To: Professor Bill Dorsaneo

From: Chief Justice John Cayce

Date: December 27, 2000

Re: Elimination of Mandatory Parallel Briefing Tracks for Cross-Appeals

I am writing to ask that the appellate rules subcommittee consider recommending to the entire SCAC that the briefing rules be amended to eliminate mandatory parallel briefing tracks for ordinary cross-appeals in the courts of appeals.

Under the current appellate rules, any party who seeks to alter the trial court's judgment must file a notice of appeal and, because they are an "appellant," must file an appellant's brief. Tex. R. App. P. 3.1(a), 25.1(c), 38.6(a), 38.8(a). As you know, one consequence of these rules is that when a cross-appeal is filed the same parties file twin briefs as both appellant and appellee. For example, in a simple two-party appeal in which the prevailing party in the trial court seeks a more favorable award of attorney's fees, and thus files a cross-appeal to complain of the attorney's fees award, the current rules permit a combined total of six briefs: two appellant's briefs, two appellee's briefs, and two reply briefs. By contrast, typical briefing under the former rules would have produced only three briefs (an appellant's brief, an appellee's brief containing a cross-point, and a reply brief).

Based on my unscientific poll of intermediate appellate court justices and appellate lawyers, no one favors parallel briefing in ordinary cross-appeals. Although the problems associated with parallel briefing are not unmanageable, processing twin sets of briefs filed by different parties having identical party designations is often confusing, inconvenient and wasteful. I, therefore, recommend that we return to the former practice of allowing cross-appeals in the courts of appeals to be briefed in the appellee's brief, rather than a separate appellant's brief. To accomplish this, I suggest the adoption of a rule similar to Fed. R. App. P. 28(h) which designates the first party who files a notice of appeal as the "appellant" for briefing purposes. Under this federal rule, when a cross-appeal is filed, there is one appellant and one appellant's brief. Specifically, that rule provides in pertinent part:

If a cross-appeal is filed, the party who files a notice of appeal first is the appellant for the purposes of this rule . . . . If notices are filed on the same day, the plaintiff in the proceeding below is the appellant. These designations may be modified by agreement of the parties or by court order. With respect to appellee's cross-appeal and response to appellant's brief, appellee's brief must conform to the [requirements for the appellant's brief].

Fed. R. App. P. 28(h). Fifth Circuit Local Rule 28 goes on to provide that the appellee/cross-appellant should file "a single brief containing both the argument as an appellant and the response to the opening brief. The appellant/cross-appellee [may then] file a combined response and reply." 5^th Cir. R. 28.4.

In cases involving multiple appellants, or where the nature and complexity of the cross-appeal justifies a separate briefing track for the cross-appellant, the courts of appeals should have the discretion to order separate briefing tracks, or make any other order "necessary for a satisfactory submission of the case." See Tex. R. App. P. 38.9. We may also permit longer briefs under Tex. R. App. P. 38.4.

Incidentally, I am not suggesting that the supreme court briefing rules be changed. Although there is parallel briefing in the supreme court when two or more parties file a petition for review, cross or conditional complaints in the supreme court are less common than in the courts of appeals and, under the petition for review procedures, probably result in fewer briefs and related documents to manage.

cc: Charles L. "Chip" Babcock

Chris Griesel, Rules Attorney