I am in pro per on Appeal. Today there was a hearing on the Settlement of Statement on Appeal. The judge, refused to accept my statement on Appeal, this is a limited Civil case, I went through my statement with the judge and opposing council. The judge said, we will take the opposing councils Statement because it is more accurate.
Is it legal for the Appellant's statement on Appeal to be completely rejected? I understood that the judge was to send back corrections so that the Appellant's statement on Appeal is in accordance with the case.
2 Answers from Attorneys
Are you talking about the agreed statement which replaces the Clerk's Transcript or the transcript when the proceedings are electronically recorded and a court reporter is not used?
Unfortunately, the trial judge has the discretion to determine what is an accurate statement of the proceedings in the trial court. Unless he or she abuses his or her discretion in making that determination the conclusion is the factual record on appeal. If you think the court abused its discretion you can seek a writ from the appeals court or you can ask that court to augment the record with your proposed statement and hope that the court can determine that there was an abuse of discretion. Not very likely unless there is something in other parts of the record that supports your version of the facts. The appellate court does not determine these issues de novo but makes its determination from the existing record. This is what happens when there is no record of the testimony at the trial. Your chances of changing the trial court's determination is very small. You might want to rethink the in pro per situation. However, the attorney would be stuck with the record you created so it might not improve your chances that much. You should have been more careful in your proposed statement of facts on appeal then the trial court might have paid attention to your proposed record. Good luck.