What Does it Mean to “Settle” a Transcript?
As with most nomenclature in the legal profession, terminology can be misleading or often appear more confusing to the practitioner than need be. “Settling” the transcripts is one of these terms; “settling” a transcript is synonymous with “correcting” the transcript. Essentially, settling a transcript is predicated on the basis that the record on appeal must “contain all of the relevant papers that were before the Supreme Court, including the transcript, if any, of the proceedings.” Matison v. County of Nassau (2002) 290 AD2d 494, 495. An Appellant must provide the Court with the full transcript, otherwise the record on appeal may be deemed inadequate to enable the Court to reach a decision on the merits, and therefore require dismissal of the appeal. In order to settle the transcript, the Appellant must order and pay for a transcript of the minutes of the trial from the court reporter or transcribing service and make arrangements for the actual production of the transcript. This process is governed by Section 5525 of the CPLR. It is incumbent on the Appellant to be proactive and initiate the procedural steps required to finalize the transcript for the record on appeal.
The Content of the Record on Appeal Includes the Settled Transcript from the Trial Court
The Appellant is tasked with creating a compendium of all of the important documents from which the appeal is prosecuted. The required contents are set forth in CPLR 5526: “The record on appeal from a final judgment shall consist of the notice of appeal, the judgment-roll, the corrected transcript of the proceedings if a trial or hearing was held, any relevant exhibits, or copies of them, in the court of original instance, any other reviewable order, and any opinions in the case. The record on appeal from an interlocutory judgment or any order shall consist of the notice of appeal, the judgment or order appealed from, the transcript, if any, the papers and other exhibits upon which the judgment or order was founded and any opinions in the case.” [Emphasis added].
As set forth in the preceding code section, the corrected (remember, synonymous with “settled”) transcript of the trial proceedings are a necessary part of the record on appeal. In practice, this process is only necessary for transcripts of “proceedings” such as trials or hearings with sworn witnesses. Oral arguments on interlocutory appeals are not considered “proceedings” under this definition, and therefore transcripts of such arguments need not be settled.
Applicable Timelines (Remember the Magic Number “15”)
Pursuant to CPLR 5525 (a) the Appellant “shall serve upon the stenographic reporter a request for a transcript of the proceedings.” Within 15 days after receiving the transcript from the court reporter, or another source, “the appellant shall make any proposed amendments and serve them and a copy of the transcript upon the respondent.” CPLR 5525(c). In turn, the Respondent has 15 days after the service of the transcript to make any proposed amendments or objections to the proposed amendments of the Appellant, and subsequently the changes upon the Appellant. In practice, only the latter 15 day period is enforced. It is the rare case in which the Appellant is able to serve the transcript within 15 days of its receipt, due to delays in getting client permission to pursue the appeal or other strategic reasons for determining whether to incur the expense of starting the appellate process.
There are a few scenarios to consider as to how the record is settled when the parties disagree on the proposed changes, or when the Respondent does not make any changes:
If the parties do not agree to the amendments, at any time thereafter, and on at least 4 days’ notice to the adverse party, the transcript and the proposed amendments (and objections thereto) are submitted for settlement to the judge or referee before whom the proceedings were had. The original transcript shall then be corrected by the Appellant in accordance with the agreement of the parties or the direction of the court. This “correctness” is certified by the parties, judge, or referee before whom the proceedings were held. This process is strongly disfavored as a burden on the trial court and should be avoided if it is at all possible for the parties to settle the transcript without the trial court’s intervention.
Alternatively, if the Appellant has timely proposed the amendments and served them with a copy of the transcript on the Respondent, and the Respondent has not made any changes within the applicable timeframe, the transcript along with the Appellant’s proposed amendments are deemed correct without the necessity of a stipulation by the parties certifying its correctness and without the need of judge or referee certification. The Appellant shall then affix to the transcript an affirmation, certifying compliance within the applicable time limitations, service of notice, and Respondent’s failure to propose amendments or objections. As with any important court documents, the Appellant must serve on respondent the following: a copy of the transcript with proposed amendments, a notice of settlement containing reference to subdivision (c) of CPLR 5525, along with a note that if the Respondent fails to propose amendments/objections, the transcript is deemed settled pursuant to code.
For Efficiency’s Sake, Submit a Stipulation with the Copy of the Transcript to Preempt Disagreements & the Need for Judicial/Referee Intervention
When serving the transcript and the 15 day notice, it is best practice to include a cover letter along with a proposed stipulation to settle the transcript. The stipulation can reflect the terms of the agreement between the parties. A draft stipulation that can be modified depending on the changes by the respective parties can go a long way in streamlining the settlement process.
What If there Is No “Stenographic” Transcript?
In the rare occasion that there is no stenographic record of the proceedings, the Appellant has 10 days after taking the appeal to prepare and serve upon Respondent a statement of the proceedings from the best available sources, including recollection, for use in lieu of a transcript. The Respondent then has 10 days to submit the proposed changes/objections. The statement with objections/amendments is to be submitted to the judge or referee before whom the proceedings were held. This is referred to as the “statement in lieu of stenographic transcript.”
Always Cross-Reference Your Particular Appellate Division for Department Specific Rules
Of course, it is always critical to check local rules for whichever department of the Appellate Division has jurisdiction over your case to ensure there are no department specific rules that could affect the settlement of the transcript!
If you have any questions about any of the Appellate Division rules, please don’t hesitate to contact AppealTech at (212) 213-3222 or [email protected]
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