Monday, March 17, 2014

Appellate Practice: The Purpose Of An Appendix

By Robin Horton Silverman

Florida Rule of Appellate Procedure 9.220(a) specifies that the purpose of the appendix is “to permit the parties to prepare and transmit copies of such portions of the record deemed necessary to an understanding of the issues presented.” Sometimes the appellate rules mandate or strongly encourage that an appendix accompany a petition, brief, motion, response, or reply where a formal record is not required. See Fla. R. App. P. 9.100(g), (k); 9.110(i); 9.120(d), (f); 9.130(e); 9.142(c)(5); 9.160(h); 9.170(c)-(d); 9.180(h)(2); 9.190(c)(2)(F), (c)(3), (c)(4). Other times an appendix may be helpful to direct the appellate court to key documents in an otherwise cumbersome record. 

An appendix must contain an index and a conformed copy of the opinion or order to be reviewed. See Fla. R. App. P. 9.220(b). An appendix may also contain other portions of the record and pertinent authorities that may be difficult to locate through conventional research methods. Id. 

However, an appendix is not a means to have the appellate court consider materials that were not part of the original record. See Pedroni v. Pedroni, 788 So. 2d 1138, 1139 n.1 (Fla. 5th DCA 2001); Altchiler v. Dep’t of Prof'l Regulation, 442 So. 2d 349, 350 (Fla. 1st DCA 1983); Finchum v. Vogel, 194 So. 2d 49, 51 (Fla. 4th DCA 1966). And an appendix cannot be used in lieu of a formal record required for appeals of final orders of lower tribunals. See Crabtree v. Rogers, 364 So. 2d 106 (Fla. 1st DCA 1978) (citing rule 9.100(g)).

There are additional considerations now that e-filing is required throughout the state. Several appellate courts have entered administrative orders outlining supplementary requirements for electronically filing these appendices. See Second District Court of Appeal Administrative Order 2013-2 [hereinafter Order 2013-2]; Third District Court of Appeal Administrative Order A03D13-05; Fourth District Court of Appeal Administrative Order AO2013-04. For example, the Second District Court of Appeals requires that appendices be in Adobe PDF format, properly indexed, and either bookmarked or hyperlinked and fully searchable. See Order 2013-2. The Second District also suggests that an attorney submitting the appendix assign identifying letters or numbers to the documents, refer to this designation in the principal submission, provide an index to the appendix at the outset, and include both the name of the document and the corresponding letter or number assigned to it in the Adobe pane.  Further, all of the documents submitted as appendices shall be transmitted in one filing that does not exceed the e-portal’s 10MB capacity. Id. Filers who do not comply with these procedures risk having the Second District order them to submit a supplemental electronic appendix. See Order 2013-2.

Because the e-filing procedures are still being improved, it is prudent to not only consider the Florida Appellate Rules while creating an appendix but to also review the website materials and administrative orders from the applicable appellate court to determine whether additional procedures need to be followed.