Expanding the Record on the Ex Parte

Purists like to argue that an appeal consists only of the documents contained in the trial court file before the Notice or Claim of Appeal is filed. While this is certainly the general rule, there are a number of pragmatic reasons why appellate courts do not rigorously adhere the “flash freeze” theory of issue preservation. This week’s SCOTUS blog has an interesting discussion about filing non-record materials for the first time in the United States Supreme Court. It appears to happen fairly frequently.