The record on appeal: what do you do when there was no court reporter?

• Author: Miles, Amy L.
• Position: Appellate Practice

Preserving the record for appeal is a crucial aspect of the litigation process. In seminars and in law articles, attorneys are frequently instructed on how to ensure that if and when error occurs, the issue is preserved for appeal. Preservation is important because an appellate court will presume that a trial court's decision is correct until the party challenging that decision shows otherwise. (1) Without a record to demonstrate that error, an appeal will almost certainly result in an affirmance. (2) The rare exception to this principle is when the order on appeal demonstrates reversible error on its face. (3)

Preserving the issue on appeal requires, among other things, making specific and timely objections, proffering excluded evidence on the record, and obtaining definitive rulings on motions and objections. (4) Even taking all of these steps, however, to ensure that there is an accurate record will be ineffective when no court reporter recorded the proceedings and when no transcript can be made for the appellate court to review. The absence of a court reporter not only at trial, but at any hearing--especially where evidence is presented--is a detriment that is difficult to overcome when a party finds the need to appeal the trial court's decision.

The Florida Rules of Appellate Procedure provide a method by which a party can attempt to overcome the lack of record evidence or of a transcript in order to obtain appellate review of an erroneous decision. (5) Although far from ideal, Rules 9.200(a)(4) and (b)(4) permit a party to provide the appellate court with a stipulated statement of the record or with a statement of the evidence, recreated by the parties.

Rule 9.200(a)(4): A Stipulated Statement in Lieu of the Record

Rule 9.200(a) describes the content of the record on appeal that is to be transmitted to the appellate court for review. The rule provides that the clerk of the trial court will transmit a record consisting of "the original documents, exhibits, and transcript(s) of proceedings, if any, filed in the lower tribunal, except summonses, praecipes, subpoenas, returns, notices of hearing or of taking deposition, depositions, other discovery, and physical evidence." (6) Depending on the issue on appeal, a party--within 10 days of filing the notice of appeal--may make a special direction to the clerk to include additional documents or to exclude certain documents or exhibits in the record. (7) If the appellant directs less than the entire record, "the appellant shall serve with such direction a statement of the judicial acts to be reviewed." (8) The appellee then has 20 days to respond with directions to the clerk "to include additional documents and exhibits." (9)

Rule 9.200(a)(4) allows the parties to dispose of having the trial court record transmitted and instead to prepare a stipulated statement, which the clerk of the trial court transmits to the appellate court in lieu of the record on appeal. The rule requires that the statement show "how the issues to be presented arose and were decided in the lower tribunal." (10) The parties must attach "a copy of the order to be reviewed and as much of the record in the lower tribunal as is necessary to a determination of the issues to be presented." (11) They are to notify the clerk "of their intention to rely on a stipulated statement in lieu of the record as early in advance of filing as possible," and file the statement in the trial court "within the time prescribed for transmittal of the record" to the appellate court. (12) Preparing the stipulated statement requires the cooperation of both parties, but the rule does not explicitly require that the stipulated statement be approved by the trial court before being filed and transmitted to the appellate court.

Rule 9.200(b)(4): A Statement of the Evidence in the Record on Appeal

The appellate rules also provide for transcripts of the proceedings --which may not always have been transcribed by the time the notice of appeal is filed--to be designated, transcribed, and included in the record before it is transmitted to the appellate court. (13) On those occasions in which the proceedings were not reported or a "transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection." (14)

The rule specifically outlines the procedure an appellant must follow to enable it to submit its statement of the evidence to the appellate court. After preparing the statement, the appellant must serve it on the appellee, who then "may serve objections or proposed amendments to it within 10 days of service." (15) The appellant then submits "the statement and any objections or proposed amendments" to the trial court "for settlement and approval." (16) Once the statement of the...