If I had to pick the one section most frequently overlooked by attorneys filing cert petitions, it is what we at Cockle colloquially call the “appendix index.” That section has gained importance because the Supreme Court recently amended their rules to require an index in every brief containing an appendix. In this post, I will explain the rules governing appendix indexes, the reason why the Court requires them, and the different forms that they may take.
The appendix index did not officially arrive until a change in the Court’s rules in 2007. The Court attached one sentence to Rule 14.1(c), which states that “[t]he table of contents shall include the items contained in the appendix.” What that means in practice is placing—at the end of the Table of Contents—a listing of the appendix documents in the order that they appear in the appendix. The Court’s new Rule 34.4 codifies a practice we suggested at Cockle (on suggestion from the Clerk’s office) to place an appendix index in every brief that contains an appendix.
The Court changed the rules requiring an appendix index for pragmatic reasons. A gentleman at the Clerk’s office told me that the change reflects a trend towards more user-friendly briefs. Now a Justice or Clerk may flip to the Table of Contents and discover what documents are contained in the appendix, what order those documents are in, and what page number the particular documents are to begin.
In the new rule, there is no suggestion on the form of the appendix index, and in fact, there are a number of ways to list the appendix documents in the Table of Contents. Here are just a few examples from some of the leading Supreme Court practitioners. University of Washington School of Law Professor, Eric Schnapper, lists what type of document (i.e., order, opinion or judgment), the court that issued the document, and the date the document was decided. Former Solicitor General, Seth Waxman, separates the appendices into letters (i.e., A, B, C, etc.), describes the type of document and the court that issued it. Amy Howe, of Howe & Russell and SCOTUS Blog fame, simply lists the documents with a few short words (i.e., “Court of Appeals Decision, District Court Decision, Denial of Rehearing En Banc”). As described above, these highly successful Supreme Court practitioners use a variety of means to achieve the same result: the appendix index. It is not necessarily the form, but the existence of the index in your brief that matters.
No one wants to file a brief that does not conform to the letter of Supreme Court rules. It is therefore important that you check the Table of Contents for an appendix index before you send the brief to the printer.