With rare exception, an appellate court will consider only matters preserved in the record of the lower court proceedings: the reporter’s transcripts, the papers filed in the lower court, and any trial exhibits transferred to the appellate court. Practitioners must therefore pay careful attention to making an adequate record at trial. Here are some tips.
Object on time and with specificity. When challenging your opponent’s evidence, improper questions, and misconduct, object promptly. For improper questions, this usually means after the question but before the answer. If you’ve already objected by motion in limine and received a definitive ruling, you do not have to object again when the evidence is presented at trial (e.g., FRE 103)—but objecting anyway (or obtaining a stipulation that the issue is preserved) avoids disputes over whether the in limine ruling was truly definitive and whether a new objection was needed because the evidentiary landscape had changed by the time the evidence was offered at trial. Objections should also identify with particularity all specific grounds: objecting on one ground will not preserve an objection on another ground; objecting to the introduction of a document may not preserve an objection to a witness testifying to the same information; and in some jurisdictions—like California—objecting for “lack of foundation” is not sufficiently specific.
Make offers of proof and obtain a ruling. If your opponent objects to your questions or opposes what you want to do, tell the court what you would do if the court would let you: the amendment you would make if leave were granted, or the evidence you’d elicit if you could ask the question. Be sensitive to the court’s desire not to have such arguments in front of the jury, but pursue the matter promptly, at sidebar if necessary. Similarly, specify the prejudice your client will suffer if the court rules against you. Not only does this help you persuade the trial court to rule in your favor, it is critical to preserving the issue for appeal. And make sure you actually move exhibits into evidence and obtain a ruling—or at least ask for one—on anything you request.
Avoid this and that, here and there. At trial, witnesses and attorneys will often refer to exhibits as “this document” or “the letter,” and point to diagrams and say “right here” or “in that area.” Without clarification, the transcript of the proceedings may be confusing. You can avoid this by referring to “the Exhibit 3 letter,” “Smith’s June 17 letter,” or at least “Exhibit 3,” and by stating where the witness was pointing when he or she said “here.”
Recap off-record conversations. Discussions between counsel and the court are not always recorded by a court reporter, especially when held in chambers or at sidebar. These unreported discussions should be restated on the record. Ask your judge how he or she prefers to handle it, but it’s your responsibility to get them on the record. As the adage goes, if it’s not in the record, it didn’t happen.
Verbalize the non-verbal. Smiles, tears, shrugs, sighs, depictions of distance or direction by hand movements, and other gestures are often not recorded by the court reporter. These should be noted for the record as well—at least if you want to preserve them.
Anticipate. Finally, since making the record can be tough under the fast-paced pressure of trial, it’s helpful to think in advance of the objections you might make, your offers of proof, and what else you can do to make sure the record is clear.
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