The record is one of the most important—and most overlooked—portions of appellate advocacy. As lawyers, we are generally aware that appellate courts are constrained by the manuscript record of the trial court. We know that lawyers must object and obtain a ruling on important issues (and proffer what was excluded, if needed!). But it is also critical to make sure that circuit courts are transferring the entire record to the appellate court.

In many of the most recent appeals I’ve worked on, we have found portions omitted from the electronic record. Circuit court clerks generally do a wonderful job, but they do make mistakes—particularly as we’ve transitioned to this digital age and portions are not always kept by judges, clerks, etc. in the correct place.

When you receive the alert from the Court of Appeals that the record has been received, please do a thorough review first to make sure you don’t see any omissions. And when everything is fine, breathe a sigh of relief and move on. But what happens when there is a problem and something is missing?

Sometimes a circuit court clerk’s office will realize that a portion was not properly sent and they will coordinate with the Court of Appeals and submit an addendum to the record on their own. When this happens, the Court of Appeals will notify you that this record has been received and you will receive a copy. Still, though, the record must be accepted by the appellate courts and you do not want to rely on a circuit court clerk being in a good mood when you call them in a panic! You also can’t simply cite to the missing document in your appeal brief as if it had been included—this is prohibited by the rules and will not go over well. Learn from the lesson of counsel in Eckerd v. Commonwealth, who was torn apart by the appellate courts for not correcting this when the missing record was central to the appellate issue.

Instead, consider filing a petition for writ of certiorari in the appellate courts. In the CAV (Court of Appeals), use Va. Code § 8.01-675.4, and in the SCV (Supreme Court of Virginia), cite Code § 8.01-673. You may do this in both civil and criminal cases. As always in appellate courts, obtain your opposing counsel’s position prior to filing your motion. And if you are the opposing counsel, be reasonable. It goes without saying that you will not gain points in the appellate courts by being an obstructionist.

Have questions or need help with this? Give me a call.