Every appellate lawyer worth their salt knows that you should never cite to facts that do not appear in the record (or appendix) on appeal. Appeals courts do not look kindly on it, and (in extreme cases) you or your client could end up with sanctions.
The reason for the rule is straightforward: appeals courts are charged with reviewing the findings of fact and legal holdings of the lower courts. If a fact was not presented to the lower court when it considered the issue (in the motion or at trial), then an appeals court will not consider that fact in assessing whether the lower court’s decision was correct. Appeals courts are not authorized to look outside the record on appeal to render their own decisions. They stick to the facts as presented by the parties in their papers to the lower court.
If a fact was presented to the lower court when it considered the issue, then the fact should be in the record on appeal (if you prepared it correctly; if you have questions about that, get in touch with me here).
Lawyers, especially those who are not well versed in appellate practice, get snagged by this rule all. the. time. Here’s an example taken from an appeal to the 9th Circuit that I recently worked on.
In this case, I did not write the opening brief, I was hired by an attorney to write the reply brief after the responding brief was filed. Reading the responding brief, I saw that one of the arguments was centered around a “fact” stated in the opening brief that was not part of the record. I had read the opening brief (of course), and I noticed the fact had no citation to the record (or as it goes in the 9th Circuit, the Excerpt of Record), but not having a citation is not always a problem if the fact is otherwise there in the record. Alas, I looked at the record and found nothing to support the fact. So I asked the attorney about it, and he told me he added the fact based on his “memory” of the case.
This was a problem for the client’s credibility, for sure, and it would have to be dealt with carefully because referring to a fact outside the record is a big no-no. I did what I often do with problematic facts, I worked to focus the court’s attention on other non-problematic facts, in this case the facts that were duly cited in the record. In writing the argument, though, I saw that the respondent also referred to numerous “facts” that were nowhere to be found in the record. Apparently, the attorney for the respondent also thought he should inform the court about facts from his “memory.”
The funny part about the respondent’s argument, though, was that it started with an attack on the appellant’s citation to a fact outside the record, which the respondent claimed was false, then it proceeded to cite numerous other facts outside the record! The problem is the 9th Circuit has no way of knowing whether a party is citing to facts that are true or false if they are not in the record. And the ink spilled disputing facts that are not in the record distracts the court from the more pressing issue of considering your legal analysis.
Don’t do this. Appellate rules are there for a reason. Ignoring them hurts your reputation before the court, and it is a disservice to your argument.
If you are struggling with how to write an appeal that properly cites to your record, then get in touch with me here.
