Prepare for an appeal right from the start

Increase your clients’ recoveries and protect their interests on appeal by learning to protect the record

Lauren Horwitz
2020 December

As a plaintiff’s attorney, you are tasked with proving liability, establishing your client’s damages, and making sure the money actually gets paid. In the heat of battle, it may be tempting to ignore the possibility of an appeal. A continuing awareness of the long-term consequences of your procedural choices can increase the chances of success on appeal and will likely benefit your client even earlier than that. For example, when negotiating a post-trial settlement, you can point out that you have protected the record and that any potential appeal by defendant will likely fail. At the very least, you will put your client on the road to success by keeping the file organized and by creating a clear record.

Think twice before waiving the court reporter

Reporters’ transcripts are expensive and making sure a court reporter is present at hearings and trials is not always easy. Without a reporter’s transcript, though, your client’s experience on appeal will be far more difficult than it needs to be. If your client is the appellant, they have the burden of providing an adequate record to the appellate court that shows the error below and prejudice suffered. (Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1209.) If the appellant fails to do that, they default and the decision of the trial court will be affirmed. (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) In short, where an appellant fails to provide an adequate record on an issue, the Court of Appeal is required to resolve the issue against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295-96.) Thus, it is important to protect your client by making an adequate record of what occurs in the trial court.

Agreed statements and settled statements

If you do not have a reporter’s transcript, your client will need to rely on an “agreed statement” or a “settled statement” to establish the record. An agreed statement must explain the nature of the action, the basis of the reviewing court’s jurisdiction, and how the superior court decided the points to be raised on appeal. (Cal. Rules of Court, rule 8.134.) As the name implies, an agreed statement is one that both sides have agreed to.

In the event you cannot get an agreement from the opposing party, your client can rely on a settled statement. A settled statement is a summary of the superior court proceedings that is approved by the superior court. (Cal. Rules of Court, rule 8.137.) This article does not address the intricacies of agreed statements or settled statements. The purpose of including them here is to act as a warning that your client’s appeal (or their response to an appeal) will be significantly more difficult without a reporter’s transcript. Do not put your client’s appeal in the hands of opposing counsel or the court – order a court reporter.

Know your venue

Be mindful of how the venue handles court reporters. Some counties, like Kings County, will provide a court reporter for a nominal fee and then the litigant can pay the reporter for the transcript. Others, like Los Angeles, do not provide reporters and the litigant must bring one to court. The good news is that most defendants will split the cost of the reporter with you and if you win the case, the court reporter’s fees are recoverable costs. (Code Civ. Proc., § 1033.5, subd. (a)(11).)

Use the court reporter

Once you decide to use a court reporter, use the court reporter every time it matters. Obviously, your client will benefit from a reporter’s transcript of witness testimony at trial. Before trial, you should also consider having a reporter transcribe hearings on demurrers, motions to dismiss, and motions for summary judgment or adjudication, even if your client is not the moving party. Rulings on them can all result in an appeal, and so it is important to preserve an accurate record of what transpired at the hearings.

During trial, request that the reporter transcribe hearings on motions in limine, jury instructions, and verdict forms. These are frequently sources of appellate issues and the transcripts will prove invaluable on appeal. Also, an accurate and complete record of why the trial court approved or disapproved certain language in the jury instructions or the verdict form can show reversible error (or the lack thereof). After the jury begins deliberations, request that the reporter transcribe all jury questions, hearings on how to answer jury questions, and the verdict itself for the same reasons.

Audio and deposition transcripts

When audio or deposition testimony is presented to the jury, request that the reporter transcribe it. Absent this request, almost every reporter will defer to using a phrase like “deposition testimony of Witness X was read into the record.” If your case goes up on appeal (or you are just reviewing transcripts before closing argument), you will need to establish exactly what was played for the jury.

Before you play the audio, confirm on the record that the reporter will transcribe it. Then, outside the presence of the jury, offer to send the reporter the audio or deposition transcript so they can double check what was offered as evidence in court. Also, specifically reference on the record the page and lines that are being read as an additional safeguard. (Editor’s note: Having the reporter transcribe audio or video testimony will eliminate the hassle of trying to keep track of the various designations of the transcripts and the trial court’s rulings on objections. It’s worth the price!)

Conversations at side bar and in chambers

Some judges are reluctant to have the reporter transcribe discussions at side bar or in chambers. Even if you know that the request will be denied, it is a good idea to make a record of your request to have the reporter transcribe side bars and in-chambers conferences. Then, at the end of each trial day, request to make a record of what transpired at the side bars and in-chambers conferences. Doing so will give you an opportunity to make your record without angering the judge.


I cannot say it clearly enough: Make your evidentiary objections on the record. Do so in writing or verbally, but just don’t miss your opportunity.

File and oppose motions in limine

Motions in limine and oppositions thereto are a fantastic opportunity to take your time and make an extremely clear record for the Court of Appeal. Motions in limine often qualify as timely objections on the record pursuant to Evidence Code section 353. (Schweitzer v. Westminster Investments (2007) 157 Cal.App.4th 1195, 1251.) “Motions in limine are . . . generally brought at the beginning of trial, although they may also be brought during trial when evidentiary issues are anticipated by the parties.

In either event, they are argued by the parties, either orally or in writing or both, and ruled upon by the trial judge. The usual purpose of motions in limine is to preclude the presentation of evidence deemed inadmissible and prejudicial by the moving party . . . The advantage of such motions is to avoid the obviously futile attempt to unring the bell in the event a motion to strike is granted in the proceedings before the jury . . . .” (People v. Morris (1991) 53 Cal.3d 152, 188, disapproved of on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830). “The scope of such motion is any kind of evidence which could be objected to at trial, either as irrelevant or subject to discretionary exclusion as unduly prejudicial.” (Clemens v. American Warranty Corp. (1987) 193 Cal.App.3d 444, 451.)

Motions in limine also give you the opportunity to introduce and explain complicated evidentiary issues to the court well before they become an issue in front of the jury. These more complicated motions present potential risks if the court does not immediately rule on them, though. Sometimes the court decides that a tentative ruling is appropriate in pretrial proceedings because other events need to occur before it can make a final ruling. Be aware that a “tentative pretrial evidentiary ruling, made without fully knowing what the trial evidence would show, will not preserve the issue for appeal if the appellant could have, but did not, renew the objection or offer of proof and press for a final ruling in the changed context of the trial evidence itself.” (People v. Holloway (2004) 33 Cal.4th 96, 189.)

Thus, it is your job to make sure that the court rules on every motion in limine that you need a ruling on. Also, if the ruling is tentative or “without prejudice,” renew your objection when the evidence comes in or at the point when you want it to come in, and make the required offer of proof if it is being excluded. Also, even if the court rules on a particular motion in limine, be mindful that the ruling only applies to the specific evidence addressed in the ruling. If the evidence presented by a witness is substantially different from the evidence encompassed by the ruling, it becomes your responsibility to renew the objection at the appropriate time. (Summers v. A.L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1184-85.)

Be comprehensive

“A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct.” (People v. Partida (2005) 37 Cal.4th 428, 435.) When objecting, state every ground for your objection. (Evid. Code, § 353(a).) You do not need to argue the point initially; only a word or two (for example “hearsay,” or “relevance”) is necessary. This is important because any ground not stated is waived on appeal. (Evid. Code, § 353(a).)

One of the best trial skills I learned as a young lawyer was to plan as many of my verbal objections in advance as possible. This is because an “opponent cannot make a ‘placeholder’ objection stating general or incorrect grounds (e.g., ‘relevance’) and revise the objection later in a motion to strike stating specific or different grounds,” (People v. Demetrulias (2006) 39 Cal.4th 1, 22).

Accordingly, I try to anticipate which topics I will want to object to and include notes of how I want to object in my preparation materials. Time always seems to fly when a witness is on the stand, and I want to avoid missing objections because I was focused on listening to the testimony and refining my questions for re-direct, for example. At the very least, if I realize that I missed an objection during a witness’s testimony, I will state it on the record after the witness leaves the stand. While not technically proper, I want to give my client every opportunity to prevail on appeal should that testimony ever become an issue.

Press the court for a ruling

While filing motions in limine and making verbal objections play an important role in preserving the record, so too does getting a ruling. Keep in mind that on appeal the court will “follow the long-established rule that where a court, through inadvertence or neglect, neither rules nor reserves its ruling, the party who objected or made the motion must make an effort to have the court actually rule, and that when the point is not pressed and is forgotten the party will be deemed to have waived or abandoned the point and may not raise the issue on appeal.” (People v. Brewer (2000) 81 Cal.App.4th 442, 461-62.) Thus, you need to press the court for rulings on every objection.

At trial, I keep a chart of all motions in limine and track the court’s rulings on each with a notation of how and when (including the time of day) the court ruled on it. I also leave room at the bottom of the chart for details on the court’s more significant evidentiary rulings. Before a witness whose testimony will be affected by a ruling is called to the stand (and outside the presence of the jury), I can easily make a short statement on the record reminding the court and opposing counsel of the ruling, and if a ruling needs to be revisited later in trial, my task of requesting a certain portion of the transcript from the reporter becomes significantly easier. The chart also acts as a handy guide for the appellate attorney if an evidentiary ruling is at issue on appeal.

Make an offer of proof

If the court sustains an objection to your evidence, request the opportunity to make an offer of proof. The offer of proof must include the “substance, purpose, and relevance” of the evidence. (Evid. Code, § 354.) You can make this offer of proof in an Evidence Code section 402 hearing outside the presence of the jury and explain on the record what the evidence would have shown had it been admitted. If you fail to make an offer of proof, however, you waive your client’s right to a new trial or appeal based on the exclusion. (Evid. Code, § 354.)

Move to strike

Sometimes a witness is quick to respond to a question, and you cannot clearly state your objection to the question before the witness answers. In that instance, state your objection as soon as possible and then make a motion to strike it. If the judge overrules your objection, you have still preserved it for the record. If the judge sustains your objection, immediately request that the court admonish the jury to disregard the prior answer. In situations where the court has sustained a motion to strike particularly damaging testimony, consider requesting a special instruction at the end of trial reminding the jury not to consider that testimony. That should be a rare request made after careful consideration, though. You do not want to risk reminding the jury of the damaging testimony just before they begin deliberations.

A quick note on MSJs and MSAs

Take the time to file written objections to an opposing party’s evidence filed in support of an MSJ or MSA. As long as you file written objections or make oral objections at the hearing, those objections are preserved for appeal, whether or not the trial court actually rules on them. (Reid v. Google (2010) 50 Cal.4th 512, 532 at fn. 7.) During the hearing, though, it may be difficult to remember to make a record of every evidentiary objection you want to make. The judge will also appreciate having the objections in advance so they can take the time to either rule on them or specifically decide not to rule on them. If the judge opts not to rule on them, make a short statement on the record acknowledging that you filed the objections, requested a ruling, and that the judge declined to rule on each one.

Organize and track your exhibits

Making a binder of exhibits is just the beginning to organizing and tracking exhibits throughout trial. Even if you are in a jurisdiction that does not require you to Bates stamp individual pages of each exhibit, consider doing so. Whenever you refer to an exhibit on the record, refer to it by its complete exhibit number and not just the title of the document or a phrase like “this important evidence.” This will make your job of identifying and locating the exhibit substantially easier and will also aid the Court of Appeal in tracking which evidence is being referred to at what point.

I also suggest marking as an exhibit every document, drawing, animation, demonstrative, video, or any other material even if you do not intend to request it be admitted into evidence. At the end of the day or week, request that the court hold a copy of the marked materials in evidence with the trial exhibits.

I then try to keep a complete list of all of the materials that have been marked with a note of the day and session they were admitted into evidence. At the end of the trial, the clerk or court will ask the attorneys to verify what is being sent to the jurors to consider. You will be happy you have an updated list available to compare against the court and opposing counsel’s notes.

After the verdict is read, some jurisdictions request that a party take custody of the exhibits and maintain them for the appeal. I encourage you to do this. Put the exhibits into a separate box that is clearly marked as “trial exhibits” to keep with the rest of the file.

Jury instructions

The good news is that there is suggested language for most jury instructions you will need at trial – the CACI’s and BAJI’s. The (sometimes) bad news is that the language is updated frequently. For various reasons, the suggested language you have come to know and rely upon in prior trials may be different from the version your current trial court is ruling on. Pay close attention to what the most current language is and if defense counsel or the court requests that the language deviate from the suggested text, make a record on why the language will deviate from it. I have a current set of CACI’s available in the courtroom every day during trial. Also, while meeting and conferring about the language, I personally double-check that every instruction mirrors the language in the most current edition. Sometimes defense counsel seems to inadvertently forget words like “not” or “must” and you do not want to be caught unaware of their omission as the judge reads the instructions to the jury.

The verdict form

Don’t let an error on the verdict form ruin your victory. Triple-check the language of the verdict form both on a computer and in print before submitting it to the court. Also, consider circulating the language to lay persons like your spouse, assistants at your office, or a friend who you treat to a cup of coffee. Give them a hypothetical conclusion and ask them to fill out the form to match it, i.e., the jury concludes that the defendant was negligent and a substantial factor and wants to award the plaintiff $1,000,000 in damages. They may find circular instructions or typographical errors, or just point out that the form is confusing. Take their feedback to heart and edit the verdict form appropriately.

Decisions on bench trials

A judge who decides a bench trial does not fill out a verdict form. Rather, the losing party in a bench trial is entitled to a “statement of decision” signed by the judge who decided the case. (Code Civ. Proc., § 632.) The statement of decision must explain the factual and legal basis for the decision as to each of the principal controverted issues at trial. The losing party then has the opportunity to file objections to the proposed statement of decision within 15 days after service; failure to object waives the right to raise those issues on appeal. If the court never signs a statement of decision, the appellate court will presume that the trial judge made all factual findings necessary to support the judgment. (Homestead Supplies, Inc. v. Executive Life Ins. Co. (1978) 81 Cal.App.3d 978, 984.) Don’t miss the opportunity to perfect your record regarding the trial court’s final decision on your case. Make sure to request a signed statement of decision.

Understand when an appeal may occur and calendar the deadlines

Most typically, an unlimited civil case is appealed from (1) a judgment (either after a decision on a motion for summary judgment or after a jury returns a verdict), (2) an order made after a judgment, or (3) an order on a motion for new trial or motion for judgment notwithstanding the verdict. (Code Civ. Proc., § 904.1.) You must file the notice of appeal by the earliest of (A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, showing the date either was served; (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or (C) 180 days after entry of judgment. (Cal. Rules of Court, rule 8.104.) As soon as you have a judgment or a decision on post-trial motions, calendar these deadlines and monitor them closely. It is very difficult, if not impossible, to obtain relief from missing the deadlines.

Order the transcripts early

If the judgment is appealed, you will likely want to designate portions of transcript for the Court of Appeal to consider. The Court of Appeal will not accept rough transcripts or transcripts that are not certified, though. As soon as you know the case is going to result in an appeal, contact the court reporter and request that they begin working on creating the original transcripts. The court reporter will have moved on to a different trial and may not have an unlimited amount of time to immediately edit their transcriptions and finalize the original transcripts. Because the reporter must prepare and certify an original of the transcript and file it in court within 30 days after the clerk gives notice of the designation (Cal. Rules of Court, rule 8.130), it is prudent and courteous to give them as much time as possible to work on the assignment.

Involve an appellate attorney during litigation

If you have the time and resources, consider retaining an appellate attorney to research, edit, or even ghost-write important motions and oppositions throughout the case. Appellate attorneys have unique researching and writing skills and can often issue-spot events that will happen months or years in the future. They also craft arguments in a way that will put your client in an effective bargaining position now and in a far superior position on appeal.

Using all the tools discussed above takes a considerable amount of time and effort. It is well worth the work, though, because you can increase your client’s chances of success both in the trial court and on appeal.

Lauren Horwitz Lauren Horwitz

Lauren Horwitz is a trial attorney at BD&J, PC in its wrongful death and catastrophic injury practice group. In addition to advocating for individual plaintiffs, she has experience litigating mass torts and class actions. She also handles bad faith insurance litigation, and has argued before the California Court of Appeal. She is a member of the CAALA Board of Governors and is currently serving as the Vice Chair of the Membership Committee. Lauren is a three-time Finalist for CAALA’s Rising Star Award, and she was named a Super Lawyers Rising Star in 2016 - 2020. 


Prepare for an appeal right from the start

Copyright © 2022 by the author.
For reprint permission, contact the publisher: Advocate Magazine