Monday, October 17, 2016

Good Luck to All That

Randall v. Mousseau, No. B263945 (D2d7, as amended, Sept. 16, 2016)

In California, the appellant bears the burden of showing error. That means, among other things, that she needs to present the record on appeal. There are two different records—a written record, and a record of oral proceedings. And then for each type of record there are various options to compile. For the record of oral proceedings, the standard is a court reporter’s stenographic transcript. (In the lingo of California state court, a “reporter’s transcript.”) See Cal. R. Ct. 8.130. That’s been the case since modern stenography came into place during the mid-20th Century. But there are other options.

Notably, a recording of the proceedings is not one of them. For complicated historical and political reasons, taping of oral proceedings in California state court for the purpose of creating a trial record generally isn’t permitted. See Cal. Court Reporters Assn. v. Judicial Council of Cal., 39 Cal. App. 4th 15, 26 (1995). So if you don’t have or can’t get a transcript, the next best (and far inferior) option is called a “settled statement.” See Cal. R. Ct. 8.137. It’s an anachronism that predates modern court reporting capable of verbatim transcription. Basically, after the case is over, the parties are supposed to sit down with the trial judge and write out a narrative of what happened. If that seems kind of a fraught and difficult thing to do, that’s because it is.

For a long time, this wasn’t an issue. State courts provided reporters for everything, so whatever happened in oral proceedings could be preserved in the event that a non-prevailing party decided to appeal. But in the past five or so years, that practice has ceased in many of the larger counties in the state. Except when the right a transcript is constitutionally guaranteed—like in criminal cases and cases where parental rights are at stakemany California trial courts now require the parties to hire and pay for their own court reporter.* The upshot of that is that a settled statement is frequently becoming the only recourse to a trial record for many appellants, particularly those of limited means.

After plaintiff lost a bench trial in this case, he moved for the preparation of a settled statement. The trial court denied it, reasoning that the minute order it had issued as its trial decision was sufficiently specific to address whatever issues plaintiff wanted to raise in his appeal. The court further noted that the settlement process creates a burden on the opposing party and the court, which it didn’t believe was warranted.

But the Court of Appeal explains that, while the case law permits the trial court to do so when the appellant’s proposed statement is seriously deficient, there were not findings supporting such a deficiency here. Nor were there any findings justifying why settling a statement in this case was particularly burdensome on the court or the prevailing defendant. Under the circumstances, the court here finds that the trial court abused its discretion in refusing to participate in settling the statement.

But the ruling is not a holding. It is all dicta, because Plaintiff did not timely challenge the court’s denial by writ or in her opening brief on appeal. Her AOB did not claim that the trial court erred in denying her motion to settle the statement—the point was addressed only in supplemental briefing ordered by the court. So the issue was forfeited. The court notes that it explained what it did only because “many trial courts no longer provide court reporters in civil matters, and this issue is likely to recur[.]” 


This seems well-intentioned, but of dubious workability. It often takes three months to even get a hearing on a motion to compel discovery. To think that trial courts are going be able to take the time to actively work to create an accurate appellate record with parties who cant afford a reporter seems pretty optimistic. Particularly when you consider the kinds of cases and parties where the litigants are most likely to have issues with paying for a reporter or transcript. That said, perhaps the experience of trying to put together settled statements in prisoner civil rights cases and contentious divorce cases where both parties are pro se will manage to convince the superior courts that it is in their interest to go back to providing official reporters. 

*That includes indigent parties who would have the right to have the official reporter’s fee waived, were one provided. The legality of this practice is currently before the Supreme Court, in a case where I represent the petitioner. 

Update: Here's an article in Los Angeles Lawyer that shares my take on the situation.

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