Rules of Appellate Procedure  Appellate Procedure Rule 18: Appendix to the briefs: contents, cost, filing, and service

The appellant shall prepare and file an appendix to the briefs which shall be separately bound. The parties are cautioned that, under Rule 9, the lower court does not ordinarily transmit the entire record to the appellate court. Therefore, the appendix or appendices must include the items specified in this rule.

(1) Requirements in civil and criminal cases

(A)

The appendix shall contain, in the order hereinafter provided:

(i) a cover that conforms substantially to Rules 20(a)(5)(A) and (a)(6).

(ii) a table of contents, listing the parts of the record reproduced therein, and including a detailed listing of exhibits, affidavits, and other documents associated with those parts, with references to the pages of the appendix at which each begins;

(iii) the docket entries in the lower court proceedings;

(iv) any order of impoundment or confidentiality from the lower court; and

(v) in chronological order of filing in the lower court:

(a) any parts of the record relied upon in the brief, and in a criminal case, a copy of the complaint or indictment;
(b) any document, or portion thereof, filed in the case relating to an issue which is to be argued on appeal;
(c) any findings or memorandum of decision or order by the lower court pertinent to an issue on appeal, including a typed version of any pertinent handwritten or oral endorsement, notation, findings, or order made by the lower court;
(d) the judgment, decree, order, or adjudication in question; and
(e) the notice(s) of appeal.

(B)

Except where they have independent relevance, memoranda of law in the lower court should not be included in the appendix.

(C)

The first volume of a multi-volume appendix shall include a complete table of contents referencing all volumes of the appendix, and each individual volume shall include a table of contents for that volume.

(D)

Parties must include in the appendix all portions of the record that are relied upon in the brief or that relate to an issue on appeal, except portions of the record subject to a motion for transmission pursuant to Rule 18 (a) (1) (G). The appellate court may decline to permit the parties to refer to portions of the record omitted from the appendix unless a motion for transmission of those portions of the record is filed in the appellate court. The fact that portions of the record are not included in the appendix or subject to a motion for transmission shall not prevent the appellate court from relying on such portions of the record.

(E)

When an appendix contains materials from more than 1 lower court case, the table of contents shall clearly indicate, by reference to the lower court docket number, the case in which each paper was filed and by whom it was filed.

(F)

Any reproduction of an exhibit in an appendix shall be of high quality to ensure a legible and accurate representation of the exhibit, including color if color is relevant. A color photograph marked or admitted as an exhibit in the lower court and included in the appendix must be reproduced in color. Lower court color-coded forms need not be reproduced in color.

(G)

If certain portions of the record cannot or should not be reproduced or transmitted, such as nonreproducible physical evidence or material the possession, transmission, or dissemination of which may constitute a violation of criminal law or a court order, the proponent shall file in the appellate court a motion for transmittal of such portions of the record at the time of the filing of the proponent's brief. A placeholder notation may be included in the appendix to reference the portions of the record subject to the motion for transmission.

(2) Additional requirements in a criminal case

(A)

The appellee in a criminal case must include any part of the record relied on by the appellee not otherwise included in the appellant’s appendix or contained in the transcript.

(B)

An appendix may contain relevant excerpts of the transcript, but should not duplicate the entire transcript transmitted from the lower court to the appellate court.

(1)

The parties are encouraged to agree as to the contents of the appendix. In the absence of agreement, the appellant shall, not later than 14 days after receiving from the clerk of the lower court the notice of assembly of the record, serve on the appellee a designation of the parts of the record which the appellant intends to include in the appendix and a statement of the issues which the appellant 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, the appellee shall, within 14 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)(1)(D). However, this does not affect the responsibility of the parties to include materials necessary to their appeal, including exhibits, in the appendix.

(2)

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.

(3)

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 the appellant 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 cost 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.

(4)

Depending on the issues raised on appeal and the applicable standards of review, it may be necessary for the party filing the appendix to reproduce the entire transcript of the relevant lower court proceedings. Failure to reproduce the entire transcript may result in waiver of the issue. If the party does not reproduce a transcript of the entire proceedings, the party shall, preceding each portion of transcript reproduced, insert a concise statement identifying:

(A) the witness whose testimony is being reproduced;

(B) the party originally calling the witness;

(C) the party questioning the witness;

(D) the classification of the witness’s examination (direct, cross, or other); and

(E) the transcript volume and page number from which the reproduced testimony
is derived.

(5) Supplemental appendix in a civil case

Except with leave of the appellate court or a single justice granted on motion, an appellee or cross-appellee in a civil case shall not file a supplemental appendix. Where such leave is granted, the appendix shall

(A) be filed and served with the brief pursuant to Rule 18(f) and 19, unless otherwise ordered;

(B) include only materials that are part of the record;

(C) not generally include materials already in the appellant’s appendix, unless necessary for context; and

(D) be in the form prescribed by Rules 18(a)(1) and 20(a)(5) and (a)(6).

In a civil case, transcripts or portions thereof shall be reproduced for inclusion in the appendix consistent with Rule 18(b)(4).

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 a copy of any lower court order(s) impounding the material, and the cover thereof shall clearly indicate that it contains impounded material.

At the time of filing an appendix containing a reproduction of an electronic audio or audio-visual exhibit that was part of the lower court record, the filing party shall file a written notice with the clerk, with a copy of the notice sent to all parties, so indicating the inclusion of such reproduction, and specifying the form in which it is reproduced.

Any appendix, including exhibits and transcripts or portions thereof in a civil case, shall be filed and served with the brief in accordance with Rule 19.

On motion for good cause, the court may grant leave for a party to file an amended appendix volume. The motion shall describe the nature and reason for the amendment. The party shall file with the motion the amended appendix volume marked as such on the front page or cover. Except as the court otherwise orders, the filing of an amended appendix volume has no effect on any filing deadlines.

(2023)

Rule 18 (a) (1) (D) adds language to clarify that any party seeking to rely on portions of the record that should not be included in the appendix must file a motion for transmittal of such portions of the record in the appellate court to allow for consideration of those portions of the record as stated in the new subparagraph Rule 18 (a) (1) (G).

Rule 18 (a) (1) (G) is a new subparagraph clarifying the process by which parties delineate portions of the record that the parties intend to rely on in their briefs but that should not or cannot be included with the record appendix. This is in recognition of the fact that there are instances when actual physical evidence (such as a weapon, medical device, etc.) was part of the record in the lower court, and consideration of the object itself is necessary to the appellate claim(s). Similarly, a lower court may have issued an order preventing the release or dissemination of some evidence or information (e.g., the identity of a confidential informant) which might be critical to the appellate matter. Additionally, there may be certain portions of the record the reproduction or transmittal of which (such as visual material of a child depicted in sexual conduct) might itself be a violation of State or Federal criminal laws.

In each such case, the proponent of the inclusion of such portions of the record must file a motion in the appellate court for the transmittal of such portions of the record at the time of the filing of the proponent's brief. This subparagraph is intended to encompass only those circumstances where such portions cannot or should not be included in the record appendix and does not include those circumstances where a party is required to send reproductions of exhibits separately to the appellate court, such as in the case of reproduction of audiovisual materials marked as exhibits. In such case, parties are referred to Rule 9 (b), Rule 18 (a) (1) (F), and Rule 18 (e).

(2019)

Rule 18 was reorganized and substantially revised to clarify the required contents of the record appendix, as well as the procedures governing the cost, filing, and service of the record appendix. In accordance with these revisions, the title of this rule was amended to “Appendix to the Briefs: Contents, Cost, Filing, and Service.”

Rule 18(a). The entire subdivision was reorganized and separated into numbered paragraphs to improve clarity and for easy reference. The rule was also amended to require all paper appendices to be bound and filed separately from the brief. This is intended to facilitate the appellate courts’ paperless practices, which includes the scanning of paper briefs, and is consistent with the requirements for electronically filed briefs. A cautionary note was added to alert parties that the entire record ordinarily is not transmitted by the lower court to the appellate court, and therefore the appendix must include the items identified in the rule. Because the appendix is filed at the same time as a brief, the requirements related to filing and service of the appendix in prior Rule 18(a) were revised and relocated to Rule 19. See Reporter’s Notes to Rule 19.

Rule 18(a)(1) was revised to present, in a checklist format, the common items that must be included in a record appendix filed in civil and criminal cases.

Rule 18(a)(1)(A) lists the items in the order in which they must appear in an appendix. Prior Rule 18(a) did not explicitly specify the arrangement of an appendix. As a result, the format of appendices was often inconsistent, making it difficult to locate necessary parts of the record below. This amendment is intended to streamline the rule as to the content and arrangement of an appendix, reduce confusion for litigants, help ensure appendices are complete, and facilitate review by the appellate court.

Language was added to require inclusion of the notice(s) of appeal and any written or oral findings or memorandum of decision issued by the lower court and relevant to the appeal. Notably, although Rule 16(a)(13) requires the judge’s order or decision at issue to be included in a brief’s addendum, it also must be included in the appendix. The duplication is required because of the different purposes served by the addendum and appendix: the addendum is for the convenient reference of the judges and parties, and the appendix is a compilation of all relevant lower court documents and is used for record reference purposes.

In Rule 18(a)(1)(A)(iii), the word “relevant” that qualified “docket entries” in prior Rule 18(a) was removed. The inclusion of the entire trial court docket provides a better context for review of the issues on appeal. A printout or copy of the lower court docket is acceptable.

Rule 18(a)(1)(A)(v)(d). The amendment requiring the inclusion of the “judgment, decree, order, or adjudication in question” does not necessarily mean verdict slips must be included in the appendix, but might if the verdict slips are relevant to an issue on appeal.

Rule 18(a)(1)(B) continues the requirement from prior Rule 18(a) that memoranda of law filed in the lower court should not be included in the appendix unless they have independent relevance. As stated in the 1986 Reporter’s Notes to Rule 18:

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.’

Rule 18(a)(1)(C) is a new subparagraph intended to facilitate the reading of appendices in electronic form, consistent with the appellate court’s paperless practices, and particularly in cases in which multiple appendix volumes are filed. The first volume of the appendix is to include a complete table of contents referencing all volumes of the appendix, and each individual volume must include a table of contents for that volume. To facilitate review by the court, the table of contents should identify each separate document included in each respective volume and the page in the volume where the document begins. Further, when a principal document contains multiple documents attached as exhibits, such as a motion for summary judgment package or administrative agency record, the table of contents should list the motion and each individual document filed with the motion, and the page of the appendix where each document is located.

Rule 18(a)(1)(D) relocates and clarifies the provision included in prior Rule 18(a) regarding an appellant’s obligation to include all relevant portions of the record in the appendix. However, although an appellant must provide the reviewing court with all relevant portions of the record, Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 811 (1992), an appellate court is entitled, in its discretion, to rely on parts of the record even if not included in the record appendix. Commonwealth v. Morse, 50 Mass. App. Ct. 582, 586 n.3 (2000). As stated in the 1994 Reporter’s Notes to an amendment to Rule 18(b):

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).

Rule 18(a)(1)(E) relocates language from prior Rule 18(d) regarding an appendix that contains materials from more than one lower court case. Similar to the prior rule, the appendix must indicate the case to which each document belongs and by whom it was filed.

Rule 18(a)(1)(F) is a new subparagraph that requires any exhibit reproduced in the appendix to be of high quality to ensure it is a legible and accurate reproduction, including color, if the color is relevant. The rule requires that a color photograph marked or admitted as an exhibit in the lower court and included in the appendix be reproduced in color. The rule specifically excludes court forms which are color coded and which may be submitted in black and white instead of color, but must be legible. Frequently, parties file a record appendix containing exhibits that were copied, scanned, or reproduced in such poor quality that it is difficult or impossible for the appellate court to read or view the exhibit. With the advent of electronic filing in the appellate courts and the use of electronic devices to view appendices, this amendment is necessary to ensure that the highest possible quality images are provided.

Language in prior Rule 18(a) that referred to a process for deferral of a record appendix pursuant to prior Rule 18(c) was deleted because Rule 18(c) was deleted in the amended rules, as described below.

Rule 18(a)(2) is a new paragraph titled “Additional Requirements in a Criminal Case,” which specifies items in addition to those required in Rule 18(a)(1) that must be included in the appendix in criminal cases only. Rule 18(a)(2)(A) is a new subparagraph which imposes an obligation on the appellee in a criminal case to include any part of the record on which the appellee relies that is not otherwise included in the appellant’s appendix or contained in the transcript. This requirement addresses situations where necessary documents are omitted from both parties’ appendices even though they are discussed in the appellee’s brief. As in prior Rule 18(a), the appellee in a criminal case may file a supplemental appendix containing relevant portions of the lower court record without filing a motion, when the supplemental appendix is filed at the same time as the appellee’s brief. Rule 18(a)(2)(B) provides for optional inclusion in the appendix of excerpts of the transcript in criminal cases. In criminal cases, either party may, but are not required to, reproduce relevant portions of the transcript in the appendix but should not duplicate the entire transcript as it is already available to the appellate court.

Prior Rule 18(b) was amended to create three numbered paragraphs. The timeframe regarding the parties’ agreement as to the contents of an appendix in a civil case is included in Rule 18(b)(1). Rule 18(b)(1) was amended to be triggered by the appellant “receiving from the clerk of the lower court the notice of assembly of the record.” This phrase replaces the prior phrase “the date on which the clerk notifies the parties that the record has been assembled” in the second sentence. The change is consistent with amendments to Rule 10(a). The reference to prior Rule 18(f) was struck, as that subdivision was deleted from the amended rule for the reasons stated below.

Rule 18(b)(4) outlines the requirements, relocated from prior Rule 18(d), applicable when a party in a civil case reproduces only portions of a transcript. A cautionary note is added to this paragraph to alert the parties that it may be necessary to reproduce the entire transcript of the relevant court proceedings; otherwise waiver of one or more issues may result. It is essential that parties provide the relevant portions of the transcripts of proceedings in the lower court. Parties often relied on the prior rule to submit incomplete transcripts to support their appellate arguments, and subsequently the appellate court reviewing the appeal determined that additional portions of the transcript, or even the entire transcript, were necessary for proper review of the issues on appeal. This language makes clear that a partial transcript may not be appropriate for every civil case.

Rule 18(b)(5) is a new paragraph which addresses the filing of a supplemental appendix in civil cases. The requirements for filing a supplemental appendix are included in separate subparagraphs for ease of reference. Appellees and cross-appellees in civil cases often submit supplemental appendices without realizing that leave of court is required. This rule clarifies the process for filing a supplemental appendix in a civil appeal and incorporates current practice requiring leave of court for such filing. This rule promotes judicial efficiency by reducing delays associated with the submission of a supplemental appendix without leave of court and ensures that the docket will note the filing of a supplemental appendix. In addition, requiring leave of court in a civil matter encourages parties to abide by the provisions of Rule 18(b) regarding designation and agreement as to the contents of the record appendix at the outset of the case.

Prior Rule 18(c) was deleted in its entirety. The subdivision permitted the appellant to elect, with the court’s permission, to defer preparation of the appendix until after the briefs had been filed. In practice, requests to defer appendix preparation pursuant to Rule 18(c) were rarely filed, and, if filed, were rarely allowed. Deferral of preparation of the appendix resulted in delay in the appellate process and unnecessary duplication of the parties’ efforts. In the future rare circumstance where deferral of appendix preparation may be appropriate, Rule 2, which allows for suspension of the rules by the appellate court or a single justice, and Rule 15(c), which governs motions generally, would suffice to afford the parties an opportunity to request leave to defer the appendix.

The filing and service requirements related to exhibits and transcripts in prior Rule 18(e), were relocated, with slight revisions, to Rule 19(d)(2). This amendment was made because exhibits and transcripts are filed and served contemporaneous with a brief. See Reporter’s Notes to Rule 19(d)(2). The remainder of prior Rule 18(e) was designated in the amended rules as Rule 18(c), and is revised to clarify that in civil cases parties are authorized to reproduce exhibits and transcripts or portions thereof for inclusion in the appendix.

Prior Rule 18(f) was deleted in its entirety. Parties sometimes requested to proceed on the original record for purposes of expediency or instead of incurring the expense of preparation of an appendix. Such motions were rarely, if ever, allowed because the appendix materials and organization are essential to the appellate courts’ review of the issues on appeal, and multiple copies of the pertinent record materials are required because multiple justices are involved in reviewing the record. In the rare circumstance where allowance of such a motion may be appropriate, Rule 2, which allows for suspension of the rules by the appellate court or a single justice, and Rule 15(c), which governs motions generally, would suffice to enable proceeding in this alternative manner.

Rule 18(d), which comprises prior Rule 18(g), adds a requirement to the prior rule that when a separate appendix of impounded material is filed, any lower court order impounding the material must be included in the impounded appendix volume(s). This amendment codifies current impoundment procedures and further ensures the protection of the impounded information.

Rule 18(e) is a new subdivision addressing the reproduction of electronic audio or audiovisual exhibits. This subdivision requires parties who include reproductions of these exhibits in their appendix to notify the clerk, with a copy of this notice sent to all parties, indicating the inclusion of such reproduction and specifying the form in which the material is reproduced. Parties sometimes file a reproduction of an electronic audio or audiovisual exhibit but do not alert the appellate court clerk that it has been included in the appendix. The requirement of filing a written notice with the clerk’s office ensures that the appellate court is aware that the electronic audio or audiovisual exhibit has been included and can be properly processed and stored.

Rule 18(f) is a new subdivision addressing filing and service of the appendix, including exhibits and transcripts or portions thereof filed in a civil case. The subdivision incorporates the requirements of Rule 19 to the filing and service of the appendix.

Rule 18(g) is a new subdivision that codifies existing appellate court practice regarding the filing of an amended appendix volume. The amended document (which sometimes is titled “revised” or “corrected”) is to be submitted to the court contemporaneous with a motion seeking leave to file the amended document.

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(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))