When compiling the documents that will constitute a Record on Appeal or Appendix, many appellate attorneys ask the same question regarding Memoranda of Law. Is it appropriate or acceptable to include them in the filing?
There is no rule at the New York State Appellate Division Departments that states a Record or Appendix will be rejected if Memos of Law are incorporated. The standard answer regarding whether they should be incorporated as part of the appeal is usually that the Memos of Law may be included only if they have independent relevance1. This means that either these lower court briefs contain admissions of fact or there is dispute as to whether or not a point was raised below.
If, however, a party only filed a Memorandum of Law instead of an Affirmation in Support or Opposition, then the Memo should always be included in the Record or Appendix regardless of whether it has independent relevance or not. In omitting such a Memo, a key portion of the case documents would be missing from the Record/Appendix and perhaps also the ensuing briefs, skewing the appellate judge’s decision.
If a Memo of Law either has independent relevance or was filed in place of an affirmation and must be included in the Record on Appeal or Appendix, it is customary to then include all of the Memoranda of Law into the filing.
1 However, if the Judge rendering the decision goes to the extent of pointing out the Memos of Law in his decree, I always advise my clients that they should automatically be included to accurately have a complete Record on Appeal.