Optional Appendix to Appellate Brief - Articles

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Posted by: Donald Paine on Mar 1, 2012

Journal Issue Date: Mar 2012

Journal Name: March 2012 - Vol. 48, No. 3

Mary Pullins was a young mother (age 22) in July 1973 when she was admitted to Fentress County Hospital complaining of chest pain. During the evening of July 20 she was bitten on the left thigh by a brown recluse spider. These deadly pests infested the exterior of the hospital; some crept inside through crevices. The All-American Extermination Company had failed to eradicate them.

Mrs. Pullins was transported to Fort Sanders Hospital in Knoxville, where she was attended by Dr. James Ely. Differential diagnosis told him that gangrene in the patient’s feet was caused by the systemic effect of spider venom. He ruled out blood thinner Coumadin as a cause. Sadly, it became necessary to amputate parts of both feet.

My former law partner Ken Hall (and local Jamestown lawyer John Appman) got a $500,000 verdict. The Court of Appeals took it away in a split opinion, the majority relying on a silly equal probabilities “rule” equating spider venom and Coumadin. Of course an appellate court is barred from reweighing evidence after a jury verdict has been approved by the trial judge (a.k.a. thirteenth juror).

Ken asked me to work on the petition for certiorari and appellate brief. The Supreme Court took the case and reinstated the $500,000 verdict against the hospital and exterminating company. Pullins v. Fentress County General Hospital and All-American Exterminating Company Inc., 594 S.W.2d 663 (Tenn. 1979).

To accompany our brief I prepared an appendix, somewhat unusual in those days before the Rules of Appellate Procedure existed. I believe it helped our cause.

Today take a look at Appellate Rule 28, allowing an optional appendix to an appellate brief. Especially instructive is paragraph (a):
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 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 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.

Note that each appellate judge will have a copy of your brief and your appendix. If the latter is compiled correctly, judges usually will not need to consult the full record. Your proof is right before their eyes.

Donald F. Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, and the Tennessee Judicial Conference.