Appellate Insights

Oct 10, 2019 Laurie J. Hepler
We Didn’t Notice That!

Trial counsel often ask if judicial notice can get facts in front of the Court of Appeal that were not presented to the trial court.  The answer is:  It’s possible, but unlikely.  And even if the appellate court uses its power to judicially notice new facts (such as the existence of records in a different court), the justices are not required to give any effect to those facts.  So what’s a lawyer to do?

  • Where possible, get the evidence admitted in the trial court through standard means.
  • Second best is to ask the trial court to take judicial notice of facts that qualify under the Evidence Code.  Any matter properly noticed at the trial level is automatically part of the record on appeal—and if the trial court wrongly refuses to take notice of matters mandated by the Evidence Code, the appellate court must do so.
  • If it’s too late for any of that, the reviewing court can take judicial notice of facts that the trial court either wasn’t asked to, or exercised discretion not to, notice.  But the road will be difficult: Litigants must establish not only that the matter is noticeable under the Evidence Code, but also that it would be fair for the Court of Appeal to notice facts that the trial court didn’t—including a good reason for any failure to request judicial notice before.

►  The practical message:  Judicial notice can be useful and even necessary to make a client’s case in the trial court, so consider early what evidence may need to come through that door.  Most often, that door will be closed on appeal.