The appendix: More than a formality

Listen to this article

In the appellate practice of law, the appendix is essential. To be sure, no one would suggest that it is as important as the brief. But, as a means of supporting or supplementing the arguments in an appellate brief, the appendix merits attention and thought in all cases.

In Wisconsin, the documents that must be included in the appellant’s appendix are described in Wis. Stat. sec. 809.19(2). This appendix must include “the findings or opinions of the trial court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues.”

Additional documents may be required depending on the circumstances. Appellant’s counsel must include a table of contents and a certification that the appendix contains the required materials.

The respondent then has the opportunity (under Wis. Stat. sec. 809.19(3)) to file a supplemental appendix to bring additional materials to the court’s attention. Should the case involve a confidential record, an appendix must preserve that confidentiality.

Recent Rule Change

A recent rule amendment — effective Jan. 1, 2008 — affects the contents of the appendix. For example, to ensure that all relevant findings or opinions are before the court, the rule now requires that the appendix include any administrative agency decision that is at issue.

Other notable additional changes in the rule include (1) the deletion of the requirement of providing relevant trial court record entries; (2) a rewording of the appellant’s certification; and (3) the addition of a certification requirement associated with the filing of a supplemental appendix by respondent.

These amendments do more than update what many mistakenly consider a formality to the brief. These changes, together with earlier changes made in 2005, show how the appendix is valuable to creating a persuasive brief.

In 2005, when the Wisconsin Supreme Court heard a petition to amend the appendix rule — at that time to include the requirement of certification — the Supreme Court was told that the Court of Appeals was increasingly relying on appendices because the number of appeals that it heard was increasing (and the time that could be spent on each case was therefore decreasing). Indeed, the certification was added to the appendix to ensure that attorneys complied with the requirements for the appendix.

Additions to Appendix

While the certification requirement likely has the effect of ensuring that attorneys comply with the minimum required under the rule, an appellant’s or respondent’s counsel should pause to give the matter further consideration. Prior decisions, whether of the circuit court or an administrative agency, are not the only material that an advocate may want to include in the appendix in order to give an appellate court easy access.

For example, if an important statute is cited or quoted in the brief, the text of that statute might be profitably included in the appendix. Along the same lines, there may be a few key documents to which an attorney needs to draw the court’s attention. Those documents might include ones that a curious reader unfamiliar with the record might want to see in their entirety (such as insurance agreements).

Of course, care must be taken to ensure that only necessary documents are included in the appendix. The inclusion of documents should be balanced against the concern of overburdening the court with paper.

Care also should be given to the organization of documents in the appendix. Prior court decisions should be placed first in the appendix as they typically are the starting point for an appellate court becoming familiar with the case. The table of contents can assist in organizing the appendix, particularly when a description of the document and record citation is provided for each entry in the table of contents.

The goal in preparing the appendix should be not simply to comply with the minimum required by the rule, but to facilitate the court’s review of the case by reference to the materials that you deem important. A judge may read the brief outside the office without access to the record. But the judge will have access to your appendix, especially if it is bound with your brief, as it should be unless the appendix is just too long.

The documents that you have included — in addition to those required by the rule — will be a package presented to the court that highlights the arguments in the brief. The less the court has to turn its attention away from your package of materials, the better.