The Better Chancery Practice Blog

As I have said here before, your primary job as a trial lawyer is to make a comprehensible record.

There are two obvious reasons for this: (1) if you fail to make the trial judge understand what your favorable facts are and what your theory of the case is, you lose, plain and simple; and (2) if you lose, you have got to have everything in the record — clearly stated — that you need to win on appeal.

It does you no good to try a case for three days and have the record transcribed only to find to your dismay that it is full of [Unintelligible], and interrupted, incomplete sentences, and references by the witnesses to documents that were never identified or offered into evidence.

Here are ten tips to get you thinking about making an adequate record:

1.  The court reporter can not get two (or more) people speaking at the same time. Lawyers who have come before me know this is a pet peeve of mine. The record is required to be verbatim, meaning that everything said audibly in court must appear in the record, and must identify who said what. Even the best court reporter can not make a verbatim record of more than one person speaking at the same time. After several warnings, I have told my court reporter to stop trying and just record it as [Unintelligible] if she can not accurately record what is being said and identifying the speaker. That does not produce a record that might prevail on appeal, you can rest assured.

2.  No nods or shakes or shrugs. The court reporter is not an interpreter. If your witness nods, the reporter will report it as [witness nods], not as a “yes.” It will be up to the trial judge and appellate court to do the interpreting, which may not yield the intended result. When your witness offers a physical gesture instead off a verbal response, follow up with something like, “Does that mean yes?” or “Please answer verbally.” It’s not the judge’s job to ask that, although some judges will just to resolve their own doubt.

3.  What in the world are you talking about? You hand the witness a photograph and ask what it depicts, and never offer it into evidence (counsel opposite is not going to help you). Or you hand the witness a sheaf of documents already in evidence and ask questions about them, never identifying them by exhibit number. Either is a good way to keep the trial judge and the appellate court from knowing what it is you’re trying to prove.

4. Read at your peril. Some people talk fast, but everybody reads much faster than they speak normally. When you read, consciously slow down. And then slow down some more. You read faster than you talk because you’re not having to think about what you are going to say. If your goal is an intelligible record, you will have to read a lot slower than it seems like you should, but the product will be a record that is accurate.

5.  Speak up! Projecting one’s voice seems to be a lost art, but it’s essential if you want the judge and court reporter to catch what you’re saying. That’s true even if you and your witness have a microphone. Speak up. When you have a soft-speaking witness, encourage him to speak louder. Don’t stand too close to the witness because that usually degrades into a conversational, coffee-table exchange.

6.  Distractions distort the record. Anything that distracts the court reporter will detract from the accuracy of your record. Shuffling papers, drumming a miked table, loud whispering, jangling cell phones, are a few of the most attention-grabbing. If you or your client have a hacking cough, have some lozenges at the ready or ask the judge to allow a cup of water. If all else fails, suggest that your client to go out into the lobby until the paroxysms subside, making sure you either ask the judge for a recess or announce that your client is okay with proceeding in her absence.

7.  Let the court reporter mark the exhibits. You’ve just handed the court reporter that crucial exhibit, and before she can do anything else, you launch into your next question. As a rule, most judges or court reporters will stop you, but I saw a court reporter some years ago simply take the document and lay it on the table, resuming taking her record without ever marking the exhibit. That’s on the lawyer.

8.  Nothing is stricken. Something said in court can not be unsaid, so do not even ask. It’s the court reporter’s job to make a verbatim record of everything that happens. If you don’t like what was said, cover the offending answer in redirect or cross.

9.  S-p-e-l-l. You know the witness’s name and spelling, but neither the court reporter nor the judge do. It’s a good practice to ask the witness to spell names other than the most common. And that goes for persons and places identified in testimony, as well as case citations.

10. Clarify pronouns. As handy as they can be, pronouns introduce vagueness into your witness’s testimony. “All four arrived together, but I saw him leave later with her, and I was with him until she and he came back.” If you don’t define all of those pronouns using names, you have left the court with an indecipherable lump of information.

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:

A few pointers for more effective chancery trials

Making sure the chancellor sees what you want him or her to see

How to make sure your witness does a good job