GSB Vol. 14, NO. 2, Pg. 14. Setting the Record Straight: A Proposal to Save Time and Trees.

Author:Jeffrey J. Swart

Georgia Bar Journal

Volume 14.

GSB Vol. 14, NO. 2, Pg. 14.

Setting the Record Straight: A Proposal to Save Time and Trees

GSB JournalVol. 14, NO. 2October 2008Setting the Record Straight: A Proposal to Save Time and TreesJeffrey J. SwartIn the Georgia appellate system, the transmittal of the record to the appellate court is the key event that sets the appellate process in motion. Indeed, the appellate process does not even start in any meaningful sense until this happens. All important deadlines in the appellate system run from the date that an appeal is "docketed" in the appellate court.(fn1) An appeal is not "docketed" in the Court of Appeals of Georgia, however, until the record has been filed in the clerk's office.(fn2)

Although this may sound like a ministerial event of no real difficulty, Georgia appellate practitioners know otherwise. Particularly in the metropolitan Atlanta area, many months- sometimes well over a year-can lapse between the filing of a notice of appeal and the transmittal of the record to the appellate court. The resulting delay is frequently difficult for clients to understand, and it should be. If there is anything to the old saying that "justice delayed is justice denied," then it is a fair question whether Georgia can improve upon a system that commonly adds months to the disposition of an appeal.

The short answer to this question is "yes." There are viable alternatives to the current system that are worthy of exploration. The built-in delay that burdens the appellate process is principally the result of the statutory requirement that the trial court clerk's office transmit a copy of the record to the appellate court.(fn3) Given the large records in modern commercial and criminal cases, and in view of the very substantial risks associated with designating less than the entire record for the appeal,(fn4) this requirement creates a great deal of work for the photocopy machines and clerical staff in Georgia trial court clerks' offices. It is hardly surprising that all of this photocopying is a time-consuming process. Fortunately, there are proven alternatives to wasting all this paper and time.

First, there is the alternative of having appeals on the original record. This system seems to work reasonably well in the U.S. Court of Appeals for the 11th Circuit and in 32 states. Second, there is the alternative of having appeals on a record prepared jointly by counsel. Third, while perhaps more ambitious, there is the alternative of implementing an electronic filing system in Georgia trial courts, so that the use of paper is minimized throughout the entire system. Finally, there are multiple combinations and variations of these alternatives that have been tried successfully in other court systems. Given the volume of litigation that will always be present in a state that is a hub of important commercial activity and the importance of an efficient judicial system in maintaining Georgia as such a hub of commerce, the time has come to consider implementing one or more of these alternatives in Georgia.

The Current Ground Rules and the Resulting Problem

In Georgia, the procedure for transmitting the record to the appellate court is controlled by statute.(fn5) Specifically, O.C.G.A. 56-43(a) provides, in relevant part:

Within five days after the date of the filing of the transcript of evidence and proceedings by the appellant or appellee, as the case may be, it shall be the duty of the clerk of the trial court to prepare a complete copy of the entire record of the case, omitting only those things designated for omission by the appellant and which were not designated for inclusion by the appellee, together with a copy of the notice of appeal and copy of any notice of cross appeal, with date of filing thereon, and transmit the same, together with the transcript of evidence and proceedings, to the appellate court. . . . If for any reason the clerk is unable to transmit the record and transcript within the time required in this subsection or when an extension of time was obtained under Code Section 5-6-39, he shall state in his certificate the cause of the delay and the appeal shall not be dismissed.(fn6)

Unfortunately, the statute's five-day deadline for copying is honored mainly in the breach, if it is ever honored at all. Indeed, it is not unusual to hear stories of records that take many months-or even over a year-to be copied. During this time, no progress is being made toward the resolution of the appeal, and the clock has not even begun ticking on the constitutional "two term" deadline for disposing of the case.(fn7) Moreover, because the statutory duty falls on the trial court clerk, there is room for doubt as to whether parties who could afford the expense of employing a professional copy service to assist the clerk in making the copies may be permitted to do so.(fn8) Accordingly, under the current system, Georgia appellate lawyers are simply obliged to advise their clients that the initiation of the appellate process could take several months and that until the record is transmitted to the appellate court, it is impossible to predict with any degree of accuracy when the appeal will be...

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