Trial Exhibit Not Moved Into Evidence Deemed Admitted on Appeal

Tim Kowal June 16, 2022

“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 Amirnezhad v. Ghayam (D2d8 May 4, 2022 no. B306361) 2022 WL 1401387 (nonpub. opn.), Amirnezhad prevailed and got an award of almost $160,000 in attorney fees and costs. the basis for the fee award was a promissory note.

But, the note was not admitted at trial. True, Amirnezhad introduced it at trial. He authenticated the signature. Both parties testified about it. And no one disputed its authenticity. But it was never actually moved or admitted into evidence. So Ghayam argued there was no evidentiary basis for the award of contractual fees.

Exhibits Discussed But Not Actually Admitted at Trial Still May Be Deemed Admitted into the Record:

The Court of Appeal disagreed that the note was not in evidence. The court relied on Dodson v. Greuner (1938) 28 Cal.App.2d 418 (Dodson). That case involved an action against the administrator of an estate for payment on a note given by the decedent. (Id. at p. 420.) The defendant-appellant challenged judgment on the note on the grounds that the note had never been formally admitted into evidence at trial. (Id. at p. 423.) The appellate court acknowledged that “the record d[id] not show that the trial court announced [that the note was] ‘admitted.’ ” (Ibid.) Nevertheless, it deemed the note admitted where the court and the parties had each treated the note as being in evidence. (Ibid.) Specifically, the plaintiff had offered the note and proved the signatures, both parties testified about the note, and the clerk had marked it as evidence. Under these circumstances, the appellate court was unable to “hold it was not admitted in evidence.” (Ibid.)

As basically the same thing happened here, the court deemed the note admitted into evidence.

The Upshot: If you forgot to move a key exhibit into evidence, argue the Dodson case. If you laid the foundation for the exhibit and there was no dispute over its authenticity, then under Dodson the appellate court may deem the evidence to be part of the trial record.

But you still have to make sure the missing exhibit is part of the appellate record. For this, consider consulting an appellate specialist.

(Hat tip to the CalAttorneysFees.com blog for this case here.)

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.

Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"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

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

— H.L. Mencken

"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

"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

"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.)

"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

"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

"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

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

— Leviticus

“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

"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

Trial Exhibit Not Moved Into Evidence Deemed Admitted on Appeal

Exhibits Discussed But Not Actually Admitted at Trial Still May Be Deemed Admitted into the Record:

Related Posts:

"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

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

"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.)

"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

"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

"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

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

"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