Today is Reverse-the-Court-of-Appeals-Day at the MSSC, with everyone’s favorite intermediate court going 0-2 today on certiorari reviews. Our attention is drawn to Shumake v. Shumake, an alimony-arrearage case. An order by the chancery court wasn’t in the record (para. 8 n.1):
Although the November 2010 order is not part of the record in today’s case, Leslie attached a copy of the order as an exhibit to his appellate brief. It appears that the Court of Appeals considered this order as part of its analysis. Because this Court will not consider information outside of the record, the contents of this order will not be considered in today’s appeal. See Hardy v. Brock, 826 So. 2d 71, 76 (Miss. 2002) (“Mississippi appellate courts may not consider information that is outside of the record.”).
Folks: the MSSC is increasingly tight on this issue.It’s M.R.A.P. 10(e) or nothing nowadays:
(e) Correction or Modification of the Record. If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated in the record, the parties by stipulation, or the trial court, either before or after the record is transmitted to the Supreme Court or the Court of Appeals, or either appellate court on proper motion or of its own initiative, may order that the omission or misstatement be corrected, and, if necessary, that a supplemental record be filed. Such order shall state the date by which the correction or supplemental record must be filed and shall designate the party or parties who shall pay the cost thereof. Any document submitted to either appellate court for inclusion in the record must be certified by the clerk of the trial court. All other questions as to the form and content of the record shall be presented to the appropriate appellate court.
The Court may not be terribly happy that you’re supplementing the record after your Rule 10(b)(5) certificate that the record looked just dandy to you; but there are worse things that can happen, like the footnote quoted above. Tacking the missing portion onto your brief just won’t cut it these days. (And for heaven’s sakes, don’t put it in your record excerpts! One day, we predict, the Court is going to treat that as a misrepresentation that the document in question was in the record, and Cause will be ordered to be Shown.)
… Changing subjects, a sidenote: curiously, the MSSC cites the COA opinion by Westlaw pagination (“*4″ etc.). If anyone at the Court reads this blog, may we very, very, very respectfully submit: Please Don’t. Not everyone has Westlaw, and citing to the paragraphs of the slip op is accessible to everyone. That indeed is how we’ve typically seen the Court operate in the past, which is why this instance caught our attention.
… While we’re on “things lawyers should avoid,” Philip Thomas points out that you can’t get 6 extra pages in your 35-page limit by fiddling with line spacing … at least, not without your district judge’s noticing. Of course, federal judges can fuss at you even if you don’t break the rules. Y.t. noticed that the local rules didn’t specify a font size, a few years back, so we used 11.75-point TNR. The court evidently thought we were supposed to obey the unwritten rules. (Which we do, when they’re about playing nicely together, etc. However, we do not believe that the Ten Commandments were engraved in 12-point Times New Roman.)