Appellate Adventures, Chapter Nine: "Using the Record"

OUR STORY SO FAR.
Rising star trial lawyer Flash Feinberg had just lost a case. Judge Buller (aka the "Mad Bull") granted summary judgment against Flash, rejecting Flash's claim that Topspin Tennis Club had breached its contract with Flash's client (tennis pro Debbie Dropshot) by firing her for flunking a drug test at a tennis tournament.

With the guiding hand of Patty Plato (his former law school professor), Flash had weighed the likely costs and benefits of appealing the Bull's ruling -- and decided to go ahead. So he filed his notice of appeal and his designation of record, then drafted an outline of his opening brief. Plato advised him how to draft the procedural facts section of the brief, and how to tell a good story in the substantive statement of facts. [See prior Moskovitz On Appeals columns.]

Flash asked Plato, "You said I should get the facts from 'the record.' What does that mean, exactly?"

Plato explained. "You're not allowed to include facts that are not in the trial court record that's being presented to the appellate court -- unless you establish that they may be judicially noticed."

"What if we're appealing on a clerk's transcript, and the superior court clerk forgot to include something -- or we forgot to ask her to put it in?" asked Flash.

Plato replied, "File a motion to augment the record to include that document."

Flash asked, "Can I take facts from any part of the record?"

Plato said, "No. On most issues, you must cite to evidence, so you can't use mere allegations of fact in the complaint or answer. Allegations are not evidence. But if you are claiming that a demurrer to the complaint was improperly sustained, you may include facts alleged in the complaint. And if you claim that summary judgment was improperly granted, you get your facts from the declarations filed for and against the motion for summary judgment. Sometimes I see a brief citing facts stated in a memo of points and authorities. Not good. Unless counsel made a concession or entered into a stipulation, you may not use a statement by counsel (orally or in some memorandum of law) as authority for a substantive fact. Facts come from witnesses, not from lawyers."

"Most of your cites will be to the reporter's transcript ("R.T"). But some will be exhibits. Make sure these exhibits were (1) in fact introduced at trial, (2) are included in your appellant's (or respondent's) appendix, and (3) are reproduced clearly enough so the judges and law clerks can read them easily."

Flash asked, "So long as I cite facts from the right part of the record, do also I have to tell the appellate court where I got them?"

Plato was adamant about this one. "Absolutely," she said. "After every statement you make, cite the exact page of the record that supports your statement. This is usually required by the court's rules, but even if it isn't, do it. This demonstrates your credibility, and makes the judge's job easier. She can go straight to that portion of the record if she wants to see for herself what the testimony was."

Flash asked, "So at the end of a paragraph, I cite the page numbers of the record that support the statements in that paragraph?"

Plato said, "No. Where you can do it, cite line numbers as well as page numbers. For example, "Reporter's Transcript, page 236, line 12 through page 237, line 6" -- usually abbreviated as "R.T. 236:12-237:6." And include a citation at the end of every sentence (and sometimes in the middle of a compound sentence), not merely at the end of a paragraph. The judges and research attorneys will appreciate your making their jobs easier."

"Sounds like a lot of work," said Flash.

Plato said, "Not really. You must look up these pages and lines anyway when you write your statement of facts. And these careful citations will also give you easy references when you need to look up facts while writing your Argument."

Flash asked, "What if a fact is in more than one place in the record?"

Plato replied, "Normally only one citation is necessary. Multiple citations should be included, however, where the fact is central to your appeal or where the testimony at each citation is not quite as clear as you would like it to be."

Flash asked, "Anything else I should know about my citations?"

"Yes. Be absolutely scrupulous. If you just once say that such-and-such happened and your record citation does not show this, your credibility may be so damaged that the judge will put little faith in anything you say thereafter. Even if you don't think your opponent will catch you, some sharp research assistant might. If your citation doesn't support it, it doesn't matter that some other part of the record supports it. You can't expect the judges and research assistants to search the record for you."

Flash asked, "Give me an example."

"Sure. Suppose you decide to use Ms. Smith's testimony: 'Debbie was a good pro, one of the best.' So you write: 'Debbie Dropshot was the best pro Topspin ever had.' A judge or research attorney who looks up your cite might not be pleased, because 'one of the best' is not quite the same as 'the best pro Topspin ever had.' From then on, as he reads the rest of your brief, he will think, 'I can't totally trust this lawyer -- either his facts or his arguments. He likes to exaggerate and spin things.'"

"So how should I do it?" asked Flash.

"Well, one way is to paraphrase Smith, but do it accurately. Write, "Ms. Dropshot was one of Topspin's best professional tennis instructors." Even better, simply quote Smith's exact words, and put it between quotation marks. This tells the judge that the words are hers, not yours. Use this technique whenever the testimony is crucial to your argument."

Flash asked, "My argument? I'm writing the statement of facts. The argument comes later. Why should I worry about that now?"

Plato explained, "A brief should be an integrated document, with each part supporting every other part. So write the statement of facts to support the argument that's coming. That's why the best time to write the statement of facts is right after you have written your outline of argument. To decide which facts are relevant and helpful to support your arguments, you must know the issues you intend to argue. So I always write my statement of facts before I write the full argument portion of my brief. This forces me to become very familiar with the facts before I write my argument. This lets me weave key facts into my argument, which will strengthen my argument considerably. And it stops me from making arguments that are not supported by the facts. As I do more intensive legal research and thinking while writing my argument, I might realize that some fact is more or less important than I thought it was when I wrote my statement of facts. When this happens, I simply go back and revise my statement of facts."

Flash said, "Wow. I didn't know so much thought went into writing a statement of facts."

Plato replied, "Yep. And there's more to come, next time we meet." 