An Advanced Class in Making the Record, with Jimmy Azadian

Timothy Kowal, Esq.
July 5, 2022

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and Tim Kowal about how he has addressed these kinds of problems while serving as embedded appellate counsel.

What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.

Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.

Jimmy Azadian’s biography.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, and Twitter feed.

Sign up for Tim Kowal’s Weekly Legal Update, or view his blog of recent cases.

Sign up to Casetext and receive a 25% lifetime discount at

Other items discussed in the episode:


Jimmy Azadian  0:00
If I don't make a record, I could be committing malpractice. And he said, Mr. Azania, I'm telling you again, sit down, shut up. That did not go on record.

Announcer  0:14
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Cole and Jeff Lewis.

Jeff Lewis  0:27 
Welcome, everyone. I am Jeff Lewis.

Tim Kowal  0:30 
And I'm Tim colwall operating under an expired license from the California Department of podcasting. The California appellate law podcast is a resource for trial and appellate attorneys. Both Jeff and I split our practices about evenly between trial and appellate courts, and we always try to give trial and appellate attorneys some news they can use in their practice.

Jeff Lewis  0:49
All right, welcome to episode 40 of the podcast and a quick announcement this podcast is sponsored by case text. Case Tex is a legal research tool that harnesses AI and a lightning fast interface to help lawyers find peace authority fast. I've been a subscriber since 2019 and highly endorsed this service. listeners of the podcast will receive a 25% lifetime discount available to them if they sign up at case That's case L P.

Tim Kowal  1:19
All right, Jeff. And today I'm very excited and honored to invite our friend Jimmy is alien to the podcast today. Jimmy is Adrian is a member in diagramas Los Angeles and Washington DC offices. He serves as the firm's West Coast appellate chair and CO leader of the nationwide appellate and critical motions practice. Jimmy specializes in complex federal and state court commercial litigation, free speech issues and applying California's anti slap statute in federal court. Jimmy was a law clerk to the to Ninth Circuit Judge Consuelo Callahan, Jimmy has served as counsel in more than 250 appeals and writ proceedings covering a wide variety of industries and subjects throughout the country. He's widely published and frequently cited as a leading authority on appellate advocacy. So Jimmy, welcome to the podcast. Thanks, Tim.

Jimmy Azadian  2:07
Thanks, Jeff. It's great to be here.

Tim Kowal  2:09
Well, thank you so much for joining us. Tell us if you would a little bit more about yourself and your practice. Just to kick us off here today?

Jimmy Azadian  2:16
Well, I would say my practice is very similar to yours. Most of my practice is in the appellate realm. That's in federal court and state court. We have we have some work in the United States Supreme Court, but most of our work is at the intermediate federal and state court appellate levels. And a growing area of my practice, over the past, I would say decade has been embedded appellate work, which is a fancy term for just simply including yourself as an appellate lawyer on a trial team, whether that is pre trial, or during trial, or even post trial with the post trial motions that come about that has been a growing area and I would say is now probably taking up a quarter of my time.

Tim Kowal  2:57
Wow. So how often are you in trial these days as a as embedded appellate counsel,

Jimmy Azadian  3:02
you know, these days is the operative term, right, because of because of the pandemic. But I will say, I'm gonna answer the question from the perspective of pre pandemic. And then now what I consider to be hopefully post pandemic, we are at trial, I am at trial, probably a good four to five months out of the year. And that seems to work for an appellate attorney. It is and it's two trials a year. That's about what I can take on my plate. I have a number of very good colleagues who also take on embedded appellate work and embed themselves in trials and support the trial teams of the firm. And so we have kind of a regionalized embedded appellate practice throughout the country. Our Texas Group handles the Texas trials. As you can imagine, the California group handles the California trials. And then Michigan handles the Sixth Circuit and the Michigan trials. And then Chicago does Illinois, and then DC handles Virginia DC. So we've kind of Slice the Pie up that way.

Tim Kowal  4:07
Yeah. Now I heard, I've heard this term embedded appellate counsel from Corey Webster, your colleague, and from you, maybe I missed something. But is this a term that you and the Dykema team have come up with? Or is this did this pre exist?

Jimmy Azadian  4:21 
You know, because it's such a funky term? I definitely don't want to take credit for it. And no, we did not come up with it. It is my you know that I'm a student of history. And I like to look back and see where things come from Tim. And the first time I've seen I saw the term ever mentioned, was by Solicitor General Braxley. And it was in when actually he was at my former law firm in Washington DC at Sidley Austin. And I remember coming across an article where he talks about embedding appellate counsel in a trial team or in a trial proceeding. And so that's the very first time I saw that word used in the context that we're describing it. So I have to probably give credit to him.

Tim Kowal  5:06 
Yeah, yeah. Well, I've been borrowing it myself. And so I just wanted to know if I needed to be sending you a nickel every time I say it.

Jimmy Azadian  5:13 
Definitely not. I'll take your nickel. But RIGHT.

Jeff Lewis  5:15
Jimmy did do this, just to support your own firms, trial teams, or do they ever farm you out for other firms? Trial Work?

Jimmy Azadian  5:23
Yes, and yes, but we're often hired, often hired by other firms to serve in that role. Clients have become very sophisticated in this area. And they liked the idea of having independent counsel come into the embedded role on a trial team or on a pre trial team to be able to support some people caught looking over their shoulder of the other lawyer, but it's actually to support the work of that trial team, so that they can be freed up to do what they do best, which is creating the case and, you know, creating witness outlines and making sure that they are actually preparing the case to win the case. Whereas our job is to make sure to spot check in to see if there's any blind spots that have gone unnoticed or maybe not given the sufficient attention that they deserve. And as appellate lawyers, we know how important those blind spots are. And I like to think of it as kind of the backseat driver, almost, you know, the you're just making sure that we're following all the rules, if not later, we're going to hear from the Court of Appeal, that we missed, something that could have been easily, you know, addressed.

Tim Kowal  6:34
Well, now that we're talking about it, I want to ask you a couple more questions about what it looks like to have an embedded appellate attorney at trial. Is it like having a second chair? Is that is that kind of the role? Or is it something a little bit more distant?

Jimmy Azadian  6:47
Actually, I call it a third chair, I call it a third chair. And then there's a reason I call it that is because we really shouldn't have a seat at the table, we really shouldn't in my philosophy is we shouldn't be giving the impression that our role is somehow to present the evidence, right, which is what a trial attorney does. And I'm now just simply talking in the context of a trial, right, not about pre trial motions, which is, I think, a very important part of what we do as appellate attorneys is to help with that motion practice. But if we're focused at the trial, you really want to be that support. I like to sit in the gallery, just to make it clear what my role is. Sometimes, my trial team, believe it say we have appellate counsel here today. And that's not to a nerve, anyone or to send a message that oh, hey, Judge, you know, we got we got, you know, a different skill set here, that's going to prove to be useful in case someone misbehaves. No, no, that's not the reason. It's, you know, judges all like to know who's in the courtroom. You know, that I mean, whether you're in state court or federal court, we've all sat there in a gallery before. And even if you're the only person gallery, bailiff, or somebody comes up to you and says, What's your business here, and you have to tell them what it is. So you, I find that it is good to say what your role is. And frankly, I think the judges, by and large, appreciate it. And once in a while, they will even say, Mr. is 18. What do you think, you know, what do you think about that issue? You know, so we have found that it has been very helpful to the client. Now, I'm going to say one other thing about this, Tim and Jeff, I don't think it's very profitable as appellate attorneys, because I find myself to be more profitable for my firm, and for my clients, and the sense of how we build our time, when we are writing and researching at our desks, which is what we do as appellate attorneys, right? We can spend four to eight hours on a single time entry, writing an opening brief writing an answering brief writing a reply, researching some area of law, right, that could take forever. We love that work. But when you're in the trial court, and when you're doing pre trial work, even post trial work, it's broken up, there's lunch break, there's recesses, there's, you know, there's constant, different things on the menu that you have to account for. And so I find even though I'm spending as much time on those matters, as I would say on appeal, the billing for that it's much less comparatively.

Tim Kowal  9:22
Yeah, interesting. And so it is, it does sound like it is a different skill set from either from from being a trial attorney or from being just an appellate attorney. When you when you think of an appellate attorney, as someone just locked in their office phones turned off just processing the briefs and doing legal research. Being an embedded appellate attorney is a different skill set. So what kind of different skills have you learned as by serving as an embedded appellate attorney?

Jimmy Azadian  9:52 
So let me just say this, I actually don't view it as a different skill set. I actually think it takes our skill set as an held attorney and in fact, sharpens it and heightens it. And I'll explain to you what I mean by that. But what I do think is different is the focus, the focus of what we're doing, when we're in that embedded role is different in quality than what we're doing as appellate attorney. So let me explain what I mean by all that, when you're an appellate attorney, your job is to spot issues, right, it's to see if there are arguments that can be made that necessarily were not made below. But still, you can make them without them being waived. You look for items in the record that might have been missed in the lower court. And that's whether you're an appellate an appellant and appellee, or respondent or petitioner, those are generally the useful skill sets we're talking about, right. And it's being able to think creatively about arguments that maybe haven't been made nuances to arguments, and the strengthening or weakening arguments. Well, when you're in a better role, and trial court, those are the exact same, those are the exact same tools in your tool belt. Now the difference is that you are live at the event, the event that you as an appellate attorney only read about in the record, it's now happening in folding in front of you, right, and so you don't have the luxury of sitting back in your, you know, casual clothes, and not having the, you know, the interruptions that we're used to, and being able to just lose yourself in a well written Justice Powell decision, you know, and and read that to Jesus, you just can't do that, you know, you are on high alert. And that's what I mean by a different focus, because there are many things happening in that courtroom, which we, as an appellate lawyers have to kind of refocus ourselves, we have to say, we've got the judge on the bench, we've got the clerk, usually on the side, we've got the jurors coming in and out, right, and then we've got some, we've got opposing counsel, doing stuff, right. And so and then you've got your attorneys that you're keeping an eye on. And so all of these various groups in the courtroom impacts what's happening on that precious record, which is your job to make sure that record has everything that you need, cuz that's

Tim Kowal  12:23
gonna, that's got to make the job very scary to be an Intel embedded appellate attorney, because what is the one thing that we appellate attorneys love saying, Oh, your trial attorney should have made that objection on the record? Well, now you are the one the trial attorney is looking to, to make sure I don't screw up right. That's right. There's a screw up a trial, hey, wasn't my fault, ask the embedded appellate attorney.

Jimmy Azadian  12:45
Exactly. And that's where I like to call ourselves the third chair or the safety, right. And that's really the value that we bring to the table. Now, there are many ways however, it's I don't want to give you the impression that this is something where, you know the moment passes by, and you're done. Oh, you forgot to put down the record or there are so many opportunities to still do so you can file a paper the day after, you can tell the judge I'd like to be able to make a proffer. I'd like to be able to put something on the record from the day before to make sure the record is clear on that fact, even when it comes to sidebars. Right, which is, I think, rife with problems.

Tim Kowal  13:25
Yeah, we're gonna get into that. Okay. In a minute. I had one other question for you. What kind of Attorney What kind of trial attorneys are the ones reaching out for embedded appellate counsel, who are the trial attorneys who are aware, you know, are that self aware that, you know, this is a this is an important trial, I want to make sure I don't miss anything. If I hand this off to an appellate attorney later on down the line, I don't want that appellate attorney saying, Hey, you should have done X, Y and Z. I want that appellate attorney here with me now, who are the kinds of appellate trial attorneys who are retaining embedded appellate counsel.

Jimmy Azadian  13:58
So there are two pines, one are the top arm law firms, and they're doing it at the behest of their client, their client, their corporate clients, the corporate clients saying I want an embedded appellate counsel, and I want it to be someone from another firm that you work well with. Right. So that's one

Tim Kowal  14:14
source they wanted. They wanted to be an outside counsel.

Jimmy Azadian  14:18
They do they wanted to be an outside counsel. Well, sometimes other times they don't like you heard me say that our trial team will oftentimes utilize our appellate team in house. But once in a while a client will say you know what, I'd like you to be able to use someone independently from outside of your firm and perfectly fine. It actually happens quite frequently. I see the value to it, especially if that other firm is going to be the one that's going to end up doing the appeal. I rarely find that you know, am law firms will top law firms will do both the trial and the appeal. Sometimes they will, but usually the client likes to kind of split it up right to have fresh set of eyes, look at the case once it moves over to the appeal. But the other great source of work is I find very good trial seasoned trial attorneys who are mid size and solo practitioners. Right? There's one firm in particular in Orange County that comes to mind that I work with. And actually, it's a former law student. And he took my appellate advocacy course, at Pepperdine, actually, with Corey Webster, about 12 years ago, they were in the same class. And he remembered the portion on back then we didn't call it embedded appellate work. He called it supporting the trial lawyers. And he remember that portion of that of that class that I taught. And he, when he formed his own firm, he brought me into several to several matters several really important matters, where he felt it would be helpful when they're going to trial to have embedded appellate counsel there. And it turned out to be a very good thing that turned out that the case ended up getting resolved in one of the cases early because we found a defense, you know, that was identified earlier, a defense that ended up gutting the whole case. Yeah, in our favor.

Tim Kowal  16:14
All right. So a few moments ago, you mentioned something about sidebars. And in that that triggered something that you and I were talking a few weeks ago and you you kind of painted this picture, that got me thinking about something I had not thought of before. And so I want to I want to paint it now for the audience. So imagine you're at trial, and you're the you're the trial attorney, you have a court reporter there you've done, you know, check that box, and you're putting on your objections to the evidence, you're getting everything on the record, you're looking back at your embedded appellate counsel in the gallery, and he's giving you the thumbs up, you're doing a great job. But then after you make this one critical objection, the judge says counsel sidebar, kind of approach the bench. And you suggested to me that this should sound the alarm bells in the trial attorneys mind. Why do you think that why should sidebars be a cause of heartburn?

Jimmy Azadian  17:02
Because it is often the case that the court reporter even though she or he is listening to the sidebar with the we're talking about state court now, of course not federal court where virtually all the conversations are audio taped, or at least the court reporters to transcribe those sidebars, I have found, but mostly in state courts, the state, the court reporters will have their their earpieces where they can hear it. But what I don't see happening often is typing with their fingers. Right? They're listening, but they're not typing. And of course, there's no audio. So when I see that happening, I will not I'm not gonna run as a better counsel up to the bench. That would be ridiculous. You know, I mean, probably I get thrown out of court. I wouldn't. But I would wait for when counsel returns. And I will put a note in front of my trial attorney. And I will say, I noticed that the court reporter did not transcribe whatever was spoken. I'd like to speak with you about what you all talked about at lunch, we're at a break, so that I know whether this is something we need to now place on the record. Right. And sometimes it's not important. And the trial attorney will tell me no, it's not. You know, it's better that we don't even put on the record, actually, they'll tell me because something might have been said that they don't want to see other records. And that's fine, too. But it is important, it is important to have that dialogue with your trial attorney and to make sure that you're making a checklist, Tim and Jeff, I call it a checklist. You're sitting there, I mean, picture a, you know, a clipboard, almost. I don't have a clipboard, but it's like a clipboard, right, like a referee or a coach on the field. And you see that an exhibit has been proffered. But it has not yet been admitted into evidence. But of course, everyone is operating like it has them. At the end of the day, you have a list of those exhibits. And you say to your attorneys Now, which of these are important for us to put into evidence and they'll look at you they'll say they aren't evidence. And you'll say, Nope, they're not into evidence. Right. And so that's one way of really helping another way is to make sure that, you know, they have received rulings, on their objections. Oftentimes, we will object, but the court will either nod or do something else, right, not really rule squarely at the objection. And you did not get a ruling on the objection. However, the trial attorneys think they now have a ruling and that they're, they're good to go for appeal. Not so they've waived, they waived the objection. So anyway, I don't want to get off track. But those are just some simple things you can do.

Jeff Lewis  19:35
Hey, Jimmy, let me get you further off track and ask you kind of a nerdy tech question. When you're in trial, and you want to bring a point to the lawyer's attention. And maybe there's a jury, and you don't want to be seen scrawling a note and handing a big note to trial counsel, maybe to underscore a big point. Is there any tech you use like text messages or other software to not only message your trial lawyer but keep a virtual clipboard of issues to be addressed?

Jimmy Azadian  20:00
Yes, so we have two, three ways of doing that. We have an I am software application where we can usually most of the trial attorneys, at least the second chair, usually the second chair has their computer up, and they can see the message that's coming across. So we'll use that if and by the way I've been using that I am now when we're doing oral arguments as well. Oh, we're the appellate courts. Were my second chair, rather than handing me that note in that awkward way. Right. We're like Corey Webster will be like, Jimmy, you, you you cited the wrong part of the record, you know, you should have cited this. Yeah, he'll he'll just I am. And say, you know, you cited this page, but really needed to also cite this other page. So it's that software, I find text messaging to be actually pretty helpful. Still, so long as your trial attorneys and you have had a conversation about it. And you've said, look, let's text each other, let's form a group text. Intentionally. We're all on it. The paralegal is on it. The tech support person is on it. Everyone's on it. They're seeing the messaging come through, so that if one person misses it, another person will say, look at this text message. Yeah,

Tim Kowal  21:11
that's the key. All right. So so back to the sidebar. So back to this, this picture that I painted about, you know, you're you're trying to get, you're being disciplined about getting everything on the record, and then the sidebar happens. So as embedded appellate counsel, your advice is not a not a blanket rule that no, everything has to get on the record. So if you go up the sidebar, drag that court reporter along up there with you. And that's not your advice, right?

Jimmy Azadian  21:36
It's not my advice. It's, if you can make sure that you usually can make sure to caucus with your attorney and to say, look, what is the what is the nature of the conversation? Was there anything helpful to us, you know, to the judge, say something that we'd like to make sure that's on the record?

Tim Kowal  21:52
And then and then maybe ask the judge to put it on the record at the next time? The jury's out? Yes,

Jimmy Azadian  21:56
yes. And if for some reason, you forget to do that. And you still have trial proceedings pending. At that point, you could even file a notice sidebar, you know, conversation, you know, I mean, to look, reach into your creative toolkit, and somehow put that into the record. So that if it's important, the appellate court knows, hey, an oral proceeding occurred, and part of that was not necessarily reported. But now we want it should be part of the record for the appellant Is

Tim Kowal  22:26
that is that admissible? That seems like is that an end run around the the settled statement or agreed statement procedure and making a record of these off transcript,

Jimmy Azadian  22:35 
I can't stand settled statements, I just can't stand them. And I tried to avoid them at all cost. And so far, I've been very successful. Whenever the conversations been brought up, I just say I won't do it. And it just, it just find another way. But I think settled statements present their own host of problems. Let me let me say this before I get to that, when I'm talking about sidebars, of course, I'm also talking about in chambers conferences, which is where a lot, a lot happens, right? The in chambers conferences are they they might seem like they're off the record. And even if they are off the record, I want you to know this, even if a judge says this is off the record. That doesn't mean that you don't later say to your honor, with your permission, I would like to put this on the record something that would state it right without Of course, you know, getting the judge twist, twisted backwards somehow against you. One example, I will say Tim and Tim, you might even remember this because you and I were at the same law office when this happened. But there was a case that was before a federal judge in downtown LA, it was a patent infringement case. And believe it or not, this client had been there serving an embedded appellate role, even though at the time, this is back in 2010. We didn't really label things back then the way we do now everything doesn't have a label, then it was, hey, come along, you're the appellate guy. Maybe you can tell us if something doesn't sound good or look right. That was really the obstruction the client gave. And so I was there. And I realized that there were things happening off the record, and that the judge was purposely keeping things off the record. And I'm talking about in a very surgical way. very intentional way. This judge was saying, Nope, this part of the testimony is not going to be on the record. And then the witness would start to testify, and I would notice to the court reporter is not recording certain things. And I'm also noticing, sadly, sadly, that the judge is communicating with the other side during the witness's testimony. Now I'm not going to name the judge. I will say the judge is no longer a match. But those, report it and when that youngster that I was back then I think you knew me as you know, a little a little more fiery than I am today. I said Your Honor, I must ask you to put these things on the record. I'm noticing there are conversations happening between the bench and counsel. I'm noticing there are things that are going on reported. And it's very important that these things get on the record, would you please allow that to happen? And the judge very sternly, and with a very full voice told me to shut up and sit down. Okay. And was that on the record? That that was being on the record? Yes, that did end up being on the record. Okay, good. But most of the times that most of what I'm about to tell you did not end up on the record, like, for example, I stood up again, after a few minutes, and said, Your Honor, I do not want to exacerbate exacerbate the court exasperate the court. But what I want to do is, you have to understand that it's my job to make a record, if I don't make a record, I'm I can be committing malpractice. And he said, Mr. Is adn I'm telling you again, sit down, shut up. That did not go on the record. Okay. Nor did my statement that I'm asking him to put something on the record that also didn't go on the record. All right. Every day, we came back from court, we would, we would file a notice of colloquy between the bench and the bar. And we stated what was said, and with the hope that it would get on the record. Ultimately, the case reached the Federal Circuit, as I said, it was a it was a it was a patent, patent infringement case. So it wasn't heard by the Ninth Circuit. And it took a matter of three days for us to get a stay of the order, which you can imagine did not go our way. Right, the judge entered a ruling against our client, but we got that state in three days. And then we got a durable stay a week later, and then we ended up winning the appeal. But I remember that a very important part of that appeal was us having a showing that the proceedings were tainted, that this judge was not allowing things to go on the record.

Tim Kowal  26:48
Well, I wanted to ask you about, since we're talking about things that that that should go on the record and making requests to the trial judge to put things on the record, wanted to recite the portion of the operative statute here Code of Civil Procedure section 269. And maybe we can we can talk a little bit about this because it says the court reporter shall take down, quote, All testimony, objections, made rulings of the court exceptions, taken arraignments, please sentences or sentences. And this is the one I wanted to ask you about arguments of the attorneys to the jury, and statements and remarks made and oral instructions given by the judge. So that that statement, or that that clause, arguments of the attorneys to the jury suggests that unless there's a jury there, if you're having a discussion, just with the judge about an evidentiary objection, say, there's not a right to have a court reporter take that down. And I wondered, despite that, that is not, you know, that seems to be the upshot of section 269. Do judges nonetheless seemed receptive to having to request to have certain arguments colloquy is put on the record?

Jimmy Azadian  27:59
The answer is yes. And you know, I will also say, I don't think that just because there's no statutory right, per se to this, does that mean that there's no constitutional right to it? I do think that there is a constitutional right to have your proceedings, you know, properly documented by a court if they are going to be documented. And that's the job of the court reporter. Because ultimately, if the case will go up on appeal, you want you don't want to hear from the Court of Appeal, or the appellate court is that the record is incomplete, or the record does isn't helpful, because it doesn't provide what the Court of Appeal needs in order to resolve a particular issue. Right. That that means is you failed as an attorney, and frankly, it also means the trial court failed in its mission to be able to present an appropriate record for review. So regardless of what the statute says, I would say, as as attorneys, it is our job to make sure for our clients that what is being stated in court does appear on the record, if you want it to be qualified, if you want it to be.

Tim Kowal  29:03 
Yeah. Let me just tell our audience a little bit about since since you mentioned about the sidebars and and perhaps a constitutional right to having some of this matter be put on the record. There was in in preparation for our discussion today I looked up the 1992 California Supreme Court decision of people versus pin holster, were there that it was a case that involved 133 sidebar conferences, and the criminal defendant on appeal raised those 133 sidebar conferences that were not reported. None of those 133 conferences were reported, argued that this violated his constitutional right to due process and to have adequate review on appeal. And the court disagreed with that and said that well, there was under the circumstances that didn't amount to a substantial part of the of the reporter's notes. Substantial part is a provision that's under Penal Code Section 1181. And the court also made kind of a throwaway observation that in and if you really wanted them to be part of the record, you could have done a settled statement. Yeah. Okay. Have you ever and we've talked about the settled settled statements and how difficult they are trial judges sometimes just don't want to give them and I've seen appellate courts faced with a frustrated appellant who tried to get a settled statement, and they say that sorry, you know, trial court has it within its discretion to deny doing a settled statement. So it's, it's in the it's in the rules, but it's not really enforceable, it might as well not even be in the rules. I wonder if you had any reaction to that is, you know, how can there be a constitutional right to to have matters in the record if in a criminal proceeding, you could have 133 unreported sidebars, and that doesn't cause a constitutional issue?

Jimmy Azadian  30:47
Well, I think the first thing to note is in the in the Johnny Depp Amber hurt trial, which I only very loosely followed just through whatever came across, you know, my headlines on my phone, but I think they had reached 133 sidebars just the first day of that trial. So you know, it's not, it's not a remarkable proposition.

Tim Kowal  31:08
Okay, to che.

Jimmy Azadian  31:09 
Yeah. And, you know, what we don't know is and maybe if I revisit that case, we'll learn what we don't know is from your explanation how long that trial was right? As 133 sidebars over the course of a six month trial? Oh, that's not you know, that's not too many sidebars? Right. I mean, when you when you've been paying off the jury for that long, you're, you're probably gonna have, you know, half a dozen to a dozen sidebars every day. So 133. Well, it sounds like a very large number. I mean, just to put it in context. But putting that aside, I agree with the court. And that decision, because again, the court is looking at it from a position of reversible error, right? Was there a showing there that somehow if the sidebars were reported, that would be able to supply that bullet to be able to reverse and it didn't see that there was a proffer that was presented even on the level of what the sidebars were, in order to say, had the sidebars been properly presented, you know, transcribed, then you wouldn't be able to have an opportunity to reverse. But I think also what the court is saying there is attorneys do your job, right. I mean, we didn't that wasn't a pro se litigant. It'd be interesting if it was a pro se litigant or criminal defendant representing itself with the trial court would have said there, but it was counseled, it was a counsel case. And I think what the court is saying is do your job, figure out a way to get this on the record. Okay. And they offer this settled statement. But they're not saying that that's the universe of possibilities on how you could get it into the record. That's, that's just one, you know, advisory notes that they throw out at that decision.

Tim Kowal  32:49
Yeah. Well, now, let me ask you a leading question. So we've been talking about these issues. What happens when you have these colloquia that are that the court reporter is not typing down? How do you get those to be part of the record in state court, but this problem doesn't happen in federal court, does it Jimmy,

Jimmy Azadian  33:05 
you know, I have not really seen it happen, except for the time that I mentioned to you, that judges should remain nameless that bad infringement case. I have not had had this happen in federal court yet.

Tim Kowal  33:17
You know, why doesn't this problem happen as much in federal court?

Jimmy Azadian  33:21
Well, I think that the the the simplest answer is that the most of the proceedings in Article Three federal courts are video recorded or audio recorded. Right at state level. It's true. My bankruptcy friends Selmy. In other articles, federal courts, and in the tax courts and other anything that has a federal court, I hear even the Social Security Administration appeals are are, you know, recorded. So there does seem to be more of an effort to do that. And I know that at one time, we were doing that in California, in our state courts. Yeah. But that's no longer the case.

Tim Kowal  34:00 
Yeah, we did that. Back in 1986, the legislature passed a statute a pilot program that allowed electronic audio recordings. But but that program sunsetted, the Judicial Council was tasked with reporting back to the legislature whether the program was a success, and the judicial council did and said, yes, it worked well, but the legislature didn't reenact the statute. So the Judicial Council decided Florida is going to pass a rule that allows for audio recording of proceedings. But then what happened was the California Court Reporters Association versus Judicial Council case went up eventually to see went out to to the Court of Appeal. And the Court of Appeal agreed with a quarter of the Court Reporters Association that the judicial council rules cannot override the legislative intent of the statute which was to sunset this program and for whatever reason not to reenact audio recordings. in superior court they still exist in in limited civil action. that rule is still there. It's still authorized by statute, but not in superior court actions. And I, and I've wondered, ever since why hasn't the legislature simply amended Code of Civil Procedure section 269 to allow those audio recordings, it was a it was a hit that it avoids all these issues and brings the state courts up into the 21st century along with the federal courts. I asked that question at a, at an event to justice O'Leary, presiding justice of the the 4/3, down here in Santa Ana, and she mentioned that court reporters have an awful lot of influence in Sacramento. And so it's a it's a terribly inefficient.

Jimmy Azadian  35:38
That was a very diplomatic answer, by her and by her honor. And I think she's absolutely right. I mean, the real money to be made, you know, on these proceedings, and transcribing this proceedings is in the unlimited category of cases, as you noted, and it is in these in these cases, and I think it is a very powerful lobby, the court reporters haven't tracked us mostly in federal court, I'm, I still, I'm still surprised at the way we do things state court, when it comes to our court reporting.

Tim Kowal  36:07
It leads to a terribly inefficient system where, especially now that a lot of counties have discontinued providing court reporters for proceedings. When you do I don't know how much how much attorneys are actually physically attending these days. But I it's it still happens in in virtual in zoom hearings, where there will be multiple court reporters sitting there waiting to waiting for their Mater number to be called up. And rather than just having having to pay one court reporter, you're paying 2345 court reporters to sit there for the same hearing,

Jimmy Azadian  36:42
or at least you're paying them to show up fee, right? If they're not able to get another get another it used to be, if you had multiple show up in person, they could find another gig in the same court room guardhouse and then you wouldn't be charged. But now it's virtual. And so they're showing up and now you're going to be charged to show up for you. They're not going to even if they're not transcribing, because I don't think you're gonna have three or four reporters transcribing the very same proceeding. But what I think the reason for this kind of circus is, if we can call it that is you have each attorney probably telling themselves the same thing I tell my attorneys, and that is I don't care if the other side says the court reporter. We bring one. Okay, because I've been burned before where the other side says, oh, let's split the cost. Or let's get a court report. You know, we'll bring our court reporter and you say, Are you sure? Are you sure? Oh, yeah, we're sure. You know, we've ordered the well guess what you got at the hearing? No court reporter. Right. And so you don't want to be that person to explain to the client. Why something as simple as a court reporter why that didn't happen. It's like an insurance policy. Yeah, you never need it when you when you have it. And then when you don't have it, all of a sudden you need it.

Tim Kowal  37:55
That's the same reason you issue your own trial subpoenas to the witness, even if the other side is calling that witness, you know, you don't want them to pull the line.

Jimmy Azadian  38:04
Exactly. That's exactly right. You know, I just Jeff, Tim and I worked together when I first got to Orange County, and he was like my seeing eye dog in a sense, like, he would show me things, you know, how they do things at trials in Orange County. And I remember that's one of the things that you had conversed with me on one of my first trials in Orange County was we still send out those we still send out those notices. I've been forgotten that well, not notices, but actual subpoenas.

Tim Kowal  38:32 
So does this, in your view is this created access to justice problem? The fact that we have we don't have electronic oral recordings in California state court, we don't have court reporters that are provided by the court. And so if you want to, if you want to record, you're going to have to shell out of pocket, does this does this create an access to justice problem for for litigants who are no less well heeled?

Jimmy Azadian  38:55
So I don't know that I'm prepared to go as far as to say generally, it presents an access to justice problem? Well, certainly there are cases that we can identify where justice has been less accessible because of what we just talked about, right, because of certain things not being recorded or reported, rather, for the appellate court. What I am prepared to say is that I think it creates a confidence and justice problem there is I think it undermines the competence that we as attorneys, and we as litigants, that the public generally places in the administration of justice and the courts and in the legal profession, because it's something so basic as a public hearing. It's not a sealed receiving public hearing, and it's not being properly recorded to the point where things that at least one attorney believes is stated in court. It's undisputed that it stated that at least one attorney would like to see on the record and it's not being placed on the record. I think that creates confidence issue. You know, I think it undermines the confidence we have. And I think it starts to give the appearance, I wouldn't say of impropriety for the bench officer, but it starts to give the appearance that there are undercurrents that there are things happening beyond what the eye can see. Right. And that's never a good feeling when you're an attorney or a litigant or a judge.

Tim Kowal  40:23
All right, so we've talked about what an embedded appellate counsel is. We've talked about some issues with sidebars at trial, we've talked about some other tips for making sure that you have all of the important things that you need at trial. On the Record. Do you have any other tips for us, Jimmy about any other tips or war stories or good? Good? Maybe examples from the trenches of serving as a as embedded appellate counsel?

Jimmy Azadian  40:49 
Oh, gosh, we could go on all day. I will tell you there's one thing that recently, I was reminded of by a judge who had actually come and spoken to some of my law students. And I thought this is such great advice. And I think Jeff, and Tim, and we, I don't know about you, I think this is true about you, too. I like to hear the things that I heard once, when I first started practicing law that the first principles, the things that we learned, when we were first lawyers, and I think over time, it's good to be reminded of those things, because it has become so ingrained in what we do, but it's become almost second nature, or it is second nature, but that what this judge said was, be authentic, be yourself, courts, juries, audiences, they understand you better, and they find you more credible, if you are yourself if you're authentic. So don't be paranoid. If you're not Perry Mason, you know, don't don't be Ted Boutrous if you're not Ted Boutrous. I mean, be you speaking your voice and be heard, you know, be heard that way. And I think that's still really good advice.

Tim Kowal  42:03 
ALL RIGHT. Jimmy is at and thanks for for being here with us today. I think that wraps up this episode, Jeff. Yeah.

Jeff Lewis 42:09 
Before we go though, I do want to thank case text again for sponsoring the podcast each week we include links to the cases we discussed using case text and listeners, the podcasts can find a 25% discount available to them if they sign up at case text LP.

Tim Kowal  42:25 
If you have suggestions for topics we should talk about or other guests that we should bring on the podcast please email us at info at cow And in our upcoming episodes, look for more tips on how to lay the groundwork for an appeal.

Jeff Lewis  42:39 
See you next time.

Announcer  42:41 
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at Cao That's c a l Thanks to Jonathan Cara for our intro music. Thank you for listening and please join us again

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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