The first four parts of this series covered the Supreme Court appendix contents that are either required or that are too lengthy to leave in the brief. This final installment addresses a provision that allows pretty much anything, but that should be used with caution.
Other Material Believed Essential. Rule 14.1(i)(vi) is the tempting catchall for petitioners not caring too much about printing costs. It allows “any other material the petitioner believes essential to understand the petition.”
To resist the temptation to pile up exhibits and testimony and pleadings and material from outside the case record, first recall the limited purpose of certiorari petitions discussed in the first part of this series. Then reread the rule’s stated limitation of scope. The key word is “essential.”
The Court will not reject a petition on the ground that its appendix includes documents someone in the Clerk’s office deems nonessential. But one can reasonably imagine a Justice or law clerk having an irritated reaction to some pleading or letter or other document that has little or nothing to do with the understanding of why the Court should view this Petition as one fitting the factors discussed in Rule 10 for acceptance.
Cockle’s document analysts often raise the question with a customer about the reasoning for including material under the catchall category, even though cutting pages from the appendix will lower our bill. It is, of course, your call on what to include, and sometimes the motives for including facially curious choices make a lot of sense.
A few factors about the essential-material category may be helpful:
First, there is no designated order for arranging the documents within this end-of-appendix grouping.
Second, the rule talks about “material,” not the case record. Just as you can refer in the brief to any document in the world, whether in the case record or on the internet or on a library shelf in Outer Mongolia, you can put anything from anywhere in the appendix, as long as it can fit in the Supreme Court’s booklet format. Cockle Legal Briefs can print and bind into a booklet things like maps or charts or posters that are larger than the standard page by folding the page into the booklet. We can use images in color or black and white, as we did with a brilliantly colored photograph of a Van Gogh painting that was the subject of a case.
Third, unlike the category for required orders, the catchall materials can be edited down to the truly essential parts. A snippet of trial testimony can be as short as the contextual information and bits and pieces of the transcript, with a row of three asterisks marking the omitted material. A decision from another case entirely can be boiled down to its essential parts, if you want the Court to have that critical language in hand rather than having to reach out for it through some search engine – again with asterisks for omissions. For example, an appendix that Cockle printed included a couple of official English translations of court decisions from unrelated but relevant cases that otherwise would be available only in Spanish.
Fourth, always keep in mind that the Court, at the petition stage, probably will not focus on whether documents in the petition appendix establish the truth of what you are arguing in the petition brief. The focus is on whether to accept the case. A citation in the brief to the record below normally is as good as a citation to an appendix page for backing up a factual assertion or some other point, in the same way that you would cite to a case or a book or internet page without attaching copies. Just as the court can look up a case citation, it can pull up the case record to check a claim about what happened in the lower courts.
Standard advice for any writer is to understand the reader. The readers of certiorari petition appendices have to quickly sort through piles of booklets for every conference to decide which cases to review and which to turn aside. They expect to see certain appendix documents in a particular order, and they are unlikely to be impressed by the heft of an appendix.
Now you can put your Rule 14 appendix together with confidence that following these guidelines will help you to more impressively present your plea to hear your case on the merits.