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Ray, Lawyer
Category: Legal
Satisfied Customers: 34808
Experience:  29 years in civil, probate, real estate, elder law
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In complying with federal appellate rule 10(b)(2), although

Resolved Question:

In complying with federal appellate rule 10(b)(2), although there were no hearings or trial and thus no transcript, you have previously informed me I should list the relevant documents in the docket list. The reason being the district court will not supply the appellate court with anything I don't list. That makes sense to me.

However, the last two items in the docket list are my appeal of the district courts oder of dismissal with prejudice, and the circuit courts aknowledgement of receipt of my appeal.
I don't think I will have to use these two documents, but don't know it there is some sort of "gottcha" situation that could arise if I don't list them.

Do you know of any procedural "gottcha" situation that could arise if I don't include in my relevant evidence list my appeal and the circuit courts aknowledgement of receipt of my appeal?
Don't beat your brains out over this if you don't know of anything off the top of your head.
I'm just trying to be extra cautious here.
Submitted: 2 years ago.
Category: Legal
Expert:  Ray replied 2 years ago.


RayAnswers :

Thanks for your question and good afternoon.You would want to include a copy of the actual order of dismissal with prejudice from the trial court here.If you had an acknowledgement letter of receipt of appeal from the circuit court you would want to include this in your document list so that the court will have it to consider the merits of your appeal.

RayAnswers :

Here is the rule you referenced..

RayAnswers :

Composition of the Record on Appeal. The following items constitute the record on appeal:

(1) the original papers and exhibits filed in the district court;

(2) the transcript of proceedings, if any; and

(3) a certified copy of the docket entries prepared by the district clerk.

(b) The Transcript of Proceedings.

(1) Appellant's Duty to Order. Within 14 days after filing the notice of appeal or entry of an order disposing of the last timely remaining motion of a type specified in Rule 4(a)(4)(A), whichever is later, the appellant must do either of the following:

(A) order from the reporter a transcript of such parts of the proceedings not already on file as the appellant considers necessary, subject to a local rule of the court of appeals and with the following qualifications:

(i) the order must be in writing;

(ii) if the cost of the transcript is to be paid by the United States under the Criminal Justice Act, the order must so state; and

(iii) the appellant must, within the same period, file a copy of the order with the district clerk; or

(B) file a certificate stating that no transcript will be ordered.

(2) Unsupported Finding or Conclusion. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant must include in the record a transcript of all evidence relevant to that finding or conclusion.

(3) Partial Transcript. Unless the entire transcript is ordered:

(A) the appellant must—within the 14 days provided in Rule 10(b)(1)—file a statement of the issues that the appellant intends to present on the appeal and must serve on the appellee a copy of both the order or certificate and the statement;

(B) if the appellee considers it necessary to have a transcript of other parts of the proceedings, the appellee must, within 14 days after the service of the order or certificate and the statement of the issues, file and serve on the appellant a designation of additional parts to be ordered; and

(C) unless within 14 days after service of that designation the appellant has ordered all such parts, and has so notified the appellee, the appellee may within the following 14 days either order the parts or move in the district court for an order requiring the appellant to do so.

(4) Payment. At the time of ordering, a party must make satisfactory arrangements with the reporter for paying the cost of the transcript.

(c) Statement of the Evidence When the Proceedings Were Not Recorded or When a Transcript Is Unavailable. If the transcript of a hearing or trial is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including the appellant's recollection. The statement must be served on the appellee, who may serve objections or proposed amendments within 14 days after being served. The statement and any objections or proposed amendments must then be submitted to the district court for settlement and approval. As settled and approved, the statement must be included by the district clerk in the record on appeal.

(d) Agreed Statement as the Record on Appeal. In place of the record on appeal as defined in Rule 10(a), the parties may prepare, sign, and submit to the district court a statement of the case showing how the issues presented by the appeal arose and were decided in the district court. The statement must set forth only those facts averred and proved or sought to be proved that are essential to the courts resolution of the issues. If the statement is truthful, it—together with any additions that the district court may consider necessary to a full presentation of the issues on appeal—must be approved by the district court and must then be certified to the court of appeals as the record on appeal. The district clerk must then send it to the circuit clerk within the time provided by Rule 11. A copy of the agreed statement may be filed in place of the appendix required by Rule 30.

(e) Correction or Modification of the Record.

(1) If any difference arises about whether the record truly discloses what occurred in the district court, the difference must be submitted to and settled by that court and the record conformed accordingly.

(2) If anything material to either party is omitted from or misstated in the record by error or accident, the omission or misstatement may be corrected and a supplemental record may be certified and forwarded:

(A) on stipulation of the parties;

(B) by the district court before or after the record has been forwarded; or

(C) by the court of appeals.

(3) All other questions as to the form and content of the record must be presented to the court of appeals.

RayAnswers :

As long as you include these, the order of dismissal and circuit court acknowledgement it appears you have complied here with the terms of the rule above since there is no transcript involved.

RayAnswers :

I appreciate the chance to assist you today.Please let me know if you have more follow up.Thanks again for letting me help you.

RayAnswers :

I hope that you will be so kind as to leave a positive rating. If you do have any additional questions about my answer please click the "Continue Conversation Link" so I can provide you with a fully satisfactory answer. Please be aware that any rating of 1 or 2 is reflected as a negative rating and I receive no credit for my answers.




This communication does not establish an attorney client relationship here.Information provided is not legal advice. Rather it is simply general information.

RayAnswers :

Here are the complete rules for your use.

RayAnswers :

Thanks again for letting me be of assistance and good luck here with the appeal.

RayAnswers :

This might be of help to you, you can buy it used here pretty cheap.It would guide you through the process..

Ray, Lawyer
Category: Legal
Satisfied Customers: 34808
Experience: 29 years in civil, probate, real estate, elder law
Ray and 9 other Legal Specialists are ready to help you
Expert:  Ray replied 2 years ago.
Thanks so much for letting me help you today.If you have another new question please post it for Ray and I will be happy to help.Thanks again for your rating as well.

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