Attorneys love rules. And our adversarial legal system functions best when both sides understand and follow common rules. So one Maryland appellate rule has always confounded me because it is routinely construed as meaning the opposite of what it apparently says. Rule 8-501(c) plainly states that the “record extract shall not include . . . any part of a memorandum of law in the trial court, unless it has independent relevance.” Most lawyers would reasonably construe this as telling practitioners to exclude their trial-court briefing from the record extract unless the brief itself had factual relevance—e.g., including a brief to show that an argument was not waived or that a party made inconsistent arguments.
But this is not how the Rule is read in Maryland. Former Maryland appellate clerks and even some Maryland appellate judges have repeatedly told me that if, for example, a party prevails on summary judgment or a motion to dismiss, the court and its clerks appreciate having the related briefing in the record extract. The Rule would indicate that the record extract should contain the exhibits to the relevant briefing without the briefs themselves. Apparently not.
The confusion spawned by Rule 8-501(c) often causes tension between parties, who are expected to collaborate to create the joint record extract and attach it to the opening brief. This tension can be exacerbated when the lawyers handling the appeal are the same lawyers who fought out each discovery battle and motion in limine in the trial court. Muscle memory can take over and lead the parties to armor up for a battle over the record extract as the latest in a long line of things to fight over. But arguing over the contents of the record extract would be a huge waste of time and energy.
The adversarial nature of civil litigation should not carry over to creating the joint record extract. Essentially, each side gets to designate what they want in the record extract. Neither side wields veto power over the other’s designations. And there should never be motions practice before an appellate court over whether something can be included in the record extract.
If an appellant does not include an appellee’s designated document in the extract, the appellee can simply put it in an appendix to the appellee’s brief—with a required “statement of the reasons for the additional part.” R. 8-501(e). Even in reply, the appellant can append a new document—again, with a required “statement of the reasons for the additional part.” R. 8-501(f).
Of course, the parties should discuss which materials the record extract should include. If a party designates its trial-court briefing, it would be entirely appropriate to point out that Rule 8-501(c) discourages doing so. Ultimately, the appellant assembles and prints the record extract. R. 8-501(a). And the only thing that an appellant can always reasonably refuse to include in the record extract is something that is not in the record (or subject to a motion to correct/amend the record).
If tensions really escalate or minds cannot meet, an appellant who is both (i) convinced that a designation is improper because “not material to the questions presented” and (ii) determined to keep it out of the record extract (instead of just letting to appellee overdesignate), “may demand from appellee advance payment of the estimated cost of reproducing that part.” R. 8-501(d). If the demanded payment is not made within five days, the appellant “may omit that part from the record extract but shall state in the record extract the reason for the omission.” R. 8-501(d). Again, this is rarely worth fighting over. Only once, as appellee, have I had an appellant reject my designation. When I asked for the estimated cost of reproducing the contested portion so I could pay it, appellant dropped the objection, and the tiff ended.
Before getting into an ill-advised dispute over the contents of the record extract, parties need to bear in mind what the record extract is. It presents “all parts of the record that are reasonably necessary for the determination of the questions presented by the appeal and any cross-appeal.” R. 8-501(c). Besides including the circuit court docket entries (i.e., the “docket sheet”) and the judgment appealed from, which are required, it puts a series of record documents at the appellate court’s fingertips, presumably because they will be cited in the parties’ briefing. It is supposed to be helpful to the judges.
The record extract is not a new record that shrinks and replaces the original record. Nor is it a book that the judges or clerks will read cover to cover to form their impression of the case. So parties should not waste time adding their briefing to the extract to emphasize their view of the case. If one party fills page after page of their briefing in the extract, the court will likely never read it and more likely conclude that the designating party does not understand the rules. It is virtually never worth fighting over the record extract or getting stressed about it.
If an opposing appellant does not like an appellee’s designations, they still need to include them in the record extract, especially if appellee fronts the costs of a contested designation. If the appellant still does not include them, the appellee can simply put them in the appendix to appellee’s brief.
Again, it’s simply not worth fighting over or getting upset about. If your opponent is still in trial-combat mode, let them “win.” Keep your focus on the appeal itself and your peace of mind.
Derek Stikeleather is Chair of Goodell DeVries's Appellate Practice Group. He practices primarily in appellate advocacy and complex litigation, often in commercial disputes or defending product liability, medical malpractice, and class action claims. He can be reached at dstikeleather@gdldlaw.com.
This post originally appeared on the Maryland Appellate Blog, the blog of the Maryland State Bar Association Litigation Section.
