Appeals — Factual Arguments Disregarded Where Cited Material Not Included in Appendix, Even if Buried in the Record

From Newman v. State Farm Fire & Cas. Co., 2008 U.S. App. LEXIS 16690 (10th Cir. Aug. 5, 2008):

Before considering the facts and issues in this appeal, we address a preliminary matter concerning State Farm's improper citation in the fact section of its brief, and throughout other parts of its brief to a lesser extent, to transcript and deposition pages not included in the appendices. State Farm cites to various pages of the trial transcript and a deposition. More than seventy-five percent of the pages State Farm cites in its fact section are not included in the appendices. Although the Newmans provided only selected pages of the trial transcript and the deposition in their appendix, State Farm's supplemental appendix failed to provide the pages not included in the Newmans' appendix.

Our rules state that citation references should be to the appendices, and not to the transcripts. See 10th Cir. R. 28.1(A). Further, transcript excerpts must be included in an appendix when referred to in a brief. See id. at 10.3(D)(4). State Farm had the responsibility to file a supplemental appendix including any necessary items omitted from the Newmans' appendix. See id. at 30.2(A)(1); see also Yarrington v. Davies, 992 F.2d 1077, 1080-81 (10th Cir. 1993) (recognizing counsel's responsibility to provide sufficient record excerpts for consideration of issues on appeal). We will not remedy State Farm's failure to provide an adequate record. See 10th Cir. R. 10.3(B); id. at 30.1(A)(3).

Because State Farm failed to comply with our rules, we, for the most part, will not consider the fact section of State Farm's brief. Nor will we consider assertions made by State Farm in other parts of its brief that are supported by citation to transcript pages not included in the appendices. Instead, we will decide this appeal based on the portions of the record in the appendices.

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