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Lower Court Documents: The Best Practices to Ensure Preservation of a Potential Record on Appeal

by | Oct 25, 2018

The question often arises as to whether the same exhibits to motion practice must be included twice (e.g., in each of multiple motions for Summary Judgment) at the lower Court level simply to preserve the Record on Appeal at the Appellate Division.

One might posit that even if there are separate Orders rendering decisions on each of the motions, a litigant might simply want to reference the exhibits in one of the other motions and not actually duplicate them yet another time. This approach, however, is shortsighted. Simply because the motions were heard by the same judge does not mean that the Appellate Division will have access to the complete lower court Record.  Thus it is the wiser approach to include all of the exhibits in the lower Court motion papers that one expects to include in the Record on Appeal on a particular motion sequence.  Handling it that way will help to avoid getting stuck with potential motion practice, Supplemental Record costs, rejected filings, etc. at the Appellate Division level.

Bottom line, the safest way to preserve your Record on Appeal is to include everything in your lower Court motion papers that might be needed at that appellate level.

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