I Want That On The Record
For the record, put that on the record, we need that to be on the record, I don’t want that on the record, we need to make a record, and other references to the almost mythical “record” come up in every divorce case.
Despite continuous references to the record, rarely is the record clearly understood by the client. As outlined below, the record takes on many forms and is not found in any one location. The record is never any one thing but neither is it all things it might be assumed to be.
To begin, when discussing the record at the trial court level, it is best to think of it as having two parts: the public record and everything else. The public record, also called the common law record, includes anything on paper that is contained in a public court file. Typically, that would include pleadings and any exhibits actually attached to the pleading, court orders and rulings, and anything else that is filed such as proof of service, notices, subpoenas, and a transcript of the final divorce prove-up hearing. There are specific rules as to what can be placed in the public court file and things like discovery requests, answers, and related documents for example are not to be put in the court file.
A more common perception of the record are transcripts of court proceedings. These can be part of the public or private record of a case. Transcripts are made when a court reporter or automatic audio recording system takes down or records every word that is said by the lawyers, judge, and any other person speaking in court whether it be a witness on the stand or just another party or person speaking to the judge. This recording process can occur at any court date including routine status appearances but it is more common at oral arguments and evidentiary hearings. In some courthouses, audio recording is always turned on. When there is no official audio recording, a court reporter is used to take down all that is said.
Court reporters can be provided by the court itself, but more typically a private court reporter is hired by one or both of the parties. With both audio recording and court reporter transcribing, a transcript must be ordered to create an actual document of what was said. However, just because a transcript is created, it does not become part of the public court file unless it is filed with the court due to a specific rule or circumstances. If not filed with the court, a transcript could be considered part of the case record, but it is not part of the public record. An exception to this general rule is that with automatic courtroom audio recording, theoretically anyone in the public could order a transcript of a proceeding.
Court reporters and transcripts are also part of depositions. Deposition transcripts are part of the private case record and are only rarely made part of the public record since they are usually for discovery purposes only and discovery does not get filed with the court in Illinois.
Letters and emails between the attorneys are never part of a public record unless they are attached to a filed pleading. However, one could still consider this “making a record” by memorializing something in writing even though that letter or email will most likely never be read by a judge or made part of thecourt file.
Another area of the record is anything that is admitted into evidence by a judge during evidentiary proceedings. However, even when admitted into evidence at a hearing, these documents or other tangible items do not become part of the public court record. Rather, they are usually held by the judge or returned to the attorneys at the end of a hearing.
Finally, if a case is appealed from the Circuit Court to the Appellate Court, something called the “record on appeal” is specifically created for the Appellate Court. That record will include the public or common law record, all transcripts of in court proceedings, and any exhibits admitted into evidence at the subject hearing or trial.
As you can see, making a record can mean many different things at different times in the life of a divorce case. Ultimately, the important facts and legal points are almost always made a part of some portion of the public or private record of a case. However, the idea of wanting something “on the record” just for the sake of preserving a personally important point that is not relevant to any major issue in the case will probably leave one disappointed, since no one, including the judge, will ever notice it.
David C. Ainley is a partner with Katz & Stefani.