Better Get it in Writing

By Judge Robert Durham, Cookeville

Robert DurhamConsidering an appeal? I have an important tip for you: give the Appeals Board something to read.

Trying to win on appeal without a transcript of the evidence is regrettably like trying to beat Alabama in college football—theoretically, it can be done, but don’t hold your breath.

In fact, I can’t think of a single case where the parties presented contested facts to the trial court and the appellant won without a transcript. The typical language from the Appeals Board goes like this: “If the appellate court is not provided with a transcript or a statement of the evidence, the court cannot know what evidence was presented to the trial court, and there is no means by which it can evaluate the appellant’s assertion that the evidence did not support the trial court’s decision.”

So, how do you make sure you at least have a fighting chance to win on appeal?

One route is to have the hearing transcribed by a certified court reporter. His or her job is to take down oral testimony and argument and ensure its accuracy. Court reporters are welcome at any hearing before the trial court, even if the parties aren’t presenting evidence but are simply arguing the case.

Of course, court reporters at every hearing can be expensive and are often unnecessary. You might think that a court reporter isn’t worth the investment. So, what do you do if a hearing went sideways and the result wasn’t what you expected? Consider other, albeit less effective, options.

One of them is listed in the quote above: file a joint “statement of the evidence” outlining the relevant testimony given at the hearing.

However, the joint statement has its limitations. First, it’s supposed to be “joint,” which means the other party and you should agree on the evidence. That can be a tall order and might require the Court’s intervention. Second, the Court must sign off on it as well, which could be another hurdle. Finally, a statement of the evidence will rarely substitute for the detail and nuance of an actual transcript.

Another alternative is to order a copy of the recording made by the trial court from the Court Clerk for transcription.

Every judge records their evidentiary hearings. Strategically-placed microphones make for an excellent recording that may be requested by either party.

Remember that the trial court is under no legal obligation to make a recording; it’s done to help draft the order. There’s always the possibility that a complete recording will not be made through operator error or equipment malfunction. Further, the Appeals Board won’t accept an audio file of the hearing; it must still be transcribed before they’ll consider it.

Obviously, the best way to make sure the Appeals Board gives your appeal real consideration is to have a transcript created by a certified court reporter.

But no matter how you choose to do it, it’s critical that you provide the Board with something in writing. Otherwise, like any team that doesn’t go by the name Crimson Tide, you’ll most likely end up with one in the loss column.

Rocky Top

3 thoughts on “Better Get it in Writing

  1. Sheila Wilson says:

    Thank you, Judge Durham, for your article. I am a court reporter with 30+ years’ experience, and would like to bring to your attention an issue I am seeing more of. The timeline for producing a transcript for the work comp Appeal Board is very, very short, not the standard 60-day provision in T.R.A.P. It is becoming common practice for attorneys to order the transcript the same week it is due to the Appeal Board. I suspect they are unaware of the short timeline for filing. It would be immensely helpful if they were educated on that. Waiting until the last minute to order results in expedited costs and, frankly, creates a big time management problem with the attending court reporter shifting other transcript prep to accommodate. Thank you. Sheila Wilson

    Liked by 3 people

    • Robert Durham says:

      I really appreciate your input, Ms. Wilson. You make an excellent point. I am sure many attorneys have not thought about how the short deadlines necessary for the expedited hearing process places additional stress on court reporters. I certainly have not. Hopefully, your comment will help to get the word out.


  2. Marily Morgan says:

    Thank you, Judge Durham, for your words of wisdom. I had the privilege of growing up very near Putnam County in rural Smith County and have been a court reporter for 35 years. I have seen a huge decline over the years in respect for the profession of court reporting. There is an attempt to “replace” us with tape recordings. However, a court reporter versus a tape recorder is akin to comparing apples to oranges. We have extensive training and hours of practice to enable us to “make that little machine work.” Our work truly begins when we transcribe and edit and perfect every word taken down. The services a good reporter provides and the record he/she creates cannot compare to tape recordings and transcription thereof by a person who was not present at the trial. Thank you for advocating for our profession. It is a worthy cause.
    Marilyn Morgan


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