For the Record

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The latest (Summer 2015) edition of the Council of Appellate Lawyers’ Appellate Issues addresses a hot and important topic in appellate law – the record.  Or, more accurately, discusses the current assault on the record as we have traditionally known it.  This is a topic upon which I have blogged before (sometimes responding to Judge Posner’s views on the subject, whom I believe takes a rather liberal view of the need to color within the lines of established rules).   

One article takes an interesting historical view, tracing when extrajudicial facts began to affect judicial decision-making, linking it to William James’ pragmatism philosophy, which led to the Brandeis brief and so on.  You could, of course, trace this phenomenon back to the very beginning of courts, because all judges are to some extent affected by their own experiences, but here we are talking about a conscious reliance on extra-record facts as deemed legally acceptable, as opposed to subconscious factors affecting decision-making.  If you like exploring the more philosophical aspects of the law, this is an excellent article to put into your reading queue.

Another article discusses FRE 201, judicial notice and the internet, recommending some concrete steps that appellate courts could take in response to the growing use of the internet in this area:  (1) adopting procedures for retaining cited internet sources (see, e.g., the 11th Circuits 36 IOP 10 (“When an opinion of the court includes a citation to materials available on a website, the writing judge will send a copy of the cited internet materials to the clerk for placement in the case file and in a separate file to be permanently maintained by the clerk for this purpose.  A footnote in the opinion will reference the availability of the internet materials in the case file.”)); (2) developing standards for taking judicial notice of internet materials and sticking to those standards; (3) being clear when the Court is using such facts; and (4) adopting procedures to allow parties to challenge those facts.  On this last point, Rule 201 protects the right of the parties to be heard on taking judicial notice at the district court, but while some appellate courts cite this rule as their authority to take judicial notice, there is nothing in the federal (or Maine) rules of appellate procedure protecting that right. 

Another article notes that Canon 2.09(C) of the ABA’s Model Code of Judicial Conduct provides that “a judge shall not independently investigate facts in a case.”  Comment 6 states:  “The prohibition against a judge investigating the facts in a matter extends to information available in all mediums, including electronic.”  Hmmm.

This article then cites examples of appellate courts taking judicial notice, including one from the First Circuit, Gent v. CUNA Mutual Insurance Society, 611 F.3d 79, 84 n.5 (1st Cir. 2010), taking notice of general facts about Lyme disease on a CDC website, saying they were “not subject to reasonable dispute,” and appeals involving other sources (Google Maps and government cites and reports, generally ok; Wikipedia, generally not ok, but some courts do).  On the need for a heads up that the appellate court is taking judicial notice, the article cites two relevant decisions:  (1) Kiniti-Wairimu v. Holder, 312 Fed. App’x 907, 2009 WL 430439 (9th Cir. 2009), where the Ninth Circuit ruled an immigration judge violated the due process rights of a Kenyan when it made an adverse credibility determination based on internet research of the Kenyan’s family circumstances; and (2) Pickett v. Sheridan Health Care Center, 664 F.3d 632, 648-49 (7th Cir. 2011), where the Court of Appeals held that taking judicial notice of the Consumer Price Index was acceptable when calculating attorney fees, but that the trial court has to give adequate notice that it’s doing so, in order to provide opportunity to contest the application.

Another article discusses legislative v. adjudicative fact finding, with lots of excellent examples.

Another article discusses a slightly different topic, correcting the record under Federal Rule of Appellate Procedure 10(e)(1).  On the Maine front, the relevant rule appellate rule is 5(e).  There is also a statute, 14 M.R.S. s. 1803.  While these Maine authorities seem to indicate that records can be corrected at the appellate level, I can tell you from experience, the Maine SJC does not welcome any such effort.  Instead, the SJC has said, “the appropriate remedy is a request to the trial court for reconsideration, given the existence of the new material.”  Geary v. Stanley, 2007 ME 133, ¶ 17, 931 A.2d 1064, 1067.  This approach, of course, doesn’t work in some situations, and doesn’t seem logical in others, but I believe reflects the mindset of the current Court, so that if there’s something in the record that is important enough that it needs correction in the appeal, you’d better do something at the lower level to get it fixed if you can.  

Finally, the final article returns to those subconscious facts affecting judges, and perhaps provides the most important lesson of all.  A law clerk waited in line at Starbucks when the person in front of her was brutally rude to the barista and everyone around him.  When Mr. Rude stood up later in court and began, “May it please the Court,” one judge responded, “I don’t know.  It sounds like you had an awful difficult time getting your coffee this morning.”

You don’t want to be that lawyer.