(a) Option of Appellant to Prepare and File Appendix; Contents; Time for Filing; Number of Copies. The appellant may prepare and file an appendix to the briefs that shall contain: (1) any relevant portions of the pleadings, charge, findings or opinion; (2) the judgment, order or decision in question; and (3) any other parts of the record as the appellant deems essential for the judges to read in order to determine the issues presented. The appellant shall accurately reproduce in the appendix all parts of the record that must be studied in order to determine the issues presented; the appellant may not reproduce only those parts that support the appellant’s argument. If in the judgment of the appellee the parts of the record reproduced by the appellant are inadequate for the determination of the issues presented, the appellee may reproduce in an appendix to the appellee’s brief such other parts of the record as the appellee deems essential for the judges to read. The parties are encouraged to agree as to the contents of the appendix. The fact that parts of the record are not included in the appendix shall not prevent the parties from relying on such parts. The appendix shall be served and filed with the brief. A sufficient number of copies of the appendix shall be filed to provide the clerk and each judge of the appellate court with one copy, and one copy thereof shall be served on each party in the manner provided in Rule 20 for the service of papers unless the appellate court shall by order direct the filing or service of a greater or lesser number.
(b) Unnecessary Reproduction of Record To Be Avoided. In determining the parts of the record to be reproduced in an 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 avoid reproduction of parts that need not be read by the judges in determining the issues presented.
(c) Reference in Briefs to the Record. References in the briefs to parts of the record reproduced in an appendix shall be to the pages of the appendix at which those parts appear. If references are made to parts of the record not reproduced, the reference shall be to the pages of the record involved.
(d) Arrangement of the Appendix. At the beginning of the appendix there shall be inserted a list of the parts of the record that it contains, in the order in which the parts are set out therein, with references to the pages of the appendix at which each part begins. The parts of the record shall be set out in chronological order. The pages of the appendix shall be numbered consecutively at the bottom thereof. When matter contained in a transcript of the evidence or proceedings is set out in the appendix, the page of the transcript at which such matter may be found shall be indicated in brackets immediately before the matter that is set out. Omissions in the text of papers or of the transcript must be indicated by asterisks. Immaterial formal matters (e. g., captions, subscriptions, acknowledgments) shall be omitted. A question and its answer may be contained in a single paragraph.
(e) Reproduction of Exhibits. Exhibits or parts thereof designated for inclusion in the appendix may be contained in a separate volume, or volumes, suitably indexed. If contained in a separate volume, the appellant shall prepare, file and serve the same number of copies of such volume as are required for the appendix.
Advisory Commission Comments
Perhaps the most notable feature of this rule is the fact that preparation of an appendix is not required but is an option afforded the parties if they care to take advantage of this rule. Each party is free to reproduce as an appendix to that party’s brief those portions of the record that party deems essential for the judges to read. If an appendix is prepared, it is important to keep in mind that the full record always remains available to the court for reference and examination. It should also be noted that under Rule 40(c) the cost of preparing an appendix is not a recoverable cost on appeal.