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The Unwritten Rules Regarding Appellate Transcripts

If you spend any time in the weird world of appellate law, you likely will have run into a transcript not being “accepted” by the Appellate Clerk’s office. I am almost always representing the appellant, so here’s what happens with some regularity. I will receive the notice signaling that the transcript is complete, and I will request a copy of the transcript. In the past when I have received a transcript that did not comply with the Appellate Clerk’s rules, I would simply prepare my brief with what I was provided and let the Appellate Clerk decide whether the transcript would be accepted.

That worked for a while, until this began happening. When I filed my initial appellate brief and sent the client a copy, I explained in my letter that the State would have 30 days to file a response brief. But if the transcript was not accepted by the Appellate Clerk, this usually delayed the State’s deadline for filing its brief while the court reporter corrected the transcript. Oftentimes my clients would express frustration over the delay (in one case, the delay lasted nearly six months), or they would express mistrust about the information I provided them, or they would grow concerned that the transcript would contain other, more significant errors. (Anyone who has worked with criminal defendants for some time has probably dealt with these concerns before).

If the problems with the transcript had to do with pagination, another problem arose. When the transcript was corrected, the citations in my appellate brief were all wrong. Thus, I would be left in a conundrum: do I leave the errors alone, which meant that the Court could not rely upon my citations? Or do I file an amended brief, which would again delay the State’s deadline for filing its brief?

Recently I began trying a different strategy. Now when I receive a transcript, I check it for compliance against a checklist I created from the “unwritten rules.” Yes, there are rules outlined in the Indiana Appellate Rules, but the Appellate Clerk interprets those rules. The Office of Judicial Administration has put together a helpful website full of resources and tutorials for court reporters to ensure a transcript is accepted, and those “unwritten rules” can be found there. Now if I discover that a transcript will likely not be accepted by the Appellate Clerk, I file a motion to compel correction of the transcript and a request to set a new due date for my brief. I attach the offending transcript volumes to my motion, so that the Court can decide if in fact they need corrected. This (hopefully) ensures that the citations in my brief will be correct and discourages my client from thinking that there is a conspiracy orchestrated by the State to ensure he loses on appeal. (Again, anyone who has worked in criminal law knows exactly what I’m talking about!)

If you’d like a copy of my checklist: Transcript Checklist

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