No Court Reporter Means No Meaningful Appellate Review
A recent decision from California Court of Appeal (6th District) stated the oft-repeated rule that if there is no court reporter, and often there is none in Family Law actions, any ruling against you will be presumed to be correct. So even if the judge got it wrong, but the appeals court can come up with ANY rationale to uphold the ruling, they will uphold it. Seems unfair? It is. The appeals court in a footnote went on to say so:
We are deeply troubled by the trial court’s policy of conducting all family law matters without a reporter unless a reporter is engaged by one or both parties at their own expense. This policy is actually codified in a local rule stating, “The family court does not provide a court reporter in family law matters, except when possible a reporter will be provided for DCSS and restraining order matters. If you would like to have a court reporter present you will need to hire and pay all costs associated with the reporter.” (Super. Ct. Santa Cruz County, Local Rules, rule 3.7.01.) As illustrated by this case, the absence of a verbatim record can preclude effective appellate review, cloaking the trial court’s actions in an impregnable presumption of correctness regardless of what may have actually transpired. Such a regime can raise grave issues of due process as well as equal protection in light of its disparate impact on litigants with limited financial means. The practice becomes all the more troubling when viewed in combination with the statewide prohibition against privately recording court proceedings “for any purpose other than as personal notes.” (Cal. Rules of Court, rule 1.150(d).) Perhaps the time has come at last for California to enter the twentieth (sic) century and permit parties to record proceedings electronically in lieu of the far less reliable method of human stenography and transcription. Until that day, however, we believe the right to effective appellate review cannot be permitted to depend entirely on the means of the parties. We refrain from addressing the issue further here only because the parties have neither raised a claim of error nor made a record of prejudice with respect to the court’s failure to furnish a reporter.
In re Marriage of Obrecht (2/24/2016) (H040827) FN.3.
So how do you protect yourself? You talk to an attorney ahead of the hearing
to see (1) is this something that may need appellate review? If so, does
the courtroom in which your hearing is set in have a court reporter or
do you have to hire your own? (2) If you need to hire a court reporter,
how do you do so? (3) How do you get the transcript? (4) How do you establish
a record for proper appellate review (more on this later)? And finally,
(5) should you appeal this ruling?
Establishing a proper record is a very technical process and to do it right you will need the help of an attorney. As you can see from the Obrecht case, without a proper record, you cannot have meaning full appellate review. However, a “record” is not just the court reporter. Your attorney can make sure things get into the “record” by filing documents (motions, requests, declarations, etc.) with the court and making sure the court’s rulings and findings are in the court’s orders (whether the minutes or the formal orders).
The Law Offices of H. William Edgar has extensive trial experience and can protect your rights whether it just a Request for Order hearing or mutli-day trial. We have experience in Family law appeals and writs. Contact the Family law attorneys at the Law Offices of H. William Edgar for a free initial consultation. We have offices located in Riverside, Temecula and Anaheim.