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Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 18: Appendix to the briefs

Effective Date: 11/02/1998
Updates: Amended effective February 24, 1975 Amended June 2, 1976, effective July 1, 1976
Amended May 15, 1979, effective July 1, 1979 Amended April 25, 1984, effective July 1, 1984 Amended November 17, 1986, effective January 1, 1987 Amended effective February 1, 1991 Amended effective May 1, 1994 Amended June 11, 1997, effective July 1, 1997 Amended October 1, 1998, effective November 2, 1998

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(a) Duty of appellant to prepare and file; content of appendix; time for filing; number of copies

The appellant shall prepare and file an appendix to the briefs. In civil cases, the appendix shall contain: (1) the relevant docket entries in the proceedings below; (2) any relevant portions of the pleadings, charge, findings, or opinion; (3) the judgment, order, or decision in question; and (4) any other parts of the record to which the parties wish to direct the particular attention of the court. Except where they have independent relevance, memoranda of law in the lower court should not be included in the appendix.

In criminal cases, the appendix need not contain relevant portions of the transcript, but shall contain: (1) the relevant docket entries in the proceedings below; (2) a copy of the complaint or indictment; and (3) any paper filed in the case relating to an issue which is to be argued on appeal. Any party in a criminal case may include in an appendix to his brief any other parts of the record to which he wishes to direct the particular attention of the court.

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

Unless filing is to be deferred pursuant to the provisions of subdivision (c) of this rule, any appendix shall be filed and served with the brief. If separately bound, the same number of copies of the appendix shall be filed with the clerk as required by Rule 19(b) for the filing of the brief, and two shall be served on counsel for each party separately represented, unless the court shall by rule or order direct the filing or service of a lesser number and except as otherwise provided in subdivision (e) of this rule.

(b) Determination of contents of appendix in civil cases; cost of producing

The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than ten days after the date on which the clerk notifies the parties that the record has been assembled, serve on the appellee a designation of the parts of the record which he intends to include in the appendix and a statement of the issues which he intends to present for review. If the appellee deems it necessary to direct the particular attention of the court to parts of the record not designated by the appellant, he shall, within ten days after receipt of the designation, serve upon the appellant a designation of those parts. The parties shall not engage in unnecessary designation and may refer to parts of the record not included in the appendix if permitted by the appellate court or a single justice pursuant to the provisions of Rule 18(a) or 18(f). However, this does not affect the responsibility of the parties to include materials necessary to their appeal, including exhibits, in the appendix.

Where a party designates as part of the record any matter that has been impounded or has been made confidential by statute, rule, or order, the designation shall so state.

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 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 lower court 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 court may impose the cost of producing such parts on the party.

(c) Alternative method of designating contents of the appendix in civil cases; how references to the record may be made in the briefs when alternative method is used

In civil cases, if the appellant shall so elect - with leave of the appellate court or a single justice - preparation of the appendix may be deferred until after the briefs have been filed and the appendix may be filed twenty-one days after service of the brief of the appellee. Notice of the election by the appellant to defer preparation of the appendix shall be filed and served by him within ten days after the date on which the clerk notifies the parties that the record has been assembled. If the preparation and filing of the appendix is thus deferred, the provisions of subdivision (b) of this Rule 18 shall apply, except that the designations referred to therein shall be made by each party at the time his brief is served, and a statement of the issues presented shall be unnecessary.

If the deferred appendix authorized by this subdivision is employed, references in the briefs to the record may be to the pages of the parts of the record involved, in which event the original paging of each part of the record shall be indicated in the appendix by placing in brackets the number of each page at the place in the appendix where that page begins. Or if a party desires to refer in his brief directly to pages of the appendix, he may serve and file typewritten or page-proof copies of his brief within the time required by Rule 19(a) , with appropriate references to the pages of the parts of the record involved. In that event, within fourteen days after the appendix is filed he shall serve and file copies of the brief in the form prescribed by Rule 20(a) containing references to the pages of the appendix in place of or in addition to the initial references to the pages of the parts of the record involved. No other changes may be made in the brief as initially served and filed, except that typographical errors may be corrected.

(d) Arrangement of the appendix

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 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 him;

(3) the party questioning him; and

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

When matter contained in the reporter's 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.

(e) Reproduction of exhibits and transcripts

Exhibits and transcripts or portions thereof in civil cases, designated for inclusion in the appendix, may be contained in separate volumes, suitable indexed.

(1) Appeals Court. On appeals to the Appeals Court, five copies of the exhibits volume or volumes, and two copies of the transcript volume or volumes, shall be filed with the appendix and one copy of each shall be served on counsel for each party separately represented.

(2) Supreme Judicial Court. On appeal to the Supreme Judicial Court, and on further appellate review, five copies of the exhibits volume or volumes and five copies of the transcript volume or volumes shall be filed with the appendix and one copy of each shall be served on counsel for each party separately represented.

(3) Appeals transferred to the Supreme Judicial Court from the Appeals Court. In any appeal transferred to the full Supreme Judicial Court, in which copies of the exhibits and transcripts have already been filed in the Appeals Court pursuant to this rule three additional copies of the transcript volume or volumes shall be promptly filed with the clerk of the Supreme Judicial Court, unless the court by order in a particular case shall direct a lesser or greater number.

(f) Hearing of appeals on the original record without the necessity of an appendix

On motion, the appellate court or a single justice 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 court may require.

(g) Reproduction of impounded materials

If the entire case has been impounded, the cover of the appendix shall clearly indicate that the appendix is impounded. If the entire case has not been impounded, a separate appendix volume shall be filed containing the impounded material and the cover thereof shall clearly indicate that it contains impounded material.

Reporter's notes

(1998) This amendment is intended to further decrease the cost of appeals and further reduce the quantity of documents which must be handled and stored by the appellate courts. In the Appeals Court, the number of transcript copies in civil cases (if separately bound) has been reduced to two, which is the same requirement as in criminal cases (see Mass.R.A.P. 9(d)). If a case is transferred to the Supreme Judicial Court after the filing of a reduced number of copies in the Appeals Court, three additional copies of the transcript must be filed in the Supreme Judicial Court.

(1997) The 1997 amendment to Appellate Rule 18(a) requires that where any matter has been impounded or made confidential in the lower court, a copy of the lower court order of impoundment, if any, be included in the appendix. The amendment to Appellate Rule 18(b) requires that where such matter is to be included in the record, the fact that the matter has been impounded or made confidential be indicated in the designation of the record.

The amendment to Appellate Rule 18(g) places the burden on counsel to inform the appellate clerk’s office that confidential information is contained in an appendix and to prepare a separate appendix volume in instances where less than the entire case has been impounded. The purpose of this amendment, as is the purpose of the simultaneous amendments to Appellate Rules 16(d) and (m), is to facilitate the work of the clerk’s office in maintaining the confidentiality of information filed in the appellate court. See Reporter’s Notes to Appellate Rules 16(d) and (m).

(1994) The prior language in Mass.R.A.P. 18(b) stated that “[i]n 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 court for reference and examination and shall not engage in unnecessary designation.” Since the parties have the obligation in Rule 18(a) and (b) to designate portions of the record upon which they will rely, and in civil cases must include relevant portions of the transcript, it was unclear what it meant “to have regard for the fact that the entire record is always available to the court.” This phrase was particularly ambiguous because the parties in civil cases have no right to rely upon portions of the transcript that are not designated. Rules 18(b) and 18(f), which under some circumstances permit the parties to rely on parts of the record that have not been included in the appendix, specifically refer to leave granted prior to argument or a motion in advance granted by the appellate court or a single justice. The new language is in keeping with the normal expectation of appellate judges that the parties will provide appellate courts with an appendix which includes the materials upon which they rely. See Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810-812 (1992).

(1991) This amendment reduces the number of copies of the appendix required to be filed in the Appeals Court from fifteen to the numbers of copies of the brief required under Mass.R.A.P. 19(b). For example, unless an exception applies, a party is required to file seven copies of both the briefs and the appendix in the Appeals Court and fifteen copies in the Supreme Judicial Court. The reasons for the reduction are explained in the Reporter’s Notes to Amended Rule 19(b).

(1986) This amendment corresponds to a 1986 amendment to F.R.A.P. 30(a). As the Committee Note to that amendment suggests, the inclusion of memoranda of law can make an appendix bulky and less useful to the appellate court, and also increase litigation costs. “There are occasions when such trial court memoranda have independent relevance in the appellate litigation. For instance, there may be a dispute as to whether a particular point was raised or whether a concession was made in the ... [lower court]. In such circumstances, it is appropriate to include pertinent sections of such memoranda in the appendix.”

(1984) Under previous Mass.R.A.P. 18(e) a party on appeal could put “exhibits designated for inclusion in the appendix” in “a separate volume, or volumes” and then file only “five copies,” plus serve one copy “on counsel for each party separately represented.” This reduced the number of copies of exhibits otherwise required under Mass.R.A.P. 18(a). The present amendment to Mass.R.A.P. 18(e) adds “transcripts or portions thereof in civil cases” to “exhibits,” to further decrease the cost of appeals and reduce the number of documents which must be handled and stored by appellate courts.

The reference to Mass.R.A.P. 18(e), which has now been added to Rule 18(a), is to remind counsel to check Rule 18(e) in order to consider whether they wish to reduce the required copies of exhibits and “transcripts or portions thereof in civil cases” from fifteen, plus two for “counsel for each party separately represented,” to five, plus one copy for such counsel. This change also makes clear that the “five copies” option in Rule 18(e) is instead of, and not in addition to, the “fifteen copies” otherwise required by the provisions of Rule 18(a).

These amendments do not alter the rules in criminal cases, which obligate the clerk of the lower court to transmit to the appellate court the “original and one copy of the transcript and a list of all the exhibits” and provide that “... the appendix need not contain relevant portions of the transcript ...” (Mass.R.A.P. 9(d) and 18(a))

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Updates: Amended effective February 24, 1975 Amended June 2, 1976, effective July 1, 1976
Amended May 15, 1979, effective July 1, 1979 Amended April 25, 1984, effective July 1, 1984 Amended November 17, 1986, effective January 1, 1987 Amended effective February 1, 1991 Amended effective May 1, 1994 Amended June 11, 1997, effective July 1, 1997 Amended October 1, 1998, effective November 2, 1998

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