Record Appendices in the Appellate Courts – Guide to the New Three-Step Procedure

Background

When a case is appealed, the appellate court must have access to the trial court’s record. There are a variety of ways of making that happen, and technology is creating additional options. For many years, the procedure in Georgia had been that the trial-court clerks were charged with copying and certifying the record. That procedure is set out in the Appellate Practice Act at O.C.G.A. § 5-6-43. The clerks are authorized to charge a statutory fee for that service. For many years that fee had been $1.50 per page. O.C.G.A § 15-6-77 (g) (12).

While $1.50 was a lot for a single photocopy, it represented a relatively small part of the total cost of an appeal. Things changed at the end of the last legislative session. A bill that updated the various fees charged by the state increased the appellate records fee to $10 per page. O.C.G.A § 15-6-77 (g) (12). The effect would have been to roughly double the already-considerable cost of an appeal, effectively cutting off access to the appellate courts.

Recognizing that the situation was an emergency, the Supreme Court and the Court of Appeals adopted rules (adapted from a proposal I drafted), that offer an alternative. The alternative is party-created record appendices. The procedure for party-created appendices is set out at Supreme Court Rules 67 and 69. Court of Appeals Rule 17 simply incorporates the Supreme Court rules by reference. (“Notwithstanding anything to the contrary in these rules, this Court will accept for consideration on the merits of any appeal any record or substitute therefor which the Supreme Court of Georgia accepts under its rules.”)

Supreme Court Rules 67 and 69 had been addressed to the clerks of the trial courts. Now the former rules have been designated subparts one, and new subparts two have been added. The new subparts authorize party-created appendices and specify the procedures for submitting them.

Procedure

While the procedure set out at Rules 67 and 69 is in many respects an improvement, it imposes additional responsibilities on appellants. Those responsibilities must be discharged early in the appellate process – along with, and very soon after, the filing of the notice of appeal.

Those responsibilities must be taken seriously. Existing law subjects an appeal to dismissal if an appellant is found responsible for inexcusable and unreasonable delay in transmittal of an appellate record. O.C.G.A. § 5-6-48 (c). So appellants should be at pains to exercise a high level of diligence and to avoid becoming party to a test case as to any ambiguities in the new rules.

The Supreme Court has posted frequently asked questions, forms, sample materials and timelines. The Court of Appeals has announced its intent to post “on its website soon an explanation of how these rules should be applied in the Court of Appeals and guidelines for preparing the record appendix.” So a party preparing an appendix should check the appellate court’s website. Court of Appeals Rule 17 suggests, at least for now, that the Supreme Court’s guidelines can be relied upon in the Court of Appeals.

The new rules set out a three-step procedure.

Step One – Notice of Appeal. The notice of appeal – or if necessary amended notice of appeal – should provide, “The clerk will please omit from the record on appeal everything except this notice of appeal (or the notice of appeal and this amended notice of appeal).” Note that the appellant will be responsible for timely payment of the $10 per page charge for the notice of appeal, as well as the new $35 per transcript charge for filing the transcript. O.C.G.A § 15-6-77 (g) (12).

One of the established functions of a notice of appeal is to tell the clerk of the trial court whether to wait for transcripts. That function is even more important under this new procedure. The appellate record will now be coming to the appellate courts from two different places. This creates potential for confusion. The notice of appeal should specifically identify any and all transcripts to be included in the appellate record. If any of those transcripts have already been filed, the notice of appeal should point that out.

Step Two – Designation. The rules contemplate a single record appendix, prepared after consultation between the parties. Along with the service copy of the notice of appeal, the appellant is to serve the appellee with a designation of the parts of the record to be included in the record appendix. The appellee then has 15 days to serve a designation of additional parts.

The rules go on to admonish parties not to “engage in unnecessary designation of parts of the record.” And there is an existing procedure for shifting costs to an appellee who designates unnecessary parts. Jacques v. Murray, 290 Ga.App. 334 (2), 336, 659 S.E.2d 643, 645 (2008). But as those costs will now be competitive commercial rates, it will rarely make sense to invoke that procedure.

Any disputes as to correctness of the record must be resolved by the trial court. Again there is an existing procedure. O.C.G.A. § 5-6-41 (f).

Step Three – Appendix. The appendix itself must be “transmitted” to the clerk of the appellate court within 5 days after the transcript is filed with the trial-court clerk. The Supreme Court has announced that, for this purpose, “transmitted” is synonymous with “filed” as the latter term is defined in Supreme Court Rule 13. If no transcript is filed, the appendix must be transmitted to the appellate court within 30 days after the notice of appeal is filed. Note that there is no provision granting appellants the longer of the two periods: a prompt court reporter will compel an appellant to act promptly. Similarly, if the transcript was filed before the notice of appeal, the appellant should comply with the five-day deadline.

These rules have been adapted from the existing statutory deadlines for records prepared by trial-court clerks. O.C.G.A. § 5-6-43 (b). Of course for the trial-court clerks, those deadlines have been largely toothless.

Rule 69 specifies the contents of the appendix and the sequence in which those materials are to appear. The Supreme Court has announced that all documents should be file-stamped. As service copies are often not file stamped, this is a significant logistical challenge.

First, Rule 69 (a) requires an index. The index is to include page references and dates of filing. The Supreme Court has posted a sample index.In order to supply the required page references, it is necessary to Bates-stamp the pages of the appendix. A Bates stamp is a mechanical device that stamps out consecutive numbers. Its function can be duplicated by features available within Adobe Acrobat and similar software and by professional printers. As to dates of filing, note that there will often be logistical challenges, as service copies are often not file-stamped.

Rule 69 (b) provides that the first item after the index is to be the notice of appeal.

Subpart (c) requires other items in chronological order. It would be wise to include everything that would have been designated for inclusion in a traditional appellate record. Note that, in the context of the applications for discretionary appeal, where file-stamped copies are not generally required, the appellate courts do require file-stamped copies of the order to be appealed. Supreme Court Rule 33; Court of Appeals 31 (e).

Subpart (d) requires a statement of correctness in specified language:

I, the undersigned attorney of record in the above-styled case, a member of the State Bar of Georgia and the Supreme Court of Georgia in good standing, do make this certificate as required by the Rules of the Supreme Court of Georgia. I hereby certify that I am familiar with the trial court record in this case, and that this appendix contains only parts of the record on file in the trial court.
This the _____ day of ___________, 20__.
(signature and Bar number)

The statement of correctness is a substitute for the clerk’s certification of the record. The specified language affirms only that that the appendix “contains only parts of the record on file in the trial court.” But an attorney signing such a certificate should understand that is an invocation of the duty of candor to the courts. A pro se party’s statement must be under oath.

An additional statement of correctness is required for each volume of the appendix. Each volume should be approximately 250 to 300 pages, small enough that it is not necessary to disassemble the document in order to read the top line of any page. For the same reason, the rules of the Supreme Court prohibit metal fasteners, such as binder clips and Acco fasteners “which cover the top center” of the document. Supreme Court Rule 68. The Court of Appeals prefers round-head fasteners. The fasteners should be long enough to assure that the appendix will not fall apart while being read.