Appellate Insights

Aug 13, 2019 Laurie J. Hepler
Get It In Writing

From the appellate court’s perspective, “if it isn’t in the record, it didn’t happen.”  And California trial courts stopped providing reporters for most civil cases years ago.  While everyone knows that a reporter is crucial at trial to ensure an adequate appellate record, there are many other times when appeal or writ success may depend on a verbatim record.

  • Any hearing on any significant motion should be transcribed.  Did the judge rule orally on a series of evidentiary objections?  Did opposing counsel waive, forfeit, or concede a point?  Minute orders and counsel-prepared orders often miss these crucial events.
  • Ex parte appearance on a hot dispute?  Bring a reporter.  Judges sometimes take the bench to hear argument, and without a transcript, the proposed order can take too long and become a battle.
  • Pre-trial conferences need a transcript for all the same reasons.

►  The practical message:  Counsel should arrange for a reporter to transcribe any potentially significant proceeding, and ensure that every important discussion is transcribed or later summarized on the record.