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accuracy or completeness, and may
not reflect the most current legal
developments, verdicts, or
settlements. As a result, do not act
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seeking professional legal advice.
Any links to other Web sites are
provided merely as a convenience.
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available. This Web site does not
incorporate materials that appear on
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A lawyer-client relationship is not
established merely by accessing this
Web site or contacting me by
telephone or email. If you wish to
hire me after an initial consultation, I
will provide a written agreement
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provide and the fee I will charge.
Until both of us have signed such an
agreement, you are responsible for
your own legal affairs.
I cannot guarantee that information
sent by email or left in a voice mail
will remain confidential. As a result,
do not provide sensitive information
in an email or telephone message.
Instead, simply provide your contact
information and a brief, generic
description of the services you seek,
and I will get back to you as soon as
possible.
Web site have been prepared and
published for informational purposes
only and do not constitute legal
advice. The materials are presented
without any representation or
warranty whatsoever, including as to
accuracy or completeness, and may
not reflect the most current legal
developments, verdicts, or
settlements. As a result, do not act
or rely on these materials without
seeking professional legal advice.
Any links to other Web sites are
provided merely as a convenience.
The linked Web sites are operated
and maintained by third-parties;
therefore, I do not take responsibility
for the content, accuracy, or
timeliness of those sites, nor do I
endorse those sites or any products
they may advertise or make
available. This Web site does not
incorporate materials that appear on
those sites by reference.
A lawyer-client relationship is not
established merely by accessing this
Web site or contacting me by
telephone or email. If you wish to
hire me after an initial consultation, I
will provide a written agreement
describing the services that I will
provide and the fee I will charge.
Until both of us have signed such an
agreement, you are responsible for
your own legal affairs.
I cannot guarantee that information
sent by email or left in a voice mail
will remain confidential. As a result,
do not provide sensitive information
in an email or telephone message.
Instead, simply provide your contact
information and a brief, generic
description of the services you seek,
and I will get back to you as soon as
possible.
Step 2: The Record
In order to argue the merits on appeal, you have to let the appellate
court know what happened in the trial court. This is where the record
comes in.
First, you should make sure that the proceedings in the trial court are
being properly recorded. Then, you need to get the record of those
proceedings into the hands of the appellate court so that it can
determine whether or not the trial court acted properly. This part of the
process is not difficult, and yet it seems to cause the most procedural
stumbles.
A. Agreed Statement/No Record Needed
Initially, if you and your opponent want to get right down to business
without haggling over facts and you both agree on what happened, you
can file an agreed statement “showing how the issues presented by the
appeal arose and were decided in the trial court and setting forth only
so many of the facts averred and proved or sought to be proved as are
essential to a decision of the issues presented.” This statement is then
reviewed by the trial court, which can make additions before certifying it
to the appellate court. App.R. 9(D). These agreed statements are
exceedingly rare, for obvious reasons.
B. The Record in Two Parts
Getting back to the usual procedure, where the parties disagree... The
record can be viewed as two distinct halves, both of which must be
accounted for. First, there are the trial court’s docket and journal
entries, along with all the papers (motions, affidavits, exhibits, etc.) that
were filed in the trial court. Second is the transcript of what was said in
court (and sometimes in chambers) by the judge, attorneys, and
witnesses during the various hearings.
1. Docket, Journal Entries, and Papers
The first half of the record—the docket, journal entries, and papers—is
easy to account for because it should occur automatically once you file
the notice of appeal. Under App.R. 10(B), the trial court clerk has the
duty to prepare these documents and forward them to the appellate
court in a timely fashion. Generally, the only thing you need to do is
keep an eye on the calendar to make sure it gets done.
2. Transcripts
The second half of the record—the transcript of the proceedings—is
more difficult because it is up to you to take care of it. First, you must
decide how much of the proceedings to have transcribed: You can
order a full transcript, a partial transcript, or no transcript at all. And if no
report was made or the transcript is unavailable, you may prepare your
own statement of the evidence or proceedings from the best available
means (including your own memory). App.R. 9(C).
Determining how much to order is a balancing act. Transcripts are not
cheap and you will have to pay for them yourself, so it is probably best to
order as little as possible. You may not need anything transcribed if you
are appealing an issue that was decided purely on motions with no in-
court testimony, or you may only need to have one short hearing
transcribed if you are challenging a narrow ruling. But beware, you have
the burden of proving error on appeal, so you better be sure to order
enough to support your arguments.
If you decide to order a transcript, you must give the court reporter a
written order for the transcript and file a copy of the order with the court.
App.R. 9(B). The request doesn’t need to be complicated or even take
the form of a court motion.
[sample written order to court reporter]
Technically, the transcript order must be given to the court reporter at
the time you file the notice of appeal. This means that you should
decide how much of the transcript to order before you file the notice of
appeal. However, if time is short, just file the notice of appeal and figure
out the transcript later. You can’t afford to miss the jurisdictional
deadline for filing the notice of appeal because you were dithering over
whether to order a transcript, and it is easy to supplement the record
with the transcript after the fact.
Whenever you include something less than a full transcript, you are
required to file a statement describing what you are doing, either
ordering parts of the transcript, no transcript, an App.R. 9(C) statement
of the evidence (when no transcript available), or an App.R. 9(D) agreed
statement, along with a statement of the assignments of error you intend
to argue. You must serve these statements on the other party so that
they will know whether they need to order more of the transcript or
challenge your App.R. 9(C) statement of the evidence.
The Appellate Rules do not appear to require you to notify the other
party if you are requesting the full transcript. I suppose this is because
the other party doesn't need to do anything under those circumstances.
Nevertheless, it would be a good practice in every appeal to file and
serve on the other party a complete description of what is to be included
in the record. The statement of the record could take the form of a
checklist, where you merely check a box for “full transcript,” “no
transcript,” “App.R. 9(D) agreed statement,” etc., and insert any
required description.
[sample statement of record]
In order to argue the merits on appeal, you have to let the appellate
court know what happened in the trial court. This is where the record
comes in.
First, you should make sure that the proceedings in the trial court are
being properly recorded. Then, you need to get the record of those
proceedings into the hands of the appellate court so that it can
determine whether or not the trial court acted properly. This part of the
process is not difficult, and yet it seems to cause the most procedural
stumbles.
A. Agreed Statement/No Record Needed
Initially, if you and your opponent want to get right down to business
without haggling over facts and you both agree on what happened, you
can file an agreed statement “showing how the issues presented by the
appeal arose and were decided in the trial court and setting forth only
so many of the facts averred and proved or sought to be proved as are
essential to a decision of the issues presented.” This statement is then
reviewed by the trial court, which can make additions before certifying it
to the appellate court. App.R. 9(D). These agreed statements are
exceedingly rare, for obvious reasons.
B. The Record in Two Parts
Getting back to the usual procedure, where the parties disagree... The
record can be viewed as two distinct halves, both of which must be
accounted for. First, there are the trial court’s docket and journal
entries, along with all the papers (motions, affidavits, exhibits, etc.) that
were filed in the trial court. Second is the transcript of what was said in
court (and sometimes in chambers) by the judge, attorneys, and
witnesses during the various hearings.
1. Docket, Journal Entries, and Papers
The first half of the record—the docket, journal entries, and papers—is
easy to account for because it should occur automatically once you file
the notice of appeal. Under App.R. 10(B), the trial court clerk has the
duty to prepare these documents and forward them to the appellate
court in a timely fashion. Generally, the only thing you need to do is
keep an eye on the calendar to make sure it gets done.
2. Transcripts
The second half of the record—the transcript of the proceedings—is
more difficult because it is up to you to take care of it. First, you must
decide how much of the proceedings to have transcribed: You can
order a full transcript, a partial transcript, or no transcript at all. And if no
report was made or the transcript is unavailable, you may prepare your
own statement of the evidence or proceedings from the best available
means (including your own memory). App.R. 9(C).
Determining how much to order is a balancing act. Transcripts are not
cheap and you will have to pay for them yourself, so it is probably best to
order as little as possible. You may not need anything transcribed if you
are appealing an issue that was decided purely on motions with no in-
court testimony, or you may only need to have one short hearing
transcribed if you are challenging a narrow ruling. But beware, you have
the burden of proving error on appeal, so you better be sure to order
enough to support your arguments.
If you decide to order a transcript, you must give the court reporter a
written order for the transcript and file a copy of the order with the court.
App.R. 9(B). The request doesn’t need to be complicated or even take
the form of a court motion.
[sample written order to court reporter]
Technically, the transcript order must be given to the court reporter at
the time you file the notice of appeal. This means that you should
decide how much of the transcript to order before you file the notice of
appeal. However, if time is short, just file the notice of appeal and figure
out the transcript later. You can’t afford to miss the jurisdictional
deadline for filing the notice of appeal because you were dithering over
whether to order a transcript, and it is easy to supplement the record
with the transcript after the fact.
Whenever you include something less than a full transcript, you are
required to file a statement describing what you are doing, either
ordering parts of the transcript, no transcript, an App.R. 9(C) statement
of the evidence (when no transcript available), or an App.R. 9(D) agreed
statement, along with a statement of the assignments of error you intend
to argue. You must serve these statements on the other party so that
they will know whether they need to order more of the transcript or
challenge your App.R. 9(C) statement of the evidence.
The Appellate Rules do not appear to require you to notify the other
party if you are requesting the full transcript. I suppose this is because
the other party doesn't need to do anything under those circumstances.
Nevertheless, it would be a good practice in every appeal to file and
serve on the other party a complete description of what is to be included
in the record. The statement of the record could take the form of a
checklist, where you merely check a box for “full transcript,” “no
transcript,” “App.R. 9(D) agreed statement,” etc., and insert any
required description.
[sample statement of record]
| William T. Cramer Attorney at Law |
470 Olde Worthington Road Suite 200 Westerville, Ohio 43082 ph 614-353-5593 fax 614-453-8283 wtcesq@cramerlawoffice.com |