FAQ - Supreme Court
Does electronic filing (e-filing) apply to me and my case?
The Supreme Court began electronic filing (e-filing) in August 2018 for attorneys only. In January 2020, e-filing was expanded to include self-represented parties and other nonlawyers. With limited exceptions, e-filing is now mandatory for you and all other case participants. Mandatory e-filing means that (1) each attorney, self-represented party, and nonlawyer representative who intends to participate in a Supreme Court case or to remain on the service and distribution list must register as an e-filer with the court’s e-filing system; (2) case participants must use the court’s e-filing system to submit and file their documents with the clerk’s office; and (3) case participants must use the court’s e-filing system to serve (send) their filings to other participants, to receive service of filings by other participants, and to receive orders issued by the court.
Certain self-represented parties, including incarcerated persons and those who have been placed under guardianship, are exempt from e-filing. Other persons may file a request to be excused from e-filing on the basis of hardship.
Which notice of appeal form do I use?
An appeal from a final decision of a State trial court is governed by Supreme Court Rule 7. There are two different notice of appeal forms under Rule 7: a notice of mandatory appeal form; and a notice of discretionary appeal form. The type of your case will determine which form you should use.
Most appeals from final trial court decisions are mandatory appeals, which means that they are automatically accepted for review by the Supreme Court. For these appeals, you should fill out the notice of mandatory appeal form. Specifically, if your appeal does not fall into one of the nine exceptions listed in the top portion of the notice of mandatory appeal form, you should use that form. Mandatory appeals include, for example, an appeal of a criminal conviction, an appeal of a final divorce decree, an appeal of a small claims matter, and an appeal in a dispute over ownership of land.
Some appeals are discretionary appeals, which means that the Supreme Court will review the notice of appeal document before deciding whether or not it will accept the case for appellate review. If your appeal falls into one of the nine categories listed in the top portion of the notice of discretionary appeal form, you should use that form. Discretionary appeals include the following: post-conviction review of criminal proceedings (including petitions for writ of habeas corpus and motions for new trial); a criminal sentence modification or suspension proceeding; a parole or probation revocation proceeding; a landlord-tenant eviction action to regain possession of the rental property (often for non-payment of rent); an order denying a motion to intervene; and a post-divorce domestic relations matter. To appeal any of these types of cases, use the notice of discretionary appeal form.
NOTE – The notice of discretionary appeal form contains more information than the notice of mandatory appeal form. If you are unsure which form to use, you may use a notice of discretionary appeal form. If you have properly completed that appeal form, but it is determined that the appeal is actually mandatory, the Supreme Court will already have all of the information necessary to process your appeal.
Where do I get the forms?
The forms are available at the Supreme Court clerk's office, on this website, and at most trial courts.
How do I complete the notice of appeal form?
The bulk of the notice of appeal form contains basic information about the case that you are appealing: Who are the parties? Did anyone have a lawyer? Which trial court decided the case? What was the docket number in the trial court? Who was the trial judge? You already know most of this information, or you can get it from the trial court. In addition to basic information about your case, you must provide additional information depending upon whether you are filing a mandatory appeal or a discretionary appeal. You should review the written instructions closely as you complete the appeal form. The instructions are available at the Supreme Court clerk's office, on this website, and at most trial courts.
If you are filing a notice of mandatory appeal, the form also requires you to list the "specific questions to be raised on appeal." In this section (section 13), you need to identify clearly, but concisely, the errors that you believe the trial court made in deciding your case. This is where you list the issues (questions) that you plan to address in your appeal. Don't leave any issue out that you want the Supreme Court to consider. If a question is not listed in this section, you cannot discuss it later in your brief, unless the court has granted a motion to add the question to the appeal.
If you are filing a notice of discretionary appeal, you must also explain why it is important that the Supreme Court accept your appeal, or any issues in the appeal, for appellate review. Because of this, the form requires you to describe "the nature of the case and the result." In this section (section 13), you need to give the Supreme Court some background on your case – what kind of case it is (e.g., a landlord-tenant eviction action to regain possession of the rental property), what happened in the trial court, what the trial judge decided, etc. On separate pages, provide this information clearly so that the Supreme Court has a good sense of what happened in your case. Also in a discretionary appeal, you need to list the "issues on appeal." In this section (section 14), on separate pages, you need to explain clearly, but concisely, why you believe that the trial court's decision is wrong. This is where you explain to the Supreme Court why you are filing your appeal and why the court should accept it. The information that you provide in section 14 is the most important part of your notice of appeal, so be particularly careful while filling it out. If a question is not listed in this section, you cannot include it later in your brief, unless the court has granted a motion to add the question to the appeal.
Do I need to file anything else with my notice of appeal form?
With your notice of appeal, you must file a copy of the trial court's decision that you are appealing, as well as the trial court clerk's written notice of the decision, which you should have received with the decision in your case. If any post-trial or post-decision motions were filed by any party, you must provide a copy of the decision on that motion, as well as the trial court clerk's notice of decision.
You must also pay the $225.00 filing fee. In addition to the filing fee, the legislature has imposed a $25.00 surcharge on most Supreme Court appeals. The types of cases that are exempt from the surcharge are: criminal cases, juvenile cases, domestic violence cases, small claims cases, landlord-tenant cases, and stalking cases. In these cases, there is no additional charge added to the filing fee. The filing fee schedule can be found on this website or can be provided to you by the clerk’s office.
If you are financially unable to pay the filing fee, you must file a motion to waive the filing fee, supported by an affidavit of assets and liabilities. The motion to waive the filing fee should explain to the Supreme Court why you are unable to pay the fee in your case. The affidavit of assets and liabilities form asks questions about your income and expenses and requires your signature, swearing that the information on the form is correct under penalties of law.
How many copies of the notice of appeal are required?
You need to file the notice of appeal in the office of the clerk of the Supreme Court, but you do not need to provide any other copies of it to the Supreme Court. You must provide a copy of your notice of appeal to each of the parties (or to their attorneys, if they are represented by counsel). Also, you must provide a copy to the clerk of the trial court that issued the decision that you are appealing.
Do I need a transcript?
It is a long-standing rule that the Supreme Court will review only matters that were raised in the trial court. Generally, you will need a transcript to show that you initially brought each appeal issue to the attention of the trial judge so that he or she was given an opportunity to consider the issue in reaching a decision in your case.
You will also need a transcript to show the Supreme Court what evidence you and the other parties presented in the case, such as the testimony of witnesses and exhibits introduced during the trial. If there is no transcript of what happened in the trial court, the Supreme Court will generally assume that the evidence was sufficient to support the result reached by the trial court. In that case, the decision below will be reviewed only for errors of law.
In deciding whether a transcript is necessary, you should keep in mind that the party filing the appeal is responsible for providing the Supreme Court with a sufficient record to decide the issues on appeal. The transcript is an important, and sometimes crucial, part of that record in most cases. If you fail to provide a sufficient record, the Supreme Court may not review an issue that you have raised or your appeal may even be dismissed. See Bean v. Red Oak Prop. Mgmt., 151 N.H. 248 (2004).
What day is my notice of appeal due?
Strict deadlines apply to filing a notice of appeal with the Supreme Court. It is very important, therefore, that the clerk’s office of the Supreme Court receive your appeal by the appeal due date. If your appeal is late, it may be dismissed by the court. Under Supreme Court Rule 21(6), motions for late entry of a notice of appeal are not favored and will be granted only upon a showing of exceptional circumstances.
In most cases, you have 30 days to file an appeal. These are consecutive, calendar days, not business days; Saturdays, Sundays, and legal holidays count in the 30-day period. This is true whether you are appealing a civil case (for example, Jones v. Smith) or a criminal case (for example, State of NH v. Brown).
In a civil case, an appeal is due at the Supreme Court within 30 days from the date on the trial court clerk's "notice of decision," which you should have received electronically, in court, or in the mail with the decision in your case. Be aware that the date of the notice of decision may be different from the date on the decision itself.
In criminal appeals, the notice of appeal is due at the Supreme Court within 30 days from the date of sentencing.
In civil cases, a motion filed after the final decision may extend the appeal period. This is true only if the motion is filed within the time limit set by the trial court's rules. For example, a motion for reconsideration filed within ten days of the decision in Superior Court will extend the appeal period. In that situation, the appeal is due within 30 days from the date on the trial court clerk's notice of the decision on the motion for reconsideration. In landlord-tenant possessory cases, there is a seven-day time limit to file a motion for reconsideration. Motions that are filed late – after the time limit set by the trial court’s rules – will not extend the appeal period. Also, successive post-decision motions, such as back-to-back motions for reconsideration by the same party, will not extend the appeal period.
The same is true in criminal cases. If a motion is filed after sentencing, the appeal is due within 30 days from the date of the trial court clerk's notice of decision on the motion. The motion must have been filed within ten days of sentencing, however, or the appeal period will not be extended.
A notice of appeal must be filed electronically through the Supreme Court’s e-filing system, unless an exemption applies or unless the appealing party requests to be excused from the e-filing requirement. In order to be considered timely, a notice of appeal that is e-filed must be submitted through the e-filing system at or before 11:59:59 p.m. on the date that it is due. If the notice of appeal is not submitted through the e-filing system because an e-filing exemption applies or because the appealing party is requesting to be excused from the e-filing requirement, the notice of appeal may be mailed or delivered to the clerk of the Supreme Court, but an appeal will be considered timely only if the clerk receives it by the appeal deadline or if it is postmarked at least two days prior to the deadline. See Supreme Court Rule 26(1).
Appealing parties often make a mistake when they are calculating the 30-day period. This happens because many months have 31 days. To figure out when your appeal is due, it is best to use a calendar. Day 1 is the day after the date on the trial court clerk's notice of decision. Start counting. Day 30 is when your notice of appeal is due at the Supreme Court; if Day 30 falls on a day when the Supreme Court is not open (Saturday, Sunday, legal holiday, or other day that the clerk's office is closed), then your appeal is due on the next day that the court is open.
What happens after an appeal is filed?
When an appeal is filed at the Supreme Court, it is entered into the court's case management system. This is referred to as "docketing" the case. When an appeal is docketed, it is assigned a "docket number" (also referred to as a "case number") by the clerk's office staff. That case number should be used to identify your appeal whenever you file anything in the case or whenever you call the clerk’s office to ask a question about the case. Once the appeal has been given a case number, the clerk's office issues a docketing order, which notifies all parties to the case that an appeal has been filed and informs the parties of the case number that has been assigned to the case.
I didn't receive a copy of the notice of appeal filed by another party. What should I do?
If you receive a docketing order indicating that another party to your case has filed a notice of appeal but you did not receive a copy of the notice of appeal, you should contact the appealing party yourself to request a copy. If, after contacting the appealing party, you still do not receive a copy of the notice of appeal, notify the Supreme Court clerk’s office in writing so that it can take appropriate action. If there is a court order prohibiting you from contacting the appealing party directly, you should contact the Supreme Court clerk's office.
The party who is filing an appeal must provide copies of the notice of appeal to all other parties to the case, either through the Supreme Court’s e-filing system or by delivering a copy personally or by putting a copy in the mail. The notice of appeal form requires that you certify to the Supreme Court that you sent all other parties a copy of the notice of appeal.
What type of appeal document should I file if I am not appealing a final trial court decision?
The notice of mandatory appeal form or the notice of discretionary appeal form should be used only if you are appealing a final decision of a trial court. Do not use either of those forms if you are filing: (1) an appeal from a trial court order that is interlocutory, meaning an order issued in a trial court proceeding that has not yet resulted in a final decision; (2) an appeal from a decision of an administrative agency, such as the Compensation Appeals Board, or from a decision of a Supreme Court committee, such as the Professional Conduct Committee; or (3) a petition requesting the Supreme Court to exercise its original jurisdiction.
To file an interlocutory appeal from ruling, you must comply with applicable trial court rules (e.g., Family Division Rule 1.31) and with Supreme Court Rule 8. Supreme Court Rule 8 sets forth the required content and due date of an interlocutory appeal. There is no Supreme Court form for this type of appeal.
To file an interlocutory transfer without ruling, you must comply with applicable trial court rules (e.g., Superior Court Rule 46(a)) and with Supreme Court Rule 9. Supreme Court Rule 9 sets forth the required content and due date of an interlocutory transfer. There is no Supreme Court form for this type of case.
To file an appeal from a decision of an administrative agency, when authorized by law, you must comply with the applicable statutory appeal procedures, such as RSA chapter 541, and with Supreme Court Rule 10. Supreme Court Rule 10 sets forth the required content of an appeal by petition. The statutory appeal procedures determine the appeal period and the appeal’s due date. There is no Supreme Court form for this type of appeal.
If you are requesting that the Supreme Court exercise its original jurisdiction or its power of supervision in a circumstance where the relief sought is not available in any other court or cannot be had through other processes, you should file a petition in accordance with Supreme Court Rule 11. There is no Supreme Court form for a petition. Rule 11 itself sets forth the required content. Because Rule 11 contains no filing deadline, the due date for a Rule 11 petition is determined by the Supreme Court’s borrowing the most analogous appeal period (generally 30 days, but not always).
I received an order that says that I must file a brief. What is a brief?
A brief is a written document that presents arguments either opposing or supporting the decision of the trial court. It is different from the notice of appeal that is filed to start the appeal process because the brief is a more detailed explanation of the issues in the case. The appealing party (also called the “moving party”) must file the first brief. If you are the appealing party, your brief should explain to the Supreme Court why you believe that the trial court's decision is wrong. After the appealing party has filed a brief, the other parties are given an opportunity to respond by filing an opposing brief or memorandum of law. If you are on the opposing side, your brief or memorandum of law should explain why you believe that the trial court's decision was correct.
If you are the appealing party, you must file a brief, or else your appeal will be dismissed. The notice of appeal, or other appeal document that the appealing party filed to start the appeal process, is not a brief. If you are not the appealing party, you do not need to file an opposing brief, but if you choose not to file one, you will not be allowed to argue orally, if the court schedules oral argument in the case.
You can find the format for an appellate brief in Supreme Court Rule 16. Read Rule 16 very carefully. It not only explains how a brief should be organized and what it must contain, but it also includes other important information concerning formatting requirements and word limits. To the best of your ability, follow Rule 16(3) step-by-step when writing your brief.
Three requirements for briefs are particularly important. First, at the end of your brief, you must state in writing that you have provided a copy of your brief to all parties to the case. This is called a certification of service. You may provide the copy by hand-delivery, by first-class mail, or by electronic service through the Supreme Court’s e-filing system if the other party or party’s counsel is a registered e-filer in the system. Second, you must sign your brief. See Supreme Court Rule 16(10). For the appealing party, there is a third requirement of particular importance. If the decision being appealed is in writing, a copy of that decision must be submitted with the brief in either one of the following two ways: (1) as the first item(s) in an addendum that is part of the brief itself, with the addendum's table of contents clearly identifying each appealed decision as such and with the addendum's page numbering sequentially following the last page number of the brief; or (2) in a separate appendix that contains no documents other than appealed decisions and that conforms with the page-numbering requirements of Supreme Court Rule 17. The appealing party must, immediately before the signature line on the brief, certify either that each appealed decision that is in writing is being submitted at the time of brief filing, or that no appealed decision is being submitted because no appealed decision is in writing. If an appealed decision is in writing, the appealing party's certification must identify the specific manner in which the party has complied with this rule concerning submission of the appealed decision. See Supreme Court Rule 16(3)(i).
Will my case be scheduled for oral argument?
The Supreme Court does not hear oral argument in every case. In most cases, after all briefs have been filed, the court reviews them to decide whether oral argument will be helpful in deciding the case. Often, after reviewing the briefs and the record on appeal (the transcript, if one was ordered, and any documents that have been included in an appendix or transferred from the trial court), the Supreme Court decides that oral argument is not necessary to make a decision in the case. When this happens, the court issues a brief order explaining its reasons for either affirming or reversing the trial court. In fact, most cases are decided without oral argument.
If the Supreme Court decides that oral argument would be helpful, the case will be scheduled on the next available oral argument date. Some cases are scheduled for oral argument before all five Supreme Court justices (full court), while some cases are scheduled for oral argument before a panel of three Supreme Court justices (3JX). An order issued by a 3JX panel applies to the parties in that particular case only; it does not serve as precedent for any other case.
When will the Supreme Court decide my case?
Except in unusual circumstances, the decision-making process does not begin until all parties have filed briefs. The briefs are reviewed by the Supreme Court to decide whether to schedule oral argument. The review process generally takes 45 to 60 days after all briefs have been filed.
If your case is not scheduled for oral argument, the Supreme Court will discuss it at one of its regular conferences and will decide whether to affirm or reverse the trial court’s decision. A short order explaining the Supreme Court's reasons will generally be issued within a week of the court's conference.
If the Supreme Court determines that oral argument will be held in a case, the clerk of court will schedule the case for the next available oral argument date. With the exception of months when the court does not hear oral argument (and, instead, concentrates on writing opinions), the court generally hears three or four days of oral arguments per month.
Cases scheduled for oral argument are assigned to a justice to write an opinion or order. The justice, assisted by his or her law clerks, prepares a draft, which is circulated to all justices who are not disqualified from the case. The justices meet frequently to discuss all the opinions and orders that have been drafted. If a justice does not agree with the majority of the other justices, the justice may write a separate dissenting opinion. Generally, an opinion is issued within four months of oral argument, but in some cases it may take longer.
Does my client sit at the table with counsel during oral argument?
No. If parties have counsel arguing on their behalf they are not allowed to sit at the table during oral argument.
When there is pro hac vice counsel (counsel not admitted to NH Bar but permitted to appear in a particular case), should all counsel sit at the table during oral argument?
Yes. All participating counsel should sit at the table during oral argument.
What do the colored lights mean?
The red light comes on when the allotted oral argument time is finished. During full court oral arguments, the amber light comes on as a four-minute warning. During 3JX oral arguments, the amber light comes on as a three-minute warning. The colored lights can be seen by both the person presenting oral argument and the justices.
When should I enter the courtroom?
The doors open about 15 minutes before oral arguments begin. If you arrive after oral arguments have begun, you may enter quietly after the doors have closed. However, persons presenting oral argument should enter the courtroom as soon as they have checked-in with the clerk's office to avoid missing the announcement of their case. Although cases are generally allotted a total of 30 minutes for full court arguments and 20 minutes for 3JX arguments, not all parties use all of their allotted time, so cases may be called sooner than anticipated. If you are not in the courtroom when your case is announced, you may miss your opportunity to present oral argument.
Can I bring water with me in the courtroom?
No, you may not bring any beverages or food into the courtroom. However, if you are presenting oral argument there will be water provided at your table.
Can we make last-minute changes regarding who is presenting oral argument and the allotment of argument time among multiple attorneys?
Yes. Ideally, you should notify the clerk's office of any changes before the date of oral argument; however, last-minute changes are allowed. Last-minute changes must be reported to the court monitor before argument begins. You should also bring a letter requesting the changes to the clerk's office so the change can be reflected in your case file.
Can I use exhibits or posters that are in the Supreme Court's case file during my oral argument?
Yes. You should notify the clerk's office of any exhibits, posters, or easels required before the date of oral argument so that they can be made available to you.
Can I bring a copy of an exhibit or poster with me to oral argument?
Yes. If you are bringing something with you that is not already on file with the Supreme Court, you should notify the other parties to the case beforehand to determine whether they have any objection.
Who is allowed in the courtroom during oral argument for a confidential case?
Oral arguments in confidential cases are closed to the public; only parties to the case and their counsel may be in the courtroom. Before the start of oral argument in confidential cases, the presiding justice or court staff will verify that everyone in the courtroom should be there. Confidential cases will not be streamed or made available on the web.
When are oral arguments available on the web?
Oral arguments are streamed live on the web (except in confidential cases). Streaming does not begin until the start of oral argument. If you log in too early you will need to hit the refresh button when streaming begins. After oral argument, recordings of arguments are archived and can be watched on the web at any time. However, archived arguments will not be available until about 24 to 48 hours after oral arguments are held.
How do I get a transcript of oral arguments?
Transcripts of Supreme Court oral arguments can be ordered from the officially designated transcriber, eScribers. Go to the How to Order a Transcript page. This will provide you with instructions on how to order transcripts online. If you do not have access to a computer, you may contact eScribers by phone at (800) 257-0885.