Can’t you squeeze a few extra facts into your appellate brief to make sure the Court of Appeals understands the flavor of the case?  The Court would surely excuse you for including in your brief that outrageous statement by opposing counsel, right?  And doesn’t the Court want to understand the case in the broader context?  Can’t you at least state a few things you know are true but aren’t in the record, and by signing the brief demonstrate as an officer of the court that you put your reputation behind those statements?

The answer to all of these questions is a resounding NO.

Appellate Rule 9(a) couldn’t answer these questions any more plainly:  “Appellate review is based solely upon the record on appeal.”  N.C. R. App. P. 9(a).  In Sood v. Sood, the Court of Appeals admonished both parties for their disregard of just this rule (among many other appellate procedural missteps). 

Defendant-Appellant wanted to argue on appeal that the trial court awarded temporary custody of his child to the wife “based solely on the fact that he is a non-Christian and the trial judge, a Christian, was biased against him.”  This argument was doomed from the start.  First, Defendant failed to introduce at the temporary custody hearing any evidence of the religious beliefs of Defendant or the Judge.  Second, there was nothing in the record to suggest that Defendant made a motion seeking recusal of the Judge.

This failure to preserve the issue did not stop Defendant from arguing the issue of religious bias, in purported violation of the First Amendment, on appeal.  For example, Defendant argued that printouts from the Judge’s Facebook page state that he is a Christian.  Defendant, proceeding pro se on appeal, also insisted in his brief that he had asked his trial counsel to reschedule the hearing to get a different judge.

Including the latter assertion is understandable for a pro se party — who better to recount a conversation between Defendant and his lawyer than Defendant himself?  Nevertheless, the Court was inclined to sanction Defendant for including such “facts” in his brief when they were not in the record.  For future reference, “it is entirely improper for [a party] to state, in the first person, his personal recollection of events at trial or after as part of his argument in an appellate brief.”  The Court restated the general principle that parties should “confin[e] their arguments to the facts contained in the record on appeal.”

In the words of Joe Friday’s apocryphal adage, “Just the facts, ma’am.”

–Matt Leerberg