Substantial changes to the Connecticut Rules of Appellate Procedure go into effect on July 1, 2013, for all appeals filed on that date and thereafter. These new rules revamp the existing framework governing the requirements for the yellow record and appendices.
Under the old rules, the Appellate Court Clerk's Office compiled pleadings from the trial court file that were "necessary for a proper presentation" of the issues on appeal, and arranged them into a yellow-covered document called the "record." Under the new rules, the clerk's office will no longer compile the yellow record. In fact, there will be no yellow record at all. Instead, it will be the parties' responsibility to assemble the documents that previously would have been bound in the yellow record, and include those documents in a new section of the appendix, called Part I of the appendix.
Four primary concerns motivated this change.
First, it eliminates confusion caused by multiple uses of the term "record" in the Appellate Rules and appellate decisions. Second, requiring the busy clerk's office to compile the record often resulted in delays in oral argument because briefs were completed but the record was not. Under the new rules, a case now will be ready for argument as soon as the reply brief is filed because all "record" documents will be included in the appendices, which must be filed at the same time as the briefs.
Third, shifting the responsibility to the parties frees up significant personnel time and copying costs for the clerk's office.
Fourth, parties frequently briefed their cases without knowing what documents would ultimately be included in the yellow record because it was not prepared until after briefs were filed. As a result, attorneys frequently included every relevant document in their appendices, leading to the court receiving multiple copies of the same document.
Although the appellate courts recognized the need to make significant changes to the yellow record rules, the courts were reluctant to abolish the record altogether; it provided a convenient overview of the case and presented key documents necessary to the resolution of the appeal in one volume. The courts decided to pursue a rule change that preserved the purpose and function of the yellow record – namely a compilation of documents that provided the same ease of reference – but removed the compilation burden from the clerk's office.
The new rule thus places compilation of the documents found in the yellow record completely in the hands of the parties, primarily the appellant. The appellant is now required to file with its initial brief an appendix that will be divided into two sections: Part I, which is mandatory, and Part II, which is optional. (Practice Book § 67-8.) Part I "shall" contain documents that previously were found in the yellow record, while Part II "may" contain any additional documents that were found in a pre-rule change appendix. The clerk's office has been authorized by the courts to return any appellant's brief that is filed without a Part I Appendix.
Determining the contents of Part I is a crucial step for an appellant. The rule provides some guidance, explaining that Part I must contain: (1) a table of contents of each item included; (2) docket sheets, case detail, or court action entries of below proceedings; (3) "in chronological order, all relevant pleadings, motions, requests, findings, and opinions or decisions of the trial court or other decision-making body"; (4) judgment file; (5) endorsed appeal form; (6) docketing statement; (7) "any relevant appellate motions or orders that complete or perfect the record on appeal"; and (8) in certified appeals to the Supreme Court, the opinion of the Appellate Court under review and the order granting certification. (Practice Book § 67-8).
The main question becomes deciding which pleadings, etc. are "relevant." The commentary provides general guidance. For example, it is not appropriate to include the entire underlying trial court file; only documents relevant to the "proper presentation of the issues" on appeal should be included. Moreover, lengthy memoranda of law in support of motions, lengthy exhibits attached to documents, and officer's returns should not be included in Part I, unless those documents are relevant to the appellate issues. (Although those items are not appropriate for Part I, they may be included in Part II.)
The lawyer's goal should be to present an uncluttered version of the trial court file to the court, and provide the judges with quick, easy access to an overview of the proceedings and the relevant documents. One size does not fit all when deciding what documents should be included in Part I. Appellate counsel is encouraged to collaborate with trial counsel, opposing counsel, and the appellate case manager to avoid the error of submitting an incomplete Part I.
Although the primary obligation is upon the appellant to create and include a Part I, if the appellant fails to include any documents in its Part I that are required by Practice Book § 67-8, then the appellee "shall" include such documents in its own Part I. Additionally, if the trial court issues an articulation or correction after the appellant has filed a brief, but before the appellee has filed, the appellee is required to include the articulation or correction in its own Part I. The appellee's appendix is due at the time it files a brief.
Parties still have the opportunity to submit documents outside the confines of Part I by including an optional Part II in their appendices. Part II may include documents that are not appropriately included in Part I (e.g., transcript pages), and thus serves the same function as old appendices. (Practice Book § 67-8(a)(2) & (c)). The submission of Part II is optional unless the party cited unpublished cases in the brief; those cases must be provided to the court in a Part II. It is crucial to note that double submission of documents is not permitted. An appellant can only include "any other" documents not previously included in Part I, and an appellee "should not include the portions of the proceedings below already included in the appellant's appendix." (Practice Book § 67-8(a)(2) & (c)).
Several important exceptions to these new rules exist. First, the rule changes only apply to appeals filed on or after July 1, 2013. The old rules remain in effect for any appeals pending on July 1. Any lawyer wishing to utilize the new rules in appeals filed before July 1 should file a motion requesting permission to do so.
Second, in criminal and habeas appeals filed by incarcerated self-represented parties, Part I must be submitted by the appellee. (Practice Book § 68-1(b).) Note that the appellant must be both incarcerated and self-represented in order for the state to assume the burden of creating Part I. Third, additional specific rules apply to administrative appeals. (Practice Book § 67-8A.)
Preparation of Part I and Part II is subject to important technical considerations. For example, counsel must now separately certify that all personal identifying information that is protected by rule, statute, court order or case law has been redacted from both the brief and the appendix. (Practice Book §§ 67-1 and 67-8(d).) This information includes, among other things, an individual's date of birth, motor vehicle operator's license number, Social Security number, and other personal identification numbers. (Practice Book § 4-7). Therefore, counsel is forewarned to leave sufficient time in the brief writing period to ensure that all of the documents included in both portions of the appendices have been properly redacted.
Additionally, all appendices must be single-sided. This is in contrast to earlier rules that required a yellow record or appendix over 50 pages to be double sided. The rule also explicitly requires appendices to have the same margins as briefs. Minutes from the Appellate Rules Committee meeting indicate that the purpose of these rules is to facilitate reading. Double-sided copies can be difficult to read, and the left sides of documents are often hidden by binding. Moreover, Parts I and II of the appendix should be bound together, unless either part exceeds 150 pages, in which case the two sections should be bound separately.
Binding Part I, Part II, or both Parts to the brief is permitted, provided the integrity of the binding is not compromised. Regardless of binding, Part I and Part II should be consecutively paginated. Common sense provides a good rule of thumb for applying these technical rules. For example, if Part I is 150 pages and Part II is five pages, binding together should not be problematic. The bottom line is that the court should be able to read easily the documents presented.
The rules do not expressly require that the documents be exact copies of the documents filed with the trial court. However, this is the intent given the commentary guidance indicating that Part I is intended to serve the same purpose as the old yellow record. Appellate counsel is strongly encouraged to review the official trial court file and use copies of the official documents, or at least time-stamped copies from trial counsel's file. Lastly, if an excerpt of a document is included, such as a transcript page or portion of a memorandum of law, ellipses should be written across the top of the excerpted page, and be paired with the document's cover page and signature page. These additional pages will assist the court in identifying from where the excerpt came and that it was from an appropriately filed document.
A careful reading of the new rules is suggested for any lawyer filing an appeal on or after July 1 because the rules are detailed and have specific requirements that are beyond the scope of this overview. It is strongly recommended that questions about Part I be directed to appellate case managers, who have had ample experience compiling yellow records, and thus are well-equipped to answer questions.
Lastly, appellants are encouraged to compile their appendix — especially Part I — well in advance of their filing deadline and after consulting with opposing counsel. Good time management and collaboration will ensure that your appendices comply with the new requirements.•