I recently attended a continuing legal education seminar where the Clerk of the Massachusetts Appeals Court, Joseph Stanton, provided useful information concerning post-oral argument letters, often described as “16L Letters.”
“16L Letters” originate from Rule 16(l) of Massachusetts Rules of Appellate Procedure, which reads as follows:
(l) Citation of Supplemental Authorities. When pertinent and significant authorities come to the attention of a party after his brief has been filed, or after oral argument but before decision, a party may promptly advise the clerk of the court, by letter, with a copy to all counsel, setting forth the citations. There shall be a reference either to the page of the brief or to a point argued orally to which the citations pertain, but the letter shall without argument state the reasons for the supplemental citations. Any response shall be made promptly and shall be similarly limited.
Issues arise, however, when litigants send 16L letters containing legal argument, such as answering a question asked during oral argument. Clerk Stanton recommended that litigants ask the panel of judges during oral argument for permission to file a 16L letter. Thus, when faced with a tough question or inability to quickly identify a specific page in a voluminous record appendix, a litigant should promptly ask for permission to file a 16L letter. Otherwise, if a litigant simply files an unsolicited or unapproved 16L letter that includes argument, the Clerk’s Office will likely strike it. Clerk Stanton explained that his office began striking 16L letters after receiving numerous telephone calls from opposing parties complaining of unsolicited or unapproved 16L letters.
If a litigant fails to ask permission during oral argument to file a 16L letter, Clerk Stanton recommended that the litigant should file a motion for leave to file a 16L letter. This procedure allows the court to decide whether the 16L letter is appropriate.