Here’s a question that has come up often enough that I suppose it merits its own post: What happens if the Clerk of the Court of Appeals does not properly notify the appellant of the filing of the transcript?

(Disclaimer: The Clerk’s office does a wonderful job! They are great to deal with! They probably did not make a mistake in your case! See below!)

Normally, the Clerk’s office receives the record and shoots everyone an email notification. This sets the deadlines running–in particular, the deadlines for filing assignments of error and the opening brief. Here are the relevant rules:

  • Rule 5A:10(d) directs the clerk of the trial court to transmit the record to the Court of Appeals “forthwith” after 21 days have passed since the filing of the transcript or written statement (or the notice of appeal, if neither of those will be filed), and in all events within 3 months of entry of judgment.
  • Rule 5A:10(e) says, “The clerk of this Court must promptly notify all counsel of the date on which the record is filed in the office of the clerk of this Court.”
  • Rules 5:25(a) and (d) provide that the assignments of error (and appendix designation, if applicable) are due “15 days after the filing of the record with this Court.”
  • Rule 5A:19(b)(1) says, “The appellant must file the opening brief in the office of the clerk of this Court within 40 days after the date of the filing of the record in such office.”

That seem easy enough.

But sometimes, we get questions about what happens when the record has been transmitted to the Court of Appeals, but the parties have not received notice or the appellant has missed these deadlines.

I have three thoughts.

First, it’s probably not the Clerk’s fault! Remember that there is a difference between “receipt” of the record and “filing” of the record. Sometimes the Clerk’s office receives the record from the trial court but has to send it back for more work (for example, because of a noncompliant condensed transcript). With the uptick in civil appeals after the expansion of the court’s jurisdiction, it’s reasonable to expect to see more of this as trial-court clerk’s offices with less experience handling civil appeals navigate the rules. The CAV Clerk’s office doesn’t have to notify counsel–and the deadlines don’t start to run–until the record is filed.

Second, and I cannot stress this enough, the Clerk’s office does a wonderful job! They are great to deal with! They probably did not make a mistake in your case! But they too are navigating a brand new system and a growing workload. So mistakes are possible. If the Clerk’s office did make a mistake, count on the Clerk’s office and/or the Court to fix it, and to do so fairly. So if the Clerk didn’t provide the required notice and the appellant missed the deadlines, the fix probably will not be dismissal of the appeal. It will more likely be a prompt notice to the appellant, which will start the deadlines running (effectively giving the appellant a deadline extension, which, you know . . . fair?).

Third, if you are the appellant, just calendar these deadlines and check up on things. You don’t need to wait for the formal notice. If you have a question, just call the Clerk’s office. They do a wonderful job! See above!