Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 8: The record on appeal

Effective Date: 09/03/2002
Updates: Amended June 27, 1974, effective July 1, 1974 Amended effective February 24, 1975
Amended May 15, 1979, effective July 1, 1979 Amended June 28, 1979, effective July 1, 1979 Amended February 17, 1983, effective April 1, 1983 Amended May 29, 1986, effective July 1, 1986 Amended June 23, 1986, effective July 1, 1986 Amended October 1, 1998, effective November 2, 1998 Amended July 28, 1999, effective September 1, 1999 Amended June 26, 2002, effective September 3, 2002

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(a) Composition of the record on appeal

The original papers and exhibits on file, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases. In a civil case, in an appeal from an appellate division, the original papers and exhibits shall include the report of the trial judge to the appellate division with any exhibits made a part of such report.

 

(b) The transcript of proceedings

(1) Civil Cases, Except Child Welfare Cases: Duty of Appellant to Order; Notice to Appellee if Partial Transcript Is Ordered

Within ten days after filing the notice of appeal the appellant shall order from the court reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the appellee a description of the parts of the transcript which he intends to include in the record and a statement of the issues he intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary he shall, within 10 days after the service of the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the lower court for an order requiring the appellant to do so. At the time of ordering, a party shall make satisfactory arrangements with the court reporter for payment of the cost of the transcript.

(2) Criminal Cases: Duty of Clerk; Duty of Court Reporter

Upon the filing of a notice of appeal, unless the parties file therewith a stipulation designating the parts of the proceedings which need not be transcribed, the clerk of the lower court, within ten (10) days, shall order from the court reporter a transcript of the proceedings and shall file a certificate of such order. The parties are encouraged to stipulate to those parts of the proceedings which are unnecessary to the appeal. Upon receipt of an order, the court reporter shall prepare one original typed transcript. The court reporter shall deliver the original typed transcript to the clerk of the lower court who shall, by means of xerography or other similar method which produces legible copies, prepare one copy thereof for each of the appellate court, the appellant, and the appellee. The clerk of the lower court shall deliver one copy each to the appellant and the appellee and shall certify that the copies of the appellant and appellee have been delivered. The clerk of the lower court shall retain custody of the original typed transcript and one copy thereof until the record is transmitted to the appellate court as provided by Rule 9(d). The Commonwealth shall pay the cost of the original of the typed transcript and a copy for the appellate court. Except as provided in Rule 8(b)(4), the cost of the copy for the appellant shall be paid for by the appellant.

(3) Electronically Recorded Proceedings, Except Child Welfare Cases

(i) Applicability 

Rule 8(b)(3) applies to proceedings which were recorded electronically on equipment under the control of the court and which were not recorded by an official court reporter. If, however, a complete transcript of the electronic recording has been produced for use by the trial court, and it or a copy is available to the parties, such transcript or copy shall be utilized in lieu of preparing another pursuant to this Rule 8(b)(3). Upon receipt of the notice of appeal in such cases, the clerk shall advise the parties of the name of the preparer of the transcript; the parties shall then follow the procedure under Rule 8(b)(1) in a civil case, or Rule 8(b)(2) in a criminal case, as if a court reporter had been present, except the appellant's time for ordering a transcript shall be extended to within ten days after appellant's receipt of the clerk's notification of the name of the preparer of the transcript.

(ii) Duties of the Appellant and of the Clerk; Selection of Transcriber

If the appellant deems all or part of the electronic recording necessary for inclusion in the record, the appellant shall, simultaneously with filing a notice of appeal, order from the clerk of the lower court, in accordance with any rule or established policy of the court, a cassette copy of the electronic recording, which is hereinafter called "the cassette." The clerk shall promptly provide the cassette, unless the provisions of the second paragraph of Rule 8(b)(3)(i) apply. If a portion of the electronic recording has already been transcribed for use by the trial court, and such transcript or a copy is available to the parties, the clerk shall, in addition to providing the cassette, at the same time advise the parties of the name of the preparer of the transcript.

Within fifteen days of receipt of the cassette from the clerk, appellant shall file in court and serve on each appellee a document which includes the date of receipt of the cassette; a designation of the parts of the cassette the appellant intends to include in the transcript; and the name, address, and telephone number of the individual or firm selected to prepare the transcript, provided that the appellant and each appellee have agreed to this choice and the appellant so states. If the appellant and appellees have not so agreed, said document shall also specifically notify the clerk to select the transcriber.

The designation of the parts of the cassette to be transcribed should be precise and include such details as the name of the witness whose testimony has been designated and the portions to be included, giving an exact quote of the beginning words and concluding words of each designated portion.

If such selection of an individual or firm to prepare the transcript is not included, or if the transcript is to be provided at the expense of the Commonwealth, the individual or firm shall be selected by the clerk. When the selection is made by the clerk, the individual or firm shall be selected in accordance with procedures promulgated by the Chief Administrative Justice. The clerk shall promptly notify all parties of any such selection made by the clerk. Any individual or firm selected to transcribe the record pursuant to Rule 8(b)(3) is hereinafter called "the transcriber."

If the appellant has designated the entire cassette for transcription, then within said fifteen days of receipt of the cassette from the clerk, appellant shall also send or deliver to the transcriber the cassette provided by the clerk and a written order designating the entire cassette for transcription. If the appellant has not designated the entire cassette, then after twenty days have expired from the service upon the appellee of appellant's designation of transcript, the appellant shall promptly send or deliver to the transcriber the cassette provided by the clerk and a written order which states those parts of the cassette designated by the parties for transcription. In addition, the order, whether for all or part of the transcript, shall include a statement that the original of the designated portions of the transcript should be sent to the clerk of the lower court, and shall indicate the number of copies if any, to be sent to the appellant. The appellant shall promptly file with the clerk and serve on the other parties a copy of the order placed with the transcriber. Unless the entire cassette is to be transcribed, the appellant shall, together with appellant's designation of transcript, file and serve on the appellee a statement of the issues the appellant intends to present on the appeal. The appellant shall cooperate with the transcriber by providing such information as is necessary to facilitate transcription, and, where the Commonwealth is not responsible for the cost of transcription, make satisfactory arrangements with the transcriber to pay for the trial court's original of the designated portions of the transcript and any copies ordered by the appellant for the appellant's own use.

(iii) Duties of the Appellee

If the appellee deems it necessary to have a cassette in order to consider counter-designating, or for any other purpose, the appellee shall, after receipt of the notice of appeal, promptly order the cassette from the clerk or promptly arrange with the appellant to use appellant's cassette. If the appellant has not designated and ordered the entire transcript and if the appellee deems a transcript of other portions of the proceedings to be necessary, the appellee shall within fifteen days after receipt of the appellant's designation, file in court, and serve on the appellant, a designation of such additional parts. The designation of the parts of the cassette to be transcribed should be precise and include such details as the name of the witness whose testimony has been designated and the specific portions to be included, giving an exact quote of the beginning words and concluding words of each designated portion. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the lower court for an order requiring the appellant to do so. If the appellee desires a copy of designated portions of the transcript, the appellee shall promptly communicate to the transcriber the number of copies wanted and, in cases where the Commonwealth is not responsible for the cost of the transcript, make satisfactory arrangements with the transcriber for payment for the appellee's own copies.

The appellee shall cooperate with the transcriber by providing such information as is necessary to facilitate transcription.

(iv) Duties of the Transcriber

The transcriber shall prepare an original typed transcript of the designated portions and the requested number of copies, in accordance with the designations, and shall deliver said original to the clerk, with the following certificate of accuracy:

I, _____, do hereby certify that the foregoing is a true and accurate transcript, prepared to the best of my ability, of the designated portions of the cassette provided to me by the appellant or appellee of a trial or hearing of the _____ Division of the _____ Court Department in the proceedings of _____ v. _____, case(s) no.(s) ______ before Justice _________ on ______________.

(Day and Date)

Date: ___________________

________________________

Transcriber's Signature

The transcriber shall deliver legible copies to all parties who have so requested.

(v) Unintelligible Portions of the Cassette 

If portions of the cassette cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate their content. If agreement cannot be reached, the parties shall promptly present their differences as to such portions to the trial judge who heard the testimony. The trial judge shall, if possible, settle the content of the unintelligible portions, which shall then be included in the transcript.

(vi) Transcripts Paid for by the Commonwealth

In criminal cases, the Commonwealth shall pay the cost of the original of the designated portions of the typed transcript and a copy for the appellate court. Except as provided in Rule 8(b)(4), the cost of the copy for the appellant shall be paid for by the appellant who shall make arrangements with the transcriber to pay for such copy. Whenever the Commonwealth is to pay for an original or copy of the designated portions of the transcript, each party designating any portion of the cassette for transcription shall, at the time of filing the designation, also file a certificate that the parts designated are necessary to permit full consideration of the issues on appeal. Unless one of the parties specifically requests otherwise, that part of the cassette dealing with impanelment of a jury shall not be transcribed.

(4) Cost of Transcripts for Indigents

In all cases in which counsel is required to be made available pursuant to Supreme Judicial Court Rule 3:10 the cost of any transcript for such a party shall be paid for by the Commonwealth.

(5) Child Welfare Cases

(i) Proceedings Recorded by an Official Court Reporter

On the filing of a notice of appeal, unless the parties file therewith a stipulation designating the parts of the proceedings which need not be transcribed, the clerk of the lower court on behalf of the appellant, shall order from the court reporter a transcript of the entire proceeding or of such parts of the proceeding not already on file. The clerk of the lower court shall notify all parties of the date the transcript was ordered by sending a copy of the order form to all parties. On receipt of the order the court reported shall prepare an original typed transcript for filing with the lower court and a copy for the appellant and any party who so requests. The court reporter shall deliver the original to the clerk of the lower court who shall immediately notify all parties of its receipt, and the court reporter shall deliver legible copies to the appellant and to any party who so requests.

(ii) Electronically Recorded Proceedings

(a) Applicability: 

Rule 8(b)(5)(ii) applies to child welfare cases which were recorded electronically on equipment under the control of the court ad which were not recorded by an official court reporter. If, however, a complete transcript of the electronic recording has been produced for use by the lower court, and it or a copy is available to the parties, that transcript or copy shall be used.

(b) Duties of the Appellant and Clerk

Upon the filing of a notice of appeal, the clerk of the lower court shall produce a cassette copy of the electronic recording. Within 10 days of production of the cassette, the clerk of the lower court shall, unless the parties file a stipulation designating the parts of the cassette which need not be transcribed, on behalf of the appellant order a transcription of the entire cassette from a transcriber selected by the clerk in accordance with procedures promulgated by the Chief Justice for Administration and Management. The clerk shall also notify all parties of the name of the transcriber and the date the cassette was sent for transcription by sending a copy of the order form to all parties.

On receipt of the order the transcriber shall prepare an original typed transcript for filing in the lower court and a copy for the appellant and any party who so requests. The transcriber shall deliver the original to the clerk of the lower court who shall immediately notify all parties of its receipt, and the transcriber shall deliver legible copies to the appellant and to any party who so requests. The appellant and appellee shall cooperate with the transcriber by providing information necessary to facilitate transcription. The transcriber shall certify the original transcript using the following certificate of accuracy:

I, ___________________, do hereby certify that the foregoing is a true and accurate transcript, prepared to the best of my ability, of the designated portions of the cassette provided to me by the clerk of the lower court of a trial or hearing of the __________________ Division of the ________________ Court Department in the proceedings of __________________, case(s) no(s). _______________ before Justice ________________ on _____________.

Date: ______________________

___________________________
Transcriber's Signature

(iii) Unintelligible Portions of the Cassette

If portions of the cassette cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate their content. If agreement cannot be reached, the parties shall promptly present their differences as to such portions to the trial judge who heard the testimony. The trial judge shall, if possible, settle the content of the unintelligible portions, which shall then be included in the transcript.

(iv) Costs

The appellant shall pay for the cost of the original transcript filed with the lower court and for any copies ordered by the appellant. If there is more than one appellant, the cost of the original and any copies shall be divided between the various appellants. Any other party who requested a copy of the transcript shall pay for its copy. For any party for whom counsel is made available pursuant to Supreme Judicial Court Rule 3:10, the cost of any transcript requested by, or on behalf of, such party shall be paid in accordance with G.L. c. 261.

(c) Statement of the evidence or proceedings when no report was made or when the transcript is unavailable

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may, within thirty days after the notice of appeal is filed, file a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments thereto shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

(d) Agreed statement as the record on appeal

In lieu of the record on appeal as defined in subdivision (a) of this rule, the parties may, within thirty days after the notice of appeal is filed, prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the lower court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the court may consider necessary fully to present the issues raised by the appeal, shall be approved by the lower court, and as approved shall be retained in the lower court as the record on appeal.

Copies of the agreed statement shall be filed as the appendix required by Rule 18.

(e) Correction or modification of the record

If any difference arises as to whether the record truly discloses what occurred in the lower court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties by stipulation, or the lower court, either before or after the record is transmitted to the appellate court, or the appellate court, or a single justice, on proper suggestion or on its own motion, may direct that the omission or misstatement be corrected, and if necessary that a supplemental record be certified and transmitted. All other questions as to the form and content of the record shall be presented to a single justice.

Reporter's notes

(2002) [To Appellate Rule 8(B)(2)] The 2002 amendment to Appellate Rule 8(b)(2) requires that upon the filing of a notice of appeal in a criminal case, the clerk of the lower court shall order a transcript from the court reporter within ten days. Prior to this amendment, there was no time period prescribed for ordering the transcript.

This amendment will make the practice in criminal cases consistent with that already in existence in civil cases in Massachusetts. Appellate Rule 8(b)(1) requires that in a civil case, the appellant shall order the transcript within ten days after filing of the notice of appeal. It should be noted that Rule 10(b)(1) of the Federal Rules of Appellate Procedure likewise requires that the transcript in civil and criminal cases in federal court be ordered within ten days of the filing of the notice of appeal.

(1999) The 1999 amendments to Appellate Rule 8(b) were part of a comprehensive set of amendments to the Appellate Rules (Rules 1, 3, 4, 8, and 10) that had been proposed by the Supreme Judicial Court Committee on Appeals of Child Welfare Cases. The purpose of the 1999 amendments is described in the 1999 Reporter’s Notes to Appellate Rule 1(c).

Appellate Rule 8(b)(1) (concerning ordering the transcript) and Rule 8(b)(3) (concerning electronically-recorded proceedings) have been made inapplicable to child welfare cases. Instead, the ordering of the transcript of the proceeding is now controlled by Rule 8(b)(5). Rule 8(b)(5) shifts the duty of ordering the cassettes and transcripts from the appellant to the clerk of the lower court. Modeled in part after the procedures applicable in criminal cases, new Rule 8(b)(5) is intended to expedite preparation of the transcript in child welfare cases.

(1998) The 1998 amendment to Appellate Rule 8(b)(3) deals with appeals in proceedings that were electronically-recorded on court-controlled recording equipment and not recorded by an official court reporter.

The existing rule allows the appellant to designate either the entire cassette or only specified portions of the cassette to be transcribed for purposes of preparing the appellate record. The existing rule further provides that where less than the entire cassette is to be designated, the appellant must inform the appellee of those portions of the cassette that are to be transcribed. This allows the appellee to counter-designate additional portions of the cassette for transcription. However, the current rule does not require the appellant to inform the appellee of the issues that the appellant intends to present on the appeal, thus making it difficult for the appellee to make such counter-designation intelligently.

The 1998 amendment resolves this dilemma by requiring the appellant to file and serve on the appellee a statement of the issues together with the appellant’s designation of transcript.

(1983) [To Addition of Rule 8(B)(3)] Rule 8(b)(3) has been added to deal with tape-recorded transcripts. It is quite detailed because judges, clerks, and lawyers have complained about a lack of specificity with respect to the utilization of cassettes on appeal.

Rule 8(b)(3)(i) indicates when Rule 8(b)(3) applies. The Rule does not apply to court reporters, including voice writers, or to cases where a complete transcript has already been produced for use by the trial court, and is available to the parties. Rule 8(b)(3)(ii) gives the duties of appellants and clerks, and provides for appointment of a transcriber. A major purpose is to facilitate a speedy appeal. Consequently, an appellant must order a cassette at the time of appeal and state the date of receipt to insure that the designation is timely. Another major purpose is to reduce the number of steps required of the clerk. This rule permits the parties, if they can agree, to choose the transcriber. The appellant must inform the clerk at the time of transcript designation whether the parties have so agreed. The parties must order their copies directly from the transcriber and make their own payment arrangements; the transcriber delivers transcripts directly to them. Rule 8(b)(3)(ii), unlike 8(b)(1), does not specify when an appellant must transcribe all evidence relevant to a finding or conclusion. This is not meant to change the law, but rather leave it to the parties to determine what must be transcribed in order to protect their appeal. The Standing Advisory Committee wants to discourage unnecessary transcription.

Rule 8(b)(3)(iii) gives the duties of the appellee with respect to ordering a cassette or arranging to borrow the appellant’s, counter-designation, and ordering copies. Rule 8(b)(3)(iv) describes the transcriber’s duties, and the certificate which the transcriber must file. Rule 8(b)(3)(v) covers the situation where a portion of the cassette is unintelligible; it requires the parties first to attempt to stipulate the contents of such portion, and provides for the trial judge, if possible, to settle differences. Rule 8(b)(3)(vi) requires that when the Commonwealth must pay for an original transcript or copy, the designating parties must certify that they have designated only necessary portions. Again, the purpose is to reduce costs.

Rule 8(b)(3) does not have its own provision concerning enlargements of time, but is subject to the general computation and extension of time provisions contained in Appellate Rule 14.

Here is a chronology of the major steps and time periods under this rule:

1. Simultaneously with filing the notice of appeal, the appellant, if desirous of a transcript, orders the cassette. Rule 8(b)(3)(ii).

2. The clerk promptly provides the cassette (Rule 8(b)(3)(ii)), unless an entire transcript is already available; in such event, the clerk notifies the parties, and the normal designation rules in Rule 8(b)(1) or 8(b)(2) apply. Rule 8(b)(3)(i). In such event, the appellant’s time for ordering a transcript is within ten days after the clerk’s notification. Rule 8(b)(3)(i). The clerk also notifies the parties if there has been a previous transcription of a portion of the cassette, so that the parties may utilize the prior partial transcription if they wish. Rule 8(b)(3)(ii).

3. Within fifteen days after receipt of the cassette from the clerk, the appellant designates which portions are to be included in the transcript. Rule 8(b)(3)(ii). If the appellant wants the entire cassette transcribed, then appellant also delivers the cassette to the transcriber and places the order within said fifteen day period. Rule 8(b)(3)(ii).

4. When the appellant has not ordered the transcription of the entire transcript, the appellee has fifteen days from service of the appellant’s designation to file and serve a counter-designation. Rule 8(b)(3)(iii).

5. When the appellant has not already designated the entire cassette for transcription, the appellant delivers the cassette to the transcriber and places the order promptly after twenty days have expired from service upon the appellee of the appellant’s designation. Rule 8(b)(3)(ii). This, in effect, gives the appellant at least five days to deliver the cassette to the transcriber and place the order, for the appellee had to file and serve the counter-designation within fifteen days.

In summary, from the time the appellant receives the cassette from the clerk, the entire designation process takes fifteen days if appellant orders the entire cassette transcribed, and “promptly” after thirty-five days if appellant has designated less than the entire cassette.

(1979) The second sentence of subdivision (a) of former Rule 8 is amended to clarify that it applies to appeals in civil cases from the Appellate Division of the District Court Department (G.L. c. 231, § 108, as amended, St.1978, c. 478, § 264) and not to the Appellate Division of the Superior Court Department for review of sentences in criminal cases (G.L. c. 278, §§ 28A-28D).

Subdivision (b) of the former rule has been divided into subdivisions (b)(1), applicable to civil cases, and (b)(2), applicable to criminal cases. Subdivision (b)(1) is identical to former 8(b). Subdivision (b)(2) is wholly new.

Consonant with practice under former G.L. c. 278, §§ 33A-33H, a defendant is entitled to a complete transcript on appeal. Charpentier v. Commonwealth, Mass.Adv.Sh. (1978) 2163, 2172. Pursuant to (b)(2), upon the filing of a notice of appeal in a criminal case, the clerk of the lower court automatically orders from the court reporter a transcript of the proceedings out of which the appeal arises. Since counsel is no longer obligated to take this mechanical step, one point of delay under prior practice is thus eliminated. The parties may--and are encouraged by the rule to--file a stipulation as to those parts of the proceedings which are unnecessary to the appeal and which therefore need not be transcribed. The provision for stipulations as to parts of the proceedings which need not be transcribed is not applicable to capital cases under G.L. c. 278, § 33E, as amended, because in such cases, the “entire case” is before the Supreme Judicial Court, “including a transcript of the entire proceedings.” E.g., Charpentier, supra at 2173 n. 9. A “capital case” is a case in which the defendant was convicted of murder in the first degree. G.L. c. 278, § 33E, as amended. See Commonwealth v. O’Brien, Mass.Adv.Sh. (1976) 2926; Mass.R.Crim.P. 2(b)(3).

When the transcript is completed, the court reporter is to deliver it to the clerk of the lower court who prepares copies thereof for the appellate court, the appellant or appellants, and the appellee or appellees. The parties’ copies are delivered to them, while the original and one copy are retained by the clerk for transmission to the appellate court as part of the record (Rule 9[d]).

In the district court jury sessions, the General Laws (G.L. c. 218, § 27A(h)) provide a procedure for appointment of a court reporter to transcribe the proceedings and in the alternative for an electronic recording of the proceedings. These rules as well as G.L. c. 218, § 27A(g) provide that appeals from the district court jury sessions are to proceed in the same manner as appeals from the superior court.

Because of the unavailability of a court reporter in some cases in the district court jury sessions or where the defendant has not taken advantage of section 27A(h) it may be necessary for the clerk, who has the responsibility under this rule for the completion of the record, including the transcript, to cause a transcript to be made from an electronic recording.

After this necessary preliminary step has been taken by the district court clerk copies of the transcript are to be made and distributed as provided by this rule and rule 9(d).

The cost of preparation of the original transcript and of the copies required by this rule is borne by the Commonwealth except where the defendant is not indigent. In that case the defendant is to pay the clerk for the cost of producing his copy. The provision requiring production of the whole transcript is intended to provide for more expeditious and just disposition of questions on appeal. In the first place, the Commonwealth could not in all cases determine whether a partial transcript was adequate to serve its needs until such time as the defendant’s brief was filed. Secondly, without a full transcript, appellate courts cannot resolve issues of plain error, a miscarriage of justice, or harmless error.

Subdivision (c) has been amended to enlarge the time within which a statement of the evidence or proceedings may be filed from ten to thirty days. Procedure like that provided under this subdivision has been followed by the Supreme Judicial Court in a criminal case when a transcript was unavailable. Commonwealth v. Harris, Mass.Adv.Sh. (1978) 2155.

It should be noted that the appellant may prepare and submit a statement of the evidence or proceeding from the best available means. However, as stated in Ingersoll Grove Nursing Home, Inc. v. Springfield Gas Light Co., Mass.Adv.Sh. (1979) 203, 204 a substitution is available only “if no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable.” In a case in which the transcript is “made and available” the plaintiff is not entitled to substitute a statement of the evidence under subdivision (c).

Subdivision (d) however allows the parties to “prepare and sign a statement of the case” in lieu of the record. The term “statement of the evidence or proceeding” of subdivision (c) is not to be used interchangeably with “statement of the case” in subdivision (d) since the rules outline different procedures with respect to these terms.

The agreed statement permitted by subdivision (d) must now be filed within thirty days after the notice of appeal is filed; prior to this amendment no time limit was specified. The parties electing to proceed under the subdivision should notify the clerk that no transcript is to be ordered and, in addition, that the agreed statement shall be substituted for the record as defined in subdivision (a). Filing of the agreed statement as the appendix required by Rule 18 has been made mandatory.

Subdivision (e), relative to correction or modification of the record, as applied to criminal cases, is similar in operation to prior provisions for settling a bill of exceptions (G.L. c. 278, § 31 [St.1974, c. 540, § 1] ) or for correcting errors in a transcript (G.L. c. 278, § 33A [St.1974, c. 540, § 2] ), although much broader in the scope of relief available.

(1975) As originally promulgated, Appellate Rule 8 required the inclusion, in the record on appeal, of a certified copy of the order appealed from and the opinion. Because the record includes all “original papers” anyway, this requirement was superfluous. Accordingly, it has been eliminated.

(1973) Based on F.R.A.P. 10, Appellate Rule 8 describes the record on appeal, which should be carefully distinguished from the record appendix. The record consists of the original papers and exhibits, plus a transcript of the proceedings and a certified copy of the docket entries, as well as any certified copy of the lower court’s final order. The record appendix (see Appellate Rule 18) is that distillation of the decision-essential portions of the record which is filed in connection with appellate brief.

The appellant is responsible for attending to the preparation of a transcript; this transcript must be sufficiently extensive to cover all points raised by the appeal. The phrase “description of the parts of the transcript,” refers to such a description as “the plaintiff’s entire testimony,” rather than a designation by page and line, unless a more precise description is necessary.

If no transcript was made, the appellant may prepare a statement of the evidence in the proceedings in the most expeditious manner possible; after inspection by the appellee, this statement will be submitted to the lower court for approval. The statement of issues need be only extensive enough to enable the appellee to determine the need for ordering a transcript of other parts of the testimony.

The parties may, alternatively, prepare and file an agreed statement of facts. This is similar to existing practice, see G.L. c. 231, § 111; cf. Paulino v. Concord, 259 Mass. 142, 144, 155 N.E. 870, 871 (1927).

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Updates: Amended June 27, 1974, effective July 1, 1974 Amended effective February 24, 1975
Amended May 15, 1979, effective July 1, 1979 Amended June 28, 1979, effective July 1, 1979 Amended February 17, 1983, effective April 1, 1983 Amended May 29, 1986, effective July 1, 1986 Amended June 23, 1986, effective July 1, 1986 Amended October 1, 1998, effective November 2, 1998 Amended July 28, 1999, effective September 1, 1999 Amended June 26, 2002, effective September 3, 2002

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