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.