“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again.
At the trial between the two partners in a restaurant business in Amirnezhad v. Ghayam (D2d8 May 4, 2022 no. B306361) 2022 WL 1401387 (nonpub. opn.), Amirnezhad prevailed and got an award of almost $160,000 in attorney fees and costs. the basis for the fee award was a promissory note.
But, the note was not admitted at trial. True, Amirnezhad introduced it at trial. He authenticated the signature. Both parties testified about it. And no one disputed its authenticity. But it was never actually moved or admitted into evidence. So Ghayam argued there was no evidentiary basis for the award of contractual fees.
The Court of Appeal disagreed that the note was not in evidence. The court relied on Dodson v. Greuner (1938) 28 Cal.App.2d 418 (Dodson). That case involved an action against the administrator of an estate for payment on a note given by the decedent. (Id. at p. 420.) The defendant-appellant challenged judgment on the note on the grounds that the note had never been formally admitted into evidence at trial. (Id. at p. 423.) The appellate court acknowledged that “the record d[id] not show that the trial court announced [that the note was] ‘admitted.’ ” (Ibid.) Nevertheless, it deemed the note admitted where the court and the parties had each treated the note as being in evidence. (Ibid.) Specifically, the plaintiff had offered the note and proved the signatures, both parties testified about the note, and the clerk had marked it as evidence. Under these circumstances, the appellate court was unable to “hold it was not admitted in evidence.” (Ibid.)
As basically the same thing happened here, the court deemed the note admitted into evidence.
The Upshot: If you forgot to move a key exhibit into evidence, argue the Dodson case. If you laid the foundation for the exhibit and there was no dispute over its authenticity, then under Dodson the appellate court may deem the evidence to be part of the trial record.
But you still have to make sure the missing exhibit is part of the appellate record. For this, consider consulting an appellate specialist.
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 www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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