District/Municipal Courts Rules for Appellate Division Appeals  Rule 18: Appendix to the briefs

In appeals under Rule 8C, the appellant shall prepare and file an appendix to the briefs. The appendix shall be filed and served with the brief. If separately bound, six copies of the appendix shall be filed with the trial court, and one shall be served on counsel for each party separately represented, unless the court shall order or direct the filing or service of a lesser number and except as otherwise provided in subdivision (e) of this rule.

The appendix shall contain: (1) the notice of appeal; (2) a copy of the docket entries in the trial court proceedings; (3) the findings, if any, and relevant portions of the pleadings; (4) the judgment, order, decision or rulings in question; (5) the transcript or relevant portions thereof; and (6) any other parts of the record for appeal which are necessary for the full understanding of the issues presented. Except where they have independent relevance, memoranda of law in the trial court should not be included in the appendix. The transcript need not be included where the issue or issues presented for appeal are raised solely by the pleadings.

The fact that parts of the record are not included in the appendix shall not prevent the parties or the Appellate Division from relying on such parts, provided that the Appellate Division may decline to permit the parties to refer to portions of the record omitted from the appendix unless leave be granted prior to argument.

The parties are encouraged to agree as to the contents of the appendix. In the absence of an agreement, the appellant shall, not later than ten days after receipt of notice from the Appellate Division of the receipt of the appeal, serve on the appellee, a designation of the parts of the record which he or she intends to include in the appendix. If the appellee deems it necessary to direct the particular attention of the Appellate Division to parts of the record not designated by the appellant, he or she shall, within ten days after receipt of the designation, serve upon the appellant, a designation of those parts. The appellant shall include in the appendix the parts thus designated. In designating parts of the record for inclusion in the appendix, the parties shall have regard for the fact that the entire record is always available to the Appellate Division for reference and examination and shall not engage in unnecessary designation.

Unless the parties otherwise agree, the cost of producing the appendix shall initially be paid by the appellant, but if the appellant considers that parts of the record designated by the appellee for inclusion are unnecessary for the determination of the issues presented he or she may so advise the appellee and the appellee shall advance the cost of including such parts. In the event of a dispute as to the parts to be included or the advance required to include them, the matter shall be settled by the Appellate Division on motion and notice. The cost of producing the appendix shall be taxed as costs in the case, but if either party shall cause matters to be included in the appendix unnecessarily, the Appellate Division may impose the cost of producing such parts on the party.

[Reserved]

The pages of the appendix shall be consecutively numbered and the parts of the record which are reproduced therein shall be set out in chronological order. The appendix shall commence with a chronologically ordered list of the parts of the record which it contains, with references to the pages of the appendix at which each part begins. When an appendix relates to two or more cases or to more than two parties, the appendix shall indicate the case to which each paper belongs and by whom it was filed. Unless the party filing the appendix reproduces the entire transcript of testimony, he or she shall, preceding each portion of testimony transcript reproduced, insert a concise statement identifying:

(1) the witness whose testimony is being reproduced;

(2) the party originally calling the witness;

(3) the party questioning the witness; and

(4) the classification of the examination (direct, cross, or other).

When matter contained in the transcript of proceedings is set out in the appendix, the page number of the original transcript at which such matter may be found may be indicated in brackets immediately before the matter which is set out, unless it already appears on the matter as set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (captions, subscriptions, acknowledgments, etc.) may be omitted. A question and its answer may be contained in a single paragraph.

Exhibits, and transcripts or portions thereof designated for inclusion in the appendix, may be contained in a separate volume, or volumes, suitably indexed. Six copies thereof shall be filed with the appendix and one copy shall be served on counsel for each party separately represented.

On motion, the Appellate Division may in specific cases dispense with the requirement of an appendix and permit appeals to be heard in whole or in part on the original record, with such copies of the record, or relevant parts thereof, as the Appellate Division may require. In such cases the Appellate Division shall order the clerk of the trial court to assemble and transmit to the Appellate Division the original record or parts thereof in such form and in such manner as it may direct.

This rule is limited in its application to appeals under Rule 8C, that is, appeals on the record of proceedings. No appendix to the briefs is required for appeals under Rule 8A or Rule 8B.

This rule differs from Mass. R.A.P. 18 in that the first paragraph of section (a) is added regarding filing, service and copies of the appendix. Also, the contents of the appendix are somewhat different under this rule.

Section (b) differs from its Mass. R.A.P. counterpart in that in this rule the time for service of the designation of parts of the record to be included in the appendix (assuming no agreement on this issue) is within ten days after receipt of notice that the Appellate Division has received the appeal. Another difference is that the appellant is not required under this rule to include in the designation a statement of issues for appeal.

This rule does not adopt section (c) of Mass. R.A.P. 18 allowing an alternate method of designating the contents of the appendix.

Section (d) is identical to the Mass. R.A.P. version, except reference is made to the "transcript of proceedings" rather than the "reporter's transcript of proceedings", since most District Court transcripts are based on the tape recording.

Under section (e), if exhibits or transcripts are contained in separate volumes or sets of volumes, six copies of the latter must be filed, that is, one with each copy of the appendix (rather than five as required in the Mass.R.A.P.)

Section (f) is identical to the Mass.R.A.P. version except the last sentence has been added to expressly authorize the Appellate Division to order the original record or any part thereof from the trial court clerk, as needed.