To file a motion to augment the record on appeal, identify the omitted document, exhibit, or transcript with precision, explain why it matters to an issue in your appeal, show that it was already part of the trial court proceedings, and file the motion with the appellate court along with a supporting declaration, a proposed order, and a proof of service. In federal court, this procedure lives in Rule 10(e) of the Federal Rules of Appellate Procedure, which allows correction when something “material to either party is omitted from or misstated in the record by error or accident.”1Legal Information Institute. Rule 10. The Record on Appeal
One boundary to keep in mind before you draft anything: this motion cannot introduce new evidence. If a document was never presented to the trial court, it does not belong in the appellate record. The purpose is to make the record accurate and complete, not to give either side a second chance to build a case.
Three Ways to Fix the Record in Federal Court
Federal Rule of Appellate Procedure 10(e) gives you three routes, and they differ in formality and who acts.1Legal Information Institute. Rule 10. The Record on Appeal Try them in order of least to most contentious.
The first is a stipulation of the parties. If both sides agree that something was left out, they can sign a stipulation, and a supplemental record gets certified and forwarded without a judge’s order. Fastest and cheapest.
The second is a district court order. The trial court can correct the record on its own, either before or after the record has been sent up. This works well when the omission is clearly clerical and the trial court is best positioned to identify what went wrong.
The third is an appellate court order. You file a formal motion asking the court of appeals to direct augmentation. This is the path when the other side will not stipulate and the district court has not acted.
State appellate courts have their own versions. Some let you notify the trial court clerk of the omission and have the missing material sent up without a formal motion, at least before the record has been transmitted. Others require a motion regardless. Check your jurisdiction’s rules of appellate procedure before drafting.
What to Put in the Motion
When a stipulation is not possible and you are filing with the appellate court, the motion has to do three things: identify the missing item precisely, explain why it matters, and show it was part of the original trial court record.
Caption and Specificity
Include the full case caption with the names of the parties, the trial court case number, and the appellate case number. State exactly what was omitted. Not “certain documents.” Give the exhibit number, the title of the motion, or the date and subject of the hearing whose transcript is missing.
Materiality
Explain how the omitted material connects to an issue you plan to raise on appeal. Courts are far more likely to grant augmentation when the missing item ties directly to an argument in your brief. A vague relevance explanation is one of the most common reasons these motions are denied.
Supporting Declaration
A declaration or affidavit is standard practice. This is a sworn statement, signed under penalty of perjury, in which you affirm that the item was part of the trial court record and that its absence is due to error or oversight rather than a deliberate choice not to include it. Motions that skip this step get denied for lack of proper support.
Proposed Order and Attachments
Many courts expect a proposed order for the judge to sign. The order directs the trial court clerk to prepare a certified copy of the missing material and transmit it to the appellate court. If you already have a copy of the missing document, attach it with pages numbered consecutively starting at page one. Attaching your copy often speeds things up because the court can add it to the record directly rather than waiting for the clerk below to locate and certify a new copy.
Filing and Serving
The motion goes to the appellate court handling your case, not back to the trial court. Federal appellate courts use CM/ECF as the primary filing method, and most state appellate courts now use their own electronic systems. Check whether your court also requires paper courtesy copies. Some still do.
Serve a copy of the motion on every other party at or before the time you file it.2U.S. Congress. Federal Rules of Appellate Procedure – Rule 25 Service can be electronic through the court’s filing system if the other parties are registered users, by mail, or by commercial carrier. Electronic service is complete upon filing or sending. Mail service is complete when you drop it in the mailbox.
A proof of service must accompany the filed motion. It needs to identify the date and method of service, the names of the people served, and their addresses or electronic addresses.2U.S. Congress. Federal Rules of Appellate Procedure – Rule 25 Courts will not consider a motion that lacks it.
When There Is No Transcript at All
Sometimes the transcript does not merely have gaps; it does not exist, because the proceedings were never recorded or the recording was lost. Federal Rule 10(c) handles this with a different procedure than the standard augmentation motion.1Legal Information Institute. Rule 10. The Record on Appeal
The appellant prepares a written statement of the evidence or proceedings from the best available means, including their own recollection. That statement is served on the opposing party, who has 14 days to file objections or proposed changes. Both the statement and any objections then go to the trial court, which settles disputes and approves the final version. Once approved, the clerk includes it in the record as a substitute for the missing transcript.1Legal Information Institute. Rule 10. The Record on Appeal
Reconstruct events carefully. Use any notes, filings, or exhibits that refresh your memory. If the opposing side challenges your recollection and the trial court sides with them, you end up with a statement that may not help your case.
Paying for a Missing Transcript
If the omitted item is a transcript that was never ordered, you have to pay for it. In federal courts, the Judicial Conference sets per-page maximums that vary by turnaround time, effective October 2024:3United States Courts. Federal Court Reporting Program
- Ordinary (30-day): $4.40 per page
- 14-day: $5.10 per page
- Expedited (7-day): $5.85 per page
- 3-day: $6.55 per page
- Next-day (daily): $7.30 per page
A single day of trial testimony can easily run 150 to 250 pages, so even at the ordinary rate, one hearing’s transcript might cost $660 to $1,100. State court reporter rates are set by each state and tend to fall in a similar range. Budget for this early. Discovering you need a transcript after your briefing deadline is already pressing turns a routine order into an expensive rush order.
What Happens After You File
The opposing party has a window to respond. In federal courts, the response period for motions is set by local rules and typically runs 10 to 14 days, though the court can shorten or extend it. The opposing side may argue that the item was never part of the trial record, or that it is not material to any issue on appeal.
The appellate court decides the motion on the written submissions. There is no hearing. If the court grants the motion, it signs the proposed order directing the trial court clerk to certify and forward the missing material, or it adds your attached copy directly to the record. If the court denies the motion, the appeal proceeds with the original record.
Denials most often happen when the court finds the item was not actually part of the original proceedings, the motion fails to show why the item matters to an issue on appeal, or the motion lacks a supporting declaration. A motion that clearly ties the omitted item to a specific appellate issue and includes a sworn statement about its origin rarely gets turned down.
File Promptly
Review the record carefully when you first receive it and compare it against the trial court’s docket. File the motion as soon as you spot a gap. Waiting until briefing is underway, or until after you have cited a document that turns out to be missing, creates problems that range from embarrassing to case-ending. The earlier the motion goes in, the more time the court has to fix the record before your brief is due.