Appellate Insights

One key to success on appeal is creating a clear and complete record.  Here are ways to create such a record that are often overlooked in the heat of trial:

• Ask the court reporter to transcribe sidebars and in-chambers conferences.  If that’s not possible, summarize what happened during the sidebar or conference once you are back on the record.

• Court reporters normally do not transcribe the court’s reading of jury instructions.  Consider asking them to do so.  The transcript may help if there is a dispute in post-judgment motions or on appeal about whether the jury received a specific instruction.

• If the verdict is against your client, ask the court to poll the jury on the record.  Appellate courts treat the closeness of a verdict as relevant to whether errors at trial were harmless (non-reversible) or prejudicial (reversible).

• If witnesses use phrases like “this one,” “that one,” or “over here,” remember to have them elaborate on exactly what they are pointing to, or mark it on a copy of the exhibit and offer the marked-up exhibit into evidence.  Otherwise, an appellate court reading the transcript won’t know what the witness meant.

▶ The practical message:  Designate someone on your trial team to keep an eye on creating a record that will be clear when it comes time for post-judgment motions or appeal.