In their iconic movie “Duck Soup,” the Marx Brothers illustrate just how crucial timing can be when you want to make a point. Portraying a nation’s president conducting a cabinet meeting, Groucho calls for a discussion of old business and rebuffs a minister who wants to discuss the tariff, on the ground that the tariff is new business. Hearing no old business, Groucho moves on to new business. But when the minister again raises the tariff, Groucho shuts him down: “Too late, that’s old business already.”

Appellants can sometimes feel they are caught in a similar form of limbo. Say you have appealed a judgment and you discover for the first time a problem with the trial court proceedings that would have invalidated the judgment if you had known about it. You can’t complain to the trial court because perfecting an appeal stays proceedings in the trial court on the judgment or order appealed from. Code Civ. Proc. § 916(a). And you can’t raise the issue in the appeal, because the problem is not in the record and, as we all know, if it is not in the record it did not happen. Protect Our Water v. County of Merced,  110 Cal. App. 4th 362, 364 (2003). It seems that no court is willing to listen to what you have to say.

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