Donna Bader Book
Review
Obstacles to your success on appeal Attorneys must bypass several long-established roadblocks before seeking a viable reversal of judgment
An excerpt from Donna Bader’s new book, An Appeal to Reason. See full review on page 69.
If you are representing an appellant
on appeal, you are going into battle with less than a 50/50 chance of success. The chances of obtaining a reversal or other affirmative relief ranges around 15-25 per- cent. These statistics do not provide cause for optimism for an appellant. In han- dling an appeal, attorneys also face obsta- cles that are inherent in the appellate process, which will be described below.
The reviewing court presumes the judgment to be correct. Judgments are presumed correct.
Sounds simple, but it means that whenev- er a justice picks up your brief and starts to read, he or she will attempt to preserve the judgment, if possible. This presump- tion makes sense because if judgments were presumed incorrect, everyone would be running to the courthouse to chal- lenge an adverse result. This principle is expressed in Denham
v. Superior Court (1970) 2 Cal.3d 557: [I]t is settled that: ‘A judgment or
order of the lower court is presumed cor- rect. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the consti- tutional doctrine of reversible error.
(Id. at p. 564; see also State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.)
The appellant has the burden of providing a meaningful record. The “record” consists of (1) the
Clerk’s Transcript or an appendix pre- pared by one or more of the parties of documents filed with the lower court; (2)
70— The Advocate Magazine JULY 2011
the reporters’ transcripts of the oral pro- ceedings; and (3) the exhibits. If you are the appellant, you have the
burden of showing error on an adequate record. (Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1209.) That means two things:
1. You must have a record that
shows the error, and 2. You must produce enough of the
record for the reviewing court to con- clude the error occurred. A necessary corollary to this rule is
that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.
(Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Failing to create a meaningful record
can occur in so many ways. You might have a sidebar discussion or in-chambers conference that is not reported. You might withdraw certain jury instructions and fail to make them part of the record. You might give the court reporter a break and waive reporting certain aspects of the trial, such as voir dire or closing arguments.
The record must show the right kind of error. No one is perfect. During the course
of a day, we make plenty of mistakes, little ones and sometimes big ones. Trial judges are no different. At the appellate level, the reviewing court must analyze what type of mistake occurred and whether that mistake is harmless or prejudicial. The court will consider (1) who made the mistake, and (2) the effect of the mistake on the pro- ceedings. The following is a list of “errors” you may encounter in reviewing the case: • Judicial error Judicial error is committed when the
court intended the order or judgment it made, even though it was based on an error of law. Since a judicial error may be
committed by a judge and a clerical error may (or may not be) committed by a clerk, the type of error may be difficult to determine. In Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, the court described the differences between the two types of errors: The difference between judicial and
clerical error rests not upon the party committing the error, but rather on whether it was the deliberate result of judicial reasoning and determination. The distinction between clerical error and judicial error is whether the error was made in rendering the judgment, or in recording the judgment rendered.
(Id. at p. 1238.) If the court committed judicial error,
it cannot amend a judgment to modify or materially affect the parties’ rights under this inherent power. (Aspen Internat. Capital Corp. v. Marsch (1991) 235 Cal.App.3d 1199, 1204.) The parties then must look to the appellate courts to cor- rect the error. Thus, if the court “con- strued the evidence before it, or misap- plied the law applicable to the facts dis- closed by the evidence, or was even mis- led by counsel,” the error is not a clerical one and must be corrected by a post-judg- ment motion or on appeal. (Tokio Marine & Fire Ins. Corp. v. Western Pacific Roofing Corp. (1999) 75 Cal.App.4th 110, 117.) • Clerical error As a general principle, the trial
courts possess the inherent power to cor- rect clerical errors in their records so that the court’s orders and judgment conform to the truth of the records. (Rochin v. Pat Johnson Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1238.) A clerical error can be committed by the court, a clerk, or even counsel. (Aspen Internat. Capital Corp. v. Marsch, supra, at p. 1204.) If a simple clerical error was committed, then a party can make a motion before the same tribu- nal to correct the error. (Ibid.) Thus, if
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