For the Record …


I mentioned that the Maine SJC came out with several decisions of appellate interest last Tuesday,  and blogged about one yesterday.  Here's another one, addressing the necessity of a record, Springer v. Springer, 2009 ME 118 (Saufley, C.J.):

This was a divorce case, in which one party was seeking a modification of child support in District Court.  While she had asked that the hearing be recorded, it apparently wasn't.  The District Court made findings and altered the judgment and there was both an appeal and cross-appeal.  Because there was an inadequate record to hear the appeal, the Court affirmed the judgment, assuming that the District Court 's findings were justified by competent evidence.

The SJC noted that M.R.App.P. 5(d) and (f) allows for substitution of an agreed statement of the evidence in lieu of a complete record.  While the Court recognized the difficulties surrounding the drill in trying to get everyone to put the pieces together after the fact, nevertheless, it is the appellant's burden to provide an adequate record.  When a party is challenging an evidentiary finding, a transcript is required (Rule 5(b)(2)(A)), so if you don't have one, you must use the means set forth in Rule 5(d) or (f) to give the SJC an adequate basis to hear the appeal.  In sum:

– if the proceeding was recorded, then the appellant must make sure a transcript is in the record or provide a Rule 5(f) record on agreed statement and

– if the proceeding wasn't recorded, the appellant must provide the Rule 5(f) statement or a statement pursuant to Rule 5(d).

Chief Justice Saufley noted that simply providing the documents submitted below would not suffice:  "When a court has heard testimony we cannot base a review of the court's factual findings solely on an appendix of documents and exhibits."  — "When factual findings are challenged, an adequate record will always require a transcript or the acceptable substitute."

This decision provides a nice segue into an alert of an appellate practice session I'll be moderating at the Maine State Bar Association's winter bar meeting (January 21 in South Portland).  This year's meeting is having a series of 90 minute "back to basics" break out sessions, and one is going to be about appeals.  I'm calling it "Thinking Inside the Box" for reasons illuminated by this decision – too often people forget that an appeal in some ways is like entering a parallel universe, in which reality isn't the world around you, but whatever is in the box called the record.  This is one reason why trial lawyers should get appellate practitioners involved at the trial or administrative stage – to make sure that what's in the box looks as strong as it can, should the case have to go up the food chain.

The session is going to consist of judges and practitioners discussing the ten biggest mistakes people make on appeal.  The goal is to be informal, have a dialogue and we've got good panelist – Judge Lipez, Justices Alexander and Levy, AAG Donald Macomber and Melissa Hewey from Drummond Woodsum.  So mark your calendars.  Needless to say, if you have any input or insights as to what should be discussed, just click on comments on the right margin here and I'll follow up.