Extraordinary Standards
“These quarrels must be quietly debated.”
It seems that after nearly forty years of practice, I have stumbled upon a new standard of review used by Appellate Courts. At least, it’s new to me. This standard applies when an Appellate Court in Tennessee is reviewing a trial court’s ruling regarding the supplementation or modification of the record in an appeal.
When a party desires to supplement the record in an appeal, they must first move the trial court. Rule 24(e) of the Tennessee Rules of Appellate Procedure reads:
If any matter properly includable is omitted from the record, is improperly included, or is misstated therein, the record may be corrected or modified to conform to the truth. Any differences regarding whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by the trial court regardless of whether the record has been transmitted to the appellate court. Absent extraordinary circumstances, the determination of the trial court is conclusive.
The last sentence of this rule creates a standard of review, the “extraordinary circumstances” standard, whereby an Appellate Court may reverse a trial court’s conclusion regarding the modification or supplementation of the appellate record only if the Appellate Court determines that extraordinary circumstances exist to justify the reversal.
This falls in the “Old Dog/New Trick” category for yours truly. I have, until lately, never seen this very strict standard of review applied in the field. As it stands, there are no bright line contours to understand when “extraordinary circumstances” exist. In the past six years, the Appellate Courts have mainly upheld trial court decisions based on a lack of extraordinary circumstances. No court yet has given us a definitive idea of the parameters of the extraordinary circumstances standard. In fact, I found only one case where the Court reversed a trial court ruling allowing something to be added to an appellate record. In State v. Rogers, 188 S.W.3d 593, 610-11 (Tenn. 2006), the Tennessee Supreme Court found an extraordinary circumstance to overturn a trial court’s determination, holding that the trial court’s decision to supplement the appellate record with certain mental health and social services records of the victim’s brother was an extraordinary circumstance and therefore was error, when the records had never been reviewed or considered by the trial court or the jury.
It is, ironically, an extraordinary circumstance for me to learn a new standard of review at this stage of my career, an extraordinary standard no less, with very little to guide a practitioner as to its scope. Does anyone have examples in their practice of what other extraordinary circumstances might make the trial court’s ruling about supplementing or modifying the appellate record inconclusive?
