Appellate Courts’ “Undying Appreciation” for Useful Record Extracts

By Steve Klepper (Twitter: @MDAppeal)

Maryland Court of Appeals Judge Robert McDonald is known for thorough, scholarly opinions, which earned him the MSBA Section of Litigation’s Harrell Award for Judicial Excellence in 2019. He is not known for hyperbole. As a result, this footnote in one of his recent opinions, MVA v. Geppert, was striking:

In presenting the relevant materials to us, the parties have distributed them over four separate appendices and a copy of the record extract that was filed in the intermediate appellate court. This suggests that there may have been a lack of cooperation between counsel. We will not attempt to assign blame for this situation and, in any event, we have reviewed the original record for purposes of this opinion. We simply note that future litigants will earn the undying appreciation of an appellate court if they can successfully consolidate relevant materials from the record in an agreed-upon record extract, as encouraged by Maryland Rule 8-501.

When Judge McDonald says litigants have an opportunity to earn an appellate court’s undying appreciation, he means it. And if you attend continuing legal education events where Maryland appellate judges speak, you’ll hear strong opinions from the judges regarding the record extract (our state-practice equivalent of the Joint Appendix). When I lectured alongside appellate judges in conjunction with the release of the fifth edition of Appellate Practice for the Maryland Lawyer, the judges often would perk up when I discussed the record extract.

Below I’ll address six key ways that advocates can make record extracts more helpful to appellate judges.

Prepare a Useful Table of Contents: Tables of contents often are insufficiently descriptive, with entries like “Trial Transcript, 11/1/20” and “Plaintiff’s Exhibit 1.” Such tables, which make it difficult to navigate the record extract, violate Rule 8-501(h): “The table of contents shall (1) reference the first page of the initial examination, cross-examination, and redirect examination of each witness and of each pleading, exhibit, or other paper reproduced and (2) identify each document by a descriptive phrase including any exhibit number.” For example, the table could identify a document as “Sales Contract, executed May 15, 2018 (Plaintiff’s Exhibit 1).”

Eliminate Duplicate Entries: Many record extracts erroneously contain multiple copies of the same lengthy document. Such duplicate entries violate Rule 8-501(i): “Documents and excerpts of a transcript of testimony presented to the trial court more than once shall be reproduced in full only once in the record extract and may be referred to in whole or in part elsewhere in the record extract.” Thus, if the same document was attached to more than one motion, the table of contents can include a notation, when listing the exhibits to the second motion: “Exhibit 1, Sales Contract, omitted as duplicate of Exhibit 3 to Motion to Dismiss.”

Pare Down Transcripts: The judge authoring the opinion will have the entire record, which includes the entirety of every transcript. In cases involving electronic filing, all of the judges have easy access to all of the transcripts. As a result, parties should avoid reproducing the entirety of every transcript, instead including key excerpts. Too often opposing counsel will tell me, “there’s a question of sufficiency of the evidence, so we have to include everything.” That’s not true, and the judges (and their shoulders and backs) will appreciate the thinner and lighter record extract volumes that result from careful excerpting. Remember that the judges spend a great deal of time with the record extracts and often carry them to their home offices. If you omit a passage by mistake, or because its significance only later becomes clear, you can bind it with your brief under Rule 8-501(e) and (f). Never include the transcript’s word index, which signals you’ve made no effort to pare down the record extract.

Collect Related Documents in a Single Volume: In a multiple-issue appeal that has a multi-volume record extract, there may be a discrete nucleus of documents relating to a particular issue. The record extract need not be in chronological order of filing, and sometimes it’s feasible to collect the documents relating to a single issue in a particular volume, allowing the judge to use just one volume when reviewing a particular issue.

Consider Deferred Record Extracts: If the record is voluminous, and it’s genuinely impractical to identify which record materials or excerpts will be relevant, consider the option of a deferred extract under Rule 8-501(l). The parties can then file page-proof briefs, with placeholder references; use those placeholder references to prepare the record extract; and then file final briefs with the extract citations filled in. It’s extra work and can be a pain. But it’s better than filing a twenty-volume extract.

Take Ownership of the Process: As should be clear from my recommendations, lawyers should take an active role in selecting the items for the extract and ensuring that the table of contents is helpful. It is a mistake to leave this process until the eve of filing, or to delegate the entire task to a non-lawyer.

What happens if you become involved at the Court of Appeals stage, and the record extract in the Court of Special Appeals was a mess—or much of it relates to issues falling outside the questions raised in the petition? Do something about it! Although the default rule is to file the same record extract used in the Court of Special Appeals, you can ask the Court of Appeals for a chance at a do-over. Rule 8-501(k) provides that “if the Court of Appeals orders that a new record extract be filed, the appellant shall prepare and file a record extract pursuant to this Rule.”

There may well be circumstances when the record extract is out of your control. For example, if you represent the appellee, there is no mechanism for you to stop the appellant’s counsel from designating the entire record. But whenever you’re able to cooperate in the preparation of a useful extract, the judges will genuinely appreciate it.

2 responses to “Appellate Courts’ “Undying Appreciation” for Useful Record Extracts”

  1. Charles W Michaels says :

    To be read by every lawyer who does appellate work, infrequently. I have had several instances where lawyers insist on, for example, duplicating exhibits and they are hard to convince, even where I quoted the Rule. The same with transcripts, NO you did not have to include EVERYTHING, in fact, the panel would like it if you didn’t.

  2. Michael Wein says :

    Thanks for discussing Steve. I agree wholeheartedly with what’s stated, though it’s not necessarily the case that the Appellant is responsible for an over-long Extract. I have seen cases where Appellees insist on including likely unrelated matters to the appeal, but it doesn’t get to the point where the Appellant makes a large deal about it. Part of that is because there are some professionalism aspects inferred by the Rule, to simply agree, but also it’s unclear what Appellee plans to respond, so it’s agreed upon since it’s not unreasonable for Appellee to be overcautious, even if you are of the opinion the portions are unnecessary to the appeal. (Assuming it’s no greater than 800 pages, where there needs to be a discussion on being too generous to both sides) In the end, if the side that does the Joint Extract wins the case, then at least they’ll be entitled to Costs.

    The point of not automatically considering Extracts to be done chronologically is also well taken. The right appeal cases with focused issues, such as Motions for Summary Judgment/Motions to Dismiss, it doesn’t have to be that way, and makes it easier for everyone.

    I will add one note, that I think is overlooked. There’s been a sense by some attorneys (which I don’t think do appellate work regularly) that it’s better to hire a company to first do the Record Extract as a pro forma matter (the attorneys designate the portions first), which is certainly a time saver, and work from that. However, I find that doing it yourself, regardless of whether you were trial counsel, really does help organize the appeal better, to ensure that both the relevant parts are included, and the non-relevant parts excluded, but also then as part of that process, do the Statement of Facts and Statement of the Case. (If at that point, a printing company is hired to do and print up the Extract, that makes more sense) So the physical process of putting together the Record Extract, works in tandem, with better arguing the merits of the appeal.

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