I am back from my Easter vacation (the cherry blossoms were lovely in DC) and catching up.
The First Circuit has amended its Local Rule 30 on the Appendix.http://www.ca1.uscourts.gov/
The highlights are:
– file 5 copies
– save some trees – print on both sides of the page. This is new.
– consult the Notice of Counsel Regarding Contents of the Appendix (on the website above). Basically, this says the big fat total record doesn't go up, so you need to make sure that what the Court of Appeals needs to see is in the addendum and appendix (while at the same time the appendix should not be "unduly large.") You can still cite parts of the record not included in the appendix per FRAP 30(a)(2). To me this means you don't need to include in the Appendix copies of things that you have to cite to in your brief but everyone agrees on, and you should get your act together early on to figure out what you really need to include from transcripts and exhibits if it's that kind of appeal. As the Notice says, don't put those transcript portions in the record just because you cite them – they should be "necessary for an understanding of the issues on appeal" — in other words, go to what you are arguing about.
The Notice also provides a laundry list of what "typically" should be included. If you just read the Notice, it sounds like nothing is absolutely required any more. But FRAP 30 still says the appellant "must" prepare an appendix with the docket sheets etc. So I'd still include the Rule 30(a) mandatory materials. The rest of the list is intuitive – if your issue is a jury instruction, provide it, any other relevant portion of the jury charge, and the transcript portions about objections (because the First Circuit is so strict on preservation, include all those objections as a matter of course).
- a sanction provision for attorneys "who unreasonably and vexatiously increase litigation costs by including unnecessary material in the appendix as provided for in Local Rule 38.0."
It also talks about in forma pauperis processes, translations, and treatment of sealed materials. The other rules (FRAP 30 and 32 re Appendix and Local Rule 28 re Addendum) are still relevant.
Regarding the Addendum, the Notice says the appellant must include the judgments, decisions, rulings or orders appealed from; any supporting explanation (e.g. a written or transcript opinion) and, if the appealed decision was in turn a challenge to a lower level decision (e.g. magistrate, ALJ), that decision, too. The other items listed in Local Rule 28.0 for the Addendum are optional but "encouraged." These are, like the Appendix, the relevant portions of the record, up to a maximum of 25 pages excepting the required judgment and any statutes or regs. In other words, you put the really important stuff in your Addendum that you want the judges to see (up to 25 pages); you put the other stuff, that the clerks need to see, in the Appendix. Some judges have candidly told me how they take the briefs home to read and not the appendices, so it's important to use that Addendum to maximum advantage.