§ 2-105. Bill of exceptions; making, preserving, requesting, and delivery of the record of trial or other proceeding.

Printer-friendly versionPrinter-friendly versionPDF versionPDF version

§ 2-105. Bill of exceptions; making, preserving, requesting, and delivery of the record of trial or other proceeding.

   (A) Making and Preserving the Record; Duty.

   (1) "Court reporting personnel," as defined in Neb. Ct. R. § 1-204(A)(1), shall in all instances make a verbatim record of the evidence offered at trial or other evidentiary proceeding, including but not limited to objections to any evidence and rulings thereon, oral motions, and stipulations by the parties. This record may not be waived.

   (2) Upon the request of the court or of any party, either through counsel or by the party if appearing in a self-represented capacity, the court reporting personnel shall make or have made a verbatim record of anything and everything said or done by anyone in the course of trial or any other proceeding, including, but not limited to, any pretrial matters; the voir dire examination; opening statements; arguments, including arguments on objections; any motion, comment, or statement made by the court in the presence and hearing of a panel of potential jurors or the trial jury; and any objection to the court's proposed instructions or to instructions tendered by any party, together with the court's rulings thereon, and any posttrial proceeding.

   (3) In the absence of a request pursuant to subsection (2) above, any party may request the court reporting personnel to make or have made a verbatim record of any particular part or portion of the proceedings not required by subsection (1) above, and the court reporting personnel shall comply with such request.

   (4) Any request under subsections (2) or (3) above shall be made either in a writing filed with the clerk of the trial court or on the record in open court. If filed with the trial court clerk, the trial court clerk shall provide a copy to the court reporting personnel. In the absence of a request in such manner, it shall be conclusively presumed that no such request was made.

   (B) Requesting a Bill of Exceptions; Payment.

   (1) Automatic Direct Appeals. In criminal cases where the sentence is capital punishment, no request for preparation of the bill of exceptions is required. The clerk of the district court in which the conviction was had shall notify the court reporting personnel, who shall prepare the bill of exceptions as expeditiously as possible, but in no event to exceed the time limitations prescribed in § 2-105.01, unless an extension for such later filing is granted by the Supreme Court. Unless directed otherwise, the court reporting personnel shall include in the bill of exceptions the verbatim record of all hearings, trials, or proceedings in the trial court.

   (2) Requests for Bill of Exceptions; Appeals From Trial Court.

   (a) Request by Appellant. Appellant shall file a request to prepare a bill of exceptions in the office of the clerk of the court from which the appeal is taken at the same time the notice of appeal is filed. Failure to file such request at the same time the notice of appeal is filed shall be deemed as a waiver of appellant of the right to request a bill of exceptions.

   (b) Specification. The request shall specifically identify each portion of the evidence and exhibits offered at any hearing which the party appealing believes material to issues to be presented to the appellate court for review. If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the bill of exceptions must include all evidence relevant to the finding or conclusion.

   (c) Direction of Request. The request filed with the clerk of the court from which the appeal is taken shall be directed to the court reporting personnel responsible for the verbatim record of the proceedings, or if unknown, the name of the trial judge who heard the matter. The appellant shall serve a copy of the request upon the appellee.

   (d) The clerk of the court from which the appeal is taken shall send the request to prepare a bill of exceptions, along with the notice of appeal to

   (i) the court reporting personnel listed on the request,

   (ii) the court reporting personnel known by the trial court clerk to be responsible for responding to the request,

   (iii) the judge who heard the matter if no court reporting personnel is listed or known, or

   (iv) if court staff is tasked with assigning transcription of the record, to such court staff. The clerk of the trial court shall record such action on the register of actions.

   (e) Supplemental Request by Appellee. If the appellee believes additional evidence should be included in the bill of exceptions, the appellee shall, within 10 days after service of the request for bill of exceptions filed by the appellant, file a supplemental request for preparation of bill of exceptions. The request shall be filed with the clerk of the court from which the appeal is taken. A copy of the request shall be sent to the court reporting personnel by the trial court clerk, who shall record such action on the register of actions.

   (f) Failure to Request. If appellant fails to file a request to prepare the bill of exceptions at the same time the notice of appeal is filed, the Clerk shall notify the parties of the failure. In such event, appellee shall have 10 days from the date of filing of the notice of appeal to file a request for a bill of exceptions. Thereafter, no request for a bill of exceptions may be filed without leave of the appellate court for good cause shown, which cause shall not be within a party’s reasonable control.

   (g) Copy of Request to Appellate Court. A copy of each request for preparation of a bill of exceptions filed in the trial court, together with a copy of the notice of appeal, shall be transmitted by the trial court clerk to the Clerk by System-To-System Transfer.

   (3) District Court as Intermediate Appellate Court.

   (a) Where an appeal is taken from a district court acting as an intermediate appellate court, the clerk of the district court shall transmit to the Clerk without a request by appellant:

   (i) the bill of exceptions of the county court or other tribunal inferior to the district court which is the official record of the county court or other tribunal proceeding, and

   (ii) any supplemental bills of exceptions from the county court or inferior tribunal which were reviewed by the district court.

   (b) No specific request for the transmission of the official record of the county court or inferior tribunal bills of exceptions shall be required by appellant, and such bills of exceptions shall not be included as an exhibit in any bill of exceptions in the district court.

   (c) A request by a party for preparation of a bill of exceptions of the district court proceedings shall be in the same manner as a request for a bill of exceptions upon direct appeal from the district court. See § 2-105(B)(2).

   (4) Fee for preparation of a bill of exceptions on appeal.

   (a) Per-Page Rate. The per-page fee to which an official court reporter or privately contracted court transcriber is entitled, as prescribed by the Supreme Court pursuant to Neb. Rev. Stat. § 25-1140.09, is set forth in Neb. Ct. R. § 1-218.

   (b) Estimate of Cost and Deposit. Except in those cases where payment is to be made by a governmental agency, the State of Nebraska, or any political or governmental subdivision thereof, the court reporting personnel responsible for making the record shall advise appellant of the approximate cost of the bill of exceptions immediately after receipt of the request for preparation of the bill of exceptions. Appellant shall deposit the estimated cost with the clerk of the trial court within 14 days after receipt of the estimate. The trial court clerk shall retain the deposit in a trust account until the bill of exceptions is filed with the clerk of the trial court. When the bill of exceptions is filed by the court reporting personnel responsible for making the record, the clerk of the trial court shall immediately pay the court reporting personnel the amount of the cost of preparing the bill of exceptions as certified by the court reporting personnel, and refund any excess payment to the appellant. If additional compensation is due, appellant shall pay the additional amount to the clerk of the trial court within 10 days after receipt of a statement for the additional amount. A similar procedure shall be followed if an appellee requests a supplemental bill of exceptions, with the appellee being responsible for payments. Costs for a bill of exceptions shall be taxed only upon compliance with this rule.

   (c) Failure to Make Deposit. If appellant fails to timely make the required deposit of the estimated cost of preparation, the clerk of the trial court shall transmit a notice thereof to the Clerk and to the court reporting personnel responsible for making the record. Thereafter, unless leave of the appellate court for an extension of time to make the deposit is granted for good cause shown, the appeal shall proceed as if no bill of exceptions had been requested.

   (d) Settlement of Case. The party requesting the preparation of the bill of exceptions may, at any time before the bill of exceptions is completed, file with the trial court clerk a written notice advising the court that settlement has been reached. Upon receipt of the notice, the trial court clerk shall provide the notice to the court reporting personnel and to the Clerk. The trial court clerk shall record such action on the register of actions. Upon receipt of such notice, court reporting personnel shall cease any further work upon the bill of exceptions or, if applicable, immediately notify the private transcriber to cease further work upon the bill. Court reporting personnel shall be entitled to payment by the party ordering such bill of exceptions for the work performed up to the time that such notice was sent to the court reporting personnel and rules with regard to payment of the fees to the official court reporter or privately contracted court transcriber for the bill of exceptions, as otherwise provided herein, shall apply.

   (C) Request by Court Reporting Personnel for Extension of Time for Preparation of Bill of Exceptions.

   (1) Where a bill of exceptions has been ordered according to law and these rules by the timely filing of a request, and the court reporting personnel are unable to prepare (or have prepared) and file the bill of exceptions with the clerk of the court from which the appeal is taken within the times fixed by § 2-105.01(B), the appellate court may grant additional time for preparation of the bill of exceptions upon request of the court reporting personnel authorized by the trial judge.

   (2) A request by court reporting personnel for extension must be made not later than 7 days prior to the expiration of the time originally prescribed, or not later than 7 days prior to the expiration of an extension previously granted. The request, which must specify the length of extension sought and be authorized by the trial court judge currently assigned to the trial court case, shall be submitted to the trial court judge using the electronic filing system for court reporting personnel. The electronic filing system for court reporting personnel will require the court reporting personnel to certify to the following information:

   (a) the number of hours of work performed in court, including any hours spent in travel during court hours for court-related duties, since the receipt of the request on which extension is being requested;

   (b) the number of pending requests for bills of exceptions at the time of receipt of the request for which extension is being sought;

   (c) the estimated total pages comprising the bill of exceptions, together with the number of pages completed as of the date the extension is requested;

   (d) the number of hours spent on work-related duties other than the taking and transcribing of court proceedings since the receipt of the request on which extension is being sought;

   (e) the hours and dates spent in the performance of work for other than the assigned judge;

   (f) any illnesses or family emergencies contributing to the need for the requested extension;

   (g) any vacation time used since the receipt of the request on which extension is being requested; and

   (h) the method of preparing the bill of exceptions; e.g., prepared by the official court reporter, note-reader used, dictated by the reporter and prepared by a typist, or prepared by a privately contracted court transcriber.

   (3) Upon authorization, the trial court judge shall electronically transmit the request to the trial court clerk who shall file the request in the trial court and submit the request to the appellate court via System-To-System Transfer. 

   (4) If such extension is granted, in whole or in part, by the appellate court, appellant’s brief date shall be adjusted accordingly. A first extension will not be routinely granted. Except for exceptional cause, no more than one extension will be granted.

   (5) If no bill of exceptions has been filed by the date on which it is due under these rules, the Clerk, using SCCALES procedures, shall notify the trial court and parties that the appellate court has not received either the bill of exceptions or a request for extension of time. The Clerk shall not issue a notice of default to a party for failure to file a brief until the bill of exceptions has been filed.

   (D) Applicability to Appeals From Tribunals Other Than County, Juvenile, or District Court.

   (1) These rules shall apply to all appeals and error proceedings where specific provision is not made by law for a bill of exceptions.

   (2) Any court reporting personnel approved by the court, board, or tribunal from which the appeal or error proceedings is taken may attend and record the trial or proceedings and prepare a bill of exceptions in an electronic format as set forth in § 2-105.01. No paper bound volumes of a bill of exceptions shall be prepared as the official record of the proceedings.

   (3) The court reporting personnel shall certify the bill of exceptions to be true and complete, and file the same with the chief clerical officer of such court, board, or tribunal in an electronic format within the time provided by law or rule.

   (4) Proposed amendments not agreed to shall be heard and determined by such court, board, or tribunal as provided in § 2-105(G).

   (5) The completed bill of exceptions shall be filed in electronic format in the appellate court within the time provided by law and, if no time be fixed, before the case is submitted to the appellate court.

   (E) Alternate Preparation in Lower Court. If the court reporting personnel is unable to prepare and certify a bill of exceptions, or if a bill of exceptions cannot be prepared and certified under provisions contained elsewhere in these rules, the bill of exceptions shall be prepared and certified electronically under the direction and supervision of the trial judge and shall be filed electronically with the clerk of the court from which the appeal is taken.

   (F) Delivery of the Completed Bill of Exceptions. The completed bill of exceptions shall be filed in the trial court by court reporting personnel using the Electronic filing system portal for court reporting personnel. Upon acceptance and filing thereof by the trial court clerk, the bill of exceptions shall be transmitted to the Clerk via System-To-System Transfer.

   (G) Amendments to the Bill of Exceptions. The parties in the case may amend the bill of exceptions by written agreement at any time prior to the time the case is submitted to the Supreme Court or Court of Appeals.

   (1) An amended bill of exceptions shall be prepared and transmitted in electronic format as provided by this rule, and the agreement shall be included with the amended bill of exceptions.

   (2) If proposed amendments are not agreed to by all the parties to the case, the matter shall be heard and decided by the trial court after such notice as the court shall direct. Hearings with respect to proposed amendments to a bill of exceptions may be held at chambers anywhere in the state. If the judge shall have ceased to hold office, or shall be prevented by disability from holding the hearing, or shall be absent from the state, such proposed amendments shall be heard by the successor judge, or by another district judge in the district, or by a district judge in an adjoining judicial district.

   (3) The order of the trial court shall be transmitted by supplemental transcript to the Clerk prior to the time the case is submitted to the Supreme Court or Court of Appeals.

Rule 5(C)(1) and (K) amended May 28, 1992; Rule 5(F)(3) amended November 25, 1992; Rule 5(A)(2) amended February 18, 1993; Rule 5(F)(3) amended May 26, 1993; Rule 5(J), (K), (L), and (M) amended September 14, 1994; Rule 5 amended in its entirety February 1, 1995; Rule 5(B)(6)(c) amended September 25, 1996; Rule 5(B)(3)(b) amended September 20, 2000; Rule 5(B)(3)(b)(i) amended June 5, 2002; Rule 5(B)(3)(d) amended Dec. 22, 2004; Rule 5(B)(1)(e) and (B)(12) amended June 22, 2005; Rule 5(B)(3)(b) and (B)(7) amended October 26, 2005; Rule 5(B)(3)b(i) amended January 19, 2006; Rule 5(B)(3)b(i) amended February 23, 2006; Rule 5(B)(6)(c) amended March 22, 2006; Rule 5(B)(1)(e) amended June 4, 2008, effective June 18, 2008. Renumbered and codified as § 2-105, effective July 18, 2008; § 2-105(B)(3)(b)(i) amended December 10, 2008; § 2-105 amended June 9, 2010; § 2-105(B)(3)(a) amended August 4, 2017, effective August 24, 2017; § 2-105(B)(1)(a) amended May 9, 2018; § 2-105 amended June 9, 2021, effective January 1, 2022; § 2-105(B)(4)(c) amended November 17, 2021, effective January 1, 2022.