Legal Question in Appeals and Writs in California
After oral argument, can record be augmented with exhibit?
After filing of Appeal, Reply, and our Respondents Brief, Oral Argument was heard on a Civil Appeal. The Justices asked questions that made me feel that some Exhibits would help them better understand the case, and further answer their questions. One Exhibit is already existing from the underlying trial, the other is a phone bill obtained after the trial, that proves the validity of that Exhibit. Can both of these items be filed to augment the record as Exhibits to the Reply Brief (or what could you call them?) 3 weeks after the Oral Argument? No decision or tentative has been rendered yet. The hope is to have the civil trial overturned, and the evidence will be helpful, or have a new trial ordered. Can any communication be had with the Justices during this period after the Oral Argument? Thank you very much.
2 Answers from Attorneys
Re: After oral argument, can record be augmented with exhibit?
No. Leave them alone.
Re: After oral argument, can record be augmented with exhibit?
Technically the trial exhibits are part of the record on appeal whether you provided copies to the appellate court or not, so you may be able to persuade it to look at the exhibit. The court will almost certainly not look at anything you didn't present at trial, though. Even if you had tried to offer the evidence when you filed your opening brief the court would probably reject it.
The job of an appellate court is to see whether the trial court made mistakes, not whether you could have presented a better case. The trial court could not have made a mistake by not reviewing evidence you only found later.
You say that the new evidence "proves the validity" of the exhibit, which suggests that you failed to lay a proper foundation for the exhibit at trial. It is very unlikely that you could cure such a failure on appeal at all, let alone after the case has already been argued. Without a proper foundation, showing the exhibit to the appellate court will accomplish nothing.
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