Supreme Court of Missouri
en banc

In re:

(1) Adoption of a new subdivision 27.04, entitled "System-Generated Legal File," of Court Operating Rule 27, entitled "Electronic Filing."

(2) Repeal of subdivision 81.12, entitled "Record on Appeal," of Rule 81, entitled "Appeals," and in lieu thereof adoption of a new subdivision 81.12, entitled "Record on Appeal."

(3) Repeal of subdivision 84.04(c), entitled "Statement of Facts;" subdivision 84.04(e), entitled "Argument;" and subdivision 84.06(a), entitled "Size - Type - Form," of Rule 84, entitled "Procedure in all Appellate Courts," and in lieu thereof adoption of a new subdivision 84.04(c), entitled "Statement of Facts;" a new subdivision 84.04(e), entitled "Argument;" and a new subdivision 84.06(a), entitled "Size – Type – Form."

(4) Repeal of subdivision (b) of subdivision 103.04, entitled "Format of Electronically Filed Documents," of Rule 103, entitled "Electronic Filing," and in lieu thereof adoption of a new subdivision (b) of subdivision 103.04, entitled "Format of Electronically Filed Documents."
1. It is ordered that effective January 1, 2018, subdivision 27.04, of Court Operating Rule 27 be and the same is hereby adopted to read as follows:

COURT OPERATING RULE 27 ELECTRONIC FILING

COURT OPERATING RULE 27.04 SYSTEM-GENERATED LEGAL FILE

(a) The state courts administrator shall provide in the electronic filing system for the creation of a system-generated legal file. The system shall allow registered users to designate documents in the trial court record for inclusion in the legal file and a legal file index. That index, which shall be filed with the appellate court, shall contain hyperlinks to the designated trial court documents.

(b) After a notice of appeal is filed, the trial court record that existed before the notice was filed shall not be altered without leave of the appellate court.

2. It is ordered that effective January 1, 2018, subdivision 81.12, of Rule 81 be and the same is hereby repealed and a new subdivision 81.12 adopted in lieu thereof to read as follows:

81.12 RECORD ON APPEAL

(a) Contents of Record on Appeal. The record on appeal shall contain all of the record, proceedings and evidence necessary to the determination of all questions to be presented, by either appellant or respondent, to the appellate court for decision. It is divided into two components: the legal file and the transcript.

(b) Legal File.

The appellant shall prepare the legal file. If the electronic filing system permits creation of a system-generated legal file as provided in Rule 81.12(b)(1) and Court Operating Rule 27.04, that method shall be used. If that method cannot be used, the legal file shall be prepared as provided in Rule 81.12(b)(2).

(1) System-Generated Legal File.

(A) Contents of Legal File. The legal file shall consist of the legal file index generated by the system and all of the hyperlinked documents referenced therein.

(B) Document Designation. Appellant shall designate trial court documents for inclusion in the legal file and submit such designations for filing in the manner provided by the system for the generation of the legal file index.

(C) Matters Included. Pleadings and other portions of the trial record previously reduced to written form may be designated for inclusion in the legal file. The legal file shall always include by designation: the pleadings upon which the action was tried, the verdict, the findings of the court or jury, the judgment or order appealed from, motions and orders after judgment, and the notice of appeal.

(D) Matters Omitted. The legal file shall not include the original or any subsequent writ or the return thereto unless a question is raised as to the regularity of the process or its execution or as to the jurisdiction of the court. If any pleading is amended, the legal file shall include the last amended pleading and shall not include any abandoned pleadings or abandoned part of the record not introduced in evidence. No matter touching on the organization of the court, or any continuance, motion, or affidavit, not material to the questions presented for determination, shall be designated in the legal file index. The following items shall not be included in the legal file unless necessary to the determination of issues on appeal: briefs and memoranda, notices of filing, subpoenas, summonses, motions to extend time, affidavits and admissions of service and mailing, notices of setting, depositions and notices, and jury lists.

(E) Documents Unavailable for Designation. If any document in the trial court record is not available for designation, appellant shall file with the clerk of the trial court, within 10 days after the notice of appeal is filed, a written request that those unavailable documents be entered into the system. Such request shall specifically identify each requested document by reference to the case number, document title, and date of filing. The clerk shall promptly make the requested documents available for designation through the system and shall make a record of such availability with an appropriate docket entry.

(2) Non-system Generated Legal File.

(A) Duty of Appellant to Compile the Legal File. If appellant cannot create a system-generated legal file, appellant shall use the following method to prepare the legal file.

(B) Ordering Documents. Unless the parties file a written agreement regarding the legal file as provided in Rule 81.15(a), appellant shall order any documents that are needed for the legal file from the clerk of the trial court within 30 days after the notice of appeal is filed.

(C) Matters Included. The legal file shall contain clearly reproduced exact copies of the pleadings and other portions of the trial record previously reduced to written form. The legal file shall always include: the docket sheet or case record, which contains a complete summary of all events in the case; the pleadings upon which the action was tried, the verdict, the findings of the court or jury, the judgment or order appealed from, motions and orders after judgment, and the notice of appeal, together with their respective dates of filing or entry of record; except that parties may agree in writing upon an abbreviated or partial record on appeal or upon a statement of the case as provided in Rule 81.13.

(D) Matters Omitted. The legal file shall not include or set forth the original or any subsequent writ or the return thereto unless a question is raised as to the regularity of the process or its execution or as to the jurisdiction of the court. If any pleading is amended, the legal file shall include the last amended pleading and shall not set forth any abandoned pleadings or abandoned part of the record not introduced in evidence. No matter touching on the organization of the court, or any continuance, motion, or affidavit, not material to the questions presented for determination, shall be inserted in the legal file. No part of the legal file when once set forth in the legal file should be repeated in any other part of the legal file.

The following items shall not be included in the legal file unless necessary to the determination of issues on appeal: briefs and memoranda, notices of filing, subpoenas, summonses, motions to extend time, affidavits and admissions of service and mailing, notices of setting, depositions and notices, and jury lists.

(E) Form - Index and Page Numbers. The legal file shall be so labeled with a cover page numbered as page 1. The documents in the legal file shall begin with a docket sheet or case record. The oldest document shall follow the docket sheet, with the remaining documents arranged in chronological order, ending with the notice of appeal. The pages of the legal file shall be numbered consecutively and shall contain a complete index at the front thereof designating the specific volumes and pages where the particular records, pleadings, motions, verdicts, judgment, orders, instructions, evidence, exhibits, and documentary evidence may be found. If the legal file exceeds one volume, a complete index shall be included at the beginning of each volume. The cover page and index to the legal file shall conform to the format requirements of Rule 81.18.

(F) Certification. Unless the parties file a written agreement regarding the legal file as provided in Rule 81.15, the clerk of the trial court shall certify copies of the documents ordered for the legal file. Appellant shall be responsible for preparing the legal file, including the index thereto, from the certified copies of such documents. Except as provided in Rule 81.15, the legal file shall be certified by the clerk of the trial court to consist of true copies of portions of the trial record, proceedings, and evidence previously reduced to writing and filed in the trial court.

(c) Transcript.


(1) Duty of Appellant to Order Transcript. Within ten days after the notice of appeal is filed, appellant shall order the transcript, in writing, from the reporter or from the clerk of the trial court if the proceedings were recorded by means of an electronic sound recording. Charges due for preparation of the transcript shall be paid as directed in section 512.050, RSMo. The written order shall designate the portions of the proceedings and evidence not previously reduced to written form that are to be included in the transcript. Appellant's certificate stating the date on which the transcript was ordered and the date on which the transcript charges were paid shall be filed in the appellate court within ten days after the payment of the charges.

(2) Matters Included. The transcript shall contain the portions of the proceedings and evidence not previously reduced to written form and necessary to determination of the issues on appeal.

(3) Form: Index and Page Numbers. The pages of the transcript shall be numbered consecutively beginning with the title page and shall contain a complete index at the front thereof designating the specific volumes and pages where the particular records, pleadings, motions, verdicts, judgment, orders, instructions, evidence, exhibits, and documentary evidence may be found. If portions of the trial record, proceedings, and evidence are omitted from the transcript, the indices shall so indicate. If the transcript includes the testimony of witnesses, the index shall refer to the transcript pages where the several examinations (direct, cross, re-direct, etc.) of each witness may be found. Exhibits shall be identified in the index by number or letter and page and, in addition, shall be described so that the court can distinguish the exhibits.

A volume of transcript shall not exceed 200 pages.

(4) Form: Text Searchable PDF and Margins. The transcript shall be either typewritten or prepared using computer software and filed in a text searchable PDF format, except those filed by parties ineligible for electronic filing. It shall comply with the requirements of Rule 81.18 except that:

(A) There shall be no fewer than nine characters to the typed inch;

(B) It shall have a left margin of not less than one and one-fourth or more than one and three-fourths inches;

(C) It shall have a right margin of not more than three-eighths of an inch;

(D) There shall be no fewer than 25 typed lines per page; and

(E) Each question and answer shall begin no more than five spaces from the left margin, with no more than five spaces from the "Q" and "A" to the text. Carry-over questions and answers shall begin at the left margin.

(5) Certification of the Transcript. If the trial proceedings are recorded by a court reporter present at the time of such proceedings, the transcript shall be certified by the court reporter as a true and accurate reproduction of the proceedings transcribed. If the trial proceedings are recorded by means of an electronic sound recording, the transcript shall be certified by the transcriber as a true and accurate reproduction of the sound recording.

(d) Record on Appeal When and Where Filed and Served. Within the time prescribed by Rule 81.19, the appellant shall cause the record on appeal to be prepared in accordance with the provisions of this Rule 81 and to be filed with the clerk of the proper appellate court.

A copy of the record on appeal shall not be filed with the trial court except upon court order or as provided in Rule 30.04. The record on appeal or any part thereof, prepared in accordance with this rule, shall be filed by the clerk of the appellate court without need for the parties to approve it. The filing of the legal file and transcript shall not operate as a waiver by the filing party of the right to dispute the correctness thereof as provided in Rule 81.15.

Service shall be in accordance with Rule 81.006. The copy of the legal file prepared as provided in Rule 81.12(b)(1), served on a party ineligible to file documents through the electronic filing system, shall include the legal file index and copies of all hyperlinked documents listed therein, bearing the system-generated appeal document number and page number.

(e) Respondent's Supplemental Record. If a respondent is dissatisfied with appellant's record on appeal, that respondent may file without leave of court within the time allowed for filing respondent's brief such additional parts of the record on appeal as respondent considers necessary.

(1) If a system-generated legal file has been filed by appellant, a registered user shall use the method in Rule 81.12(b)(1) to create a respondent's supplemental legal file. A party ineligible to file documents through the electronic filing system shall use the method in Rule 81.12(b)(2) to create a respondent's supplemental legal file.

(2) If a non-system-generated legal file has been filed by appellant, a respondent's supplemental legal file shall be created using the method in Rule 81.12(b)(2).

(f) Errors - Omissions - Supplemental Record on Appeal. If anything material is omitted from the record on appeal:

(1) The parties by stipulation shall direct that the omission or misstatement be corrected; or

(2) The appellate court, on a proper suggestion or of its own motion, may:

(A) Direct the parties to correct the omission or misstatement or order the clerk of the trial court to send up any original documents or exhibits; or

(B) Order that either party or the clerk of the trial court prepare and file a supplemental record on appeal, including any additional part of the trial record, proceedings, and evidence.

(g) Preparation of the Supplemental Record. The provisions of this Rule 81.12 relating to designation, generation, certification, and correctness of the record on appeal shall apply also to any supplemental record filed pursuant to this Rule 81.12.

(h) Multiple Appeals: The Record on Appeal. If more than one appeal is taken from the same judgment, a single record on appeal may be prepared with each appellant sharing the cost.

3. It is ordered that effective January 1, 2018, subdivision 84.04(c), 84.04(e), and 84.06(a), of Rule 84 be and the same are hereby repealed and a new subdivision 84.04(c), a new subdivision 84.04(e), and a new subdivision 84.06(a) adopted in lieu thereof to read as follows:

84.04 BRIEFS – CONTENTS

(c) Statement of Facts. The statement of facts shall be a fair and concise statement of the facts relevant to the questions presented for determination without argument. All statements of facts shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits. If the citation is to the system-generated legal file, it shall include the system-generated appeal document number and page number (e.g., D6 p. 7). If the portion cited is contained in the appendix, a page reference to the appendix shall also be included (e.g., D6 p. 7; App 9).

(e) Argument. The argument shall substantially follow the order of "Points Relied On." The point relied on shall be restated at the beginning of the section of the argument discussing that point. The argument shall be limited to those errors included in the "Points Relied On." For each claim of error, the argument shall also include a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of review.

If a point relates to the giving, refusal or modification of an instruction, such instruction shall be set forth in full in the argument portion of the brief.

Long quotations from cases and long lists of citations should not be included.

All factual assertions in the argument shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits. If the citation is to the system-generated legal file, it shall include the system-generated appeal document number and page number (e.g., D6 p. 7). If the portion cited is contained in the appendix, a page reference to the appendix shall also be included (e.g., D6 p. 7; App 9).

84.06 FORM OF BRIEFS

(a) Size – Type – Form. A brief should be prepared using computer software and filed in a text searchable PDF format, except those filed by parties ineligible for electronic filing. The brief shall:

(1) Be formatted for pages of size 8½ X 11 inches;

(2) Have a left, right, top and bottom margin of not less than one
inch. Page numbers may appear in the bottom margin, but no other text may appear in the margins;

(3) Have all pages, including the cover page, consecutively paginated using Arabic numbers;

(4) The font size throughout the brief, including footnotes, shall not be smaller than 13 point, Times New Roman; and

(5) Have line spacing not less than 1.5, except that the following may be single-spaced: the cover; headings; quotations more than two lines long; footnotes; certificate of service; certificate required by Rule 84.06(c); and signature block.

4. It is ordered that effective January 1, 2018, subdivision (b) of subdivision 103.04, of Rule 103 be and the same is hereby repealed and a new subdivision (b) of subdivision 103.04 adopted in lieu thereof to read as follows:

103.04 FORMAT OF ELECTRONICALLY FILED DOCUMENTS

(b) Electronic documents that are part of the official court record shall be self-contained and shall not contain hyperlinks other than those generated by the electronic filing system.

5. It is ordered that notice of this order be published in the Journal of The Missouri Bar.

6. It is ordered that this order be published in the South Western Reporter.

Day – to – Day


________________________________
PATRICIA BRECKENRIDGE
Chief Justice