Preparing the Statement of Decision

Here is how a trial lawyer might set up the statement of decision to give her appellate lawyer the best chance of winning on appeal.

The Request

If you lose a bench trial, you are entitled to have the judge sign “a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial.” Code of Civil Procedure § 632. But you must request it. Ibid.

If the trial lasted less than one day (or eight hours over several days), you must request a statement of decision before the case is submitted for decision. Code of Civil Procedure § 632, Rule of Court 3.1590(n). In that case, it’s easier simply to request it at the outset of trial.

For a longer trial, you must request it within 10 days after the court’s issuance of a tentative decision. Code of Civil Procedure § 632; Rule of Court 3.1590(d).

The request must specify the particular controverted issues you want the judge to rule on. Any issues not specified are waived on appeal. Code of Civil Procedure § 632, Rule of Court 3.1590(d).

Preparation & Objections

The judge may then prepare the statement of decision herself, or ask counsel for the winner to do it. Most judges choose the latter.

The statement of decision must explain the legal and factual basis of the decision “as to each of the principal controverted issues.” Code of Civil Procedure § 632. But it need not go into detail, such as why the judge believed one witness rather than another.

The loser may then object to the proposed statement of decision, within 15 days after service of the court’s proposed statement of decision. Code of Civil Procedure § 634; Rule of Court 3.1590(g). Failure to object waives the right to raise those issues on appeal.

And you must file “objections.” Filing your own proposed statement of decision does not constitute an objection. Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380.

What To Do If You Lost

If you lost the court trial, it’s very important to request a statement of decision. If you don’t, the appellate court will presume that the trial court resolved every contested issue against you. If you do request it, the appellate court will look to the statement of decision to see what the trial court actually found and how it reasoned. That makes it easier to get a reversal.

Object to the proposed statement of decision to the extent it omits discussion of an issue you’d like to raise on appeal. If you don’t do this, you might waive it.

But it’s usually not a good idea to object to findings against you. You don’t have to, because the judge did address the issue, so you don’t waive it by not objecting.

Many lawyers object because they think their objections can persuade the judge to change his mind by objecting. Never (well, hardly ever) works. You already argued against the major reasons the court found against you – it didn’t work then, and it’s not likely to work now.

And if you re-argue the issue in your objection to the proposed statement of decision, you might pay a steep price: you’ll be giving the winner an easy way to block your appeal. If she’s smart, she’ll simply ask the judge to change the statement of decision to answer your objections. For example, if you object that the judge failed to consider Mr. M’s testimony, the winner can get the statement of decision changed to say “I considered Mr. M’s testimony, and I conclude that it is not credible.” That pretty much kills your chance of using M’s testimony in any way on appeal.

What To Do If You Won

You won, and you will get what you came for: a judgment. So why should you care about how the statement of decision is drafted? Because if there is an appeal, the appellate judge will read the statement of decision – possibly before she reads anything else. She cares what it says, because it’s signed by one of her colleagues – a neutral decider, unlike the lawyers.

So if the trial judge directs you to draft the statement of decision, treat it as a short brief. State the facts clearly, to be read by someone – unlike you and the judge – who knows nothing about the case. The reasoning should be clear and persuasive.

Keep in mind the standard of review on appeal. The appellate court reviews de novo (i.e., without deference to the trial court) issues of law and contract interpretation, so it’s better not to have the trial court’s ruling depend on those. If you won in the trial court, you do not want de novo review – which gives the appellant a fresh new shot at winning the case. It’s much better to set up an “abuse of discretion” or “lack of substantial evidence” standard of review. You can do this by making the trial court’s verdict turn on the credibility of witnesses. So it’s better if the statement of decision says it’s based on the judge believing your witness rather than your opponent’s witness. In fact, if you can persuade the trial judge to find that your opponent lied on the witness stand, the appellate justices are unlikely to be very receptive to his legal arguments for reversal.

If your opponent objects to the draft statement of decision, don’t fight him. He’s giving you a preview of his arguments on appeal, so take the steam out of them now, by addressing them in the statement of decision. If he says, “Statement of Decision failed to discuss X”, change it to discuss X – even if you don’t think you have to.