Preparing the Appendix in Federal Appeals – Q3 2022 Facts & Findings

If you are reading this article, you are probably an occasional practitioner in federal appeals or the paralegal for an occasional practitioner in federal appeals. You probably have worked on a few federal appeals in the past. You probably spent a lot of time figuring out all the steps required to prepare the appellate record and appendix. You probably have forgotten some of the steps – maybe most of the steps (possibly all of them). But certainly, you remember this: preparing the record and appendix was a confusing process.

If that is you, then bookmark this article. It will take you through the steps to prepare the appellate record and appendix for a federal appeal.

Some Ground Rules
This article will cover how to designate the record for your appeal, and how to prepare the appendix. (The Fifth and Ninth Circuits use “excerpts of record” for the same concept. Unless otherwise specified, references to “appendix” in this article also refer to the excerpts of record.) This article will assume that you have timely and appropriately taken your appeal. This article will not cover special procedures or idiosyncratic local rules of particular circuits. There is no substitute for reading the applicable rules. (But for a good jump start, consider calling the help desk at your Court of Appeals. They are extremely helpful.)

Here is what this article will cover:

  • The differences between the record and the appendix (or excerpts of record)
  • How to order transcripts to complete the appellate record;
  • Whether you need to prepare a statement of issues;
  • What documents must be included in the appendix, what should be included, and what must not be included;
  • A step-by-step list for preparing the appendix (or excerpts of record);
  • Avoiding sanctions for an improper appendix.

What Is the “Record”?
The first step is to complete the appellate record. And before we do that, we need to understand what exactly we mean by the “record.” The “record” is the only reliable information about a case that the appellate court will ever have. “We use the word ‘record’ to mean the court’s entire file, including all filings, the audio recordings from the hearings, and all other documents in the court’s file, such as the court’s log notes and orders.”1

That is why attorneys so frequently reference the record. They say things like: “I need to make the record,” “let the record reflect,” “the record is clear,” “let us go off the record,” “for the good of
the record,” “put this on the record,” “is this in the record?” and so on. The point of everything a trial attorney does is to make the record.

So how do things get in the record? Making the record is, in large part, automatic. For example, everything filed in the CM/ECF system is in the record, including pleadings, motions, and orders. When it comes to trial, however, the attorney must take great care to make the record by raising all theories of the case, offering exhibits into evidence, and putting objections on the record. And as to critical witness testimony, that testimony becomes part of the record only if the transcripts are ordered. (More on that in a moment.)

What is the Appendix?
The record is everything that was ever filed in the district court. But appellate judges do not want to scour the entire record. Enter the appendix, whose “essential characteristics” are that it does not reproduce the entire record and that it includes just the parts of the record necessary to determine the issues presented by the appeal.2

What about the matters not included in the appendix? Do not worry: the record itself is always available to supply inadvertent omissions from the appendix.3

Think of the record as a buffet. The record has everything you could ever want (but mostly stuff you do not). The appendix is the respectable portion you bring back to your table. Like a buffet, when designating the record your goal is to satisfy every desire. Like the meal you plate for the table, when preparing the appendix your goal is portion control and to avoid indigestion.

How to Complete the Record
Assuming the trial attorney has gotten the evidence into the record at trial, the appellate record already exists, except for one thing: the reporter’s transcripts. So the first thing to do is order the reporter’s transcripts.

To do this, use the Transcript Order Form from www.uscourts. gov (Form AO 435). The order form must be filed within 14 days after filing the notice of appeal.4 (Caution: In some circuits, it is 10 days!)

This is for the record – the buffet – so be over-inclusive in order to satisfy every desire. Designate all hearings (unless you are really sure they are not necessary). Especially designate any hearings where the court announced its decision.

If you do not order all the reporter’s transcripts, then you have to file a Statement of Issues with your transcript order form.5 There is no form for this. The purpose of the statement of issues is to give the appellees a fair opportunity to order any transcripts they deem necessary to respond to your arguments. Thus, the downside to having to prepare a statement of issues is that it limits the arguments you can raise in your appeal and tips your hand to your opponents. All the more reason to order all transcripts.

Compiling the Appendix, Step-by-Step
Now that you have completed the record, it is time to compile the appendix. Here are the steps:

  1. Choose what documents go into the appendix. It is appellant’s burden to make certain that the appendix includes all of the transcripts and file documents necessary to demonstrate the error claimed.6 Appellant’s failure to provide an adequate record may result in dismissal or affirmance. You must include the judgment or order; the operative pleadings; the district court’s findings, ruling, or opinion; and the notice of appeal. You also must include the “relevant docket entries” and the other parts of the record “to which the parties wish to direct the court’s attention.” Do not include legal briefs (unless necessary to establish or defeat waiver). And most importantly, do not include the entire record.
  2. Compile the documents. Make sure they are the filed versions with the CM/ECF stamps. And be sure to include reporter’s transcripts.
  3. Check that the documents are text-searchable, bookmarked, and do not contain private or privileged matter (such as social security numbers, bank accounts, etc.).
  4. Organize the documents. Each volume must be no more than 300 pages, including the cover and index. Some circuits require the order on appeal to be included in the first volume. Even if
    not required, judges appreciate easy access to the decision on appeal. If your Circuit Rule 28 permits it, consider attaching the decision to the brief. Note that trial exhibits may be included in a separate volume.7 Consider this if you think you might need to add more trial exhibits later. If you need to add more trial exhibits and you are using a separate volume, you will avoid disturbing the pagination in the rest of your appendix. Your reporter’s transcript and trial exhibits should be arranged consecutively.
  5. Prepare the covers and indexes. The excerpts must begin with an index organized in the order the documents are presented. The index should describe the documents, exhibits, and portions of the reporter’s transcript contained in the excerpts; state the location where each item can be found in the district court record; and state the page or tab number where each item may
    be found in the excerpts. Note that the index will only be a placeholder at this point. You are not ready yet to include page numbers.
  6. Before proceeding, check if there are any additional documents that were omitted in Step 1.
  7. Paginate the appendix consecutively. The idea here is that if volume one ends on page 300, the next page is the cover of volume two, followed by the next page of your appendix at page
    302.
  8. Now that you have paginated the appendix, you can finalize the covers and indexes.
  9. Now that your appendix is complete, you can insert record citations into the brief.
  10. File the appendix simultaneously with the brief.

Avoiding Sanctions
The court has authority to sanction attorneys “who unreasonably and vexatiously increase litigation costs by including unnecessary material in the appendix.”8 Bear this in mind if you
are ever tempted to “throw the kitchen sink” into your appendix.

But do not be underinclusive either. The appendix must include everything necessary to fully analyze the issues in the appeal. Consider drafting the brief before compiling the appendix. This
will make it easy to know what to include. When in doubt, err in favor of being overinclusive – just do not overdo it.

1 United States v. Index Newspapers LLC, 766 F3d 1072, 1080, fn. 2 (9th Cir. 2014).
2 Adv. Comm. Notes to FRAP 30.
3 Id.
4 FRAP 10(b).
5 FRAP 30(b)(1).
6 FRAP 11(a).
7 FRAP 30(e).
8 FRAP 30(b)(2).

Author Biography:

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles.
email: tkowal@tvalaw.com

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