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Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 9: Assembly and transmission of the record: Exhibits

Effective Date: 09/03/2002
Updates: Amended May 15, 1979, effective July 1, 1979 Amended effective May 1, 1994
Amended June 26, 2002, effective September 3, 2002

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(a) Assembly

The clerk of the lower court as soon as may be after the filing of the notice of appeal shall place together all the original papers including the exhibits filed in the lower court, together with such other papers as thereafter become a part of the record pursuant to Rule 8. The papers shall be numbered in the order of filing and the exhibits shall be plainly marked with the number assigned in the lower court preceded by the letters "exh.". The clerk shall append to the record a list of the documents correspondingly numbered and identified with reasonable definiteness. The record so assembled by the clerk shall be suitably spindled, bound, or tied and retained by the clerk in this form until the final disposition of the appeal, except as the record or any part of it is ordered to be transmitted by the appellate court or a single justice.

(b) Exhibits

No exhibit need be reproduced for the record, except by order of an appellate court, a single justice, or the judge of the lower court. Any counsel may reproduce any exhibit in several copies for the convenience of the court. The lower court shall make such orders as it deems necessary for the preservation of exhibits, and for the reproduction of important exhibits which the appellate court should examine, and the clerk of the lower court shall transmit any exhibit to the appellate court at the request of any party made at any time after the filing of the record appendix. A party shall make advance arrangements with the clerk of the lower court for the transmission and receipt of exhibits of unusual bulk or weight. No exhibit consisting of currency, bearer securities, firearms, narcotics, or contraband articles shall be transmitted to an appellate court unless pursuant to an order of the full appellate court or a justice thereof.

(c) Appellant's obligation

(1) In General 

In a civil or criminal case, upon request by the clerk of the lower court, the appellant shall forthwith perform any act reasonably necessary to enable the clerk to assemble the record and the clerk shall assemble a single record. The lower court or the appellate court or a single justice thereof may require the record to be assembled and the appeal to be docketed at any time.

(2) Civil Cases

Notwithstanding any other obligation which these rules may impose, but excepting electronically recorded proceedings governed by Rule 8 (b)(3), each appellant in a civil case shall, within ten days after filing a notice of appeal, deliver to the clerk of the lower court either (i) a transcript of those portions of the transcript of the lower court proceedings which the appellant deems necessary for determination of the appeal, (ii) a signed statement certifying that the appellant has ordered such portions from the court reporter, or (iii) a signed statement certifying that the appellate has not ordered and does not intend to order the transcript or any portion thereof. Upon receiving the transcript, the appellant in a civil case shall forthwith deliver it to the clerk of the lower court.

(d) Duty of clerk; transmission

When the record is fully assembled, the clerk of the lower court shall notify the parties and the clerk of the appellate court and shall transmit to the appellate court two certified copies of the docket entries and, in a criminal case, the original and one copy of the transcript and a list of all the exhibits. In case of an order to transmit, transmission shall be effected when the clerk of the lower court mails or otherwise forwards the record to the clerk of the appellate court. The clerk of the lower court shall indicate, by endorsement on the face of the record or otherwise, the date upon which it is transmitted to the appellate court.

(e) Record for preliminary hearing in the Appellate Court

If prior to the time the record is assembled a party desires to make in the appellate court a motion for dismissal, for a stay pending appeal or for any intermediate order, the appellate court or a single justice may, on its own motion or on motion of any party, with or without notice, order the clerk of the lower court to transmit to the appellate court such parts of the original record as the appellate court or the single justice shall deem appropriate.

Reporter's notes

(2002) [To Appellate Rule 9(C)(2)] Rule 9(c)(2) was amended in 2002 to reduce the time period after the filing of a notice of appeal from 40 to ten days in which the appellant in a civil case must deliver to the clerk of the lower court either the transcript or a certification that the appellant has ordered the transcript from the court reporter.

This amendment serves to bring Rule 9(c)(2) in line with the requirement of Rule 8(b)(1) that the appellant must order the transcript within ten days of filing the notice of appeal.

A further change was made in the first sentence of Rule 9(c)(2). Prior to the 2002 amendment, that sentence required the appellant to provide to the clerk of the lower court either (1) a transcript of the proceedings which the appellant deems necessary or (2) a statement that the appellant has ordered such transcript. A third option, (iii), has been added for cases where the appellant is not ordering the transcript (or any portion thereof). The appellant, by certifying that no transcript has been ordered and that the appellant does not intend to order the transcript, will thereby put the appellee on notice that the appellee must, if a transcript is desired, take steps to order the transcript. See Rule 8(b)(1).

(1994) [To MASS.R.A.P.9(C)(2)] There has been an ambiguity in Mass.R.A.P. 9(c)(2) in those cases in which there has been an electronically recorded proceeding in trial court. Rule 9(c)(2) calls for the appellant, within forty days after filing the notice of appeal, to deliver to the clerk of the trial court either portions of the transcript or a signed statement certifying that the appellant has ordered such portions from the court reporter. Rule 8(b)(3), covering electronically recorded proceedings, has distinct provisions for obtaining a transcript which do not mesh perfectly with Rule 9(c)(2). For instance, as the dissent of Justice O’Connor (with whom Wilkins and Greaney, JJ. joined) explained in Russell v. McOwen-Hanelt, 413 Mass. 106, 114 (1992), the appellant in that case had a minimum of fifty-six days to order transcription of the cassette, so that the forty day notice provision in Rule 9(c)(2) did not fit. Nonetheless, in that case, the majority, relying on Hawkins v. Hawkins, 397 Mass. 401, 406 (1986), read Rule 9(c) to require the appellant in appeals from electronically recorded proceedings “ ‘to deliver either a transcript or a signed statement certifying that the tapes [are] being transcribed, to the clerk or register’s office, [no later than] forty days after [the] appeal was filed.’ ” Russell v. McOwen-Hanelt, at 109.

The Standing Advisory Committee believes that Rule 9(c)(2) should be clarified so that henceforth it does not apply to electronically recorded proceedings. There are special problems when a tape recorder rather than a stenographer has been used to record a trial. For instance, an appellant must order and receive the cassette from the lower court before the designation process can begin and a person or firm must be selected to prepare the transcript. Consequently, the requirements in Rule 8(b)(3) are different from those in Rule 9(c)(2). This amendment resolves the previous ambiguity by creating an exception from the requirements of Rule 9(c)(2) where there has been an electronically recorded proceeding covered by Rule 8(b)(3). This amendment renders inapplicable the contrary holding in Russell v. McOwen-Hanelt, 413 Mass. 106 (1992) and Hawkins v. Hawkins, 397 Mass. 401 (1986).

(1994) At several places in this Rule, and in Rule 8, the word “record” or the words “record on appeal” are used. It is critical that litigants realize that there is a profound difference between the “record” and the “appendix”. The record is what the lower clerk assembles and retains “until the final disposition of the appeal, except as the record or any part of it is ordered to be transmitted by the appellate court or a single justice.” Mass.R.A.P. 9(a). The appendix is what the appellant must file in accordance with Mass.R.A.P. 18. A 1993 amendment to Mass.R.A.P. 18, which was made to reflect the language of Shawmut Community Bank, N.A. v. Zagami, 411 Mass. 807, 810-812 (1992), emphasizes “the responsibility of the parties to include materials necessary to their appeal, including exhibits, in the appendix.”

It is important to realize that when Mass.R.A.P. 9(b) says that “[n]o exhibit need be reproduced for the record, except by order of an appellate court, a single justice, or the judge of the lower court,” it is talking about “the record” and not “the appendix”. The fact that the rule goes on to say that “[a]ny counsel may reproduce any exhibit in several copies for the convenience of the court,” also does not relieve the parties of their obligation to put copies of exhibits they rely upon in the appendix in accordance with Mass.R.A.P. 18.

(1986) This rule [subdivision (b) of Rule 9], inter alia, requires the clerk of the lower court to “transmit any exhibit to the appellate court at the request of any party made at any time after the filing of the record appendix.” It is important to realize, however, that the transmittal of such exhibits does not automatically permit lawyers to refer to them. Rule 18(a) states that “... the court may decline to permit the parties to refer to portions of the record omitted from the appendix, unless leave be granted prior to argument.” See Iverson v. Board of Appeals of Dedham, 14 Mass.App.Ct. 951 (1982).

(1979) Subdivision (a) of Rule 9, as made applicable to criminal cases, supersedes the provisions of former G.L. c. 278, § 33C (St.1974, c. 458, § 1) relative to the preparation of the record.

Subdivision (b), relative to exhibits, is amended by the addition of a sentence which restates the substance of the first sentence of former Appeals Court Rule 1:06(3) (1975: 3 Mass.App.Ct. 802) and Supreme Judicial Court Rule 1:06(3) (1975: 366 Mass. 858-59). Subdivision (b) was previously incorporated into criminal appellate procedure by Appeals Court and Supreme Judicial Court Rules 1:06(1) (1975: 3 Mass.App.Ct. 802; 366 Mass. 858), except that “record appendix” in the appellate rule was taken to mean “record” in the context of a criminal appeal. This provision, which states that certain risk-associated exhibits are not to be transmitted to the appellate court absent an order, is applicable in civil as well as criminal cases.

Subdivision (c) is amended by limiting the forty-day time for appellants’ assistance in assembly of the record to civil cases, and by requiring the appellant in a criminal case to forthwith perform any act reasonably necessary to enable the clerk to assemble the record. The provision for delivery to the clerk of the necessary parts of the transcript for inclusion in the record in civil cases is inapplicable to criminal cases since the clerk orders the transcript, makes and distributes the required copies to the parties and transmits the original and a copy to the appellate court, (Rule 8[b][2] ). The entire transcript is included unless the parties stipulate otherwise (Id.).

The requirement of subdivision (d) that the clerk of the lower court transmit two copies of the docket entries to the appellate court in a criminal case conforms to procedure under former Appeals Court and Supreme Judicial Court Rules 1:09 (1975: 3 Mass.App.Ct. 802; 366 Mass. 859). Subdivision (d) additionally provides that the original and one copy of the transcript (see Rule 8[b][2]) and a list of all the exhibits (see former Appeals Court and Supreme Judicial Court Rules 1:06[3], supra) shall be transmitted with the record.

(1973) Appellate Rule 9, changing federal practice (which requires transmission of the entire record in all cases, see F.R.A.P. 11) responds to the Massachusetts practice of not sending the actual original papers to the appellate court. The rule, however, recognizes that occasionally it may be essential for such papers to be transmitted, and thus requires the clerk to assemble all the original papers in a case, including a transcript if any, and hold them, subject to an order by the appellate court to transmit the record to that court. The appellant must take whatever action is necessary to assure assembly; failure to do so jeopardizes the appeal, see Appellate Rule 10(c).

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Updates: Amended May 15, 1979, effective July 1, 1979 Amended effective May 1, 1994
Amended June 26, 2002, effective September 3, 2002

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