Michael T. Brody, co-chair of Jenner & Block.

We've all done it.

Your U.S. Court of Appeals for the Seventh Circuit brief is due in a few days and your attention turns to what to put in the appendix. The Federal Rules of Appellate Procedure are not much help. Rule 30 instructs the parties to include relevant docket entries, relevant portions of pleadings, the judgment and "other parts of the record on which the parties wish to direct the court's attention," see Fed. R. App. P. 30. To a lawyer, "relevant" and "wish to direct the court's attention" could be anything. As with deciding whether to include that final, plausible argument, the appellate lawyer often decides to include everything. Rather than omit a document the court may later determine to be relevant, the advocate includes the additional pleadings, exhibits or documents. Sometimes, the advocate includes every document or transcript cited in the brief. The result is a bloated appendix, which often comprises multiple, hefty volumes. Once filed, the lawyer gives little thought to the appendix. In preparing for oral argument, the lawyer may not even remember having filed it, let alone consult it. No one wants to lug it around. It remains unread. It was not necessary.

The Seventh Circuit wants this to stop. At a recent meeting of the Board of Governors and Committee Chairs of the Seventh Circuit Bar Association, Chief Judge Diane Wood asked the assembled lawyers why they persist in submitting lengthy appendices. Wood explained that the record is available to the judges electronically. To Wood, and to her colleagues, a lengthy appendix is an unnecessary filing. The court has been clear about this. Circuit Rule 30(e) provides that an appendix should not be lengthy and the court will not award costs for a lengthy appendix, see Seventh Circuit Rule 30(d). In its Practitioner's Handbook the court adds "It is unnecessary to include everything in the appendix, as the entire record is readily accessible to each of the judges," see "Practitioner's Handbook For Appeals To The United States Court Of Appeals For The Seventh Circuit," 2019 Edition (Practitioner's Handbook) at 168. The Practitioner's Handbook is available at http://www.ca7.uscourts.gov/rules-procedures/Handbook.pdf. The Seventh Circuit's clerk's office gives similar guidance when asked. While statements of a member of the court staff do not reflect the considered judgment of the court – there is no such thing as "estoppel by clerk"—the Seventh Circuit clerk's office routinely advises lawyers to resist the temptation to submit a lengthy appendix. My own unscientific survey confirms the wisdom of this advice. In talking to recent law clerks (OK, my son and future daughter-in-law), I confirmed the appendix is rarely consulted. Clerks and judges employ electronic files when attention to record is necessary.

What do the rules say? Unlike some circuits that require the submission of joint appendices or excerpts of record, the Seventh Circuit's practice is streamlined. Circuit Rule 30(a) requires the appellant to submit an appendix bound with the main brief containing the judgment and order appealed from, and any opinion, memorandum of decision, findings of fact and conclusion of law, or oral statement containing the reasons for that judgment. Circuit Rule 30(b) describes the additional materials that must be included: other opinions or orders that address the issues sought to be raised, including opinions or orders of magistrate judges or bankruptcy judges; similar orders or findings by administrative agencies in a case challenging a ruling by an agency; and relevant opinions from prior proceedings in a collateral attack of a criminal conviction. Parties must also include orders concerning motions for a new trial or alterations of judgment.  As an indication that the court believes less is more, Circuit Rule 30(b)(7) states that if these additional materials do not exceed 50 pages, they should be bound with the main brief. Otherwise, the party should file a supplemental appendix.

Circuit Rule 30(b)(6) is the portion of the rule that the belt-and-suspenders advocate misreads. That rule advises the brief filer to include "any other short excerpts from the record such as essential portions of the pleading or charge, disputed provisions of a contract, pertinent pictures, or brief portions of the transcript, that are important to a consideration of the issues raised on appeal." To some, this rule opens the floodgates. Yet the operative language is the parties shall include "short" excerpts from the record. The court neither needs nor wants every pleading, transcript, exhibit or order. The court already has the entire record. The purpose of the Circuit Rule 30 appendix is to provide the orders appealed from, such additional orders as are necessary to evaluate jurisdiction, and other "short" excerpts from the record "that are important to a consideration of the issues raised on appeal."

So why do we lawyers in the Seventh Circuit continue to file bloated appendices containing copies of documents already at the court's fingertips? In that recent meeting, we explained to Wood that one reason we file lengthy appendices is that such filings are required in other circuits. In other words, it has become a bad habit. For example, in the Ninth Circuit parties are required to submit excerpts of record. Although such excerpts may now be submitted electronically, compliance with the Ninth Circuit practice results in the submission of voluminous record excerpts. Appellate attorneys with experience in other federal and state courts sometimes translate their experience to the Seventh Circuit. Also, we submit bloated appendices out of fear. Rather than risk judicial ire for neglecting to include something the court may conceivably want or, worse yet suggesting that you are trying to make a bad document go away by omitting it, lawyers lard their filings with unnecessary documents. It is easier to include everything than to think about what is really needed and submit a trim appendix that complies with the circuit rule. Is this fear realistic? Has a lawyer ever been questioned at oral argument about having failed to include an optional document?

Wood was not moved by these reasons, and her recent comments reflect it is time to change. We advocates in the Seventh Circuit should take the court's rule and guidance literally. Submit the required materials, but beyond that, only submit additional materials in an appendix if they are both short and important to the consideration of the appeal. Your clients will appreciate the cost savings, and the judges, law clerks and court staff will appreciate not having to lug around lengthy, unnecessary appendices. Additionally, in the process, you may save a tree or two.

This suggestion only goes so far. The Seventh Circuit has criticized lawyers for failing to include the required materials in an appendix. Circuit Rule 30(d) requires counsel to certify that all of the required materials have been included in the appendix. Nothing in the court's recent statements or this article should suggest otherwise. The failure to include the materials required by Rule 30(a) will be noticed by the court. The court insists on "meticulous compliance with the rule." Beyond the specter of embarrassing questioning at oral argument, the court has sanctioned noncomplying counsel. See Jaworski v. Master Hand Contractors, 882 F.3d, 686, 690 (7th Cir. 2018) (false certification can lead to affirmance in civil case); United States v. Johnson, 745 F.3d 227, 232 (7th Cir. 2014) (counsel sanctioned $2,000 for an intentional violation); United States v. Rogers, 270 F.3d 1076, 1084 (7th Cir. 2001) (counsel sanctioned $1,000 for a Rule 30 violation). The solution is to be discerning.

The U.S. Court of Appeals adopted electronic case filing years ago. Attorneys in the Seventh Circuit should trust the court to access the record electronically.

Michael T. Brody is a partner at Jenner & Block. Brody serves as co-chair of the firm's appellate and Supreme Court practice and co-chair of its class action practice.