Rule 10 The Record on Appeal

(a) Composition. The record on appeal consists of:

(1) the documents, data, and exhibits filed electronically or nonelectronically in the superior court;

(2) any transcript of the proceedings, which may be filed either electronically or nonelectronically, and the recording of the proceedings, if authorized under Rule 10(b)(8); and

(3) the record of actions from the superior court.

(b) Transcript.

(1) Appellant’s Responsibility. The appellant must either file and serve a statement that no transcript is necessary or order from a Court-approved transcription service a transcript of all parts of the proceedings relevant to the issues raised by the appellant and necessary to demonstrate how the issues were preserved. Except as provided in paragraphs (b)(3) and (4), the statement or order must be filed within 14 days of filing the notice of appeal. By failing to order a transcript, the appellant waives the right to raise any issue for which a transcript is necessary for informed appellate review.

(2) Procedure. The ordering party must submit a request for transcripts directly to a Court-approved transcription service either through the service’s website or using a form supplied by the courts. The order confirmation must be served on all parties. When an appeal is from an administrative agency, any transcript must be obtained in accordance with the agency’s procedures. Upon completion of the transcript, the transcriber must certify under oath that the transcription is accurate.

(3) Life Imprisonment Cases. In any criminal case resulting in a sentence of life imprisonment where the defendant has not waived appeal or entered a plea of guilty or nolo contendere to the underlying charge, the superior court clerk must, within 14 days of the entry of judgment, order from a Court-approved transcription service a complete transcript of the proceedings.

(4) Child Abuse or Neglect and Bail Proceedings. In any proceeding under Chapters 51 and 53 of Title 33 or Chapter 229 of Title 13 of the Vermont Statutes Annotated, the appellant must order the transcript at the same time the notice of appeal is filed, according to the procedure set forth in paragraph (b)(2).

(5) Appellee’s Responsibility. If the appellee deems a transcript of other parts of the proceedings necessary, the appellee must, within 14 days after service of the appellant’s transcript order and docketing statement, file and serve a designation of additional parts to be included. If, within 14 days after service of that designation, the appellant has not ordered those parts, the appellee may, within the following 14 days, either order the parts at the appellee’s own expense or request a prehearing conference.

(6) Additional Transcripts.

(A) Before the appellant’s brief is due, an appellant may order additional transcripts for inclusion in the record on appeal only by written consent of the adverse party or by leave of the Supreme Court, which will be freely given when justice so requires. After that time, an appellant may order additional transcripts for inclusion in the record on appeal only by Supreme Court order for good cause shown.

(B) After the record has been completed but before filing a brief, an appellee may order additional transcripts for inclusion in the record on appeal only by written consent of the adverse party or by leave of the Supreme Court, which will be freely given when justice so requires or when the transcripts to be ordered pertain to issues raised in the appellant’s brief but not in the appellant’s docketing statement. After the date that the appellee’s brief is initially due, an appellee may order additional transcripts for inclusion in the record on appeal only by Supreme Court order for good cause shown.

(7) Payment. Before the transcription begins, the ordering party must pay the transcription service a deposit, not to exceed the amount allowed by the Court Administrator’s contract with the transcription service. Any balance is due upon completion of the transcripts.

(8) Digital Audio Recording in Place of Transcript. In cases where the superior court proceedings were recorded by a digital audio recording device and the total elapsed time for all relevant proceedings does not exceed four hours:

(A) Appellants or cross-appellants who have received permission to waive filing fees and are not entitled to transcripts at state expense under Rule 24(c) may request that the audio recording be accepted as part of the official record of the case in place of a transcript.

(B) The request must be made by motion in the Supreme Court and filed at the same time that the party’s docketing statement is due. A request filed after that date will be considered only if good cause is shown.

(C) The Supreme Court may grant the motion where the requesting party raises a nonfrivolous claim of error and a record of the proceedings is necessary to resolve that claim of error.

(D) If the Supreme Court grants the motion, the appellant or cross-appellant must obtain two copies of the audio recording from either the superior court clerk or a Court-approved transcription service, which will send the copies to the appellant or cross-appellant and the Supreme Court.

(9) Transcripts Without Payment. In exceptional circumstances, the Supreme Court may authorize completion of an electronic transcript by an official transcription service without payment by the party. The number of pages available for transcription under this paragraph is extremely limited.

(A) Only appellants or cross-appellants who have received permission to waive filing fees, whose proceedings do not qualify under paragraph (b)(8) of this rule and who are not eligible for state payment of transcripts are qualified to seek relief under this rule.

(B) A qualified party must file a motion with the Court at the same time the party’s docketing statement is due. A request filed after that date will be considered only if good cause is shown.

(C) The motion must set forth the following: the dates of the hearings requested; the total number of hours to be transcribed; and the exact issues that require a transcript. The movant must attach a copy of any final written order in the case.

(D) If the motion is granted, the docket clerk will order the transcript and the transcription service will provide an electronic copy to the movant, the appellee, and the Court. Upon request and demonstration of need, the Court will make a paper copy available to the requesting party.

(c) When the Transcript Is Unavailable. If a transcript is unavailable, the appellant may prepare a statement of the evidence from the best available means, including the appellant’s recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the superior court for settlement and approval. The superior court clerk will enter the approved statement on the docket and transmit a copy to the Supreme Court clerk.

(d) Agreed Statement as the Record of Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the superior court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to a decision of the issues presented. If the statement is truthful, it—together with any additions that the presiding judge may consider necessary to a full presentation of the issues on appeal—will be approved by the court and transmitted to the Supreme Court as the record on appeal within the time provided by Rule 11.

(e) Correction or Modification of the Record. If any difference arises about whether the record truly discloses what occurred in the superior court, the difference must be submitted to and settled by that court and the record conformed accordingly. Except as provided in Rule 10(b), if anything material to either party is omitted by error or accident from, or misstated in, the record, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded on stipulation of the parties, by the superior court before or after the record has been forwarded, or by the Supreme Court. All other questions about the form and content of the record must be presented to the Supreme Court.