RULE 10. THE RECORD ON APPEAL

(e) Form of Transcript. Each transcript must conform to the requirements of Rule 32, but carbon copies are permitted. In addition, the lines must be numbered on the left margin, and each page must contain not more than 28 nor fewer than 25 lines, with a margin on the left of not less than 1 inches. Each transcript must have a complete index stating therein where may be found the exhibits, accurately described, the examination of each of the witnesses, and the orders and proceedings of any trial court. Form of Transcript. Each transcript must conform to the requirements of Rule 32 except as otherwise provided in this rule. Lines must be numbered on the left margin, and each page may not contain more than 27 lines or less than 25 lines. The left margin may not be more than 1 3/4 inches wide, and the right margin may not be more than 3/8 inches wide. Each question and answer must begin on a new line, and an indentation for a new speaker or paragraph may not be more than 10 spaces from the left margin. Each volume must be indexed as to every witnesses and exhibit, and each page must be numbered consecutively. The accuracy of the transcript must be certified by the person preparing the transcript.

EXPLANATORY NOTE

Rule 10 was amended, effective 1978; March 1, 1986; January 1, 1995; ________________.

This rule abolishes the former concepts of the "judgment roll" and the "settled statement of the case." In the ordinary case, no formal approval of the transcript by the trial court or the parties is necessary.

Subdivisions (a), (f), (g) and (h) are derived from the federal rule.

Rule 10 was amended, effective January 1, 1995. The amendment allows a transcript to be prepared and certified from an electronic recording by someone other than the operator of recording equipment or court reporter.

Numerous changes to Rule 10 were made in 1978. Basically, the changes are intended to (1) specify the duties of counsel and reporters in the area of preparation of the transcript, and (2) shorten the time period between the filing of the notice of appeal and the filing of the transcript.

Subdivision (b) contains two notable changes from former practice. The first change codifies the former practice of requiring three copies of the transcript to be filed in the Supreme Court. The second change requires an order for a complete transcript unless all parties stipulate as to portions of the transcript which are not required. This eliminates problems of having numerous portions of the transcript ordered at different times with various completion deadlines. If a party unreasonably refuses to stipulate to exclude portions of the transcript unnecessary for the appeal, the party proposing the stipulation may obtain a court order requiring that party to pay for the unnecessary parts of the transcript and reasonable attorney's fees.

It should be noted that only the timely filing of the notice of appeal is required to invoke the jurisdiction of the Supreme Court. The bond in civil appeals (see Rule 7), and the docket fee (see Rule 12(a)) must be filed with the notice of appeal. These acts do not affect the validity of the appeal, but Rule 3(a) provides that failure of the appellant to take these steps is ground for "such action as the court deems appropriate, which may include dismissal of the appeal." Requiring these acts to be done at the time the notice of appeal is filed greatly reduces the number of time deadlines for which the attorney was responsible prior to the amendments.

Two significant changes from former practice are also found in subdivision (c). Subdivision (c) requires that the court reporter serve copies of the transcript on the parties designated in the order for transcript. The reporter then must file three copies of the transcript and proof of service of the other copies with the Clerk of the Supreme Court. The costs of service and filing incurred by the reporter must be paid by the appellant, or other party required by court order to pay these costs.

The final change in subdivision (c) is the elimination of the bargaining procedure between appellant and reporter. To avoid undue delays in the appellate process, the reporter, within 10 days after receipt of the order for transcript or an order of the trial court under subdivision (b), may demand advance payment for the estimated cost of the transcript. If the demand is not made within that period, advance payment is waived and the reporter will receive payment upon completion of the transcript.

Subdivision (c) was amended, effective January 1, 1995, to give court reporters 50 days to complete and file the transcript after the order for transcript is filed.

Subdivision (e) basically restates the pertinent provisions of 28-18-04, NDCC, which has been superseded. The last sentence was amended, effective March 1, 1986, to provide a mechanism for the certification of transcripts from courts utilizing an electronic court reporting system. See NDCC 27-07.1 15.

SOURCES: Procedure Committee Minutes of _____________; April 28-29, 1994, pages 3-4; January 27-28, 1994, page 18; September 23-24, 1993, pages 20-21; March 28-29, 1985, pages 13-14; November 29, 1984, pages 5-6; May 25-26, 1978, pages 7-8; March 16-17, 1978, pages 1, 2, 9-13; January 12-13, 1978, pages 14-15; October 27-28, 1977, pages 2-3; September 15-16, 1977, pages 5-8, 16-18; June 2-3, 1977, pages 2-4. Rule 10, F.R.App.P.

STATUTES AFFECTED:

SUPERSEDED: 28-18-04, 28-18-05, 28-18-06, 28-18-07, 28-18-08, 28-27-07, 28-27-33, 29-23-01, 29-23-02, 29-23-03, 29-23-04, 29-23-08, 29-23-09, NDCC.

CROSS REFERENCE: Rules 3 (Appeal as of Right--How Taken), 7 (Bond for Costs on Appeal in Civil Cases), 11 (Transmission and Filing of the Record), and 12 (Docketing the Appeal), NDRAppP.