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The Appendix on Appeal: The Good, the Bad and the Ugly
Special to Law.com
September 24, 2007
Howard J. Bashman
Related: Bashman Archive
When a case is assigned to appellate judges for adjudication on the merits, they receive not only the parties' appellate briefs but also the appendix, which contains those portions of the record on appeal that the parties and the court view as necessary for the court to deliver a fully informed ruling. In certain jurisdictions the appendix is known by other names, such as the record excerpts or the reproduced record.
In some appeals, the appendix is quite small. If a trial court dismisses a plaintiff's case on the pleadings for failure to state a valid claim, the appendix on appeal may consist of less than 100 pages. In such an appeal, the appendix would contain the plaintiff's complaint, the motion to dismiss, and perhaps the briefs filed in connection with that motion. The trial court's opinion and judgment would also be included unless they had to be appended to the opening brief on appeal.
In other appeals, the appendix can be much larger. If a trial court decided a case on summary judgment, and if the summary judgment motions contained many lengthy exhibits, the appendix on appeal could run several volumes. And where a case is appealed after a lengthy trial, the appendix on appeal can consist of dozens of volumes, assuming that the complete trial transcript and the exhibits introduced at trial are included, along with copies of various other pleadings and motions.
The appellate courts before which I have practiced have rules delineating what the appendix on appeal should contain. Those rules tend to describe certain categories of required materials, followed by a catch-all provision that allows the attorneys for the parties on appeal to include any other material from the trial court record that would be of assistance to the appellate court in deciding the case. Generally speaking, something can only be included in the appendix on appeal if it was part of the record created in the trial court.
Federal Rule of Appellate Procedure 10 states that the record on appeal consists of the papers and exhibits filed in the trial court, the transcript of proceedings if any, and a certified copy of the trial court docket entries. To qualify for inclusion in the appendix on appeal, the item or document must be a part of the record on appeal.
Ordinarily, the contents of the appendix on appeal are decided before the appellate briefs are finalized. As a result, there can be a temptation to take an overly inclusive, belt-and-suspenders approach to deciding what to include. In cases where the trial court record is large, the rules allow the parties to opt for deferring the preparation and filing of the appendix until after the briefs on appeal have been written.
Using a deferred appendix can save time and resources by ensuring that the ultimately compiled appendix contains only those materials that are cited in the briefs and crucial to the appeal's resolution. But the deferred appendix procedure involves preparing page-proof appellate briefs that cite to the original trial court record. Those are later supplanted by the final version of the appellate briefs, which cite to the appendix after it's prepared. Naturally, the need to prepare a second version of each of these briefs can easily reduce the savings in time and resources that resulted from using a deferred appendix in a large record case.
Although appellate advocates expect the judges assigned to decide an appeal to read the appellate briefs from cover to cover, it is unrealistic to expect the appellate judges to read the appendix on appeal in the same manner. When the appellate briefs cite to the appendix for an important point, the judges or their law clerks should review the record to ensure that the briefs accurately depict what happened in the trial court. But if the appendix contains material that the appellate briefs fail to cite, it is very unlikely that the appellate judges or their clerks will stumble upon that material independently.
No matter how large or small the appendix or record on appeal happens to be, there will occasionally be instances where one side or the other wishes to get in front of the appellate judges' eyes material that cannot properly be included in the appendix on appeal because it was not a part of the trial court record. I recently worked on an appeal where an issue arose involving the trial court's refusal to admit into evidence an exhibit that the defense wished to use to impeach the plaintiff's credibility. Because the document was not admitted into evidence and was not filed as an exhibit in the case, the trial court record on appeal did not contain the exhibit. Thus, it was unclear whether the document could properly be included in the appendix on appeal, and the matter became a point of disagreement between counsel for the opposing parties.
Instead of including the proposed exhibit in the appendix, the defense filed the document as a lodging with the federal appellate court clerk's office, providing sufficient copies for the judges to review. The trial judge had obviously looked at the proposed exhibit in deciding whether to admit it into evidence, so, as appellate counsel for the defendants, I was confident that the appellate judges would have no problem looking at the document even if it was not a part of the appendix on appeal. In fact, having the exhibit separately available might even bring it more attention than it would receive if it had been buried toward the back of a multivolume appendix.
By mentioning the possibility of lodging non-record documents with an appellate court, I don't mean to suggest that appellate judges will be receptive to looking at material from outside of the appellate record in the ordinary case. Typically, the appellate court must decide the appeal based on the same record as the trial court confronted when it decided the case. In a case where it is important to try to get an appellate court to look at material that the trial judge was not asked to look at, an appellate advocate should consider whether the material is susceptible to judicial notice. The general rule is that judicial notice may be taken on appeal under the same circumstances that determine when judicial notice may be taken in a trial court.
Also, if an appeal is important enough, an advocate should consider whether an amicus is available to participate. Although the parties are limited to arguing from the record made in the trial court, an amicus could properly base arguments on intervening circumstances or evidence that was not directly before the trial court when the ruling under review issued.
CONCLUSION
Appellate courts do not exist to decide questions of law in the abstract. Rather, the legal issues that these courts decide usually depend heavily on the record that was created in the trial court. From an appellate judge's perspective, the most conveniently available manifestation of the trial court record is the appendix on appeal. Therefore, appellate advocates must ensure that the appendix contains the material that the appellate judges need to correctly and easily decide a case. The contents of the record on appeal, and the subset contained in the appendix on appeal, can determine who wins or loses on appeal. Consequently, great care must be taken in deciding what to include in the appendix.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
