ABSTRACT: Missouri’s “points relied on” rule is often a pitfall for attorneys finding themselves in the position of drafting an appellate brief in the State, particularly for counsel not often litigating in the appellate courts or for out-of-town practitioners. In fact, Missouri is the only state that mandates attorneys lay out points to be raised on appeal in their arguments in a set, often rigid format. Deviations from the rule’s format can result in dismissal of the appeal. A group of two dozen of the State’s appellate practitioners, as well as several professional organizations, have asked the Missouri Supreme Court to modify the rule or, alternatively, to appoint a special committee to analyze difficulties encountered in complying with the rule.

In September 2024, a group of attorneys statewide signed a letter directed to the Missouri Supreme Court to express concern regarding Supreme Court Rule 84.04(d), which addresses the “point relied on” section of appellate court briefs filed within the State. The rule provides a specific format for each asserted claim of trial court error and provides a format “template” for the point relied on depending upon the type of case being appealed. The appellate courts often describe that the function of the point relied on is to give notice to the opposing party of the precise matters which must be contended with and to inform the court of the issues presented for review. In theory, if the point relied on is deficient, the responding party and appellate court must search the remainder of the brief to discern the appellant’s assertion, which is not only a waste of resources but risks the appellant’s argument being understood or framed in an unintended manner. It is for this reason, that the Missouri Supreme Court and lower appellate courts have held a point relied on which does not state the “wherein and why” of the trial court or agency error does not comply with Rule 84.04(d) and preserves nothing for appellate review.

The highly technical rule, however, has led to some harsh results. Just two years ago, the Missouri Supreme Court dismissed a case solely for errors in the “Points Relied On” section. Lexow v. Boeing Co., 643 S.W.3d 501 (Mo. banc 2022). The state’s three appellate courts have issued dozens of similar rulings over the past several years, often resulting in devasting dismissals for both civil litigants and criminal defendants.

After listing anecdotal examples shared by the signatories, the letter to the Missouri Supreme Court requested modification of the rule, or alternatively, appointment of a special committee to analyze difficulties encountered in complying with the rule and to make recommendations based on its analysis.

Noting that the goals of Rule 84.04(d) are to encourage practitioners to focus on the ruling claimed to be in error and the basis therefor, providing clarity to respondents and the courts, and avoiding judicial advocacy, the signatories expressed that compliance is not always simple even for seasoned appellate practitioners. The letter offered several suggestions on how Rule 84.04(d) might be modified to accomplish its goals while lessening the struggles with compliance. Specifically, the letter suggested the following:

  • Simplify the rule to require only identification of the ruling claimed to be in error and the basis for the claim of error;
  • Retain the rule but without the “template” currently stated in the rule as the template is often the cause of difficulty in formulating the Point Relied On and does not fit every circumstance;
  • Permit a standard heading and require an introductory paragraph at the beginning of each point;
  • Permit subparts if the same ruling was in error for more than one reason, rather than each of these reasons requiring its own point relied on;
  • Retain the rule but afford an opportunity to correct deficiencies specified in an order of deficiency; or
  • Permit some incorporation by reference to promote judicial economy.

Alternatively, the letter asked the Court to appoint a special committee to study the rule, meet with practitioners to articulate why compliance remains elusive, and make recommendations to the Court.

Twenty-four appellate practitioners from across the state signed the letter, along with the Missouri Organization of Defense Lawyers, the Missouri Association of Trial Lawyers, the Missouri State Public Defender, and the Missouri Association of Criminal Defense Lawyers. While the Supreme Court has not taken any action pursuant to the letter, we will report on any developments in the future as changes to this rule will impact appeals across all practice areas.