Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, December 4, 2023

Trial on my mind

Happy December!  Although this blog is devoted to appellate issues, I have had trial court on my mind this past week.  Why you might ask? First, my husband (also a lawyer), spent much of last week serving on a jury in Pima County Superior Court. As some readers might know, Arizona eliminated preemptory challenges a year or so ago.  The result has been that many lawyers (and even some judges) have served on juries.  I may have more to say on this blog about my husband's jury service if he agrees to an interview.

The second reason that trial court has been on my mind is that I ran across two stories that emphasis the importance of issue preservation and building a record for appeal.  The first came from a friend at NITA. She just finished interviewing Judge Randall Warner from the Maricopa Superior Court on the appellate issues you should be considering at trial. I haven't had a chance to review the whole podcast, but you can find it here.  

A few days later I ran across a LinkedIn story about an attorney (suspended attorney) representing himself who failed to provide the appellate court with the appropriate transcripts to support his arguments on appeal.  In glancing over the Utah Court of Appeals decision, he also failed to preserve issues for appeal.  The appellate court repeatedly notes how the appellant's failure to include the relevant transcripts prevents it from doing its job. Take, for example, paragraph 52:

Johnson makes several arguments against the court’s restitution order; but because there is no transcript of the restitution hearing, “we presume the regularity of the proceedings” in the restitution hearing, and the missing transcript is “presumed to support the action” of the district court. See State v. Pritchett, 2003 UT 24, ¶ 13, 69 P.3d 1278 (cleaned up). All we have available to us to review Johnson’s claims are the spartan hearing minutes, from which we confirm that the State provided both evidence and argument to the court. Each of Johnson’s arguments here fails because, assuming the regularity of the proceedings, the State could have presented evidence directly contradicting these arguments during the hearing. “[W]e must presume that” the evidence the State presented at trial “supports the district court’s [order]; under these circumstances, we are simply not in a position to second-guess the court’s [order].” Laker v. Caras, 2023 UT App 125, ¶ 19; see also State v. Case, 2020 UT App 81, ¶ 20, 467 P.3d 893 (“[The appellant] has not provided a record of the hearing at which the court denied his motion, so we cannot analyze the correctness of the trial court’s ruling . . . .”), cert. denied, 474 P.3d 948 (Utah 2020). Accordingly, we reject Johnson’s argument that the court exceeded its discretion in reaching its restitution award.

I commend the entire opinion to trial attorneys--it is a what NOT to do at trial and a reflection of how what happens at trial can make or break your chances to appeal.

Thanks to Cherise Bacalski for the heads up on the Utah decision and to Marsi Mangan for the heads up on the podcast.

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