A Letter Is Not A Proposed Record On Appeal

Today the COA dismissed an appeal because the appellant, instead of serving a proposed record on appeal (ROA), served a letter listing the proposed contents of a ROA. The COA held that a letter doesn't qualify as a proposed ROA, because Appellate Rule 11(b) requires that a proposed ROA must be constituted in accordance with Appellate Rule 9. The COA also said that the fact that the appellee didn't object when the appellant served the letter as a proposed ROA isn't material: the duty to object never arose, the Court said, because that duty applies only when the appellee is served with a proposed ROA served in accordance with Rule 9.

The federal appellate rules contemplate the appellant sending a letter to the appellee with the proposed contents of a joint appendix. FRAP 30(b)(1). That will not work in the state system. You've got to send a proposed ROA, period.