Hugh Wood, Atlanta, GA
Index, Copy and Transmit your Appellate Record in a Flash !!! “Would you like fries with that?”
The unintended consequence of the lowering of the price per page of an appellate record along with the delegation to law firms to prepare their own appellate record may vastly increase (not decrease) the workload for the Georgia Court of Appeals. What use to take a year and cost a fortune, may now be done “in house” for pennies a page.
This roller coaster change in the law concerning the cost of the record on appeal is simply breathtaking. The Legislature passed a sleeper bill on the issue, HB 1055, [ 1 ] which contained an “inflation adjusted,” increase of all types of fees, from filing initial civil action fees, to increases in fees to file a judgment on the GED to a cost increase for copy of the record on appeal from $1.50 per page to $10.00 per page.
For a price increase that had not been revisited for 25+ years, it did not seem like much of a change. However, a 1,000 page appellate record (some can exceed 10,000 pages) moved from $1,500 to $10,000 to prepare the appellate record and would have become a “door closer,” for many, many litigants.
Whether the shocking increase was intended or just part of the mish-mash of legislation enacted toward the end of the 2010 legislative session, we may never know. However, once it became clear that the cost of the appellate record was going to prevent access to the appellate courts, various Bar groups moved to change the law. [ 2 ]
It response to the lobbying from various Bar Groups, The Georgia Supreme Court enacted Rules 67 and 69 which allow the parties to, generally, to agree upon, copy, bind and present their own record to the Georgia Supreme Court. [ 3 ]
The Court of Appeals initially balked at changing the Rules (I suspect but cannot prove that they may have desired the unintended effect of lower appeals volume, since they are one of the busiest state appellate courts in the United States). However, they have now agreed to enact Rules similar to Georgia Supreme Court Rules 67 and 69. [ 4 ]
So, in less than a month we see the price of an appellate record skyrocket to $10.00 a page and then fall to earth close to zero cents a page. The cost now (though we have yet to see the final Rules) appears to the be limited to the labor necessary for paralegals at the law firms involved to compile and create an agreed upon record Appendix and the actual cost of copying the record (4 cents to 10 cents a page).
I had a record appeal some years ago in Fulton County (out of which we eventually recovered a 7 figures damage award. ) where I had to beg and beg and beg the appellate clerk(s) in Fulton to prepare the record. Finally, (true story) I went to the Appeals Clerk’s Office (who I had become to know quite well by telephone) and begged permission to just help with the index. With them watching me, I laid out the record around the room and wrote a handwritten index and carefully replaced each document in order in the file. The Appellate Clerk did her own work, but my index and organization of the documents, sped up the process considerably.
Now, what seems like a “war story,” will become the in house “bill of fare.” The “cost of the record,” may no longer be a deterrent to appeal and time delay (so enjoyed by many a corporation and insurance company) will simply evaporate.
Since the new Supreme Court Rules and Court of Appeals Rules move the preparation of the Index to the motivated Appellate law firm and reduce the cost of the record to no more than paralegal labor cost plus copying cost, the time from the filing of a Notice of Appeal to docketing in the Supreme Court may collapse from a months to days.
What? No delay on appeal?
Perhaps. It could happen.
Hugh Wood, Esq.
Wood & Meredith, LLP
3756 LaVista Road
Atlanta (Tucker), GA 30084
& & &
[ 1 ]
10 HB 1055/AP
House Bill 1055 (AS PASSED HOUSE AND SENATE)
By: Representatives Levitas of the 82nd, Rice of the 51st, Ramsey of the 72nd, Cole of the 125th, and Smith of the 131st
Signed by Gov. 5 / 12 / 2010
A BILL TO BE ENTITLED
To amend provisions of the Official Code of Georgia Annotated relating to fees; to change the amount of the fees; to provide for new fees; to provide for promulgation of rules and regulations regarding fees; to change fees and certain other provisions regarding special license plates; to provide for the retention of certain fees by state agencies or other entities; to change fees and certain other provisions regarding bona fide coin operated amusement machines; to correct cross-references in the Official Code of Georgia Annotated; to amend Chapter 8 of Title 31 of the Official Code of Georgia Annotated, relating to the care and protection of indigent and elderly patients, so as to provide for a payment to be imposed on hospitals to be used to obtain federal financial participation for medical assistance payments under Medicaid; to provide for a short title; to provide for definitions; to establish a segregated account within the Indigent Care Trust Fund for the deposit of provider payments; to provide for a method for calculating and collecting the provider payment; to authorize the Department of Community Health to inspect hospital records for purposes of auditing provider payments; to provide for penalties for failure to pay a provider payment; to authorize the Department of Community Health to withhold Medicaid payments equal to amounts owed as a provider payment and penalty; to provide for the collection of payments by civil action and tax liens; to provide for the appropriation of funds in the segregated account for medical assistance payments; to provide for application of the "Georgia Medical Assistance Act of 1977"; to provide for automatic repeal of such amendments to said Chapter 8; to amend Title 48 of the Official Code of Georgia Annotated, relating to revenue and taxation, so as to revise and change certain provisions regarding the manner and time of making the state ad valorem tax levy and gradually eliminate such levy over a period of time; to provide for applicability; to provide that such provisions shall not abate or affect prosecutions, punishments, penalties, administrative proceedings or remedies, or civil actions related to certain violations; to provide for a complete exclusion of certain retirement income from Georgia taxable net income over a period of time; to provide for related matters; to provide for effective dates; to repeal conflicting laws; and for other purposes.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
& & &
Title 15 of the Official Code of Georgia Annotated, relating to courts, is amended by revising paragraph (2) of subsection (e) and subsections (g) and (h) of Code Section 15-6-77, relating to fees for superior court, as follows:
"(2) Except as provided in paragraphs (3) and (4) of this subsection, the total sum for all services rendered by the clerk of the superior court through entry of judgment in civil cases shall be $58.00. Such sum shall not be required if the party desiring to file such case or proceeding is unable, because of his indigence, to pay such sum and such party files with the clerk an affidavit to such effect, as provided by law. Nothing contained in this subsection shall be deemed to require advance payment of such sum by the state, its agencies, or political subdivisions."
"(g) Miscellaneous fees:
& & &
(12) Preparation of record and transcript to the Supreme Court and Court of Appeals, per page
& & &
Where a transcript of the evidence and proceedings is filed with the clerk and does not require recopying, the clerk shall not receive the fee herein prescribed with respect to such transcript but shall receive, for filing and transmission of such transcript, a fee of
[ 2 ]
GTLA did some hard work on this issue. Consider:
Dear Fellow GTLA Members:
I am pleased to announce that today the Georgia Court of Appeals agreed to adopt a rule allowing parties to compile and submit records for appeals to that Court – just as the Supreme Court previously did – so that parties do not have to pay the new exorbitant $10.00 per page record-copying fees included in HB 1055. While ultimately this decision was made by the Court, I want you to know – and to be proud of the fact - that their decision was the direct result of a lot of work done by your fellow GTLA over the past three weeks. It was this organization that first convened a working group to address the problem created by the passage of the bill. It was this organization that got the State Bar to engage its appellate section in the effort. And, it was members of this organization that lead the Appellate Section’s effort to draft a rule that the appellate courts could adopt that allows parties to avoid the ridiculously high record-copying fee that everyone agrees was not intended to exist. Once the rule was prepared, the lobbying efforts of this organization – by both members and staff – helped convince first the Supreme Court and now the Court of Appeals to adopt the rule.
I would be remiss if I didn’t take a minute to thank State Bar President Bryan Cavan for having the political savvy to take what we started and get these rules adopted. With 40,000 members, he can't always be as nimble as we are, but his work taking advantage of what we started was masterful. This organization has been in near daily communication with Bryan over the past few weeks, encouraging him, prodding him when necessary, and, doing everything else we could to help him lead the way on this important issue. If you have a chance to speak with Bryan, please convey to him your appreciation for his efforts.
The doors to the appellate courts remain accessible not just for tort cases like ours, but also for business cases, domestic cases, land disputes and every other kind of appeal you can think of. It was, as I like to say, a pretty good day at the office for all of us.
Michael J. Warshauer
Michael J. Warshauer
Board Certified Civil Trial Advocate
Warshauer Law Group, P.C.
3350 Riverwood Parkway
Atlanta, GA 30339
[ 3 ]
Rules of the Georgia Supreme Court
XIII. RECORDS AND TRANSCRIPTS
Rule 67. RECORDS, RECORD APPENDIX, AND TRANSCRIPTS.
(1) The clerk of the trial court shall certify and transmit to the Clerk of this Court the original transcript and copies of all records as required within the time prescribed by statute. In habeas corpus appeals after criminal convictions, the original record in its entirety shall be certified and transmitted. Transmittal of a trial clerk's certified record shall be by the clerk or deputy personally or by United States mail or express mail, or by a commercial delivery company, charges prepaid. Transmittal by a party or attorney is prohibited.
(2) In lieu of an appellate record transmitted by the trial court clerk, the parties may submit to the Clerk of this Court a record appendix. The notice of appeal shall be designated for inclusion in the appellate record, but otherwise the appellant may direct the clerk of the trial court to omit everything else. The record appendix shall consist of:
(a) The relevant portions of the pleadings, charge, findings, or opinion;
(b) The judgment, order, or decision in question; and
(c) Other parts of the record to which the parties wish to direct the Court's attention.
(3) Transmittal of the original of any transcript is governed by Rule 70.
(4) The appellant must serve on the appellee a designation of the parts of the record the appellant intends to include in the record appendix at the time of serving the notice of appeal. The appellee may, within 15 days after receiving the designation, serve on the appellant a designation of additional parts to which it wishes to direct the Court's attention. The appendix shall be transmitted to the Clerk of this Court within 5 days after the date of filing of the transcript of evidence and proceedings by the appellant or appellee. Where no transcript of evidence and proceedings is to be sent up, the record appendix shall be transmitted to this Court within 30 days after the date of filing of the notice of appeal. The parties must not engage in unnecessary designation of parts of the record. Disputes as to the correctness of the record appendix shall be submitted to the trial court as provided in OCGA § 5-6-41 (f).
(5) Where a party has been granted pauper status in the trial court and the record so reflects, the party may elect to proceed in accordance with OCGA § 5-6-30 et seq.
Rule 69. SEQUENCE.
(1) The clerk-certified record with pages numbered at the bottom and a manuscript cover shall be arranged as follows:
(a) Index (including page references and dates of filing);
(b) Notice of appeal;
(c) Other items in chronological order; and
(d) Clerk's certificate.
Voluminous records may be bound in separate parts but each part shall be certified separately.
(2) The record appendix with pages numbered at the bottom and a manuscript cover shall be arranged as follows:
(a) Index (including page references and dates of filing);
(b) Copy of notice of appeal;
(c) Other items in chronological order; and
(d) Statement of correctness
(1.) Attorney Statement:
I, the undersigned attorney of record in the above-styled case, a member of the State Bar of Georgia and the Supreme Court of Georgia in good standing, do make this certificate as required by the Rules of the Supreme Court of Georgia. I hereby certify that I am familiar with the trial court record in this case, and that this appendix contains only parts of the record on file in the trial court.
This the _____ day of ___________, 20__.
(signature and Bar number)
(2.) Pro Se Statement: A record appendix submitted by a pro se party who is not an attorney shall contain that party's sworn verification, as specified in OCGA § 9-10-113, as to the correctness of the record appendix.
Voluminous records may be bound in separate parts but each part must include the Attorney or Pro Se Statement.
[ 4 ]
Georgia Court of Appeals ALSO Circumvents Fee Hikes
From the AJC:
“Having weighed all the sides, I think this was the appropriate thing to do,” Chief Judge Yvette Miller said. “We see the lion’s share of these cases and don’t want people to have to pay these prices.”
The appeals court’s 12 judges voted unanimously to change its rules, after hearing from state bar leaders and Rep. Wendell Willard (R-Sandy Springs), all of whom supported the rule change, Miller said. The Georgia Supreme Court similarly changed its rules a week ago.
One should take note, this is a temporary solution for now. But may very well become a permanent solution, according to Chris McFadden a candidate for the Georgia Court of Appeals. [Peach Pundit, June 9, 2010]