In SC, What Goes into a Brief’s Addendum?

I apologize for the headline. It is misleading because the South Carolina Rules of Appellate Procedure do not provide for an addendum.

This differs from the federal rule. Rule 24.1(f) of the United States Supreme Court Rules requires that relevant constitutional provisions, statutes, and other texts be set out verbatim within the brief or within an appendix to the brief. 

Last week, Justice Scalia reminded Assistant Solicitor General Joseph Palmore about this rule.

At oral argument in Abramski v. United States, Palmore began comparing a statute’s various provisions with each other. Justice Scalia asked, “Is that on the appendix to your brief?” Palmore apologized that it was not but explained that he quoted the statute, in part, in his brief. Justice Scalia replied,

I can’t look at all these things because they are not in your brief. I really — I really resent, especially in statutory cases, not having the statute in front of us. I shouldn’t have to flip through your — your brief to see what page you cite a little snippet from one section on.

Transcript, pp. 45-46

The Sixth Circuit also expressed displeasure at the parties’ similar failure to reproduce the entire governing statute for the Court. Speaking for the Court, Judge Boggs found that the omission “evinces a certain inattention to the statutory scheme that runs throughout both parties’ briefs and significantly weakens their analysis of the issues presented.” In Re Concrete Pumping Serv., Inc., 943 F.2d 627, 629 n. 1 (6th Cir. 1991). 

Ouch. Justice Scalia’s and Judge Bogg’s criticisms, though harsh, make sense. A brief that quotes a statute in part may quote that part out of context. That is where the addendum or appendix comes in. It requires the parties to provide the entire statute so that the court may more easily see whether your construction squares with the statute as a whole.

So what about South Carolina? While it does not require an addendum or appendix, it does not prohibit it either. So I normally attach copies of the governing statutes at the end of my appellate briefs. And I say so upfront in the Table of Contents by listing an “Addendum” that describes what I am attaching at the back. That way the Court quickly learns what I consider important enough to attach.

This also goes beyond statutes. I have attached cases, photographs, memoranda in related cases, and other exhibits. Because there is no specific prohibition, I believe that I can attach as an addendum anything in the record on appeal or that the Court may judicially notice. 

The goal is of course to make it as easy as possible for a judge to rule in my favor. Making the helpful stuff handy is a way to do it.    

How about you? What if anything do you normally attach at the end of your appellate briefs? Please leave a reply.  

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