The Right Record On Appeal, part II: A Policy Proposal

In my last post, I discussed the dangers of failing to designate what sometimes feels like the entire court file on appeal.  The problem is that very often now, the relevant hearing was not transcribed due to budget cuts and slashed funding for court reporters.  The problem is so frequent now that some justices in the Court of Appeal - at least in the Second District - are now automatically issuing orders to brief whether the Court should affirm based on the inadequacy of the record whenever counsel do not include the transcript of the relevant proceedings.

Most trial court level decisions are now being made without a verbatim record of the arguments of counsel.  In my opinion, this by itself should not be a bar to reversal, because evidence cannot be received at most types of hearings.  Thus, it is usually only the arguments of counsel that might be "missing" from a record that involves an unreported hearing.  While we litigators tend to think we're quite persuasive, I don't believe that a judgment should be affirmed based on the possibility that the arguments of counsel showed the trial court the right way to rule.  The arguments are always in the moving and opposition papers.  If a decision isn't justified on the moving and opposition papers, but the argument of counsel at the hearing somehow turns it all around and shows conclusively that the requested decision is, in fact, the correct one, I think there would be a great argument that the other side did not have adequate notice and opportunity to respond to the argument.  Therefore, I think the moving and opposition papers should be considered a sufficient record, even where a transcript is not provided of the hearing.

But, sadly, the Court of Appeal has not phoned me lately to inquire as to how I think things should be done.  (Hang on, that wasn't my policy proposal.)

In the meantime, what's an appellate lawyer to do when confronted by a clear error of law that must be corrected, which was decided in part based on an unreported hearing?  Statements of counsel are not evidence, so you can't just tell the appellate court what happened at the hearing.  Gist v. French, 136 Cal. App. 2d 247, 261 (1955), disapproved on other grounds by Deshotel v. Atchinson, T. & S.F. Ry. Co., 50 Cal. 2d 664 (1958).

The answer is that you have to expect more delay in cases where there is no transcript available.  You need to prepare a settled statement under California Rule of Court 8.137 (or an agreed statement under 8.134, if the other side will cooperate) to substitute for the unavailable transcript.  Both are summaries of the relevant proceedings, although not verbatim.  The difference between a settled statement and an agreed statement is that the agreed statement is prepared largely by the parties, who stipulate to its accuracy, and it is then approved by the trial court judge.  A settled statement requires a noticed motion; then the moving party submits his or her version of what happened.  After a set period of time, the opposing party must file their proposed changes.  The trial court then reviews both versions and has the ultimate authority to decide what is contained in the settled statement or not.  Once the statement has been "settled," the moving party serves it on all parties and files it with the appellate court.  In a devastating blow to justice, this process tends to create a 4-6 month additional delay in having the appeal decided, and can cost anywhere from $2,000-$25,000 to prepare.

(NOW comes the policy proposal.)

I propose that trial courts should make it a practice to issue minute orders for rulings that expressly disclaim reliance on any matter presented outside the moving and opposition papers - or, if they did rely on something else, identifying what the matter relied on is.  This would allow most appeals to be taken without having to create a settled statement.  It may seem that judges would not want to make it cheaper and easier for parties to appeal, but judges do have a sense of fairness and most genuinely want to make the right decisions, even if it means that sometimes they're told they were wrong.  This would be a great way to test the sufficiency of a record that includes only the papers and the minute order where the court expressly denies relying on anything outside the record.  The practice would eliminate the expense of moving for a settled statement in many cases; keep court calenders from getting even more congested; save trees by creating smaller appellate records; and streamline the appellate review process where the record only contains a few documents.

I'll wait for your call, Second District.

The Importance of The Right Record on Appeal

Recently, one of my motions was granted in part because a related appellate decision in the case came down affirming the trial court's decision in full.  The fourteen-page opinion contained exactly zero substantive reasons why the Appellate Court thought the trial court had correctly analyzed the challenged issues.  Instead, it was a laundry list of documents the appellant had failed to include as part of the record, and why those omissions required affirmance.

I have now seen so many examples of appeals that were lost for lack of a complete record, I felt I should write something on the subject.

When a trial court's decision is appealed, it is presumed by the appellate court to be correct until proven otherwise.  This is one of the most fundamental rules of appellate review: "All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown."  Denham v. Superior Court, 2 Cal. 3d 557, 564 (1970).

This is a burden that is entirely on the appealing person - and a burden that appellate counsel often overlook or don't take seriously, because they're so aware of the error that they think it's obvious to everyone else based on a few salient documents.  However, it is the appellant's job to provide the record that proves the error was committed.  Maria P. v. Riles, 43 Cal. 3d 1281, 1295 (1987); see also In re Kathy P., 25 Cal. 3d 91, 102 (1979). You should compare it to the reasonable doubt that prosecutors have to eliminate at trial; juries and appellate courts want every last i dotted and t crossed before they decide that someone was wrong.  Does the prosecutor have to introduce every single witness, lab tech, phone record, and surveillance video to prove someone is guilty?  No, but sometimes they get burned for failing to produce everything.  Similarly, you may not think a document is relevant to the appeal, but the appellate court very often isn't sure they agree with you.

Make sure you designate ALL documents that could possibly be relevant, even if it's going to cost you extra.  Better safe than having to file a motion to augment down the road.

When Domestic Violence Victims Don't Want to File Criminal Charges

There is a little-used provision of the California Civil Code that provides for a cause of action for the tort of domestic violence.  Section 1708.6 is great in some ways because it provides for virtually every kind of relief there is: equitable relief, injunctive relief, general damages, special damages, punitive damages, costs, and attorney's fees - plus any other remedies provided by law.  The statute of limitations is also a generous three years - from the date of the last act of violence against the plaintiff.  CCP 340.15.

Obviously, the problem with 1708.6 is that while it provides for attorney's fees, the majority of individual defendants do not have sufficient assets to pay a judgment, or if they do, it is a difficult judgment to collect.  Thus, finding an attorney to pursue the case on contingency is almost impossible for all but the wealthiest of defendants, and few plaintiffs can afford to pay hourly rates for a civil case.

Nonetheless, this code section helps plaintiffs who decide to hold a defendant accountable, but who do not wish to create a criminal record that would interfere with the defendant's employment or immigration status.  This may be useful, for instance, in cases where the plaintiff has incurred significant medical bills due to the injuries from the violence, and needs compensation to be able to pay them or keep a credit score intact.  Criminal charges might do more harm than good if a criminal conviction interferes with the abuser's ability to pay any restitution.  Similarly, where the plaintiff and defendant have a child together, and the plaintiff does not wish to interfere with the defendant's ability to pay child support or alimony, a civil case may be a better option in the long run.  And finally, despite the violence they have endured, some victims simply do not want the abuser to be branded a criminal.

Miranda Issues In DUI Cases

I find that many laypeople are under the impression that if their Miranda rights aren't read to them, their case will be dropped.  It's not quite that simple.  The truth is that once you're in custody, you have the right to be warned about the consequences of speaking to police, and if you don't receive the proper warning, whatever statements you make while in custody will not be admitted against you.  This can sometimes make it more difficult to convict you, but it doesn't mean your case will be dismissed outright.

So what does it mean to be "in custody"?  It's not always the same as being "under arrest."  A recent court case held that the two biggest factors in determining whether a person is in custody for Miranda purposes are having handcuffs placed on you and being put in the back of a squad car.  After that, the police should probably give you the Miranda warnings if they want to make sure that your statements are going to be admitted into court - even if their reason for handcuffing you was for safety purposes, even if it's standard department policy when transporting someone, even if they are alone and need backup before they can release you.  The court said none of that mattered - the person is considered to be in custody whether or not they are going to be arrested.

How does this come into play in DUI cases?  Most "ordinary traffic stops" do not entitle you to have your Miranda rights read to you because while you are in your car, talking to a police officer who has not arrested you, the law says a reasonable person would know he is not yet in custody.  (This is why Ricketts & Yang always advocates telling police officers, "I don't want to answer any questions.  Am I free to leave?"  This will force them to make a decision with the limited information they have already, and very often they don't have enough to arrest you yet.  If that is the case, they'll have to say you're free to go.)

Even when the officer asks you to step out and do field sobriety tests or take a breathalyzer, the idea is that you are doing this voluntarily.  Therefore, no Miranda rights.  However, where there is an accident, police policy often dictates that they remove all individuals from the scene for safety purposes.  Sometimes, this means putting handcuffs on you and placing you in the back of the squad car.  From that point on, the law says a reasonable person would understand they are not free to leave and are under the psychological pressure of being "in custody."  People v. Bejasa, 205 Cal. App. 4th 26, 38 (2012).  The police may interrogate you (or "interview" you as they like to call it) but your statements will likely not be admissible in court unless they were made after you were read your Miranda rights.

Always remember: don't answer police questions.  Ever.  And once you are read your Miranda rights, that should be a big red flag that they are trying to get you to say something in particular!  You may be tempted to tell the police your version in hopes that they will let you go or feel sympathetic for the way it happened, but remember: nothing you say can be used in your favor.  The rules of evidence won't let you!  Your statements can ONLY be used against you.  So don't fall for their line that they want to put your side of the story into the police report - that's where it'll stay.  The judge and the jury will never hear it.  Just don't say anything at all.

The takeaway message?  An open-and-shut case, complete with confession, may fall apart entirely once a Miranda motion is made.  Always consult an attorney when you are charged with any offense, because the law often has protections built in that an attorney can use to your advantage.