Setting up an appeal — in the trial court

MOSKOVITZ ON APPEALS

I’m a pretty good appellate attorney, but I’m not good enough to win an appeal with a lousy trial court record. And I’m stuck with what the trial lawyer gives me. I’m not allowed to add any evidence or documents to it.

It’s up to you, the trial attorney, to make sure that your appellate lawyer gets a record that allows him to preserve your victory or overturn your loss.

So here are some tips to keep in mind before, during and right after trial.

I know that you have more important things on your mind when you are preparing for trial, so I’ll keep this short and sweet. For more detail on these issues, see Witkin, Rutter Group, or CEB.

But please take a few moments to think about these things before you try a case.

Order a Court Reporter

Court reporters earn their livings in two ways. They receive a daily fee for showing up in court and transcribing what is said. And if a party wants a written transcript of what was said, that party pays the court reporter to prepare the transcript.

Years ago, the courts took care of the daily fee. But that ended when the government budget crisis hit the courts. Now, in most courts, no court reporter will show up in court unless a party has arranged for this — and has agreed to pay the daily fee. Rule of Court 2.956(c).

So call a court reporter directly and make the arrangement well before any hearing or trial.

If you win the case, the court reporter’s fees are recoverable costs. Code of Civil Procedure Section 1033.5(a)(11).

Do not try to save a few bucks by not arranging for a court reporter. If the case is worth trying, it’s worth having a court reporter.

If you appeal with no reporter’s transcript, the appellate court will presume just about everything against you unless you provide them with a record of what happened at trial.

There are alternatives. It’s possible to reconstruct what happened via an “agreed statement”, where you and your opponent agree on what the testimony and other evidence showed. This is a very weak substitute for a reporter’s transcript, because your opponent is likely to be uncooperative. Another possibility is a “settled statement”, where the trial judge establishes what happened at trial. As this is the judge you are trying to get reversed, she too might be less than cooperative in giving you a summary of the evidence in a favorable way.

To be able to show the appellate court exactly what happened in the trial court, order a court reporter.

Be sure to have a court reporter present for every hearing that might possibly raise an issue for appeal. This includes hearings on in limine motions and procedural issues.

Voir dire? That rarely comes up in appeals, so most attorneys do not have a court reporter present for voir dire. But if the case is big enough, do it. You never know.

Having the court reporter in court does no good if the court reporter is not taking down what is said. So make sure the court reporter transcribes what is said at side-bar conferences, discussions in the judge’s chambers, and the like. Some judges might resist, as this takes a bit more time (and some judges don’t like being watched by appellate courts). Tell her (politely) that you would like the court reporter to be present because important issues might be discussed and ruled upon. At least insist that the court put its rulings on the record the side-bar or chambers discussion.

Objecting to Your Opponent’s Evidence

When you object, you must state all grounds for your objection. Evidence Code Section 353(a). Don’t argue, and only a word or two (“hearsay”, or “beyond his expertise”) is needed.

Any ground not stated is waived on appeal. Evidence Code Section 353(a). Appellate courts strictly enforce this rule, so when in doubt, be sure to mention a ground.

Resisting Objections to Your Evidence

If the judge sustains an objection to your evidence, make an offer of proof. Simply tell the judge — on the record, but out of the jury’s presence — what the witness or document would have said. Evidence Code Section 354(a) requires an offer of proof to include the “substance, purpose, and relevance” of the evidence.

Failure to make an offer of proof waives the right to a new trial or to appeal based on the erroneous exclusion of your evidence. Evidence Code Section 354(a).

The law does not require you to include in your offer of proof a showing of the materiality of the evidence, i.e., how important it is to the outcome of the case. But do it anyway, because it will help your appellate lawyer show that the judge’s erroneous ruling was prejudicial — which we need to show in order to get a reversal for that error.

Next column: After a court trial, how to deal with a statement of decision that sets up a winning appeal.