Pros and Cons of Using An Appendix, Rather Than A Clerk’s Transcript, In An Appeal

An alternative to using the clerk’s transcript is to prepare and file an appendix under Rule 8.124 of the California Rules of Court. Within 10 days of filing the Notice of Appeal, the appellant must file his or her intention to proceed under Rule 8.124, along with a Proof of Service on each of the other parties. The appellant gives notice of his or her intention by checking box “1(b)” on the first page of the Appellant’s Notice Designating the Record on Appeal form.

Advantages of using an appendix may include:

More control over presentation of the record on appeal. For example, you can designate portions of documents or exclude Proofs of Service from documents in the appendix. Along with control, you can also make it more user-friendly by using tabs or ensuring that documents are not split between two different volumes.

More control over the timing of the briefing schedule. When you use an appendix, the brief and appendix are due approximately seventy days after the Notice of Appeal is filed if proceeding without Reporters’ Transcripts. If proceeding with Reports’ Transcripts, the opening brief is due within 40 days from their filing. Generally, Reporters’ Transcripts become available more quickly than Clerk’s Transcripts. When you choose to proceed using a Clerk’s Transcript, you must wait for the Superior Court clerk to prepare the Record on Appeal, which could take up to a year.

Disadvantages of using an appendix may include:

Additional time and labor spent choosing and compiling documents, formatting the presentation, and indexing the appendix. In addition to all documents necessary for the consideration of issues in the appeal, the appendix must also include a chronological index of all of the items in the appendix and an alphabetical index of all of the items in the appendix.

Potentially more copying and binding costs.

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