The Proof is in the Record, not the Pudding

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The Fourth District Court of Appeal today gives us a humorous reminder of the importance of making a proper record before the trial court, and ensuring that record is before the appellate court. In this mortgage foreclosure action, the trial court granted involuntary dismissal because the Bank moved a copy of the Original Note, rather than the note itself, into evidence. On appeal, the Bank argued that the trial court erred because the original note was eventually surrendered, but the Court of Appeal correctly dismissed this argument, because it relied on evidence outside of the record:

Appellant maintains that it surrendered the note in a “package” to the clerk following the trial and requests this court to make the “logical and equitable” presumption that the original note was in the “package” surrendered to the court. However, this court does not make “logical and equitable” leaps of faith, as it cannot (and should not) make any such determination unsupported by the record before it. Appellant further contends that the trial court’s decision should be reversed because “the proof was in the pudding.” This may be true as, for all we know, the original promissory note was in that pudding. Nonetheless, it was not admitted into evidence at trial (although a copy of the note was moved into the record) and there is no indication that the original note has been previously filed with the court or the court clerk.

If you are ever tempted to make arguments based on items outside the record, don’t do it. I will henceforth call this the “pudding rule.”

The case is Deutsche Bank v. Huber, No. 4D12-3696 (April 23, 2014) [.pdf].

Second District eFiling Guidance

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The Second District Court of Appeals this week started accepting voluntary electronic filing of appeals via the state eFiling portal. The Court has also issued several Administrative Orders to make the process go more smoothly. In AO 2013-2 [.pdf], the Court is requiring all electronic appendices to be fully text-searchable, and indexed or bookmarked. And really, this will make life so much easier for the judges and staff attorneys who are reading your brief and appendix. When it’s easier for them to find your record references, it will also be easier for them to understand your argument.

Filing through the ePortal also means that the former requirement to email a text copy of your brief to the Court has been terminated. See AO 2013-3 [.pdf]. What is not clear, however, is how this will affect the workflow for the judges at the Second DCA. That court is infamous for preparing summaries of briefs that pull together one party’s argument and line it up next to the other party’s. It will be interesting to hear how the judges adjust their process.

Bye Bye, Expanded Record Excerpts!

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Just in time for the Florida Bar Annual Meeting, the Eleventh Circuit issued a new Administrative Order, General Order 39 [.pdf], significantly reducing the documents that a party must provide to the Court in paper form. As regular readers or 11th Circuit practitioners might recall, the “Expanded Record Excerpts” the Court had been requiring to go along with the electronic record was quite burdensome to clients and attorneys and generated an enormous amount of paper.

It’s kind of funny that the Court in its electronic records program requires the trial court to ensure that the electronic record be in text-searchable format, but the General Order posted on the Court’s website is not. Still, this is a big step forward for appellate practitioners in the Eleventh Circuit. This change no doubt stems from the lively conversation at February’s Eleventh Circuit Appellate Practice Institute [.pdf], so it’s great to hear that the Court was so responsive in balancing the needs of its judges with the practicalities faced by its advocates.