Potential Legal Malpractice in Appeals
We have mused that legal malpractice litigation is often created by financial pressures. Either the attorney has too many cases, or the law firm is understaffed, or the client is unwilling to pay/was overbilled. or, as discussed by Thomas Newman and Steven Ahmuty in today's New York Law Journal, the attorney is aware of the "high cost of reproducing a full record on appeal."
The potential for legal malpractice exists here when the appellate attorney risks dismissal of the appeal because of financial constraints. A full record, including a lot of material that no one is interested in, nor relies upon, can be shockingly expensive. In order to save printing costs (often exorbitant), an appendix is used, with the unnecessary material carved out.
From the article: 'A concern over the high cost of reproducing a full record on appeal led to the adoption of the "appendix method" as an alternate means of prosecuting an appeal. Use of the appendix method is governed by CPLR 5528 "Content of briefs and appendices," and 5529 "Form of briefs and appendices," as supplemented by the individual rules of the Court of Appeals and each of the four departments of the Appellate Division.1 There are no uniform rules governing appendices so it is always necessary to check the rules of the court to which the appeal is being taken.
CPLR 5528(a)(5) permits the appellant to file "an appendix…containing only such parts of the record on appeal as are necessary to consider the questions involved." If the parties agree, a joint appendix bound separately may be used and filed with the appellant's brief.2 Two important points must be kept in mind: First, use of the appendix method does not eliminate the requirement of settlement of the entire trial transcript, absent a stipulation to the contrary. "It is primarily because a complete typewritten transcript settled by the trial court is available, that an appellant is authorized, without further settlement or court approval," to employ the appendix method.3 In the absence of the parties' consent, the court does not have the power under CPLR 5525 to settle any transcript which fails to include the entire transcript of the stenographic minutes of the trial.4
Second, the appellant must also include "those parts [of the record] the appellant reasonably assumes will be relied upon by the respondent." The court rules reinforce this latter requirement. Under the First Department's Rule 600.10(c)(2)(ii), an appendix must include "[r]elevant excerpts from transcripts of testimony or papers in connection with a motion. These must contain all the testimony or averments upon which appellant has reason to believe respondent will rely. Such excerpts must not be misleading because of incompleteness or lack of surrounding context." Each of the other departments has a similar rule.
What should be included in the appendix is not a matter of guesswork. Before preparing the appendix, the appellant's counsel should consult with the respondent's counsel to determine which parts of the record will be relied upon by the respondent. If counsel are unable to reach agreement as to the contents of the appendix, the respondent may file a supplemental appendix or, if the omissions from the appellant's appendix are substantial and material, the respondent may move to dismiss the appeal or compel the appellant to file a proper appendix."