We’ve all done it.
Your U.S. Court of Appeals for the Seventh Circuit brief is due in a few days and your attention turns to what to put in the appendix. The Federal Rules of Appellate Procedure are not much help. Rule 30 instructs the parties to include relevant docket entries, relevant portions of pleadings, the judgment and “other parts of the record on which the parties wish to direct the court’s attention,” see Fed. R. App. P. 30. To a lawyer, “relevant” and “wish to direct the court’s attention” could be anything. As with deciding whether to include that final, plausible argument, the appellate lawyer often decides to include everything. Rather than omit a document the court may later determine to be relevant, the advocate includes the additional pleadings, exhibits or documents. Sometimes, the advocate includes every document or transcript cited in the brief. The result is a bloated appendix, which often comprises multiple, hefty volumes. Once filed, the lawyer gives little thought to the appendix. In preparing for oral argument, the lawyer may not even remember having filed it, let alone consult it. No one wants to lug it around. It remains unread. It was not necessary.
