Section 2-109 - Briefs; constitutional questions(A) Time for Filing. The briefs listed below must be filed within the times stated in these rules. Briefs in support of motions are described in §§ 2-106, 2-107, and 2-113. Requests for additional time to file briefs must be made in accordance with the provisions of § 2-106(E). NO EXTENSIONS OF TIME WILL BE ALLOWED IN ADVANCED CASES EXCEPT UPON A SHOWING OF EXCEPTIONAL CAUSE.(1) Appellant's briefs must be served and filed as follows: (a) No request for preparation of bill of exceptions filed: 30 days from the date the transcript is filed in the appellate court, unless the court directs otherwise.(b) Request for preparation of bill of exceptions filed: 30 days after the date the bill of exceptions is due to be filed.(2) Appellee's brief must be served and filed within 30 days after appellant has served and filed briefs. If service of appellant's brief is by mail, 3 days are added to allow for delivery time. (See Neb. Ct. R. Pldg. § 6-1106(e).)(3) Appellant's reply brief must be served and filed within 10 days after appellee has served and filed briefs; 3 days are added if service of appellee's brief is by mail.(4) Briefs of amicus curiae may not be filed without leave of court. See § 2-106 for general requirements for motions. (a) If granting leave to file a brief would result in recusal of a member of the court due to the proposed amicus curiae, the law firm or attorney(s) representing the proposed amicus curiae, or any other reason, leave to file brief of amicus curiae may be denied.(b) A motion for leave to file an amicus brief shall be sought no later than 30 days prior to oral argument. A motion for leave to file an amicus curiae brief shall include either a copy of the proposed brief as an attachment or include a concise summary of the brief the amicus curiae intends to file. If leave is granted, amicus curiae shall file the brief as ordered by the court, but no later than 10 days prior to oral argument.(c) Oral argument by amicus curiae is controlled by § 2-111(E)(4) and not by this rule.(5) A motion for rehearing and brief in support is governed by § 2-113.(6) If rehearing is granted in a case, the parties may file additional briefs at least 1 week prior to reargument or other submission to the court. See § 2-113(L).(7) Briefs in advanced cases are due as provided by these rules or as ordered by the court.(B) Format and service of briefs are governed by § 2-103. (C) General Rules for Preparation of Briefs. In the preparation of the brief, the following general rules shall be observed:(1) References to the transcript shall be made by setting forth in parentheses the capital letter "T" followed by the page of the transcript, as, for example, (T26). For supplemental or confidential transcripts, the reference shall be made by setting forth in parentheses either "Supp. T" or "Conf. T," followed by the page of the transcript. In original actions, references shall be made to the pleading and page thereof.(2) References to questions, answers, objections, motions, rulings, or any other matters found in the bill of exceptions shall be made by setting forth in parentheses the numbered page and line in the bill of exceptions where found, as, for example, (156:12). The number preceding the colon should represent the page of the bill of exceptions where found, and the number following the colon, the line.(3) References to exhibits in the bill of exceptions shall be made by setting forth in parentheses the capital letter E, followed by the number of the exhibit, followed by a comma and the page of the exhibit on which the material to which reference is made appears, as, for example, (E5, p. 95). The bill of exceptions index shall show where the exhibit was offered and received or refused, and does not need citation in the brief. References to documents not in the bill of exceptions but nonetheless subject to review by the appellate court, such as a presentence investigation report, shall identify the document, followed by a comma and the page on which the material to which reference is made appears, as, for example, (Presentence Investigation Report, p. 75).(4) Every reference to a reported case shall set forth the title thereof, the volume and page where found, the tribunal deciding the case, and the year decided. If the cited opinion is long, it shall also refer to the page where the pertinent portion of the opinion is found. Nebraska cases shall be cited by the Nebraska Reports and/or Nebraska Appellate Reports, but may include citation to such other reports as may contain such cases. A citation may be hyperlinked to the official Nebraska Reports or Nebraska Appellate Reports. See § 2-103(A)(4).(5) If a current statute is relied upon, it must be cited from the last published revision or compilation of the statutes, or supplement thereto, if contained therein; if not contained therein, to the session laws wherein contained, or the legislative bill as enacted. Statutes may also be hyperlinked to the official Nebraska Legislature website. See § 2-103(A)(4).(6) Citations to textbooks, encyclopedias, and other works shall give the title, edition, year of publication, volume number, section, and page where found.(D) Content of Briefs. BRIEFS FILED WITH THE CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute, rule of the, or order of a court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential. (1) The brief of appellant, or plaintiff in an original action, shall contain the following sections, under appropriate headings, and in the order indicated: (a) The title page, which is the cover;(b) A table of contents with page references, and an alphabetically arranged table of cases, statutes, and other authorities cited, with references to the pages of the brief where cited;(c) A statement of the basis of jurisdiction of the appellate court. The jurisdictional statement must identify the statute, court rule, or case law believed to confer jurisdiction on the Supreme Court or Court of Appeals, state relevant facts establishing why the judgment or order sought to be reviewed is an appealable order, and further must include the following information: (i) the date of entry of the judgment or order sought to be reviewed;(ii) the date of filing of any motion claimed to toll the time within which to appeal, the disposition of such motion, and the date of entry of the order disposing of it;(iii) the date of filing of the notice of appeal, and the date of depositing of the docket fee or date of the granting of the order to proceed in forma pauperis, and;(iv) if the order sought to be reviewed adjudicates fewer than all the claims, or the rights and liabilities of fewer than all the parties, the jurisdictional statement must recite the language of the order of the court from which the appeal is taken providing the basis for such interlocutory appeal or otherwise identify the statute, court rule, or case law authorizing such interlocutory appeal.(d) A statement of the case, which, in original actions, shall state the issues before the court. Except in original actions, the statement of the case shall contain the following, in the order indicated: (1) The kind of action or nature of the case; (2) the issues actually tried in the court below; (3) how the issues were decided and what judgment or decree was entered by the trial court; and (4) the scope of the appellate court's review;(e) A separate, concise statement of each error a party contends was made by the trial court, together with the issues pertaining to the assignments of error. Each assignment of error shall be separately numbered and paragraphed. Consideration of the case will be limited to errors assigned and discussed in the brief. The court may, at its option, notice a plain error not assigned;(f) Propositions of law shall be contained in separate, numbered paragraphs, and shall state concisely and without argument or elaboration the legal propositions urged as controlling. Only propositions discussed in the argument shall be stated. Each proposition of law shall be followed by a list of supporting authorities. Preference in citation shall be given to those authorities deemed most important. Authorities cited under any proposition must be quoted or otherwise discussed in the argument;(g) The statement of facts shall be made in narrative form, and shall consist of so much of the substance of the record as is necessary to present the case. Each and every recitation of fact, whether in the statement of facts or elsewhere in the brief, shall be annotated to the record in the manner set forth in § 2-109(C);(h) The appellant's brief must contain, under appropriate headings, a summary of the argument, which must contain a succinct, clear, and accurate statement of the arguments made in the body of the brief and which must not merely repeat the argument headings. The appellee's brief may contain such summary; and(i) The argument shall present each question separately, and shall present each proposition of law as best sets forth the contentions of the party. Authorities relied upon shall be quoted or otherwise discussed. A party may make such further statements of fact or quotations from the record as deemed necessary to properly present the question, supporting such facts by appropriate references to the record.(2) The brief of appellee, or defendant in an original action, shall contain the following matters, in the order indicated: (a) Table of contents and table of cases cited;(b) A statement of the basis of jurisdiction of the appellate court, if appellant's statement is not accepted as correct;(c) Statement of the case, if appellant's statement thereof is not accepted as correct;(e) Statement of facts, if appellant's statement is not accepted as correct or is amplified. Each and every recitation of fact shall be annotated to the record in the manner set forth in § 2-109(C), no matter where in appellee's brief such recitation is made; and(3) If a party wishes to avail himself or herself of the provisions of the statute with reference to remittitur, a special assignment of error may be made in the brief of appellee, or a cross-appeal may be taken.(4) Cross-Appeal. Where the brief of appellee also presents a cross-appeal, it shall be clearly noted on the cover of the brief. Within the appellee's brief, the cross-appeal shall be set forth in a separate section of the brief. This separate section shall be headed "Brief on Cross-Appeal" and shall be prepared in the same manner and under the same rules as the brief of appellant. See § 2-109(D)(1). Where an appellee submits a brief purporting to be a brief of appellant, which complies with the rules regarding an appellant's brief, and the appellee's brief does not take issue with any errors asserted by the appellant, the appellate court may, in its discretion, treat the brief of such appellee as a brief on cross-appeal.(5) Reply briefs. The reply brief shall be prepared in the same manner as the brief of appellee. The answer of appellant to any cross-appeal shall be set forth in a separate division of the reply brief and shall be headed "Answer to Brief on Cross-Appeal," and shall be noted on the cover of the brief.(E) Cases Involving Constitutional Questions. A party who asserts that a Nebraska statute is unconstitutional under the Nebraska Constitution or the U.S. Constitution must file and serve notice thereof with the Clerk. This notice requirement applies to an appellant, appellee, cross-appellant, or cross-appellee if it is the party asserting that a Nebraska statute is unconstitutional. Such notice may not be filed until the appeal is docketed. Such notice shall be filed by the party and accepted by the Clerk before the filing of the party's brief. If the Attorney General is not already a party or representing a party to the action, upon acceptance of the notice filed by the party, the Clerk shall add the Attorney General to the case and provide notice of the filing to the Attorney General. If the Attorney General is not already a party to an action or representing a party to an action where the constitutionality of the statute is in issue, the brief asserting unconstitutionality must be served on the Attorney General, and the Attorney General shall be entitled to file a response and may be heard at oral argument upon seeking leave to do so, which may be granted at the Supreme Court's discretion. Proof of such service shall be filed with the Clerk. In the absence of such notice pertaining to a constitutional question, the Supreme Court will not consider any constitutional question except by special order of the Supreme Court, which may be issued at its discretion.
(F) Replacement briefs. If a court orders a party to submit a replacement brief for failure to comply with requirements of this rule, the original brief shall be stricken upon filing of the replacement brief. An order setting a date for filing a replacement brief shall automatically extend the filing date for any responsive brief as follows: (1) for a replacement appellant's brief, the appellee's brief date is extended to 30 days after the date the replacement brief is due;(2) for a replacement appellee's brief, with or without cross-appeal, the appellant's reply brief date is extended to 10 days after the date the replacement brief is due.Rule 9(B)(1), (B)(2)(e), and (B)(5) amended March 25, 1992; Rule 9(B)(2) e amended April 22, 1992; Rule 9(A)(5) amended April 29, 1992; Rule 9(A)(2) amended May 28, 1992; Rule 9(F) amended July 1, 1992; Rule 9(F) amended November 25, 1992; Rule 9(B)(7) amended June 15, 1994; Rule 9(A)(5) and (B)(7) amended October 17, 1995; Rule 9(B) amended September 25, 1996; Rule 9(B)(1) amended November 20, 1996; Rule 9(A) and (B)(6) amended May 29, 1997; Rule 9(A)(4) amended March 17, 1999; Rule 9(D)(1) and (2) amended October 27, 1999, effective 12/6/1999; Rule 9(F) amended December 15, 1999; Rule 9(B)(3) amended June 6, 2001; Rule 9(F) amended November 15, 2001; Rule 9(B)(2)(b) amended March 22, 2006; Rule 9(E) amended June 4, 2008, effective 6/18/2008. Renumbered and codified as § 2-109, effective 7/18/2008. § 2-109(A)(2) amended August 27, 2008; § 2-109(D)(1)(h) -(i) amended September 10, 2008, effective 1/1/2009; § 2-109(D) amended November 19, 2008; §§ 2-109(A)(5),(B)(2) and (6) -(7) amended June 6, 2012; § 2-109(C)(1) amended July 2, 2014; amended May 12, 2021, effective 5/12/2021; amended June 9, 2021, effective 1/1/2022; amended April 6, 2022, effective 4/6/2022; amended November 15, 2023, effective 11/15/2023; amended September 11, 2024, effective 9/11/2024.