CHAPTER 7 The Record

JurisdictionUnited States


The Record

7-1 Introduction

The appellate record consists of the Clerk's Record and, if necessary to the appeal, the Reporter's Record.1

The appellate record should include the following:

• Everything needed to show that the court of appeals has jurisdiction;
• For the appellant: everything needed to show a trial court decision or action that constitutes reversible error; and
• For the appellee: everything needed to (1) show that no error occurred; (2) show waiver or that any errors are harmless; and (3) support any cross-points.

7-2 The Clerk's Record

7-2:1 What Is the Clerk's Record?

The Clerk's Record contains the documents that have been filed in the case and designated by the parties for purposes of appeal.

7-2:1.1 Required Contents

Unless the parties agree otherwise,2 the Clerk's Record in all civil cases must include:

(1) all pleadings on which any trial was held;
(2) the trial court's docket sheet;
(3) the court's charge and the jury verdict, or the court's findings of fact and conclusions of law;
(4) the trial court's judgment or other order being appealed;
(5) any request for findings of fact and conclusions of law, any post-judgment motions, and the trial court's order on such motions;
(6) the notice of appeal;
(7) any formal bill of exceptions;
(8) any request for a Reporter's Record, including any statement of points or issues under Rule 34.6(c) (governing partial Reporter's Records);
(9) any request for preparation of the Clerk's Record;
(10) certified bill of costs, including the cost of preparing the Clerk's Record, showing credits for payments made; and
(11) any additional items that a party designates under Rule 34.5(b) to have included in the record. 3

7-2:1.2 Additional Items

At any time before the Clerk's Record is prepared, any party may file a designation of additional items for inclusion in the Clerk's Record with the trial court clerk.4

The designation must be specific enough to enable the clerk to "readily identify" the item.5 To avoid confusion, the designation should track the name of the document as closely as possible and provide the date of filing or signature. The clerk is directed to ignore general designations, such as "all papers filed in this cause."6

7-2:1.3 Agreed Clerk's Record

Rule 34.5 permits the parties to vary the Clerk's Record from the standard contents by agreeing to the items to be included in it. The court of appeals will presume the agreed Clerk's Record contains "all evidence and filings relevant to the appeal."7

7-2:1.4 Trial and Hearing Exhibits

Exhibits admitted at a trial or hearing and filed with the trial court clerk are not part of the Clerk's Record. Instead, the court reporter includes them as part of the Reporter's Record.8

7-2:1.5 Form

The following is the format for the Clerk's Record, whether electronic or paper:

• start each new document on a new page;
• include the date of filing on each document;
• arrange in ascending chronological order, by date of filing or occurrence;
• use consecutive numbering regardless of the number of volumes;
• place each page number at the bottom of each page; and
• as far as practicable, include the date of signing by the judge on each order and judgment. 9

A paper Clerk's Record must bind the documents together in one or more volumes, include no more than 500 pages in each volume, include only one-sided copies of documents, and number volumes sequentially.10

A supplemental Clerk's Record must also follow this form.11

7-2:1.6 Electronic Filing

Absent permission from the appellate court to file the record in paper form, the clerk of a court subject to mandatory civil electronic filing must file the Clerk's Record electronically.

Among other requirements, an electronically filed Clerk's Record must be in text-searchable Portable Document Format (PDF), have electronic bookmarks to mark the first page of each document, and be limited in size to 100 MB or less, if possible, for each computer file.12

7-2:1.7 Local Rules and Guidelines

The Clerk's Record must also comply with any local rules and guidelines of the particular court of appeals.

7-2:2 Triggering the Clerk's Duty to Prepare the Clerk's Record

When a party files a notice of appeal, and the party responsible for paying for the preparation of the clerk's record has paid the fee or made satisfactory arrangements with the clerk to pay the fee,13 the clerk of the trial court is required to prepare and file the Clerk's Record with the clerk of the appellate court.14

If a trial court clerk refuses to prepare the Clerk's Record after receiving a proper request, mandamus relief may be available from the court of appeals.15

7-2:3 Deadlines

7-2:3.1 Generally

The trial and appellate courts are jointly responsible for ensuring that the appellate record is timely filed.16 In an ordinary appeal, the Clerk's Record must be filed no later than 60 days after the judgment is signed.17 If an extended appellate timetable applies due to certain post-judgment filings, the Clerk's Record is due 120 days after the judgment is signed.18

In accelerated appeals, the Clerk's Record must be filed no later than 10 days after the notice of appeal is filed.19 However, Rule 28.1(e) provides an alternative by allowing the appellate court to hear an accelerated appeal on "the original papers forwarded by the trial court."20 The "original papers" must be certified by the trial court clerk or attested to by counsel as being accurate.21

The rules for accelerated appeals also apply to permissive interlocutory appeals.22

In a restricted appeal, the record is due within 30 days after the notice of appeal has been filed.23

The deadlines for the Clerk's Record in accelerated and restricted appeals differ from a standard appeal. In these appeals, the clock begins to run when the notice of appeal is filed, rather than the signing of the judgment.

7-2:3.2 Extensions

Clerks have the duty to ensure the Clerk's Record is timely filed. There is no need for counsel to seek an extension of time for filing the Clerk's Record.

The court of appeals may extend the deadline for filing the record if requested by the trial court clerk.24 No single extension may exceed 30 days for an ordinary or restricted appeal, or 10 days in an accelerated appeal.25

The appellate court must allow the appellate record to be filed late when the appellant was not the cause of the tardiness.26 However, when the delay is caused by the appellant—for example, by failing to make arrangements to pay for the record—the court of appeals makes a discretionary decision whether to allow the Clerk's Record to be filed late.27

7-2:3.3 Late Filing

If a Clerk's Record is not timely filed, the appellate court must send a notice directing the trial court clerk to file the record within 30 days for an ordinary appeal or a restricted appeal, and within 10 days for an accelerated appeal.28

If the Clerk's Record is not filed within those deadlines, the appellate court clerk must refer the matter to the court of appeals for issuance of "whatever order appropriate to avoid further delay and to preserve the parties' rights."29

If the Clerk's Record is late because the appellant failed to pay or make arrangements to pay the fee for preparing the record, the court may dismiss the appeal for want of prosecution.30 However, the court must give the appellant a reasonable opportunity to make or arrange for payment prior to dismissing the appeal.31

7-2:4 Paying for the Clerk's Record

7-2:4.1 Cost

By statute, trial court clerks currently may charge up to $1 per page for preparing the Clerk's Record.32 Some clerks also charge an additional preparation fee.

7-2:4.2 Agreement for Payment

The clerk's responsibility to prepare and file the Clerk's Record does not arise until the appellant has filed a notice of appeal and paid the fee for the record or made arrangements for payment.33 Thus, it is important to have a clear understanding with the trial court clerk regarding the financial arrangements.

7-2:5 Missing and Lost Documents

7-2:5.1 Pleadings Missing From Trial Court's File

If a pleading or document is missing from the trial court's file, the party wishing to include the document or item should try to locate a file-stamped copy. If one cannot be located, the party should attempt to resolve the issue with opposing counsel by agreeing to a copy of the document.

If a pleading has been lost or destroyed, the parties may submit an agreed copy to the trial court to be included in the Clerk's Record.34 When the parties cannot agree on copies of missing items, the court of appeals or any party may ask the trial court to determine an accurate copy.35

7-2:5.2 Non-Replaceable Lost Items Needed for Appeal

When an item that is necessary to the appeal is lost and cannot be substituted or stipulated, a reversal of the entire case, or possibly the relevant part of the case, may result.36

7-2:6 Consequences of No Clerk's Record

When a document is not designated for inclusion in the Clerk's Record, any appellate complaint requiring that document cannot be reviewed, and the court of appeals will presume that the missing item supports the trial court's judgment.37 As a result, the party urging error on appeal must ensure that the trial court clerk does not omit any designated items from the Clerk's Record.

If no Clerk's Record is filed, error cannot be demonstrated, and the case will either be dismissed or the judgment affirmed. A party may move to dismiss or affirm based on the absence of the Clerk's Record. The court may dismiss or affirm on its own initiative. However, the court must give the parties 10 days' notice prior to doing so.38

An appellee asserting cross-points to affirm the judgment on an alternative basis has the burden to make sure the Clerk's Record includes any necessary items to support appellate review of those points.39

7-2:7 Strategies for Bringing an Adequate Clerk's Record to the Court of Appeals

7-2:7.1 File Your Own Designation


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