Me. R. App. P. 8

As amended through February 27, 2023

Rule 8 - APPENDIX TO THE BRIEFS

(a)By Whom Filed. In every case the party who files the first notice of appeal shall file an appendix to the briefs, except that in child protection matters, 22 M.R.S. §§4001 - 4071, the State shall be responsible for the filing of the appendix.

(b)Number of Copies, When Filed.

(1) Eight copies of the appendix shall be filed with the appellants brief. In Title 22 child protective cases, the State shall file the appendix with the Court no later than 14 days before the date on which the appellants brief is due to be filed. The parties may agree to a later time for the filing of the appendix without notice to or leave of the Law Court, provided that the appendix shall be filed no later than the date that the appellees brief is filed or is due to be filed, whichever occurs first.

(2) When the appendix is filed with the Court, a copy shall be served on each other party to the appeal.

(c)Contents, Generally. The purpose of the appendix is to make available to each Justice of the Court those documents from the record that are essential to the review of the issues on appeal. Duplication must be avoided. No document shall appear in the appendix more than once.

(d)Contents, Mandatory - ALL APPEALS. The following documents shall be contained in the appendix in the following order:

(1) A table of contents.

(2) All docket entries from the proceeding(s) below.

(3) Each trial court decision, ruling, or judgment that will be addressed in the appeal, including the original final judgment and any subsequent orders amending the original final judgment.

(A) If the decision is in written form, a copy of the decision shall be included;

(B) If the decision or judgment includes more than one order or set of findings, a copy of each court action that constitutes the decision or judgment shall be included;

(C) If any part of the decision was stated orally on the record, a copy of the transcript of the decision shall be included. When a decision or ruling stated orally on the record was preceded by a colloquy with the court, the colloquy shall be included in the appendix if the colloquy does not exceed 20 pages in the appendix.

(4) The complaint, indictment, information, petition, motion, or post-judgment motion that initiated the proceeding in the trial court and any subsequent amendment to the document that initiated the proceeding.

(5) Any pre-judgment or post-judgment motion or petition that was subject to an order or other action or inaction by the trial court that is at issue in the appeal. If the motion or other request to the trial court was made orally, a transcript of the on-the-record discussion of the motion or other request to the trial court, including the courts ruling, shall be included.

(e)Contents, Mandatory - SPECIFIC PROCEEDINGS. Following the contents required by subdivision (d), the appendix shall contain the following contents for specific proceedings:

(1)Summary Judgment. If the appeal relates to the entry or denial of a summary judgment, a copy of the parties statements filed pursuant to M.R. Civ. P. 56(h).

(2)State and Local Government Administrative Appeals.

(A) If the appeal addresses a decision of a State or local administrative agency, including a municipality, board, commission, or other administrative body, a copy of the agencys decision, whether written or transcribed.

(B) If the agency decision was based on a municipal ordinance, a State or local regulation, or a Private and Special Law, a copy of the relevant section or sections from that ordinance, regulation, or Private and Special law, shall be included. For appeals from decisions of a municipal agency, a copy of the section or sections of the municipal ordinance that establish the authority of the agency to act on the matter subject to the appeal shall be included. Copies of relevant sections of the Maine Revised Statutes shall not be included.

(3)Jury Instructions. If the appeal includes a challenge to a jury instruction or jury instructions, a copy of the transcript of the jury instructions and a copy of any written instructions given to the jury, a copy of the transcript containing the discussion of or objection to the instructions, and copies of any relevant oral or written requests to the trial judge for different instructions than those given to the jury by the trial judge.

(4)Jury Verdict, Special Verdict Form. If the appeal is from a judgment entered on the verdict of a jury, and the jury reported its verdict on a written form, a copy of that form and a transcript or copy of the objections to that form, if any.

(5)Contract, Deed, Lease, Trust, Will, or Insurance Policy. If the appeal relates to the interpretation or enforcement of a contract, deed, lease, trust, will, or insurance policy: a copy of that document.

(6)Domestic Relations, Parentage, or Child Protection Matters. If the appeal is from a decision related to a domestic relations, parentage, or child protection matter: the child support affidavits, if child support is at issue on appeal; the financial statements of the parties, if property distribution or child or spousal support is at issue on appeal; the report of the guardian ad litem, if any, if a parental rights or parentage decision is at issue on appeal.

(7)Criminal Appeals. If the appeal is from a decision in a criminal matter: the presentence report, if any, if a sentence is at issue on appeal; the search warrant or arrest warrant and any affidavit in support of issuance of the warrant, if a search warrant or arrest warrant or actions pursuant to a search warrant or arrest warrant are at issue on appeal; and the Attorney Generals authorization, if required, for any State appeal brought pursuant to Rule 21.

(f)Contents, Discretionary. The following materials from the trial court record may be included in an appendix but are not required:

(1)Exhibits. If particular exhibits are essential to the Courts understanding of the issues on appeal, the appendix may include copies of those exhibits. Copies of exhibits, including photographs, maps, charts, or diagrams that were presented in color to the trial court or administrative agency shall be reproduced in color by any means, such as scanning or color printing, that reproduces the exhibit in the appendix to appear as close as possible to the way the exhibit appeared in the trial court record.

(2)Other Pleadings. Copies of other pleadings or filings that appear in the trial court record may be included, but only if they are essential to the Courts understanding of the issues on appeal.

(3)Placement. Documents from the trial court record, other than those that are designated "mandatory," that are essential for understanding the specific issues on appeal shall be placed in the appendix following the documents required by Rule 8(d) or (e).

(g)Exclusions from the Appendix. The appendix shall not include:

(1) any documents or images that are not a part of the trial court file or the record on appeal, other than a supplement of legal authorities authorized in subdivision (n) hereof;

(2) any documents that are, or include, pictures, videos, or other images (A) of persons under 18 years of age, (B) of adults subject to a guardianship or mental health commitment proceeding, or (C) that depict nudity or sexual or sexualized acts;

(3) except for an appendix prepared by the State in a child protective case, any documents made confidential by statute or court order that are not required to be included in the appendix by subdivisions (d) or (e) hereof; or

(4) any portion of the transcript from the trial court other than on the record statements or discussions required to be included in the appendix by subdivisions (d) or (e) hereof.

(h)Failure to Comply with Rules. An appendix that (1) fails to include mandatory documents; (2) does not present documents in the required order: first documents required by subdivision (d), then documents required by subdivision (e), then documents, if any, included pursuant to subdivision (f); (3) includes duplicate copies of documents; (4) includes documents or images excluded by subdivision (g); or (5) otherwise is not prepared in compliance with these Rules may be rejected, with the party that prepared the appendix being required to prepare and file a replacement appendix that complies with these Rules or being subject to another appropriate sanction, including dismissal of the appeal.

(i)Contents, Agreement of the Parties. The parties shall confer and attempt to reach agreement on the contents of the appendix in compliance with this Rule. If the parties do not agree:

(1) No later than 14 days before the appellant's brief is due to be filed, the appellant shall deliver to the appellee a list of the documents that the appellant proposes to include in the appendix. In child protection cases in which the State is the appellee, the appellant shall deliver to the appellee the list of the documents that the appellant proposes to include in the appendix at least 14 days before the appendix is due to be filed.

(2) If the appellee wishes to have additional documents included in the appendix, the appellee must, within 7 days after notice of the appellant's list of documents, designate additional documents for inclusion in the appendix, and the appellant shall include those documents in the appendix, unless otherwise ordered by the court.

(j)Content, Costs. Unless otherwise agreed by the parties, the appellant shall be responsible for the costs of producing the appendix. If the appellee designates documents for inclusion and the appellant concludes that such documents are not essential to understanding of the issues on appeal, the appellant shall include such documents in the appendix, but may seek recovery of the costs for inclusion of such documents after decision on the appeal. Following an appeal in a civil case, any of the costs incurred in the production of the appendix may be taxed to either party by the Law Court pursuant to Rule 13.

(k)Content, Format. The Law Court may on good cause shown, on motion filed prior to the filing deadline for appellant's brief, dispense with the requirement of an appendix and permit appeals to be heard on the original record, with such copies of the record, or relevant parts thereof, as the Law Court may require.

(1) Each page of the appendix shall be numbered consecutively. If the appendix consists of 20 pages or fewer, it may be bound with the appellants brief. Otherwise, it shall be separately bound with a white cover page designated "Appendix" and carrying the Law Court docket number, case title, and appearances of counsel or unrepresented parties for the appeal.

(2) The appendix shall be reproduced by standard printing or by any duplicating or copying process capable of producing a clear black image on white paper. Printing shall be on both sides of the paper. Except for oversize or electronic exhibits, the paper shall be 8-1/2 x 11 inches.

(3) The appendix shall be spiral bound or bound by a similar process, such as comb binding that permits the pages to lie flat when the document is opened. Plastic or metal spikes, staples, or posts shall not be used in binding.

(4) Oversize exhibits-such as plans or maps-and electronic exhibits on disc or another medium may be attached to the appendix in any method that permits the appendix to be handled as a bound volume.

(5) No volume of an appendix shall exceed 150 sheets of paper printed on both sides, not including oversize and electronic exhibits, and no appendix shall exceed one volume without prior approval of the Court.

(l)Failure to File an Appendix. The failure to file an appendix, or the failure to include in the appendix any document required to be included as set out in this Rule, may result in the dismissal of the appeal or other sanction.

(m) Hearing on the Original Record Without the Necessity of an Appendix. The Law Court may, on good cause shown in a motion filed prior to the filing deadline for appellants brief, dispense with the requirement of an appendix and permit appeals to be heard on the original record, with such copies of the record, or relevant parts thereof, as the Law Court may require.

(n)Supplement of Legal Authorities. A supplement of legal authorities is not required. The parties may, at their discretion, provide the Court with a brief supplement, separate from the appendix, containing important, relevant legal authorities such as statutes or court decisions from other jurisdictions. It is not necessary to provide copies of any or all cited authorities. The supplement of legal authorities is not counted in computing the appendix page limit.

Me. R. App. P. 8

Amended amended July 13, 2012, effective 9/1/2012; amended June 6, 2017, effective 9/1/2017; amended May 23, 2018, effective 6/1/2018.

Advisory Note - June 2018

When the Maine Rules of Appellate Procedure were initially redrafted in the process leading to the 2017 restyling, the specific requirement regarding inclusion of the transcript in the appendix was included in the draft of Rule 8(e)(6). As finally adopted, the restyled Rules, and specifically Rule 8(g)(4), barred inclusion of transcripts in the appendix, except where required by other Rules. The transcript requirement in Rule 8(e)(6) should have been removed to be consistent with the later drafted Rule 8(g)(4). Leaving the transcript requirement in Rule 8(e)(6) was a drafting oversight which is corrected with this amendment. Transcripts of proceedings on appeal must be prepared and included in the record on appeal as required by Rule 5(b)(2), but full transcripts of domestic relations, parentage, or child protection matters should not be included in the appendix.

Advisory Note - July 2012

Rule 8(f) is amended in two respects. First, the meaning of "page" is clarified. As the rule exists, there is confusion over whether the limit of "150 of pages printed on both sides" means 75 sheets of paper printed on both sides of the paper for a total of 150 numbered pages, or 150 sheets of paper printed on both sides of the paper, for a total of 300 numbered pages. The amendment clarifies that limit is for 150 sheets of paper printed on both sides of the paper, for a total of 300 numbered pages. A "page" is one side of the paper, and each side of the paper should be numbered.

Second, the rule now specifically permits what had been a common practice: attaching oversize exhibits and electronic storage media to the appendix. The Court encourages inclusion in the appendix of important maps, plans, and other oversize exhibits, as well as important electronic exhibits such as audio or video recordings. Like with paper exhibits, oversize or electronic exhibits should be included in the appendix only if they are important to an issue on appeal, and should be included in the table of contents.

Advisory Notes - January 1, 2001

The rule regarding the appendix to the briefs is significantly rewritten and intended to change current practice. Thus, it is significantly different from M.R. Civ. P. 74C. Other than a brief reference to an appendix in M.R.U. Crim. P. 39B(a)(6), there is no counterpart provision in the current criminal rules. The terms of Rule 8 are self-explanatory. It makes significant change from current practice because of dissatisfaction with the current practice which frequently results in necessary materials not being in the appendix and thus available to the justices of the Law Court and in appendixes which, while lacking important materials, are sometimes disorganized and overinclusive.

Key features of the revised rule:

-- Makes certain contents mandatory and requires that those portions of the appendix that are mandatory for all cases appear in a certain order in the appendix.

-- Specifies that 8 copies of the appendix are to be prepared and filed, such that one copy will be available to each justice.

-- Changes the time for filing the appendix to 14 days before the date which the appellee's brief is due to be filed. This is later than the current practice which requires filing contemporaneously with the appellant's brief.

For Department of Human Services Child Protective cases, the appendix must be filed 14 days before the appellant's brief is due. This difference reflects a request by the Attorney General's Office and recognizes the differing nature of child protective cases, where DHS, as the appellee, must prepare the appendix.

-- Limits the length of the appendix to 150 pages for each volume and no more than 2 volumes (i.e. 300 pages) without prior approval of the Law Court).

-- Authorizes a separate supplement of legal authorities which does not count towards the appendix page limit.

The rule continues the present practice under M.R. Civ. P. 74C(f) which allows hearing on the original record without the necessity of an appendix where the Law Court allows such on demonstration of good cause. This provision, in subdivision (k) of Rule 8, applies to both criminal and civil cases.

Advisory Notes - September 10, 2001

The amendment to subdivision (f) clarifies that printing shall only be on one side of each page.

The amendment changes in Rule 8(h)(7) are to remove the requirement that the appellant provide an original transcript to the Court. The original is separately filed by the court reporter pursuant to Rule 6(c). The appellant remains responsible for filing one complete copy of the transcript or transcripts. Unless the transcript is very brief, it should not be included in full in the appendix. The appendix should include only those limited and focused portions of the transcript that are necessary to a full understanding of the issues on appeal.

Advisory Notes- August 1, 2009

Rule 8 is amended in several respects to clarify current practice regarding preparation and filing of the appendix. In Rule 8(a) and at other points references to the Department of Human Services are replaced with references to the State. State responsibility for preparation of the appendix in child protective actions is limited to those cases in which the State initiated the action. It does not apply to actions initiated by private parties in the Probate Courts.

Rule 8(b)(1) is amended to change the time for filing the appendix from the present 14 days before the appellee's brief is due to 14 days after the appellant's brief is due. The appellant's brief is due at a time certain, 56 days (8 weeks) after the filing of the record. This change makes the appendix due at a time certain, 70 days (10 weeks) after the filing of the record. The Court's schedule for filing briefs and appendices provided to each party in each case, will indicate specific dates for filing of the appellant's brief, the appendix, and the appellee's brief as a result of the changes adopted in this rules amendment order. If the time for filing the appellant's brief is extended, the time for filing the appendix will be similarly extended.

Rule 8(c)(3) is amended to clarify that documents that are not mandatory pursuant to Rules 8(g) and 8(h) should be placed in the appendix following the mandatory documents.

Rule 8(c)(5) is adopted to specify areas where, in the past, there has been a significant lack of compliance with the appendix rules and to caution that such lack of compliance, in the future, is more likely to invite sanctions. Sanctions may range from being required to redo the appendix in proper form to dismissal of the appeal. The areas in which there has been a significant lack of compliance with the rules in past practice include: failure to include within the appendix those documents designated as mandatory by Rules 8(g) and 8(h); failure to present the mandatory documents in the required order in the appendix; and excessive duplication of documents in the appendix despite the directive of Rule 8(c)(4) that duplication of documents should be avoided. After a document appears in the appendix once, future places where that document should appear should include only a one page cross-reference to the document at the point where it originally appears.

There has been a significant practice of filing appendices with documents organized in chronological order from the first documents that appear in the record to the most recent documents that appear in the record. This is improper under rules that have been in effect since 2001. All appendices should include documents in the following order: (1) a table of contents; (2) the trial court docket entries, including all docket entries if the matter was transferred from the District Court to the Superior Court or was subject to a venue transfer from one court to another court; (3) the judgment or judgments and court orders that will be addressed in the appeal, including the final judgment; (for example, if a ruling on a motion to suppress is subject to challenge, the court order addressing the motion to suppress must be included and also the final judgment must be included), (4) the charging document or complaint which initiated the action and, if the complaint was amended, a copy of the amended complaint that served as the basis for the judgment. Following these documents should be any documents that are mandatory pursuant to Rule 8(h).

Rule 8(e) is amended to clarify that an appellant is entitled to request that an appellee pay for part of the cost of preparing an appendix only if the documents that the appellee seeks to include, and that the appellant believes are unnecessary, are not mandatory documents.

Rule 8(f) is amended, in a manner similar to a recent rules amendment adopted by the First Circuit Court of Appeals, to require that the appendix be printed on both sides of each page. With this change, the size of the appendix is limited to one volume not exceeding 150 pages printed on both sides, unless the Court approves a larger number of pages. The actual amount of printed material that may appear in the appendix (presently 300 pages of printing) is not changed, because printing may now appear on both sides of 150 pages. The amendment also clarifies that use of staples is not appropriate for binding an appendix.

Rule 8(g)(3) is amended to clarify that in the appendix, following the docket entries, each trial court judgment, order, or decision that will be addressed in the appeal, including the final judgment, must appear.

Rule 8(h)(2) is amended to add a requirement that for appeals from municipal agency decisions, the appendix must include a copy of those sections of the municipal ordinance authorizing the action of the municipal agency from which the appeal is taken. Entire volumes of municipal ordinances should not be included. Only those sections of the ordinance related to the issues on appeal and the municipal agency's authority to act on the matter should be included. This is to assure that the Court has available the authorizing ordinance to determine, for example, whether the agency should have considered the matter de novo or as an appellate body, and whether the agency had jurisdiction to hear the matter presented to it.

Rule 8(h)(7) is amended to remove the requirement that the appellant file with the Court an additional copy of the transcript of any proceeding, beyond the copy that has already been provided to the court by the court reporter. As amended, Rule 8(h)(7) notes that the portions of transcripts included in the appendix should include only those limited and focused portions of the transcript that are necessary to a full understanding of the issues on appeal.

Advisory Notes -July 1, 2010

Rule 8(b)(1) is changed to allow the parties to agree that the appendix will be filed later than the due date set by the rule. The court does not need the appendix until the appeal is ready for consideration on the briefs or for oral argument. If each appellee does not object to receiving the appendix closer to the date the appellee's brief is due, then there is no reason to require permission from, or even notice to, the Law Court to enlarge the time for the filing of the appendix. However, the appendix must be filed no later than the date that the appellee's brief is filed or is due to be filed, whichever occurs first. The appendix must be filed even if the appellee's brief is not filed by its due date.

Restyling Notes - June 2017

Despite its relatively explicit language, compliance with the requirements in Rule 8, by the bar and by unrepresented litigants, has been less than ideal. Repeated problems have been observed in (1) failure to include in the appendix documents that are required to be included by current Rule subdivisions 8(g) and 8(h); (2) failure to place documents included in the appendix in the order specified by current Rule subdivisions 8(c)(5) and 8(g); and (3) inclusion of duplicates of documents in the appendix, despite the explicit prohibition in current Rule 8(c)(4) that "[no] document shall appear in the appendix more than once."

To address these problems, Rule 8 is reorganized to place these explicit directions earlier and more prominently in the Rule. What were formerly Rule 8(g) and 8(h) are now Rule 8(d) and 8(e). In addition, practitioners may anticipate that the explicit directions in Rule 8 will be more rigorously enforced than in the past, with failure to comply with the Rule more likely to lead to a rejection of the appendix and a requirement that a new appendix be prepared or another sanction, including dismissal of the appeal, being imposed.

In addition to this reorganization and to minor editing to accomplish the objectives of restyling, Rule 8(g) is adopted to explicitly list items that may not be included in the appendix. The listed exclusions include any images of persons under 18 years of age, images of adults subject to guardianship or mental health commitment proceedings, and images that depict nudity or sexual or sexualized acts, and, except for child protective cases, any documents deemed confidential by statute or court order, except documents that are subject to the mandatory inclusion requirements of Rule 8(d) and 8(e). Because Rule 8(d) and 8(e) speak primarily to pleadings, docket entries, court orders, and the like, it would be rare for a document made confidential by statute or court order to be subject to mandatory inclusion in an appendix.

The exclusions also extend to transcripts or portions of transcripts, other than portions of transcripts included as mandatory items by Rule 8(d) and 8(e). The mandatory items have been expanded to include dialogue between the trial court and the parties that precedes a court ruling, order, or decision that is at issue on appeal. Any relevant portion of a transcript may, of course, be citied and, if particularly important, quoted in a partys brief. With filing of electronic copies of transcripts, transcripts are available for review by any Justice. All items excluded from the appendix, including print copies of transcripts, do remain part of the record and are available for Law Court review on appeal.

In other changes, the reference to "Family matters" in former Rule 8(h)(6), is expanded in restyled Rule 8(e)(6) to include domestic relations, parentage, and child protection matters. Further, the mandatory items that must be included in the appendix are expanded to include pre- or post-judgment motions that are at issue on appeal; wills, deeds, leases, trusts, or insurance policies that are at issue on appeal; and several items related to criminal appeals.

The listing of discretionary items that may be included in an appendix, if essential to the understanding of the issues on appeal, is clarified. Particularly, Rule 8(f)(1) is amended to require that copies of exhibits, including photographs, maps, charts, or diagrams that were presented in color to the trial court or administrative agency shall be reproduced in color by any means, such as scanning or color printing, that reproduces the exhibit in the appendix to appear as close as possible to the way the exhibit appears in the trial court record. This change should end past practice of including poor quality, copy machine reproduced black and white copies of color photos in the appendix.