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The MINUTE ORDER In My Case Differs From What The JUDGE SAID But My Ex Says We Must Follow It - What Can I Do?
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Q. I was in Court three weeks ago and I swear the Judge said something entirely different from what the clerk's minute order says now. My ex says we have to follow the minute order, but it is WRONG - what should I do?
Libby, Rancho Cucamonga
A. Libby -
This is a timely question and a common problem. Sometimes the judge's clerk misunderstands or doesn't take down all of what a judge orders - which is no surprise since discussion tends to move fast and emotionally in family law court and these folks may be rushing to take notes or be distracted.
There is always something called a "minute order" in the court file, or online if your jurisdiction makes the court docket available, which the clerk prepares immediately, later that day, or sometime even later then that which identifies the name of the case, an abbreviated description of what motion was pending, whether the parties had attorneys and who they were, and summarizes the court's rulings were at the hearing itself.
The problem is that they may not accurately reflect what was said because while the court reporter is recording everything spoken, there is rarely any discussion between the judge, clerk, and reporter later to assure that everybody is on the same page and that the minute order tracks it all.
Really minute orders give some immense power to nonlawyer/nonjudge court clerks in the sense that these people may really have a limited understanding of what was transpiring or what its import was. If the minute order is in error, most court filing departments will not accept and present to the judge for signature a formal order after hearing that does not conform, usually verbatim, with the minute order even if it is right!
I want to say, however, that some of my favorite people are court clerks. I can't imagine it being intentional, and divorce court is just plain complicated and challenging!
Yesterday an important decision was published which answers your question. In In re A.C. (2011) 197 Cal.App.4th 796, an opinion issued by the Second Appellate District Court of Appeal, the justices held that the reporter's transcript of what the court orders on the record trumps the clerk's minute order. This outcome should be obvious, but many court offices slavishly follow minute orders.
A.C. is an appeal from a juvenile court order. There was a conflict between the oral order of the court and what was recited in the clerk's transcript. The appellate court ruled "we presume the reporter's transcript is the more accurate."
So, get a copy of the transcript and see if this helps you. If so, file a motion to clarify or correct the minute order or the order after hearing and present the transcript to the court.
I will tell you that all good lawyers with clients who can afford to pay the freight (for the transcript to be prepared) request a transcript after every important hearing. These are invaluable to have in your possession where good stuff for you was said on the record, and it can be impossible to obtain them years later if you then find you need them.
I will write another day about how to deal with court reporter errors....
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Posted By Thurman Arnold, CFLS on
July 21, 2011 06:17 pm |
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