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Record on Appeal

Record on Appeal

You still need a reporter's transcript even if nothing happened at the hearing

Last updated on October 16, 2023 by Tim Kowal
If you’re planning to appeal, you need a court reporter at your hearing. But what if the hearing is over a pure question of law, like whether there’s an enforceable arbitration provision? That’s what happened in Olague v. United Care Facilities, LLC (D2d5 Sep. 29. 2023) No. B323075 (nonpub. opn.), involving an appeal from a...Read More >>

Lack of record leads affirmance by memorandum decision

Last updated on May 22, 2023 by Tim Kowal
Most appellate opinions in California include a full summary of the facts and procedural history, as consistent with the constitutional entitlement to a reasoned opinion. But sometimes the Court of Appeal will issue a mere “memorandum opinion” when the result is compelled by authority on which there is no real question. (People v. Garcia (2002)...Read More >>

Use a settled statement to fill gaps in your record (but don’t try to rewrite the record)

Last updated on April 4, 2023 by Tim Kowal
Nice try, but this is not what a settled statement is for. The defendant in **********Rok Mobile, Inc. v. Brannon (D2d2 Mar. 24, 2023 No. B308642) 2023 WL 2621771 was served with a complaint but failed to answer. In October, Brannon went into default, and five months later got a default judgment against him. On...Read More >>

Oral record on appeal was required to review the validity of a trustee notice to beneficiaries

Last updated on April 3, 2023 by Tim Kowal
We are in the middle of a nationwide shortage of court reporters. Probate departments recently have stopped providing court reporters. California needs 2,750 new court reporters to fill its gap. One thing that would help (as I suggested in a recent presentation) would be for the appellate courts not to insist on an oral record...Read More >>

Can You Read It Back? Tackling Court Reporter Scarcity in California

Last updated on March 27, 2023 by Tim Kowal
CEB has published my CLE presentation, “Can You Read It Back? Tackling Court Reporter Scarcity in California.” You can watch the presentation here (though you will need a subscription). Here is a summary: My most frequent advice as an appellate attorney: “Don’t forget to get a court reporter.” This wisdom of this advice—the most oft-dispensed...Read More >>

Creditor may intervene to prevent debtor from colluding to pay a different creditor

Last updated on October 12, 2022 by Tim Kowal
There is an evergreen warning in Brilliant Digital Ent., Inc. v. PersonalWeb Tech., LLC (D2d4 Oct. 3, 2022 no. B317580) 2022 WL 4716637 (nonpub. opn.) that an incomplete appellate record can doom an otherwise righteous appeal. And there is also a reminder of a more esoteric nature about a rule that allows unsecured creditors a...Read More >>

“You Had to Be There” Doesn't Work on Appeal

Last updated on September 9, 2022 by Tim Kowal
One of the challenges for us appellate attorneys arguing posttrial motions is that the trial judge tends to look upon us as johnny-come-latelies. “That’s how things look to you reading the dry transcripts, Mr. Kowal, but you weren’t here when it happened.” That may be so. But there is someone else who wasn’t there, Three...Read More >>

My recent article, Preparing the Appendix in Federal Appeals, in the latest issue of Facts & Findings

Last updated on September 1, 2022 by Tim Kowal
If you are setting out on a federal appeal, you will need to prepare the record. To help attorneys and paralegals in this task, you can read my article, “Preparing the Appendix in Federal Appeals,” in the latest issue of Facts & Findings, published by NALA. The link to the article is here: https://bit.ly/3wO1i7ARead More >>

Trial Exhibit Not Moved Into Evidence Deemed Admitted on Appeal

Last updated on June 16, 2022 by Tim Kowal
“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again. At the trial between the two partners in a restaurant business in...Read More >>

Read This Before Using a Settled Statement for Your Appeal

Last updated on May 11, 2022 by Tim Kowal
The mother appealing the parentage order in R.M. v. J.J. (D3 Apr. 29, 2022 no. C090018) 2022 WL 1301801 (nonpub. opn.) had a solid issue on appeal: her ex-husband had made frequent angry outbursts and hostile gesticulations throughout the day-long hearing. The mother thought this display of her ex-husband’s rather obvious need of anger management...Read More >>

Lack of Reporter’s Transcript Fatal to Appeal of a Discretionary Ruling

Last updated on January 3, 2022 by Tim Kowal
Trial counsel had some explaining to do at a trial court hearing. The failure to provide a reporter's transcript of that hearing was fatal to the appeal of the resulting order. In Lemus v. Abdeljawad (D4d2 Sep. 8, 2021) 2021 WL 4075181 (E075789) (nonpub. opn.), the plaintiff obtained a default judgment against the defendant. But...Read More >>

Do You Really Need a Court Reporter? Read This Debate Between Two Appellate Justices

Last updated on December 30, 2021 by Tim Kowal
Hiring a court reporter is expensive. Do you really need a court reporter for every occasion, such as a hearing where no testimony will be offered? Before you answer, consider the perspectives of the appellate justices who disagreed sharply on the question in Weischadle v. Vo (D2d1 Jul. 2, 2021) 2021 WL 2766771 (no. B304845)...Read More >>

No Record, No Problem! Appellant Reverses Alter Ego Judgment Using Settled Statement

Last updated on June 7, 2021 by Tim Kowal
I confess I probably would have turned away the defendant in this case had he asked me to take up his appeal from a judgment finding him liable as the alter ego of his company on a loan obligation. Alter ego findings are very difficult to reverse, and the defendant in Creation Harmony Trading, Inc. v....Read More >>

Even the Devil Gets Ensnared in Appellate Procedure: Satanic Temple's Arguments Held Waived on Appeal

Last updated on May 27, 2021 by Tim Kowal
The Satanic Temple, miffed it was not selected to give the invocation at the local city council meeting, sued the City of Scottsdale for discrimination. At the two-day trial, the plaintiffs presented an as-applied discrimination theory, arguing city councilmembers were biased against the Prince of Darkness. Unpersuaded, the district judge found the plaintiffs failed to...Read More >>

Evidence on Appeal: Just Because It Is in the Appellate Record Does Not Mean It Is in the Evidentiary Record

Last updated on May 17, 2021 by Tim Kowal
One thing about appeals that can potentially can be deceptive is the record on appeal. When you appeal, all your evidence goes in the record. That means the Court of Appeal will consider all your evidence, right? Not necessarily, as the appellant learned in Epstein v. Prescott Neighborhood Partners, LLC (D1d1 May 13, 2021) no. A159185 (non-pub.). The trial...Read More >>

Order Granting a Belated Fee Motion Affirmed on Appeal Due to Appellant's Inadequate Record

Last updated on February 17, 2021 by Tim Kowal
Most attorneys have missed a deadline at some point in their careers, or have awoken in the night worrying about it. The attorney in this recent case, Ojeda v. Azulay (D2d3 Feb. 10, 2021) No. B302440 (unpublished), missed a deadline to file a fee motion. But he owned up to the mistake, acknowledging it in his reply...Read More >>

Rare Reversal of a $3.4MM Arbitration Award: Overbroad Employee Confidentiality Ruled a De Facto Noncompete and Thus Void

Last updated on January 22, 2021 by Tim Kowal
I tell clients arbitration awards are virtually unassailable on appeal. After this $3.4 million award in an employment dispute was reversed on appeal in Brown v. TGS Mgm't Co., LLC (D4d3 Nov. 12, 2020) No. G058323, that may technically still be true: but, I am not going to say it anymore. Employee Brown works in the very...Read More >>

Two Recent Appeals Rejected for Easily-Avoided Procedural Errors

Last updated on December 31, 2020 by Tim Kowal
Two recent unpublished cases remind that appeals are lost for failing to designate a sufficient appellate record, and, when challenging findings as lacking substantial evidence in support, for citing only evidence supporting reversal rather than supplying the evidence to support the judgment. In the real estate nondisclosure case in Newstart Real Estate Inv. v. Huang (D2d8 Dec....Read More >>

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

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