§ 9.2 Content of Record

• Jurisdiction: Washington

§9.2 CONTENT OF RECORD

RAP 9.1 lists the items that may be included in the record on appeal.

(1) Generally

The record on appeal can contain: (1) clerk's papers; (2) report of proceedings (transcript); (3) exhibits; and (4) in appeals from administrative determinations, a certified record of administrative adjudicative proceedings. RAP 9.1(a).

The clerk's papers are compiled from the superior court pleadings. The clerk's papers should include only those pleadings necessary to review the issues on appeal. However, at a minimum, the clerk's papers should include the following:

• the notice of appeal or the notice for discretionary review;

• the indictment, information, or complaint in a criminal case;

• any written order or ruling, not attached to the notice of appeal, of which a party intends to complain on review;

• the final pretrial order, or the final complaint and answer or other pleadings setting out the issues to be tried if the final pretrial order does not set out these issues;

• any written opinion, findings of fact, or conclusions of law;

• any jury instruction given or refused that presents an issue on appeal; and

^• any order sealing documents if sealed documents have been designated.

RAP 9.6(b).

The report of proceedings can be a verbatim transcript of the trial or other trial court proceedings, a narrative summary of the trial or other trial court proceedings, or an agreed report of proceedings. RAP 9.1(b); RAP 9.2; RAP 9.3; RAP 9.4. If a proceeding was electronically recorded, a transcript of the recorded proceedings serves as the verbatim report of proceeding. RAP 9.2(a).

As with the clerk's papers, only exhibits needed to review the issues on appeal should be designated. The exhibits can include both those that were admitted and those that were rejected. Rejected exhibits should not be relied upon as substantive evidence, and are relevant only if there is an issue raised on appeal as to exclusion of the evidence.

(2) Inadequate record on appeal

As long as a party makes a "good faith" effort to provide the relevant parts of the record, the appellate court "will not ordinarily" penalize a party by refusing to consider an issue on the merits because of a deficient record. RAP 9.10. However, if the relevant pleadings, report of proceedings, or exhibits are not made part of the record on appeal, they cannot be considered by the appellate court. Stevens Cnty. v. Loon Lake Prop. Owners Ass'n, 146 Wn.App. 124, 131, 187 P.3d 846 (2008) (court would not consider an order quoted extensively in appellant's reply brief that was not part of the record on appeal); Story v. Shelter Bay Co., 52 Wn.App. 334, 760 P.2d 368 (1988) (court could not consider exhibits admitted at trial, and referenced in the appellate briefs, but not included in the record on appeal); In re Marriage of Ochsner, 47 Wn.App. 520, 528, 736 P.2d 292 (court refused to consider exhibits admitted at trial, and referenced in appellate briefs, but not included in appellate record, stating appellant had the duty to provide an adequate record on appeal), review denied, 108 Wn.2d 1027 (1987). Without the relevant record, the court may not be able to address the case on the merits. Cowlitz Stud Co. v. Clevenger, 157 Wn.2d 569, 573-74, 141 P.3d 1 (2006) (Supreme Court could not consider petitioner's argument that the trial court erred in considering a claim not previously considered by Department of Labor and Industries when petitioner failed to designate the record before the department); Mears v. Bethel Sch. Dist. No. 403, 182...