Ordering transcripts - FRAP 10(b)(3)
Barry
is an appellant supposed to (or more importantly, expected to) order
every freaking transcript of every pre-trial status and settlement
conference? The magistrate ordered a transcript of the last
conference, before the Judge's summary judgment, so that's apparently
the important one and it's already available. I think the purpose of
FRAP 10(b)(3) is met without the other stuff. Creating a statement of
the issues that I'm sure is complete would be like 90% of the work I
have to do. I'd just have to slap on cites to the trial court briefs,
and that's my appellate brief, at least as I imagine it now. I guess
I'll give some thought to including the standard sections but I'd be
happy with a two paragraph brief.
Mike Jacobs
> To avoid having to file a statement of the issues per FRAP 10(b)(3),
> is an appellant supposed to (or more importantly, expected to) order
> every freaking transcript of every pre-trial status and settlement
> conference?
Good grief. You cannot expect strangers on MLM to give you advice on
how to craft an effective appeal in your (apparently) pro se attempt
to obtain a reversal of the trial court's decision. Whole books and
law school courses exist on that subject - I'm not even going to try
to begin, in a short Usenet post, to give you any actual advice on the
steps required. But you DO seem to be MIXING UP the need for a
"statement of the issues" which simply sets out the QUESTIONS you want
the appeals court to address, with an "agreed statement of facts"
which (if you can get your OPPONENT to agree to them) would TAKE THE
PLACE OF a complete transcript of the trial you are appealing from,
per FRAP 10(d).
Failing to reach such agreement, you _DO_ need to provide the appeals
court with "the record" containing whatever PART OF the trial court's
actions that you allege were legally in error. That record DOES NOT
have to include a transcript of EVERY court appearance, but it DOES
need to include EVERYTHING that could even POSSIBLY relate to the
issues you have presented. If it does not, the appeals court will
simply say that the "record is insufficient" to let them decide
whether what the trial judge did was wrong, and thus YOU WILL LOSE
your appeal (assuming you are the _appellant_, the one _challenging_
the result below).
FRAP 10(b)(3) simply says that UNLESS you provide the appeals court
with the ENTIRE record, you (the appellant) MUST provide a "statement
of issues" within 10 days. This statement of issues is what LIMITS
the scope of the questions the appellate court may address, and also
gives YOUR OPPONENT a guideline to see what OTHER sections of the
record THEY may feel are relevant to have those issues be fully
addressed by the appellate court. The opponent then has the right to
SUPPLEMENT whatever partial record you have provided, with OTHER
relevant parts of the record. Assuming, of course, you did not simply
agree with the opponent to present a "statement of agreed facts" per
10(d).
> The magistrate ordered a transcript of the last
> conference, before the Judge's summary judgment, so that's apparently
> the important one and it's already available.
I'm not going to try to parse the procedural history of your case from
these cryptic comments, and you haven't given us a clear enough
statement of what that history is, to allow any sensible comment on
your conclusion as to what is and what is not "the important
one[s]."
> I think the purpose of
> FRAP 10(b)(3) is met without the other stuff.
I think you totally mis-understand the purpose of FRAP 10(b)(3).
The purpose of FRAP 10(b)(3) is to GIVE YOUR OPPONENT NOTICE of the
scope of possible issues you will raise in your brief. If you
provide the ENTIRE record, including FULL transcripts of every court
appearance, you can raise ANY issue in your brief, and you DO NOT NEED
to comply with 10(b)(3) by filing a statement of issues BEFORE the
briefing begins (but you will STILL need to include a statement of
issues IN YOUR BRIEF, later). But if you only provide a PARTIAL
record/transcript, you must SET FORTH YOUR ISSUES early, so your
opponents can pick and choose OTHER portions of the record which THEY
want the appellate court to consider as well, in addressing those
issues; this prevents you the appellant from selectively cherry-
picking from the record only the parts that support YOUR view of
things.
> Creating a statement of
> the issues that I'm sure is complete
Here's why I think you're confusing "statement of the ISSUES" with a
"statement of FACTS" - the word "complete," as you are using it, would
only make sense if applied to the latter. A statement of issues IS,
by definition, complete even if it is incredibly narrow, because THAT
IS WHAT LIMITS AND DEFINES the scope of the questions you are ALLOWED
to raise on appeal. YOU CHOOSE what those issues are, by being the
appellant - the word "complete" makes no sense here, because YOUR
CHOICE _is_ YOUR CHOICE, whatever it happens to be. Even if you
_leave_out_ some issues that you _intended_ to raise, your "statement
of issues" is still "complete" because those are now the ONLY issues
you will be permitted to raise in your brief or argue at the oral
hearing.
A statement of issues goes something like this:
"1. Did the trial court err in ruling on [date] that [some ruling you
didn't agree with]?
2. Did the trial court err in ruling on [some _other_ date] that [some
_other_ ruling you didn't agree with]?
3. Did the trial court err in [yet some other way]?" and so on.
That is VERY DIFFERENT from a "statement of facts" which would set
forth what happened before/during the proceedings as shown by the
evidence/court papers filed at the trial level, and what judicial
rulings resulted. You will NEED TO DO THAT TOO, either as an
"AGREED statement of facts" per 10(d), or as YOUR OWN version for
inclusion in your appellate brief, after which the appellee will
submit HIS OWN version too, when he files HIS brief.
> would be like 90% of the work I have to do.
No it wouldn't. You're JUST GETTING STARTED. Good grief.
> I'd just have to slap on cites to the trial court briefs,
> and that's my appellate brief, at least as I imagine it now.
If so, I now imagine the appellate judges taking about two seconds to
look over your brief, then issuing a _per_curiam_ decision affirming
the trial court, without even bothering to give you a chance at oral
argument. What you "imagine" is NOT A BRIEF, at least not one that
has ANY chance to PERSUADE the appellate court to OVERTURN the trial
judge's rulings. They are NOT going to respond kindly to a brief
which does no more than act as a "cover letter" to the mass of
evidence / transcripts you will give them, and which just says,
"See? Here it is. The judge screwed up, right?" They are _not_
going to pick through that haystack to find your golden needle. YOU
HAVE TO POINT IT OUT FOR THEM, not only WHAT the trial judge did
wrong, but WHY you say it was wrong.
> I guess
> I'll give some thought to including the standard sections
!!!!!!!!!!
_Double_ good grief. 8*(
Yes, you had BETTER give some thought to including "the standard
sections" or else what you submit will be summarily laughed out of
court - it will not be a "brief" even if you pathetically choose to
call it that. YOU MUST INCLUDE LEGAL ARGUMENT (citing statutes and/
or precedent APPELLATE OPINIONS) showing the appellate court WHY you
think the trial judge was wrong, based on the FACTS you point out in
your statement of facts, per the ISSUES you set forth in your
statement of issues, all as SUPPORTED BY THE RECORD you (and your
opponent) submitted. Anything less has ZERO chance of appellate
success - you might as well not even waste your (and the court's, and
the opponent's) time on your fruitless quest. Or, LEARN HOW TO WRITE
AN ACTUAL BRIEF. Better get started learning NOW, since your
countdown clock is already ticking, apparently, and those briefing
deadlines come up much sooner than you think.
> but I'd be
> happy with a two paragraph brief.
Trust me, so would your opponent. He would be _ecstatic_ if you
submitted a useless, pathetic two-paragraph brief as appellant.
Why do you think crafting an appellate brief is so EASY that you could
throw it together in 2 paragraphs in a few minutes? If so, wouldn't
the attorneys who take cases to the Supreme Court be the LOW-LEVEL
guys just starting out, slapping together a couple of quick
paragraphs? Why do clients pay the big bucks to experienced counsel
to spend weeks doing legal research, and more weeks drafting and re-
drafting a persuasive brief, when they appeal a trial decision? This
truly amazes me, that you are so naive.
Good luck, sir. You will definitely need it.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Barry
> FRAP 10(b)(3) simply says that UNLESS you provide the appeals court
> with the ENTIRE record, you (the appellant) MUST provide a "statement
> of issues" within 10 days. � This statement of issues is what LIMITS
> the scope of the questions the appellate court may address, and also
> gives YOUR OPPONENT a guideline to see what OTHER sections of the
> record THEY may feel are relevant to have those issues be fully
> addressed by the appellate court.
Yes, and I didn't confuse it with a statement of facts. I was just
wondering about how literal FRAP 10(b)(3) is, for example, whether a
status conference in which the only thing discussed is correspondence
that's now on the record, would have to be transcribed from the tape
(in the absense of a statement of facts taking its place) if I want to
avoid creating a statement of issues. Are transcripts of every
proceeding before the judge, including pre-trial status and settlement
conferences, typically filed when an appellant wants to avoid filing a
statement of the issues?
> > I think the purpose of
> > FRAP 10(b)(3) is met without the other stuff.
>
> I think you totally mis-understand the purpose of FRAP 10(b)(3).
>
> The purpose of FRAP 10(b)(3) is to GIVE YOUR OPPONENT NOTICE of the
> scope of possible issues you will raise in your brief.
I know, but see 221 F.3d 693 (5th Cir. 2000):
"Consequently, the district court has an adequate record upon which to
decide the merits of the appeal, and the purpose of Rule 8006 has
therefore been satisfied despite Appellants' failure to strictly
adhere to its technical requirements. Furthermore, the record does not
indicate that Appellees' ability to respond to the appeal has been
impaired in any way. Appellees do not here contend that they were
prejudiced by the incomplete designation of record excerpts. Moreover,
because Appellants filed their brief and sufficient record excerpts in
support thereof, Appellees were placed on notice as to what issues
they would be required to defend, and have an adequate record on which
to defend them."
> > Creating a statement of
> > the issues that I'm sure is complete
>
> A statement of issues IS,
> by definition, complete....Even if you
> _leave_out_ some issues that you _intended_ to raise, your "statement
> of issues" is still "complete" because those are now the ONLY issues
> you will be permitted to raise in your brief or argue at the oral
> hearing.
Yes, but I call something incomplete when it's not enough to allow me
to raise what I want to raise. "Plaintiff, you're filings seem very
complete but you lose" isn't what I'm going for. I wouldn't want to
include things in the statement that my brief won't address and I
certainly don't want to leave anything important out. I'd need to get
a better idea of what an issue is (this isn't a question I'm posing to
this list), I'd have to look through my notes, and I'd have to decide
which is worth arguing after possibly doing more legal research,
without much time to do it. I don't want to, so I'm looking into the
transcript thing.
> > I'd just have to slap on cites to the trial court briefs,
> > and that's my appellate brief, at least as I imagine it now.
>
> They are NOT going to respond kindly to a brief
> which does no more than act as a "cover letter" to the mass of
> evidence / transcripts you will give them
I don't know that I need to give them such a mass. The record was
given to them by the trial court and my contribution to the joint
appendix may not be so large. I may ask for leave to file my brief "as
is" and make it really short, leaving out "required" sections.
Probably not though.
> YOU MUST INCLUDE LEGAL ARGUMENT (citing statutes and/
> or precedent APPELLATE OPINIONS) showing the appellate court WHY you
> think the trial judge was wrong, based on the FACTS you point out in
> your statement of facts, per the ISSUES you set forth in your
> statement of issues, all as SUPPORTED BY THE RECORD you (and your
> opponent) submitted.
"The place to win an appeal, as well as a verdict, in in the trial
court." Rbert H. Jackson, The Advocate: Guardian of Our Traditional
Liberties, 36 A.B.A. J. 607 (1950)
What if my brief (it's a FOIA case) said something like "[controlling
case] says agency must describe its search for documents [in this
way]. Judge cited agency's affidavit [cite] which describes a search
not meeting that standard. On the basis of that citation from the
affidavit, Judge ruled for defendant. Please reverse." Isn't it
possible that's enough?
> Why do clients pay the big bucks to experienced counsel
> to spend weeks doing legal research, and more weeks drafting and re-
> drafting a persuasive brief, when they appeal a trial decision?
I'd like to know how much time they REALLY spend on those things.
Mike Jacobs
> On Apr 11, 12:33 pm, Mike Jacobs <mjacobs...@gmail.com> wrote:
>
> > FRAP 10(b)(3) simply says that UNLESS you provide the appeals court
> > with the ENTIRE record, you (the appellant) MUST provide a "statement
> > of issues" within 10 days. This statement of issues is what LIMITS
> > the scope of the questions the appellate court may address, and also
> > gives YOUR OPPONENT a guideline to see what OTHER sections of the
> > record THEY may feel are relevant to have those issues be fully
> > addressed by the appellate court.
>
> Yes, and I didn't confuse it with a statement of facts. I was just
> wondering about how literal FRAP 10(b)(3) is, for example,
"The entire record" means, um, the _entire_ record.
So, yes, you would have to transcribe _everything_ if you choose _not_
to file an early statement of issues.
But isn't it so much easier just to file the statement of issues
within 10 days? You're going to have to prepare one _anyway_, to
include in your brief - you might as well get it done _now_. Then,
you will only have to prepare the _selected_ parts of the record that
you think relate to the issues you have raised. After which, your
opponents can submit any _additional_ parts of the record that _they_
think are relevant to those issues. That is how it is usually done.
> whether a
> status conference in which the only thing discussed is correspondence
> that's now on the record, would have to be transcribed from the tape
> (in the absense of a statement of facts taking its place) if I want to
> avoid creating a statement of issues.
You _can't_ avoid creating a statement of issues. All you can do is
procrastinate, but you _must_ include one in you brief. If you get
it done _now_, you don't have to copy the whole record.
If you were to compare the cost, time, and effort that would have to
go into preparing the WHOLE record, versus the minimal effort that
goes into preparing a statement of issues, I think you would see that
you are putting the cart before the horse. You are trying
desperately to find some other "escape clause" from the onerous task
of preparing the entire record, besides the easy one which is right in
front of your face - just submit a statement of issues to your
opponent within 10 days, and you do _not_ have to prepare the entire
record.
> Are transcripts of every
> proceeding before the judge, including pre-trial status and settlement
> conferences, typically filed
They are _not_ "typically" filed, because most appellate advocates
_do_ file an early statement of issues, thus avoiding that burdensome
job of copying the whole record.
But, if you do _not_ file your statement of issues on time, then yes,
you _do_ have to prepare the "entire" record. That means
_everything_. Think about it - how is the opponent supposed to know
what proceedings _he_ thinks are relevant to the issues you are going
to raise on appeal, if you don't file your statement of issues in time
for him to suggest additions to the selected record on appeal? He
would have no way of knowing what portions of the record to submit to
supplement your selections, with the risk that he could wind up
getting sandbagged.
> when an appellant wants to avoid filing a
> statement of the issues?
Your question shows how you misunderstand your situation. You
_cannot_ avoid filing a statement of issues. You're going to have to
file one eventually anyway, so you might as well do it now, and save
yourself a whole lot of cost and effort that would have to go into
preparing the _entire_ record.
> > > I think the purpose of
> > > FRAP 10(b)(3) is met without the other stuff.
>
> > I think you totally mis-understand the purpose of FRAP 10(b)(3).
>
> > The purpose of FRAP 10(b)(3) is to GIVE YOUR OPPONENT NOTICE of the
> > scope of possible issues you will raise in your brief.
>
> I know, but see 221 F.3d 693 (5th Cir. 2000):
>
> "Consequently, the district court has an adequate record upon which to
> decide the merits of the appeal, and the purpose of Rule 8006 has
> therefore been satisfied despite Appellants' failure to strictly
> adhere to its technical requirements. Furthermore, the record does not
> indicate that Appellees' ability to respond to the appeal has been
> impaired in any way. Appellees do not here contend that they were
> prejudiced by the incomplete designation of record excerpts. Moreover,
> because Appellants filed their brief and sufficient record excerpts in
> support thereof, Appellees were placed on notice as to what issues
> they would be required to defend, and have an adequate record on which
> to defend them."
That ruling allowed the appeal to proceed _in_spite_of_ failure to
strictly comply with the technical requirements, because the court
found that _in_that_particular_case_ the appellee was not prejudiced
by appellant's failure. That's _not_ the sort of thing you want to
rely on in the first instance - it's a last-ditch argument to make, to
save the appeal from dismissal, after you screw up. And, it only
works if your opponent is _not_, in fact, prejudiced by your failure
to comply with the rules.
> > > Creating a statement of
> > > the issues that I'm sure is complete
>
> > A statement of issues IS,
> > by definition, complete....Even if you
> > _leave_out_ some issues that you _intended_ to raise, your "statement
> > of issues" is still "complete" because those are now the ONLY issues
> > you will be permitted to raise in your brief or argue at the oral
> > hearing.
>
> Yes, but I call something incomplete when it's not enough to allow me
> to raise what I want to raise. "Plaintiff, you're filings seem very
> complete but you lose" isn't what I'm going for. I wouldn't want to
> include things in the statement that my brief won't address and I
> certainly don't want to leave anything important out.
You can leave issues out of your brief even if you included them in
your early statement of issues. But you cannot include any _new_
issues in your brief that you did not provide within 10 days, if you
did not copy the whole record, and if the court doesn't have mercy on
you for that screwup by finding that your particular opponent suffered
no real prejudice from your failure to give him early notice of the
issues you intend to raise.
> I'd need to get
> a better idea of what an issue is (this isn't a question I'm posing to
> this list),
Okay. Knowing what an issue is, is pretty central to _any_ kind of
legal proceeding. An "issue" is any question that you are asking to
be decided by a judge. And, an issue _on_appeal_ generally takes the
form, "Did the trial court err [in doing X]?" because that's the only
thing appeals are for - review of the actions of the trial judge.
Better start reading up on how to do this, fast.
> I'd have to look through my notes, and I'd have to decide
> which is worth arguing after possibly doing more legal research,
> without much time to do it. I don't want to, so I'm looking into the
> transcript thing.
You're going to have to do a lot of research, and prepare a statement
of issues, _anyway_. You might as well do it _now_ so you can avoid
"the transcript thing." What, you think it's going to get easier, or
that you will have more free time available to do it in, if you put it
off?
> > > I'd just have to slap on cites to the trial court briefs,
> > > and that's my appellate brief, at least as I imagine it now.
>
> > They are NOT going to respond kindly to a brief
> > which does no more than act as a "cover letter" to the mass of
> > evidence / transcripts you will give them
>
> I don't know that I need to give them such a mass.
No, you don't, if you file a timely statement of issues. Otherwise,
you need to transcribe and file the _entire_ record.
> The record was
> given to them by the trial court
Huh? I thought you were having trouble deciding _what_ to include in
your partial record on appeal. Now you make it sound like the
_entire_ record has already been filed. Which is it?
> and my contribution to the joint
> appendix may not be so large.
We haven't even _begun_ talking about a joint appendix. That is a
selected portion of the "record on appeal" (which itself may not be
the entire "record" below, if you filed your timely statement of
issues), and consists of the portions of the record that you feel are
_particularly_ relevant to the actual issues you raise in your brief.
> I may ask for leave to file my brief "as is"
I really have no idea what you mean by "as is" here. You don't
_have_ a brief drafted yet, do you? Do you mean you would submit
without any brief at all? Very Bad Idea. It sounds like you have
no concept of what goes into preparing a brief. Better start hitting
the books, particularly a good guide to brief writing.
> and make it really short, leaving out "required" sections.
Good grief. Something is "required" and yet you propose to leave it
out? You really like living dangerously, eh?
> Probably not though.
Good decision.
> > YOU MUST INCLUDE LEGAL ARGUMENT (citing statutes and/
> > or precedent APPELLATE OPINIONS) showing the appellate court WHY you
> > think the trial judge was wrong, based on the FACTS you point out in
> > your statement of facts, per the ISSUES you set forth in your
> > statement of issues, all as SUPPORTED BY THE RECORD you (and your
> > opponent) submitted.
>
> "The place to win an appeal, as well as a verdict, in in the trial
> court." Rbert H. Jackson, The Advocate: Guardian of Our Traditional
> Liberties, 36 A.B.A. J. 607 (1950)
Justice Jackson did not mean that _literally_. Yes, you have to
establish and preserve an appealable record while you are at the trial
level, but you _still_ need to properly follow appellate procedure to
present those issues to the appellate court.
> What if my brief (it's a FOIA case) said something like "[controlling
> case] says agency must describe its search for documents [in this
> way]. Judge cited agency's affidavit [cite] which describes a search
> not meeting that standard. On the basis of that citation from the
> affidavit, Judge ruled for defendant. Please reverse." Isn't it
> possible that's enough?
I feel fairly confident that the answer is "No." It's not enough.
Learn how to write a brief. It doesn't have to be super-long, but it
does have to be in the proper form, and include all the required
elements.
> > Why do clients pay the big bucks to experienced counsel
> > to spend weeks doing legal research, and more weeks drafting and re-
> > drafting a persuasive brief, when they appeal a trial decision?
>
> I'd like to know how much time they REALLY spend on those things.
Lots; trust me. Or, go ahead and do a slapdash job, and see how far
it gets you. Good luck,
Barry
> But isn't it so much easier just to file the statement of issues
> within 10 days? You're going to have to prepare one _anyway_... Then,
> you will only have to prepare the _selected_ parts of the record
In the Second Circuit "The record on appeal consists of all of the
lower court documents including transcripts. For counseled civil
appeals the Court of Appeals generally requests that only the index of
the record be filed; the documents that constitute the record remain
in the district court until needed."
The index has been filed.
They also say:
"In a case in which the appellant or petitioner is pro se, the
district court clerk or agency files the record on appeal, including
the transcript if required. Note that in an appeal from the district
court decision, if the case requires a transcript and IFP status is
not granted, the appellant must pay for the transcript."
IFP status was granted. Only one conference was transcribed. I claimed
that's all that's needed but I didn't file a statement of the issues.
It's not clear to me whether I could tell the district court to
transcribe the other conferences because I don't want to file a
statement of the issues. Maybe the district court decided that one
transcript is enough. I think I'm safe from having the appeal
dismissed, but the forms and various information provided by the court
confuses things and there's nothing about a waiver of transcript costs
on the Transcript Information form that I filled out (
http://www.ca2.uscourts.gov/clerk/Forms_and_instructions/pdf/Form%20D-Pro%20Se%20March%202010.pdf
).
Anyway, in the second circuit, appellants could generally set the
brief-due date for four months after receipt of the transcript. I
chose two and it was so ordered. I think the time it takes to develop
a good statement of the issues is about the same as the time it takes
to create the brief. I don't know how anyone else creates briefs, but
for me, there's organization of ideas from beginning to end and I
could discover, just as judges sometimes discover, that my theory on
an issue "doesn't write" at which time I may abandon it. Four months
seems way longer than I (or anyone) needs and 10 days (I think it's 14
in the 2nd Circuit) seems...possible but way unfair.
> ...how is the opponent supposed to know
> what proceedings _he_ thinks are relevant to the issues you are going
> to raise on appeal, if you don't file your statement of issues in time
> for him to suggest additions to the selected record on appeal? He
> would have no way of knowing what portions of the record to submit to
> supplement your selections, with the risk that he could wind up
> getting sandbagged.
Maybe the time the defendant needs to determine what other parts of
the record he needs should be part of (added to) his time to answer my
complaint and I should be allowed to submit my complaint and the
issues at the same time (with a partial transcript), taking the full
time allowed for the brief. Then if defendant says I didn't include
enough of the record, I may have wasted only my own time because of
the issue I briefed that may not be considered. I'm willing to take
that chance so I can have the extra time to form the issues.
> ...the court
> found...the appellee was not prejudiced
> by appellant's failure...it's a last-ditch argument to make...it only
> works if your opponent is _not_, in fact, prejudiced...
If defendant would be prejudiced, the fairest thing is to give me a
little time to add to the record. Second fairest is to dismiss THAT
PART of my appeal. If ALL issues relate to a missing part of the
record and the case is dismissed, that's cool too. I'm willing to take
those risks.
nos...@isp.com
appellant in the process of perfecting an appeal from the district
court's dismissal of his FOIA lawsuit, "Barry" further said/asked in
part on 12 Apr. 2010 in response to Mike Jacobs' basically correct
legal analysis and common sense suggestions re. the desirability of
timely complying fully with Fed. R.App.Proc. 10(b)(3) and (by
implication) all other related appeal perfecting requirements:
> [Assuming I get past the Rule 10(b)(3) and related threshhold
> requirements to appealing,] what if my brief . . . said something
> like "[controlling case] says agency must describe its search
> for documents [in this way]. Judge cited agency's affidavit
> [cite] which describes a search not meeting that standard. On
> the basis of that citation from the affidavit, Judge ruled for
> defendant. Please reverse."
Are you sure you really mean "on the basis of" and not "despite" or
"in the face of" or the like (i.e., that the district judge should not
have ruled for the agency "on the basis" of the affidavit in question
as the court nevertheless did because that affidavit admitted or,
fairly read, at least had the effect of admitting that the agency did
not conduct its search [in this way] notwithstanding [controlling
authority] that required it to have done so)?
> Isn't it possible that's enough?
This question indicates preliminarily that if a (the?) basic
contention of your appeal is that the agency's affidavit did not
comply with the law required standard, then your position in this
thread to the effect that you can't or don't want to articulate as an
issue presented for determination whether it was proper for the
district court to dismiss your lawsuit on the basis of that affidavit
would appear to approach and maybe exceed bad faith on your part.
Beyond this (and with whatever deference may be due to the, "Anything
'possible'!" rubric), among the considerations why there is not anyone
whose knowledge of your lawsuit is limited to what you have so far
said in this and in related m.l.m. postings who could reasonably
answer this question are the following:
You have not actually described the procedural steps that resulted in
the dismissal of your lawsuit yet what will/won't be persuasive on
appeal ordinarily is affected substantially the procedural history of
the judgment appealed from.
One interpretation of what you've said might be that you refer to a
grant of summary judgment based on the parties' respective affidavits
and documentary exhibits. However, your references in addition to
papers filed in the case to (not clearly described) proceedings before
the magistrate and (apparently) also the district judge of which a
record was made leave unclear whether there was/wasn't some sort of
evidentiary hearing or maybe even full plenary trial resulting in
findings of fact by magistrate which (directly or in effect) the
district court adopted by the district court itself based on testimony
or, to the extent that you have also referred to conferences, perhaps
based on admissions of fact by you or defendant tantamount to there
having been an evidentiary hearing and which the district court used
as a basis for the dismissal of your lawsuit.
It thus may be -- though one cannot tell either way only from your
postings -- that, even if the affidavit to which you refer was
otherwise (e.g., initially) significant (and insufficient in defense
of the agency), its insufficiency and the argument you summarize above
have been mooted by other facts in the record.
Nonetheless (and assuming despite your seeming acknowledgment that you
are and intend to remain in default of complying with Rule 10 that
there will not be a dismissal of your appeal without regard to its
merits for these or like reasons), assuming that your brief conforms
procedurally in other required material respects with the applicable
rules, even if, substantively, you are correct in your implied
certainty about what "[controlling authority]" requires including that
the affidavit to this you refer was not drafted "[in this way]" to be
deemed effective in describing the agency's record search, it is at
least possible that what you posit would be enough at least for a
remand, DEPENDING, HOWEVER, on the lawsuit specific answers to a
number of additional questions your postings raise by so far do not
answer and which include:
Is the or at least the primary issue your appeal presents
for determination that to which you refer above?
Even if you would contend that "Yes" is the answer to the
previous question, will the agency as respondent/appellee NOT have
demonstrated record facts (whether on the basis only of papers filed
or by way of its submitting transcripts of proceedings you have not
ordered or perhaps have not yet identified) and, in that connection,
principles of law by reason of which the appeals court should (or
maybe must) affirm EVEN IF you are otherwise correct in how you
characterize "[in this way]" and "[controlling authority]" re. that
affidavit (yet you ask whether what you posit "possibly" would be
"enough")?
The perhaps most puzzling element of your comments/questions in this
thread in addition to your so far not sufficiently justified defiance
of (usually comparatively very easy to comply with) Rule 10
requirements are that you evidently have not addressed why you have
not *already* consulted with your adversary to explore preparing a
joint appendix (which perhaps need not include any transcripts of any
conferences or other proceedings) or, for that matter, about appealing
on an agreed statement although (unlike what may not be adequate or
appropriate for many *other* kinds of federal court lawsuits) such
alternatives are not uncommonly suitable and so are used some FOIA
lawsuit appeals.
That is, what you have so far said and refrained from saying (though
your postings have included bickering about the type size of the
docket number on your brief cover!), might be a harbinger for
estimating that your apparent lack of PRACTICALITY, to which Mr.
Jacobs and others have (maybe in the circumstances: insufficiently)
called your attention, may be the most important element of your
postings, although, since it obvious that you are aware that you are
so far non-prevailing party, one might think that a focus on
practicality rather than indulgence in what appears to be a near
hyper-intellectualized/Prufrockian focus on technicalities ought be
No. 1 on your agenda.
Barry
> > ...Judge cited agency's affidavit
> > [cite] which describes a search not meeting that standard. On
> > the basis of that citation from the affidavit, Judge ruled for
> > defendant. Please reverse."
>
> Are you sure you really mean "on the basis of" and not "despite" or
I don't think it implies it's a PROPER legal basis.
> [it may be bad faith to not file a statement of issues in lieu of a complete transcript when an issue is known]
I think I wrote enough on that. Court and Defendant will see the
issue(s) in plenty of time to prevent any kind of harm.
> ...the affidavit['s] insufficiency and the argument you summarize above
> [may] have been mooted by other facts in the record.
In the district judge's view, maybe. There's more to it. I didn't ask
for as much help as some of the replies imply. We don't have to go
there.
> ...your postings have included bickering about the type size of the
> docket number on your brief cover!
108 point Times New Roman! And I apologize if my respect for the FRAP
offended anyone.
> ...a focus on
> practicality rather than indulgence in what appears to be a near
> hyper-intellectualized/Prufrockian focus on technicalities ought be
> No. 1 on your agenda.
The 1" letters, the TOO-early statement of issues, and the standard
brief sections when one paragraph works are technicalities and
annoyances in my case that I'd agree the court shouldn't make an issue
of. On this list, raising those issues is more benign.