Phillips Petroleum Co. v. Williams, 11511.

• Decision Date: 11 February 1947
• Docket Number: No. 11511.,11511.
• Citation: 159 F.2d 1011
• Parties: PHILLIPS PETROLEUM CO. v. WILLIAMS et al.
• Court: U.S. Court of Appeals — Fifth Circuit

159 F.2d 1011 (1947)

PHILLIPS PETROLEUM CO. v. WILLIAMS et al.

No. 11511.

Circuit Court of Appeals, Fifth Circuit.

February 11, 1947.

Warren M. Sparks and E. H. Foster, both of Amarillo, Tex., and Rayburn L. Foster, R. B. F. Hummer, and Don Emery, all of Bartlesville, Okl., for appellant.

E. Byron Singleton and D. H. Culton, both of Amarillo, Tex., for appellees.

Before SIBLEY, HUTCHESON, and WALLER, Circuit Judges.

HUTCHESON, Circuit Judge.

In Knutson v. Metallic Slab Form Co., 5 Cir., 132 F.2d 231, 233, we have carefully pointed out that Federal Rule of Civil Procedure 75(e), 28 U.S.C.A. following Section 723c, and Rule 23 of this court, for printing records, emphasize the virtues of abbreviating the record and its printing and the vices of unduly lengthening it. In that case we said:

"There is undue timidity about shortening records. Rule 75(h) provides means for obtaining any matter from the district court which it later appears ought to have been included in the transcript. Our Rule 23 gives full liberty to this court to inspect the transcript or have additional matter in it printed, if a proper disposition of the case requires it. The time is past in federal procedure when inadvertent or technical failures, or omissions that can be supplied, will wreck the right decision of a case."

Since that decision was rendered, our Rule 23 has been further amended by the addition of Subdivisions 10 and 11. Subdivision 10 makes provision for shortening the printed record and for penalties for not doing so when, in lieu of having the record printed under the supervision of the clerk of this court, appellant has it printed below. Subdivision 11 authorizes the appellant to apply to the trial judge for an order preventing unnecessary printing, whether the printing is done under Subdivisions 1 or 10.

Rule 75 of the Rules of Civil Procedure, for making up the record, as well as our Rule 23, was drawn to save useless costs and to bring a record on appeal within the compass of its real issues instead of permitting it to sprawl extravagantly and in confusion over thousands of printed pages. With any proper attention to the mechanics of getting up a record to present the points at issue, this record could have been compressed into at least one-third of its dreary expanse. Lawyers owe an obligation to their clients, to the courts, and to those opposed to them to use every reasonable endeavor to comply with the injunctions of Rule 75 and Rule 23. Nor need any counsel, through fear of a fatal omission, overload the printed record needlessly, for, as we pointed out in the Knutson case, this court has ample authority to, and will, consider matters contained in the record brought up, though not printed. We did so in Reeve Bros. v. Guest, 5 Cir., 132 F.2d 778. This court has ample authority, too, to supplement the record if there has been omitted from it matter which is deemed necessary or appropriate in the decision of the case. This does not mean that counsel should go to the other extreme of bringing up and printing nothing but a skeleton record. It means that with the same fidelity and intelligence with which they conduct the affairs of their clients up to the preparation of the record and its printing, they should conduct that preparation and that printing. It means that where possible counsel should, by concerted action with their opposites, abbreviate the record by agreement, and where not possible to agree, counsel, charged with designating and printing the record, should use common sense and judgment in doing so.

This court has deliberately rejected the rule, obtaining in some circuits, which dispenses altogether with the printing of a record, requiring counsel to print in their briefs such parts of the record as they think appropriate. We have preferred our rule, to print in composite form the record upon which we are to determine the case, because we have found this more convenient than searching through the briefs of the parties for the portions of the record each thinks important. We have preferred our rule, too, because, if it is properly applied, it will produce a continuous and connected record involving less printing in the end than if each counsel prints the parts he wants in his own brief.

Where the record is small, the matter under discussion is of small moment. Where, however, as here and as is often the case, there is a large record, it is of real moment that the rules for designating and printing be complied with. This court will, therefore, not only entertain with sympathy motions to retax for excessiveness but will of its own motion more often scrutinize records for abuses in this regard with a view to imposing not only on the client, whose counsel has erred, but on counsel, whose duty it is to make up the record, costs commensurate with the breach of this duty.

The record in this case was...