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Louisiana briefs: How I do my cover pages

Crawling through the record.

I spent most of my day today assessing the record in a newly lodged appeal. This record is bigger than most: 125 volumes. So it was tedious work, and not quite done when I went home for the weekend.

So what is this “assessing the record”? It’s quite simple. When you get the record (the first thing to do when the record is lodged in the court of appeal), you go through it page by page to make sure that nothing you need is missing. If the appellate-court clerk does not allow you to borrow the exhibits, you must go to the clerk’s office and go through the exhibits there, to make sure that the exhibits you need are there.

If the record is incomplete in a material way, immediately file a motion to supplement the record and to suspend the briefing deadlines. In my experience, the courts readily grant these motions. If you are in a generous mood, contact opposing counsel to inform them of the record’s incompleteness and to get their consent to the motion. If they have half a brain, they will allow you to inform the court that the motion is unopposed.

This advice is more important than anything I can tell you about writing your brief or delivering your oral argument. If it’s not in the record, then as far as the court of appeal is concerned, it doesn’t exist.

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Celia C. Elwlell, RP

Depending on the court rules, you might not be able to supplement or revise the record on appeal once it has left the jurisdiction of the trial court. In my state, we get 6 months after the date of the final judgment before the record (designated by the parties) is sent to the appellate court. Once the appellate court gets it, you've lost any opportunity to change the record. It is worth it to take all parties' designation of record to the trial court and double-check the record once it has been put together (I've never run across a clerk who was offended that we were double-checking). When working at the Supreme Court, I saw an instance where a deposition not used as evidence at trial was mistakenly added to the record before the appellate court, and the deposition was used by the Supremes in deciding its opinion.

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The post contains a very important suggestion If writing your brief is not in the record, then as far as the court of appeal is concerned, it doesn't exist.

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