December 12, 2011 § 1 Comment
Do you ever stop to think about what kind of record you are making as you try a case?
When I first took the bench, I was called upon to judge a case that had been tried two years before, but had never been decided. I was asked by counsel for both parties to read a 200-page trial transcript to determine whether I could adjudicate the case based on it, or whether a trial date needed to be set, all as provided in MRCP 63(a). The attorneys were all experienced and skilled trial lawyers.
It did not take many pages to discover that the record was in woeful shape. Here are some of its problems:
- The first 22 pages consisted of banter among the lawyers about a hunting camp, a weekend cookout, and exchange of good-natured barbs. That’s 22 pages, not a page or two.
- When the first witness was called, the questioning was interrupted repeatedly by jokes among counsel.
- When objections were made, they degenerated into exchanges back and forth among the lawyers.
- Witnesses were asked questions like, “Let me show you this paper,” followed by questions without a clue as to what the paper might have been.
- Many of the questions lacked context: “Can you tell us what he was doing when you saw him there?” Who was doing what and where?
There were other flaws, but the coup de grace came in the last pages of the transcript where the then-chancellor announced that the trial would be continued to another day (it never was), so I decided they would just have to start over, given the passage of time and the state of the record. I ordered a new trial.
As a lawyer, you have to realize that putting on your case in a way to persuade your judge is only part of your job. It’s also critically important that you make an effective record for review. That means at least that you need to:
- Keep banter and comments to an absolute minimum.
- Confer with counsel opposite off the record or aside at counsel’s table with permission of the court and record any agreements or stipulations with a coherent announcement affirmed on the record by the other side.
- Before you begin announcing a stipulation, make sure you have an agreement on every point, and on the wording of every point. Even better: your stipulations should be in writing, even if it means asking for a recess to hammer out the language.
- Always make sure your questions are clear, which means either limiting the number of pronouns and indefinite descriptives or being quite precise in defining them.
- Make sure that any document, photograph or other item referred to by a witness is clearly identified for the record.
- If the witness’s response is unclear or confused, ask the witness to restate it or clarify.
- Don’t interrupt someone else who is speaking, and don’t speak over someone else. Don’t let your witnesses do it.
I try to make sure that the record is free of interruptions, clear of colloquy between attorneys, uncluttered with thinking out loud and other particles of nebulae, any and all of which can obscure the record, even to the point of being unintelligible. But I’m not always 100% successful, and it’s the duty of the attorneys to make their own record.
FYI, here are links to a few posts on trial techniques that can help you make a better record: