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The Law Offices of Robin Bresky Boca Raton & West Palm Beach Appellate Attorney
  • BOCA RATON
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  • WEST PALM BEACH
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  • MIAMI

The Record Deal: And We’re Not Talking Songs

Florida Rule of Appellate Procedure 9.200 dictates what documents shall be included in the record on appeal.  In relevant part, the rule states:

Except as otherwise designated by the parties, the record shall consist of the original documents, exhibits, and transcripts(s) of proceedings, if any, filed in the lower tribunal….

9.200(a)(1), Fla. R. App. P.  The record, and the documents that comprise the record, become of great import when an appellate court is reviewing a final decision of a lower tribunal.  Generally, decisions of lower courts are presumed to be correct and unless the presumption of correctness is overcome by matters crystallized in the record of the proceedings, the appellate court will affirm the order or judgment on review.  There are, however, instances in which a document that was not formally filed in the lower tribunal may be permitted to supplement the record on appeal.

For example, we recently handled a family law appeal wherein a psychologist in the case below rendered an opinion that the wife had been the victim of battered spouse syndrome throughout the marriage.  At trial, however, the doctor testified orally but his deposition testimony was never entered into evidence.  Nevertheless, opposing trial counsel sought to impeach the doctor’s oral testimony and alluded to his deposition testimony in an attempt to show that the doctor’s opinion had changed from the time of the deposition to that of trial.

One of the findings the trial court made in its final order was that the doctor had changed his expert opinion at trial from that which he gave at his deposition.  On appeal, we sought to introduce the doctor’s deposition testimony to show that his opinion had not in fact changed when he gave his oral testimony at trial.  We filed a motion to supplement the record on appeal with the doctor’s deposition testimony, pursuant to Fla. R. App. P. 9.200(f).  Opposing appellate counsel objected to our motion on the ground that the doctor’s deposition was not entered into evidence.  The District Court, however, ruled in our favor, based on our argument that the trial court below relied upon the deposition testimony to the extent the final order included a finding that the doctor’s deposition testimony changed at trial.  Therefore, as you can see factual situations do arise in which a District Court may permit the record on appeal to be supplemented with a document that was not officially included in the record, even over the objection of opposing counsel.

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