Supplement your record, Or Else

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.)

The University Greys at Gettysburg

100% casualties, but how many killed?

Of 393 men who participated in the attack on Cemetery Ridge on July 3 in the 11th Mississippi, 110 were killed or died of wounds, 193 were wounded, and 37 were captured.

Thus says this thread, anyway. I would like a citation but it sounds precise anyway. H/t.

… Freeland in comments:

By Gettysburg, the University Greys had 31 members, from the 136 who enlisted at the beginning of the War. On that day, 14 were killed and 17 wounded. Of the 17 wounded at least 13 were captured as POWs.

Stands to reason that the 11th Miss. would’ve already lost a lot of folks by June 1863.

Does your computer write your brief for you?

TBA has been feeling tempted to embrace the Jobs Side, and looking into the suitability of the Pages app for writing briefs.

In an online forum, a critical user writes:

It doesn’t do automatic preparation of authorities, topical indices, can’t prepare appendices, has several issues with ECF submissions, autoformatting and data detection support is laughable, does not always faithfully reproduce documents prepared in Word, can’t import to or from WordPerfect, is incompatible with all Bates stamping and autodocument workflow tools, and does not cooperate with the pleading paper templates for superior and federal district conventions.

Um, okay. I’ve used WordPerfect for all 15 years of my legal career, and I’ve used none of those features. I do my tables of contents and authorities manually. And I’m not even smart enough to get what he means by doing appendices automatically.

Gentle (legal) readers, what do YOU use to write briefs, and what automated features do you use to generate a brief?

The dead of September 11

What a horrible anniversary … 32,000 killed and wounded … the bloodiest battle of the 18th century … but far more died at Zenta, and who’s heard of it?

11,000 burned to death.

And then there’s the 120 dead at Mountain Meadows … and the slaughtered garrison of Drogheda. Perhaps the 5100 English dead at Stirling Bridge had it coming?

Also the birthday of the founder of the Cheka, the NKVD’s forerunner. And the first day of the liquidation of the Minsk ghetto by the Nazis.

Pretty much every day of the calendar is soaked in forgotten or ill-remembered blood. Perhaps it’s a good thing that we can forget so much suffering. 9/11/01 will seem as obscure as Malplaquet or Zenta one day. But it’s for our descendants to forget. We cannot.

Does the Fifth Circuit see your trial exhibits?

Judges Barksdale, Southwick, and Graves (in order of seniority) spoke Sept. 10 at the Manship Restaurant in Jackson (800 bottles at the bar, my friends .. we drank 3/5 of the way through the Glenmorangies alone) in one of those familiar yet useful “view from the bench” presentations. In the Q&A portion, Luther Munford had an excellent question (as one would expect): in this era of electronic trial-court records automatically filed with the court of appeals, what becomes of the trial exhibits?

I think that Judge Southwick spoke for the panel when he said, essentially, that (1) it depends but (2) often, when the appeals court wants to see your trial exhibits, it has to request them separately from the district court. They CANNOT be “presumed scanned.”

This means, of course, that it is of the utmost importance that, if there’s a trial exhibit you need the Fifth Circuit to definitely look at on appeal, you should mention it specifically in your brief … and, I would say, include it in your record excerpts as well. This probably goes for the rest of the record, even the clerk’s papers and transcript unproblematically transmitted. Don’t assume that, hey, they’re the Fifth Circuit, they’re conscientious, they’ll read the record. Quite possibly, some law clerk will; but will he or she know what’s supposed to stand out? Don’t (en) banc on it, friends.

It was an enjoyable presentation overall, and we would be remiss in omitting Judge Graves’s pithy response to a question about when decisions go en banc: “when I wrote them,” was his perspective.