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Filing Appeals and Getting Transcripts
In a message dated 3/14/2006 5:24:07 P.M. Eastern Standard Time, JMFLAHERTY@AOL.COM writes:
Within 10 days of filing a notice of appeal of a final judgment, you must notify the other side about your request for the transcript, and order the tapes

I am taking John Flaherty's Liberty Bell Union course on how to defend yourself Pro Se.  One of his lessons was on the rules of appeals.  My former spouse filed an appeal of the financial settlement.  John taught me that one needs to request the tapes within ten days or the appeal can be thrown out.


My former spouses attorney never requested the tapes.


I forced my attorney to file a Motion to Dismiss as I learned in John's course.


TODAY THE JUDGE DISMISSED THE APPEAL.  They can try to vacate the appeal, but this is the first win I have had in a long time.


Thank you to John and his course.




This is NOT always the case. To bank on that this would always dismiss a case would be truly misguided.


First you do NOT need the transcript in all cases.


The rule that governs transcripts if rule 8 of the Massachusetts Rules of Appellate Procedure.


Massachusetts Rules of Appellate Procedure Rule 8(a) reads as follows;



(a) Composition of the Record on Appeal. The original papers and exhibits on file, the transcript of proceedings, if any, (NOT all appeals have transcriptís, it all depends on what you are appealing, I have appealed judges decisions without any transcript, if nothing in court was stated that would cause a controversy you need NO transcript, you could file an appeal on a judges WRITTEN order!)(Now Peter states ďMy former spouse filed an appeal of the financial settlementĒ, how did you get the financial settlement, from the judge stating in an open court of the settlement? Or did the judge file a an order that was never objected to in an open court? If so you need NO transcript! And if I were your exes attorney I would file a motion to reconsider and then appeal the courts order to dismiss you appeal!)  and a certified copy of the docket entries prepared by the clerk of the lower court shall constitute the record on appeal in all cases. In a civil case, in an appeal from an appellate division, the original papers and exhibits shall include the report of the trial judge to the appellate division with any exhibits made a part of such report.


Now lets look at rule 8(b) of he Massachusetts Rule of Appellate Procedure.


8(b) The Transcript of Proceedings.

(1) Civil Cases, Except Child Welfare Cases (did this financial settlement have on smidgen of evidence that any part of the settlement would effect the welfare of the children?, if so throw the ten day rule out the window!) : Duty of Appellant to Order; Notice to Appellee if Partial Transcript Is Ordered. Within ten days after filing the notice of appeal the appellant shall order from the court reporter a transcript of such parts of the proceedings not already on file as he deems necessary for inclusion in the record. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, he shall include in the record a transcript of all evidence relevant to such finding or conclusion. Unless the entire transcript is to be included, the appellant shall, within the time above provided, file and serve on the appellee a description of the parts of the transcript which he intends to include in the record and a statement of the issues he intends to present on the appeal. If the appellee deems a transcript of other parts of the proceedings to be necessary he shall, within 10 days after the service of the statement of the appellant, file and serve on the appellant a designation of additional parts to be included. If the appellant shall refuse to order such parts, the appellee shall either order the parts or apply to the lower court for an order requiring the appellant to do so. At the time of ordering, a party shall make satisfactory arrangements with the court reporter for payment of the cost of the transcript.


Now we slide down to Massachusetts Rule of Appellate Procedure 8(b)(5) with reads;


    (5) Child Welfare Cases

(i) Proceedings Recorded by an Official Court Reporter. On the filing of a notice of appeal, unless the parties file therewith a stipulation designating the parts of the proceedings which need not be transcribed, the clerk of the lower court on behalf of the appellant, shall order from the court reporter a transcript of the entire proceeding or of such parts of the proceeding not already on file. The clerk of the lower court shall notify all parties of the date the transcript was ordered by sending a copy of the order form to all parties. On receipt of the order the court reported shall prepare an original typed transcript for filing with the lower court and a copy for the appellant and any party who so requests. The court reporter shall deliver the original to the clerk of the lower court who shall immediately notify all parties of its receipt, and the court reporter shall deliver legible copies to the appellant and to any party who so requests.

This rule CLEARLY and UNEQUIVOCALLY states that if the case involves the childís welfare that the clerk of courts on the appellate shall order and notify the parties, again does this case involve one iota of evidence that it is or pertains the childrenís welfare? If I were your exes attorney I would be claiming that yes the childrenís welfare would be greatly effective if my client (your ex) did get to keep the house the stocks, money furniture and all.


As I had stated earlier that all cases do not need transcripts, and taking into consideration that it is a financial settlement that was probably handed down in a form of an judgment and do we know if the transcript are available we look to Massachusetts Rule of Appellate Procedure 8(b)(5) which reads;


(c) Statement of the Evidence or Proceedings When No Report Was Made or When the Transcript Is Unavailable. If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may, within thirty days after the notice of appeal is filed, file a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may file objections or proposed amendments thereto within ten days after service. Thereupon the statement and any objections or proposed amendments thereto shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.

Good luck but donít count all you chickens yet and donít everyone believe that they can always be dismissed because you donít have the transcript. I again have file appeals with no transcript and the defendant had 3 law firms defending them and NO motion to dismiss was filed for not obtaining transcripts.