AN APPEAL TO REASON

One component of the "record" is the reporter's transcript. Without it, you are lost in appealing a judgment based on lack of substantial evidence or even abuse of discretion. That means you must consider the court reporter an important player in the trial proceedings. Treat the court reporter with respect by being aware of the pressures of reporting a trial and attempt to make his or her job easier by speaking clearly, not talking over others, and spelling out difficult words.

At times, the trial court may suggest that you have a conference in chambers or a sidebar conference. For a variety of reasons, it may be decided that the court reporter is not necessary. It could be the inconvenience of moving around the courtroom, the belief that the conference will be short or the hope that it will be more frank if it is not reported. Is that really a good plan? If you believe that a crucial issue will be discussed, either in chambers or in a sidebar conference, ask that the reporter be present to record the conference. If you fail to do so, the reviewing court will presume the unreported proceedings would have shown the absence of error.

If you are unable to have the reporter present in chambers, try to get the gist of the conference on record once you return to court or file a declaration with the court as to what happened. You may believe that it might be upsetting to the judge to have this layer of added protection, but your duty is to protect your client's rights, including the right to appeal, and not to please the trial court.

Trying to save money by not having a reporter present at trial is a matter of being penny-wise, pound-foolish. If you client does not want to arrange or pay for a court reporter for trial, it may be tantamount to waiving any right to appeal on certain grounds. It is as if the client is willing to rely on an error-free single shot at justice. If objections are not reported, it is as if they were never made. This failure is a death knell for substantial evidence appeals. “[I]t is presumed that the unreported trial testimony would demonstrate the absence of error.” (Estate of Fain (1999) 75 Cal.App.4th 973, 992.) You will fare no better – unless it is too blatant for the court to presume otherwise – if you fail to show abuse by presenting the lower court’s reasoning and actions.