Rules of Appellate Procedure

Re: URAP 11(e)(3): It appears to be unclear how this rule interacts with URAP 12(a)(2), which requires “a party requesting a transcript” to pay for the transcription. If the appellee designates additional proceedings to be transcribed, is he the party requesting a transcript and responsible to pay for the parts of the transcript it requests? If not, does the appellant have a chance to object to this extra designation before it is tacked on to its bill? If the appellant is expected to pay for the extra designation and cannot object, what would stop an appellee from requesting non-relevant portions of the transcript to increase an appellant’s upfront costs? While it could be argued that appellants would ultimately get their money back if they prevailed, this would only apply if the appellant prevailed. There does not appear to be any means under URAP 34 for the losing party to recover costs from the prevailing party, even if the prevailing party imposed unnecessary costs upon the losing party. However, the appellee should not be responsible for paying transcript costs of portions of the transcript that should have been designated by the appellant originally, and the rules should not encourage an appellant to under-designate in hopes that the appellee would pick up the extra upfront costs.
The root problem is that the rules with respect to creation of the record create competing incentives for an appellee. Rule 11(e)(2) provides that the appellee is not obligated “to correct appellant’s deficiencies in providing the relevant portions of the transcript.” This encourages gamesmanship and discourages appellees from ensuring that a full and complete record is presented to the appellate court. However, not doing so would be a real risk for an appellee, as the appellate court retains the discretion to review the entire record on appeal, see, e.g., Brown v. State, 2013 UT 42, ¶ 106 n.77, ___ P.3d ___ (Lee, J., dissenting), and any hearing that has not been transcribed is not part of the record on appeal under URAP 11(b). The Committee should resolve these competing incentives in favor of creation of a full record by (1) requiring the appellee to request supplementation of any parts of the record that contain evidence in favor of the court’s decision, and requiring the appellant to pay for that transcription; and (2) allowing the appellee to request other portions of the record that are not necessary to appellant’s marshaling burden, but that appellee wants to be in the record, at its own expense. Both transcripts would be taxable costs on appeal.

I oppose the amendment to rule 29(c) because it creates a potential unfairness to Appellees. The amendment would allow a court to question Appellant’s counsel about a new issue during rebuttal argument. When a court does so, it denies Appellee’s counsel the opportunity to respond to Appellant’s argument on the new issue and to provide the court with Appellee’s perspective on the court’s question.
When neither Appellant’s counsel nor the court addresses an issue raised in the briefs during Appellant’s initial argument, and the court does not question Appellee’s counsel about the undiscussed issue during his argument, then Appellee’s counsel should be able to assume that the briefing has fully addressed all of the court’s concerns on that issue. That is, unless the court raises the issue for the first time during Appellant’s rebuttal argument. Appellee’s counsel would have likely chosen to use some of his limited oral argument time to address the previously ignored issue had he known that, despite the briefing, the court was concerned enough to ask a question about it. Raising an issue for the first time during rebuttal is unfair to Appellees.
Current rule 29(c) ensures fairness. Although it allows Appellants the last word at argument, it limits an Appellant’s reply argument “to answering points made by appellee” without also allowing the court to raise new issues during the rebuttal argument. This ensures that Appellee’s counsel will have the same opportunity as Appellant’s counsel to address the court’s questions on all of the issues raised at oral argument.
The current rule does not limit the court’s opportunity to ask questions about any issue in the briefs. Rather, it limits only the timing of those questions to ensure fairness to both sides. If the court’s concerns about an issue are not adequately addressed by the briefs, then the court should raise those concerns during either Appellant’s initial argument or the Appellee’s argument, thereby allowing both sides equal opportunity to address the court’s questions.