The court of appeal discusses errors in preserving the record

Last week I moderated a panel of five justices from our Court of Appeal in Santa Ana.  Some refer to our court as the "4/3" or the Fourth Appellate District, Division Three. Almost 100 attorneys attended the event and we focused on answering questions that those practitioners new to the Court might have.

Since most of the attendees were trial attorneys, I asked what sort of mistakes were made at the trial level that could hurt a party's chances on appeal.  The first response, made by Justice Eileen Moore without the slightest hesitation, was that errors were often made in the format and preparation of the special verdict form.  "Sometimes we look at the verdict and can't tell who prepared it."  The verdict form needs to be prepared with an eye toward a possible appeal.

The panel seemed to be in agreement that there were problems with objections - not being made, the grounds not stated, or made on the wrong grounds.  The follow-up to an objection is to make sure you get a ruling from the judge or you may have just waived your objection.  Another area involved an offer of proof.  Justice William Rylaarsdam,  Justice William Bedsworth, and Justice Kathleen O'Leary offered suggestions in this area:  If you are trying to get in evidence and the trial court is inclined to exclude it, make an offer of proof that is comprehensive enough so that someone who is not attending the trial can decipher it.  On the flip side, be sure to present a cogent argument as to why the evidence should be kept out.   In each situation, remember that you are trying to preserve the record for another court.

Justice Richard Fybel also noted problems with statements of decision.  He touched on the problems associated with failing to request one that covers material issues, and objecting to the statement of decision, where appropriate.  Perhaps it is because most attorneys are trying cases before a jury or there is little written on statements of decision, but I find this to be a big problem in appeals.

In future posts, I intend to examine all of these problems and offer some guidance to trial attorneys that might help protect their appeals.