Monday, November 7, 2011
On the Record: What the Court of Appeals Needs
Appellate courts generally judge whether or not a trial court has made an error in a ruling or a set of rulings. Appellate courts can properly learn what happened in the trial court from two possible sources: a reporter's record and a clerk's record. A reporter's record used to be called a transcript. A clerk's record used to be called a statement of facts- not to be confused with the statement of facts that is a part of an appellate brief that gives the facts of a case. The arguments in a brief must cite to the reporter's record or the clerk's record. A post-judgment proceeding might go up to the court of appeals with a truncated reporter's record or without any reporter's record at all. There is a rule that if anything that could have decided the post-judgment proceeding would have been evidenced by a part of one of these records and part of the record is missing, that missing part is presumed to support the judgment. A reporter's record might not be necessary in a case in which the dispute is a pure issue of law and the parties jointly stipulate to a controlling set of facts, but it would still be a risky business.