What To Do on Appeal When a Trial or Hearing Transcript is Unavailable

In July 2009, the Colorado Court of Appeals for the first time ruled on what an appellant must show to gain a new trial based on a missing or inadequate transcript of the trial proceedings. In Knoll v. Allstate Fire and Casualty Ins., ___ P.3d ____, 2009 WL 2182592 (Colo.App.2009) the court applied a three part test announced and followed in several federal and foreign state cases, but never before applied in Colorado. The test requires an appellant to: 1) make a specific allegation of error; 2) show the defect in the record materially affects the appellate court’s ability to review the alleged error; and 3) show a C.R.E. 10(c) proceeding has failed or would fail to produce an adequate substitute for the evidence.

Rule 10 (c) tells an appellant what to do if no proceeding transcript is available. It provides that the appellant may prepare and serve a statement of the evidence or proceedings from the best available means, including his or her recollection. The appellee may then serve objections or proposed amendments.The trial court then settles and approves the matter, and the court clerk includes the resulting statement in the record on appeal.

The Kroll court clarified that, when the record cannot be so reconstructed, a new trial may be ordered “in the interest of substantial justice.” Citing Pierpoint v. Akin, 76 Colo. 478, 479, 232 P. 682, 682 (1925). The appellant must show that a proper reconstruction effort failed, making a new trial necessary. Otherwise, no error will appear and the case will be affirmed.

Post by Wesley B. Howard, Esq.