The Commission on Nevada Rules of Appellate Procedure, created by the Nevada Supreme Court in 2021, and tasked with considering whether the Nevada Rules of Appellate Procedure (“NRAP”) should be updated, recently filed a petition with its recommended revisions. The Nevada Supreme Court invited written comments from the public and has scheduled a public hearing today.
You can find the total list of proposed revisions here. While many of the potential revisions are minor or stylistic, others will have a sizeable impact on future civil appeals, if adopted. Below are some of the more significant recommended revisions:
- NRAP 3A: Civil Actions: Standing to Appeal; Appealable Determinations. One of the most notable proposed revisions to this rule is the type of appealable determinations. The revisions clarify which post-judgment orders are appealable and confirm the appealability of orders certified as final and those determined to be appealable by the legislature. The proposed revision to subsection (b)(8), which broadens the meaning of “special orders” after final judgment to include “any other post-judgment order affecting the rights of a party incorporated in the judgment,” could allow more room for litigants to argue that certain post-judgment orders are appealable that would not otherwise fall within the delineated orders in the rule.
- NRAP 4: Appeal—When Taken. The proposed revisions to NRAP 4 will likely have the most impact on litigants if adopted. Under the revised rule, parties can move the district court for an extension of time to file a notice of appeal, eviscerating the rigid existing 30-day jurisdictional deadline to appeal. District courts would enjoy the discretion to extend the deadline to appeal, except where deadlines to appeal are set by statute, upon the filing of a motion no later than 30 days after the appeal time expires and a showing excusable neglect or good cause. The deadline to appeal can be extended up to 30 days after the appeal deadline expired or 14 days after the order granting the motion is entered, whichever is later.
- NRAP 7: Bond for Costs on Appeal in Civil Cases.The revisions to this rule would mirror Federal Rule of Civil Procedure 7, which would greatly simplify it and leave the form, amount and release of any bond or security to the discretion of the district court. Currently, NRAP 7 uses fairly technical and confusing language and requires cost bonds of $500 for many appeals, unless the district court imposes a different amount.
- NRAP 8: Stay or Injunction Pending Appeal. Proposed amendments to this rule would impose a 14-day deadline for seeking an additional stay pending appeal from the Nevada Supreme Court when the district court has granted only a limited stay.
- NRAP 9: Transcript; Duty of Counsel; Duty of Court Reporter or Recorder. The recommended revisions to this rule would be a substantial overhaul. Although most of the proposed changes are stylistic or are intended to simplify the rule, some may impact the pace of the appeal. The revised rule would allow court reporters to obtain a 14-day telephonic extension of time to prepare the transcripts, which may be extended further by motion upon a showing of good cause. If the transcript submission deadline is extended, the parties could then move to extend the briefing schedule to accommodate the delay in obtaining the transcripts without impacting their ability to move for extensions under NRAP 31.
- NRAP 10: The Record. The proposed amendments to Rule 10 would mirror their counterpart under FRCP 10, allowing the parties to correct the record by stipulation, district court order or Nevada Supreme Court order if anything material is omitted or misstated in the record. Unlike FRCP 10, however, the omission does not have to be a result of an error or accident.
- NRAP 16: Settlement Conferences in Civil Cases. Significant changes to the Nevada Supreme Court Settlement Program are proposed here. Notably, the proposed revisions to NRAP 16 would give parties the option to choose their own private mediator rather than a court-appointed mediator. The revisions also propose extending the time for holding the settlement conference in non-fast-track cases from 90 days to 120 days and changing the deadline to submit settlement briefs from 14 days after the case is assigned to the program to 7 days before the settlement conference. The revised rule also enumerates new sections to be included in settlement briefs and directs which sections are to be provided to the other parties or only the settlement judge. Additionally, under the revised rule, parties would be required to execute confidentiality agreements before participating in the settlement conference.
- NRAP 17: Division of Cases Between the Supreme Court and the Court of Appeals. Proposed revisions to this rule would alter the assignment of cases between the Nevada Supreme Court and Nevada Court of Appeals. The revised rule would eliminate the presumptive assignment of cases between the two higher courts, creating three categories of cases: (1) “Cases Aways Retained by the Supreme Court,” (2) “Cases Ordinarily Retained by the Supreme Court,” and (3) “Cases Ordinarily Assigned to the Court of Appeal.” Which types of cases should be included in these proposed categories has created the most notable disagreements amongst the members of the NRAP Commission as they, for example, disagree on whether business court cases should be included in the “ordinarily be assigned to the Supreme Court” category or the “always be retained by the Nevada Supreme Court” category.
- NRAP 27: Motions. The proposed revisions here would add a 4,667-word limit as an alternative to the current 10-page limit for motions. As a result, motions may be considerably longer than 10 pages as long as they do not exceed the word count, if this revision is adopted.
- NRAP 28: Briefs. The proposed revisions to this rule concern the required sections in appellate briefs. If the recommendations are adopted, the required “statement of the case” and “statement of facts” sections would be reduced to the “statement of the case.”
- NRAP 29: Brief of an Amicus Curiae. If revised as proposed, Rule 29 would now require amicus curiae briefs to disclose whether a party to the appeal or their counsel authored the amicus brief in whole or in part and whether any person other than the amicus curiae contributed money to fund the amicus brief.
- NRAP 30: Appendix to the Briefs. The proposed revisions here would require litigants to include both an alphabetical and chronological index of the appendix’s contents.
- NRAP 31: Filing and Service of Briefs. Under the recommended revisions to this rule, the 14-day telephonic extensions for filing briefs would be replaced with an automatic 30-day extension upon the submission of a form that would be available on the court’s website on or before the brief’s due date.
- NRAP 36: Entry of Judgment. If amended, NRAP 36 would allow for the citation of any unpublished Nevada Supreme Court or Court of Appeals decisions as persuasive authority, including those decisions issued before Jan. 1, 2016, which cannot be cited for any purpose under the current rule.
- NRAP 37: Frivolous Civil Appeals—Damages and Costs. Revisions to this rule would require that an offending party have an opportunity to respond before the higher court can impose sanctions for a frivolous appeal.
- NRAP 40: Petition for Rehearing. The proposed revisions here would add a new but narrow basis for rehearing when a new rule of law is issued after disposition but before the rehearing deadline. The revised rule would also reduce the deadline to seek rehearing from 18 days to 14 days and expressly allow for a reply brief to be filed seven days after service of the response.
- NRAP 40(A): Petition for En Banc Reconsideration. This rule would be revised to allow a petition for en banc reconsideration to be filed without first filing a petition for rehearing. The current rule prohibits a petition for en banc reconsideration unless a petition for rehearing has been filed and denied. However, the revised rule prohibits a petition for en banc reconsideration if a petition for rehearing is pending. In other words, under the revised rule, if a panel rules against a party, that party could petition for rehearing or petition for en banc reconsideration immediately. But if the party petitions for rehearing, that party would not be able to petition for en banc consideration until the panel denies the petition for rehearing.
THIS DOCUMENT IS INTENDED TO PROVIDE YOU WITH GENERAL INFORMATION REGARDING POTENTIAL REVISIONS TO THE NEVADA RULES OF APPELLATE PROCEDURE. THE CONTENTS OF THIS DOCUMENT ARE NOT INTENDED TO PROVIDE SPECIFIC LEGAL ADVICE. IF YOU HAVE ANY QUESTIONS ABOUT THE CONTENTS OF THIS DOCUMENT OR IF YOU NEED LEGAL ADVICE AS TO AN ISSUE, PLEASE CONTACT THE ATTORNEYS LISTED OR YOUR REGULAR BROWNSTEIN HYATT FARBER SCHRECK, LLP ATTORNEY. THIS COMMUNICATION MAY BE CONSIDERED ADVERTISING IN SOME JURISDICTIONS. THE INFORMATION IN THIS ARTICLE IS ACCURATE AS OF THE PUBLICATION DATE. BECAUSE THE LAW IN THIS AREA IS CHANGING RAPIDLY, AND INSIGHTS ARE NOT AUTOMATICALLY UPDATED, CONTINUED ACCURACY CANNOT BE GUARANTEED.