Saturday, April 9, 2022

Chron v. reverse chron

Ninth Circuit local rule 30-1.4 expresses a preference for using reverse chronological order when preparing the excerpts of record. But don't take that approach in preparing an appendix for a California appeal--or you may get a reaction like that in footnote 15 of this partially published 2/3 opinion (denying a request for appellate sanctions):

With respect to the reverse chronological arrangement of the index and appendix, counsel notes the applicable rule provides only that appendix documents must be “ ‘arranged chronologically’ ” (rule 8.144(b)(2)(C)), but she emphasizes it “does not specifically indicate in which direction the chronology should proceed.” This, in our view, is not a reasonable reading of the rule and, in any event, the decision to use a reverse chronology made little sense in this case. Any practitioner who has read an appellate record should recognize there is a practical reason the rules mandate a chronological arrangement. A chronological arrangement allows the reader to move from the end of one record to the beginning of a subsequently-filed record—e.g., from motion, to opposition, to reply, to ruling. Counsel’s use of a reverse chronological arrangement requires the reader to retrace back through a record, then back through the subsequently-filed record, to find the beginning of that subsequently-filed record. That process is especially time consuming when the appendix spans over 9,700 pages and includes well over 100 documents, many of which are not separately indexed. Moreover, because counsel included appendices from earlier writ petitions, which were arranged in the appropriate chronological order, there are parts of [the] appendix that are in chronological order and parts that are reversed. And, because counsel did not separately index the documents embedded in the writ petitions, many of those documents have no chronological relationship (proper or reversed) to other documents in the appendix. Suffice it to say, counsel’s decision made reviewing the appendix a needlessly frustrating and time-consuming effort.

(The part about appellate sanctions is in the unpublished part of the opinion.)