CREATING A RECORD

May 30, 2012 § Leave a comment

So you finally have that elusive chancellor hemmed up in the farthest backwater county of the district. Opposing counsel is finally here at the same time, and you have the file with you to present the motion you’ve been desparately trying to get the court to hear. Even your two witnesses and the other side’s three are present. Everything is in place …

… except the court reporter.

The judge smiles benignly and croons in a fatherly fashion “Well, sir, had I known there were to be any contested matters on the docket today, I would have insisted that my court reporter be here. Instead, I let her go to a doctor’s appointment. Now, if you’d like to proceed without a record I will accommodate you.”

What to do, what to do? Do you press forward without a record, or do you wait for a reporter? What do you do when you absolutely, positively have to get the matter heard right now, but you might have to appeal?

MRAP 10(c) has you covered. It says:

If no stenographic report or transcript of all or part of the evidence or proceedings is available, the appellant may prepare a statement of the evidence or proceedings from the best available means, including recollection. The statement should convey a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of appeal. The statement, certified by the appellant or his counsel as an accurate account of the proceedings, shall be filed with the clerk of the trial court within 60 days after filing the notice of appeal. Upon filing the statement, the appellant shall simultaneously serve notice of the filing on the appellee, accompanied by a short and plain declaration of the issues the appellant intends to present on appeal. If the appellee objects to the tatement as filed, the appellee shall file objections with the clerk of the trial court within 14 days after service of the notice of the filing of the statement. Any differences regarding the statement shall be settled as set forth in subdivision (e) of this Rule.

Subsection (e) leaves it up to the trial judge to settle the matter.

That’s what happened in the COA case of Berryman v. Lannom, decided May 22, 2012. The parties each submitted their own best recollection of what had transpired in court the day of a hearing for distribution of interpled wrongful death proceeds that was tried without a record. The COA decision does not reflect why the parties presented the matter without making a record. The two versions conflicted, and the attorneys could not agree on how to harmonize them, so they submitted them to the chancellor, who ruled that the Lannom’s rendition was an accurate statement of what transpired. The case was decided on different issues, but the MRAP point is in the recitation of the facts.

MRAP 10(c) and (e) are a satisfactory escape hatch if and when you find yourself caught in a bind by uncontrollable circumstances. But I would not recommend that you leave it up to opposing counsel and the possibly foggy and mistakeable memory of a judge (some of us are borderline senile, after all) to decide what facts and findings will form the basis for your appeal. Better by far to have a verbatim transcript. And there are ways to correct and amend a verbatim record, too, but that’s fodder for another cannon.

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