Perils of an Inadequate Appendix on Appeal

, New York Law Journal

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Thomas R. Newman

A concern over the high cost of reproducing a full record on appeal led to the adoption of the "appendix method" as an alternate means of prosecuting an appeal. Use of the appendix method is governed by CPLR 5528 "Content of briefs and appendices," and 5529 "Form of briefs and appendices," as supplemented by the individual rules of the Court of Appeals and each of the four departments of the Appellate Division.1 There are no uniform rules governing appendices so it is always necessary to check the rules of the court to which the appeal is being taken.

CPLR 5528(a)(5) permits the appellant to file "an appendix…containing only such parts of the record on appeal as are necessary to consider the questions involved." If the parties agree, a joint appendix bound separately may be used and filed with the appellant's brief.2 Two important points must be kept in mind: First, use of the appendix method does not eliminate the requirement of settlement of the entire trial transcript, absent a stipulation to the contrary. "It is primarily because a complete typewritten transcript settled by the trial court is available, that an appellant is authorized, without further settlement or court approval," to employ the appendix method.3 In the absence of the parties' consent, the court does not have the power under CPLR 5525 to settle any transcript which fails to include the entire transcript of the stenographic minutes of the trial.4

Second, the appellant must also include "those parts [of the record] the appellant reasonably assumes will be relied upon by the respondent." The court rules reinforce this latter requirement. Under the First Department's Rule 600.10(c)(2)(ii), an appendix must include "[r]elevant excerpts from transcripts of testimony or papers in connection with a motion. These must contain all the testimony or averments upon which appellant has reason to believe respondent will rely. Such excerpts must not be misleading because of incompleteness or lack of surrounding context." Each of the other departments has a similar rule.

What should be included in the appendix is not a matter of guesswork. Before preparing the appendix, the appellant's counsel should consult with the respondent's counsel to determine which parts of the record will be relied upon by the respondent. If counsel are unable to reach agreement as to the contents of the appendix, the respondent may file a supplemental appendix or, if the omissions from the appellant's appendix are substantial and material, the respondent may move to dismiss the appeal or compel the appellant to file a proper appendix.

Counsel's Duty

Courts have refused to consider claims of reversible error where the appendix was insufficient to enable the court to decide the issue presented. Several Tenth Circuit decisions make it clear that an "appellant who provides an inadequate record does so at his peril. "5 Thus, when affirming a grant of summary judgment for the defendant the U.S. Court of Appeals for the Tenth Circuit stated, "It is not this court's burden to hunt down the pertinent materials. Rather, it is Plaintiff's responsibility as the appellant to provide us with a proper record on appeal."6 New York appellate judges feel the same way. "An appellate court should not be subjected to the task of untangling and mastering the facts from an inadequate and incoherent appendix."7

In Travelers Indemnity v. Accurate Autobody,8 the insurer brought a declaratory judgment action seeking a determination of its rights and obligations under a general liability insurance policy following an automobile accident. Although the parties cross-appealed from the district court's judgment, "[n]one of the parties thought it necessary, however, to include that policy in the record on appeal. Collectively they have informed us of only four words from the policy—'used in connection with.' A party who seeks to reverse the decision of a district court must provide an adequate record for this court to determine that error was committed. Given the deficient record here, we summarily affirm on the appeal and cross-appeal."

The Wisconsin Supreme Court said this about the importance of an adequate appendix that conforms to the rules: "The volume of work to be done by this court does not leave time for the justices to search the original record for each one to discover, if he can, whether appellant should prevail. An appendix conforming to [the rules] makes readily available to each justice the matters which he must know if he is to give intelligent attention to the issues presented by the appeal. It is counsel's duty to the court as well as to his client to furnish it."9 The court quoted the following practical considerations from an earlier opinion of its chief judge then on the Wisconsin Court of Appeals):10

This court has a very high caseload. In our struggle to keep up and make sure cases do not lag, we take our work home or on the road with us while the file itself remains at the court. The briefs are all we have when we are operating under these circumstances. It is exasperating, to say the least, to read a brief and not be able to see for ourselves how the trial court dealt with an issue before us on appeal. We have to wait until we are back at court to dig out the file and search for the parts of the record that are pertinent. And that goes for all three judges on a panel. The good appellate litigators, and there are many, provide us with the information we need so that we can do our work in an efficient manner. How hard can it be for all attorneys writing a brief to do the same?

In E.P. Reynolds v. Nager Electro,11 the New York Court of Appeals reversed an order of the Appellate Division, which had affirmed a judgment for damages recovered by the respondent, "solely upon the ground that the appendix submitted to the Appellate Division by the appellant was insufficient to permit determination of the questions sought to be raised. Legal and factual issues were not considered." While the Court of Appeals agreed with the Appellate Division that "it is not required to determine an appeal with the aid of an appendix which it considers inadequate," the court found:

Should the natural caution of the advocate and the threat of cost sanctions fail to provide an adequate appendix, the court may direct the appellant to submit a further appendix or it may dismiss the appeal unless appellant files a further appendix within a specified period of time.

Whichever course is chosen, the court's control over the adequacy of the appendix is effectively maintained while, at the same time, appellant avoids, at least initially, the serious sanction of an affirmance without consideration of the merits. Harsher penalties might defeat the purpose of CPLR 5528 by encouraging the careful advocate to submit an unreasonably lengthy appendix in order to avoid the extreme consequence of a mistaken belief that only a lesser portion of the record needed to be printed.12

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