The Record on Appeal and How Gaps Are Filled
An appellate court decides on paper, and the paper is fixed by rule rather than chosen by the parties. What was never made part of the record below cannot be added later, and what is missing from it is presumed to favor the judgment.
The rule in short
Federal Rule of Appellate Procedure 10(a) defines the record on appeal as the original papers and exhibits filed in the district court, the transcript of proceedings, and a certified copy of the docket entries. Rule 10(b) requires the appellant to order a transcript or certify that none will be ordered, and to serve a statement of issues where only part is ordered. Rules 10(c) and 10(d) supply a prepared statement or an agreed statement where no transcript is available.
An appeal is decided on a record, and the record is a defined thing rather than a collection of whatever seems useful. Federal Rule of Appellate Procedure 10(a) states that the record consists of the original papers and exhibits filed in the district court, the transcript of proceedings if any, and a certified copy of the docket entries prepared by the district clerk.
The three components
The original papers are the filings: complaints, motions, oppositions, orders, verdicts, judgments. Exhibits are the items received in evidence and, in most courts, those offered and refused. The transcript is the reporter's record of proceedings that were taken down. The docket entries supply the sequence and the dates on which everything happened.
Two things are not part of the record. Material a party gathered after judgment is not, however relevant it might seem. And an argument made only in a brief on appeal is not evidence of anything, which is why Rule 28 requires assertions of fact to carry citations to the pages of the record where they appear.
The transcript and the partial transcript trap
Rule 10(b) places the ordering duty on the appellant. Within the period the rule allows after filing the notice of appeal, the appellant must order from the reporter a transcript of the parts of the proceedings not already on file, or file a certificate stating that no transcript will be ordered. The order must be accompanied by satisfactory arrangements for payment.
Where the appellant orders less than the entire transcript, the rule imposes a further duty: to file and serve a statement of the issues the appellant intends to present. That statement then lets the appellee decide whether more is needed, and the appellee may designate additional parts. If the appellant refuses to order them, the appellee may order them directly or move for an order requiring the appellant to do so.
Any issue resting on a finding or conclusion as unsupported by the evidence, or as contrary to the evidence, requires the appellant to include in the record a transcript of all evidence relevant to that finding. Failing to do so is not a technical defect: it removes the court's ability to evaluate the argument at all.
Where the record does not contain the proceedings an argument depends on, courts of appeals presume that the missing material supports what the district court did. The presumption is not a punishment; it follows from the appellant's burden to show error. It defeats otherwise strong arguments regularly, particularly claims about improper argument, evidentiary rulings made at sidebar, and the adequacy of an oral instruction, none of which can be assessed from the written docket.
Substitutes when there is nothing to transcribe
Proceedings are sometimes not recorded, or a recording is lost. Rule 10(c) allows the appellant to prepare a statement of the evidence or proceedings from the best available means, including the appellant's own recollection. The statement is served on the appellee, who may object or propose amendments within the time the rule allows, and the whole is then submitted to the district court for settlement and approval.
Rule 10(d) offers a different route. The parties may prepare, sign and submit to the district court a statement of the case showing how the issues arose and were decided, and setting out only the facts averred and proved or sought to be proved that are essential to the court's resolution of the issues. Once approved, that agreed statement becomes the record on appeal.
| Situation | Rule | What is done | Who approves it |
|---|---|---|---|
| Full transcript needed | 10(b)(1) | Appellant orders and arranges payment | The reporter files it |
| Partial transcript ordered | 10(b)(3) | Statement of issues served; appellee may designate more | District court on motion if disputed |
| No transcript available | 10(c) | Appellant prepares a statement of the evidence | District court, after objections |
| Parties agree on the facts | 10(d) | Agreed statement of the case is submitted | District court |
| Record incomplete or wrong | 10(e) | Stipulation, correction or a directive to correct | District court, or the court of appeals |
| Materials for the judges | 30 | Appendix of the relevant portions is filed | Governed by circuit rules |
Fixing errors and getting the record to the court
Rule 10(e) covers two distinct problems. Where the parties disagree about whether the record truly discloses what occurred, the difference is submitted to and settled by the district court, and the record is conformed accordingly. Where anything material is omitted or misstated by error or accident, the omission may be corrected by stipulation, by the district court, or on direction of the court of appeals.
Rule 11 governs transmission. The appellant must do whatever is necessary to enable the clerk to assemble and forward the record, the reporter must file the transcript, and the district clerk numbers and transmits the documents. Circuits vary in how much of the physical record they call up, and many operate electronically with an appendix standing in for the record before the judges.
The appendix and how it is used
Rule 30 requires an appendix containing the relevant docket entries, the pleadings or other filings necessary to understand the issues, the judgment or order appealed from, and other parts of the record to which the parties wish to direct attention. Exhibits may be reproduced separately. A deferred appendix is permitted, allowing preparation after the briefs are written.
The appendix is where an appellate argument becomes concrete, and its contents should be chosen against the argument being made. Prejudice under the harmless error inquiry is shown from documents, and a court cannot weigh what it cannot see. The timetable begins with the notice of appeal and the period that follows it, and the finished product is presented in the form required by the mandatory brief sections and length limits.
Points to carry away
- The record consists of the district court filings, the exhibits, the transcript and the docket.
- An appellant must order the transcript or certify that none is being ordered.
- Ordering only part of a transcript triggers a duty to serve a statement of the issues.
- An appellee may designate additional parts of the transcript for inclusion.
- Where no transcript exists, the appellant may prepare a statement from the best available means.
- Rule 10(e) allows correction of omissions and disputes about what actually occurred.
Questions readers ask
What happens if the appellant does not order the transcript?
The appeal proceeds on whatever record exists, and the consequences fall on the appellant. Courts of appeals presume that missing portions of the record support the judgment, so an argument that depends on what a witness said cannot be evaluated and will be rejected. Where the omission is total, some circuits dismiss the appeal for failure to prosecute. Ordering the transcript is also a scheduling matter, since the briefing calendar generally runs from the reporter's filing of the completed transcript.
Can evidence that was never before the district court be added on appeal?
As a rule, no. Rule 10(e) permits correction of the record so that it accurately reflects what happened in the district court, not supplementation with material that was never presented there. Courts have refused requests to add declarations, later-obtained documents and post-judgment developments. Narrow exceptions exist for matters subject to judicial notice, for facts bearing on jurisdiction or mootness, and for the rare case where the interests of justice require it, but the ordinary answer is that the record is closed.
Who resolves a dispute about what was said at a hearing?
The district court. Rule 10(e) provides that if anything material is omitted or misstated by error or accident, the parties may correct it by stipulation, or the district court may do so before or after the record is forwarded, or the court of appeals may direct that the omission or misstatement be corrected. Where the parties disagree about what actually occurred, the district judge who was present settles it, and the appellate court accepts that resolution as part of the record.
Sources
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 10, The Record on AppealThe composition of the record, transcript ordering, substitutes and corrections.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 11, Forwarding the RecordThe duties of the reporter and the district clerk in transmitting the record.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 30, Appendix to the BriefsWhat the appendix must contain and the deferred appendix alternative.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 12, Docketing the AppealDocketing and the filing of the representation statement after the notice of appeal.
- Cornell Legal Information Institute — Federal Rule of Appellate Procedure 28, BriefsThe requirement that assertions of fact carry citations to the record.
- United States Courts — AppealsThe court system's statement that an appeal is decided on the existing record.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Appellate Practice
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Brief Requirements and the Argument Section
Federal Rule of Appellate Procedure 28(a) lists what an appellant's brief must contain, including a corporate disclosure statement, tables, a jurisdictional statement, a statement of the issues, a statement of the case with record references, a summary of the argument, the argument itself with the standard of review for each issue, a conclusion, and the required certificates. Rule 32 governs form, typeface and the word limits, and requires a certificate of compliance.
The Notice of Appeal and the Deadline That Cannot Be Extended
Federal Rule of Appellate Procedure 3 requires an appeal as of right to be taken by filing a notice of appeal with the district clerk, specifying the party appealing, designating the judgment or order appealed from, and naming the court to which the appeal is taken. Rule 4 fixes the time: thirty days after entry in an ordinary civil case, sixty days where the United States or a federal officer or agency is a party, and fourteen days for a criminal defendant.