Chapter 3: Pulling Together the Record on Appeal

Printer-friendly versionPrinter-friendly version
  1. What is the Record on Appeal?

    An Overview
    Almost all of the information necessary to know about the record on appeal can be found in Rule 9 Pascua Yaqui Rules of Appellate Procedure. What is provided below is merely a general discussion.

    The record is a collection of the testimony, the lower tribunal’s rulings and most of the documents that were presented to the lower tribunal. The record gives the appellate court a history of what happened in the lower tribunal. The record is limited to what was actually before the lower tribunal. You cannot add new documents or evidence to the record on appeal. In particular, the record is made up of the original pleadings filed in the lower tribunal and all exhibits filed in the lower tribunal. The record also includes any transcripts that were filed in the lower tribunal. Finally, the record has a progress docket, which is a list of everything that was filed in the lower tribunal.

    An appellate court or appellate court cannot review what happened in the lower tribunal without a record. An appellate court is usually required to presume that the lower tribunal's decision or rule is correct or lawful (the "presumption of correctness"), unless the person who filed the appeal can clearly show that the lower tribunal made some type of harmful error or mistake or that the rule or law in question is illegal or unconstitutional. If you are the appellant and are asking the appellate court to reverse and remand or correct in some way what the lower tribunal did, it is the appellant’s job to make sure that the appellate court has everything it needs to review what happened in the lower tribunal and determine whether the lower tribunal made a mistake that the appellate court can correct. The lower tribunal keeps the original documents and the appellate court receives copies of these documents instead of the originals.
     

  2. Pulling Together the Record on Appeal in Civil Appeals.
    1. Identifying What Needs to Be Included in the Record on Appeal.
      If the appellant chooses to pick only certain items for the record instead of sending the whole record to the appellate court, the appellant must obtain the appellee's consent and file a written stipulation that any part of the trial record need not be transmitted to the appellate court.

    2. The parties to an appeal may agree by written stipulation that any portion of the trial court record need not be transmitted to the appellate court.  Either party may include copies of any papers making up the record on appeal as an appendix to their briefs. 3 PYTRAP 9(A)(4)

    3. What is a Transcript, How Does the Appellant Get It, and Why Does the Appellant Need It?
      The record often includes a transcript. A transcript is a written statement wherein a court reporter, whom one of the parties requested attend a deposition, lower tribunal hearing or proceeding, records everything that was said by everyone who spoke at that hearing, or some other proceeding in the lower tribunal before a judge, including what the judge said. The transcript is prepared by a court reporter or official court transcriptionist in criminal cases. In civil cases, if a party did not arrange for a court reporter to be present at a proceeding, there often will not be any transcript available. In some cases, the transcript is already in the record. That is because one of the parties not only asked the court reporter to transcribe the proceedings, but that party then filed a copy of that transcript in the lower tribunal. Other times, even though a court reporter was present for certain proceedings, such as a hearing or a trial, or the proceedings were electronically recorded, neither side asked a court reporter to prepare a transcript of the proceeding. Therefore, that transcript is not in the record, but the appellant may need it for the appeal. Transcripts often have the most important information for an appeal. In these cases the pro se party may need to order the transcript from the court reporter for a complete record on appeal. Unlike adding affidavits or other documents that were never filed and, therefore, not part of the record, a transcript is different. It is an electronic and paper recording of what happened. So, if an appellate party orders a transcript for the record, that party is not adding anything new for the appellate court to consider.  Adding new information is forbidden. That party is only asking the court reporter to transform the notes taken at the proceeding into an electronic and paper transcript that the appellate court can read of a hearing or proceeding that actually took place.

      The appellant, within 10 days of filing the notice of appeal, must order from the reporter or transcriber an original and one copy of a transcript, if any, of such parts of the proceedings necessary for the inclusion in the record. See Rule 9(B)(1) Pascua Yaqui Rules of Appellate Procedure.

      The parts of the transcript relative to evidence should be included in the record if the appellant intends to argue on appeal that a finding or conclusion is unsupported by the evidence or contrary to the evidence. If only part of the transcript shall be included in the record, the appellant has 10 days to file with the appellate court clerk a description of the parts to be included and a concise statement of the issues he intends to present on appeal, a copy of which shall be served on the appellee.

      Unless the entire transcript is to be included, the appellant shall, within the time provided in Rule 9(B)(1), file with the appellate court clerk a description of the parts of the transcript which he intends to include in the record and a concise statement of the issues he intends to present on appeal, a copy of which shall be served on appellee. 3 PYTRAP 9(B)(2)

      The appellant must make arrangements with the reporter or transcriber for payment of the cost of the transcript and file a notice of this arrangement with the appellate court.
      At the time of ordering the transcript, the party ordering shall make satisfactory arrangements with the reporter or transcriber for payment of the cost of the transcript and file notice of the arrangements with the appellate court. 3 PYTRAP 9(B)(3)

      A copy of the transcript has to be served on each party within 30 days of filing the notice of appeal. If the appellant cannot get the transcript together within 30 days, then he shall file a motion for extension of time with the court of appeals.
      Sometimes a court proceeding takes place, but there was no court reporter present or a transcript is unavailable. In that case, the party seeking to re-create that transcript can prepare a narrative statement of the evidence from the best available means, including from one's memory. This narrative statement of evidence has to be a sworn statement that can be filed with the appellate court clerk. Since this statement replaces the official transcript, it is subject to the same time limits and has to be filed with the court of appeals within 30 days of filing the notice of appeal. The appellee has to be served and has then 10 days from the date of service to object or propose amendments to the statement of evidence. If the appellant does not intend to file a sworn statement, he must notify the appellee who may file a sworn statement within 10 days of notification. The appellant has then the possibility to make objections or file a proposed amendment within 10 days after service. See Rule 9 (C) Pascua Yaqui Rules of Appellate Procedure.

      The parties also have the possibility to prepare a joint stipulated statement instead of a transcript. The statement has to be filed with the appellate court clerk within 30 days of filing the notice of appeal. The statement will present all evidence or proceedings as needed for a decision on the issues brought before the court of appeals. See Rule 9 (D) Pascua Yaqui Rules of Appellate Procedure.
       

    4. What Happens If There Is a Mistake in the Appellate Record?
      The appellate parties are responsible for making sure the record on appeal has everything in it that was filed in the lower tribunal that the appellate parties need to prosecute or defend the appeal. If a dispute arises between the parties as to the correct content, this dispute will be settled by the tribal court and the record updated and brought to conformity with the truth. If anything is missing or an error occurred, the parties can stipulate or the tribal court can make a motion to correct the omission. Then the amended record is to be transmitted to the appellate court clerk. See Rule 9 (E) Pascua Yaqui Rules of Appellate Procedure.