Rather than focusing on one opinion, today’s blog post extracts tips from several Court of Appeals’ opinions issued today. First stop: the record on appeal. There are certain documents which must be included in the record on appeal. Cardinal sin of appellate cardinal sins is not including a filed-stamped copy of the notice of appeal and certificate of service in the printed record on appeal. That omission can quickly place your appeal on the road to dismissal. That is what happened to the appellant in Williams v. United Community Bank. To make matters worse, the appellant’s opposition to the motion to dismiss was one day late.
However, rather than panicking or sticking their heads in the sand, appellant’s counsel found a way out of this sticky situation. First, appellant’s counsel acknowledged that the response to the motion to dismiss was one day late, but filed a motion for leave to file out of time. The Court of Appeals granted appellant’s motion.
Tip 1: The Court generally appreciates when counsel independently acknowledges his/her mistakes and moves to correct them.
With respect to the missing notice of appeal, appellant’s counsel in Williams moved to amend the record pursuant to Rules 9(b)(5) and 37 of the North Carolina Rules of Appellate Procedure. Consequently, the Court of Appeals granted the motion to amend and denied the motion to dismiss the appeal.
Tip 2: If you find that a document is missing from your record, move to amend your record. I often see practitioners trying to get around this requirement. Do not attach the missing document as an “appendix” to your brief. Do not simply attach the document to your response to the motion to dismiss. Never underestimate the power of throwing yourself at the Court’s mercy. Take the proper steps to correct your record.
The next tips are extracted from a criminal appeal that deals with a proverbial favorite appellate topic: transcripts. In State v. King, a criminal appellant argued that he was denied meaningful appellate review because neither a verbatim transcript nor an adequate alternative was available on appeal. Apparently, the Buncombe County Superior Court transcription system was not working very well that day. Several portions of the trial were inaudible and the recording device stopped midway through the proceedings. Finally, the second phase of defendant’s trial was not transcribed at all. Those omissions left appellant’s counsel scrambling to reconstruct the trial, which included requesting detailed statements about or the notes of what occurred at trial from the following court officers: 1) the trial judge, 2) the Superior Court clerk, 3) the assistant district attorney, 4) the public defender, 5) and the deputy clerk present during the trial.
Ultimately, the notes and statements were sufficient to support meaningful appellate review of the first phase of the trial, but not the second. Therefore, the Court of Appeals remanded the case for a redo of the second phase of the trial.
Civil appellants are not afforded the same constitutional protection of “meaningful appellate review” that criminal appellants have. Accordingly, civil counsel—and in particular trial counsel—must be diligent about ensuring that a transcript will be available if the case is appealed.
Tip 3: Each courthouse works differently. Take the time before a hearing or trial to call the courthouse staff and find out what steps should be taken to get your proceedings properly transcribed. Just because there is digital recording equipment in a courtroom does not mean that the equipment is always running (or working). Do not assume that the deputy clerk knows how to run the recording equipment. And do not assume that because there is a court reporter in the room, the entire proceedings are being transcribed.
While not ideal, some courtrooms have reoccurring problems with their transcription devices.
Tip 4: If you find yourself in this situation, either ask permission to make your own recording or take someone with you who can take detailed notes of the proceedings. Appellate Rule 9(c)(1) allows parties to include a “narration” of courtroom proceedings in the printed record on appeal.
Unfortunately, the narration option is often time-consuming and contentious. However, using this option is better that having the Court of Appeals dismiss an appeal with words like this: “It is the duty of the appellant to provide the Court with materials necessary to decide the issues on appeal. The appellate courts can judicially know only what appears in the record. Because not all evidence appears in the record, we are unable to address the merits of appellant’s appeal.”
Tip 5: Finally, if the appellate process has you frustrated, remember that there are certain appellate problems that with just a little effort, you will likely be able to avoid your entire career—like being sanctioned for submitting a single-spaced brief to the Court of Appeals. See Allran v. Wells Fargo.