The Shadow Cursor: Unappealing

by The Shadow

In compliance with the law of unintended consequences the Georgia legislature has raised the per-page price of preparing an appellate record from $1.50 to $10. (H.B. 1055.) Thus, the typical cost of a 2,000-page transcript of the trial court record has gone from $3,000 to $20,000 with the stroke of the Governor’s pen. See O.C.G.A. § 15-6-77(g)(12).

Needless to say, the average litigant who’s already blown quite a bit of “di-ne-ro” on his own “Ci-ce-ro” is now effectively excluded from access to the appellate courts due directly to the greed of the legislature.

This situation is best described with the unavoidable pun: “unappealing.” But, coming to the rescue (with the assistance of appellate guru Chris McFadden, who proposed the new rules described below) are the Georgia Supreme Court and the Court of Appeals. They have crafted stopgap measures that provide for the creation of an alternative “party-created” record appendices – also known as the “Record Appendix Procedure.”

Amending its own Rules 67 and 69 the Supreme Court now permits litigants to collaborate to prepare and certify an appellate record. (In its own Rule 17, the Court of Appeals incorporates the Supreme Court methodology by reference.) The new procedure for preparing an appellate record under the Record Appendix Procedure should be carefully studied because it does present subtle tricks and traps.

Here is a broad outline.

First, the appellant should file the standard notice of appeal, and advise the clerk of court to “omit from the record on appeal everything except this notice of appeal.” The appellant must still pay $10 per page for the notice of appeal, as well as a $35 per transcript charge for filing a transcript. O.C.G.A § 15-6-77 (g) (12).

Second, the appellant should create a designation of parts of the record to be included in the Record Appendix and serve all opposing counsel with same. Opposing counsel (appellee) will have 15 days to file a “designation of additional parts.”

The third step involves transmittal – i.e., filing – of the Appendix with the appropriate appellate clerk within five days after the transcript is filed with the trial-court clerk. But, if a transcript is not filed, then the Appendix must be filed within 30 days after the filing of the notice of appeal.

Another important rule to review in preparing the Appendix is Supreme Court Rule 69, which mandates preparation of an index of the record being transmitted. The index will reference the pages of each document by Bates-number range. (The attorney preparing the index must Bates-stamp the entire Appendix.)

There’s no telling how much money was lost to counties’ general funds by the legislature’s attempt to raise the costs of an appeal by nearly seven-fold.

However, in light of the cost savings presented by a homemade appellate record the stop-gap measure created by the appellate courts appears to represent an early holiday present of sorts for Georgia litigants.

Such is the law of unintended consequences.