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

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 short sighted. 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.

Accordingly, it is the less “penny-wise, pound-foolish” notion to include all exhibits in your lower Court motion papers so that you do not get stuck with potential motion practice, Supplemental Record costs, rejected filings, etc. at the Appellate Division level.

Somewhat related is the inclusion of minuscripts in lower Court filings covered by the Appellate Division, Second Department. While you may intend to cut down on duplication costs below, the Second Department categorically rejects minuscripts. Accordingly, when assembling the Record on Appeal in the Second Department, simply duplicating the lower Court papers will not suffice unless minuscripts are replaced with full size transcripts.

Bottom line, the safest way to go is to include everything in the lower Court that might be needed at that appellate level.  Thus your Record is preserved.