“Expanded Record Excerpts” The three words mean absolutely nothing to nonlawyers. But those three words ignited a firestorm at the Eleventh Circuit Appellate Practice Institute’s meeting last week in Miami. I’ve never seen anything like it before. Appellate seminars are supposed to be boring. After all, lawyers who do appellate work are primarily nerds who don’t get out often because they are permanently attached to their computers. But those three words led to cursing and screaming by panelists and lawyers in attendance at the seminar. “It’s unconstitutional.” “There’s got to be a due process violation for this requirement.” “It has bankrupted my law practice.”
The panel of speakers, consisting of an appellate lawyer in private practice, the appellate chief of the U.S. Attorney’s office in the Southern District of Alabama and the Federal Public Defender’s Office in the Northern District of Florida, spoke on “Eleventh Circuit Technicalities: How to Comply with the New Expanded Record Excerpts, Electronic Filing and Other Requirements.” They included in their handout copies of the numerous letters that had been written to the Clerk of the Eleventh Circuit complaining about Expanded Record Excerpts. One letter spoke of spending approximately $6,000 to file the Expanded Record Excerpts in a case.
While there were Eleventh Circuit judges in attendance, there were none present at the time of these outbursts. There was one person who was present who received the brunt of all of this pent-up anger and frustration and that was John Ley, the Clerk of the Court for the Eleventh Circuit. He was scheduled to speak later in the day on “What the Clerk’s Office Wants You to Know.” I really felt sorry for him. After all, he was just the messenger and Expanded Record Excerpts was the Court’s message. He said it was his job to get the judges on the Court whatever they needed to decide a particular case. What he didn’t say was that some of the judges on the Court are not computer savvy enough to review an electronic record so they still need the record in hard copy format.
It is interesting to me that this has just become an issue in 2013. I spoke at a University of Alabama appellate seminar in 2009 on Expanded Record Excerpts. My topic was “Recent Amendments and Other Important Stuff You Need to Know.” Here is a summary of what I said:
Another important thing that you need to know in your appellate practice relates to ELECTRONIC RECORDS IN THE ELEVENTH CIRCUIT.
I have to admit that it has been a while since I had handled an Eleventh Circuit appeal. It was not that long after I had filed my notice of appeal when I received a notification from the district court clerk that the record was complete for purposes of appeal and available electronically.
I immediately thought GREAT … the entire record on appeal is available electronically. That is going to make things so much easier.
But then I wondered when did they amend the rules to provide for electronic records? It took me a while to figure out that they have not amended the rules.
On February 22, 2006, the Eleventh Circuit issued General Order 32 which implemented a pilot program with the Southern District of Alabama regarding electronic records on appeal. The Eleventh Circuit has extended that program indefinitely and has considered requests by other district courts to participate in the program. The Middle and Northern Districts of Alabama are now participating in the program.
General Order 35 is the most recent word on the electronic-records-on-appeal pilot program and sets forth the program’s requirements. There are different requirements, depending on whether you are the appellant or the appellee.
My two cents is that this program may ultimately be great for the Court but presents the lawyers with an additional burden. The additional burden is the requirement of filing Expanded Record Excerpts.
I have to admit that I have always had a problem with the Eleventh Circuit’s requirement for Record Excerpts. I suppose that if I were a better organized person, I might not have such a problem with Record Excerpts in general but I always seem to wait until the last minute to put my Record Excerpts together when at the same time I am trying to get my brief filed.
And then I have to have the Record Excerpts bound at the top, add tabs down the side and make five copies of the things to send to the Court, another copy to send to the other side and a copy for myself.
The appellant is required to file expanded record excerpts that contain, in addition to the documents already required by Eleventh Circuit Rule 30-1, other items. It is these “other items” where the word “expanded” comes from.
For example, in an appeal from the grant or denial of a summary judgment, the expanded record excerpts must contain a copy of the summary judgment motions and responses, affidavits and relevant portions of depositions and other documents relied on in the appellant’s brief to support its position on an issue raised on appeal. The key is the DOCUMENTS RELIED ON TO SUPPORT YOUR POSITION ON AN ISSUE.
The appellant also has other additional responsibilities when there is an electronic record. The appellant must include an additional “table” in his brief. The appellant’s brief must include a “Table of Record References in the Brief” listing each reference to the record excerpts in the brief.
This presented another problem for me in that I had a hard time getting my word processing software to recognize this new “table.” This Table is immediately following the Table of Citations in the brief.
The appellee also has responsibilities regarding expanded record excerpts when there is an electronic record. If the appellant’s record excerpts are deficient or if the appellee’s brief, to support its position on an issue, relies on parts of the record not included in the appellant’s expanded record excerpts, the appellee must file his own supplemental expanded record excerpts with his brief.
For example, in my case where I was appealing the grant of a summary judgment, I did not include any of the defendant’s evidentiary materials in my expanded record excerpts because those documents did not support any argument that I was making on appeal. This necessarily meant that the appellee’s supplemental expanded record excerpts were bigger than mine. His was four volumes and three inches each thick.
Also remember that the appellee’s supplemental expanded record excerpts must not duplicate any documents in the appellant’s expanded record excerpts. The appellee must also provide the Court with a Table of Record References in the Brief listing each reference to the Supplemental Expanded Record Excerpts in his brief.
I am thankful that the Clerk’s Office did not issue a deficiency notice on my Expanded Record Excerpts. However, the Appellee in my case wasn’t so lucky. He received a deficiency notice because he did not file any Supplemental Expanded Record Excerpts and his brief did not include the Table.
The ultimate result of these “Expanded” record excerpts is that in my little old case which was an appeal from the grant of summary judgment, my expanded record excerpts turned into a three volume, three inch each thick nightmare when under the old record excerpts it would have been a one volume less than one inch thick bad dream.
I suppose that I will become more comfortable with the Pilot Program through repetition. However, at this point I do not see any benefit, at least to the lawyers, of having an electronic record on appeal. Expanded record excerpts is simply adding a huge financial burden on the parties.
So I didn’t learn the three new bad words last week. I’ve known the three words for at least four years but I had never heard them used in vain like that before. Expanded Record Excerpts.