Failing to log the length of trial leads to appellate loss

Tim Kowal November 2, 2023

The employee-appellant in Lewis v. Reptile Factory, LLC (D2d3 Oct. 12, 2023 No. B324197) [nonpub. opn.] challenged the trial court’s refusal to issue a statement of decision. The losing party has a right to a statement of decision, but only if timely requested. What is the deadline? There are two: 10 days, normally, but for shorter trials—within a day, or if over multiple days, under 8 hours—the request must be on the record before submitting.

The trial here was two days. And appellant made the request within 10 days. So the request was timely, right?

Wrong. The trial was done over two partial days. So the court appropriately asked: was it done is under eight hours?

The transcript for one of the partial days the proceedings began at 10:04 a.m. and concluded at 3:50 p.m. That’s almost six hours. So as long as the trial on the other day was a little over two hours, the appellant was home free, right?

Wrong again. First, the transcript did not reflect the length of the lunch recess. (Recesses don’t count toward the eight hours.) Worse, the other transcript did not reflect duration at all.

And then these words of doom: “Error is never presumed.” “[T]he record in the present case does not affirmatively show that the trial of this matter lasted more than eight hours.”

That means the request for a statement of decision needed to be made before the end of trial. The request after the tentative decision was untimely.

Takeaway

Here are three tips to consider at your next short trial:

Consider filing a request for a statement of decision before your trial begins.
Bring a script with your request and remember to read it before the trial ends.
Note on the record the time trial began and ended each day, so there is a record of how long trial lasted.

Just don’t let your right to a statement of decision evaporate by an untimely request.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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

— Leviticus

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"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

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"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

"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

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— James Madison, Federalist 62

"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

"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

"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

Failing to log the length of trial leads to appellate loss

Takeaway

Related Posts:

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

"A judge is a law student who grades his own papers." — H.L. Mencken

"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 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

"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

"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

"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

"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.)