An appeal is not a new trial. Appellate courts base their decision on court proceedings that have already taken place to assure that the trial judge followed the law. To do that, the appellate courts must review the record from the court below.1
A record on appeal (also called an “appellate record”) is a collection of court filings and transcripts that chronicle the trial court proceedings. Those include documents filed with the trial court, written decisions made by the trial court, and transcripts of hearings held in the trial court (including the trial, if one was held).2
More specifically, the record on appeal consists of those documents and transcripts that have been designated by one of the parties.3 The appellant has the initial and primary responsibility for designating the record on appeal.4
The record on appeal is perhaps the most important part of any appeal. It normally provides the sole factual basis for the appellate court’s decision as well as any arguments made by the parties.5
An appellant cannot base arguments on facts that do not appear in the record on appeal. When an appellate record is deficient in a way that affects the arguments, the court will assume that the lower court’s order or judgment was correct.6 As one California appellate court explained:
“When practicing appellate law, there are at least three immutable rules: first, take great care to prepare a complete record; second, if it is not in the record, it did not happen; and third, when in doubt, refer back to rules one and two.”7
For that reason, designating the record is an important part of the process of taking an appeal. The rest of this article will take a closer look at the process of doing so.
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Record on Appeal
The record on appeal consists only of documents that were filed in the trial court and transcripts of hearings prepared by court reporters.8 Absent exceptional circumstances, no new documents can be added that have not previously been filed in the trial court.9
In a typical appeal, the record will consist of:
- The judgment or order from which the appeal is taken.
- Any written decisions the trial judge prepared that are challenged on appeal.
- Transcripts of any oral rulings the trial judge made that are challenged on appeal.
- Transcripts of the trial, if a trial was held.
- Transcripts of all important hearings, particularly if evidence was taken or if the judge made rulings during, or based upon, those hearings that will be challenged on appeal.
- Motions and responses to motions that were filed in the case.
- The initial pleadings.
- Any other documents (such as trial exhibits) that might assist the appellate court in understanding the case.10
The appellate court will not search the trial court’s file for documents that have not been included in the record on appeal. If a document that is important to your appeal is missing from the record on appeal, you might lose the appeal because the appellate court will be unable to verify that your argument is based on facts in the record.
It is vital to include every document in the record that may turn out to be important to the appeal.
Designating the Record on Appeal
It is the appellant’s initial responsibility to designate the record on appeal.11 Designating the record means choosing the documents and transcripts that are part of the court file that need to be included in the record on appeal. Form APP-003 (Appellant’s Notice Designating Record on Appeal) is used to designate the record.
The record on appeal consists of the clerk’s transcript and the reporter’s transcript.12 The clerk’s transcript isn’t really a “transcript” as that term is normally used. Rather, the clerk’s transcript consists of documents in the court file that the appellant has designated for inclusion in the record.
The reporter’s transcript consists of written, verbatim transcripts of hearings, trials, and other proceedings in which a court reporter recorded the oral proceedings. Only those transcripts that have been designated are included in the reporter’s transcript.
If transcripts of court proceedings are needed for the appeal that have not yet been prepared, the appellant requests the preparation of those transcripts by stating on Form APP-003 the date and nature of each hearing for which a transcript is desired. It is the appellant’s responsibility to arrange for payment of the transcript with the court reporter.
You should carefully review the list of documents filed in the trial court to decide which documents should be included in the record on appeal. Many documents, such as notices of court hearings, will typically have no relevance to the appeal and need not be included.
Since you cannot support the appeal by reference to any document that is not included in the record, it is usually better to include a document in the record when there is any doubt as to whether it might become relevant to the issues on appeal.
But if you discover that you need to refer to a trial court document in your brief that you did not designate as part of the record, you can ask the court of appeal to order that document to be added to the record. A copy of the document should be attached to a motion to augment the record.13
Using an Appendix Instead of a Clerk’s Transcript
Some appeals might not require a clerk’s transcript. In those cases, the parties may choose to file an appendix.14 An appendix, in this context, is a collection of documents that would normally be found in the clerk’s transcript.
The appendix should contain every document that is needed to pursue the appeal. In other words, it should contain the same documents that would be designated as the record on appeal.
An appendix can be filed jointly by the parties, or it can be filed separately by either or both of the parties.15 If the appellant files a separate appendix, the respondent can file a separate appendix containing additional documents upon which the respondent’s brief will rely.
An appellant who chooses to file an appendix can make that election in their notice designating record on appeal.
Alternative Record Completion Procedures
The California Rules of Court provide for two other methods of completing the record on appeal:
- Agreed statement.16 An agreed statement can replace all or part of the clerk’s transcript. It recites the facts needed to decide the appeal and must be signed and agreed-to by both parties. It also explains 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.17
- Settled statement.18 A settled statement is generally used to replace or supplement all or part of the reporter’s transcript (and sometimes the clerk’s transcript). It is a condensed narrative of the oral proceedings that the appellant believes necessary for the appeal.19
The two procedures differ in that a settled statement is proposed by the appellant to the superior court. The respondent can then propose amendments to the settled statement. And the superior court will ultimately decide what the statement should say.20 An agreed statement, on the other hand, is decided out of court by the agreement of the parties.
Although an agreed or settled statement can replace parts of other types of transcripts, these methods are relatively uncommon and risky. They should be pursued only after consultation with an attorney.
Finally, in some cases, the parties can stipulate to use the original superior court file instead of a clerk’s transcript. The procedures for doing so are explained in rule 8.128 of the California Rules of Court.
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In re Carpenter (1995) 9 Cal.4th 634, 646 [“Appellate jurisdiction is limited to the four corners of the record on appeal”].Footnote 1
Cal. Rules of Court, rule 8.120.Footnote 2
Cal. Rules of Court, rule 8.121.Footnote 3
See, e.g., Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575 [“It is well settled, of course, that a party challenging a judgment has the burden of showing reversible error by an adequate record. . . . Because plaintiff has failed to provide such a record, we have no occasion to consider further the merits of his cross-appeal.”].Footnote 4
Espinoza v. Calva (2008) 169 Cal.App.4th 1393, 1396 [“[W]e are limited by the record and matters which we may judicially notice.”].Footnote 5
Cristler v. Express Messenger Systems, Inc. (2009) 171 Cal.App.4th 72, 91 [“Given this state of the record, we must presume in favor of the judgment . . . .”].Footnote 6
Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364.Footnote 7
Cal. Rules of Court, rule 8.120.Footnote 8
Bains v. Department of Industrial Relations (2016) 244 Cal.App.4th 1120, 1132.Footnote 9
Cal. Rules of Court,Footnote 10
rules 8.120, 8.122, 8.124, 8.128, 8.130, 8.134, 8.137.
Cal. Rules of Court, rule 8.121, subd. (a).Footnote 11
See Cal. Rules of Court, rules 8.122 [clerk’s transcript], 8.130 [reporter’s transcript].Footnote 12
Cal. Rules of Court, rule 8.155.Footnote 13
Cal. Rules of Court, Rule 8.124.Footnote 14
Cal. Rules of Court, rule 8.124, subd. (a)(3).Footnote 15
Cal. Rules of Court, rule 8.134.Footnote 16
Cal. Rules of Court, rule 8.134, subd. (a)(1).Footnote 17
Cal. Rules of Court, rule 8.137.Footnote 18
Cal. Rules of Court, rule 8.137, subd. (b)(1).Footnote 19
Cal. Rules of Court, rule 8.137.Footnote 20