Unlike in the trial court, where the parties build the record as they see fit to support their positions, appellate review is confined to the record developed in the trial court. Absent extraordinary circumstances, parties may not add materials to the record that were not filed in the trial court or not put before the trial-court judge. Because appellate courts have no independent knowledge of the cases brought before them, a record of the proceedings below must be prepared and presented to the appellate court.
So just what is the “record” on appeal? The record generally consists of (1) clerk’s papers, (2) hearing transcripts, and (3) exhibits. The clerk’s papers are the trial court pleadings, such as the complaint, the answer, any dispositive motions (e.g., summary judgment), written orders or rulings, jury instructions, written opinions, a final judgment, and the notice of appeal. Prudent attorneys will designate only those portions of the record necessary to review the issues on appeal. Thus, before the record is ordered, the appellant should decide which issues will govern the appeal.
The record must be complete and accurate. Material that was not filed with the trial court, admitted into evidence, or otherwise considered by the trial court is not part of the record on appeal. Should any such material be designated as part of the record on appeal, the other party should file a motion to strike that material from the record.
An inadequate record risks jeopardizing consideration of the appeal on the merits. Washington decisions abound where the appellate court refused to consider parts of the trial-court record cited in the briefs that were not properly designated on appeal. The appellant bears the burden of creating a record adequate for review of the issues presented. Conversely, the respondent bears the burden of designating those portions of the record that support the trial court’s decision.
While the appellate court may order supplementation of the record, it need not do so, and often times, the court will decline to consider an issue with an inadequate record. (Note: A party may supplement the record up until the filing of that party’s last brief. Once a party has filed its last brief, that party may supplement the record only by order of the appellate court.)
New Evidence on Review. New evidence is rarely considered by the appellate court. An appellate court will allow a party to submit new evidence on appeal when six conditions are met: (1) additional proof of facts is needed to fairly resolve the issues on review; (2) the additional evidence would probably change the decision being reviewed; (3) it is equitable to excuse a party’s failure to present the evidence to the trial court; (4) the remedy available to a party through post-judgment motions in the trial court is inadequate or unnecessarily expensive; (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive; and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court. All six factors must be met before an appellate court will even consider new evidence on appeal.