In essence, an Appendix is an abbreviated Record on Appeal. When a trial goes on for weeks but only a portion of the transcript is pertinent to the appeal, an Appendix can be filed in order to eliminate the additional documents that could possibly dilute the Appellant’s argument. Our clients will often choose to file an Appendix instead of the traditional Record on Appeal for this reason or simply because the Appendix method is usually more cost-effective.
When an Appellant files an Appendix with the Appellate Division, First or Second Department, these Courts require that the lower court file be subpoenaed to the Appellate Division. Once the subpoena is so-ordered by the Appellate Division and filed with the county court, it is the lower court clerk’s responsibility to transmit the documents to the Appellate Division.
However, when an Appellant perfects an appeal on the Appendix method in the Appellate Division, Third or Fourth Department, these Courts require that one copy of the Record on Appeal be served and filed in addition to the Appendix. This means that after compiling the Appendix documents, numbering the pages, creating headnotes and an Appendix table of contents, the Appellant must repeat these steps for a Record on Appeal, including even those documents which the Appellant elected to exclude from the Appendix. According to the rules of appellate practice for the Third and Fourth Departments, the Appellant is required to serve and file a single copy of the full Record on Appeal in addition to filing 10 copies (and serving two) of the Appendix.
If you are filing an Appendix in either the Third or Fourth Department in order to save money, you might be cutting off your nose to spite your face. Unless the anticipated Record on Appeal would be exceedingly large, it usually is more efficient in AD3 and AD4 to simply compile a Record on Appeal instead of serving and filing both an Appendix and a Record.