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Because it is the appellant who must affirmatively demonstrate error, there is no short cut to reviewing the entire record.  One needle-in-a-haystack piece of evidence or buried court finding can defeat what might otherwise appear to be an airtight appellate argument.

In a 2013 Recorder article, Gary J. Wax and Kent L. Richland of GMSR provided proven organizational methods for reviewing an appellate record that can save time and provide thorough results for your client.

A few highlights:

Talk to trial counsel

• • Getting trial counsel’s take on possible errors can help you manage your time effectively and focus your attention on the real meat of the case before you dive head first into reading the whole record.

Obtain the record – the appeal’s complete universe

• • The record constitutes the appeal’s complete universe: every document filed in the trial court – including admitted and excluded exhibits – and every word spoken in the judge’s presence.

Begin at the end

• • Most appellate specialists will tell you the best place to begin your review of the record is not at the beginning, but rather, at the end.  Generally, the closing arguments, verdict or statement of decision, and post-trial motions (like a JNOV or new trial motion) lay out the primary legal issues.

Make lists

• • Create two lists separate from your record notes: a written chronology of events and a who’s who list (i.e., a cast of characters).

Study the record

• • Read everything in the record; you cannot avoid it.  Make sure you have the trial exhibits close by so you can review them as they come up in the context of the testimony, argument and objections.

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