Learn Law For All

Preserving the Record: Expert Strategies for Securing Your Right to Appeal with Michael Den and Randi Burggraff

• Launi Sheldon and Guests

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Discover the keys to ensuring your legal battles are fought with a safety net, as Launi Sheldon teams up with legal virtuosos Michael Dinn and Randi Burggraff to guide you through the critical process of preserving the record in litigation. Your right to appeal could hinge on the meticulous documentation of your courtroom saga, and our experts are here to share their wealth of knowledge. With Michael's seasoned background in family case appeals and Randi's unique blend of legal acumen and psychological insight into individual and children's rights, you're in for an eye-opening discussion on one of the most vital yet overlooked aspects of the legal system.

Embark on a journey with us, structured around the crucial milestones of the litigation process, from the drafting of initial pleadings to the emotion of delivering a final verdict. Our seasoned guests leave no stone unturned, providing actionable steps and cautionary tales to ensure your claims and evidence are indisputable in the eyes of appellate courts. While we might be seasoned attorneys from Arizona, the strategies put forth by Michael and Randy transcend state lines, offering invaluable advice to anyone navigating the intricate dance of the courtroom. Arm yourself with the expertise necessary to maintain the integrity of your legal proceedings and stand prepared for any appellate scrutiny.

You can reach Michael and Randi at:
https://btlfamilylaw.com/

You can reach Launi Sheldon at:
Launi@LearnLawForAll.com

Launi:

Hi, I'm Launi with Learn Law For All, and today we have Michael Dinn and Randi Burggraff with us today and we're going to talk about preserving the record. So when you're when you have a case that's going through the litigation stream, right, there's things that you should do to make sure that you preserve the record in order to ensure that you can appeal it if necessary. So a little bit about Randi Since earning her law degree, she is has dedicated her career to helping people secure their rights and the rights of their children, even in the most volatile situations, and she has a background in psychology as well as family and children services, which is really great and gives her really great insight. Michael's been doing appeals and family cases since 2017. He is dedicated to securing justice and fairness for all of his clients and he enjoys seeing the laws upheld. So their information, their contact information, will be linked in the description of this, but, as a disclaimer, all three of us are only licensed in Arizona to practice law.

Launi:

The podcast is for educational purposes only and then should no way be considered legal advice. Using this video does not create attorney-client relationships with any of us, and so anything that we are discussing today is really just Arizona. However, a lot of these things I am sure are useful to other states. Just make sure that you know the rule numbers in your states, because we're going to have different rules and preserving the record and appealing is sort of a general thing that is universal but different rules. So this is more strategic, I think. Today we're going to talk about and we did a CLE on this that will be available also. So welcome you two.

Randi:

Thank you, yes.

Launi:

Okay, so here's my questions for you, and I know I've got some good ones. So let's first just tell everyone what preserving the record means.

Michael:

What preserving the record means is that you are ensuring that what is happening at the family court or trial court level is being appropriately documented, if you will, so it is able to be reviewed on appeal. It is ensuring that all your claims are getting out. That evidence is You're bolstering bolstering the claim to ensure that that it can be reviewed and then ultimately ruled on by the trial court. That is preserving the record and getting as much.

Launi:

Can you give me a couple of examples of how to preserve the record?

Michael:

Sure, I think the first example would be to, in your initial pleading complaint petition whatever you want to call it Ensuring that the claim is out there. If you want to assert a claim for spousal maintenance, make sure that you've specifically pleads for spousal maintenance, as the rules are required. That is the first step to preserving any claim on appeal.

Randi:

And I think, in addition to your pleading work, one of the other ways is going to be if you end in, say, a trial, right, so it's going to be about the evidence that you present a trial through the testimony of your witnesses whether they are your witnesses, the opposing sides witnesses and then in your exhibits, and so that can be what it is that you're admitting what's contained within the exhibits, utilizing them for the benefit of the arguments in your case, making sure that those exhibits are being admitted, and then even, I guess, before trial, your motion practice, pre-trial statements, and so that's everything, from day one until conclusion of case, that you're being very clear on what the positions are, what your arguments are, and that way, in the event that you do end up in an appellate situation and taking your case up to a higher court, your record is very clean, at least from your perspective.

Michael:

Absolutely.

Launi:

And so what do you think the biggest mistakes are that people make when they're, I guess, to not preserve the record right. So how do they, what kind of mistakes are they making most, you think?

Michael:

I think that there's probably two, and the first one is not admitting the evidence that they thought that was admitted at trial, or just omitting the evidence completely. If the evidence to support the claim doesn't exist, that evidence can't be reviewed on appeal. And I think the second one is is not correctly raising issues for appeal Aside from the petition. There are various other ways that one can raise issues throughout the course of the case, including amending your petition, and then there's various other issues that come up. You have to ensure that whatever claim or issue you're raising or asserting is appropriately before the family court so that it's actually ruled upon. If there's the claim isn't appropriately ruled upon by the judge, it's not preserved for appeal. The issue has to be ruled upon.

Randi:

I think in addition to that too, it's lack of specificity. You're getting initial petitions that are extremely vague. You are filing RMC statements that don't say anything at all. You are doing pretrial motions that don't contain enough information. You're doing a three page pretrial statement that doesn't give anything, and so it's all the buildup. If you do end up in litigation, in an evidentiary hearing for example, where you haven't done any of the work leading up to that point, then you're not doing any of the work. When you're in trial it is it's exhibit dumping. It's submitting a 400 page set of text messages without going through them in any capacity and just saying here are the text messages Right. So it's kind of like sort of the lazy work or the lack of specificity that people are doing throughout the entire course of the case, from start to finish.

Launi:

So, and I know one thing that we talked about when we were doing the CLE, which I found very interesting because it's not something I think a lot of people think about, but defaults. So you don't necessarily think about defaults as being appealed because it's a default. Somebody didn't participate, but apparently that's not as uncommon as I thought it was. So talk to me about what's happening in the defaults.

Michael:

Sure In defaults. I think the main issue is that when people file their petition, if they seek or if they proceed to default at some point in the case, whether they knew that the case was going to default later or it just happens to be that the opposing party doesn't respond to participate in the proceedings. The key issue is does the petition match the default decree? If you have a petition out there that says you're requesting $2,000 a month in maintenance for a year and then the default decree says I get $4,000 per month for five years, it's going to be null and void because it violates due process, because the other party didn't have notice.

Randi:

Well, and even on that example, let's pretend you did, and it kind of depends on what's going to happen, right? So if you're having that initial consultation or there's this concern that the other side is not going to be a participant, let's say, in the divorce process, then you're doing a detailed petition so that way you can make sure that the detailed petition is going to match the consent decree or the parenting plan. If you get through a default phase Sometimes you don't know that information you have to go back and amend that petition later. But let's do pretend it's a situation where your petition says I get two grand a month in spousal maintenance for four years, and then you throw in the decree, six grand for 10 years, and the judge isn't paying attention. They sign it and great deal, you think you've won.

Randi:

It does allow the individual who didn't participate in the litigation at all, once they get a copy of that decree because you're required to provide them with one, that default decree that they can open it back up and say hey, I didn't have proper notice of this. I had noticed that maybe they were asking for the two grand for six years, but I didn't have notice that it was going to be this different dollar amount. And so that is where, even if you think that you've sort of been successful because you got it past the judge, just because this person wasn't active in the litigation at the outset doesn't prevent them an ability to set aside that default, to create or take that issue up on appeal.

Michael:

Yeah. So two practice points on that. The first one would be, if you have any inkling that this opposing party is not going to participate, be as specific as possible in the initial petition. The second part is, if you don't know whether or not the party's going to participate and your petition doesn't state the claims in a way that you feel this detailed enough, it doesn't hurt to go back and amend the petition to ensure that it conforms to the claims that are the request for relief that are ultimately going to be issued in the default decree. This will help avoid not only the post-trial motions possible appeals but it also builds the record for in the event that those motions or appeals do come.

Launi:

Yeah, and they become a lot more expensive when you start sort of messing with that right Because and it takes a long time to get things settled, long time yeah.

Randi:

Well, yeah, because I mean not like the court of appeals isn't making a decision in 60 days. I mean you're talking months to a year, if not longer, and if you're hiring, and if it let, against hiring an attorney to deal with that, you're thousands of dollars. So, yes, make sure it's done the right way the first time, absolutely.

Launi:

All right. Well, thank you guys so much for being here and talking about that. I really appreciate it. I think that the information you've provided is really helpful. If anyone wants more information on this, feel free to check out our CLE on preserving the record. Thanks,