Proposed CAAF Rules changes

The 11 April Federal Register includes a notice of proposed changes to CAAF's rules. 72 Fed. Reg. 18211. As modified by an amendment that will apparently be in Monday's Federal Register, the notice sets an 11 May deadline for comments.

The notice includes three proposed changes, but the upshot of all of them is to require the appellate defense counsel to file a joint appendix that will include the relevant portions of the record of trial.

The first proposal would amend Rule 24(a) by striking the requirement for specific page references in briefs' statement of facts. The second proposed amendment would add a requirement to include references to the appropriate portion of the joint appendix instead. The third proposed change would add a new Rule 24(f) requiring the appellant or petitioner to file 8 copies of a joint appendix, which will be a separate document filed contemporaneously with the brief. The joint appendix shall contain:

(1) the CCA's decision;
(2) copies of any unpublished opinions cited in the appellant's or petitioner's brief;
(3) relevant extracts of rules and regulations;
(4) relevant docket entries from the proceeding below;
(5) "relevant portions of the pleadings, charges, findings from the proceeding below" [there appears to be an "and" missing between "charges" and findings"]; and
(6) "other parts of the record of trial to which the parties wish to direct the Court's attention set out in chronological order."

The proposed rule also requires that the joint appendix "be bound in a manner that is secure and . . . will permit the contents to lie reasonably flat when open." This suggests a GBC binding style.

The proposed rule requires the appellate defense counsel to determine what portions of the record the appellate government counsel wants in the joint appendix and to include those portions in the joint appendix filed contemporaneously with the appellate defense counsel's brief. The proposed rule provides: "The parties are encouraged to agree on the contents of the Joint Appendix. In the absence of agreement, the appellant or petitioner must, within 10 days of the order granting the petition . . . serve on the appellee or respondent a designation of the issues to be raised on appeal and of the parts of the record to be included in the Joint Appendix. The appellee or respondent may, within 10 days after receiving the designation, serve on the appellant or petitioner a designation of the additional parts of the record to draw to the attention of the Court. The appellant or petitioner must include the parts designated by the appellee or respondent in the Joint Appendix."

The comments to the rule indicate that CAAF intends to phase the rule in over time, with the requirement for the Joint Appendix to include all of the relevant portions of the ROT not taking effect until 1 July 2008.

When I filed briefs with the 4th Circuit, I had to prepare a Joint Appendix similar to what is in this proposed rule and following procedures for consultation with opposition counsel similar to what is in this proposed rule. I suspect that the other circuits have similar requirements and that this rule will be familiar to anyone who has done federal appellate litigation. The comments accompanying the proposed rule changes explain that the changes are designed to ensure that every chamber has the relevant portions of the record of trial. I know from my experience working at CAAF that sharing one copy of the record of trial among five chambers is difficult, particularly as the judges prepare for oral argument. So I believe that this is a positive change to CAAF's rules. But this rule will impose a significant administrative burden on the various appellate defense divisions, who will have to enhance their administrative support to comply with this new requirement. (The comments suggest that is the reason for the phase-in period.)