Other than the type of order being appealed from, the record made in front of the trial court is almost always a defining factor when it comes to what issues can be raised on appeal. There are also two primary ways that the record in front of the trial court establishes what issues can be properly raised: (1) the arguments that were made by the parties, and (2) the evidence that was put into the formal record for the trial court’s consideration. Failing to create a proper record on either of these two prongs can often mean that the issues you might otherwise wish to raise do not get full review on appeal.
A central rule for Idaho’s appellate courts is that, in order to be able to raise an issue on appeal, “both the issue and the party’s position on the issue must be properly raised before the trial court.” [xxxvii] This is sometimes referred to as the “preservation doctrine” or party preservation rule. With very limited exception, if you or your counsel did not make a formal request or objection about the issue, the appellate court “will not consider issues raised for the first time on appeal.” [xxxviii] That being said, appellate courts do permit an issue to “evolve” to a certain extent. While the basic nature of the issue must be preserved by the parties at trial, a party can refine that argument with additional considerations or legal authority that are relevant to that claim. [xxxix]
The second aspect of the record on appeal that can determine what issues can be raised deals with the evidence that was put before the trial court in litigating a claim. The Idaho Appellate Rules require that briefs on appeal contain more than just the legal arguments and citations to authority; these briefs also must include citations to the “parts of the transcript and record relied upon” for any claim of reversible error. [xl] The Idaho Supreme Court has stated that it will not “search the record on appeal for unspecified error”; in absence of citations to the trial record, an appellate court will deem an issue waived. [xli] With very limited exception, the Idaho Supreme Court also will not second guess the rulings of the trial court on any issues of the weight of the evidence or credibility of witnesses. [xlii]
As a corollary to this requirement, Idaho appellate courts “will not consider an exhibit or evidence” that was “not a part of the record before the trial court.” [xliii] Appellate courts in Idaho are not fact-finding tribunals; the function of the appellate court is to review claims of error relating to the findings, conclusions, and orders of the trial court based on the information presented to the court at that time. [xliv]
One last, but important, consideration is making sure that the record on appeal reflects all the necessary documents, exhibits, filings, and transcripts from the trial court. Even if you make a perfect record of your objections at trial, this record does not help your case if necessary portions of the record aren’t integrated into the appellate record. Checking the appellate record is important. You cannot assume that every document you may need from the trial record will be automatically included in the Clerk’s Record (the portion of the appellate record containing documents that are part of the trial record). Idaho Appellate Rule 28 deals with the contents of a Clerk’s Record. The first portion of the rule contains a warning addressing the fact that a standard record may not include all the materials that are relevant and necessary for the appeal:
Parties are responsible for designating the documents which will comprise the clerk’s record on appeal. The standard record described in subsection (b) is not designed to include many items (i.e., motions for summary judgment, affidavits, jury instructions, etc.) which may be pertinent to the appeal in a specific case. [xlv]
Because of this, you should always check and recheck what has been included in the Clerk’s Record on appeal against the register of actions/case summary. [xlvi] In addition, any of the transcripts that are needed for the appeal should also be requested in the Notice of Appeal. If you are the appellant, it is your responsibility to identify and request production of any transcripts.
Creating a complete record on appeal matters because the failure to provide an adequate record, standing alone, may lead the appellate court to rule against you on appeal. The Idaho Supreme Court has frequently held that: “It is the responsibility of the appellant to provide a sufficient record to substantiate his or her claims on appeal. In the absence of an adequate record on appeal to support the appellant’s claims, we will not presume error.” [xlvii]