Young Lawyer's Corner: Avoiding Federal Appendicitis

Young Lawyer’s Corner: Avoiding Federal Appendicitis

Your client just lost a hard-fought trial, and you have filed guidelines, and practitioner checklists. These reveal that your notice of appeal with the district court. Among your two additional styles of appendix—which differ not only next steps, you’ve thought carefully about what errors to with respect to content but also with respect to timing and raise, how to structure your arguments, the tone of your the need to confer with opposing counsel—are at least writing, and what cases to rely on. You have probably also available, if not required. thought about completing the initial appellate case filings, such as the docketing statement and entry of appearance Under the standard joint appendix model, “[t]he forms (if you were retained for the appeal). One thing that parties are encouraged to agree on the contents of the probably has not crossed your mind is organizing the appendix[.]” Fed. R. App. P. 30(b)(1). The appendix is appendix. generated at the beginning of the appeal and filed with the appellant’s brief. Fed. R. App. P. 30(a)(3). Although But it should. As the junior associate on an appellate this approach has the advantage of permitting the parties team, you will likely be responsible for compiling the to work from and cite to the same appendix, it has the appendix, which is both art and science. On the one hand, distinct disadvantage of guesswork. How can the parties in most circuits, the appendix is your opportunity to tell predict with certainty, before any briefs are written, which the appellate panel what materials are most important to documents in the record below they will cite? Because resolving your case, and to give the judges a bench-side they cannot, the result is often an over-inclusive—and thus reference. When prepared properly, an appendix can be ineffective—appendix. an extension of the advocacy in the briefs. On the other hand, circuit courts each have their own rigid regimes To the rescue rides the deferred joint appendix. This governing the content and timing of the appendix. Failure variation on the standard theme is required in the Federal to follow these rules can lead to sanctions—for client and Circuit and is an available option in the First, Second, attorney alike. Fourth, and D.C. Circuits. See, e.g., 2d Cir. R. 30.1(c); 1st Cir. I.O.P. VI(C). It has its roots in Federal Rule of Appellate So what exactly is an appendix? It is a readily available, Procedure 30(c), but its use is nonetheless “not favored” in logically organized compilation of the record documents the Third Circuit. See 3d Cir. R. 30.4. Here, too, the parties most pertinent to the appeal. (Not to be confused with agree on the contents of the appendix, but the appellant an “addendum,” which includes, for example, cited does not file it until after the appeal is fully briefed. The unpublished authorities.) Assembling one is a deceptively later timing removes any guesswork as to the contents; simple mandate. Selecting the appropriate materials and generally, if a record document is cited in one of the formatting an effective, rule-compliant appendix is often briefs, it goes in the appendix. Yet, this approach has its time-consuming and strategic. own downside: The parties cannot cite to an appendix that does not yet exist, so they must file two sets of briefs. Styles of Appendices Initial briefs, with cites the record itself, i.e., “Dkt. 22,” are Recognize at the outset that the parameters of an followed by final briefs approximately a week after the appendix vary—often widely—from circuit to circuit. In appendix is filed, in which the record citations are replaced theory, Federal Rules of Appellate Procedure 30 and 32(b) with citations to the appendix. govern content and format. In practice, however, only the Third Circuit requires the standard joint appendix that the Not every circuit requires parties to confer on the contents. Federal Rules describe. Everywhere else, the appendix is To the contrary, parties in the Fifth, Seventh, Eighth, Ninth, governed by a combination of local rules, administrative Tenth, and Eleventh Circuits file anindividual appendix, or

© 2014 Winston & Strawn LLP record excerpts. In these courts, each party compiles and because compiling the appendix may take substantially cites to its own appendix, which it files along with its briefs. longer than you anticipate, it’s incredibly important to See, e.g., 10th Cir. R. 30.1(A)(1) (“The appellant must file an determine early how quickly you need to begin to prepare appendix sufficient for considering and deciding the issues the appendix and whether you need to work with the other on appeal.”); 10th Cir. R. 30.2(A)(1) (permitting supplemental side to do so. appendix by appellee). Local rules sometimes prescribe an exclusive list of possible contents. See, e.g., 5th Cir. Content. At a minimum, you should expect to include R. 30.1.4, 30.1.5. Arguably, this approach combines the in the appendix the materials required by Federal Rule benefits of the standard and deferred joint appendices by 30(a)(1): a list of relevant docket entries in the proceeding removing both guesswork and the need for two sets of below; relevant portions of the pleadings, charge, findings, briefs. or opinion; the judgment, order, or decision appealed from; and other parts of the record to which the parties wish to Finally, there generally is no appendix in the Sixth Circuit, direct the court’s attention. In some circuits (the Fifth, for where “[a] party may not include documents from the example), the list is exclusive. In others, a litigant may have district court’s electronic record in an appendix.” 6th Cir. R. to make strategic choices. See, e.g., D.C. Cir. Handbook of 30(g)(1). Consequently, in appeals from district-court cases Practice & Internal Procedures, pt. IX.B.1 (“Memoranda of with an electronic record (other than certain habeas corpus law must not be included in the appendix unless there is actions), “an appendix is unnecessary and must not be an issue as to which arguments were raised in the district filed. The court will have the district court electronic record court or some point that was admitted below.”). You need available.” 6th Cir. R. 30(a). Instead, “[t]o facilitate the not worry, however, about precluding later reliance on a court’s reference to the electronic record, each party must document by failing to include it in the appendix. “Parts include in its principal brief a designation of documents[,]” of the record may be relied on by the court or the parties which includes those documents one otherwise would even though not included in the appendix.” Fed. R. App. include in an appendix. 6th Cir. R. 30(g)(1). P. 30(a)(2); see, e.g., D.C. Cir. R. 30(b) (“Any portion of the record, whether or not included in an appendix, may be Review the Rules Early and Often to relied upon by the parties and by the court.”). Avoid Pitfalls Settling on the correct style of appendix is important, Confidential and Sealed Documents. Often, sealed but it is just the first step. Among the various nuances, material to be included in an appendix must be submitted four categories of requirements are particularly likely to in a separate volume. 1st Cir. R. 30.0(g); 10th Cir. R. 30.1(c) cause heartburn: timing, content, treatment of sealed or (4). Here, too, each circuit has its own unique requirements. confidential material, and formatting. In the Fourth Circuit, for example, a sealed filing must be accompanied by a detailed certificate of confidentiality. Timing. Under Federal Rule of Appellate Procedure 30(b) 4th Cir. R. 25(c)(1), (3). The Federal Circuit requires litigants (1), the appellant has only 14 days after the record is filed to file two versions of an appendix (or brief) containing to designate materials to include in the appendix. While confidential information—a confidential version and a the Third Circuit maintains this procedure, nearly every public version with redactions. Fed. Cir. R. 30(h). Further, other circuit deviates from it. As we have explained, a joint the public version must summarize (without breaching appendix may be due along with the opening brief or not confidentiality) the confidential information. And absent an until after the reply brief. An individual appendix is usually order from the Seventh Circuit, documents sealed in the due with the party’s brief. That said, in circuits requiring the district court are automatically unsealed after 14 days. 7th appellant to be solely responsible for the appendix, the Cir. I.O.P. 10. appellee may have the opportunity to submit additional record excerpts as necessary. See 5th Cir. R. 30.1.2 (due Formatting. For the basics, Federal Rules of Appellate with appellee’s brief); 9th Cir. R. 30-1.7 (same); 11th Cir. R. Procedure 30(d) and 32(b) set a generally followed 30-1(b) (due within seven days of appellee’s brief). Primarily standard: Begin with a table of contents, followed by

© 2014 Winston & Strawn LLP documents in chronological order; use a white cardstock include opinion on appeal in appendix). Not even pro se cover; and print the appendix on 8 1/2 by 11-inch paper appellants are immune from seeing their case dismissed unless it includes odd-sized documents. Beyond that, due to an improperly prepared appendix. See Liberty the circuits again diverge. In the Second Circuit, be sure State Bank & Trust v. Metro Passbook, Inc., 966 F.2d 1452 that the PDF’s page-search field matches the appendix’s (6th Cir. 1992) (dismissing where required materials were sequential numbering scheme. 2d Cir. R. 32.1(a). The Fifth omitted, index was “practically indecipherable”). Circuit requires that the appendix be titled “RECORD EXCERPTS.” 5th Cir. R. 30.1.7(d). Appendices “shall be The intricate rules governing appendices, and the circuits’ bound across the top” in the Eleventh Circuit, where they willingness to sanction noncompliance, reflect the fact that must also include indexing tabs “affixed to the first page of judges are understandably protective of their time and each document” that “correspond to the original document resources. Consequently, notwithstanding the investment numbers assigned by the district court and noted on the required to produce an effective appendix, the goal is district court docket sheet.” 11th Cir. R. 30-1(e) & I.O.P. to make it unnecessary. Judges and their law clerks do not enjoy sifting through the appendix—no matter how Failure to Comply May Result in Sanctions well organized—and do so only when they have to. Save It is embarrassing (both for you and the other lawyers them the trouble, and advance your client’s cause in the on your team) to have an appendix “bounced” by a process, by making credible arguments in the brief that court clerk’s office for failing to comply with the relevant explain the relevant portions of the record clearly and rules. That said, a deficient-filing notice is not the worst accurately. that can result from a noncompliant appendix. Although appendices are often an afterthought, lawyers would do Originally published in ABA Section of Litigation Appellate well to follow the circuit’s careful guidance. Under Federal Practice Journal, Fall 2014, Vol. 34 No. 1 © 2014 by the Rule of Appellate Procedure 30(b)(2), “if any party causes American Bar Association. unnecessary parts of the record to be included in the appendix, the court may impose the cost of those parts on that party.” Moreover, “[e]ach circuit must, by local rule, Key Contacts provide for sanctions against attorneys who unreasonably and vexatiously increase litigation costs by including unnecessary material in the appendix.” Id. (emphasis added). Accordingly, denial of costs on appeal is among Eric M. Goldstein the most common remedies for appendicitis. 3d. Cir. R. Litigation, Washington, DC 30.5(b); e.g., Taylor v. Amcor Flexibles, Inc., 507 F. App’x 231, 234 n.3 (3d Cir. 2012).

But a bloated appendix is not the only ill the circuits cure Eric M. Goldstein is a litigation associate in the Washington, with sanctions, and costs are not the only sanctions courts DC office. He is a member of the firm’s nationwide impose. Indeed, a deficient appendix can result in thecourt appellate and critical motions practice and its global dismissing the appeal entirely. E.g., Abner v. Scott Mem’l international arbitration practice. Hosp., 634 F.3d 962, 964 (7th Cir. 2011) (collecting cases from the Third, Fourth, Seventh, and Ninth Circuits for Mr. Goldstein’s appellate experience includes presenting Fed. R. App. P. 30 violations); Kushner v. Winterthur Swiss oral argument in the Sixth Circuit, and serving as counsel Ins. Co., 620 F.2d 404, 408 (3d Cir. 1980) (dismissing and in numerous cases before the Supreme Court of the taxing costs to appellant’s counsel where required docket United States and the federal courts of appeals. One such entries were omitted). And sanctions can reach both appeal, on behalf of McKesson Corporation, was the sixth client and counsel. 1st Cir. R. 30.0(f), 38.0; Sambrano v trip to the D.C. Circuit for a case that had been actively Mabus, 663 F.3d 879 (7th Cir 2011); A.M. v. Butler, 365 F.3d litigated in federal court since a 1984 Iran-U.S. Claims 571, 572 (7th Cir. 2004) (censuring attorney for failing to Tribunal ruling in McKesson’s favor. McKesson won a final

© 2014 Winston & Strawn LLP merits judgment and successfully opposed Iran’s petition for certiorari. See McKesson Corp. v. Islamic Republic of Iran, 672 F.3d 1066 (D.C. Cir. 2012), cert. denied, 133 S. Ct. 1582 (2013). Iran’s consolidated appeal of three awards of McKesson’s attorneys’ fees is pending.

Christopher M. Bruno Litigation, Washington, DC

Christopher Bruno is a litigation associate in the firm’s Washington D.C. office who practices in a variety of contexts, including patent litigation, health care, and appellate litigation.

Mr. Bruno has contributed to appellate briefs in the U.S. Supreme Court and U.S. Courts of Appeals of the Sixth, Ninth, and Federal Circuits, the California Supreme Court, and the U.S. District Court for the District of Columbia, as well as significant motions in a number of federal district courts.