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

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

Santa Ana, CA -

Attorney Answers (5)

Christine C McCall

Christine C McCall

Administrative Law Lawyer - Pasadena, CA
Answered

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.... more
Joshua Sachs

Joshua Sachs

Appeals Lawyer - Evanston, IL
Answered

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.

Daniel C Grupenhagen

Daniel C Grupenhagen

Criminal Defense Attorney - Huntington Beach, CA
Answered

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.

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Timothy A. Provis

Timothy A. Provis

Appeals Lawyer - Port Washington, WI
Answered

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

Rixon Charles Rafter III

Rixon Charles Rafter III

Litigation Lawyer - Fairfax, VA
Answered

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.... more

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