More trial tips on the oh-so-important court reporter

Find out the court’s policy on court reporters. The clerk’s office should have a posted policy as to its local policy regarding when official court reporters are available and in which departments the services of court reporters are not available.  If the services of a court reporter are not available, a party may arrange for one to serve as an official pro tempore reporter.  (California Rules of Court, rule 2.956.)

It is your duty to make sure a court reporter will be present. “When counsel has reason to anticipate that what is said at a hearing may be pertinent to a subsequent appeal he has a duty to insure that a court reporter is present. (See, e.g., 1 Cal. Civil Procedure During Trial (Cont.Ed.Bar 1982) §§ 11.11-11.12.) Failure to attend to this duty can be tantamount to a waiver of the right to appeal.”  (In re Christina P. (1985) 175 Cal.App.3d 115, 129.)

During trial, speak slowly and with clarity and precision. Trial is that rare spectator sport that not only contemplates an oral presentation but a possible subsequent written transcription of the proceedings. A meaningful record should be clear, leaving nothing to the imagination.  While I can ask a trial attorney what was meant by a question or answer, the court of appeal is not in the same position.  You cannot sit next to a justice and offer explanations when the language isn’t clear.  You must speak with clarity and precision, and if the answer provided lacks clarity, then you must ask follow-up question to ensure the answer is clear.

Real an old trial transcript to understand how you and others speak during trial. As an exercise, find an old trial or law and motion transcript.  Do you notice how real people speak in incomplete sentences and frequently use pronouns that can lead to confusion?  Although it might sound redundant, avoid this or that as well as pronouns he, she, it, they, and them, when a more specific description may be provided.  If the judge fails to complete a sentence or ruling, return to it as a follow-up question or summary before continuing on. I have experienced a number of interrupted rulings and because of the nature of the discussion, the judge never returns to complete the ruling.  In particular, it is confusing when two names are discussed and then the thread continues with she, he, her or him.

Be precise when talking about exhibits. Start with the number and a description of the exhibit, and continue to refer to the exhibit by number or document throughout the questioning.   If possible, refer to page and line.  A pet peeve of mine is when attorneys talk about the next exhibit in line, or jump from exhibit to exhibit, and I can’t tell whether they are talking about the first, second, etc. in a series of exhibits.

If two people are speaking over each other, make sure the court reporter recorded a critical answer. If a witness answers a question while the attorney is still speaking, make sure the answer appears on the record.

Create a visual picture of the testimony. When you hear an answer, think about how it will read on paper.  If you ask the witness how far away he or she was, and you receive an answer that says something like “from here to there,” try to get an estimate of the distance between the points.  The same rule applies when the witness is pointing at something and then says “right here.”  Give detailed descriptions of demonstrations or visual evidence.  No one reading the transcript will know what you mean.

The importance of the court reporter in preserving the record on appeal

One component of the "record" is the reporter's transcript.  Without it, you are lost in appealing a judgment based on lack of substantial evidence or even abuse of discretion.  That means you must consider the court reporter an important player in the trial proceedings.  Treat the court reporter with respect by being aware of the pressures of reporting a trial and attempt to make his or her job easier by speaking clearly, not talking over others, and spelling out difficult words.

At times, the trial court may suggest that you have a conference in chambers or a sidebar conference.  For a variety of reasons, it may be decided that the court reporter is not necessary.  It could be the inconvenience of moving around the courtroom, the belief that the conference will be short or the hope that it will be more frank if it is not reported.   Is that really a good plan?    If you believe that a crucial issue will be discussed, either in chambers or in a sidebar conference, ask that the reporter be present to record the conference.  If you fail to do so, the reviewing court will presume the unreported proceedings would have shown the absence of error.

If you are unable to have the reporter present in chambers, try to get the gist of the conference on record once you return to court or file a declaration with the court as to what happened.  You may believe that it might be upsetting to the judge to have this layer of added protection, but your duty is to protect your client's rights, including the right to appeal, and not to please the trial court.

Trying to save money by not having a reporter present at trial is a matter of being penny-wise, pound-foolish. If you client does not want to arrange or pay for a court reporter for trial, it may be tantamount to waiving any right to appeal on certain grounds.   It is as if the client is willing to rely  on an error-free single shot at justice.  If objections are not reported, it is as if they were never made.  This failure is a death knell for substantial evidence appeals.  “[I]t is presumed that the unreported trial testimony would demonstrate the absence of error.”  (Estate of Fain (1999) 75 Cal.App.4th 973, 992.)  You will fare no better – unless it is too blatant for the court to presume otherwise – if you fail to show abuse by presenting the lower court’s reasoning and actions.

Requesting a continuance in motions for summary judgment

Problems frequently arise when an opposing party requires a continuance.  If the opposing party demonstrates that essential evidence “may exist but cannot, for reasons stated, then be presented, the court shall deny the motion” or continue it. (Code of Civil Procedure section 437c(h).)  Quite often, an attorney seeking a continuance will submit a simple request for a continuance in his or her opposition, but do nothing about the request until the date of the hearing.  The language in section 437c(h) is strong; the court is under a mandatory duty to deny or continue the motion if such facts may exist.  But the code section requires an explanation or reasons why those facts cannot be then presented.

Code of Civil Procedure section 437c(h) suggests that a request for a continuance may be made in the opposition papers or by ex parte motion before the opposition is due.  (Code of Civil Procedure section 437c(h).) My preference is to ask for a continuance first by an ex parte application as soon as the need arises.  I also recommend that it be done after you have taken some active steps to conduct the additional discovery, such as setting up depositions, etc.  Taking the time to prepare an ex parte application may demonstrate that you really need to obtain additional discovery and the request is not just made in the event you are in danger of losing the motion.  It also stops the court from reviewing the motion until it is ripe.  No judge will want to read all of the papers only to find a request for continuance buried on the last page of a party’s opposition.

The declaration in support of a request for a continuance must set forth what discovery is necessary to properly oppose the motion for summary judgment.  This proposed discovery should be tied into your assertion that certain facts may exist that will result in a denial of the motion.  The declaration should state why the information in the requested discovery is essential to oppose the motion and why additional time is needed.  (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.)

When advising the court as to the specific reasons why the evidence cannot be presented either in the opposition or at the time of the hearing, be sure to include an estimate as to the time necessary to obtain such evidence.  That is one reason why I prefer to have the discovery already scheduled so that a date certain can be presented to the court.  Statements, such as “further discovery is necessary,” are simply not enough to support a continuance.  “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated.”  (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)  As stated in Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, “A declaration in support of a request for continuance under section 437c, subdivision (h) must show: ‘(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.'”  (Id. at p. 254.)

Motions for Summary Judgment: The Separate Statement

The importance of the separate statement cannot be overlooked.  Some judges will immediately review the separate statements, hoping to find what facts are undisputed and those that are not.  Others will review it as the last document of the moving papers.

One of the biggest problems with preparing a separate statement is failing to make sure it includes all of the facts necessary to support the evidence and refers to the supporting evidence.  See California Rules of Court, Rule 3.1350(h) for the proper format.  In reviewing motions for summary judgment, I have found that facts may be included in the declarations or memorandum of points and authorities, but somehow they have failed to make their way into the separate statement.  “When a fact upon which plaintiff relies is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the trial court; the court does not have the burden to conduct a search for facts that counsel failed to bring out.”  (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116.)

In opposing the motion, an opposing party often fails to realize that the opposition separate statement serves different functions.  An opposition separate statement must respond to the material facts put forth in the moving papers as to whether the fact is undisputed or disputed.  If a fact is disputed, there should be a reference to supporting evidence.  (Code of Civil Procedure section 437c(b)(3); California Rules of Court, Rule 3.1350(f) and (h); Lewis v. County of Sacramento, supra, at p. 115.)  As a secondary and very important function, the opposition separate statement must identify any other material fact that is disputed and creates a triable issue.

Quite often an opposing attorney will simply respond to the separate statement prepared by the moving party.  But a separate statement is an opportunity to show triable issues exist that justify denial of the motion.  Of course, each fact must refer to the supporting evidence.  When I am asked to review a motion for summary judgment for summary judgment by the opposing party, the first question I ask is what are the triable issues of fact.  Then I look at the separate statement to confirm that they are listed.  The existence of triable issues should also be repeated in your introduction to your memorandum of points and authorities.  If it is not in either place, but scattered somewhere in your opposition papers, you have made the judge's task that much more difficult.  As I have said before, you should try to make it easy for the judge to deny your opponent's motion for summary judgment.

Summary Judgment Motions: Defects in Expert Witness Declarations

If an expert testimony would be required on an issue at trial, then an expert witness declaration is required to support or oppose a motion for summary judgment.  (Kelley v. Trunk (1998) 66 Cal. App.4th 519, 523.)  Establishing admissibility of an expert declaration is governed by similar rules that apply to expert testimony at trial.  (Evidence Code section 720.)  An expert’s opinion that is based on speculation, conjecture  or conclusions will be rejected as inadmissible.  (Evidence Code section 801(b); Mitchell v. United Nat. Ins. Co. (2005) 127 Cal.app.4th 457, 478.)  An expert declaration should contain the following:

• The expert’s qualifications or competency to testify.


• What information the expert relied on in forming an opinion, including what documents or records were reviewed.


• A statement that the expert’s opinion is based on matters that are reasonably relied upon by experts in forming their opinions.


• The factual basis for the opinion.  “[A]n opinion unsupported by reasons or explanations does not establish the absence of a material fact issue for trial, as required for summary judgment.”  (Kelley v. Trunk, supra, at p. 524.)  As noted in that case, the court or trier of fact may reject an expert’s opinion if the reasons given for it are unsound.  The court concluded, “It is not our intent to disparage either the summary judgment procedure, or its appropriate use in malpractice cases.  The procedure is a long-established and important part of our civil system.  Summary judgment is appropriate in every case where the statutory standard is met, and the absence of material issues for trial established.  However, that standard is not satisfied by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.”  (Id. at p. 524-525.)  However, in the case of Hanson v. Grode (1999) 76 Cal.App.4th 601, the Second appellate District rejected Kelley’s approach, declining to require the expert declarant to set forth details in excruciating detail.”  (Id. at p. 608, fn. 6.)


• Supporting hospital records and testimony authenticating such records.  In Garibay v. Hemmat (2008) 161 Cal.App.4th 735, the court concluded that an “expert’s opinion based on assumptions of fact without evidentiary support has no evidentiary value.”  (Id. at p. 743.)  As a result, the court rejected an expert declaration that did not include authenticated copies of the medical records.

Attorneys may wonder how much detail should be supplied.  Too little and they run afoul of Kelley v. Trunk for failing to provide reasons for their conclusions.  The expert declarant needs to avoid making conclusions, especially ones that may look like speculation or conjecture, which may occur if reasons aren’t supplied.  On the other hand, what is the disadvantage of overloading the court with too much detail or reasons?  It is better to err on the side of providing too much information, although more information gives your opponent more potential ammunition.  Unless you know the court’s threshold on what it considers too much detail, it is better to make the expert declaration as complete as possible.