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.