What Does it Mean to “Designate the Record”?

Since appellate justices were not present at the original trial, they need a reliable record of those proceedings to consider along with the briefs. Preparing (or designating) an official record for appellate review in the California Courts of Appeal is an essential step in appealing the trial court’s decision. Failure to designate the record correctly, however, can have disastrous consequences for your case. A knowledgeable California appellate lawyer can assist.

Basics of designating the record

An appellant must timely file a Notice of Appeal to begin the appellate process. This is filed the earlier of:

  • 60 days after service of a notice of entry of judgment; or
  • 180 days after judgment

Within 10 days of filing this Notice, the appellant must designate the record on appeal. This is done by notifying the superior court of what needs to be sent to the court of appeals. The record contains two parts:

  • Record of documents filed in the trial court
  • Record of oral proceedings in the trial court

Together, these records inform the appellate court of what happened at trial. Included are items like court filings, motions, orders, and transcripts. The appellant’s brief and oral arguments can only refer to items in the record, so an accurate record is critical.

The appellate court will consider anything in the record on appeal that was offered to the trial judge, below. Anything that is not included might as well not exist. Neither side can use anything not included in the record, and the court won’t examine it. Trial exhibits are automatically deemed part of the record, but there is a separate filing required to transmit them to the Court of Appeal.

How to designate the record

Both appellants and respondents can designate their own records on appeal. The Judicial Council provides forms for each side, and although they are convenient and commonly used, they are not mandatory. For the documents filed in the trial court, a party can designate either a clerk’s transcript or an appendix. The difference is who prepares the written record. If the parties elect to have the clerk prepare the transcript, they must detail in their designation what documents should be included. If they proceed with an appendix, they do not have to specify the documents at the time the designation of the record is filed.

Certain items, like the trial court judgment, must be included in the record. There are other documents that have to be included based on the applicable court rules. Parties choose other items based on what exactly they are appealing to and what they want the court to see. Having a seasoned appellate attorney help with this process is important.

What happens if there’s a mistake?

Appellate court rules are strict and can be complicated if you don’t regularly handle appeals. Parties sometimes make mistakes in designating their records. If this happens, the court will send out a notice of default to the party who violated the rules. That party will then have 15 days in which to correct the mistake.

Failure to fix the mistake could be detrimental to your case, regardless of which side of the appeal you’re on. If you’re the appellant, the court might dismiss your appeal. If you’re the respondent, the court might only consider the appellant’s record. Either way, this is not a mistake to take lightly if you want to succeed in the Court of Appeal.

If you discover a mistake with the record – such as a missing document – correcting it is crucial. . But how to correct it depends on why the mistake was made. If the court clerk omitted the document, a notice of correction must be filed and properly served. However, if the mistake was due to your oversight, you must file a motion to augment the record. This is a request for the appellate court to add new material. The court will either grant or reject this motion.

Your Appeal Deserves Committed Legal Counsel

A well-crafted appeal strategy can fix a trial court’s mistake and win you the justice you deserve. However, it’s easier said than done. Designating the record on appeal is fraught with error. Contact Gusdorff Law today to have an experienced attorney in your corner.

 

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