely receive the required deposit, the clerk shall immediately so notify the clerk of the supreme court. For the purposes of initial assessment of transcription costs pursuant to this rule, any party filing an appeal may be considered a moving party, and in cases of multiple appeals, the court, within its discretion, may assess transcription costs as justice requires.

(3) If the moving party intends to argue in the supreme court that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless otherwise ordered by the supreme court, the transcript shall contain all the oral proceedings except opening statements, medical testimony, arguments, and charge.

(4) Unless the parties agree, or the court otherwise orders, the trial court reporter shall produce a completed original and 2 copies of a transcript as early as possible within 45 days after the reporter is notified by the lower court clerk to proceed with the transcription. Requests for extensions of time in which to prepare a transcript shall not be favored, but a trial court reporter may request that the supreme court grant an extension of time. Such a request shall give the reasons for the need for an extension. The trial court reporter shall send a copy of the letter to the chief justice of the superior court.

(5) The supreme court may order that the preparation of a transcript in a case be given immediate attention.

(6) The original transcript shall be transmitted to the supreme court as part of the record on appeal, and the copies shall be transmitted to the parties.

(7) The trial court reporter shall bind the transcript in a volume or volumes, with the pages consecutively numbered throughout all volumes. The transcript shall be indexed. The index in the first volume shall refer to the number of each volume and the page, and shall be cumulative for all volumes; the index in each other volume shall cover the subject matter in that volume. The index shall list each witness alphabetically, and under the name of the witness, shall refer to the page number where the direct and each other examination of the witness begins. There shall be a list of exhibits by number or letter, with a brief indication of the nature of the contents, and a list of the pages of the transcript where each exhibit has been identified, offered, received, or rejected. There shall be a list of other important parts of the trial that may have been transcribed, such as opening statements, arguments to the jury, and instructions, with a reference to the page where each begins.

(8) The court may order the State or the appealing party in every case in which the State is not a party to file with the clerk of the supreme court a copy of the transcript immediately after oral argument or immediately after the case is submitted for decision on the briefs and without oral argument.

The amendments to Supreme Court Rules 3, 5, 6, 7, 10, 13, 15, 16, 17, 18, 21, and 25 that take effect on January 1, 2004, shall apply to any case first docketed in the supreme court on or after January 1, 2004; that is, any case with a docket number of "2004-XXXX." Any case docketed in the supreme court prior to January 1, 2004, e.g., cases with docket numbers such as "2003-XXXX" or "2002-XXXX," shall not be governed by the aforesaid amendments.

APPENDIX W

Adopt on a permanent basis Supreme Court Rule 16, which was adopted on a temporary basis by supreme court order dated November 12, 2003, as amended by supreme court order dated September 10, 2004, and which provides as follows:

(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 inch on 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 and addresses 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.

(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.

(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 copy of the decision(s) below that are being appealed or reviewed.

(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 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 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 12 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, 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 clerk of the supreme court shall not accept any brief or memorandum of law after a case has been argued or submitted, unless the supreme 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 plaintiff in the lower court or in the administrative agency shall be deemed the moving party for the purposes of this rule, unless the parties agree or the court orders differently. 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.

(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.

Citations to Supreme Court of the United States cases that cannot be made to the official United States Reports or to the Supreme Court Reporter shall include the month, day, and year of decision or a reference to United States Law Week. Citations to other federal decisions not presently reported shall identify the court, docket number, and date.

Citations to the decisions of this court may be to the New Hampshire Reports only. Citations to other State court decisions may either be: (a) to the official report and to the West Reporter system, with the year of decision; or (b) to the West Reporter only, in which case the citation should identify the State court by name or level, and should mention the year of decision. 

(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 party filing a brief shall also conclude the brief, when applicable, with a statement that the party waives oral argument or that the party requests oral argument. A party requesting oral argument shall designate the lawyer to be heard if there are two or more lawyers on the party's side and shall estimate the time not exceeding 15 minutes for such argument.

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).

(11) Each brief and memorandum of law shall consist of standard sized typewriter characters or size 12 font produced on one side of each leaf only. The text shall be double spaced.

Except by permission of the court received in advance, no reply brief (or response thereto) shall exceed 10 pages, and no other brief shall exceed 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. 

(12)  Failure of the appealing party to file a brief shall constitute a waiver of the appeal and the case shall be dismissed.

The amendments to Supreme Court Rules 3, 5, 6, 7, 10, 13, 15, 16, 17, 18, 21, and 25 that take effect on January 1, 2004, shall apply to any case first docketed in the supreme court on or after January 1, 2004; that is, any case with a docket number of "2004-XXXX." Any case docketed in the supreme court prior to January 1, 2004, e.g., cases with docket numbers such as "2003-XXXX" or "2002-XXXX," shall not be governed by the aforesaid amendments.

APPENDIX X

Adopt on a permanent basis Supreme Court Rule 17, which was adopted on a temporary basis by supreme court order dated November 12, 2003, and which provides as follows:

(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 12 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. 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.