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

The record on appeal shall consist of the documents and exhibits on file, the transcript of the proceedings, if any, and the docket entries.

(1) Cases other than child welfare cases

(A) Transcript Orders and Certifications. For those proceedings relevant to the appeal that were recorded by a court reporter, the appellant shall order a transcript of those proceedings within 14 days of filing the notice of appeal in accordance with procedures set by the Chief Justice of the Trial Court, unless the appellant certifies to the clerk (i) that no lower court proceedings are relevant to the appeal or (ii) that the transcript is on file with the court. For those proceedings relevant to the appeal that were electronically recorded, the appellant shall request the transmission of the audio recording of those proceedings and order the transcription of those proceedings within 14 days of filing the notice of appeal in accordance with procedures set by the Chief Justice of the Trial Court, unless the appellant certifies to the clerk (i) that no lower court proceedings are relevant to the appeal or (ii) that the transcript of all proceedings relevant to the appeal is on file with the court. The appellant shall at the same time file a copy of the transcript orders or certifications with the clerk and serve a copy on all other parties. Within 14 days of service of the appellant’s transcript orders or certifications, any other party may order a transcript of additional proceedings in accordance with procedures set by the Chief Justice of the Trial Court. Such party shall at the same time file a copy of the transcript order with the clerk and serve a copy on all other parties.

(B) Stipulation that Transcript is Unnecessary. To the extent consistent with the appellant’s duty to provide an adequate record to the appellate court, the parties may stipulate that the transcription of some or all of the proceedings relevant to the appeal is unnecessary to the adjudication of the appeal, in which case the appellant need order only the transcript of the proceedings, if any, that the parties agree are necessary to the adjudication of the appeal. The parties shall file the stipulation with the clerk within 14 days of the filing of the notice of appeal.

(C) Costs of Transcription. In any criminal case and in a civil case in which the appellant is entitled to have counsel made available pursuant to Supreme Judicial Court Rule 3:10, the Commonwealth shall pay for the cost of providing the transcript of all proceedings relevant to the appeal, including those designated by the appellee, to the lower court clerk. In all other cases, unless ordered otherwise by the lower court, the appellant shall pay for such costs. If the parties cannot agree on which proceedings are relevant to the appeal, the lower court shall settle the matter upon motion. Payment, if required, for copies of the transcript for the parties shall be governed by procedures set by the Chief Justice of the Trial Court.

(2) Child welfare cases 

Upon the filing of a notice of appeal, unless the parties file a stipulation designating the parts of the proceedings which need not be transcribed or a statement of intent to proceed under Rule 8(d), the clerk of the lower court shall order, within 14 days and in accordance with procedures set by the Chief Justice of the Trial Court, a transcript of the proceedings relevant to the appeal and shall serve a copy of the transcript order on the parties.

(3) Delivery of the transcript

Upon completion, the transcriber shall deliver the transcript to the clerk of the lower court in accordance with procedures set by the Chief Justice of the Trial Court. The delivery of transcripts to the parties shall be governed by procedures set by the Chief Justice of the Trial Court. Upon receipt of all of the transcripts ordered by the parties, the clerk shall notify all parties within 14 days that the transcripts have been received.

If no report of the evidence or proceedings at a hearing or trial was made and a transcript is unavailable, the appellant shall file a motion to reconstruct the record within 14 days of the filing of the notice of appeal. The parties shall confer and reconstruct the record. Within such time as the lower court shall allow, the appellant shall file a proposed statement of the proceedings. Within 14 days of service of the proposed statement, any other party may file objections or proposed amendments or additions. The lower court shall promptly settle any disputes and approve a statement of the proceedings for inclusion in the record on appeal.

If the parties intend to submit an agreed statement as the record on appeal in lieu of the procedures set forth in Rule 8(a)-(c), the parties shall notify the clerk in writing within 14 days of the filing of the notice of appeal. Within 28 days of the filing of the notice to the clerk, the parties shall submit to the lower court an agreed statement of the record on appeal containing such information as is necessary for consideration of the appeal. If the statement conforms to the truth, the lower court shall approve the statement, along with any additions the lower court considers useful to the appellate court.

(1) Omissions

If anything material is omitted from the record, the parties may supply it by stipulation and submit the stipulation for the approval of the lower court. If the parties are unable to agree, the lower court on motion shall settle the dispute and add to the record on appeal. On motion of the parties or on its own motion, the appellate court or a single justice may direct that any omission be rectified.

(2) Corrections

If any part of the record on appeal fails to accord with what occurred in the lower court, the parties may correct the record by stipulation and submit the stipulation for the approval of the lower court. If the parties are unable to agree, the lower court on motion shall settle any disputes and conform the record to the truth. On motion of the parties or on its own motion, the appellate court or a single justice may direct that any part of the record be corrected.

(3) Inaudible recording 

If portions of the proceedings cannot be transcribed because they are unintelligible, the parties shall promptly use reasonable efforts to stipulate to their content, and shall submit any such stipulation for the approval of the lower court. If the parties are unable to agree, the lower court shall settle the dispute on motion.

(2019)

The 2019 revisions to Rules 8 and 9(a) were recommended by the Trial Court Committee on Transcript Production, a committee convened by the Chief Justice of the Trial Court in 2016 to address widespread dissatisfaction with the complexity and lack of flexibility afforded by the prior rules. The revisions facilitate assembly of the record on appeal by streamlining the requirements for production of the transcript of the lower court proceedings.

Rule 8(a) was revised to simplify the description of the record on appeal. The requirement that the docket entries be certified was eliminated, consistent with revisions to Rule 9(e)(2)(D). The reference to inclusion in the record of “the report of the trial judge to the appellate division” was deleted because such a report would be part of the documents on file with the lower court.

Rule 8(b)(1) governs all appeals except appeals in child welfare cases. Under Rule 8(b)(1)(A), within 14 days of the filing of a notice of appeal, the appellant must either order transcripts of “all court proceedings relevant to the appeal,” certify that no court proceedings are relevant to the appeal, or certify that the relevant transcripts have already been filed with the lower court. The orders or certifications are filed with the lower court clerk and the appellant is required to give notice to the other parties. If proceedings were electronically recorded, the appellant must order the recording and the transcript at the same time. Prior requirements regarding designation were deleted from this rule. If the appellee believes that other proceedings should be transcribed, the appellee may order the transcript of those proceedings within 14 days of the appellant’s order. The procedural mechanics of the parties’ orders are to be determined by the Chief Justice of the Trial Court in an Administrative Order, to allow flexibility in the transcript request and production processes as technology advances.

Rule 8(b)(1)(B) retains the right of the parties to stipulate that transcription of some or all of the court proceedings is unnecessary to the appeal. The parties must file the stipulation with the lower court clerk with 14 days of the filing of a notice of appeal.

The requirement in prior Rule 8(1)(b)(2) that the clerk of the lower court in a criminal case order the transcript without the prompting of the appellant was deleted. The appellant’s trial counsel is better able than the clerk to determine which dates and hearings are potentially relevant to an appeal.

Rule 8(b)(1)(C) governs the cost of producing the transcript. The Commonwealth is responsible for paying for the transcript for the lower court in all criminal cases and in civil cases in which the appellant was entitled to appointed counsel. In other cases, the appellant is required to pay for the transcript for the lower court for all proceedings relevant to the appeal, regardless of whether the appellant or the appellee ordered them. The lower court may settle any dispute over whether transcripts ordered by the appellee are relevant to the appeal and has the authority to shift costs in the interests of justice. Payment of costs for the copies of the transcripts to be provided to the parties is determined by the Chief Justice of the Trial Court in an Administrative Order because it concerns contracts between the Trial Court and transcribers and court reporters, and will be influenced by the expansion of electronic processes.

Rule 8(b)(2) governs child welfare cases, which continues prior Rule 8(b)(5)’s recognition of the urgency of child welfare appeals. Rule 8(b)(2) requires the lower court clerk to order the transcript of the court proceedings relevant to the appeal, unless the parties stipulate otherwise within 14 days of the filing of a notice of appeal.

Rule 8(b)(3) clarifies that, in all cases, the transcriber must deliver the transcript directly to the lower court clerk, rather than providing it to the ordering party for delivery to the clerk. This clarification is intended to avoid unnecessary delays. The mechanics of such delivery is governed by an Administrative Order published by the Chief Justice of the Trial Court, which is intended to allow the Trial Court to take immediate advantage of advances in technology regarding electronic delivery. The lower court clerk has the duty of informing all parties when all transcripts have been received. Of course, a clerk may also inform parties when transcripts of some, but not all, proceedings are received.

Rule 8(c) was revised to modify the procedure for reconstructing the record when a transcript is unavailable. Under the modified procedure, the appellant must file a motion to reconstruct the record within 14 days of the filing of the notice of appeal. Unlike prior Rule 8(c), the duty is on the parties to confer prior to the filing of a proposed reconstruction in the lower court. This process is more likely to achieve the objective of reconstructing a record adequate for the appellate court and better reflects the Supreme Judicial Court’s admonition that “‘[a]ll those with . . . relevant evidence, but particularly the attorneys involved at the trial, are under an affirmative duty to use their best efforts to ensure that a sufficient reconstruction is made if at all possible.’” Drayton v. Commonwealth, 450 Mass. 1028, 1030 (2008), quoting Commonwealth v. Harris, 376 Mass. 74, 79 (1978). Once the parties have conferred, the appellant shall file a proposed reconstruction within such time as the lower court shall allow, and any other party may file objections, amendments, or additions, and the lower court shall settle the matter. The deadline for filing such objections, amendments, or additions is changed from 10 days to 14 days after the filing of a proposed reconstruction.

Rule 8(d) continues prior Rule 8(d)’s provisions authorizing the parties to file an agreed statement of the record on appeal. Unlike the prior rule, however, the parties must notify the lower court clerk of their intention to do so within 14 days of the filing of a notice of appeal. The agreed statement is to be filed within 28 days of the parties’ notification to the clerk.

Rule 8(e) was revised to clarify the procedures for correction or modification of the record. The subdivision was separated into three paragraphs, each addressing a different method for modification of the record: omissions, corrections, or an inaudible recording. In each case, the parties may stipulate to a correction and submit the stipulation to the lower court for approval. If the parties cannot agree, they may submit the dispute to the lower court for resolution. The provision of prior Rule 8(e) that allowed parties to stipulate to an addition to the transcripts, but not a correction without lower court approval, was deleted. In both instances, the amended rule requires approval of the lower court. The appellate court may benefit from any guidance the lower court judge may be able to provide. The appellate court retains the ability to order a correction or addition to the transcripts, with or without lower court input. 

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(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).