Transcript Contract and Documentation
Transcript Overview:
Appeals routinely require the parties to refer to testimonial evidence that was admitted or gathered during a trial tribunal proceeding, hearing, voir dire, or deposition. Per Appellate Rule 9(c), such testimonial evidence can usually be presented to the appellate court for review via either (1) a verbatim transcript or (2) a narrative statement.o In most instances, a verbatim transcript of the testimony, which has been prepared by a neutral transcriptionist, will be submitted to the applicable appellate court for review. The procedures for ordering and filing the transcript are set out in Rule 7.
o Under Rule 9(c)(1), the parties may alternatively elect to present a "narrative" of certain relevant testimony to the appellate court. Rather than a verbatim transcript, a narrative statement is a summary of the pertinent testimony or proceedings, which is placed directly in the record. The narrative statement (or "narrative option") might be selected if a verbatim transcript cannot be produced but such evidence is nevertheless necessary to the appeal.
When selecting the manner in which to present relevant evidence on appeal, Rule 9(c)(1) instructs the parties to "use the form or combination of forms best calculated under the circumstances to present the true sense of the required testimonial evidence concisely and at a minimum expense to the litigants." N.C. R. App. P. 9(c)(1). That being said, there are several instances when the narrative option may not be used. For example, when the issue on appeal "relates to the giving or omission of instructions to the jury, a transcript of the entire charge shall be included in the record on appeal." N.C. R. App. P. 9(a)(1)(f) (emphasis added). By convention, the appellate courts disfavor condensed transcripts (in which multiple pages are displayed on a single sheet of paper). Therefore, if certain testimony is only available in condensed format, consider converting it to a full-page format and entering a stipulation that the parties agree that the substituted transcript is authentic.Notes on Recent Amendments to the Transcript Rules:
On 17 November 2020, the Supreme Court of North Carolina amended the Rules governing the process for ordering and filing transcripts in both civil and criminal appeals, but the bulk of these amendments were made to Rule 7 -i.e., the Rules governing the process of ordering and filing transcripts related to a pending appeal. The amended Rules apply to all appeals noticed on or after 1 January 2021. See 17 November 2020 Order. In essence, the 17 November 2020 Amendments updated the transcript ordering and filing process as follows:o The Supreme Court introduced two standardized forms to streamline the transcript ordering process: the Appellate Division Transcript Contract form and the Appellate Division Transcript Documentation form. As discussed below, the use of these forms is mandatory in almost every appeal noticed on or after 1 January 2021. (Prior to the 17 November 2020 Amendments, there were no standard forms for the transcript contracts or documentation.)
o The party ordering the transcript(s) is no longer required to file a copy of the transcript contract with the trial court. (Prior to the 17 November 2020 Amendments, the parties were required to file a copy of the transcript contract with the clerk of the trial tribunal.)
o The appellant now files all transcripts with the applicable appellate court. (Prior to the 17 November 2020 Amendments, the court reporter(s) hired to prepare each transcript would file his or her assigned transcript(s) with the applicable appellate court.)
The Supreme Court amended the Rules again on 13 October 2021. See13 October2021 Order . However, the 13 October 2021 Order only revised one aspect of the new rules regarding transcripts, regarding the deadline when the appellant is required to e-file all transcripts with the applicable appellate court. When the November 2020 Amendments and the October 2021 Amendments are considered together, they dictate the following minor discrepancy regarding when the appellant e-files the applicable transcripts:o If the Notice of Appeal was filed in 2021, then the appellant is required to efile all transcripts with the applicable appellate court "[a]s soon as practicable after the appeal is docketed." See N.C. R. App. P. 7(f) of 17 November 2020 Order. Note, however, that Rule 7(f) has since been repealed by the October 2021 Amendments, and thus, this somewhat vague "[a]s soon as practicable" deadline only applies to matters appealed in 2021.
o If the Notice of Appeal was filed on or after 1 January 2022, then the appellant is required to e-file all transcripts with the applicable appellate court along with the rest of the Record on Appeal, i.e., "no later than 15 fifteen days after [the Record on Appeal] has been settled." See N.C. R. App. P. 9(a), (c)(3) and 12(a).
Notes on the Appellate Division Transcript Documentation Form:
Any party that wishes to have the appellate court review any trial court transcripts (e.g., hearing or deposition transcripts) in relation to the pending appeal "must complete an Appellate Division Transcript Documentation form." N.C. R. App. P. 7(b)(3) (emphasis added).o Only one completed Appellate Division Transcript Documentation form may be required per appeal, however. If the appellant's completed form lists all relevant transcripts, then appellee is not required to complete a separate Transcript Documentation form. In other words, appellee is only required to complete this form if appellee chooses to add any additional transcripts to appellant's Transcript Documentation form.
The Appellate Division Transcript Documentation form can be found on the North Carolina Judicial Branch's official website . However, practitioners are advised to periodically check the website for updates. Once completed, the Appellate Division Transcript Documentation form must be served on the other parties to the appeal within the time allowed under Rule 7(b)(2). See N.C. R. App. P. 7(b)(4).o For the appellant, this is 14 days after giving notice of appeal.
o For the appellee, this is 28 days after the appellant gives notice of appeal.
In addition to service of the Appellate Division Transcript Documentation form, any party serving Transcript Documentation also must serve, upon all parties to the appeal, a copy of all pre-appeal transcripts to be filed with the Appellate Division. Under the amended Rules, however, the ordering party is not also required to file the completed Appellate Division Transcript Documentation form with either the clerk of the trial tribunal or appellate court.Notes on the Appellate Division Transcript Contract Form:
Any party "who orders a transcript for the appeal after notice of appeal is filed or given must use an Appellate Division Transcript Contract form." N.C. R. App. P. 7(b)(1) (emphasis added). The only exceptions to Transcript Contract form requirement apply ifo (a) a party orders a transcript before the notice of appeal is filed, see N.C. R. App. P. 7(b)(1);
o (b) the matter arises under Rule 3.1, see N.C. R. App. P. 3.1(c); or
o (c) the matter involves an indigent party who is "entitled to be appointed appellate counsel," N.C. R. App. P. 7(c).
In other words, if a party already possess all of the trial court transcripts required for the pending appeal, then an Appellate Division Transcript Contract Form is not required. However, if either party still needs to order any relevant trial court transcripts (e.g., hearing or deposition transcripts) after the Notice of Appeal has been filed, then said party must complete and properly serve this requisite Transcript Contract form. The current version of the Appellate Division Transcript Contract form can be found on the North Carolina Judicial Branch's official website . However, practitioners are advised to periodically check the website for updates. The Appellate Division Transcript Contract form standardizes the process for contracting with the transcriptionist, as well as the terms of the contract. For example, among the form's standard conditions, the transcriptionist "agrees to deliver the transcript to the requestor and to each person or entity that the requestor has identified as a party to the appeal." The transcriptionist also "agrees that the requestor may reproduce the transcript, prepare derivative works from the transcript, distribute copies of the transcript, and display the transcript publicly." Unless the appeal arises under Rule 3.1 or involves an indigent party who is entitled to appellate counsel, the appellant must serve the completed Appellate Division Transcript Contract form on all parties to the appeal, as well as the transcriptionist, no later than 14 days after giving notice of appeal. N.C. R. App. P. 7(b)(2). The appellant thus must order any transcripts before this 14-day period expires. If the appellee orders any additional transcripts, the appellee must serve its own form 28 days after the appellant gives notice of appeal. Id.o Within the first six days after a Notice of Appeal is filed in a Rule 3.1 matter, the superior court clerk will coordinate with the court reporting manager of the Administrative Office of the Courts to assign a transcriptionist to the matter. See N.C. R. App. P. 3.1(c). Thereafter, the transcriptionist will automatically prepare the "the transcript of the entire proceedings at the State's expense if there is an order that establishes the indigency of the appellant." Id. In all other Rule 3.1 appeals, the appellate must enter into a contract with the assigned transcriptionist within 10 days after the transcriptionist has been assigned to the matter. See id.
o If "a party is indigent and entitled to be appointed appellate counsel," then the indigent party "is entitled to have the clerk of superior court order a transcript on that party's behalf." N.C. R. App. P. 7(c)(1). In such instances, the clerk of superior court "must use an appropriate appellate entries form to order a transcript," and must "serve the appellate entries on each party and on each transcriptionist no later than 14 days after a judge signs the form." N.C. R. App. P. 7(c)(2). These forms are also available on the North Carolina Judicial Branch's website. N.C. R. App. P. 7(c)(1).
Under the amended Rules, a party ordering a transcript does not need to file the transcript contract with the trial court. See N.C. R. App. P. 7(b)(1)-(2).o However, the appellant should include a copy of the transcript contract in the record on appeal. Rule 9 states that the record shall contain "all orders establishing time limits relative to the perfecting of the appeal." N.C. R. App. P. 9(a)(1)(i), (2)(h), (3)(h). Alternatively, the record may include a stipulation that the transcript contract was properly filed and served.
Notes on the Transcriptionist's Delivery of Any Ordered Transcripts:
After being served with the Appellate Division Transcript Contract form, the transcriptionist usually has 90 days to deliver the transcript. N.C. R. App. P. 7(e)(1).o However, this deadline varies, per newly amended Rule 7(e)(1), in the following three instances:
(1) the deadline is 180 days in death-penalty cases; (2) the deadline is 60 days in "an undisciplined or delinquent juvenile case under Subchapter II of Chapter 7B of the General Statutes" (i.e., N.C. Gen. Stat. §§ 7B-1500 through -2706); and (3) the deadline is also 60 days in "a special proceeding about the admission or discharge of clients under Article 5 of Chapter 122C of the General Statutes" (i.e., N.C. Gen. Stat. §§ 122C-201 through -366). N.C. R. App. P. 7(e)(1).o Additionally, in juvenile cases governed by Rule 3.1, the transcriptionist must deliver the transcript to each party within 40 days after receiving the assignment from the court reporting manager. N.C. R. App. P. 3.1(c).
When the transcriptionist delivers the transcript, the transcriptionist must "certify to the parties and to the clerk of superior court that the transcript has been delivered." N.C. R. App. P. 7(e)(2).Notes on Filing Transcripts with Appellate Court:
"Counsel must file documents [including transcripts] in the appellate courts electronically," via the "electronic-filing site for the appellate courts . . . located at https://www.ncappellatecourts.org. " N.C. R. App. P. 26(a). "A person who is not represented by counsel is encouraged to file items in the appellate court electronically but is not required to do so." Id. "[N]o later than 15 fifteen days after [the Record on Appeal] has been settled," the "appellant shall file the transcript pursuant to Rule 12 with the clerk of the appellate court in which the appeal has been docketed." See N.C. R. App. P. 9(a), (c)(3) and 12(a) (emphasis added).o Exception: In matters where the Notice of Appeal was filed within 2021, Rule 7(f) of the November 2020 Amendments applies and prescribes a slightly different deadline for when the appellant is required to e-file transcripts with the applicable appellate court. (Rule 7(f) has since been appealed by the October 2021 Amendments, and therefore, no longer applies to any appeals noticed on or after 1 January 2022.) In matters appealed in 2021, however, Rule 7(f) more broadly dictates that the appellant is required to e-file all relevant transcripts "[a]s soon as practicable after the appeal is docketed." See N.C. R. App. P. 7(f) of 17 November 2020 Order.