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
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
There should always be something called a "minute order" in the court file, and maybe online if your jurisdiction makes the court docket available. Usually, the clerk prepares immediately, later that day, but 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, his/her clerk, and the stenographer or court reporter later that assures that everybody in the justice system is on the same page, and that the minute order tracks it all.
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. They are not lawyers, after all, but they may have little more understanding that a 2nd year legal secretary. Compounding matters, f the minute order is in error verses an order that needs to be submitted for the judge's signature, 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!
[At the same time, I have to tell you that on extremely rare occasions
(twice in 33 years so far), I've ordered up reporter transcripts that
definitely omitted part of the discussion "on the record." The
first time was in the late 1980's, and the judge made really biased
and offensive statements that somehow didn't survive to the court
reporter's transcipt when I filed for Writ of Mandate to enforce my
disqualification of an old time local judge. The Writ was granted and
he was disqualified by the appellate court after he'd refused to withdraw
on his own for other decisions, and we proceeded to win the underlying
CPS/Family Court custody dispute in front of the next judge, but I will
never forget my amazement to receive the reporter's transcipt when
I was drafting the appeal and to see that the entire discussion (which
was witnessed by court staff, county counsel, and my clients) was omitted.
I was a young lawyer then, and what one might or should do if they ever
suffer the same circumstance is definately better discussed in another
blawg. But, I've always concluded he told the court reporter, who
was in his courtroom day in and day out for years and so had little power
to resist his demands, if any, to 'strike' his improvident statements.
This is something a percentage of older lawyers have encountered over
the years, but we are all afraid to talk about it for the obvious reasons.
My digressions aside, 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....
Author: Thurman W. Arnold III