This article originally appeared in the Daily Journal on April 23, 2018.

A recent testy interchange between Justices Anthony Kennedy and Sonia Sotomayor during oral argument at the U.S. Supreme Court highlighted a tension between the ubiquity of information on the internet and the constrained nature of the record on appeal. 

The case, NIFLA v. Becerra, No. 16-1140, involved a First Amendment challenge to a California law requiring some pregnancy centers to disclose their lack of medical licensure or the availability of state-funded family planning resources, including abortion. One of the issues was whether the harm that the unlicensed facility disclosure requirement targeted — confusion about whether the centers offered state-regulated medical care — was a real one. While introducing a line of questions on that topic, Justice Sotomayor remarked that she had visited the websites of a few such centers and noted aspects of one of the parties’ websites that arguably suggested the center offered medical advice. Justice Kennedy eventually interjected, introducing his own question with the rather pointed caveat that he “didn’t go beyond the record to look on the Internet because I don’t think we should do that[.]” 

Justice Kennedy’s comment sparked a slew of articles about intra-court dynamics, the propriety of independent research by judges, and the role of judicial fact-finding at the appellate level. Moreover, it touched on a grey area not only for judges and justices, but also for practitioners. When, if ever, is it appropriate to refer on appeal to information from the internet if the website at issue was not made part of the record at trial? 

It’s dogmatic that the record on appeal is confined to the record made at trial. Appellate decision-making operates, in theory, in a closed universe — a snapshot of the world as it existed before the trial court. No matter how relevant a piece of new evidence may be, if it wasn’t before the trial court, it generally shouldn’t be considered on appeal. To conclude otherwise would arguably expand the role of appellate courts beyond recognition and undermine the finality of the adjudicative process. Accordingly, the classic rule is that appellate lawyers must be careful not to refer to or rely on facts outside the trial record. 

The reality, of course, is considerably more complex. The tight constraints on the appellate record apply primarily to adjudicative facts, which are facts related to the specific dispute between the parties.  A classic example of an adjudicative fact is whether, in a tort case arising out of an auto accident, a streetlight was red or green at the critical moment. Another example is whether a criminal defendant intended to kill or harm his victim. In other words, adjudicative facts are the who, what, where, when, how, and why of a specific incident — the type of facts that are determined by a jury in a jury case. And it’s these facts, and the evidence supporting them, that are so strictly limited to the record made at trial. 

In contrast, appellate lawyers can and do rely on all sorts of non-adjudicative facts — facts that do not relate to the particulars of the case — that may or may not have been explicitly considered below. Such facts, often referred to as legislative facts or non-evidence facts, are described in the advisory committee notes to the Federal Rules of Evidence as “those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body.” Accordingly, the legislative history of a statute is fair game on appeal, even though it may not have been made part of a record below. More than that, facts undergirding the policy goals of a particular law, and our common understanding of how the world works in relation to those goals, can come into play for the first time at the appellate level. 

Bringing these principles to bear on the question at hand — the propriety of relying on internet sources for the first time on appeal — a few practical suggestions emerge. If the internet sources supply non-adjudicative facts that are helpful to the court in understanding the background and reasoning of the lawmaking process at issue, they can likely be cited in appellate briefs without issue. But the line between adjudicative and non-adjudicative facts is often blurry, and courts’ reliance even on non-adjudicative facts is sometimes contentious. Indeed, in the NIFLA case mentioned above, the primary clinic website Justice Sotomayor consulted — which, interestingly, both parties had cited in their merits briefs — was relevant for the arguably non-adjudicative purpose of understanding the risk of harm that the statute at issue was intended to address. Yet her comment provoked a rebuke from Justice Kennedy and debate among scholars and practitioners. Accordingly, attorneys should proceed cautiously even when dealing with non-adjudicative facts. 

For purely adjudicative facts, limited options exist to add new information to the record on appeal. An appellate practitioner can ask the court to take judicial notice of the existence of a website or the information contained therein if the facts at issue are not subject to reasonable dispute. Facts can meet that test either because they are generally known or because they are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Examples include the time the sun set on a particular day, whether established by almanac or by a reliable meteorological website, or the distance between two driving points, as calculated by Google Maps. An appellate practitioner can also move to supplement the record on appeal to add adjudicative facts, but courts grant such motions only in rare circumstances. 

Perhaps the best solution is for trial attorneys to immortalize and admit the contents of important internet sources at trial. In deciding whether a particular piece of information is important, trial attorneys may wish to consider, as former Seventh Circuit Judge Richard Posner put it in his book Reflections on Judging, whether the information would be helpful to “answer questions that are likely to occur to appellate judges bothered . . . by gaps in lawyers’ narrative of a case[.]” Presenting such information at trial eliminates any debate about the scope of the record on appeal, obviates concern about the changeable nature of the internet, and diminishes the temptation to refer to facts outside the trial record — a temptation that, as recent brouhaha at the Supreme Court illustrates, can cause trouble for jurists and litigants alike. 

Susan Yorke is of counsel with the California Appellate Law Group LLP*, an appellate boutique based in San Francisco. She served as a law clerk on the 9th Circuit for two judges and in the Appellate Division of the Oregon Department of Justice. Find out more about Susan and the California Appellate Law Group LLP at www.calapplaw.com.

Appellate Zealots is a monthly column on recent appellate decisions written by the attorneys of the California Appellate Law Group LLP.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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