It’s nice to win a big verdict. But it’s not nice when it gets reversed on appeal.
So you need to protect that victory—in the trial court, before it even gets to the appellate court.
And when you lose in the trial court, having a solid record will give you the best shot at reversal on appeal and a new chance for the big win.
We’re pretty good appellate attorneys, with a nice win record. But we’re not good enough to win an appeal with a lousy trial court record. And we’re stuck with what the trial lawyer gives us. We’re 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 or her to preserve your victory or overturn your loss.
So here are some tips to keep in mind—before, during, and right after trial.
We know you have more important things to think about when preparing for trial, so we’ll keep this short and sweet. For more detail on these issues, see Witkin, Rutter Group, or CEB.
But take a few moments to remember these things—before you try your case.
Order a Court Reporter
Court reporters earn their livings in two ways. First, they receive a daily fee for showing up in court and transcribing what is said. Second, 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. Now, in most courts, no court reporter will show up 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 §1033.5(a)(11).
Don’t 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 find some other way provide them with a record of what happened at trial.
There are other ways. 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.
Only a court’s reporter’s transcript can show the appellate court exactly what happened in the trial court. And you don’t need cooperation from your opponent or the court to get it.
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 the judge (politely) that you would like the court reporter to be present because important issues might be discussed and ruled upon. If the judge won’t do it, after the sidebar or chambers conference ends and you get back to open court, put on the record what happened.
We recently handled an appeal where the judge heard argument on an important jury instruction in chambers. The trial attorney who brought us in for the appeal had asked the judge to bring in the court reporter, to get the discussion on the record. The judge refused. When they all returned to the courtroom, the judge announced his ruling on the motion. The rebuffed attorney then said, “Your honor, I’d like the record to show that in chambers I objected to this jury instruction, and you overruled my objection. And you denied my request to have the court reporter present during that discussion.” A bold move, but it made our job a lot easier. We now had a record showing that he had timely objected, so there was no waiver of our right to raise the issue on appeal. And the record of the judge’s obstinacy gave us some ammo to make the judge look bad.
Objecting to Your Opponent’s Evidence
When you object, you must state all grounds for your objection. Evidence Code §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 §353(a). Appellate courts strictly enforce this rule, so when in doubt, be sure to mention a ground. Better to be overinclusive than underinclusive.
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 §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 appeal based on the erroneous exclusion of your evidence. Evidence Code §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.
William Stein is a former Justice of the California Court of Appeal, First District. He is now of counsel to Moskovitz Appellate Team, group of former appellate judges and appellate research attorneys who handle and consult on appeals and writs. Myron Moskovitz is author of “Moskovitz on Appeal” (LexisNexis) and “Winning an Appeal: (5th ed., Carolina Academic Press). He is legal director of Moskovitz Appellate Team.