The method of assembling the record for an appeal in Missouri state courts changed substantially on January 1, 2018. Tueth Keeney’s Jim Layton describes the change—and provides some hints.
Appellate News: A new approach to the Missouri “legal file”
Many lawyers looked past the Missouri Supreme Court’s June 30 order announcing a substantial revision of Rule 81.12, “Record on Appeal,” and a new Court Operating Rule 27.04. But starting January 1, 2018, those changes created a new—mandatory—approach to creating the documentary portion of the record on appeal, the “legal file.”
The justification for certified copies of documents disappeared when the official copy of each document in the circuit court record became the electronic one in the court file, and appellate judges, clerks, and attorneys gained immediate, direct access to it. So for more than two years, a task force of attorneys, clerks, and judges worked with the Office of State Court Administrator programmers to develop and implement a way to avoid copying and certification entirely, creating the legal file directly through the electronic filing system. The concept was officially approved with the promulgation of the June 30 Order. In late 2017 the system was tested in appeals by the Public Defender Service and the Office of the Attorney General. It became mandatory January 1, 2018.
Now, when an appeal is filed, a new hyperlink appears on the “docket entries” page in Case.net: “Click here to Create Legal File.” That leads first to a screen on which the attorney confirms the circuit case or cases from which the legal file will be drawn, and then to the legal file creation screen that contains the list of documents filed in the circuit court. The attorney marks on that list which documents will appear in the legal file, and the system creates the legal file from the marked documents.
But it isn’t the legal file we’ve been accustomed to. Rather, it consists of an index with hyperlinks to the documents in the circuit court file. The computer system numbers each document and each page in that document. The document and page numbers appear, along with the appeal docket number, on the legal file version created by the system. To see, download, or print that version, the attorney must retrieve it through the appellate case, not through the circuit court docket.
Because this system-generated legal file will not be paginated as a single document, the form of citation must change. Each citation must identify the document number and the page number in that document. Rule 84.04 gives that instruction, and gives as an example, “D6 p. 7”—page 7 of document 6 on the legal file index.
The rule regarding the content of the legal file did not change. It still must begin with a docket sheet—but the system creates and paginates that sheet as Document 1. The rule still instructs attorneys to include “all of the record … necessary to the determination of all questions to be presented.” And it still instructs attorneys to omit items that are too often included—perhaps because it was easier to just have the circuit clerk copy and certify everything than to identify what really is “necessary.”
Again, attorneys must now use the new approach. And pro se appellants? The new rule largely reproduces the old rule for the “appellant [who] cannot create a system-generated legal file.” If there is a party who lacks access to the electronic filing system, the attorney creating the legal file (or any supplemental legal file) will have to print out and copy and serve it on that party. Fortunately, there is a new multi-document download feature that can be used to save or print the entire legal file.
Judge Jeffrey W. Bates, who chaired the task force that developed the new approach and rules, and his colleague Judge Gary Lynch drafted a few tips for a December 2017 MoBar CLE program:
System-Generated Legal File Tips
- Check Case.net quickly after the notice of appeal is filed to seewhether there is anything the clerk must scan into the trial courtrecord before you select documents for the legal file.
- If you are not the attorney of record, you will need to file an entryof appearance in the trial court before you can see and select anyconfidential documents that need to be included in the legal file.
- Choose only the documents you need. If you missed something, it iseasy to file a supplemental legal file.
- Make sure the required items from Rule 81.12(b)(1)(C) are checked.
- Remember that the appellate document numbers are system-assigned andmay not follow an unbroken chronological sequence.
- If documents from more than one case are required for the appeal,make sure you have the correct case numbers to enter into the ELF system.
Questions about this change can be directed to Jim Layton, who heads Tueth Keeney’s appellate practice group. Jim was a member of the group that initiated the change, the Missouri Office of State Courts Administrator’s Efiling Rules Task Force.