Wednesday, November 17, 2010

Records on appeal

Under Fed. R. App. Proc. 30(b), appellants and appellees are to coordinate the production of a joint record on appeal, the appendix of the relevant filings and transcripts from the lower court proceedings to assist the appellate court in their review of the case. A number of courts of appeal, including the Seventh and Ninth Circuits, have very common-sense approaches to this: they've established local rules whereby each side submits their own appendix.  Others haven't caught on to the game-playing that can go on, and go with the default federal rule.  So, I, as an appellant, negotiate with the appellee settling parties about what appears in the record.

Time after time, I see the appellees asking to kill countless trees by burying the record on appeal with paper from the lower court. One might think they're doing this to just increase the costs of litigation for the other side, since the appellants are required to prepare the record on appeal—except Rule 30(b)(2) permits the appellant to take the position that the additional material is unnecessary, and ask the other side to advance the costs of providing the designated material. The real reason is, I would imagine, an insulting one: to persuade the judge that there's so much work to be done that the judge should just be lazy and throw up their hands and ignore the issues rather than dig through all the paper. This certainly never fooled the judges I clerked for, but it must work often enough to be worth the death of all these trees. There aren't any real sanctions with any bite for making appellate judges' lives harder like that, notwithstanding the clear command of Rule 30(a)(2) not to be pointlessly including material, so we have this wasteful game.

I'm seeing this now in one of my pending appeals; the appellees are trying to bury the record in meaningless paper that has nothing to do with the issues on appeal. I can't stop them, so I shrug my shoulders and ask for the payment that Rule 30(b)(2) requires. That should be the end of it, but for some reason the lawyers—often the same lawyers that have made me write a check to post an appeal bond to ensure they could recover their costs in the unlikely event they won on appeal—want to argue with me that the material is essential to the record on appeal and it's up to me to pay for including the material in the record on appeal. I generally don't play this game, but I recently had cause to write the following paragraph in a letter to defense counsel regarding the copying costs of one small three-page slice of the hundreds of pages they wanted included (material redacted to protect the guilty):
Docket No. [yyy]. [This docket entry] applies to the 10-[xxxx] cross-appeal and is not relevant to [my appeal]. I agree that if you decide to prosecute the cross-appeal, you will be required to advance the costs for us to include this docket entry in Volume 1 of the Record. Should you prevail in [the cross-appeal], you can petition to receive the approximately $5 to $20 in costs from the plaintiffs' appeal bond, but I understand if you wish to bill another $100 to your client to argue about this some more.

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