The lack of a reporter’s transcript can kill your appeal

Steno

Court reporter’s stenotype machine keyboard layout. Public domain image from Wikipedia.

Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court reporters, requiring that parties provide their own court reporters for trial at their expense. The trial in this case went unreported, and that was enough to keep the plaintiff from prevailing on appeal. But before I get to how that came about, let me briefly describe the history of the case, for it makes the result all that much more heartbreaking for the plaintiff.

Plaintiff sued a prison doctor for malpractice. The doctor obtained a judgment on procedural grounds, plaintiff appealed, and got the judgment reversed. The doctor obtained a second judgment on procedural grounds, and again, plaintiff got the judgment reversed on appeal. The doctor then obtained judgment for the third time, this time by prevailing on a summary judgment motion, and again, plaintiff got the judgment reversed on appeal.

By now, plaintiff has been litigating for a decade, and the really amazing thing is that he has done it while incarcerated and without an attorney.* Surely, that perseverance would be rewarded by a payoff at the end of this long, winding road?

Unfortunately for the plaintiff, no. After remand from the third appeal, the case went to trial before a jury, but without any court reporter. The doctor made an oral motion for nonsuit at the end of plaintiff’s opening statement, the court granted the motion, and plaintiff appealed from the resulting judgment. The fourth appeal proves to be the charm for the doctor, because plaintiff’s challenges fall short, and the judgment for the doctor is affirmed.

Plaintiff made multiple challenges to the judgment on appeal, but two of them are directly related to the transcript. First, he contended that the trial court erred in failing to provide a court reporter, suggesting that the court gave him inadequate notice that an official court reporter would not be available and that the court should have provided a reporter because plaintiff had obtained an order waiving court fees. But he received notice about the reporter 10 days before trial, which the court found adequate. And, while Government Code section 68086, subdivision (b) indeed provides that the official court reporter fees are waived, the Court of Appeal held that section “does not mandate that a trial court provide indigent litigants with court reporter services where no official court reporter is provided by the court, as was true in this case.” Further, the trial court’s local rules specified that even parties with fee waivers are responsible for the costs of providing a reporter where no official reporter is provided.

Second, plaintiff argued that the trial court erred in granting the motion for nonsuit. Here, the absence of a court reporter’s transcript was fatal. Because the absence of a reporter’s transcript precludes an appellant from raising “evidentiary issues” on appeal, and a motion for nonsuit following the opening statement requires the trial court to “review the evidence to be presented at trial,” plaintiff could not demonstrate any error, even though the court’s minute order was fairly detailed.

The court was not unsympathetic to the difficulties faced by an incarcerated and indigent litigant, but the rules won out:

This court is fully aware that [plaintiff’s] incarceration and his financial circumstances have made it difficult for him to pursue his claims in court. This case aptly demonstrates that civil justice is not free. While this court is sympathetic to the plight of litigants like [plaintiff] whose incarceration and/or financial circumstances present such challenges, the rules of appellate procedure and substantive law mandate that we affirm the judgment in this case.

(Footnotes omitted.)

Of course, it’s possible the plaintiff would have lost his appeal even if he had a reporter’s transcript. But he’ll never know.


* Actually, it’s not clear from the opinion whether the plaintiff was incarcerated the entire time, but it appears he was incarcerated for at least part of the litigation.

UPDATE (4/13/2016): I missed this when it happened, but the Supreme Court has granted review in this case. The issue presented focuses on an issue I did not concentrate on in my post. Plaintiff had been granted a waiver of court fees, yet was eventually penalized for failing to pay to have a reporter record the proceedings. The issue presented, as stated in the Supreme Court’s website, is:

In the case of a litigant who has been granted a fee waiver (Gov. Code, § 68631), can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review?.

Are records on appeal from the Los Angeles Superior Court about to get better?

LASCThe headline is not a dig at anyone at the Los Angeles Superior Court (LASC). It refers to the impact of the statewide court budget crunch, which led many courts to stop providing court reporters as a matter of course. Faced with having to engage court reporters on their own, some litigants were foregoing the expense, at risk of having records inadequate to prosecute their appeals.

As a result, parties are appealing decisions without the reporter’s transcript that they would have been able to order under the old system. That can spell trouble for an appeal.

Last Friday, the LASC announced that it is hiring court reporters. Actually, I can’t tell from the announcement whether they are looking for multiple reporters or just trying to fill a single vacant position. Here’s hoping that it’s the former, and that this is a sign of things to come.

UPDATE (4/13/16): According to the 2015 edition of the California Litigation Review*, which hit my mailbox this week. published by the Litigation Section of the California State Bar, the court is “hiring court reporters again,” suggesting the court is restaffing in preparation for providing reporters again. Let’s hope.


*Published by the Litigation Section of the California State Bar.

 

What is the appellate “doghouse,” and why should you care?

No, I’m not talking about that imaginary place that your client puts you in if you lose the case. I’m talking about the mysterious “doghouse” references one sees when looking at the online docket of a California Supreme Court case. Take this snippet from the docket of a recently decided case, which shows that the record reached the Supreme Court on March 18, 2010:

The mysterious "doghouse"

Now, it seems rather obvious from the above image that a doghouse is some measure of the volume of the record. And, if you have petitioned the Supreme Court for review, you can guesstimate the size of a doghouse based on how many doghouses the record in your case fills.  But “doghouse” is a curious enough term in a court context that at a seminar I attended yesterday on the subject of handling large record appeals, panel member Justice Dennis Perluss (presiding justice for Division Seven of the Second District Court of Appeal) thought that even a roomful of appellate practitioners would benefit from actually seeing a doghouse, so he brought one with him.

It turns out that each doghouse — a fabric-covered cardboard folder of sorts, shaped roughly like a binder but without the rings — holds a maximum of about six inches of paper.

Not thrilling information, I know, so why should you care, besides the end of the mystery?

Well, many divisions in the Court of Appeal consider a case to be “big”  (sometimes referred to as “jumbo” among the court staff) if the record fills just three doghouses. That tells me that that the vast majority of appeals likely present a record smaller than that.  In fact, I would bet — I don’t have statistics — that there are more one-doghouse appeals than multiple-doghouse appeals.

Think about that. Consider that the fate of your appeal can depend on one or two  “doghouses” — twelve inches or less of paper– even if you have spent years in litigation and built up a case file filling many file drawers. Now, consider the task of boiling that multiple-drawer file — or maybe even that multiple-cabinet file — to its essence. Buried somewhere in those drawers are the best issues for appeal and ideas for how to argue them. Then comes the task of winnowing those drawers full of paper down to those papers that are essential and most helpful to your client, yet still present a fair picture of the case so you cannot be accused of manipulating the record. That can be a daunting task, and one loathed by trial lawyers who live to argue to juries but hate all the paperwork.

I, on the other hand, love that challenge. It is what I and other appellate attorneys do all the time.

UPDATE (3/21/13): Ben Shatz at Southern California Appellate News has doghouse pictures.

Make the record easy on the eyes, please

UN StenographerI was updating my blogroll and checking up on some of those links in preparation for a re-vamp of this site and a new blog project (more about that tomorrow), and I ran across a year-old post at Criminal Appeal I couldn’t agree with more, which starts:

Dear Court Reporters,

Having finished reading another all-capitalized reporter’s transcript it’s time to again implore you to remember that the proper use of capitalization is not simply a matter of style, but it is more a convention designed to assist the reader and prevent headaches. Capitalization helps the reader find the beginning of the sentence. Lower case letters are easier to discriminate from each other.

Style and ease of reading aside, you’d think the ALL CAPS convention might have been abandoned after it was adopted in the early internet days for use in plain text emails and online bulletin boards and chat rooms as a way of SHOUTING IN WRITING ONLINE. Once people got rich text format email ability (allowing for underlined, bold, and italicized type), the ALL CAPS SHOUTING ONLINE convention may have abated somewhat, but I’m still reminded of it whenever I read an ALL CAPS trial transcript.

I say we leave the ALL CAPS convention for deposition transcripts, where most of the shouting really happens!

Don’t Forget, Appellants: The Record is Your Burden, Too

Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed material facts (Code Civ. Proc. § 437c, subd. (b)(1)). The appellant in Gunn v Mariners Church, Inc., case no. G038445 (4th Dist. Sept. 2, 2008, ordered published Sept. 30, 2008), failed to include the moving party’ separate statement, with potentially dire consequences, but catches a break from an accommodating court:

Critical to our review of any summary judgment is the moving party’s separate statement of undisputed facts. Gunn elected to proceed by way of an appellant’s appendix (Cal. Rules of Court, rule 8.124), in which he has included Mariners Church’s points and authorities and its attorney’s declaration to which various deposition pages and other pieces of documentary evidence, but not Mariners Church’s actual separate statement of undisputed facts. Gunn’s failure to provide a complete record arguably precludes him from meeting his appellate burden. [Citations.]

Gunn has, however, included his own separate statement in the appellant’s appendix, which appears to be in the form required by the court rules juxtaposing Mariners Church’s assertions of undisputed fact with Gunn’s responses thereto. (Cal. Rules of Court, rule 3.1350(d).) And Mariners Church does not suggest Gunn’s separate statement inaccurately represents its statement of undisputed facts. Accordingly, we will proceed on the merits based on Gunn’s separate statement and the evidence Mariners Church submitted.

I wonder how much of the court’s forgiveness was due to the fact that it affirmed anyway. I suspect most panels would be quite reluctant to reverse on a similar record.

The bottom line: don’t rely on the court’s largesse. Include a thorough record.

New Evidence on Appeal?

Odd as it sounds, it is possible in exceptionally rare circumstances. And I do mean exceptionally rare, which is why you almost never see it addressed in the cases.

In yesterday’s In re Valerie W., case no. D051056 (4th Dist., Apr. 4, 2008, ordered published Apr. 21, 2008), in which appellants sought reversal of judgments terminating their parental rights, the minors’ counsel asked the court of appeal to take post-judgment evidence, in the form of her declaration, pursuant to Code of Civil Procedure section 909. Section 909 is a little dense in form (it would benefit from being set forth in subdivisions), but worth reading in full (emphasis added):

In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues.

Counsel must be careful not to be drawn in by the “liberally construed” language. By the terms of the section, such liberal construction is to be afforded “except where in the interests of justice a new trial is required on some or all of the issues.” The rule is even stricter than this wording suggests, for the exception proves to be the rule, as the Valerie W. opinion makes clear:

The court in Zeth S. set forth the general rule that:

” ‘[A]n appeal reviews the correctness of a judgment as of the time of its rendition,
upon a record of matters which were before the trial court for its consideration.’
[Citation.] This rule reflects an ‘essential distinction between the trial and the
appellate court . . . that it is the province of the trial court to decide questions of
fact and of the appellate court to decide questions of law. . . .’ [Citation.] The rule
promotes the orderly settling of factual questions and disputes in the trial court,
provides a meaningful record for review, and serves to avoid prolonged delays on
appeal. ‘Although appellate courts are authorized to make findings of fact on
appeal by Code of Civil Procedure section 909 and rule 23 of the California Rules
of Court, the authority should be exercised sparingly. [Citation.] Absent
exceptional circumstances, no such findings should be made.
[Citation.]’
[Citations.]” (Zeth S., supra, 31 Cal.4th at p. 405, italics added.

Bottom line: appellate counsel cannot rely on the mandated liberal construction of section 909 without first demonstrating that the case is an exceptional one where the interests of justice do not require the trial court to hear and decied the factual issues.  That will usually be difficult.

The Record is Everything

Tom Caso has this post at The Opening Brief regarding a Ninth Circuit case last week in which Judge Kleinfeld laments his inability to follow his intuition and hold in favor of the government in an environmental case because of the government’s inability to actually support its case from the record.  Its hard to tell from Judge Kleinfeld’s comments whether the government was hamstrung by its failure to preserve an adequate record or it merely failed to direct the court to those portions of the record that supported its position.

Either way, it’s an embarrassment to have this type of deficiency pointed out by the court, and Tom uses the case to remind us of the importance of making the record.

And Professor Martin at California Appellate Report uses the occasion to provide one of his patented rewrites to show what Judge Kleinfeld was really thinking.

Settled Statements, New Trials, and the Languishing Criminal Defendant

When a reporter’s transcript of proceedings is unavailable for appeal, the appeal may proceed by way of a “settled statement.” California Rules of Court, rule 8.130(g). Some pitfalls of this procedure are revealed in People v. Cervantes, no. B183412 (May 16, 2007).

On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained.

At the hearing on the settled statement, held more than a year after conviction, the trial judge admitted having no recollection of the trial proceedings. The proffered settled statement was prepared almost entirely by the prosecutor with only nominal participation from appellate defense counsel, who had not participated at trial. Cervantes’ trial counsel had no input at all. He was deemed unavailable when appellate counsel told the court that he had left the public defender’s office. The trial court approved the settled statement.

It turned out that Cervantes’s trial counsel remained practicing in town after leaving the public defender’s office. The Court of Appeal, noting that Cervantes will be entitled to a new trial if a settled statement cannot be approved, remanded for a determination of whether a settled statement could now be prepared with the assistance of his newly located trial counsel.

Net result: More than two years after his conviction, Cervantes still doesn’t know if he will be appealing on the basis of a settled statement or will instead be entitled to a new trial.

Lessons for trial lawyers: The Court of Appeal will not grant new trials on the basis of unavailability of transcripts until efforts at procuring a settled statement are thoroughly exhausted. Determine the availability of your trial transcript immediately and keep track of persons important to the preparation of a settled statement — just in case. It turned out in this case that although Cervantes’s trial counsel had left the public defender’s office, he was still practicing locally — a little effort could have saved a lot of time.

As a side note, the unanimous opinion from our local division of the Second District Court of Appeal contains this gem of writing in the introduction:

“The trial judge has no recollection of the trial proceedings. Yet, he approves a settled statement. This is unsettling.”

That’s the kind of writing that keeps opinions from being boring, yet maintains the seriousness of the subject (unlike, in my view, this opinion). I wish I could write similar remarks. But such writing from an appellate justice is almost universally appreciated, while an attorney submitting a brief has to worry about insulting the seriousness of the court. If I really want to scratch that itch, I should work on getting appointed to the bench.

Thanks to The Electric Lawyer.