By: Arend J. Abel, Attorney

[November 17, 2016]– The Indiana Court of Appeals issued an opinion today in which it said Exhibits should not be put in the Appendix.  Sperro, LLC v. Ford Motor Credit Company, LLC.  In footnote 4 of the opinion, the Court said:

“Appellants’ and FMCC’s appendices do not comply with the Indiana Rules of Appellate Procedure because they contain exhibits, which are considered part of the transcript and therefore are not to be reproduced in an appendix pursuant to Appellant Rules 29 and 50(F).”

While  Rule 50(F) does say that “parties should not reproduce any portion of the Transcript in the Appendix,” Rule 29 actually contains language suggesting that exhibits may be something different from the transcript.  But, Rule 2(K), which the Court does not cite, defines the term “Transcript” as including “the transcript . . . and any exhibits associated therewith.”  So, the Court of Appeals was right, it just didn’t provide the right rule citation.

In the same footnote, the Court again said that Bryan Garner’s convention of putting all case citations in footnotes does not comply with the rules.  Now, this doesn’t mean that a footnote containing argument or explanation can’t contain the citations that support the argument or explanation.

But my very strong view is that if something is worth saying, it is worth putting in the text.  Now that all courts use word limits, rather than page limits, putting things in footnotes is irrelevant to coming within the limits.  I always try to keep in mind what Noël Coward said on the subject.