Three months ago we posted an appellate practice tip regarding Appellate Rule 7 and the court reporter’s duties in delivering and filing a completed trial court transcript. We noted that, to avoid potential problems with transcripts, appellate practitioners should follow up with the court reporter after a request to file a transcript is made. Today the Court of Appeals released an opinion in In Re T. H. that underscores the importance of that practice.

In Re T. H. involved an appeal by a juvenile of an adjudication and disposition for simple assault and common law robbery. Among the arguments made by the juvenile defendant (“respondent”) on appeal was that he was prejudiced by the court reporter’s delay in delivering the transcript from the trial court hearing to the appellate court. The hearing at issue took place on 30 March 2010 and the transcript was delivered to the Court of Appeals on 11 April 2011.

The Court of Appeals interpreted respondent’s argument regarding the delay in delivery of the transcript “as a claim that the delay in producing the trial transcript was a violation of “his constitutional and statutory rights to meaningful and effective appellate review.” The Court noted that determination of whether the delay rose to the level of a due process violation involved a four factor test: (1) the length of the delay; (2) the reason for the delay; (3) defendant’s assertion of his right to a speedy trial [or appellate review]; and (4) prejudice to the defendant stemming from the delay.

Although there was some confusion regarding the actual length of the delay in the court reporter’s delivery of the transcript, the Court noted that even if the delay were a year, that was not “presumptively prejudicial” so as to warrant the need to inquire into the other factors. However, the Court went on to discuss the factual circumstances surrounding the delay and the Court’s reasoning, for guidance in any future similar situations. Of particular note is the Court’s discussion of the communications between counsel for respondent and the court reporter regarding the submission of the transcript to the Court of Appeals. The Court determined that these communications demonstrated that the court reporter did not know that the 30 March 2010 hearing required transcription until sometime in November 2010. Although it is clear that respondent did follow up with the court reporter regarding the transcript, the Court noted that because this follow up did not occur until approximately seven months after the hearing, respondent was “partly to blame” for the delay. The Court applied that determination to the second factor of the due process violation test—the reason for the delay—and factored that into its overall conclusion that the delay in filing the transcript did not deprive the respondent of his due process rights.

The take away point from the Court’s examination of the circumstances in this case is that, not only must an appellate practitioner follow up with the court reporter regarding the trial court transcript, he or she must follow up quickly so as to not undercut the ability to argue that a delay in delivery of the transcript prejudiced the appellant should the need to make such an argument present itself.