Appendix IV. OVERVIEW OF RULES

APPENDIX IV.

OVERVIEW OF ALABAMA RULES OF APPELLATE PROCEDURE

Scope of review. This overview does not contain a comprehensive

discussion of the new rules of appellate procedure. Rather, its purpose is to

highlight those features of the rules which represent a departure from former

practice.

The need for change. Professor Paul Carrington of the University of Michigan

School of Law, who served as consultant to the Advisory Committee, observed that

a significant percentage of recent Supreme Court decisions turned on questions of

appellate procedure and not on the merits. Dissatisfaction with the technical

requirements of the old system became virtually universal among members of the

bench and bar alike.

Other than the Judicial Article of the State Constitution and its anticipated

legislative implementation, perhaps no facet of judicial reform within our State has

been more anxiously awaited than the reform represented by these rules of

appellate procedure. Coupled with this sense of urgency, however, was the

determination of the Court to move deliberately and act responsibly in effecting this

long overdue reform in our judicial system.

The philosophy of the rules. The philosophical tone is set in Rule 1 which

states, “[The rules] shall be construed so as to assure the just, speedy, and

inexpensive determination of every appellate proceeding on its merits.”

This principle echoes throughout the rules: Procedural traps will not deprive

a litigant of his right to have a determination on the relative merits of the appeal.

Such a polestar does not diminish or compromise the professional standards to

which counsel should ascribe; indeed, any substandard performance may require

second effort on counsel’s part at additional expense and delay.

General considerations. The basic concepts embraced in the Advisory

Committee’s recommendations—in format and in overall purpose—have been

retained

e merits of the appeal.

Such a polestar does not diminish or compromise the professional standards to

which counsel should ascribe; indeed, any substandard performance may require

second effort on counsel’s part at additional expense and delay.

General considerations. The basic concepts embraced in the Advisory

Committee’s recommendations—in format and in overall purpose—have been

retained. The Committee’s plan for following the Federal Rules of Appellate

Procedure (FRAP), as to rule number and subject matter insofar as applicable, is

a good one; the numerical parallel, where applicable, has been preserved except

in two instances: (1) old Rule 45, and (2) old Rule 39. Because of the body of

precedents which have evolved around the “harmless error rule” (45) and the

“review by certiorari rule” (39), these rules have been retained under their old

numbers. Although Rule 39 has been broadened substantially, the concept of

review by certiorari rather than by direct appeal has been preserved, thus the case

law interpreting this rule is likewise preserved, where pertinent.

A concerted effort was made to preserve the objectives sought by the

Advisory Committee in the proposed rules and to keep changes to a minimum. As

adopted by the Court, the final product—subject to further changes from time to

time as experience dictates—is a giant step toward the desired goal: to strike a

reasonable balance between those procedures that will most efficiently serve the

appellate courts in the task of reviewing and determining issues on the merits and

those procedures which provide a reasonably simple method for the preparation

and presentation of those issues.

The time table. To Judge Aubrey Cates, Presiding Judge of the Court of

Criminal Appeals, goes the credit for suggesting the timetable system similar to the

English practice which provides time frames in multiples of seven days

of reviewing and determining issues on the merits and

those procedures which provide a reasonably simple method for the preparation

and presentation of those issues.

The time table. To Judge Aubrey Cates, Presiding Judge of the Court of

Criminal Appeals, goes the credit for suggesting the timetable system similar to the

English practice which provides time frames in multiples of seven days. The initial

reaction to the oddity of time periods running in weeks soon diminishes when the

obvious advantages are considered. Any given step in the appellate process which

is accomplished on a given day commences the running of the next succeeding

period which will end on that same day of the week. For example, if the judgment

or order ruling on the post-judgment motion is entered on a Wednesday, the notice

of appeal must be filed within 42 days (6 weeks), the last day of which also falls on

a Wednesday. No longer will the last day for any action required by these rules fall

on a weekend. The timetable scheme is consistent throughout the rules and all

actions regarding preparation and filing of various documents are within the same

time frame (multiples of seven), including the granting of extensions of time.

The notice of appeal. The only requirement which is jurisdictional under the

rules is the timely filing of the notice of appeal. Rules 3(a)(1) and 4(a)(1). No

provision is made for any extension of time for the filing of the notice of appeal, and

the time for filing has been shortened considerably from six months to 42 days (6

weeks). Form 1, Appendix 1, provides a simple statement of the notice of appeal.

Failure to file a notice of appeal within the prescribed time will result in an automatic

dismissal.

A notice of appeal is required in appeals from those interlocutory orders

enumerated in Rule 4(a)(1)(A), (B) and (C) and must be filed within 14 days (2

weeks) as provided in such rule.

Appeal by permission

weeks). Form 1, Appendix 1, provides a simple statement of the notice of appeal.

Failure to file a notice of appeal within the prescribed time will result in an automatic

dismissal.

A notice of appeal is required in appeals from those interlocutory orders

enumerated in Rule 4(a)(1)(A), (B) and (C) and must be filed within 14 days (2

weeks) as provided in such rule.

Appeal by permission. In civil cases, appealable to the Supreme Court, and

under limited circumstances, a party may request permission to appeal an

interlocutory order not otherwise appealable under Rule 4(a)(1)(A), (B) and (C).

Rule 5. In such cases, a notice of appeal is not required but the petition for

permission to appeal must be filed within 14 days (2 weeks) after the entry of the

order.

Costs—Security for costs, supersedeas bonds, and docket fee. Form 1 is

provided for appellant’s convenience in filing the appropriate security for costs

bond. Rule 7 effects only one change from former practice by permitting a cash

bond in lieu of a security for costs bond with the amount of the cash bond to be set

by the trial court. Rule 8(a) combines Sections 793, 794 and 795 of Title 7, with

certain changes. The amount of the supersedeas bond required is reduced from

200% of the judgment and costs to 150% of judgments not exceeding $10,000 and

125% of judgments exceeding $10,000. Execution of judgments for the payment

of money only is superseded automatically upon approval of the supersedeas bond

by the trial clerk. Other judgments still require the court’s approval and setting of

amount of bond for stay of execution. Rule 8(a) prescribes the procedure for

appellate review of motions for stay. Rule 12(a) requires appellant to post a $25

docket fee, which is in lieu of other appellate court costs, except when otherwise

ordered by the Court.

Designation of the trial court’s record. Invariably every record contains

materials irrelevant to the appeal

oval and setting of

amount of bond for stay of execution. Rule 8(a) prescribes the procedure for

appellate review of motions for stay. Rule 12(a) requires appellant to post a $25

docket fee, which is in lieu of other appellate court costs, except when otherwise

ordered by the Court.

Designation of the trial court’s record. Invariably every record contains

materials irrelevant to the appeal. Rule 10(a) sets out certain of these matters

which are not to be included in any record on appeal unless specifically designated.

Almost as surely, each record will contain other pleadings, orders, docket entries,

etc., unrelated to the issues presented for appellate determination.

This is the appellant’s first opportunity, by written designation to the trial

clerk, to “cull” the court file and have included in the record on appeal only those

documents and orders relevant to the appeal. The appellee is also expected to

exercise considered discretion in making additional designations. While the rules

allow 7 days (1 week) from the filing of the notice of appeal within which the

appellant may designate the record (with an additional 7 days for the appellee),

ordinarily this should be done by the appellant at the time of the filing of the notice

of appeal, and the suggested forms so provide. The 28-day (4-week) period

allowed for the preparation of the clerk’s record and the 56-day (8-week) period for

the preparation of the reporter’s transcript run from the filing of the notice of appeal.

Thus, each day taken by counsel in making their designations is subtracted from

the clerk’s and reporter’s “working” time.

With the exception of those items set out in Rule 10(a), the entire court record will

ordinarily be included in the record on appeal in criminal cases, as there is usually

no designation in criminal appeals. However, the appellant and his attorney, the

district attorney and the trial judge may agree that less than the entire record and

transcript will constitute the record on appeal

ng” time.

With the exception of those items set out in Rule 10(a), the entire court record will

ordinarily be included in the record on appeal in criminal cases, as there is usually

no designation in criminal appeals. However, the appellant and his attorney, the

district attorney and the trial judge may agree that less than the entire record and

transcript will constitute the record on appeal. Rule 10(c). If the appellant

designates less than the entire clerk’s record or reporter’s transcript, he must

inform the appellee of the issues the appellant intends to present for review.

Designation of the reporter’s transcript. The 7-day time frame within which

the appellant is due to designate the clerk’s record is the same one-week period

allowed for the appellant’s designation of the reporter’s transcript. But, here again,

ordinarily this designation should be done simultaneously with the filing of the

notice of appeal. Also, the value of this step in the appellate process can be

measured in direct proportion to the degree of thoughtful planning on the part of

counsel. For example, if the issue presented on appeal is the refusal by the trial

judge to give a requested written jury instruction on the law of agency in a personal

injury suit, and four hours of medical testimony was taken during the trial,

considerable expense and reporter’s time can be saved by omitting this testimony

by means of designating only that portion of the evidence relevant to the agency

issue. Admittedly, the ultimate refinement of this concept occurs in a subsequent

step—the deferred appendix—but immaterial matters of the more obvious nature

should be eliminated at this early step.

Trial Clerk’s Preparation of Clerk’s Record

expense and reporter’s time can be saved by omitting this testimony

by means of designating only that portion of the evidence relevant to the agency

issue. Admittedly, the ultimate refinement of this concept occurs in a subsequent

step—the deferred appendix—but immaterial matters of the more obvious nature

should be eliminated at this early step.

Trial Clerk’s Preparation of Clerk’s Record. In civil appeals, upon receipt of

the designations of the clerk’s record from the parties (or after 7 days from the date

of the appellant’s designation if no designation is received from the appellee), the

clerk will prepare the clerk’s record by:

1)

withdrawing from the court file the originals of the papers,

documents, exhibits, etc., as designated;

2)

removing or covering any original page numbers that may appear

thereon;

3)

photocopying the original of each designated item, one each in civil

cases unless additional copies are ordered by the parties;

4)

assembling the photocopied pages, prefaced by appropriate indices,

and numbering the pages serially, centered at the bottom of the page.

The 28-day (4-week) time frame within which the trial clerk is to complete

the clerk’s record runs from the date of filing the notice of appeal. The completed

clerk’s record is retained by the trial clerk and a certificate of completion is served

on the appellate clerk, with copies sent to each counsel (plus copies of the indices)

and to the court reporter with an indication of the last page number for the reporter’s

reference in preparing the transcript.

If no designation is received by the trial clerk from the appellant in a civil

appeal within the time allowed (7 days from the filing of the notice of appeal), and

in criminal appeals the trial clerk will prepare the entire clerk’s record minus those

items listed in Rule 10(a).

Court reporter’s preparation of the transcript

number for the reporter’s

reference in preparing the transcript.

If no designation is received by the trial clerk from the appellant in a civil

appeal within the time allowed (7 days from the filing of the notice of appeal), and

in criminal appeals the trial clerk will prepare the entire clerk’s record minus those

items listed in Rule 10(a).

Court reporter’s preparation of the transcript. Upon receipt of the

designation of the reporter’s transcript from the parties in civil appeals (or after 7

days from the date of the appellant’s designation if no designation is received from

the appellee), the reporter will transcribe the testimony, oral charge, etc.,

designated by the parties, numbering the pages serially, beginning with the next

succeeding numeral which appears on the trial clerk’s certificate of completion of

the clerk’s record, a copy of which is sent to the court reporter. The assembled

reporter’s transcript will be prefaced by an appropriate index and filed with the trial

clerk. A reporter’s certificate of completion, including thereon the last page number

of the reporter’s transcript, will be served on the appellate clerk and copies mailed

to each counsel. The 56 day (8-week) period allowed for the completion of the

designated transcript runs from the date of filing the notice of appeal.

In criminal appeals, the reporter prepares a transcript of the entire

proceeding within 56 days (8 weeks) and forwards a copy of it to the trail clerk for

preparation of the record on appeal.

Record on appeal. Upon receipt of the reporter’s transcript, the trial clerk

within 7 days will combine the clerk’s record and reporter’s transcript into volumes

of not more than 200 pages each, verify the correctness of the pagination to insure

that the page numbers appear in the center of the page at the bottom and run in

an uninterrupted numerical sequence, and bind by fastening at the top. This will

constitute the record on appeal

ter’s transcript, the trial clerk

within 7 days will combine the clerk’s record and reporter’s transcript into volumes

of not more than 200 pages each, verify the correctness of the pagination to insure

that the page numbers appear in the center of the page at the bottom and run in

an uninterrupted numerical sequence, and bind by fastening at the top. This will

constitute the record on appeal.

In civil cases, the trial clerk shall mail a certificate of completion to the

appellate clerk and shall retain the record on appeal for the use of the parties in

preparing their briefs and deferred appendices.

In criminal appeals, the court reporter has 56 days (8 weeks) from the filing

of the notice of appeal to prepare the entire transcript and forward it to the trial

clerk. The trial clerk has 7 days from the day of receipt of the transcript to assemble

the transcript, exhibits, and documents in his possession along with the trial record.

He then makes three photocopies of the completed record on appeal. He retains

one and forwards one copy each to the Attorney General and the attorney for the

appellant. The original of the record on appeal is forwarded to the clerk of the

appellate court. Rule 11(b).

Pleading error on appeal. The troublesome “assignment of error” is no

longer required. Rule 20. In its stead is substituted “Issues Presented.” This

procedural change in no way modifies the substantive rules of review, such as

preserving of record the error below and the issues presented should concisely

point to adverse ruling, etc. Rule 28.

In criminal appeals, the appellant should also apprise the appellate court of

error below by including a list of adverse rulings with the pages on which they

appear.

Briefs. While the requirement that counsel argue “assignments of error” has

been eliminated, cases in support of the issues presented must still be included

under such headings. As above, briefs in criminal appeals should also contain a

list of adverse rulings. Rule 28(a)(7)

prise the appellate court of

error below by including a list of adverse rulings with the pages on which they

appear.

Briefs. While the requirement that counsel argue “assignments of error” has

been eliminated, cases in support of the issues presented must still be included

under such headings. As above, briefs in criminal appeals should also contain a

list of adverse rulings. Rule 28(a)(7). See Form 23.

Oral argument requests shall appear on the last page of the brief, and the

words “ORAL ARGUMENT REQUESTED” shall also appear on the cover of the

brief. The color scheme provided for the appellant’s brief (blue), appellee’s brief

(red), and appellant’s reply brief (gray), and amicus curiae or intervenor’s brief

(green), should impose no undue burden on counsel, and will aid materially in the

administrative handling of briefs at the appellate level. The number of briefs to be

submitted to the court is determined by the number of judges on the appellate court

where the appeal is pending (9, 5, or 3).

Appendix. The rules provide for a delayed or deferred appendix at the option

of counsel. See Rule 30. One copy of the record on appeal has its obvious

disadvantage. A mandatory appendix would in certain cases work an undue

hardship on the parties. The Advisory Committee recommended an expensive

alternative which would have required one copy of the record on appeal for each

appellate judge. The optional deferred appendix is a reasonable compromise.

If the appellant “opts out” of the appendix system, he must order from the

trial clerk, or otherwise provide for, an additional copy of the designated record on

appeal for filing with the appellate clerk, at his own expense. This means that the

appellate court will have either an appendix for each brief filed (one for each judge),

or two copies of the record on appeal. Non-election of the deferred appendix by

the appellant will not prevent its use by the appellee

he

trial clerk, or otherwise provide for, an additional copy of the designated record on

appeal for filing with the appellate clerk, at his own expense. This means that the

appellate court will have either an appendix for each brief filed (one for each judge),

or two copies of the record on appeal. Non-election of the deferred appendix by

the appellant will not prevent its use by the appellee. The “opting out” party,

however, will not be allowed to make additions to the appendix.

This is counsel’s second and final opportunity to shape the record on appeal

to fit the “Issues Presented.” Counsel’s preparation of the appellant’s brief has

caused him by this time to examine with fine scrutiny the entire record on appeal.

He knows, for example, whether the motion to dismiss, the trial court’s overruling

of the motion for summary judgment, the testimony of an expert witness, etc., are

matters material to his “Issues Presented.” Can he now further reduce the

designated record so that each judge will have before him an abbreviated record

as part of his brief? If so, he can to this extent aid each judge in his effort to

understand the brief, particularly in its relationship to the record. Not all cases on

appeal will lend themselves to the appendix system, but experience indicates that

a vast majority of cases will. The easy way out (ordering an extra copy of the

record on appeal) will more frequently than not amount to substandard appellate

advocacy.

Two methods for compilation of the appendix are provided. Rule 30(e). The

single uninterrupted set of page numbers of the record on appeal allows counsel

to compile the appendix by photocopying and assembling the designated pages

from the record on appeal in numerical sequence without renumbering. Rule

30(e)(2). This means that this type appendix will not contain its own set of page

numbers serially affixed, but will bear the same number borne by that page in the

record on appeal

upted set of page numbers of the record on appeal allows counsel

to compile the appendix by photocopying and assembling the designated pages

from the record on appeal in numerical sequence without renumbering. Rule

30(e)(2). This means that this type appendix will not contain its own set of page

numbers serially affixed, but will bear the same number borne by that page in the

record on appeal. Counsel will refer in briefs to this single set of numbers without

the necessity of any prefix. In other words, the former method of, for example, (TR.

52), or (R. 8), is eliminated in favor of (52), (8), etc. The fact that gaps will occur in

the page numbers that appear in the appendix will be of no consequence since

references in the briefs will be to those page numbers that appear in the appendix.

For example, if counsel uses in the appendix pages 4 through 12, 22 through 60,

and 81 through 96, from the record on appeal, these pages will appear in this order,

omitting the pages between these numbers.

If the cross-reference to the record on appeal method is used in the

preparation of the appendix (Rule 30(e)(1)), the pagination of the appendix only

will be affected. An appropriate index or cross-reference table will be included in

the appendix. This in no way will affect the pagination of the record on appeal or

the respective duties of the trial clerk and court reporter in the preparation and

assemblage of the record.