Appellate Counsellor Tips

Tips For Preparation Of The Record

It is generally the appellant's responsibility to make sure that the appellate court has before it the materials from the trial court's file that are necessary to decide the appeal. The handling of the record in state and federal practice differs.

Federal Practice

Record on Appeal

In federal practice, the pleadings and exhibits filed in the trial court, any necessary transcripts of oral proceedings, and the clerk's docket sheet comprise the record on appeal. Fed. R. App. P. 10(a). The court of appeals will have access to the entirety of this record when considering an appeal.

Within 10 days after filing the notice of appeal, the appellant must designate what portions of the transcript it intends to order. Appellee may designate additional portions within 10 days after service of appellant's designation. The appellant must then order all designated portions of the transcript on the printed "Transcript Designation and Order Form." Ninth Circuit Rule 10-3.1. The reporter's transcript is then filed in the trial court. Ninth Circuit Rule 11-1.1.

Upon the filing of the reporter's transcript or upon notice that there will be no transcript, the clerk of the trial court files a "certificate of record" with the court of appeals, which attests that all documents are available to the parties in the clerk's office. The record on appeal is considered filed as of the date of the filing of the certificate. Ninth Circuit Rule 11-2.

Excerpts of Record

The Ninth Circuit has adopted an "Excerpts of Record" procedure as an alternative to the "Appendix to the Briefs" requirement of Federal Rule of Appellate Procedure 30. See Ninth Circuit Rule 30-1.

The appellant must prepare a separately bound, tabbed volume containing the notice of appeal, the trial court's docket sheet, the order appealed from, any other order relating to the one appealed from, any jury instruction given or refused that presents an issue on appeal, the portion of the reporter's transcript relating to any evidentiary issue or oral ruling presented on appeal, any exhibits necessary to resolve an issue on appeal, and "any other specific portions of any documents in the record that are cited in appellant's briefs and necessary to the resolution of a issue on appeal." The "Excerpts of Record" should not include any briefs or memoranda of law unless necessary to the resolution of an issue on appeal.

Appellee may submit supplemental excerpts of records if it believes that appellant has omitted items that should be included.

Sanctions may be imposed if required materials are omitted or if irrelevant materials are included. Ninth Circuit Rule 30-2.

Citations to the Record

Citations to the "Excerpts of Record" are customarily given as "ER Tab __, p. __." Citations to portions of the trial court record not included in the excerpts are customarily given as "CR Tab __, p. __" -- with the "Tab" referring to the docket number shown on the clerk's docket sheet).

State Practice

In state practice there are several different methods for bringing the record before the appellate court.

Reporter's Transcript

An appellant who wants to have a transcript of any oral proceeding available in the appellate court must designate those portions to be transcribed by filing a notice to prepare a reporter's transcript within 10 days after filing the notice of appeal. The designation must be accompanied by (1) a deposit of the estimated cost based on a written reporter's estimate or on the amount provided by rule ($325 for less than three hours, or $650 per day or fraction greater than three hours), (2) a written waiver of the deposit by the reporter, (3) a court order waiving the deposit, or (4) the original transcript. Cal. R. Ct. 4(a).

Within 10 days after service of the appellant's notice, the respondent may serve a notice designating additional oral proceedings to be transcribed. Cal. R. Ct. 4(b). However, if the appellant does not request a reporter's transcript, the respondent may not make such a request. Cal. R. Ct. 5(f), 5.1(j), 5.2(c).

Clerk's Transcript

Unless one of the other methods mentioned below is chosen, appellant must, within 10 days after filing the notice of appeal, file a notice designating those portions of the trial court's file to be included in a clerk's transcript. Cal. R. Ct. 5(a). The respondent may file a counter-designation within 10 days after service of the appellant's notice.

This seems to be the usual method that appellants choose for bringing the record before the appellate court. However, this method leaves you at the mercy of the clerk's office, which may not compile the clerk's transcript as quickly as you would like, and may omit items that should have been included.

Appendix

By notice filed within 10 days after filing the notice of appeal, the appellant may elect the appendix method. Cal. R. Ct. 5.1(a). Under this procedure appellant prepares a separately bound volume containing the portions of the record to be presented to the appellate court. Counsel have a duty to attempt to agree upon a joint appendix. Cal. R. Ct. 5.1(d). If agreement cannot be reached, appellant files an appellant's appendix (Cal. R. Ct. 5.1(e), respondent files a respondent's appendix (Cal. R. Ct. 5.1(f), and appellant may file a reply appendix (Cal. R. Ct. 5.1(g).

Superior Court File In Lieu of Clerk's Transcript

Under California Rule of Court 5.2 the parties may agree by written stipulation to have the entire trial court file brought before the appellate court as the record. However, this procedure is only available if the relevant court of appeal has approved it by means of a local rule.

Citations to the Record

Citations to the "Reporter's Transcript" are customarily given as "RT __." Citations to the "Clerk's Transcript" are customarily given as "CT __;" citations to an "Appendix" as "App. __."