Jeanine Strong, Certified Appellate Specialist (California Board of Legal Specialization)

If you’ve never heard of a “settled statement for appeal” you’re in good company. A settled statement is a summary of trial court proceedings, for use on appeal, when a verbatim court reporter’s transcript is not available. Under the current rules, the appellant prepares a proposed settled statement, a “condensed narrative of the oral proceedings.” (Cal. Rules of Court, Rule 8.137(b)(1).) The opposing party responds.

The trial court, drawing on the parties’ submissions, as well as the court’s own notes and recollections, then “settles” the statement and a final settled statement is certified. The trial court’s settled statement is “final” (Burns v. Brown (1946) 27 Cal.2d 631, 636; Marks v. Superior Court (2002) 27 Cal.4th 176, 195) and consistent with due process. (See, e.g., Griffin v. Illinois (1956) 351 U.S. 12, 20; People v. Bradford (1997) 15 Cal.4th 1229, 1382.

The process is a burden to the court and expensive for the parties. Even the most peaceable settled statement process can cost far more than hiring a court reporter in the first place. And that cost, in recent years, has fallen on the parties, as official court reporters are often not provided. Rule 19.11, of the local rules of the Monterey County Superior Court, lists when an official court reporter is provided. Reporters are not provided for civil jury and bench trials, or for family law trials lasting over one day. Reporters are provided in other family law matters, in contrast to Santa Cruz and Santa Clara superior courts. (In re Marriage of Obrecht (2016) 245 Cal.App.4th 1, 9, fn. 3 [“We are deeply troubled by the [Santa Clara County] trial court's policy of conducting all family law matters without a reporter unless a reporter is engaged by one or both parties at their own expense.”].)

A rule change has been proposed that would make the settled statement process somewhat less burdensome for the courts, but still as expensive and time-consuming for litigants. The new rule would dispense with the initial requirement that the appellant ask the trial court for permission to use a settlement statement. Under the new rules, an appellant has an automatic right to a settled statement when the proceedings were not reported. The new rule also provides a seven-page Judicial Council form, which no doubt will help pro se litigants preparing a proposed settled statement. But, a respondent must still oppose, and the trial court must still settle, and the process will remain a burden and an expense for all involved.

An alternative: audio recordings of trial court proceedings. Audio recording is routine in limited civil and misdemeanor cases but prohibited in other proceedings. Rule 1.150(d) of the Rules of Court states that a “judge may permit inconspicuous personal recording devices to be used by persons in a courtroom” but the “recordings must not be used for any purpose other than as personal notes.” Similarly, Rule 19.03 of the Monterey County Local Rules states that electronic recording of court proceedings are permitted only by “official court reporting methods” absent court approval. (See also California Ct. Reporters Ass'n v. Jud. Council of Cal. (1995) 39 Cal. App. 4th 15, 29-30 [mandatory recording in unlimited civil cases has been rejected].)

The proposed rules changes for the settled statement process are good but not good enough. Perhaps the Judicial Council should consider audio recording. Not without its [inaudible] glitches, but even a bad recording is more reliable than human memory. As the Sixth District put it, “Perhaps the time has come at last for California to enter the 20th century and permit parties to record proceedings electronically in lieu of the far less reliable method of human stenography and transcription.” (In re Marriage of Obrecht, supra, 245 Cal.App.4th at p. 9, fn. 3.)