Protecting the Record for Appeal: An Exercise in Good Lawyering

Garrett C. Dailey, CFLS, AAML
Publisher Attorney's Briefcase® California Family Law

Skilled attorneys seldom worry about protecting their trial court records for appeal – because doing so is second nature. It is simply good lawyering. Trial attorneys learn certain skills which they utilize in every case. A solid record is the byproduct of those skills.

Although this article will discuss how to insure there is a good record in the event of an appeal, it will do so through the prism of basic trial skills.

Let's begin by reviewing a few basic principles. First, in most instances, the trial court is presumed to be correct. Second, error is never presumed – it must always be affirmatively shown. In order to do so, the appellate court must have an adequate record such that it can both recognize the error and determine whether it was prejudicial. It is the appellant's burden to present a record that permits the reviewing court to do so. How do we do it?

UNDERSTAND YOUR CASE: Many cases are tried because the attorneys never became familiar enough with the legal and factual issues to settle them. In order to competently try a case, you must know what it is you need to prove. What are the legal issues? What are the factual issues? Who has the burden of proof on each issue? If you have the burden, what evidence do you have to meet it? How are you going to get it admitted if there is an objection? What are the weaknesses in your case? How can you overcome them?

If you have thoroughly prepared, you will have marshalled the necessary evidence, both testimonial and documentary, and will be ready to present it at trial.

MAKE AN ADEQUATE RECORD AT TRIAL: Again, this is simply an exercise in competent lawyering. I have read many reporters’ transcripts that are, to put it gently, muddled. Questions will be vague and compound. Answers will be rambling and nonresponsive. Yes or no questions will generate a narrative answer going on for pages.  Some questions simply won’t be answered at all. Exhibits will be referred to as “this document.” Objections will be made and not ruled on. There will not be an offer of proof as to what an excluded item of evidence would show. The list of potential errors goes on and all contribute to an unsatisfactory record.

These shortcomings are indicative of poor trial skills and result in a record that makes appellate review difficult. Let’s discuss a few of them in more detail.

Clear questions: The ability to walk a witness through a clear and concise direct examination is an acquired skill. It requires understanding the testimony you want to elicit and doing so correctly. I have read many transcripts where it is difficult to understand the witness’ testimony because it was interrupted by dozens of sustained objections.  While many attorneys with experience in criminal law or civil trials are able to examine witnesses effortlessly, many family law attorneys are not.

Since this skill is not second nature to me, I compensate by outlining my questions in advance. By writing them out, I not only visualize the examination, but I can ensure that I cover every point and do so in a manner that is likely to result in a clear transcript. That makes it easier for the judicial officer to follow, but also gives me the solid record should an appeal result.

Listen to the Witness’ Answer: Many attorneys seem to be more focused on their next question than listening to the answer being given to their last one. Questions that call for a yes or no response often result in pages of rambling and unhelpful testimony. Ask the question. After the witness responds, “yes” or “no”, be prepared to object immediately to anything that follows as nonresponsive and move to strike everything after the first word. Otherwise, a lot of evidence has just been introduced into the record that is either muddling it or is directly harmful to your case.

Listen to Opposing Counsel’s Questions: I have read transcripts where pages will go by between nonobjectionable questions. Although it isn’t necessary to object to every leading question, it is good practice to object to ones where the answer is likely to matter. In order to do so, you pay attention to every question – and every answer

Object – on Proper Grounds: The failure to object timely to most anything that happens at trial waives the error on appeal. Make your objections quickly, and state the legal basis. Avoid speaking objections. As one Family Law judge was fond of saying, “the ability to make a correct objection in five words or less is the hallmark of a competent trial attorney.”

Make a Clear Record: It is not uncommon to read a transcript where the witness is asked to explain an entry on “this document. “ There may even be a lengthy discussion about “it.” While the trial participants knew to what they were referring, the Court of Appeal will have no clue. Get it the habit of always referring to documents by their exhibit number and page number.

Make Offers of Proof: If an item of evidence is excluded, you cannot complain on appeal unless you have made an offer of proof as to what it would have shown. This might be a document or the answer to a question. Either way, Evid. Code §354 states that the judgment may not be set aside unless there was an offer of proof as to the "substance, purpose, and relevance of the excluded evidence." The reason for this rule is explained by the general principles above. Trial courts are presumed correct and to get a reversal you must show both error and prejudice. The Court of Appeal cannot weigh the prejudice unless it knows what the evidence would have shown.

REPORTER'S TRANSCRIPTS: Many of us remember the days when court reporters were automatic – and free. Those days are gone.  Most hearings and trials now take place with no record of the oral proceedings. This makes most trial court orders nonreviewable.  Remember the prime directive – the trial court is presumed correct. How can you affirmatively show error if there is no reporter’s transcript?

No matter how egregious or obvious the trial court’s error, without a transcript, the likelihood of a reversal on appeal is almost nil.

The Rules of Court permit settled statements when reporters’ transcripts are unavailable, but these can be difficult to settle and it is unknown how much weight they will be given by the appellate courts.

Although court reporters are expensive, erroneous rulings that are nonreviewable can be worse. If the matter is important enough to try, it is important enough to hire a reporter.

IF THERE IS NO RECORD OF IT, IT DIDN'T HAPPEN: This is a subset of the Reporter's Transcript discussion above. Important proceedings take place in chambers as well as in the courtroom. Again, you can't complain about rulings made in chambers if there is no record as to what occurred. Ask that chambers conferences be reported.

FINDINGS AND STATEMENTS OF DECISION: The most important document in most appeals is the statement of decision, if it is available. Although it is generally not available after motions, it is available after trials and it is the first thing an appellate lawyer will want to see. A well-drafted statement of decision may make a decision bulletproof, while a poorly drafted one may make it vulnerable. No statement of decision may make an appeal pointless.

Therefore, get in the habit of timely requesting a statement of decision. The basic rules are set forth in Code Civ. Proc. §632 and Rules of Court 3.1590. The most immediate one is that if the hearing lasted one day or less, defined as eight hours of court time (which may take place over several days), the request must be made before the matter is submitted. If it is more than one day, you have ten days from the Tentative Decision. Have these rules close at hand and review them every time you deal with a statement of decision.

The drafting of the statement of decision is tricky. It may well call for the assistance of an appellate attorney. In a case I recently consulted on, the court’s tentative decision granted the mother’s move-away request, but failed to make a finding that the move was in the child’s best interests. The father properly objected on that basis and threatened to file a writ to stop the move. A couple of sentences added to the statement of decision cured the deficiency and prevented the writ.

If there is no statement of decision or if the appellant failed to call a deficiency to the trial court’s attention so it could be addressed, the appellate court will imply findings favorable to the ruling. This is often fatal to any appeal.

1Calif. Rules of Court, rule 8.137.



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