Proposed NRAP changes, a little at a time: NRAP 9
This is the fifth in a series of posts looking at proposed changes to the Nevada Rules of Appellate Procedure. The Nevada Supreme Court will hear public comment on October 6. The Court welcomes written comments about the proposed amendments.
Previous posts on this topic:
Proposed changes to NRAP 1, 2 and 3
Proposed changes to NRAP 3A, 3B and 3C
Proposed changes to NRAP 3D, 3E and 4
Proposed changes to NRAP 5, 7 and 8
NRAP 9 Transcript; Duty of Counsel; Duty of the Court Reporter or Recorder (page 38 of the pdf)
The existing rule would be repealed entirely and replaced by the proposed rule. It's lengthy, so read it yourself as I'm not going to retype it.
Here's a synopsis:
Subsection (a) counsel's duty to request transcripts -
Most of this subsection is the same as the old version of the rule. Counsel have a duty to confer and attempt to reach an agreement concerning the transcripts necessary for the appeal. The Appellant is to request transcripts that were not prepared and filed prior to the filing of the notice of appea. If no transcripts are needed, the appellant shall file and serve a certificate to that effect. The transcript request is to be filed within 15 days from the date the appeal is docketed with the Court. Under the old rule the 15 day period ran from the date the notice of appeal was filed.
Subsection (a)(3)(C) makes substantive changes concerning the contents of the Request for Transcripts by adding this new provision:
"The appellant shall examine the district court minutes to ascertain the name of each court reporter or recorder who recorded the proceedings for which transcripts are necessary. The appellant shall prepare a separate transcript request form addressed to each court reporter or recorder who recorded the necessary proceedings, specifying only those proceedings recorded by the court reporter or recorder named on the request form." The other requirements for the Request remain the same.
Subsection(a)(4) addresses costs and adds a provision that "Where several parties appeal from the same judgment or any part thereof, or there is a cross-appeal, the costs associated with the preparation and delivery of the transcript shall be borne equally by the parties appealing, or as the parties may agree."
A new subsection (b)(3) is added: "A certified transcript may be produced in a condensed format that produces at least four conventional transcript pages on one condensed page. A concordance indexing keywords in the transcript shall be provided."
Analysis
Most of the amendments are stylistic and the others appear warranted: with the exception of new subsection (b)(3). I hate this. First, there should never, ever be more than four conventional pages on one condensed page. Second, the rule should provide for an order of the conventional pages on the condensed page. Some court reporters have pages 1 and 2 at the top and then pages 3 and 4 at the bottom. Other court reporters places pages 1 and 2 on the left hand side and pages 3 and 4 on the right hand side. The inconsistency makes me bonkers when it happens within a single case -- as is often the situation because there are different court reporters during a single trial. It's like when I drive my Miata and then switch to my Volkswagen Beetle. Both are stick shifts, but the reverses are on opposite sides and I am forever grinding the gears because my brain doesn't adapt to the new car quickly enough. With condensed transcripts I think I'm reading top to bottom, but then it switches and the testimony doesn't make any sense and then I have to start over with the left to right business, and it's all chaos.
Third, and most important, I'm old. It hurts my eyes to read condensed transcripts. I can do it for a one or two day trial or an evidentiary hearing, but most of my work is in capital cases with trials that last several weeks or more. It's painful and unproductive to read the tiny type on the condensed transcripts. Moreover, these cases and therefore these transcripts will continue on in the courts for many, many years. Condensed transcripts can only be photocopied a minimal number of times before they are completely useless. My recommendation is that in criminal cases full page transcripts be required for all cases involving a sentence of life in prison or the death penalty. Please. Pretty, pretty please. Civil folks might want to weigh in on this too.
A couple of more thoughts: There should be a rule that someone -- district court administration, each chambers, or the clerk's office -- keep an updated list of court reporter and recorder addresses and phone numbers. It can be difficult to serve a reporter or recorder who does not work directly for the court. Not all of them - but some. There should also be a provision as to what should be done with tapes and notes if a court reporter or recorder moves out of state, retires, dies or is otherwise unavailable to prepare transcripts.
And about those condensed transcripts. The Court requires us to submit briefs in at least a 13 point font. Presumably the reason for this rule is that it is difficult to read documents with a smaller font. My guess is that 4 to a page condensed transcripts give a font size of about 6 points. Maybe less. I realize that they're justices and I'm not, but were all human and if it's difficult for them to read 30 or 40 pages in a 6 point font, it is necessarily also difficult for me to read pages in that crazy small font size. The appendix for the appeal I'm working on right now is 4,313 pages (and I've had larger appendixes in many cases). If the justices and their law clerks would be cranky over reading a 30 page brief in 6 point font, you can imagine how cranky I'll be if I have to read thousands of pages in a font designed to be read by ants or mice or other small creatures. You get the point.