The comprehensiveness of the separate statement is important to record preservation because the court of appeal will affirm a summary judgment if it is correct on any legal theory, not just the legal theory relied on by the trial court (or even necessarily the legal theories raised by the parties in the trial court). Importantly, it is not sufficient simply to file or lodge the evidence and cite to it in the memorandum of points and authorities. In preparing a motion for summary judgment, remember the cardinal rule that if evidence is not in the separate statement, it does not exist. Motions for summary judgment can be especially tricky and present several opportunities for making big mistakes. Here, too, record preservation issues abound. Most civil cases never make it to trial but are decided on motion for summary judgment or other pretrial motion. ![]() 1: Ignoring record preservation at the motion stage (particularly summary judgment) Nonetheless, many good appeals have been lost because of counsel's failure to preserve the record. And some issues, particularly pure questions of law, can usually be considered on appeal even if not raised below. Reviewing courts also have considerable leeway deciding to "save" an argument that was arguably waived. Fortunately, unlike the need to file a timely notice of appeal, record preservation is not jurisdictional. ![]() ![]() The four saddest words from the Court of Appeal are these: "Great argument not preserved." Alas, even the sharpest legal mind and best honed rhetoric cannot resurrect a terrific argument that was not properly preserved for appellate review. PRESERVING THE RECORD FOR APPEAL: TOP TEN MISTAKES
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