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I had a hearing to settle the record. I had an affidavit from another person that was at the trial to confirm my statements.

Santa Ana, CA |

The judge ruled in favor of the defendants and denied my statements in entirety. Is there anything else I can do to let the judges at my appeal know that I do not accept the transcript as transcribed? There are false statements I never made, and ommissions that the defendants made that impact my case. What should I do? Is there any other remedy for this problem? Thank you

Attorney Answers 5

Posted

Are you saying that the transcript does not accurately relect the testimony, or that the transcript does accurately relect the testimony but the testimony was not true?

Either way may be pretty much out of luck. If your recollection of the testimony is different from the transcript then your remedy was a hearing before the judge to correct the transcript. Such a request seldom succeeds. Maybe if the judge's notes and all of the attorney's notes disagreed with the transcript then some part of it might be changed. Otherwise, the judge is going to go with the transcript.

And if the transcript is correct but it is the testimony itself that you dispute, then you are stuck with the factual determinations of the trial court.

At some point a decision becomes final and it stands. It might have been, in a sense, wrong. But that is just too bad. It's over. Sounds like you are at about that point.

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Posted

Not sure what kind of case you had but it sounds like a civil action. This question went out as, among others, criminal defense. I'd like to reclassify it, but would need to know what the case was about.

Contributions on AVVO.com in no way create an attorney-client relationship nor are they intended to be relied upon as a course of action without having first consulted directly with an attorney, where the specific facts and circumstances of your case can be fully discussed.

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Asker

Posted

The case is a civil case, where the defendants are involved in a commodieties scheme.

Posted

I know that you were not surprised by this result because you had been advised multiple times in advance, here on Avvo, that this was the inevitable outcome of your efforts to revise the record of proceedings. Testimonial (written or oral) contradictions to what has been certified by the reporter will virtually never suffice for this purpose, else there could be no standards or consistent and predictable results. If it were that feasible to change a trial record at will, at least one side would inevitably challenge the record in in every dispute in order to create rights or advantages on appeal. So, the truth is, you never had a chance in this effort. And you knew that.

It is probably not possible for you to accept this advice, any more than you could persuade yourself to accept the prior cautions but, as a practical matter, you are at the end of this effort. There are no procedures remaining that have any realistic prospect for success for you in revising the record of proceedings. At this point, what can yet be meaningful and useful for you is a consultation with a skilled appellate attorney to determine whether you have any good reason for investing your time, effort, funds and heart in any further legal (appellate) processes.

I know you have suffered significant and crushing losses. But at some point you need to not chase your losses with further investments of resources if there is no reasonable expectation of success. Consult with a skilled specialist who can give you a solid and reliable analysis.

My responses to questions on Avvo are never intended as legal advice and must not be relied upon as legal advice. I give legal advice only in the course of an attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by individual consultation and execution of a written agreement for legal services.

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Asker

Posted

I understand everything you have said...but the truth is what I want to get across to the appeal Judges. Am I stuck with this transcript that is riddled with lies? I knew there was a problem right after the trial. I know what I heard and I know what I did not say in court. What should I do next? I am appealing the judgement on an error in the jury instructions. I want to know what to do if anything about a transcript riddled with lies.

Christine C McCall

Christine C McCall

Posted

Your comment here is classic "yes, but." You: "Am I stuck with this transcript that is riddled with lies?" Yes: as a practical matter you are stuck with this transcript. You could not have misunderstood that point in my response to your post. What should you do next? Exactly what I already said to you in my response to your post: "...a consultation with a skilled appellate attorney to determine whether you have any good reason for investing your time, effort, funds and heart in any further legal (appellate) processes. " You say you "...want to know what to do if anything about a transcript riddled with lies." I don't think that is true. You already know this answer because you have been told many times by many lawyers with the skill and knowledge to advise you. What you want is for someone to wave a magic wand and make this come out the way that you want it. I respectfully suggest that is not going to happen, and that closing your mind to the realities and concrete limitations of this situation will not make your situation better -- it can only make it worse by draining still further time, effort and financial resources.

Asker

Posted

I appreciate you have answered my questions, however, the truth is the transcript has been purposely manipulated. You don't seem to want to accept that. I have a witness, I provided 2 affidavits to the Judge. The Judge did not change a thing. I am stuck with this and wanted to know what to do. I have no money to hire an appealate attorney. The Defendants bankrupt me, made me ill, and now I live on disability. I justed wanted to know if there was anything else I could do. The lawyer I hired is a thief and a liar. Maybe it's you that can't seem to understand me. Do you think it's NEVER happened to anyone before? I don't think so! I just want the appealate Judges to understand what I am up against. A company that pays off everyone in its path to avoid getting caught. Why would I have invested all this time to chase something I made up? Because I am not making it up!!! Why go to court if its just a big game and no one is interested in the truth and what really happened? I trust that everything that has happened so far is for some good reason.....I wait to see what will happen next in my journey.

Christine C McCall

Christine C McCall

Posted

You misunderstand my position entirely. I have never suggested that you are making anything up. Indeed, I do not think that is the case. But the law does not guarantee any of us a correct result in our legal disputes. We are guaranteed only an opportunity -- a day in court -- to attempt to prove our positions. Sometimes the right result does not happen. Sad, but true. Still, we don't throw the system out because it does not work perfectly in every instance. I have no doubt that what has happened to you has happened before. Like many attorneys, I have personal experience with transcripts that are not what I remember. But being "right" is not the solution to the problem. The solution is being able to prove your contention by the legal standard. You have taken your run at the transcript issue and you lost. It happens. You need to stop so that the issue does not cost you even more. You have heard the term "cut your losses?" You are there.

Posted

Dear ?,

You seem to be saying the defendants submitted a reporter's transcript of the proceedings. A transcript is always the preferred record of oral proceedings. Now, if there is reason to believe the transcript contains errors you can file a motion to correct the transcript in teh appeal court after the record is filed. The problem is: You need an affidavit from the trial judge that there were errors by the reporter and an affidavit from the reporter admitting these errors would help.
But, you should recognize that your memory of the exact words said at this trial may not be very good. Reviewing a transcript of proceedings in which I appeared, I often find I don't remember saying things exactly as they are in the transcript but there is generally no reason to doubt that the reporter accurately took the words down and accurately transcribed them.

Yours sincerely,
Tim Provis
Cal. Bar No. 104800
Wis. Bar No. 1020123
Member: U.S. Supreme Court Bar

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Asker

Posted

My memory of what happened is clear. I knew there was a problem right after the trial. I know what I heard and I know what I did not say in court. My question is....Is there anything else I can do? I have already had my hearing and the Judge would not change anything. Am I stuck with this transcript? A transcript riddled with lies?

Timothy A. Provis

Timothy A. Provis

Posted

As I have explained above, you can file a motion to correct the transcript in the court of appeals after the record is filed there.

Asker

Posted

I have already filed my motion to correct the record. The Judge would not change anything. What else can I do?

Timothy A. Provis

Timothy A. Provis

Posted

If you motion was filed in the appeals court, there is no other remedy.

Asker

Posted

thank you

Posted

Every party in a suit, after the fact, would like to change the record to enhance the likelihood of prevailing at appeal.

Recommend you meet with an attorney who specializes in appeals. Had you done so earlier, that attorney would have told you why the affidavit you tried to introduce was never going to be considered by the judge. Perhaps a consultation will allow you to narrow down your focus of effort on what you CAN do that may improve your success downstream.

READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia. We have not established an attorney-client relationship unless we have a signed representation agreement and you have paid me. I give a 100% effort to get you on the right track with your issue. Sometimes that means legal educational information, sometimes that means counseling and non-legal guidance. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights. I am not obligated to answer subsequent emails or phone calls unless you have hired me. I wish you the best of luck with your situation.

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2 comments

Asker

Posted

Thank you for your reply. I have no money to pay an attorney. I am representing myself in pro per. If I am stuck with this transcript as written, the defendants have an unfair advatage. That is why I am asking is there any other remedy. Thank you

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

I see. I think you're stuck with the record as is and your appeal will have to refocus the court on matters of law that support your position despite the advantage the defendants may have in that one area. I wish you the best of luck.

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