Off the Record
Every good appellate lawyer knows that an appeal is constrained by the record formed below. This “duty of faithfulness to the record is paramount, superseding even loyalty to the appellate client.”1 Because of the importance of this settled precept of appellate law, the lawyer who strays outside the record on appeal inevitably loses credibility with the appellate court. Egregious cases may result in sanctions.2 In one court’s words, “[t]hat an appellate court may not consider matters outside the record is so elemental there is no excuse for an attorney to attempt to bring such matters before the court.”3
The purpose of this article is not to address or question the soundness of this “elemental” rule. Rather, we address four discrete, not-so-“elemental” issues with respect to using nonrecord facts on appeal. These issues exist at the edges of the “elemental” rule and present challenges for the appellate practitioner in determining the scope and application of the general rule.
Supplementing the Record with Nonrecord Facts
As a general rule, an appellate rule allowing a party to supply omitted parts of an incomplete record “is not intended to cure inadequacies resulting from a party’s failure to make a record during the proceedings.”4 Rather, it is intended to allow the record to be supplemented with matters actually before the trial court, but that were not formally filed or included in the record itself.5 But, like all general rules, there are exceptions. Certainly, nonrecord facts that moot an appeal can and should be brought to the court’s attention. But even nonrecord facts directed to the merits of the appeal can sometimes be brought properly to the appellate court’s attention.
The Seventh and Ninth circuits, citing the U. S. Supreme Court, allow a plaintiff appealing the dismissal of its complaint to provide the appellate court with nonrecord evidence that serves to explain how the plaintiff might prove the dismissed claim if allowed to go forward.6 In one such case, Judge Posner wryly acknowledged that the defendant was undoubtedly “howling with rage” while reading the court’s recitation of those nonrecord facts in reversing the dismissal of the case. In Florida, we would have not only “howled with rage,” we would have argued those facts should have been brought to the attention of the trial judge below through a timely request to amend to reflect such facts.
Florida does look to nonrecord facts on some specific appellate issues. In Brim v. State, 695 So. 2d 268, 274 (Fla. 1997), the Florida Supreme Court conducted a Frye review of DNA evidence, consulting scientific materials that were not in the trial record. It observed that to do otherwise would preclude an appellate court from determining “whether there was general acceptance within the relevant scientific community.”7 In doing so, the court cited the observation of Chief Justice McMorrow of the Supreme Court of Illinois that “the general acceptance issue transcends any particular dispute” because the court is being asked to “‘establish the law of the jurisdiction for future cases.’”8 On remand in Brim, the Second District Court of Appeal stated the parties would be allowed to “supplement the record with updated scientific literature, but only for the purpose of measuring levels of acceptance or disagreement within the relevant scientific community,” while expressing concern about intermediate appellate courts consulting materials outside the record.9
Beyond these narrow circumstances, some appellate courts have declared their “inherent equitable power to supplement the record with information not reviewed by the [trial] court,” although “[s]uch authority is rarely exercised.”10 Indeed, the 11th Circuit has exercised such authority even after it has rendered its decision, although at that late stage it “would require the clearest showing of just need to warrant the supplementation.”11
Exercising this “inherent” power, courts have allowed the appellate record to be supplemented with matters not before the trial court in a variety of circumstances.12 In one case, rather than supplementing the appellate record and proceeding to rule on that basis, the appellate court remanded to the trial court the issue of whether the habeas petitioner claiming discrimination in the formation of juries could supplement the record with supporting affidavits setting forth the requisite statistical information.13
Courts have variously described the standard as whether acceptance of the proffered material into the appellate record “would establish beyond any doubt the proper resolution of pending issues” and as whether it “would aid in making an informed decision” even if it “will not conclusively resolve an issue on appeal.”14 Not surprisingly, the decision in any case appears ultimately to depend on whether the appellate court thinks it is the right thing to do.
These and other appellate decisions show that one should not assume that important facts that did not make their way into the record below can never be brought to the attention of the appellate court through a motion to supplement the record with nonrecord facts. It goes without saying that it needs to be disclosed that the facts were not before the trial court. The attorney should give a reasoned explanation as to why these facts nonetheless should be considered by the appellate court.
When the Court Itself Goes Outside the Record
Yes, Virginia, appellate judges are human. They are often curious about matters not disclosed in the record. Sometimes they have discovered extra-record facts by themselves through the Internet.15 Such cases highlight the wide variety of information readily available through a simple search, often establishing matters beyond dispute. For example, a secretary of state’s Web site can definitively establish the state of incorporation of a party. A defendant’s Web site may conclusively establish its advertising of a product whose sale is sought to be enjoined.
Other Internet sites are not so official. The Fourth District recently relied on Wikipedia.com for a definition of ethnicity.16 Wikipedia.com is a collaborative effort on the Internet that, as of this writing, anyone can edit or supplement.17 As such, it certainly does not carry the same weight as an official governmental Web site or even the Web site of a party to the case. Nonetheless, The New York Times reports that “more than 100 judicial rulings have relied on Wikipedia, beginning in 2004, including 13 from circuit courts of appeal.”18 Although often used for tangential references,19 it has been used to define the Jewish marriage ceremony, to declare that French is the official language of the Republic of Guinea, and to note the Department of Homeland Security’s threat levels in a case involving magnetometer searches of antiwar protesters.20
Courts may properly consider official government Internet sites as official governmental publications and, therefore, the proper subject of judicial notice.21 But should Internet facts or other such facts be brought first to the attention of the trial court through a request for judicial notice, or can the appellate court itself simply take judicial notice of such facts? Can the Internet site simply be cited, much like a treatise might be cited? Is a request by a party to supplement the record required?
The California Supreme Court reversed a criminal conviction, citing various magazine and newspaper articles on stun guns.22 The dissent complained of the court’s “embarrassing Google.com search for information outside the record,” rather than waiting “for a case that raised these questions on an adequate record.”23 In another case, a magistrate judge, using the same popular Internet search Web site, Google, researched whether a potential juror’s name was Hispanic in an effort to see if the prosecutor had unlawfully excluded Hispanic jurors using peremptory challenges.24
In a New York case, the trial court refused to dismiss a case for lack of jurisdiction after having garnered facts from governmental and private Web sites (including the defendant’s), which showed the defendant did business in the state. The trial court forcefully defended its reliance on Internet information.25 In reversing, the appellate court concluded the trial court improperly made findings of fact “based not upon the submissions of counsel but rather upon its own Internet research.”26 The dissenting judge asserted that the Web site of the New York State Department of Insurance was properly relied on, likening it to taking judicial notice of public records.27
If the court itself does an Internet search (or other extra-record investigation), shouldn’t the court give the parties notice and an opportunity to comment? Or is it enough for the court to recite that the nonrecord facts were not actually relied upon in resolving the appeal? How does the aggrieved party make a record for further proceedings? With the increasing access of courts to nonrecord facts, questions such as these will occur increasingly.28
In one recent case, the 11th Circuit reversed a final order of the Board of Immigration Appeals adopting the immigration judge’s recommendation.29 The immigration judge made his credibility determinations based on his personal knowledge of Falun Gong. The court did not determine that the immigration judge’s personal knowledge was incorrect, but instead relied on the record itself:
Although many of the reasons given by the [i]mmigration [j]udge for his disbelief that Zheng was a true practitioner of Falun Gong were specific and cogent, none of them was based on the Falun Gong materials in the record or supported thereby. Because our review is limited to that record, we are thus compelled to reverse the adverse credibility determination.
This is a compelling example of the intersection of faith to the record on the one hand and reliance upon a trial judge’s experiences in making credibility determinations on the other.
Sometimes the judges do not do their own research, but they say at oral argument “I know this isn’t in the record, but can you tell me. . . ?” How does a professional appellate lawyer respond, given that the judge has asked the question despite admittedly knowing the answer is not in the record? One response is to repeat that the answer requires you to go outside the record, which you believe you should not do. The authors submit that is the only proper response if the nonrecord facts are in any way disputed or unclear. If the answer rests on an incontestable fact — the plaintiff has now terminated his or her employment with the defendant or the defendant is dead — it may be appropriate to say “I can answer that, if opposing counsel does not object,” and wait for the court or opposing counsel to respond. In no event should the question be answered unless it is clear the panel wishes you do so. Likewise, if your opposing counsel received such a question and did not answer, you obviously should not volunteer the nonrecord information without first getting permission from the court to do so.
Sometimes a court’s strict insistence on ignoring nonrecord facts, despite their bearing on the appeal, becomes ludicrous. In one case, the question whether the defendant was still incarcerated in prison was highly relevant to the resolution of the appeal. Despite the fact the defendant was sitting in the audience with his wife, the court refused to hear that incontestable fact.
On the other hand, our firm won a reversal once when opposing counsel repeatedly refused to answer the court’s inquiries of him as to whether his client was now deceased. Counsel’s insistence that this fact was not in the record was met with visible disgust, and the judge pressed, “Well, is he dead or not?” The judgment was reversed in order to resolve this “factual issue.”30 Common sense usually will tell you when you should proceed to answer a judge’s question about nonrecord facts.
Use of Nonrecord Facts by Amicus Curiae
Can nonrecord facts be snuck into the record through an amicus brief? Not surprisingly, it depends. It obviously is not proper for amici to attempt to bolster the record by adding nonrecord evidence regarding the specific dispute at issue that was not before the trial court. But it is entirely proper for amici to provide nonrecord facts that broadly and generally address the issues in the case.31 As one author has put it, nonrecord facts presented by amici “should not relate to the facts of the particular case as between the parties, but should resemble the ‘legislative’ facts having relevance to legal reasoning and the law-making process.”32
The sociological studies presented to the U.S. Supreme Court in Brown v. Board of Education, 349 U.S. 294 (1955), constitute perhaps the most remarkable instance of this. But, as Judge Mary Schroeder of the U.S. Court of Appeals for the Ninth Circuit has noted, the Supreme Court subsequently has relied on social science and empirical data in various types of cases, including Roe v. Wade, Lee v. Weisman, and death penalty cases.33 Indeed, precluding amicus from referring to any nonrecord materials would preclude amicus from ever filing a “Brandeis brief,”34 whose “main contribution. . . [is] to make extra-legal data readily available to the court.”35
At the same time, amicus briefs unfortunately have increasingly strayed from their avowed function of serving as a “friend of the court.” All too often, they are now highly partisan advocates for a particular party’s position.36 This, in turn, can create problems for the court in confirming the accuracy and reliability of nonrecord facts advanced by amicus.
Amici who wish their nonrecord facts to be taken seriously by the court should take steps to demonstrate their reliability in much the same way that they would for record facts. For example, has a statistical study been published? Has it been peer reviewed? Has the author been recognized as an expert? Has the study been allowed in evidence in other cases?
the same token, a party should challenge nonrecord facts in much the same way. Has the study been rejected as “junk science” by other courts? Was the study prepared at the behest of a party or the affected industry? As much as motions to strike are disfavored by appellate courts, it may be necessary to seek to have unreliable, nonrecord facts stricken.
Courts will need, in all events, to view with caution, and even skepticism, nonrecord facts that have not been tested in the crucible of an adversary trial. That is especially the case with sophisticated, cutting-edge scientific and medical issues, such as neuroscience advances in our understanding of the brain.37
Ethical Consideration About Use of Nonrecord Facts
We started with the “elemental” rule that an attorney should not attempt to bring nonrecord facts to the appellate court’s attention. But the question must be asked whether it is ethical to conceal material, but nonrecord, facts from the appellate court? And can you ethically make an argument on appeal that you know is contrary to undisputed, but nonrecord, facts?
Courts may not be amused if they later learn that material facts have been concealed from them. The question remains, however, whether a party is entitled to present argument to the appellate court based on the actual record facts, even though they are known to be untrue or misleading. Does that party have to disregard the other side’s failure to make material facts a matter of record, bearing in mind the “elemental” rule that nonrecord facts are not to be presented to the appellate court?
There is no bright-line rule for issues such as this. Perhaps the best rule is the Golden Rule: If you were a judge, would you be shocked if you knew the true, nonrecord facts that were concealed from you? Always present this type of issue to someone not vested in the appeal itself to get an independent, unbiased view. That certainly is how the court will view it.
Conclusion
We have only begun to touch on issues created by nonrecord facts. The “elemental” rule has many nuances, and counsel must always bear in mind that the ultimate goal of the appellate court is to reach the right result. Sometimes nonrecord facts are essential to achieve that goal.
1 Evan J. Langbein, “The Record, Counsel, Just the Record” – A Matter of Professionalism, IX (3) The Record at 7 (2001).
2 Thornber v. City of Fort Walton Beach, 534 So. 2d 754, 755 (Fla. 1st D.C.A. 1988) (publicly reprimanding lawyer who sought to “amend” record to include matters not before the trial court, citing Altchiler v. State of Fla. Dep’t of Prof’l Regulation, 442 So. 2d 349 (Fla. 1st D.C.A. 1983)).
3 Thornber, 534 So. 2d at 755; Rampart Life Assoc., Inc. v. Turkish, 730 So. 2d 384, 385 (Fla. 4th D.C.A. 1999) (imposing sanction where lawyer referred in appellate brief to deposition taken after appeal filed).
4 Times Publ’g Co. Inc., v. St. Petersburg, 558 So. 2d 487, 492 (Fla. 2d D.C.A. 1990).
5 See, e.g., Ross v. Kemp, 785 F.2d 1467, 1471 (11th Cir. 1986).
6 Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); Orion Tire Corp. v. Goodyear Tire & Rubber Co., Inc., 268 F.3d 1133, 1137-38 (9th Cir. 2001); Dawson v. General Motors Corp., 977 F.2d 369 (7th Cir. 1992); Orthmann v. Apple River Campground, Inc., 757 F.2d 909 (7th Cir. 1985).
7 Brim, 695 So. 2d 268, 274 (Fla. 1997).
8 Id. (quoting People v. Miller, 670 N.E.2d 721, 739 (Ill. 1996) (McMorrow, J., specially concurring)).
9 Brim v. State, 779 So. 2d 427, 436 (Fla. 2d D.C.A. 2000).
10 Shahar v. Bowers, 120 F.3d 211, 212 (11th Cir. 1997) (en banc) (refusing to supplement the record) (internal quotation omitted).
11 Id.
12 See, e.g., Schwartz v. Million Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) (allowing supplementation to include clearer copies of relevant medical records, where the additional records provided appellate court “with a better understanding of the information [the lawyers] possessed at the time these cases were pending”); CSX Transp., Inc. v. City of Garden City, 235 F.3d 1325 (11th Cir. 2000) (allowing supplementation to show city had insurance that affected its indemnity obligations, where city had not argued lack of insurance in its motion and issue was first clearly raised in trial court’s order); Dickerson v. Alabama, 667 F.2d 1364 (11th Cir. 1982) (allowing supplementation to include state court trial transcript in record of habeas corpus case).
13 Ross v. Kemp, 785 F.2d at 1467, 1477 (11th Cir. 1985).
14 Compare CSX Transp., Inc. v. City of Garden City, 235 F.3d 1325 (11th Cir. 2000), with Schwartz v. Million Air, Inc., 341 F.3d 1220 (11th Cir. 2003).
15 See Vakas v. Barnhart, 120 Fed. Appx. 766 (10th Cir. 2005) (unpublished opinion affirming denial of disability benefits and noting extra-record facts regarding the disciplinary proceedings against petitioner doctor precluding him from prescribing drugs, while stating court did not rely on those nonrecord facts); United States v. Harris, 271 F.3d 690, 706 (7th Cir. 2001) (Wood, J., dissenting) (consulting two Internet sites for maps).
16 Olibrices v. State, (Fla. 4th D.C.A. 2006) (noting site was “visited May 11, 2006”).
17 See Katie Hafner, Growing Wikipedia Revises Its “Anyone Can Edit” Policy, N.Y. Times, June 17, 2006, at A1 (discussing potential limitations on editing).
18 Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. Times, Jan. 29, 2007, at C3 (noting Judge Posner “cited a Wikipedia article on Andrew Golota, whom he called the ‘world’s most colorful boxer,’ about a drug case involving the fighter’s former trainer, a tangent with no connection to the issues before his court.” Judge Posner is quoted as saying “Wikipedia is a terrific resource,” but that “[i]t wouldn’t be right to use it in a critical issue.”).
19 Id.
20 Id.
21 See, e.g., Hispanic Broad. Corp. v. Educ. Media Found., 2003 WL 22867633 at *5 n.5 (C.D. Cal. Oct. 30, 2003); Sannes v. Jeff Wyler Chevrolet, Inc., 1999 WL 33313134 at *3 n.3 (S.D. Ohio Mar. 31, 1999).
22 People v. Mar, 52 P.3d 95 (Cal. 2002).
23 Id. at 116.
24 Rodriguez v. Schriver, 2003 WL 22671461, *7 n.12 (S.D.N.Y. Nov. 12, 2003), rev’d on other grounds, 392 F.3d 505 (2d Cir. 2004).
25 N.Y. City Med. & Neurodiagnostic v. Republic W. Ins., 2003 WL 21537410 (N.Y. Cit. Civ. Ct. 2003).
26 N.Y. City Med. & Neurodiagnostic v. Republic W. Ins., 798 N.Y.S.2d 309, 312 (N.Y. Sup. Ct. 2004).
27 Id. at 314.
28 ABA Model Code of Judicial Conduct Rule 2.9(c) (February 2007) now provides that a “judge shall not investigate facts in a matter independently, and shall consider only the evidence presented and any facts that may properly be judicially noticed.” The comments made it clear that this prohibition extends to electronic mediums. The ABA Joint Commission to Evaluate the Model Code of Judicial Conduct Report’s “Explanation of Comments” notes that the prohibition applies to the judge’s staff and cautions that “vigilance on the part of judges” has increased with “the ease with which factual investigations can now be accomplished via electronic databases. . . . ”
29, 171 Fed. Appx. 799, 808 (11th Cir. 2006) (unpublished).
30 Perry v. Munger, 730 So. 2d 393, 395 (Fla. 2d D.C.A. 1999).
31 Sylvia H. Walbolt & Joseph H. Lang, Jr., Amicus Briefs: Friend or Foe of Florida Courts?, 32 Stetson L. Rev. 269, 291 (2003).
32 Stephen M. Shapiro, Amicus Briefs in the Supreme Court, ABA Sec. Litig., Appellate Practice Manual 340, 342 (Priscilla Anne Schwab ed., 1992). The authors have previously suggested that this distinction was improperly disregarded by the Fifth District when it struck from an amicus brief “all non-legal materials not part of the record below.” See Walbolt & Lang, Amicus Briefs: Friend or Foe of Florida Courts?, 32 Stetson L. Rev. at 291 (2003)(quoting Betts v. ACE Cash Express Inc., 827 So. 2d 294 (Fla. 5th D.C.A. 2002)).
33 See Mary Murphy Schroeder, The Brandeis Legacy, 37 San Diego L. Rev. 711, 722 (2000).
34 This term comes from the brief that then-lawyer Louis Brandeis filed in Muller v. Oregon, 208 U.S. 412 (1908). In that case, the Supreme Court upheld an Oregon statute regulating the hours worked by women and, in so doing, specifically relied on the brief filed by Mr. Brandeis, stating, “[W]e take judicial cognizance of all matters of general knowledge.” Id. at 421.
35 McClesky v. Kemp, 753 F.2d 877, 888 (11th Cir. 1985) (quoting Sperlich, Social Science Evidence and the Courts: Reaching Beyond the Advisory Process, 63 Judicature 280, 285 n.31 (1980)).
36 See Walbolt & Lang, Amicus Briefs: Friend or Foe of Florida Courts?, 32 Stetson L. Rev. at 297-98 (2003).
37 See Jeffrey Rosen, The Brain on the Stand, N.Y. Times Magazine, Mar. 11, 2007, at 48. Professor of law and psychiatry Stephen J. Morse sharply questions the use of the amicus neuroscience briefs “filed in the Supreme Court case Roger v. Simmons to question the juvenile death penalty,” asking “[w]hat did the neuroscience add?” and going on to suggest it added nothing.
Sylvia H. Walbolt received her J.D. degree from the University of Florida. She has practiced with Carlton Fields, P.A., since 1963, where she previously has served as chair of the board of directors for the firm and chair of its appellate practice and trial support group.
Joseph H. Lang, Jr., received his J.D. degree from the University of Florida and his LL.M. degree from Georgetown University Law Center. He is a shareholder with Carlton Fields, P.A., in its appellate practice and trial support group.
This column is submitted on behalf of the Appellate Practice Section, Steven Brannock, chair, and Tracy R. Gunn, Heather M. Lammers, and Kristin A. Norse, editors.
