Bedsores are a cardinal mark of neglect in hospital care.  They need never occur, and once they are created, should/could/must be treated so that they go away.  The decedent in this legal malpractice case was treated horribly.  The survivors then hired an attorney who let the case go, and himself was disbarred upon a guilty plea to a felony.  Result?  Not good.

In Corsiatto v Maddalone  2013 NY Slip Op 30553(U)  March 13, 2013  Supreme Court, Suffolk County  Docket Number: 2009-14305  Judge: John J.J. Jones Jr   we see:"’I‘he legal malpractice action was commenced on April 14, 2009. The underlying claim was for medical malpractice, neglect and mistreatment of Veronica Pecoraro, the plaintiffs mother, [“the decedent”], while the decedent was a patient at United Presbyterian Residence [“UPR’]. The decedent was admitted to UPR in August of 1994. She presented with a history of having suffered a stroke and congestive heart failure, was oxygen dependent and diabetic. Upon admission to UPR she had a Stage 1-11 pressure ulcer in the sacral area in the beginning stages, also referred to as a bedsore or decubitus ulcer."

"This action for legal malpractice was commenced on April 14,2009. On this inquest the plaintiff” seeks $1,000,000 in compensatory damages, $1,000,000 in punitive damages, and interest on the award from the date of the legal malpractice. In support of the application the. plaintiff submitted, inter alia, the affidavit of Paul Knieste, R.N., dated October 16,20 12 [“the Knieste affidavit”] to express an expert opinion based on the decedent’s medical records regarding her care and management while at UPR. The Knieste affidavit does not include Knies te’s educational background or a description of credentials qualifying Knieste as an expert on wound care."
 

"This action for legal malpractice was commenced on April 14,2009. On this inquest the plaintiff” seeks $1,000,000 in compensatory damages, $1,000,000 in punitive damages, and interest on the award from the date of the legal malpractice. In support of the application the. plaintiff submitted, inter alia, the affidavit of Paul Knieste, R.N., dated October 16,20 12 [“the Knieste affidavit”] to express an expert opinion based on the decedent’s medical records regarding her care and management while at UPR. The Knieste affidavit does not include Knies te’s educational background or a description of credentials qualifying Knieste as an expert on wound care."

"Informed by the foregoing, and in light of the evidence adduced by the plaintiff‘ demonstrating a violation of the Public Health Law in the management of the decedent’s Stage IV bedsore for a period of one month, the court believes that $200,000 does not materially deviate from what could be considered reasonable compensation given that the decedent’s medial condition made her a high risk for decubitus ulcers, that on admission to UPR she presented with a Stage 1-11 pressure sore, and that the proof pointed out UPR’s failures to properly manage the bedsore that occurred in the approximately four weeks that preceded her death."

Attorney sues Client for legal fees.  Opening a legal malpractice blog with that sentence is akin to starting a novel with "it was a dark and stormy night…"  So much of legal malpractice litigation arises after a fee dispute that "Fee dispute-legal malpractice" is a google search term.  Here, in Brill & Meisel v Brown  2014 NY Slip Op 00180  Decided on January 14, 2014  Appellate Division, First Department  the Appellate Division states some bedrock rules. 
 

1.  Whether the time to file a summary judgment motion has passed, a cross-motion for summary judgment which seeks dismissal of the same claims is properly considered. 

2.  It is error to refer a summary judgment case to a referee to determine factual matters, when the MSJ itself debates whether there are questions of fact to be determined.

3.  Timely objection to a bill will defeat an account stated defense, but general objections may not be sufficient.

4. Misconduct that occurs before an attorney’s discharge but discovered after the discharge may serve for fee forfeiture. 

"The motion court correctly found that issues of fact exist as to whether defendants sustained damages in connection with their malpractice counterclaim and whether plaintiff proximately caused those damages. In particular, the motion court correctly held that issues of fact exist as to whether defendants incurred unnecessary, as yet unreimbursed, attorneys’ fees when plaintiff continued to pursue allegedly futile contempt proceedings in a Housing Court action even after Housing Court made clear it could not afford defendants any relief. Further, plaintiff failed to eliminate any triable issues of fact as to whether its conduct in signing a confidentiality agreement was the proximate cause of defendants’ damages, as defendants allegedly incurred additional fees in procuring another inspection and report not covered by the agreement, and in attempting to overturn the agreement.

The motion court correctly ruled that any damages stemming from disclosure of defendant Altman’s litigation outline are too speculative to support defendants’ malpractice counterclaim (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [1st Dept 2002]). Among other things, it is too speculative to conclude that cross-examination at Altman’s deposition would have been shorter, and thus legal fees lower, but for disclosure of the outlines.

The motion court, however, erred in denying defendants’ cross motion to strike plaintiff’s references to a "Damages Analysis" as proof of the value of defendants’ damages. The document was created for settlement purposes in a Supreme Court action against the cooperative corporation of defendants’ building. Such documents "are inadmissible to prove either liability or the value of the claims" (CIGNA Corp. v Lincoln Natl. Corp., 6 AD3d 298, 299 [1st Dept 2004]; see also CPLR 4547).

As issues of fact remain regarding whether defendant was discharged for cause, summary judgment is not warranted on plaintiff’s account stated claim (see EMC Iron Works v Regal Constr. Corp., 7 AD3d 366, 367 [1st Dept 2004]). Defendants’ timely written objections to plaintiff’s final invoice, dated July 2, 2008, for work performed in the Supreme Court action also creates triable issues of fact as to plaintiff’s account stated claim (id.). Defendants’ general objections, however, to plaintiff’s bills do not suffice to challenge the remainder of the amount owed (see Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500, 501 [1st Dept 2011], lv denied 17 NY3d 702 [2011]).
Given the numerous triable issues of fact regarding plaintiff’s representation, triable [*3]issues of fact exist regarding plaintiff’s performance of the retainer agreement. Accordingly, summary judgment is not warranted on plaintiff’s breach of contract claim (see Kluczka v Lecci, 63 AD3d 796, 798 [2d Dept 2009]). "

Matrimonial legal malpractice has two distinct sides.  In representing the monied spouse, it generally consists of a claim that the attorney overbilled, and churned the file.  In representing the non-monied spouse, it generally consists of a claim that the settlement was unfair, or that the attorney failed to discover a large cache of assets.

In Mayerson Stutman Abramowitz, LLP v Rosenbaum  2014 NY Slip Op 30016(U)  January 6, 2014  Supreme Court, New York County  Docket Number: 152172/2013  Judge: Eileen A. Rakower we see a more common or varietal species of fee dispute/counterclaim situation.  Here, defendant-spouse has already tried and lost a legal malpractice case, and is now defending against an account stated claim.

"This action was commenced on March 8, 2013 by plaintiff Mayerson Stutman Abramowitz, LLP ("Plaintiff’) with the filing of a Summons and Verified Complaint on March 8, 2013. The Complaint alleges claims for account stated and breach of contract against defendant Carolyn Donovan Rosenbaum ("Defendant" or "Rosenbaum").

On March 27, 2013, Defendant interposed an answer with affirmative defenses and counterclaims. The affirmative defenses asserted are: statute of limitations has expired, the services rendered by Plaintiff were "unnecessary, unwarranted, and duplicative," and the services rendered were "inadequate and improperly performed." Defendant’s first counterclaim is for breach of contract
by Plaintiff in "charging Defendant unnecessary, wasteful and duplicative legal charges and expenses in the amount of $159,536 and seeks the refund of all sums paid to Plaintiff; the second is for unjust enrichment; and the third is for misrepresentation of sums allegedly due and owing and violation of the New York Code of Professional Responsibility.

Here, Plaintiff has made a prima facie showing of entitlement to judgment as a matter of law on its account stated claim by submitting evidence of Defendant’s receipt and retention of Plaintiffs invoices without objection within a reasonable time, and partial payments made thereon. Defendant, in opposition, has failed to raise a triable issue of fact by failing to submit evidence in admissible form that Defendant made any objection upon receipt of the Plaintiffs invoices or
within a reasonable time thereafter. The discovery defendant claims is outstanding, specifically, the deposition of Abramowitz, would not be the source of such evidence. Furthermore, as for Defendant Rosenbaum’ s Counterclaims, Defendant Rosenbaum previously commenced an action on March I 0, 20 I 0 entitled "Carolyn Donovan Rosenbaum v. Sheresky Aronson Mayefsky & Sloan, LLP, Heidi E. Harris, Esq., Allan Mayesky, Esq., Mayerson Stutman Abramowitz, LLP, and
Alton L. Abramowitz, Esq.," Index No. 7341-2010, which asserted claims for legal malpractice arising from the Mayerson law firm’s negotiation of her Separation Agreement, breach of contract based on allegations of overcharging of Plaintiff by the Mayerson law firm, and unjust enrichment. On August 17, 20 I 0, Justice Mary H. Smith dismissed the legal malpractice claim on the basis that the Mayerson law firm demonstrated that the parties’ legal relationship had ceased nineteen months before the purported Settlement Agreement had been reached. The Court further dismissed Rosenbaum’s breach of contract claim as duplicative of her legal malpractice and excessive fee claims and Rosenbaum’s unjust enrichment claim in light of the existence of a written retainer agreement. The Court permitted Rosenbaum to re-file her fee dispute claim with the Joint Committee on Fee Dispute and Conciliation. On March 3, 2011, Defendant filed an appeal with the Appellate Division, Second Department, asserting that the lower court erred in dismissing the action against the Mayerson law firm. On November 14, 2012, the Second Department affirmed the decision of the trial court. On November 28,2012, the Mayerson law firm attempted to restore the Fee Arbitration but was unable to do so and commenced the instant action. "

The beginning and end of an attorney-client relationship have some formal aspects to them.  They are guided and controlled by CPLR 321.  The end of the attorney-client relationship has a direct link to the question of commencement of the statute of limitations.  Defendant attorneys in legal malpractice cases often point to harsh communications which precede the actual end of the attorney-client relationship, and argue that it ended well before a consent to change attorney was filed.

Here, in  Louzoun v Kroll Moss & Kroll, LLP   2014 NY Slip Op 00096   Decided on January 8, 2014  Appellate Division, Second Department   we see how this argument fares.  "In support of their motion, the defendants proffered an email message from the plaintiff dated August 7, 2008, in which the plaintiff expressed dissatisfaction with KMK, accused KMK of having committed malpractice, disputed fees, and demanded her legal file. The defendants argued that the August 7, 2008, email message ended the trust and confidence required of a continuing attorney-client relationship, rendering the action commenced on August 9, 2011, untimely. In opposition, the plaintiff argued that her action was timely commenced, as the defendants’ representation of her continued until August 19, 2008, the date on which she executed a formal Consent to Change Attorney. The Supreme Court denied the defendants’ motion.

To dismiss a complaint pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the defendant bears the burden of establishing, prima facie, that the time in which to sue had expired prior to the commencement of the action (see Singh v Edelstein, 103 AD3d 873; DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812). The statute of limitations for legal malpractice is three years measured from the date of the alleged malpractice (see CPLR 214[6]; [*2]McCoy v Feinman, 99 NY2d 295, 301; Shumsky v Eisenstein, 96 NY2d 164, 166; Singh v Edelstein, 103 AD3d at 873), but may be tolled by operation of the continuous representation doctrine (see Zorn v Gilbert, 8 NY3d 933, 934; Shumsky v Eisenstein, 96 NY2d at 167). Documentary evidence may entitle a defendant to the dismissal of a complaint pursuant to CPLR 3211 (a)(1), but only where such evidence "conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 NY2d 83, 88).

Here, the plaintiff’s email message dated August 7, 2008, does not conclusively contradict the allegation, set forth in paragraph 103 of her complaint, that the defendants were not discharged as her counsel until August 19, 2008. The email message makes demands and accusations but does not necessarily or unequivocally terminate the parties’ attorney-client relationship. The email message states, inter alia, that, "without the judgment being signed, I have no money with which to pay," which suggests the need for further legal work to be performed, and also states that since the plaintiff and counsel both attend the same synagogue, "it will be a pity to have bad blood between us." In light of those statements, and the Consent to Change Attorney that was not executed until August 19, 2008, the defendants failed to conclusively establish that the attorney-client relationship did not continue until the latter date. Accordingly, the defendants’ motion to dismiss the complaint was properly denied. "

We are not sure where the line between privacy and whistleblowing exists, nor where the balance should be.  Galloway v Wittels  2014 NY Slip Op 30006(U)  January 6, 2014 Supreme Court, New York County  Docket Number: 151287/2013  Judge: Cynthia S. Kern is an interesting example of how a person can become enmeshed in a situation much larger than himself, and be buffeted by the resulting storm.

"The relevant facts are as follows. This action centers around the fact that plaintiff, in 2009, was publicly identified as a whistleblower in a patent lawsuit between Convolve, Inc. ("Convolve") and Seagate Technology, LLC ("Seagate"). Specifically, in 2003, plaintiff was employed as an engineer at Seagate Technology, LLC ("Seagate"). At that time, plaintiff testified as a 30 (b)(6) witness for Seagate in a pending patent lawsuit commenced by Convolve against Seagate (the "CS Lawsuit"). Six years later, after being terminated by Seagate, plaintiff was contacted by Seagate’s attorney and was advised that the CS Lawsuit was likely going to trial in January 2010 and that he might be called as a trial witness on Seagate’s behalf. According to plaintiffs complaint, "[p]rompted by the call from Seagate’s attorney, [he] did some research on the ongoing lawsuit and learned that, in addition to the patent litigation, Convolve had sued Seagate for violation of a non-disclosure agreement (NOA)." Thereafter, "[a]fter reviewing the case, [plaintiff] came to the conclusion that Seagate·:had violated the NOA." (Emphasis in original). Apparently, disturbed by the realization that the work he had done at Seagate had violated the NOA, plaintiff sent an email to Convolve asking that its legal department contact him.

Plaintiff alleges that in response to this email, he was contacted by one or more attorneys from defendant Cadwalader Wickersham & Taftt, LLP ("Cadwalader"), who represented Convolve in the CS Litigation. Specifically, plaintiff alleges that defendant Debra Brown Steinberg ("Steinberg") was on the initial call with him. During the call, Cadwalder’s attorneys ‘ allegedly asked if plaintiff was represented by counsel and after he told them he might still be represented by Seagate’s attorney, the call ended. Thereafter, plaintiff alleges that he was contacted by Neil Singer, CEO of Convolve who recommended that plaintiff contact Wittels, an attorney formerly employed by Sanford Heisler’s predecessor firm, Sanford Wittels & Heisler, LLP, at the time of the acts complained of herein, regarding plaintiffs termination of his employment from Seagate."

"Plaintiff now brings the instant action alleging that as a direct result of the defendants’ misconduct in regards to allowing him to be publicly identified as a whistleblower he has been unable to find suitable employment in his field. Specifically, in his amended complaint, plaintiff asserts two causes of action against Wittels and Sanford Heisler, as successor in interest to Wittels former employer at the time the acts complained of herein occurred, for malpractice and breach of fiduciary duty. Wittels and Sanford Heisler now move for an order dismissing the two claims."

"In the present case, plaintiffs claim for malpractice must be dismissed as against the moving defendants as the allegations in the amended complaint, taken as true and given the benefit of every possible inference, fail to demonstrate that but for Wittels’ alleged negligence plaintiff would not have been publicly named as a whistleblower and he would have found suitable employment. Moreover, plaintiff fails to plead actual and ascertainable damages that resulted from Wittels’ alleged negligence."

We have noted over the years that trial courts are all too eager to dismiss legal malpractice claims.  We argue that trial courts delve way to far into the underlying transaction (or litiigation)  in order to determine at the pre-answer stage, whether there is a "but for" component. 

The same issue is present in Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo   2014 NY Slip Op 00087  Decided on January 8, 2014  Appellate Division, Second Department. 

"The plaintiff commenced this action to recover damages allegedly sustained as a result of the defendants’ legal malpractice. As alleged in the complaint, the plaintiff retained the defendants to represent it in connection with the sale of certain real property and a related exchange of "like-kind property" pursuant to the Internal Revenue Code (see 26 USC § 1031). According to the allegations in the complaint, the plaintiff, based upon the defendants’ advice, selected LandAmerica 1031 Exchange Services, Inc. (hereinafter LandAmerica), as the qualified intermediary to hold a portion of the sale proceeds, totaling $5.5 million, for the exchange of like-kind property pursuant to 26 USC § 1031. The complaint alleged, inter alia, that the defendants negligently represented the plaintiff inasmuch as they reviewed, and advised the plaintiff to execute, an agreement with LandAmerica, under which the exchange funds were to be held in a commingled [*2]account and not a qualified escrow account or trust. Soon after the sale proceeds were transferred to LandAmerica, its parent corporation, LandAmerica Financial Group, Inc., declared bankruptcy. According to the complaint, the plaintiff’s funds were frozen for several years during the bankruptcy proceedings, and the plaintiff lost a portion of the funds because they were not held in a qualified escrow account or trust. The complaint further alleged that the plaintiff could not defer the taxes on the capital gains from the initial sale, as it did not have access to its funds to purchase a replacement property within the required 180-day period. "

"The Supreme Court improperly granted the defendants’ motion to dismiss the complaint based on documentary evidence. A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint, "conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). Here, the retainer agreement submitted by the defendants did not conclusively establish a defense as a matter of law (see Harris v Barbera, 96 AD3d 904, 905-906; Rietschel v Maimonides Med. Ctr., 83 AD3d 810, 811; Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38-39). "

"Here, construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as we are required to do, the plaintiff stated a cause of action to recover damages for legal malpractice (see Palmieri v Biggiani, 108 AD3d 604, 608; Kempf v Magida, 37 AD3d 763, 764). The plaintiff alleged in the complaint that the defendants were negligent in failing, inter alia, to advise it to keep its exchange funds in a qualified escrow account or trust, and that this negligence was a proximate cause of its damages. The defendants’ contentions that it was the conduct of the plaintiff’s manager and unforeseeable events that were the proximate causes of the plaintiff’s damages, and that the defendants did not depart from the standard of care, concern disputed factual issues that are not properly raised and resolved on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7).

The documents submitted by the defendants on appeal, which were annexed to their brief, are not properly before this Court, as they were not submitted to the Supreme Court (see CPLR 5526; Constantine v Premier Cab Corp., 295 AD2d 303, 304). Moreover, the defendants’ arguments that relied upon these documents were improperly raised for the first time on appeal (see Salierno v City of Mount Vernon, 107 AD3d 971, 972). "

Continuing from yesterday’s blog post, we look at another appellate legal malpractice case.  In Aramarine Brokerage, Inc. v Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. 2012 NY Slip Op 03533  Appellate Division, First Department the question of whether appellate counsel’s failure to argue that District Court allowed an impermissible argument raised only in reply is now the basis of a legal malpractice claim against the attorney who did not make the argument.
 

"Plaintiff, an insurance broker, seeks to recover for legal malpractice arising out of defendant law firms’ successive representation of it in connection with an underlying federal action against a group of insurers (the CGU insurers). In the federal action, the CGU insurers moved for, inter alia, summary judgment on their counterclaims for a return of insurance brokerage commissions paid in connection with premiums subsequently returned, on the ground that plaintiff’s claim of an oral agreement between the parties was controlled by New York law and was unenforceable pursuant to the statute of frauds. The CGU insurers argued for the first time in reply that the oral agreement also failed for lack of consideration. Plaintiff, then represented by Hall Estill, neither objected to the CGU insurers’ raising this issue in reply nor sought to submit a sur-reply. The district court (Casey, J.) granted the CGU insurers’ motion, finding that the oral modification was subject to New York law and was unenforceable under New York’s statute of frauds. The court found, alternatively, that plaintiff "failed to establish that any consideration was given in exchange for the alleged agreement" (American Hotel Intl. Group Inc. v CGU Ins. Co., 2004 WL 626187 *7 n 7, 2004 US Dist LEXIS 5154, *25 n 7 [SD NY 2004], vacated in part 307 Fed Appx 562 [2d Cir 2009]). On appeal by EB & G, the Second Circuit vacated the finding that New York law and the statute of frauds applied to the oral modification. Neither EB & G’s appellate brief nor the Second Circuit’s decision addressed the district court’s alternative holding of "no consideration." [*2]"

"On remand, the district court (McMahon, J.) held that, although Judge Casey could have disregarded the argument first raised in reply, his "no consideration" ruling was "law of the case," because it had not been reversed on appeal (American Hotel Intl. Group Inc. v OneBeacon Ins. Co., 611 F Supp 2d 373, 379 [SD NY 2009], affd 374 Fed Appx 71 [2d Cir 2010]). Judge McMahon noted that plaintiff had not, inter alia, objected to Judge Casey’s consideration of this argument on reply, or sought leave to file a sur-reply, or raised the issue on the prior appeal and reconsideration motions (id. at 376). She observed that, while the Second Circuit could have responded favorably to an abuse of discretion argument, it was "equally likely" to have "viewed with disfavor" plaintiff’s failure to raise the issue before the district court, and concluded that, "[h]aving passed up every conceivable opportunity to raise this issue . . . [plaintiff] has waived any right to argue . . . that Judge Casey erred by considering the belatedly-raised no consideration’ argument" (id. at 376, 377). "

"The complaint alleges that EB & G’s failure to address the "no consideration" ruling in its appellate brief in the first federal appeal resulted in plaintiff’s inability to defend against the CGU insurers’ counterclaims. By thus alleging "facts from which it could reasonably be inferred that defendant’s negligence caused [plaintiff’s] loss," the complaint states a cause of action for malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435 [2011], citing InKine Pharm. Co. v Coleman, 305 AD2d 151 [2003]). In opposition to EB & G’s motion, plaintiff was not required to show a "likelihood of success" (id. at 436). "
 

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."