Those who have known me for any length of time know that for more than a decade I have really, really wanted the Supreme Court to give appellate practitioners clarification on how various transcript-related issues should work in practice. Today, the Supreme Court of North Carolina granted that wish by amending the North Carolina Rules of Appellate Procedure.
For cases appealed on or after January 1, 2021, Appellate Rule 7 has been completely rewritten. Related changes to Appellate Rules 9, 10, 11, 12, 18, 27, and 28, and Appendixes A and B, have also been adopted. In my humble opinion, the decade-long-wait has been worth it.
A summary of some of the key clarifications and changes follows:
- New Appellate Division Forms Relating to Transcripts. The biggest news with this latest round of amendments is the creation of two standardized forms that are referenced in revised Appellate Rule 7(b) and are located on the Supreme Court’s website. These fillable, PDF-forms should help to streamline and standardize the process for ordering and designating transcripts for an appeal. These transcript forms also establish minimum expectations for transcriptionists and the parties when ordering or designating transcripts for an appeal. See Appellate Division Transcript Contract Form and Appellate Division Transcript Documentation Form. While it may be tempting to download these forms from the Supreme Court’s website and never return, notice that the current forms have a “Last Revised” date of November 17, 2020. Because these forms are completely new, do not be surprised if they are tweaked over time as the Supreme Court monitors how they function in the real world. To that end, I encourage everyone to subscribe to the Supreme Court’s rule-based announcements, located on this page.
- After Notice of Appeal is Filed, an Ordering Party Must Use the Appellate Division Transcript Contract. Unless indigent and entitled to appointed counsel, a party must use the Appellate Division Transcript Contract Form to order a transcript for the appeal once notice of appeal is filed or given. N.C. R. App. P. 7(b)(1). A party ordering a transcript must give the transcriptionist the contact information (including the email address) of each party to the appeal.
- Transcriptionists Must Deliver Post-Appeal Transcripts on All Parties. For as long as I have been practicing law, a big debate surrounding the Appellate Rules has been the duty to pay for an appellee’s copy of a transcript for an appeal. The Supreme Court’s amendments resolve this debate by requiring the transcriptionist to electronically deliver any post-appeal transcripts on “the parties,” and by requiring the transcriptionist in the Appellate Division Transcript Contract Form (1) “to deliver the transcript to the requestor and to each person or entity that the requestor has identified as a party to the appeal” and (2) to agree that the ordering party may “reproduce the transcript, prepare derivative works from the transcript, distribute copies of the transcript, and display the transcript publicly.”
- Ordering Party Must Serve Any Pre-Appeal Transcripts During the Record Settlement Process. For transcripts for the appeal obtained before notice of appeal was given (e.g., trial or hearing transcripts ordered before final judgment was entered and perhaps deposition transcripts being filed with the record on appeal), the post-appeal transcript service requirements are spelled out in the new Appellate Division Transcript Documentation Form. First, note that regardless of whether the transcripts are ordered pre- or post-appeal, the form requires a party to use the form to designate any trial tribunal proceeding transcript that the party plans to include in the record on appeal. For pre-appeal transcripts (i.e., those not served by the transcriptionist), the designation form also requires that the designating party serve the transcript electronically on all other parties during the record-settlement process. In other words, an appellant will serve any pre-appeal transcripts along with its proposed record on appeal, and the appellee will serve any additional pre-appeal transcripts with its objections and amendments.
- Expect a Slight Price Increase for Appellate Transcripts. Most appellate practitioners and scholars have long believed that the Appellate Rules already required the ordering party to serve appellate transcripts as part of the record-settlement process. For the long history of this issue, see Scherer & Leerberg, North Carolina Appellate Practice and Procedure, 7.05[e] [Contracts Restricting Service of Appellate Transcripts on Opposing Counsel]. One practical issue, however, was that some transcriptionists circulated contracts that prohibited service of the completed transcripts on the other parties. Conscientious appellate practitioners typically worked around this issue by asking the transcriptionist to remove the service restriction in exchange for the ordering party paying a slightly higher, per-page transcription fee—typically an extra dollar or two. Because the new Appellate Division Transcript Contract Form eliminates these transcript service restrictions, we should expect transcriptionists to implement a conforming bump in the per-page cost for appellate transcripts moving forward.
- The Time for Contracting for and Serving Transcript Documentation Has Been Clarified. Amended Rule 7 gives appellants 14 days from filing or giving their notice of appeal to arrange for a transcript and serve the transcript contract and documentation. N.C. R. App. P. 7(b)(2). Appellees essentially have 28 days from the filing or giving of the last notice of appeal to order and designate any additional transcripts for the appeal. Unlike the prior version of Appellate Rule 7, appellees now have an explicit right to order or designate a transcript for the appeal even when an appellant declines to do so. See Scherer & Leerberg, § 7.05[g] [Other Parties’ Ability and Time to Order Hearing or Trial Transcripts]. Note, however, that for Rule 3.1 termination of parental rights cases and cases in which a party is indigent and entitled to appointed counsel, different procedures still apply. N.C. R. App. P. 3.1(c) & 7(c).
- Transcript Contracts and Documentations Are No Longer Filed with the Trial Court. Transcript documentations previously had to be filed with the trial court and served on the remaining parties. Revised Appellate Rule 7 only requires service of the transcript contract and documentation on the other parties.
- Proposed Record Due Date Has Been Extended from 35 days to 45 days. Revised Appellate Rule 11(a) increases the time for serving the proposed record from 35 to 45 days. This change promotes two distinct goals. First, it ensures that appellate transcripts normally will be ordered before the proposed record is due to be served. In other words, these extra ten days gives the transcript-record tolling provision of Appellate Rule 11(a) extra time to kick in so that the appellee can order its transcript. Second, the extra time to serve the proposed record gives appellants a little extra time to put together and properly format a proposed record. The revised Rules also clarify that the transcript-record tolling provision remains in place until all transcripts ordered for an appeal are delivered. Also, if multiple notices of appeal are filed or given, the proposed record is due 45 days from the last notice of appeal. See N.C. R. App. P. 11(a). Conforming changes have also been made to administrative appeals governed by Appellate Rule 18. N.C. R. App. P. 18(d)(1)-(2). Note, however, that the change to Appellate Rule 11 would not appear to have a direct impact on the Appellate Rule 3.1 deadlines for termination of parental rights cases, which have their own record deadlines. N.C. R. App. 3.1(d). Also, the general timeframe for serving proposed records in capitally tried cases remains 70 days. N.C. R. App. P. 11(a).
- Changes to Transcriptionists’ Deadlines for Completing Transcripts. For most appeals, transcriptionists now have 90 days after service of the transcript contract or appellate entries to deliver appellate transcripts to the parties (an increase from 60 days). N.C. R. App. P. 7 (e)(1). In capitally tried cases, the deadline has moved from 120 to 180 days. N.C. R. App. P. 7 (e)(1)(a). In juvenile delinquency and discipline cases, as well as civil commitment cases, however, the delivery deadline remains 60 days. N.C. R. App. P. 7 (e)(1)(b)-(c). Note that for Appellate Rule 3.1 cases, transcript deadlines continue to be governed by the separate deadline set out in that Rule. N.C. R. App. P. 3.1(c) (“[T]he transcriptionist must deliver electronically the transcript to each party to the appeal within forty days after receiving the assignment.”).
- Appellate Entries and Appointed Counsel Cases. When an indigent party is entitled to appointed counsel, Appellate Rule 7(c) rather than Appellate Rule 7(b) governs. Under Appellate Rule 7(c), the superior court clerk is required to order a transcript and to serve the completed appellate entries within 14 days after a judge signs the appellate entries form. N.C. R. App. P. 7(c). Service must be made on the parties, the transcriptionists, and (if appellate counsel has been appointed) on the party’s appointed appellate counsel. Because the changes to Appellate Rule 7 impact the current appellate entries forms, I suspect the Administrative Office of the Courts will update those forms on its website before these new rule amendments become effective.
- The Parties Are Now Responsible for Filing All Appellate Transcripts with the Appellate Courts. Way back in 2009, the Appellate Rules shifted responsibility for filing transcripts from the appellant to the transcriptionist. That procedural change produced headaches for both the parties to an appeal and the transcriptionists. See Scherer & Leerberg 9.02 [Filing of Transcripts, Tangible Exhibits, and In Camera Materials]. The amended Rules shift the responsibility for filing transcripts back to the appellant. See N.C. R. App. P. 7(f), 12(c). Note, this requirement applies to all appeals, including Rule 3.1 appeals.
- Parties Normally Should File the Entire Record Electronically. If you do not have e-filing privileges, you should get them ASAP. Electronic filing of transcripts is now required absent a court order. See N.C. R. App. P. 7(f), 12(c), Appendix B. Moreover, the electronic filing of all appellate record components is encouraged as long as permitted by the appellate courts’ electronic filing website. N.C. R. App. P. 12(c). So while a party can still file a handgun or other non-documentary exhibit directly with the clerk’s office, the appellate courts really, really want parties to file most other components of the appellate record electronically. This amendment to Appellate Rule 12(c) signals a permanent sea-change from two years ago when the Court of Appeals prohibited records from being filed electronically, see blog post, and from close to 8 months ago when the Court of Appeals finally began allowing printed records to be filed electronically in light of COVID-19, see this blog post.
- Most Initial Extensions of Time to Produce Transcripts Are Granted by the Trial Courts. Under the prior rules, all transcript extension requests in capitally tried cases had to be made to the Supreme Court. N.C. R. App. P. 7(b)(1), Appendix A (2020). This special exception for death penalty cases has been eliminated with the new amendments. N.C. R. App. P. 7, Appendix A. That means that the trial court can grant the first, 30-day extension of time to produce the transcript in most appeals. Note that I said “most appeals” because it remains unclear whether a trial court can consider an extension of time to produce the transcript under Appellate Rule 3.1. Compare N.C. R. App. P. 3.1(g) (“Motions for extensions of time to produce and deliver the transcript, to file the record on appeal, and to file briefs are disfavored and will be allowed by the appellate courts only in extraordinary circumstances” (emphasis added)), with N.C. R. App. P. 27(c) (“The trial tribunal for good cause shown by the appellant may extend once, for no more than thirty days, the time permitted by: (1) Rule 7 for a transcriptionist to deliver a transcript; and (2) Rule 11 or Rule 18 for service of the proposed record on appeal.” (emphasis added)).
- The Appellant Is Responsible for the Formatting of the Final Record on Appeal and the Order In Which Items Appear in the Final Record. Matt and I flagged in our treatise that Appellate Rules 11(c) and 18(d) appeared to contained a scrivener’s error. See Scherer & Leerberg § 8.07 [Formatting and Order in Which Items Appear in the Record on Appeal]. The prior rules stated that formatting and ordering of the “proposed record” was the appellant’s responsibility. But isn’t the formatting and ordering of items in the proposed record always and obviously the responsibility of the appellant? Because this prior statement made little sense, most appellate practitioners read this rule as trying to say that the formatting and ordering of items in the final record is the appellant’s responsibility. Amended Rules 11 and 18 confirm this interpretation by deleting the word “proposed.” N.C. R. App. P. 11(c) and 18(d).
- Conforming Changes to Appendix A’s Timetables. These changes were necessitated by the changes in other parts of the Rules.
- Non-Verbatim Transcripts Are a Thing of the Past. Ever wonder whether there was a difference between verbatim transcripts and non-verbatim transcripts? Me too. Since all transcripts are verbatim, the revised Rules clean up any confusion by deleting the term “verbatim” when describing transcripts.
- Hyphen Wars in Capitally Tried Cases Have Been Won. The hyphen between “capitally-tried cases” has been deleted throughout the amended Rules. I hear hyphen guru Leerberg rejoicing.
- Uniform Changes to Refer to Court Reporters as Transcriptionists. Because not all transcripts are prepared by official court reporters, the revised Rules use the more generic term “transcriptionist.”
- “Must” Versus “Shall” and Other Stylistic Changes. When a rule is completely overhauled like Appellate Rule 7 was today, we tend to see subtle stylistic trends. One continuing trend is the Supreme Court’s preference for words like “must” over “shall.” Revised Rule 7 also appears to have been written with the goal of making the Rules easier for practitioners to read and understand.
I was rushing to beat the 4:00 blog deadline, so let me know if you spot any additional changes or have questions in the comments below. Also, if anyone else is as excited about these changes as I am, celebrate with me below.