What Every Lawyer Should Know about Record Preservation and Correction
by Tillman J. Breckenridge
(County Bar Update, May 2006, Vol. 26, No. 5)

What Every Lawyer Should Know about Record Preservation and Correction

By Tillman J. Breckenridge, associate, Greines, Martin, Stein & Richland, LLP. At GMSR, he focuses on civil appeals in both state and federal courts. The opinions expressed are his own.

It often is tempting at trial to take shortcuts in the interests of time and convenience. But do not take shortcuts at the cost of protecting the record because, on appeal, "if it's not in the record, it did not happen...." (Protect Our Water v. County of Merced (5th Dist. 2003) 110 Cal.App.4th 362, 364.)

Before taking any shortcuts, consider whether your actions will waive an issue on appeal or make the record unclear. At best, an unclear record causes confusion and a heap of work for you and your appellate counsel to correct the confusion. At worst, it can mean lost appellate issues. Keeping the following tips in mind should help guarantee that you have a clear and thorough appellate record.

1. Ensure that all evidence is properly identified and marked for the record regardless of whether it was admitted, and preserve it after trial.
Make sure that any evidence you offered or entered into the case is marked and that a good foundation for its admissibility is laid. Also, be sure that there is an accurate record of which exhibits were offered or received into evidence, when they were offered, and what the court ruled as to admissibility.

Preservation of the exhibits after trial is equally important. To the extent that you and not the opposing party are in control of trial exhibits, store the exhibits in a safe place under conditions that will not damage any videotapes, physical evidence, or other material that may be sensitive. You also should discuss with opposing counsel what steps they are taking to ensure that the exhibits they possess are preserved.

2. Make proper objections and offers of proof, and get a clear ruling.
Your objection must specifically state all available grounds. Any ground not brought to the attention of the trial court is waived on appeal if you lose your objection. (People v. Partida (2005) 37 Cal.4th 428, 433-34.) Also, be sure to get a ruling from the judge. If the record does not contain a clear ruling on your objection, then your objection is waived on appeal. (Ann M. v. Pacific Plaza Shopping Ctr. (1993) 6 Cal.4th 666, 670 at n. 1.)

If the court is going to exclude your evidence, you may need to make an offer of proof. You should provide the exact testimony or evidence to be given rather than a summary or general representation. (Semsch v. Henry Mayo Newhall Memorial Hosp. (1985) 171 Cal.App.3d 162, 168.) Failure to record "the substance, purpose, and relevance" of the evidence offered generally waives a right to appeal or new trial based on the erroneous exclusion of the evidence. (Cal. Evid. Code Sec. 354(a).) Even though there are a few exceptions to this rule, it is better to take the time to make your offer of proof rather than to rely on the appellate court to uphold an exception.

3. Get it on paper, and make it readable.
No matter what the document or testimony is, you need to have some written representation that easily fits in the record on appeal and can be read by the court. For instance, for large trial exhibits such as diagrams, get a letter-size copy into evidence as well. At the other end of the spectrum, providing four-to-a-page deposition transcripts makes the record hard to read and tough to cite. Deposition transcripts should be provided at one page of deposition testimony per page in the record.

If videotaped testimony is offered to the court, do not waive transcription of the testimony. While it may seem to make unnecessary work for the court reporter, it is essential that appellate counsel have an easily citable record with which to work. Few if any justices on the court of appeal enjoy watching videotaped testimony or fiddling with cumbersome exhibits just to determine whether testimony or evidence is accurately reflected in the briefs.

4. If you can't get it on paper, make sure it is in an easily accessible form.
Some electronic documents do not print easily and/or do not print in a way that accurately depicts the electronic version. Be sure to work with opposing counsel to ensure that the document is in a format that is easily accessible for the court of appeal. By settling the issue before trial, you can save yourself and your appellate counsel a lot of headaches down the road.

5. If you know of an error in the record, try to correct it before the record is filed in the court of appeal.
Sometimes, no matter how much attention you pay to the record and no matter how much time you put into preserving it, an error sneaks into the record. If you know that there will be an error in the record before the record is filed in the court of appeal, take care of the error in front of the trial judge. The trial judge is more familiar with the case and the parties and in a much better position than the court of appeal to tidy up the matters that came before the trial court.

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