with Jody Sanders

There’s a certain excitement as a trial lawyer when your witness is on the stand, effectively using an exhibit to lay out your case.  You can see the jury leaning in, the judge looking over, and know that they are fully engaged.

            The problem is that the courtroom magic doesn’t always translate into a cold appellate record.  Take this example, where a plaintiff explained to the jury where a particular incident happened in a boundary dispute:

Q:        So look with me at Exhibit 2.  Now can you use the pointer to show the jury where it occurred?

A:        Right there. 

Q:        So over here?

A:        Yep, right by those trees.

Q:        Here?

A:        Yep.

            The jurors got it, they saw where the witness pointed and counsel reaffirmed.  And, ultimately, they ruled in the plaintiff’s favor.

            But then the court of appeals reads that same testimony and looks at Exhibit 2:

            Unlike the jurors, they are left to guess.  And appellate judges, in particular, don’t like to guess.

            This isn’t unique to exhibits.  Many times, parties will sensibly try to save time and money by using video deposition testimony in lieu of live witnesses.  And there’s nothing wrong with that.  Except that sometimes the trial transcript will look like this:

THE COURT:  Counsel, call your next witness.

ATTORNEY:  Your honor, the defense calls Dr. Expert, M.D. by video deposition.

[VIDEO DEPOSITION PLAYED].

ATTORNEY:  Your honor, that concludes the testimony.

Now the defense is left, already on appeal, missing potentially critical witness testimony.

            So how do you avoid these issues?  The main way is through a word lawyers are taught to hate:  redundancy.   That doesn’t mean repeating the same thing over and over though.  Redundancy in this case means having a backup.  When asking a witness questions about an exhibit, make sure you orient the listener who isn’t in the courtroom. 

            So maybe that boundary examination might look more like this:

Q:        So look with me at Exhibit 2.  Now can you use the pointer to show the jury where it occurred?

A:        Right there.

Q:        So you’re pointing just southeast of where Highway 19 and County Road 15950 intersect? 

A:        Yes. 

Q:        Approximately how far from the intersection are the trees you’re referencing?

A:        On the ground, about 50 feet. 

Q:       So if we look, it’s the group of trees between the highway intersection and the first driveway on the south side of the county road?

A:  Yep.

            And then give the appellate court some backup:

Q:        Here’s a paper copy of Exhibit 2.  Can you please circle on that exhibit where the incident occurred?

A:        [witness complying]. 

Q:        Your honor, I’d like to move to admit this as Exhibit 2a.

            Redundancy also applies to video depositions.  First, make sure you know whether the court reporter is going to record video deposition testimony so you aren’t surprised.  Second, give them a copy of the deposition cuts and admit it, either as an exhibit or a court exhibit, so that the record contains what was played. 

            Similar problems arise when counsel or a witness refers or identifies a person present in the courtroom. Without ensuring the record reflects the person’s identity, the appellate court is left to guess which person that the witness is referring.

Q:        Okay. Do you know who this guy is?

A:        Who is what?

Q:        Do you know who this gentleman is? Right here. Do you know who this is?

A:        I don’t know that I remember him.

            On appeal, the appellate court simply has no idea “who is what” or who “this gentleman is right here.” In addition to identifying the person’s name within the question itself, counsel may also ask the judge to take judicial notice of the person’s identity when identifying the person in the courtroom. If the goal is to not identify the person to determine whether the witness recognizes the person, counsel may ask a follow up question with the identity and may also state who the person is on the record after the question. And without objection, the record will reflect the person’s identity.

Q:        Do you know who this gentleman is seated to my left?

A:        I don’t know that I remember him.

Attorney:  Your honor, I would ask that the Court take judicial notice that Mr. Obvious is seated to my left.

Court:          So noted.

            But what if it’s too late to take those steps?  It depends.  If you’re still in the trial court, see if you can find a way to get something into the record that will help the court of appeals understand.  Maybe it’s too late to fix the witness testimony issue.  But is there another witness you can call or a different exhibit you can use?  Can you file something post-trial that shows it in a different way?

            On appeal, you can’t add new testimony.  But you can probably still fix the video deposition issues.  If the trial court reviewed and ruled upon deposition cuts, you can use that information from the clerk’s record to piece it together.  Ask to supplement the clerk’s record with that information.  See Tex. R. App. P. 34.5(c). 

            If not, see if the other side will agree what was played and file that with the trial court to add to the clerk’s record.  See Tex. R. App. P. 34.6(e).  Or see if the court reporter will take that to prepare a supplemental record.  Tex, R. App. P. 34.6(d). 

            Sometimes, even if you follow the rules and prepare something still gets lost.  If it’s something from the clerk’s record, the parties can replace it by written stipulation.  Tex. R. App. P. 34.5(d).  If they cannot agree, the trial court must make the determination and include that item in the record.  Id.  For reporters’ record inaccuracies or omissions, the parties can always fix it by agreement.  Tex. R. App. P. 34.6(e)(1).  But if they can’t, the trial court gets to decide.  Tex. R. App. P. 34.6(e)(2)-(3). 

            In very rare circumstances, the loss of some (or all) of the reporters’ record can result in a new trial.  Tex. R. App. P. 34.6(f).  But appellate courts will go to great lengths to make sure the parties don’t have to redo a trial because of a lost record. 

Conclusion

            As they should, good trial lawyers focus on winning the case in front of the jury.  But taking time to think through what the court of appeals might need can turn your trial win into an appellate affirmance.  Make sure you prepare your witness exams in a way that someone reading it later can understand.  And don’t hesitate to add context and demonstratives to clear up any uncertainty.  If all else fails, use the rules to get the record you need for appellate success.