IOP § III(G): Record on Appeal

The record on appeal is governed by FRAP 10, 11, and 30; and 8th Cir. R. 10A, 11A and 30A. There is a good deal of confusion among counsel as to the meaning of the phrase, “record on appeal.” FRAP 10(a) defines the record on appeal, also called the original record, as “(1) the original papers and exhibits filed in the district court; (2) the transcript of proceedings, if any; and (3) a certified copy of the docket entries prepared by the district clerk.” This definition of the term “record on appeal” establishes the scope of materials the court may consider in reaching a decision. FRAP 30, however, requires that the parties file a concise designated record, including only those portions of the record necessary to consider the issues on appeal. A description of how the designated record may be prepared is provided in FRAP 30 and 8th Cir. R. 30A. If the designated record is insufficient, the court may rely on the original record. In conformity with FRAP 11(e), 8th Cir. R. 11A provides that a certified copy of the docket entries shall be transmitted in place of the entire record. This permits the original record to remain in the district court while the parties are preparing their briefs and designated records.

1. Criminal cases

No appendix or clerk’s record is required in direct criminal appeals. See Eighth Circuit Plan to Expedite Criminal Appeals, Section III(A)(1)(b). The electronic record maintained by the district court will serve as the record on appeal, together with the transcripts, exhibits, and other paper documents in the case. Orders appealed from, such as suppression orders, should also be included in the Addendum to the Appellant’s Brief. See 8th Cir. R. 28A(g).

2. Civil Cases

a. Pro Se Appeals

The court will review pro se appeals on the original file of the district court. In practice, the court and its staff use PACER to access the district court’s original file. As a result, counsel participating in pro se appeals do not need to prepare an appendix; counsel may include an addendum with the brief. Either side may order a transcript if the transcript is required for disposition of the issues raised on appeal. If a pro se appellant is proceeding in forma pauperis in this court, and wishes to have a transcript prepared, he or she must file a motion for preparation of a transcript at government expense. An administrative panel will then determine whether a transcript should be prepared. See III, H.3., supra. If the court orders the preparation of the transcript, the court reporter will send the bill for the transcription costs to the clerk’s office for processing of the costs.

b. Civil Appeals Where Both Sides Are Represented by Counsel

The following guidelines should be observed in preparing the record in civil cases:

(1) Order the transcript or necessary portions therefrom and make the necessary financial arrangements with the court reporter immediately after filing the notice of appeal.

(2) Notify the district court clerk’s office of all trial and any other necessary exhibits to be forwarded to the court of appeals. Exhibits are not automatically transferred to the court of appeals. See 8th Cir. R. 10A.

(3) Decide whether a joint appendix or separate appendices will be prepared. See 8th Cir. R. 30A(b).

(4) Include only material relevant to the issues raised on appeal. See FRAP 30.

(5) The entire district court file or administrative agency file is available to the court and is available electronically if the panel needs additional material.

Counsel are urged to follow these guidelines and to call the clerk’s office if questions regarding record composition arise. The record should be concise.

c. The Appendix and the Addendum

Appellants represented by counsel must file three paper copies of an appendix. The appendix provides each member of the panel with a copy of record material needed for full consideration of the issues. The addendum is submitted electronically for filing with the brief and duplicates carefully selected portions of the appendix in order to provide the court with a readily accessible condensation of the relevant record. For example, if the appendix includes jury instructions, only the instruction involved in the appeal should be set forth in the addendum. If the appendix contains a long contract, only the paragraph directly related to the issue on appeal should be included in the addendum. The addendum may not exceed fifteen pages, excluding the district court or agency opinion and the magistrate judge’s report and recommendation. Once the addendum has been submitted and is filed by the clerk’s office, paper copies of the addendum should attached to the back of the paper briefs, although separately bound paper addenda are permitted. Counsel can find additional information about the electronic version of the addendum in 8th Cir. R. 28A(g)(5).

d. Exhibits

Pursuant to 8th Cir. R. 10A, appellant must ensure that all trial exhibits are forwarded to the clerk’s office. If the exhibits are retained by the district court, appellant should request that the district court submit them to the clerk of the court of appeals. If appellant has retained the exhibits, appellant should submit one copy of a separate appendix with all trial exhibits. Exceptions to this rule in the case of unusually bulky or large exhibits should be discussed with the clerk. In criminal cases, evidence such as firearms and drugs should be filed only with leave of the court of appeals.