Keeping the record dates back to our English common law roots. Lawyers, new and experienced, often forget one very important part about hearings & trials — making a record. Here are a few tips for making a better record.
Get Your Arguments on the Record
Many attorneys pay little attention to the record that they are making. It is not uncommon for an attorney to obtain a transcript and realize that what he or she thought was on the record was not included. The record, whether drafted by a court reporter or made by electronic recording, can only reflect what an attorney actually says. Make sure that anything you may want for a possible appeal is put on the record. Pay special attention to getting a summary of off-the-record discussions or any off-the-record objections on the record, should those need to be preserved.
Make it Make Sense
Remember that whether a court reporter or electronic recording captured the record, at some point, a person must transcribe everything. This can be difficult when using terms that are technical in nature, terms that are abstract, or terms that are case-specific. This problem is made worse when an interpreter is necessary, a witness has an accent, a person tends to um and ahh, or someone is reading from a document at the speed of sound. Be aware that through it all, someone needs to hear it properly in order to trascribe it properly. A few small changes will make a big difference in the completeness of your record. Ignoring these suggestions may cause your eloquent argument to read like a Miss Teen USA Pageant Contestant answer. Make clarifications when terms are technical, abstract, easily misspelled (Olsen or Olson), or easily mis-numbered (“forty-one-o-six” could mean 41.06, 4,106, or 40,106). Always go through the steps to properly admit exhibits into evidence. In general, don’t speak over others, but do not speak over the judge or the court interpreter. Prepare witnesses for the record: be sure experts don’t overlap & know to explain terms or spell complex words; be sure lay witnesses understand they need to wait until a question is done being asked to answer.
Your Record is Made: Now What?
If you anticipate the need for a transcript, notify the court reporter or clerk (if there is no reporter), and they can assist with getting you to the right person to get the transcript ordered. If you order a transcript, the transcript can be used for both substantive and practical assistance. In reviewing a transcript, you will be able to decipher your speaking style, you can determine whether you need to implement any changes, and will be able to differentiate what actually happened on the record with what you remember happening that day. You can also use it to support your appeal. If you appeal a case, there are rules regarding the record and obtaining the transcript of the proceedings. As an appellant, you are required to order a transcript, and coordinate with the court reporter for a certificate of transcript. Appellate courts’ reviews are limited to the record, so if your facts or arguments are not on the record, you cannot rely on them for the appeal.
For a list of “Top Ten Things to Remember” & a full article on this topic, click here.