There are several reasons that an attorney would prefer to file an Appendix as opposed to a full Record on Appeal. The predominant one is the desire to limit the costs of the appeal. In the Appellate Division, the Appellant has a choice of filing a Record on Appeal or an Appendix. An Appendix, to put it simply, is a “lighter” version of the full Record.
The Record on Appeal consists of all documents filed at the lower court level, which led to the Order/Judgment being appealed. A Record on Appeal would consist of all Motion papers for each party, the attached affirmations and exhibits and any replies that were filed. Also included is the Notice of Appeal and Order being appealed. A Record on Appeal arising from a trial verdict would consist of the trial transcript, pleadings and any exhibits admitted into evidence and of course the Notice of Appeal and Order/Judgment being appealed. Most attorneys prefer to utilize the full Record since it gives the Appellate Division Justices immediate access to the documents which were reviewed by the lower court Judge.
The Appendix method normally consists solely of the documents to which each party would be citing in their respective Briefs. The Appendix method can lead to the exclusion of hundreds of documents which each party may deem unnecessary since they are irrelevant to their arguments. The Appellant may feel that this is the best way to go when a cap on costs is involved.
When the Appendix method is used in the First or Second Departments, it is required that the documents in the lower court be subpoenaed to the Appellate Division in order for the Court to have access to the full Record. This ensures that the Justices will be able to review documents that were omitted from the Appendix. The Court will not accept an Appendix for filing unless there is proof that the lower court documents have been subpoenaed. When the Appendix method is used in the Third and Fourth Departments, the Appellant is required to provide one copy of the Record on Appeal and file it with the Appendix copies.
When the Appellant chooses the Appendix method, he must be careful when omitting documents. He must ensure that the Appendix includes the documents which will be cited to in his Brief and should also include the documents the Respondent(s) will need to cite to in its Brief. In most cases, based on the arguments involved, the Appellant can usually determine the documents required by the Respondent(s). When a good faith effort has been made by the Appellant, but some of the Respondent’s documents have still been omitted from the Appendix, a Respondent’s Appendix can be filed as of right. If a good faith effort was not made then the Respondent can move to strike.
Most Appellants will look at the expense of both methods and determine which is more cost effective for their client.