Counsel works hard to perfect the record for the appeal. They ensure that the appellate court receives the reporter's transcripts from the proceedings where the legal error occurred as well as the necessary trial motions and trial court orders. Now, with the record before the Court, counsel endeavors to craft an appellate brief. So focused on the legal argument, counsel fails to provide citations to the record counsel so craftily prepared.
Many attorneys believe, "What's the harm, the appellate court has the record, the Court can read the record for itself." However, any attorney holding such a belief runs the risk of waiving their client's appellate argument in its entirety and/or the imposition of sanctions. (Cal. Rules of Court, rule 8.204(d); Century Surety Co. v. Polisso(2006) 139 Cal.App.4th 922, 956, citing Miller v. Superior Court(2002) 101 Cal.App.4th 728, 743.)
While counsel may have provided the Court of Appeal with the relevant portions of the record, "it is counsel's duty to point out portions of the record to support the position taken on appeal." The appellate court does not have the time, nor the duty, to search the record on its own seeking error. (Kinney v. Overton (2007) 153 Cal.App.4th 482, 497.) The reason behind this rule is clear, the California Court of Appeal receives nearly 25,000 filings each year. With 25,000 case filings each year, the appellate court is without the time or resources to read through the entire record on appeal in each and every matter before the Court.
In order to protect the client's interests, and to best advocate for relief on appeal, appellate counsel needs to take care to guide the Court with clear citations to the record for each and every factual matter relevant to the legal issue argued by counsel. Without clear and proper citations to the record, counsel greatly reduces his/her success on appeal and enhances the chance for a very disappointed client.
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